Let the Senate reform itself

Posted on in Governance Policy Context

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March 16, 2015.   Andrew Heard

The following is adapted from a presentation to a conference (“Time for Boldness on Senate Reform”), held March 13-14 at the Centre for Constitutional Studies, University of Alberta.

In the immediate aftermath of the Senate Reference last year, there was considerable talk about the procedural roadblocks the Supreme Court had put in the way of Senate reform, notably its insistence that any fundamental change in the Senate’s powers and composition required use of the Constitution’s general amending formula: seven provinces with 50% of the population. Some political leaders expressed frustration and declared that we are left with the status quo.

I wish to challenge that presumption — in particular, the notion that meaningful reform of the Senate can only come through constitutional amendment. Rather, I suggest that much substantive reform can be achieved simply through changes to the Rules of the Senate.

Senate reform is needed to deal with severe erosion of public confidence in the upper chamber. For many critics, the Senate lacks legitimacy. It is an appointed body, yet has almost co-equal powers with the House of Commons. A principled objection is that an appointed body should not be thwarting the will of the elected house.

The critics have to face reality: An appointed Senate is here to stay for the foreseeable future. But there may be ways for the Senate to play a more constructive role in the policy process. Senators can legitimately take an active part in revising legislation, without going so far as to impose their will on elected MPs.
In the Senate Reference, the Supreme Court of Canada said the Senate was not intended to be “a perennial rival of the House of Commons,” but was rather a “complementary legislative chamber of sober second thought.”

Self-limitation of its own jurisdiction and powers may ironically result in a more vibrant and effective legislative body

Indeed, an appointed Senate has a valuable role to play in the legislative process, even in the modern democratic context. Granted, it has to be a limited one when compared to elected upper houses. But the example of the U.K. House of Lords shows that a non-elected body with only a suspensive veto can still have a constructive impact.

I propose a vision of Senate reform where senators can themselves effect meaningful change — by limiting and streamlining their own vast legislative powers. This self-limitation may ironically result in a more vibrant and effective Senate.

The Constitution Act, 1867, provides that the Senate is the equal to the House of Commons in all but one respect: money bills must originate in the House. All bills presented for royal assent must have the consent of both Houses of Parliament. But beyond these stipulations, the Constitution is silent on the legislative powers of the Senate.

It is a fundamental principle of parliamentary privilege that each house has the right to determine for itself its constitution and procedures. In general, the whole body of lex parliament is part of the law of the land. And particular aspects dealing with parliamentary privileges and immunities have a constitutional status.

It is important to note that the Supreme Court has recognized that parliamentary privilege is a part of the formal Constitution. Only those matters considered necessary to parliament’s functions are to be counted among these privileges. But there is nothing more fundamental to a legislative body than the procedures to be followed in considering legislative proposals. The Standing Orders of the House of Commons and the Rules of the Senate must enjoy a special constitutional status. As such, I believe they are immune from some of the Senate Reference strictures.

My suggestion here is that we consider the Rules of the Senate as a potential vehicle for reform, aimed at defining a complementary role for the Senate in the legislative process, and limiting or eliminating the occasions when it poses as a rival to the elected chamber.

The Senate’s prime contribution to the legislative process is to provide sober second thought to measures already considered in the House. The Senate, of course, has other important roles, such as initiating its own legislation, and conducting policy hearings to propose future legislative measures. But its central legislative role is to consider the merits and details of bills already passed by the House.

However, the Senate also manages to stall or defeat Commons bills on occasion. It has explicitly defeated a Commons bill five times since 1990. A far more frequent tactic the Senate uses to thwart the Commons is through an “indirect veto.” By simply delaying consideration or extending the time in committee, it is possible to effectively shelve a bill until it dies at the end of the session. At other times there is a conscious decision to stall a bill, but without the formality of a vote to not proceed with it (which is actually an explicit veto). The most famous example was the Free Trade bill in 1988. Other high-profile examples include Bill C-69 in 1995 dealing with the redistribution of federal electoral ridings, and the 2008 shelving of Bill C-10, which would have changed some tax policies.

