The ‘new’ improved Senate
In the past, the Senate seemed to fail in all its mandated functions. Since 2014, it has played a more independent and influential public policy role.
This article by Paul G Thomas was originally published in Policy Options on January 26, 2018. Paul G. Thomas is professor emeritus of political studies, University of Manitoba. He is a member of the Elections Canada Advisory Board.
It is probably time to revise our negative stereotype of the Senate as a complete failure at performing its three main roles: providing sober second thought on legislation, representing regional concerns in the national policy process and helping to hold governments accountable for their actions and inactions. Excessive partisanship and prime ministerial control arising from the patronage basis for the appointment of senators are generally regarded as the main causes of the creation of a historically docile Senate. A variety of misdeeds by individual senators have added to the public scorn and disrespect for the Senate.
Since 2014 the role of the Senate has been changing in a positive direction. The transition has been contentious among the several party and nonparty groupings within the institution. With authority, resources and power at stake, it is not surprising that internal reform has involved tough negotiations that so far have produced limited, temporary changes to structures, rules and procedures of the Senate. At this stage, the future role and contribution of the upper house of Canada’s Parliament remains uncertain.
A reversion to a mainly partisan and adversarial upper house of the past is still a possibility, but as the personnel, structures, rules and culture of the Senate change, hopefully this will become less likely. In order to regain the respect and confidence of Canadians, the “new Senate” will have to play a positive and visible role in the development of public policy and in holding governments accountable over many years.
Modernization of the Senate based on nonconstitutional reforms was undertaken because two court rulings made it politically impossible to undertake more fundamental changes based on formal constitutional amendments. The seemingly modest reforms that were within the constitutional capacity of leaders of the parties in the House of Commons and of the prime minister have reverberated throughout the political system in ways that were not fully anticipated. Those reforms have changed long-standing patterns of interaction between the Senate, the prime minister and cabinet, and the House of Commons. They have also touched off contentious debate and tough negotiations in the Senate over how it should organize and execute its nearly co-equal role in Canada’s parliamentary democracy.
The changes began with the 2014 decision by Liberal Leader Justin Trudeau to drop his party’s senators from the national party caucus. Subsequently, as part of the October 2015 election campaign that the Liberals won, he promised a new appointment process that supposedly would make the Senate nonpartisan and more independent.
The new appointment process involves the use of a blue-ribbon advisory panel to recommend potential appointees on the basis of a public application process. The details of the process need not detain us here. The important point for the present analysis is that most objective observers accept that, overall, the 30 appointments made since 2016 have been of highly qualified persons, few of whom have recent partisan affiliations.
Once dominated by a duopoly of Liberal and Conservative members, the Senate currently has a more mixed membership. The groupings include former Liberal senators who are no longer part of the national party caucus, Conservatives who continue to sit in their national party caucus, a group of Independent senators (who have adopted the abbreviation ISG) and a few unaligned senators. The numbers in each group are changing constantly, and there were 11 vacancies as of the end of 2017.
The ISG insists that it is not a parliamentary party that demands solidarity. It votes as a group only on issues of modernization of the Senate and procedural issues, after discussions within the group. The ISG has been engaged in ongoing negotiations with the Liberals and the Conservatives over access to resources, changes to the Senate rules and the assignment of places on Senate committees. This is an important story that should be told in another article.
There has been a tough and slow negotiations process to recognize and to accommodate the new group of senators within the decision-making structures of the Senate. The Conservatives have been particularly reluctant to accept changes to the equilibrium of power that would be to their disadvantage. However, the ISG has time on its side. Already the single largest grouping, ISG senators are forecast to become the majority midway through 2019.
There is tangible evidence that the emerging Senate is becoming less deferential to the prime minister and the government and more willing to amend legislation already passed by the House of Commons.
