Murphy expects: Ritual disembowelment?

Just a short and grubby blog today. With the news that Jim Murphy intends to enter the Scottish Labour leadership fray comes the intelligence that, according to the Guardian:

"Some senior colleagues believe that a Labour MSP who plans to retire in May 2016 from a safe Labour seat could be persuaded to stand down earlier and allow a byelection to take place on the same day as the general election in 2015."

Other newscasters are also reporting that Murphy himself seems to have raised the idea of a 2015 by-election in a Holyrood constituency in launching his campaign. The expection, presumably, that one of his more lumpen and loyal colleagues will helpfully commit political harakiri, sweeping the lugubrious Jim to Scottish office and allowing him to put questions to Nicola Sturgeon every Thursday going into the 2016 election. 

All I can say is: good luck with that one, Jim. Under Schedule 2 of the Scottish Parliamentary Pensions Act 2009, MSPs demitting office are entitled to substantial resettlement grants if they serve as sitting MSPs at parliament's dissolution but are not returned by the grateful electoral. And here's the nasty snag. If you demit office before your term as MSP is through, you forgo this payment. You "resettle" yourself through resignation, and must fend for yourself financially. Bill Walker won't have got a penny. 

And we're not talking about small beans, here. The rate of an MSP's grant is at least half their salary - and more if they've put in long service, where the formula is their years of service in the parliament divided by twelve and multiplied by 100 (up to a maximum of twelve years in hock). To pluck one example entirely at random, take Ken MacIntosh.

First elected in 1999, MacIntosh will have sat in Holyrood for 17 years by the end of the parliament's 2016 term. If the Eastwood MSP prostrated himself on Murphy's altar, and took one for the team, he'd be forgoing 100% of his annual MSP's salary in a generous payoff - about, what? - £58.000? Even the meanest Labour numpty, despatched to the Scottish Parliament accidentally in 2011, is entitled at least £29,000 - but only if they go into the 2016 Holyrood election still in office. What a wizard scheme. What noble sacrifice. 

So the question is this. Which Labour MSP is daft or loyal enough to let Jim Murphy pick their pocket of several thousand pounds for an early by-election?

Greater love hath no man than this, that he lay down his resettlement grant for his leader, as they say...

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.

It's D(unfermline)-Day

Get your lamb's livers out. Strive to discern the prophetic resonance of a cloud of starlings. Take the tarot. Today, the folk of Dunfermline go to the polls to decide who they would like to represent them in the Scottish Parliament. So who will it be? 

Will Fife councillor, Labour's Cara Hilton, prevail? Might the SNP's Shirley-Anne Somerville just sneak ahead? Will a yellow wave heave the Liberal Democrat candidate back into contention, or will James Black, Jacobite, take dirk and targe to everyone else, triumphing in the Kingdom before sweeping south to take the strategically-important city of Edinburgh (and heaven knows, continuing on to Derby and an excellent showing in the imminent Prestonpans by-election)? Will Zara Kitson's Green shoots show any sap, or will they be ground under heel by the blazered pub landlord figure nominated to represent the seat by UKIP? Oh. And there's a callow Tory youth to take account of as well, who has been railing against the flabby "centre left consensus" offered by everyone else. 

At the outset of the race, Bill Walker having been confined to a prison cell with the worst grace conceivable, I thought the SNP were going to get stuffed. Much of this was down to the Walker Factor, though not entirely. Although he demitted office as an independent, in disgrace, I could sympathise with the unaligned Dunfermline voter who felt that the Nationalists had, in some vague sense, let them down by nominating such a man to represent them in the national parliament. If they felt that way, we had to take it on the chin.

But if the SNP vote was going to collapse, the people wreaking their vengeance, you'd expect to see that reflected in the initial round of canvassing.  I'm told by knowledgeable hands on the ground in Dunfermline that this doesn't appear to have happened.  Ian Smart's recent by-election blog corroborated this diagnosis from the other side of the aisle.

A couple of potential explanations for this apparently limited Walker Effect.  One: the ex-MSP's conduct and manner after his conviction as a serial domestic abuser was so outrageous, and so idiosyncratic, that Walker managed to focus minds on his own character and its defects, rather than on the party which made the mistake of nominating him to represent Dunfermline.

Secondly: it has proved more difficult to hang Walker around Shirley-Anne's neck than it might initially have seemed, despite Cara Hilton's zealous early efforts to do so. Shirley-Anne is palpably a different sort of person from the bluff, pompous and domineering Walker. If the SNP had nominated an ashen suit of a certain age, you can wager ten groat that the outgoing representative for Dunfermline would have remained more of an issue in this campaign.

Beyond the Walker Effect, it is important for us remember that Dunfermline was always going to be a very promising seat for the Labour Party. An unexpected gain in the 2011 Holyrood election, the SNP won it, beating Labour by just 590 votes.  In the 2012 local government election, Labour enjoyed a massive lead in first preferences, running 3,710 votes ahead of SNP candidates in Dunfermline wards. Factor into that the prevailing wisdom that incumbent governments struggle with by-elections, and the constituency always looked like a difficult hold for the Nationalists, and a must-win for Johann Lamont's Labour Party. 

