What Canada can teach Britain about dealing with separatists

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The Supreme Court of Canada was created in 1875, but for the first 74 years of its existence, it did not have the final word on judicial matters in this country. Until 1949, that role fell to Britain’s Judicial Committee of the Privy Council, which could overrule “colonial” courts such Canada’s.

So, it is with sweet irony that Britain’s Supreme Court, which has served as that country’s final appeal court since 2009, this week turned to its Canadian counterpart for guidance in ruling on whether Scotland has a right to secede from the United Kingdom.

In its decision, the British court drew heavily on a landmark 1998 ruling by Canada’s top court: that Quebec could not unilaterally declare its independence in the event of the “Yes” side’s victory in a future referendum simply by invoking the province’s right to self-determination under international law. Rather, separation could occur only after a Constitutional amendment approved by the federal Parliament and a majority of the provinces. The ruling poured cold water on attempts by the Parti Québécois government, then in power, to create the “winning conditions” for another referendum.

What was never at issue in the 1998 case, however, was whether the Quebec government has the authority to organize such a referendum. Ottawa has never challenged Quebec’s right to hold such a plebiscite.

In contrast, Britain’s Supreme Court said this week that Scotland has no such authority. The ruling was no surprise to legal experts. The powers of the Scottish Parliament are delineated under the 1998 British legislation that created it. Holding an independence referendum is not among them.

In making its ruling, the British court relied on the overriding principle that “matters in which the United Kingdom as a whole has an interest should continue to be the responsibility of the United Kingdom Parliament” at Westminster. Scotland, the court confirmed, would first need permission from the British Parliament to go ahead with a plebiscite on separation.

In 2014, then-British prime minister David Cameron granted such permission and Scots subsequently voted 55 per cent to 45 per cent to remain within the United Kingdom. But Mr. Cameron’s successors (all Conservatives like him) have systematically refused Scottish First Minister Nicola Sturgeon’s request to hold another independence referendum next year. The draft legislation Ms. Sturgeon’s Scottish National Party (SNP) introduced to hold the vote next October was hence stopped in its tracks by Wednesday’s Supreme Court decision.

Ms. Sturgeon and her fellow Scottish nationalists likely knew they had no chance of winning in court on that question, so SNP’s lawyers also argued that Scotland’s “fundamental and inalienable” right to self-determination under international law superseded British law. But Britain’s Supreme Court rejected that argument, too.

In doing so, it relied on the Supreme Court of Canada’s 1998 decision on Quebec secession, which concluded that international law provides for a right to self-determination only in the cases of former colonies and oppressed peoples, or where a “definable group is denied meaningful access to government to pursue their political, economic, social, and cultural development.” None of those conditions applied to Quebec in 1998. Nor do any of them apply to Scotland now.

“Scottish democracy will not be denied,” Ms. Sturgeon tweeted after the decision came down. “Today’s ruling blocks one route to Scotland’s voice being heard on independence – but in a democracy our voice cannot and will not be silenced.”

Ms. Sturgeon, who cites Scottish opposition to Britain’s withdrawal from the European Union as grounds for holding another plebiscite on separation, said she plans to turn the next general election into a “de facto referendum” on Scottish independence. But that path is likely to turn out to be even more legally and politically fraught.

A simple election victory, even one obtained with an absolute majority of Scottish votes, would not confer a right to secede on Scotland. And the EU would not likely offer support for Scottish membership, with EU countries such as Spain (which faces separatist movements of its own) blocking its entry.

The question facing newly installed British Prime Minister Rishi Sunak, who is scrambling to revive Tory fortunes after months of chaos, is whether it makes political sense to continue to deny Scotland permission to hold another referendum. Ms. Sturgeon seeks to benefit from the impression Westminster is blocking the will of the Scottish people. And the public reaction to the court ruling in Scotland has favoured her.

Perhaps Mr. Sunak, too, could look to Canada for guidance. No government in Ottawa has questioned Quebec’s authority to hold a future referendum on sovereignty. That might help explain why few Quebeckers are clamouring for one now.

By blocking a Scottish referendum, Mr. Sunak may only make Scots want one even more.