Saturday, November 02, 2013

Why Harper Will Never Reform The Senate

Protestations aside, Harper will never reform Canada's Senate.
Harper's 45-minute remarks included only a brief reference to the main political headache that has shaken his party since May, the Senate expense scandal. He did not acknowledge the coverup allegation that has kept the controversy in the headlines. 
The party leader blamed the "courts" for standing in the way of Senate reform. He appeared to be referring to a recent Quebec appeal court ruling — the Supreme Court of Canada has yet to give its opinion on how to achieve change in the upper chamber. 
The appeal court said last month that the federal government had no right to create Senate elections and set term limits without seeking provincial approval.
The problem is that Harper will NOT engage with the provinces.  He has avoided the conferences between Ottawa and the Premiers like the plague since day one.  Yet, to make any material changes to the Senate, he must do this.  The amending formula in the Constitution is quite clear on the matter.  (To the point of obviating the need for the current reference question before the position)
General procedure for amending Constitution of Canada
38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by(a) resolutions of the Senate and House of Commons; and(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.Marginal note:Majority of members 
(2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).Marginal note:
Expression of dissent(3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.Marginal note:
Revocation of dissent(4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.
If you go back and take a look at The Harper Government(tm) factum, much of their approach to the questions is essentially to ask the Supreme Court if the proposed amendment can be done without resorting to the General Procedure.  I may not be a lawyer, but I don't believe that any substantive change to the Senate, including abolition as Pierre Poilievre was musing about.

Poilievre said if the Supreme Court rejects the reform bill, then it will be up to the provinces to make changes. 
"The provinces have to pursue abolition. If that's the option, we believe seven provinces representing 50 per cent of the population have the power to pursue abolition, and we would not stand in their way if they should so decide."
Harper's unwillingness to engage with the Premiers is at the core of the problem for him.  While he is willing to meet with premiers individually, in a conference setting he knows full well that he cannot foster the kind of consensus needed to get an agreement on a constitutional amendment.  Harper is not exactly the kind of leader who builds consensus - he dictates what he wants.

In short, if he can't do it by a straight act of Parliament where he can hold a substantially large club over the votes of his caucus to get his way.  He has always been "my way or the highway", and he whines like a stuck pig when something happens like the courts ruling against him.

Unless Harper can build real consensus among the premiers, he will get nowhere on Senate reform.  Poilievre's musings about abolition are interesting in that he is basically saying that the provinces will  "pursue abolition" - pushing away responsibility for the Federal Government's role in this matter.  Abolition is the simple question, but I think that the legal advisors to any premier would correctly point out to the premiers that moving to abolish the Senate would naturally entail additional changes to ensure that the legislative and executive branches of our government are appropriately held in check - especially in an era where so much power has become concentrated in the PMO.

The second problem that would show up almost immediately is that the required legislation still has to be drafted by and passed in Parliament, as well as in the provinces.  For those of us who remember the Meech Lake and Charlottetown accords, which were be far less contentious than Senate reform would be, getting that passed at all levels required is a process that requires significant involvement at all levels of government.

Harper is simply not capable of fostering the kind of environment needed to achieve this.

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