It is rare, perhaps unprecedented, to see the prime minister and the leader of the official opposition both support such a blatantly unconstitutional idea.
The Senate is under siege. Long regarded by many as illegitimate, undemocratic and ineffective, it has been the subject of many reform proposals over the past several decades. In the aftermath of the recent scandal involving senators’ expenses, many politicians and members of the public now favour reforming the Senate or abolishing it outright. What remains to be seen is whether any of the existing proposals to deal with Parliament’s upper chamber might be effective (or even possible).
The debate thus far has not been encouraging. Many of the ideas bandied about to deal with the Senate range from problematic to irresponsible. At least part of the difficulty has been that public discourse about the institution is embedded in the expenses scandal. As a result, the debate over the Senate’s future has been divorced from serious discussions about the institution’s role and its place within the broader system of democratic governance. This is not to say that there are no meaningful objections to the status quo: the Senate is rightly viewed as an anachronism — a body filled largely on the basis of partisan affiliation and patronage appointments, with little democratic legitimacy and rather opaque utility. But the underlying question about the Senate’s usefulness has gone largely ignored in a media climate dominated by senatorial expense abuses.
Among the many proposals that have been put forward, four broad categories emerge: plainly unconstitutional ideas, formal abolition, electoral reform and informal changes (those that do not require amending the Constitution). Without broad consensus about what ought to be done, informal changes are the most likely to see success. Despite not being as radical as some of the other proposals, informal changes could nonetheless mean significant improvements over the status quo.
Against the backdrop of the expenses scandal, the Senate has become so unpopular that politicians appear increasingly willing to take “whatever means necessary” approaches to dealing with it, the most disconcerting of which includes proposals to abolish the institution indirectly rather than by constitutional means. In June of this year, the NDP put forward a motion to cease all funding to the Senate entirely — just “cut off its blood supply,” in NDP MP Pat Martin’s words. This was a good idea only if one wanted the work of Parliament itself to come a standstill, and fortunately the motion failed. Similarly, NDP Leader Thomas Mulcair has consistently promised never to appoint any senators. More recently, Prime Minister Stephen Harper announced a moratorium on Senate appointments — after allowing a historic 22 vacancies to accrue. It is rare, perhaps unprecedented, to see the prime minister and the leader of the official opposition both support such a blatantly unconstitutional idea.
A long-term policy of refusing to appoint senators is unconstitutional in three distinct ways, a veritable trifecta of legal deplorableness. First, the constitutional text is clear that when a vacancy occurs in the Senate, the governor general shall appoint a qualified person to fill the vacancy. The word shall in a legal sense tends to be not a mere grant of permission but the imposition of an obligation. Second, by convention, it is clear that the prime minister must advise the governor general so that, in practice, an appointment can happen. While the prime minister can take time to do so (vacancies of longer than a year have not been uncommon in Canada’s history), simply refusing to make appointments is obviously contrary to convention. Finally, in a reference opinion last year, the Supreme Court made it clear that the prime minister cannot unilaterally alter the Senate’s essential functioning. At some point soon, the high number of vacancies in the Senate is going to make it difficult for it to fill committees and conduct its regular work of “sober second thought.” As a result, a policy of refusing to appoint is itself an unconstitutional attempt to amend the Constitution.
This indirect attempt to damage or abolish the Senate is unconstitutional by virtue of the constitutional text, constitutional convention and the amending formula. It amounts to constitutional sabotage, evinces a distressing disrespect for both the law and Parliament itself and is a reckless and irresponsible position for anyone who holds (or wishes to hold) high political office.
Despite the reckless ideas explored above, formal abolition is nonetheless a legitimate option for dealing with the Senate. Getting rid of the Senate, however, requires a formal constitutional amendment that has the unanimous approval of Parliament and all 10 provincial legislatures. While some provinces may currently support abolition (the current government of Saskatchewan, for example), it is unlikely that provinces like Quebec or Prince Edward Island are going to agree to abolition without something in return. This raises the prospect of controversial intergovernmental negotiations over the Constitution that include a range of issues (including the status of Quebec), something many of those who remember the failed Meech Lake and Charlottetown Accords in the 1980s and 1990s would prefer to avoid.
Canadian federalism is complex, laden with the country’s strong regionalism and long-term wrangling over the status of Quebec: was Confederation a compact of the English and French societies (not to mention Canada’s indigenous population), or was it a compact of equal provinces? These competing tensions may make successful constitutional negotiations an unlikely prospect, but they need not translate into a perpetual fear of “opening” the Constitution as if it is some sort of Pandora’s box. Ultimately, Parliament or any province may simply start the amending process by introducing a resolution in its legislature and requesting that its partners in Confederation hold a vote on the same matter. In other words, there is no reason to engage in protracted negotiations over a host of constitutional issues — and no reason a mature democracy cannot amend the Constitution to deal with one specific problem.
