Public Choice Theory and Lords Reform

While preparing my partial study, Reform of the Senate of Canada: A Progressive Conservative Perspective, it struck me how amenable public choice theory is for Anglo-Canadian proponents of appointed upper chambers. This appeared to be an unexplored avenue well-worth following up, and the result is House of Lords reform: lessons from public choice theory.

Public choice — the application of economics to politics — has two main principles:

First, it argues that we are all motivated primarily by self-interest, whether in our private or public personas. An elected upper chamber, therefore, will not automatically be more selflessly devoted to the commonweal than an appointed chamber — indeed, on this point, who can fault the existing body? — and, given the incentives to solicit votes by offering electoral inducements, may be an even worse example of institutional democracy.

Second, in acknowledging the fact that markets are imperfect, public choice teaches that the answer is not necessarily to be found in the State: that ‘government failure’ is a more intractable problem than its market counterpart. Elected upper chambers, therefore, are no panacea for what ails us politically. In fact, they are probably a far worse option than the appointed chambers in the Westminster parliamentary tradition, especially for those who favour limited government and fear ever-more State intrusion into personal liberty.

(It puzzles me why libertarians disproportionately advocate for an elected upper chamber, unless, as anarcho-capitalists, they mischievously wish to undermine the political process through a ‘scorched-earth-policy’ approach, where the legislative work in both lower and upper houses grinds to a halt through deadlock.

Significant, too, is the tension between utilitarian, majoritarian democracy versus deontological questions of natural rights, to which more government will contribute and which libertarians — theoretically at least — should oppose in the name of freedom.)

I apply these public choice principles to the composition of the House of Lords, in my blog column for the British think-tank Institute of Economic Affairs. My thanks to Richard Wellings and Philip Booth for their assistance. An in-depth analysis will be published in Economic Affairs this autumn.

Click here for my full argument.

Senate Reform: The Conservative Approach

With the May election of a majority Conservative government in Ottawa, I knew that the question of Senate reform — particularly, if the past is any guide, of introducing elected senators and term limits — would once more be on the political agenda, this time with more force than in the previous minority parliaments.

The Canadian Government has asked the provinces to weigh-in, notably with respect to establishing electoral mechanisms for Senate elections. Anticipating the response from Atlantic Canada, I wrote a ‘partial study’ as a quick guide: Reform of the Senate of Canada: A Progressive Conservative Perspective.

The study has four main sections:

• Progressive Conservatism and the Red Chamber
  
• Reasons to Favour the Appointed Chamber
  
• What Role for the Provinces?
  
• Some Modest Proposals for Senate Reform

There is an overview of the progressive conservative philosophy and how it relates to the Canadian Senate, along with arguments in favour of appointed Upper Chambers, as well as some of the unintended consequences of the elective option. The provincial context comes next — especially as laid down by the Fathers of Confederation — followed with a few ideas on making the Red Chamber an even more invaluable institution in the Parliament of Canada.

Though my study is addressed primarily to the Progressive Conservative parties of Atlantic Canada — and internet links were forwarded to each of the four parties — I hope that my personal defence will find widespread appeal from sympathetic Senate supporters across Canada.

My arguments on behalf of the Senate are by no means unique — and may be considered by some to be strangely idiosyncratic (particularly my perspective on the role of the provinces) — but one novel aspect that may entice is the attempt to defend the appointed Red Chamber by specifically conservative principles, especially when it has been Canadian Conservatives (comprising former Progressive Conservatives and members of the Canadian Alliance) who have been at the 21st-century vanguard for an elected Senate.

This study was written in some haste, as my intention was to provide a wide-ranging sketch lauding the Red Chamber, before its Conservative critics in Atlantic Canada dominated the field — hoping that my slight contribution might have some positive effect.

If the response is favourable, a more complete examination is planned for the autumn; meanwhile, I welcome your contributions, feedback, and constructive criticism.

Huzzah for Canada’s appointed, unique, and still fit-for-purpose Red Chamber!

Whither the Canadian Senate after the Federal Election?

The sleeper issue in this federal election? Why, reform of the Senate of Canada, of course!

I jest, although it does tell you something about its constitutional importance that, when fabricating a wedge issue, the Harper Conservatives harp on the Red Chamber’s supposed institutional failure. Yet, during an election campaign, when pressing national issues are discussed and debated, the relative strengths and weaknesses of political party programmes weighed in the balance, there is general silence concerning the future rôle of the Canadian Senate.

