[Timing is Everything: I had drafted this post before the Senator Meredith story broke and then, when the Globe and Mail ran an editorial this morning making much the same argument that I am, it seemed best to get this on my site without further delay.]
The Senate’s greatest value is, and always has been, in providing a sober second thought with respect to the actions taken by the House of Commons. The Senate’s authority to amend (or to refuse passage of) a bill from the Commons is a potential safeguard, forcing the Commons to reconsider a bill that may have been passed in haste after a cursory or extremely partisan examination. The need for a Senate effectively exercising such a role has never been greater now that proper examination of a bill by the House of Commons is increasingly a thing of the past. Majority governments not only have the votes to pass any legislation but also have, in recent years, increasingly resorted to omnibus bills and mandatory termination of debate (closure) to thwart opposition efforts to provide proper scrutiny.
With the increasing concentration of power in the position of Prime Minister (and the staff in the PMO), the election of a majority government results in what is essentially a quasi-dictatorship for the ensuing four year term (as discussed in my latest book, Reviving Canadian Democracy). Our primary safeguard in recent years has been the Supreme Court of Canada, which has rejected a number of government actions taken in contravention of the Canadian Constitution. A properly functioning Senate could provide an additional protection.
Senate Shortcomings and Potential
What has kept the Senate from functioning effectively is the abuse of the appointing power by Prime Ministers over the years. To be true to the intentions of those who worked to include a Senate within Canada’s governmental system, its members should be drawn from all walks of life, a cross-section of competent Canadians, people who would display moderation and good judgment. Instead, all Prime Ministers – to varying degrees – have used Senate appointments to reward the party faithful, often filling the seats with defeated candidates and party fund-raisers. There is no better (worse) example of the abuse of the appointing power than Stephen Harper’s appointment of Pamela Wallin and (especially) Mike Duffy. These were two very high profile media personalities and all indications are that they were appointed for their “star power” and presumed ability to assist the Conservative Party with campaigning and fund raising. Indeed, we have learned from the personal diaries discussed in Mike Duffy’s trial that this very busy Senator was occupied almost entirely with non-Senate duties in support of the Conservatives. When we criticize Senators for spending their time on partisan activities and then having the nerve to charge their expenses for these activities to the taxpayers, we need to understand that in at least some instances they were doing exactly what they were appointed to do. This doesn’t excuse their behaviour but it may help us to understand it. If we cease the blatantly partisan appointments, we break the link that is a major cause of partisan behaviour.
The Example of C-51
Consider for a moment how a less partisan Senate might have handled Bill C-51, the very controversial Anti-Terrorism legislation which has raised growing concerns about threats to our civil liberties. The government pushed this bill through the House of Commons at a hurried pace, rejected all of the more than 100 amendments proposed by opposition parties, and even refused to allow Canada’s Privacy Commissioner to testify and raise his concerns at the committee examining the bill. That committee breezed through 49 expert witnesses in only 16 hours. If ever a bill called for sober second thought, this was it. Instead, the Conservative-dominated Senate passed the bill with minimal examination and discussion.
But what if the Senators were not party members but independent and free to exercise their own judgment on the merits of the legislation? That is the status of formerly Liberal Senators, who were officially designated “Independent Senators” by Liberal leader Justin Trudeau in January 2014. These Senators voted against Bill C-51, even though it had been supported by the Liberals in the House of Commons. If the Conservative Senators had been similarly released from their party strictures, how many of them would have expressed reservations about the bill? It is not unreasonable to hope that an invigorated and independent Senate would have given Bill C-51 the attention that it deserves, taken into account the many concerns expressed by Canadians, and sent the legislation back to the Commons with substantial amendments
Reforming the Senate
Rather than clamouring for abolition of the Senate (a nearly impossible objective because of the requirement for consent from all 10 provinces), we ought to focus on reforming the Senate so that it can again carry out effectively its role as a sober second thought. A preliminary step is obviously to address the ethical issues that have plagued the Senate in recent years. Where necessary, the rules need to be clarified and elaborated. As the Auditor General concluded, changes are needed in the way expenses are claimed, managed, controlled, and reviewed. Also needed is a change in the Senate’s organizational culture. The current value system seems to be a “live and let live” atmosphere in which Senators are allowed to do whatever they think they can get away with. With a new organizational culture that embraces and promotes ethical behaviour, unethical conduct would be rebuked by fellow Senators on the grounds that “this is not the way we do things here.”
The fundamental reform that is needed is a change in the way Senators are appointed. Since the Senate is almost certainly here for the foreseeable future, it would be more productive for disillusioned Canadians to redirect their energies to a call for a new appointment process that will gradually create the kind of Senate originally intended. Such a Senate would have the potential to provide a much-needed countervailing force in our increasingly executive-dominated government system.