Senate Jokes Are About as Well-Informed as Lawyer Jokes, Particularly Those Coming From the “Non-Insiders”
In the interest of full disclosure I begin this piece by confessing to being a “Senate Junkie,” as a dear friend described my interest recently. I began reading Senate Debates and committee proceedings when I was in Grade XI, at the North York Central Library and continued following the work of the Senate in great detail for more than 30 years, and, more generally in the last decade or so. Sadly, the current debate about the Senate is so ill-informed that I am mildly afraid that I will be disqualified on the ground of knowing what I’m talking about. Whether such a finding would be justified I leave to you, dear readers.
The so-called “Senate scandal” is about the delinquency of three or four senators[i] (out of 105 senatorial seats and with three current vacancies) who have been found to have been billing for reimbursements to which they are not entitled. One does not have to favour deceit, or to fail to condemn those who take more than their share to recognize that the wrong doing of these few has become a thinly veiled excuse for a general attack on the Senate as an institution both by Stephen Harper and by Tom Mulcair. Various journalists, Margaret Wente has become a leading example, have also rushed in to insist on their right to an opinion on a subject about which they are uniquely unqualified.
It is my belief – on several grounds – that if (a) the Senate were less disliked, particularly by journalists and (b) Canadians were less ignorant about the Senate and the work that it actually does, it would be harder for political leaders and journalists to engage in the bad mouthing of the institution as a whole over the misconduct. It is not necessary to loathe the institution – which I, among others, actually much admire – to think that it has room for improvement. Of course, what has kept it so largely in its original form is the difficulty agreeing on just what reforms are most desirable to the greatest number of provinces.
The connection between Harper’s original position and Mulcair’s is that both proposed to carry on as though the Senate provisions in the Constitution Act, 1867 did not exist: Harper refused, when he first took office to make appointments with the result that he could not get his legislation passed. Harper, like everyone else, is entitled to his own opinion, but if we recall the term “the machinery of government,” following the present provisions for filling Senate vacancies, a frequent favourite of PCO staff, is akin to using whatever kind of gear stick (or other essential features) with which the car you are driving is equipped. Likewise, Mulcair’s proposal to de-fund the Senate, would, of course, make it impossible for the Senate to function. But, as the Supreme Court observed in the previous Senate reference decision, the Senate is one of three vital parts of Parliament as it is now constituted. Indeed, there is something quite dangerous about political leaders who think that, by dint of their own will, or their caucus’s resolutions, they can over-ride the Constitution.
Wente described the reports of Senate committees as “useless”. I would not think that any study that reviews the historical and current fact situation in a given policy arena and then makes recommendations that are two or three steps ahead of the government, but not too many more, is actually invaluable. I have seen two articles by people who have frequently appeared as witnesses before both Senate and Commons Committees that set out their writer’s reasons for favouring the Senate committees: (1) Senators come to committee much better prepared; (2) the discourse is much less partisan, and (3) they listen. The late Justice Abraham Lieff, a friend of my father for many years, told me once that he began his legal career doing parliamentary relations (a field in which I have worked for many years). Looking back to those long ago days, after many years on the bench, Justice Lieff asked about my experience with committees, “Did they listen?” Neither group of parliamentarians is perfect on this question but, if one were scoring committees, the Senate committees would score far higher than the Commons committees.
The Senate does do a serious job of reviewing legislation – not as often as some people, myself included, would wish, but more often than is generally acknowledged. Reporters and academics in a hurry flip through the Senate Hansard index for votes defeating bills. But, in keeping with their non-elected status, senators often find creative alternatives rather than defeating a bill outright. A bill on humane trapping led to a coalition of Aboriginal senators and senators on the Legal and Constitutional Affairs Committee agreeing that the bill jeopardized s. 35(1) Aboriginal and treaty rights. The Committee split the bill, recommended passage of the portions not affecting those rights and produced amendments to the other bill that protected the previously imperiled s.35(1) rights. I can think of a series of other examples of a Senate committee finding creative ways to improve a bill by correcting its worst defects rather than defeating it.
The Senate Committee on Aboriginal Peoples has become a safe haven for quite sensible studies of successive Governments’ failures to fulfill their s.35 (1) obligations. Considering the Government’s hostility to these rights and the increasingly politicized style of the Aboriginal Affairs Committee of the Commons this is a great and important service.
