Salvaging the Senate (Part II)

The Senate can be made a vital part of good governance
June 1, 2013

"Parliamentary government," Eugene Forsey wrote, "is not just a matter of counting heads instead of breaking them. It is also a matter of using them. It is government by discussion, not just by majority vote.”

If that description seems antiquated in these days of omnibus bills, snappy sound bytes, and scripted spin, you're probably thinking of the House of Commons. In its present incarnation, Parliament's Lower House does seem to be abandoning thoughtful, informed debate in favour of partisan attacks and content-free talking points. Government by discussion is giving way to government by decree, with Parliament reduced to a sideshow.

But there are two Houses on the Hill, not just one. And the Senate, in both theory and practice, has generally functioned much more the way Parliament as a whole was intended to – "not just as a voting place, [but] also pre-eminently, essentially, a talking place, a ‘parlement’."

In Part I of this article, I outlined my father's view of the Upper House. Based on his own observation and experience, he staunchly defended its largely non-partisan role as the chamber of “sober second thought,” where legislation is thoroughly reviewed and often made more effective and humane. He affirmed the Senate's "value as a protector of the public’s right to be heard, [and] its indispensability for the proper working of our parliamentary system.”

It may be hard to discern these values in the Senate of 2013, pockmarked as it is with scandal and under attack from all quarters. But it's not just the one institution that is threatened by raging partisanship and cynical self-interest; it's the entire body politic. Restoring integrity and democracy to our system of government must include reclaiming the potential of the Upper House. And we have to find workable ways to do that, not waste our energy spinning the kind of "gossamer palaces of Senate reform" that used to cross retired Senator Eugene Forsey's desk with depressing regularity.

Like other knowledgeable critics, my father recognized the problems our repatriated Constitution posed for advocates of Senate abolition or drastic reform. As he told the Canadian Bar Association in 1985, "There are two types of Senate reform proposals: the practicable and the impracticable. The impracticable would require constitutional changes. They have as much chance of becoming law as I have of becoming Archbishop of Canterbury."

Nonetheless, most of those proposals are currently being revived and promoted by pundits and politicians: changing the number of seats for each province, electing senators, switching to appointment by provincial governments, increasing the Senate's clout, abolishing it outright. Dad ran through scenarios for each one, showing why they wouldn't work.

For example, changing the distribution of seats would need the consent of Parliament plus seven provincial legislatures representing half the population of the ten provinces. Some increase in Western seats would likely be accepted, but the "equal" aspect of "Triple E" would hit a brick wall. Quebec and Ontario would each see their Senate representation drop from 22% of the total to 10%, and at least one of them would have to agree. "Anyone who believes either province would accept this," my father said, "can believe the moon is made of green cheese."

Switching to an elected Senate may seem appealing, especially to provinces pushing for the legitimacy and clout they think "Triple E" would confer. However, election would run into problems with the same amending formula. As Dad pointed out, "an elected Senate could say to the Commons, 'You represent the people? So do we!' But the last thing the Commons wants is a Senate with more clout. Any constitutional amendment strong enough to please the provinces, the House would turn down. Anything weak enough to get past the Commons, the provinces would spew out."

In any case, those who favour electing senators should perhaps be careful what they wish for. An elected Senate would have to abandon its own essential role of independent investigation and careful revision of legislation – functions that the Commons, as the elected body with the real decision-making power, simply does not have the time or flexibility to perform. Elected senators would be more likely to be subjected to the same party discipline and drawn into the same partisan games that now so often make a mockery of democracy in the Lower House. Moreover, an elected Senate could easily find itself at odds with the House of Commons on crucial issues, which could lead to the kind of gridlock that often stymies effective government south of the border. Meanwhile, citizens would be saddled with even more election campaigns, even more money spent on PR and attack ads and robo-calls, with media and politicians alike focusing on popularity contests rather than on real needs. Is that what Canadians really want?

As for the third-"E" effectiveness, we need to ask: "effective to what end?" In general, the Senate's very "ineffectiveness" as an unelected body makes it, in Dad's words, "politically too weak to do any serious harm" – surely not a bad thing. And it already has all the legal power it needs to be effective in its proper mandate: revising legislation, examining issues in-depth, and in rare cases ensuring that, if opposition to a controversial measure is stifled in the Commons, the issue can be put before the electorate.

Even if the "effectiveness" proposals got past the constitutional hurdles, my father said, "most of them would give the Senate more power to make a nuisance of itself, which is not what it should be." For example, "a Senate appointed by provincial governments would give those governments their own private monkey-wrenches to dislocate the national political machinery." That would undermine Parliament's overall mandate: to bring together local, regional, and national interests in an ongoing balance that works for the common good.

So, if these reform proposals are impracticable and might not be desirable in any case, why not just abolish the Senate and be done with it? First, because abolition, too, is a bad bet constitutionally, requiring provincial consent that won't likely be forthcoming. Second, because it would mean tossing out the important benefits and safeguards, already mentioned, that Parliament's Upper House was set up to provide. And finally, because we have sensible alternatives. The bathwater needs to go, but we can – and should – keep the baby.

Feasible options for Senate reform emerge once we understand that the issue is not numbers, lack of clout, or the fact that senators are appointed. The real problem is that appointments are too often made on the basis of narrow partisanship and power-mongering, which combine with individual cynicism and self-interest to create the current dismal picture. Therefore, if we want to restore the integrity of Parliament as a whole, changing how the Senate is appointed and allowed to function could make a crucial difference. And amazingly, those changes could be quite simple to make.

Like most Canadians, my father wanted a Senate made up of truly capable and dedicated men and women representing "a wide range of opinion, interests, and experience." He wanted mechanisms to weed out slackers and to prevent any one party dominating the Upper House. Above all, he wanted healthy non-partisanship to reign, both in the selection of senators and in the exercise of their parliamentary duties.

“A reform many of us are keen on," he told an interviewer, “is that, on appointment, every senator should sever completely his ties with any political party, at least for senatorial purposes. Once we are in here, we should regard ourselves as Independents. There should be no party whips, and on every bill we should vote exactly as we see fit." This was the rule Dad followed throughout his nine years, and it would go a long way towards ensuring the kind of non-partisan co-operation he saw as vital to the Senate's effectiveness.

Many of the other proposals he endorsed came from the 1980 report of the Lamontagne Sub-committee of the Senate Committee on Legal and Constitutional Affairs. They included abolishing the property qualification and refining the rules on attendance and retirement. Taken together, these changes "would mean a more varied membership, politically, economically and socially, and less danger of huge, long-lasting one-party majorities." And they could be brought in by ordinary legislation, without touching the Constitution at all.

One key Sub-committee proposal was "that every second senator should be appointed from a list submitted by [their] provincial government." Dad noted that, with a list of nominees to select from, "the national government could pass over the duds, the has-beens, the doubtful characters, the dedicated enemies of effective national government," and choose individuals who would be a credit both to their home provinces and to the Red Chamber. This change would not even require legislation; party leaders could simply declare publicly that they would follow this practice if they took office.

Could salvaging the Senate really be so simple, and indeed so important? Amidst all the ruckus about the "chamber of disrepute," such an idea seems incredible. But it's surely worth a try. And I can hear Eugene Forsey cheering us on. 

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