Our looming constitutional crisis


In the midst of defending the Senate, Colin Kenny offers the following.

No question, initiators of legislation requiring public expenditures should be elected. That’s why we have the House of Commons. But the Senate is designed to review that legislation. While it can delay its passage, by convention everyone agrees that it can’t stop it. So the argument that it is “undemocratic” to appoint significant components of government doesn’t hold water. In the end, within the legal guidelines of the constitution, the elected component of Parliament has the last word. That’s all that matters.

Senator Kenny is right to note that an elected Senate would likely feel empowered to defeat bills passed by the House. But he seems to ignore the fact that the unelected Senate has felt sufficiently empowered to do so twice in recent years—see here and here.

Bert Brown has mused vaguely of some mechanism to ensure the House’s supremacy, but until such a thing exists, it is likely worth going back to one of the questions Alice Funke suggested for debate in the NDP leadership campaign.

How will a federal NDP government face what will almost certainly be its first constitutional crisis, namely a showdown with the Senate? 

So far as I’ve seen, only Brian Topp has engaged this scenario.

(Via Twitter, a couple of readers suggest Senator Kenny is referring specifically to money bills. He may well be, although in the next paragraph after the one noted above he seems to refer only to “legislation.” Either way, I think the point still stands: It is worth wondering how a Conservative Senate would interact with an NDP government and how would the presence of elected senators impact that situation, especially given the willingness of a Conservative Senate to override the House in recent years.)


Our looming constitutional crisis

  1. To be fair, what Kenny is actually saying is that the Senate does not stop Bills requiring public expenditures.

    • This.  He is specifically referencing the constitutional convention by which the Senate bends to the House’s will on supply motions.  

  2. Finally an opinion rooted in the traditional role of the senate and common sense, and from a long time senator no less…late you come sir!

    The second occasion of a party killing a commons bill is news to me. Isn’t it bitterly ironic that the party that claims to want to modernize the senate and the same one that has complained the most about liberal skullduggery in the senate is the only party to have actually TWICE circumvented the will of a minority parliament, and lied shamelessly to boot!

     It could even be said that stacking the senate not only set up the: “See i told ya it wouldn’t work”! scenario that Harper apologists tout, it also had the useful function of blocking the democratic will of a minority Canadian Parliament.

    God we have a supine and spineless media/punditocracy in this country. Even if you support the idea of a EEE senate why would you not condemn such disgracefully undemocratic behaviour?

  3. Both of those examples were private members’ bills. Has the Senate ever defeated a Government bill?

    • The distinction isn’t terribly important, but I recall the liberal sentae killed a liberal bill which would have unduly restricted freedom of the press.  It was the senate acting in it’s classic sense, undoing an obvious (in that case unconstitutional) error made by the lower house after sober second thought.

  4. What difference does voting make? The PMO runs the country and no one elected them.

  5. Kenny must, by definition, be referring to Government Bills – the expenditure of public funds is a prerogative of the Crown.  

    Bills authorizing the expenditure of public funds require a royal recommendation (see: http://www.parl.gc.ca/procedure-book-livre/Document.aspx?Language=E&Mode=1&sbdid=F26EB116-B0B6-490C-B410-33D985BC9B6B&sbpid=E383D9CD-3C1B-4F99-9B2A-2D0D92820915). Practically speaking, this means they must be introduced by a minister in the House of Commons.
    The only example I can think of off the top of my head of a Government Bill voted down by the Senate was the Bill that would have criminalized abortion. However, that Bill would not have authorized an expenditure of public funds.

    I would say that Kenny is correct in saying that the Senate has, by convention, not killed Bills of the type to which he’s referring.

    • Wasn’t the abortion bill merely delayed, then the election happened before it could be re-passed in the house?

    • My recollection is that the Bill was defeated when Senator Pat Carney, who the Mulroney headcounters believed was in Victoria that day, strode unexpectedly into the chamber and cast her ‘nay’ vote.

      I stand to be corrected.

    • I suppose there would be two major examples of refusing to pass legislation (without actually defeating the legislation): the GST and free trade.

      • Off the top of my head, I can’t think of any more money Bills that the Senate has delayed…but there are definitely examples of Bills the Senate effectively scuttled without actually voting them down.

  6. In response to Funke’s question, an NDP government would most likely use Senate obstruction as a means/pretext for declaring all out war on the Senate.  It would then do everything it could over the course of its mandate to abolish the body.  (This is basically what happened with the Nova Scotia Legislative Council in both 1878-1882 and 1925-1928; it survived the first period, but not the second).

    • If I’m not mistaken, the abolition of the Senate is NDP policy today, and has been for some time, has it not?
      Which is not to say that they wouldn’t use Senate obstruction as a rationale for pursuing that policy, just to clarify that the NDP calling for the abolition of the Senate could never be seen as a response to the Senate interfering with an NDP government given that fact that said policy pre-dates the existence of said NDP government.

      • Indeed, Senate abolition has been longstanding NDP policy.  But, it’s an open question how hard an NDP government would push for abolition (just as it’s not clear how hard Harper is really willing to push on Senate reform).  If the Senate decides to play hardball and votes down major NDP initiatives, suddenly the NDP PM’s mind is made up—they’re going to push hard for abolition.  If the Senate goes along, with maybe an amendment here or there, then abolition might get put off until later, i.e., never.

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