To reframe that in a nakedly cynical way, we'll go into tonight with a pocket full of plausible and temporising explanations. By contrast, if Labour comes out anything but top of the heap in Dunfermline, excuses there are none. The ongoing Grangemouth story will knock the by-election result into a cocked hat, but if one of Johann's isn't sworn in in Holyrood, expect a volley of critical questions about the quality of her leadership and her party's current lack of direction.  

Whatever happens, Dunfermline also attests to the bother which Lamont's unfollowed up "something for nothing" speech continues to give her colleagues. Are Labour in favour of or against retaining universally-accessible free prescriptions, an un-means-tested bus pass for the elderly, the state paying for university tuition and arresting additional rises in the council tax across all bands? Bracket the question of who introduced these policies, and whether the Labour Party have supported them in the past. The record speaks for itself in that respect.  Is this the policy platform which Lamont and her colleagues now wish to stand on?

Even trying to be fair-minded, I'm not entirely sure. It may be that the Scottish Labour leadership hasn't made up its mind yet. That's grand. Periods between elections are periods for reflection, particularly for a party reviewing its fortunes after two consecutive defeats. But for folk like Cara Hilton, obliged to snatch up the party banner unexpectedly, and to set out and defend a policy prospectus, Lamont's under-explained "something for nothing" speech is an absolute nightmare. You can't make credible policy commitments on any of these core issues "when everything is up for review", but until Labour decides what it makes of the council tax freeze, university funding, prescriptions and bus passes, all of these policies hang under a vaguely-threatening cloud.  

We saw identical wriggling from the Labour candidate in Aberdeen Donside. Neither he, nor Hilton, have their marching orders. And caught in the eye of the camera, subject to the tender inquisitions of Brian Taylor and Bernard Ponsonby, both Hilton and Aberdeen's Willie Young took on the consistency of blancmange, vaguely trembling as they attempted to explain their positions on very basic, well-established issues of devolved policy.  I feel for them.  They're the ones obliged to look like numpties on telly, and in order to shore up their awkwardly indeterminate policy positions, to put out leaflets on these issues in a spirit of creative compliance with the truth. 

If, as most folk predicted on twitter this morning, the numbers stack up for Cara Hilton, and Labour win in Dunfermline this evening, it will be in great part despite, rather than because of the tactical position Johann has abandoned her party to, mid-term.

Corroboration: will you or nil you?

Polarisation does silly things to debates.  Black and white, all good or all bad, disagreements organised around extremes rarely do justice to the grey shades, the advantages and disadvantages, which characterise almost every innovation or reform. So it is proving with the discussion around the Scottish Government's intention to abolish the corroboration rule in Scottish criminal cases.  

Unlike most Scots lawyers, who seem inveterately opposed to the idea, I find myself swithering, undecided, about it.  This indecision isn't particularly down to a sense of loyalty to the origins of these reforms. A partisan Nat I may be, but I've grumbled many a grumble about the SNP's approach to a number of big-ticket criminal justice issues over the years.  In this case, my wavers are down to the to-and-fro of the arguments which have been offered on either side of the debate.  The justifications offered by the doctrine's detractors and defenders all seem to me to overstate their case.

It's about access to justice, stupid.  In Holyrood this week, Kenny MacAskill described the proposal as  "a long overdue step in ensuring that victims have access to justice". There's certainly some force in this argument. Today, as a result of the corroboration rule, a number of cases can never be put before our courts.  Achieving corroboration of the essential elements of an offence can be particularly difficult, even impossible, where events take place in private. Perhaps most difficult of all are sexual assaults.  

On one extreme version of the case for reform, you'd think that the abolition of corroboration will, of itself, herald a new age in criminal justice. Victims, previously abandoned outside of our courts, will all be welcomed in, their testimony examined, considered, and a verdict reached.  Realistically, though, this is a fantasy, or a very distant aspiration. 

Our prosecution system is rammed. Our courts are rammed. Our prisons are rammed.  If some proponents of corroboration were to be believed, you'd think Scotland was full of idle procurators fiscal, flush with underspent budgets, lunching sheriffs taking the afternoon off for want of criminal business, and empty jail cells. None of these visions remotely approach the reality, and simply doing away with corroboration won't make them true.  

Eliminating corroboration may eliminate one set of hurdles facing complainers' access to courts, but realistically, there will still have to be hurdles. Most likely, the untransparent exercise of prosecutorial discretion to decide which cases are put before the courts. This argument doesn't necessarily favour abolition or retention. Better, you might think, to take decisions on bringing cases before the Court on a qualitative rather than a quantitative basis.  Nevertheless, the idea that this measure will "ensure that victims have access to justice" as MacAskill suggests elides the many barriers which exist, and probably have to exist, if our creaking, overloaded criminal justice system isn't to collapse under the overwhelming pressure. 

