The discussion and debate over the reform of the Senate of Canada into an elected chamber has dominated the opinion sections of Canadian newspapers and the academic journals of Canadian political science since the late 1970s when the Trudeau government reinvigorated interest in the patriation and reform of the written constitution, which ultimately culminated in the Constitution Act, 1982. Trudeau’s final product conspicuously omitted the reform of the upper house, and ever since various political parties, academics, and think tanks have debated options for reform. They typically justify their positions based on theories of democracy (that an unelected legislative chamber in the 21st century violates all democratic principles) and federalism (that a federation, particularly one as vast and diverse as Canada, needs a chamber that better represents the interests of the provinces). I have supported the reform of the Senate into an elected chamber for a good many years and still do. Indeed, I wrote several undergraduate papers on the subject and studied it obsessively from 2007 to 2010 – but never in the course of my research did I come across another equally, if not more important, normative principle with respect to reform of the Senate: parliamentarism. My papers included various summaries of past institutional proposals for reform, which I would like to discuss out of academic interest, but in a separate entry on the history of Senate reform in Canada. Some scholars opposed to the reform of the Senate into an elected body have argued in favour of the status quo based upon these the parliamentarist’s considerations; however, I have yet to encounter a scholar in favour of reform who has adequately responded to, let alone acknowledged, the issue of the Senate’s role as one of two houses of parliament and one of three components of the tri-partite Crown-in-Parliament, which consists of the Crown, the Senate, and the House of Commons. In short, we must understand the Senate as part of its larger whole, the Crown-in-Parliament, and parliamentarism, the evolution and history of the institution of parliament – not as an separate chambered isolated from the House of Commons.
Senate of Canada
I underwent a significant intellectual transformation in 2010, which started in the summer during the Royal Tour of 2010 and culminated during my research for an essay on the prorogation-coalition crisis of 2008 and the subsequent article that Nick MacDonald and I co-authored on the same subject. I used to be a republican, but I become a constitutional monarchist after studying in depth the Crown and its reserve powers and Parliament because I based my republicanism on a profound ignorance of constitutional monarchy, partially due to the American influence accumulated over 5 years of living there and observing the American system of government and his purely written constitution. I’m not arguing that all republicans are ignorant, merely that I gravitated toward republicanism due to a fundamentalism misunderstanding of constitutional monarchy. During this transformation, I also modified my views on Senate reform; I used to wholeheartedly endorse the Triple-E Senate model (equal provincial representation, effective counterweight to the House, and election of Senators) that the CanWest Foundation, the Government of Alberta, and the Reform Party advocated. I still support reform of the Senate into an elected body, but I’ve become skeptical about the other two Es. Now I seek to respond vigorously to the parliamentarist’s argument that the opposing academic camp on this issue has long argued. So far, no scholar in favour of reform has come up with a cogent counter-argument. (Let me know if I’ve overlooked someone’s work!)
Senate of Australia
Namely, I seek to answer this question: how can we reconcile an elected Senate with the principle of responsible government? After all, responsible government means that “the government derives its legal authority to govern so long as it commands the confidence of a majority of the House of Commons” – not a majority of the House and Senate. And crucial pieces of legislation like the budget are universally recognized as confidence measures. But if Senators were elected, they would feel emboldened to oppose the House more forcefully, even to the point of refusing to pass supply, but that refusal would be anti-constitutional and violate the principle of responsible government. This concern is not merely a theoretical abstraction. The Constitutional Crisis of 1975 in Australia, known as “The Dismissal” because the Governor-General dismissed the Labor Prime Minster and installed the Liberal leader in his place, started in the Senate because the senatorial Liberal-National majority refused to pass the budget of a majority Labor government that commanded the confidence of a majority of the House. (I’ll also write about this horrific incident in more detail later on in conjunction with the King-Byng Affair). An elected Senate of Canada absolutely must not be and can never become a confidence chamber, otherwise our Westminster system — premised on providing a balance between liberty and efficiency — would take on the characteristics of American congressional deadlock and irresponsible government.
Australian scholar Charles Sampford explained in “‘Recognise and Declare’: An Australian Experiment in Codifying Constitutional Conventions” (1987) why the Senate of Australia cannot logically function as a confidence chamber in the Westminster system, despite its having been an elected chamber since the creation of the Australian federal state in 1901. “The [Liberal-National] Opposition argued that federalism justified a strong Upper House with the same power over supply as the House of Representatives despite the fact that federalism is a principle about the division of powers not who exercises them at the federal level and, despite the fact that the US Senate, on which the Australian institution was modelled, has more formal powers but no such power to use supply to force a change of government.” In other words, the Senate of the United States can exercise significant power in rejecting legislation passed by the House of Representatives precisely because its rejection of House legislation does not threaten the survival of the government, which is itself divided between the White House, the House of Representatives, and the Senate. However, if the Senate became a confidence chamber in a Westminster parliament, it would invariably destroy the principle of responsible government and render Westminster worse than the irresponsible government of the American separation of powers and totally dysfunctional.
