Senator Brown letter to senate

[g_bambino]

Now, apparently, the federal Cabinet is threatening Serious Consequences if the proposed eight year term limit for senators is not passed by the Senate:

Mr. Kenney avoided saying the word "abolish." Rather, he said the Prime Minister is prepared to "entertain more dramatic options" if Tory senators continue to balk at his proposal.

Senior Conservative hints Harper could go nuclear on Senate reform

The author is being quite creative by concluding that Kenney is even hinting that the Prime Minister is going to go "nuclear" and abolish the Senate; I think Kenney is smart enough to know that the Senate can't be abolished without a constitutional amendment; something Kenney is quoted farther on in the article as saying the government specifically wants to avoid. However, just what these "more dramatic options" are that Kenney does speak about remain a mystery. Will Harper only advise that Shakespearian bards be appointed to the Senate?

[c/e]

Edited June 20, 2011 by g_bambino

[ToadBrother]

You know, thinking about this a little further, could Harper be planning to bump up the number of Senators like Mulroney did, invoking Section 26 of the BNA:

26. If at any Time on the Recommendation of the Governor General the Queen thinks fit to direct that Three or Six Members be added to the Senate, the Governor General may by Summons to Three or Six qualified Persons (as the Case may be), representing equally the Three Divisions of Canada, add to the Senate accordingly.

This is about the only option I can think of where the Prime Minister has anything approaching unilateral powers. He could try to guarantee passage by throwing in six new loyal Senators.

The Government has absolutely no ability to abolish the Senate.

Edited June 20, 2011 by ToadBrother

[Jerry J. Fortin]

Isn't the smartest way to effect change to simply tell the provinces to elect representatives for their own provinces, and have the Prime Minister simply appoint the peoples choice to the Senate. The PMO simply creates a precedent, which according to Canadian tradition forms the basis of most of our law already. No messing around with the Constitution required. As each current Senator drops dead, we simply appoint Senators to a term length we desire and have those appointed simply sign a dated resignation.

The problem with true Senate Reform is that it absolutely requires amendments to the constitution. This may or may not be possible, that would depend on the will of the First Ministers. The largest problem with Senate reforms are related to the debate between representation by population and representation by region. The current four regions empower Quebec and Ontario and even then Ontario is under represented if you factor in population. There is where the real argument lays. Our definitions of regions are in error and in the original concept of confederation the role of the Senate was to a large degree a means of regional representation. To my mind, the entire role of the Senate and the scope of its authority need enhanced definition. The Triple "E" proposal is by far the best model yet provided for the public to look at.

[RNG]

Isn't the smartest way to effect change to simply tell the provinces to elect representatives for their own provinces, and have the Prime Minister simply appoint the peoples choice to the Senate. The PMO simply creates a precedent, which according to Canadian tradition forms the basis of most of our law already. No messing around with the Constitution required. As each current Senator drops dead, we simply appoint Senators to a term length we desire and have those appointed simply sign a dated resignation.

The problem with true Senate Reform is that it absolutely requires amendments to the constitution. This may or may not be possible, that would depend on the will of the First Ministers. The largest problem with Senate reforms are related to the debate between representation by population and representation by region. The current four regions empower Quebec and Ontario and even then Ontario is under represented if you factor in population. There is where the real argument lays. Our definitions of regions are in error and in the original concept of confederation the role of the Senate was to a large degree a means of regional representation. To my mind, the entire role of the Senate and the scope of its authority need enhanced definition. The Triple "E" proposal is by far the best model yet provided for the public to look at.

We did that in Alberta and the Liberals basically said f**k you.

[ToadBrother]

Isn't the smartest way to effect change to simply tell the provinces to elect representatives for their own provinces, and have the Prime Minister simply appoint the peoples choice to the Senate. The PMO simply creates a precedent, which according to Canadian tradition forms the basis of most of our law already. No messing around with the Constitution required. As each current Senator drops dead, we simply appoint Senators to a term length we desire and have those appointed simply sign a dated resignation.

