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...

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.

The Missing Crown Affair

In the newspapers this morning, there is much understandable outrage and calumny that, even if sentenced to the maximum term for his crimes, Bill Walker cannot be deprived of his seat in Holyrood, despite the MSP's comprehensive condemnation in Edinburgh Sheriff Court yesterday.

The Scotsman calls for his resignation. The Herald argue that "that this convicted violent offender has not resigned his seat and cannot be forced to do so under existing parliamentary rules is an affront to women and a disgrace to Holyrood".

That Walker cannot be forced from office unless sentenced to more than a year in prison has been treated primarily as an unhappy quirk of electoral law by the press. Today, the Herald floats the (to my mind, legally implausible) idea that Holyrood may have the power to introduce its own recall law. I doubt it can. In the alternative, they suggest that Westminster should be encouraged to enact reforms, including perhaps the abortive, long-delayed proposals to introduce a right to recall parliamentarians. 

Largely escaping scrutiny on today's front pages and leaders dealing with this story are the Crown Office and Procurator Fiscal Service's decisions in this case.  That Walker won't be disqualified from office, and will effectively decide for himself whether he stays on, isn't just down to how the Representation of the People Act 1981 is drafted.

It is also down to a decision, taken by Scottish prosecutors, to try Walker in a summary court, with maximum sentencing powers of twelve months.  As I argued yesterday, for an organisation which makes much of its commitment to dealing robustly with domestic violence, to treat a man in this fashion who has committed over twenty assaults, against four people, across decades, seems bewildering. Few folk I mentioned this to yesterday could credit it.

Curious to know more, I send the Crown Office a wee inquiry this morning.  Why and how was the decision made to prosecute Walker before Sheriff Mackie alone, given the scope of his offending and the Crown Office's repeated public commitments to take domestic violence seriously? Here was what a spokesman had to say:

To unpack that a bit, the statement confirms that the local Procurator Fiscal initially intended to see Walker tried by a jury, on indictment. I'm told that the charges numbered around thirty at this stage rather than the twenty-four which proceeded before the sheriff in Edinburgh. If the Procurator Fiscal had proceeded with this plan, today, Walker might well have been facing the serious possibility of being relieved of parliamentary office, and a sentence of anything up to five years in jail. So what happened, and why?

From the statement, consideration of Walker's case clearly climbed up the Crown's hierarchy, ending up on the desk of the prosecution service's senior figures, Crown Counsel, who usually spend their time prosecuting cases in the High Court, and generally concern themselves only with the most serious of criminal cases.  On one level, that the case was considered at this level in the organisation isn't surprising.  Walker is a public figure, a sitting MSP, and his prosecution was destined to be attended by controversy.

But why did Crown Counsel decide Walker's case was fit for summary decision, given the scope of the charged against him? The statement offers only the usual boilerplate. Further questions might be asked. Was sufficient weight given to the public interest in the effective prosecution of domestic abuse? For example, the Crown now, as a matter of policy, follows a presumption that knife-carriers who are caught a second time, carrying an illegal weapon, will be prosecuted on indictment in the sheriff court.

Why was the Walker case regard as any less of a priority? The historical nature of "facts and circumstances of" the offences? Surely not. So why? Did the Crown perhaps miscalculate, assuming that Walker would make a guilty plea, but finding him stubborn, and consequently itself stuck in a procedure which on some views, was inadequate to the gravity of his offending? Did the Lord Advocate Frank Mullholland sign-off on, or was he consulted in the decision-making process to demote this prosecution to summary level?

More answers, if and when I receive any.

UPDATE

Late yesterday afternoon, while I was out carousing, I received this supplementary statement from the Crown Office. Asked about what role, if any, Law officers played in the Walker decision, the spokesman responded:

"I can confirm for your background that the protocol with cases involving members of Parliament is that the Law Officers have no role in the decision-making process, which is dealt with by Crown Counsel."

Bill Walker's Prosecution: Zero Tolerance?

Just how many counts of domestic abuse does a man have to be charged with to face a jury in this country? 

