The Senate, again …

Following on from my recent comments about Bill-C-48, I note that Andrew Coyne, writing in the National Post, reminds us that “The business of passing, amending or defeating legislation, in a democracy, is properly the work of the people’s elected representatives, and no one else. Senators may have the power to do so, on paper, but it has been the expectation until now, if not always the practice, that they will not use it — not, at any rate, if the Commons insists. Because the Commons is both elected by and answerable to the people, and the Senate is neither … [and, he adds] … It is not enough that one dislikes a bill, in a democracy, to take it upon oneself to kill it — or what is the same thing, to leave it unpassed at the end of the session, the so-called “pocket veto.” Neither do senators have a democratic right to use the threat of either to force amendments upon the House, just because they meet in a room that looks like it. They may be a better class of appointees than the assorted bagmen and hangers-on that used to skulk around the place, but they are still appointees, with no more mandate to impose their will upon Parliament than the passengers on a city bus … [and, Mr Coyne says, en passant] … It is worth mentioning that both the tanker ban and the new assessment process were part of the election platform the Liberals ran and won on in 2015 (though the former was rather more explicit than the latter — the Liberals also promised “to end the practice of having federal Ministers interfere in the environmental assessment process.”) … [but] … it is not actually material. A government may or may not have a particular mandate to pass a particular bill, but the Commons has a larger mandate, to pass legislation in the people’s name, and to be accountable for it. Senators can hold all the pantomime votes they like, but the minute they actually defeat a bill, they have crossed the line. Because — again, it is dispiriting to have to explain this — no one voted for them … [and, he conclides] … The remedy for bad legislation is not to lobby a bunch of unelected sluggos to do away with it. It is to defeat it in the Commons, or if you do not have the numbers to stop it, to win enough seats at the next election to repeal it. There’s a name for that process. It’s called democracy.

Of course, there is another alternative, a better alternative, since a federal state MUST have a legislature that represents BOTH the people in their communities, the House of Commons or Chambre des Communes – the French expression being a bit more accurate representation of the central idea, and the people in their larger groupings, in their provinces, which are partners in the federation: to elect the members of both chambers. I  dealt with this over three years ago.

The better solution is to have a Senate in which Canada’s five regions are represented equally by elected senators. I said: “I have come to the conclusion (my own, only) that the proper solution is:

  • Equal, on a regional basis ~ Canada to have five regions, each with 30 senators …
    • Pacific (BC + Yukon) (28+2),
    • Prairies (AB, SK and MB + NWT and NV (12+8+8+1+1),
    • Central (Ontario (30))
    • Eastern (Quebec (30))
    • Atlantic (NB, PEI, NS and NL (10+4+10+6)
  • Elected, on a proportional representation basis during provincial general elections; and
  • Effective, which I believe will evolve, naturally from being popularly elected.

I see no reasons to change anything I said back then.

The problems remain the same ~ and Bills C-48 and C-69 are not the issues ~ the Supreme Court has, sensibly (see my comments about federal states, above), made it well nigh impossible to abolish the Senate, but has not spoken on how it can be reformed except to say that the provinces must be onside. Some provinces will insist that they cannot “lose” anything, ever, in the Confederation bargain so we ought not to reduce either Québec’s status as an equal to Ontario nor PEI’s four Senate seats ~ and that’s how I arrive at the conclusion that we need a larger Senate … which is something that will annoy many conservative Conservatives who would like fewer legislators, not more. Some provinces want a Triple-E (equal, elected and effective) Senate and, it seems to me that, the Constitution can offer equality, by region, and an elected Senate, by agreement, and that once the Senate is both equal and elected it will make itself effective.

Here’s what the current Constitution Act says:

Screen Shot 2019-05-28 at 07.48.02.png

It will require amending, but that has been done, several times, e.g. …

Screen Shot 2019-05-28 at 07.51.28.png

 

Screen Shot 2019-05-28 at 07.50.28

… so that argument that amending the Constitution is “too hard” is specious.

The business of electing the Senate is delicate. The Constitution sets out six “qualifications” for individuals being “summoned” to the Senate …

Screen Shot 2019-05-28 at 07.54.23.png

… and it says that …

Screen Shot 2019-05-28 at 07.56.08.png

… and …

Screen Shot 2019-05-28 at 07.57.10.png

… but it doesn’t say how the Governor General shall select the person(s) (s)he “summons” to the Senate, but we all know that, by convention, which is just as powerful, sometimes more powerful, than anything written in our feeble Constitution Act of 1982, that the prime minister selects them for her (or him).

For my model, I propose that the prime minister seeks agreement from the provinces that they shall elect senators, at each provincial general election, on a proportional representational basis, so that each province’s provincial ‘delegation‘ in the Senate of Canada is roughly proportional to the voters’ preferences in the most recent provincial general election. Consider this: in a (mythical) province that has 9 Senate seats the provincial general election popular vote results were 39% Liberals, 32% Conservatives; 13% Greens, 11.5% NDP and 4.5% others. The provincial elections commission has mandated that a party must get 11.2%  or more to earn a Senate seat and, therefore, it decides that the provincial Senate delegation will consist of the first listed member from each of the Green and NDP lists, the three top names from the Conservative list and the four top names from the Liberal Party’s list.

It should be the right of each province to determine how it will elect senators, but each must agree to elect them fairly and openly. If a government decides that it does not want to elect its Senate delegation then the prime minister will appoint qualified senators of his or her choice after each provincial election, demanding from each, as a condition of appointment, a signed letter of resignation to be effective when the writs are dropped for the next provincial election.

The Senate, right now, consists of senators who are “permanent,” until agree 75. The prime minister will need to ask each of them to offer him (or her) their resignation effective when the writs are dropped for the next provincial general election in that senator’s province. My guess is that most will do so … a few will want to stay on until age 75 and must be allowed to do so. It took the USA, arguably, 20 years (from 1893 to 1913), to get from public pressure to reform the US Senate to the 17th Amendment to the US Constitution; Canada should not trouble itself that it might take as long to get to a fully elected Senate just because a handful of individuals refuse to resign from their political sinecures.

An elected Senate will complicate life for the prime minister who can, no longer, count on having a large band of fellow party members in the upper house. Right now, for example, two of Canada larger province, AB and BC, and several smaller ones, are led by parties that oppose more than one major, key elements of Prime Minister Trudeau’s programme … the same will happen to a Conservative prime minister.

An elected Senate will also make it possible for the prime minister to select elected senators to serve in cabinet, especially in portfolios where, under §92 of the Constitution, the federal government ‘shares’ power in matters that are a provincial responsibility.

On balance, since a second or “upper” house is necessary for a federal state, an elected Senate will serve Canada better than an appointed one. The Constitution will need to be amended to make a sort of equal (across five regions rather than across ten provinces) and elected Senate possible. A prime minister will have to spend some (always scarce) political capital to make it work. Senate reform should be (a minor but important) part of the Conservative Party’s platform in 2019.

 

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