No formal legislation would be needed to remove the prime minister’s current unfettered discretion to appoint party faithful to the Senate.

The Senate has taken more than its share of knocks in the last few years, with the media recounting tales of false expense claims, absenteeism and other wrongdoing by members of the Red Chamber. Many Canadians simply think of the Senate as a problem they wish would just go away. The NDP’s official position of abolition would make that sentiment reality. Stephen Harper’s announcement that he would appoint no more senators until the provinces agree on a reform plan is intended to let the Senate effectively starve on the vine.

But the Senate is not going away in the near future, and whoever forms the government after the 2015 election should act quickly to fill the vacancies and begin to reform the chamber. Fortunately, some important reforms can be achieved in short order — and without the existential horror of trying to gain provincial approval for a constitutional amendment. In this article, I will offer an achievable alternative to the positions that the three potential governments seem set to pursue after the election. First, the three parties’ present positions will be briefly reviewed to indicate why they should be abandoned or revised. Then I will consider why Senate vacancies cannot go unfilled after the election, before discussing a proposal to adopt something like the appointments process used for the UK House of Lords. Along the way, the potential for a range of informal, nonconstitutional Senate reform will be demonstrated.

Mulcair has announced he will put all Senate reform and appointments on hold while it seeks support for Senate abolition. But this goal is a nonstarter from the outset since it would require unanimous provincial approval. A review of provincial governments sees firm opposition to abolition from PEI and heavy hitters Ontario and Quebec. The New Brunswick and Nova Scotia premiers have added impossible conditions for abolition, requiring that their numbers of MPs be increased to match any lost Senate seats. With the “me too” mantra of provincial governments, there would have to be an increase for other small provinces, amounting to a minimum of 43 new MPs — before one even starts counting BC’s and Alberta’s complaints that their representation should also be increased to outdistance the much smaller provinces. As prime minister, Tom Mulcair could wait until a First Ministers’ Conference in 2016 to make it official that abolition is impossible, but the writing is chiselled on the wall already.

A re-elected Conservative government would no doubt stay firm in refusing to make more appointments until the provinces agree on a method to elect future senators. However, it is questionable indeed whether the provinces have the interest or appetite to discuss Senate reform without the impetus of a First Ministers’ Conference dedicated to the theme.

Furthermore, it is doubtful that any constitutional reforms to set up an electoral process can be adopted without a simultaneous redefinition of the Senate’s powers. Without clearly defined constitutional limits, an elected Senate may be tempted to exercise its nearly coequal legislative powers to the point of deadlock with the House of Commons.

In addition, it is vital that any electoral process be designed to prevent the Senate from simply replicating the clear faults of the House of Commons. The Senate cannot be allowed to fall prey to the same power of the party whips to impose discipline and of the party leaders to threaten expulsion from the caucus or to block election financing and campaign support.

Even with firm federal leadership on Senate reform negotiations, which Harper has so far failed to provide, the negotiations would take considerable time. Proposals would have to be developed and negotiated, and then the formal ratification process would begin, including the referendums several provinces would require (which may result in a nationally organized vote). The process would take a matter of years, not months. While theoretically possible in the best-case scenario, the Conservative target remains uncertain in outcome, and the time needed to achieve it is certain to be protracted.

In contrast to the other parties, a Liberal government would try to reform the existing Senate by imposing Justin Trudeau’s vision of a nonpartisan chamber. This has the advantage of being pursuable by the federal government acting alone, because the basis for future nonpartisan appointments may be achieved through an informal adjustment to the existing processes. Instead of the government relying on party apparatchiks to produce (mostly) suitable partisan nominations for the PM to consider, an independent nominating committee could be set up. A similar independent committee was informally created to recommend a candidate when the governor general’s position last needed filling, so there is an existing and successful precedent for such a process.

More will be said about the positive potential of a nominating committee below, but the weakness of the Trudeau proposal lies in its wish for a nonpartisan Senate. The fallout from Trudeau’s surprise announcement in January 2014 has not given hope that the incumbents are in any way ready to give up party caucusing. While the erstwhile Liberal senators were banned from the official Liberal Party caucus that joined both houses, those senators simply regrouped themselves into an independent caucus of Liberal senators. Even without an official affiliation with the Liberal Party, Trudeau’s former senators continued to proudly declare themselves Liberal.

There are some positive developments to be seen in this Liberal caucus, for sure. The adoption of open caucus meetings, direct elections for caucus leaders and little meaningful whipping have all contributed to a loose sense of discipline; indeed, the discipline is now largely imposed through self-discipline and mutual consensus rather than through the traditional sticks and carrots. That said, the group remains relatively cohesive and collectively identifiable. In short, partisanship has persisted.

Perhaps the demise of the Conservative government might encourage Conservative senators to loosen the yoke presently imposed under supervision of the Prime Minister’s Office and the Senate leader’s office. However, it is almost certain that precious few would shed their shackles and run free through the fields of nonpartisan independence. Instead, most Conservative senators would continue to caucus with their elected colleagues. Even if they organized themselves into a separate caucus, it would undoubtedly be a caucus of Conservative senators, much as the Liberals’ independent caucus contains Liberals.

