New Senate not afraid to use its power
The law of unintended consequences looms large for all policymakers. From Prohibition to the introduction of cane toads in Australia, the apparent solution to a problem has often made the problem worse.
The Trudeau government has its own experience with best-laid schemes that go pear-shaped.
The idea to open up the Senate appointment process by installing only senators independent of a party whip satisfied the Liberals’ preelection interests. But in this majority parliament, the Senate has emerged as the only effective check on Liberal power.
The Senate gave notice to the government last fall that it was not prepared to be a doormat for the House of Commons, when it sent back the assisted-dying bill with major amendments.
But the realization the Senate now has the power to thwart the Liberal legislative agenda — There are 42 independent senators, 41 Conservatives and 21 Liberals — really only came in December when, in a move that passed with little comment, the Liberals were forced to amend their own budget-implementation bill in the face of an insurrection led by an independent senator they appointed, André Pratte.
Now, sources suggest the government is removing measures from the spring budget that might upset provincial rights advocates in the Senate, in order to smooth its passage through that chamber.
“A year ago, if I thought about the Senate at all, it was that it should be abolished. It was just a rubber stamp. Now, I have to know what gets each senator out of bed every morning,” said one policy-maker.
The fight over C-29, the budget-implementation bill, shows the Senate is not afraid to use its power, even when it comes to money bills.
The section of the bill that raised the hackles of a number of senators concerned the intention to change financial consumer protection covered by the Bank Act.
Early last month, the government representative in the Senate, Peter Harder, made an impassioned plea for senators to pass the bill unamended. He claimed the measures, announced in last year’s spring budget, would enhance existing protections, for example, by allowing a broader range of personal identification documents when opening an account or cashing Government of Canada cheques.
Harder said without a comprehensive federal consumer protection framework, Canadians would be subject to “a patchwork and confusing array of protections.”
But provincial rights advocates like Pratte, not to mention the government of Quebec, were upset by the federal contention that Ottawa has “paramountcy” when it comes to consumer protection.
This seemingly picayune dispute sparked a broader question of how Canadians are governed, given the budget bill was a confidence measure — if defeated, it could have impacted the government’s ability to legislate.
“In its pith and substance, (C-29) is a budget bill that seeks to implement the explicitly announced budgetary program of a freshly elected majority government,” Harder told his colleagues in the Senate. “Amending or obstructing a budget implementation bill would run counter to the historical practises in this chamber and, in this particular case, constitute an overreach of the Senate’s role in Canada’s parliamentary democracy.”
The expectation appeared to be that going eyeball-to-eyeball with the freshly minted senators and invoking the Senate’s non-interventionist past would see the bill passed unmolested.
That is not what happened. Finance Minister Bill Morneau, faced with the prospect of receiving a bloody nose from the senators, blinked first and removed the changes to the Bank Act.
According to Pratte, a former editor-in-chief of La Presse whom Trudeau appointed as a senator last March, there were a number of objections.
For one thing, he said, the Supreme Court has clearly ruled that consumer protection is an area of provincial jurisdiction, even in the banking sector. For another, he argued, the proposals weakened consumer protection in some provinces, including Quebec.
The government is now said to be at great pains not to compound its agony by repeating the mistake of trampling on provincial rights.
The new independent senators may be an amorphous collection of small-l liberals, but not being part of a party structure they cannot be corralled by a party whip to vote on demand. And many see their role as returning the Senate to its foundational status as a protector of the interests of the regions they (nominally) represent.
Pratte offered very little sympathy for the finance minister as he tries to craft a budget that will pass through the Red Chamber without incident.
“They’ve created a new Senate and they have to deal with it,” Pratte said.
The Trudeau Liberals are generally all for new beginnings — as long as it’s understood that they are the architects and are in charge. But that is no longer the case in the Senate. It appears to have come as something of a shock to them, even if it should not have done.
THEY’VE CREATED A NEW SENATE AND THEY HAVE TO DEAL WITH IT.