12/01/2012 Newsnight Scotland

understands what is it going on -- what is going on.

Tonight a Newsnight Scotland: We will be looking back at a week of

constitutional drama. Taking a closer look at wider unionist

parties seem set against a second question on devolution Max.

Should the wider public have the right to see images like these of

baby Declan Hainey, murdered by his mother, which were only released

after the BBC asked the judge to intervene.

Good evening. For weeks it appeared to be an argument over the timing

of a referendum on Scottish independence. The Westminster

Government and the UK opposition pushed for an early vote to force

Alex Salmond's hand. No longer. It now seems that the intention is to

make sure there is only one question on the ballot, the auction

of more power which is supported by the voters and broadly by Labour

and the Lib Dems must be excluded, they insist. -- the option of more

power. Why? We will debate the events of a remarkable week in a

moment. Devo max. Independence light.

Devolution plus. Independence minus. The third option. The second

question. Secure autonomy. Call it what you like. It is the real issue

in a referendum argument. They desire quickly questions over the

timing of the referendum evaporated this week. -- notice how quickly.

As the mainstream view of, why won't the Westminster parties but

the third question to you? They say they will only be one question, in

or up? -- out? Scott and needs to have a lively debate about powers.

I think most people in Scotland would concur that that is a

different debate as to whether or not Scotland should separate from

the United Kingdom. That is a fundamental, momentous decision. As

Nicola Sturgeon herself said yesterday, we know there is

consensus between the four main political parties in Scotland. A

simple yes no answer is the preferred option. Margaret Curran

is one leader that will not touch devo max, at least not until after

the referendum. The Tories will not touch it and bizarrely neither will

the Liberal Democrat, although it is virtually their party policy. In

fact, it has taken non-partisan Scotland civic groups to start

nurturing it. With echoes from the late 80s, the churches, the

charities and voluntary groups have joined with the think tanks and the

unions to give it life there. have seen a number of issues that

need to be revolve in relation to the referendum and it does not look

as though there can be a consensus. When we have the vote, nobody will

be happy with the outcome and they will continue to wrangle about the

constitution and its relationship with the UK forever and a day. We

are suggesting that an independent body should look at these issues,

including whether or not there is a credible, legitimate, third option

that could go on to the ballot paper and how the referendum should

be conducted in that context. is a growing list of those

interested in devo max. Already in the public domain, Labour MSP

Malcolm Chisholm, the former Labour First Minister, Henry McLeish, then

Tory MSP Alex Ferguson. And there are other straws in the wind,

including right-leaning Alec Mathie in the Spectator, arguing that the

Tories should campaign for it. Devo max is clearly the most popular

choice in some polls, but it is owned by no party. Why? This idea

originally came from Alex Salmond. Their food was not invented here.

