|
11 September 2009
This article will appear in an upcoming issue of LawNow
We’ve all heard the old saying, “Be careful what you wish for; it might just come true.” On the question of Senate Reform, while there is certainly room for change, there is also reason to heed that sage advice.
Two reform proposals are before Parliament now: electing Senators to make the Senate more democratic and better able to redress regional imbalance; and instituting fixed, 8-year terms. These proposals are not as simple as they would seem to be. Far from improving the situation, acting on these proposals without first anticipating unintended consequences could actually make matters worse.
The Senate can veto virtually all budget and other legislation that is passed by the House of Commons. This power is used only occasionally because unelected Senators are reluctant to overturn legislation passed by the elected House. However, if Senators were elected, this constraint would be lifted and the Senate could literally grind government to a halt. This would hardly make our democracy function better.
Before we start electing Senators, we need to determine a procedure for breaking impasses between the two houses.
Moreover, simply electing Senators will do nothing to redress regional imbalance, and, with the current seat distribution, would likely exacerbate it. For example, currently the Atlantic Provinces have 30 Senate seats while the West, Ontario and Quebec each have only 24. Each Western province has 6 seats; Nova Scotia and New Brunswick each have 10. Alberta actually has greater representation in the House of Commons than in the Senate, 9.1% of Commons seats compared to 5.7% of Senate seats.
Before we start electing Senators, we need to reallocate seats to ensure that regional imbalance will be redressed.
Electing the Senate would cause a very significant restructuring of power. The power of the Prime Minister would be significantly reduced by an elected Senate inclined to turn down her or his legislation. While this might have its advantages, it would significantly reduce the potential for decisive leadership.
In addition, an elected Senate would much more aggressively exercise its responsibility to represent regional interests, taking that power from where it currently rests, with the Premiers. This would inevitably weaken their role as regional spokespersons.
The power of MPs would also be significantly eroded. In Alberta, for example, the 28 MPs each representing one twenty-eighth of the province would compete with 6 Senators each representing one-sixth of the province. Senators would each speak for considerably larger constituencies and therefore likely have a much larger political presence and influence than MPs.
Consider the US experience where the US Senate is clearly the more powerful of the two houses and where the states seem to be considerably less powerful than our provinces.
Term limits raise some important considerations. If eight year terms were implemented before the more difficult elections matter was settled, a single Prime Minister winning two elections would be able to appoint the entire Senate.
Senate terms now average about 11 years compared to Commons terms of about 7 years. Longer terms allow Senators to develop issues that involve less immediate electoral advantage (votes) than may be appealing to MPs who can face elections as often as every 2 years or even less. Longer terms also allow Senators to provide institutional memory, invaluable to bringing historical lessons and perspectives to the legislative process.
At the root of much of the push for Senate reform is the desire to enhance the accountability of the Senate. But, the 8-year terms currently proposed are not renewable. This directly begs the question of how, even if elected in the first place, Senators would be accountable if they never have to face reelection. If, on the other hand, fixed and renewable terms are implemented while Senators are still appointed by the Prime Minister, then Senators would pretty much be accountable only to her or him, not the kind of accountability that reformers generally have in mind.
There is a good deal of debate about whether the current election and term limit proposals are constitutional. There are those, and the government is amongst them, who believe these changes would fall within the power of Parliament. There are others, Quebec and Maritime provinces amongst them, who believe that these changes represent substantive change to the Senate and therefore fall under the constitutional provision requiring the support of 7 provinces representing 50% of the population.
The delay in the Senate of the passage of the fixed term proposal is based upon the response of a majority of Senators to the concerns of Quebec and some Atlantic provinces that this change does require the 7/50 formula. They simply want a reference of the question to the Supreme Court. The Senate cannot initiate a reference of this kind and the government has not undertaken to do so.
The Senate has been effective as it is now constituted. The Senate spends countless hours reviewing and amending legislation which when it is sent back to the House is invariably adopted as improved. Senate committees are widely respected for their many influential studies. The outstanding work on mental health by Senator Michael Kirby is a classic example. Prime Minister Harper has himself acknowledged this by appointing Kirby, a Liberal, to create a national mental health commission. The work on defense by Senator Colin Kenny is ground breaking, as was the work of Pierre Claude Nolin on illegal drugs.
Other examples of invaluable contributions by Senators include Joyce Fairbairn’s work on literacy and rural poverty, Noel Kinsella’s on human rights, and Jim Munson’s on autism. Of special current relevance is the work of Senator Lucie Pépin in developing resource centers to support families of military personnel deployed abroad.
While the Senate can certainly be improved, ad hoc reforms are not the answer. In the meantime, the Senate has delivered value for money for many years and will continue to do so.
|