A cursory examination of the three main parties’ platforms reveals what one would expect:

The governing Conservative Party recycles its message from elections past:

• re-introduce and pass legislation setting term limits for senators;


• continue to encourage the provinces to work with us to establish a democratic process for selecting senators;


• appoint those who are selected through democratic processes; and


• in provinces that do not take us up on our offer, we will fill Senate vacancies with individuals who support our Senate reform goals, including our goal of an elected Senate. (see pages 62-63)

Apart from its patronising tone and the effrontery of speaking of the ‘Stephen Harper Government’ — it’s ‘Her Majesty’s Government’, thank you very much! — throughout the document, this approach to understanding the Senate is decidedly ‘un-conservative’. As Sir John A. Macdonald argued during the Confederation debates in the legislature of the United Province of Canada:

There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatever were it a mere chamber for registering the decrees of the Lower House. It must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people. ¹

Macdonald’s views on the Senate can be usefully augmented by reference to his amanuensis and early biographer, Sir Joseph Pope:

It is true that, at an early period of his career, he favoured an elective Upper House, but eight years’ experience of this system was sufficient to change his views, and to convert him into a firm upholder of the nominative principle. Every year since Confederation strengthened the conviction of his matured judgment, and showed him more and more clearly the advantages of the nominative over the elective system. To his mind the chief among the objections to a Senate chosen by the popular vote, was the ever-present danger of its members claiming the right to deal with money Bills, and the consequent possibility of disputes with the House of Commons. The proposal that the provincial legislatures, whose members are elected for purely local purposes, should choose the senators to legislate on matters of general concern, was also objectionable, being opposed to the spirit of the constitution, which confined the local assemblies to a strictly limited sphere of action. He held that the system unanimously agreed to at the Quebec Conference had worked well, and should be undisturbed. A senatorship, in his opinion, was an important and dignified office, and a worthy object of ambition to any Canadian.²

No more need be written in comparing the principled Tory philosophy of yesteryear with its craven contemporary.

The New Democratic Party, meanwhile, stands by its pledge to abolish the Upper Chamber:

• We will propose the abolition of the Senate. All Canadian provincial legislatures have done this many years ago, abolishing their un-elected second chambers to the benefit of democracy.


• In the meantime, to limit Senate abuses, we will bar failed candidates and party insiders from being appointed to the Senate, and ban senators from fundraising for political parties. (page 23)

The provincial example has serious problems. While the Dominion Parliament is responsible for national issues that may not be the daily bread of the average voter, the provincial legislatures — as they pressed during the Confederation debates — are responsible for local issues that regularly affect their constituents. It may be assumed, therefore, by applying the principle of subsidiarity, that the provinces will receive far more popular scrutiny than the national government, and so in the latter case additional oversight is prudent. To take an American example, James Madison wrote in The Federalist, No. 46:

...the first and most natural attachment of the people, will be to the governments of their respective states. Into the administration of these, a greater number of individuals will expect to rise. From the gift of these, a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant: and with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments. On the side of these, therefore, the popular bias may well be expected most strongly to incline.³

As to the NDP’s second recommendation, it neglects to look at the quality of Senate appointees, but tars them at the outset as partisan hacks; though the second proposal to ban them from fundraising functions may have some merit.

Curiously, the Liberal Party platform is silent on specific Senate reform. Take it as you will; friends of the Senate, however, should be wary of interpreting it as tacit support, for Liberals would doubtless generate reforms ad nauseam were they to garner an electoral advantage.

So, the Red Chamber does not take precedence in the Canadian psyche of hot-button issues; that is reserved for the sputtering economy, the growing deficit and debt, and the uncertain provision of universal healthcare — with a dollop of Québec sovereignty and national unity thrown in for good measure.

Perhaps this sleeping dog should not be disturbed but, throwing caution to the wind, allow me to summarise quickly why the Senate reform that has marked this debate in the past — either for abolition or for elected senators — is bad for the Dominion of Canada.

First, to address the question of abolition: As G.K. Chesterton once opined about the papacy, if the Senate of Canada didn’t exist, it would have to be invented. I refer, of course, to the Senate’s most widely accepted virtue, that of serving as a chamber of sober second thought. Everyone admits — privately, if not publicly — that the House of Commons does a poor job of vetting legislation. It is a partisan chamber where too often rhetorical enthusiasm overtakes reasoned discourse.