When I have reviewed the bills that were either defeated or substantially amended against the government’s wishes I notice that in each and every instance one or both of two arguments have been made: first, that the bill violates one or another fundamental right; and, secondly, that the Commons passed the bill without much scrutiny. I think this weighs strongly against the Harper argument about the Senate being undemocratic.
If the majority of senators can be convinced that a bill violates the Charter (and possibly other sources of rights) then, clearly, those senators have a duty to oppose the bill. Prof. Brian Slattery argues that the Court is actually the third line of defence against Charter violations: the drafters have an obligation to work within the framework of the Constitution and parliamentarians, in both Houses, have a duty to pass only legislation that is plausibly constitutional.
The only tie vote in the Senate arose from a report of the Legal and Constitutional Affairs Committee recommending against the adoption of Kim Campbell’s anti-abortion bill. Prof. Lorraine Weinrib told the Committee that that bill was more unconstitutional than the one that the Court had already struck down. The Liberal women senators managed to bring enough Conservative women senators over to opposing the bill that it was defeated in the Senate, following the report of the Committee, on a tie vote.
If the Commons is going to pass such bills, then I, for one, am grateful that we have a Senate that does intervene from time to time. One recent article criticized the Liberals for holding up the Conservative resolution to invite the Auditor General to review Senatorial expenses. But the Government Leader, Sen. Marjorie LeBreton, has taken to distributing resolutions after the Senate has started to meet on the day she wants them passed. The rules provide for 48 hours for Senators to read resolutions, motions and bills before being asked to vote on them.
When Evan Solomon, the host of the C.B.C. program The House was interviewing Katie O’Malley about the Senate Committee on Internal Economy holding open door meetings, Ms O’Malley repeatedly pointed out that getting the doors of the internal economy committee of the Senate to stay open was far more likely than the doors of the Commons Board of Internal Economy. Solomon kept ignoring her “on the ground” report. He also kept confusing the name of the Senate Committee on Internal Economy with the name of the Commons Board on Internal Economy. A small point perhaps; but one that is symptomatic of a disinclination to get close enough to the Senate to learn the names of its various parts.
I won’t begin to get into reforms that I would favour. I’m concerned here, simply to establish that those who embark on tirades against the Senate because of the misconduct of three or four senators, tend to speak and act out of highly ideological and largely ahistorical thinking; and, that the radical disconnect between the malfeasance of a few senators and the actual strengths and weaknesses of the Senate simply confounds the issues.
[i] Sen. Marc Harb, a Liberal from Ontario, is contesting the claims against him, hence, “three or four.”
well said. I agree 100%! Anyone that cares enough to find out what really goes on at Senate and Commons committees will shudder at the thought of the Senate disappearing.
I had that exposure through a member of my family, the late Senator Gérald Beaudoin, we would discuss from time to time what Senators actually do and how they do it, it was an eye-opener for me.
The media would do well to investigate and report on the good work of 96%+ of the Senate membership.
I agree with everything except for the reference to certain journalists being ‘uniquely unqualified’ to comment on the Senate. Their lack of qualifications to comment on the subject they write on is far from unique to the case of the Senate.
I’ll assume for the sake of argument that the Senate does a terrific job. I don’t have any Senators in the family but have worked with a couple and their level of dedication, expertise and committment was unparalleled.
That still leaves the elephant in the room – how on earth do we still have a bicameral parliament with an unelected upper house???? Is there any justification for an unelected, unaccountable Senate other than constitutional inertia?
I’m sure the Senate was a cute idea in post-colonial 1867. The very idea of it is an embarrssment in 2013.
Having testified in front of Senate and Commons Committees considering new legislation, there is simply no comparison in the Senate Committee’s level of probing, avoidance of grandstanding and cross-party intelligent discussion. The fact that Senators can develop expertise in particular areas means that the Senate Banking Committee, for example, can assess the fine print of business legislation in ways that back-bench MPs can’t – or won’t (because they’re making cheap political points, if in opposition, or on a tight leash from the Centre, if they’re on the Government side).
Whoops…I am responding to the whole note, but reacting specifically to the comment about the “unelected” nature of the Senate.
First:
May I suggest that the author shows a lack of understanding of the role and function of the Senate, which is to provide intelligent, informed and impartial review of the actions of the elected Parliamentarians in the House of Commons. As long as the Senate appointment process provides us with a group of Senators with the experience, intelligence and understanding to provide that review, the Senate will be able to do what it is supposed to do for the benefit of the country, and Canadians.
