Thursday, 6 February 2014

Senate Red Herrings and the Path Not Taken

While much of the reaction to Justin Trudeau’s first salvo in an attempt to make the Senate a partisan-free zone has been balanced -- excluding, of course, the other political parties (seemingly validating the problems associated rabid partisanship) – there have been a few extreme criticisms that suggest removing parties from the Senate constitutes a massive problem in and of itself, particularly for accountability. These break down into roughly three broad themes.

The first stems from the appointment process Trudeau has (vaguely) proposed for selecting Senators. Changing the appointment process – a power of the Governor General exercised under responsible government, by the Prime Minister – itself requires a constitutional amendment, something that would likely prove problematic. What Trudeau has suggested is likely something more alone the lines of how numerous non-elected positions are already filled ranging from judges to the Governor General. Indeed, some measure of advice is always tendered to the Prime Minister on Governor-in-Council appointments (there are thousands). This simply changes the search parameters established by the Cabinet: the advisory committee would be directed by the Prime Minister to look for candidates with certain attributes apart from partisanship (representativeness, skill and experience). Nothing in the Trudeau proposal alters the Prime Minister’s authority in this regard.

The second concerns the accountability of the Senate. Indeed, the Senate was designed, as Dawson put it, to enjoy “complete political irresponsibility” in the “most impregnable position known to the Canadian Constitution” (Dawson, 1922: 240). As Peter Russell has recently reminded us, the partisan nature of the Senate is neither an intrinsic nor an intentional quality of the upper chamber. It has involved in such a fashion by a variety of factors that are contingent to the evolution of Canadian politics. They should be considered neither indispensable nor necessary conditions.

Numerous arguments have now been put forward the severing the party link renders Senators entirely unaccountable. Remember first that the Senate – in the manner of their appointment, their tenure and the co-equal legislative powers – was explicitly designed to remain outside the control and answerability to the Commons or to party leadership. Moreover, the relationship between party control and accountability as it exists is far from clear. Party ties have done little to render Mac Harb or Senators Wallin, Duffy or Brazeau accountable to anyone, let alone to the Canadian people.

How is political accountability realized by party leadership or partisan control when the response is to simply toss an offending member out of caucus? The best the argument has to offer is an extremely long chain of delegation: the Prime Minister appoints members, he is accountable to his caucus and his government is accountable to the House and, through that, to the people of Canada. Independent or Conservative, how a PM would be less accountable because he appoints someone from the opposite team makes no sense. In short, what little accountability there is entirely negligible and the rest is illusory.

The third scenario is the most outlandish. Critics suggest that a partisan-free Senate would, quite suddenly, become emboldened from the loosening chains of the partisan accountability link and begin thwarting the duly elected government by blocking legislation and altering money bills. Here Gordon Gibson (who should know better) suggests that the Senate may begin blackmailing the House of Commons, demanding all sorts of goodies for their regions because of their inflated new role.

This is, frankly, absurd. Partisan or not, the Senate lacks a democratic mandate. It’s members – partisan or not – know this. The notion that the Senate will begin in earnest such a course because of a new mandate is ludicrous. Look at the recent record. Senate vetoes have come when legislation of fundamental national significance has been pushed through the House: abortion, free trade, and the GST are examples. With the exception of abortion the major legislative agendas of governments – Conservative or Liberal – have made it through both houses largely untouched. Indeed, for all its continued bluster (8 years into its mandate) of obstruction by the former “Liberal dominated Senate” their legislative agenda managed fairly speedy passage. The real barriers during the minority years were not the Senate but the House of Commons. In short, the idea a Senate of independents might forget itself is a red herring of a different strip. It is alarmist and supercilious.

Trudeau has been correct, I think, in his motivations. However, one statement he made has failed to garner much attention, largely because it feels right. He noted during his announcement:
“If the Senate serves a purpose at all, it is to act as a check on the extraordinary power of the prime minister and his office, especially in a majority government”
This is, of course, fundamentally at odds with the purpose and role of the Senate particularly in a majority Parliament. Moreover, it runs counter to the principle of majority government. The purpose of the Senate is not to check prime ministerial power; that is the role of the House of Commons. Only the Commons is an accountability chamber. Only it can hold the government to account. Rather the role of the Senate should remain as one devoted to working around the edges, repairing rashly constructed legislation and subjecting bills to greater study and scrutiny. To check the Prime Minister with the only power the Senate can wield – blocking legislation – is to check the head of government who enjoys the confidence of the members of the House of Commons. It is not for the Senate to second guess whether these members are being bullied, cajoled or abandoning their responsibilities. Confidence is confidence regardless of how powerful the Prime Minister has become.

