Categories: Capital Read, Inside the Queensway

Serious about Senate reform, huh?

by kadyomalley on Wednesday, October 15, 2008 10:26pm - 124 Comments

But not serious – or politically suicidal – enough to reopen the Constitution, apparently. The PM may be “prepared to stack” the Senate, but the numbers are stacked against him — even if he were to follow in the footsteps of a previous prime minister, and invoke the infamous Section 26 to stuff a few more warm bodies into the currently unacceptably red Red Chamber:

From today’s Globe and Mail:

PM prepared to stack Senate so Tories can make changes

Newly re-elected Prime Minister Stephen Harper served notice Wednesday that he will stack the Senate with Tories if necessary to push through democratic reforms of the chamber.

Mr. Harper told reporters in Calgary that the Conservatives are serious about promised changes to the Senate – which include elections and eight-year fixed terms – and will fill it with new Tory appointments to push through reforms if the Liberal majority there opposes them.

“We don’t believe an unelected body should in anyway be blocking an elected body,” he told a news conference in Calgary.

There are 16 vacancies in the Senate because Mr. Harper has let retirements go unfilled, but the Liberals still dominate with 59 unelected senators in the 105-seat chamber.

“I have held off for a very long time in naming senators. That said, I do not believe it is justified that the Senate would continue to [be] dominated by a party that did not win two consecutive elections,” he said.

“We are looking for the opportunity to elect senators, but if at some point it becomes clear some senators are not going to be elected, the government will name senators to ensure that the elected will of the House of Commons and the people of Canada is reflected in the Senate.”

The Tories have complained about Liberals in the Senate obstructing their ideas.

By January of 2010, there will be 31 vacancies in the Senate and the Liberal caucus will be reduced by then to fewer than 50 seats in the chamber. Mr. Harper could theoretically appoint 31 senators to one-year terms and use that strength to push through whatever changes were deemed necessary.

Constitution Act, 1867:

Addition of Senators in certain cases 26. If at any Time on the Recommendation of the Governor General the Queen thinks fit to direct that Four or Eight Members be added to the Senate, the Governor General may by Summons to Four or Eight qualified Persons (as the Case may be), representing equally the Four Divisions of Canada, add to the Senate accordingly. (15)
Reduction of Senate to normal Number 27. In case of such Addition being at any Time made, the Governor General shall not summon any Person to the Senate, except on a further like Direction by the Queen on the like Recommendation, to represent one of the Four Divisions until such Division is represented by Twenty-four Senators and no more. (16)
Maximum Number of Senators 28. The Number of Senators shall not at any Time exceed One Hundred and thirteen. (17)

Current Senate standings:

Liberal Party 59
Conservative Party 21
Progressive Conservative 3 (Atkins, McCoy, Murray)
Independent 4 (Pitfield, Prud’homme, Rivest, Spivak)
Independent New Democratic Party 1 (Dyck)
—— 1 (Cools)
Vacant seats 16 Newfoundland and Labrador (1), New Brunswick (1)
Nova Scotia (3), Prince Edward Island (1)
Quebec (4), Ontario (2), Yukon (1)
British Columbia (3)
___
TOTAL 105

Should this minority government manage to survive until January 2010, when the Liberal ranks would have been sufficiently depleted to allow a restocked contingent of Conservatives to control the Chamber — that is, if each and every one of them was willing to carry out PMO-issued marching orders, which is, historically, a foolish – and politically dangerous – assumption for a government to make — any attempt to fundamentally change the nature and purpose of the Senate on a unilateral basis would put Stephen Harper on a collision course with the provinces – particularly Quebec. Which means that even his proposed changes made it through Parliament, the whole mess would end up in court, which could take years to decide whether a Prime Minister can do through backdoor legislation what he lacks the political courage to do through a constitutional amendment. In the meantime, the Senate would continue to exert its power, and fulfill its duty to examine, amend, and – if necessary – defeat legislation.

Is that really how Stephen Harper wants to spend what could be his last term as Prime Minister?  Wouldn’t it be easier – and more enjoyable – to govern the country, rather than pick a fight with parliamentary tradition just to indulge his nostalgia for Reform-era policy?

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  • Mike T.

    A politician who has been in the news a great deal today once remarked that Canada is a country “that works well in practice but not in theory.” That’s the senate in a nutshell. Like many aspects of Canada – perceived Western alienation, Quebec separatism, transfer payments – that people might find fault with in undergraduate political science papers, but it actually works out OK.

  • http://www.macleans.ca Kady O’Malley

    Trusty Tory – At the time, I was working part-time as a quasi-media monitor, which involved reading four newspapers every morning, and clipping relevant articles. I followed every twist and turn of the GST debate in both the House and Senate — the petitions! the outrage! the kazoos! — and, on top of that, when it comes to parliamentary procedure, I’m infamous for my wonkishness. People mock me for it. I have no idea what you are insinuating with your comment, but if you’re suggesting that I don’t do my own research, you couldn’t be more wrong.

