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’.