About those impending Senate appointments:
It’s certainly another broken promise, which if memory serves was to appoint only elected senators. But the Liberals are hardly in a position to complain since a) they’d have done the same thing, and have for decades, and b) they’re opposed to electing senators, at least under the current setup.
There is an extra unseemliness in light of the prorogation of Parliament. He is still in law the Prime Minister of Canada, but his legitimacy is under something of a cloud, having prorogued rather than face a confidence vote (although it’s worth speculating whether he would in fact have been defeated in that vote — I suspect the Liberals might well have gotten cold feet on the day, in light of the pasting they were taking in the polls). His spokesman seems to admit as much: they’re making the appointments now rather than wait for the government to be defeated and let the coalition do it. The problem with that explanation: the coalition is not going to defeat them, because the coalition is dead. I think they’re using the coalition threat to justify what they were planning to do anyway. See, for example, John Ivison’s piece in the November 24 National Post — days before the fiscal update.
But it is a prime ministerial prerogative to appoint Senators, and there is no tradition in this country of appointing them on anything but a strictly partisan basis. It’s the Senate, in other words, that’s the scandal.
I’d judge these particular appointments by two criteria: the quality of the appointees, and whether they move the Senate closer to reform or not. On the latter, it’s been reported that Harper will make the appointments conditional on a pledge to support the government’s proposed Senate reforms – stalled for months in the Senate, and dead with prorogation – when these are reintroduced in the Upper House. These would limit Senate terms to eight years and require Senators to be elected to be eligible for appointment; the new appointees would be expected not only to vote for these principles, but to apply them to themselves. I’d support that, and I don’t agree with my colleage Andrew Potter that this constitutes some sort of improper inducement. If the Prime Minister can insist that they vote with the Conservatives generally as a condition of appointment, he can surely insist they vote with the Conservatives on a particular bill.
So I’m willing to cut Harper a little slack, here. His bona fides as a Senate reformer are not in doubt — indeed, he’s taken considerable flak for it, both in Parliament and in the media. He has appointed only two Senators since he came to power, one of whom was elected (Alberta’s Bert Brown). He’d have appointed more elected Senators, it is fair to assume, had his reform bill passed the Senate. Still, it looks odd: appointing Senators in order to elect them, patronage in the service of reform.
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Andrew, I think you are much too sanguine about the long-term implications of the constitutionality (in a conventional sense), of what has transpired thus far since the Fiscal Update and what appears likely to follow soon.
Imagine December 2005; just before Jack Layton pulls the plug, Mr. Martin seeks and obtains a prorogation of Parliament, just to allow him time to pull together an Accountability Act which the oppostion may approve. Pending the return of Parliament, he then proceeds to fill all Senate vacancies and provincial superiour court openings. The politics may be different, but I defy anyone to suggest the constitutionality (again in a conventional sense), of such acts would have been in any way different from the analogues of December 2008.
We now have a sitution where a Prime Minister has obtained prorogation on the eve of a non-confidence vote which would very likely have gone against him, and now intends to fill a number of high offices, Senate seats for starters. And if that is not violative of constitutional convention, why not fill the Supreme Court vacancy before January 27, and any number of provincial superior court openings? As the Supreme Court seat is sole gift of the PM, via the GG, would the appointment of a seriously conservative lawyer or justice, a strict constructionist, so to speak, be objected to on constitutional grounds, or on policy only?
Most of the comments of those above concern the politics of the potential appointees, few are concerned with the constitutional legitimacy of the process. But I ask, at what point can we say that the process has been pushed too far, that Her Excellency must say no, or is there no such point? And if there is no such point, then all that we have been taught about the efficacy of the reserve powers of the Crown is so much nonsense, and a PM willing to push the boundaries truly has no check.
Historically a very small number of appointments to the Senate have been non-partisan.
I believe it is worth noting that those rare non-partisan appointments typically occur when the sitting PM’s party already has a majority in the Senate.
That is definitely not the case now with the Conservatives only holding 20 seats in the Senate compared to 58 for the Liberals.
vern:
Or, imagine that in May of 2005 Paul Martin ignores a non-confidence vote against his government. Then survives a later vote by inducing Stronach to cross the floor. All this allows Paul Martin to persist as PM until the autumn.
Imagine then, that while Parliament was not sitting during that summer, he makes 8 appointments to the Senate.
Except that you don’t have to imagine it. That’s what happened.