Who's afraid of the Supreme Court? Some nationalists are worried that judges might stomp all over Scotland's forthcoming independence referendum. The Conservative MP, David Mundell, suggested at the weekend that if the wording of the SNP's question wasn't clear the issue might be put before the UK Supreme Court – the very legal body that aroused the ire of the First Minister, Alex Salmond, for what he called its “aggressive” interventions in Scots law.
Well, in Canada, where I have been this week, the Supreme Court did indeed rule on the wording of the independence referendum in the French speaking province of Quebec in 1998. Not only that, in a landmark ruling that has become internationally recognised as a definitive statement on the rights of secession by disgruntled minorities, it ruled that there was no right at all in international or domestic law for one part of a state to leave unilaterally. And even if independence were to be agreed by the other parts of the state, there would have to be absolute clarity of what the independence question meant, and a substantial majority favour of independence, not just a simple majority. In other words, it isn't in the gift of a “regional” government to decide to break away without everyone else having a say in how it is done.
Mind you, this doesn't seem to have upset the Quebec nationalists very much. Their leader, the ebullient but embattled Pauline Marois told me this week that the Supreme Court is an irrelevance and that Quebec alone would decide when it was time to set up on its own. As for the referendum, “Fifty percent plus one was ok for the federalists to stop independence in 1995, and it is good enough for Quebec”. No 40% rule there then. She also rejected criticism that the 1995 referendum question was vague or ambiguous, even though many “Oui” voters apparently believed they were voting for a new federation with Canada rather than separation. There has been a wave of defections from the PQ over her claimed ambivalence over independence, but she seemed pretty clear to me.
Now, beware false comparisons: the UK has a very different constitutional set up from Canada. This is a federal system, with legally defined division of powers and a Canadian Supreme Court that really is supreme, in the sense that it is the guardian of the constitution. In Britain's unitary state we don't have a written constitution, and parliament is supposedly paramount in resolving constitutional issues. The UK Supreme Court's primary role is ensuring that UK law conforms to the European Convention on Human Rights.
But it would be naïve to expect that the UK Supreme Court would not get involved in the referendum process if there were serious doubts about its fairness, either to non-nationalist Scots or English unionists. The UK Supreme Court insists that it can and will intervene if the Scottish parliament is seen to be acting outwith its powers. It seems highly likely that constitutional contrarians will try to mount a legal challenge if they believe that the Scottish government tries to declare independence when it has no right so to do. Others might argue, as the Scottish Secretary, Michael Moore did recently, that there should be not one but two referendums before separation. The Scottish parliament, remember, doesn't even have the right to hold an independence referendum in the first place because the constitution is a reserved matter for Westminster. Holyrood can only stage an advisory referendum.
Now, sensibly, David Cameron has tried to avoid the referendum issue becoming a legal matter. The PM has said pretty clearly that whatever the formal powers of Holyrood, he accepts that the Scots have a right to hold a referendum, that there need only be one of them, and that the UK would not try to stop Scotland going it alone if there was clear support for independence. As anyone who has been through a divorce will tell you – even an amicable split can become a bitter and protracted battle once lawyers get involved. In Canada, they have also decided not to take up arms over judges ruling.
Indeed, the former PQ separatist Prime Minister, Lucien Bouchard, said that he welcomed the rulings because the judges had said that: “A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative in which all the other participants in Canada would have to recognise”. Which only confirms that constitutional judgements can mean whatever you want them to mean. Federalist opponents of separatism took a rather different view on the ruling, arguing that Quebec could only to it alone if the negotiations after the referendum were successful. If the other provinces didn't agreement, the Quebec government would not be able to go off on its own.
In the end, question is political rather than legal. The law can only take you so far in determining what is ultimately a question of political legitimacy. It seems only common sense that the independence movement should have a clear and unequivocal support from the people of the region that wishes to secede. This was a real issue in Quebec where a substantial anglophone minority didn't want to be part of a french speaking country. And where there were a number of aboriginal groups who also wanted to stay with Canada.
Pauline Marois gives this advice directly to the SNP “Don't hold a referendum unless you can be sure of winning it”. All sides agree that a premature ballot, and an indecisive result, could cause instability and further breakaways. It is the difference between the Czechoslovak “velvet divorce”, where both sides agreed to separate, and the Irish Partition, where a substantial northern minority opposed an independent Ireland and went to war to defend their right to remain British.
I'm rather glad that the UK Supreme Court has arisen as an issue, however prematurely, in Scotland. All sides, nationalist and unionist, would do well to start thinking about the issues now, if only to prevent acrimonious confusion later. And the 1998 judgement is a good place to start. Scotland is beginning a process of referendum-led politics that has dominated Canada for thirty five years, since the Parti Quebecoise landslide in 1976. Let's make sure we learn from their mistakes and successes.