Brian Lee CrowleyCanadians are right to be frustrated with the latest news of Senators abusing public funds, but that shouldn’t blind us to the important work the Senate can and should be doing.

Macdonald-Laurier Institute Managing Director Brian Lee Crowley, writing in the National Post, weighs in on how to give Canadians the Upper Chamber our democracy needs.

By Brian Lee Crowley, June 11, 2015

The Senate today is not only politically and constitutionally ineffective, it has also become an embarrassment and a laughing stock, in large part because few know what the Senate is for and the way senators get there is widely seen to be illegitimate. The result is that we focus entirely too much on the peccadilloes (and expenses) of current senators whose shenanigans, however risible, should not blind us to the vital work the Senate can and indeed must do for Canadians.

Canada needs a Senate and our Senate needs to be fixed. Here’s how.

When properly designed, upper chambers can and should do two crucial things. First, they can delay precipitate action by government, allowing more time for cooler heads to prevail. In extreme circumstances, it may even be justified to give an upper house a way to veto some kinds of government action. The idea here is, to use a phrase often applied to the Canadian Senate, a chamber of “sober second thought.”

Second, in federal systems, upper chambers confer greater democratic legitimacy on national decisions by ensuring that a double majority is needed — one majority of individuals represented in the lower house and a second majority of constitutionally recognized communities (in Canada’s case, the provinces) in the upper house.

The Fathers of Confederation created the Senate to play these two roles. The way they chose to do so (an appointed chamber and lifetime tenure for Senators, later amended to retirement at age 75) is no longer appropriate to our democratic and egalitarian age, but abolishing the Senate to get rid of these flaws is like banning hockey to prevent fights on the ice.

The Senate cannot be replaced by the premiers. Premiers are elected to head provincial governments that don’t have the constitutional powers to participate in Ottawa’s decisions about national interests. In fact, the Constitution explicitly says that provincial governments should look after “Generally all matters of a merely local or private Nature in the Province”; Ottawa’s job is to see to the “Peace, Order and Good Government of Canada.” Not exactly equivalent roles.

The premiers have an interest in strengthening provincial power and weakening Ottawa because those are two sides of the same coin. They are thus hardly qualified to be the representatives of their province’s interests in national policy making, for which we require a Senate.

In reforming the Senate, we should be guided by five principles:

An appointed Senate cannot have the democratic horsepower to do its job effectively. Twenty-first century senators require the legitimacy only elections can confer.

Second, we need a Senate powerful enough to influence the government when it really matters, but not so powerful that it becomes the government or prevents the government from acting when necessary.

Third, the Senate should not be merely a smaller House of Commons. The Senate is a separate institution and should have a different mandate, powers, electoral system and terms of office than the lower house.

Fourth, we need to ensure the Senate focuses on national issues and questions, and cannot therefore represent the provincial governments in Ottawa. For the Senate to be valuable, it must be a voice for the citizens of each province, not of the provincial governments.

Fifth, the distribution of Senate seats needs to move as close as we can get to equal representation of the provinces. We won’t get all the way there for reasons I’ll get to below, but we can do better than where we are today.

The reformed upper house would have to have two key powers relative to the Commons and the government based there — namely, the power to delay somewhat government legislation it thinks ill-advised and the power to veto such legislation when opposition in the Senate moves beyond narrow partisan majorities to genuine cross-party consensus. All of these features taken together would make for a more deliberative, less partisan chamber than the Commons.

Can we get it done?

The government is surely correct that there is little appetite among the public for new constitutional negotiations à la Meech and Charlottetown. On the other hand, real Senate reform (which voters clearly want) requires constitutional change. How to square the circle? Ottawa should bypass the bad old approach to constitutional negotiations by tabling a specific reform proposal and appealing directly to the electorate for a referendum mandate to enact its proposals.

Given the current public mood, a thoughtful proposal properly explained and defended would likely be enthusiastically endorsed by voters. The provinces, faced with a federal proposal endorsed in a national referendum, would find it very hard to resist. If, in addition, the proposal was crafted to avoid any provisions requiring the unanimous consent of the provinces (and this “no veto” requirement may rule out an equal distribution of Senate seats among the provinces, although we could get closer than we are today), the chances of getting the reforms through the formal amendment process increase dramatically. Put the people first and the provinces will follow.

Senate reform cannot be a hasty reaction to the scandal du jour. It will require careful deliberation and hard work, not an orgy of federal-provincial horse trading, but then a serious country deserves serious institutions. The ultimate prize of an effective and accountable Senate that will serve all Canadians is worth it.

Brian Lee Crowley is managing director of the Macdonald-Laurier Institute: His 2013 paper on Senate reform is available here.

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