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...