Almost since its inception, the Senate of Canada has been the subject of proposals for reform. Now there are the first faint stirrings of a new movement: Senate unreform.
Ten years after Justin Trudeau introduced his “merit-based, non-partisan” process for appointing senators there are whispers that the whole thing might be about to be called off.
The Globe and Mail reports the Prime Minister is considering appointing his principal secretary, Tom Pitfield, as government leader in the Senate, with a seat in cabinet and “a mandate to get legislation passed quickly.”
Concurrently, iPolitics reports a new group is forming in the Senate for the express purpose of “passing Liberal government legislation.” A Liberal source tells the publication the era in which “we’re not comfortable appointing our friends to things is over.”
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Of course, in many ways this mooted return to the status quo ex ante Trudeau is only an acknowledgment of reality. The Trudeau Senate was marked more by coy euphemisms than by sober second thought.
Senators did not form parties, but “groups.” The groups did not elect leaders but “facilitators.” And Mr. Trudeau’s appointees – 81 of the Senate’s current 97 members – were not formally Liberal. Just reliably liberal.
Research shows Trudeau appointees have tended to vote with the government upwards of 80 per cent of the time. Towards the end, Mr. Trudeau dispensed with the pretense and started rewarding party loyalists in the old-fashioned way.
If there were ever an era when Liberals were “not comfortable appointing their friends,” I must have missed it. Should Mark Carney fill the eight remaining vacancies in the Senate with his supporters the result will be a Senate in which 91 of its 105 members were appointed by Liberal prime ministers. There has never been such a lopsided Senate.
Partly for that reason, it’s widely believed that Pierre Poilievre, had he won the last election, would have returned to appointing senators on scrupulously partisan lines, just to even the odds a little.
It should be understood how uniquely Canadian this tradition of venality is. Few democracies allow the head of the executive branch to appoint his own legislative chamber, for starters. There’s basically us and the United Kingdom – but with one signal difference between the two.
In Britain, there is a strong expectation that prime ministers should make such appointments on a cross-partisan basis, after consultation with the opposition parties. Since 1958, more than half of all appointees to the House of Lords have been from a different party than the prime minister who appointed them. Contrast with Canada, where from 1867 to 2015 97 per cent of appointees to the Senate were members of the prime minister’s party.
The Fathers of Confederation intended the Senate to be a patronage house, because they wanted to keep it weak. Appointed senators, they reasoned, would never dare to defeat legislation passed by the House of Commons, avoiding gridlock.
In fact, the Senate began defeating government bills from the start, and went on doing so, dozens of times, in the decades that followed. Only after the Second World War did the convention kick in that the senators should mind their place.
But that, too, has been eroding. Brian Mulroney was forced to stack the Senate with extra senators to get the GST bill through.
The early years of Mr. Trudeau’s ministry were marked by repeated rounds of brinksmanship between the two houses. Had the Conservatives won the last election, Liberal – er, liberal – senators were already organizing to defeat their crime bills, were Mr. Poilievre to make good on his threat to invoke the notwithstanding clause to shield them from the Charter of Rights.
The Liberals can’t rule forever. Rather than wait for the inevitable constitutional crisis, perhaps it’s time we thought afresh about how to rein the Senate in.
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There’s nothing wrong in principle with the idea of an independent, non-partisan Senate. The mistake was to have left the Senate with the power to defeat government bills. So long as it retains that power the Senate will be tempted to use it, and so long as that threat remains, prime ministers will want to appoint party loyalists.
But … you can’t take away the Senate’s veto! That would mean amending the Constitution! True. But the Senate can take the power away from itself. All that’s required, as Senators Hugh Segal and Michael Kirby argued in a 2016 paper, is for the Senate to amend its own rules, limiting itself to a six-month suspensive veto – a limitation the House of Lords has endured since 1911.
The first step in removing the taint of patronage from the Senate is to curb the Senate’s present, near-absolute veto. Senators should lead the way.