Grégoire Webber: On Independence for Scotland: An Overview Of Canadian Experience

Canadian constitutional experience with federal-provincial relations and a bill of rights has provided a point of comparison for the United Kingdom’s devolution measures and Human Rights Act. Today, with the question of Scotland’s independence animating constitutional debates, Canadian constitutional experience seems, once more, to offer a point of comparison. This post offers an overview of Canadian experience with the constitutional events surrounding the question of Quebec’s independence.

1 – Two referenda, two questions

The Parti Québécois (PQ) elected a majority of members to the Quebec National Assembly for the first time in 1976. Before the end of its first mandate, the PQ government orchestrated a referendum on Premier René Lévesque’s idea of ‘sovereignty association’. The following question was put to voters:

“The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad — in other words, sovereignty — and at the same time to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will only be implemented with popular approval through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?”

The ‘Yes’ and ‘No’ camps were lead, respectively, by Premier Lévesque and the Prime Minister of Canada, Pierre Elliott Trudeau, both Quebecers. On this occasion, the people of Quebec voted 59.6% against and 40.4% for giving the Government of Quebec a mandate to negotiate a new political settlement with the rest of Canada. Prime Minister Trudeau had promised that a ‘No’ vote would not be a vote for the status quo, but for a new constitutional settlement.

Despite losing the referendum, Premier Lévesque secured a second majority in 1981, setting the stage for another Trudeau-Lévesque faceoff during the constitutional negotiations. Trudeau’s promise of a new constitutional settlement was realised with the Canada Act 1982 (UK), the schedules to which contain Canada’s Constitution Act 1982. Of Canada’s ten provinces, only one opposed the new settlement: Quebec.

In 1987 and in 1992, attempts were made to renegotiate Canada’s constitution, this time with Quebec’s assent. Both failed. At the ensuing provincial general election, the PQ returned to power and, the following year, a second referendum was held on the following question:

“Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995?”

The June 1995 agreement was not between the Government of Canada and the Government of Quebec, but rather between political parties sharing the ends of the PQ. The results of this referendum were much closer: 50.6% voted against and 49.4% voted for the proposition in the question. The Prime Minister of Canada, Jean Chrétien, did not take the ‘No’ vote as a signal for renewed constitutional negotiations. A different strategy was adopted.

2 – Quebec Secession Reference (1998)

In 1996, the Government of Canada referred three questions to the Supreme Court of Canada, the constitutionally most important of which asked:

‘Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?’

In a unanimous opinion, the Court concluded that the secession of Quebec from Canada could lawfully come about only by way of a constitutional amendment. It prefaced its conclusion by outlining four ‘unwritten principles’ animating Canada’s constitutional arrangements: democracy, federalism, the rule of law, and protection of minorities and emphasised the interaction of the referendum result (democracy), the place of the other confederation partners (federalism), and lawfulness and content of ensuring negotiations (rule of law, protection of minorities).

For a referendum to ‘confer legitimacy on the efforts of the government of Quebec to initiate the Constitution’s amendment process in order to secede by constitutional means’, both the question and the result must be ‘clear’ and ‘free of ambiguity’ (para. 87). In the event of ‘a clear majority on a clear question in favour of secession’, there would arise ‘a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire’ (para. 88). The Court outlined that it would have ‘no supervisory role over the political aspects of constitutional negotiations’ and that what constitutes a clear majority on a clear question would be ‘subject only to political evaluation’ (para. 100).

3 – Clarity Act

The year following the Supreme Court’s opinion, the Government of Canada tabled and, in 2000, Parliament enacted An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, colloquially known as the Clarity Act.

In its preamble, the Act declares that the government of any province is ‘entitled to consult its population by referendum on any issue and is entitled to formulate the wording of its referendum question’. However, for a referendum to trigger a corresponding duty of constitutional negotiation on the Government of Canada, the Act outlines the conditions according to which the House of Commons will mandate the government to enter into such negotiations.

In s. 1, the Act requires the Commons to consider and, by resolution, ‘set out its determination on whether the [referendum] question is clear’. In its evaluation, the Commons ‘shall consider whether the question would result in a clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state’. Echoing the referendum questions of 1980 and 1995, s. 1(4) of the Act specifies further:

 “a clear expression of the will of the population of a province that the province cease to be part of Canada could not result from

(a) a referendum question that merely focuses on a mandate to negotiate without soliciting a direct expression of the will of the population of that province on whether the province should cease to be part of Canada; or

(b) a referendum question that envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada.

 If the Commons resolves that the question is not clear, the ‘Government of Canada shall not enter into negotiations.”

In s. 2, the Act provides that if the House of Commons has resolved that a referendum question is clear, it shall ‘consider and, by resolution, set out its determination on whether, in the circumstances, there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada’. To this end, the Commons must take into account ‘the size of the majority of valid votes cast in favour of the secessionist option’ and ‘the percentage of eligible voters voting in the referendum’. Unless the Commons resolves that ‘there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada’, the Government of Canada ‘shall not enter into negotiations’.

The Quebec National Assembly responded to the Clarity Act within days of its enactment. The Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec state affirms, in its preamble, that the Clarity Act ‘call[s] into question the legitimacy, integrity and efficient operation of [Quebec’s] national democratic institutions’ and, in turn, affirms, at ss. 2 and 3, that the Québec people ‘has the inalienable right to freely decide the political regime and legal status of Québec’ and, ‘acting through its own political institutions, shall determine alone the mode of exercise of its right to choose the political regime and legal status of Québec’. It specifies, at s. 4, that the ‘winning option’ in a referendum requires no more than ‘50% of the valid votes cast plus one’ and affirms, at s. 13, that ‘[n]o other parliament or government may reduce the powers, authority, sovereignty or legitimacy of the National Assembly, or impose constraint on the democratic will of the Québec people to determine its own future’.

4 – On Scotland

What might Canadian experience suggest for the question of Scotland’s independence? Doubtless, many in Westminster, Whitehall, and Holyrood have asked themselves the same question and come away with no settled answers, but perhaps with different pathways for asking certain questions, among them:

  • What might the referendum question reveal about the ambiguities over the ends sought? In Canada, the only unambiguous appeals to the secession of Quebec are to be found in the questions put to the Supreme Court of Canada and the wording of the Clarity Act. What might that suggest about the commitment of Quebec to Canada? In turn, what might the First Minister’s call to include ‘devo-max’ on the referendum ballot suggest about where (he thinks) the Scottish are willing to go?
  • What might the key words of the debate suggest about the future of Union-Scotland relations? In Quebec, the key word has been ‘sovereignty’; in Scotland, ‘independence’ appears to be the favoured term. Why might the SNP resist equating ‘independence’ with ‘separation’?
  • What is the role of the UK government and Parliament in evaluating the referendum question? Even if the question is ultimately for Scotland to set, what is lost in the absence of agreement from the Prime Minister and the Commons respecting the question(s) put to the Scottish?
  • What role might the courts, and ultimately, the UK Supreme Court play in evaluating the lawfulness of a referendum, its result, and the possibly ensuing negotiations? The Supreme Court of Canada’s opinion on the legality of secession clarified the presumptive, but not determinative place of a referendum and, also, the role of the courts in supervising the political process.
  • Which side in the referendum debate will be able to claim a mandate for change? Whilst a referendum (and those who promote it) puts an option for change to voters, those arguing against that option may promise change of a different kind, as Prime Minister Cameron now proposes.

These are but some of the pathways intimated by Canadian experience. Doubtless, the United Kingdom’s present experience will, in turn, suggest different reflections in Canada.

Grégoire Webber is Lecturer in Law at the London School of Economics and Political Science.