Our looming constitutional crisis

By Aaron Wherry - Wednesday, January 25, 2012 at 1:15 PM - 0 Comments

In the midst of defending the Senate, Colin Kenny offers the following.

No question, initiators of legislation requiring public expenditures should be elected. That’s why we have the House of Commons. But the Senate is designed to review that legislation. While it can delay its passage, by convention everyone agrees that it can’t stop it. So the argument that it is “undemocratic” to appoint significant components of government doesn’t hold water. In the end, within the legal guidelines of the constitution, the elected component of Parliament has the last word. That’s all that matters.

Senator Kenny is right to note that an elected Senate would likely feel empowered to defeat bills passed by the House. But he seems to ignore the fact that the unelected Senate has felt sufficiently empowered to do so twice in recent years—see here and here.

Bert Brown has mused vaguely of some mechanism to ensure the House’s supremacy, but until such a thing exists, it is likely worth going back to one of the questions Alice Funke suggested for debate in the NDP leadership campaign.

How will a federal NDP government face what will almost certainly be its first constitutional crisis, namely a showdown with the Senate? 

So far as I’ve seen, only Brian Topp has engaged this scenario.

(Via Twitter, a couple of readers suggest Senator Kenny is referring specifically to money bills. He may well be, although in the next paragraph after the one noted above he seems to refer only to “legislation.” Either way, I think the point still stands: It is worth wondering how a Conservative Senate would interact with an NDP government and how would the presence of elected senators impact that situation, especially given the willingness of a Conservative Senate to override the House in recent years.)

The Commons: Lise St. Denis’ day

By Aaron Wherry - Tuesday, January 10, 2012 at 1:06 PM - 0 Comments

“This decision,” she explained at the outset, “has been made serenely.”

And so Lise St. Denis, dressed here in black and white, elected as a New Democrat some eight months ago, slipped from one party to the other. To her left sat Denis Coderre, beaming. To her right, Bob Rae listened intently. Both men had helped her with her chair when she arrived at the table. When she finished, the interim Liberal leader patted her on the back. She and they seemed reasonably happy with this little moment.

However serene the undertaking, however justifiable this business of euphemistically crossing the proverbial floor, it was not so easily explained. Continue…

Topp on democratic reform

By Aaron Wherry - Tuesday, January 10, 2012 at 9:30 AM - 0 Comments

Brian Topp’s latest policy paper covers democratic and parliamentary reform, including a move to mixed-member proportional representation, limits on the prime minister’s ability to prorogue Parliament and the Senate.

I propose that our party ask for a mandate in the next election to abolish the Senate. I then propose that an Act be introduced early in the life of the next Parliament amending the constitution to do so.

The urgency with which this matter is then pursued with provinces (who will have to consent to this modernization, which was adopted in all provincial legislatures long ago) should then depend on the conduct of the Senate during the next Parliament. If the Senate provokes a constitutional crisis by blocking a budget or other important legislation, Senate abolition should be pursued as an immediate and urgent priority. If the Senate returns to its traditional role and subordinates itself to the House of Commons, then the matter can be pursued more deliberately over the course of the next Parliament.

Keep the Senate secondary

By Aaron Wherry - Monday, January 9, 2012 at 2:59 PM - 0 Comments

Kathryn Blaze Carlson’s consideration of an elected Senate includes an intriguing anecdote from Senator Bert Brown.

Mr. Brown recalls how he and Mr. Harper discussed at Caesar’s how a reformed, elected Senate and an unchanged House of Commons might interact: A Senate with newfound democratic legitimacy might rival the House in ways never before seen, and both men knew there was nothing in the Constitution preventing a deadlock or even a Senate-sparked government shut-down.

The prime minister asked Mr. Brown to come up with a mechanism that would protect the supremacy of the House of Commons. But that safeguard would require the sort of stand-alone constitutional amendment Mr. Harper knows would be a nightmare to attempt.

This begs various questions: Is the government going to act to protect the supremacy of the House of Commons? If so, how? And if the Senate is to remain secondary, why not just abolish it?

See the politician run

By Aaron Wherry - Monday, January 9, 2012 at 2:11 PM - 0 Comments

From the latest issue of the print edition, 1300 words or so on the permanent campaign that is our politics (including a bit about something the NDP has been up to that I don’t believe has been reported elsewhere).

