Wednesday, January 13, 2010

The Terrible Idea of Senate Reform

The word is in the air that the present government again proposes to reform the Senate. The Government proposed to introduce Senate elections, which will commence as senators retire from the senate and their seats come open to be filled. There is no suggestion that the powers of the Senate will be reformed at the same time or that the distribution of seats within the Senate will be modified.

There are nice legal questions around the ability of the government to make these changes without following the amending procedure set out in the Constitution Act, 1982 that are worth a momentary comment. The 1982 Constitution provided Canada with a domestic means of amending the Constitution (no more trips to England to politely ask Westminster to do the job). It has two provisions regarding the Senate. First, s. 41 provides that unanimous consent of all of the provinces is needed if a proposal is made to change the rule that no province will end up with fewer senators than the number it had in 1982. Second, s. 38(1) combined with s. 42 says that "the method of selecting Senators" may only be changed if the Senate and the House of Commons agree and two thirds of the provinces representing at least 50% of the population agree (there is a procedure for dispensing with the Senate's consent if they refuse and the House of Commons insists). While there are various ways in which the "method of selection" could be left theoretically unchanged while still allowing for elections (eg. having the elections be advisory while leaving the power to appoint in the hands of the Governor General) my suspicion is that most courts would see introducing elections in any form as a significant change to the "method of elections." However, that is something that will get sorted out in court proceedings.

The more interesting question is whether or not it is a good idea at all. The Senate is a spectacularly undemocratic body. There is a first obvious reason for this, which the election proposal appears to address -- that is, Senators are appointed and hold office until tehy retire at age 75. However there is a second, I think, more important reason. The Senate is deliberately set-up on a quasi-regional/provincial basis with the seats being distributed without any real regard to population. Thus a senator from Prince Edward Island represents approximately 33,000 residents while a senator from British Columbia represents somewhere in the neighbourhood of 690,000 residents. If we throw in the territories this gap becomes even wider.

The undemocratic nature of the Senate, however, is tempered by the very fact that it is not elected. When we look at the history of the Senate in the last fifty years there are a very few incidents where it actually stymies the legislative agenda of the government. For the most part it tinkers with and refines legislation and only on a few matters has it really stood up to the government of the day. Even in those cases where it did stand up to the government (say free trade and the GST) once the House of Commons showed that it was intent on proceeding or an election was held, the Senate got out of the way. This is actually quite remarkable given the fact that the Senate is populated with senators who are often of the opposite party than that which holds power through the support of the Commons (Mulroney, Chretien and Harper have all been in this situation). So why this restraint?

The answer is that the Senate lacks any form of popular legitimacy and the senators know it. While it is easy to think of the senators as a bunch of undemocratic, political hacks, the evidence suggests that most of them are democratic in their views and fundamentally accept the idea that in Canada we have a system that endorses a government that is responsible to the House of Commons. This understanding and lack of legitimacy acts as a practical brake on the willingness of the Senate to throw its notional power around, despite the fact that on paper it is largely co-equal with the House of Commons. Thus, like the notwithstanding power in the Charter, the power of the Senate to stop legislation or to initiate legislation is really a reserve power -- rarely to be resorted to (if ever). This allows the Senate to serve a useful function as an agency to tinker with legislation, develop big picture policy on background matters and act as an emergency governor in the face of rare, radical proposals. However, it is not a real power.

Senate elections will fundamentally change that dynamic. With Senate elections there is a necessary development of a form of legitimacy and with that will come an expectation that the newly elected senators will use their power to do what they were elected to do. Thus we are likely then to see the Senate flex its muscle on a wider range of matters and in doing so influence legislation and government policy in a way that is intrinsically unrepresentative. The local interests of Prince Edward Island (which is already over-represented in the House of Commons) will become even more important. Similarly, the interests of rural Canada will be given even greater predominance over urban Canada (which is under-represented in the House of Commons). The Government will becoming increasingly accountable not to the overall will of the electorate but instead to a bewildering combination of local interests and coalitions. Members of the House of Commons will become irrelevant to the point of being gelded.

Canada is undemocratic enough as it is. Introducing an new elected player into our system that is even more divergent from any concept of one person one vote will not help this. The interests of the Provinces are best looked after by the Provincial governments -- who have strong, independent jurisdictions within their boundaries. Allowing national interests to become too preoccupied with provincial issues helps no-one. Perhaps the best answer would be to abolish the Senate -- but that is unlikely ever to happen give our amending formula. In the absence of that solution, let's not do anything to take it off the sidelines.

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