Minutes ago, the newswires broke the news that Sheriff Katherine Mackie has convicted Bill Walker, who represents Dunfermline in the Scottish Parliament, of over twenty counts of assault and another of breach of the peace, committed against a string of his former wives and partners, and in one case, a step-daughter. He is due to be sentenced later in September.

As I detailed back when the trial closed, however, even if Sheriff Mackie imposes the severest penalty she has within her powers on Walker for these offences - a twelve month prison term - he won't lose his seat.

That's down to a quirk of electoral law, but it is also a foreseeable outcome of the decision to prosecute him in the sheriff court, without a jury. If convicted by a jury of his peers, Walker could have faced anything up five years in prison, including a sentence which would have deprived him of his seat in parliament.  Instead, whether or not he resigns office is now governed entirely by the sheen of his brass neck, and the pressure brought to bear upon him.

But significant questions must be asked of prosecutors' decisions here too. Unlike many cases in England and Wales, it is generally for the Procurator Fiscal to select the forum for prosecutions in Scotland. So why the devil did the Crown decide to prosecute Walker only summarily, given the scale of the MSP's offending and the numbers of people he has offended against? If twenty four corroborated and credible charges of assault and breach of the peace isn't sufficient, I'm blowed if I know what is.

It will be for Sheriff Mackie to discern what sentence she determines is proper, on the basis of the evidence before her. I find it difficult to understand, however, why the Procurator Fiscal decided this as a case which did not warrant being placed before a jury. The Solicitor-General, Lesley Thomson said recently that:

"A woman may have been assaulted approximately 30 times before she contacts the police – we recognise that there are huge barriers to women seeking assistance in such cases. We know that the pattern of violence used in this insidious type of abuse is controlled and controlling and the abuser will often wait until he is alone with his victim, or perhaps when the only witnesses are her young children."

What sort of message does a summary prosecution send out here, in this very visible case concerning a very public figure's sustained physical and emotional abuse, spanning decades? Is that really zero tolerance?

Juxtaposition of the Day

Kenny MacAskill, Cabinet Secretary for Justice, defending the SNP policy of forming single police force in Holyrood in February 2013: 

"This is a police service for all Scotland and it will be focused on all parts of Scotland and not one part, whether that is west central Scotland or anywhere else. For that reason, the new police service has at its heart local policing and serving all communities. Local commanders have been announced for each area, who will work with communities, and local policing plans are being prepared for every one of Scotland’s 353 council wards, whether they are in the west or in rural, urban, island or mainland Scotland."

Police Scotland, the single national police authority formed, today, defending the massive ramping up of stops and searches by police officers on the Scottish citizenry by extending Strathclyde Police's old policy to the rest of Scotland:

"... the creation of a single police service had allowed a standardisation of practice throughout the country."

The best laid plans...

In praise of ... short constitutions

Thomas Jefferson once observed "that the earth belongs in usufruct to the living".  Usufruct is an old concept from Roman law, often known as life-rent in Scots law. The usufructary may make use of the property she occupies, enjoy its fruits, till its fields, but she may not dispose of it forever.  Once her life is spent, her rights over the territory are extinguished.  

In his 1789 letter to James Madison, Jefferson was concerned with the relationships between one generation, and its successors, writing:

"The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; and that no such obligation can be so transmitted I think very capable of proof.--I set out on this ground, which I suppose to be self evident, "that the earth belongs in usufruct to the living": that the dead have neither powers nor rights over it."

As the future President of the United States recognised, this is a question of singular importance, when framing and thinking about constitutions. It is a question which will face Scotland, if it emerges as a renewed sovereign state after 2014.  What political struggles do we crystallise, try to settle in its page or pages? What issues do we let dead men and women decide for the living? What liberty do we leave to future generations, to determine the shape of our polity, or alternatively, to amend the terms of the constitution, if it grows uncongenial or inconvenient?