Consider one of the otherwise inconsequential portions of the parliamentary day—the time allotted for “statements by members.” These 15 minutes immediately before question period are generally reserved for the recognition of favourite causes, honoured constituents and notable world events, but in recent years this time has also allowed for free political advertising. Faced with a Liberal opposition, the Conservatives took regular pleasure in using those 15 minutes to mock Stéphane Dion and Michael Ignatieff. After barely two weeks of relative quiet this spring, the Harper government duly turned on the NDP—backbencher David Wilks stood up on June 15, nine sitting days into the new Parliament, to decry the dangerous policies of the “radical hard left NDPers.” Five days later, Conservative Blake Richards ventured that the NDP was “not fit to govern.” “With its high tax plan, the NDP is not fit to govern or to lead Canada through the fragile global economic recovery,” Richards informed the House. That particular phrase—and its cousin “unfit to govern”—have since been committed to Hansard, during members’ statements, question period and otherwise, a total of 37 times.

This is the embodiment of the permanent campaign—a constant, unrelenting and tireless approach to politics. And it is this idea of the never-ending election that now dominates Ottawa. What might have previously been dismissed as an unfortunate side effect of minority Parliament is now foundational to modern Canadian politics. The practice–in discourse and tactics alike–prevails even after the obvious political necessity is gone.

Why does this matter? Good question. Continue…

No rush

By Aaron Wherry - Thursday, December 8, 2011 at 10:36 AM - 0 Comments

While the omnibus crime bill was rushed through the House so fast even the Public Safety Minister couldn’t keep up, the Conservative-controlled Senate will now take its time before passing it.

“The commitment that the government made was to pass the crime bill within 100 sitting days,” LeBreton said. “It’s sometime in mid-March. ”We fully expect it will be debated in the Senate, and will go to committee, legal and constitutional affairs, and it will be there I expect for quite some time.”

Revolution by referendum

By Aaron Wherry - Wednesday, November 30, 2011 at 2:30 PM - 0 Comments

Nathan Cullen puts democratic reform on the agenda.

As Prime Minister, Nathan Cullen would: Work to improve how our democracy reflects the will of voters, by making voting reform a priority.  Proportional representation is already used in more than 75 democracies around the world, putting Canada in the minority.

Hold a national referendum on voting reform, asking Canadians if they a) want to change the voting system; and b) which new model they prefer.  Nathan supports mixed-member proportional representation based on the German, Scottish and New Zealand models, which: Ensures every riding has a local MP, elected as they currently are, while ensuring the total composition of the House reflects each party’s share of the national vote; Avoids instability and fragmentation by requiring parties receive broad support—five per cent—before being awarded proportional seats.

Also: abolish the Senate, restore public financing for political parties and hold a plebiscite on the monarchy.

That’s what the Senate is for

By Aaron Wherry - Wednesday, November 30, 2011 at 12:06 PM - 0 Comments

Responding yesterday during QP to complaints about the Immigration and Refugee Board, Jason Kenney sought the high road.

No, Mr. Speaker, they are not. In fact, I am aware of I think 2 out of 140 who have any association with the Conservative Party, unlike the Liberals who appointed the spouses of members of Parliament, the spouses of Liberal senators and failed campaign managers. The Liberals used the IRB as a partisan dumping ground. We have respected its role as an independent, quasi-judicial organization.

Conservative Senator Doug Finley is both the spouse of an MP and a former campaign manager. And he is joined in that independent, quasi-democratic institution by a former president of the Conservative party, a former spokeswoman for the Prime Minister, a former chair of Conservative party fundraising, failed Conservative MPs Josee Verner and Fabian Manning, and failed Conservative candidates Larry Smith and Yonah Martin.

Beaver, be gone

By Anne Kingston - Friday, October 28, 2011 at 6:00 PM - 0 Comments

Rick Harris/Flickr

Yesterday, the Canadian Senate took a page from HGTV as Conservative Sen. Nicole Eaton puckishly launched a national “emblem makeover” campaign to replace the industrious, homely beaver with the “majestic and splendid” polar bear as “Canada’s symbol for the 21st century.”

At first glance, the scheme appeared a masterstroke, given concerns over the polar bear’s looming extinction. What better way of squarely facing the ravages of global warming? Sen. Eaton’s gesture even appeared a bold jab at the government that appointed her—one whose record addressing climate-change is an international joke.

Continue…

A muddled Senate

By Aaron Wherry - Friday, October 7, 2011 at 2:16 PM - 15 Comments

Jeff Jedras notes Stephane Dion’s continued dissection of the Harper government’s Senate reforms, including the exclusion of federal parties from the proposed process. Meanwhile, an informal poll of academics in Alberta and British Columbia finds overwhelming opposition.