In addition, due to a plethora of legislative initiatives and truncated working days (can anyone say ‘prorogation of Parliament’?), the House has too much work for too few days (not that limiting MPs’ time on Parliament Hill is necessarily a bad thing, but that’s a different story). If there were no Senate, you can be sure that think tanks would be busying themselves devising structures and procedures &c. wherein prospective legislation would be scrutinised by disinterested experts for the national benefit. Fortunately, such a body already exists.

Now as to the Senate’s method of composition, an appointed versus an elected model. Canadians already benefit from the latter option, and it’s called the House of Commons. Were an elected system to be introduced into the Upper House, we would at best be duplicating an existing legislative function, without introducing an element of uniqueness — that is to say, of ‘shaking up the system’ — to our Parliamentary system. As Benjamin Disraeli observed, ‘Assuredly I cannot understand how an efficient senate is to be secured by merely instituting another elective chamber, the members of which, being the deputies of their constituents, must be the echo of the Lower House’.⁴

Worse, an elected Senate would encourage several bad things: Popularly chosen senators would challenge the accountability of the Lower House. Under current constitutional arrangements, their limited numbers vis-à-vis MPs would mean that their electoral legitimacy could possibly be greater, as they would represent far more constituents than their Commons counterparts: Ontario’s 24 senators versus its 106 MPs, for instance. The prospects for gridlock are even more ominous when considering the Senate’s shared coterminous powers with the Commons, an equality of legislative authority (save for the introduction of money bills). Partisanship would also undoubted rise.

Another disincentive of a photo-copy Senate is in the make-up of its members themselves. The ideal chamber is a body of appointed men and women who bring a wealth of expertise and life experience to the legislative process, most of whom would never have chosen otherwise to enter political life. Plurality thus becomes an option for the Senate that is introduced in the House by truncating the liberty of voter intention (either through closed nomination processes or quotas).

It has been suggested that senatorial provisions be the purview of the provinces (as the Conservatives have done), as in the American model. But this suggestion goes against the very spirit of Confederation, as Macdonald noted. The U.S. Constitution provided for state appointments because the states were sovereign entities, and their appointment of senators to Washington cemented their unique ‘confederated’ agreement.⁵ This sovereignty also accounts for the equal number of state representation in the Senate — the lopsidedness of which was redressed by the rep-by-pop requirements of the House of Representatives, addressed in The Federalist.⁶ This is one of the more egregious errors of Canada’s Triple-E Senate campaign: with Prince Edward Island enjoying equal stature with Ontario in the Red Chamber.

In passing, let it not be thought that I am a sanguine supporter of the existing Senate status quo and refuse to entertain the notion of reform. There are two easy improvements that I heartily endorse, which do not entail the thorny issue of constitutional amendment. They do involve the exercise of prime ministerial integrity, and so are at the whim of political character.

The first measure I would propose is for the age of appointment to be raised in practice. A current criticism is that the maximum duration of appointment could be as long as forty-five years, under the legal parameters of summons at thirty years of age and mandatory retirement at seventy-five. For reformers who clamour for limited terms, this must be galling indeed. The original terms were set when life expectancy was much shorter, and the emphasis on expertise and experience not so great (‘property ownership’ being the key criterion). Let the prime minister use his prerogative, then, and recommend for appointment worthy men and women of no less than fifty years of age, as an example. Most will have reached the apex of their professional careers and will welcome a period of disinterested public service.

The second measure proposed will probably find widespread approval, too, but because it touches upon the very partisan nature of Canadian politics, may be more difficult to enact. It is for the appointment of Canadians who will add value to the revising abilities of the Senate and not according to party affiliation; who will bring more to the Red Chamber than a party membership, but will be conspicuous for a plethora of talents to be a potent force in legislative scrutiny and public policy development. Yet, almost from the institution’s birth, it has been a sinecure for political fixers and bagmen, a place for the prime minister to repay past party devotion with future acquiescence to party needs. This must stop.

So, whither the Senate of Canada? Its foundation is strong and its structure still ‘fit for purpose’. But it will remain so only if the public appreciates its constitutional responsibilities in Parliament and charge their representatives with its ongoing care and to maintain its relevance.

The Red Chamber remains an important guarantor of the people’s liberties; in turn, Canadians must defend its ability to be an independent voice for the commonweal.