Considering the Harper administrations actions and their view of the Senate, its amazing that it can still function. Check out the qualifications of those Senate appointments made under Harper, and compare the background of the NEW SENATORS with the qualifications of those they replaced.
No further comment on that is needed.
Second:
Good governments are not always “elected” governments. How the individuals involved in a government are appointed has far less to do with the process that put that government in place, than in the rules they set for governance, and how well those being governed are served by those doing the work of government.
In Europe, and in places which have followed a European model for governance, there is a general assumption that dictatorships are wrong, and that wherever possible, these should be replaced by “elected officials”. That idea can be questioned just by looking at by looking at some long-running Benevolent Dictatorships, which provided stable government, which met the needs of those governed well. However these tend to be associated with individual Dictators, who die, or are deposed, often by another system of government which may not serve the needs of the people as well as the previous Benevolent Dictator did.
Third:
In Canada we have some 300 long-running Local Governments which replace their members using systems other than the kind of “elections” defined under the various Municipal Acts or equivalent across the country.
These Local Governments provide all the administration and services needed in their community, and are fully supported by the members and residents. These Local Governments, like all Local Governments in Canada, are funded by the Federal or Provincial governments, and are audited annually, as are all of the various kinds of Local Governments. These Local Governments have a legal framework which outlines their legal and financial obligations to the residents and members of the communities governed.
A number of these hold no elections at all, and have no need to do so.
These Local Governments satisfy their members and residents, and the senior Governments need for accountability using the systems they have chosen, which have been proven to meet all the requirements for good governance. They pass bylaws, set speed limits, and do all the things any Local Government does in Canada, but they also have responsibility for a range of services to their members and residents which are delivered to other Canadians by their Provincial governments. This includes the services covered by the Canada Assistance Plan, including health care, social services and education.
These Local Governments function perfectly well, but are not “elected”.
To make this clear to anyone who has not yet identified the Local Governments referred to, look at the Indian Act, in all its incarnations. The Indian Act provides the legal framework for Local Government for First Nations communities. The current version of the Indian Act identifies the various sections of the Act which cover how the First Nation is governed. First Nations either fall under the section providing for “Band Custom” or under the other section which provides the alternative provisions, establishing a regimented electoral process involving European-style elections every two years.
There are over 600 First Nations in Canada, all of which provide Local Government services to their members and residents. Of those, over 300 have “Band Custom” arrangements to define their leadership, and of those some smaller number use arrangements that do not involve anything remotely like “elections”, being based on rules that pre-date Confederation.
When the Canadian Government first formulated legislation related to First Nations, First Nations traditional practice defined their local government. The legislation was designed to recognize the First Nations traditional governance structures, but to offer European-style elections as an alternative.
The current Indian Act does exactly that.
There was pressure from Government to change from traditional practices to more “modern” elections, but some First Nations who moved to an election process were dissatisfied, and moved back to a more traditional but totally self-defined process. Those systems fall under Band Custom.
There is another step available now. First Nations like Westbank now can move to their own Federal Self Government legislation.
First Nations with current “Band Custom” rules under the Indian Act can be either those who continue to use a traditional form of government, with or without any written rules, or those who have designed a form of governance which may include elections, but is significantly different from the provisions in the other section of the Indian Act.
So back to the key question about whether a person is “elected” or is appointed into a governing role by some other means, matters? Its clear that elections are not the issue, its the quality of the person appointed, and their ability to participate in the governance role they have taken on that matters.
The governing party in the “elected” House of Commons received 39.7% of the votes in the 2011 election. The voter turnout was 61.1% of eligible voters. So 24.26% of eligible voters “elected” the government. The combination of low voter turnout and our multiparty, first past the post system has allowed mere fractions of the potential electorate to choose majority governments repeatedly. Does anyone really want the Senate to be chosen that way, too?
One argument traditionally advanced for not electing the Senate is that if it were elected, it would have equal democratic legitimacy with the Commons, and would have a claim to be equal in power too. At present, if there is a dispute, ultimately the Commons wins, since it is the elected body.
That’s not a definitive argument. Australia has an elected Senate and seems to be as governable as Canada. But it, along with some other comments here, suggest that it is not completely inexplicable how we can put up with an unelected Senate. And of course ‘constitutional inertia’ is a fairly powerful force.