Tuesday, 31 May 2016

Constitutional Futures and Fudges

For some months now the focus of my PhD thesis has looked at the secession movements in Quebec, Catalonia and Scotland. I'm especially interested in how each of the Canadian, Spanish and British constitutional orders have gone about responding to desires both for a referendum on secession or independence, and what role the courts have in clarifying the parameters of and enforcing duties owed between the relevant parties in delivering referendums and in responding to their results.

I don't want to get too deep into the nuances of what I've been writing about, though that is for another time. I do think, however, it would be interesting and (I hope) useful to explain a couple of recent developments in the Quebec and Catalan disputes.

Canada and Quebec - Brief Context

Quebec's National Assembly drafted legislation for the holding of a referendum on secession from Canada in 1995, known as the Sovereignty Bill, which led to a razor-thin majority of voters supporting the province's continued place in Canada. There was a legal challenge made by a Canadian citizen to the competence of the provincial government to organise that referendum, in a case called Bertrand v Attorney General and the legislation was found to be unconstitutional, but the provincial judge declined to order the provincial government to cease and desist with holding the referendum pursuant to it. The federal government had been reluctant to get involved in that litigation, lest it be seen to be acting anti-democratically, a perception which could help the Quebecois secessionists' cause.

Nevertheless, in the aftermath of that referendum, the federal government referred a number of hypothetical questions to the Canadian Supreme Court. In the Reference Re Secession of Quebec, the Canadian Supreme Court concluded that there was no constitutional route, otherwise than the amendment procedures provided in the Canadian Constitution itself, by which Quebec could secede from Canada. This ruled-out "unilateral declaration of independence", a right asserted by the Parti Quebecois and Bloc Quebecois, as being potentially legal. This position is adopted either implicitly or explicitly by most country's constitutions, whether or not codified.

What was more controversial in that judgment was that it did say that, under the confluence of the core constitutional principles of Canada, including federalism, democracy, the rule of law and protection of minorities, there would be a "duty" on the part of the federal government to "enter negotiations" to "respond to" a clearly expressed desire to secede from Canada. In my current work, I have explored at length what the substance and effect of these duties would be, and how if at all they can be enforced (my conclusion is that, in reality, they can't). This section of the judgment was important, however, because it gave rise to two pieces of legislation in Canada: one federal; one provincial. Each represented what the federal government and the provincial government respectively believed would constitute a "clear majority" on a "clear question" expressing the desire to secede, and in each case spelled-out the implications of this.

The Legislation

Both pieces of legislation have their faults. The Clarity Act, for example, takes a very narrow interpretation of the Supreme Court's ruling and in many respects, despite its name, does not in fact provide "clarity" as to the circumstances in which Quebec may secede. It does not provide a definition of a "clear majority" and leaves that open to interpretation: for the House of Commons to decide, in the aftermath of the actual holding of a referendum. Canadian politicians have also been less than completely clear or honest as to what aspects of the Clarity Act affirm what the Supreme Court said, and what parts go beyond it, merely drawing their preferred constitutional inferences from it.

In the Macleans Election Debate, current Prime Minister Justin Trudeau claimed that the 9 Supreme Court justices said that a simple majority of support was not sufficient for Quebec to secede from Canada. The Supreme Court did not in fact state that even unanimity of the Quebecois was, in and of itself, enough to give rise to a right to secede, though the context in which they said the threshold imposed may be higher than a simple majority was in relation to this "duty to respond" and not with respect to a right to secede. They were merely saying that the Canadian government could constitutionally insist on a higher threshold; not that they should. Trudeau's position was therefore based on the Clarity Act itself, and was not itself a defence of it remaining in place as compared to an alternative piece of legislation, the like of which was proposed by Tom Mulcair's party the NDP.

However, the "mirror" law passed by the Quebec National Assembly, known as Bill 99, was equally contentious. It attempted explicitly to define a clear majority as 50% plus 1 of those who voted in a future referendum. It also made some pretty broad-brush rhetorical claims about sovereignty that went explicitly at odds with what the Supreme Court had said.

Catalan Parallels

Bill 99 has a lot of similarity with both the Declaration of Sovereignty and subsequent resolutions of the Catalan Parliament when it comes to proclaiming sovereignty and the right to secede. The critical difference, so far, has been that the Canadian federal government had been happy just to leave Bill 99 on the statute book, so as not to inflame tensions in Quebec, especially given there had been no imminent threat of another referendum. Parti Quebecois had weakened at a provincial level and Bloc Quebecois had lost many of its seats in the Canadian House of Commons, first to NDP candidates and then to the resurgent Liberal Party.

