Cold Hard Wonk

No sentiment but politics

39:1 Take 2 In P-10: Senate Reform

Posted by JJ in Strategic Planning, Golden Tacks (Friday September 8, 2006 at 9:24 pm)

And so it begins.

Senate reform could be a near-perfect issue for the government. So in addition to the popular and half-baked government proposal to shorten Senate terms, the government is pledging to introduce legislation to allow for the election of Senators.

What’s so great about that?

Constitutionally speaking, truncating Senatorial terms might require a formal, multi-provincial amendment, though that remains to be proven. Electing them almost certainly will, even if the government proceeds by setting up elections to provide the candidates to be appointed. So long as elections for Senate posts have no official federal sanction, it’s likely that the Governor-General can appoint them under the legal fiction of choosing to do so. If that’s the case, then the process is still technically the same.

Legislation requiring that Senators be drawn from a pool of elected candidates would likely be seen as binding the Governor-General’s choice. Which means that it would qualify as a change to the “method of selecting Senators” and fall under section 42(1)(b) of the Constitution Act, 1982, requiring an amendment approved by at least 7 provinces having at least 50% of the population.

So what would the government gain from introducing such legislation? The benefit stems from Canadians’ expectations. The Mulroney government’s obsession with constitutional wrangling was concerned with repositioning Quebec within the federation. That led to a complex series of negotiations which drew in a large number of associated issues. Provinces saw an opportunity to advance other claims as their price for what they saw as concessions to Quebec. The result was a series of tense and opaque negotiations, ranging over a wide variety of issues and many months, and given focus only by fears of separatism. When they think of changing the constitution, this is the process Canadians usually think of.

But that complex intergovernmental negotiation isn’t a prerequisite of the amendment process — it was complex mostly because of the complexity of the issues. An amendment only requires the following:

  • Parliament passes a bill containing the relevant amendments
  • Seven provincial legislatures which provinces comprise at least 50% of the population pass bills containing the same amendments

There’s no reason why one has to happen before the other, nor is there any rule about coordinating things in advance. There’s also no rule requiring hushed backroom meetings, single-file press statements, or lengthy debate.

Which means that the Prime Minister can introduce a bill on a narrow issue — electing Senators — without dragging in questions of regional representation. Given the popularity of that narrow change, it would be hard to explain (and justify) provincial opposition. Even if provinces want redistribution of Senate seats, why should the price of such changes be an unnecessary delay of democratic advances? Given that no province really opposes such a change, it’s hard to see what leverage a province stands to gain by insisting on a linkage between an elected Senate and other issues (as things stand).

So the plan ideally unfolds thus:

  • Introduce legislation to hold provincial elections upon Senate vacancies
  • Challenge provinces to pass similar legislation
  • Impress Canadians with a glimpse of how easy it could be to make popular changes to the Constitution
  • Make Canadians wonder why other governments couldn’t follow this route instead of convening investigative commissions and undertaking lengthy discussions
  • Government looks effective and competent
  • Opposition looks like anti-democratic stonewallers

A nice piece of work, if you can pull it off. And as an extra-special benefit, there’s the potential for a real showdown with the Liberal-dominated upper house. With 65 sitting Liberal Senators, even filling the eight current vacancies and replicating Mulroney’s feat of appointing a further eight wouldn’t suffice to ensure passage of government bills. If an appointed Liberal majority in the Senate decides to block a measure that appears both unusually direct and highly popular, it has the potential to be a major beating-stick for the government to wield come election time.

But there is a wild card in the mix, and that’s a little something known provisionally as the Murray-Austin Amendment. In addition to the government’s bill to fix Senators’ terms at eight years (let’s call that S-4), the two eponymous sponsors of this Amendment have proposed three changes:

  • Establishing a new “region” consisting solely of British Columbia and represented by 12 Senators
  • Redistributing the existing 24 regional Senators for Western Canada between Alberta (10) Saskatchewan (7) and Manitoba (7)
  • Increasing the number of “contingency Senators” who can be appointed to between five and ten from between four and eight

The amendment is a wildcard for a few reasons. While it might be popular, it will be bound to raise the hackles of Ontario and Quebec, who are unlikely to want their role in the Senate diluted; and, like it or not, if the Prime Minister wants his own amendments passed, he’ll need either Quebec or Ontario to meet the 50% population target (hence the first glimmers of talks on the subject three weeks ago). Quebec’s price could be the defeat of this amendment (or at least its delay pending broader discussion of redistribution); and if the amendment has, as it has been suggested, the support of the majority of Liberal Senators, the Liberals could block the Prime Minister’s move by undertaking a politically popular move of their own. If that happens, Harper will gain little or nothing for his effort. Hardly surprising, then, that the amendment is co-sponsored by a rump Ontario Progressive Conservative and a British Columbia Liberal.

On the other hand, if the measure passes, the Liberals will have less room to manoeuver in the Senate. At present, the Liberals hold 65 of a total possible 113 Senate seats. If Murray and Austin have their way, the total number of possible seats will grow to 127, potentially putting the Liberals in the position of holding a slender, two-vote majority. Considering that it can often be difficult to marshall older Senators, the amendment could jeopardize the Liberal party’s leverage in the upper chamber. Is a draw with the Conservatives over the issue of Senate reform really worth weakening the party’s most significant advantage in Parliament?

So very much to consider. No wonder it’s a house of second thought.

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