There’s a lot of chatter at the moment about abolishing the Senate. The NDP, which has always favoured abolition, put on a “Roll Up the Red Carpet Tour” in summer 2013 for its leader, Thomas Mulcair. Saskatchewan Premier Brad Wall, who used to favour the election of senators, suddenly announced his conversion to abolitionism. Alberta’s Ted Morton, formerly an elected senator in waiting, now says the existing Senate should be abolished as a preparatory step toward designing a new one. Conservative Senator Hugh Segal, along with the Canadian Taxpayers Federation, is calling for a national referendum in which abolition would be one of the options. And both Preston Manning and Prime Minister Stephen Harper have said that the Senate should be abolished if it cannot be reformed.
The new abolitionists are all influential people whose opinions deserve respect, but none of them has yet said how the constitutional and legal barriers to abolition can be overcome. These are essential questions to ask, because Canada is governed under the rule of law. No matter what the people might say in a referendum, constitutional and legal procedures would have to be followed, as the Supreme Court established in its reference opinion on Quebec separation.
Let’s look first at the constitutional problems. In 2014 the Supreme Court of Canada, in reply to the federal government’s reference question, will tell us what it would take to abolish the Senate. I see zero probability that the Court will say the Senate can be abolished by ordinary legislation. The choice will be between unanimity (resolutions by both houses of Parliament, plus resolutions by the legislatures of all ten provinces) and the general procedure (resolutions by both Houses of Parliament and the legislatures of seven provinces that together have at least 50 per cent of the population of all the provinces). Although a persuasive argument can be made for unanimity, my money is on the general procedure. Superficially, this might look like good news for the abolitionists, because the 7/50 threshold seems possible to meet as it gives no single province a veto.
But when we move from the constitutional to the legal level, we have to factor in the Act Respecting Constitutional Amendments, passed by Parliament in 1996 in response to the near-victory of the separatists in the 1995 Quebec referendum. This legislation created the so-called “regional veto,” which in context was really a veto for Quebec on future constitutional changes. Under the Act, a member of the federal cabinet cannot introduce a constitutional amendment into Parliament without getting the prior approval of Ontario, Quebec, British Columbia, at least two Atlantic provinces with half of the population of that region, and at least two prairie provinces with half of that region’s population. Since Albertans make up more than half the population of the prairies, this means that Alberta also has a veto.
The 1996 legislation requires prior approval from the provinces before the cabinet can bring the question of abolition to Parliament. If Quebec is onside, the process might work; but it seems more likely that Quebec would wield its regional veto, not because the Senate is so important in itself but because it was a crucial part of the compromise that created the Canadian Confederation in 1867. Quebecers would reason – and I would be on their side – that if the Senate can be abolished, none of their constitutional privileges are safe from being taken away by a coalition of other provinces.
The federal government’s options for overriding Quebec’s exercise of its regional veto are not attractive. It could ask a backbencher, rather than a cabinet member, to introduce the constitutional resolution; but that would rightly be seen as an end run around the 1996 legislation and an unprecedented abrogation of cabinet responsibility. Or it could try to amend or repeal the act that created the regional veto. But that would require strong majorities in both the House of Commons and the Senate, for some Quebec members of Parliament might balk at reneging on the promise made to Quebec in 1996 that future constitutional amendments would be not be made without its consent. Any of the three legal possibilities – using a backbencher to circumvent the Act, amending the Act or repealing it altogether – would be a godsend to the separatist movement in Quebec, perhaps even allowing it to mobilize the energy to stage another referendum on separation.
I can understand the desire for abolition. If we were designing a constitution from scratch, we might consider the unicameral model. Countries such as New Zealand, Denmark and Sweden, as well as all ten Canadian provinces, function quite nicely without a second house in their legislatures. But we are not writing on a blank slate. As Marx wrote, “The tradition of all the dead generations weighs like a nightmare on the brain of the living.”