Not in this case. Unwritten constitutional precedents can be set where there is no earlier written or unwritten rule or precedent. In this, it would not create a precedent because the BNA Act lays out very explicitly how Senators are to be selected. A Prime Minister is certainly free to use whatever method he desires to pick people for the GG to name to the Senate, but without an actual constitutional amendment to Section 24 of the BNA Act, what you propose would not in any way alter the way Senators would be chosen.

There seems to be an awful lot of misinformation being thrown around about this, and this particular claim that somehow this will create a new constitutional rule by rote is one of the worst, because it predisposes that there is a means by which the Executive can get around a clear written and bedrock constitutional requirement.

Here's the general rule of thumb. Unwritten parts of the constitution (the conventions, such as most Royal Prerogatives and Reserve Powers) can be modified through further convention (long-term change in practice, disuse to the point of extinction and the like) or via amendment. In Britain, because Parliament remains technically supreme, an Act of Parliament and Royal Assent (there are slightly different forms of Assent for certain kinds of constitutional legislation) is sufficient. In Canada, we have amending formulas for various kinds of amendments. In either case, where a constitutional power or requirement is in fact written, you cannot change it by convention, but must pass legislation amending the previous Act of Parliament.

So anybody who tells you that Stephen Harper deciding he's going to start picking senators based on provincial elections somehow can bind future Prime Ministers is making it up. It's bullcrap. You cannot simply alter Section 24 of the BNA Act in that way.

The problem with true Senate Reform is that it absolutely requires amendments to the constitution. This may or may not be possible, that would depend on the will of the First Ministers. The largest problem with Senate reforms are related to the debate between representation by population and representation by region. The current four regions empower Quebec and Ontario and even then Ontario is under represented if you factor in population. There is where the real argument lays. Our definitions of regions are in error and in the original concept of confederation the role of the Senate was to a large degree a means of regional representation. To my mind, the entire role of the Senate and the scope of its authority need enhanced definition. The Triple "E" proposal is by far the best model yet provided for the public to look at.

You are aware, I trust, that the only constitutional difference between the powers of the Commons and the Senate is the origin of money bills, right? A good deal of the "ineffectiveness" of the Senate comes from long tradition dating back to the 19th century British House of Lords (which the Senate was modelled on), in that the Commons has more legitimacy to use its legislative powers. Apart from taxation and other such money bills, which must originate in the House of Commons, the Senate has considerable technical power, and is not in fact bound by any constitutional requirement to act with any conformity with either the Commons or the Government.

As I've said repeatedly, these reforms should be measured carefully. Give the Senate too much democratic legitimacy, and without some other curbs on its power, you may find things much worse.

[g_bambino]

Isn't the smartest way to effect change to simply tell the provinces to elect representatives for their own provinces, and have the Prime Minister simply appoint the peoples choice to the Senate. The PMO simply creates a precedent, which according to Canadian tradition forms the basis of most of our law already. No messing around with the Constitution required. As each current Senator drops dead, we simply appoint Senators to a term length we desire and have those appointed simply sign a dated resignation.

Neither the prime minister nor the federal parliament can tell the provinces what to do if such instructions go outside the bounds of the constitution; not without the provinces' prior agreement to the arrangement. Nor can a prime minister, either federal or provincial, bind future prime ministers just by doing something once or twice.

Without opening the constitution, the best Harper can hope to do is suggest that provinces hold elections for senators and then recommend for appointment whomever is selected by the majority of voters (which is hardly "the people") in whichever province or provinces choose to comply. Conventions cannot override written statute and, unless the actions repeat themselves consistently for half a century or more, no legal convention is set. The constitution will remain the supreme law dictating how senators are ultimately to be chosen, meaning everything else is optional: future premiers may choose not to hold senatorial elections, legislatures may amend or repeal Senate election legislation, and prime ministers may ignore the existence of elected senators-in-waiting. The appointment of Stanley Waters to the Senate in 1990 set no precedent; no other person elected as a senator-in-waiting was put into the Senate until Bert Brown seventeen years later. Harper didn't even recommend any other persons elected in Alberta in 2004 for appointment as a senator.

