Article Published May 10th, 2016
By Jonathan Scott, a Canadian writer currently at Cardiff School of Law and Politics. @J_Scott_
American President Barack Obama recently made headlines arguing against a leave vote in the Brexit referendum. Obama’s remarks were the second time in recent weeks the leave campaign was put on the defensive by a North American’s comments, with the Canadian-born Governor of the Bank of England, Mark Carney, warning in March of ‘poor economic outcomes’ should Britain vote to leave the European Union.
However, as persuasive as commentary from North American individuals might be to British voters, it is Canadian legislation that would have been better able to inform British referendum politics and should be seriously considered in future.
The Canadian Clarity Act 2000, written in response to a Supreme Court reference on the parameters of Québec’s possible secession from the rest of Canada, outlines how a referendum should be adjudicated by Parliament.
Why is this Canadian statute relevant to Britain? While the Act refers to the notion of secession of a province from the Canadian federation, one can argue the democratic principles could be extrapolated to any referenda of sufficient gravity. Certainly the Brexit referendum—which is effectively a question of secession from a supranational organisation—seems an area where a law such as Canada’s could apply. The Scottish independence referendum was an even clearer parallel. Indeed, the Act presents a number of useful touchstones that would have served Britain well in the context of the Brexit referendum and should be examined long before another referendum occurs in this country.
Specifically, the Act suggests, ‘the House of Commons, as the only political institution elected to represent all Canadians, has an important role in identifying what constitutes…a clear majority sufficient for the Government of Canada’. This means, in essence, that the House of Commons has to adjudicate the result of a referendum before preceding to negotiate how to enact the will of the referendum.
The requirement for a ‘clear majority’ in the Act is taken to mean, necessarily, more than 50% +1, a sentiment that reflects the Court’s view and is widely supported by scholars, the Canadian Liberal government and the Conservative opposition (although not by secessionist and some soft-nationalist politicians).
In fact, the Act makes clear that this question as to a ‘clear majority’ is more than simply arithmetic. The Act’s utility in adjudicating a referendum is further outlined in section 6.2 which notes what factors are required to show a clear majority:
‘In considering whether there has been a clear expression of a will by a clear majority of the population…the House of Commons shall take into account
(a) the size of the majority of valid votes cast in favour of the secessionist option;
(b) the percentage of eligible voters voting in the referendum; and
(c) any other matters or circumstances it considers to be relevant.’
These factors are significant, as section 6.4 states there will be no negotiations regarding secession, ‘unless the House of Commons determines…there has been a clear expression of a will by a clear majority of the population’.
It is subsection 6.2(c) of the Canada Clarity Act that is very appealing right now in the UK, with The Financial Times ‘poll of polls’ suggesting Brexit is evenly dividing the country; with 44% on ‘stay’ and 42% on ‘leave’, there needs to be more consideration given to how a ‘clear majority’ is actually calculated in a multinational country such as the United Kingdom.
The idea that the House of Commons should be able to weigh up other ‘relevant’ factors would have gone a long way to assuaging concerns about the integrity of the referendum across the whole of the UK. For instance, Canadian scholars and commentators have suggested such factors might include what to do if whole regions of a province or Indigenous peoples in their traditional territories voted overwhelmingly to stay despite a narrow provincial vote to leave overall. Put in British term: what would be done if the UK overall voted narrowly to leave, but Wales voted overwhelmingly to stay? Or, what’s to be done if only a minority of voters turned up at the polls to vote—should 35% turnout at the polls be enough to instigate economic havoc in leaving the EU for the non-voting majority? What about the unique circumstances faced in North Ireland in terms of sharing a land border with the EU because of the Republic of Ireland? These are all fair questions that ought to be considered, and the touchstones in the Clarity Act enable to occur.
Would that such a piece of legislation as the Clarity Act existed in the UK, given the controversy over how a successful referendum might be calculated. A recent Survation poll found that 60% of Scots believe withdrawal from the EU requires more than a ‘simple majority’ but rather an overall majority vote in each of the four constituent countries of the UK. Nicola Sturgeon, the Scottish first minister, has said it would be ‘democratically indefensible’ if a majority vote in the rest of the UK were to force Scotland to leave the EU. In Wales, Plaid Cymru leader Leanne Wood backed Sturgeon, warning of a ‘constitutional crisis if English voters were to railroad the rest of the United Kingdom into leaving the European Union’, according to The Independent.
Indeed, the worst-case scenario is perhaps not a vote to leave, but rather a vote to leave based upon a high anti-Europe vote in England (or worse still, in the south of England) over the objections of the populations of the smaller constituent countries of Wales, Northern Ireland and Scotland, which are generally perhaps more favourable to the EU.
This is where the Clarity Act would have come in useful. Its notion of a ‘clear majority’ is deliberately unenumerated and leaves it to Parliament to determine with regard for the circumstances whether the threshold has in fact been met. In essence, the Clarity Act makes the referendum the start of the process, not the ‘be all and the end all’.
As the Canadian Supreme Court noted, ‘By requiring broad support in the form of an “enhanced majority” to achieve constitutional change, the Constitution ensures that minority interests must be addressed before proposed changes which would affect them may be enacted.’ In a country formed by four nations, but with England representing far and away the majority of the population, surely there ought to be regard for the minority interests of the smaller countries in the UK?
Indeed, the UK is no longer simply a centralised system. Whereas the Parliament at Westminster has, over the past two decades, devolved power to the Welsh National Assembly in Cardiff, the Scottish Parliament at Holyrood and the Northern Irish Assembly in Belfast, there is arguably an implied understanding that the United Kingdom ought to have regard to not simply a majority vote of the country as a whole but of the votes in its constituent nations (and perhaps even with some regard for the vote in the north of England).
It took Canada two close referenda in the 1980s and 1990s to institute the Clarity Act. It’s evidently too late to enact something like the Clarity Act before the Brexit vote, but it would be foolhardy in the extreme if Parliament did not enact some sort of parameters to clarify the rules of the game before another referendum if it wishes to respect the voices of the four countries that make up this United Kingdom.
Jonathan Scott (@J_Scott_) is a Canadian writer currently at Cardiff School of Law and Politics.