If parliamentarians and pressure groups, supporting this measure, are to give any substance to their rhetoric about access to justice, they should be asking Kenny about what funding concessions he was won from John Swinney to fund the necessary expansions in the court, prison, prosecution and legal aid budgets, so that accused persons may be properly defended. The idea that these aspirations can be met out of existing budgets deserves a black laugh.  Absent hard cash, it's hot air, amounting to a false prospectus for eliminating corroboration.

No person should ever been convicted on the evidence of just one person.  Superficially, I can see the force of this argument. How can reasonable doubt be dispelled, when the case essentially comes down to the believability of one witness, over another?  The problem is, Scots law already does this in a number of ways. Today, courts recognise the "special" self-corroborating confession, first recognised in the case of serial-killer Peter Manuel, hanged in Barlinnie 1958.

In rape cases, our criminal courts have held that the complainer's distress can corroborate the absence of consent. But this isn't corroboration in the ordinary sense of two independent pieces of evidence capable of pointing to the commission of the offence.  Assuming there's no other evidence in the case, both pieces of evidence regarding consent originate with the complainer, and corroboration in the ordinary sense is essentially dispensed with.

The Moorov doctrine performs a similar task.  First established in 1930, in Moorov the High Court held that a series of offences showing an underlying similarities may be treated as mutually corroborating. The doctrine has been allowed prosecutions to take place against people who commit a series of sexual offences against different children.  I didn't sit through the trial, but Moorov almost certainly played a role in the recent prosecution of Bill Walker for domestic abuse, with one wife's testimony about Walker's behaviour being taken to corroborate the evidence of another where there was no other evidence that the crime took place.  

Moorov employs a totally different idea of corroboration to that which is normally required.  In the absence of any other evidence, proof that John assaulted Jack is taken to corroborate the fact that John assaulted Jeremy. This produces potentially perverse results. On account of Moorov, if John assaults Jack and Jeremy, he may be brought to court, prosecuted and jailed. If, he only attacked Jeremy, the case is unlikely to see the inside of a court on the basis of the lack of corroboration, despite the fact that Jeremy's evidence about what John did to him would be identical in both cases.  

If it is never appropriate for an individual to be convicted on the word of one person, where are the objections to the application of the Moorov doctrine? Or to the idea that an allegation of rape is capable of being corroborated by distress? If we're serious about the absolute necessity of corroboration, we would expect to hear calls for Walker to be freed from jail. On the other hand, if convicting people on the basis of evidence from a single source is sometimes justified, as even many Scots lawyers would accept, then the case against abolishing corroboration isn't what it appears - and claims - to be.

Closely related to this argument is another familiar line from the anti-reform camp: But corroboration protects us from miscarriages of justice.  But does it really? Here, it is important to bear in mind what corroboration actually requires.  Usually, folk talk about "the evidence of two witnesses", conjuring up the image of credible twin wifies, testifying that they saw wee Jimmy making off with the stolen pie down Perth high street. Certainly, this is one way for prosecutors to achieve corroboration, but it is by no means the only way of doing so.  

Importantly, the courts have held that corroborating evidence needn't necessarily be incriminatory, it only needs to be capable of bearing the inference that the man in the dock committed the offence. To corroborate, the evidence needs only be consistent with the witness' tale. It might also be capable of an innocent explanation.  In effect, there are cases being tried in our criminal courts where deciding whether or not to convict or acquit the accused hinges - almost entirely - on the credibility of the complainer, thinly supported by additional evidence which might be equally consistent with the accused's innocence.  

Quite apart from being a powerful shield behind which accused persons can huddle, corroboration can represent a pretty thin defence against state power when you are dragged before the court. This isn't necessarily a reason to keep or to dispense with the doctrine either, but it does chip away at the retentionists' most powerful, and most repeated, argument.

But back to the abolitionists: Fear not. We're introducing new safeguards. Well, up to a point Lord Copper.  MacAskill has proposed to increase the jury majority required to convict from a bare majority of eight of fifteen, to ten of fifteen. Problem solved? Well, not really. Although juries loom large in the public imagination, they loom small in terms of the day to day realities of criminal justice in Scotland.  Juryless Justice of the Peace and Sheriff Courts soak up over 90% of criminal trials. Amended jury rules introduce no additional safeguards in these cases. 

Swithering yet? There are plenty of other arguments which could be made on body sides of this debate. In private, some procurators fiscal will argue that it is easier for complainers to be told that their cases can't be pursued because of a lack of corroboration, as opposed to informing them that prosecutors won't pursue the case because they lack credibility and haven't been believed.  Is there any truth to this? Perhaps.

Abolishing corroboration won't necessarily end the practise that Scottish police officers patrol in pairs. But in our penny-pinching times, does its abolition make it more likely that Police Scotland will revise its practises before long, leaving more officers to tread the beat alone? Almost certainly. Is this a good thing? Perhaps not.

