There is a widespread myth about Scottish home rule and it is this: apart from the big stuff – defence of the realm, foreign affairs, social security, the currency, “macro” economics and so on- the Edinburgh parliament will have a free hand to run Scotland as it sees fit. This notion both warms the hearts of dedicated home rulers and reduces the commentators of Middle England (left as well as right) to spasms of indignation and occasional bouts of Jock-bashing. But there is no doubt that the idea has taken root. Most of Britain seems to believe that everything north of the Tweed is about to disappear over the constitutional horizon.
But read the small print, in particular the 17 pages of schedule five of the Scotland Act 1998. The Act – in effect, Scotland’s new constitution – sets up a 129-member parliament which will be run by a presiding officer (Edinburgh’s version of Madam Speaker) and two deputies and clerks. The largest party will form the executive (the word government is carefully avoided) at the sharp end of which will be our first minister with his/her train of ministers, junior ministers and law officers.
The Secretary of State for Scotland, however, will remain in place. Whether he or she will be Scotland’s functionary in London or London’s functionary in Scotland remains to be seen. The Scotland Act suggests the latter. Section 35 states that if the Secretary of State does not like the look of a bill going through the parliament (for reasons of defence, say, or national security, or “international obligations”) he or she can kill it stone dead. And nothing in the Scotland Act affects “the power of the parliament of the United Kingdom to make laws for Scotland”. Westminster rules, OK?
But it is schedule five that lays down the limits of the Scottish Parliament’s powers. And in some detail. These are the “reserved matters” that comprise Westminster’s (and Whitehall’s) apron strings. They are the ties that bind. They are also the rags that gag. They are guaranteed to generate endless resentment. Westminster has reserved so much control over Scottish life and Scottish affairs that no self-respecting subsidiary assembly (which is what the Scottish Parliament will be) can do anything but fret, complain, nag and clamour for more power.
Take, for example, nuclear power. More than 50 per cent of the electricity we use in Scotland (and some we export) is generated by two big nuclear power stations at Hunterston in Ayrshire and Torness in East Lothian. Add the experimental reactors at Dounreay in the far north, Chapelcross in the deep south, the nuclear submarines on the Clyde plus eight retired nuclear subs at Rosyth (13 miles from Edinburgh) and you have a very considerable nuclear apparatus.
All of which has nothing to do with Holyrood. Section D4 of schedule five makes that plain. Everything to do with “nuclear energy and nuclear installations, including (a) nuclear safety, security and safeguards and (b) liability for nuclear occurrences” are matters for London, not Edinburgh. The nuclear convoys that trundle around Scotland’s roads and railways are beyond the remit of the parliament. As are the specially trained Royal Marines and Atomic Energy Authority police who ride shotgun on the convoys.
Westminster has also reserved to itself control over Scotland’s coal, gas and oil-burning power stations. In fact, just about everything to do with energy has been excluded from Holyrood’s remit. Section D3 reserves Westminster’s powers over what is left of Scotland’s coal-extraction industry. Naturally (or at least predictably) almost everything to do with ” . . . the ownership of, exploration for and exploitation of oil and natural gas” has remained with Westminster. Her Majesty’s new Labour government is not about to encourage the old nationalist slogan that “it’s Scotland’s oil”. Holyrood will, however, be allowed to encourage “energy efficiency”, but not “by prohibition or regulation”.
And so on it goes. Among the areas over which Edinburgh will have no power are: currency, financial markets, money laundering, drugs, data protection, elections, firearms control, cinema and video censorship, immigration and extradition, telephone tapping, gambling, business “associations”, insolvency, intellectual property, waters, consumer protection, postal services, road transport, the “provision and regulation of railway services”, child support, war pensions. And the “regulation of activities in outer space”. We are to see no rockets blasting off from Cape Wrath carrying the saltire into the solar system.
A few of these “reserved” powers have already caused a stir. Scotland’s political classes are none too happy that Holyrood will have no control of broadcasting. Westminster’s retention of the abortion issue has upset the Catholics. Scottish scientists are restive because, in the land of Dolly the sheep, all “scientific procedures on live animals” are to be London’s business.
Others of the reserved powers seem plain daft. For example, while Scots law falls squarely within Holyrood’s remit, Westminster will decide how much Scotland’s judges, sheriffs and tribunal members should be paid. (Did HMG fear a judicial “brain drain” from the English bench?) Regulation of architects remains under London’s wing, along with doctors, nurses, midwives, health visitors, pharmacists, vets, dentists, opticians, osteopaths, chiropractors and, for some reason, auditors. Spies from MI5 and MI6 remain London’s men and women. But it is not clear whether they should apply to the Scottish Secretary or to the new first minister if they want a warrant to bug our phones.
Nor is it at all clear just how Westminster’s restraints will operate on Holyrood. Will the MSPs be allowed to debate whatever they want – abortion, say, or the Trident submarines on the Clyde – but not be allowed to vote? Or will they be permitted to vote on the stern understanding that their votes will count for nothing? If so, what kind of debates can we expect? And what kind of parliament is that?
What is certain is that the MSPs will not be long in testing the vires of the new parliament. Probing the envelope, as they say. When they do, a new figure will enter the game: the advocate general, chief legal adviser to the Secretary of State for Scotland. If this new persona thinks the parliament is stepping outside schedule five he will refer the matter to the Judicial Committee of Her Majesty’s Privy Council, a body of mainly English judges, which also decides who should hang in Jamaica.
Every time these grey eminences are obliged to throw out one of the Edinburgh parliament’s more inoffensive proposals – to slap an 18 certificate on some dodgy video, perhaps, or to employ another few dozen clerks – they will be stoking the fires of Scottish resentment.
So schedule five could be a legislative time bomb that one day blows Britain apart in an explosion of resentment and frustration. Whether the schedule was a deliberate and not very subtle attempt to bind and gag the Scottish Parliament or simply sloppy drafting has yet to be revealed (or admitted). But the effect is to give the Edinburgh parliament reason to complain. And complain it will. Endlessly.
The writer is deputy editor of the “Sunday Herald”