TRUDEAU NEEDS TO CRACK THE SENATE CONUNDRUM
Tory-held upper house primed for battle with Liberals in Commons
If you want a preview of what Justin Trudeau’s government might soon have to contend with, have a look at what has just happened in Britain. Earlier this week the House of Lords voted to defeat a package of cuts in tax credits for the working poor, a centrepiece of the Conservative government’s recent budget.
It’s not the first time a government bill, passed by the House of Commons, has been defeated in the Lords, but it is unusual in that the legislation, though not technically a money bill, is nevertheless plainly concerned with government finance. Centuries-old convention regards such matters as the exclusive purview of the Commons; more to the point, so does the Parliament Act 1911.
Enacted to resolve the crisis arising from the defeat of the 1909 Liberal “people’s budget” in the Lords, the act eliminated the Lords’ historic veto over bills passed by the Commons. Henceforth, they could only delay legislation for a maximum of two years (since reduced to a year); a month, in the case of money bills.
In Canada, by contrast, no such limitation exists on the Senate’s powers. While the Senate has only a U.K.-style suspensive veto over constitutional amendments — if an amendment has not passed the upper house within six months, the Commons has only to pass it again to make it law — it has an absolute veto over ordinary legislation of any kind, including money bills. (Though the latter must originate in the Commons.)
And while convention might be thought to restrain the unelected Senate from exercising the powers it holds on paper, that has proved less and less to be the case. Recent years have seen the Senate defeat, obstruct or otherwise deny passage to bills on matters such as the regulation of unions, the Kyoto climate accord and abortion — not to mention the countless other bills that have expired, for lack of Senate approval, with the close of each Parliamentary session.
Now senators are threatening to do so again. Ten years of Conservative government have left the Tories in firm command of the upper house, primed for battle with the new Liberal majority in the Commons.
Memories of what happened when the tables were reversed — the blockade of legislation enacting the Canada-U. S. free trade deal in advance of the 1988 election, a similar blockade of the goods and services tax after it, plus various shenanigans in the early Harper years when the Liberals still controlled the Senate — have Tories vowing revenge.
Not that they will vote down just any old bill. But as Conservative Sen. Bob Runciman put it recently, “there may be some things that (Justin) Trudeau and some of his colleagues are very supportive of that an overwhelming majority of Canadians are not comfortable with.” In other words, they will pick their spots for maximum partisan advantage. As another Conservative senator told The Canadian Press, “I don’t have any responsibility to pass Liberal legislation.”
Well, no, but they don’t have any right to reject it, either. They, of course, have the power to do so. But there is simply no legitimate justification in a democracy for a patronage House to overturn the will of the people’s elected representatives. These are not independent judges, comparing one law to another in light of precedent and constitutional scholarship, as they do in any law-based society, but explicitly partisan appointees, approving or rejecting bills for whatever reason enters their head — a practice followed in few other places in the democratic world.
At any rate, it poses a serious challenge to Trudeau’s authority. Should Conservative senators make good on their threats, it is not obvious how he should respond. In former times, it would have been easy enough: with 22 vacancies currently in the Senate, he could just appoint enough Liberals to give him a majority. He could even create new Senate seats, as Brian Mulroney did to get past the GST blockade. But Trudeau has just been elected on a pledge to appoint senators by “a new, non-partisan, merit-based process,” and in any case has already kicked the existing Liberal contingent out of caucus (they now sit, not as Liberal senators, but as senators who are Liberals). So in theory he cannot count even on their votes.
There would appear to be two avenues open to him. One would be to amend the Senate’s powers under the constitution, along the lines of the U.K.’s Parliament Act or the current provision governing constitutional amendments: a maximum six-month suspensive veto, say, after which bills would be deemed to have passed.
Conventional wisdom holds this would be next to impossible, given the applicable constitutional amending formula: seven provinces with 50 per cent of the population. But presumably he would have the support of Liberal governments in Ontario and three (perhaps soon to be four) Atlantic Canadian provinces. And would the NDP premiers in Alberta and Manitoba, or Brad Wall in Saskatchewan, given their personal and party commitments to Senate abolition, balk at merely clipping its wings? Still, perhaps this would be seen as too risky. But it does not actually require a constitutional amendment to limit the Senate’s powers. The Senate could vote to constrain itself, via changes to its rules. Rather than pack the upper house with partisan appointees, then, in violation of his election commitment, Trudeau could simply make any new appointments conditional on the candidate’s agreement to vote for this amendment.
Enticing the rump of senatorswho-are-Liberals to do likewise might be trickier. It might even require welcoming them back into the Liberal caucus. Though not in violation of any election promise, this would certainly entail a major about-face, which would be somewhat embarrassing. But Paris is worth a mass.
At any rate, it poses a serious challenge to Trudeau’s authority. Should Conservative senators make good on their threats, it is not obvious how he should respond.
Andrew Coyne In other words, they will pick their spots for maximum partisan advantage.