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State of the Nation, November 2008
Monday, 24 November 2008

The chance to fix the Senate has come,
and may not come again


Senate reform is now squarely in the middle of the national agenda.

It was sidelined in last month’s election campaign, inevitably, by the economic storm that descended on the world in September.

But economic crises, even severe ones, pass by – usually in a year or two. Parliament is forever, and opportunities to reform it are rare.

From the perspective of reforming the Senate, the October 14th election could not have produced a better result.

Harper has control of the government, but not of Parliament.

This means he cannot force Senate elections into existence federally, because Parliament won’t let him – something he would probably do if he could, even though he shouldn’t.

Instead, his continued minority compels him to persuade provinces to elect senators. This is appropriate. It is provinces that senators represent, according to the Constitution (section 22, CA 1867), so it is provinces that should decide and supervise the manner of their own representation.

Parliament can stop Harper from enacting federal Senate elections, but it can’t stop provinces from doing what Alberta has done since 1989, and it can’t stop Harper from appointing the provincial winners. (Legally speaking, his cabinet recommends “qualified persons” to the Governor General.)

The ‘vacancy clock’ is ticking

Harper said at a post-election Calgary news conference on October 15th that if provinces don’t hurry up and start electing senators, he will have to start picking his own.

Because he has refused to recommend unelected Senate nominees, 17 of the 105 seats in the Upper House have already fallen vacant.

As a result, the Upper House is steadily emptying out, and senators – in ever-shrinking numbers – are getting increasingly upset.

As it happens, 2009 will be a heavy one for mandatory age-75 retirements. Unless elections start happening or Harper gives up the fight, there will be 30 vacancies by Dec. 31, 2009. At a minimum. Some senators retire early, so there could be more.

By the end of 2012 there will be at least 45 vacancies.

In theory the Senate could function at two-thirds or at half strength, but out of respect for the rule of law Harper knows that government has a constitutional duty to ensure both houses of Parliament continue to operate.

It’s impossible to predict how much of a constitutional crisis Harper will allow to develop before he gives up waiting for the provinces to elect, and starts appointing.

This, of course, is exactly what all opponents of Senate reform want him to do. Start appointing, stop reforming.

It would be a lasting shame if our provincial premiers let this happen.

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