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Even kingdoms have rights

Scottish independence referenda are not democratic as the rest of the UK has a stake in the decision

Democracy means rule by people, however, there is some dispute as to what exactly this means in practice. It must mean more than majority rule – it cannot allow minorities to be oppressed just because they are minorities.


Democracy and fairness

Democracy must embrace fairness in its broadest sense. It needs to engage with people’s identities, aspirations and sense of community, and through mechanisms including human rights and rule of law. Some procedural aspects of democracy are contentious; for example, whether proportional representation should prevail over single seat constituencies.

Jurisdictional fairness is important too: gerrymandering is often circumscribed by allowing an independent commission to delineate constituency boundaries.


Unclear Boundary Rules

Determining the boundaries and jurisdictions of countries too presents certain conundrums: Who decides what boundary defines a nation? When can part of a ‘kingdom’ decide to be sovereign and demand secession?

History suggests that there are no rules, only that those who hold the power decide, retrospectively justifying the decisions or alternatively acquiescing to regional demands for regional sovereignty for reasons of political expediency.

In the US for example in the Nineteenth Century the federalist states objected to the southern states’ demands for secession. Majority rule within the southern (confederate) states held no sway; the will of the more powerful “division” prevailed, after the Union Civil War.

The US Supreme Court has been robust, holding in 1869 that Texas could not secede from “an indestructible Union”. The rights of persons other than those seeking secession are clearly at issue and must tempore any regional secession majority vote.

Canada has been more circumspect. When Quebec secessionists sought independence and failed in two referenda, the last one in 1995 by a margin of 0.6%, the Canadian Supreme Court was asked to rule in 1998 on whether a vote for secession in Quebec would require implementation by federal authorities. It held, ambivalently, that both sides would be obliged to negotiate with due regard to constitutional principles and that any impasse should not be subject to judicial supervision due to its political nature. It did say though that the democracy principle “cannot be invoked to trump… the operation of democracy…in Canada as a whole”. Canada passed the Clarity Act in 2000 which sets out a broader participatory framework for any secession claims.


Secession versus Unification

If two sovereign countries contemplate unification, a referendum which requires a majority in both ‘countries’ appears reasonable. However, when one ‘country’ such as Scotland aspires to independence, then a majority vote in the secession-claiming region is alone sometimes seen as sufficient, as when David Cameron conceded a referendum to Alex Salmond in October 2012, in the Edinburgh Agreement.

But there may be an asymmetry between unification and separation. If the secessionist region times its challenge for a period of general instability of the larger region, as now with Brexit, regarding Scotland, then one lucky vote can forever divide a country, with no replay for the disenfranchised. Unfairness inevitably results from the asymmetry of process, whereby a vote for secession only needs to win once, whereas the unified region must win every time. Imagine a boxing match in which a challenger only needs to win one round out of fifteen, and can skip any round for a rest.

The rights of citizens in the ‘abandoned’ region are clearly an issue too; the secessionist region may contain valuable resources (oil reserves for example) over which the abandoned region has a legitimate claim. The identity of the abandoned citizenry may be intrinsically tied to the unified country and the esteem, identity, integrity, power and military might associated with this greater power risk being downgraded.

Without some bulwarks against secession there is a risk of fragmentation and chaos. Resource-rich regions could claim ‘Independence’ opportunistically to enhance the wealth of its citizens to the detriment of others. States could fragment into mini-kingdoms, each with its own laws and boundaries. Even the bald rule of law, a necessary component of democracy, requires that a brake be put on secessionist claims, which are based solely on regional ‘majority’ claims.

One solution is to provide the (potentially) abandoned region with some say in any secession referendum process.


Everyone needs a say

In the case of Scotland, for example, the remainder of the UK could also be allowed to vote in any new independence referendum. The more that Scotland’s independence is opposed in the UK, the higher the threshold which should be imposed upon Scottish voters to achieve independence. The percentage in the UK (less Scotland) in excess of 50% against independence could be divided by four and added to the 50% threshold, which was applicable to the last Scottish referendum, in 2014. Thus, if 80% of the remainder of the UK opposed change, then a majority in excess of 57.5% would be required for Scotland to secede.

Such a system, or some similar formula, would better secure the conflictual rights at stake than determination by a simple majority of secessionists. Democracy must embrace the broader consequences of secession demands upon everyone and mould independence referenda procedures accordingly.

Independence in an interdependent world is no longer simply a matter that should be left to those who see advantage in independence, no matter how noble such an aspiration may be, unless, as pointed out by the Canadian Supreme Court (in the international law context of self-determination), people are “subject to alien subjugation, domination or exploitation”.

The ‘left-behind’ block of citizens has legitimate aspirations to stability and respect for their multi-stranded identities of which nationalism is but one facet. They should not be endlessly threatened with fragmentation of their notion of nationhood at the behest of one region of a country, particularly without their voices being heard. A minimum 15-year interval between any independence referenda coupled with a balanced participation formula (allowing all persons affected to partake) in any such vote would also conduce to a fairer system.

The era of notionalism, of slavery to old slogans, must yield to a calculus of the greatest good.


by Kieran Fitzpatrick