A Scottish independence referendum and a UK ‘clarity act’

Last Friday, Hamish Macdonell suggested in a story in the Independent (available here) that the UK Government was considering a ‘clarity act’ in relation to a Scottish independence referendum. This is part of the ‘will UK take charge of the referendum or not?’ rumour mill that has been running for some weeks, stoked by some at Westminster.  (A contradictory view to Macdonell’s can be found in this story from last Friday’s Herald.)

What’s novel about Macdonell’s story is that it is the first time I’ve heard such a suggestion reported in public, though it would be astounding if it weren’t the case.  After all, the summer months saw visits to Ottawa by Gus O’Donnell, in June, and by David Cameron, in September.  It’s very hard to believe that they wouldn’t discuss parallels between Scotland and Quebec with federal government officials and ministers while they were in town.  If they did, the Clarity Act will have been top of the list. The Canadian federal government remains very proud of the Act, which was the last move in time in the last wave of ‘mega-constitutional’ politics, and they see it as having pretty much definitively nailed down the lid of Quebec separatism.  Many other features of the UK Government’s constitutional strategy come straight out of the Canadian federal playbook as well.  The hard line about asserting the integrity of the Union, the effect of withdrawing UK functions and contracts, the pointing-out of difficulties with the SNP’s plans for obtaining independence and the sort of a country an independent Scotland would be, the demands that the SNP set out its plans much more clearly: these are all established techniques used by the federal government there.

This is rather a long post.  In it I discuss the background to the Clarity Act, particularly the 1995 Quebec referendum and the Supreme Court of Canada’s 1998 opinion in the Reference re the Secession of Quebec.  I then turn to the impact of the Clarity Act itself, and conclude by considering what lessons the UK might learn from this.

What led to the Clarity Act: the 1995 referendum and the Supreme Court’s opinion on the secession of Quebec

The Clarity Act was passed by the Parliament of Canada in 2000.  (It’s available here, and the Wikipedia entry here has a good discussion.)  It’s worth setting out briefly the sequence of events that led to the Act.

In the late 1980s and early 1990s, there were two sustained efforts at large-scale reform of the Canadian constitution, which produced agreements at known as the Meech Lake and Charlottetown accords.  These initiatives took place while the Progressive Conservatives, led by Brian Mulroney, were in government in Ottawa.  In 1993, the PC government fell and was replaced by the Liberals, led by Jean Chrétien.  A year later, the Parti Québécois (PQ) won the Quebec election, and launched a campaign that led to a referendum on Quebec’s constitutional position which was held on 30 October 1995.  The question put to voters was confusing, to say the least: in its official English version, it was

Do you agree that Québec 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 Québec and of the agreement signed on June 12, 1995?

The referendum was rejected, by the narrowest of margins – the ‘No’ majority was only just over 1 per cent of the vote.  The federal government’s response to this was an aggressive one, to assert the place of Quebec within Canada.  On the level of public engagement, this involved active promotion of the federal government in Quebec, which in turn led to the sponsorship scandal that has destroyed the federal Liberal Party.  On the constitutional and legal level, it led to the federal government referring to the Supreme Court of Canada questions about the ability of Quebec unilaterally to secede.  The Supreme Court’s opinion in the Quebec Secession Reference, (available here) was more ambivalent than the federal government had perhaps hoped.  To simplify greatly, the Court declared that Quebec had no unilateral right to secede from Canada under either Canadian or international law.  But it did have a right to hold a referendum, and if there were a clear vote in favour of that at a referendum and a clear question was posed in it, the federal government would be obliged to enter into independence negotiations which it would have to undertake in good faith.  (In other words, it would not be permissible for the federal government to go to the negotiating table but stall indefinitely, or go but refuse actually to discuss the terms of independence.)

One problem with the Supreme Court’s opinion was that it did not specify what a ‘clear majority’ in a referendum would be.  The Court appears to suggest that a 1 per cent margin was not enough, but that just raises the question of what would be.  This is obviously a crucial question, but hard to answer ahead of time.