See Advocacy for Appointed Upper Chambers (pdf file) for more information.

ENDNOTES

1. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, 3rd Session, 8th Provincial Parliament of Canada (Quebec: Hunter, Rose & Co., 1865), 36.

2. Joseph Pope, Memoirs of the Right Honourable Sir John Alexander Macdonald, Volume II (Ottawa: J. Durie & Son, 1894), 235.

3. Alexander Hamilton, John Jay, and James Madison, The Federalist, The Gideon Edition, G.W. Carey and James McClellan, eds. (Indianapolis: Liberty Fund, 2001), 243.

4. Benjamin Disraeli, ‘Vindication of the English Constitution’, in Whigs and Whiggism: Political Writings, William Hutcheon, ed. (New York: Macmillan, 1914), 196.

5. See The Federalist, No. 43, 228.

6. See The Federalist; e.g., No. 58, 300-05.

The Conflicting Legacy of Sir John A. Macdonald

To-day, 11th January, conservatives in Canada celebrate the birthday of Sir John Alexander Macdonald (1815): principal author of the British North America Act, first Dominion prime minister, and enduring role model of Anglo-Canadian Toryism.

Yet while the general outlines of Macdonald’s legacy is clear, specific beliefs are less certain in the popular mind, particularly when it comes to charting a contemporary course. Thus he has been made the exemplar for every ideological and mutually exclusive position. Poor Sir John A! If he could find his way to a bar—or a bottle—in his present capacity, surely no angelic observer (I refuse to countenance the alternative!) would begrudge him.

With the merger of the Reform-Alliance and the Progressive Conservative parties in 2003, the dominance of the former has resulted in a Macdonald who is portrayed as a proponent of ‘provincial rights’ on the American states’ rights model and of an elected Senate, just to name two offences of the right.

On the left, too, Macdonald has been claimed as the guiding spirit of active government and the social and economic interventions of the welfare state.

Macdonald, his advocates notwithstanding, was by no means a supporter of greater provincial autonomy; every school child knows (or should!) that a unitary government was his first choice for Canada—indeed, his hope was that the provinces would shrink to little more than municipal entities, with the Dominion government eventually assuming the preponderance of authority. Sir George-Étienne Cartier and French delegates at the Quebec conference were instrumental in convincing him that without local guarantees of French religious, language, and cultural rights, there would be no Confederation.

Likewise, while Macdonald may have harboured early favour for an elected upper chamber, the experiences of the united Province of Canada in the 1850s soon soured his sympathies. As his colleague and biographer Joseph Pope remarked in his Memoirs of Macdonald,

It is true that, at an early period of his career, he favoured an elective Upper House, but eight years’ experience of this system was sufficient to change his views, and to convert him into a firm upholder of the nominative principle. Every year since Confederation strengthened the conviction of his matured judgment, and showed him more and more clearly the advantages of the nominative over the elective system. To his mind the chief among the objections to a Senate chosen by the popular vote, was the ever-present danger of its members claiming the right to deal with money Bills, and the consequent possibility of disputes with the House of Commons. The proposal that the provincial legislatures, whose members are elected for purely local purposes, should choose the senators to legislate on matters of general concern, was also objectionable, being opposed to the spirit of the constitution, which confined the local assemblies to a strictly limited sphere of action. He held that the system unanimously agreed to at the Quebec Conference had worked well, and should be undisturbed. A senatorship, in his opinion, was an important and dignified office, and a worthy object of ambition to any Canadian. [1]

The left is guilty of a similar story of dissimulation. The Liberal-Conservative party which Macdonald led in its formative years of existence and in the House of Commons as premier was not the social democratic party that is often betrayed by the sobriquet Red Tory. It was a merger of moderate Liberals and moderate Conservatives who were not, respectively, either Grits or ultra Tories. And, although Macdonald did speak of himself as a progressive conservative, he spoke much as did Sir Robert Peel in his famous Tamworth Manifesto:

...if the spirit of the Reform Bill implies a careful review of institutions [...] undertaken in a friendly temper combining, with the firm maintenance of established rights, the correction of proved abuses and the redress of real grievances,—in that case, I can for myself and colleagues undertake to act in such a spirit and with such intentions.

Indeed, the Liberal-Conservative label did not denote Progressive Conservatism per se, as contemporaneously understood, but simply the merger of like-minded Liberals and Conservatives. Think rather of the Waldorf-Astoria Hotel, or the Cunard-White Star line.

