We can’t fix or fold the Senate, so let’s take away its power.

Amending formula offers a tactical option

What shall we do with the Senate? The question is not going to go away. If Mike Duffy’s legal problems — and Mac Harb’s and Patrick Brazeau’s and maybe Pam Wallin’s — were not enough to keep the Red-faced Chamber in public odium for years to come, the pending release of the results of the Auditor General’s probe of senators’ expenses is a lock to do so. If, as expected, the report finds many, even most senators guilty of padding their expenses, the very thing for which they lately sat in judgment of Duffy et al, the pitchforks really will come out.

What shall we do with the Senate? What can we do with it? We can’t reform it: not without even a glimmer of consensus on what a reformed upper house would look like. We can’t abolish it: that would take unanimity among the provinces, as the Supreme Court has recently ruled. We can’t just stop appointing senators, as certain people who ought to know better — Tom Mulcair, Brad Wall — keep pretending we can. Not only would that prevent the Senate from performing its constitutionally required duties, but it would almost certainly run afoul, again, of the Supreme Court, and for the same reason: it would amount to amending the Senate’s composition, without adhering to the formula prescribed by the Constitution for such things.

Neither can we simply appoint a better class of senator, as Justin Trudeau has proposed: the great and the good, untainted by partisanship and unblemished by scandal. Or rather we dare not. Such an august assembly could not long resist the temptation to exercise its new-found legitimacy, in a manner guaranteed to bring it into conflict with the elected House of Commons. Hell, they do that often enough now. It was the present gang of timeservers, you’ll recall, unelected and unloved as they are, who pronounced themselves fit to defy the Commons on matters as trivial as abortion, free trade, the GST and global warming.

So we can’t fix it, and we can’t fold it. What we can do is defang it, eliminating once and for all the potential for confrontation with the lower house. While a general reform of the Senate may be out of reach, it should be possible to enact one very specific reform: removing from the Senate any power to defeat, obstruct or amend bills over the objections of the House of Commons.

Currently those powers are, at least on paper, vast — almost the equal of the Commons. The Constitution Act 1867 simply provides for “the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada,” the sole caveat being that money bills must originate in the Commons. It should be sufficient, therefore, to strike the words “Senate and.” At the very least, this should apply to money bills. The Senate might be left the power to delay, but not defeat, other legislation, if that were thought necessary — as long as the will of the Commons ultimately prevailed.

There’s precedent for this. Similar reforms were enacted in Great Britain more than a century ago to restrict the powers of the House of Lords. And it’s quite clear how it could be accomplished: by the Constitution’s general amending formula, that is with the support of Parliament and seven provinces representing 50% of the population. “The powers of the Senate and the method of selecting Senators,” are among the items listed as falling under this provision. The Supreme Court would surely agree. Though the Court ruled in the Senate reference that this did not extend to eliminating the Senate’s powers altogether — for that you’d need unanimity — it was equally clear that it could be used to make “significant changes” to them.

There would be no need to amend the amending formula itself. Though amendments are generally to be made by “resolutions of the Senate and House of Commons,” the Commons can proceed without the Senate’s approval, after 180 days have elapsed. Neither would there be any need for some galloping great “constitutional round,” à la Meech or Charlottetown: no sprawling packages of amendments for each province to attach its own pet causes to, no all-night negotiations, no blackmail. Just put it to a vote of the legislatures, up or down. Seven provinces with 50% and we’re done.

I know what you’re thinking: Quebec would never go for it. Quebec does not have to go for it. That’s why 7 and 50 was invented — to avoid giving any province a veto. But wait, didn’t the Chrétien government pass legislation requiring the assent of Quebec and the other “regions” before Parliament could authorize any amendment — in effect, lending them its veto? Yes, it did. Would that law have to be repealed, then? Not necessarily. It may be unconstitutional.

The Supreme Court has set great stock in the legal nostrum that “what would be unlawful if done directly may not be done indirectly.” The letter of the law, it sometimes seems to say, be damned — it’s the spirit of it that counts. Or as it put it in the Senate reference, the constitutional “architecture.”

The Harper government’s proposals to appoint elected senators to fixed terms were thus condemned as attempts to amend the Constitution without amending it.

But the same could be said of the Chrétien law. The Constitution does not assign the government of Quebec a veto. That was established, de facto, at patriation, and de jure in the Supreme Court ruling that followed. Yet the Chrétien government gave it one anyway, if not formally, then as a matter, to borrow the language of the Senate reference, of “practical effect.” It, too, amended the Constitution without amending it.

I cannot see how the Supreme Court could rule otherwise, if the question were referred to it. At any rate, it would be fun to watch it squirm, justifying the very practice it had previously denounced.