With the Senate, it could always be worse
2 years after the Senate was on trial via Mike Duffy, there's new rumblings about an overly active chamber
At this time two years ago, the Senate was the subject of much wailing and gnashing of teeth. So in a way, nothing has changed.
In the spring of 2015, the upper chamber's most prominent member was on trial — the dramatic crescendo of two years of ethical drama that ensnared the prime minister's staff and raised questions about the spending habits of more than two dozen senators.
Now, in the spring of 2017, there is consternation that the Senate is periodically asserting its constitutional right to amend legislation passed by the House of Commons.
This should perhaps count as progress.
When thinking about the Senate, it is generally important to remember that it could always be worse.
Senators determined to 'play their role'
"I think senators, more than ever, are determined to play their role," André Pratte, one of Justin Trudeau's independent appointees, told CBC Radio's The House in an interview airing this weekend.
"The reason is that for years and years, many people have been complaining that senators are not doing anything. And I think that's been really unfair, but that's been a complaint."
In the four years preceding Duffy's trial, the Conservative-dominated Senate amended exactly one government bill. We've since had to get reacquainted with the mechanics of bicameral parliamentary democracy.
Halfway through this 42nd Parliament, the Senate has amended five government bills, touching upon such weighty issues as immigration, labour law, medically assisted dying and the budget.
And even if that exceeds more recent precedents, it is not entirely out of line with modern practice.
The 39th Parliament saw seven government bills amended. The 37th, 35th, 33rd, 30th and 28th parliaments all amended nine or more government bills — with the 33rd amending a total of 17.
In amending bills, the current Senate has so far shown a measure of restraint: no bill has been sent back to the House more than once, even when MPs have voted to reject the Senate's suggestions.
Even on the budget bill — amid grumbling about the government's tone and after the dispatch of a stern note to the House about the Senate's rights and authority — senators agreed to revert to the original legislation after MPs objected. Historically, including as recently as 2006, the Senate has not been so willing to acquiesce after just one attempt.
"Their role is to look carefully at legislation, to suggest amendments, to alert public opinion," said Pratte.
"And of course all senators are well aware that they are appointed, that they are not elected. And that carries some weight when they decide what to do when the House rejects their amendments."
But, Pratte said, the Senate does not exist to "rubber stamp" the bills passed by the House.
"If that's our role, we don't have a role," he said.
"We don't need to be there," chimed in Conservative Senator Elizabeth Marshall.
The trouble with doing anything about the Senate
Quite right, some would say: They don't need to be there.
There is an argument to be made — often by those for whom every imposition of the Senate is a mark of national shame — that the only thing worse than a Senate that does nothing is a Senate that does things.
As an appointed chamber, the Senate can no doubt seem like an anti-democratic anachronism that offends the very principles of self-government. But because the Fathers of Confederation wrote its existence into the Constitution Act — an "integral part" of the original design, as historian Christopher Moore has written — there are few great options.
In particular, the Senate cannot be easily gotten rid of or fundamentally democratized. Moving to an elected Senate would require the agreement of at least seven provinces. Abolishing it entirely would require all 10.
Moving to amend the Constitution would no doubt invite premiers to seek other, unrelated changes. (At least Quebec and Saskatchewan seem ready to make requests.)
And even if the provinces could somehow be shamed into dealing solely with the Senate — surrendering in the process some significant leverage in constitutional negotiations — it's worth considering the potential ramifications of change: An elected Senate could result in legislation gridlock with the House, while eliminating the Senate would remove one more potential check on the government's authority.
(By 2015, Stephen Harper was refusing to appoint anyone to the Senate — and the Conservatives aren't rushing to explain how they would handle the upper chamber after 2019.)
How might Parliament evolve?
The Senate is surely feeling its oats. And the likelihood of a profound and prolonged impasse that threatens the foundation of Canadian democracy is perhaps higher now than it was from 2011 to 2015 (i.e. more than zero).
But it is also difficult to know how Parliament will evolve around the independent senators in its midst.
Trudeau's appointees might become more assertive as they gain experience; at the moment, it is actually the remaining Liberals in the Senate who are least predictable.
But with a frisky Senate in mind, the government could also become more willing to let House committees amend legislation. Backbench MPs might demand the same latitude senators are asserting.
In other words, the House could start making the changes the Senate is now getting to make.
- Liberals reach midway point amid booze-tax brouhaha, Senate suspense
- Trudeau gov't has passed half the bills Harper did by this time
Beyond the theoretical incongruity of a Senate amending legislation, there is conceivably some point at which the Senate's actions would significantly offend the public. And while senators need not fear being voted out of office, they may still want to avoid public or political scorn.
To that end, the Senate might be expected to continue in its current form so long as its existence is less painful than the thought of change.
There will no doubt be butted-heads and back-and-forths to come between the House and Senate. It might not always be pleasant and it won't be everyone's idea of a functioning democracy.
But as none of the Senate's membership is presently on trial, perhaps we should be thankful for small mercies.
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