And thus, I swither on, but for criven's sake, let's ditch the zero-sum mentality.

For you, Mr Walker, the war is over...

... and you've been defeated, utterly. This morning, Sheriff Mackie sentenced the former MSP in Edinburgh Sheriff Court. Her sentencing statement is damning.  Jailing Walker for the statutory maximum available to her, a full twelve months, Sheriff Kathrine Mackie criticised Walker's unrepentant, stubborn sense of his own victimisation. The scabrous, Vogon PR he secured from Iain Maciver after his conviction can't have helped.  Mackie observed:

"I have also had regard to all that has been said on your behalf about the consequences in terms of reputation and financially, and to the terms of the reports that have been prepared.  I have noted from those reports that you maintain your denial of any wrongdoing, and that you perceive yourself as the victim of various conspiracies, amongst your former wives, political opponents and the media. 

While it cannot be denied that there has been considerable media attention in this case and issues thought to arise from it, even before the conclusion of the legal process, I share the opinion of the author of the Criminal Justice Social Work Report that your incredulity at being convicted of these offences and your perceived victimisation are further indications of your abdication of responsibility for your behaviour.  I have also noted from the terms of the reports, as I noted during your evidence, what can only be described as contempt for your former wives and your stepdaughter and the derogatory manner in which you refer to them." 

Ruling out enrolling Walker in the Caledonian men's programme as a non-custodial disposal, Sheriff Mackie continued:

"Having noted the extreme denial and minimisation of behaviour displayed to the authors of the reports prepared it is in my opinion unrealistic to believe that a programme designed to change men’s attitudes condoning domestic abuse has any prospect of success.  There is no basis for believing that the intense media scrutiny combined with your public position has had any bearing on your willingness to be accountable for your behaviour or that this might change within the time frame of the Caledonian Programme, whatever time frame might be allowed. "

That the Sheriff felt it necessary to impose the statutory maximum penalty on Walker poses its own questions. Her statement doesn't contain a breath of criticism or comment on the Crown's choice of venue. As I blogged at the time of Walker's conviction, in Scotland, prosecutors generally have a free hand to select where and how people are tried before our courts.  In Walker's case, he originally appeared to answer an indictment in solemn proceedings, and could have anticipated being tried by a jury, if he refused to plead guilty.

Reviewing the case, crown counsel decided to demote the case to summary proceedings in the sheriff court instead, reducing the court's sentencing powers from five years to one, if Walker was convicted. I very much doubt we'll be hearing any more from the Crown Office about the relevant factors considered by Counsel in reaching this decision, but serious questions remain unanswered.  Just how many counts of domestic violence does a man have to be charged with to face a jury in this country? The regrettable answer, it seems, is more then twenty four.

Discussing the case with various folk, a number of people have suggested that Counsel's real rationale for shifting venue was suspicion of juries. Aren't they awfully unreliably, apt to be taken in by a plausible accused, a risk to the whole endeavour, a threat to conviction? Much better to try Walker before a reliable sheriff. Much less risky. I find this unconvincing.

Firstly, this seems a rather dubious basis for prosecution decision-making. Although a soup of factors push decision-making hither and thon, the idea that a senior Crown Office lawyer reduced the severity of the charge just because they were feart that they'd lose the case seems incredible. Yes, the case was historical. Yes, recollections fade. But if the Crown believed their witnesses were credible and reliable enough to persuade Sheriff Mackie of Walker's guilt, I struggle to accept the idea that they thought they weren't up to winning over fifteen ordinary punters.

Secondly, there really isn't an awfully lot of evidence suggesting that juries are significantly less likely to bring home convictions than professional benches. Certainly, you can find the odd Clive Ponting case, where juries disdain to apply the law to the facts in a fashion which legally-trained judges are unlikely to follow, but Walker's prosecution was hardly one of those cases.

I leave the last word to Sheriff Kathrine Mackie.  Your can read her full sentencing statement here.

Are the SNP due a Dunfermline drubbing?

If it were done when 'tis done, then 'twere well it were done quickly. Bill Walker is clearly no devotee of Shakespeare, and in resigning his Dunfermline seat a few days ago, he didn't heed Macbeth's advice about the charms of celerity.  But resign the villain finally has, and under the Scotland Act, we'll have a by-election in his Fife constituency within the next three months.  

So what are the chances? Who's in with a shout? And from the SNP perspective, critically, are we going to get stuffed? Let's take a look at the data.

Riding on the coattails of the national party, in 2011, Bill Walker won the seat with 37.6% of the vote, beating the Labour candidate Alex Rowley by 590 votes. Reflecting the mood in much of the rest of the country, the notional incumbent's support went through the floor, Liberal Democrat Jim Tolson polling just 5,776 votes to the winning 11,010 secured by the SNP.  So much we know, but it is also instructive to look forward and backwards from 2011. The party is still polling rather well nationally against Lamont's Labour. But, but...

