by Michael Kirby and Hugh Segal
The Globe and Mail
September 21, 2016
Next week, Prime Minister Justin Trudeau’s newly independent Senate will be back at work after a tentative but productive initial outing. Its success rests solely in the hands of the newly appointed and self-declared independents.
Independents must not confuse independence with anarchy. For genuine reform to occur, they must act together quickly to change the rules of the Senate.
The new Senate is likely to feel more legitimized in challenging legislation originating in the House of Commons. In their handling of the assisted dying bill, senators embraced the subtle job description offered by Sir John A. Macdonald in 1864. The Senate, he said, “would be of no value whatever were it a mere chamber for registering the decrees of the Lower House.” It needed to be “calmly considering the legislation initiated by the popular branch” without setting itself “in opposition against the deliberate and understood wishes of the people.”
We, in our time, were creatures of a highly partisan Senate, though we tried to behave independently when necessary. One of us was a Liberal senator on the government and opposition benches; the other a Conservative appointed by a Liberal prime minister.
While constitutional change is off the table, the newly independent Senate can be reformed with measures that fall within the ambit of the Senate itself or the Parliament of Canada Act.
Over the years, an excessively partisan Senate became less fair-minded as it mirrored the House and the Prime Minister’s Office. Rules advantaged partisanship while sober second thought became an infrequent experience.
The power of partisans can be cut by restoring the original organizing principle of the Senate: representation by region. Without it, Confederation would not have occurred. We call for a return to roots: Regional caucuses should replace party ones as the basis for regulating committees, debates and questioning of government ministers.
All power currently revolves around a “recognized party,” which is defined as a caucus consisting of at least five senators who are members of the same political party. Existing rules exclusively allocate extra compensation and budgets for party leaders and whips and the secretive and partisan board of internal economy.
This affronts the original principle of an independent Senate. We are calling for a regionally organized Senate instead to empower a “senior council” made up of four regional convenors, the Speaker, the government representative in the Senate and his liaison (formerly whip). The government representative should be treated like past government leaders in terms of budget and advice from the Privy Council Office. The job of serving independents is more complex than whipping loyalists.
This doesn’t mean like-minded senators can’t gather around voluntary groupings: a military affairs group; a minority languages group; a free enterprise group; an anti-poverty group; or even a politically like-minded group. But partisan affiliation should no longer provide the sole basis for authority or a route for any government to subvert independence.
A Senate with greater legitimacy needs tools to resolve deadlocks. As with the assisted dying bill, it can satisfy itself by enforcing sober third thought on the House, but when legislation is truly shoddy and outside the mandate given the government (as with the heavily marked-up RCMP unionization bill returned to the Commons in June) there must be options for conflict resolution.
We propose two. In the first half of the 20th century, the House and Senate met 13 times in conference, where small delegations worked to resolve legislative disputes. The rules to resurrect conferences are already in place. In the event these conferences fail, the Senate’s remaining responses currently are to acquiesce, to refuse a vote, or to exercise its absolute veto. The Senate must follow the 1911 lead of the British House of Lords by voluntarily limiting itself to a six-month suspensive veto.
This would put differences where they belong: in the arena of public opinion. The Senate would be restored to its original constitutional purpose as an independent but restrained check on potential abuses of power by any House of Commons majority.