0:00:04 > 0:00:09understands what is it going on -- what is going on.
0:00:09 > 0:00:13Tonight a Newsnight Scotland: We will be looking back at a week of
0:00:13 > 0:00:17constitutional drama. Taking a closer look at wider unionist
0:00:17 > 0:00:20parties seem set against a second question on devolution Max.
0:00:20 > 0:00:24Should the wider public have the right to see images like these of
0:00:24 > 0:00:27baby Declan Hainey, murdered by his mother, which were only released
0:00:27 > 0:00:31after the BBC asked the judge to intervene.
0:00:31 > 0:00:34Good evening. For weeks it appeared to be an argument over the timing
0:00:34 > 0:00:38of a referendum on Scottish independence. The Westminster
0:00:38 > 0:00:42Government and the UK opposition pushed for an early vote to force
0:00:42 > 0:00:47Alex Salmond's hand. No longer. It now seems that the intention is to
0:00:47 > 0:00:53make sure there is only one question on the ballot, the auction
0:00:53 > 0:01:00of more power which is supported by the voters and broadly by Labour
0:01:00 > 0:01:04and the Lib Dems must be excluded, they insist. -- the option of more
0:01:04 > 0:01:12power. Why? We will debate the events of a remarkable week in a
0:01:12 > 0:01:16moment. Devo max. Independence light.
0:01:16 > 0:01:23Devolution plus. Independence minus. The third option. The second
0:01:23 > 0:01:27question. Secure autonomy. Call it what you like. It is the real issue
0:01:27 > 0:01:36in a referendum argument. They desire quickly questions over the
0:01:36 > 0:01:42timing of the referendum evaporated this week. -- notice how quickly.
0:01:42 > 0:01:47As the mainstream view of, why won't the Westminster parties but
0:01:47 > 0:01:57the third question to you? They say they will only be one question, in
0:01:57 > 0:01:58
0:01:58 > 0:02:01or up? -- out? Scott and needs to have a lively debate about powers.
0:02:01 > 0:02:04I think most people in Scotland would concur that that is a
0:02:04 > 0:02:09different debate as to whether or not Scotland should separate from
0:02:09 > 0:02:12the United Kingdom. That is a fundamental, momentous decision. As
0:02:12 > 0:02:18Nicola Sturgeon herself said yesterday, we know there is
0:02:18 > 0:02:23consensus between the four main political parties in Scotland. A
0:02:23 > 0:02:26simple yes no answer is the preferred option. Margaret Curran
0:02:26 > 0:02:30is one leader that will not touch devo max, at least not until after
0:02:30 > 0:02:36the referendum. The Tories will not touch it and bizarrely neither will
0:02:36 > 0:02:43the Liberal Democrat, although it is virtually their party policy. In
0:02:43 > 0:02:47fact, it has taken non-partisan Scotland civic groups to start
0:02:47 > 0:02:51nurturing it. With echoes from the late 80s, the churches, the
0:02:51 > 0:02:58charities and voluntary groups have joined with the think tanks and the
0:02:58 > 0:03:01unions to give it life there. have seen a number of issues that
0:03:01 > 0:03:05need to be revolve in relation to the referendum and it does not look
0:03:05 > 0:03:11as though there can be a consensus. When we have the vote, nobody will
0:03:11 > 0:03:15be happy with the outcome and they will continue to wrangle about the
0:03:15 > 0:03:20constitution and its relationship with the UK forever and a day. We
0:03:20 > 0:03:24are suggesting that an independent body should look at these issues,
0:03:24 > 0:03:28including whether or not there is a credible, legitimate, third option
0:03:28 > 0:03:33that could go on to the ballot paper and how the referendum should
0:03:33 > 0:03:37be conducted in that context. is a growing list of those
0:03:37 > 0:03:42interested in devo max. Already in the public domain, Labour MSP
0:03:42 > 0:03:50Malcolm Chisholm, the former Labour First Minister, Henry McLeish, then
0:03:50 > 0:03:54Tory MSP Alex Ferguson. And there are other straws in the wind,
0:03:54 > 0:04:03including right-leaning Alec Mathie in the Spectator, arguing that the
0:04:03 > 0:04:08Tories should campaign for it. Devo max is clearly the most popular
0:04:08 > 0:04:12choice in some polls, but it is owned by no party. Why? This idea
0:04:12 > 0:04:19originally came from Alex Salmond. Their food was not invented here.
