Senate still needs to be dealt with
The Senate is the appendix of Confederation: a largely inert organ, like the appendix, whose original purpose is lost to time, but which on occasion can grow inflamed — with pus, or its own self-importance, as the case may be — at which point it becomes dangerous.
Just how dangerous we saw most recently in the case of Bill C-14, the assisted suicide bill, a matter many senators plainly felt was too important to be decided by the people we elect for the purpose. But this was hardly the first such episode: free trade, the GST, abortion, climate change, on all of these and more the Senate has declared itself entitled to substitute its own judgment for that of mere MPs, or threatened to.
That such incidents seem to have been arriving with greater frequency may be only my impression. That they are likely to in future is the fear of a good many observers. For if the absence of a democratic mandate has not always been enough to deter senators from overreaching, the odium in which they were generally held by the public may have helped to stay their palsied hands. Even hacks and bagmen have their limits. Whereas the “independent, merit-based” appointees under Justin Trudeau’s new dispensation, untouched by partisanship or patronage, may be persuaded they have earned the right.
Certainly the Liberal leader gave little indication of thinking any of this through on the day, early in 2014, when he threw the entire Senate Liberal delegation out of his caucus. Neither have the government’s intentions grown clearer: as “independent” senators have begun to enter the chamber, and formerly partisan senators have chosen to sit as independents, the leadership in the upper house has been forced to improvise. Government bills no longer have a government leader to introduce them; there is a government “representative,” but no government caucus; and so on.
Nevertheless, we’re probably stuck with this situation: the Supreme Court’s discovery of hidden lines in the constitutional “architecture” forbidding virtually any reform of the upper house without the consent of the provinces has seen to that. The current Senate is probably the only Senate we are likely to see in our lifetimes. So we might as well make the best of it.
That is the task two eminent recent occupants of the red chamber, former senators Michael Kirby and Hugh Segal, have taken on in a paper just released by the Public Policy Forum. If the Senate is no longer to be a house formally run on partisan lines, they ask themselves, how should it govern itself ?
The authors recognize the changes to the appointment process have changed much else about the Senate; further changes to its rules will be required in response. If independent senators are to be free of party strictures, they must nevertheless work within some sort of structure, or the Senate cannot function: there are, after all, committees to be filled, and chairs to be selected, and whatnot.
Their answer — that senators should caucus, not by party, but by region — is inspired by the Senate’s origins, as a house that would represent regional interests, as a check against the undifferentiated majority. That purpose was undermined, they argue, by the excessive partisanship into which the Senate fell over the years.
I have my doubts about this solution, as do many. Parties may have their defects, but at their best they serve as vehicles through which politics, in a far- flung country may be conducted on less divisive terms than they might otherwise: where we divide over questions of political philosophy, rather than the more corrosive lines of region (or religion, or ethnicity, or the other tribes of identity politics).
But leave that to one side. Much the more important of Kirby and Segal’s recommendations, in my view, has to do, not with the Senate’s compos- ition, but its powers. If the Senate’s powers to overrule the Commons are no longer to be tempered by partisan mediation or, as I fear, even a sense of shame, and if they cannot be restricted, thanks to the Supreme Court, from without, then the Senate must do the job itself.
Thus they propose the Senate’s own rules should be changed to limit its right of veto, on paper near absolute, to a six- month suspensive veto, rather as it now has over constitutional amendments. That is, the Senate could reject a bill, but the Commons would have only to pass it again six months later for it to become law.
It’s hard to overstate the significance of this. All of the other disputes over the Senate, whether it should be elected or appointed or how many senators there should be from each province etc., are ultimately rooted in the Senate’s power to defeat legislation. Take that away and these become issues we can debate at our leisure.
I would add only one thing. Much of the damage the Senate does lies not in killing bills outright, but merely ignoring them: the Senate’s “pocket veto,” by which a piece of legislation, having failed to come to a vote, dies on the order paper at the end of each session. So an additional rule: if a bill, having passed the Commons, has not come to a vote of the Senate after six months, it shall be deemed to have passed.
I had rather we had an elected Senate, or failing that no Senate. But if we must have an unelected Senate, then it must also be unpowerful. Let the senators heed their colleagues’ advice, and make haste to neuter themselves.