Wednesday, February 6, 2013

Senate Reform: Teaching an Old Dog new Tricks

Maybe it's a slow news week in Ottawa, but the topic of Senate Reform is back on the agenda ... sort of.  The Harper government announced last week that they will be referring their latest senate reform bill to the Supreme Court of Canada for a determination on its constitutionality.  This is a process that could take anywhere from several months to a couple of years.  So while it is back on the agenda, it is not exactly on the front burner just yet.

When I brought up the topic the other day, someone joked that the only thing older than the topic of Senate reform is the senators themselves.  And indeed, the debate over Senate reform has been going on for much of Canada's history.  While it has never been the burning issue of the day, it's an issue that never seems to go away either.  There is something about the Canadian Senate that seems to invite the attention of every new generation of politicians, political scientists and democratic reformers.

The Senate is one of the two houses of the Canadian Parliament along with the House of Commons.  While the Senate is referred to as the Upper Chamber for protocol reasons, the House of Commons is by far the dominant chamber: the government is only responsible to the Commons, only the Commons can initiate money bills, most legislation starts in the Commons, and in practice the Senate rarely rejects a bill passed by the Commons.  The Senate was created at Confederation by what is now known as the Constitution Act 1867, and was styled somewhat on the British House of Lords.

The Senate was intended to counterbalance representation by population in the House of Commons by providing an equal voice to each region.  More seats were added as more provinces were added.  There are now 105 seats: Ontario, Quebec, the Maritimes and the Western Provinces each have 24, Newfoundland and Labrador has 6, and each of the territories have 1.

The Senate was also meant to be a chamber of "sober second thought" where Parliament would have a second chance to consider and scrutinize legislation before it was passed.  A cynic might suggest that the Fathers of Confederation didn't entirely trust the rabble elected to the Commons, and wanted to ensure that the wealthy landowning elite had the final say.  Regardless of the reason, sober second thought has come to be seen as one of the vital constitutional roles of the Senate.

Senators are appointed by the Queen, acting on the advice of the Prime Minister.  They were originally appointed for life, but now can only sit until they are 75 years old.  There are some basic qualifications such as residing and owning property in the province they represent, and being a minimum of 30 years of age.   Other than that, the Prime Minister essentially has unfettered power to choose appointees.

While Prime Ministers have occasionally used this power to appoint independents, members of other parties, or groups who are traditionally underrepresented in the Commons, for the most part this power has been used to appoint party loyalists who will dutifully pass government legislation.  As a consequence, the Senate has come to lack the power or the democratic legitimacy to oppose even the most unpopular legislation.  In a particularly egregious example, Brian Mulroney was able to exercise a special power to appoint eight extra Senators in order to overcome Liberal opposition and pass the GST.

For all of these reasons, the Canadian Senate has come to be seen as a bit of an anachronism, particularly compared to other countries that have elected Senates, such as the United States and Australia.  Even the House of Lords now has some elected members.

While some argue that the Senate should simply be abolished, democratic reformers have long championed senate reform, in the belief that an elected, effective Senate could actually serve an important role in our Parliamentary democracy.  In a country where power has become dangerously concentrated in the Prime Minister's Office, an elected Senate could serve as an important check and balance.  But changing from an appointed to an elected Senate would require a constitutional amendment, and meeting the strict requirements of the amending formula is politically very tricky and requires the support of at least 7 of 10 provinces.

To that end, since being elected in 2006, the Conservative Government has tried to strike a difficult balance between a pragmatic reform that can get the necessary political support without necessarily requiring a full-blown constitutional amendment.

Their first effort to let Canadians choose Senators in 2006 missed the mark somewhat.  Bill C-20 called for the government to conduct "consultations" with voters (essentially non-binding federal senate elections) before making senate appointments.  The Bill was rightly criticized for a number of practical and legal problems.

However, while some have accused him of stalling, and while he has made some questionable appointments himself, Harper's desire to see elected Senators seems to be genuine, and he has repeatedly extended the invitation to the Provinces to hold their own Senate elections, with the promise that he will appoint the winning candidates.  To date, only Alberta has taken him up on this invitation.

The latest approach being championed by the government is somewhat different.  Bill C-7 would limit Senators to one nine year term of office (a change that definitely requires a constitutional amendment).  It also sets out a framework for each province to hold its own senate elections, which would be administered by provincial officials.  In an interesting twist, it proposes that instead of being members of  federal political parties, Senators would be members of provincial parties.  Eric Grenier has pointed out this raises the bizarre spectre of having Parti Quebecois and Wildrose Alliance members in the federal Parliament.  While there some obvious political alignment between many of these parties, there is some question as to whether these parties could effectively work together in caucuses or not.

However, the proposal does have some appeal as well.  First, making Senators members of provincial parties creates an added degree of independence from the government, which, combined with the term limits, enables the Senate to act as a true chamber of sober second thought.  The Prime Minister will not be able to control Senators the way he has come to control MP's.  Second, it is arguably aligned with the other main purpose of the Senate, which is to provide a greater voice to the regions.  Third, it might be a practical way of getting more provincial governments on board with Senate reform.

To date, the NDP and Liberals, both federally and provincially, have generally resisted the Tories attempts at Senate reform.  The NDP prefer to abolish the Senate, while the Liberals seem to want to make it part of some larger constitutional reform.  Stephane Dion went as far as to suggest that of all the bills before the House, C-7 is "the most dangerous for the future of our country."

On a practical level, I have a hard time understanding why Liberal and NDP provincial governments in particular have been so reluctant to get on board with Harper's proposal to hold provincial Senate elections.  Had they accepted the invitation, the Tories would not have the stranglehold in the Senate that they currently enjoy, and some of the most controversial pieces of legislation, including the omnibus bills, would have been subjected to more legislative scrutiny.  Further, they could be running candidates who support either different reform proposals, or outright abolition, which would further the debate.

As Grenier suggests, with the greater variety of provincial parties involved, there is a risk the Senate could descend into dysfunctional chaos.  On the other hand, most of these parties have some affinity and common interest, and we might see some cross-party political collaboration and coalition-building, the likes of which we have not seen in Canada in some time.

The Bill also doesn't seem to mandate a particular electoral system, which opens the door to some debate on the appropriate voting system.  The STV system used to elect the Australian senate seems like a logical candidate.

Canadians are understandably wary of having Parliament descent into US-style gridlock, where an elected House and Senate often seem to be working at odds with each other.  However, the proposed reform is actually based more closely on the Australian Senate, which is generally seen to have served as an effective check and balance within their Parliamentary system.  Canada would need to turn its mind to rules that deal with any conflicts between the two Houses.

The Supreme Court will obviously have the final say on constitutionality, but in practice, the proposed legislation will likely work the same as the Tories fixed election date legislation: it will be politically enforced rather than legally enforced.  It ultimately depends on the provinces acting in good faith in holding the elections, and the Prime Minister acting in good faith in appointing the election winners to the Senate.  Nothing short of an actual constitutional amendment could create an elected Senate that doesn't depend on goodwill.  That being said, if we try the proposed system, and it works, perhaps it will pave the way to actual constitutional reform.  If it doesn't work, we can discard and try again with a different model.  One of the virtues of this approach is that the kinks can be worked out before it is constitutionally set in stone.

Ultimately, an elected Senate would have more political legitimacy and power than the current appointed model, and could act as an important check and balance on the currently unfettered powers of a Prime Minister.  The Senate could finally serve the purposes that it has been meant to serve all along: providing balanced regional representation and providing a true sober second thought on proposed legislation.  They say you can't teach an old dog new tricks, but there is no reason you can't breathe new life into an old institution.

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