30 August 2013

How do you solve a problem like Bill Walker? Vol. II

Yesterday, I took a look at various options being mooted, either to exclude Bill Walker from the Scottish Parliament, or to deprive him of the lucre owed to him as the MSP for Dunfermline. 

I argued that Holyrood can't institute a recall law, and can't alter the terms of which MSPs are disqualified from office to boot Walker out. If we want to see legislative changes on either of these matters, Westminster needs prodding. And what's more, it isn't terrifically easy for Westminster to transfer powers to the Scottish Parliament to introduce such laws instead, either on disqualification or recall. Primary legislation in London, a Scotland Act 2013, would be necessary.  

The Code of Conduct route doesn't look promising either.  MSPs can suspend the rights and privileges of members under Standing Orders, but Walker's offences don't concern his functions as a member of parliament, and occurred a number of years before he was first elected. MSPs can't retrospectively change the disciplinary rules without embroiling themselves in legal difficulties. All hopes of using this to relieve Walker of the benefits of his office, if not the office itself, look forlorn.

But what if there's another way, a Smart solution? On twitter yesterday, Labour lawyer Ian Smart drew my attention to section 81 of the Scotland Act 1998, proffering it as a practical basis for Holyrood to take action against Walker. The dunce I am, I didn't spot its potential significance until this morning.  

Under the Scotland Act, Holyrood has the statutory authority for making provision on MSPs' salaries, allowances and pensions, whether by an Act of parliament or by resolution.  In March 2002, a free vote adopted a motion, still binding, which determined that decisions on any salary increases should be made by the Scottish Parliament's Corporate Body.  As I discussed here last month, the Corporate Body will shortly need to consider whether to follow Westminster, and award MSPs a thumping great salary increase. Significantly, in making provision for the payment of salaries, the Corporate Body has adopted a range of regulations governing how the cash will be handed over.

Ian's argument, in a nutshell, is that Holyrood could and should pass legislation under the authority of section 81, "making provision" that salaries shall not be paid to members of the parliament who are under the state's lock and key.  They could also do so by resolution.

Unlike the Code of Conduct route, adopting this measure wouldn't single out Walker for different treatment, or retrospectively change the rules to suspend his rights and privileges.  Instead, such legislation could be framed prospectively, and universally, applying to all of the parliament's 129 members: salary shall not be paid to any member during such period as that member is detained in prison in pursuance of a criminal sentence.  

Why not? This wouldn't be a disciplinary withdrawal of a member's rights and privileges. No member would enjoy the right to a salary when behind bars. As a number of folk have observed this week, such a policy is reasonable. Constituents can only be ill-served by a representative in chokey, particularly when that may cover a spell of several months. Few folk, employed elsewhere, would expect their boss to furnish them with paid leave to spend six months in Barlinnie.

There are a couple of potential problems with this idea. Firstly: it would only apply to Walker if he is sentenced to serve a prison term, and it is important to realise, he may not be. Secondly, it would only apply during such period, if any, that he spends inside a cell. If he is sentenced, say, to six months in prison, or three, automatic early release means that the deprivation of salary is likely to be tokenistic at best. This proposal would leave Walker free, having served time, freely to begin sooking away at the public purse again.  On the other hand, given all the difficulties besetting more direct action against him, you can understand MSPs looking at least for some sort of token of disapproval.

Nor would it answer for the £29,048 "golden goodbye" payments which MSPs receive when they demit office, but then again, perhaps these payments need overhauled, Walker or no. The Scottish Parliament has the power to do that too before 2016. 

Is it legally watertight? I wonder. It's conceivable that Walker might challenge the idea in the Court of Session, arguing that it is beyond the parliament's powers to deprive a member of his salary. You can imagine the argument: Section 81 of the Scotland Act directs that parliament "shall" pay its members salaries. The proper route for depriving a misbehaving MSP of their salaries, you might argue, is withdrawing of their rights and privileges, not artificial amendments to the parliamentary payment scheme, aiming to achieve the self-same disciplinary ends by indirect means.  

