Dolly: off limits

`What more do you want?’ a somewhat exasperated left-leaning Englishwoman asked me not so long ago. `You’ve got your parliament, haven’t you? You’ve got your bloody first minister haven’t you? You can do pretty well what you want, can’t you? What more do you need?’ Quite a lot, I told her, and then began to spell out all the things that the Scottish Government and the Holyrood Parliament cannot do according to Schedule Five of the Scotland Act of 1998. It’s a long list. `I didn’t know any of that,’ she eventually conceded. `Maybe you’ve ended up with a parliament that’s more or less useless.’ Well, I wouldn’t go that far, I told her, but the ties that bind are still pretty strong. Westminster made sure of that.

But that bright Englishwoman was not alone in her ignorance of Schedule Five of the Scotland Act which is effectively Scotland’s constitution. Over the years I’ve been regularly dismayed by the number of Scotland’s journalists, commentators, academics, bloggers, lawyers and even politicians who seem to have little or no inkling of what’s in the 17 or so pages of Schedule Five. They certainly should be read, for they make grim reading. If nothing else, they’re a testament to Scotland’s helplessness when it comes to grappling with the thorny issues of running a country, even a small one like Scotland.

Some of the `reservations’ contained within Schedule Five are what you might expect. As a `subsidiary legislature’ The good folk of Holyrood have no say over the Crown or its succession, foreign affairs, defence of the realm (no matter how loudly our MSPs bang on about Trident), the law of treason (traditionally much harsher in England) or the control of financial services and the financial markets including money laundering. So long as we are part of the UK these seem like reasonable matters to leave to Westminster/Whitehall. But others are not.

Take, for example, nuclear power. Scotland is one of Europe’s few largely nuclear-powered countries. More than 30% of the electricity we use (and some we export) is generated by two big nuclear power stations, at Hunterston in Ayrshire and Torness in East Lothian. Add to that the now-redundant experimental reactors at Dounreay in the far north, Chapelcross in the deep south which are now being decommissioned, the nuclear submarines on the Clyde (Trident missile carriers and hunter-killers) plus the retired nuclear subs at Rosyth and a picture emerges of a concentration of nuclear hardware that is almost unique outside of the old Soviet Union.

But absolutely none of it has anything to do with Holyrood. It is all distinctly hands off. Section D4 of Schedule Five makes that very plain. Everything involving `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 not to mention the Atomic Energy Authority police who ride shotgun on the convoys.

Hunterston and Torness are, of course, now owned by the French government via its majority share in Electricite de France (EDF). Along with the Chinese, EDF is now pledged to build at least one new nuclear reactor at Hinckley Point in Somerset so long as the price (i.e. subsidy) is right. If a Scottish government ever fancied doing a similar deal with EDF and their Chinese chums (although there’s no sign that they would) they’d be stopped. It just wouldn’t be allowed. All the shots would be called by Westminster and Whitehall.

Nor has Westminster confined itself to nuclear power. It has also reserved to itself control over Scotland’s dwindling number of coal, gas and oil-burning power stations. Section D1 of the schedule makes it clear that he `Generation, transmission, distribution and supply of electricity’ in Scotland is the business of London, not Edinburgh.

In fact, just about everything to do with energy has been excluded from Holyrood’s remit. Section D3 of the Schedule reserves Westminster’s powers over what little is left of Scotland’s coal-extraction industry, both deep mined and open cast. So when Algy Cluff’s company Cluff Natual Resources recently sought licenses to explore for coal under the Firth of Forth it wasn’t Holyrood he looked to but the UK’s Coal Authority in Nottingham. (The licenses were granted).

Naturally (or at least predictably) almost everything to do with `… the ownership of, exploration for and exploitation of oil and natural gas’ remains with Westminster. And that includes `offshore installations and pipelines… restrictions on navigation, fishing and other activities in connection with offshore activities… liquefaction of natural gas, and the conveyance, shipping and supply of gas through pipes.’ Her Majesty’s Government (of whatever stripe) is not about to allow the old nationalist slogan that `It’s Scotland’s Oil’ any traction. Holyrood will, however, be allowed to encourage `energy efficiency’ so long as they do not do it `by prohibition or regulation.’

And so on it goes. Among the areas over which Edinburgh will have no power are: defence, 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, consumer protection, postal services, road transport, the `Provision and regulation of railway services’, child support, war pensions. And, of course, the `Regulation of activities in outer space.’ We are to see no rockets blasting off from Cape Wrath carrying the Saltire into the distant reaches of the solar system.

Holyrood has little or no say over ships and shipping. Given that the coastline of Argyll alone is reputedly longer than the coast of France and that most of Europe’s fishing fleets haunt the waters off Scotland that is a seriously disabling `subhead’ of the act. Schedule Five lists the `hands off’ as everything to do with: coastguards, hovercraft. The carriage of goods by sea, the protection of wrecks, dangerous vessels, maritime security, the Merchant Shipping Act of 1995 or what it calls Navigational rights and freedoms.

A few of these `reserved’ powers have caused a stir. The fact that Holyrood will have no word over the control of broadcasting has not gone down well with Scotland’s political classes. Nor has Westminster’s decision to reserve the thorny issue of abortion to itself. Many Scottish catholics see that as a ploy to ensure that the (relatively) liberal UK legislation is never repealed. Some of Scotland’s scientists are none too happy with the fact that, in the land of Dolly the Sheep, all `Scientific procedures on live animals’ are also to be the business of London. The implication is clear: big important issues are not for Holyrood.

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. Why? Did Her Majesty’s Government fear that Holyrood would pay its judiciary so handsomely that there would be some kind of judicial `brain drain’ from the English bench? Or were they fretting that Holyrood would so parsimonious (Scots being what they are) that there might be a stampede of judges and sheriffs across the border in search of greener judicial pastures? No one is saying.

Not that the judiciary is the only profession which Westminster does not trust Holyrood to `regulate’. The civil service is another. Architects, too, remain under London’s wing along with doctors, nurses, midwives, health visitors, pharmacists, vets, dentists, opticians, osteopaths, chiropractors and, for some reason, auditors.

Unsurprisingly the sub rosa agents of the Security Service (MI5) and the Secret Intelligence Service (MI6) and the eavesdroppers of Government Communications Headquarters (GCHQ) remain Westminster’s men and women. Nor is it clear to whom they will apply if they want a warrant to bug our telephones or intercept our cyber-post. Will it be the Secretary of State for Scotland, usually – and rightly – regarded as London’s man in Scotland? Or will it be the First Minister? Or will it be neither? The Scotland Act does not say.

What I find odd about all this is that while Schedule Five of the Scotland Act of 1998 act has given Holyrood plenty of reasons to fret, grumble, complain and even rebel, very little of that has taken place over the past decade or so. It seems that the unionist parties who have ruled the Holyrood roost for most of the past fifteen years or so have been content to accept the restraints put on them by Westminster. The ties that bind have also been the rags that gag.