Thursday, 23 February 2012

The Canadian Senate: A Measure of Performance Legitimacy?

Discussion of the Senate often vacillates between equally untenable alternatives: outright abolition and wholesale reinvention. The former position - chiefly promulgated by the New Democrats - is grotesquely unaware of both this country's history and its institutions. The latter - most vocally asserted by the Conservatives - seeks to accidentally reinvent Parliament's upper house by introducing a modicum of democratic legitimacy. While stasis is  equally undesirable, the status quo is preferable to unthinking change solely for the sake of change. Yes, the Senate lacks democratic legitimacy, but simplistic solutions to rectify this will do more harm than good.

I have noted previously that there are potential unintended consequences of reform. In the first instance - the NDP position - there is a complete lack of institutional awareness. Thankfully, the outright amputation of an entire branch of Parliament in the form of the Senate is certainly impossibly Constitutionally. The case for abolition ignores not only constitutional reality, it fails to understand the basic constitution of Parliament as - for lack of a better term - a trinity of three bodies in one: the House of Commons, the Senate and (the unequally misunderstood) Crown. To remove any of these - regardless of how superfluous they may appear - is to fundamentally alter the bedrock of governance in Canada. Additionally, such a move would undercut the delicate balance - albeit one incredibly out of sync - between historic compromises of regional representation and representation by population. In theory, a probably functioning Senate works to balance regional demands which are offset by gross disparities in regional population (and also along linguistic lines). I will return to this point later.

The second solution of electing Senators is equally problematic. To introduction democratic legitimacy into the second chamber opens a potential Pandora's Box of disequilibrium by pitching two democratically empowered bodies against one another. Historically the legislative role of the Senate has been subservient to the House. The Commons makes the laws, the Senate parses them but ultimately carries out its will. This, however, has been notably challenged. Despite this anomaly, historical practice is consistent. Additionally, an elected Senate has the potential to undermine its important task as 'sober second thought' by affixing a temporary partisan alignment for far longer than that of the House. It also creates the potential of a chamber with little historical memory and an overtly partisan character (although current practice suggests this has become fact already).

While both arguments - abolition versus elections - seem poles apart, they are united in a particular notion of legitimacy that is insufficiently interrogated and often assumed uncritically. Both assume that any body that is unelected by the people is illegitimate. There are numerous reasons why this claim is overly simplistic, some endogenous to Canada's historical development. First, representation in the Senate is not based predominantly on the representation of citizens per se, rather it is based on regional representation. As such, the purpose was to express aggregate representational not collective individual preference. While clearly 'undemocratic', it is nevertheless important to place institutional arrangements within the very particular historical circumstances in which they came to be. Regionalism remains a central feature of Canadian political life. To undermine the ability of the Senate to mediate regional claims for representation - however poorly it may currently do so - merely addresses one issue while exacerbating another.

A second fact also refute such facile notions that legitimacy can only be procured via the ballot box. Much of Canada's political institutions remain outside the purview of voters yet retain an extremely high degree of legitimacy. The obvious example is the justice system. While various factions often decry the power of the courts when decisions run counter to their preference, the judiciary retains massive popular legitimacy. This, of course, rests upon the character of judges which is non-political and professional. Other key institutions remain outside democratic oversight. Bureaucracies at all levels are subject to executive control, yet their function remains legitimate. Other increasingly prominent actors, such as Parliament's oversight officers or provincial Ombudsman offices, have a great deal of legitimacy in carrying out their function. Clearly, much of what underpins Canada's institutional order - whether the judicial branch or the public service - are popularly legitimated despite the absence of electoral legitimacy.

It is useful to distinguish between input or output forms of legitimacy or, put crudely, the difference between what goes into making decisions versus what results. Richard Stubbs provides a useful discussion of the two in applying the concept of 'performance legitimacy' to the development of East Asian economies. For Stubbs, what explained the lack of democratic demands in the region was an output or performance legitimacy that delivered gains in economic well-being and standards of living, gains which muted mass democratic movement in civil society. So long as the regime continued to deliver tangible economic benefits, societies were prepared to accept a certain level of 'soft authoritarianism'. The point is that legitimacy need not be tied exclusively to the democratic will. While semi-authoritarian Asian countries may seem like a spurious comparison, it is a useful illustration of the point.

My contention is that Canada - both its citizenry and its political elites - often focus myopically on the input side of the spectrum while overlooking the output side of the equation. As Scharpf (cited by Stubbs) notes, inputs and outputs work together jointly. Rather than continuing to view the Canadian Senate through the input side - of how senators come to be - it may be more useful to focus on what they do when they get there. Simply put, if the the Senate produced a more tangibly beneficial output, perhaps its stature and legitimacy could be increased, reinvigorating is as a body and, by extension, the validity and vitality of Parliament as a whole.