One of the concrete issues facing both Conservative and Liberal senators is that it is simply impractical to organize a 105-member chamber with complex committee assignments, debates to schedule, bills to shepherd through established legislative procedures and a broad array of public policies to consider without some caucus structure. Pooling caucus expertise is essential so that senators who have not studied a bill in committee can be brought up to speed on the details and context of the bill. And senators will naturally associate with other like-minded members to organize and maximize the chances of seeing their policies adopted. While the Senate’s political culture might change over time, the likelihood is that for some years the current crop of senators will largely continue to dominate and gravitate to their current groupings.

Despite the flaws in all three preferred party approaches, something must be done in fairly short order to fill vacant seats and change the way the Senate functions. Inaction is something of a recipe for disaster, as the continued neglect of the upper chamber will ultimately impair Parliament as a whole. An Ipsos Reid poll in early 2015 reflected a persistent view among Canadians: national politicians enjoy the trust of just 6 percent of respondents – one point above used-car salespeople. Our political system should not have to suffer the corrosive spillover from an unreformed, dying but undead Senate.

A newly elected NDP government would face the most pressing need to appoint senators, as the party currently has none. Mulcair has implied that the Senate will simply pass his government’s legislation. But it would need a government leader in the Senate to introduce legislation assign priorities, and direct the legislative process. It is perplexing that Mulcair would trust Conservative and Liberal senators to pass his legislation intact and in a timely fashion while he shows contempt for their chamber. Mulcair would need to fill the 22 seats with NDP members in order to have some tangible presence on the committees reviewing government legislation. Without an effective presence, the government would risk something approaching chaos. Regardless of one’s feelings toward the Senate, it is a chamber of Parliament and it must function in an organized fashion to pass legislation.

While 22 members out of 105 cannot control the process, their presence would be enough to stabilize the Senate and conduct the government’s side of the Senate’s committee business. After all, such a group is of a similar size to the 23 Conservative senators Harper faced when he took office in 2006 and the 23 that Brian Mulroney had in 1984.

Consideration of a constitutional provision that may also require any new prime minister to fill the vacant Senate seats is currently under way, as Vancouver lawyer Aziz Alani is challenging Harper’s decision to suspend appointments to the Senate. Alani argues that section 32 of the Constitution Act, 1867 does not permit an indefinite delay in filling seats: “When a Vacancy happens in the Senate by Resignation, Death, or otherwise, the Governor General shall by Summons to a fit and qualified Person fill the Vacancy.” While it will be some months after the election before its outcome is known, the case underlines some substantial and pressing concerns.

Apart from a plain-English interpretation of section 32’s “shall” that implies appointments are required within a reasonably short period, there is a broader concern that failing to fill vacancies undermines one of the essential functions the Supreme Court of Canada identified for the Senate: provincial representation. While the 22 vacancies at the time of the 2015 dissolution were spread across the country, Manitoba has 50 percent of its seats empty. Continued neglect of future vacancies will only further destabilize the balance of provincial and regional representation that was an essential part of the Senate’s creation and of the Confederation bargain.

While long-term, fundamental Senate reform is discussed and negotiated over the years to come, the country desperately needs to see interim reforms to restore public confidence in Parliament as a whole. A wide range of reform is achievable without formal constitutional amendments, provided the next government has the political will to convince current senators that these reforms are in all their interests. The current expenses scandal is already precipitating changes to the Senate rules on expenses, and a completely transparent public reporting process would help to restore public confidence. Incidentally, identical reforms should be undertaken simultaneously for the House of Commons, where larger numbers of MPs have been found in recent years to have inappropriately spent even larger sums than were uncovered in the Senate audit.

The Senate can also bolster rules and penalties around absenteeism and develop tougher rules on attendance. These changes would ensure senators work full-time as senators and would allow those with long-term disabilities to retire early with full benefits. This would open up some seats to new, active members. The Senate is a working chamber of Parliament and not a part-time gig, let alone a nursing home or hospice.

And, coming out of the current controversies, the Senate should develop clear rules on residency that ensure sitting senators retain a meaningful and continued attachment to and presence in the province they are supposed to represent. Since 2003, Liberal and Conservative prime ministers have appointed at least six senators who had lived and worked for years outside of the province they were constitutionally required to reside in at the time of their appointment.

Residency in the province is a formal qualification to be first appointed to the Senate, and section 31(5) of the Constitution Act, 1867 stipulates quite clearly that a senator’s seat shall become vacant if he or she ceases to be resident in the province. The Senate is declared the arbiter of whether a senator is qualified to hold a seat, according to section 33. Provincial consent might be needed to remove the residency provision, but section 33 means either the Senate through its rules or Parliament through legislation should be able to determine what the existing provisions mean in practice. If some current senators are forced to vacate their seats because of residency rules, then so be it.

