LET’S STOP THIS LEGISLATIVE VANDALISM

At time of writing, Bill C-44, legislation enacting the federal budget, had yet to come to a vote in the House of Commons. Its passage was nevertheless assured: a formality, in fact, for any government with a majority.

On the other hand the bill is reported to be in some jeopardy in the Senate, where senators are threatening to rewrite it, specifically to split off the controversial infrastructure bank for separate consideration.

This has things exactly backwards. It is the elected representatives of the people in the House of Commons to whom the government is supposed to be answerable. It is they who should be proposing amendments, and it is their support the government should have to court.

The Senate, by contrast, is elected by no one, accountable to no one; as such it has no business amending or defeating anything, let alone a budget bill. Yet that, incredibly, is where we are now. Should the Senate amend it, and should the government reject its amendments, it is conceivable the government could be without a budget.

That’s not likely to happen, of course. In all probability one side or the other will cave. Yet it cannot be said with any certainty that it will be the Senate that does so. In previous such confrontations, as for example over last year’s budget, it has been the government that backed down. In other words, legislation passed by the elected House of Commons is being effectively rewritten by the unelected Senate. That is the true measure of how crazy the situation has become.

This is hardly an isolated event, after all: bill after bill in this Parliament, though passed by the Commons, has been sent back by the Senate for redrafting. The National Post’s Marie-Danielle Smith reports that, in the year ending May 31, fully 20 per cent of legislation — one bill in five — was amended by the Senate on the way to becoming law. And those are just the bills where the Commons submitted to the Senate’s tutelage. In how many more cases did the Senate demand changes, even if the bill was later passed intact?

With each week it becomes clearer what a disaster the Liberal government’s “reform” of the Senate has been. Once, it would have been rare — though not rare enough — for the Senate to behave with such insolence, for the very good reason that senators have no democratic mandate to do any such thing. Yes, they have that power, on paper — almost the same powers as the Commons, in fact — but they are not expected to use it. Or rather, they are expected not to use it.

That, you’ll recall, was the reason the Supreme Court gave for rejecting the last government’s attempt at Senate reform: why, if Senators were elected, even indirectly, they might start to substitute their own judgment for that of the Commons! Whereas they do so now, routinely, without the inconvenience of having either to get themselves elected beforehand or to answer to voters afterward. Cabinet ministers have taken to telephoning senators to plead for their votes, in a way they would never think of doing with mere MPs.

And why not: thanks to Justin Trudeau’s new “independent, merit-based” appointment process, senators have something better than a democratic mandate — they have the mandate of virtue. I know it is not only the new appointees, or the “independent” senators, who have been taking advantage of this: Conservative senators have been exploiting the same opening. But old-school hack or new-school activist, it’s all equally illegitimate. That is, if living in a democracy is important to you.

The most distressing thing of all is how many Canadians seem unable to understand this. “But what if the Commons gets it wrong,” I see people argue, as if the remedy for democratic “error” was oversight by a small band of autocrats, Iran-style: the Council of Virtue. I can only assume this is a case of situational ethics: one day the Senate will defeat a bill they care about, and they will be properly outraged. But by then it will be too late.

(To anticipate the obvious: this is nothing like the Supreme Court — a body chosen for its specialized expertise, with the narrow responsibility of comparing one law to another, consistent with precedent, as courts in every country do. That’s dangerous enough, without the kind of openended remit the Senate has assigned itself, on the basis of no expertise or precedent whatever, in a way that has few parallels in the democratic world.)

We are, whether we realize it or not, in a kind of slowmotion constitutional crisis. More than a century ago the United Kingdom, faced with the same situation, passed the Parliament Act 1911, limiting the House of Lords to a suspensive veto. A similar remedy suggests itself today — if not legislation, then a resolution of the Senate: a standing order, to the effect that any bill that has not passed the Senate within, say, six months of its passage in the Commons “shall be deemed to have passed.”

That would prevent not only overt acts of legislative vandalism, but also the “pocket veto” by which bills are simply allowed to die on the order paper with the expiry of each session. Or shall we accept in perpetuity the convention that is fast establishing itself, that the people we elect may govern only by and with the approval of a coven of lifetime appointees?