Sunday, 2 February 2014

Partisanship, the Senate and the Lessons of the Civil Service Commission

There is much to be commended in Justin Trudeau’s sudden and unexpected decision to eject the entire cohort of Liberal Senators from the parliamentary caucus. Surprisingly the pundit class have been somewhat overwhelmingly positive in affirming the move – even cranks like Conrad Black approve – while the predictable chorus of partisans on the Hill have derided the move as a ploy and smoke screen. The response from the Conservative and New Democrat benches does much to confirm the relevance of the move demonstrating just how thoroughly partisanship is choking parliamentary politics.

Trudeau’s move effectively halves the remaining rump of the Common’s third party into a smaller but entirely elected cohort. The decision is at once concrete and symbolic, both of which are needed in equal measure. First, it amounts to what small measure of substance the leader of the third party can reasonably do. Trudeau has done what was immediately possible within his own narrow sphere of influence. Absent the levers of power and unable to exert much influence over the conduct of parliamentary affairs, his reforms must start, as it were, at home.

The symbolic is perhaps even more demonstrative. Trudeau has taken a fundamental and necessary first step and by doing so has struck a blow against a continuous and seemingly inescapable loop of partisanship. He has demonstrated that he is willing to look beyond the needs of party and demonstrate that change is possible. I have previously argued that meaningful reform to the Senate – that is, reform possible with in the tight strictures of the constitution – requires a step away from the increasingly entrenched partisan nature of the upper house. This begins that process.

It is worth noting that there are steps that could have been taken immediately by Prime Minister Harper and by the Senate itself in order to counteract the effects of partisanship. Senators are under no obligation to remain in a caucus nor is there a duty to remain aligned with the appointing party. The excuse continuously made by the Harper government for appointing Senators – that it faced a chamber dominated by a Liberal opposition – is a spurious one. While the chamber was Liberal-dominated, the Conservatives had little trouble moving their legislative agenda forward. Their centre-piece legislation – the Federal Accountability Act – made it through both houses relatively quickly. Indeed, between 2006 and 2011 the barrier was not an unelected Senate but an elected House of Commons and a hung parliament. The imperative for appointing Senators was partisan, not political.

On a related note, the media (perhaps following the Prime Minister’s quip) have made much of the fact that the former Liberal Senators will now be Senate liberals. The distinction is not as trivial as it seems. Members of either chamber are free to form coalitions – or caucus – as they please. Indeed, already existing independent (or Progressive Conservative) Senators generally caucus with either major faction. What changes is the nature of that relationship. The power now flows from the amalgam of members, not from a centralized leadership. This is why the move is important. It genuinely does return to the Senate a degree of independence that had been lost – a loss augmented by the rabid partisan allegiance of Harper appointees – and cut the more troubling ties to party. They may remain Liberal members and vote along these lines (obviously their sympathies will be contra the governing party), but the change should not be understated simply because the Prime Minister enjoys wordplay.

The New Democrat response is no less conditioned by rabid partisanship but it is heightened by a degree of constitutional ineptitude. Yet again Thomas – sorry, Tom – Mulcair has trotted out his abolition MacGuffin. His commitment to his rhetoric is commendable, but it – not Trudeau’s move – is the real smoke screen. No reputable constitutional scholar or political scientist buys the NDP line about abolition. It is simply not possible with anything less than unanimous consent. Even more moderate changes by comparison – elections and appointment process changes – will require an almost impossible degree of provincial consent (7+50). The scope with which the federal government can proceed unilaterally is extremely narrow.  

Additionally, the NDP attacks on Trudeau for violating the principles of the Liberal Party constitutional are incredulous and likely a far too stiff reading of the clause given that parties and party leaders frequently expel members from caucus for a number of reasons. Nothing in the clause guarantees permanence.

A second criticism – the so-called ‘about-face’ on the partisanship question, simply demonstrates again the NDPs complete ineptitude in relation to Canada’s governing institutions and the constitution – both the written text and constitutional conventions. The vote in question – actually a frivolous opposition motion (coincidentally tabled by Craig Scott, a former legal scholar before becoming an MP and renouncing constitutional reality) – was severely troubled, a fact pointed out by Stephane Dion. The motion read:

That, in the opinion of this House, urgent steps must be taken to improve accountability in the Senate, and, therefore, this House call for the introduction of immediate measures to end Senators' partisan activities, including participation in Caucus meetings, and to limit Senators' travel allowances to those activities clearly and directly related to parliamentary business.

