The Conservative in charge of fixing the Senate

There’s no shortage of veteran politicians around Ottawa—not to mention party strategists, academic experts and even journalists—who can tell war stories about doomed efforts to reform the Senate. But Tim Uppal, a second-term Conservative MP from Edmonton, isn’t one of them. Before politics, he was a residential mortgage manager, community radio host, and coach of the traditional Punjabi sport kabaddi, which has been described as a combination of rugby, tag and wrestling. Maybe the last credential is what suggested to Stephen Harper that Uppal might have what it takes to be his secretary of state for democratic reform, the junior minister whose top priority would be to fight through inevitable resistance and finally make good on the promise to overhaul the Senate.

Uppal is spending his summer trying to build support for the Senate Reform Act, which was tabled in the House last month. The bill would limit senators, who can now serve until age 75, to nine-year terms. It would also encourage, but not compel, provinces and territories to hold elections that would produce lists of winners from which prime ministers would be expected to appoint senators. In an interview, Uppal took an upbeat, optimistic tone, and resisted being drawn into a detailed discussion of exactly how the revamped Senate would function. Pushed on just about any issue, he repeated his mantra: “The status quo is not acceptable.”

And Harper’s position does, in fact, boil down to saying something’s got to change—an unelected Senate, in which partisan appointees currently collect $132,300 a year, plus benefits, just can’t be allowed to stand. But the limited fix Uppal is assigned to promote is prompting predictable questions, the sort that have derailed many past bids at reform. If senators are to be elected, how will that change their relationship with the House? It stands to reason that they will feel emboldened to more often block legislation sent to them by MPs. And if democratic legitimacy makes the Senate more powerful, won’t that also make its regional imbalance a bigger problem? For instance, British Columbia and Alberta now have six senators each, while New Brunswick and Nova Scotia get 10 senators apiece.

Uppal doesn’t dwell on these and other contentious points. When pressed, he concedes that elected senators wouldn’t feel tightly bound by the old convention that they must bow before the will of the House. “Those senators would be expected to represent their constituents,” he said. “And if that’s to voice their concern about certain legislation, I think that’s part of their job.” Still, Uppal holds that the House would remain “paramount at the end of the day.” He predicted the new, improved Senate would limit itself to pressing for further study of bills, delays short of creating a deadlock.

But why? Even as an entirely appointed body with a dubious reputation, the Senate has quite often refused to dutifully pass laws sent to it by the Commons. Under Uppal’s bill, senators would gain a far clearer claim on the right to flex their legislative muscle. Indeed, Uppal himself points out that they would be more independent-minded than MPs. Limited to a nine-year term, with no chance of renewal, a senator wouldn’t share an MP’s concerns about courting voters or staying in the good books of party bosses. “A senator would have a chance to learn the job, gain the experience that’s necessary, not have to worry about being re-elected,” he says. “There’s no pressure in the sense of trying to appease people or certain groups.”

That vision of senators as unfettered players in an altered federal power structure was bound to attract concern. But few expected the first loud objections to be raised by Conservative senators. Yet that’s what happened last month, though behind the closed doors of a party caucus meeting. Exactly how many senators took issue with Uppal’s proposed reforms isn’t known. But he faced enough pressure for Alberta Sen. Bert Brown, a leading advocate of reform, to write to his Tory Senate colleagues admonishing them for how they “showered” Uppal with complaints. “Every senator in this caucus needs to decide where their loyalty should be and must be,” Brown wrote. In case there was any doubt, he provided the answer: “the Rt. Hon. Stephen Harper.”

Sen. Pierre Claude Nolin is the only dissenting Tory senator who agreed to be interviewed by Maclean’s about his reasons for opposing Uppal’s bill. In some respects, Nolin is a case study in why the Senate urgently needs updating. Formerly a key Tory organizer in Quebec, he was only 42 when then-prime minister Brian Mulroney appointed him to the upper chamber in 1993. If he serves until he’s 75, Nolin will have collected a Senate paycheque for 33 years. “It’s probably too long,” he cheerfully admits, agreeing that term limits are needed. To remove the taint of patronage, he proposes appointments should be made by the prime minister from names put forward by advisory panels in each province, similar to the way judges are named now.

On electing senators, Nolin is staunchly opposed. The Canadian parliamentary system, he says, was clearly designed to have the House represent the people. It’s where the government of the day is held accountable, and falls if it fails to win a confidence vote. “The Senate should not claim those features. The day you will have an elected Senate, you will have conflict between the two houses,” Nolin says. “Our system was not envisaged this way. We’re putting in jeopardy our parliamentary system.” It’s an argument he says he’s made directly to Uppal, and to Harper, soon after he became Prime Minister in 2006.

