Thursday, 4 July 2013

Cabinet & Senate: An End to Government Bills in the Upper Chamber?

News that the current Leader of the Government in the Senate is stepping down is not surprising. A long serving veteran of the upper chamber, Marjory LeBreton is close to the mandatory retirement age and would not be able to serve in a theoretically re-elected Harper ministry in 2015. LeBreton has also been front and centre for the Senate expenses scandal, a role that has been largely unhelpful for the government in diffusing the situation.

What is surprising is the signal from the Prime Minister's Office that, in future, no member of the Senate will sit in the federal cabinet. While a new Government Leader will ultimately be appointed, it will not come with a cabinet portfolio. This move marks a distinct break with the practice and tradition of cabinet formation and its relationship with the red chamber.

The move is likely motivated entirely by the recent scandal and the general public's - and parliamentary - unease with the appointed chamber. It sends a message that the 'unelected and unaccountable' Senate will not have a role in the Harper government and that only individuals with a democratic mandate will wield any authority.This raises a number of issues about the ability the Senate to legislate moving forward and, ironically, about accountability.

First, the Senate is not simply a chamber of 'sober second thought'; it is a legislative chamber with powers nearly equal to that of the House of Commons. Deference is paid to the elected House in terms of money bills. Budgets, as such, originate in the Commons. These powers are entirely constitutional, albeit increasingly subject to a democratic critic. More to point, in theory the Senate can block legislation entirely (although some, Heard, for instance, argue that convention limits the use of this power).

It is also a legislative chamber from which government bills can originate. The current parliament has seen seventeen such bills, ranging in scope from the First Nations Elections Act  to the Safe Food for Canadians Act. Suggestions that the Senate cannot (or should not) legislate run against constitutional reality. More to the point: bills originating in the Senate nevertheless require the consent of the House of Commons and, as such, receive due scrutiny (in terms of debate and committee hearings) as well as democratic legitimacy.

Herein lies a problem. Government bills require the sponsorship of a minister and the introduction of that cabinet member at first reading. This task is performed in the Senate by the sole cabinet representative there: the Government House Leader. While it is it tautological it is worth noting again that only a member of the government - a responsible minister sitting in cabinet - can introduce government bills. If the House Leader is not in cabinet it is not a member of the government. (Contrary to received wisdom, including in the media and some MPs themselves: sitting on the government side of the House does not place you in government. Only cabinet forms the executive/government).

There is a question, first of all, as to how government business will originate in the Senate. Would a minister of the House - as was done in the 1940s - be given leave to introduce bills in the Senate? Or is this a shift away from the use of the Senate for government business entirely? Does the demotion of the position from cabinet reduce the Senate's role in the legislative process to legislative review and the odd private member's bill? At this point much depends on how the Harper government proceeds, but it is at least probable that, chastened by its own Senators - first, in the expense scandal and, second, by the rejection of the union disclosure bill - that is intends to close shop in the Senate.

Finally, the move has a potential impact on accountability. While the government is not accountable to the Senate per se - and thus the Senate resides outside the bounds of responsible government - the government nevertheless has a responsibility to answer for its policies and actions as they relate to the Senate. As such, without an accountable minister speaking on behalf of the ministry, this accountability relationship cannot exist. Only cabinet ministers - again, as constituent elements of the government - can be made answerable for the government's actions. This spokesperson in the Senate has been the House Leader.

In short, Harper's decision overturns long-held parliamentary practice. As the pool of Senators being brought into cabinet began to evaporate at the turn of the last century - product of a growing democratic ethos - the ability of the Senate to question ministers equally reduced. The result was - with few exceptions - that a minister without portfolio would be designated as House Leader. The position was fully cemented by Trudeau in 1969 and maintained since. The changes pose a number of unanswered questions about the role of Government House Leader in the Senate and the nature of the chamber itself. Optics may yield to fundamental changes in the legislative life of the Upper Chamber.

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