Debate on the issue of independence for Scotland has heated up again this past week in the United Kingdom.
On Tuesday (10 January), the Government launched its consultation on “facilitating a legal, fair and decisive referendum on whether Scotland should leave the United Kingdom”, which you can download here.
The “legal” bit seems to be the crux of the matter here. I am not a constitutional expert by any stretch of the imagination, and so I won’t attempt to weigh in with my own opinion on the matter; rather, I will share with you what others far more knowledgeable than I have to say.
To summarize, the issue appears whether the Scottish Parliament can legally deliver its manifesto commitment to hold a referendum. According to the UK Government:
The Scottish Parliament only has power to legislate on matters that are devolved and has no power to legislate on matters that are reserved to the UK Parliament. The Union of the Kingdoms of Scotland and England is one of those reserved matters. In our view legislation for a referendum brought forward by the Scottish Government would likely be challenged in court and the Scottish Government would lose.
This will sound somewhat familiar to many Canadians. Just as Canada’s Constitution Act, 1867, set out the powers of the Parliament of Canada and those of Provincial legislatures (sections 91 and 92), the Scotland Act 1998 contains a list of matters that are within the jurisdiction of the Scottish Parliament, i.e. not reserved. That is essentially the power to make laws in relation to matters of health, education , transport, policing and justice. All other matters are reserved, to the UK Parliament, including the Union of the Kingdoms of Scotland and England. Canada has this as well – the Constitution stipulates that residuary powers are the jurisdiction of the Parliament of Canada:
The Constitution Acts, 1867 to 1982, s. 91, confer on the Federal Parliament the power ” to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces“. This power is “residuary” in the sense that any matter that does not come within the power of provincial legislatures comes within the power of the federal Parliament. This residuary power ensures that every area of legislation comes under one or both of Canada’s two orders of government.
Since, in the opinion of the UK Government, any unilateral move towards a referendum by Scotland would be illegal, the Government is proposing passing legislation that would give the Scottish Parliament the power to deliver a referendum, but with a few strings attached – the question would have to be a straightforward simple question asking Scots if they want Scotland to be independent, yes or no, and the referendum would have to take place within eighteen months of the bill’s passing.
This isn’t what the Scottish Nationalist Party is proposing. The SNP also originally stated that the referendum would be held around 2015, but this week, Scottish First Minister Alex Salmond announced it would be held in the fall of 2014, with full details to be released later this month. The SNP are open to a two-part question, one asking about outright independence, and a second proposing increased financial powers for the Scottish government short of full independence, which has been dubbed “devolution max” or “devo max”. This is viewed as a gradualist approach to independence, a tactic which should be familiar to Canadians since the Parti Québécois has frequently endorsed such an approach for Quebec (called “étapisme”).
It is clear that the Canadian experience with the Quebec sovereignty debate is well-known in the UK. On Wednesday (11 January), during Questions, the Rt. Hon. Michael Moore, the Secretary of State for Scotland, engaged in the following exchange:
Iain Stewart:The House of Commons Library has given me strong evidence to show that the economies of Quebec and Canada as a whole suffered in the 1990s due to constitutional uncertainty. For the sake of jobs in Scotland and England, does my right hon. Friend agree that the last thing we need is a prolonged period of constitutional uncertainty, and that the First Minister should stop playing politics and get on with it?
Michael Moore: My hon. Friend is correct to point to that independent analysis and the experience of Quebec and the rest of Canada. It is vital that the economic uncertainty we now face because of the referendum is resolved, which is why we have brought forward proposals to make the referendum legal, fair and decisive. I want it to happen as soon as possible.
Later that day, during Prime Minister’s Questions, David Cameron also made it clear the UK has no desire to repeat Canada’s experience:
Edward Miliband:I want to ask the Prime Minister about Scotland. We on this side of the House believe that the United Kingdom benefits the people of Scotland and the people of the rest of the United Kingdom in equal measure. We are stronger together and weaker apart. Does he agree that we must make the case for the Union—not simply a case against separatism, but the positive case about the shared benefits to us all of Scotland’s part in the United Kingdom: the shared economic interests, the shared institutions such as the NHS, the defence forces and the BBC, and above all the shared values we hold together?
The Prime Minister: I am happy to say that this is an area where the right hon. Gentleman and I will be in 100% agreement. I passionately believe in the future of our United Kingdom, and passionately believe that we are stronger together than we would be by breaking apart. Frankly, I am sad that we are even having this debate, because I support the United Kingdom so strongly, but we have to respect the fact that Scotland voted for a separatist party in the Scottish parliamentary elections, so the first thing that it is right to do is make clear the legal position about a referendum, which is what my right hon. Friend the Scottish Secretary has been doing. We have made the offer to devolve the power to hold that referendum so that it can be made in Scotland and held in Scotland. Frankly, I look forward to having the debate, because I think that too many in the Scottish National party have been happy to talk about the process but, do not want to talk about the substance. I sometimes feel when I listen to them that it is not a referendum they want, but a “neverendum”. Let us have the debate, and let us keep our country together.
Edward Miliband:May I agree with the Prime Minister? This is not a fight about process between the Westminster Government and the Scottish Government, or between the British Prime Minister and the Scottish First Minister. The way to tackle this issue is to have immediate cross-party talks in Scotland about the timing of the referendum, the nature of the single-question referendum and the vital involvement of the Electoral Commission. Does the Prime Minister also agree with me that we need as soon as possible, as he said, to get beyond process and have that discussion about the substantive issues? This is a momentous decision that our children and grandchildren will have to live with if we get it wrong, so we need a serious, thoughtful and inclusive debate about the choices and the benefits to Scotland of staying in the United Kingdom. On this important issue, the people of our country deserve nothing less than that serious debate about the benefits of the United Kingdom.
The Prime Minister: The right hon. Gentleman is right on those three points. On the process of negotiation, which is very important now, particularly given that the SNP has come out and made more clear what it wants to do, I am very happy for the UK Government and the Westminster Parliament to speak directly to the Scottish Government and the Scottish Parliament, and let us come to a conclusion about the best time and the best way to hold the referendum. But it must be clear, it must be legal, it must be decisive and it must be fair. Those are the absolute keys. I absolutely agree with the right hon. Gentleman: as soon as those process questions are settled, we need to get on to the substance. [ Interruption. ] The only point I would make about the timing—[ Interruption. ] As SNP Members, who cannot seem to keep quiet, are so keen to leave the United Kingdom, I do not quite understand why they want to put off putting the question for so long.
As stated at the outset, I am not a constitution expert, and so I will leave you with some links to articles, columns, etc., written by people with far more expertise.
1. Alex Massie has written a good introduction to the issue for the Daily Beast.
2. The Constitution Unit’s Robert Hazell writes that David Cameron might regret taking this all or nothing approach, while Barry Winetrobe asks what “Union” is everyone fighting over?
3. The Guardian does a reality check on whether the UK Government has the power to dictate terms of a referendum.
4. The New Scotsman asks if David Cameron is right to fear an “independence bandwagon”.
6. Françoise Boucek warns that, based on Canada’s experience, the campaign for Scottish independence will be long and attritional.