It does not happen every day: the Supreme Court of the United Kingdom citing a judgment of the Supreme Court of Canada. On the question of the sovereignty of Quebec, in addition.
But, unfortunately for Scottish separatists, the UK high court forgot to read the judgment in full. And she would have discovered there an opinion much more nuanced than the one she has just expressed.
In this rather short decision (34 pages) announced on Wednesday, the Supreme Court of London closes the door to a new referendum on the independence of Scotland, unless a prior agreement with London is reached. An agreement as much on the question as on the possible answer of the British government in the event of a yes, as was the case in 2014.
Quoting the Supreme Court of Canada, she says that Scotland — like Quebec — does not have the right to a unilateral declaration of independence since it is not a colonized or oppressed people and it would not have no government that allows them to pursue its development goals.
End of judgment, the door is locked unless there is an agreement with the government in London – where no less than four consecutive prime ministers have refused, believing that a referendum must be an exceptional event which can only be held once times per generation.
Where Scottish sovereignists must envy Quebeckers is in the rest of the Supreme Court of Canada’s decision on sovereignty in 1998. The one that the British judges chose to ignore.
In the Reference re Secession of Quebec, it is true that their Canadian colleagues had said that a unilateral declaration of secession by Quebec would be illegal. But they added that there was also a principle just as important as strict legality: democracy.
A referendum — with “a clear answer to a clear question” — cannot simply be ignored by other Canadian partners. This therefore requires constitutional negotiations. We don’t guarantee the results, but it forces everyone to talk to each other.
Scottish separatists, who would like to hold a new referendum, would no doubt love to have been told the same thing. They believe that Brexit has been a game-changer since the Scots are very supportive of the European Union and would like to return to it. That said, the polls still say the No would win if a referendum were held now.
But let’s go back to the decision of the Supreme Court of Canada in 1998. We have to go back to the time, shortly after the 1995 referendum, when the Chrétien government put forward “Plan B”. The tough approach to prevent another Quebec referendum. With the Clarity Act and a referral to the Supreme Court on the belief that another referendum would be illegal.
Coming out of court, government officials, led by Minister Stéphane Dion, claimed that it was a victory all down the line for the federalists. It wasn’t until later in the day, when they took the time to read the judgment — a voluminous document broken down into 156 tightly packed paragraphs — that they discovered that it wasn’t that simple. .
In fact, the Supreme Court had just removed one of the main arguments of the federalists, namely that after a winning referendum for the sovereignists, Canada had only to ignore the result.
In 1980, during the first referendum, Prime Minister Pierre Trudeau even said that it would be exactly as if “Cuba or Haiti” had held a referendum to join Canada, which was not obliged to discuss it.
This argument had been important in the debate and the Chretien government — like the British government today — wanted to establish that the referendum would be received as having no value.
“The existing Canadian constitutional order could not remain indifferent to the clear expression, by a clear majority of Quebecers, of their desire to no longer be part of Canada,” the Supreme Court had affirmed.
Once again, the Scottish separatists can only dream of such an opening of their courts.
But since the roads are rarely one-way in politics, Quebec sovereignists should take note of the 2014 political agreement in Scotland.
The question was direct and its formulation had been accepted by both the Parliaments of London and Edinburgh: “Should Scotland be an independent country? »
Similarly, the required majority had been established in advance: an absolute majority, 50% of the votes cast plus one. The British government accepted this result in advance.
It would be an interesting and desirable step if there were to be a third referendum on Quebec sovereignty. This would remove much of the uncertainty that might follow a positive outcome.
And, in addition to the exchange of good practices between Scotland and Quebec, the spirit of the Supreme Court of Canada decision could certainly be invoked in support of such an approach.