Our definitions of regions are in error and in the original concept of confederation the role of the Senate was to a large degree a means of regional representation. To my mind, the entire role of the Senate and the scope of its authority need enhanced definition. The Triple "E" proposal is by far the best model yet provided for the public to look at.

The Senate works okay as it is, but could do with some reform, especially relating to the way it provides regional representation. But, that means only the first "e" of "triple-e" is of any consequence; there's nothing to say an elected and effective Senate will bring any improvement whatsoever. In fact, from my point of view, any reforms based on those notions will bring more problems than benefits.

[+]

Edited June 20, 2011 by g_bambino

[Jerry J. Fortin]

Not in this case. Unwritten constitutional precedents can be set where there is no earlier written or unwritten rule or precedent. In this, it would not create a precedent because the BNA Act lays out very explicitly how Senators are to be selected. A Prime Minister is certainly free to use whatever method he desires to pick people for the GG to name to the Senate, but without an actual constitutional amendment to Section 24 of the BNA Act, what you propose would not in any way alter the way Senators would be chosen.

There seems to be an awful lot of misinformation being thrown around about this, and this particular claim that somehow this will create a new constitutional rule by rote is one of the worst, because it predisposes that there is a means by which the Executive can get around a clear written and bedrock constitutional requirement.

Here's the general rule of thumb. Unwritten parts of the constitution (the conventions, such as most Royal Prerogatives and Reserve Powers) can be modified through further convention (long-term change in practice, disuse to the point of extinction and the like) or via amendment. In Britain, because Parliament remains technically supreme, an Act of Parliament and Royal Assent (there are slightly different forms of Assent for certain kinds of constitutional legislation) is sufficient. In Canada, we have amending formulas for various kinds of amendments. In either case, where a constitutional power or requirement is in fact written, you cannot change it by convention, but must pass legislation amending the previous Act of Parliament.

So anybody who tells you that Stephen Harper deciding he's going to start picking senators based on provincial elections somehow can bind future Prime Ministers is making it up. It's bullcrap. You cannot simply alter Section 24 of the BNA Act in that way.

You are aware, I trust, that the only constitutional difference between the powers of the Commons and the Senate is the origin of money bills, right? A good deal of the "ineffectiveness" of the Senate comes from long tradition dating back to the 19th century British House of Lords (which the Senate was modelled on), in that the Commons has more legitimacy to use its legislative powers. Apart from taxation and other such money bills, which must originate in the House of Commons, the Senate has considerable technical power, and is not in fact bound by any constitutional requirement to act with any conformity with either the Commons or the Government.

As I've said repeatedly, these reforms should be measured carefully. Give the Senate too much democratic legitimacy, and without some other curbs on its power, you may find things much worse.

The Senate has been rendered toothless for all intents and purposes, and that at the hands of the Commons and the PMO. Even so that does not mean it cannot be worked into something Canadians desire. Start at least with a process that allows for the regions to select their Senators, all it takes is the rubber stamp of the PMO and names forwarded to the GG. Harper needs to do nothing more than that to get the ball rolling. He has the ability to do this at whim. Once done, he can simply take the concept to the First Ministers with little more than the consent of Parliament. Amend the constitution one line item at a time. Yes it will take forever, but that is the way it goes. What on earth are First Ministers meetings good for if not for this kind of thing? This isn't rocket science, it is constitutional law. Once defined, there are ways of getting around them for the most part. Which is why the Liberals desire the question be brought before the Supreme Court, whereas it is also why the Conservatives desire it does not. It depends on which side of the fence you sit.....

[ToadBrother]

Without opening the constitution, the best Harper can hope to do is suggest that provinces hold elections for senators and then recommend for appointment whomever is selected by the majority of voters (which is hardly “the people”) in whichever province or provinces choose to comply. And, unless the actions repeat themselves consistently for half a century or more, no precedent is set...

I have to disagree with this. I know of no situation in which constitutional precepts altered or created by statute can be overridden even by long repetition. Certainly some Medieval prerogatives have gone extinct through disuse, but these, I do not think, were in large part passed by anything like modern legislative procedures that we saw at the end of the Medieval period (ie. the Model Parliament onward).

