Thursday, May 23, 2013

Senate Reform - The Right Way and the Harper Way

When it comes to the idea of rehabilitating our country's Senate, there are a few schools of thought out there.

We have Mulcair pushing the line of abolition - get rid of the thing entirely.  I can appreciate the visceral emotional response to the recent events which have landed several senators in hot water.  That said, I think that abolition would be a foolish approach to take.  Of all things, the Senate has demonstrated repeatedly its value in holding back some of the worst excesses of Harper's legislative agenda.

When it is not being stacked with partisan appointments by the Prime Minister, the Senate serves a useful purpose in cross-checking the legislative activities of a House of Commons which is often driven by the whims of the voters or worse, by the ideological affiliations of the MPs.

The next approach open to reforming the Senate is a combination of legislation and policy rules governing the Senate.  Harper has tabled several very flawed pieces of legislation which are intended to "reform" the Senate since 2006.  None of these have been passed into law.

In my opinion, there is an enormous problem with using legislation to modify the ground rules of the Senate.  The first is in fact Harper's own actions with respect to fixed election dates.  He brought in a piece of legislation that (in theory) dictated that Canada would have elections on a 4 year calendar much like the United States does.  Then he turned around and dissolved parliament partway through that 4 year mandate, effectively rendering his own law absolutely irrelevant.

The first problem with legislative approaches like this is that they are a layer of legislation that rests on top of the foundation of the Constitution documents.  While drawing more detailed boundaries in law than those provided by the Constitution has a certain validity, the problem is that the arbitrary legislative boundaries seldom contain sufficient penalties to dissuade a politician from breaking them if it suits their political goals.

I'm going to digress a little bit into Harper's attempts to legislate changes to the Senate, in part because I want to review the legislation proposed as well as the history of those bills:

The first attempt to legislate changes in the Senate came at the end of 2006, with the government tabling Bill C-43, with a sister bill in the Senate, Bill S-4.  It got partway through the Second Reading process, but died on the table when Harper prorogued parliament for the first time in September, 2007.

An all but identical bill was then tabled by the Harper Government in November 2007 as Bill C-20, with a sister Bill C-19.  So, what happened to Bill C-20?  Good question.  It was referred to committee in advance of second reading in March of 2008, and was discussed in committee through to June of 2008.  It died on the order table when Harper called a snap election in September 2008.

During the 40th Parliament (elected in October 2008), the government tabled Bills S-7 and C-10.  Neither of these bills progressed beyond first reading before Harper's government fell on a non-confidence vote in March 2011.

Since winning a majority in the 2011 election, Harper has not pursued the matter of Senate reform via legislation, although the Conservative Party has repeatedly argued that the failure to reform the Senate rests on the opposition parties' shoulders "because they wouldn't let the legislation pass".  The lack of action on this front by Harper since winning a majority makes me believe that he was using the prior legislation while he had a minority government as a political club, rather than as part of an agenda of actually trying to make meaningful changes.

The legislation that Harper had put forward in the 39th and 40th parliaments attempted to enact two kinds of changes.  First, Bills C-20 and C-43 attempted to enact an electoral process for the selection of Senators.  Their sister bills attempted to create a regime where Senators could only sit for a maximum of eight years.  The obvious problem with the electoral process is that there was absolutely nothing in the legislation which bound either the Prime Minister or the Governor General in terms of actually appointing from the list of "selected" candidates.  In other words, at the end of the day, the choice for those appointments remains firmly in the hands of the Prime Minister and if the sitting Prime Minister doesn't like any of the candidates chosen by the electorate, well, there's nothing stopping them from ignoring the list entirely.  A weakness that renders the entire process of "electing" a senator as meaningful as Harper's "fixed election dates" law.

The term limits bills attempted to amend the Constitution Acts directly.  While not necessarily invalid, it starts to walk a very fine line, especially where the division of powers between federal and provincial responsibilities is concerned.

Section 44 of the Constitution states:
44. Subject to sections 41 and 42, Parliament may exclusively make laws amend- ing the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons. 
However, because it refers back to sections 41 and 42, any such amendment appears to be subject to provincial consent before it would come into force.

In other words, ultimately, any substantive changes to the Senate and its operations ultimately has to be reflected in the Constitution Act, and is subject to the amending formula described therein.

Harper's approach has been to dance around the issue of actually amending the Constitution presumably because he doesn't believe that he can build a coalition of agreement with the provinces.  The net result has been a legislative approach which is at best window dressing.

Personally, I have no objection to the Senate as a legislative body.  In fact, I believe that it can serve a very valuable purpose in our government.  That said, it is going to take leadership and courage for any political leader to be willing to open the door to actually making material change to the Senate.  Brian Mulroney tried to make amendments to the Constitution and failed miserably because of the flaws seen in his proposals.  I imagine that it would be all the more difficult to amend the Constitution with respect to the Senate simply because there are many different views of what could be done.

As Harper has demonstrated, legislative window dressing is meaningless unless there are significant consequences for the politician who chooses to violate them.

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