Examining the democratic principle of consensus in Canada, Scotland, Spain and Italy

A primary change in the assessment of this phenomenon comes from the judgment on the Quebec referendum issued by the Canadian Supreme Court in 1998, which nonetheless reiterates that "a right to secession" exists "under the principle of self-determination of people at international law where 'a people' is governed as part of a colonial empire", the Court maintains that "the Constitution is not a straitjacket", because the central State has a "constitutional duty to negotiate" the requested secession, based on the following four principles: "federalism, democracy, constitutionalism and the rule of law, and respect for minorities".¹

This progressive openness to the "recognition of diversities" was also confirmed by a particular Scottish case. On 15 October 2012, David Cameron and Alex Salmond, respectively British and Scottish Prime Ministers, signed the Edinburgh Agreement, later formalized by a National Council Order which delegated the power to legislate on an independence referendum to the Scottish Parliament. This choice of openness made by the British government, which could have denied authorization to transfer its own power, was also determined by the fact that the Scottish National Party had obtained a "democratic mandate" through their victory in the elections which had based its campaign on the need to hold a referendum on Scotland’s future. Despite the negative outcome, the referendum did not solve the issue, which was instead placed at the center of national debate, giving shape to a hypothesis of democratic secession, albeit not realized to date. The factors pushing in this direction are represented by: the openness to negotiations by the British government in 2011-2012; Scotland’s choice of seeking authorization for the transfer of missing legislative competence instead of immediately forcing the issue. This was due to the fact that there was a technical-legal impossibility of immediately holding the referendum without amending the Scotland Act; the duration of the process, which seems to involve precautions and reflections before proceeding to the adoption of choices; the elaborate legal regulation of referendums contained both in British national legislation (the Political Parties, Elections, and Referendums Act 2000)² and in the two laws enacted ad hoc by the Scottish Parliament (the Scottish Franchise Act 2013 and the Scottish Referendum Act 2013) which provided a framework of rules and limits;³ the presence of an independent Electoral Commission; the stipulation of the Edinburgh Agreement, which was a political pact aimed at ensuring a shared recognition of the results.

The same cannot be said in reference to the centrifugal Catalan forces, which show another face of the secession phenomenon and popular involvement. As in the case of the Scottish attempt, even the Catalan Parliament also lacked the authority to hold a referendum without the State’s authorization. Furthermore, the Spanish Constitutional Tribunal argued the need for a constitutional revision law for such decisions. Nevertheless, on 19 September 2014, President Artur Mas signed a decree to convene a popular consultation on 9 November 2014. Simultaneously, the Catalan Parliament adopted Law 26 September 2014, No. 10 which sought to formally circumvent the referendum ban.⁴ On 14 October 2014, the Catalan Government declared the official consultation suspended, which nevertheless still took place. Judicial proceedings followed against those deemed responsible. After the failure of the 2014 proposal, the outcome of the 2017 referendum, which, under Catalan regional law, was supposed to be binding, saw a yes vote victory with over 90% of those who participated voting in favor of the act. Despite the Constitutional Court declaring the law and the subsequent referendum law null and void, the Catalan Parliament, following the will expressed in that recent popular consultation, declared the establishment of the Catalan Republic. However, the dissolution of the Catalan Parliament and the calling of new elections under Article 155 of the Constitution followed.

A further example of these forms of democratic participation is represented by the referendums held in Italy in 2017 in two regions, Lombardy and Veneto. These referendums were held to gauge public opinion on the desirability of initiating a procedure for obtaining greater autonomy. Despite both referendums occurring before and outside the procedure had been established by constitutional provisions for further devolution, the results, widely in favor of initiating a procedure for greater autonomy in both regions, led to the need for better regulation of the phenomenon at the central level. In particular, Article 5 of the Italian Constitution which bridges the principles of unity and indivisibility of the Republic with the recognition of local autonomies, requires an examination of the relationship between these principles and the relevant territorial articulation. This single article, which seemingly emphasizes a single underlying intent, may find its rationale in the continuous adaptation process of the Republic, one and indivisible to autonomy and its needs. However, these needs must always fall within the same concept: autonomy, which the Italian constitutional provision declines in the singular, not the plural. This does not mean neglecting local autonomies but rather subsuming them under a more general principle. An answer could be derived from the close link between Article 5 and Article 1 of the Constitution: the democratic structure and the effective realization of the principle of popular sovereignty find full realization through participation guaranteed by autonomy. So, in this dynamic dimension of the legal system, autonomy could be translated into a relational perspective anchored in fair collaboration and interdependence, constituting one of the forms and limits in which people can exercise sovereignty.

As such it follows that the formation of a shared social will produces political effects and, subsequently, legal ones too. In this way, there are at least three aspects to consider. First of all, conscious and validly expressed consent or dissent as a prerequisite and foundation for autonomy. On one side, this allows the real needs of a territory to be expressed and known; on the other, it only represents a starting point to be considered in the process of democratic secession. Referendums are indeed powerful tools for political change and, therefore, it must be understood whether these tools are used to provide an effective response to real problems that require state intervention or only to provide legitimacy to a claim, without clearly understanding the scenarios that will occur if the referendum itself has a positive outcome. Furthermore, it should be remembered that the effects of a secession, even assuming one could happen democratically, are not confined by national borders. Hence, a second necessary characteristic for secession to be considered democratic emerges even more clearly; namely the importance of informed consent. This implies that a referendum must be accompanied by an outline of both its substantive and procedural consequences. Finally, the impact arising from the realization of the asymmetric devolution phenomenon requires at least a bilateral decision. Autonomy cannot be reduced to mere unilateral claims and requires honest collaboration between different levels of government. It is due to this, that it is necessary to consider the ways through which such collaboration takes shape for each specific case.