As Dion pointed out, the Liberals were in full support of the aspirations of the motion – and indeed pointed out that they wished the spirit of reform extended to the lower house – but could not support a motion so frivolous. The motion called, in essence, for an abandonment of the constitution in favour of populist expediency.

As I see it there are few fundamental problems. The first is respect for the independence of the Senate and the prerogatives of its members (who, it should not be forgotten, are parliamentarians as well and thus have certain rights). The Senate is an entrenched part of the written constitutional with powers coequal to that of the House (apart from money bills). One chamber cannot dictate to the other the conduct or membership of the other. This is a fundamental constitutional principle. Second, the appointment of Senators is a power wielded by the Prime Minister and, as such, changes to the appointment process (ie. by restricting those the Prime Minister can appoint) would be required. Restricting membership requires constitutional change.

This is precisely why Trudeau’s stance is important, albeit imperfect. He pledges as Prime Minster to exercise the appointment power in a way that is self-restrictive. While many would likely doubt the sincerity or likelihood of this, it is quite possible that it may inaugurate a new constitutional convention regarding appointments. Moreover, there is ample precedent from 1867 to the present. First, while the Prime Minister alone decides the composition of the cabinet, those choices have been proscribed by a convention of regional and provincial representation, that is, that a cabinet must be composed of representation from each of the provinces or regions. This custom has continued to the present and, while purely conventional, it nevertheless works to constraint the choices of the Prime Minister in composing a ministry.

There are more modern examples. For instance, the choice of appointing the Governor General – a power of the Crown by way of the Prime Minister’s recommendation – has been voluntarily restricted for some time by a possible convention maintaining that appointments should be free from the taint of partisanship and the search should be conducted in a neutral manner. Indeed, the last three appointments – made by three different prime ministers – have eschewed partisan connections. Similar processes are in place in relation to the selection of judges (although these are not entirely effective).

This is precisely the kind of mechanism Trudeau was pointing to. Contrary to Pierre Poilievre – laughably the minister of state for democratic reform – the mechanism would not be one of unelected individuals appointing other groups of unelected individuals. Indeed, without a constitutional amendment that kind of process could not take place given that, as noted, appointing Senators is constitutionally the responsibility of the executive. Rather, a committee would vet potential Senators for a range of criteria for approval by the prime minister. It is precisely the kind of mechanism Stephen Harper used to appoint the Governor General and the idea behind is now defunct Public Appointments Commission.

Imagining a non-partisan – though by definition, still political – Senate is likely a difficult image to conjure. The current government and official opposition have equally unworkable ‘solutions’. The idea of an elected Senate is unlikely to gain the degree of provincial support needed to bring about. More importantly, such a move would likely bring with it unintended consequences. Abolition is squarely off the table and a pipe dream. No one takes it seriously. Yet there is one institution that could provide a clear template for moving forward: the public service.

In the late 19th century the idea of a neutral, non-partisan civil service was anathema and contrary to how parties agreed government functioned. As with the Senate, the public service was a dumping ground for party bagmen, a place to reward individuals (and their families) for their partisan service. By the turn of the century that notion had begun to shift due to a number of factors (not the least of which was the growth of the state and the genuine need for a professional civil service). In 1908, legislation was passed by the Laurier government establishing the Civil Service Commission as an independent staffing agency for the public service. Further legislation was passed by the Borden government a decade later and has subsequently been retained as the Civil Service Commission evolved into the Public Service Commission.

The establishment of the Civil Service Commission was, without hyperbole, a transformational moment for Canadian government and one that would be replicated provincially. The act effectively removed patronage from vast areas of the public sector creating a neutral, professional public service. While the Commission would not serve well as a model for appointing Senators – no commission could appoint Senators of its own accord without a constitutional amendment – it nevertheless illustrates that attempts to reform the Senate and alter its tenor without formal constitutional change are not futile or impossible.

Tentative first steps are necessary. The Civil Service Commission was possible because of a convergence of necessity, popular sentiment and, most importantly, concerted effort on the part of politicians to put aside their partisan impulses for the public good. The result of 1908 was the constitutional entrenchment of a professional, non-partisan public sector. Trudeau’s move may well be the opening gambit that leads to the same in the Senate.

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