29 August 2013

How do you solve a problem like Bill Walker?

Since his conviction in the Sheriff Court in Edinburgh last week, several things have become clear about the Bill Walker case.  

After a wee wobble about the applicable law in some quarters, the position is now generally understood: parliamentarians are only automatically relieved of their seats if sentenced to a jail term of more than a year, whether they sit in Holyrood or Westminster.  When she comes to sentence Walker next month, Sheriff Mackie may impose anything up to a twelve month prison term.  As a consequence, there's no mechanism in law at the moment to relieve the MSP of his office.  He must demit it, voluntarily.  

As the Courier carries exclusively this morning, Walker has no intention of doing so, releasing this self-serving statement about his "ordeal". So what may be done? Willie Rennie has lodged a motion, encouraging his resignation, which has now attracted a parliamentary majority.  If Walker digs in his heels, however, it means diddly-squat.  Others, seeking more effective mechanisms of compulsion, have turned their attentions to Holyrood's own disciplinary procedures, and its Code of Conduct.  

While the parliament has the power to suspend the rights and privileges of a member, my reading of the Code is that it pertains only to the MSP's behaviour in the discharge of their public office.  The last offence of which Walker has been convicted was committed over a decade before he was elected to Holyrood. Tempting as it might be, parliament cannot proceed on an arbitrary basis, against an individual, however odious, in defiance of its established rules and protocols.

The Court of Session demands that Scottish golf clubs follow their established rules and take decisions according to the principles of natural justice.  If private members clubs receive judicial canings for deviating from their protocols, it is has hard to see how Holyrood, retrospectively rewriting the parliamentary rule book in order to punish Walker, could get away with it. No, this line of proceeding doesn't look promising either.

So what's left? Legislation: change the law. Introduce a power or recall, perhaps, amend the 1981 Act to disqualify those in jail a year or less. This was a string harped on by several folk on BBC Radio Scotland's Call Kaye programme this morning, but understandably, there's significant confusion about which bunch of politicians to prod.  The UK Government, or the Scottish Government? Holyrood or Westminster? 

Much of this befuddlement is down to the weird way in which the Scotland Act deals with the rules on disqualifying MSPs. Section 15 provides that the criteria for disqualification will generally be the same applying to those who fancy becoming, or who sit as MPs in Westminster.  It is via this route that the 1981 Representation of the People Act applies to Holyrood.  And it is this which hamstrings Holyrood's liberty to intervene.  

The UK parliament is a reserved matter.  MSPs, understandably, can't dictate the terms of which MPs will be disqualified from office in London, even where they sit for Scottish constituencies. To complete the circle, because the terms of their own disqualification from Parliament are the same as MPs under the Scotland Act, the Scottish Parliament is also powerless to change the rules governing whether MSPs are forced from office. The upshot? There's no use badgering the Scottish Government to introduce a Recall Bill Bill: it's almost certainly beyond their powers. 

Although I can understand why the Herald was flying a kite at the end of last week, legally, the bally thing won't fly. What's more, because of the way the Scotland Act is written, there's no possibility of Westminster using the cheap and speedy mechanism of section 30 orders to give Holyrood power over Walker's fate. At most, Alex Salmond can badger the UK Government to introduce a Recall Bill Bill in Westminster, or legislation to amend the period in the clink required for MPs to face automatic disqualification.

So what might MPs do? The first, most straightforward, option would be to amend the 1981 Act which disqualifies those serving jail terms for more than a year from office, replacing that with a shorter term.  If this was to be effective against Walker, it would have to be passed during such period of detention was Sheriff Mackie may sentence him to in September. If he is sentenced to a period of detention. It is worth remembering too where the 1981 Act came from. Although framed in general terms, Westminster passed the legislation after Bobby Sands was elected to parliament in the Fermanagh and South Tyrone by-election of 1981, from prison.  

In order to deprive Walker of his Holyrood seat, amendments to the 1981 Act need only come into force during such period as the MSP may be obliged to spend in prison. The efficacy of this approach would depend precisely on Sheriff Mackie's sentence, and whether MPs would be willing to see themselves and their colleagues disqualified, if sentence to a similar term inside.  But Walker need only be disqualified once in order to precipitate a by-election in Dunfermline. All that would be required would be to pass the relevant legislation while he was behind bars.