They do not want to give what they now regard as an Alex Salmond

consolation prize. -- it was not invented here. The parties would be

divided on devo max, the Liberal Democrats would be against and the

Conservatives in favour. That would divide the unionist camp. Given

those difficulties, the idea of yes-no referendum and the idea of

winning it, severely damaging Alex Salmond, that seems to be a much

bigger prize than playing safe and going for devo max. It seems the

three main unionist parties are determined that there will only be

one question on the ballot paper. This led to this exchange at First

Minister's questions. It is the extent of being in cahoots with the

Conservative Government at Westminster which is now clear. I

am a great student of body language and I was watching the Labour

benches. Every time the Conservatives said how they were

standing shoulder to shoulder earlier on in this debate, there

was a lot of discomfort on the Labour benches. The First Minister

offers a false perspective. He says the choice is independence or the

Tories. This debate should be conducted in terms that recognises

that Scottish Labour has a positive vision for Scotland inside the

United Kingdom. Alex Salmond does not need any body's approval or

permission. If Civic Scotland decides to take up devo max, he may

decide to put the question on the ballot paper anyway. If it then

wins a majority of will be he alone and not the opposition parties that

will reap the rewards. I am joined by Stewart Maxwell, the

leader of the Scottish Greens, Patrick Harvie and Labour's Sarah

Boyack. What is the Green Party's view of the independence debate as

it now stands? We have long said that we want to campaign for yes

vote for independence but we are open to the idea of a multi-option

referendum. It is interesting that it is only now wants the UK media

and the UK Government have started taking account of this whole

question that momentum is starting to build around a third option. I

don't know what that third option would look like. I certainly think

that if it is going to be on the ballot paper, it has to be much

more clearly defined than anyone has got close to so far. What would

you be happy with? I would be happy with a referendum that either had

one question, yes or no, or multi- option question. But for the multi-

option question, how would those powers look? I am not going to

define it. It is not my party's policy. The last time we did that,

we reaffirmed the view that independence was what we wanted but

we were comfortable with a multi- option referendum. You don't care

what the answer is to the second question? It is for people that

support the devo max option to define it. And it does have to be

defined if it is going to be on the ballot paper. People have to know

what they are voting for and so far nobody has a clue what devo max

even means. If it was getting rid of Trident, I think people would be

disappointed. It is up to your Government to define that question,

Stewart Maxwell. What do you mean by devo max? I don't think it is up

to our Government to defy devo max atoll. It is up to the Parliament

to decide what goes on the ballot paper and not the Government.

has the most MSPs in the Parliament? Well, the SNP. So we

are back to the SN -- SNB. We will be supporting independence every

day between now and the referendum. There are huge variations in the

opinion polls. Student groups, church groups, they are well

supporting something short of independence. I think we have to

listen to them and go through the consultation and they have to

define what they mean by that. Then we can decide how to vote. That is

an interesting principle. If you can get a question on the

referendum because the opinion polls think that the public wants

something, that opened it up to lots of other issues. Why not have

a question that says in or out of Europe? Should we reinstate the

death penalty? Opinion polls show strong opinions on all of those

things. I think you misunderstood what I said. The opinion polls show

a body of opinion that supports that. And based on that it should

be on the referendum? Not based on that. A campaign by individuals,

churches, voluntary organisations, who are beginning to speak come,

saying that they want a debate that centres around... It is the

position of the Liberal Democrat and has been for a long time.

party had the manifesto? It has been the Liberal Democrat position

for about 100 years. There are parties that support it. What is

strange about this is that the parties that supported have

suddenly decided to stand with the Tories and are having nothing to do

with it. That is the strange thing. Seroquel, why do you not support

further powers and why are you jumping on this bandwagon? -- Sarah

Boyack. Why not go with what Scottish people want and campaign

for more powers? We want a clear referendum and it has to be a fair

referendum. When that referendum is concluded, regardless of who wins

and loses, we need to know what the answer of the Scottish people was

and it has to be a clear question. Devolution has worked and we have

strengthened devolution over the past 15 years. On railways, marine

powers, we have debated the Scotland Bill. Do you not think the

Scottish people are capable of deciding whether or not they

support independence and also capable of going on to a second

question to decide whether or not they face greater powers for the

Scottish Government? I think it will be confusing and I think the

choice will be between strong devolution and independence. They

are two different constitutional wreaths and we need to be clear

about that. In the chamber today it was clear that all the parties that

for the election last year are clear that we should have a clear

result. The SNP want independence, the Greens want independence, the

other three parties want devolution. That was the choice that we need to

put forward. The key thing today was that Alex Salmond appeared to

ask the rest of us to wait for a couple of weeks before he told us

what the 4th consultation that the SNP have come up within four-and-a-

half years would say next. There is a greater demand for Scottish

Power's and it has -- powers and the debate has been going on for

years. Thank you. Do you think it is democratic to have a second

question when nobody seems to have We have two and-a-half years...

there is a referendum to decide on the referendum? I think we should

not close down this question. Whereas the democratic mandate?

There are certain things for which there is not a mandate, there is a

mandate for a referendum, that comes from the election. No one is

disagreeing with that. It is about having a second question about

greater powers for the Scottish parliament. The fact of the

referendum is it that there is a mandate for it. In the second half,

there is a good claim for a mandate for that timing as well. But there

is no clear mandate, either way, for what the form of the referendum

should be. So in a democracy, you cannot have a question, because

voters haven't voted for it. They haven't voted either way it could

not on either question. That is not settled by the existing mandate, by

the election. Some things were settled by the election, this

wasn't. I think it is reasonable we should consult widely and allowed

the idea to build momentum. This is going to be your big moment. Why

are you allowing things to become confused? Isn't it simpler to say

to the Scottish people, we are the SNP, we believe in independence,

vote yes or no? That is exactly the campaign we will be running. We

believe that is... A why bother with the second question? We are

open with the debate. Why? What is the tactical advantage? It is not

about a tactical advantage. There is a wave of opinion that support a

policy of devolution with greater powers than currently exist. We

should listen to that, have the consultation, third debate, allow

all these good start to take part in the debate, and then see whether

that is the best option. The people of Scotland have the right to

choose, we should not shut down or restrict the argument, we shouldn't

say to them, we know better venue. People have the right to choose.

