From Alasdair Galloway:
Just in case anyone doesn’t know, there have been two referenda on whether Quebec should leave Canada, becoming an independent state. These were in
- 1980 when No won by 59.56 to 40.44%
- 1993 when the outcome was even closer – 49.42 Yes to 50.58 No
The history of this is a topic all by itself. What I want to explore here is how the Canadians reacted to their whisker thin success in 1993 and then subsequently some of their strategies during the referendum debate.
The most important reaction post the 1993 referendum was the Clarity Act. Its key points are
- Giving the Canadian Federal House of Commons the power to decide whether a proposed referendum question was considered clear before the public vote;
- Specifically stating that any question not solely referring to secession was to be considered unclear;
- Giving the House of Commons the power to determine whether or not a clear majority had expressed itself following any referendum vote, implying that some sort of supermajority is required for success;
- Stating that all provinces and the indigenous peoples were to be part of the negotiations;
- Allowing the House of Commons to override a referendum decision if it felt the referendum violated any of the tenets of the Clarity Act;
- The secession of a province of Canada would require an amendment to the Constitution of Canada.
Two of these – 4 and 6 – are clearly not relevant to the situation Scotland finds itself in as part of the UK, but the others, to varying degrees and in various ways most certainly are
- If this applied in the UK then in 2014 the form of the question posed then would have been a matter for David Cameron’s government. In fact, the form of the question proposed by the Scottish Government was changed by the Electoral Commission to little controversy. However, the Elections Bill going through the House of Commons at the moment will subject the Electoral Commission – supposedly the neutral referee in electoral disputes – to the power of whoever is in government, via a Strategy Paper to be delivered by the responsible minister (at the moment this is Michael Gove) that the Electoral Commission will be expected to follow.
- This would mean that questions such as “Do you agree Scotland should be an independent country” (SNP original 2014 formulation) and “Should Scotland be an independent country?’ (Yes/No)” would be ruled out. Instead, something like the Scotland in Union question – “Should Scotland remain in the United Kingdom or leave the United Kingdom?’ (Remain/Leave)” and indeed this could be hardened up – “Should Scotland remain as part of the United Kingdom or secede from the United Kingdom?” could be what we face at the ballot.
- Even once a Yes vote has been secured, it would be open to Westminster to determine whether or not the majority that had been achieved (let’s suppose we turned 2014 round so that it was 55% Yes) was a “clear majority”. It would be open to them to decide ex post facto that the majority should be 65%, or that 60% of the electorate should have voted as a minimum.
- If any of a UK version of the Clarity Act had been broken, then the referendum could be set aside. This would be wholly at the discretion of the House of Commons.
First question, would the UK pass this sort of legislation?
In fact, early signs of the above are already visible, including the incessant demands for a majority to be greater than the normal 50%+1. Levels vary, but I impressionistically, I would say that a supermajority of around 65% is their preferred level – though of course if support was known to be at or near that level, no doubt it would be increased. When challenged on the justification for this, many of them will point to what a bad idea Brexit was and yet it got through by not much more than 50%+1. There are though a number of replies to this
- The vote was acted on with relatively little controversy
- This is the UK tradition with regard to determining political matters. The only referendum where it was not employed – or not on its own – was the 1979 referendum for a Scottish Assembly. If it is to be changed then should there not be some sort of justification. Why is it different for Scotland? When this question is posed, typically unionists run away or talk about something else. According to a University College London report (How could a vote on the unification of Ireland play out? | Northern Ireland | The Guardian) “It would breach the agreement [BGFA] to require a higher threshold than 50% + 1,” – just not in Scotland. They do though point to the need for consent which is clearly critical.
Then there is the form of the question. It is claimed by unionists that the Electoral Commission don’t like questions with Yes/No answers, pointing to the use of Remain/Leave in the Brexit vote. However, the question proposed by the European Union Referendum Act was “Should the United Kingdom remain a member of the European Union?” Yes/No. The Commission’s view was that this “encouraged voters to consider one response more favourably than the other”. This could raise concerns about the legitimacy of the result of the referendum, and it was changed to the one used on the day. But to be clear, the issue was not Yes/No, but their concerns about the question as originally proposed.
Clearly therefore preparatory work is being done on numbers 1 and 2 , while 3 and 5 aren’t relevant till after a successful referendum (though in these circumstances, would a referendum be seen as worthwhile?).
But would Westminster actually do this? It seems clear that the laissez faire approach of David Cameron is unlikely to be forthcoming – though I suspect it was like this at the time as according to Blair McDougall, support for Yes at that time was about 28% so it would be a walk in the park. At the moment all the talk is of just saying No, there wont be a referendum, get on with the day job. However even the Tories must be clever enough to know that this wont work forever. A Clarity Act must then become attractive (if not sooner) and its not like they are not being encouraged down this road.
In “The need for a UK Secession Clarity Act”, Jamie Blackett, “The Deputy Leader of the Alliance for Unity makes a case for clarity”. They require
- Noting that independence supporting parties have never achieved 50% of the vote in General Elections (though ignoring that electing an MP isn’t the same as voting in a General Election), an electoral mandate has never been defined. Therefore once again we see Scottish exclusivity – Boris Johnson took the UK out of the EU on the basis of 45% of the vote giving him a majority of 80. Perhaps we should look for the mandate that Thatcher referred to – a majority of Scottish MPs?
- That the electorate should include Scots living outwith Scotland, though no attempt is made, beyond referring to the author’s children, to define just what a “Scot” is
- That the question should reflect the “seriousness” of the issue, that the previous question didn’t do this and should be replaced by “whether they wish to leave or remain in the United Kingdom” – ie the Scotland in Union formulation
- there should be a clearly defined minimum requirements for the not just the threshold – historically low compared to similar referenda “around the world” (ie just not in the UK) – and the turnout, which sound rather like the 1978 Cunningham amendment
- I will just quote this and leave it here “whether Scotland should be treated as one homogeneous entity – as it was at the time of the Union – or allowed to vote regionally. A second confirmatory vote would give Unionist Orkney, Shetland, Dumfries and Galloway and Borders and perhaps other areas, all of which are now actively discussing separation from Scotland, the opportunity to opt back into the United Kingdom”. However, it is worth knowing that the author does refer to those parts of Scotland which might be against independence being “dragged out of the Union against their will”, and that Scotland seldom gets the government it votes for because of the dominance of the Central Belt. Clearly irony is not one of Mr Blackett’s strongest qualities!
- To make clear that Scotland would not be allowed out of the Union without committing to a share of the National Debt to be determined in advance – presumably by the House of Commons?
- “Trading arrangements must be clearly laid down” before independence, and presumably before Scotland might or might not have applied to the EU for membership, which probably would change quite a lot.
- There should be provision for when another referendum could be called if independence has not been supported in the last one.
Now it might be argued that this guy is something of an extremist, even in the Unionist camp (he seems to have little time for Ruth Davidson and Douglas Ross who he regards as not sound enough in defending their country) but I think he does set out many of the ideas the Unionist camp have been working on.
For me there are two take-home points for this. It is very unlikely that delivering a letter to the PM (whoever that might be) asking for a referendum is going to work. Either they will just carry on saying no, or they will dig out their copy of the Canada Playbook and work out how to make the process not just as difficult but as crooked as possible.
In that event, and this is the second point, we need to start working on ways to independence that perhaps don’t include a referendum (though perhaps some other form of democratic event as Joanna Cherry pointed out was necessary) if that simply is made impossible by our government at Westminster.