In the Council elections of 2012, after the accusations against Walker first surfaced but before his trial and conviction, SNP candidates won 5,814 first preferences votes compared Labour's 9,524 in the four Dunfermline wards which the constituency completely covers. The Liberal Democrats trundled in next, with just 3,341 first preferences.  The constituency also takes in parts of The Lochs ward on Fife Council - but Labour won that too, comfortably, snaring 1,729 first preferences to the Nats' 708.  Obviously, the dynamics of the local elections are different from national elections, and different again from a by-election.  For all that, however, these can only be promising figures for the Labour Party in the area. 

Putting the 2011 result in broader context, between 1999 and before 2011, Dunfermline was bifurcated into two distinct constituencies, East and West.  The new seat takes in the the old West constituency, and part of the East, the result of which is now represented by Helen Eadie, as Cowdenbeath.  Going into the 2011 Holyrood election, the Liberal Democrat, Jim Tolson, sat for the western constituency.  As we all now know, in 2011 the SNP came from a notion third place in the seat, behind the Labour party, to take it. To add another layer of complexity to proceedings, the Liberal actually snatched the seat from Labour in 2007, who had held it since 1999. 

Now, I'm no Fifer, and don't know this territory well, but figures lead me to conclude that - at the best of times, in a favourable national election with a tolerably popular SNP government and a suitably incompetent Labour opposition - defending and retaining Dunfermline might prove a tall order for the Nationalists.  Liberal Democrat fortunes have not, and may never, fully revive in the area. The Labour Party may not have the springy vitality of an excitable Cocker spaniel, but if I was a Scottish strategist in John Smith House, Dunfermline would already be circled on the electoral map, as low-hanging fruit.  Even without the scandal of a Nationalist parliamentarian being revealed as a domestic tyrant and unlawfully handy with his fists.

Arguably, the party's poor showing in the area in 2012 is as nothing to the reception we can hope to receive in this by-election.  At that time, Bill Walker was suspected, but innocent until proven guilty. Today, the luckless and brave SNP candidate will have to contend with press hostility, and most likely, an electorate none-too-enamoured with the party which nominated such a goon for election in their constituency.  You needn't subscribe to the idea that there was any jiggery-pokery in the way the party dealt with the Walker case to see that he will hang around the neck of the Nationalist candidate like the Old Man of the Sea, however vigorously or acidly they denounce him in public.  This is one for Nationalists to take on the chin.  Anything short of a drubbing would be a relief. 

As the erstwhile Labour blogger Stuart MacLellan noted a few years back, Labour has never actually won a seat back from the SNP, having lost it. If they can't heave themselves over the finish line first in this Dunfermline by-election, a disgraced Nationalist incumbent having been forcibly pitchforked from party and office after twenty-four criminal convictions and an outrageous display of contempt for his constituents, Scottish Labour really are jiggered.

Thanks, Bill. 

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

Cheering news this afternoon. Earlier in the week, the media reported that the Scottish Parliament Corporate Body was actively considering the proposal to garnish MSP salaries where they are sentenced to a spell in prison. The other avenues for taking action against the shameless Bill Walker seeming forlorn, the Presiding Officer, Tricia Marwick, instructed officials to investigate whether Holyrood could change the parliament's salary scheme. 

Was it legal and doable? I thought so. Today, it transpires that officials and the Corporate Body agree, recommending that the salaries of any MSP sentenced to a prison term by cut by 90%.  Helpfully, the parliament has released the full text of the official paper that was placed before the Corporate Body. While making it clear that recall, changes to disqualification rules and disciplining Walker under the Code of Conduct are all inadmissible, the paper endorses the idea of amending the salary scheme.  Speaking to their proposals, Marwick sent the following letter to MSPs today. 

Dear Members

Proposed Amendment to Scottish Parliament Salary Scheme 

This morning I convened a meeting of the SPCB to look carefully at the powers available to this Parliament with regard to all MSPs who are unable to fulfil the full range of their parliamentary duties as a result of being imprisoned.

As you will see from the enclosed SPCB paper, which we have released for full clarity, officials have concluded that the Parliament can modify the current Salary Scheme to provide for a reduction in salary payable in these circumstances.

Such a modification could be made by resolution of the Parliament under section 81(1), as read with section 83(5) of the Scotland Act 1998. Following our consideration this morning, the SPCB is strongly persuaded by the proposition that any Member who is unable to carry out their full range of functions as a result of being imprisoned should not receive their full salary.

From reviewing the core functions of a Member as set out in the SPCB paper, we recommend that 90% of salary should be withheld for the duration of imprisonment.

I shall therefore be seeking the Parliamentary Bureau’s agreement to bring forward a resolution before Parliament next week to amend the Salary Scheme.

In recommending this course of action to Parliament, it should be made clear we do not seek to encroach upon the role of the courts. Our approach should in no way be interpreted as a punishment - that is for the courts.