Professors contacted in the two provinces agreed by more than a 3-1 margin with the proposition that the reforms, aimed at ensuring senators are elected and limited to nine-year terms, are against their provinces’ interests. The legislation, being debated this week in the House of Commons, “scares me, to be honest,” said University of Calgary political scientist Tom Flanagan, a former senior Harper adviser.

John Geddes considers the massive questions left unanswered.

A Senate if we must, but must we have a Senate?

By Aaron Wherry - Tuesday, July 12, 2011 at 12:37 PM - 6 Comments

It is obviously noteworthy that the Canadian public largely supports Stephen Harper’s proposed reforms to the Senate, but when the options are put side-by-side, the Canadian public is still relatively split.

Which of these statements comes closest to your own point of view?

Canada does not need a Senate, all legislation should be reviewed and authorized by the House of Commons 36%
Canada needs a Senate, but Canadians should be allowed to take part in the process to choose senators 40%
Canada needs a Senate, and the current guidelines that call for appointed senators should not be modified 5%
Not sure 19%

For that matter, as many Canadians support Stephen Harper’s calls for term limits and elections (70% and 72%) as support Jack Layton’s call for a national referendum (71%).

Our upper house of ill repute

By Andrew Coyne - Monday, July 4, 2011 at 9:30 AM - 40 Comments

Sean Kilpatrick/CP

The Senate is Confederation’s original sin, the great stain on the fathers’ handiwork, from which much greater evils have flowed. Structurally, it has contributed to the divisions and weaknesses that have bedevilled the federation. Without some constitutionally appropriate vehicle for expressing the concerns of the regions in federal politics, it has been left to the premiers, inappropriately, to do the job.

Worse, however, has been its corrosive effects, compounded over time, on our political ethics. It is of course intolerable that a free people should be governed, even in part, by those to whom they did not expressly grant such power. That would be true even if the Senate were filled with Solomons, and not the bizarre cargo of bagmen, strategists, failed candidates, criminals, cranks and other political problems that prime ministers have traditionally solved by the expedient of the Other Place.

Yes, some senators do good work. Committees of the Senate often produce thoughtful reports. But they have no more democratic right to translate their views into law, to move, amend, pass or reject bills and otherwise exercise the powers of legislators than I do. Though by convention the Senate’s powers are less than they appear on paper, they are still more than any patronage house should rightfully have, and have been exceeded on more than one occasion.

Continue…

Original sin

By Aaron Wherry - Wednesday, June 29, 2011 at 3:09 PM - 61 Comments

JJ McCullough blames the founding fathers for the Senate.

Canada is a living example of why constitution-writing is not a task to be taken lightly. The Harper government’s current efforts to carve a workable second chamber from the breathtakingly incompetent mess that the Fathers of Confederation devised nearly a century-and-a-half ago is a testament to just how intellectually uncurious and uncreative many of our nation’s supremely overrated founders were. Indeed, the entire Senate reform exercise really highlights the degree to which “Canada,” as a whole, is a fundamentally ungovernable creation under any political system except the uninspiring status quo. A country that cannot reform even its most universally reviled institution (only 5% of Canadians like the Senate as-is) is not a country that’s built on solid foundations.

Just say no, for various reasons

By Aaron Wherry - Tuesday, June 28, 2011 at 1:39 PM - 58 Comments

Stephane Dion explains why Alberta and British Columbia should rejected the Senate Reform Act.

This unbalanced distribution of Senate seats -a historical artifact -is a problem for the two western provinces and an anomaly of our federation; Stephen Harper’s reform would make the situation much worse. In the existing unelected Senate, this problem is mitigated by the fact that our senators play their constitutional role with moderation, letting the elected House of Commons have the final word most of the time. But in an elected Senate, with members able to invoke as much democratic legitimacy as their House counterparts -if not more, since they would represent provinces rather than ridings -the underrepresentation of British Columbia and Alberta would take its full scope and significance.

The case for leaving as is

By Aaron Wherry - Monday, June 27, 2011 at 1:15 PM - 0 Comments

Matthew P. Harrington argues against the currently proposed Senate reforms.

At present, the Senate is regarded as a deferential body, confining itself largely to amending or revising legislation passed by the Commons, largely because senators lack democratic legitimacy.

Once members of the Senate are themselves elected, however, there is little justification for their continued deference to the House. After all, a senator elected by an entire province arguably has a stronger mandate to govern than members of the Commons, who are sent to Ottawa by relatively small segments of the electorate. This would create increased opportunity for gridlock as members of the Senate and Commons disagree over legislation.