If the Senate of Canada were reformed into an elected body by amending the Constitution Act, 1867, that amendment would probably need to codify the constitutional conventions that govern the relationship between the House and the Senate in order to avoid constitutional crisis and enshrine responsible government as relating only to the House of Commons.
The Parliament of Australia's official explanation states that the government must depend upon the House of Representatives -- not both Houses.
The Parliament Act, 1911 and the Parliament Act, 1949 in the United Kingdom limited the formal powers of the House of Lords and formally granted the House of Commons legislative supremacy, and essentially relegated the role of the House of Lords to a chamber of “sober second thought”, as Canadians would say. The Lords recognize that as unelected officials, they must tread carefully. But no such legal limitation constrains the powers of Canadian senators, who enjoy all the same powers as their colleagues in the House, apart from the introduction of money bills because of an ancient English custom. Unfortunately, the conventional limitations on the Senate’s power do not always apply. In 1987-1988, a Liberal majority in the Senate refused passage of the Free Trade Agreement until Prime Minister Mulroney advised the governor general to dissolve the House of Commons and call and election. Therefore, the Senate inappropriately turned itself into a confidence chamber, just as the Senate of Australia did in 1975 when the Liberal majority refused to pass the supply of the Labor government in the House of Representatives, thus precipitating a significant constitutional crisis. Then in the next parliament, the Liberal majority in the Senate turned itself into a confidence chamber again by refusing to pass the Mulroney government’s GST bill. In order to avoid the necessity of requesting another dissolution, Mulroney resorted to the emergency provision and rather extraordinary measure contained in section 26 of the Constitution Act, 1867 that allows the Queen to appoint an additional 8 senators on the advice of the Prime Minister of Canada. There are two types of people in the world: those who understand what I’m talking about, and those who criticized Brian Mulroney for this particular decision. I view section 26 of the Constitution Act, 1867 as the Canadian equivalent to section 57 of the Commonwealth of Australia Act, 1901 that allows the Prime Minister of Australia to advise the Governor General to dissolve both Houses simultaneously in the event of prolonged deadlock. As Ironically, Professor Sampford relegated that gem of wisdom that I quoted above to a footnote in his paper, but it is a fundamental concept: deadlock between the two Houses in a Westminster system has profound consequences on the government and can precipitate unnecessary early dissolution, or even full-fledged constitutional crises.
As I stated at the beginning of veritable treatise, I still support the reform of the Senate into an elected body — provided that any such reform adequately takes into account the problem of upper chambers and responsible government in the Westminster system. The Commonwealth of Australia has functioned with an elected Senate since its inception in 1901 and encountered only one, albeit it very serious, problem. But one serious problem in 110 years does not invalidate the model, and thankfully since Australia already experienced this constitutional crisis, we could build an elected Senate here in Canada that could steer clear of those treacherous waters. The Parliament of Australia operates on the same tripartite Crown-in-Parliament as does the Parliament of Canada and shows overall that an elected upper house can work when it respects the principle of responsible government, that the government does not derive any authority to govern from the upper house.
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The Canadian Senate has never had an obvious purpose.
The "fathers" of Confederation, who designed it 150 years ago, did not seem to have a clear idea as to what role they wanted their Senate to play.
In other federations -- that is, countries with federal systems similar to Canada's -- the upper houses usually fulfill a "federal" function. They were designed to be the eyes, ears and voices at the centre for the federations' "constituent units" -- the states, provinces, or what have you.
There is a hint of that in the role of the Canadian Senate, but only a hint.
During the decade and a half of fevered constitutional activity that started with the run-up to the first Quebec sovereignty referendum in 1980, many demanded that the Senate be turned into a true institution of Canadian federalism.
Triple E: The Western demand
While Quebecers pushed for an asymmetric federation, one that would assign the necessary powers to their "distinct society" (a phrase that goes back to the original constitutional discussions of the 19th century), Westerners wanted a "triple E" Senate, on the American model.
Canada's Senate, they demanded, should be elected, effective and have equal members for all provinces.
Triple E was a rallying cry of the Reform Party, of which Prime Minister Stephen Harper was one of the original class of 1993 MPs. (In fact, it was Harper who put the triple-E plank into Reform's 1988 campaign platform.)
Even some non-Westerners have expressed enthusiasm for a more powerful, representative and "federal" upper house.
Claude Ryan, who led the Quebec Liberal Party in the 1980 referendum campaign, advocated that the Senate should be remade as a "House of the Provinces."
Ryan's idea was based not on the U.S. model, but on the German upper house, the Bundesrat, whose members are delegates of Germany's constituent unit ("Länder") governments.
The German upper house's function is to vet federal legislation that might have an impact on the Länders' role -- which could include a lot of proposed laws.
If Canada had such a system, and the federal government were to propose new criminal legislation which the provinces would have to implement (such as increased mandatory minimum sentences), a Ryan-style House of the Provinces would be able to amend or even block it.