Already in the debate on Scottish independence, we've heard grand claims made for constitutions, and an accumulating laundry list of concerns and cares which folk will, in time, vie to have added to an independent Scotland's fundamental law and list of protected rights, liberties and entitlements. 

We've heard talk of an "aspirational constitution" for Scotland, an inspirational crucible for "our" values. Amy Westwell has argued the case for a vigorous, radical constitutionalism for a new Scotland:

"There must be a real political rather than institutional movement, which talks about democracy, active citizenship, and public law in terms of the constitution, so that when the constitution comes to be formed it is seen as a political statement, and the establishment of levels of democracy as the embodiment of ideals, rather than bureaucratic institutional forms."

Substantiating of version of this, the First Minister has mentioned a ban on the presence of nuclear weapons in Scots territory, and even a constitutional provision requiring free education and youth employment for every nipper. As the issue is discussed, my guess is that we can expect more and more suggestions to accumulate across the gamut of policy.  

The Brazilian constitution furnishes a potential model of this sort of expansive, aspirational fundamental law.  It regulates, amongst other things, extensive labour rights including rates of annual holiday and minimum wage "capable of satisfying their basic living needs and those of their families with housing, food, education, health, leisure, clothing, hygiene, transportation and social security, with periodical adjustments to maintain its purchasing power, it being forbidden to use it as an index for any purpose".  

Once you get into this sort of thing, where do you stop? What political topics ought to be immune from the ordinary political process, excluded from the usufructary package, and written into the fundamental law? After all, what about women's rights? Why not put rights of access to abortion in the constitution, and to equal pay, maternity (and paternity leave) into the document? What about disabled people? Shouldn't their entitlements to benefits enjoy entrenched protection, rather than being subject to the ordinary argument and sway of month by month, year by year politics? The NHS is, for many folk, emblematic of a collective commitment, however fraying it might be, to social democratic values. Why not ban the outsourcing or services to the private sector in the basic law of a new Scotland?

In other countries, constitutional protections reflect political experiences, and political struggles, with the victors keen to entrench hard-won gains. This is an understandable impulse, but I'm not convinced that it is one an independent Scotland ought uncritically to follow, whatever the clamour from this interest group, or that. I'm sympathetic to all of the policies I summarised above. I'm just not convinced we ought to find them in the written constitution of an independent Scotland.

To give you one example, a lesson in caution about what you include in your constitution, a story in the Irish Times caught my eye this week. The Republic's Supreme Court is overloaded, and plans are afoot to institute a new Court of Appeal, liberating the apex tribunal to focus its attention on tricky constitutional matters.  Under Article 46 of the Irish constitution, the necessary amendments to the constitution will need to be approved by a national referendum. Although access to courts is an important issue, it seems an extravagant requirement to consult the whole body of the Irish people about introducing necessary reforms to how justice is realised.   

Of course, other states organise things differently, dispensing with any referendum requirement, requiring instead only a qualified majority in the legislator to alter the constitution.  But both the issue of what to include, and how we might amend any basic law we pass, returns us to Jefferson's anxiety that the living, and not the dead, should decide how their polity is governed.  

Of course, things are a wee bit more complicated than that. Constitutions can be lyrical statements of values, but legally unenforceable in court. I'm not enough of a dry legalist to argue that mere words of this sort are unimportant, and that justiciability should be treated as the gold standard of value. In thinking about any constitution, however, we begin to make serious choices early on.  

Lean constitutionality of the sort I favour is, I suspect, unlikely to find much favour with many politically active Scots after independence. A constitution which established institutions, lawful forms isn't one to stir the blood.  Its jurisprudential aspirations won't stiffen the sinews, save perhaps for the willowy limbs of the stoory odd public lawyer.  It'd look suspiciously like the rejected, Westminster-style legislative supremacy, even if a modest list of protected civil and political rights were appended. A crucible for national values, save for those of democracy, liberty and the rule of law, it ain't.

There is nothing democratic or radical about this generation trying to settle its will on all who come after it.  The entail (or tailzie, for your Scots lawyer) is an outgrowth of feudalism, not a lively concept fit for an active democracy of engaged citizens. 