0:04:19 > 0:04:27They do not want to give what they now regard as an Alex Salmond
0:04:27 > 0:04:31consolation prize. -- it was not invented here. The parties would be
0:04:31 > 0:04:36divided on devo max, the Liberal Democrats would be against and the
0:04:36 > 0:04:40Conservatives in favour. That would divide the unionist camp. Given
0:04:40 > 0:04:44those difficulties, the idea of yes-no referendum and the idea of
0:04:44 > 0:04:50winning it, severely damaging Alex Salmond, that seems to be a much
0:04:50 > 0:04:54bigger prize than playing safe and going for devo max. It seems the
0:04:54 > 0:04:58three main unionist parties are determined that there will only be
0:04:58 > 0:05:03one question on the ballot paper. This led to this exchange at First
0:05:03 > 0:05:08Minister's questions. It is the extent of being in cahoots with the
0:05:08 > 0:05:13Conservative Government at Westminster which is now clear. I
0:05:13 > 0:05:17am a great student of body language and I was watching the Labour
0:05:17 > 0:05:23benches. Every time the Conservatives said how they were
0:05:23 > 0:05:29standing shoulder to shoulder earlier on in this debate, there
0:05:29 > 0:05:38was a lot of discomfort on the Labour benches. The First Minister
0:05:38 > 0:05:42offers a false perspective. He says the choice is independence or the
0:05:43 > 0:05:47Tories. This debate should be conducted in terms that recognises
0:05:47 > 0:05:51that Scottish Labour has a positive vision for Scotland inside the
0:05:52 > 0:05:56United Kingdom. Alex Salmond does not need any body's approval or
0:05:56 > 0:06:00permission. If Civic Scotland decides to take up devo max, he may
0:06:00 > 0:06:05decide to put the question on the ballot paper anyway. If it then
0:06:05 > 0:06:13wins a majority of will be he alone and not the opposition parties that
0:06:13 > 0:06:19will reap the rewards. I am joined by Stewart Maxwell, the
0:06:19 > 0:06:24leader of the Scottish Greens, Patrick Harvie and Labour's Sarah
0:06:24 > 0:06:28Boyack. What is the Green Party's view of the independence debate as
0:06:28 > 0:06:31it now stands? We have long said that we want to campaign for yes
0:06:31 > 0:06:36vote for independence but we are open to the idea of a multi-option
0:06:36 > 0:06:40referendum. It is interesting that it is only now wants the UK media
0:06:40 > 0:06:43and the UK Government have started taking account of this whole
0:06:43 > 0:06:47question that momentum is starting to build around a third option. I
0:06:47 > 0:06:51don't know what that third option would look like. I certainly think
0:06:51 > 0:06:55that if it is going to be on the ballot paper, it has to be much
0:06:55 > 0:06:59more clearly defined than anyone has got close to so far. What would
0:06:59 > 0:07:06you be happy with? I would be happy with a referendum that either had
0:07:06 > 0:07:12one question, yes or no, or multi- option question. But for the multi-
0:07:12 > 0:07:18option question, how would those powers look? I am not going to
0:07:18 > 0:07:21define it. It is not my party's policy. The last time we did that,
0:07:21 > 0:07:25we reaffirmed the view that independence was what we wanted but
0:07:26 > 0:07:34we were comfortable with a multi- option referendum. You don't care
0:07:34 > 0:07:37what the answer is to the second question? It is for people that
0:07:37 > 0:07:41support the devo max option to define it. And it does have to be
0:07:41 > 0:07:45defined if it is going to be on the ballot paper. People have to know
0:07:45 > 0:07:49what they are voting for and so far nobody has a clue what devo max
0:07:49 > 0:07:53even means. If it was getting rid of Trident, I think people would be
0:07:53 > 0:08:02disappointed. It is up to your Government to define that question,
0:08:02 > 0:08:06Stewart Maxwell. What do you mean by devo max? I don't think it is up
0:08:06 > 0:08:10to our Government to defy devo max atoll. It is up to the Parliament
0:08:10 > 0:08:15to decide what goes on the ballot paper and not the Government.
