David Steel: Less may be more on the independence referendum – Scotland can learn from the Canadian experience

Let’s get one thing clear, Holyrood and Westminster must get their act together before calling a vote on the future of the Union

ON THE day I took office as Presiding Officer of the new Scottish Parliament, the very first of many overseas visitors in through my door was a delegation from the Parti Quebecois in Canada.

They were then the governing party in the province of Quebec and argued for total independence from Canada. They had come to see for themselves this new constitutional development in the UK.

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On a recent visit to Toronto University, I was instructed on what had happened to them. In 1980 they held a referendum asking for a “mandate to negotiate” independence from Canada. The question on the ballot paper ran to six lines; it was defeated by 60 per cent to 40 per cent.

They held a second referendum in 1995, this time asking to “become sovereign” after offering a new “political and economic partnership” to Canada. This time the question ran to just three lines. It was narrowly defeated by 51 per cent to 49 per cent.

So alarmed was the Canadian government by this narrow rejection of something so vague, that they referred the whole question of “secession” to their supreme court for an opinion on the legitimacy of moves by any province to leave the federation. The Court responded with a judgment running to 30 pages, but summarised in two sentences:

The Supreme Court of Canada concluded that the National Assembly, legislature or government of Quebec do not have, either under Canadian law or international law, the right to effect the secession of Quebec from Canada unilaterally.

However, the court also emphasised that the rest of Canada would have a political obligation to negotiate Quebec’s separation if a clear majority of that province’s population voted in favour of it.

That in itself begged a number of questions – what, for example is “a clear majority”? – a question only too familiar to those of is involved in the ill-fated 1979 Scottish assembly referendum in Scotland. The judgment said that the result of any referendum must be free of ambiguity both in terms of the question asked and in terms of the support it achieves.

So the Canadian government introduced “an act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court”. Called the Clarity Act, it was passed in 2000 and empowered the Canadian House of Commons within 30 days of a province issuing its proposed question, to consider whether the question is clear.

IT SPECIFIES that such a question cannot “merely focus on a mandate to negotiate without soliciting a direct expression of the will to cease to be part of Canada”, nor can it include “other possibilities such as economic or political arrangements with Canada that obscure a direct expression of the will”.

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It went on to state that in considering whether there had been a clear expression of will by a clear majority of the population, the House should take into account both the size of the majority and the percentage turnout – neither actually specified. Nor has that act ever been put to the test because there has not been a third referendum. It is however worth quoting from the detail of the Supreme Court opinion:

“Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change. This right implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order. A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in confederation would have to recognise”.

That is where we come back to Scotland. We do not have Canada’s tidy federal structure, but the principles outlined above apply just as accurately. Indeed two constitutional experts have in recent weeks warned against the danger of a unilateral referendum being struck down in our own courts and ending as just an expensive opinion poll.

Few surely doubt that following the SNP majority they are justified in demanding a referendum on independence, and that it is sensible that we should have one. What is not sensible is to ignore the fact that only Westminster has the legal authority to hold a binding one, and that a unilateral decision by the Scottish government on what to ask, when to ask it and by whom it should be administered will lack credibility. Equally one dictated from Westminster would be regarded as unacceptable.

Therefore the only hope is that in line with the Canadian principles the UK and Scottish governments will “engage in discussions”, come to a mature decision and spare us another three years of fruitless speculation.

• Lord Steel of Aikwood is a Liberal Democrat peer and former Presiding Officer of the Scottish parliament