Reforms have been dealt with at length elsewhere in numerous books, dissertations and policy papers. Indeed, Dawson notes that debates about reforming the Senate began almost immediately after Confederation so the ground is well-trod already and rife with a danger of nauseating repetition. Most, however, are unable to think beyond a narrow range of reforms or existing structures. More importantly, there is a clear lack of consensus about what the Senate should do, if anything at all. There are a few key considerations of my own that I find useful.

First, any reforms should reaffirm the Senate as a regional compromise on representation. At the core of this is an understanding of the original Confederation bargain which rejected the subordination of smaller provinces to those provinces with larger populations. Moreover, representation in the Senate should not be divorced from representation in the House. While the idea of pure 'rep by pop' has never been a a central feature of Canadian politics, coordinated reforms could better balance the two. By moving towards more fair Commons representation - not, I would argue, by increasing seats, but by redistributing them - which more closely reflects actual population size, the argument could be more readily made for a more regionally balanced Senate. I don't, of course, discount the difficulty of such a task, as such a compromise requires a desire for compromise that likely does not exist at present.

Second, the character of Canada's upper chamber should change in several ways. Most pressingly, partisan affiliation should be discarded in favour of a non-aligned membership. As long as the Senate is seen to be - and is in reality - a clearing house for partisan hacks, bag-men and electoral failures, its legitimacy is in question. By emulating the collegiality of the judiciary - which, I must stress, will not eliminate difference in opinion or ideology, nor should that be a desired goal - the Senate can better reflect its duty to provide sober second thought and review of legislation. By removing partisan affiliation, the grip of the executive - and by extension party discipline - can be loosened, allowing for more thoughtful and less overtly political decisions or voting patterns.

While I do not necessarily advocate changes to executive prerogative in appointments - or, rather, advising selections - this non-partisan nature will depend upon clear criteria which prevent a Prime Minister from simply appointing whomever she sees fit. To preclude this, stringent criteria should be required before an appointment can be made - closely resembling that of the bureaucracy or judiciary - which ensures the calibre of those appointed. To such an end I would suggest two categories for consideration. First, those with particular skills in subjects pertain to parliament, whether they be constitutional matters or some other pertinent field. This would better enable senators to contribute in a knowledgeable way. Second, consideration should also be made for those who have made a significant contribution to their communities but who are not 'experts'. Community activists with long histories of service should be considered (although they should be meet certain qualifications, like literacy). A professionalized, but not necessarily elite, Senate would do much to restore legitimacy and, importantly, provide an enhanced ability to improve legislation given their expertise.

Third, efforts should be made to make the Senate more representational of Canada's diversity, particularly by the appointment of Aboriginals and First Nations, women and visible or sexual minorities.

Forth, the Senate should be given a suspensive veto rather than an absolute veto. This would ensure that the Senate can provide sufficient feedback, but that, ultimately, the democratic will prevails. In extreme cases, the courts can intervene if there is need.

Fifth, term limits should be imposed, but allowing for the continuance of institutional memory. More efforts should be made to bring professionals in prior to the twilight of their careers. This would dissuade the conservatism of age.

Sixth, ethics rules should be strengthened.

Seventh, if it is to achieve legitimacy is must be seen to be working. The Senate should be provided a greater research and investigative capacity. Related to this, the Senate should enhance its own capacity for interacting with and reaching Canadians. It needs to increase its visibility in order to effective.

There are a myriad of reforms that could be made and these suggestions are not exhaustive. However, the above suggestions cut to the core of contributing to the output and performance legitimacy of the Canadian Senate. Focusing on political inputs is largely a dead end. Unless Canadians are prepared to fundamentally alter their political landscape - a process of which the outcome is certain - there is little hope of change on this front, particularly with provincial obstruction. Even then, such changes would be unwelcome. Proponents on reform should instead focus on outputs, seeking ways to bolster the Senate's legitimacy by way of providing it with an important and visible role in Canadian political life. The Senate could provide an opportunity to enhance representation, not only for Canada's regions, but also populations so often on the margins of Parliament - particularly Aboriginals and women (despite notable gains). Finally, a non-partisan Senate with a wider array of skills beyond party loyalty would provide a responsible bulwark against the excesses of the executive and its hold of the legislative branch. While the Harper regime has done much to enhance the role of the Crown, it has done nothing to halt the slide of either the House or the Senate. Canadians are best served, and their democracy best protected, when all three components of Parliament serve a clear purpose, a purpose bolstered by popular legitimacy.

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