In recommending this reduced salary provision to Parliament, the SPCB is mindful of the legal advice it has received, namely that our decision should be underpinned by the following principles and apply to all Members equally, including members of the Scottish Government and parliamentary officeholders:

The provision made should respect the principle that salary is payable in return for the performance of functions.

The provision must not be motivated by punishment, retribution or censure.

The provision should be proportionate, of general application, and consistent in its treatment of ordinary MSPs and those office holders and members of the Government who receive a salary supplement.

I should re-iterate that these provisions would apply across the board in all circumstances.

Having looked carefully at the powers available to this Parliament, the SPCB is clear that this is the right thing to do and hope Members will support this course of action.

Tricia Marwick 

A motion on these proposals will be voted on in Holyrood next week. Walker is due to be sentenced on the 20th. It is important to emphasise, the MSP still may not be sentenced to a prison term. It is gratifying, however, to see Holyrood, trying to do its bit to put pressure on this man, despite the legal impediments which hedge the parliament round.

Danegeld refunds

On episode thirty-three of the For A' That podcast, the much-mooted Nordic horizons of the Scottish independence debate hoved into a fuller, more human view.  Our guest this week was Thomas Widmann. Thomas runs the Arc of Prosperity blog, and is a Danish-born Yes campaigner who has settled down here in Scotland, survey the constitutional debate. 

After our wee week off, we kicked off For A' That briefly with a few of the engulfing mischiefs of the past fortnight, touching on the Anglophobic vision of Scottish nationalism proffered by Andrew Marr at the Edinburgh Book Festival, and had a word on recent criticisms of YesScotland's activities.  

We also briefly discussed the ongoing Bill Walker saga. The good news is, it seems that Friday's blogpost may have hit the right mark, and Holyrood authorities are now looking into the possibility of depriving Walker of his wages, if he is imprisoned.

That conversation enlarged into a broader discussion of Stephen Noon's core motto about the positivity of the case for independence. Is there not an unavoidable kernel of negativity, necessarily underlining any criticism of the constitutional status quo, and justifying the Scottish nationalist movement's activities? 

We also asked the question, who are undecided voters in the independence referendum? We seem, in the debate, to have a clear character for the undecided voter in mind.  But is this construction really convincing? Lastly, we took a minute or two to discuss the phenomenon of the "unpolitical artist", and the blast of superheated steam musician James MacMillan recently shot National Collective's way. Michael offered up an apposite quotation, which neatly summed up our feelings.

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.  By the by, elsewhere, on his ScotIndyPods, Michael was joined this week by YesScotland's Stephen Noon. You can listen to Stephen's positive message for independence here.

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?

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. 

Bill Walker: (Sunday) Heralding trouble?

Most of you will have read today's Sunday Herald revelations about SNP MSP Bill Walker, who has now been suspended from the party and parliamentary group. In a report headlined "Revealed: MSP's history of violence against three ex-wives", the paper's investigations editor Paul Hutcheon draws from a range of sources, including interview material from Walker's second and third wives, to demonstrate that Walker was a serial domestic abuser during his first three marriages. Hutcheon also quotes extensively from court records concerning Walker's divorces, including the grounds cited by his first wife:

"Open files in the National Archives of Scotland, which can be ordered and inspected by any member of the public, reveal his first wife's reasons for divorce."

Is publishing this information problematic? You well might think not - think it positively desirable for the public to know - but the Sunday Herald might well find itself in a bit of legal pickle for splashing it across their front pages this morning. Take a look at the Judicial Proceedings (Regulation of Reports) Act 1926, still in force. Enacted to curb the salacious reporting of divorce proceedings, this little piece of legislation lay beyond my ken until Ian Smart pulled it out on twitter, but essentially, it regulates the amount of information the press can lawfully report about divorces, under threat of criminal sanctions being imposed on offending editors, printers, publishers and proprietors.

1 Restriction on publication of reports of judicial proceedings.
(1) It shall not be lawful to print or publish, or cause or procure to be printed or published—   (b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for restitution of conjugal rights, any particulars other than the following, that is to say:—
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
(iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.

If a newspaper's coverage of divorce proceedings strays beyond these four points of information, and offers more extensive detail about what transpired during a court case about a divorce or suchlike, its editor or proprietor may find themselves liable to a four month prison sentence and anything up to a £5,000 fine. Moreover, public transcripts of these judicial proceedings - such as those Hutcheon presumably accessed to glean his information about the cited grounds of Walker's divorces - are excepted from criminal liability under the s1(4) of the 1926 Act. It may strike some of you as absurd, but according to the law, such material may sit in public archives or in reports of case-law quite legally, while the same information appearing on the pages of a newspaper or a blog would be a criminal publication. What's more, the 1926 Act contains none of the qualified privileges attaching to journalists who reasonably cover court proceedings, nor would the consent of the parties involved in the divorce waive criminal liability for detailed, impermissible reportage about a divorce case.

