Senators’ defiance brave but wrong
Unelected body lacks legitimacy to rewrite bills they should not pretend to the role of elected legislators
After this week’s vote to amend — eviscerate would be more accurate — Bill C-377, legislation passed by the Commons that would force labour unions to disclose their salaries and expenses, the Senate is suddenly the toast of the town.
Here, said many, was sober second thought. eureka, said others: the Senate works! even hard-core abolitionists joined in. The Broadbent Institute, the NDP’s house think-tank, congratulated the upper house for “standing up for the rights of millions of Canadian workers.”
All agreed this was vindication for the upper house, after a long season of shame. The Senate, the National Post’s John Ivison wrote, “has shown exactly why it exists — to examine and revise legislation it believes to be flawed.” yes indeed. It has also shown why it has to go.
The Senate’s defiance of the will of the Commons in this matter is brave, principled and wrong. The senators, Liberal and Conservative, who voted to send the bill back to the House — in effect, to defeat it — were courageous, conscientious, and completely out of line.
That the bill was flawed is immaterial; that senators had serious and substantive objections to it, the same. Without a mandate from the people, senators have no more democratic right to redraft legislation than I do.
They have the legal power to do so, without a doubt. What they lack is the legitimacy. And lacking such legitimacy, it has been the custom and convention they should not pretend to the role of elected legislators, or usurp the authority of those who are. A Senate that confines itself to reviewing legislation passed by the Commons may be tolerated, barely. A Senate that takes it upon itself to rewrite it is an abomination.
It is the lawful powers of the Senate, not the misdeeds of a few errant senators, that make the case for its reform. Corruption is found in every legislature, no matter its design. Whereas the powers of the Senate go to its very nature. On paper these powers are great indeed, almost the equal of the Commons. So long as these lie dormant, I repeat, the Senate’s status as one of the world’s last remaining appointed upper houses is merely a national embarrassment. But if senators are determined to use them, we really are in a fix.
The worst of it is that the Senate has corrupted us. It has been a part of the furniture for so long we forget what it is made of: patronage, and placeholding, and favours for favours. yes, it also contains many good and wise people, in among the bagmen and the time-servers, but so what? A government has any number of distinguished people on whose counsel it can rely, whether in the universities, or the think-tanks, or in the civil service. It does not have to give them jobs for life, or confer upon them legislative power.
That so many people are willing to stand by while a clutch of cronies of prime ministers past and present redraft a bill passed by the people’s house — even to justify it — is testament to the power of opportunism. For the NDP, in particular, those ferocious pit bulls for abolition, to roll over like sleeping puppies just because the Senate did something they happened to like, is faintly nauseating.
But then, a great many people seem sincerely incapable of separating ends from means in this matter. yes, you don’t like the bill. yes, the bill is flawed. In a democracy, that is the people’s prerogative, as it is of those they elect: to pass legislation some might think wrongheaded — that may even be wrongheaded, if that is what they prefer. It is not for a group of appointed commissars to substitute their own preferences in their place. Is it really necessary to say this?
This isn’t like the “backbench spring,” to which it has been compared. In fact, it’s the opposite. Those Tory MPs who assert the right to speak, to raise questions, or to vote independent of the party line do so in the name of the people they represent; at any rate, they are entitled to do so, having been elected by them. The 20 Tory senators who voted to amend the bill or abstained were in effect voting to overrule those same MPs. Though it clearly had government backing, C-377 was a private member’s bill that enjoyed wide support in caucus.
Nor can this be compared to judicial review, the power of the — unelected! — courts to overturn laws on constitutional grounds. What’s the difference? The courts are restricted to comparing one piece of legislation, the law in question, with another: the Constitution. Both were passed by democratic legislatures. The courts’ role is simply to determine whether the one democratic law is consistent with the other. Whereas the Senate may, if it is so bold, reject or rewrite a law for any reason it pleases.
Judges train in the law for many years, and are selected for their impartiality. Senators may have no training whatever, and are selected for their partisanship. Virtually every democratic society appoints judges. Very few democratic societies appoint their legislators. It is the difference, in other words, between the judicial branch and the legislative, between applying the law — as every public servant does — and making it, the ancient preserve of Parliament. Where do you draw the line, as some ask? you draw it at the doors of the legislature.
The Crown is the fount of authority in our democracy, but Parliament is the fount of power. It is intolerable that that power should be exercised by any but those the people choose. If senators would like to be proper rather than pretend legislators, let them get themselves elected.