How do you solve a problem like the Senate?

For many Canadians the answer to the question posed would be a vehement, “Get rid of it!” Given the squalid revelations of the past few months of fraudulent expense claims, secret payments by the Prime Minister’s Office and lawyers by the Conservative Party to try and make that scandal go away, and pressure by the government on Conservative Senators to judge their accused colleagues before police investigations had been completed, this response by an angry public is understandable.
But is it the right response? The Right Honourable Joe Clark said something in a recent CBC radio interview that many Canadians don’t want to hear, but need to think about as the Supreme Court considers the constitutional implications of possible reforms to the Senate. I cannot recall his exact words, but they were along the following lines: “the fate of an institution such as the Canadian Senate, which has been part of our system of government since Confederation, should not be determined based on anger.”
As an institutional conservative, my natural inclination is not to get rid of institutions that have gone off the rails. I would much prefer to reform them so that they can regain public trust and respect by performing the essential functions for which they were created.
In the current climate this is not a fashionable admission, but I confess to a personal bias. Five of the people I most admire in Canadian public life- Catherine Callbeck, Eugene Forsey, my late uncle Richard Hatfield, Michael Kirby and Lowell Murray- all are or were Senators. I cannot help but believe it would be a great mistake to do away with an institution which has allowed them and many others of comparable ability, experience and dedication to public service the opportunity to contribute to the better governing of Canada. Incidentally, all were political appointees but accepted a responsibility to the public good which went beyond narrow partisanship.
The Senate website describes the duties of Canada’s Senate as “examining and revising legislation, investigating national issues and representing regional, provincial and minority interests.” So what should be done to reform the Senate so that it can credibly perform these essential functions? The first of these duties assigned to the Senate was memorably described by Canada’s first Prime Minister, Sir John A. Macdonald as being a place of “sober second thought.” The second has often made the Senate, or one of its committees, a place of “creative first thought” on issues as varied as poverty, science policy, foreign relations and national defence and the more efficient functioning of government departments. The third brings to Parliament the perspectives of groups which tend to be under-represented, if represented at all, in the popularly-elected House of Commons. These include or have included women, First Nations and minority official language and ethnic groups.
In addition to these three, the Senate has another role, identified by Clifford Sifton almost a century ago. Writing in 1917, he explained it as follows: “Under our system the power of the Cabinet tends to grow at the expense of the House of Commons…The Senate is not so much a check on the House of Commons as it is upon the Cabinet, and there can be no doubt that its influence in this respect is salutary.”
Today, as the power of the Prime Minister has grown at the expense of both the Cabinet and the House of Commons, this function has become increasingly important for the public interest. Recent years have witnessed omnibus legislation that bundles unrelated legislation into one bill to avoid proper consideration of each of its elements. In periods of majority government Prime Minister’s Offices subvert the independence of House of Commons committees by dictating their membership and agendas. It has become standard practice to use cloture and prorogation to shorten debate and restrict the ability of the House of Commons to hold the government accountable. Canadians can ill afford to lose an institution, such as the Senate, which has the potential and the mandate to check these corrupting tendencies.
The Senate can not only provide another forum for concerned groups and individuals to be heard on legislation. With a credible appointment process, Canadians can also trust it once again to do what it was created to do: to probe, challenge and propose revisions to the increasingly complex and far-reaching legislation sent to it from the House of Commons.
But, and here is the rub, it can only be trusted by the Canadian public to do this if, again in the words of Sir John A. Macdonald, it is and is seen to be “an independent House, having a free action of its own … 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, Macdonald went on, while it ought to have the power to see that legislation is properly considered, the Senate “will never set itself in opposition against the deliberate and understood wishes of the people” as expressed by the majority of the House of Commons.
Senate reform therefore must focus on making it a truly independent body while leaving ultimate legislative power in the hands of a House of Commons based on the principle of Representation by Population. The first requirement for restoring public trust in the Senate as an independent body serving the public interest is to take the power of appointment to the Senate out of the direct control of the Prime Minister.
Senators should no longer be directly appointed by those whom it is their responsibility to hold to account. Because Senate appointments are desirable sources of patronage, it is little wonder that over the years the prestige of the Senate has been undermined by the appointment of too many people who are there as a reward for past services to their party or in the expectation that they will perform services for the party in the future. The root of the current Senate expense scandal involving Senators Duffy and Wallin can be traced to the fact, not that they were Conservative partisans in the past, but that they became Senators to act as high profile fundraisers for the Conservative Party, paid of course by Canadian taxpayers.
In fairness, as I noted earlier, Prime Ministers of all party stripes have appointed many people of high ability, experience and dedication to the public service to the Senate. These include former provincial Premiers, senior federal and provincial public servants, leading academics, and eminent members of the legal, medical and other professions.
A practical suggestion for taking Senate appointments out of the control of the Prime Minister has been made by Professor Emeritus of Queen’s University, Ned Franks. He proposes that future Senate appointments be made from a list drawn up by a non-partisan body. One candidate for such a nominating council would be the members of the Order of Canada residing in the province or territory where the vacancy occurred. Such a body could only nominate persons whose normal residence was in that province or territory.
As part of this reform, while future Senators could continue to serve in Cabinet and could remain members of the political party of their choice, they should no longer attend meetings of parliamentary party caucuses, nor raise money for a political party except through personal donation.
Introducing a non-partisan element into the appointment of Senators should improve the odds that the people best suited to perform the essential functions of the Senate would be chosen to serve in it. And, unlike other proposals for Senate reform, because it would not require an amendment to the written constitution, it would not require the assent of the current Senate or of some combination or all of the provinces.
Gradually it should lead to a Chamber more respected and trusted by the Canadian people to perform the duties outlined earlier. Such a reformed Senate would also be an institution better able to resist pressure from party whips to delay legislation for partisan reasons or to allow its oversight and accountability roles to be subverted. In short, it should move closer to Macdonald’s vision of “an independent House, having a free action of its own… 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.”