An Elected Senate: Recipe for Gridlock

Commentary, Politics, Frontier Centre

Here’s what sec­tion 24 of the Con­sti­tu­tion says about the way Se­na­tors get picked: “The gov­er­nor gen­eral shall from Time to Time, in the Queen’s Name, by In­stru­ment un­der the great Seal of Canada, sum­mon qual­i­fied Per­sons to the Se­nate.” What that re­ally means is the prime min­is­ter does the pick­ing — on just about any ba­sis he pleases. And he may, if he wants, pick peo­ple who have won an elec­tion in their re­spec­tive re­gion.

Or not. Noth­ing stops a Tory prime min­is­ter, even one who has sworn up and down that he’ll re­spect the voice of the peo­ple, to ig­nore an in­con­ve­nient sen­a­to­rial “elec­tion” in Que­bec. Or a Lib­eral prime min­is­ter who doesn’t re­ally care much for the duly elected sen­a­tor from Al­berta.

Of course, with a sen­si­ble plan for re­form, per­haps one might be able to per­suade the req­ui­site ma­jor­ity of pre­miers to go along with a con­sti­tu­tional amend­ment that locks in an elected-sen­ate scheme. But be­fore we em­bark on that dif­fi­cult project, I would urge Cana­dian to ex­am­ine a cau­tion­ary tale from Aus­tralia.

In 1974, gough Whit­lam’s Labour Party took of­fice in Can­berra, win­ning a ma­jor­ity of seats in their House of rep­re­sen­ta­tives. The Se­nate, how­ever, was in the hands of the con­ser­va­tive Lib­eral-Coun­try party, and for the next two years it re­jected a se­ries of gov­ern­ment bills. In 1974, Whit­lam won re­elec­tion in the House of rep­re­sen­ta­tives on the is­sue of gov­ern­ment dead­lock, and his party took ex­actly half the seats in the Se­nate. Sub­se­quently, how­ever, the op­po­si­tion con­trolled a ma­jor­ity of Se­nate seats, and de­nied sup­ply on an ap­pro­pri­a­tions bill. The gov­ern­ment would shortly run out of money.

With the cri­sis un­re­solved, the gov­er­nor gen­eral, Sir John Kerr, dis­missed Whit­lam as Prime Min­is­ter. For Aus­tralians, it was their ver­sion of Canada’s King-Byng af­fair, with the dif­fer­ence that gov­ern­ment dead­lock and con­sti­tu­tional crises will arise more fre­quently in the di­vided gov­ern­ment of an Aus­tralia or Amer­ica.

Sadly, Aus­tralia’s founders lacked the be­nign anti-Amer­i­can­ism that would have re­sulted in a pref­er­ence for An­glo-Cana­dian over Amer­i­can in­sti­tu­tions. The Fathers of the Cana­dian con­sti­tu­tion sen­si­bly adopted a gov­ern­ment on the West­min­ster model, and it has served the coun­try ad­mirably. Of Amer­i­can-style dead­lock, they knew all too well.

The 1840 Act of union that cre­ated the united Canadas had re­sulted in grid­lock, as it be­came im­pos­si­ble to pass leg­is­la­tion with­out the sup­port from both sec­tions of the united Canadas. John C. Cal­houn’s the­ory of “con­cur­rent ma­jori­ties,” re­jected in the united States, was adopted in Canada to pro­tect French Cana­dian in­sti­tu­tions. A “dou­ble ma­jor­ity” from both Canada East and West was taken to be nec­es­sary to pass leg­is­la­tion, so that a ma­jor­ity in one sec­tion could al­ways block a ma­jor­ity in the other sec­tion. Im­por­tant leg­is­la­tion was thereby held up, in­clud­ing an 1861 mili­tia bill pro­posed to re­spond to the threat of an Amer­i­can in­va­sion.

To the great an­noy­ance of Bri­tain, which had sent 14,000 men to de­fend Canada from the threat of an Amer­i­can in­va­sion, the Cana­di­ans could not agree to do what was nec­es­sary to de­fend them­selves. This, thought the An­glo-Cana­dian in­tel­lec­tual gold­wyn Smith, was the real mo­tive be­hind the de­sire for a new con­sti­tu­tion. “Who­ever may lay claim to the parent­age of Con­fed­er­a­tion … its real par­ent was dead­lock.”

Cana­di­ans had seen enough of grid­lock in the from of the dou­ble ma­jor­ity doc­trine af­ter the Act of 1840, and in the bat­tles be­tween Lieu­tenant gov­er­nors and elected Assem­blies prior to re­spon­si­ble gov­ern­ment, and they didn’t want any part of it. A Cana­dian prime min­is­ter would be de­pen­dent upon the sup­port of the House of Com­mons, and might be re­placed at any mo­ment were he to lose it: Power shifted quickly and de­ci­sively. By con­trast, said John A. Mac­don­ald, grid­lock was built into the Amer­i­can Con­sti­tu­tion.

There would be a Cana­dian up­per house. But un­like the Amer­i­can Se­nate, the Cana­dian Se­nate would have few pow­ers. Its mem­bers were ap­pointed by the fed­eral gov­ern­ment, and while they might de­lay leg­is­la­tion, they had fi­nally to yield to a de­ter­mined House of Com­mons, as the House of Lords did af­ter the great re­form Bill. Had sen­a­tors been pop­u­larly elected, it would have been oth­er­wise, which is pre­cisely why Mac­don­ald wanted an ap­pointed body.

There is no fear of a dead­lock be­tween the two houses un­der the cur­rent sys­tem. But as an elected body, the Se­nate might claim as much le­git­i­macy as the House of Com­mons, and block im­por­tant leg­is­la­tion, just as the Aus­tralian Se­nate has.

We can’t get rid of the Se­nate, nor would we want to do so. In quiet com­mit­tees, re­moved from pub­lic gaze and the pas­sions of the day, the sen­a­tors per­form a use­ful role, sub­ject­ing leg­is­la­tion to care­ful scru­tiny. With greater ex­pe­ri­ence than his col­leagues in the House of Com­mons, a Se­na­tor can take a longer view and see un­in­tended and un­ex­pected con­se­quences. And the cost is triv­ial. The build­ing is al­ready up, and can’t be rented out. The salaries are peanuts, not­with­stand­ing the faux-out­rage of me­dia elites.

The first prin­ci­ple of con­ser­va­tive gov­ern­ment is that, when it’s not nec­es­sary to act, it’s nec­es­sary not to act. In its ap­par­ent ea­ger­ness for un­nec­es­sary (and fruit­less) Se­nate re­form, the Harper gov­ern­ment sadly shows its non-con­ser­va­tive roots in the re­form Party. For the gov­ern­ment, it’s also a con­ve­nient way to de­flect at­ten­tion from more se­ri­ous is­sues that di­vide its mem­bers, such as abor­tion.

Can we get back to the royal baby now?