Politics too belongs in usufruct to the living: not to self-righteous, dead social democrats, nor old wigs in the dim litigious light of a constitutional court.

Democratic deficit(s)

On episode thirty-two of the For A' That podcast this weekend, Michael and I were joined by Juliet Swann. An undecided voter on the question of Scottish independence, environmentalist-feminist Juliet works for the Scottish wing of the Electoral Reform Society. 

She told us about the Society's Democracy Max project, reporting soon, which aims to foster broader participation in reimagining Scottish democracy, whether or not we vote Yes in 2014.  The enterprise involved a People's Gathering, a sort of shadow citizen's assembly, where 129 ordinary folk came together to discuss ideas for a better nation.  Juliet spoke about what she learned, and their ideas.  

Should Scotland have a second legislative chamber - a citizen's chamber - with rotating membership amongst the populace? Would such a wheeze work? And what might "working" mean in this context? Is there anything to be gained by abolishing political parties and enforcing independence of political allegiance, as some people at the Gathering argued? I have my doubts. 

Also surfacing in the conversation, a defence of beards, the two minds of wee Willie Rennie, and William McIlvanney and the missing ambivalence in the Scottish press.  

Listen here, download the show via Spreaker or your iTunes. You can also sign-up for our RSS feed, to ensure no episode will ever run astray.

Devosomething: a dormouse aria...

Things we know: if asked, most Scots currently do not support independence, but a large percentage of folk are undecided. If polled, most Scots express positive views about Holyrood taking decisions - in a broad thematic sense, mind you - on welfare and taxation, with less enthusiasm respecting defence and foreign affairs. We also know that the 2014 referendum offers a binary choice, and that Yes supporters are generally convinced, with good reason, that substantial further devolution on the Scotland Act 2012 is unlikely to materialise.  

We also know, as some more candid Labourites recognise, that for many in the Westminster political system, devolution is mainly a sot to Scottish nationalism.  As a consequence, a defeat for independence-supporters in the referendum will eliminate, perhaps for a generation, the only raison d'etre for many supporters of the Union for the devolution of any significant powers from Westminster.  While you can find more principled cases for more devolution made in both the Conservative and the Labour Parties, neither doctrine can reasonably be said to be in the ascendant in either the red or the blue tribe. The elimination of the outside pressure of Scottish nationalism seems unlikely to stimulate more serious consideration of these issues.  

Only the Liberal Democrats have any substantial interest in thinking about the future of the United Kingdom in federal terms, and but for their bastions of yellow-Toryism in the south of England, the party is likely to be pummelled into a canary smear come the next general election.  However interesting these notions may be in the abstract, the views of the Liberal Democrats resound in the political sphere like a dormouse countertenor trying his paw at a Handel aria in the Royal Albert Hall.  However sweetly he sings, the sound is inconsequential. 

Meanwhile, both the Tories and the Labour Party continue to whistle tunelessly on further devolution, paralysed by indecision, and generally informed by no principled commitment to the idea of local governance, nor much of a conception about how political power might usefully be distributed across the democratic institutions of the United Kingdom. They hope, understandably from a venal political perspective, that Scots mistake this loose assembly of promising notes for a sustained melody, the three pro-Union parties singing in tune on devosomething, from a more-or-less similar hymn sheet. 

For me, the most interesting questions on the recent Panelbase poll, commissioned by the readers of Wings Over Scotland, mapped the gap between people's constitutional ambitions, and constitutional expectations.  The first questioned asked, "Which, if any, of the following powers do you think should be devolved to Scotland in the event of a No vote?"  

60% of all respondents suggested welfare should be transferred to Holyrood, 52% in the case of taxation, 53% in respect of oil revenues, and 35% in terms of defence.  Only 6% of those polled thought the powers of the Scottish Parliament should be pared back. For students of Scottish constitutional gender gaps, while only 4% separated men and women in their support for devolution of welfare (62% and 58% respectively), enthusiasm for investing the Scottish Parliament with a mightier sway of taxes generated the sort of differential we're used to seeing on the constitutional question itself. While 61% and 59% of men favour devolving control over oil revenues and taxation respectively, the equivalent figure for female respondents to the poll was 46%.

