Ailsa Henderson: Both sides draw hard line over secession bid

CANADA sought to give clarity but instead gave huge offence, says Ailsa Henderson. The English and Scots could learn from this incident

When Quebecers held referendums on sovereignty association in 1980 and sovereignty partnership in 1995, the Canadian federal government did not question the right of the Quebec National Assembly to hold or administer a referendum. Federal involvement before and during each campaign was largely limited to debating the substantive merits of sovereignty and federalism. The earlier campaign was a more positive one. The 1995 No campaign, influenced by the intervening 15 years of fraught, failed constitutional negotiations, was pessimistic, predominantly occupied by the dangers of sovereignty and uncertainty of partnership.

Differences of opinion are common in referendum campaigns and 1995 was no different. There was little agreement on the process by which debts and assets would be identified, or whether the borders of the province would remain as they were.

The 1995 Quebec Referendum Study highlights the markedly different understandings of sovereignty among Yes and No voters. On the issue of currency, most Yes voters (85 per cent) were convinced a sovereign Quebec would use the Canadian dollar, but just 43 per cent of No voters held similar views. More than half of Yes voters (55 per cent) believed a sovereign Quebec would continue to be protected by the Canadian army, but only one-third of No voters believed the same. One quarter of Yes voters believed a sovereign Quebec would still send MPs to Ottawa. Yes voters were consistently more likely than No voters to believe that a sovereign Quebec would retain ties to Canada.

So there were disagreements about what sovereignty would mean, and differences of opinion in terms of whether a Yes vote in 1995 would – or should – result in sovereignty or some form of economic and political partnership.

Part of this uncertainty stemmed from the phrasing of the 1995 question: “Do you agree that Quebec 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 Quebec and of the agreement signed on 12 June, 1995”.

Admittedly, it was a shorter question than in 1980, but arguably less clear. It refers to an agreement among the Parti Québécois, its sister party, Bloc Québécois, and the Action démocratique du Quebec (ADQ), which outlined their combined vision of the future, as well as referring to a Quebec National Assembly bill on the constitutional future of the province, which outlined specific details such as a preference for the continued use of the Canadian dollar in a sovereign Quebec.

The 1995 question refers to sovereignty as something that might be attained after an offer of partnership had been made. It was never very clear whether negotiations on partnership would be entered into or whether the offer of partnership would serve merely as notice for a later declaration of secession. Nor was it clear which of these two options Yes voters preferred.

When the 1995 survey asked referendum voters about constitutional preferences, 84 per cent of Yes voters were favourable to full independence but a similar proportion – 86 per cent – favoured giving more power to Quebec as well as the other provinces, or to giving special status for Quebec within a united Canada (84 per cent). The most popular option was the promised economic and political association with Canada (93 per cent).

Yet when the federal government warned it would not negotiate partnership following a Yes vote, 90 per cent of Yes voters did not believe the threat and a similar proportion believed a Yes vote would result not in secession, but in a new economic and political partnership.

It is worth noting that it was not the distinction between economic partnership and sovereignty that caused confusion, but the bundling by which failure at one might lead to another. A two-question referendum (one on sovereignty, one on partnership) or a three-option referendum (sovereignty, partnership, no change) could have eliminated confusion about what voters wanted when they voted Yes.

After the close result, it is perhaps no surprise that the federal government – and specifically minister of intergovernmental affairs, Quebecer Stéphane Dion – said they would not have recognised a Yes vote, would not have felt any obligation to negotiate, and that any attempt to separate unilaterally would have been in breach of Canadian and international law.

Seeking clarity on the issue, the federal government brought a secession reference to the Supreme Court of Canada, asking in 1996 whether there was anything in Canadian or international law that would allow a province to secede unilaterally, and whether Canadian or international law should be followed.

The Supreme Court ruled that there is nothing in Canadian or international law to allow a province to secede unilaterally. However, it said that, if in response to a clear question about secession a clear majority indicated support, both sides would be bound to negotiate terms of secession. Negotiations – not only a democratic vote showing majority support – must thus precede secession for it to be lawful.

While the Court deliberated, Dion began writing letters to Quebec premier Lucien Bouchard and the Quebec minister of intergovernmental affairs raising many of the issues highlighted by Prime Minister David Cameron and Michael Moore, the Scottish Secretary, last week. Such as: What is a clear question? What is a sufficient majority? Who will judge whether a question is clear? Admittedly it seems that the letters were designed less to solicit actual information or reach consensus but to sound a warning about future federal government involvement in any referendum campaign.

“There is no democratic country in the world where the government of a province … has been allowed to determine these procedures unilaterally,” Dion warned Bouchard.

The federal legislation in 2000 to give effect to the requirement for clarity – known as the Clarity Act – identifies the terms by which a province may secede from Canada. Any question referring to anything other than secession – particularly something referring to economic or political partnership, or seeking a mandate to negotiate change – would be deemed to be unclear.

Simple majority support (50 per cent plus one) would also be insufficient – but the Act fails to identify a “magic number”, stating only that the size of the majority and level of turnout would be taken into account. Any vote deemed in violation – or, ominously, deemed suspect according to “any other matters or circumstances it considers to be relevant” – would be invalid.

The Act further makes clear that the constitution at present does not allow for unilateral secession,. Secession must be preceded by a constitutional amendment, which must itself be preceded by negotiations including the other provinces and representatives of First Nations peoples.

The Act went down like a lead balloon among Parti Québécois and Bloc Québécois representatives. The Quebec National Assembly responded with its own legislation, affirming the distinctiveness of Quebecers as a people; their right to determine their own political status, economic, social and cultural development as well as to use their own political institutions to identify the means to fulfil that status and development. It affirms the territorial integrity of the province, the principle of simple majority support and states that no other parliament can constrain the democratic will of the Quebec people.

Battle lines drawn, the Act seems to suggest that any effort by the Canadian House of Commons to influence the administration of a future referendum, or failure to acknowledge its result, would end with yet another trip to the country’s Supreme Court.

• Ailsa Henderson is a senior lecturer in politics at the University of Edinburgh.