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?