This question was followed by a second, asking which of these powers folk thought were likely to be devolved if we vote No in September next year.  The gap between aspirations and expectations is startling. Just 21% of folk thought it was likely that greater powers over the welfare system would be devolved, followed by 19% who thought it was likely Holyrood's jurisdiction would be curbed by a triumphant No campaign. Just 14% foresee a greater percentage of their taxes being set by MSPs, with 8% imagining that Swinney may get to spend (or save) the black bounty of the North Sea. 

What we do not know, however, is how much the electorate really care about these devosomething noises. To my knowledge, no poll has asked the critical question: if you thought it unlikely that a No vote would result in the devolution of more powers to Holyrood, would that make you more likely to support independence instead? Many Yes supporters seem convinced that the answer to this question will be a resounding aye.  I'm not so sure. At least, not yet.

The SNP has made a concerted effort to frame the constitutional debate as a choice between the status quo and more powers, independence being represented as the only credible mechanism to invest our democratic institutions with those powers.  If this Panelbase poll is anything to go on, the Nationalist framing of the referendum has gained purchase in the public consciousness, with little expectation amongst those questioned by the pollster that further devolution would follow on from a defeat for Yes Scotland in 2014. If Better Together intend to invest their hopes in jam futures, this leeriness can only be bad news. 

And yet, and yet: Yes Scotland are still trailing in the polls. Skepticism about the likelihood of further devolution hasn't - yet - matured into a view that independence is the least-worst constitutional option for the frustrated federalist, struggling to believe that the United Kingdom is capable of radically reforming itself, and devolving more power.  Is this simply a question of time, of folk slowly, slowly working out what the devil to do?

A pessimist might see a different story in these figures. When I was a child, my mother had a response to juvenile demands which killed all hopes that they would be answered. Pining for some toy, she'd survey the plastic, tartly. "That's a nice idea, we'll think about it", she'd say. The effect was fatal.  I soon learned that toy would never materialise in my grimy mitts.  It wasn't a no exactly, nor a yes, but a diffuse maybe, never capable of transforming my covetous childish thoughts into action. 

Part of me wonders if our constitutional expectations have something in common with this diffident, invariably disappointing response. The Scottish Social Attitude Survey has tended to show that Scots have a complex, often muddled picture about the impact different governments have on their lives and the public services. Few folk keep the schedules to the Scotland Act for bedtime reading, and being in a bit of a guddle about the powers Holyrood already has and might acquire is all too understandable. 

It has become almost axiomatic amongst pro-independence folk that Better Together will have to come up with something substantial on devolution, some offer, if it is to win over these waverers. Curiously, this view tends simultaneously to be articulated alongside the assertion that no more devolution would follow, whatever the implications of David Cameron's or Alistair Darling's promising statements.  Always a canny strategy, to damn your opponents if they do, or don't.

Could it be the case, however, that despite the high percentages who'd support measures to beef up Holyrood's powers, these are generally lukewarm and uncertain ambitions, without any of the warmth of feeling necessary to transform enthusiasts for devolution, deprived of any more congenial option of devolution within the United Kingdom, into tepid Yes supporters? Do Scots really care as much, in detail, about devolution as the independence debate often assumes? Perhaps Stuart Campbell will find out for us in his next crowd-funded poll, and test the temperature.

Nationalists don't want to end up singing our own dormouse aria.

"Such a flimsy evidential basis..."

The Lord Chancellor, Chris Grayling, isn't keen on judicial review. He sees it as a costly forum for feckless litigants, whose enthusiasm for resorting to law in their relations with public agencies needs curbing. The evidential basis (or lack thereof) underlying his proposals for England and Wales , and the principled case for introducing them, have been neatly filleted elsewhere in the blogosphere.  

