On November 2nd, 2012, Le Devoir published a recent text of mine on the rules that should prevail when seeking secession in a democracy. I had to write this article in response to three jurists who asserted that the recent Edinburgh Agreement on the Scottish referendum gives Canada a lesson on democracy (http://www.ledevoir.com/politique/canada/362756/quand-le-royaume-uni-fait-la-lecon-au-canada).
My own assessment is that the Edinburgh Agreement espouses principles akin to those that underlie the Supreme Court of Canada’s opinion on secession and the Clarity Act that gives it effect.
You will find my text below. And as always, I will be pleased to read any comments you might have.
Enjoy your read!
When Secessionist Scots Give Quebec Secessionists a Lesson
Member of Parliament for Saint-Laurent – Cartierville
Contrary to Félix-Antoine Michaud’s, Marie-Andrée Plante’s and Patrick Taillon’s assertions (« Indépendance – Quand le Royaume-Uni fait la leçon au Canada », Le Devoir, October 31, 2012), the Edinburgh Agreement on a referendum on independence for Scotland is close to the principles underlying the Supreme Court’s opinion on Quebec’s secession and the Clarity Act that gives the opinion effect.
Signed on October 15, 2012 by British Prime Minister David Cameron and First Minister of Scotland Alex Salmon, the Edinburgh Agreement gives the Scottish government the right to legislate a referendum on independence. Here in Canada, the government of Quebec already has this right since all Canadian provinces have the power to hold referenda on the topics of their choice.
Per se, a referendum result does not grant a right to secede. But a clear expression of support for secession would compel the parties to enter into negotiations on secession. This is well accepted both in the United Kingdom and Canada. The Edinburgh Agreement aims to establish the clarity conditions that would justify undertaking negotiations on such a serious and crucial issue as the scission of the country.
According to the Edinburgh Agreement, the referendum will ask a single question on Scotland’s independence. The question will be determined by the Scottish Parliament but it must be “fair, easy to understand and capable of producing a result that is accepted and commands confidence”. Nowhere in the Agreement does the British government commit to accepting a question that, in its opinion, does not respect the clarity conditions that were agreed to.
The UK’s Electoral Commission – Elections Canada’s British counterpart – will hold consultations to evaluate the intelligibility of the question and will report its findings to the Scottish Parliament; the Scottish government will then have to respond to that report. It is easily understood that, were the Scottish government to reject the views of the Commission, the referendum process would be seriously jeopardized. That being said, the risk of disagreement is slight. The Scottish government has already expressed its preference for the following question: “Do you agree that Scotland should be an independent country?”.
The Supreme Court of Canada is of the opinion that in a referendum on secession, there should be no preset majority threshold: “(…) it will be for the political actors to determine what constitutes a clear majority on a clear question in the circumstances under which a future referendum may be taken.” Similarly, the Edinburgh Agreement abstains from setting in advance any majority threshold but states that the result must clearly express (« decisive expression ») the Scottish people’s opinion.
Whatever the result, the referendum will not, in and by itself, empower the Scottish government to declare independence unilaterally. Nothing in the Edinburgh Agreement grants it such right. Negotiations will have to take place first. The UK government has already raised, among a myriad other issues, the debt and petroleum resources. These difficult issues will have to be resolved prior to any constitutional change that takes Scotland out of the United Kingdom.
Thus are the constitutional rights of Scots respected: they will only lose their UK membership if they clearly want to. The Clarity Act grants Quebeckers the same guarantees.
However, there is a fundamental difference between the process agreed for Scotland and what we have in our country. Over there, the pro-independence government agreed to sit down with the government of the country to determine – together – a secession process that abides by the legal framework. Over here, the pro-independence government has always insisted – against all logic – that the federal government has no role to play.
Neither in the United Kingdom nor in Canada – in fact, in no democracy – would the government proceed with the country’s scission and abdicate its constitutional responsibilities toward a part of its population without having the assurance that this is what that population truly wants. The secessionist Scots understand that, thus showing a maturity and sense of responsibilities that our own secessionists, unfortunately, have yet to achieve.