Thursday, 23 May 2013

(Dis)Order of Canada: Can Leonard Cohen Save the Senate?

In 1849 the Governor of the Province of Canada gave assent to the Rebellion Losses Bill, completing the process begun a decade early follow Lord Durham's famous report. With the passage of this legislation - the Governor allowing a bill he disapproved of to pass - responsible government was established in Canada (all due credit, Nova Scotia was first to that mark only shortly before). The point is that the powers of the unelected Governor to interfere with the will of the legislative assembly was ended. Over the course of decades, the residual powers of the Crown were further democratized, to be exercised on advice of the Prime Minister or Cabinet. The point is that the power of the Governor - now Governor General - were ultimately curtailed. The position is now apolitical and non-partisan, operating at a distance from the day to day of politics.

The point is worth mentioning given that the recent scandal over Senate expenses has provided a public forum for so-called reform ideas to be brought forward. The leader of the opposition has held firm to his party's commitment to abolition, reality be damned. The ideas has considerable currency among those ignorant of the country's political and constitutional history and the legal feasibility of such a rash act. They understand neither the Senate's purpose nor its function. What unites disparate reform ideas is that each is couched in the language of democracy. The Senate as an appointed body, they argue, is unelected and therefore unaccountable. There is considerable irony here.

Former Ontario MPP Greg Sorbara has indicated his plan for democratizing the Senate, pointing to the appointment process for change. As he admits: "it is only a half a loaf when it comes to modernizing and democratizing our Senate". Sorbara makes one vitally important point: the composition of a rabidly partisan Senate inhibits its legitimacy and undermines its independence. Indeed, the link between partisanship and independence was made forcefully ninety years ago by MacGregor Dawson. Certainly improving the caliber of individuals in the Senate would go a long way. Indeed, by improving the appointment process the Senate could be more reflective of Canada's diversity - appointing more women, visible minorities and Aboriginals to the upper chamber. Additionally, only individuals with important qualifications could be appointed - those with background in law, expertise in areas pertinent to legislation of histories of community service could be considered. This would be a wholly good thing.

The problem is that Sorbara's prescription for reform is that it is inherently undemocratic and regressive. It threatens the process that was begun in 1840 and solidified in 1849. He would empower the Governor General in the selection process - bringing that office uncomfortably closer to the daily grind of politics. [An important note. While appointments are G in C, that is Governor in Council, they are made in the governors name. He has no role in the selection. That is up to the council: the PM and his Cabinet]. Senate appointments are democratically legitimated because they are appointments made by an executive with the confidence of the House of Commons. The Governor General enjoys no such confidence. He has no democratic mandate. He needs to remain outside of the political fray and divorced from such issues.

The second major problem connected to this appointments process is that it relies on an absurd basis that somehow individuals appointed to the Order of Canada are somehow better placed to appoint legislators. Writes Sorbara:
What a major step it would be for Harper to voluntarily divest himself of the power to appoint new members of the Senate. That power could be transferred to a 20-member Senate Appointments Committee (SAC) made up of respected members of the Order of Canada. It would be the responsibility of the Governor General, using a lens of diversity regarding the Order of Canada cohort, to populate the members of such a committee from time to time.
What a step it would be indeed. One firmly backward and into the past. How is an appointment made a Prime Minister with the confidence of the House less democratic and more illegitimate than a panel made of community activists and celebrities? What specialized knowledge do Wayne Gretzky, Leonard Cohen, David Suzuki, Margaret Atwood and Celine Dion have that makes their choices superior? The answer should be apparent. The process would be headed by panel of celebrities appointed by the Governor General (himself appointed) and somehow we would hope this would improve the legislative process.

The second proposal would limit Senate terms to six years. This is a question that could very well be constitutionally impossible depending on how the Supreme Court rules. It may require an amendment by the 7/50 rule. Beyond the issue of feasibility, it would create a chamber with high turnover and little institutional memory or stability. Without prior legislative experience - something the appointment process might weed out do to an abhorrence of partisanship - few Senators would enter the chamber ready made to legislate. By the time they became well versed in the process and adept at their jobs they would be turfed in favour of a new batch. Amatuerism is already a substantial problem in the House of Commons where there are fewer and fewer long-term MPs serving and certainly few with distinguished careers in the mould of Herb Gray, Paul Martin Sr., or John Diefenbaker. How can a Senate provide an adequate check or improve legislation if a substantial number of its members are trainees?

The point is not that the status quo is acceptable. Rather, it simply points out that proposed reforms are unthinking and inherently problematic. In some cases, as in Sorbara's, they take a giant constitutional step backwards. Rabid partisanship is currently a problem in the House and ties to party and leader impede the work of the Senate. The point, however, is also missed that the Senate is not meant to override the House of Commons. Partisanship or not, its job is to provide sober second thought and represent Canada's regional cleavages. Legislation coming out of the House will pass, regardless of partisanship [there has been only one recent exemption to this rule]. To suggest that a second chamber should be empowered to do more than this turns democracy on its head. Suggesting that the Governor General take an active role in any process beyond the formal functioning of state, the bestowing or honours or - on the very rare occasion when it is required - exercising reserve powers, is itself anti-democratic and contrary to basic principles of responsible government. From a practical point of view it is simply a bad idea. The danger is that in the rush to reform the Senate we fail to understand its purpose and its relationship with the other components of Parliament and create an even bigger mess. The process should not be left in Leonard Cohen's hands.

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