While the legislation clearly has contemporaneous reporting of divorce proceedings in mind, the Act has no time limit, no statute of limitation, and so engages the Sunday Herald's coverage today, insofar as the paper has reported on the judicial processes that generated Walker's past divorces. The article itself is a curious and muddled mix of references - details culled from the archive about the divorce proceedings, and arguably autonomous evidence from the two women about specific instances of abuse at Walker's hands, some of which also appear to have been cited in their petitions for divorce.

I've no brief for the prosecution, and do not intend to go through Hutcheon's article with a fine tooth comb.  However, once you're familiar with the Judicial Proceedings Act, one question clearly suggests itself. Dramatic though it would be, factoring in the 1926 Act, might the paper be susceptible to prosecution for publishing today's story? It's a possibility. I'm no expert on this piece of legislation. Indeed, it seems to have been exceedingly rarely used in practice and if any fellow jurisprudes wish to chime in or vigorously dissent from the following analysis, all comments would be gratefully received.

The 1926 Act was intended to prohibit the publication of detailed factual information about divorce proceedings, hence the admonition that any reporting of the substantive issues - to avoid criminal sanction - has to be concise and only with respect to charges or counter-charges about which evidence had been given, or refer to the judge's conclusions.  The Sunday Herald's "First Wife's Story" is gleaned entirely from these court records. While the article's reference to "cruelty" is clearly a concise account of the basis for the divorce, the specific details about the assault alleged arguably shade beyond that. The reporting of "The Second Wife's Story" seems more obviously problematic.  Rather than quoting exclusively from an interviewee spouse, asking about her experiences rather than the divorce proceedings, Hutcheon references Walker's legal documentation from that second divorce action itself, arguably straying well beyond a protected "concise" account of the charges and counter-charges about which evidence was given, referencing implements used to carry out assaults, motivations, imputations about the character of Walker's spouse, her disposition, and his own conduct.

While today's revelations will undoubtedly have stark consequences for Walker's political career, one wonders whether the Crown Office won't also be taking a close look at whether, in pursuit of their quarry, the Sunday Herald haven't tumbled over this old, rusty legal tripwire, laid down in the 1920s.

Bill Walker: political Idiot...

Most of you won't know Bill Walker from Adam. Until recently, that is. The 69 year old was elected as the SNP MSP for Dunfermline in the 2011 Holyrood election, having sat on Fife Council since 2007. Walker signed John Mason's parliamentary motion on the "Equal Marriage Debate" last week, (incidentally, I notice that Patrick Harvie's amendment has now attracted 37 signatures in the meanwhile) but otherwise had not, to my knowledge, spoken to the press in detail about why he felt moved to do so.  In something of a scoop for the local media, the Dunfermline Press published an article on Friday morning entitled, "MSP upset by threats in gay marriage row", which includes some highly inflammatory sentiments from the Fife MSP.  Walker has now also been cornered by journalists from the Scotsman and the Herald, seeming desperate at every turn to introduce himself to the Scottish people as a cantankerous and shallow-pated hephalump with all of the mental and political dexterity of quivering invertebrate.

"I'm very upset about it. I feel I've been intimidated and almost threatened. I have been called a bigot and all sorts of names, saying I live in the dark ages.  The irony is I got married a few weeks ago. Needless to say it was to a woman!  There are things called civil partnerships, which I accept, but I'm really concerned about the use of the term 'gay marriage' because to me it's a contradiction in terms and anything that puts homosexual relationships as any way equal to male-female marriages is just not right."

In another revealing section...

Mr Walker said his membership of the Church of Scotland did not affect his decision about the motion.

"That has nothing to do with it because I regard it as a fundamental moral issue concerned with the definition of what marriage is. I don't think people, whether they are registrars or ministers, should be forced into agreeing to do something they don't morally agree with."

So Walker's position is that marriage is, by definition, to be consecrated between men and women only. This whole approach has its curiosities, which are easily missed by over-familiarity. One of the queer features of the marriage debate, whether here or over the water, is how vehemently definitions are deployed by those hostile to gay marriage. In our times, generally speaking, when we are talking about moral positions, this is classically denoted by the use of an extensive evaluative vocabulary - ought, should, I believe. We take for granted a gulf between is and should. Interestingly, often debates about marriage are couched not in these sorts of evaluative terms at all - but deploy the vocabulary of facts - marriage is X, Y and not Z - as if the concept was an object of knowledge, of which one could gain a true or false apprehension, rather than an evaluative matter exercising normative judgement. With that in mind, Walker's intervention is interesting on two counts.

