Popular constitutional amendment: Referendums and constitutional change in Canada and the United Kingdom

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The referendum has been sparingly used at the national level in both the United Kingdom and Canada. In these states, referendums are more common at the provincial and sub-state level, where the dramatic issue of secession has been bound up with direct democracy. This article argues that referendums on secession are, in some sense, in a category of their own in how they present the referendum as an expression of constituent power. The author compares sovereignty referendums held in Quebec, particularly that of 1995, with the 2014 Scottish independence referendum. Constitutional silence in both countries on the issue of secession has meant that the referendum enters the amendment process as a wild card, requiring the Supreme Court of Canada to confront the fundamental values of the Constitution and leading the UK Government to concede the principle of secession in relation to Scotland. The constituent nature of secession referendums also establishes a challenge to those advocating the use of such referendums to prove that they satisfy fundamental democratic credentials such as due process. Here, the Scottish independence referendum offers lessons to Canada on good practice. In a more prosaic context, the Canadian referendum experience is also instructive, with its experiments in deliberative democracy that preceded the referendums on electoral reform in British Columbia and Ontario. The article compares the benefits of these provincial citizens' assembly processes with the much more "top-down" referendum on electoral reform in the UK in 2011. In both countries, the referendum is a dramatic outlier in the constitutional amendment process. It brings citizens to the front and centre of constitutional decision making. For this reason, efforts within Canada to equip citizens with the deliberative tools necessary to make these fundamental decisions are innovative and instructive. It may be that referendums are in fact better used in issues of the most fundamental constitutional importance, but it is also in these events that the full engagement of citizens, which has been bravely attempted at the Canadian provincial level, would appear to be most acutely needed.
Original languageEnglish
Pages (from-to)41-72
Number of pages32
JournalQueen's Law Journal
Issue number1
Publication statusPublished - 2015


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