  • http://www.macleans.ca Kady O’Malley

    Oh man, I just checked your site, Trusty Tory. You cannot seriously be suggesting that I needed to visit your site to be reminded of Brian Mulroney and the infamous GST Senate appointments, are you? Because if so, that would have to be the saddest attempt at random credit-grabbing I’ve seen in a while — and besides, I think I posted before you did. Not that it matters, since we’re not exactly talking about ancient, forgotten history here.

  • Mike T.

    I was responsible for every media outlet who suggested a conservative minority!!

  • http://returnofthetory.wordpress.com The Trusty Tory

    Kady,

    Partisan politics aside, it was more of a friendly jab in your direction. To be honest, a lot of people aren’t as well versed as the select few on political history in this country. In fact, knowledge of the stacking of the Senate is a rarity unless you have an addition to Canadian politics – like myself. Good on you.

  • stephen

    Ok, I finally got some time to go “a hunting” in the constitution.

    While these things are always subject to interpretation I will try and layout the issues

    Can the Senate be changed by the Federal Government Alone?

    It depends. It cannot change anything related to their powers or method of selection without using the 7/50 formula…see sec 42 b) and c) and sec 38 1 a) b)…..

    The number of members for each of the 4 sections cannot be changed unless there is uananimous consent of senate, house and all provinces….section 41

    But the federal government can “Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons. ”

    So if the the number of senators doesnt change (appointed by the governor general), and their form of distribution doesnt change amongst west, ont, que and atlantic then it would seem the senate and House can agree to make the changes themselves.

    Tenure is the key thing, it is mentioned as a seperate line item, and I believe has been ammended once already. If you had the votes you could ammend this part, unless tenure was decided to be part of the powers of a senator….a stretch to say the least.

    So once he can gather the votes in the house and the senate, 2010 in the senate if i read kady correctly…open question on the house, Harper can change two things

    1) State that the length of term of a senator will be “x” lets say 6 years from time of appointment for the sake of argument.

    The method of appointment is now up to the GG, who does it on the advice of the PM. He gets defacto elected senate, maybe by proprotional representation. All without involving provinces etc.

    As soon as you go to changing the number, or the distribution then you need everybodies consent.

    Once you have senatorial lists changing every 6 years, then it begs the question of how they get selected. I suspect pressure would build on the issue to force the discussion.

    I am not recommending it, but I think this is something like what he is aiming for. Incremental change without doing a meech lake kind of deal. Fits within his compartmentalized view of the constitution, keeps the provinces and other special interests out of the discussion….unless they want in…and therefore means that the federal government is in some control of the agenda if it is to expand, since it is the other side seeking to get in rather than the feds begging for change.

    Ince again, I am NOT recommending this. Just saying he can get some changes without resurrecting meech or that jambalaya called Charlottetown.

  • sf

    “Wouldn’t it be easier – and more enjoyable – to govern the country, rather than pick a fight with parliamentary tradition just to indulge his nostalgia for Reform-era policy?”

    He is governing the country, by doing this, and frankly, he should use whatever tools he has at this disposal.

  • http://www.macleans.ca Kady O’Malley

    sf: I definitely agree that he should fill the sixteen Senate vacancies that have piled up during his tenure. Time’s a’wasting!

    Stephen: He can absolutely put in place a non-mandatory law that stipulates the process whereby senators can be elected, and then subsequently appointed on the recommendation of the Prime Minister; what he cannot do without amending the Constitution is bind future PMs to only recommend individuals who have been elected. Term limits, again, are on the edge, as far as legality — I suspect that if he does manage to pass the law, it will be brought before the federal court for judicial review. Wouldn’t it show more leadership, however, to propose the changes that he has in mind through a constitutional amendment? That way, he wouldn’t have to worry nearly as much about a law being repealed by the courts – and it would bring in the provinces and territories, who have as much interest in the workings of the Senate as the government of the day.

    Trusty Tory: I trust that you will make it clear to your commenters that this was, in fact, a coincidence. I make every effort to acknowledge any outside source on which I may have relied for research or other purposes, and if I had based my post on your findings, you can be sure that I would have given you credit.

  • WDM

    Kady,
    I think you’re bang on with your comments as to the effectiveness of the Senate, although I may be biased. I think Harper stacking the Senate is a double edged sword. On the one hand, letting the Senate to whittle down to 2/3, and potentially half its size does more harm than good, however, even if Harper does fill the Senate to the brim, the questions on the Constitutionality of the Reform Bill won’t go away. Frankly, Mr. Harper is going to have to be very careful, even if hypothetically, this Bill was deemed to be Constitutional, unilateral Senate reform is not going to play well in Quebec (although he may have blown his 2nd chance there already).