When the Quebec Liberal leader proposed his House of the Provinces, his federalist colleague, then-Prime Minister Pierre Trudeau, reacted the way Stephen Harper did to the Truth and Reconciliation Commission.
He acted as though it had never happened.
Sober second thought
There is another putative role for the Senate, the one envisioned by John A. Macdonald.
It is to be the chamber of "sober second thought."
Liberal MP and former party leader Stéphane Dion has posted a well-reasoned essay on Senate reform on his website that, for the most part, does not overly tilt toward partisan advocacy.
In it, Dion cites the way in which, historically, the Senate has played that "second thought" role.
"Between 1994 and 2008, the Senate amended nine per cent of the Bills approved by the House of Commons and only explicitly rejected two out of 465 Bills." Dion writes. "The Senate acted exactly how a Chamber of sober second thought is expected to. Year in, year out, it amended from eight to 10 per cent of the Bills proposed by the House of Commons and almost never rejected any."
Dion explains that the Senate was able to perform this useful function because its members were not as involved in partisan politics as were their colleagues in the House of Commons.
He then bemoans the fact that Prime Minister Harper has imposed the same ironclad, partisan discipline on his Conservative senators as he does on House members, thus effectively stripping the Red Chamber of that historic "sober second thought" function.
A house of entitlement and privilege
There is yet another view of the Senate's vocation that may be closest to reality.
The Canadian Senate, from this perspective, was meant to be neither a key feature of the federal system nor a legislative check on the House of Commons.
It was, mostly, designed to be Canada's answer to the British House of Lords.
Lacking a true aristocracy, those colonial wannabes, the fathers of Confederation, decided to create an ersatz one -- ergo, the fathers' insistence that all Senators must own at least $4,000 worth of property, a princely sum in 1867.
Neither women (not deemed "persons"), nor working-class renters, nor tenant farmers were welcome in the Senate that Sir John A. Macdonald and his colleagues created.
From its inception, Canada's upper house was essentially all about social class and privilege.
And it has not changed much in nearly 150 years.
Women were finally allowed in only in 1929, after the Famous Five took their historic case first to the Supreme Court (where they lost) and finally to the British Privy Council.
But non-property owners -- and that includes the millions of Canadians who rent their homes, not to mention most Indigenous Canadians -- are still not welcome.
And the principal qualification for admission remains prime ministerial whim, usually informed by partisan considerations, and not much else.
The scent of entitlement, snobbery and self-reward clings to the Senate, to this day, made only stronger by the reluctance of too many of these well-heeled political appointees to even pay for their own breakfasts (when partaking of what the airlines offer would be beneath their dignity).
That is why Canada's traditional party of the left, first the CCF, and then its successor, the NDP, has always favoured a simple sort of reform: abolition.
How Mulcair could go about abolition without massive constitutional changes
Current Official Opposition and NDP leader, Tom Mulcair, promises that he will proceed with abolition if his party forms government.
That will not be easy.
It will require constitutional change, which, in turn, would require consent of the federal House of Commons and all of the provincial legislatures.
In the past, fundamentally changing any part of the constitution has been inevitably linked to other demands for major changes.
Quebec has not been willing to accept Senate reform unless it got its traditional demand for recognition as a distinct society.
Canada's Indigenous people failed to get the self-government and recognition of their rightful place as full partners in the federation they were offered in the failed Charlottetown Accord of 1992.
That failure is an open wound on the Canadian federation, together with all the other affronts to Indigenous Canadians.
First Nations leaders do not have an official place at the constitutional table, but could Mulcair get away with abolishing the Senate without addressing their concerns?
Those are big and difficult questions.
Were he ever to get the chance, Mulcair might choose to address Indigenous concerns non-constitutionally, through the nation-to-nation approach he has promised.
And he might, just might, be able to convince a Quebec government to agree to Senate abolition without constitutional recognition of distinct society if he, again, were to pursue other measures that demonstrate respect for Quebec's jurisdiction.
As prime minister, Mulcair could, for instance, repeal Harper's federal criminal code changes that are obnoxious to Quebec, and only proceed with future legislative initiatives that implicate Quebec's (and other provinces') role on a cooperative, consultative basis.
In other words, if an NDP government were to set an entirely new and much more open tone in its dealings with Indigenous Canadians and with the provinces, that might make it easier for all concerned to go along with what would likely be a popular move: rolling up the Senate's red carpet for once and for all time.
As well, as it proceeded to abolish the Senate, a new government could also move to enlarge the House of Commons, by including added members who were elected proportionally.
An NDP government might even consider mandating a minimum number of Indigenous MPs, something the New Zealanders have done with some success.
In other words, Senate abolition could be linked both to a renewed spirit of federal cooperation (which fully includes First Nations) and a program of genuine democratic reform.
That could make it acceptable to all -- to use the currently all-too-fashionable term -- stakeholders
It may be a tall order, but it would sure beat the status quo.
Photo: flickr/ Tony Webster