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

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

harper-family-friends-election.jpg

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.

Why Canada needs a provincially-elected Senate:
a textbook example

syncrude-upgrader.jpg In the recent election, when Conservative support in Quebec began evaporating, Stephen Harper flew to Calgary and announced that his government would restrict exports of oilsand bitumen to countries with lower environmental standards than Canada. (Bitumen is oilsand that must be “upgraded” prior to refining.)

For several reasons, this will have played well in Quebec – not that it seems to have done the Conservatives much good.

Bitumen is Alberta’s only large remaining source of oil. The province upgrades as much bitumen as it can, but some is piped in a slurry to the U.S. for processing, and there are plans for a new westward pipeline to satisfy demand in Asian countries. According to news reports, environmental standards in other countries are generally lower than ours; if so, Ottawa could shut down all exports.

Harper didn’t spell out what he meant or why he was doing it. He didn’t single out any other import or export commodities for restriction, or say how he will accurately assess the environmental performance of other nations. He didn’t say how his impromptu edict would avoid international trade rules, which allow for no such thing. He did not consult in advance with the Alberta government or with anyone else.

But unless he was lying about his intentions just to impress Quebec voters, we should assume he intends to risk a major confrontation with his home province.

Now which is more astonishing – that Harper would almost casually mention he’s going to put a new chokehold on a key Alberta export, or that almost nobody in Alberta would protest?

Under the existing power structure, neither is surprising. Not one Conservative candidate in Alberta publicly criticized or even questioned Harper’s decision. How could they? He can and will end their political careers if they oppose him.

Neither did Alberta Premier Ed Stelmach, apart from a brief comment after the election. Why draw attention to the fact that he is powerless? Under the constitution, Ottawa controls exports.

There is only one institution with the power to prevent Harper – or any other federal leader – using Alberta’s oil as an election football. That institution is the Canadian Senate. And if it were provincially elected – as Harper to his great credit wants – the Alberta senators, supported by others from Saskatchewan, B.C. and perhaps Ontario, Newfoundland and Nova Scotia, would immediately announce that they will block any such regulatory intrusion unless and until the government convinces them it is legal and necessary.

Breaking the national impasse – Senator Hugh Segal’s extraordinary motion

Hugh Segal is one of that very rare breed, an appointed Canadian senator who derides the smug rationalizations that surround him on all sides about why appointed parliamentarians are much better than elected ones. He believed in electing the Senate long before Martin had him appointed to the Upper House in 2005 to represent Ontario. In fact he argued strongly for a provincially-elected Senate ten years ago, when he ran against Joe Clark for the Progressive Conservative leadership (Joe disagreed). He argues for it still.

hugh-segal.jpg Last year Sen. Segal made national headlines by moving a resolution in the Senate that there be a national referendum on whether the Senate should be abolished.

By agreement, northern Ontario NDP MP Charlie Angus introduced the same motion in the House of Commons.

This reflected the confidence of the national NDP that Canadians would cheerfully vaporize the Senate, and the Conservative belief that they would rather start electing it. The two parties agree, in other words, that Canadians do not accept the institution as it stands, and that something should be done.

Sen. Segal thinks a referendum offers the only way to break the national political impasse on the Upper House.

Incremental and conventional reform is a good way to start, he thinks, but formal amendments to the written constitution will be required to finalize any reforms. And to do that, surely a national referendum is essential.

He proposes that the federal and provincial governments accept the referendum’s result as a compelling guide whether to reform or abolish the Senate. All governments could and should act according to the results within their respective jurisdictions.

To close the Senate would require the unanimous consent of all Canadian legislative chambers (except the Senate). Structural reform, on the other hand, requires the assent of only the House of Commons and seven provincial legislatures, including either Ontario or Quebec.

A year ago, on October 30, 2007, Sen. Segal made an impassioned plea in the Upper House for senators to recognize that although the Senate was established by the Constitution in 1867, Canadians do not consider it legitimate.

They consider the House of Commons and provincial legislatures legitimate, he said, because since 1867 there have been 300 provincial and territorial elections, and 39 federal elections. But there have been none for the Senate. Instead there have been 17 government attempts to legitimize the place, and all have failed.

“Surely in a democracy,” declared Senator Segal, “the most fundamental question is: Should the Senate exist at all? … The time has come to allow the electorate to weigh in and settle the question.”

In a Citizens Centre interview last month, Sen. Segal said that though his motion died with the last Parliament, he will reintroduce it as soon as possible.

Interview

Q:  Given the government’s continuing minority in both Houses is progress on Senate reform possible?
Yes. I believe a motion to have a referendum on abolition would pass both houses and put real pressure on for reforming the Senate.

Q:  Do you agree that last year’s two government bills (term appointments and federal elections) were unconstitutional, as alleged by Quebec and a number of academics?
No, I do not. In neither case is the prime minister surrendering or limiting, challenging or diluting a present constitutional provision. He is merely circumscribing how he and future prime ministers sort out whom to appoint – not their right to recommend by "instrument of advice" nominees to the Governor General.