Saskatchewan Premier Brad Wall wonders about party discipline in an elected Senate. B.C. Premier Christy Clark says the Senate should be abolished, but if not, her province will need more seats.

This is the week that was

By Aaron Wherry - Sunday, June 26, 2011 at 4:18 PM - 0 Comments

The Conservatives were bashful. And mysterious. And succinct.

The House talked and talked and talked and talked and talked about sending Canada Post employees back to work. And then it stopped.

The government tabled the Afghan detainee documents. Which you can read more about here, here, here, here, here, here, here and here. Continue…

Idea alert

By Aaron Wherry - Wednesday, June 22, 2011 at 12:03 PM - 0 Comments

The NDP’s Pat Martin wants to defund the Senate.

In the midst of a growing debate about the effectiveness of Canada’s Senate, New Democrat MP Pat Martin has moved that the nearly $60,000,000 in Senate program spending included in the budget’s Main Estimates to be voted on tonight be rejected. … “We might not be able to abolish the Senate without a constitutional amendment, but we can cut off its blood supply,” said Martin. “I’m sure Canadians would agree that this $59,490,350 could be put to better use than to offset the limited value of an unaccountable, unnecessary Senate.”

The reform party

By Aaron Wherry - Wednesday, June 22, 2011 at 10:40 AM - 35 Comments

Through Tim Harper, Progressive Consevative senator Lowell Murray explains his concerns with the current style of Senate reform.

Many otherwise productive senators of a certain age would likely do what he might have done, turn down a job that has only a nine-year lifespan, meaning he or she would have to search new work in their 50s. There would be the obvious tension of elected members working alongside appointed members, and, he says, the Senate becomes the elite body.

An Ontario senator would be elected province-wide and he or she would have a stronger mandate from more voters for a longer period of time than an MP from the province. Such province-wide votes would also be biased against northern and rural representatives and would favour candidates from large urban centres home to large media. It could also lead to U.S.-style gridlock.

Meanwhile, the Ontario government is thinking about joining a legal challenge.

That Senate reform bill: alive in the water

By Colby Cosh - Wednesday, June 22, 2011 at 5:25 AM - 0 Comments

In a recent dead-tree Maclean’s I gave a little preview of the constitutional issues that the government’s piecemeal Senate reform effort, now launched, will raise if it is brought before a court. Readers may not be aware that the nature of Senate elections was discussed very recently in the Senate itself—in March, when a Senatorial Selection Act (S-8) was briefly debated there. The provisions of that bill have now been incorporated into a schedule to House of Commons Bill C-7.

Today’s Star has a piece from Susan Delacourt in which scholarly all-rounder Ned Franks calls Senate elections “dead in the water” and “sure to get shot down by the Supreme Court”. I don’t want to call this a misrepresentation of the expert consensus, nor to challenge the stature of Ned Franks, but it seems to me that few other opponents of Senate elections are as confident as these quotes suggest. As I wrote, it is not clear exactly how much change Parliament is free to make to constitutional arrangements by statute alone. The Constitution Act text says that the 7/50 amending formula has to be followed before “the powers of the Senate and the method of selecting Senators” are changed. But under C-7, Senators are explicitly still appointed by the Governor-General as before. (“Senators to be appointed for a province or territory should be chosen from a list of Senate nominees submitted by the government of the province or territory.”)

Indeed, the flow of moral force through the text of the bill shows amusing evidence of judiciary-proofing. Look at section 2 of C-7:

2. The framework in the schedule sets out a basis for the selection of Senate nominees.

Key phrase, for the purpose of a future court test: “Senate nominees”, as opposed to Senators. The message to the courts is that we are not creating a formally elected Senate, but merely a means of bringing “nominees” to the attention of the Prime Minister. It’s an important distinction, also observed in s.3 of the bill:

3. If a province or territory has enacted legislation that is substantially in accordance with the framework set out in the schedule, the Prime Minister, in recommending Senate nominees to the Governor General, must consider names from the most current list of Senate nominees selected for that province or territory.

Key phrase: “must consider”, as opposed to “must accept” or “must recommend”. The bill is carefully keeping its toes within the boundaries set out by Peter Hogg in a discussion of a still earlier, failed Conservative reform bill:

…right now the Prime Minister could, if he wished, commission an informal poll as to the wishes of the electorate with respect to an appointment from a particular province. The Prime Minister could right now, and in fact has done, respect the choice of the electorate expressed in a provincial election, as we know has been done in respect of appointments from Alberta, where those elections have been held.

