What’s the Senate for?

PATRICK BAUD

Absent in debates about Senate reform in Canada is a sense of what we expect of and hope for our Senators. We argue endlessly over how and whether they should be elected, whether the provincial (and territorial) delegations should be equal or (roughly) proportionate to population, and what kind of constitutional wrangling would be required to change anything about the red chamber. In these discussions, the fact that these Senators are not merely anecdotes for public consumption, but actual legislators is often lost. Not only is what Senators actually do ignored, but so is what we want them to be doing differently.

We even give up the ability to imagine and demand something different from the members of Canada’s upper house. To forego this crucial democratic commitment is to entrust the vitality of our national institutions into the hands of those who are motivated principally by interests more narrow than the common and public good. What we need is more substantial than the generic definition of what an upper house does provided in any comparative politics textbook nor the broad outline provided in the Constitution Act of 1867. If we really want to have a serious, substantial debate about Senate reform, we need to be able to discuss what we want Senators to do.

Not only must we be able to articulate clear positions about this question, but we must also be able and willing to reach an agreement about what we, as a society, want Senators to do. This latter category will doubtless be narrower than the sum of all of the expectations and hopes that individual Canadians have of the Senate, but such is the nature of founding (or in this case, refounding) an institution which will enjoy broad, substantive public legitimacy. This is no simple assignment.

Part of challenge is that we are not used to talking about our institutions, especially ones surrounded with such pomp and circumstance as Parliament, in this way. Deference and tacit respect are preferred to taking ownership and responsibility for what public institutions do on our behalf and how they do so. In some activist circles, this kind of rhetoric is nowhere near novel, but even there it is grounded on a certain cynicism which presumes that these institutions are opposed to the public good almost by design. This is only true if we allow it be.

We are especially not used to talking about the Senate in this way because it feels inappropriate to do so. Senators, after all, are not directly responsible to us in the same way as are our MPs, nor are they even indirectly responsible to us as are the Prime Minister and his or her ministers. In recent Canadian political history, there have been few disputes about appointments to the Senate, aside from some half-hearted attempts to discredit the qualifications of the Senators which the Prime Minister has recommended that the Governor General appoint since December 2008. Certainly these disputes seem to have little impact on the political fortunes of the Prime Minister’s party.

That we are not accustomed to having this kind of discussion certainly does not mean that we can not or should not do so. Nor does the fact that Senators are not directly (or indirectly) elected by us mean that we should not see them as responsible to us. Advocates of Senate reform who argue that electing Senators would at last make them responsible to Canadians ignore the fact that Senators already represent Canadians. It may be the case that the Senate would better represent us if it were elected, or it may be, as sceptics have argue that they would do far worse.

There are persuasive arguments to be made about why it is that we should want Senators to continue doing exactly what they are doing now: carefully considering (and amending where necessary) legislation passed by the House, proposing its own legislation and conducting its own studies (usually on issues too politicized or sensitive to be properly examined in the House). Likewise, there are equally persuasive arguments about why the importance of these functions mean that the Senate should in fact be directly elected.

For instance, Steven Fletcher, the minister responsible for democratic reform, recently reintroduced a bill which would create eight year term limits for all Senators appointed since the last general election. If we believe that high turnover is good for the Senate because it prevents Senators appointed by a past government from stalling the legislative agenda of a government of a different party and it ends the tradition of the Senate being a “plum” appointment, then we should support this change. If we believe, however, that the best Senators (that is those who make the most useful contribution to chamber and committee work) are those who are the most experienced, particularly those whose experience has lasted through several governments, preferably governments of different parties, then we should oppose this change.

Aside from the mention of “democratic values” in the preamble to the bill, the government has provided no substantive justification why term limits would help Senators better accomplish what it is that they wish it to do. The opposition has done no better. What matters in debates about Senate reform is defining what it is that we want from the Senate. Until we can do that, debates about term limits or methods of election will remain wholly academic because the ones which we select if and when we reform the Senate will depend entirely on what we want Senators to do.

Confidence Crimes

In yesterday’s Throne Speech (available in video form here), the government focused heavily on its law and order agenda.

When the Governor General prorogued Parliament in late December, nine crime bills introduced by the Minister of Justice were on the order paper in the House, there were three in the Senate; two bills had received royal assent. Additionally, four crime-related bills introduced by the Minister of Public Safety remain on the order paper in the House. Technically, these bills are “dead” – they must be reintroduced from the beginning (at first reading), unless the government and the opposition agree that some or all of these bills (and the several dozen other the government had introduced) be reintroduced at the stage at which they were when Parliament was prorogued.