The Clarity Act and its implications

The Clarity Act sought to up the ante on the issues identified by the Supreme Court.  It did this by putting the decision about whether there was a clear question and whether negotiations about independence should take place into the hands of the federal House of Commons (rather than leaving it to be resolved by the courts).  It turned this into a directly political issue.  The Clarity Act also required all discussions to be handled multilaterally, with all 10 provinces involved, not just a bilateral negotiation between the federal and Quebec governments, and to require settlement of issues involving the First Nations – so making those negotiations hugely more complex.

Quebec responded by passing in 2000 its own ‘Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State’ (available here), asserting its own right to self-determination in international law and – if the issue ever became germane – setting up some major disputes about the conflicts between the two pieces of legislation for the courts to resolve.

While the federal government felt that the Clarity Act was a necessary and effective piece of legislation, that view was far from universally shared, even among supporters of a united Canada.  It was opposed in Parliament by both the Progressive Conservatives (one of the forerunners of today’s Conservative Party of Canada) and the Bloc Québécois.  Many other commentators opposed it, including most of the academics I know who are interested in constitutional matters, several of whom have advised the federal government at various times.  Quebec opposition was broad and understandable, but there was opposition also from the federalist side.

The objections to the Clarity Act from federalists were because they considered it a highly provocative measure, and one that was fundamentally unnecessary.  The Supreme Court’s opinion had set out conditions for a referendum to satisfy, and rejected the claim to a unilateral right to secede.  Moreover, with the failure of the 1995 referendum, that aspect of the PQ’s strategy came to a natural end.  They might have lost by a hair, but they had lost, and set about a new tack, to create ‘winning conditions’ for a later referendum.  That was successful to only a limited extent, though; while the PQ won the 1998 elections, they lost in 2003 and have been out of government ever since.  In that respect, the Clarity Act did little to reduce the threat to the federation from the PQ – but it did raise a good many hackles in Quebec, given the failure of earlier efforts to secure a more comfortable place for Quebec within Canada.  It’s no accident that since then Quebec voters have largely chosen minority parties at federal elections – until 2011 the Bloc Québécois, latterly the New Democrats – and that the federal Liberals have seen their vote decline since then, especially since the sponsorship scandal became known.

(For those interested in Canada’s constitutional politics, the best place to start is Peter H. Russell’s magisterial Constitutional Odyssey: Can Canadians become a sovereign people?, first published in 1992 and reissued in an updated 3rd edition in 2004.  Details are here, and it can be ordered from the Book Depository here or Amazon here. My own 2002 Constitution Unit report on intergovernmental relations in Canada is here.)

Lessons for the UK

Without doubt, the current UK-Scottish constitutional debates are shrouded in an excessive degree of fog, and much greater clarity is badly needed.  The question is how to achieve that, in a way that acknowledges the burden an unwritten, political constitution imposes on the politicians who have to operate it. The freedom such a constitution gives politicians doesn’t mean they are free to manipulate it infinitely to their own advantage or convenience.  And, from a UK point of view, it’s worth being aware of the considerable hazards that would arise if it is seen to impose clarity.  London may have difficulty remembering the impact of the 1978 Cunningham amendment, but it doesn’t take very long talking about these matters in Scotland for it to come up, along with the bitterness it provokes that it cheated Scots out of the devolution which they supported then.

The first point is to bear in mind that Canada’s Clarity Act came at the end of a long constitutional process, not near its beginning (which is where we are).  Whether the Act was in fact effective in undermining calls for Quebec independence or not, its value derived from the earlier opinion of the Supreme Court of Canada.  There is no parallel to that in the UK case. 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.  I discussed HERE and HERE why that was such a dangerous idea.  Moreover, it would just weaken the position of the unionist parties in any referendum campaign, as the choice before voters would be independence versus limited, 1998-model devolution.  As I explained HERE, that’s a long way from where the voters are, so it’s politically unwise too.

As I’ve urged a number of times, the best way through this thicket is an order under section 30 of the Scotland Act 1998, ensuring that Holyrood has the power to call a referendum, but possibly specifying the time period and nature of the question or questions to be asked.  Such a referendum would then clearly be within Holyrood’s competence, ensuring that the UK Supreme Court was not put in the very difficult position of having to determine the issue, while also enabling Westminster to ensure that there was indeed a clear question put to the voters.

Clarity is a good thing.  But Westminster runs serious risks if it tries to impose clarity in a hurry – not only is that far from easy, but it’s also very likely to backfire politically.

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