One proposal to overcome the political difficulties in garnering support for abolition is to first hold a national referendum on the question. Under the theory that the outcome of a referendum on Senate abolition would reflect public opinion polls, this would force any provincial government that does not favour abolition (or that wishes to horse trade) to act in light of the clearly expressed wishes of its own constituents. If using a referendum as a way to spur constitutional change may work as a political strategy, it is not clear why any referendum question on the Senate should focus on abolition rather than reform, and a referendum that includes both options is unlikely to yield a national consensus.
The Senate’s deficiencies are arguably better resolved by finding ways to improve or democratize the senatorial selection process rather than simply abolishing the institution altogether. One reason it may be preferable to retain the upper chamber in some form is that it could provide a contemplative check on the power of the executive. Many political scientists, not to mention the media, have articulated concern about the increasing concentration of power in the hands of the Prime Minister’s Office over the last several decades. There are some checks — arguably the Supreme Court has done the most to actually constrain the government’s policy-making powers — but they are relatively few in the Canadian parliamentary system. The opposition in the House of Commons, particularly in a majority government context, is limited in its capacity to constrain the government’s agenda, let alone block or significantly alter legislation.
Instances of the Senate voting down government bills are rare, but it is not too uncommon for the upper chamber, particularly through its committee work, to assist in improving legislation, and to inquire into other areas of public concern as part of its general sober-second-thought role. An improved senatorial selection process may confer the legitimacy needed for the institution to play a more robust role in this regard. Until last year, the Conservative government had sought to implement an advisory electoral process. The Supreme Court determined that instituting an elections process required a constitutional amendment garnering the approval of at least seven provinces representing at least 50 percent of the population, and the government essentially abandoned its reform efforts.
If the provinces were willing to consider an amendment to introduce a Senate election process, would that be a good thing? On the one hand, an elected Senate risks becoming a second House of Commons, raising the spectre of a less efficient legislative process. If the effect were to simply add to the political and partisan noise and make it more difficult for governments to implement their agenda, such a reform might not be desirable. On the other hand, there are exemplars that seem to work. In Australia, which has a Westminster parliamentary system like Canada’s, the upper chamber is elected under a proportional system (single transferable vote), usually to six-year terms, and each state receives the same number of seats. It is doubtful that Canada’s two largest provinces, Ontario and Quebec, would voluntarily reapportion seats in the Senate to provide for provincial equality, but it is unclear why they would necessarily oppose elections and term limits under the current seat allocation. And with a lower threshold for consensus under the amending formula than abolition, this type of reform may be more feasible.
Introducing a Senate elections process, however, is not the only reform option. Indeed, given the likely difficulty in garnering enough provincial support for formal changes that would require constitutional change, it may be preferable to seek internal or informal reform. The political scientist Andrew Heard has argued that meaningful reform could be implemented simply by letting the Senate make changes itself. Heard proposes changes to the Senate rules to streamline the legislative process, particularly when dealing with supply bills, which require the confidence of the House anyway. New rules could further restrain the Senate from blocking House legislation and even from using delaying tactics to indirectly veto bills. The Senate would retain its core sober-second-thought role by proposing amendments, something that may even be strengthened under a streamlined process.
The benefit of a proposal like Heard’s is that it accentuates a core purpose of the upper chamber, sober second thought. Precisely because they are immune from electoral pressures, senators have the time to focus and deliberate on issues in ways that MPs do not. Senate committees are often lauded for engaging in investigative work to shed light on matters of public importance, both in the context of legislation and more broadly. Changes that involve the Senate voluntarily limiting its own power to unduly interfere in the decisions of the elected House, while retaining the resources to conduct more contemplative work, could address some of the criticisms it faces while reaffirming the benefits of having it there.
Having the Senate itself limit its ability to directly or indirectly veto government bills may go some way to improve its legitimacy, but an even better way would be to appoint better people. The Liberal Party under Justin Trudeau has proposed removing partisanship and patronage from the Senate appointments process (I advised the Liberal Party on the constitutionality of its Senate proposals). Under the Liberal formulation of the plan, this could involve having an independent body advise or nominate names for the prime minister to choose from when making appointments. A government would likely not be able to formalize this system in law — any attempt to bind future prime ministers to a particular model would count as a change to the “method of selecting senators” and thus require constitutional amendment — but a prime minister should be free to exercise discretion in how he or she selects senators, including striking an informal committee to provide names. This itself may create a convention of practice that over time removes patronage and partisanship as a central factor in Senate appointments, in turn increasing the legitimacy of the institution in the eyes of the public.
Informal or internal reform could significantly improve the Senate’s functioning as well as shore up its badly damaged legitimacy. Those who decry the lack of an electoral process as undemocratic, however, are unlikely to be satisfied. Nor will those who do not think we need a Senate at all. Proponents of reform that requires formal change should not shy away from pursuing it; if a consensus can be reached, Canadians should expect maturity from their elected representatives and demand a vote on realistic resolutions to amend the Constitution in the respective legislatures. More fundamentally, our political leaders must end calls for blatantly unconstitutional attempts to abolish or damage the Senate as an institution.
Yet if a consensus cannot be reached on constitutional amendment, there are significant changes that could be implemented. It will take only some leadership to make them reality. Without that leadership — and I admit I have yet to see much reason to hold my breath — we are left with a highly unpopular status quo.