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!

Tradition Is the Anchor of Royal Succession

The Royal Wedding last week between Prince William and Kate Middleton has led to renewed interest in the line of succession, which has hitherto followed the example of primogeniture, with the Crown passed onto the eldest son. This practice has been criticised as antiquated and sexist; reforms have been proposed whereby the first-born becomes first-in-line, whether the child is male or female.

Yet as innocuous as this change in the royal succession may appear, there are inherent dangers. Tradition is one of the Crown’s greatest assets, and this reform strikes at the heart of Britain’s (and the Royal Commonwealth’s) constitutional strength: the stability which the Crown imparts to political life which, in turn, is a key raison d’être for the monarchy itself.

In an essay written for the independent British think-tank ResPublica, I examine some of the ramifications and unintended consequences to reform of the royal succession and urge caution before any such innovations are undertaken — with apropos quotations from Edmund Burke and Benjamin Disraeli.

Thanks to Phillip Blond and Adam Schoenborn for allowing me an opportunity to express opinions that run counter to the prevailing zeitgeist, but which I believe deserve a hearing before reforms to the royal succession are implemented.

Click here for my full argument.

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.

Debating the Future of the Senate of Canada

At noon to-day, the Centre for the Study of Democracy (Queen’s University) will hold a debate on Senate reform.

The principal question: ‘What, if anything, is wrong with the Senate of Canada, whether it should be reformed and, if so, by what means.’

The debaters are Senator Hugh Segal (Conservative party); Senator James S. Cowan (Liberal party); David Christopherson, MP (NDP); and Richard Nadeau, MP (Bloc Québécois); with Jane Tabor, political reporter for The Globe and Mail, as moderator.

The Centre posted a Facebook page with Senate links, discussion opportunities, and CPAC broadcast information, plus an invitation to the public-at-large to submit questions for panellists.

As visitors to my Advocacy for Appointed Upper Chambers page will attest, I am an opponent to the recently proposed reforms, whether with respect to eight-year term limits or to public consultations at the provincial level.

And, given the previously declared positions on Senate reform stated by the debaters (or most of them, anyway)—either in favour of election or simple abolition of the Red Chamber—I’m not optimistic that the current status of the Senate will receive much of a defence. May I be proved wrong.

Nevertheless, I have submitted my own queries to the CSD debate format, centring on the crux of ‘reform’:

______________

The primary object of reform is to transform the appointed Senate into an elective body. As such, have reformers addressed and answered any of these three separate, but inter-connected, questions:

1. Reform is best directed at known abuses or failings: Of what failing of achieving good governance—with supporting evidence of malfeasance—does the Senate of Canada stand accused?
   
   
2. If abuses can be identified, does an elected Senate correct them, without introducing unfavourable consequences of its own (mindful, of course, of the possibility of unforeseen consequences)?
   
   
3. The presence of two elected chambers in Parliament will inevitably clash for dominance, given that each will enjoy a mandate of ‘democratic’ legitimacy and the near co-equal status conferred on both the Senate and the House of Commons by the British North America Act, 1867 (save for the origination of ‘money bills’); what realistic proposals have been advanced to ensure harmony between the chambers, given present constitutional parameters—or to amend constitutional powers and jurisdiction to that end?

______________

Fellow students of Edmund Burke will see his influence at work in my focus on a ‘metaphysics of reform’. Sir Robert Peel expressed this sentiment in his Tamworth Manifesto, which was a commitment to ‘a careful review of institutions, civil and ecclesiastical, undertaken in a friendly temper combining, with the firm maintenance of established rights, the correction of proved abuses and the redress of real grievances’.

Or, as Burke himself wrote: ‘A spirit of reformation is never more consistent with itself, than when it refuses to be rendered the means of destruction.’

In this spirit, I challenge those proponents of Senate reform, in good faith, to assure Canadians that their review is undertaken in a friendly temper, is respectful of the chamber’s established rights, and will not be rendered the means of destruction.