The idea for this post originated a few weeks ago. It is a pleasant
coincidence that Prime Minister Harper recently announced his position that the
provinces must come together on a reform or the Senate should be abolished.
After reading Protecting Canadian Democracy edited by Serge
Joyal I began to consider a broader range of reform choices available to
Canadians. For a different perspective I invited my friend Simon Andrews to
contribute his own proposal. We wrote these proposals ignorant of what the other
would write. Simon is a historian who studied the early American republic. He
is currently working on a project called "America, On
Paper" where he exams topics through the lens of documents from
the period. I asked Simon for his thoughts because we often diverge
significantly on constitutional questions; I support the monarchy and he's a
republican, he values the American constitution and I believe it is in
desperate need of reform, to name just two points. I will warn you in advance
that this is quite long, but I hope interesting.
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How can we change this place to better serve Canadians?
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Simon and I were starting from a basic set of assumptions. First the
only reforms were for the Senate. There's no corresponding proposal attached
for proportional representation in the House of Commons, or restriction of
prorogation allowed. Second the proposal had to fit within a certain political
reality that we face in 2015.
Reforming the Senate - Steven's
Proposal
I think it is paramount that Canadians find a way to reform rather than
abolish the Senate. Some of the major concerns in the governance of this
country is the declining power of MPs and the stranglehold of party leaders,
particularly the Prime Minister on power. Abolishing the Senate, if anything,
would only exacerbate this problem. The more legitimate Senate could offer a
valuable counterweight to executive power and help set other things to rights.
My inspiration for reforms largely comes from the Australian Senate, the
United Kingdom's House of Lords and Germany's Bundesrat. My proposal is guided
by a few basic assumptions. All large federations in the world are bicameral.
The idea that Canada should move away from the international norm strikes me as
strange. A country as large and diverse as ours needs ways to express that in
its governing institutions. The Senate of Canada needs to include some
democratic component to grow its credibility with the public and increase its
legitimacy. The Senate must continue to represent geographic regions,
minorities and isolated interests commonly excluded from the democratic
representation (ex. women, or linguistic minorities). My specific proposal most
resembles plans to reform the UK House of Lords. Another principle
to keep in mind is that Quebec needs to be protected. It's easy to dismiss
Quebec as just one of the ten provinces but its distinct political and social
culture as a large minority in this country that needs to be safeguarded. It is
a fair compromise and the Senate can help accomplish that. In other upper houses
around the world few countries use the completely equal system found in the
United States Senate. States/provinces tend to be represented on a distorted or
disproportional population basis, I will be using that as a guide.
Selection
Senators must be largely elected. I am surprised that I have moved away
from a fully elected Senate in my proposal but a certain number of appointed
Senators could significantly improve the quality and representativeness of
Senators. I am willing to make that compromise to protect the representation of
minorities. I would suggest then that one third of the Senate be appointed and
the rest be elected through a
ranked ballot. I think depending on the province it would make sense
to do province-wide contests, or regional contests. For example, in the case of
PEI I don't see a reason to divide it into constituencies, but Ontario, with a
larger number of Senators and distinct internal regional differences, could
make the argument for a Northern, Eastern, Central, and Southwestern division
of seats. That determination can be revisited every 10 years after the census
and when seats are adjusted for the House of Commons.
Appointed Senators should be non-partisan and selected by a special
standing committee independent of the Prime Minister. Composition of the
Appointments Committee could look like the Electoral Boundaries Commissions;
non-partisan, led by a jurist with technical assistance. The goal of the
Appointments Commission should always be to correct imbalances in the Senate
with underrepresented populations of their respective provinces and provide
expertise to the body. Some groups for special consideration in my opinion
would be women, First Nations, Métis and Inuit, linguistic minorities, ethnic
minorities and young people. The Appointments Commission should likely consult
with the provincial/territorial legislatures for their input as well as accept
public feedback. The goal is to represent regions and slices of the Canadian
public, not necessarily provinces.
Senators, elected and appointed, would serve an eight-year term on fixed
dates, barring a double dissolution or simultaneous election with the House of
Commons in the event of deadlock. They may stand for re-election if they so
choose. Appointed Senators should be generally replaced after one term to
infuse new blood, but they may stand for election (independently or with a
party) if they so choose. In the event of a retirement, resignation or death of
a sitting elected Senator the Appointments Commission should fill the seat,
either with a non-partisan or person of the same party, with consultation of
the provincial legislature.