[ToadBrother]

The Senate has been rendered toothless for all intents and purposes,

That is, until it isn't. Brian Mulroney had to invoke Section 26 of the BNA Act to get the GST through the Liberal-dominated Senate.

and that at the hands of the Commons and the PMO. Even so that does not mean it cannot be worked into something Canadians desire. Start at least with a process that allows for the regions to select their Senators, all it takes is the rubber stamp of the PMO and names forwarded to the GG. Harper needs to do nothing more than that to get the ball rolling. He has the ability to do this at whim.

He can do that, yes. But because the means by which Senators are selected, and in my view, even their terms, are cemented by the BNA Act, he cannot make it stick.

Once done, he can simply take the concept to the First Ministers with little more than the consent of Parliament. Amend the constitution one line item at a time. Yes it will take forever, but that is the way it goes. What on earth are First Ministers meetings good for if not for this kind of thing? This isn't rocket science, it is constitutional law. Once defined, there are ways of getting around them for the most part. Which is why the Liberals desire the question be brought before the Supreme Court, whereas it is also why the Conservatives desire it does not. It depends on which side of the fence you sit.....

Of course the Tories want things to remain vague. Getting a reference opinion from the Supreme Court locks things in. But it's already been done, to some extent. The Upper House Reference Opinion was sought by a previous government ( http://www.law.ualberta.ca/centres/ccs/rulings/Upper_house_1980.php ). The idea that even term limits are purely up to the Federal Parliament is by no means universally accepted, and all it takes is one or two provinces to go to the Supreme Court to upset the apple cart.

The message, I think, is clear. What to change the Senate, do it properly or potentially have the whole thing blow up in your face. If Harper wants to select Senators by doling out his power to the Provinces, then that's his business. But that's not a reform in any meaningful way. As to the term limit legislation, it's a ticking time bomb that threatens to go off in the Government's face, so I cannot fathom why they don't do it properly rather than trying to sneak it through because of a questionable constitutional opinion about Federal Parliament amendments.

[RNG]

That is, until it isn't. Brian Mulroney had to invoke Section 26 of the BNA Act to get the GST through the Liberal-dominated Senate.

So Section 26 makes the Senate powerless, as was posited.

[ToadBrother]

So Section 26 makes the Senate powerless, as was posited.

Only where the numbers are very tight. And if the number of Tory Senators unhappy with Harper's plans is great enough, Section 26 may not be enough, since it only allows three or six new senators to be added. At the moment we don't have a full headcount, but clearly if you have some Tory Senators telling the Government that they're unhappy with the term limit scheme, I'd say it's likely Section 26 may not give Harper sufficient latitude to solve his problem.

[RNG]

I'm 65 years old, and I can not remember one time in my life that the Senate has stopped a piece of legislation.

[ToadBrother]

I'm 65 years old, and I can not remember one time in my life that the Senate has stopped a piece of legislation.

From http://www.parl.gc.ca/About/Senate/LegisFocus/legislative-e.htm

i) In 1875, the upper chamber rejected a bill for the construction of a railway from Esquimalt to Nanaimo in British Columbia on the ground it was an unwarranted public expenditure.

ii) In 1879, the Senate turned down a bill to provide for two additional judges in British Columbia on the ground that the provincial government was in the midst of an election and had, under the circumstances, no right to ask for the increase.

iii) In 1899 and 1900, the Senate rejected a bill to re-adjust representation in Ontario on the alleged ground that it was inexpedient to proceed with the bill until after the 1901 census, when re-adjustment of representation would be required under the British North America Act.

iv) In 1909, a bill which allowed appeals in claims from the Exchequer Court to provincial Supreme Courts in certain cases was rejected on the ground that it would lead to unnecessary litigation and confusion.

v) In 1913, the Senate defeated the Naval Assistance Bill and adopted the following resolution: "This House is not justified in giving its assent to the bill until it is submitted to the judgement of the country".