Given the fairly shambolic and injudicious nature of their elucidation, Walker's attitudes are clearly minimally thought through. However, I believe they have an interest, in part because I suspect a number of Scots share them, to the extent that they are hostile to the idea of gay marriage, but want to exclude divine commands from the political debate. Walker's view is that marriage is by definition, between a man and woman, but God didn't tell him so. A number of religious folk have internalised the relegation of faith to the private sphere, after all. These people may be comprehensively or casually pious, but somehow, they will want to keep religion out of their arguments. While the animating drivers of their opposition may be religiously inspired, we can expect most to scrabble around for alternative, secular-sounding justifications for positions taken.  We saw something similar in various religious organisations' responses to Margo MacDonald's abortive End of Life Assistance Bill in the last session of Holyrood. These groups' spokespersons and witnesses all started talking like modernist sociologists, making confident predictions about what Margo's Bill, if passed, would do to the social fabric of Scotland. They did not dwell on passages of the Law in Scripture, but were exceedingly keen to focus on pushing law-like generalisations about how we would all become inured to the predations of death, and take up the casual obliteration of our unloved grannies. 

But back to Walker. On this own evidence, the SNP MSP is not invoking any sort of divine authority, any scriptural or theological basis for the proposition that marriage is betwixt women and men only. He doesn't invite us to scrutinise the mind or word of God for the proposition that to talk about gay marriage is to fall into logical incompatibility. So what the devil is he talking about? A quick squint about the world makes clear that Walker certainly isn't making a plausible universal social or historical observation about the definitions of marriage. For example, a number of countries have now enshrined same-sex marriage in their laws, including Canada, the Netherlands, Sweden.  Similarly, we are all familiar with contemporary and historical instances of polygamy, which bely the simple definition Walker espouses.  While I wouldn't want to put words in his mouth, nor ascribe to him more generous sentiments than actually swell his breast, I'd be surprised if Walker believes that Canadian wives and wives, bound in wedlock by their jurisdiction, aren't really married.  As a matter of fact, they are according to Canadian law. Factually then, the proposition that marriage is always betwixt groom and bride is simply false. So how are we to understand his position? Helpfully, the man himself affords an insight into his reasoning here. The Scotsman quote him thus...

"Marriage is an emotional and physical relationship between a man and a woman. Consult, for example, Chambers 20th Century Dictionary. It's as simple as that - nothing to do with "equality". Homosexuals and lesbians may have relationships but it is not marriage. "Same-sex marriage" is a contradiction in terms."

I also took the liberty of looking up the Oxford English's definition of "marriage", which is indeed still dominated by references to husbands and wives...

a. The condition of being a husband or wife; the relation between persons married to each other; matrimony. The term is now sometimes used with reference to long-term relationships between partners of the same sex.

I look forward to the tag Obs - obsolete - being added to this particular definition. Walker's attitude towards his cherished dictionary is ridiculously superstitious.  He seems to be holding that the book timelessly enumerates objective knowledge about the "true" character of marriage. Like one of Plato's Forms, we are being invited to believe that the authors of his last-century wordbook had exclusive access to solid, ageless and rationally decreed ideas. We sight-loving Yahoos may traffick in our false conceptions as much as we like, but the wise and knowledgeable philosopher kings of Chambers have spoken. Marriage, man, woman, fact. This is an astonishingly elementary stupidity. Indeed, so stupid, that I wonder if Walker, faced with the question - do you really think the authors of the Chambers Dictionary should exercise supreme definitional authority over contemporary Scottish social policy - could bring himself to answer yes.  Perhaps I overestimate the man. Such cavilling definitional games would only persuade the very simple, or the intellectually dishonest, trying desperately not to own up to the true sources of their views about gay marriage. I leave it to your consideration, whether Walker is thick, mendacious - or thick and mendacious. However, one thing we can be sure of. Walker is only the first of a number, who will attempt to use the legerdemain of marriage definitions to try to foil the upcoming move towards equal marriage.  In all cases, the critical questions are elementary. Why follow that definition? On whose authority? Often, when we peel back the dictionary bindings, we'll find the text of the Pentateuch, and soon smoke out Jehovah.  As to Walker's puir me routine, and the whiff of burning martyr which follows him unwisely from article to article - 

"People who have been contacting me from various, I would have to call them gay rights organisations, have sent me emails that have been highly abusive. I regard it as bullying. It's like they are trying to stop free speech."

- in line with his pettifogging account of his opposition to gay marriage, Walker propounds a ludicrous and shallow definition of free speech, seemingly imagining that it amounts to a freedom from being contradicted, especially vehement, radical, indicting and unsentimental criticisms of his views. In a clear breach of Godwin's law, and a clear indication he is a political idiot, Walker's immediate response to his brusque dismissal of a perfectly commonplace epistle on equal marriage, which included an utterly innocuous image of the word "homophobia", struck through with a cross - was to tell the Herald that it resembled “pre-war Nazi-type stuff”.  Our politics has developed an unfortunate tendency towards demanding of people like Walker that they disavow sentiments they have expressed, retract, recant.  I shan't be doing that. If he believes it, by all means firmly avow it, but he should expect to be questioned and criticised.  As the Fool says to frosty-powed Lear, Mr Walker, Thou shouldst not have been old till thou hadst been wise...