Composition
|
Province/Territory
|
Current
Senators
|
Reformed
Senators (Elected + Appointed)
|
Population
(2014)
|
Tier
|
|
Ontario
|
24
|
16+8
|
13678700
|
1
|
|
Quebec
|
24
|
16+8
|
8214700
|
1*
|
|
British
Columbia
|
6
|
8+4
|
4631300
|
3
|
|
Alberta
|
6
|
8+4
|
4121700
|
3
|
|
Manitoba
|
6
|
6+3
|
1282000
|
4
|
|
Saskatchewan
|
6
|
6+3
|
1125400
|
4
|
|
Nova
Scotia
|
10
|
4+2
|
942700
|
5
|
|
New
Brunswick
|
10
|
4+2
|
753900
|
5
|
|
Newfoundland
and Labrador
|
6
|
4+2
|
527000
|
5
|
|
Prince
Edward Island
|
4
|
2+1
|
146300
|
6
|
|
Northwest
Territories
|
1
|
2+1
|
41462
|
6
|
|
Yukon
|
1
|
2+1
|
33897
|
6
|
|
Nunavut
|
1
|
2+1
|
31906
|
6
|
|
TOTAL
|
105
|
120
|
|
|
*Quebec will always be in Tier 1 regardless of population changes.
Under my proposal the Senate will switch from a fixed number of Senators
to a tiered system based on population. Tier 1 will be for provinces with over
10 million people, must always include Quebec and cannot number more than three
provinces.
Tier System
|
Tier
|
Population
|
Number of Senators
|
|
1
|
10 000 000+
|
24
|
|
2
|
5 000 000-9 999 999
|
15
|
|
3
|
3 000 000-4 999 999
|
12
|
|
4
|
1 000 000-2 999 999
|
9
|
|
5
|
500 000-999 999
|
6
|
|
6
|
0-500 000
|
3
|
Unlike the fixed model we currently use the tiered system would be a
fair and transparent way to allocate seats. The numbers I have chosen likely
mean we would see a few provinces move around in the coming decades as they sit
on the edge of either going up or down. The flaw with the system is that it is
based on fixed population numbers. It might make more sense to use a quintile
system or something like that to avoid any future problems. It is entirely
possible that in distant future all ten provinces will have over 10 million
people and this system would break down.
Powers
Ronald Watts' essay in Protecting Canadian Democracy makes
the argument that bicameral systems work best when the two houses are distinct
from each other. A reformed Senate should be comfortable vetoing or amending
the legislation of the House of Commons as their legislative powers and
legitimacy should roughly be equal. The House of Commons should remain in
exclusive control of money bills, but the thoughtful and meaningful inclusion
of the Senate in matters is paramount.
Historically in Canada the Senate has been very active in defending the
Charter of Rights and Freedoms and the Constitution. Having the Senate approve
of appointments to the Supreme Court and have a standing committee dedicated to
constitutional questions might be wise. I would hope the Senate would continue
its valuable contributions through studying questions and providing the country
sober second thought. These studies could be transformed into more focused
scrutinizing of the government to better ensure accountability. It may also be
wise to have the Senate make the appointment of Parliamentary Officers, such as
the Auditor General. This way they are independent of the Prime Minister and
better define the Senate as a watchdog.
Canada under this Proposal
It is difficult for me to imagine that Canada would not benefit
significantly from this arrangement. Obviously the fear of deadlock is a real
possibility, but it also ensures that the chamber of sober second thought can
have its thoughts heard. The power of the Government and Prime Minister would
be significantly curtailed. Legislation would have to have greater consensus
and governments would have to get the backing of a good number of the
non-partisan Senators to pass their programs. More legislation would come from
the Senate representing the diverse needs of the country as a whole.
Western provinces gain significantly under this proposal, but we are a
much more Western country today than we are at our founding. Atlantic
provinces, while reduced in influence in the Senate are not substantially so. I
also believe there is significant value into improving the representation of
our territories in the Senate. The inevitable conflict between the Senate and
House of Commons is, in the end, positive, as both represent different,
important facets of this country. That's democracy.
Reforming the Senate - Simon's Proposal
Reforming the Canadian Senate: A Modest
Proposal
Though it may at times escape the attention of the average Canadian, we
do indeed have a Senate in this country. Perhaps it escapes our attention
because, thanks to being inundated by American news media, we’ve come to think
of a Senate as an activist body. Senates do things; they pass bills, and offer
amendments, and confirm executive appointments. And they filibuster, or
threaten to filibuster, or threaten to threaten to filibuster. We hear of no
such thing in this country, and so we must not have a Senate.
Or if we do hear tell of our fabled upper house it is in tones of
disdain, dishonor and disappointment. It’s such a Canadian emotion,
disappointment. Anger would ask too much of us. We can only get angry at things
we care about. Who cares about the Senate? So we shake our heads and cluck out
tongues, content in the knowledge that at least we know what’s right even if
the men and women who govern us don’t.
But that’s not enough.