0:08:15 > 0:08:24has the most MSPs in the Parliament? Well, the SNP. So we
0:08:24 > 0:08:30are back to the SN -- SNB. We will be supporting independence every
0:08:30 > 0:08:35day between now and the referendum. There are huge variations in the
0:08:35 > 0:08:37opinion polls. Student groups, church groups, they are well
0:08:37 > 0:08:40supporting something short of independence. I think we have to
0:08:41 > 0:08:45listen to them and go through the consultation and they have to
0:08:45 > 0:08:48define what they mean by that. Then we can decide how to vote. That is
0:08:48 > 0:08:51an interesting principle. If you can get a question on the
0:08:51 > 0:08:55referendum because the opinion polls think that the public wants
0:08:55 > 0:08:58something, that opened it up to lots of other issues. Why not have
0:08:59 > 0:09:03a question that says in or out of Europe? Should we reinstate the
0:09:03 > 0:09:07death penalty? Opinion polls show strong opinions on all of those
0:09:07 > 0:09:12things. I think you misunderstood what I said. The opinion polls show
0:09:12 > 0:09:16a body of opinion that supports that. And based on that it should
0:09:17 > 0:09:20be on the referendum? Not based on that. A campaign by individuals,
0:09:20 > 0:09:27churches, voluntary organisations, who are beginning to speak come,
0:09:27 > 0:09:31saying that they want a debate that centres around... It is the
0:09:31 > 0:09:35position of the Liberal Democrat and has been for a long time.
0:09:35 > 0:09:39party had the manifesto? It has been the Liberal Democrat position
0:09:39 > 0:09:42for about 100 years. There are parties that support it. What is
0:09:42 > 0:09:45strange about this is that the parties that supported have
0:09:45 > 0:09:50suddenly decided to stand with the Tories and are having nothing to do
0:09:50 > 0:09:56with it. That is the strange thing. Seroquel, why do you not support
0:09:56 > 0:10:01further powers and why are you jumping on this bandwagon? -- Sarah
0:10:01 > 0:10:06Boyack. Why not go with what Scottish people want and campaign
0:10:06 > 0:10:09for more powers? We want a clear referendum and it has to be a fair
0:10:09 > 0:10:13referendum. When that referendum is concluded, regardless of who wins
0:10:13 > 0:10:18and loses, we need to know what the answer of the Scottish people was
0:10:18 > 0:10:21and it has to be a clear question. Devolution has worked and we have
0:10:21 > 0:10:26strengthened devolution over the past 15 years. On railways, marine
0:10:26 > 0:10:30powers, we have debated the Scotland Bill. Do you not think the
0:10:30 > 0:10:33Scottish people are capable of deciding whether or not they
0:10:33 > 0:10:36support independence and also capable of going on to a second
0:10:36 > 0:10:40question to decide whether or not they face greater powers for the
0:10:40 > 0:10:44Scottish Government? I think it will be confusing and I think the
0:10:44 > 0:10:46choice will be between strong devolution and independence. They
0:10:46 > 0:10:51are two different constitutional wreaths and we need to be clear
0:10:51 > 0:10:54about that. In the chamber today it was clear that all the parties that
0:10:54 > 0:10:58for the election last year are clear that we should have a clear
0:10:58 > 0:11:02result. The SNP want independence, the Greens want independence, the
0:11:02 > 0:11:06other three parties want devolution. That was the choice that we need to
0:11:06 > 0:11:11put forward. The key thing today was that Alex Salmond appeared to
0:11:11 > 0:11:14ask the rest of us to wait for a couple of weeks before he told us
0:11:14 > 0:11:23what the 4th consultation that the SNP have come up within four-and-a-
0:11:23 > 0:11:31half years would say next. There is a greater demand for Scottish
0:11:32 > 0:11:36Power's and it has -- powers and the debate has been going on for
0:11:36 > 0:11:46years. Thank you. Do you think it is democratic to have a second
0:11:46 > 0:11:46
0:11:46 > 0:11:50question when nobody seems to have We have two and-a-half years...
0:11:50 > 0:11:55there is a referendum to decide on the referendum? I think we should
0:11:55 > 0:12:00not close down this question. Whereas the democratic mandate?
