By Paul McLeod: The Chronicle Herald — Halifax
© Kevin Tobin
“If the upper house agrees with the lower it is superfluous, if it disagrees, it ought to be abolished.” — Abbe E.J. Sieyes, 18th-century French politician.
It’s proven to be a lot easier to get appointed to the Canadian Senate than it is to change it.
There have been dozens of studies, commissions, reports and petitions to modify the Senate. The floor of the House of Commons is a graveyard of failed Senate reform bills.
Only once has the reform side scored a significant victory.
Starting with Confederation in 1867, senators were appointed for life, unless they voluntarily stepped down. In 1965, Parliament reformed the Constitution, making it mandatory for senators to retire at age 75. That remains the retirement age to this day.
It may seem to be a small victory to those who push for the so-called Triple E Senate — equal, elected and effective — but it laid the groundwork for today, when Canada is in the midst of the best chance for Senate reform since the chamber was created.
Prime Minister Stephen Harper has called the Senate “a relic of the 19th century.”
The 2011 Conservative Party platform declared, “An unelected Senate is simply not acceptable in a modern democracy.”
Since coming to power, Harper has pushed several bills to reform the Senate. All of them died on the order paper.
This time, with Bill C-7, Harper thinks he may finally have the right combination of clever legislation and political power to overcome the hurdles that have caused him and so many others to stumble in the past.
It won’t be clear cut.
Even with a willing federal government, would-be Senate reformers run into two problems. One is that no one agrees how the Senate should be changed. The other is that reforming the Senate is very, very complicated.
The Senate is enshrined in the Constitution. Amending the Constitution requires formal votes of support from at least seven provinces that make up over 50 per cent of the population.
But different provinces want different things. The Western provinces want more representation while Eastern Canada doesn’t want its power diluted. Some want to give the Senate more power while others worry what the unintended consequences might be.
Then there’s the sizable share of Canada that treats talk of amending the Constitution like a plague to be avoided at all costs. This has caused Harper to move onto Plan B, finding a way to alter the Senate without changing the Constitution.
The plan has two parts. The first, introducing term limits, is the easy part.
The House of Commons has limited powers to reform the Senate without going to the provinces. It cannot single-handedly change the Senate’s powers, its numbers or, theoretically, how senators are appointed.
But term limits seem to be fair game. The reform that took place in 1965 went through Parliament without ever being debated by the provinces.
Past proposals for term limits ranged from six to 14 years. The Conservatives have chosen nine years, specifically in the hopes that a prime minister who wins two majority governments could not stack the entire Senate. The second part of the plan, electing senators, is much trickier.
The Constitution specifically states the House of Commons must get seven provinces onside before it can change “the method of selecting senators.”
The Conservatives believe they’ve found a loophole. Instead of forcing provinces to elect their own senators, Harper will voluntarily give up that power. He will still nominally be the one in charge of nominating senators, but he will be tied to respecting the wishes of provincial elections.
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The system is entirely voluntary, and provinces can choose not to play ball if they want their senators to be appointed the existing way.
Whether this is actually legal is up for debate. Quebec has accused the government of enacting a Constitutional workaround and said it would fight the change, all the way to the Supreme Court of Canada if needed.
Liberal Sen. Serge Joyal called a previous version of Bill C-7 a “shell game” and “a strange, if not bizarre, legislative creature.”
Joyal has several objections. They include his belief that the bill breaches “the long-recognized constitutional principle that the federal Parliament cannot delegate powers to the provinces.”
He argues the Conservative plan is clearly unconstitutional and will be shot down by the courts.
Conservative Sen. Bert Brown begs to differ. Brown became the second “elected senator” in 2007, after Alberta started holding non-binding Senate elections.
Brown says Quebec has been threatening to go to court over Senate reform for years but he doesn’t think they’ll actually do it.
“The reason they’re not doing it is Harper’s bill does not make a command to any province to do something. It’s an offer to the provinces,” says Brown.
Quebec would have a tough case arguing that the federal government should not be allowed to give them more power on a voluntary basis, he says. “I think the Supreme Court would probably laugh them out of the room.”
If an elected Senate does become a reality it raises a new problem. What should happen when the Senate and the House of Commons disagree with each other?
At present, the Senate has the power to block any and all bills passed by the House of Commons. But convention dictates the unelected Senate is to yield to the will of the elected House. An elected Senate, infused with democratic legitimacy, may have no such reservations.
Many other countries have bumped up against this problem. In Germany, deadlocks are often resolved with a joint mediation committee. Australia has a complex system where both houses can be dissolved and reformed in a joint sitting. In many countries, the second chamber only has a temporary veto.
The plan being put forth by Bert and other Conservative senators would preserve the supremacy of the House of Commons, while still allowing the Senate to have absolute veto power in rare cases.
Essentially, the Senate would adopt the 7-50 formula. At least half the senators from at least seven provinces representing at least 50 per cent of the country’s population would need to be onside to enact a veto.
The House would still be able to pass laws by simple majority.
“That means no gridlock,” says Brown.
However, that plan would require a separate amendment to the Constitution. Brown says party lawyers are working out the details, but the proposal is still a ways away from being introduced publicly.
Meanwhile C-7 is working its way through the House of Commons, where it will certainly pass. It will then hit the Senate, where it also faces good odds from the mostly pro-reform upper house. Then it’s on, perhaps, to a date with the Supreme Court.