Monday, February 17, 2014

Can we have a non-partisan Senate?

This would be the long-term outcome of Justin Trudeau's recent proposal should it succeed in gaining wide acceptance and be fully implemented. The heat from the Senate scandal, which has now resulted in charges against one former Liberal senator, clearly played a part in prompting the Liberals to abandon many decades of partisan appointments to the Senate. It represents potentially radical change.

In its early years, the Senate was a relatively well-accepted part of Parliament and would from time to time reject bills from the House of Commons or amend them. Following the death of Sir John A. Macdonald in 1891 two among the four prime ministers who served until the 1896 election were senators. Overall, throughout its history the appointed Senate has deferred to the elected House of Commons.

Nominally  the Senate is the chamber of sober second thought. One justification often cited for the Senate has been its role in reviewing House of Commons bills and correcting flawed legislative drafting. However, the Senate’s role in the legislative review process has been limited in part because it has often been controlled by the same political party that controls the House of Commons.  The Senate rarely challenges the government on substantive matters, especially if the same party controls both.

History of recent partisanship

Partisan conflict did ratchet up after 1984 when the Mulroney government with its overwhelming elected majority came into conflict with a Liberal-controlled Senate. I happened to be an eyewitness to the beginning of this era and observed it unfolding. I produced a documentary on the episode in the context of efforts back then to get Senate reform for the CBC program The Journal. The documentary is currently available online at the CBC Digital Archives.

The program came about in part because of then-emerging efforts to get Senate reform. In January 1985 the Liberal Senate delayed a government borrowing bill on the technically appropriate grounds that the government's spending estimates ought to have been revealed before the government asked Parliament for the authority to finance this spending. This might seem a minor technical matter. However, it drew partisan fire from the PC government, especially Brian Mulroney and strong criticism in the press, humiliating the Senators. The reaction seemed overheated given that it was a brief delay (about five weeks) for what amounted to technical reasons.
Prime Minister Mulroney convened a first ministers meeting in April and later introduced a constitutional amendment (never enacted) that would limit the Senate's powers to short delays of government bills. 
Allan MacEachen is on the left
between Pierre Trudeau and John
Munro with Jean Chrétien back right 
The Liberals in the Senate were led by the experienced and wily Allan MacEachen, an a former Trudeau cabinet minister and house leader. I sensed when we interviewed him a few months after the borrowing bill controversy that he was still seething from the opprobrium directed at him during that episode.
So I was not at all surprised when MacEachen's Liberal Senate began to give the Mulroney government a hard time. The following year the Senate Liberals delayed contentious legislation including the Patent Act (to which they only consented to after the lapse of a year and at the urging of Liberal Leader John Turner), a copyright bill, and most significant of all, the legislation that would implement the Canada-US Free Trade Agreement. The latter was delayed until after the 1988 election could be held. With the government re-elected the Senate proceeded to enact the bill.
Brian Mulroney used special
constitutional clause to appoint
eight Senators to gain Senate
But conflict between the two chambers continued. The Liberal Senate delayed changes to unemployment insurance and appeared to be headed to doing the same thing with the GST when, in the autumn of 1990, Brian Mulroney invoked s. 26 of the Constitution Act, 1867 appointing eight additional senators giving him a Senate majority. Despite efforts at filibuster by the Liberals, the Tories gained control of the chamber and were then able to get their legislation passed expeditiously.
Not surprisingly, conflict was renewed when the Chrétien Liberal government elected in 1993 confronted a PC Senate majority. The Tory Senate gave the government a hard time in particular over its cancellation of the previous government's initiative to privatize Toronto`s Pearson airport (not a popular cause but the PC party had been eclipsed when reduced to two seats in the 1993 election).

Fast forward another decade and there was another reversal of roles. In 2007 the Liberal controlled Senate refused to enact Stephen Harper's original senate reform legislation (it had been initiated by the government in the Senate) unless the PM referred the issue to the Supreme Court (See here and here). So the partisan conflict that started in the eighties continued apace into the 21st century. Both Liberals and Conservatives bear a share of the responsibility for the evolution of the Senate into a more partisan institution.
The role of public opinion
We now live in a world where opinion polls and social media permit an opposition-controlled Senate to gauge public opinion and strike when opportunity presents itself. The Senate does not have the political legitimacy that comes from election. However, if an opposition controlled Senate plays its hand shrewdly by taking popular stands (or even unpopular ones if they are on issues below the public`s radar) it can ignore its institutional lack of moral authority. The political convention that says that the elected House of Commons should take precedence over the appointed Senate has been weakened by the last few decades of growing partisanship and a heightened ideological divide.

