Debate about its abolition may lead to Senate reform

If we did not elect members of Parliament, and it were proposed that we should, I can safely predict the reaction. “Not that old chestnut! You’d never get good people to go into politics if you did that. I mean, they have elected legislatures in the States, and where has that got them? It’s a total circus. Anyway, it can’t be done. You’d have to amend the constitution ...”

Somehow I don’t think we would find these arguments compelling. Yet they are considered the height of wisdom when the subject is reforming the Senate. Can’t be done; shouldn’t be done. You’d never get good people to go into — er, hold on. We’re not exactly getting the pick of the litter now, are we?

To be sure, the current rash of expense-account fiddling, constitutional breaches and generally dodgy behaviour on the part of certain Senators — with the odd criminal charge for good luck — does not, by itself, make the case for reform. But neither does it make the case for the status quo. If the argument for appointing senators is that it yields a better quality of upper house, it is belied by 146 years of practical experience.

In any event, even if prime ministers from Macdonald on down had appointed only saints and Nobel Prize winners — and not the parade of party fundraisers, strategists and assorted hangers-on with which the House of Ill Repute is actually populated — they would still have no more democratic right to make our laws than a class of fifthgraders.

I grant that, of the two houses, the Senate is the one least urgently in need of overhaul. The Commons is the next thing to an appointed body — try running for election without the leader’s blessing — and it is the one that’s supposed to exercise real power. But even if the Senate is more an embarrassment than a nuisance, that does not mean we should tolerate it a day longer than we have to.

That we have, in fact, tolerated it for 146 years is more than an indictment of our cynical, complacent political culture: it played no small part in creating it. A nation that can abide being governed by a patronage house will learn to abide much else. To then protest that, however tawdry and humiliating it is to be ruled by a bunch of poxy bag men, it would be too hard to change it, is to justify apathy with laziness. If it mattered enough to us, we’d fix it, whatever obstacles the constitution put in our way.

I suspect that is what explains the current prime minister’s approach to Senate reform, which so many find inexplicable. Yes, it is true, if you started electing senators, they would acquire a certain legitimacy and yes, it is true, if all else about the Senate remained as it is, we’d have a terrible mess on our hands: an upper house of which nearly one-third of the members were from Atlantic Canada and the territories, wielding powers that are, on paper, almost equal to the Commons’. That’s the point. It would be so awful we really would have to fix it. The Senate’s impotence has served to excuse our own. It would no more.

But then we run into yet a third group, for whom reform is not so much undesirable or impossible, as a distraction: the abolitionists. Why have a senate at all, they ask? Even if we could agree on how to reform it, all we would be letting ourselves in for is gridlock and aggravation. If seats were apportioned by population, as in the Commons, it would be redundant; if by something other than population, it would be undemocratic.

This does not seem to have troubled the many other countries around the world with elected upper houses, among them not only the U.S. but such tolerably well governed places as Australia, Switzerland and Japan. Bicameralism, indeed, is all but universal among federations, for the same reason they are federations: because of the historic divisions amongst their peoples. Were we to abolish the Senate, we should very soon hear demands for its restoration to protect regional and other minorities from the tyranny of the majority.

Absent reform of the Commons, moreover, it would leave power even more concentrated in the hands of the prime minister than it is now. Of all the objections to an elected Senate, the concern that it would make life more difficult for the government seems the most quaint. Yes, it would: democracy is like that. So, too, for the complaint, if it can be called that, that an elected Senate would take the place of the premiers as the voice of the regions. That, too, is the point.

Still, abolition has one thing to recommend it: it may be the shortest route to reform. By my reading at least, the same general amending formula — seven provinces representing 50 per cent of the population — applies in either case. But the politics might well be easier. As long as there is a Senate in place, there will be provinces with entrenched interests to defend, meaning the usual childish hairpulling. By starting from scratch we might be able to have a saner conversation.

And while it would take seven and fifty to abolish the Senate, it’s not so clear what formula would apply once it was gone. It would depend, I suppose, on how abolition was effected. For example, in its recent reference to the Supreme Court, the government suggests it could be done by “abolishing the powers of the Senate and eliminating the representation of provinces,” or “by amending or repealing some or all of the references to the Senate in the Constitution of Canada.” (Emphasis added.)

Well now. Section 44 of the Constitution Act, 1982 stipulates that, with certain exceptions, “Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.” Could the whole thing be done by simple act of Parliament?