  • http://returnofthetory.wordpress.com The Trusty Tory

    Kady,

    That is correct. I’ll make it clear. What are the odds, though? I guess great minds do think alike! (okay, now be nice.)

  • http://returnofthetory.wordpress.com The Trusty Tory

    Oh, but just for the record, I did post it at 9pm last night. ;-)

  • Mike T.

    The odds were pretty good, I’d say. It’s not exactly arcane trivia that Mulroney appointed senators.

  • Pingback: A Stacked Senate « Return of the Trusty Tory

  • http://returnofthetory.wordpress.com The Trusty Tory

    We weren’t talking about just simply appointing Senators, we were talking about stacking the Senate using section 26 of the Constitution.

  • Geiseric the Lame

    sue her or shut up

  • http://www.macleans.ca Kady O’Malley

    To get back on topic, I’ll note that even that would not necessarily give the current PM the votes necessary to pass a Senate reform package — the Senate cannot exceed 113 members at any time, and that includes senators appointed under Section 26. There are currently 16 vacancies, with another two mandatory resignations set to kick in by the end of the year, bringing the total to 18 — one of which is a Conservative senator appointed by Brian Mulroney. That, plus eight S26 senators, means a maximum of 26 appointments, which would bring the number of Conservative senators to 46, plus one Independent NDP senator (who would probably vote with the government); three Progressive Conservatives (at least one of which would not back extraconstitutional reform), four independent – of which two would likely vote against the proposals – 58 Liberals, and Anne Cools, who is wholly and entirely unpredictable.

  • http://www.macleans.ca Kady O’Malley

    (Just to add that S26 senators can only be added in groups of four or eight, so you can’t top up to 113; you need one (or two) from each division.)

  • Wascally Wabbit

    Kady – and we wondered where the ConBots where…
    Doewsn’t take long for you to flush them out – does it?
    BTW – you new tan goes well with the reduced dark rings around your eyes…
    Go get some more sleep and let these little vermin consume themselves chasing their tails…

  • WDM

    Anne Cools is more than worth the daily scan of the Senate Hansard. Harper’s unwillingness to let his Bill past the smell test of the SCC, probably shows he doesn’t think it would be upheld in the face of a Constitutional challenge. Piecemeal reform and hoping no one who took a course in Constitutional Law would notice, clearly won’t work, however, the Senate makes an easy target for Harper and his base, so it will likely continue to go on as it has.

  • Andrew

    I have to agree. It’s really just another cynical, vapid move. It boggles me that conservatives are so enamoured with him.

  • WDM

    The question would be what type of Senators Harper would appoint. It would be a shame too see a ton of fire breathing partisans in there who would turn the Senate and its committee system into the same gongshow as the House. And to be fair, I’m not entirely putting the blame on the Tories here, the Grits would respond in kind and get right into the partisan mudslinging.

  • David

    Not that it matters, since we’re not exactly talking about ancient, forgotten history here.

    It was 18 years ago; some of these Tiny Tories don’t have more than a dozen pubes yet.

  • Jack Mitchell

    Sean S.: “Do it, Stephen, do it! Set the controls on a collision course for the sun and let’s see what happens to this crazy spaceship of a nation.”

    LOL, that’s perfect.

    I can’t even begin to conceive what would happen if Harper tries to amend the Constitution unilaterally. And at this juncture?!? Why doesn’t he just have JTF2 kidnap Danny Williams? Or start an inter-provincial nuclear arms race? Or spray-paint the National Assembly purple?

    Seriously, though, if he tries something strange like stacking (but failing to sufficiently stack) the Senate in order to reform the Senate (interesting logic there), and it’s somehow effective (how?), what recourse would the Senate have against unconstitutional change? I guess they could get all bristly and refuse to pass government legislation – though that would prove that Harper had not reformed the Senate, so what would be the point of doing so? – but then what would Harper do? Have the Governor General’s Foot Guards surround the Red Chamber? Ask the GG to sign legislation not passed by both Houses?

    I agree with whoever it was said above that this is some weird gamesmanship thing. Or maybe just an attempt to show he’s keen on “fulfilling his mandate” in some do-it-yourself way. It’s weird, that’s all I know.

    Please keep posting on this, ITQ! If anything comes of it!

  • Holly Stick

    The Senators were the only politicians who did their jobs properly in the past year or so, while the Conservatives were doing their worst to make government dysfunctional.

    Harper may be throwing a bone to the Albertans who are fool enough to vote for him (I’m one who isn’t), but I think he is also trying to punish Quebec for denying him his coveted majority. Underneath the sweater is a vindictive weenie.

  • http://ADMS.ca cms

    it holds nothing but moral weight.

    Stephen Harper? Morals?

    *laughs*

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