Federalism and the Senate

It is worth remembering that conceptions of federalism were in their infancy in 1867. The only other federal regime was in the United States and its system had resulted in a civil war that had just ended. Most of the attention and focus in Confederation was on the national government. That helps explain the importance assigned to regional representation within parliament. No one could foresee the development of the strong provincial governments delivering a myriad of services that we have now. However, it is precisely the effective evolution of the 1867 division of powers that makes the Senate unnecessary today. As it is there exists considerable regional influence and representation within national party caucuses within the House of Commons. The Senate, given the difficulty of abolition, is nevertheless likely to remain with us.

Justin Trudeau's proposal

Overall, Justin Trudeau's proposal has positive potential, especially given the descent of the Senate's reputation and its recent history. If the NDP were to form a majority government in the next election one might imagine clashes with the Senate growing in intensity, particularly given the NDP's pledge to abolish the institution. Although one won`t likely hear it from the NDP, from its own perspective, Justin Trudeau's proposal makes sense, particularly if an NDP government found itself obligated to appoint Senators (a possibility).

However, there are a the number of steps needed to flesh out his proposal. One of the first things Trudeau should do is to restate in strong terms the convention that the Senate must not defy the expressed will of the House of Commons on matters of principle. Sober second thought should apply to drafting errors, or flaws that might, for example, produce unintended consequences, not to legislative initiatives that clearly reflect the express wishes of the government of the day, whether it means proceeding with the GST or killing Pearson airport privatization. The Senate can continue to do useful policy work in its committees.

Although the convention of deference has been mostly sufficient throughout the course of Canadian history, it would make sense to go further and adopt a formal constitutional amendment to limit the Senate's authority. The Constitution Act, 1982 in s. 47 limited the power of the Senate to veto most constitutional amendments. It can only delay them 180 days (not including days when Parliament is prorogued or dissolved). Why not apply that provision to ordinary laws or make it one year and thus similar to the authority of the House of Lords in the U.K? This would require, however, a 7/50 amendment, a difficult thing to achieve.

The Senate has been traditionally organized along party lines for its day to day functioning including appointing the membership of committees, so there is the need for more development of the policies and practices that would be required to make a non-partisan Senate functional. Even if there is non-partisan appointment there are still likely to be groupings of Senators that will arise naturally reflecting common outlooks and interests.

One truly foolish thing Trudeau did was not to consult his party's current Senators for their thoughts on the proposal. No doubt they could have warned of some of the issues that are emerging in commentary now.  There have also been reports that Justin is not happy with the behaviour of Liberal senators after the announcement, another cost of not consulting. The only real benefit was that the announcement was not leaked and thus took everyone by surprise. This column by Robin Sears captures what Trudeau might have done instead without it costing him any of the political benefit he appears to have gained. 
It would also have made sense to await the Supreme Court ruling on Senate reform issues, expected later this year. It might yet include some surprises that the Liberals will need to take into account. The Supreme Court could in its ruling go beyond the literal questions that are before them (think, for example, of the wide scope of the Secession reference ruling).

It will also require some self-discipline on the part of Trudeau, should he become Prime Minister. It is no accident that both Liberal and Conservative administrations at the federal level, and NDP governments provincially, have sought to reward party members with public appointments. Discretionary appointments, generally labelled by the pejorative term patronage, do have some role to play in making a system based on political parties functional.

Although patronage appointment ought not be the route to becoming a legislator, in practice prime ministers have long prized Senate appointments as "the ultimate gift", as former Sun columnist Doug Fisher put it in our documentary.


I am reminded of the lines in this excerpt from the script that closed the film, written and voiced on camera by Keith Morrison (an exceptionally talented journalist and writer):
Last month the Justice Minister said he could see no useful purpose for the Senate at all, to which Brian Mulroney responded, "That's because Crosbie isn't Prime Minister." Anybody familiar with the long and futile history of Senate reform will get a sense of déja vu about the remark. Senate reform has failed largely because of the convenience of the status quo and especially for the prime minister.... 
All this was back in 1985.  It should surprise no one if the question of senate reform/abolition remains with us for some time to come.