Sub-state Independence Referendums and the Promise of a Fresh Constitutional Start

Dr Elisenda Casanas Adam 

The 2014 Scottish independence referendum has been hailed as an example of citizen engagement and deliberation and the turnout on the day of the vote was the highest for any electoral event in the UK. Similarly, since 2011 the image of massive street protests in Catalonia in favour of an independence referendum, or more recently independence itself, have become commonplace and this well organised civil-society-led movement has put such strong pressure on the Catalan authorities that they are now beginning a unilateral process of ‘disconnection’ from the rest of the Spanish state. These phenomena are most commonly described and analysed as a rise of sub-state nationalism, but even taking into account that scholars highlight that these are cases of civic (or also ‘emancipatory’) rather than ethnic nationalism, it seems this perspective is insufficient to fully explain or understand the level of political engagement and participation attained.

This paper argues that one of the reasons why sub-state independence referendums engage and capture the political imagination of citizens in this way is that they offer a fresh constitutional start with a real possibility for citizens to have an impact in defining the new constitutional framework. Building on these opportunities offered by independence, both the Scottish and Catalan movements put forward proposals for innovative and participatory forms of constitution drafting and for constitutional models that represented a radical break from the existing status quo, significantly extending constitutional protection to new issues and human rights. As a result, in the debates that followed the arguments put forward in favour of independence in both cases were/are (this process in ongoing in Catalonia) also very much about participating in, and obtaining, real and significant constitutional change in a diversity of areas, which would not be possible within the framework and procedures of the wider state system. And for some citizens who might not have initially identified (or fully identified) as ‘nationalists’, the opportunities for change in themselves became/have become a reason to engage in the process and to vote for independence.

Sub-state Referendums and the Substance of Constitutional Change

Substantive reform of a state’s constitution or governing framework is generally difficult to achieve. Any proposals for constitutional reform will tend to come from the government or main political parties, and will generally involve minor tweaks or adjustments to the existing system. In this case, the clearest example is that of Spain, where since it was enacted in 1978 the only reforms of the Constitution have been two specific changes that were required to comply with EU Law. But also in the UK, where there is no written constitution, constitutional change enacted by the UK Parliament tends to be gradual and piecemeal. In both cases, it is currently very difficult to imagine the possibility of a substantial overall review of the existing constitutional framework.

The proposals of the two independence movements considered in this paper stand in sharp contrast with the above. The Scottish Government’s two stage-plan, first for an interim constitution for Scotland and then for a permanent one, is the most extreme example of this. Its proposal for drafting a written constitution for Scotland and maintaining the system of strong judicial review, at least for ECHR rights, constituted a dramatic break form the unwritten and largely political Westminster model. In addition, the proposal for an interim constitution contained provisions enshrining issues such as certain socio-economic rights, the protection of the environment and the sustainable use of Scotland’s natural resources, and a commitment to securing the safe and expeditious removal of nuclear weapons from Scotland, some of which would presumably also be incorporated in the final permanent document. The Catalan Government has not yet put forward any specific proposals as to what a future Catalan constitution should include. However, there is an online proposal for a constitutional text drafted by Catalan legal experts linked to the government, which encourages citizens to present amendments to, and vote on, its different constitutional provisions. As in the case of the Scottish proposal, this draft includes innovative provisions in relation to the status quo such as a commitment to peace and non-militarisation, to a new socio-economic system, the protection of the environment and extensive socio-economic rights, and it is some of these provisions that have the highest number of citizen votes. The Catalan Parliament’s (and Government’s) own position on these issues can be observed from a 2015 Parliamentary Resolution where, as part of the wider process, they listed a series of measures that the Catalan Government should adopt in order to protect fundamental rights of citizens in Catalonia from the decisions and reforms being adopted by the Spanish state. These measures encompass securing rights in areas such as basic energy resources, housing, health, education, the situation of refugees and abortion, among others. Their objective seems again very much to provide for a clear break from the current Spanish framework and developments, and to establish a much more robust protection for certain meaningful issues and rights in Catalonia.

Sub-state Referendums and the Process of Constitutional Change

In established constitutional systems, processes of constitutional reform tend to involve bargaining and attaining complex majorities in the state’s parliament, and will generally include minimal, if any, citizen involvement. For example, in Spain the Constitution requires a 2/3ds or 3/5’s majority in the Congress (depending on the issue) and only then can it be put to the people in a referendum (mandatory or by request of a specific number of members of Congress), who can simply approve or reject the reforms. In the UK, the lack of a written Constitution can make constitutional change easier, as it can be carried out simply by legislation of the Westminster Parliament. In both cases, however, the scope for citizen participation and impact in the reforms is significantly limited.

As part of their proposals for independence, both Catalonia and Scotland included innovative and participatory processes for the drafting of the new constitution for the future independent state. The Scottish Government proposed that the permanent constitution be written by a constitutional convention, and that this process should be open, participative and inclusive, and designed by the people of Scotland for the people of Scotland. While not establishing in detail how the convention would be set up, reference was made to considering international best practice and the practical experience of other countries and territories that had made use of this type of process. In a similar vein, the Catalan Government’s proposal includes the establishment of a Constituent Social Forum, composed of representatives from civil society and political parties, that would decide on a series of questions on the content of a future constitution that would then be put to the citizens as part of a consultative process; the outcome of this participatory process would then be binding on the members of the constituent assembly, that would have to incorporate the new constitution. In both cases, therefore, the processes were clearly designed to give citizens a significant role in the debate around what should be included in, and the drafting of, the new constitutional text.  

Conclusion

The brief analysis above has highlighted that the Scottish and Catalan referendum processes offered/offer the possibility of radical constitutional change and citizen impact, which would be impossible within the wider existing state framework and processes. This paper argues that this was/is also a significant factor in the high levels of citizen engagement and participation in both processes. In other words, for those citizens not persuaded (or fully persuaded) by the nationalist arguments, the significant opportunities for change offered could/can provide an incentive to engage actively in the process and debates, and to vote in favour of independence.  Meaningful change, even if it involved/involves the creation of a new independent state, was/is seen by some as preferable to continuing with the largely immutable status quo. Despite not having been successful (although, as noted, the Catalan process is still ongoing and the celebration of a second Scottish independence referendum, albeit in a new ‘Brexit’ context, has just been announced), both cases highlight that when citizens feel properly empowered, and when they feel that real and significant change can be attained, their democratic engagement and participation can reach unprecedented levels.