Referendum – legal matters and the relevance of Quebec and Canada

What I try to do in my blog is discuss issues relating to Scotland’s governance and Scotland’s independence from the standpoint of an ordinary voter, addressing myself to other ordinary voters in as straightforward a language as I can manage. I fail in this objective regularly, usually because I am reluctant to over-simplify, and often because my own understanding of complex issues is imperfect.

Wherever possible, I try to refer readers who want more complex analysis on certain issues to sources that are more informative and better qualified to offer analysis than I am.

One such issue is the relevance of Quebec’s struggle to gain its independence from Canada, a struggle that has many points of relevance to Scotland’s present position within the UK.

I am indebted to Barontorc, a regular contributor to the comments section of my blog for drawing my attention to Alan Trench’s writings. What Alan says about himself is on his blog Devolution Matters , and from my initial reading of his work I believe that he is a very important voice and source of independent - and highly expert - comment on matters that are of vital relevance to Scotland.

I would suggest that his blog is a must-read for nationalists, and indeed for unionists who care about an objective debate.

Here are what I consider some essential facts about Quebec, its referendum, Canada and the Scottish/UK parallels, with quotes from Alan Trench, with the intention of pointing my readers towards his vital extended observations and arguments. Devolution Matters

BRIEF CALENDAR OF EVENTS

The Progressive Conservative Party of Canada, a centre right party with roots going back to 1867, were the government of Canada from 1984 to 1993, when they lost out to the Liberals, who replaced them in government.

In 1994 the Parti Québécois (PQ) won the election in the province of Quebec, the largest province of Canada by area and the second largest administrative division. Since they are a party advocating the independence of Quebec, this had similar repercussion to the SNP winning the May 2011 elections in Scotland.

They launched a campaign that led to a referendum in 1995, with a badly-worded and confusing question, which produced a very narrow No (just over 1%) to independence.

The federal government promptly launched an aggressive programme to promote the idea of the federal government in Quebec (roughly equivalent to the UK government promoting the UK in Scotland) which led to a major political scandal, Sponsorgate, that eventually brought down the Liberal Government, who were replaced by a Conservative minority government in 2006.

However in the period between the referendum and the fall of the Liberal Government – 1995-2006 – a number of interesting things happened in the legal and constitutional areas.

The federal government mounted a challenge through the Supreme Court to the Quebec Government’s right to unilaterally secede from Canada, but they didn’t get the result they had hoped for.

The Supreme Court held that -

Quebec did not have a unilateral right to secede from Canada, either under Canadian or international law.

It did have a right to hold a referendum

Providing a clear question had been put in the referendum and providing it produced a clear vote in favour of independence, the federal government would be compelled to enter into independence negotiations which it would have to undertake in good faith, i.e. no stalling, or attendance at the negotiating table but with a refusal to discuss the terms of independence..

This left hanging the question of what constituted a clear majority. (It seemed that the Supreme Court thought that 1% was not enough, but no figure was recommended or specified.)

The Canadian Government responded to the Supreme Court judgement by introducing a bill – Bill C-20 – which was enacted as The Clarity Act in 2000, defining the conditions under which it would enter into negotiations on the independence of Quebec. Effectively, it put this decision in the hands of government, rather than the courts, and this politicised the issue. What infuriated the Quebec independence party and most Quebecers was the requirement that all ten provinces of Canada be involved multilaterally in the negotiations. (Roughly equivalent to the argument that all four parts of the UK be involved in negotiations on Scotland’s independence.)

Quebec promptly responded by passing its own Act, asserting the sovereignty of the Quebec people to assert their right to self-determination under international law, and arguing that any dispute that arose between the Clarity  Act and the Quebec one should be resolved by the courts.

Alan Trench, in his blog Devolution Matters comments trenchantly as follow -

“What in a Canadian context looked like a rather aggressive and partisan move would look ten times as much so in a UK context. And that in turn would invite the SNP to question the outcome of any referendum if they wished. Far from bringing ‘clarity’, it would risk bringing yet further confusion and rancour to the debate.

“The second issue is to ask at what stage a ‘clarity provision’ should be included. There is clearly some pressure to include it in the Scotland bill. That sort of provocation would be a good way of ensuring that the Scotland bill did not get legislative consent from Holyrood, forcing the UK Government either to drop the bill or impose it regardless of the Scottish Parliament’s opposition.”

SUMMARY

The Canadian experience will have been closely studied by Alex Salmond and his key strategists, and we can rely on them to draw relevant inferences from it, while clearly recognising the key constitutional and historical differences and the limits of the parallels that can be drawn.

We can also rely on the fact the the UK Government under Cameron and Osborne - a shaky Coalition comprising a LibDem Party in a state of utter demoralisation and electoral irrelevance, and a deeply-divided and accident-prone Tory Party (Cameron has already lost Coulson and Liam Fox in scandalous circumstances and may lose Theresa May) that may not survive much longer – will be highly aware of  the Canadian experience and will inevitably draw all the wrong inferences from it, and be at least as cack-handed as the previous Canadian Conservative government was.

What is certain is that the Canadian experience will significantly shape our great debate over the next couple of years. Scotland could conceivably be dealing with a different UK Government in the lead-up to the referendum.