Page 56

May Advocate 2017

374 V O L . 7 5 P A R T 3 M A Y 2 0 1 7 THE ADVOCATE The devolved legislatures have indeed taken their role in “policing” the scope of the Sewel Convention seriously: In early 2017, Nicola Sturgeon, First Minister of Scotland, has announced plans to hold a second Scottish independence referendum sometime between fall 2018 and spring 2019.30 Subsequently, on March 28, 2017, the Scottish Parliament voted in favour of a motion to hold such a referendum. REFERENDA Miller is also notable for its consideration of the role of referenda. The issue arose because the government argued that the traditional limits on prerogative powers should not apply where a ministerial decision is authorized by referendum.31 The majority rejects that argument, noting that “the effect of any particular referendum must depend on the terms of the statute which authorises it”.32 While two of the UK’s three national referenda have concerned EU membership, curiously, neither of the statutes authorizing them provided for any consequences of the outcome. Having found that implementation of the 2016 referendum result would require a change in domestic law, the majority held that such change “must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation”.33 As a consequence, the effect of the Brexit referendum is political, rather than legal, “unless and until acted on by Parliament”.34 The majority’s comments on the role of referenda in a parliamentary democracy are particularly germane given the increasing popularity of referenda in Canada. While Brexit immediately brings to mind the Quebec secession referenda, British Columbians have more recently been asked to vote on the negotiation of treaties with First Nations, electoral reform and the HST, in addition to a plebiscite on transit, and potentially another on whether belugas should be kept at the Vancouver Aquarium. These are politically charged subjects, though perhaps not all on a par with Brexit. As Ms. Miller’s challenge proceeded through the courts, the initial shock at the referendum result appeared to turn to outrage that the result might be meaningless if Ms. Miller’s position were accepted. As a result, Ms. Miller was branded “anti-democratic” and the judges who sided with her “enemies of the people”. Such a reaction is particularly ironic given that Miller is essentially a defence of the democratically elected Parliament. The decision of our Supreme Court in Reference re Secession of Quebec35 provides a compelling answer to Miller’s detractors. As in Miller, the task of our court in Secession Reference was “to clarify the legal framework within which political decisions are to be taken ‘under the Constitution’, not to usurp the prerogatives of the political forces that operate within that framework”. 36 In both cases, the courts rejected the argument that the constitution


May Advocate 2017
To see the actual publication please follow the link above