As such, the Liberal-Conservative party may best be considered a mix between Liberals of the ‘night-watchman state’ with the latter appropriating pis aller responsibilities—i.e., in addition to law and order oversight, welfare prerogatives as a last resort, when individual and voluntary associations are overwhelmed—and Tories who still have faith in the ability of the State to foster the Common Good: the ‘National Policy’ and the Canadian Pacific Railway were nation-building exercises undertaken in co-operation between government and the business community.

‘Free Trade’, then, was a fine principle in the abstract, and no doubt true, but the young Dominion—with fledgling business interests, her trade competing with powerful countries with varying degrees of protection and with strong robust industries of their own—was at a distinct disadvantage. Moreover, Macdonald had a nation to build on the North American continent, its very existence an irritant to the American behemoth to the south, whose siren call of wealth and opportunity was siphoning off Canada’s youth and future promise.

And so, in the economic depression of the mid-1870s that struck during the Reform ministry of Alexander Mackenzie, Macdonald raised a motion in the House of Commons:

...the welfare of Canada requires the adoption of a National Policy, which, by a judicious readjustment of the Tariff, will benefit and foster the Agricultural, the Mining, the Manufacturing and other interests of the Dominion; that such a policy will retain in Canada thousands of our fellow countrymen now obliged to expatriate themselves in search of the employment denied them at home, will restore prosperity to our struggling industries, now so sadly depressed, will prevent Canada from being made a sacrifice market, will encourage and develop an active interprovincial trade, and moving (as it ought to do) in the direction of a reciprocity of Tariffs with our neighbours, so far as the varied interests of Canada may demand, will greatly tend to procure for this country, eventually, a reciprocity of Trade (12 March 1878). [2]

If not exactly free trade, nor is it an unflinching nationalist programme: Macdonald would accept economic liberalisation, but only with reciprocal responsibilities. Free market adherents may deride Sir John’s protectionist programme, but its ‘open borders’ under-current can give no comfort to economic autarkists. [3]

Furthermore, if Macdonald wanted to campaign under the banner of social democracy, the works of Marx and Engels and their brethren were undoubtedly at his disposal, as were the theories of Rousseau’s collectivised general will. That he did not do so is an indication that he was first a believer in the free economy, if not necessarily a capitalism left to furrow the field unaided or unscrutinised.

Sir John’s legacy, then, provides challenges for his twenty-first century admirers. While a few of his ideas have fallen into disfavour and desuetude—such as the withering away of the provinces—many more remain resilient and key to Canada’s continuing prosperity. Strong central government with ‘holistic’ oversight over the country; the complementary, symbiotic roles of Ottawa’s upper and lower parliamentary chambers; accommodating and respecting the cultures of the founding peoples, while welcoming all immigrants who aspire to adopt the Canadian identity as their own; fealty to the monarchical principle and to the Commonwealth of shared history and traditions—all this, and more, we owe to Macdonald.

So long as the Dominion endures, Macdonald will live on. A supporter once cheered in a crowd, ‘Sir John A., you’ll never die!’ We echo those sentiments on his birthday.

For more on Macdonald and his legacy, see the Centre for Confederation Politics.

ENDNOTES

1. Joseph Pope, Memoirs of the Right Honourable Sir John Alexander Macdonald, Volume II (Ottawa: J. Durie & Son, 1894), 235 (emphasis added). Nor is this view of upper chambers in the Westminster parliamentary system antiquated; see the Parliamentary Campaign for an Effective Second Chamber and the excellent essay by Lord Norton of Louth, ‘Complementing the Commons’.

2. Quoted in Pope, Memoirs, 200.

3. Any serious student of contemporary Toryism—with its economic roots firmly planted in the soil of protectionism—must reconcile his beliefs with the free market critique of state intervention and its consequences. See Ludwig von Mises’s Planning for Freedom (Indianapolis: Liberty Fund, 2008)—its eponymous first essay plus ‘Middle-of-the-Road Policy Leads to Socialism’.

An Appreciation for the House of Lords

Imagine my surprise when I received an email notice from David Cameron, announcing my invitation to join the government of Britain. How wonderful! As a firm supporter of the Commonwealth and as a Canadian who shares Sir John A. Macdonald’s belief in our golden ties to Great Britain, this was an incredible offer.