0:12:00 > 0:12:04There are certain things for which there is not a mandate, there is a
0:12:04 > 0:12:09mandate for a referendum, that comes from the election. No one is
0:12:09 > 0:12:12disagreeing with that. It is about having a second question about
0:12:12 > 0:12:16greater powers for the Scottish parliament. The fact of the
0:12:16 > 0:12:21referendum is it that there is a mandate for it. In the second half,
0:12:21 > 0:12:25there is a good claim for a mandate for that timing as well. But there
0:12:25 > 0:12:31is no clear mandate, either way, for what the form of the referendum
0:12:31 > 0:12:35should be. So in a democracy, you cannot have a question, because
0:12:35 > 0:12:40voters haven't voted for it. They haven't voted either way it could
0:12:40 > 0:12:43not on either question. That is not settled by the existing mandate, by
0:12:44 > 0:12:48the election. Some things were settled by the election, this
0:12:48 > 0:12:53wasn't. I think it is reasonable we should consult widely and allowed
0:12:53 > 0:12:58the idea to build momentum. This is going to be your big moment. Why
0:12:58 > 0:13:02are you allowing things to become confused? Isn't it simpler to say
0:13:02 > 0:13:07to the Scottish people, we are the SNP, we believe in independence,
0:13:07 > 0:13:12vote yes or no? That is exactly the campaign we will be running. We
0:13:12 > 0:13:19believe that is... A why bother with the second question? We are
0:13:19 > 0:13:25open with the debate. Why? What is the tactical advantage? It is not
0:13:25 > 0:13:28about a tactical advantage. There is a wave of opinion that support a
0:13:28 > 0:13:33policy of devolution with greater powers than currently exist. We
0:13:33 > 0:13:37should listen to that, have the consultation, third debate, allow
0:13:37 > 0:13:41all these good start to take part in the debate, and then see whether
0:13:41 > 0:13:45that is the best option. The people of Scotland have the right to
0:13:45 > 0:13:50choose, we should not shut down or restrict the argument, we shouldn't
0:13:51 > 0:13:56say to them, we know better venue. People have the right to choose.
0:13:56 > 0:14:00Have you decided now that autumn 2014 is going to be the date of the
0:14:00 > 0:14:05referendum, the Labour Party are happy with that? We are waiting to
0:14:05 > 0:14:08see what the date would be that was proposed. At least we have a rough
0:14:09 > 0:14:12idea of when Alex Salmond might deign to have the referendum, we
0:14:12 > 0:14:17have been waiting seven years for that. I think we need to get on
0:14:17 > 0:14:21with it, we need a proper, robust and honest debate that involves all
0:14:21 > 0:14:27the people of Scotland about what independence would mean. Do we want
0:14:27 > 0:14:32to go down that route or make devolution work better? If we want
0:14:32 > 0:14:36to have Civic Scotland working -- involved, it had credibility last
0:14:36 > 0:14:42time, it was clear, it had a mandate for action, and Labour
0:14:42 > 0:14:46acted on that, but we didn't do it on how our own. We did it with all
0:14:46 > 0:14:50parties, and I don't think it is up to Alex Salmond on his own to
0:14:50 > 0:14:56determine the nature of that referendum, it has to be a broader
0:14:56 > 0:15:00decision. But I have been calling for that two years. You don't begin
0:15:00 > 0:15:04that with a conclusion, you have to begin at with open-mindedness on
0:15:04 > 0:15:08questions like the form of the referendum bus-stop I think there
0:15:08 > 0:15:12is a real power that could be gained, a real sense of public
0:15:12 > 0:15:15authority for the referendum. But we can only get to that if we start
0:15:16 > 0:15:20with open-mindedness on some of these questions and a genuinely
0:15:20 > 0:15:24inclusive it spread. There has to beat an open debate cannot we
0:15:24 > 0:15:28should not shut down this debate before it has even started. People
0:15:28 > 0:15:33are always saying they don't know what independence means, so let's
0:15:33 > 0:15:39give people the chance and the time to reflect what all these positions
0:15:39 > 0:15:43are before committing to a decision. Thank you. That is all we have time
0:15:43 > 0:15:47for. I am sure we will be debating this for some time. Thanks for
0:15:47 > 0:15:50joining us at this evening. Now to what could be a significant legal
0:15:50 > 0:15:53ruling for Scotland's broadcasters and newspapers. This afternoon the
0:15:53 > 0:15:57Crown Office published photographs of a toddler murdered by his mother,
0:15:57 > 0:16:00following a case brought by BBC Scotland. Kimberley Hainey who was
0:16:00 > 0:16:08today jailed for life for killing her son, Declan, had argued
0:16:08 > 0:16:11publication would infringe her rights to privacy. But at the Court
0:16:11 > 0:16:16of Session, Lord Bonomy said the BBC's right to freedom of
0:16:16 > 0:16:21expression over-rode that. This is Declan Hainey, a child
0:16:21 > 0:16:26murdered by his mother in a case that shocked the country. A judge
0:16:26 > 0:16:30jailed a Saiqa Bibi -- Kimberley Hainey for 15 years. Lord Bonomy
0:16:30 > 0:16:36said she had isolated a baby from a family, neighbours and the welfare
0:16:36 > 0:16:40services. We did know how old he was when his life was extinguished,
0:16:40 > 0:16:43and we wouldn't be able to see these images if BBC Scotland hadn't
0:16:43 > 0:16:47gone to court. A ruling this evening allowed pictures that had
0:16:47 > 0:16:51been seen by the jury in open court to be made widely available. That
0:16:51 > 0:16:55is frequently what happens in England and Wales, but not in
0:16:55 > 0:17:00Scotland until now. But should be public have a right to see what the
0:17:00 > 0:17:07jury sees? Even in cases as tragic as this.