On the other hand, if I was an advocate, I'd much rather defend the vires of this proposal than take up the parliament's case in a judicial review involving a blatant violation of the rules of natural justice, by trying to apply the Code of Conduct to Walker's case. 

That Ian Smart may be onto something...


  1. I'm obliged for the credit above and wholly endorse the Worrier's view of the law.

    The problem remains whether this could be done by 20th September when Walker is sentenced.

    I think the jail is inevitable although possibly not for the full twelve months. The only unknown element is whether the accused health is a factor. He is 71.

    If however he gets the twelve months, the certainty is that he'd only be inside for six months at most and possibly, subject to risk assessment, for as little as three with another three on a tag.

    On any view therefor the normal Bill procedures of the Scottish Parliament would not be concluded before Walker was at liberty. For the legislation to be in place before he started serving his time the Parliament would need to invoke its emergency legislation procedures.

    These are contained in Rule 9.21 of the Parliament's Standing Orders http://www.scottish.parliament.uk/parliamentarybusiness/26514.aspx

    Crucially, emergency procedure can only be invoked by the Government as it requires to start with a motion which can ONLY be moved by "Any member of the Scottish Government or a junior Scottish Minister". This can't be got round, so the only people who can make this happen are the Scottish Government.

    There are however no other criteria governing the use of emergency procedure. A Bill is an emergency Bill if the Government proposes such a motion and the Parliament votes for it. It seems to me unlikely that this could be judicially reviewed by an argument that the subject matter wasn't actually an emergency or could have been forseen earlier.

    The Bill itself however, once agreed to be an emergency Bill, could pass all its stages in one day. Plenty of time before 20th September, assuming there's a political will.

    1. Important practical considerations, Ian. Thanks for adding them.

      Also, I notice, with delightful partisan opportunities for your lot, if SNP Ministers drag their feet...

  2. To paraphrase an old wag, I am beginning to resent the odious Walker as well as dislike him for forcing us to talk about him.

    Well done Ian - can there really be a route now for driving this rascal out?

    1. Not for obliging him to leave, unfortunately, but at least something to ensure he doesn't get to carry off all of his swag.

  3. Isn't this a dangerous route to take?
    In no way am I defending Walker, but would this ruling apply to any MSP that was jailed, no matter the crime?
    I can think of instances when an MSP might deliberately break a law for political reasons.
    My preference is for a change in legislation, enabling an immediate by-election if an MSP is jailed. It should be up to the voters if that MSP continues, not a possibly partisan 'group'.

    1. Juteman,

      As you say, one potential downside of this proposal is that it would catch, and deprive of salary, any MSP sentenced to a prison term, however short. On the other hand, few instances of - for example - breach of the peace outside Faslane - ever result in a single day in prison being served. It is also worth bearing in mind that the SNP established a legal presumption against prison terms of three months or less being dished out by courts, and sheriffs must consider every other possible disposal, before resolving on a spell in a cell - but I don't know what sort of "political reasons" you have in mind.

      On your second point: absolutely. That resembles, more or less, the Westminister recall proposals for MPs which, as I noted in my first post on this, don't extent to Scotland, and which Holyrood can't introduce off its own back.

  4. I admit it would be rare for a politician to go to jail these days as the result of a principled stand. :-)
    I'm thinking along the lines of Sheridan with the Poll Tax. It isn't beyond the realms of credibility for a politician to end up in jail over something like the Bedroom Tax, or another as yet dreamed up policy from Westminster if the No camp win the referendum.
    Should they lose their salary for defending their constituents?

    1. Juteman,

      I suspect few of our MSPs live in social housing either (minority of Scots do these days), but I do take your point. In those circumstances, MSPs could change the rules again, if necessary. On the other hand, without Westminster taking action and an interest, this is the greatest sanction likely to be imposed on the Dunfermline MSP. Worth it, I should say, to stir a small wasp into his porridge...