I have argued elsewhere (https://ejournals.library.ualberta.ca/index.php/constitutional_forum/article/view/24941/18481) that the Senate can and should impose limits on its own legislative powers to ensure it acts as a complement to the House in proposing improvements to legislation, instead of challenging the elected chamber. The Senate can change its rules to ensure legislation is disposed of in a timely fashion, and that the House of Commons ultimately prevails if it disagrees with Senate amendments. The suggested changes would promote the Senate’s fundamental role in providing sober second thought, and they would also defuse the current lack of legitimacy of an appointed chamber thwarting the will of elected MPs.

But an even more important reform, a change to the appointment process, should also be attainable without provincial consent for a formal amendment. While the Supreme Court of Canada has prohibited any unilateral attempt by Parliament to alter the fundamental characteristics and roles of the Senate, it would not likely preclude actions to refine and improve the current appointment of senators in ways that would bolster their role of providing sober second thought.

No formal legislation would be needed to remove the prime minister’s current unfettered discretion to appoint party faithful to the Senate. The prime minister’s role in advising the governor general is itself simply a matter of convention, and how that advice is generated can be altered informally. The key principle is that the governor general should not make a personal decision on Senate appointments, and that the advice on appointments should be provided by the democratically accountable prime minister.

It is entirely open to the prime minister to establish a committee to review or even recruit potential Senate nominees. This could be in the form of a nonpartisan group seeking nonpartisan nominees, as proposed by Trudeau. But it would be preferable to consider a body such as the cross-party, independent body that reviews potential nominees to the UK House of Lords.

The UK appointment process does not exclude partisan involvement or partisan appointees. Rather the review process and the allocation of new appointees are structured in a way that no one party can control either the nominations or the House of Lords itself. The committee is composed of representatives of the parties with substantial seats in the Commons, along with some who represent nonaligned members in the Lords. A “cross-bencher” chairs the committee to preserve its collective neutrality. No faction has a majority on the committee. Individuals are proposed for committee vetting by the relevant political parties for appointments that would be to their caucus, and the committee reviews potential cross-bench nominations as well. A key goal is to ensure the appointments are allocated in a way that no one party has enough members to control the House of Lords.

Such arrangements could be adopted in Canada and would result in a much more vibrant Senate, where negotiation and compromise are required between parties and independent members. It would harness the practical benefits of party caucuses while preventing partisanship from dictating events. Despite having only a suspensive veto, the House of Lords is a far more active — and successful — partner in the legislative process than is the Canadian Senate. The cross-party support required for amendments gives the Lords an air of authority and ensures its suggested amendments are more likely to be genuinely constructive attempts to improve a bill rather than simply ideological wedges.

These proposals are intended to be beneficial to any of the three parties who might hold office after the 2015 election. The Conservatives could free themselves from appearing to have been the authors of many of the Senate’s current scandals. The controlling reach of the PMO into the Senate revealed during the Duffy trial must eventually be seen as corrosive to Parliament. The revelation also inevitably demonstrated that the Prime Minister’s staff could have used their power to facilitate positive change in the Senate rather than mask the misdeeds of their partisans.

The Liberals could demonstrate an ability to refine proposals that are ineffective and undesirable. The basic goal of ensuring the institutional independence of the Senate from any party leader’s control would be achieved with the changes proposed here. And the public confidence in the political process might be restored by evidence that political parties are capable of constructive engagement and reaching broad-based compromises. Such positive lessons may even show the hyperpartisans of the House of Commons that cross-party cooperation can be rewarding and effective for producing the best policies for the nation.

The NDP could defuse the taint of partisanship in its own appoints as well, if it institutes this independent review committee in time to vet its first batch of senators. Provided the NDP proposes experienced and capable individuals, they should be approved by a cross-party committee. In the end, all parties should gain from giving the stamp of approval to the NDP’s initial appointments, as they could each benefit from broader acceptance of their own future appointments. The NDP could make it clear that this is a demonstration of its commitment to meaningful reform of Canada’s upper chamber while it pursues longer-lasting and deeper-reaching reforms.

Abolition is a political nonstarter, given the need for unanimous provincial consent. While it may be a good rhetorical device to point to the unicameral provincial legislatures, one should consider that almost every federation around the world has an upper house to provide more balanced regional representation. A second chamber also has the benefit of acting as a brake on an overly controlling majority government in the lower house. We have seen enough evidence in Canadian parliamentary history to know the potential pitfalls of both the iron discipline expected of government MPs and the increasing control of PMO officials over cabinet ministers, MPs and senators.

Effective and needed reform of the Senate can be implemented in short order by any government in office after the 2015 election. These proposals are illustrations of what can be achieved without formal constitutional amendment. They could go a long way to restoring public confidence not just in the Senate but in Parliament as a whole. They would be positive steps forward while more far-reaching reforms are discussed and negotiated among the federal and provincial governments. The Senate is almost certain at some point to be transformed into an elected body, but this is likely to happen only with radical changes to its legislative powers and distribution of seats among the provinces. Those negotiations will be long and hard and may take years to achieve. Canadians deserve better than to see the provinces blackmailed into negotiations by deliberate actions discrediting the Senate and undermining Parliament as an institution. The government in office after the election has a choice to be an agent of positive or destructive change, and it has the power to be either.