vi) In 1919, a bill bringing the Biological Board of Canada under the jurisdiction of the Minister of Marine and Fisheries was thrown out on the ground that the Board should be independent and protected from political interference.

vii) In 1924, the Senate rejected seven bills sent from the Commons and drastically amended three others relating to the construction of the branch lines for the newly organized Canadian National Railway.

viii) In 1926, the Senate rejected the Old Age Pension Bill on the grounds that there was no general public demand, that the provinces had not indicated approval, and on the ground of social undesirability.

ix) From 1930 to 1940, thirteen bills from the Commons failed to pass the Senate, including one private bill relating to patents, two private members' public bills, a bill relating to pensions for Judges, and a bill which provided for the extension of Farmers' Creditors Arrangement Act.

x) In 1961, the Senate Banking Committee recommended that a Bill declaring vacant the post of Governor of the Bank of Canada be dropped after the former Governor, Mr. James E. Coyne, resigned.

xi) In 1961, the Senate insisted on an amendment it made to a Government Bill to amend the Customs Act.

During the 1970's, Senate impact on Commons legislation was principally to be found in recommendations emanating from pre-study committee reports made to bills in advance of their coming before the Senate. Such pre-study of the 1975 Bankruptcy Bill led to almost 140 amendments being proposed.

During the latter 1980's and the 1990's, the Senate became more active in formally opposing and amending Commons legislation. Among the more controversial bills which led to confrontation between the Senate and House of Commons were the following: (i) in 1985, Bill C-11, the Borrowing Authority Bill; (ii) in 1986, Bill C-67, the "gating" amendments proposed to the Penitentiary Act; (iii) in 1987, Bill C-22, the Drug Patent Bill and Bill C-84, the Immigration Bill; (iv) in 1988, Bill C-60, the Copyright Bill, Bill C-103, the Atlantic Canada Opportunities Agency Bill and Bill C-130, the Free Trade Bill; (v) in 1989, Bill C-21, the Unemployment Insurance Act amendments; (vi) in 1990, Bill C-28, the "clawback" Income Tax Bill and Bill C-62, the Goods and Services Tax; (vii) in 1991, Bill C-43, the Abortion Bill, which was defeated at third reading; (viii) in 1996, Bill C-28, the Lester B. Pearson International Airport Bill, which was also defeated at third reading; and, (ix) in 1998, Bill C-220, the profit from authorship respecting a crime Bill, which was defeated at report stage.

[RNG]

From http://www.parl.gc.ca/About/Senate/LegisFocus/legislative-e.htm

i)

xi) In 1961, the Senate insisted on an amendment it made to a Government Bill to amend the Customs Act.

During the 1970's, Senate impact on Commons legislation was principally to be found in recommendations emanating from pre-study committee reports made to bills in advance of their coming before the Senate. Such pre-study of the 1975 Bankruptcy Bill led to almost 140 amendments being proposed.

During the latter 1980's and the 1990's, the Senate became more active in formally opposing and amending Commons legislation. Among the more controversial bills which led to confrontation between the Senate and House of Commons were the following: (i) in 1985, Bill C-11, the Borrowing Authority Bill; (ii) in 1986, Bill C-67, the "gating" amendments proposed to the Penitentiary Act; (iii) in 1987, Bill C-22, the Drug Patent Bill and Bill C-84, the Immigration Bill; (iv) in 1988, Bill C-60, the Copyright Bill, Bill C-103, the Atlantic Canada Opportunities Agency Bill and Bill C-130, the Free Trade Bill; (v) in 1989, Bill C-21, the Unemployment Insurance Act amendments; (vi) in 1990, Bill C-28, the "clawback" Income Tax Bill and Bill C-62, the Goods and Services Tax; (vii) in 1991, Bill C-43, the Abortion Bill, which was defeated at third reading; (viii) in 1996, Bill C-28, the Lester B. Pearson International Airport Bill, which was also defeated at third reading; and, (ix) in 1998, Bill C-220, the profit from authorship respecting a crime Bill, which was defeated at report stage.