Fortunately, there is a feasible reform option other than election of senators or abolition of the Senate. We could look to the Mother of Parliaments, the original source of our own constitution. For two decades, Britain has been struggling toward an elected House of Lords, but hasn’t yet gotten there. In the meantime it has developed mechanisms for appointment from which we could learn a great deal.
Some members of the House of Lords are partisans, chosen by the party leaders under a mechanism which keeps party membership in the House of Lords roughly balanced. But Britain also has an independent House of Lords Appointment Commission, which recommends crossbench (nonpartisan) members for appointment to the House of Lords. This helps to reduce partisan warfare in and around the upper house, which is so much in evidence in Canada at the moment. We can’t copy the British appointment system exactly because the British House of Lords differs in key respects from our Senate. It doesn’t have a definite size, it still has some hereditary members and it doesn’t have the function of regional representation that the Canadian Senate is supposed to provide. But we could draw inspiration from the British system and apply it to Canadian realities.
A Canadian prime minister could announce that he will seek advice for all future Senate appointments before recommending them to the governor general. That wouldn’t raise a constitutional problem because the appointment mechanism would still be the same, just with an advisory layer added beneath it. It would be legally similar to what is now done with senators from Alberta, where the prime minister follows the advice of voters in a senatorial election but still makes the actual nomination himself.
Alberta and other provinces that wished to adopt that model could give their advice through popular elections. Other provinces, if they wished to have a voice in senatorial appointments, would have to set up advisory committees. To maintain consistency across the country, the structure of these committees and the procedures they would follow would have to be negotiated among the provinces themselves and with the federal government. The committees might have some members appointed by the prime minister, some by the provincial premier, and some from other sources, such as the Senate itself, or civil society organizations such as the Order of Canada.
Once constituted, the committees might operate much as judicial advisory committees do now. In preparation for Senate vacancies, they could seek out possible candidates and accept applications. When a vacancy did appear, the committee could recommend, say, three names for the consideration of the prime minister, as is now done with appointments to the Supreme Court of Canada. But having nominees appear for hearings before a House of Commons committee would not be appropriate, as the Senate is a separate body from the House.
These details are only meant as an example of what could be done. I’m not offering a full-fledged plan, just trying to start a conversation about alternatives. Many different approaches could work, as long as the goal was to depoliticize the appointment process. The prime minister would have to renounce his patronage power of choosing senators, but that should not be so hard, because senatorial patronage has become as much a curse as a blessing.
When he became prime minister in 2006, Stephen Harper vowed to appoint only elected senators, and he introduced legislation to make election possible. Then, after it became clear that the opposition parties would not give the bill the support required to pass in a minority Parliament, he started to make Senate appointments in the traditional way. Like prime ministers before him, he appointed a sizable number of campaign workers and fundraisers of his own party; but, again following precedent, he also chose some people who had never been active in the Conservative Party but who had achieved distinction in some walk of life. Perhaps unwisely, he did not follow the tradition of appointing a few members of opposition parties, e.g., Pierre Trudeau’s appointment of Ernest Manning and Paul Martin’s appointment of Hugh Segal. Thus Harper’s appointments came to be seen as purely partisan and, fairly or not, the contrast with his earlier pledge to appoint only elected senators seemed jarring.
The power to choose senators was once a cherished prerogative of the prime minister, allowing him to reward faithful servants and allies. But the scandals that have surrounded a few of Harper’s chosen senators, compounded by the clumsy attempts of the Prime Minister’s Office to make these scandals disappear, have turned senatorial appointment into a poisoned chalice. It would now be in the political interest of Harper or any other prime minister to depoliticize the appointment process through reliance on advisory committees.
I have long favoured an elected Senate and still do as a theoretical proposition. In a democratic age, election is the best way of conferring legitimacy on a legislative body. But it’s good to have at least the outlines of Plan B in case the Supreme Court says that Senate elections cannot be made mandatory without a constitutional amendment. It could be a classic Canadian compromise, untidy but workable. Those provinces that want to elect senators could do so, while those that don’t want elections could get a voice in a depoliticized advisory process that would gradually make the senate a less partisan body.