The other, much thornier approach Westminster might take would be rapidly to revisit the much-deferred legislation on introducing a right to recall MPs, but here we face a Scottish problem. Probably an intractable one, in the short term. The UK Government's 2011 Draft Bill proposed to introduce a right of recall where an MP was sentenced to a jail term of twelve months or less, where a Commons committee decided to give one of their colleagues the chop, and where a percentage of the MPs constituency lend their signatures to an official recall petition. 

The problem? These proposals totally ignored the devolved parliaments, including Holyrood.  While MPs who misbehaved themselves could feel the wrath of electorate, MSPs, MLAs and AMs - like Walker - could sit pretty, and keep collecting their parliamentary bounty.

This seems a pretty significant omission, but it remains questionable whether the coalition will deliver even on its recall proposals for Westminster. Properly including Holyrood in these plans would require a good deal of thought which the UK Government hasn't yet bothered to undertake, not least: how to deal with the difference between the franchises electing regional and constituency MPs? How to take account of the different voting systems used?

So, how do you solve a problem like Bill Walker? The vexing answer is, with profoundest difficulty. Holyrood is trapped in the unenviable position which risks making the institution look ridiculous. 

The Scottish Parliament may lack the powers to make the changes which, given a free hand, MSPs would clearly wish to make, but try explaining the arcana of the Scotland Act's structure of reserved powers to your average punter, rightly appalled that the goonish Walker is permitted to lollop about the parliamentary estate wearing a rictus grin, eyes white points of denial, accumulating wage slips and a handsome pay off once he finally goes on his way. "One rule for them, another for us", the bar-room cynic will say, all of his worst suspicions about politicians again confirmed.  This judgment is unfair, but will be difficult to displace with lawyer's constitutional caveats, and political regrets.

As is (too often) the case, the powers to do anything about this lie with Westminster, distracted by other cares and legislative priorities. But for calculating souls in the UK government, Walker may furnish them with an opportunity to hack through what has become something of a parliamentary and political bind.

Many MPs regard the UK government's recall proposals with the enthusiasm with which you'd meet a wasp in your jam jar. Instead of introducing a complex recall power which few politicians seem happy about, why not just amend the 1981 Act, dropping the disqualifying period of imprisonment to, say, six months instead of twelve - and leaving the draft Bill to moulder quietly on a shelf somewhere in Whitehall? 

It could be accompanied with a great hoo-haa about improving standards in British public life, being tough on political ne'er-do-wells, while generally excluding those MPs who are occasionally nicked and prosecuted for minor public order offences at protests and the like from the sharp penalty of automatic disqualification. Tit for tat.  A tolerable consensus position, you might well think, for a divided parliament to reach. 

The more we see of the mulish, delusional and unrepentant Mr Walker, saving some improbable Damascene transformation of character, it's the only practical way the irate folk of Dunfermline can be shot of him.


  1. Dear Peat Worrier,

    You say "The UK parliament is a reserved matter."

    As ever - yes but..

    It could for example be perfectly legal for the Scottish Parliament to hold elections for the House of Lords because such a provision is not included in the list of specific reservations in the Scotland Act. (Schedule 5 B3 only reserves "Elections for membership of the House of Commons, the European Parliament and the Parliament")

    I say that only to point out the absurd way in which the act is structured.

    But how absurd is the House of Lords as part of an undemocratic state legislature where only a minority of members are elected?

    1. Stewart,

      That's based on a misreading of the Act, I fear. The general constitutional reservation of THE Wesminster Parliament would, in my view, be sufficient to render any Bill of the Scottish Parliament purporting to hold elections to the Lords clearly ultra vires, whatever the specific reservations say or don't say.

      I imagine you'll remember the fate of Adam Ingram's Bill to cut civil appeals to the Judiciary Committee of the House of Lords as was, rejected by the Presiding Officer on the basis that it too was ultra vires. (Interestingly, as the UK Supreme Court has moved out of parliament, and enjoys no entrenched protections, I'd argue that it is now in Holyrood's powers to limit civil appeals south, but that's by-the-by.

  2. It has been said that Mr Walker is in it for the money. Could employment law be used to at least stop his salary if he is jailed and unable therefore to do his job?

    Perhaps that would persuade him to step down.

    1. Norrie,

      Ian Smart had an interesting thought on that front (not employment law, but an indirect way of bringing its ideas to bear on Walker's case.) Have blogged here.