Saturday, 14 December 2013

Senate Abolition by Attrition: The Fool's Errand of Constitutional Idiocy

Few issues in Canadian politics have been able to capture the collective idiocy of politicians, pundits and the general public as the Senate. The Official Opposition -- the government in waiting, we're told -- entreats the public to help 'roll up the red carpet', claiming the upper chamber is simply not needed. Indeed, the common refrain from many is one of 'abolish! abolish!' as if by virtue of a simple gesture or utterance a populist consensus (inherently undemocratic) one can simply disregard a country's constitution. That the NDP with its questionable interpretation of federalism would fail to understand the inherently federal nature of the Senate (designed specifically not to represent individual citizens based upon population) is unsurprising.  The 'unelected and unaccountable' trope, too, is troubling as it places a premium on voting as the sole mechanism of legitimacy for any institution.

The federal government as well has recently seized upon the abolition sentiment as have a number of the premiers. At some point the Supreme Court will weigh in on the issue of general changes to the chamber. It is a certainty that the Senate reference will articulate an extremely strict amendment process which is, for most areas, no less than seven provinces with half the population (s.38) in keeping (again) with the federal nature of the chamber. It is critically important to emphasize that while the chamber may be embedded within the national Parliament it was never designed to be under the sole purview of the federal government. Substantive changes to the character and tenor of the body require input from the provinces.

The Court is also likely to suggest that abolition is only possible with unanimous consent of the ten provinces and the federal Parliament (s.41). It is difficult to see how one can conclude otherwise given the nature of the constitution. The abeyance here is significant. There is no mention of abolition in the Constitution Act for any component of Parliament (Commons, Senate, Crown) precisely because none of the Founders (in 1867 nor 1982) considered a circumstance in which any of these three parts would be eliminated altogether. It was, in short, unfathomable. Consider that any changes to the offices of Queen, Governor General and Lt. Governors of the provinces require unanimous consent and it becomes ludicrous to suggest that any less stringent criteria would be required to eliminate the Senate or Queen. It defies logic.

Before continuing it is worth pausing to preempt the common argument that the ten provinces are now unicameral legislatures (that is, single chambers) and, as such, there is no reason for an upper chamber at the federal level. First of all, the federal Parliament and the provincial legislatures are qualitatively different. The provinces are not mini-federations. They do not have to grapple with linguistic, cultural or ethnic cleavages in the same way as the federal Parliament. The national Parliament was designed specifically to have a federal component as part of the Confederation compromise to balance population against region. To suggest that what works for a province could work equally for the national Parliament is fatuous.

Second, unlike the federal upper chamber, the upper chambers of the provinces were entirely within the purview of the provinces to abolish as they saw fit. As with most matters relating to provincial constitutions (the Lt. Governor as mentioned above for example), the provinces require no federal input to alter their own legislatures. More to the point, where amendment could be made by resolution a province in conjunction with the federal government, that the federal government would thwart the will of a province in its own domain is unlikely. Third, each of the provinces abolished their upper chambers prior to patriation. Even if the pattern of abolition could hold federally it is now subject to an even more stringent amending formula as a result of Part V of the Constitution Act, 1982. In short, the argument of provincial unicameralism holds no force within the larger discussion of the Senate.

Abolition by constitutional amendment, as such, is likely to prove impossible. Reality, however, has not tempered the rhetoric of abolition. The NDP continue to press for it (a scary thought: a government in waiting with no grasp of the Constitution) while many in the press and pundit classes continue to agitate against the Senate. Defiant in the face of reality, and railing against the dictates of common sense, the warriors of abolition press on with new and even more creative attempts to simply 'work around' the constitution. The supreme law of the land, that which protects the rights of Canadians and sets the basic rules of the political game, can simply be cast aside when populist sentiment swells. It's maddening.

