Salvaging the Senate (Part I)

Properly run, the Senate can enhance and protect democracy
May 1, 2013

"The idea of senators as lazy old busters who sit twiddling their thumbs and don't earn their keep is seriously exaggerated," said Eugene Forsey, Canada's renowned constitutional expert, while being interviewed back in 1978 in his Senate office. "Our work is not spectacular as a rule, but it can be exceedingly important."

Has my father's assessment of the Senate become obsolete in the years since? Some would say he was wrong from the start – that the Red Chamber is a useless appendage that has no place in a democratic system. Having been obliged to examine the arguments in researching my book on my father, I have reached a different conclusion.

Certainly, some of the more recent appointees to the Senate seem to have dedicated themselves to proving him wrong. Sensational cases of breach of trust, fraud, and even alleged violence have disgusted a long-suffering public and revived calls for Senate abolition or radical reform. Clearly, there's something rotten in the Upper Chamber. The question is what to do about it.

The key to solving a problem, wise women say, is to agree on what the problem really is. Faced with the latest scandals, it is tempting to fault the Senate's very existence, or the fact that it is appointed rather than elected. This reductionist thinking is behind the fresh calls for drastic changes like "Triple E" or abolition. But defining a problem in terms of potential remedies is putting the cart before the horse. Instead, let's follow my father's example, start with the facts, and reason our way through to sensible solutions. Otherwise we risk throwing the baby out with the bathwater.

What, in this case, is the baby? Here's how Eugene Forsey summarized it:

"The Senate as now constituted does much good, and is politically too weak to do any serious harm. What good?

First, detailed revision of legislation, with an opportunity for all interested parties to have a full hearing. The Senate has an immense reservoir of legal and administrative talent and experience, and its committees do this legal and revisory work efficiently, thoroughly and cheaply."

The Senate was established at Confederation as the "House of sober second-thought in legislation," and my Dad took that seriously. In his 1990 memoir, "A Life on the Fringe", he gave examples, complete with amusing anecdotes, of how he and his fellow senators performed this unglamorous but necessary function. Why necessary? Because, without the added input, recommendations, and revisions resulting from the Senate's review, many badly drafted and even unworkable bills would be passed into law.

"Second, investigation of public problems. Senate committees come much cheaper than Royal Commissions, and their reports very often lead to changes in government policy and legislation, fairly promptly."

In 1998, the Senate Agriculture Committee took on the pharmaceutical and agri-business industries with an exhaustive investigation of Bovine Growth Hormone, the genetically engineered drug that the corporations were pushing Canadian dairy farmers to adopt. Senators Mira Spivak, a Progressive Conservative from Manitoba, and Eugene Whelan, former Liberal Agriculture Minister, took the lead in providing the public platform for courageous whistle-blowing scientists at Health Canada to tell their story and expose the truth about "BGH." It is thanks to them, and to the behind-the-scenes work of the National Farmers Union and other grass-roots activists, that Canadian milk remains free of this noxious product.

The BGH inquiry is just one example of the kind of non-partisan co-operation that my father viewed as a prime feature of the Senate – members regularly working together across party lines to serve the common good. Sadly, that custom has been forced into exile in recent years by irresponsible appointments and the curse of narrow partisanship, but the need – and the potential – for a wise, co-operative, pro-active Upper House persists.

"Third — if rarely — emergency protection of the people against some gross violation of liberties, or legislative proposals which would threaten the very existence of the nation, or bills to which a substantial proportion of the population is, manifestly, furiously opposed."

Senators have always been aware that, despite their formal constitutional powers, they have no electoral mandate of their own. Sir John A himself stated that the Senate would "never set itself against the deliberate and understood wishes of the people." Only in exceptional cases, when the people's wishes are clearly either opposed or unknown, would senators even consider rejecting a bill passed by the Commons and forcing an appeal to the electorate (as happened with free trade a quarter century ago.) Failing those extraordinary circumstances, Dad said, senators "would have to take leave of their senses" to dare to use that power.

