Senate reform could cover a multitude of sins

Senate reform What should conservatives expect of Prime Minister Stephen Harper?

Smaller government? Less bilingualism? Traditional values?

Most of us would probably say “all of these.”

But let’s face it. In his first two years Harper’s answer appears to have been “none of these.” He has made the national government bigger (in cost, if not in scope), has vigorously promoted bilingualism, and has muzzled his social conservatives.

The private explanation from Tory MPs is that until they win a majority, the Conservatives can’t be very conservative, only less liberal than the Liberals.

But the longer they say this, the more it sinks in that they’ll say the same thing after winning a majority, and for the same reason.

Small-c conservatives of all descriptions are slowly having to accept something Harper has seen from the beginning – that most Canadians are not in any defi nable sense conservative. They want (or have come to expect) paternalistic, non-moralizing, bicultural government. If the Conservatives offer anything else – at least any time soon – they will be defeated.

What, then, should small-c Canadian conservatives do?

Rant? Despair? Start a new federal party?

No, no, no.

First, we must heed the old dictum that “politics is the art of the possible” and be thankful that Stephen Harper is at heart – unlike any other Tory leader in memory – a genuine conservative. Slow progress is better than no progress.

House of Commons Rome wasn’t unbuilt in a day.

  Second, we should understand Harper’s longer-term plan.

It isn’t a “secret agenda” – much as we might wish for one.

He talks about this intention fairly often, but nobody seems to hear him.
Like most old-school Reformers, Harper sees the country’s main flaw as systemic, or constitutional. Our system, as it has evolved, discourages responsible and accountable government.

Twentieth century Liberals reshaped Canadian federalism to serve their own political agenda, and it does. It guarantees big central government, subservient provinces, aggressive judges and unaccountable politicians.

Harper wants to reform the ground-rules so that they favour conservatism; and not just for the next election, but for the next century.

He sees the Senate as the main means of doing this.

Of all things, why the Senate?

The traumatic lesson of Brian Mulroney’s Meech Lake and Charlottetown constitutional derailments was this: nobody can add new powers to the Canadian Constitution.

That is, you can’t add new guarantees for anyone – women, aboriginals, cities, Quebec, the West, the East, or anybody else. For each and every such proposal, there are far more opponents than proponents.

The only avenue to constitutional change lies in altering existing constitutional powers by simple legislation and conventional practice.

For example, Mulroney’s constitutional contortions never won Quebec the unilateral veto it wanted over future constitutional amendments (should there ever be any).

The Chretien government later solved that by putting in place a simple parliamentary statute in 1996, the Regional Veto Act.

It “loans” Quebec (and other regions) the use of Parliament’s unilateral veto.

Clever, yes. Strictly constitutional?

Probably not. The Regional Veto Act offends the obvious principle that governments should not be able to de facto amend the Constitution by ordinary legislation. But until some provincial government goes to court to overturn it – and none has – Quebec has its veto.

Now Harper is taking the same approach with the Senate. There are already three government Bills before Parliament seeking specific reforms, one in the Senate itself and two in the Commons.

One has already triggered a reference question to the courts.

There are also two private Bills and one Motion seeking or opposing various reforms.

Why all this sudden activity?

Because everyone now recognizes that the key to altering Canada’s constitutional balance of powers lies in the Senate.

Very simply, when it comes to powers, the Canadian Senate is like a hillbilly on an untapped oil reserve. It has enormous existing constitutional powers that its members have chosen never to use because they are not elected.

So why not start electing them, so that they can use those powers?

It’s a risky game, but the only one that might actually produce permanent change.

Under the Constitution Act 1867 (formerly the British North America Act), the Senate has the same awesome “privileges, immunities and powers” as the House of Commons (section 18).

The Senate is not our version of the British House of Lords. It’s supposed to be a second House of Commons.

As for responsibilities, the Constitution explicitly states that senators – unlike MPs – “represent” their provinces in Parliament (section 22). In fact, Senators have no explicit responsibility except to represent provinces in Parliament. Yet since 1867 they have never done it, nor even pretended to do it.

For the past half-century it has been the main complaint of Reformstyle conservatives that elected MPs have lost the power to control the government – which is the whole reason for Parliament. At the same time, it has been the main complaint ofthe provinces that Ottawa arbitrarily bulldozes its way in and out of their fields of responsibility without their consent, at great cost to Canada’s economy and political unity.

Harper hopes the solution to both problems lies in waking up Canada’s sleepy, Rip Van Winkle Senate after 140 years, and putting it to work as originally intended.

How a reformed Senate should work 

If it is to become a federal house of the provinces – a chamber where the diverse needs and priorities of provinces are incorporated in national policy – our Upper House must change the way it operates.

In our view, there are two fundamental preconditions for this to happen, neither of them requiring provincial consent to written constitutional amendments.