However, in place of an opportunity to swear oaths of fealty to the Queen, was a copy of the Conservative party’s 2010 political manifesto. I quickly found the chapter on ‘Changing Politics’, with its overview of restoring faith to the political process and of renewing the bonds of participatory democracy between citizens and the representatives chosen to serve them.

I agreed with much of what I read in the section on governing structures—or was willing to grant the desirability of reform in areas that could be made to work even better—save for this section on the Upper House:

We will work to build a consensus for a mainly-elected second chamber to replace the current House of Lords, recognising that an efficient and effective second chamber should play an important role in our democracy and requires both legitimacy and public confidence.

The Parliament of Canada itself faces pressure to reform the Senate, from an appointed chamber whose members serve until retirement age to an elected body of limited, eight-year terms. In both countries, though, I fear that this democratic impulse is short-sighted and motivated less by a desire for good government than by the mistaken belief that the electoral mandate is the only valid means to legitimate political ends.

Fortunately, in the United Kingdom the Campaign for an Effective Second Chamber performs yeoman service in pointing out the strengths of the current arrangement and the weaknesses of various proposals for reform. Unfortunately, the Senate of Canada has not enjoyed an equally concerted defence of its merits (although I have collected articles and reports and posted a file on Advocacy for Appointed Upper Chambers).

In the British context, the Campaign website highlights excellent arguments by Lord Norton of Louth and Lord Howe of Aberavon (among others) that emphasis the virtues of the appointed model. Such appreciations include these fundamental observations:

• Whereas the present House of Lords serves a complementary role to the confidence role that is the purview of the elected House of Commons, two such elected bodies will inevitably create gridlock as both chambers exercise their democratic mandate;
  
  
• A hybrid House of Lords between appointed and elected members only illustrates the reformers’ muddled-headedness: they backhandedly concede the benefits of experience and expertise that appointment makes available, but add confusion—and internal jealousy—by introducing an elected element which will only lead to a two-tiered category of peer; and
  
  
• Appointed peers enjoy legitimacy indirectly via the executive offices which oversee the process—which are themselves accountable to the people—much as in the selection of judges and other government officials, who exercise authority yet not through courtesy of the ballot box. If the ballot is the sine qua non of legitimacy, then the very foundation of the British monarchy is threatened, too.

And, until questions of dodgy expenses and charges of influence peddling tarnished the reputations of both Houses of Parliament, the Lords received more favourable reviews than its Commons partner, as a non-partisan body whose revising function added value to the shambolic legislative programme of two Labour prime ministers who aspired to presidential status. ‘Public confidence’ clearly resided with the Upper Chamber, and it is sheer effrontery for the Lower Chamber to cast aspersions elsewhere.

One may assume that a modernising, progressive liberal Conservative’s position is clearly with the reformers, but not necessarily so: first, it bears repeating that it is not the case that democratic legitimacy is found only through the popular vote; and second, even from the classical liberal position, a strong case can be made that ‘more democracy’ only leads to ‘more Government’—which, in many respects, is anathema both to liberalism and to the Conservative party’s larger aims to decentralise power to the people.

In both instances, the current House of Lords proves an admiral bulwark of the citizen’s rights, remaining both ‘efficient and effective’. It is also to be remembered that while Conservatives may be liberal or progressive or traditional, they all share the basic convictions for conservatism. Edmund Burke undertook a similar exercise in writing An Appeal from the New to the Old Whigs that, regardless of changing circumstances, core principles of political institutions and practices still held true: ‘Our fabric is so constituted; one part of it bears so much on the other, the parts are so made for one another, and for nothing else, that to introduce any foreign matter into it, is to destroy it.’

The fabric of Westminster has evolved so that two Houses—one elected, one appointed; the first serving as the primary voice of the United Kingdom, the second as counsellor to the first—form a vibrant, organic Parliament. Any elected element in the House of Lords would be to introduce a foreign matter, destroying both it and the whole.

Burke also wrote that ‘To innovate is not to reform’; little imagination is required, therefore, to see that innovation should not be equated simultaneously with progress.

No, for whatever its minor faults which can be readily amended, the House of Lords is still fit for purpose.

A Libertarian Defence of the Appointed Red Chamber

While conservative in my politics, I don’t consider myself a libertarian—being rather more in tune with the Tory values that exemplify the career of Canada’s first prime minister, Sir John A. Macdonald. Yet when thinking a bit about the fate of the Senate of Canada, and particularly about its method of composition, I begin to see the outline of a libertarian defence for appointing senators.

