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Should we get rid of the Senate? Reform it? Keep it the way it is? Every party has a different suggestion this election for what works best for the battered institution of "sober second thought." According to writer-activist Helen Forsey and her new book, A People's Senate for Canada: Not a Pipe Dream!, some options are far better than others.
Forsey spoke with Roshini Nair about the role of the Senate in Canada's democracy and how it could and should be shaped for the future.
This interview has been condensed and edited. Listen to the full podcast interview here.
It seems like while there is a lot of passionate opinion about the future of the Senate, I think it's fair to say that some of us forget what the Senate is and what the Senate is supposed to do. So, remind us: what is the Senate?
Exactly that. We're forgetting or we haven't even known lately what the Senate was originally supposed to do and what it has done in various times in the past. I think my father [late constitutional expert and Senator Eugene Forsey] put it best when he said that the Senate does much good and it's too politically weak to do much serious harm. I think that is key, and I think we should keep both characteristics.
Now the "much good," he listed three main functions of it.
1. The normal review and improvement sometimes of legislation that comes up from the Commons.
They can also suggest their own legislation, but by and large it's Commons legislation and most of that is government legislation. So they go through that, drafting amendments, sometimes making something workable that otherwise wouldn't be, or something that's gone overlooked, and they try to improve it. And usually those improvements -- in what, 10 or 15 per cent of cases -- are just accepted by the Commons and it goes through.
2. The investigation of public issues. These may not be issues that the government particularly wants investigated or that would necessarily be receiving much public attention otherwise. But the Senate has done some very good investigations of not only controversial issues, or "minority" issues. Things like child poverty…Well, that's not a minority issue unfortunately, but things that get neglected in the normal run of political affairs.
3. (and this doesn't happen as often) the Senate is a secondary body in a sense (it's not elected so it doesn't have the same mandate as the Commons does), it can act as a protection of the interests of rights of citizens against abuse by the government. And we don't have too many of those protections left to us anymore.
The Senate can function that way and if the Senate is independent and is made up of people appointed on merit rather than for partisan reasons, it can and will do that and has done that in the past. It was the Senate that forced the government to go to the people in a general election in 1988 when the Free Trade Agreement Bill came in. And they said we won't pass this until it's been before an electorate in a general election because it has not been adequately aired and discussed and debated. They refused to pass the Commons bill until [former Prime Minister Brian] Mulroney won his majority (a first past the post majority so a false majority…) but anyway, [only after that] the Senate said, probably quite rightly, "well, the People have spoken and so we'll pass it."
In recent times, how well do you think the Senate has been fulfilling those intentions?
Well, not very well since the present government got a majority in the Senate by appointing the latest 59 senators. And those senators have been appointed mainly, as far as I can tell, on the basis of partisanship.
Just a couple of weeks ago in the leaders debate, Elizabeth May pinned down Stephen Harper and got him to admit that they [the Conservatives] expect the senators to do what the party wants. And the Liberals, I will have to say this for them, [their senators] voted against Bill C-51, all except one of them, and they did not follow a party line, so it wasn't just talk when they were freed from their partisan role and told they were henceforth independents. They still have a sort of Liberal outlook but they are not party people, they are not allowed to active in the party and they are not, and then don't vote any party line.
Well, let's go through the different party platforms. The NDP are very adamant about abolishing the Senate -- is that even possible?
I have two things to say about that. It is theoretically possible but no matter what it would take a long time. Remember Meech Lake? A constitutional amendment that needs unanimous consent of all the provinces plus Parliament has a three year period to get that unanimous consent.
In the case of Meech Lake, at least one province had given its consent and then the government changed and they withdrew that consent. So it's not a sure thing until those three years are passed and you've got it all locked.
So at the very best, from the point of view of the abolitionists, it will take considerable time. That's if there were no complications, if everybody agreed, and if there was a huge groundswell of abolitionist Senate -- more than there is now, because a lot of people are saying, let's reform it rather than abolish it (and I'm glad of that). But even if all the systems were go on abolition, it would still take several years.
And I don't think all systems would be go by any means. There are certain provinces -- Quebec and the Maritimes, Newfoundland -- that will certainly not go for abolition, so they would have to be persuaded. Then you get the provincial warlords (as my father used to call them) trying to insert their own little bits. Once you've opened up the constitution to changes, the provinces would each want (quite reasonably, if you like) to insert something or another for their own benefit. It would take way more than the three years.
But anyway, supposed it only took three years, my second point is we can do better. All we need is a declaration by whoever becomes prime minister that they will set up an independent non-partisan body who will receive nominations from the public and who will vet them and go through them, as the committee that does that for the Order of Canada.
