Interesting times for the Canadian Senate

Following the election of a Liberal government last October reform of the all-appointed Senate has been high on the Canadian political agenda. Campbell Sharman offers an overview of past debates about Senate reform and an update on developments since October. He argues that under Prime Minister Justin Trudeau’s plans the new government, much like the UK Conservative government in the House of Lords, will have to practice the art of persuasion to get their legislative programme through.

After more than nine years of Conservative government under Stephen Harper, the newly elected Liberal government of Justin Trudeau has a comfortable majority in the Canadian House of Commons. However, the Liberals do not have a majority in the appointed Senate, the upper house. This has been a familiar problem facing Canadian governments that have won office after a substantial period in opposition, since – unlike with appointments to the House of Lords in the UK – there is no expectation that Prime Ministers will appoint to the Senate from across the political spectrum, while independent appointments have to date been rare. Prime Minister Cameron may feel challenged by a House of Lords in which he does not enjoy a partisan majority, but the Conservatives are nonetheless the largest party; Prime Minister Trudeau faces a Senate where Conservatives outnumber Liberals by almost two to one.

Since 1867, senators have been chosen to represent the regional components of the federation, currently 105 members from the ten provinces and three territories.  Although the formula for regional appointments is specified in the Constitution, the selection of senators has been solely at the discretion of the Prime Minister. Senate appointments have no term and end only at age 75; the combination of personal selection by the Prime Minister and an unlimited term has encouraged patronage appointments based on party service and political connections. Almost invariably the Prime Minister appoints only from his own party. This has led to periods of one party dominance in the Senate as the partisan selections of previous prime ministers live on to cause problems for their successors.

Unsurprisingly, much like House of Lords reform in the UK, Senate reform has been a perennial topic for debate in Canada.  Continuing themes are the resetting of its regional composition, making it an elected chamber, and reducing its considerable powers which are the equal of the Australian Senate and the House of Lords before 1910 (that is, the Senate in theory has an absolute veto on legislation). For many, the only remedy is abolition. But fulfilling the constitutional requirements for major changes to the Senate requires a degree of regional unanimity and political agreement that has always proved elusive.

A hostile Senate is not always as damaging as it may appear. As a chamber appointed on the basis of partisanship and patronage, the Senate has little political legitimacy and attempts by an opposition to use the Senate to block popular government legislation may generate more political costs than benefits. Nonetheless, the lack of a partisan majority in the Senate can cause substantial difficulties for a government’s legislative programme as Prime Minister Harper found during the first few years of his period in office.

Harper’s remedy, until he could appoint a working Conservative majority, was to suggest a reformed Senate appointment process which, while leaving the Prime Minister’s discretion intact, would involve the provincial election of possible candidates for him to appoint. This plan was not the result of broad consultation and appeared to be as much a way of undermining the legitimacy of Liberal party opposition in the Senate as a serious attempt at reform. Senate reform returned to the agenda in 2013 as a consequence of investigations into the misuse of Senate allowances and possible criminal behaviour of some senators. These scandals further reduced the reputation of the Senate to its current low ebb. A modest attempt at reform, which would have involved specifying fixed terms for senators, was derailed in 2014 by the Canadian Supreme Court together with all other major proposals for Senate reform made by the Conservative government. Having not achieved the reforms that he sought, Harper instead chose to weaken the Senate by refusing to make appointments.

Two related difficulties now confront the Trudeau government — one immediate, one longer term. The immediate one is how to pass government legislation in a Senate controlled by the opposition party. The Senate website in February 2016 shows current standings in the Senate as 45 Conservatives, 28 Liberals, 10 independents and 22 vacancies (unlike the House of Lords the size of the Senate is fixed: at 105). Even if all the vacancies were filled by Liberals the party would still be three senators short of a majority. Some of the independents might support the government; five left or were expelled from the Conservative caucus for scandals of one kind or another, and the remaining five are committed independents or have disagreed with their party caucus. A further complication is that one or more of the independent senators, either because of sickness or criminal conviction as a result of current investigations, might not be available to vote. And only two Conservative senators are due to retire before the end of 2016.

All this raises the longer term problem; how should the new government approach the issue of Senate appointments and the wider question of Senate reform? Action by Justin Trudeau in January 2014 as Leader of the Opposition foreshadowed his approach. Trudeau announced that Liberal senators were no longer members of the party caucus.  This did not mean that they were expelled from the Liberal party but that they would not take part in formal joint house party consultations. Trudeau justified this on the grounds that senators should be independent of the disciplined partisanship that coloured lower house politics.

This theme was repeated during the 2015 election campaign and, in January 2016, has taken the form of the creation of an Independent Advisory Board on Senate Appointments – loosely similar to the House of Lords Appointments CommissionAccording to the Minister of Democratic Institutions, the Board is to select five ‘clearly independent and non-partisan’ candidates for each Senate vacancy. One of these will be appointed by the Prime Minister. The Board is composed of three permanent members with academic and legal qualifications together with two ad hoc members with diverse backgrounds from the province or territory where each vacancy is to be filled.  The Board hopes to have recommendations for five vacancies shortly, and will then review the success of the process. If these plans continued, the Senate would move gradually from being a wholly partisan institution to one wholly made up of independent members.

Quite how the recent changes will affect the work of the Senate is a matter of conjecture. If Conservative senators maintain party discipline, the Trudeau government will face a serious obstacle to its legislative programme. But it is not clear how far the Conservative opposition will want use the Senate to thwart a recently elected majority government. There is also the question of whether it is possible to run a national parliamentary chamber without some form of party loyalty even if senators are appointed as independents. It is clear that, in the short term at least, the Liberal government will have to practice the art of persuasion. Perhaps this would be the best outcome for Senate reform.

About the author

Campbell Sharman is Adjunct Professor in the Department of Political Science at the University of British Columbia.

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