Actions taken by Justin Trudeau are transforming the Senate into the body that it was originally supposed to be. His first action, back in late January 2014, was to announce that all those known as Liberal Senators would no longer sit with the government caucus and would be considered as Independent Senators. Response to this step was mixed, with some calling it abrupt or even disloyal (to those who had originally been appointed as Liberal Senators) and others expressing doubt that anything had really changed since those past Liberal Senators would still lean and vote the same way.
This was just the beginning, however, and since becoming Prime Minister just over a year ago, Trudeau has established a new arm’s length process that led to more than 2,700 Canadians applying to fill 21 vacancies in the Senate. Three rounds of recent appointments have now filled these vacancies – all with Canadians with impressive backgrounds and qualifications that do not include a partisan political history. For the first time ever, independent Senators now hold the most seats (44) with the Conservatives holding 40, and the former Liberal Senators comprising the remaining 21.
How Will an Independent Senate Operate?
The calibre of the new Senate members will doubtless improve the image and credibility of the Senate, which had fallen to an all-time low in the final years of the Conservative Government. But concerns remain about how a Senate of independent members will operate. Will individual Senators revel in their new independence and withhold support for government legislation, perhaps helping to reject a bill passed by the House of Commons? Might they reject such a bill more than once if they remain convinced of its deficiencies? There have always been concerns about the extent to which an appointed body should stand in the way of legislation that has been passed by the elected House of Commons – and those concerns don’t go away just because the Senators are now less partisan and have been chosen on the basis of qualifications other than party loyalty.
Indeed, one recent article warns that future Senators could become more powerful than the House of Commons, secure until age 75, and accountable to no one. While such a scenario is theoretically possible, it seems to me highly unlikely. Prime Ministers – until this year – have always used their appointing power for entirely partisan purposes. I find it more likely that the next Prime Minister will revert to the old pattern of patronage appointments than that more independent Senators will get carried away with their new status.
We should expect a process of trial and error as the Senate works out its new method of operation but I am encouraged by the prospect of a Senate that can legitimately fulfil its traditional role of providing a sober second thought. It can allay most of the concerns about its independence by establishing limits on how far it will go in not supporting legislation passed by the Commons. For example, one approach would be for the Senate to reject a bill from the Commons only once and be prepared to approve it when it returns a second time. This, in fact, is an informal limitation that the Senate has followed on some occasions in the past.
Sober Second Thought Not Senate Veto
With this arrangement, the Senate can carry out its sober second thought as thoroughly as it wishes and then return an amended piece of draft legislation to the Commons for reconsideration. One would hope that the Commons would keep an open mind about such amendments and give them due consideration. But whatever version is returned to the Senate would have to be accepted by them. This essentially two stage process gives Senators an opportunity to examine and attempt to improve legislation without being blinkered by the normal political party framework. It is unlikely that a government would ignore and reject all changes coming back from the Senate, if only because of the extensive media coverage this new legislative process will almost certainly receive. The end result, one might reasonably expect, will be a more rigorous legislative process and an enhanced and more respected Senate. To the extent that this is case, the Liberals – and especially Prime Minister Trudeau – should be commended.