All professions — physicians, lawyers, businessmen, and clergy — have had members fall from grace; yet we do not abolish their important institutions. Members of Parliament and members of provincial legislatures, past and present, have been, and are, embroiled in ethical and even legal quagmires. In the end, senator misconduct is not a good argument in favour of Senate abolishment. The institution is bigger and more important than the individuals who comprise it.
Secondly, the Senate serves a useful, although frequently misunderstood, purpose. The Senate does in fact provide a deliberate and thoughtful second look at legislation that was inadequately vetted by the House of Commons. A recent example was PMB C-290, dealing with single-event sports betting. The bill seemed straightforward: it would allow casinos to take wagers on single games — currently they will only accept bets on multiple games, to prevent against game fixing, something that has become a problem in European football matches.
The House rushed the bill through, as it had bi-partisan support. At the Senate hearings, however, it was discovered that all the major professional sports associations were vehemently opposed to the legislation. Paul Beeston, president of the Toronto Blue Jays, went so far as to opine that expansion of minor league professional baseball in Canada would be compromised if the bill became law. The Senate correctly put the brakes on potentially damaging legislation until more information could be obtained and important questions answered.
Although unicameral legislatures do exist in modern democratic states, they are certainly the exception, not the norm. The democracies of Scandinavia, New Zealand, and Singapore all have single houses. But the United States and most Commonwealth countries have bicameral legislatures, designed specifically to provide checks and balances, allowing reconsideration of inadequately vetted legislation in a manner similar to the incident cited above where brakes were put on the gambling legislation.
Ironically, the Senate sometimes comes under attack for doing its job. In fact, the Senate usually comes under criticism when it actually amends legislation approved by the democratically elected House. Critics argue that an appointed body has no legitimacy in overriding an elected body. However, as we saw with the case of the single-sport betting bill, hastily approved by the House of Commons but opposed by all professional sports associations concerned by match fixing, the Senate attempted to improve the legislation and fulfilled its constitutional obligation by applying the brakes to the bill and ordering protracted study and hearings.
Constitutional experts cite the potential for gridlock between chambers and the slowing down of government reforms as negative bicameral side effects. The cynic in me suspects that is the real reason the NDP supports Senate abolition. If they ever form government, they might find the upper house unsympathetic to an aggressive socialist agenda.
The framers of the U.S. Constitution, in published papers, were most mistrustful of unencumbered power. Madison further warned of the “fickleness and passion that could absorb the House.” Accordingly, they designed a system that separated the executive from the legislature and then further divided legislative powers into a House and a Senate. The drafters believed that the different houses would represent different interests. Whereas the British House of Lords was designed to represent the aristocracy, the U.S. Senate was designed to promote regional representation. Accordingly, the Constitution provided for two senators from every state of the Union with terms much longer than House members. Prior to the Seventeenth Amendment, the senators were actually appointed by the state legislatures, thus confirming their role in providing regional representation and safeguarding the states’ rights.
Aspects of both models were incorporated into the Canadian Senate. The British North America Act provided property requirements for eligibility and allows the prime minister to appoint senators, similar to the appointment process for the House of Lords. But the Canadian Constitution also established that each region of Canada would have a specified number of individuals eligible to sit in the upper house. This is borrowed from the U.S. model and reflects the realities of diverse regional interests in a large geographic country such as Canada.
Regional representation is a legitimate priority. However, the Canadian Senate ceased to be a body of regional representation, if it ever was one, decades ago. In the U.S. Senate, senators will frequently break rank with their party to defend a matter of regional interest or protect the state they represent. This is natural, as they will eventually have to face the electorate again. Canadian senators abandon their loyalty to their province in favour of the party that appointed them immediately after having been sworn in. The Senate was designed to provide sober second thought, not to be a warehouse for party loyalists and bagmen.
Accordingly, the chamber needs to be reformed so that senators are elected and accountable to their constituents, not to the party that appointed them.
Defenders of liberty believe that the greatest threat is the concentration of power. The division of powers between the federal government and the provinces and the division of federal powers between bicameral legislatures are both part of a deliberate system of checks and balances to minimize the approval of ill-considered legislation. Parliament exists to hold government to account; an effective Senate is integral to that parliamentary prerogative.
I remain a strong proponent of bicameralism (two houses of parliament), provided that both houses are functional. The current PMO/Senate Expenses Scandal confirms my belief that our system needs more, not fewer, checks and balances on executive power. Bicameral legislatures exist to provide a further check on both government power and the lower house by providing “sober second thought” to the deliberations of the lower, and in Canada the only elected, legislative chamber.
I am also a strong proponent for Senate reform. Although the current problems facing the Senate underline the dysfunctional state of affairs that exists there at present and cause many to support abolition, that option should seriously be considered if, and only if, reform is impracticable. Given the constitutional realities, reform is indeed challenging; however, as abolition is subject to even more onerous constitutional considerations, we should probably be resigned to incremental reform being more likely than abolition.
Potentially, the Senate could have an important role to play in reconsidering legislation improperly vetted by the lower House. Admittedly, it would do so with much greater legitimacy if the senators were elected and therefore accountable to someone other than the political party that appointed them. However, until the Constitution is amended to provide for compulsory, rather than non-binding, advisory senatorial elections, the Constitution Act does in fact give equal status in the legislative process to the Senate as is enjoyed by the House.
Although the Senate was criticized for “gutting” Bill C-377, a trade union disclosure bill, by raising the disclosure threshold, it did not do so with anything close to finality. Amending the bill as the Senate did, parliamentary procedure ensured that the bill would be returned to the House of Commons for further debate and deliberation. It is only when a bill is passed by both chambers in identical form that it becomes law. The title bestowed on the Senate — the “Upper House” — is not descriptive of the the Senate’s role in the legislative process.
Like the judicial branch of government, senators get their legitimacy from the Constitution and the fact they are not elected is immaterial from a legal perspective. However, the appointment process for the Senate is antiquated. It attempts to combine the House of Lords’ concept of protecting landowners’ rights with the American Senate’s attempt at providing representation on a loosely defined regional basis. Only the latter — the defending of regional interests — remains of relevance in a country as large and geographically diverse as Canada. However, if appointed senators exercise more deference to the party that appointed them than to the region or province they represent, their usefulness is indeed questionable.
However, by breaking party rank occasionally, amending flawed private members’ bills and sending them back to the House for further consideration, the Senate did indeed show its value in providing an important check on the House of Commons and in the process also showed that the tools for holding government to account exist should the senators choose to use them.
Amending the Constitution to either elect senators or abolish the entire institution is going to be difficult, if not impossible. Accordingly, any changes that result in