1. Senators should be elected via provincial parties, not federal. As Quebec Senate reformer Vincent Pouliot has argued, senators are supposed to exercise what amounts to a political power of attorney on behalf of their home province. So if they are to be provincially chosen, why would they remain answerable to the national party leaders who run the Commons?

National parties have no connection whatever to provincial rights, priorities and interests; in fact they are often openly antagonistic to them.

Senate candidates should therefore run as candidates of provincial parties (as now happens in Alberta), or as nonpartisan independents. Federal parties should be barred from participation. This is in our view a fatal flaw in reform legislation currently before Parliament.

2. The physical seating in any representative chamber matters a great deal, symbolically and psychologically.

The Senate as it now exists, being a pale refl ection of the Commons, sits as the Commons does, with members from one national party facing members of the opposing national party two swords’ lengths apart.

With federal parties excluded from the Senate, this will have to change, preferably to something less confrontational and more collaborative.

There is no longer a “government” side to the Senate, or an “Opposition” side.

Provincial parties typically have only weak links to federal parties – or none at all. Provincial Liberals in B.C. and Quebec, for instance, have little tie to their federal cousins, and the Saskatchewan Party has no federal equivalent at all. Nor is any national party bond useful in a house of provinces.

As proposed in 1985 by the Alberta government, the Senate should sit in a semi-circular fashion, with members from each province seated together, regardless of provincial party.

The business of the House should be steered, not by party leaders (for there should be no national parties in the Senate) but by regional leaders elected from each of the four Senate Divisions (Ontario, Quebec, the West and the Atlantic).

Senators in such a chamber would think, speak and vote quite differently than senators do now. To get elected (and re-elected) they would have to strongly advocate the interests of their province. But to get anything done in Parliament, they would have to negotiate and reconcile with other regional interests, as well as with the federal Cabinet in the Lower House.

Indeed, provincially-elected senators should always form a large part of any federal Cabinet.

This would revolutionize government in Ottawa. A majority prime minister would thereafter require confi dence in both elected Houses – the one he controls and the one he doesn’t.

This changes the game dramatically.

A Prime Minister would have to govern by persuasion, as Harper now must with his minority, rather than by brute force, as Chretien, Mulroney and Trudeau did with their majorities.

If he didn’t, the Senate would sink his government.

Frankly, we suspect a reformed Senate would have to be seriously upset to force a national election.

But remember, only matters of “confidence” (mainly budgets and the throne speech) may defeat a government. Most of Ottawa’s worst legislation would simply be turned down flat with no electoral repercussions at all.

The universal gun registry would never have happened; most provinces opposed it, and would have pressured their senators to block it. A provincially-responsive Senate would also have saved Harper the trouble of repealing Paul Martin’s national daycare program; most provincial governments opposed that too until Martin, using the federal spending power, rammed it through and the cheques started arriving in provincial capitals.

What our federal system needs more than anything is genuine “federalism” – a daily, ongoing balancing of the diverse interests of the whole country, not just whatever cause-of-the-moment a Prime Minister thinks might win him a majority in central Canada.

In our last newsletter, we asked our supporters and contributors what the Citizens Centre should focus on.

Your response split fairly evenly between Senate reform, the federal spending power, and the courts. Of 238 replies, 37% suggested we focus on the Senate, 34% said the spending power, and 29% said the courts.

For reasons beyond mere democracy, we’ve decided to emphasize the Senate.

  • Harper himself appears to have chosen Senate reform by which to make his mark on history. He has already nailed his colours to this mast.
  • Most Canadians, even in Quebec, support Senate reform. By contrast, most do not understand what the federal spending power is or why it matters, and view the Charter of Rights as a holy icon.
  • We believe that a provincially-responsive, elected Senate would in due course curtail Cabinet’s use of the federal spending power and Charter aggression by the judiciary.

So far the public has paid little attention.

No doubt this is because Senate reform sounds old hat – Harper’s sop to the western right-wing vote – and because constitutional illiteracy blinds people to the signifi cance of what he is doing.

But this will change if and when Harper gets his majority.

Pending that happy event, with your support the Citizens Centre will do three things to broaden the discussion:

1. With every newsletter, starting with this one, we will add 100 influential journalists, policy specialists, academics and political leaders to our mailing list.

It’s time they started talking and writing about Senate reform. We will also extend our newsletter by two pages, to include relevant news, debate and research.

2. This summer we will engage an Ottawa researcher – with a background in history or political science – to report on why and how Macdonald never allowed the Upper House to become what the Constitution has said all along it is supposed to be: the voice of the provinces in Parliament.

3. We will begin publishing interviews with knowledgeable reformers like Sen. Bert Brown, Sen. Hugh Segal, Vincent Pouliot and others.

Senate reform is a large and complex subject. If Harper is to make any headway with it, Canadians must start seriously discussing it now.

With your help, we can get a much broader discussion underway.