Quebec shows Scotland how to get everything you want without separating

Canada’s exports extend beyond hockey players and cold fronts, as Pierre Trudeau once said. It turns out we are also traders in world-class constitutional jurisprudence.

The U.K.’S Supreme Court ruled on Wednesday that the Scottish government cannot hold a second independence referendum without the consent of the British Parliament and based its decision, in part, on Quebec’s past constitutional experiences.

Scottish First Minister Nicola Sturgeon wants to hold a referendum in October 2023 but Lord Reed, the court’s president (and, incidentally, a Scot), said she does not have the power to do so because that is an authority reserved for the Westminster parliament.

Sturgeon’s Scottish Nationalist Party (SNP) had argued that the decision made by Canada’s Supreme Court in 1998 on Quebec’s possible secession provided lessons on the right of self-determination.

In its submission, the SNP argued that Scots have the right to express themselves when it comes to their constitutional and political futures through a second independence referendum.

The SNP said that limitations on the powers of the Scottish Parliament should be interpreted in a way that is compatible with the right of self-determination under international law and cited the Canadian Supreme Court’s statement that: “The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.”

But Lord Reed said the U.K. Supreme Court is unable to accept that argument, pointing out that in the Canadian case, the Supreme Court of Canada (SCC) held that the right of self-determination under international law only exists for former colonies or oppressed people who are denied “meaningful access” to government to pursue political, economic, cultural and social development.

Lord Reed said the SCC found Quebec did not meet the threshold of colonial or oppressed people, and Quebecers have not been denied meaningful access to government. “The same is true of Scotland and the people of Scotland,” he said.

One might quibble that the Canadian case was about Quebec’s right to secede unilaterally, not its right to hold a referendum in the first place. But it was the SNP that raised the analogy, so it is fair to point out that the SCC ruling was broadly unfavourable to the Quebec separatist cause.

Sturgeon accepted the judgment and said the SNP will use the next general election as a referendum on independence. She has little option — Labour and the Conservatives have said they will not consent to another referendum, which recent polling suggests would be too close to call in terms of public opinion. The SNP already controls the Holyrood parliament in Edinburgh, in concert with the Scottish Greens, and sends three-quarters of the 59 Scottish MPS to Westminster. The resentment against this perceived block on democratic expression may send those numbers higher still.

Sturgeon is canny and she may already have noted the real lesson of Quebec is that a referendum is irrelevant if you govern as if you were already independent.

As anyone who has spent any time in Quebec in recent years could tell you, there is an apparently inexorable, de facto drift away from Canada, despite two referendum defeats and the explicit assurances of François Legault’s Coalition Avenir Québec that it has no interest in independence.

For all that, we have seen proposals that the Canadian Charter of Rights and Freedoms be replaced by the Quebec charter for provincial legislation. We have watched as the federal government waved through a plan to rewrite certain sections of the Canadian Constitution to insert new provisions establishing the province as a “nation” and affirming that the only official language is French.

We were apparently unconcerned when Legault won another whopping majority on the back of legislation — bills 21 and 96 — that steamrolled minority rights in the province.

Francophone Quebecers have been bewitched by the peddling of myths such as the terminal decline of French in the province. Quebec wants full jurisdiction over immigration because if it doesn’t get it “we could become Louisiana” (where two per cent speak French as a first language, compared to 80 per cent in Quebec).

On this issue, the federal government has held its ground so far, but Legault knows that in any dispute between the two, he will become more popular.

As journalist and former senator André Pratte noted: “There is no need for a referendum: the separatists are winning by stealth.”

The Trudeau government — petrified of a resurgence in separatist sentiment, and desperate to maintain its seat count in Quebec — is complicit in this game of nudge, nudge, wink, wink. Its reform of the federal Official Languages Act imposes a French-language obligation on federally regulated businesses such as banks, that guarantees workers the right to work in French and customers the right to be served in French, yet does not offer the same guarantee to English-speaking employees and customers.

In doing so, it legitimizes Quebec’s use of the notwithstanding clause, which allows the provincial government to discriminate against its minorities with impunity.

For Legault’s part, it is a political tactic as old as extortion — he enjoys the rewards of independence, without its risks.

Sturgeon may reach the same conclusion. Support for independence has risen from around one-quarter of Scots 20 years ago, to around a half now. My anecdotal evidence suggests there is nothing happening at Westminster that is likely to reverse that trajectory.

Quietly, daily, the national question in Quebec and Scotland is evolving organically into a reality, without the messy business of a separation vote, pollinated by demands of audacious subnational governments and weak central authorities.

FRANCOPHONE QUEBECERS HAVE BEEN BEWITCHED.