Q:  Even if those federal bills were unconstitutional, would provincial elections avoid this problem?
Provincial elections would be the quickest way ahead – but they cannot address length of tenure.
[Editor: This is a key point. Provincial election laws cannot compel a senator, once appointed, to step down before age 75.]

Q:  Would provincially-initiated Senate elections be preferable to federal Senate elections anyway?
Yes, if Saskatchewan followed Alberta, Manitoba followed Saskatchewan, and B.C. came onside, democratization would begin in earnest. The democracy contagion would spread from there.

Q:  Is there likely a willingness among at least some provinces to pursue this course?
Yes. Saskatchewan should be next, followed by Nova Scotia, Manitoba, and Prince Edward Island. There is already a private member’s bill in Toronto proposed by the provincial Tories to have provincial senate elections.

Q:  While these provincial elections proceed, will you still press forward with your referendum motion regardless?
Absolutely, yes.

Q:  Why would your resolution pass the House of Commons, given that all other parties still oppose Senate reform?
When I introduced my motion last year, both the prime minister and the NDP leader indicated support for the notion of abolition – as a first option for the NDP, and for the prime minister as a last resort should efforts to democratize fail. In today's Parliament that represents enough to clear the House.
[Editor: Between them, the NDP and Conservatives now have 180 seats, or 58% of the votes.]

Q:  Even if it passes the Commons, why would senators support it?
Were it to pass the House of Commons, perhaps even with Bloc Quebecois support, the Liberal majority in the Senate would be under some obligation not to unduly obstruct.

Q:  There are really three options, not just two: they are reform, abolition or the status quo. Are you afraid of a three-way split?
With an open and focused debate, stasis [the status quo] would lose to either abolition or reform. I don't think there will be many except some of the present Liberal senators who would make the case for stasis.

Q:  Will this to be a front-burner issue in the new Parliament?
I believe it will be in throne speech, and except for the financial meltdown, very prominent.

Q:  Are there effective ways for ordinary citizens to help your resolution succeed?  
Letters and emails to MPs encouraging Senate reform – and to senators from all parties – in support of my resolution would be helpful.

In large, prosperous, diverse countries like Canada, two national chambers are the norm

national-chambers.jpg If you take the world’s most prosperous national jurisdictions, and ignore city-states like Singapore, banking islands like Bermuda, and filthy rich oil emirates like Qatar, you end up with the following list (given in order of per-capita prosperity).

We observe two things in this list: three-quarters of the world’s most prosperous democracies have “bicameral” national legislatures (two houses, not one), and those that don’t are almost all Scandinavian nations with racially and socially cohesive populations. Successful countries with complex social or federal structures such as ours typically have two national chambers.

This is a useful rebuttal to those who would abolish our Senate. It is also significant that many of the world’s most oppressive left-wing countries – Cuba, Chad and China, for example – have only one elected assembly, on the grounds that upper chambers are elitist. Unfortunately, however, “power to the people” all too often simply means “power to the government.”

The three main functions of a reformed Senate

1. Holding the government to account

A Senate elected independently of national political parties (that is, by means of provincial political parties, or as independents) provides a more effective brake than the House of Commons on a majority government. Long ago there were MPs who would sometimes vote against their own party leader’s position. This almost never happens anymore, producing the “elected dictatorship” so many Canadians now object to.

Accountability comes under many headings: regional, ethical, financial, administrative and legislative. All are subject to Senate scrutiny – everything from the appointment of judges to the integrity of government contracts.

With a provincially-elected Senate, Canadians could confidently return to electing majority national governments, knowing they will be held to account by the Upper House. Thus could we escape the chronic instability of minority governments and elections every two years.

2. Representing provincial rights and interests

The Canadian Constitution has dealt all the trump cards to the national government. It taxes and spends in provincial jurisdictions, it regulates at will the production, pricing and distribution of provincial resources, and it appoints the judges who interpret the Constitution. Whether or not this imbalance is necessary or good, it exists and is constitutionally entrenched.

For the past half-century, provinces have tried to control the national government through first-ministers’ conferences. However, these are discussion groups, with neither the political unity and duration, nor the constitutional power, to control anything. By contrast, the Senate already has all the constitutional power and political presence necessary to control the national government, and if it were provincially elected it would do so.

3.  Sober second thought

This has been the sole contribution of the Senate since 1867, and according to the experts it has played this role fairly well over time. The importance of second thought should not be underestimated, given the partisan bloody-mindedness which so often drives legislative debate in the House of Commons. Partisanship exists also, in lesser degree, in the current Senate. Here too provincial election of senators would help, because there is seldom a strong tie between federal and provincial parties, even those of the same name.

Progress report from Senator Bert Brown

bert-alice-brown-senate.jpg One thing to keep in mind about governments is how slowly they make decisions.

Since he was appointed in 2007 to represent Alberta, Bert Brown – currently Canada’s only elected senator – has been in ongoing contact with provincial governments.

