The Sturgeon case exposes the fatal flaw in Scottish devolution

The campaign for a Scottish parliament was rooted in the notion of a ‘democratic deficit’. Scotland kept voting Labour but the UK kept getting Conservative governments. Devolution, so the logic ran, would give Scotland a more responsive government. Two decades on, a new democratic deficit is emerging: the chasm between the minimum accountability demanded by the parliament and the maximum Nicola Sturgeon’s government is prepared to give. A new establishment has taken root in Edinburgh, more powerful and less accountable than the old one.

The Alex Salmond inquiry, which began as a recondite tale about a failed attempt by Sturgeon’s government to probe sexual misconduct claims against the former Scottish National party leader, has narrowed to three stark questions. Did Sturgeon lie to parliament about what she knew and when? Did she break the ministerial code in failing to inform civil servants of a secret meeting with Salmond at her private home until two months after the fact? And is there any credence in Salmond’s incendiary accusation that people around Sturgeon, including her husband, the SNP chief executive Peter Murrell, conspired to have him imprisoned?

The investigation of these questions has exposed where power really lies in Scotland. The Lord Advocate, James Wolffe QC, a member of Sturgeon’s cabinet and head of the Crown Office prosecution service, this week gave evidence to a Holyrood committee investigating the Salmond affair. Wolffe started off reminding Holyrood politicians that — unlike MPs — they are ‘punishable’ under the law for statements they may make in parliament. The doctrine of parliamentary privilege, a cornerstone of Westminster’s democracy, does not exist in Scotland.

But when Wolffe was asked if his fellow government ministers are punishable under the law, he had far less to say. What would happen, he was asked, if (as Salmond alleges) ministers refused to hand over a cache of documents, despite being subject to a search warrant? Would this be illegal? ‘I am not going to make any comment in the abstract on what might or might not be a criminal offence,’ he said. It is hard to imagine an attorney general refusing to be drawn on such a fundamental point of law before parliament and remaining in post.

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Obstruction has been a constant theme of the Salmond inquiry. Legal advice twice demanded by the Scottish parliament and twice denied by the Scottish government was released only after Sturgeon’s deputy was threatened with a motion of no confidence. The documents proved that Sturgeon’s government proceeded with costly legal action against Salmond long after being advised by lawyers that the case would fail.

It was against this backdrop of secrecy and intrigue that The Spectator went to the High Court to secure the right of the inquiry and the public to see all relevant evidence — specifically Salmond’s written testimony accusing Sturgeon of breaking the ministerial code. No sooner had the High Court made clear that there were no obstacles to parliament publishing whatever it wanted than the Crown Office pressured the Scottish parliament to censor Salmond’s testimony. This testimony did not (as was absurdly claimed) jeopardise the anonymity of the complainants. We should know. We published it in January and it remains on Spectator.co.uk now.

Even after Sturgeon’s evidence to Holyrood this week, it is not at all obvious that she will have to resign as First Minister. This leaves us with a First Minister whose government breaks the law; who apparently misleads parliament herself; who seemingly treats the ministerial code like a takeaway menu, its provisions being there to pick and choose from as the appetite strikes her.

When the Scottish parliament tries to hold her to account, her government obscures and omits, refuses and revises. When the Scottish parliament tries harder, it receives a letter from state prosecutors warning it to disappear evidence already published on its website. Holyrood’s powerlessness in the face of an overmighty government is a fundamental design flaw of devolution. It would be unthinkable for a Westminster inquiry to be treated in this contemptuous way.

But where is Westminster in all this? Despite government in Scotland being conducted in a manner that seems not only grossly improper but downright sinister, everyone from the Prime Minister down is silent. If Westminster truly is the government of the whole United Kingdom, it cannot be neutral on these matters.

The SNP did not create the fatal flaws in devolution; it merely worked out how to exploit them. Those flaws were made in Westminster. They might now allow a Scottish government that is at best shoddy and at worst dishonest to continue in power unhindered by meaningful checks and balances. This calls into question not only the propriety of the Scottish government but the long-term viability of the UK.

The deputy speaker, Eleanor Laing, was asked about the Salmond affair last week and replied that the House of Commons is of course concerned about the health of democracy throughout the country. In which case, more of its members should pay attention to what’s happening in Scotland. Westminster set up the devolutionary architecture whose flaws now stand exposed — and only Westminster has the power to fix it.