The Senate and House of Commons can also be pitted against each other as adversaries when they disagree over the fate of amendments made by the Senate. After a Commons bill has been amended and passed third reading in the Senate, it can be presented for royal assent only once both Houses agree on a final wording for the bill. Most often, the House of Commons agrees to the Senate’s amendments. Even in the heady partisan confrontations during the Harper minority governments, the government accepted the amendments made by the Liberal-controlled Senate to eight out of 12 Commons bills initially amended by the upper house.

However, the Commons may reject some or all of the Senate’s amendments and insist on the version it approved. In that case the Senate must reconsider the matter; it usually bows to the Commons, but the Senate does sometimes insist on its changes — occasionally delaying matters further by sending the matter back to committee before deciding on its position. There is no limit to the number of times a bill can be passed back and forth between the two Houses. In the past it has happened several times, over a period of up to a year.

My proposed reform, therefore, is to use the Senate rules to speed up the passage of legislation, eliminating the indirect veto for many bills, and limiting the period of disagreement between the two Houses over Senate amendments.

One possible change could state that a bill emanating from the House of Commons shall be deemed to have received third reading in its original form six (or perhaps 12) months after its introduction. Such a rule would prevent many cases of indirect vetoes causing bills to die on the order paper. It would also allow the Senate to consider and amend a bill that completed all three readings within that window.

The Senate rules could also be amended to say that third reading on Supply and Budget Implementation Bills is deemed to be given 30 days after the bill’s introduction. The rules could further stipulate that no amendments may be made to these bills. As these are all subject to confidence votes in the House of Commons, I can see no principled reason for the Senate to alter or defeat these measures.

Explicit defeats of Commons bills could be made much more difficult through changes to the Rules. Votes on procedural devices to bury a bill might be prohibited by the Rules. Votes on amendments to ordinary Commons bills might be decided by simple majorities, while the final votes for approval at report stage, as well as second and third reading of Commons bills might require a supermajority to be defeated.

Finally, it should be possible to end the ping-pong between the two Houses over Senate amendments. The Senate Rules could be amended to stipulate that the Senate’s agreement shall be deemed to be given to a Commons bill in the form in which it is returned to the Senate by the House. If the Senate’s basic role is to force sober second thought on measures, then that function is fulfilled by the Commons having to formally consider Senate amendments. I see no principled reason to allow repeated volleys between the Houses.

The result of these changes would be to encourage the Senate to effectively and expeditiously propose amendments that the Commons must consider. Indirect vetoes would be largely eliminated and direct vetoes made more difficult. The Commons would be faced with clear proposals for amendments and be forced to consider their merits. Without the prospect of having to deal harshly with threatened vetoes, the Commons might consider Senate amendments more on their merits.

Some have argued that the existence of the veto power is necessary for the Senate to influence the House of Commons. Without the possible threat of defeating a bill, so the argument goes, the Senate would not be able to force the Commons into accepting its amendments. However, this argument appears to be disproved by the evidence of the substantial policy influence enjoyed by the British House of Lords — which since 1911 has had only a suspensive veto. Studies of the Senate’s work indicate that it amends only a relatively small number of Commons bills it considers (usually less than 10%), far less than the House of Lords does.

Meaningful non-constitutional reform of the Senate is thus very possible. Regardless of whether the changes I have raised here would be supported in the Senate at this time, they are posed as food for thought. They demonstrate that where there is a will, there is a way.

Senators have it within themselves to reform and rehabilitate their chamber. Just as the Senate can and should set higher standards for its members in integrity, conflict of interest and full-time engagement in the work of the Senate, so senators can reform their own legislative powers. A reinvigorated Senate, with self-defined changes to its legislative processes and better-defined relations with the House of Commons, could go a long way to public acceptance of the Senate’s place in our democratic system.

National Post

Andrew Heard is professor of political science at Simon Fraser University.

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