Nolin won’t say how many of his fellow Conservative senators harbour similar misgivings. Caucus discussions are confidential. Even Tory insiders aren’t sure if some of the party’s senators might actually vote against Uppal’s bill, or if they simply want clearer answers on how it’s meant to change Parliament. “To be fair, some senators want a more elaborate, in-depth examination of the bill,” Nolin says. Uppal promises to give them just that. “It’s important that we go through a full study,” he says. “We want to make sure this bill goes through the [parliamentary] committee process, and bring in all the witnesses to have all the discussions that need to be had.”

If Uppal’s lack of experience shows anywhere, it’s in that casual faith in those upcoming hearings. Past attempts at Senate reform have been derailed when such discussions were bogged down in endless proposals and counter-proposals, which have a way of escalating into demands and threats. Powerful provinces are already lined up against the bill. Quebec’s government threatens to challenge Harper’s reforms in court. Ontario Premier Dalton McGuinty favours abolishing the Senate over trying to fix it. British Columbia’s Christy Clark voices concern that a revamped Senate would “entrench” the imbalance that sees B.C. with far fewer seats than its population warrants. Even in Uppal’s—and Harper’s—home province, former Tory premier Don Getty has complained about Alberta’s under-representation.

Uppal argues those provincial objections amount to saying, “Let’s do it all or let’s not do anything.” Adding new senators or redistributing the existing 105 seats would require provincial unanimity behind a constitutional amendment. So would abolishing the Senate outright. But ever since the failure of the Meech Lake accord in 1990, and its successor, the Charlottetown accord, in 1992, politicians of all parties have avoided any hint of plunging back into constitutional negotiations. Harper’s approach is to limit himself to changes he can make without provincial consent. “We are taking Senate reform steps that are reasonable and that are within the constitutional authority of Parliament,” Uppal says.

Not all experts agree. Limiting Senate terms is the less controversial measure in the act, partly because something like it has been done before: Canadian senators were originally appointed for life, but in 1965 the federal Parliament imposed mandatory retirement for senators at age 75. Ottawa’s power to set a framework for Senate elections isn’t nearly as clear-cut. A Supreme Court of Canada decision in 1980 said Parliament could not unilaterally change the Senate in ways that alter “the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process.”

Harper’s reform is designed to try to survive the all-but-inevitable court challenge. It does not require straightforward elections to fill Senate vacancies. Instead, this bill would “strongly encourage” provinces to “implement consultative processes.” These quasi-elections, based on Alberta’s existing Senatorial Selection Act, would amount to non-binding plebiscites. Officially, appointments to the Senate would continue to be made, just as they have been since 1867, by the governor general on the advice of the prime minister. The prime minister wouldn’t be formally bound to appoint an individual who won a provincial election, although the political pressure to do so would be enormous. Uppal is careful to say the process would “give Canadians an opportunity to have a say in who represents them in the Senate,” which sounds like something short of the equivalent of casting a ballot for an MP.

It’s a novel concept: elections that provinces wouldn’t be required to hold, the results of which the prime minister wouldn’t be forced to accept. Still, Uppal argues that once Canadians gain an understanding of what’s proposed, they’ll like it, and premiers will feel pressure to fall into line. Nolin predicts the opposite, that the initial support for any move toward democracy will fade once Canadians understand that the real result is an uncertain change in the system. He thinks a number of Tory senators might balk. “If you took the vote today I would lose, at least in my caucus,” Nolin says. “But after a proper debate, I think there’s a possibility that my opinion could take it.”

Experts who have witnessed past attempts at Senate reform fall apart are watching skeptically. “They’d be implementing some sort of shadow electoral system,” says David E. Smith, University of Saskatchewan professor emeritus of political science. “It would help if we could get some sense of what the objective is here. Is it to have a check on the lower chamber? Is it to represent under-represented sections of the country? It’s just not clear.”

Providing clarity to professors, though, is hardly the government’s priority. Uppal offers a more populist case for the necessity of passing his bill. “These are good steps in the right direction,” he says. “We’re hearing that from Canadians across the country.” What the government will be hearing in parliamentary committee hearings this fall—once Canada’s infamously fractious constitutional subculture sets its teeth into the bill—could be quite another matter. So far, Uppal comes off as confident. But experience leaves little doubt he and his Senate Reform Act are in for a rough ride.