I dare say, however, few of you will have heard much about the Scottish Government's own proposals to curb access to judicial review in Scotland, and limit litigants' opportunities to take our public authorities to court.

Helpfully, Professor Aileen McHarg of the University of Strathclyde recently popped up this splendid and accessible piece, summarising the Scottish Government's proposals, exploring the basis in evidence and the practical implications of Kenny MacAskill's plans to introduce an English-style "leave" or "permission" phase to Scottish cases and to impose new time-limits on lodging judicial review petitions with the Court of Session. Aileen concludes:

"It is disappointing to see such an important change to judicial review in Scotland being undertaken on such a flimsy evidential basis, and particularly surprising to see a government ostensibly committed to preserving the distinctiveness of Scots law so willing to follow the English approach, especially in a case where Scottish difference genuinely seems to be worth preserving. It is probably unlikely that the Scottish Government will be persuaded to change its mind – not least because, as Justice Scotland points out in its consultation response, it will be one of the major beneficiaries of the proposed change. One can only hope, therefore, that the Scottish Parliament will oblige it to do so."

This is important stuff, which will have a real impact on folk trying to review the way they've been dealt with by the state. McHarg's point about the paradoxical Anglicisation of many features of Scots law under this SNP government is also well taken. Regular readers who've lingered long in these parts will recall my vexation at the idea that Scotland ought to be "brought into line with England", as though the English precedent was, in its own terms, sufficient reason to adopt policy approaches preferred by our southron comrades. It is a perplexing vision of devolution.

Read Professor McHarg's whole piece here.

Sandstone, blonde and red, for brick

Glasgow and Oxford contrasted: fewer straw boaters, fewer crushed-strawberry trews, sweat-stained linen suits, and old owlish characters, scudding by at speed on their bicycles, in spectacles seemingly borrowed from a Labour cabinet minister of the 1960s. In Glasgow, more toddling, twinkly old dears, who call you "son" and religiously wear their quilted winter coats in summer, hipsterism rampant - and amateur Pillsbury doughboys, wan and suety, only sine chef's hat. Sandstone, blonde and red, for brick, the atmosphere less sleepily Edwardian, more mischievous, thronging, alive.

In short: I'm back in Glasgow after my four-year sojourn south of the Wall.  

Before I left, however, there was just enough time to record a final edition of the For A' That podcast from leafy north Oxford.  We're up to episode number 31, and joining us this week, was freelance journalist Peter Geogeghan, who writes for various folk, including intermittently in the Scotsman, and blogs over at the London Review of Books.

On this week's show, we discuss the state of the constitutional debate over the green salad days of the Summer. Peter has his worries about how the discussion over independence is developing. I wonder why you find marvellously few proper unionists these days. We also discussed some of the findings from the recent Panelbase poll (full tables here), commissioned by Wings Over Scotland and his readers, on the canny basis of crowdfunding.

Michael and I also revealed a couple of incriminating juvenile deliquencies. Mine involves a copy of the Bible, and I may never live it down. 

To hear the show and ensure you never miss an episode, acquire our RSS feed, lend your lugs via iTunes, or download the file, or listen here.

Podcasting Sine Peat

I was conspicuous by my absence on this week's episode of the For A' That podcast.  Deprived of my dulcet tones (I was putting in a last-minute audition to oust that cad Capaldi be the next Doctor Who), Michael was joined by Women for Independence supporter and former SSP MSP, Carolyn Leckie, and the journalist Jamie Maxwell.

Up for the natter this week, the Labour for Independence stooshie and the Eckly appearance on Russia Today.  Michael, Carolyn and Jamie also dusted off their crystal balls, peering beyond 2014, asking: what sort of democracy might and should Scotland work towards after a Yes vote?

Should, as some folk have suggested, be further referendums to determine the fate of the House of Windsor, and whether Her Madge keeps her phizog on our coins? 