WOW

[cybercoma]

Given the number of bills, there are relatively few defeats and marginally more amendments made. With the Supreme Court and the Charter, the Senate is pointless.

[g_bambino]

I have to disagree with this. I know of no situation in which constitutional precepts altered or created by statute can be overridden even by long repetition.

I don't think what I said actually suggested any different. But I did, in order to be clear, add essentially what you say in your second sentence to my post; obviously, though, while you were already in the midst of composing your response.

[g_bambino]

Given the number of bills, there are relatively few defeats and marginally more amendments made. With the Supreme Court and the Charter, the Senate is pointless.

I'm sorry; I fail to see how you draw your conclusion from the evidence you present. The Senate represents the federation's regional interests in the legislative process; the Charter and the Supreme Court do not.

[ToadBrother]

Given the number of bills, there are relatively few defeats and marginally more amendments made. With the Supreme Court and the Charter, the Senate is pointless.

And so the goalpost shifts...

You are aware, I trust, that every bill has to go through the Senate before passage. Perhaps part of the problem here isn't that nothing happens in the Red Chamber so much as the media and the public pay little enough attention to it.

As it is, getting rid of the Senate seems even less likely than something modest as term limits. Why don't you ask for the sun to always shine over your house while you're at it?

It strikes me that some people need to understand the concept of depriving an institution of power, or negative power. For instance, the Queen still holds ultimate executive power, which prevents the Government from absolute control. As well, the Senate holds substantial legislative power, even if rarely used, which can be used to counter the dominance of the Commons.

Edited June 21, 2011 by ToadBrother

[Smallc]

Only where the numbers are very tight. And if the number of Tory Senators unhappy with Harper's plans is great enough, Section 26 may not be enough, since it only allows three or six new senators to be added.

Isn't it 4 or 8?

[ToadBrother]

Isn't it 4 or 8?

Three or six. It was amended in 1915.

[Smallc]

Three or six. It was amended in 1915.

Really? I don't remember ever seeing that anywhere. How does that work? I thought it was either 1 or 2 per region?

Edited June 21, 2011 by Smallc

[ToadBrother]

Really? I don't remember ever seeing that anywhere. How does that work? I thought it was either 1 or 2 per region?

Whoops, you're right. Original text was three or six, amended to four or eight in 1915.

[g_bambino]

Isn't it 4 or 8?

It is; either one or two added for each of the four regions represented in the Senate.

If at any Time on the Recommendation of the Governor General the Queen thinks fit to direct that Four or Eight Members be added to the Senate, the Governor General may by Summons to Four or Eight qualified Persons (as the Case may be), representing equally the Four Divisions of Canada, add to the Senate accordingly.

Constitution Act 1867; S.26

The number was upped in 1915 from three or six. S.26 used to read:

If at any Time on the Recommendation of the Governor General the Queen thinks fit to direct that Three or Six Members be added to the Senate, the Governor General may by Summons to Three or Six qualified Persons (as the Case may be), representing equally the Three Divisions of Canada, add to the Senate accordingly.

Note 15

[jacee]

Perhaps part of the problem here isn't that nothing happens in the Red Chamber so much as the media and the public pay little enough attention to it.

I think that's very true. I also think it's quite suspicious that our elected representatives of all political parties got a sudden urge for senate reform or abolition just when a popular movement for electoral reform - proportionate representation - was gaining steam. I strongly suspect that diverting our attention to senate reform is politicians' way of avoiding any change to the first-past-the-post method of election that they are trained for.

You can bet that any changes to the senate will increase the power and control over it by politicians, and decrease its independence from the House of Commons. I think a fuller public discussion is necessary since most people don't understand the functions of the senate at all. In particular, we may regret losing it's ability to investigate long term issues of national importance without political interference or pandering, and to bring forward relevant legislation that doesn't have enough vote-getting power to interest politicians.

[cybercoma]

I'm sorry; I fail to see how you draw your conclusion from the evidence you present. The Senate represents the federation's regional interests in the legislative process; the Charter and the Supreme Court do not.

The Senate might "represent" regional interests, but they do very little to nothing to support it.