Problems with the Senate
Posted November 29, 2013
Canadians have lots of reasons to be unhappy with the Senate. The recent expense scandal is currently the most visible, but probably the least important.
The expense scandal reflects badly on the involved senators and on the way the Senate manages its affairs. The Prime Minister has frequently shown poor judgement in appointing senators, and his efforts to micromanage the fallout have done him lots of harm and little good. But no significant damage has been done to the public purse.
The larger issues are hard to fix.
At its inception, the Senate was designed to provide some balance to prevent the larger provinces from having overwhelming influence on national choices. Ontario and Quebec each have 24 seats, as do the Maritimes (10 each for NS and NB and 4 for PEI). As the four western provinces and Newfoundland and Labrador joined, they received six each. The three territories have one each.
None of this has adapted to changes in population, which is manifestly unfair to the west. British Columbia has more than ten times as many people per senator as New Brunswick, and more than twice as many per senator as Quebec.
Beyond that, the primary affiliation of appointed senators has been with their party, not their region or province. This is particularly the case when appointees are chosen for their party loyalty as opposed to other attributes.
The Supreme Court is to rule on how three substantial changes can be made. In particular, what agreement from the provinces, if any, is needed for there to be term limits, consultative elections, or abolition?
The alternatives are (a) the federal parliament can do so on its own, (b) agreement is required of seven provinces representing at least 50% of the population, or (c) all provinces must agree.
Term limits without elections would produce an absurd result. If the limit had been eight years, the entire Senate would have been Liberal appointees in 2006, and Conservative by the time of the next election in 2015.
If senators were directly elected, they would no longer feel obliged to defer to the House of Commons. This could frequently set the stage for unhelpful paralysis as seen in the United States and elsewhere.
Most provinces argued before the Supreme Court that the 7/50 rule should apply to term limits and elections, and unanimity for abolition. If the court concludes that the proposals are constitutional changes, these arguments are likely to prevail.
In practice, that will make it very difficult to achieve change, because some provinces will, as a price for their support, hold out for goodies that have nothing to do with the Senate. Abolition will certainly not happen if it requires unanimous consent. NDP leader Tom Mulcair will have to stop pretending that it just requires sufficient political will at the federal level.
In a June 21 article, I argued that if a province could initiate separation by referendum (certainly a constitutional change), then the rather less momentous business of abolishing or changing the Senate should be achievable by the same means. In the National Post on November 21, Andrew Coyne made a similar argument.
If we accept that premise, a much broader range of ideas can be pursued.
For example, voters could choose to have senators allocated by party based on popular vote in the most recent federal election, or they could support a distribution of seats that is more fair to the west than today’s mix.
That much change could never be achieved by a process requiring broad or total provincial consent.
The point here is not so much to argue for a particular future model for the Senate; rather, it is to argue for a different model for effecting change. But the first question to be asked is whether the voters want a Senate at all. If the answer to that is positive, then different reforms on how it is structured and operates can be considered.
After the current proceedings, before the Supreme Court are concluded, another reference case should be put before it—namely to determine what kind of changes can be implemented by a nationwide referendum.
The widespread dissatisfaction with the Senate did not begin with the expense scandal, and will not go away with the passage of time. Voters have a lively appetite for change. They need a vehicle to make it happen.
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