Should Holyrood be supplemented by a second, revising House of Parliament, in echo of the House of Lords, or ought an independent Scotland to be satisfied with a unicameral legislature, like Denmark, Israel - and imminently, perhaps - like Ireland? Discussion also turned to a recent piece by Jamie in the New Statesman, contending that the tone of the BetterTogether campaign is not just destructive to YesScotland, but is damaging as such, whatever the result in the autumn of 2014.

Lastly, Michael has a new wheeze: 60 Seconds for a New Scotland, inviting minute-ish-long contributions from all and sundry, serious or humorous, identifying one thing which you think will, would or could be done better in an independent Scotland.  If you would like to add your voice to the project, follow the links.

You can listen to the podcast here, download it for listening anon, or look it up via iTunes.

Even if convicted, the law won't force Bill Walker from office...

Counsel made their closing speeches today in the trial of Bill Walker MSP, accused of a string of domestic assaults against his former partners and a step-daughter. According to the Scotsman report, the case is adjourned until the 22nd of August, when Sheriff Katherine Mackie will pronounce her verdict.  It remains to be seen what verdict that will be, and I pass no comment on Walker's guilt or innocence of these charges.

I do want to highlight, however, a bit of a misconception which has been quietly percolating in the Scottish press. It is a commonplace observation, that if Walker was convicted of these offences, we can inevitably expect a by-election in his Dunfermline constituency.  Legally, this ain't necessarily so.  

The conditions for legal disqualification from office for MSPs are the same as those for MPs in Westminster.  One of the better-known grounds for relieving a parliamentarian of their office, in addition to appointing them Crown Steward and Bailiff of the Chiltern Hundreds, is where an MP is convinced of one or more offences, and thrown in the slammer for more than one year. Under the 1981 Representation of the People Act, the unfortunate parliamentarian, if they have not already offered up their seat, is deprived of it.  But how might all this apply to Walker's trial, if he was convicted? 

As the press reports indicate, the MSP is being tried summarily, which is to say by Sheriff Mackie alone, without a jury.  This choice of forum is down to the Procurator Fiscal.  So what? The critical point concerns the court's maximum sentencing powers.  While the penalties which the High Court can dish out are limitless, running from an eternity behind bars to an unlimited fine, sheriff courts have rather more limited sentencing powers. A sheriff sitting with a jury, for example, may impose a prison sentence up to five years in duration, and fines of the statutory maximum.  

But what of a single sheriff, like Sheriff Mackie, trying a controversy alone? Here's the rub. The summary Sheriff's maximum penalty is a twelve month spell in prison, and a £5,000 fine.  While sheriffs trying cases on indictment with juries may remit cases to the High Court for sentencing, to impose a stiffer penalty, sheriffs sitting alone cannot. Importantly, the High Court has held (in the case of Nicholson v Lees in 1996):

"Where two or more charges are contained in a single complaint, the court cannot competently impose a total period of imprisonment which exceeds in aggregate the upper limit permitted for that court in the particular case by common law or statute."

Even if Walker is convicted of all or most of the large number of charges on the complaint against him, and receives the maximum penalty Sheriff Mackie is capable of dispensing, the maximum prison spell which could be imposed is twelve months: still short of the period required for statutory disqualification from parliament. 

I dare say an MSP can serve his constituents but poorly from behind bars. Nevertheless, even if he is convicted, the law can't and won't force Walker from office. 

On Labour for Independence...

This morning, we've seen several statements from Labour politicians online, pooh-poohing the Labour for Independence group as an SNP confection, a front, as if it was unthinkable that such a group, however large or small, might emerge from amongst the ranks of Labour supporters, voters and members. 

Part of this concerns the involvement of SNP politicians and Yes campaigners in the group's activities. I've no interest in that here. What does interest me, however, is how keen these Labour politicians are to leap on the notion that Labour for Independence must be inauthentic. This enthusiasm seems significant, and highlights an incongruity between Labour's rhetoric and its constitutional politics which has always struck me as interesting.