According to statistics compiled by the ISG, in the year ending May 31, 2017, the Senate amended 25 percent of the bills that eventually made it to royal assent, the final step in the parliamentary process. That statistic can be compared with the result of a compilation by Andrew Heard (in a 2016 submission to the Senate’s modernization committee): from 2001 to 2015, only 6.4 percent of the bills passed by Parliament were amended by the Senate.
Such statistics have to be interpreted cautiously. The frequency of attempted and successful amendments by the Senate will depend on many factors, including the wider political context, the types of bills that are reviewed and the types of amendments that are proposed.
Many different types of legislation come before the Senate. Most bills are operational in content, do not generate much controversy and are passed by both houses of Parliament in an expeditious manner. However, there are always a few bills in every parliamentary session that evoke strong criticism and receive extensive media coverage, creating the public impression that all of Parliament’s work involves partisan fights.
In recent sessions the Senate flexed its new political muscles on several such contentious bills. In June 2017 the Senate delayed passage of the budget implementation bill — a so-called omnibus bill — and proposed an array of amendments, actions that led the Prime Minister to chastise senators for exceeding their authority by seeking to alter a financial bill. In the same month, the Senate delayed a bill that proposed to remove the gender-based discrimination in the Indian Act, a bill that had to be passed by a court-ordered deadline. Another bill to repeal provisions of the Immigration Act was held up in the Senate because many senators believed it violated fundamental principles of natural justice.
The statistics and these examples indicate that the Senate is becoming more of a political force to be reckoned with in the formulation, approval and evaluation of public policy. This is a positive development because a stronger Senate can act as a counterweight to power concentrated in the office of the prime minister, who is supported by loyal and disciplined partisan majorities in the House of Commons.
The “new Senate” should not, for the purpose of demonstrating its independence and co-equal parliamentary status, engage in maximum combativeness by regularly picking fights with the government and the House of Commons. Instead it should adopt a stance of “judicious combativeness.” This would mean rarely seeking to defeat or amend the fundamentals of legislation. Instead, it would develop a number of less confrontational, low-key, subtle, less immediate and more indirect ways to influence the medium- and long-range policy thinking of governments and the bureaucracy.
Delaying controversial measures until the interested public is aware of the issues and has time to express an opinion can provide a counterbalance to majority rule in the Commons, where party loyalty or discipline and the application of time allocation rules can enable the governing party to act before public opinion has time to crystallize.
A second, less confrontational practice would be more regular use of pre-study of the subject matter of bills before they have come over from the House of Commons. Once ministers and the bureaucracy have formulated bills, and once the Commons passes them, minds are less easily changed, in part because reputations are at stake. A related practice would be to attach “observations” to reports on bills, especially those bills that are controversial.
A third device might be the inclusion in bills of timetables for the review of legislation after enough time has passed to determine how well it is working in practice. Providing for such reviews in statutes could institutionalize the principle that the Senate plays a role of checking whether the bills passed by Parliament are working as intended in an efficient, effective and fair manner.
These mechanisms for contributing to lawmaking are connected in practice to the Senate’s function of providing scrutiny of the actions and inactions of the executive. There are two basic requirements for an enhanced scrutiny role for the Senate.
The first is an understanding and acceptance of the demands of oversight on the part of more senators than presently see that as part of their job. The second requirement is willingness by governments to allow for independent inquiries by senators, especially through a strengthened committee system, and to pay serious attention to Senate reports arising from review of bills and policy studies.
There is an implicit political bargain at the heart of the proposed new orientation within the Senate. The new majority of Independent senators would agree to pass most legislation in a reasonably expeditious manner. In return the government would accept that Senate inquiries could identify problems with past policies in ways that are mainly constructive and non-threatening in political terms.
In conclusion, an independent, influential Senate should rely more on the “soft power” of legislative review, scrutiny, evaluation, advice and publicity and less on the “hard power” of attempts at defeating, amending in fundamental ways and prolonging unduly the passage of government bills already approved by the Commons.