National Post (National Edition)
Senate has no business meddling in the budget.
Whether we know it or not, a constitutional crisis is upon us. Though much predicted, it was always supposed to be somewhere in the offing, a vaguely unsettling prospect but not one that would ever be realized. Well now it is here — whether we know it or not, whether we choose to acknowledge it or not.
The cause of the crisis is the Senate, and its increasing pretensions of superiority over the House of Commons: the demonstrated readiness of a few dozen appointed senators to overrule the elected representatives of the people. Or rather, the Senate is the locus for the crisis. The cause of the crisis is the ill-considered “reform” of the upper house under the present government.
The potential for crisis has been there since Confederation, given the Senate’s immense formal powers, on paper almost equal to those of the Commons. But while the Senate has on occasion abused those powers over the years — in the matter of abortion, on the GST and free trade, right up to the defeat of a bill committing Canada to implement the Kyoto accord — it was never quite so brazen before as lately it has become. Conscious of their unelected status, aware of the low reputation that went with decades of low appointments, senators were more often inclined to yield to the Commons.
But all that changed with the advent of Justin Trudeau’s “independent, merit-based” system of appointment. Just how independent or merit-based the new appointees are may be debated; what is clear is that senators now regard themselves as possessing, not a mere mandate from the people, but something better — a mandate of virtue.
And so they have begun to assert a right to defeat or rewrite legislation, not in the sort of extraordinary circumstances, real or imagined, by which they might once have defended such impudence, but strictly as a matter of routine. We had an early taste of this with the assisted suicide bill. Though in the end senators were persuaded not to substitute their own judgment for that of the people we elected, it was a near thing.
Now they have taken it upon themselves to write the government’s budget for it. Control of the public purse, you understand, is the single most fundamental prerogative of the Commons. Since the days of Simon de Montfort, the principle has been established that if you want the people’s money, you have first to ask the people’s representatives. Occasionally this maxim has been reprinted in blood.
So central is that idea to parliamentary government that budgets are regarded as the quintessential confidence measure: a government that cannot pass its budget is regarded as lacking the confidence of the House. But as only a government that enjoys the confidence of the House may rule, so only the House may bestow that confidence, or withhold it. Which is to say that only the Commons can write budget bills.
Armed with the mandate of virtue, however, senators have been emboldened to overrule this fusty old convention. Late last year, members of the Senate finance committee, presented with a bill enacting the 2016 budget’s tax changes — changes, including the middle-class tax cut, the Liberals were elected on barely a year before — calmly scribbled out the numbers in the Commons bill and replaced them with some of their own.
At length these amendments were ruled out of order by the Senate speaker. But meantime another controversy had arisen, this time over a line in the budget implementation bill making certain changes to consumer regulations in the banking sector, in the course of which it affirmed federal authority to do so — to the dismay of Quebec, among other provinces. This time it was the government that backed down: the offending provision was removed.
Perhaps it was imagined this would be the end of it. The impugned section was hardly central to the Liberal program, after all. Given the provincial sensitivities involved, the government must have been counselled, better to quietly shelve it than escalate the confrontation. But of course that wasn’t the end of it.
As our John Ivison reports, the next budget is now being written with one eye on the Senate, and what it will allow, again with provincial sensitivities in mind. The government, Ivison’s sources relay, “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.”
That the government chooses to censor itself, rather than wait for the Senate to do it for it, does not alter the situation in its essentials. Neither do the particulars of the measures in question, or whose position is more in the right. All that matters, as far as democratic government is concerned, is who has a democratic mandate, and who has not.
Hence the crisis. When any elected government, though in possession of the confidence of the lower house, cannot get its budget passed in the upper house, we have a crisis on our hands, a crisis that is not diminished by the government’s unwillingness to acknowledge that it is in one. That the Senate has the legal power to defeat or amend legislation, even budget bills, is not in dispute. But absent a democratic mandate, it does not have — cannot have — the moral authority to do so.
Let them scold or review, advise or warn, all they want. But if senators want to write legislation, let them get a mandate of their own: a mandate from the people, not a mandate of virtue.