The opposition, particularly the Liberals, may be reticent to block the reintroduction of these bills because of the general popularity of crime bills with the voters. However, the government’s behaviour has been deplorable in its pursuit of its crime agenda and for this the opposition should punish them. Some of the measures it proposed, particularly a bill which prohibits judges from giving more than one day’s credit in sentencing for every day served in pre-trial detention, will surely increase the number of people in prison at any given time, but the government refused to provide any estimates of the cost, claiming that the estimates it had done on the question were “Cabinet confidences”.

The Cabinet confidence (legally speaking, “confidences of the Queen’s Privy Council for Canada”) is the principal means by which the executive deceives Parliament and Canadians in general. Their intent is to prevent to disclosure of the deliberations of Cabinet so that these deliberations can be free and open, but that once a decision is made, the government can maintain a common line. However, the term is applied to all manner of documents to which access might better be restricted as “top secret”, “secret” or “classified” according to the Security of Information Act. The Act provides a procedure by which the documents might eventually be declassified.

There are, however, documents which are currently considered Cabinet confidences which should not be. Estimates of the cost of legislation are clear example of this, except in certain areas where the disclosure of planned expenditures might be dangerous, such as in the area of national security and intelligence (this does not mean that spending in this area should not be carefully scrutinized). The opposition should demand greater transparency because it is required for Parliament to do its job.

An alternative approach to this problem could be instead to empower the Parliamentary Budget Officer (by greatly expanding his budget, giving him the status of an independent officer of Parliament in his own right and extending his legislative mandate) to conduct estimates of this kind on his own initiative, on that of the government, or of any Member of Parliament or Senator. The Library of Parliament has long provided a similar service which provides a thorough legislative summary to parliamentarians (and the general public) about every government bill’s provisions and its potential legal implications.

Canada’s think tank community is too weak to be able to undertake this kind of work without substantial government support. Canadians interested in scrutinizing government expenditure, whether they identify as conservatives, liberals or progressives, might stand behind such the think tank community to support a program to do so.

The opposition should hold the government accountable on this question at the earliest possible date for it is part of a nefarious trend of centralization of power in the Prime Minister’s Office.

What It Will Take

Recent polls predict that if an election were held tomorrow, the Conservatives would have a good chance of going back to Ottawa with a strong majority. Canadians may still be headed to the polls before the new year, but since December elections are rare (the last was held in 1921) and the Governor General must dissolve Parliament at least one month before election day, an election would likely have to be called by Halloween. A January election is also technically possible, but unlikely since the Olympics start on 12 February. Any time after then is open season.

What this all means is that the opposition has a chance to change their fortunes. This change is by no means inevitable, in fact, it is unlikely, but it is possible. There are a number of strategies open to the opposition. For example, they could position themselves as prudent fiscal managers and defend their economic record while bemoaning the rate with which the government has contributed to the national debt. And so would begin again the classically demoralizing cycle of Canadian public life. While this strategy may be the one that comes most naturally to a political elite accustomed more to mudslinging that reasoned debate, it is by no means the only option.

Indeed, the opposition would do well to take the attitude that what our great national debates need is not endless recapitulations of what this or that government did or did not do. What this country does not need is more of the same old blame game. Politics practiced in that way is toxic and stifles creativity. It closes the doors that it should open and only lets in the people who are willing to sink to its level. Public debate should cultivate our collective instincts, not lower them.

The opposition can talk all that it wants about its record. It can talk about leadership and Canada’s place in the world. Or it can talk about the values that should animate and stimulate this country’s common projects: equality, fairness, justice, sustainability. It can argue about who has more respect for what traditions or who was more corrupt than whom. And so it should. Corruption should be tirelessly fought against and traditions respected and valued. But no one can build a country on those values alone.

Neither Michael Ignatieff nor Jack Layton are used to this kind of politics. Canadians certainly are not. But it is what we should come to expect from our leaders. It is a commitment that we can only expect them to fulfill if we give them the tools they need to do so. Our national institutions are meant to represent our diversity of origin and opinion. They are meant to be places where Canadians can talk to each other, whether they were born in Glace Bay, Iqualuit, Vancouver or Hong Kong. But they are also meant to be places where we as Canadians come together to get things done. It is now time, more than ever, that this country get to work on the projects that unite us, rather than those which promise to divide us.