In Catalonia, the Spanish Government has been unrelenting in its determination to prevent the holding of a constitutional referendum. They believe that, as the Spanish Constitution states sovereignty rests in the Spanish nation, any plebiscite should take place throughout Spain and not in Catalonia alone on the question of secession. It is also arguably the case that for a referendum only of Catalans to be held, the Spanish Constitutional amendment procedure would itself require a referendum of the whole of Spain. On no fewer than five occasions has the Tribunal Constitucional declared aspects of the secession project to be illegal, and Artur Mas, former Catalan President, was impeached for his role in holding the "non-referendum popular consultation" in November 2014. The Catalan situation has reached something of an impasse, not helped by the inconclusive nature both of the most recent Catalan and Spanish elections.

Bill 99

Despite having left Bill 99 alone, probably hoping it would remain hypothetical and that its inconsistencies with the Clarity Act and the Constitution would never really matter, the federal government could not prevent private litigants from challenging it. In a similar vein to the way that Guy Bertrand had challenged the Sovereignty Bill back in 1995, an English language-rights party in Quebec, the Equality Party, had sought standing to challenge its provisions as unconstitutional. In 2007 the Quebec Court of Appeal granted permission for this challenge to take place, but the litigation had been incredibly slow.

In 2013, then Canadian Prime Minister Stephen Harper asked his Attorney General to intervene in that case and make direct representations as to the legality of Bill 99. There is an excellent piece by Paul Wells, formerly of Macleans, which shows the nature of the challenge and explains some of the context behind it. Progress in this case has been slow, but having contacted Mark Walters, prominent Canadian public law academic who wrote a seminal piece some years ago on the Secession Reference, I understand that this case will be heard by the Quebec Superior Court some time in September this year. As an aside, Mark is currently a Professor at Queen's University in Kingston, but will shortly be taking up the FR Scott Chair at McGill. His help on the Canadian aspects of my thesis has been hugely appreciated.

Why should we care?

The implications of Bill 99 potentially being struck down are significant, as it may agitate Quebecois secessionists, contrary to the wishes of the ardently pro-federalist Liberal government, which continued with the case initiated by Harper's Conservatives. I was prompted to draw attention to these ongoing developments in light of an article I saw in the Canadian media this afternoon. Le Devoir, a French language news outlet, has drawn attention to the calls of a number of Parti Quebecois representatives for the holding of another referendum to try to "break the liberal monopoly and resolve the national question once and for all". The PQ deputies want Quebec to be given a choice between independence and a "new" federal settlement.

The Canadian Supreme Court, Clarity Act and Bill 99 were not just concerned with what constituted a clear majority in favour of secession. They were also anxious that any referendum should ask a question "free from ambiguity". The inclusion of a "new federalism" settlement would very obviously fall foul of the Clarity Act and at least arguably would be unconstitutional in the terms described by the Supreme Court in the Secession Reference. The problem with these proposals, just as with the undefined "sovereignty association" suggestion in the 1995 Quebec referendum, is that they can both skew the result on the principal question and entail their own aspects of constitutional unfairness.

Unless voters are completely clear about what the "developed" or "new" alternative to secession or the status quo is, and what major specific changes it makes to the existing settlement they are being asked to provide a mandate that is simultaneously all things to all people and nothing to anyone. There is also a really basic principle of democracy which is an obstacle in these situations. It's quite right or at least a strong case to argue that democracy can be invoked to decide whether a people want to be part of a club or association of nations or states that make decisions about how they govern themselves. It is quite another to say that a state, nation or country, having decided to be a member of such an association, can then unilaterally set their own terms of membership or impose a broader set of rules for governance that affect all of the other parts of that state. The comparisons to the European Union referendum the UK is currently engaged in is an important one here: trying to set the rules of the game at the same time as trying to play the game to find a winner, in the constitutional context, is messy.

The Scottish Dimension

These developments produce an interesting parallel for Scottish observers, because in the first and second SNP administrations at Holyrood, minority then majority, the prospect of a "two-question" referendum was heavily mooted. I argued at the time that my own political party, the Scottish Liberal Democrats, should have worked with the SNP to develop a "third way". I wanted them very clearly to spell-out an alternative basket of powers and responsibilities Holyrood should have and then to use a political mandate from a referendum to try to encourage the rest of the UK to move towards a more overtly federal structure. Such an approach clearly does come with risks, and if done recklessly could be considered to be constitutionally improper.

But if referendums are to become the principal method by which constitutional change is demanded (the new "gold standard" if you will) constitutional orders need to find ways simultaneously both to make secession disputes much more constitutionally clear-cut, and also to find ways of making internal constitutional reform more flexible and responsive to the structural challenges secessionist movements pose.

Hopefully I'll have a working solution for you before my stipend runs out!

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