0:17:07 > 0:17:12I am joined by it a BBC Scotland solicitor. Can you explain why the
0:17:12 > 0:17:18BBC decided to take this issue to court on this particular case?
0:17:18 > 0:17:22People will work at the tragic death of this young boy, and wonder
0:17:22 > 0:17:25what the public interest is in seeing pictures of him. There must
0:17:25 > 0:17:30be a public interest in seeing pictures of the victim of a serious
0:17:30 > 0:17:34crime who has died, particularly when that victim may well be the
0:17:34 > 0:17:41subject of a fatal accident inquiry. The BBC first asked the Crown
0:17:41 > 0:17:45Office to release pictures of this baby, pictures of the baby as a
0:17:45 > 0:17:51healthy child. That request was refused, and that is what prompted
0:17:51 > 0:17:55the BBC's court action to stop this is going to have an impact for
0:17:55 > 0:17:59further court cases in England and Wales. I understand they have
0:17:59 > 0:18:06different arrangements which see lots of these productions broadcast
0:18:06 > 0:18:10frequently, but explain what you think this will achieve a? You have
0:18:10 > 0:18:13spoken about the position in England and Wales, there is a
0:18:13 > 0:18:20protocol there which sees as a matter of standard practice the
0:18:20 > 0:18:24release of photographs of such as pictures of a deceased victim. In
0:18:24 > 0:18:31Scotland, there has been no such presumption, decisions are taken on
0:18:31 > 0:18:36an AD hoc basis. Sometimes that is inconsistent. Possibly also, the
0:18:36 > 0:18:43public in touch and have wondered why they don't see photographs in
0:18:43 > 0:18:46relation to Scottish crimes, which they can see in England and Wales.
0:18:46 > 0:18:52So will this change the way Scottish people work at the courts?
0:18:52 > 0:18:57I think this is the biggest change in court reporting this millennium,
0:18:57 > 0:19:04without a shadow of a doubt. There is now a judicial recognition in
0:19:04 > 0:19:09Scotland by Lord Bonomy that there is an entitlement in the public to
0:19:10 > 0:19:14see, to an extent, some of the most important documents the jury have
0:19:14 > 0:19:17seen. We have talked a lot about the rights of the public, the media,
0:19:18 > 0:19:26what about the rights of the victims? Will they be able to say,
0:19:26 > 0:19:33I don't want these documents to be published. Will the BBC's initial
0:19:33 > 0:19:38application was refused, but it has been said that as the trial judge
0:19:38 > 0:19:43in a murder trial, who is the best person to take into account all the
0:19:43 > 0:19:48people involved, the rights of victims, relatives. So victims
0:19:48 > 0:19:54should and fear that private information, which has to be shown
0:19:54 > 0:19:59in a court, will then be broadcast more widely? -- shouldn't fear.
0:19:59 > 0:20:07Theories and limit to what broadcasters and will want to
0:20:07 > 0:20:14broadcast. -- theory is a limit. There were certainly some
0:20:14 > 0:20:20distressing Kiprotich. -- some distressing Opra teacher. Just to
0:20:20 > 0:20:25be clear, this is a landmark judgment, which will force changes
0:20:25 > 0:20:29in the way that court cases are reported going forward? Absolutely,
0:20:29 > 0:20:36it is a paradigm shift, the public will know a lot more than it has