The return of the Harper government with a fairly strong minority has given a number of provincial leaders the confidence necessary to proceed with elections, Brown reports. Until now, they were unsure the winners would be appointed and were therefore reluctant.

The Saskatchewan government announced in its fall throne speech that it will present election legislation in this session (i.e., this fall or spring).

The B.C. government has decided to go ahead, despite earlier skepticism. It has legislation more or less ready, in the form of the never-used and discontinued B.C. Senatorial Election Act.

The Manitoba government will now hold public consultations on Senate elections, though no schedule has been announced.

One Atlantic province – Sen. Brown is not yet at liberty to say which one – is almost ready to announce, and one more is moving in this direction.

“Even some NDP MLAs across the country are waking up to democracy and coming on side,” says Sen. Brown. “It’s very encouraging.”

What you can do

Very simple. Write a letter.

You can use short sentences and simple words, but it’s essential to speak up. Political leaders can’t read minds. Every positive letter they receive encourages them. The absence of letters persuades them that nobody cares about the issue. You are not wasting time by writing. It makes a difference.

Write your provincial premier

The most important letter is to your own premier, because premiers will decide whether to hold elections. A paper letter carries more heft than an email.

Hon. Gordon Campbell
Premier of British Columbia
PO Box 9041, Stn Prov Govt
Victoria B.C. V8W 9E1

Hon. Ed Stelmach
Premier of Alberta
#307 10800 97 Ave.
Edmonton  AB  T5K 2B6

Hon. Brad Wall
Premier of Saskatchewan
226 Legislative Building
Regina, SK  S4S 0B3

Hon. Gary Doer
Premier of Manitoba
#204 450 Broadway Ave.
Winnipeg, MB  R3C 0V8

Hon. Dalton McGuinty
Premier of Ontario
Legislative Building
Toronto, ON  M7A 1A1

Hon. Jean Charest
Premier Ministre du Quebec
3e Etage, 835 boul. Rene Levesque Est
Quebec, QC  G1A 1B4

Hon. Shawn Graham
Premier of New Brunswick
Centennial Bldg., P.O. Box 6000
Fredericton, NB  
E3B 5H1

Hon. Rodney MacDonald
Premier of Nova Scotia
P.O. Box 726
Halifax, NS  
B3J 2T3

Hon. Robert Ghiz
Premier of Prince Edward Island
P.O. Box 2000
Charlottetown, PE  
C1A 7N8

Hon. Danny Williams
Premier of Newfoundland and Labrador
P.O Box 8700
St. John's, NL
A1B 4J6

(Note to Albertans: Premier Stelmach could help things along by publicly scheduling the next provincial Senate election now, in anticipation of Senator Banks’ mandatory retirement in Dec., 2011. Existing senator-elect mandates expire in Nov., 2010. The next provincial Senate run-off could take place with province-wide municipal elections in October, 2010.)

Write Harper

The next most useful letter you can send is to Stephen Harper. The odds are he will not see it, but his assistants in the PMO monitor such things carefully and advise him. Congratulate him for his remarkable initiative and encourage him to press on.

Right Hon. Stephen Harper
House of Commons
Ottawa, ON
K1A  0A6

(Note: The customary way to open a letter to a head of government is “Dear Prime Minister,” or “Dear Premier”. Letters to Parliament Hill do not require postage. Letters to premiers do.)

Encourage our two reform-minded senators

You can write Senators Segal and Brown postage-free at:
The Senate of Canada
Ottawa, ON  K1A 0A4

The Citizens Centre is writing too

The Citizens Centre is expanding its newsletter key-people mailing list from 225 copies last time to over 300 this time, including (for the first time) all B.C. MLAs.

“State of the Nation” already goes to all Saskatchewan Party MLAs, all Tory senators, all western Tory MPs, all relevant federal ministers, all provincial premiers and intergovernment ministers, four dozen national-affairs journalists, and two dozen academics and policy advocates

We will continue to expand this list as resources permit. But there is something politicians pay more attention to than unsolicited mail from us – and that’s unsolicited mail from you. It makes their day.

Points worth making (in these words or your own)

Provincially-elected senators can and will hold the national government to account far better than federally-appointed senators ever have.

The Senate already has immense constitutional power (equal to that of the House of Commons). A provincially-elected Senate would use it.

With a Senate that’s more on the ball, Canadians could once again elect four-year majority governments. Lacking an effective Senate, our only choice is between abusive majorities or weak minorities, with elections every two years. We are sick of both.

Your province needs a powerful delegation in Parliament to advance its interests in a way that premiers can’t and MPs don’t.

Prime Minister Harper is offering Canadians a chance to improve federal accountability and national unity. But provincial governments must act now, before the Senate gets so empty Harper must start appointing his own favourites.

There have been 17 previous attempts to reform the Upper House. This is the first that stands a strong chance of success.

The reason in the past for not holding elections – that the prime minister would not appoint the winners – has vanished. Harper is pleading for elected candidates, and has already appointed one (Sen. Bert Brown).

Most successful democracies have two national chambers, and most of them are elected. Canada’s appointed Senate is a national embarrassment.