The virtue of Trudeau’s approach is that it at least attempts to do something useful. If the plan fails to work, if a lack of formal party caucus fails the test of efficiency or control, the process is reversible. Acting as if this proposal is permanent ink is ridiculous. As to some of the other organization problems associated with the conduct of the Senates affairs (affairs which are now structured on a partisan nature), the Rules of the Senate should be flexible and adaptable enough to accommodate to life without parties. Lacking formal party ties does not preclude the formation of caucuses. I suspect independent appointees are clever enough to align themselves. Indeed, one need only look to the phenomenon of ‘crossbenchers’ at Westminster to gauge this.

Many of the solutions proposed by the government or the official opposition (along with numerous pundits) would simply raise more problems. Abolition is not going to happen, no matter how many times the NDP claim it is. Electing Senators would simply exacerbate the third concern. A Senate with a clear electoral mandate – a democratic mandate – would have good reason for blocking legislation if it was so inclined. Elections, not independents, would be the real problem. Canada does not need a second House of Commons.

It is important to remember that the Trudeau plan is merely one small step and must be accompanied by a broad range of measures to improve the Senate. At its best is helps to articulate that there are possibilities for politics beyond partisanship (indeed, given the decline of parties over the decade, the Canadian people would seem to agree). Additionally, many of the problems of the Senate could equally be condemned in the House of Commons. Parliamentary reform – of both chambers – should go hand in hand.

What is perhaps most troubling about the reaction to the Trudeau approach is that it is so quick to identify that problems caused by what Trudeau is proposing but fail to take the time to propose who any problems that arise may be corrected. Certainly the Supreme Court will provide guidance on the areas of what would likely fall into the realm of ‘mega-constitutional politics’ but there are smaller measures that can be taken, many by the federal Parliament alone.

No one is talking about quick moves that would neutralize these negative consequences immediately or before they began. Aye, they require Constitutional change, but the notion that any constitutional change is a barrier is plain wrong. We should be clear on the matter. Canadians are not afraid of the Constitution. This has served as little more than an anecdote to provide political cover for uninventive or cowardly politicians. While it took Canada six decades to agree to an amending formula, the burden of that process did not fall on Canadians. The style of executive federalism that emerged during that period did not involve the people at all. They may have been tired by decades of media coverage, but this is not a burden that politicians or publics should take seriously. Similarly, the failure of Charlottetown should not be read as a constitution fatigue but reject of a bad deal, executive federalism and massive mega-constitutional politics that occur suddenly and wholesale.

The options are not mega-constitutional change or no change. Parliament could take action to rectify the Senate problem but it fails to do so because the current government cannot think outside of its pre-set wheelhouse and the legacy of the reform party. Similarly, the Opposition, trapped in its abolition dream, cannot possibly envision anything but a complete disappearance. Yet amendments could be made following similar amendments, areas which would no doubt be amendable to a majority of provinces. For instance, the legislative powers of the Senate could be reduced to a suspensive veto (modelled on the existing amending formula). The need for an absolute block is no longer necessary (if it ever was). Genuinely bad legislation will ultimately be quashed by the courts. Changes could also be made to enhance accountability by entrenching a code of conduct and changing the procedures by which a sitting Senator may be unseated. There are options.

Rather than seeking workable solutions, many of the parties involved have instead focused on a particular end point – abolition or elections – and, as a result, have focused on large scale changes that are impossible or damaging. This myopic focus ignores the genuine ability of Parliament to work within its constraints to find solutions. The constitution is not the straightjacket it is so often made out to be. More flexible and creative parliamentarians will be able to find enough wiggle room to wrestle free and loosen the straps. 

Works Cited

Dawson, RM (1922) The Principle of Official Independence: with Particular Reference to the Political History of Canada. Toronto: SB Grundy.

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