Senate reform goes centre stage

Why the Tories believe slow-moving Senate reform might work this time

by Colby Cosh

Senate reform goes centre stage

Sean Kilpatrick/CP

Last week’s Throne Speech was expected to be bereft of surprises. As it happened, a cranky Senate page with a handmade sign ensured that the event wasn’t a complete bore. But there was another, subtler eyebrow-raiser in the works. Despite prior reports of Conservative caucus dissension over Senate reform, Governor General David Johnston’s scripted words expressed the Prime Minister’s determination to act fast on it. Reform “remains a priority for our government,” Johnston reported, promising to reintroduce legislation—thwarted by weighty Oppositions in the past—“to limit term lengths and to encourage provinces and territories to hold elections for Senate nominees.”

The Conservative plan to tweak the Senate without opening up a politically unthinkable Constitution-amending process seems about to take its long-awaited first step. And that implies a reignition of the debate over whether a prime minister can actually get away with such a thing. Quebec’s government is already threatening to haul the feds before the Supreme Court to block term-limit and Senate-election legislation. “If they try that, the Court is literally going to laugh at them,” says a confident Sen. Bert Brown, the Conservative reform advocate elected as an Alberta “senator-in-waiting” in 2004 and appointed to the upper house in 2007.

Constitutional scholars are unsure whether Brown is right. The government’s theory is that there is no “manifest conflict”—to use the phrase of Simon Fraser University political scientist Andrew Heard—between Senate elections and the text of the Constitution. The Constitution merely says that the governor general will “summon qualified persons to the Senate”; it does not say Parliament cannot invent new methods of making candidates available for his consideration.

Under the 1982 Constitution, a constitutional amendment would be necessary to change “the method of selecting senators.” (Term limits, on the other hand, are kosher.) “But there is no element of command in Bill S-8,” argues Brown, referring to a Senate-election law briefly brought before the upper house in April. The appointments of elected senators would still adhere to the form prescribed in the Constitution, with the governor general having final say. “The bill merely establishes a guidance framework for the elections themselves.” Brown expects the government to go ahead with an exact copy of S-8, which would allow provinces to hold Senate elections simultaneously with the elections to their own legislatures.

A slightly earlier pass at Senate reform, 2008’s Bill C-20, inspired House of Commons committee hearings on the constitutionality of Senate elections. Most scholars thought they would pass muster with courts, though not without considerable grudgingness. There is confusion over the exact test to be applied. A 1980 Supreme Court decision, the so-called “Upper House Reference,” established a principle that “fundamental features” of the Senate cannot be altered by Parliament alone. Some thinkers, notably oft-cited Osgoode Hall constitutional expert Peter Hogg, insist that the Upper House Reference was made moot by the renovated Constitution of 1982. A few others, like Heard, think the reference possesses lingering force.

“I don’t think the material logic of that case has been altered by other constitutional changes,” Heard reiterates. If he is right, and if unelectedness is “fundamental” to the Senate, a court would have to decide whether to regard provincial Senate elections as a mere means of allowing the PM and the GG to consult with the provinces, or as an illicit provincial obtrusion onto federal territory.




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Senate reform goes centre stage

  1. “to limit term lengths and to encourage provinces and territories to hold elections for Senate nominees.”

    Why is this even an issue? Why would someone oppose it?

    • Well I certainly do, which is to say I don’t support the idea of elected senators.

      In my opinion the senate only exists to vet the constitutionality of legislation, literally a place where elder statesmen give legislation a second look and some cool headed consideration.

      Ideally it should be a non-partisan body, and elections can’t help but make it more partisan. I don’t want my senators worried about elections and the resulting partisan pressures that come from it.

      I would like to see senators appointed by citizen’s comittee. A random selection of Canadians, demographically balanced like juries. Efficient and non-partisan.

      The senate currently has precisely limited and appropriate powers. The last thing I want to see is a senate with increased power and an increased tendency to interfere with parliament, which is what I think you’ll get if you give it a democratic mandate.

      • I agree with some of what you said.

        If they were elected for a term of 10 years, and couldn’t serve again, they wouldn’t have to be partisan, or worried about the next election.

        The senate’s powers are only limited by themselves. Electing them would not give them any more power. The constitution gives them the right to veto a bill. That they don’t is a direct result of them not being elected. So in that sense, they would be a more effective chamber of second thought. This is what the constitution was seeking.

        If they weren’t appointed, but elected, they would have to have the approval of the majority of the people, so while they may be partisan, they would have to be acceptable. I would trust that more than a committee deciding for all of us. I don’t think the committee system worked that well in the USSR.

        If by ‘interfere with parliment’ you mean act as a chamber of sober second thought, you would be saying ‘the last thing I want to see’ is that the constitution be adhered to.

        As long as they are only there for 10 years, with no chance of reelection, they could stick to doing their jobs.

        • I suppose if they can’t be re-elected I’d be less concerned about the partisan angle, though honestly I’ve always been opposed to the concept of party labels in the senate.

          While they’ve always been appointed by Prime Ministers, the fact that they couldn’t be removed once in there meant the parties really had little control over them. Historically the senate has been pretty non-partisan on the whole.

          On a side note, keep in mind the senate can only veto a bill three times. Essentially it amounts to stalling as it exists merely so that recommendations can be made for changes rather than the actual vetoing of a bill. Ultimately a parliament can ram through legislation given time.

          I guess at the heart of it I’m simply concerned that we’re just recreating parliament, which would be redundant. I like having a mechanism that allows for deeper consideration of bills before enactment, but if we’re just recreating parliament, then I say ditch the senate altogether.

          • I guess at the heart of it I’m simply concerned that we’re just recreating parliament, which would be redundant. I like having a mechanism that allows for deeper consideration of bills before enactment, but if we’re just recreating parliament, then I say ditch the senate altogether.

            Agree with those thoughts in particular and the rest in general.

            Overall, I mostly like the Senate just the way it is, especailly in terms of not being directly elected and no term limits.

            One enhancement that I would support is a requirement that the provincial legislature related to any new senator must approve the recommendation of the PM.  Getting approval of 2/3 of HoC would also be OK.  And I’m not against the citizen committee approach.

            In terms of term limits it seems to me that the main benefit of the Senate (as it is) is that after 10 years or so some of those senators start to become very very knowledgable about one topic or the other, and once in a while that knowledge shines through – they provide that sober second thought that the place is supposed to provide.

            Oh, and I wouldn’t mind if they had to ditch the party labels.  Ie no LPC Senate caucus meetings, no CPC Senate caucus meeting, etc.

        • In terms of citizens’ committees, I think they work quite well. It’s essentially just a jury of average people. They’re already used for major changes in which parliaments shouldn’t be directly involved, such as studying and changing voting systems.

          Because you never have the same people on the committees, and because they’re balanced by demographic, it’s a very reliable and non-partisan way of doing certain things.

          Of course it’s not something to be used in lieu of democracy. It’s simply a way of making merit based decisions on the periphery of the system. I consider the appointment of senators, whose powers are and should be very limited, something that would benefit from such a method.

          In my opinion, picking senators should be similar to picking supreme court justices. I’m not fond of democracy in these cases specifically because they’re there to balance the central system which is democratic.

          Otherwise, wouldn’t people just vote the same way twice?

  2. The Senate is totally irrelevant.  So some mollycoddled page holds up a sign while some irrelevant hack reads a speech to a bunch of other irrelevant hacks, half of whom are asleep and a quarter of whom are playing hookey on our dime.  We even have clowns dressed up.  The only thing we are missing here are the cotton candy vendors.  

    To prove my point, the page gets all the press. 

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