We have a Senate. It performs no useful function. It is a stain on our
national character. But it’s ours. It may have become perverted, twisted into a
wild parody of its original purpose, but there is a reason it exists to begin
with. There is a reason for bicameralism. There is a reason for an upper house
and a lower house, for wanting to balance differing national and regional
interests against each other. As it stands Canadians look upon majority
governments as good and natural and minority governments as aberrant and
unpleasant. We have lost our taste for debate, it seems. We prefer government
to function smoothly. We want the Prime Minister to take us by the hand and
show us the way forward. And with all the power the office of Prime Minister
enjoys, why not? Even in a minority situation, the government almost always
holds the winning hand. Challenges from the House can be met with any number of
constitutional countermeasures from prorogation to dissolution. Meanwhile the
Senate spends public money, makes a show of examining legislation put before
it, and hums along doing nothing of any great import. What average Canadian can
name their Senator? Or do they belong to us at all? Perhaps we don’t know them
because they represent interests all their own, and are beholden to a much
smaller constituency than we thirty million strong.
But look again to our southern neighbors. Look at what a Senate can do.
Functioning bicameralism is messy, yes, contentious, un-Canadian in its
apparent disorder. But maybe that’s what we need. Maybe something to shake us
out of our complacency, something that introduces a degree of dynamism into the
very core of our political process. A reformed Senate could do this. Or at the
very least the process of attempting reform should spark debates we’ve long
been in need of in this country. We are in danger of becoming a ceremonial
democracy. Canadiana reclines on her pedestal, bedecked in cobwebs, enshrouded
in dust. We need to put the old girl through her paces,
We need to reform the Senate.
Philosophy
While many aspects of American political culture are the farthest thing
from being worthy of emulation, the logic that underpins their basic
constitutional framework is by contrast quite measured and sensible. The
Framers of the United States Constitution, notwithstanding how their work has
since been interpreted, gave careful consideration as to how different social
and human forces could be harnessed, regulated, and balanced in such a way that
weakness and ambition could be made to benefit the greater public good.
American bicameralism is perhaps the crowning achievement of this attempt at
creating a stable, well-adjusted government that was at once consistent and
regenerative, restrained and dynamic.
This is because bicameralism makes sense. A country as large and complex
as the United States or Canada, with as many strong sub-federal units of
government, could not hope to be easily represented in a single elected body.
There are too many different interests, too many social classes, too many
factors that might push and pull on prospective legislators to support policies
that reward or deny the layered and often competing sovereignties of which such
large nation states are composed. There are, to continue with the present
example, things that concern Americans as citizens of a single country composed
of many diverse geographic regions and communities. There are also things that
concern Americans as citizens of one of the fifty distinct, sovereign political
and cultural communities that comprise the American federal union. Sometimes a
person needs to have their needs represented as a citizen of Beaumont, which
just happens to be in Texas, and sometimes they need to have their needs
represented as a citizen of Texas itself. This is a subtle but fundamental
distinction because these dual sets of needs are not always compatible. Yet
they all must be heard, debated, compared, contrasted, and reconciled. A
unicameral legislature, unless located in a sparsely-populated community, would
be ill-equipped to do so.
Furthermore, representation by population alone must obviously favor
more populous regions. Texas has more congressmen than Rhode Island, New York
more than Delaware. This makes sense within the logic of majority rule, but a
true democracy must make considerations for the least among its citizens. The
smallest minorities and the tinniest constituencies must have their day, lest
the majority became a tyranny unto themselves. Rhode Island may contain among
the smallest overall percentage of the total American population, but as a
state it is the legal equivalent of Texas, New York, or even mighty California.
Its citizens must not be punished for being born or choosing to reside in
Warwick or Woonsocket by having their elected representatives’ voices continually
drowned out by the legion that are their big-state contemporaries. In some
sense, in some forum, little Rhode Island’s voice (or PEI’s voice, or
Newfoundland’s voice) must be made to carry equal weight.
We call this forum the Senate.
Selection
In order for our Senate to conform to the democratic logic discussed
above it must become two things first and foremost: equal and elected. If
Canadian Senators are to serve the function of representing the citizens of
this country as members of the distinct political and cultural communities we
call provinces, they cannot do so as the appointees of a grateful Prime
Minister who at the end of an election cycle owes perhaps one favor too many.
If Ontario is to have Senators they must represent Ontario. They must be able
to speak to the issues that concern the people of Ontario, and they must have
the confidence of same if their claimed authority is to mean anything at all.
At present Ontario’s twenty-four senators represent the province in name only.
No one who resides in any of Ontario’s communities chose them, and so their
legitimacy as popular representatives in a nominally democratic system is
entirely non-existent.