Recent weeks have been spent reading a number of seminal tracts in the libertarian tradition (a theme to which I shall return in future), and I can report with some confidence that it is divided into two main camps: moderates who adhere to what are commonly called classical liberal beliefs or minarchy (sometimes taken to be synonymous with modern conservatism) and those who are rather more radical in their principles, the philosophical anarchists (or ‘anarcho-capitalists’).

The first, while not exactly boosters for the status quo, will admit grudgingly that the State does have its uses. It adjudicates contracts between contesting parties and upholds security of person and property: by applying law and order for domestic disputes, and supplying the armed services against foreign invasion. Ideally, then, for this branch of libertarianism was coined the belief that ‘government is best which governs least’.

The second band of libertarians, no doubt, considers the first group soft. No form of government is acceptable to them. Social action is based upon voluntary agreements entered into freely. All transactions, therefore, take the form of simple market processes, ergo the ‘capitalist’ label. Anything not openly agreed to—and thence with no means of ‘opting-out’—is coercive and an affront to fundamental natural law and human rights.

But what has this to do, you ask, with the benefits of an appointed Red Chamber?

In the general outlines of libertarian thought—basically a paean to limited government—is where the genius of our existing Senate lies.

Surely I am raising a provocative paradox; wouldn’t a philosophy of freedom advocate for democratic senatorial representation, unfiltered through the prism of responsible government?

Yet, if your objective is less government, then your goal is not an elected Senate.

If your objective is less self-important legislators, less legislative gridlock, and less regulatory intrusion—all with the potential of inhibiting personal liberty—your goal is not to encourage their expansion. Your goal, as a libertarian, is to maintain what is by comparison a lesser obstacle to freedom.

Consider this an axiomatic warning: as surely as night follows day, a senator elected by popular will, with the wind in his sails and newfound electoral legitimacy conferred upon him, will feel duty-bound to live up to expectations to be as energetic and industrious as his colleagues in the House of Commons.

He will be constrained, by articles in the BNA Act, from introducing money bills in the Upper House, but that is the only constitutional restraint by which he will be bound.

By former convention the Senate was to act as a chamber of sober second thought, an evolutionary development because, lacking in directly democratic bona fides, the Senate was considered at best a complementary chamber in league with the confidence chamber that was the House of Commons. No more.

However, with a ballot-box mandate, the Senate will enjoy the full sanction of Canadian voters—more so, in fact, since the provinces have no greater number of senators than MPs; for instance, the present distribution of seats means that the twenty-four senators representing Ontario will wield a larger population-base, and greater clout, than the province’s 106 MPs.

At last, the Senate will become the equivalent in power of its nineteenth-century model, the House of Lords; this Canadian institution will fulfil, in word and deed, the dream of the Fathers of Confederation for ‘a Constitution similar in Principle to that of the United Kingdom.’

Ask David Lloyd George, though, how his People’s Budget fared in 1909 and 1910, as successive bills were voted down by the peers. The Parliament Act of 1911 is the answer. The powers of the obstructionist House of Lords were severely curtailed. And the Liberal government had it easy; its antagonists were hereditary in nature, not democratic.

The alternative to Senate reform favoured by some of the opposition parties is abolition. Certainly, from the anarcho-capitalist standpoint—that is, the ideal libertarian response to any form of meddling government—get rid of the irritant altogether. But does this make for less, more effective government, or an overall worse situation?

Who will scrutinise and improve legislation in a unicameral Parliament, when the Commons hasn’t the time to revise it now? How many, in the lower chamber of competing interests and egos, exemplify the experience and non-partisanship of the upper chamber?

Bad apples reside in both places, I know. But that is as much an argument against turning the Senate into a carbon-copy of the Commons as a whole-cloth condemnation of an institution that has counselled Parliament—and Canadians—well since 1867.

Faced by these prospects, the moderate libertarian answer is clear: If we must have governing institutions, then let them be the best institutions that we can have, undertaking the people’s business with a minimum of fuss and bother, both to themselves and the populace they serve.

Let us scorn an elected Senate as the self-aggrandising monstrosity of our nightmares and preserve our modest appointed Red Chamber.

This is one libertarian position to which even Sir John A. could raise a glass.

See Advocacy for Appointed Upper Chambers (pdf file) for more information.