Have you decided now that autumn 2014 is going to be the date of the

referendum, the Labour Party are happy with that? We are waiting to

see what the date would be that was proposed. At least we have a rough

idea of when Alex Salmond might deign to have the referendum, we

have been waiting seven years for that. I think we need to get on

with it, we need a proper, robust and honest debate that involves all

the people of Scotland about what independence would mean. Do we want

to go down that route or make devolution work better? If we want

to have Civic Scotland working -- involved, it had credibility last

time, it was clear, it had a mandate for action, and Labour

acted on that, but we didn't do it on how our own. We did it with all

parties, and I don't think it is up to Alex Salmond on his own to

determine the nature of that referendum, it has to be a broader

decision. But I have been calling for that two years. You don't begin

that with a conclusion, you have to begin at with open-mindedness on

questions like the form of the referendum bus-stop I think there

is a real power that could be gained, a real sense of public

authority for the referendum. But we can only get to that if we start

with open-mindedness on some of these questions and a genuinely

inclusive it spread. There has to beat an open debate cannot we

should not shut down this debate before it has even started. People

are always saying they don't know what independence means, so let's

give people the chance and the time to reflect what all these positions

are before committing to a decision. Thank you. That is all we have time

for. I am sure we will be debating this for some time. Thanks for

joining us at this evening. Now to what could be a significant legal

ruling for Scotland's broadcasters and newspapers. This afternoon the

Crown Office published photographs of a toddler murdered by his mother,

following a case brought by BBC Scotland. Kimberley Hainey who was

today jailed for life for killing her son, Declan, had argued

publication would infringe her rights to privacy. But at the Court

of Session, Lord Bonomy said the BBC's right to freedom of

expression over-rode that. This is Declan Hainey, a child

murdered by his mother in a case that shocked the country. A judge

jailed a Saiqa Bibi -- Kimberley Hainey for 15 years. Lord Bonomy

said she had isolated a baby from a family, neighbours and the welfare

services. We did know how old he was when his life was extinguished,

and we wouldn't be able to see these images if BBC Scotland hadn't

gone to court. A ruling this evening allowed pictures that had

been seen by the jury in open court to be made widely available. That

is frequently what happens in England and Wales, but not in

Scotland until now. But should be public have a right to see what the

jury sees? Even in cases as tragic as this.

I am joined by it a BBC Scotland solicitor. Can you explain why the

BBC decided to take this issue to court on this particular case?

People will work at the tragic death of this young boy, and wonder

what the public interest is in seeing pictures of him. There must

be a public interest in seeing pictures of the victim of a serious

crime who has died, particularly when that victim may well be the

subject of a fatal accident inquiry. The BBC first asked the Crown

Office to release pictures of this baby, pictures of the baby as a

healthy child. That request was refused, and that is what prompted

the BBC's court action to stop this is going to have an impact for

further court cases in England and Wales. I understand they have

different arrangements which see lots of these productions broadcast

frequently, but explain what you think this will achieve a? You have

spoken about the position in England and Wales, there is a

protocol there which sees as a matter of standard practice the

release of photographs of such as pictures of a deceased victim. In

Scotland, there has been no such presumption, decisions are taken on

an AD hoc basis. Sometimes that is inconsistent. Possibly also, the

public in touch and have wondered why they don't see photographs in

relation to Scottish crimes, which they can see in England and Wales.

So will this change the way Scottish people work at the courts?

I think this is the biggest change in court reporting this millennium,

without a shadow of a doubt. There is now a judicial recognition in

Scotland by Lord Bonomy that there is an entitlement in the public to

see, to an extent, some of the most important documents the jury have

seen. We have talked a lot about the rights of the public, the media,

what about the rights of the victims? Will they be able to say,

I don't want these documents to be published. Will the BBC's initial

application was refused, but it has been said that as the trial judge

in a murder trial, who is the best person to take into account all the

people involved, the rights of victims, relatives. So victims

should and fear that private information, which has to be shown

in a court, will then be broadcast more widely? -- shouldn't fear.

Theories and limit to what broadcasters and will want to

broadcast. -- theory is a limit. There were certainly some

distressing Kiprotich. -- some distressing Opra teacher. Just to

be clear, this is a landmark judgment, which will force changes

in the way that court cases are reported going forward? Absolutely,

it is a paradigm shift, the public will know a lot more than it has