The Order of Canada receives hundreds and hundreds of nominations for worthy members of the Order every year and they have this secretariat that checks them out. It takes quite a while but you could do that for the Senate and then, if the next prime minister says "I will abide by whatever that independent commission suggests for each province", and it might be provincial sub-committees -- it could take various forms.
I hope people will have a lot of input to how that's set up. But if a prime minister commits to that, that prime minister wouldn't be able to insert that into the Constitution. They would have no power to bind any future prime minister to doing the same thing. But once it was set up and it had started to work and started to work well and people liked it, a future prime minister might have a bit of a problem on their hands saying "oh no, I'd like to go back to the old patronage system."
That appointment system -- or a "non-partisan appointment process" -- is something that the Liberal party has put in their platform.
Yes, that's true. I think Trudeau at that point has had some very good advice and had the sense to follow it. And I'm pleased with that… I was worrying to my son a little while ago that somebody reading my book -- because I do extol that particular decision, that particular pathway to the Senate -- and I said to my son, "Oh dear, I'm afraid some people reading my book are going to think I'm a Liberal" and he says, "no Mom, don't worry about that" [laughter].
I think the Greens are very sensible about that way of approaching the Senate. I haven't read an actual position but I've actually heard from [May] that she likes what I've proposed in my book.
Actually the Green Party website says they support the election of senators through a system that ensures proportional representation.
What is the problem with elected senators?
Well one reason for not going for election -- it would take a change in the constitution. The Supreme Court was very clear on that and they gave reasons. It would take up opening up the constitution with all of those difficulties. It wouldn't be as hard to get unanimous consent but it would be tough especially since Quebec would be right in there wanting the Meech Lake provisions. I don't happen to agree with it, but I'm quite open with people disagreeing. The point is that it would take time.
The second point is that an elected Senate would, as my dad said, say to the Commons "you represent the people, well, so do we!" And if it were elected on the basis of preferential ballot or proportional representation, the Senate could say to the Commons "we represent the people better than you do"!
And at that point, you would have a lot of difficulty. You might get the kind of deadlock and conflict between two powerful bodies that you got in the [United] States that has pretty much stopped government altogether there at various times. You might have difficulty because of the question of confidence. The confidence convention is pretty fundamental for our type of democracy.
For parliamentary responsible government, our type of democracy, it's the elected commons that decides who will form the government. And if you had an elected commons and an elected Senate -- which one decides who forms the government? That would be another can of worms.
And thirdly -- do we really want more, you know, advertisements, more robocalls, more Fair Elections Act flooding even more of the parts of our governing system than we already have? I know I don't.
I think people think "Elections! That's more democratic."
There are a lot of non-election things that are democratic, particularly in the way of checks and balances, that are nonetheless part of a mature democracy. And that's one of the roles of the Senate. A lot of watchdog checks and balances, public safety commissions, that when they are properly handled are at arms length from the government and set up to criticize the government.
Now of course, Harper has done away with that because he fires the people that he disagrees with as with the nuclear safety commission but again a Senate that was independent would be able to expose that kind of thing. I think it would be harder for an autocratic government like this one to get away with that stuff.
Speaking of Harper: his strategy has been to stop appointing senators. Somebody called it a "death by attrition" method. Is that constitutional?
Oh it's not. It's absolutely not.
John White, who's a constitutional scholar at the University of Regina, has made that perfectly clear. You can't simply do away with one of the fundamental elements of our constitutional system. You can't make something unicameral when it's bicameral [two chambers of parliament instead of one]. That would take a constitutional change, and it would be a big one. You can't just cripple it.
The way John White put it was: "it would be against constitutional law to do that." Even Harper himself -- and I almost never have anything positive to say about Harper -- is not an absolute fool. Usually facts don't make any difference to him, but he did admit when he was talking about the moratorium idea, he said we would have to keep a quorum, we would have to keep 15 or 20 senators just to pass legislation.
Of course his view is by that time it got down that low, they'd all be Conservatives anyway, [or] at least a huge majority of the 20 or so would be conservative and he could pass anything through that he wanted. That would be, as I said and as John White said, constitutionally illegitimate.
But supposing that somehow he was able to get away with it at least for a time until he was taken to court, he admits that he would have to keep some. Supposing that he was prime minister for life, he would still have to keep some senators. This business about reducing its budget to zero that the NDP has said a couple of times…they're talking through their hats. If you did that, you simply wouldn't be able to get any laws, any budget, any anything passed. They couldn't go to royal assent because according to our constitution, everything has to go through the Commons and the Senate before it gets to royal assent.
Yes, sometimes the Senate has recently and in most cases just been a rubber stamp, but it still has to go through the Senate. So we have to keep the Senate to some extent.
Writer-activist Helen Forsey's new book is A People's Senate for Canada: Not a Pipe Dream!.
Roshini Nair is a multimedia journalist based in Vancouver. Follow her on twitter @roshini_c_nair.
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