In case you haven’t heard, we are in the midst of an alleged constitutional crisis. The Senate, we are told, is running amok, its power-hungry appointed occupants having the gall to review government legislation and even occasionally—be prepared to gasp here—propose amendments. Read any headlines or op-eds about the Senate lately and you’d think that dark clouds swirl overhead—not with rain, but with blood—and the Earth itself has cracked open to swallow us whole.
Unfortunately, this dominant media narrative about the Senate bears little semblance to reality. (Full disclosure: I advised the government on the design of its merit-based, non-partisan appointments process to the Senate.)
It is true that in the current Parliament, the Senate has proposed amendments to several pieces of legislation, including Bill C-14, which sought to regulate assisted-dying policy following the Supreme Court’s invalidation of the criminal law prohibition; Bill C-29, a federal budget implementation bill that asserted federal authority over the banking sector; Bill C-4, which repeals legislation passed under the Harper government requiring disclosure of financial statements for unions and secret balloting to certify a bargaining unit; and Bill C-6, which repeals Harper government legislation permitting the revocation of citizenship in cases of terrorism and treason. Most recently, there is a proposal to separate out provisions for an infrastructure bank for further study from the most recent budget bill, Bill C-44. And Finance Minister Bill Morneau looks set for a standoff with the Senate, as he and Justin Trudeau work to urge the red chamber to approve that federal budget before the summer recess. “It’s important to understand that the House of Commons has the authority when it comes to budgetary matters,” the Prime Minister warned last week.
Critics view these examples as illustrative of a new form of Senate activism. But the Senate’s current activity is well within the bounds of the chamber’s traditional role of “sober second thought” you read about in high school. To date, the Senate has proposed amendments on six bills out of a total of 55 government bills introduced so far in Parliament. By contrast, political scientist Andrew Heard reports that the Senate amended 8.3 per cent of bills between 1994 and 2011; in two of those recent Parliaments, the Senate amended more than 10 per cent of all bills.
More importantly, the Senate has not, at this point, blocked or rejected any government legislation, either by voting it down (something that has occurred five times since 1988) or by seriously delaying or refusing to hold a vote (something that has occurred more often).
To imagine what a truly activist or obstructionist Senate would look like, consider the upper chamber’s behaviour during former prime minister Brian Mulroney’s government: the Senate temporarily blocked a major borrowing bill, played ping-pong with the House by repeatedly proposing amendments to a bill on the Patent Act, engaged in what political scientist Ned Franks describes as a “prolonged struggle” over a copyright bill, proposed amendments to two controversial immigration bills and another amendment to a crucial supply bill over the use of special warrants by the executive, engaged in efforts to amend the Unemployment Insurance Act, forced the 1988 election over free trade, famously defeated a bill regulating abortion in a tie vote and, just as famously, refused to pass the Goods and Services Tax.
In an effort to deal with Senate obstructionism, Mulroney had to stack the Senate with an additional eight senators by employing a never-before-used provision of the Constitution, after which the Senate Liberals filibustered, sending Parliament itself into chaos.
The current Senate, meanwhile, has offered up several amendments which the House of Commons (and the government) has accepted, and others that the House has refused—such as in the case of the assisted dying legislation—in response to which the Senate dutifully passed the bill as originally drafted. (Never mind that the Senate was likely correct on the substantive point: the legislation Parliament passed on assisted dying could very well be unconstitutional).
The Senate is not engaged in activism when it proposes amendments that are accepted by the House of Commons. The Senate is not engaged in obstructionism when it proposes amendments the House of Commons refuses and it then passes the original legislation. Instead, the Senate is merely exercising an advisory or complementary role consistent with its purpose. One might even argue that the record thus far suggests the new Senate has in fact acted with more principle than in the recent past.
What critics of the imaginary new “activist” Senate are really objecting to is the fact that an unelected upper chamber exists at all. Fair enough; it is no doubt true that the Trudeau government’s modest reforms, which have thus far been a marked success by virtually eliminating patronage from the appointments process, will not satisfy those who would prefer to see the Senate abolished or become elected.
Yet depicting the current Senate’s activity as unprecedented activism is ahistorical nonsense, and tying this imaginary activism to the new appointments process is just plain bad analysis. In fact, a recent analysis by Éric Grenier shows that the new Independent senators are more likely to defer to government legislation, not only compared to the opposition Conservative senators (whose job, one might argue, is to oppose) but also the Liberal senators appointed under the old system of patronage appointments.
It is true that the Senate could suddenly start blocking legislation or meddling in matters beyond its purview. On this point I would agree wholeheartedly with critics who argue that the Senate has no business interfering by directly confronting the lower house, which enjoys a democratic mandate.
But I offer what might seem like a modest point about this modest reform: maybe critics should wait to see if anything like that actually happens.
Emmett Macfarlane is a professor of political science at the University of Waterloo.