5 February 2021

Scotland should have a referendum – but with conditions

By

However much the SNP might like to claim otherwise, the independence of Scotland is not just Scotland’s business. It is also the business of the state which would be broken by it.

The Scots’ nation is Scotland, but they are citizens of the United Kingdom. The secession of one breaks the other: to strive to stop this is the responsibility of the state. The Government’s current favoured policy is to simply decline another referendum, but to forever forbid one is to descend to the position of Spain, imprisoning leaders of the Catalan independence movement for long stretches.

The right to secede is a rarity in the world, and should be retained – while asserting the right of the rest of the country to be represented in a decision which will materially affect them.

How to do this?

Perhaps we should look to Canada for some answers. Facing its own secessionist challenge at the end of the 20th century, it developed responses which should now interest the UK government  – whose own engagement with Scots secession has so far been less considered that was Canada’s, but whose present situation has close parallels with it.

Enter Dion

In 1995, a referendum on independence in the French-speaking province of Quebec scraped a victory for the NO side of the argument, with 50.58% of a provincial population of 8.45m. In the aftermath, the leaders of the Parti Quebecois, buoyed by their near victory, pressed for another referendum to get over the 50% line.

The Liberal federal government under prime minister Jean Chrétien – himself from Quebec  – appointed a political scientist named Stéphane Dion as Minister for Intergovernmental Affairs. A Quebec nationalist in his teens and early twenties, Dion had turned into a strong federalist, and published books and articles arguing the federalist case. Chrétien, in need of a French speaker who could argue the case against secession, found a safe seat for Dion and quickly gave him the hot potato of Quebec to hold, and cool.

Dion’s approach is a model both for British unionists and, if they would recognise it, Scots nationalists. In the year of his appointment, he posed three questions to the country’s supreme court: could the Quebec National Assembly legally declare and pursue independence? Does international law allow a unilateral declaration of independence by Quebec? Which assembly takes precedence in the result of a clash – the Quebecois or the Canadian governments?

The court ruled that while Quebec had the right to secede, it did not have the right to do so unilaterally, even though Canada, like the UK but unlike most other democracies, outlaws neither independence movements nor referendums.

The letter of the law

Dion engaged in an open and detailed argument with the PQ leadership, writing two letters to Lucien Bouchard, the PQ leader (1997-2001); and one to Jacques Brassard, the Quebecois Minister for Canadian Affairs. Their theme was the need to respect Canadian and international law – coupled with a warm endorsement of a Canada in which Quebec and the Quebecers had thrived, and had contributed largely to the country’s success as one of the most multicultural states in the world.

His main point to both ministers was the need for clarity. Canada, and its supreme court, accepted the right of secession – “highly unusual” as he wrote in his first letter to Bouchard, “in the international community”: but the Court specified that the question put in a referendum had to be unambiguously clear; that a unilateral declaration of independence had no legal force; and that a narrow vote taken as a basis for independence would open up endless conflict:

“It is customary for a democracy to require a consensus for serious, virtually irreversible changes that deeply affect not only our lives but those of future generations…it would be too dangerous to attempt such an operation (as secession) on the basis a narrow, ‘soft’ majority, as it is commonly called, which could evaporate in the face of difficulties”.

In his letter to Brassard, Dion’s questions were more urgent and pointed:

“What does your talk of ‘effective control’ mean? How would you exercise such control following a unilateral declaration of independence which was not accepted by the government of Canada…what would you do faced with the many citizens who would claim their right not to lose Canada on the basis of such a procedure? A break-up of the country could only occur after Quebecers had very clearly expressed their desire to renounce Canada and after the conditions of secession had been established”.

In his last letter, the second to Bouchard, he was at his most categorical. In the (‘unfortunate’) case that Quebecers had voted in large numbers for secession, the vote would not automatically be followed by acceptance on the part of the federal government, but by negotiations, which would include judgements on whether or not the question asked was clear.

“You will appreciate that the federal government, among others, cannot surrender its responsibility to evaluate the clarity of a question which could result in the break-up of the country…. (the obligation to negotiate secession) itself depends on clear support for secession, respect for the constitutional framework and a good deal of mutual good faith…the time for stratagems and ‘winning tricks’ is over. Instead of concocting the question that will snatch a few thousand more votes, do your job. Explain to Quebecers why we would be happier if we were no longer Canadians as well” (my italics).

Dion’s insistence on clarity was reflected in law: the Canadian Clarity Act was passed in 2000. It had been preceded, in October 1999, by a conference on federalism, where, on the first day, speakers including Bouchard excoriated the federal government’s interference in what they believed should be a Quebec-only affair. They were supported by George Reid, an SNP MSP who became presiding officer of the Scottish Parliament in 2003. Reid, repeating his party’s orthodoxy, told the conference that 50% +1 should be enough for secession: he was feted by the PQ ministers present. The star turn, however, was Bill Clinton, who spoke strongly against secession, emphasising, in Dion’s vein, the seriousness of the decision and the myriad of questions a successful separation from the larger state would pose.

The Clarity Act reserves for the federal government the decision on the clarity or otherwise of a question put to citizens in a referendum, and to cancel the result of the referendum if it was decided that its conduct breached any part of the Act. It lays down that the question must only be one for or against secession and that a consensus – not closely defined – must be achieved before negotiations on secession begin.

This does two main things: it seeks to avoid the would-be independent state starting life with a deeply split population, and it recognises that the nation state as a whole has a right to take part in the decision. The law is vague in some respects: but, since the pressure for secession in Quebec has greatly diminished – latest polls show support for Quebec’s independence at around a third – and was dropping soon after the referendum failed, it’s unlikely to be tested soon.

A UK Clarity Act

A law of that kind is needed in the UK. It is arguable that, where a vote for the non-status quo is a momentous one, the majority should be at least 60%. That would speak, if attained, to a public serious about, even passionate for change. It would be combined with a commitment to consult and debate, in Parliament and elsewhere, on the issue where the majority for change is over 50%: but 60%, at least, would remain the necessary threshold for transition to a radically different state of affairs.

Even then, a period should elapse before an agreement is made between representatives of the two sides of the referendum. And I would add a commitment by the UK government to publish an analysis – as neutral and as well founded as possible, perhaps with the involvement of non-British economists and other experts – laying out the advantages and disadvantages of secession. If the desire for separate statehood is widespread and intense, risks and hardships would take second place. But they should be made clear. Perhaps Stéphane Dion, now Canadian ambassador to Germany, could advise.

The insouciance with which David Cameron agreed with everything Alex Salmond wanted for the 2014 referendum – and the luck he had that No won – cannot be repeated. The other parts of the UK, England above all, must show it wishes to keep the union – if it does (if not, the argument is over). A settled, deeply considered, rationally based will of the Scots people must be evident, before they take a decision as momentous as to leave. Such a reflection whatever the outcome, would benefit us all.

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John Lloyd is a Contributing Editor to the Financial Times, ex-editor of The New Statesman and a co-founder of the Reuters Institute for the Study of Journalism at the University of Oxford.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.