What to do with the Senate?

Canadians are fed up with the scandals, spending irregularities, and other scurrilous activities of the members of our Senate.

During the federal election, the question of Senate reform has received heightened attention. But moving beyond the current public disgust with senatorial misbehaviour, what reforms are desirable and realistically possible?

Is the Senate necessary?

Before moving to whether reform is possible, we must first decide if the Senate is worth keeping.

The Fathers of Confederation designed the Senate to act as a chamber of “sober second thought.”  The Senate was intended to carry out detailed revisions of legislation (bills may be introduced in the Senate only if they do not involve money), investigate complex issues and consult with the population, and play a protective role through inclusive representation of minorities and regional figures (who may or may not be present in the elected House of Commons).

The Senate has proven its worth in several moments of history: for example, although Sir John A. McDonald said that the Senate would never block “the deliberate and understood wishes of the people”, it has the power to veto legislation. In 1988 with Bill C-30 (Brian Mulroney’s legislation for the free trade agreement with the USA), senators refused to approve the Bill before the public expressed their will in an election. More recently, in 2013, Bill C-377 (which compelled labour unions to disclose detailed statements of their finances to the Canada Revenue Agency) was slowed through the use of hearings and amendments until the Bill was returned to the House. In 2014, the Senate also returned the “Fair Elections” Bill to the House for further amendment, thus exhibiting powers that the Opposition in Parliament could not muster.

Nonetheless, the Senate has also unfortunately defeated legislation that should have been passed, such as the Climate Change Accountability Act, originally introduced by Jack Layton (Bill C-311.) After passage in the House, I was in the Senate that fateful day in November 2011 when the Bill was defeated without debate by a vote of 43 senators to 32. Now, in spite of the will of Parliament, Canada has no legislated mandate to ensure that our government meets its global climate change obligations under the United Nations Framework Convention on Climate Change by reducing greenhouse gas emissions.

Senate reform scenarios

Helen Forsey released her 2015 book, A People’s Senate for Canada: Not a Pipe Dream, in an Ottawa book launch attended by over a half-dozen supportive Liberal Senators. The daughter of (now deceased) Senator Eugene Forsey argues that “The problem is not the Senate’s existence as an unelected body, its fictional redundancy or its real or imagined powers; the problem is the way its place in our democracy has been misrepresented and its proper functioning undermined.”

Forsey dismisses the three most current scenarios for Senate reform: “Triple E”, abolition, and attrition.

Prime Minister Harper’s proposal for an “Equal, Elected and Effective” Senate was declared unconstitutional by the April 2014 unanimous ruling of the Supreme Court, which clarified that legislated Senate reform must receive consent of both houses of Parliament plus the legislatures of seven of our 10 provinces with 50% of the entire population of our country. Such a rigid amending formula practically means that equal Senate representation for every province, and direct provincial involvement in appointments, are constitutionally and politically unlikely. The Court found that electing senators would “significantly alter” the fundamental nature of the Senate (which has historically benefited by not having senators beholden to the same electoral whims as MPs.) The same constitutional strictures apply in terms of whatever is meant by making the Senate more “effective.”

The NDP has most stridently called for abolishing the Senate. The party complains that the Senate costs $89 million a year, that the “average” senator worked three months out of 12 (while 14 senators missed working a quarter of their few work days) and that 51 of 57 senators appointed by Prime Minister Harper were donors to the Conservative Party. Nonetheless, it remains totally unclear how the NDP could achieve the support of the provinces for abolishing the Senate.

Saskatchewan Premier Brad Wall, as well as the NDP, opt for the Prime Minister to simply refuse to appoint new senators, thus allowing the body to die by attrition. (Before coming to power, Prime Minister Harper promised to do just that.) The practical problem with this strategy is simply that, without Senate approval for legislation, a Canadian government could not function.

Practical Senate reform needed

It has not been impossible, over the years, to make important changes in the Senate. For example, women were admitted in 1930. Perhaps the most likely scenario for successful reform could arise as a result of Prime Ministerial initiatives – even if these could not be passed into law so as to bind their successors.

Helen Forsey approves of Justin Trudeau’s January 2014 surprise announcement that ended the inclusion of 32 Liberal senators in his caucus. These “independent” senators still refer to themselves as the “Senate Liberal Caucus” however, and some have been campaigning for Liberal candidates.

Forsey suggests reforms that may or may not be immediately practical: an alternative appointment process could be established such that that in future all senators be appointed by the Governor General on the advice of the Prime Minister to sit as Independents, and that they should be prevented from working on election campaigns and engaging in overtly partisan activity. She believes that clarifying residency requirements for senators and vetting all expenses by the Auditor General can be accomplished without legislation. Ms. Forsey believes that, “Building a People’s Senate is a critical part of making our democracy work.”

In 1917, Sir Clifford Sifton remarked that, "The Senate is not so much a check on the House of Commons as it is upon the Cabinet…”

CPJ believes that any reform in the Senate must be accompanied by more profound reform in current practices in the House of Commons as well, and indeed, in the Executive Branch (especially in the growing reach for power and control in the Prime Minister’s Office). Several reforms have been suggested in CPJ’s Election Bulletin.

It remains to be seen if the Canadian populace, anxious for reform and transparency in our various governance structures, exhibits the resolve to focus on needed reform of the Senate – or if their patience for this effort has already expired.

What to do with the Senate?

Photo Credit: Kit Logan/Flickr

Joe Gunn serves as Executive Director at CPJ.

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