So all Bill C-20 does is make a formal consultation process available to the Prime Minister, should he choose to take advantage of it. As you will know, the Prime Minister does not need to take advantage of the consultation process if he doesn’t want to; the bill leaves that as a matter of discretion in the Governor in Council. If the Prime Minister does order the formal consultation process to take place, he does not have to respect the results in making recommendations for appointments.

I fully recognize… obviously a court would recognize that after Parliament has established the complicated process proposed by Bill C-20, no Prime Minister is likely to continue to make appointments in the old way. But I say that is a truth of politics, not a truth of law.

As crafty as those concluding words sound, I do not see how Hogg’s logic is assailable. I’m not an advocate of Senate elections per se. But Franks-style constitutional opposition to Senate reform requires acceptance of an absurdity: that otherwise qualified candidates for the upper house somehow become morally ineligible if they happen to have won a vote. The Constitution can and does stop people from entering the Senate solely by virtue of election. I don’t see how it can thwart a scheme for holding advisory elections that are binding only by virtue of the common regard in which we hold procedurally fair expressions of democratic sentiment.

A non-binding, voluntary basis for encouragement to consider fundamental change

By Aaron Wherry - Tuesday, June 21, 2011 at 12:07 PM - 66 Comments

The government has now tabled its Senate Reform Act.

It would not require provinces and territories to implement consultation processes but would strongly encourage them to do so. It also demonstrates support for those provinces that have already undertaken legislation to establish such democratic processes. 

The Act includes a voluntary schedule, based on Alberta’s Senatorial Selection Act, which would set out a basis for provinces to enact democratic processes. 

The Act would not be binding on the Prime Minister or the Governor General when making appointments to the Senate.  However, it would require the Prime Minister to consider the recommended names from a list of elected Senate nominees when recommending Senate appointments. 

Ottawa hints at abolishing Senate if reform doesn't pass

By macleans.ca - Monday, June 20, 2011 at 11:36 AM - 16 Comments

Immigration Minister Jason Kenney says Stephen Harper could choose a more confrontational path if senators don’t come around to Conservative proposals to reform the upper chamber. The Harper government has advocated imposing term limits on senators and subjecting them to elections, and is expected to put forward a bill to reform the Senate this week. However, senators, even those appointed by Harper, have expressed reservations about the proposed changes. With the spat between the federal government and senators taking place in full public view, Kenney is now reminding senators “we are prepared to entertain more dramatic options.”

The Globe and Mail

This is the week that was

By Aaron Wherry - Saturday, June 18, 2011 at 1:17 PM - 12 Comments

The House debated Libya and the meaning of regime change. The opposition demanded to hear from the President of the Treasury Board. Charlie Angus mocked Tony Clement. Then mocked him again. And again.

Jack Layton took his place in Twitter history. A former Liberal MP worried that Parliament wasn’t serving Canadians well. Ruth Ellen Brosseau was applauded. Elizabeth May dissented. Mr. Clement looked on the bright side and clarified what he meant by “anachronistic” and dismissed what he’d said about user fees. The ethics commissioner suggested a code of conduct for MPs. Peter Stoffer proposed a ban on floor crossing. The youngest MP in history made his maiden remarks. Continue…

Sober second thoughts

By Aaron Wherry - Thursday, June 16, 2011 at 9:15 AM - 9 Comments

Senators appointed by Stephen Harper with the expressed purpose of pushing through his reforms apparently aren’t entirely supportive of his proposals. And so Bert Brown, the nominally elected senator, steps in to remind his caucus mates to whom they should be absolutely loyal.

“Those of us who came to the red chamber were there to get a majority vote for reform. Those in the Senate before Harper became prime minister need to realize that, had he not made appointments, the Conservatives appointed by Mulroney would now be a very small group struggling to do anything!” Brown wrote in an email to all Conservative senators.

“Every senator in this caucus needs to decide where their loyalty should be and must be. The answer is simple; our loyalty is to the man who brought us here, the man who has wanted Senate reform since he entered politics, the Rt. Hon. Stephen Harper,” Brown wrote.

To reform the Senate: Why term limits?

By Andrew Potter - Wednesday, June 15, 2011 at 3:36 PM - 35 Comments

Let’s set aside, for now, the inherent ridiculousness of Bert Brown chiding fellow Conservative members of the Senate — intended as a chamber of sober second thought, and at least nominally a check on the House of Commons — for their lack of loyalty to the prime minister.  Here’s something I’ve never really understood about Harper’s bid to implement a term limit of eight (now nine) years for appointed Senators:

What problem with how the Senate is currently constituted and functions is this designed to solve?