Money Grubbing Bastards Vol. II

Blessed sanity! "Holyrood set to cut pay link after planned 11% rise for MPs" reports the Herald this morning, and a damn good thing too. 

As I set out here back in July, when these pay proposals first emerged from the Independent Parliamentary Standards Authority, there's no reason whatever why Holyrood should follow suit, adding flipping great wadges of cash to MSPs' already substantial piles.

While I welcome the statement of principle, Robbie Dinwoodie's Herald piece contains this curious passage.

"It is understood Holyrood's cross-party housekeeping committee, the Scottish Parliament Corporate Body (SPCB), is looking at how to break the link laid down in the Scotland Act 1998. It set the salary of an MSP, currently £58,097, at 87.5% of that of an MP.  It is not clear if Holyrood would have to change the act to break this link or if it could be achieved by a legislative consent motion at Westminster." 

"A Scottish Parliament spokeswoman said: "It would be wrong to assume any pay rise will automatically apply at Holyrood. The SPCB is aware of the IPSA consultation and has considered the most appropriate arrangements for determining MSPs' pay. The SPCB will be announcing its proposals shortly."

Reading this, you'd get the impression that cutting the link between MSPs' and MPs' salaries is liable to be technically tricky, perhaps requiring Westminster legislation to effect. But this is nonsense, and Dinwoodie - or whoever he is taking his cues from - has seriously garbled his legals here. A quick look at the parliamentary record, or the 1998 Act itself, or recent events around the Bill Walker case, makes it absolutely clear that (a) it is easy for Holyrood to diverge from Westminster's salary schemes (b) that no fancy legal measures are required and (c) that almost all of Dinwoodie's legal analysis is not just wrong, but obviously wrong.

Let's clear away the fog. Firstly, Holyrood passes legislative consent motions when Westminster legislates in devolved areas. It can never be the other way around, since Holyrood can't legislate about reserved matters. Westminster recognises no such thing as a legislative consent motion.

Secondly, Holyrood can't change the Scotland Act on its own motion.  If further devolution is required to enforce a more moderate pay scale for legislators, Westminster would have to adopt subordinate legislation through an Orders in Council under section 30 of the Scotland Act, as we observed in the referendum debate - not a legislative consent motion as the Herald reports. But if changing MSPs' rates of pay relied on amending Holyrood's founding statute, Schedule 4 makes it is crystal clear that this would be outwith Holyrood's current powers. 

But is it? I think not. If you undertake a cursory examination of the Scotland Act 1998, you'll find no reference to any 87.5% rule governing MSPs' pay whatever. None of this is buried deep in the legal prose. It's all nicely set out under the heading "Remuneration of Members of Parliament and the Executive". 

The basic points: it is for the Scottish Parliament to determine the salaries of its members. Such provision may be made (a) by an Act of parliament or (b) by a motion conferring functions on its Corporate Body.  If we delve back into Holyrood's early history, we'd discover that MSPs took the latter, more flexible course and that it was the Corporate Body, not Westminster, who adopted the policy of pegging MSPs' wages to 87.5% of that paid to their brethren serving in the London parliament.

No queer legal measures are indicated or necessary to detach that peg. The Corporate Body may do so on its own authority, though I imagine they might choose to lay any changes before MSPs in a motion to be validated.  

We had a recent - very visible - example of this authority at work in the Bill Walker case. On this legal basis, Tricia Marwick was able speedily to act to change the salary scheme to cut the reluctant parliamentarian's wages by 90% during any such time as he would spend in the clink. That wouldn't have been possible, if complex constitutional tinkering was necessary.

Contra Dinwoodie, there are no legal impediments or complexities around severing the salary link. We should be able to expect similar decisiveness from Holyrood, in rejecting these disgusting and impolitic proposals.