In practical terms, then, the Senate's "undemocratic" power is a non-issue, and it is largely absent from the current discussions. Rightly so: after all, the recent spectacular misconduct of some senators isn't about their collective political power, it's about individual greed and wrongdoing. Nonetheless, the scandals have obscured the important role of the Upper House in our parliamentary system, and fed into the simplistic clamorings of its detractors. If we are to restore the important role that Eugene Forsey claimed for the Senate, we need to start with a proper analysis of what's wrong.

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The problem is not the Senate's existence as an unelected body, its fictional redundancy, or its real or imagined powers; it is the way its proper functioning has lately been undermined. When a government uses its power of appointment to fill Senate vacancies with party hacks and nodders, it undercuts that body's legislative and investigative functions by replacing fairness with bias and expertise with incompetence. When the ruling party uses its majority on parliamentary committees to sabotage democratic procedure and silence opposing voices, it prevents those committees from doing their essential job.

When a government systematically stacks the Senate benches with government apologists and whips potential dissenters into servile obedience, it disables what my father called the Senate's "reserve power" to provide emergency protection from tyranny. And when it appoints individuals whose vested interests, sense of entitlement, and disregard for truth match its own, it sets the Senate up as an easy target for popular discontent.

For a disempowered electorate fed up with self-serving political cynicism, the Senate, like the monarchy and the Constitution itself, makes a convenient scapegoat – one that Harper and his cronies may well be delighted to use to distract us from the real issues. But misplacing the blame won't solve the problems facing our beleaguered democracy. The fault, dear Brutus, is not in our constitution, but in the abuses of power which have turned of our parliamentary system upside down. We need many changes – notably some form of proportional representation, more freedom for MPs to speak and act, and enforcement of Parliament's primacy – but a few sensible Senate reforms will also help greatly in setting things to rights.

Ideas for reforming the Senate have been around for decades, ebbing and flowing with its public visibility, and my father was regularly called upon to assess them. Often that didn't take long: many of the proposals were simply impracticable because they would require significant constitutional amendments. As he told the Canadian Bar Association in 1985, "We now have a very rigid Constitution. It is going to be the devil of a job getting anything of consequence into or out of it."

 Take abolition, for example. Under the Constitution Act of 1982, Dad said, abolishing the Senate would require all ten provincial legislatures to agree. Such agreement is highly unlikely. The need for the Upper House to represent provincial and regional interests at the national level has been somewhat diminished through broadened provincial jurisdiction and representation in the federal cabinet, but the smaller provinces especially would be reluctant to give up whatever influence their Senate seats provide. As for letting the Senate die by attrition, that would ultimately put an end to Parliament's entire law-making function, since all legislation is required to pass both Houses.

The less drastic option of electing senators instead of appointing them would seem at first glance to be a no-brainer – surely this would improve both democracy and accountability? But hold on a minute. Even if such a proposal were somehow able to thread its way through the constitutional maze, do we really need a replica of the House of Commons? Do we want senators to spend their time courting popularity and running election campaigns every few years? Do we want to see the Senate's capacity for non-partisan "sober second thought" and in-depth investigation give way to political expediency and short-term point-scoring? Do we want to risk the kind of crippling conflict and deadlock between two powerful Houses that we see in the United States? And do we really want or need to be making more trips to the polls ourselves?

None of this is to say we should keep the status quo. Changes are needed, now more than ever, and my father would emphatically agree. Eugene Forsey was no stand-patter on Senate reform. What he wanted was to make sure that the changes would actually resolve the problems, and that they could in fact be made.

In Part II of this article, I will use the tools he left us to examine the various proposals – both practicable and impracticable – that are once again being advocated as solutions, and offer some workable ideas for a way forward.

(Helen Forsey is a writer and activist. Her book, "Eugene Forsey, Canada's Maverick Sage" (Dundurn, 2012) details the many facets of her father's work and its continuing relevance.)