It's a familiar sang. I didn't join the Labour party because I'm a Unionist.  Nor am I a British or Scottish nationalist, either.  That's not my politics.  I joined because I'm passionate about equality, about addressing poverty, about ensuring that workers - all workers - enjoy decent wages, good conditions and are not exploited, mistreated, or their interests marginalised.  I see the constitutional question - indeed, any constitutional question - through that lens. 

It's impolite to accuse folk of bearing false consciousness. This sort of thing encapsulates the views of many of my friends, and generally speaking, I take them at their word.  They hate all the right things. Jingoism, deference, crony capitalism. The United Kingdom and its politics frustrates them in many ways I share. On the nationalistic front, at most you could accuse them of being lethargic advocates for European or world government. Practical souls, they're generally prepared to toddle along, quite quiescent, within the limited confines of the British state.  They wear no concealed Union jack underpants.

In the public eye, we hear similar rhetoric from many of the party's elected politicians about not being political nationalists. Sometimes this takes on a suggestive Marxisant shape, albeit that of socialism in one country (the UK) rather than the internationale, with talk of the shared interests and struggles of working people on both sides of the border.  The power of capital, by contrast, rarely gets much of a look in.  

Of these elected Labour figures, it is all too tempting to diagnose a lack of political self-awareness, or of disclosure. As we've seen in the referendum debate, the Labour leadership has, from the very top, increasingly de-emphasised these instrumental Unionist arguments about achieving favourable political outcomes within UK political structures (pace Colin Kidd). Supplanting it, Labour figures have begun to draw more concertedly on the resources of British nationalism, to make their positive case for continuing Union. 

But it's puzzling.  Apparently no unionists and no nationalists, you might expect agnosticism from Labour supporters on the Scottish national question, not uniform, passionate opposition to independence. Deprived of the ultramontane Tory's love of Union for tradition's sake, or the British nationalist's sense of national (or even ethnic) solidarity, believing that shared culture, goods and interests should entail shared institutions of government and politics, this Labour supporter would have to engage in a different calculation. Would independence for Scotland advance or retard socialist strategy, however vaguely conceived? What are the likely consequences of such a constitutional change, for Scotland and the rest of the United Kingdom as we know it today? 

If Johann Lamont and her colleagues are to believed, there can be only one answer to this strategic question. This is unconvincing. Wouldn't we expect at least part of a truly non-nationalist, non-unionist party to support independence? Surely this, above all, is an issue where reasonable folk may reasonably differ in their assessments.  As Better Together never tire of emphasising, it isn't so easy to look into the seeds of time, and say which grain will grow and which will not.  You've got to exercise your reason, and your judgment, and resolve one way or the other.  If for Labour supporters, it's simply a question of democratic socialist strategy, and not primarily a question of identity or national feeling, wouldn't it be a touch strange if everyone in the party agreed that Britain's best in that utilitarian calculation?

Why might this be? One explanation might be that all of the democratic socialists who see independence as the most viable route to a leftier future have already bled away to the left of the SNP, alienated over the years by the drift of leadership and policy.  Generally unremarked upon, one of the interesting challenges faced by the Yes campaign, and its attempts to be distinct but accommodate the SNP, is that the Nationalists and much of their support are arguably already the independence movement: a muddled, ideologically motley clamjamfrey of folk who support the party as the best motor for their constitutional preferences, liable to suffer mutinies and runaways once (if) independence is realised. 

But what gets lost in all of this partisan zeal, and the simple binary between Nationalists and Labour, is the more interesting, muddled, ambivalence many more Scots may feel, who've been both Yorkists and Lancastrians in their days.  One of Gerry Hassan's favourite topics is the ensemble of stories constituting what he calls "Labour Scotland".  That tradition still has a strange glamour.

Despite Labour's dire current polling, despite the savagery with which many nationalists attack the outfit, the smack of nostalgia - and the abiding hope of redemption - is remarkable.  Whatever frustrations and hostilities the really existing Labour Party in Scotland provokes, many independence supporters, and even some SNP members, stoke a cherished, if low-burning, flame of hope, for a Labour Party they could believe in again.