Yet this cannot be enough. The people of Ontario must feel as though
they are being accurately represented by their Senators, but so too must the
people of Prince Edward Island feel as though their Senate delegation has an
important role to play in the legislative process. As it stands said deputation
possesses but four members, and thus their interests must ever be subsumed into
those of the greater Maritime Provinces if they hold out any hope of moving the
legislative needle. Some might protest that this is simply the nature of
compromise. PEI cannot act alone, and so it must negotiate in order to have its
voice heard. But this is true in the House of Commons, is it not? There too
smaller provinces must hustle their way into getting their regional concerns
placed on the national agenda.
If the Senate is to be something different, then let it be
different.
Every province and territory, regardless of size, will elect between
five and ten senators, for a maximum of one hundred and thirty members.
Elections will be held on a proportional basis, with citizens voting for their
party of choice on a province-wide basis and seats being allocated from
prepared party lists in accordance with the percentage of the total vote that
each party receives. A Senate election in Quebec, for example, in which the NPD
receive 40% of the vote, the Liberals 30%, the Bloc 20%, and the Conservatives
10%, would, with ten seats available, result in a Quebec delegation composed of
four NDP Senators, three Liberals, two Bloc, and one Conservative. These are
purposely round figures, of course, but the logic is clear enough. Senators
will be elected to six year terms with no limit on re-election, and Senate
elections will be as closely coordinated with House elections as possible.
Powers
Because the seat of executive government in Canada will remain in the
Commons one of the most important roles a reformed Senate can fulfill is that
of holding the government to account. This is a role the Australian Senate has
performed to great effect, and considering how easily recent Prime Ministers
have made use of our loosely defined constitutional conventions and the
prerogative powers at their disposal via the office of Governor-General such a
check is absolutely essential. This can be accomplished by, on the Australian
model, vesting the Senate with a number of regulatory, investigative and
accounting responsibilities as expressed through a robust committee structure.
Among other things it could potentially fall under the purview of the Senate to
investigate government budgets and policy implementation, conduct audits of various
publically-funded organizations, and generally direct inquiries to government
ministers and other public officials. This theoretical supervisory role would
be facilitated by the fact that the reformed Senate, whose members would be
elected proportionally, and the House, whose members are elective via FPP,
would infrequently be dominated by the same party. Thus, even in case of a
strong majority in the House of Commons a reformed Senate would be more likely
to have its seats spread across a larger number of parties and would
consequently be more inclined to check the power of the government of the
day.
This being the main role of the reformed Senate, their legislative
responsibilities would be somewhat reduced when compared to the Commons. Though
they would be capable of originating, approving, rejecting or amending most
forms of legislation on an equal footing with the House, they would not be able
to create or alter appropriations bills. That they would still be able to
reject appropriations – thus blocking supply, in the parlance of Westminster –
could potentially lead to a deadlock with the House, specifically in cases when
the government refuses to resign having maintained the confidence of the lower
chamber. Such an eventuality could be avoided by putting in place a relatively
simple procedure. In a slight twist of one of the provisions of the UK
Parliament Act of 1911, the Prime Minister could be vested with the authority
to dissolve the Senate as they can now dissolve the House in order to call an
election, but only once an appropriations bill has been
approved by the Common and rejected by the Senate three times in succession.
This would permit the Senate to exercise some degree of input and oversight concerning
the parliamentary appropriations process while simultaneously ensuring that
constitutional crises do not become a regular fixture of Canadian political
life.
Beyond its regulatory and legislative roles, the reformed Senate would
also be responsible for confirming the nomination of the Governor-General and
of the Justices of the Supreme Court of Canada. This would serve the purpose of
both lessening the powers of the Prime Minister as well as increasing
democratic input into the selection of some of the most important officers of
the Canadian government. Under the current status quo the Governor-General is
for all intents and purposes an appendage of the Prime Minister’s office,
chosen by them for reasons which do not bear explaining to the Canadian public.
In that sense the Governor-General, though it isn’t often stated, is to some
degree beholden to the PM for their position. Traditional or not, this isn’t a
tenable state of affairs. Permitting Senate confirmation would at the very
least give the provinces, as embodied in the Senate, some say in who ends up
wielding the very important constitutional powers vested in the monarch’s
vice-regal representative.
Comparison
Simon and I took very different approaches to address problems we
jointly perceive. This is the debate we should be having in this country. I
would take some of his points and incorporate it into my own for sure, such as
the appointment of the Governor General. Throwing our hands up or arguing whose
Senators are more corrupt does absolutely nothing to advance Canada. I see
flaws in Simon's proposal, and I am certain he will have issues with mine, but
even still both offer citizens more than what abolition does on its own. The
status quo is unacceptable, but we need an upper house, so, as a country, let's
discuss what we can do. Please feel free to comment and share your thoughts on
these proposals and check out Simon's blog for more of his work.
