THE Scotland Office sought to deny public access for more than two years to files from 1997 on the devolution referendum – on the grounds they could damage relations between Edinburgh and London amid the independence debate.
Alister Jack’s officials finally agreed to open parts of the secret documents after dropping a legal appeal last month against a ruling from the information watchdog that some of the papers must be released.
Contained within the papers handed to The National is a letter from Tony Blair to William Hague after the Tory opposition leader wrote to him asking for the referendum not to take place on September 11, 1997, citing Princess Diana’s death.
The newly opened documents also reveal discussions within government about the practicalities of holding the vote, arrangements for the results being announced and guidance to civil servants on publicity material drawn up for the campaign as well as on their conduct. Further issues contained in the newly released papers will be revealed in The National tomorrow.
READ MORE: Revealed: Tory attempt to stop devolution vote after Princess Diana’s death
The long process of getting hold of the files dates back to November 2018 when The National submitted a freedom of information request to the Scotland Office, then presided over by David Mundell, requesting that six files in the National Archives of Scotland relating to the 1997 referendum should be opened.
Public bodies normally have 20 days to give a response and the Scotland Office made two extensions to the request before rejecting it on February 7, 2019.
In the refusal letter, the freedom of information officer at the Scotland Office wrote that parts of three of the files were “exempt from disclosure ... because it would be likely to, prejudice relations between the UK Government and other administrations within the UK”.
It said: “There is a very strong public interest in maintaining good relations between the Government of the United Kingdom and the other administrations in the United Kingdom. While the subject of these files concerns developments that took place in 1997, the broad subject area and the issues discussed have implications for current policy debates.
“Release of this information would, or would be likely to, result in an adverse effect on public debates on these issues which would have implications for current relations between the UK Government and the devolved administrations.
“The impact that releasing the information would be likely to have on engagement between the UK Government and devolved administrations on matters of profound constitutional significance outweighs the general benefits that it may have in terms of transparency. As such, it is concluded that the balance of the public interest lies in favour of not releasing the information.”
Following a rejection for a review of the decision, the Sunday National complained to the UK’s Information Commissioner who examined the files to see whether they should be released in whole or in part or not at all.
The commissioner’s office upheld the complaint last July, ruling that some of the papers should be released.
On July 27 last year, the watchdog wrote to the Sunday National to say parts of the files would be open while exemptions relating to other sections - on the formulation of policy, which had a bearing on relations within the United Kingdom and those revealing personal information would remain closed.
The letter said: "The Commissioner’s decision is that the Office of the Secretary of State for Scotland (“OSSS”) has appropriately applied the exemptions at FOIA section 35(1)(a) & (b) and 35(3) – Formulation of government policy etc., section 28(1) – Relations within the United Kingdom and section 40(2) – Personal information. However, in regard to documentation engaging the section 35(1)(a) & (b) exemptions she finds that the public interest favours disclosure."
It added: "The Commissioner accepts that disclosure would allow scrutiny of matters relating to devolution that took place in 1997.
"The Commissioner’s view is that such scrutiny would assist the public’s understanding as to how government considers issues of significance such as devolution.
"The Commissioner is mindful of the age of the requested information which was already over 20 years old at the time of the request. She notes that under the amendments to the Public Records Act 1958, many Cabinet papers over 20 years old are now routinely published."
The National the approached the archives to view the documents that the Commissioner said should be opened.
However, in a further twist, the Scotland Secretary notified the Information Commissioner that his office would challenge the ruling.
On October 14 last year, a senior member of staff from the Information Commissioner informed The Sunday National of the development by email.
She wrote: “The Office of the Secretary of State for Scotland (OSSS) is appealing the Decision Notice. As you will see at paragraph 92 either party to the decision has the right to appeal against that decision to the First-tier Tribunal (Information Rights). The OSSS has been granted an extension to provide its grounds for appeal to the Tribunal by the end of October 2020. Following this, the Commissioner’s lawyers will be involved with the action.”
READ MORE: What will it take for UK media to report on Tory Government law breaking?
Finally, on January 8 this year, The Sunday National was informed the Scotland Office had dropped its appeal against the information watchdog. The National Archives of Scotland made the files available last month.
SNP MP Tommy Sheppard said: “It seems quite extraordinary behaviour by the Scotland Office.
“When someone takes a stance like this, is does make you wonder why? This is important recent history which has a very, very significant bearing on what is going on at the moment.”
Former first minister Henry McLeish, who was Scotland Office minister in 1997 and played a key role in the 1997 referendum, said: “It has taken an extraordinary length of time to get [the papers] and the reply that was given in February 2019 [when Theresa May was prime minister] suggests very fragile relations between the UK and Scottish governments. These relationships have only got worse under the current Prime Minister.”
A UK Government spokeswoman said: “The Office of the Secretary of State for Scotland handles all Freedom of Information requests strictly in accordance with the relevant legislation, and this includes the appeals process.”
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