One of these 'novel' arguments for avoiding actual amendment is 'abolition by attrition'. By simply refusing to appoint Senators, so the logic goes, one can eventually be reduced to a point in which there are no Senators and, as a result, no Senate (as if the Senate exists only so long as it is populated!). As Don Martin, the host of CTV's Power Play, argues: "the Senate would eventually be emptied through retirements and resignations". This has become a common argument and it is infuriating beyond limits. In short, it is an argument made by numskulls without the most tenuous grounding in constitutional reality.

The problem with attrition at the most basic level is that it has an extremely long time horizon. The Red Chamber's junior-most members would not face mandatory retirement for decades (and any changes to tenure would require (a) provincial consent and (b) a likely grandfather clause). It also runs into practical problems (both, surprise surprise, which stem from the Constitution). For example, the Senate is required to meet quorum in order to conduct business. Once the number dwindles below this, the Senate cannot function (more about this below). Additionally, the Constitution does not suggest that Senators may, if the Prime Minister so deigns, be appointed. It says Senators shall be appointed. It is not an option. A refusal on the part of the Prime Minister to appoint qualified Senators could (and should) be met with court challenges from the provinces that have a constitutional right to representation in the Senate. There is no workaround for that. As with the Commons (and indeed, the Supreme Court and similar bodies), the Senate is designed to be filled.

The basic problems outlined above should be enough to stop the argument in its tracks and prevent a Prime Minister from attempting the 'abolition by attrition' approach. It is worth outlining by way of thought experiment the results of such an attempt assuming that (a) every Senator resigns voluntarily and (b) no provinces object by way of court challenge, thus emptying the chamber.

First, and we should be clear on this, the legislative process would grind to an absolute halt. In order for a bill to become law it must pass through the three components at the federal level: three readings in the House, three readings in the Senate and, ultimately,  it must receive Royal Assent by way of the Governor General (or designate). This last step, contrary to populist conception, is automatic. A GG refusing assent to a bill duly passed by an elected assembly would be fundamentally 'undemocratic and unaccountable' and, with one fell non-swoop of the pen, undo nearly two centuries of responsible government. It cannot be stated clearly and with more force that every piece of legislation must make its way through and, ultimately, receive approval from the upper chamber. It cannot be skipped. To suggest otherwise is sheer lunacy.

Second, assuming the federal government and all ten provinces did, by some miracle, agree unanimously to abolish the Senate, the fact that the Senate is void of Senators would, again, not be enough to simply bypass that chamber. The amending formula does provide a mechanism to proceed with an amendment without the approval of the Senate (s.47) but not automatically. If the House of Commons passes a resolution and the Senate does not concur, the House may wait 180 days and, after such a period, enact the same
resolution again, effectively overruling the Senate's will. If the Senate is empty (or below quorum), it cannot by definition concur and the 180 days would begin. In the meantime, however, the federal Parliament would be unable to pass legislation for six months, resulting in a backlog of bills or, more troublesome, an idle Parliament. If Parliament were prorogued the clock would stop.

The confluence of factors that would have to occur even with a Senate rendered empty through attrition still makes its abolition impossible. Indeed, an empty Senate simply compounds problems as it would make any and all federal legislation impossible to pass until such time as the Senate was formally abolished. There is no s.47 override for general statute. In short, there is no workaround to the Constitution and the requisite (whether 7+50 or unanimous consent) unity that makes abolition possible by attrition or any other clever connivance. The course of action suggested would be reckless and irresponsible, ultimately grinding our legislative process to an absolute halt. That individuals --- politicians and journalists who should know better -- continue to advocate these half-baked, facile and dangerous ideas yet retain any cachet, standing or respectability is immensely troubling. Like it or not, the Canadian Senate is deeply entrenched and, quite possibly, immovable. To simply turn a blind eye to the Constitution because it is inconvenient is more than mere folly. It is nothing short of dangerous.

Addendum: The Constitution Act is readily available and accessible. Journalists, pundits, politicians and lay persons would do well to read it before pronouncing their grand schemes of constitutional reform.

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