The discussion and debate over the reform of the Senate of Canada into an elected chamber has dominated the opinion sections of Canadian newspapers and the academic journals of Canadian political science since the late 1970s when the Trudeau government reinvigorated interest in the patriation and reform of the written constitution, which ultimately culminated in the Constitution Act, 1982. Trudeau’s final product conspicuously omitted the reform of the upper house, and ever since various political parties, academics, and think tanks have debated options for reform. They typically justify their positions based on theories of democracy (that an unelected legislative chamber in the 21st century violates all democratic principles) and federalism (that a federation, particularly one as vast and diverse as Canada, needs a chamber that better represents the interests of the provinces). I have supported the reform of the Senate into an elected chamber for a good many years and still do. Indeed, I wrote several undergraduate papers on the subject and studied it obsessively from 2007 to 2010 – but never in the course of my research did I come across another equally, if not more important, normative principle with respect to reform of the Senate: parliamentarism. My papers included various summaries of past institutional proposals for reform, which I would like to discuss out of academic interest, but in a separate entry on the history of Senate reform in Canada. Some scholars opposed to the reform of the Senate into an elected body have argued in favour of the status quo based upon these the parliamentarist’s considerations; however, I have yet to encounter a scholar in favour of reform who has adequately responded to, let alone acknowledged, the issue of the Senate’s role as one of two houses of parliament and one of three components of the tri-partite Crown-in-Parliament, which consists of the Crown, the Senate, and the House of Commons. In short, we must understand the Senate as part of its larger whole, the Crown-in-Parliament, and parliamentarism, the evolution and history of the institution of parliament – not as an separate chambered isolated from the House of Commons.
I underwent a significant intellectual transformation in 2010, which started in the summer during the Royal Tour of 2010 and culminated during my research for an essay on the prorogation-coalition crisis of 2008 and the subsequent article that Nick MacDonald and I co-authored on the same subject. I used to be a republican, but I become a constitutional monarchist after studying in depth the Crown and its reserve powers and Parliament because I based my republicanism on a profound ignorance of constitutional monarchy, partially due to the American influence accumulated over 5 years of living there and observing the American system of government and his purely written constitution. I’m not arguing that all republicans are ignorant, merely that I gravitated toward republicanism due to a fundamentalism misunderstanding of constitutional monarchy. During this transformation, I also modified my views on Senate reform; I used to wholeheartedly endorse the Triple-E Senate model (equal provincial representation, effective counterweight to the House, and election of Senators) that the CanWest Foundation, the Government of Alberta, and the Reform Party advocated. I still support reform of the Senate into an elected body, but I’ve become skeptical about the other two Es. Now I seek to respond vigorously to the parliamentarist’s argument that the opposing academic camp on this issue has long argued. So far, no scholar in favour of reform has come up with a cogent counter-argument. (Let me know if I’ve overlooked someone’s work!)
Namely, I seek to answer this question: how can we reconcile an elected Senate with the principle of responsible government? After all, responsible government means that “the government derives its legal authority to govern so long as it commands the confidence of a majority of the House of Commons” – not a majority of the House and Senate. And crucial pieces of legislation like the budget are universally recognized as confidence measures. But if Senators were elected, they would feel emboldened to oppose the House more forcefully, even to the point of refusing to pass supply, but that refusal would be anti-constitutional and violate the principle of responsible government. This concern is not merely a theoretical abstraction. The Constitutional Crisis of 1975 in Australia, known as “The Dismissal” because the Governor-General dismissed the Labor Prime Minster and installed the Liberal leader in his place, started in the Senate because the senatorial Liberal-National majority refused to pass the budget of a majority Labor government that commanded the confidence of a majority of the House. (I’ll also write about this horrific incident in more detail later on in conjunction with the King-Byng Affair). An elected Senate of Canada absolutely must not be and can never become a confidence chamber, otherwise our Westminster system — premised on providing a balance between liberty and efficiency — would take on the characteristics of American congressional deadlock and irresponsible government.
Australian scholar Charles Sampford explained in “‘Recognise and Declare’: An Australian Experiment in Codifying Constitutional Conventions” (1987) why the Senate of Australia cannot logically function as a confidence chamber in the Westminster system, despite its having been an elected chamber since the creation of the Australian federal state in 1901. “The [Liberal-National] Opposition argued that federalism justified a strong Upper House with the same power over supply as the House of Representatives despite the fact that federalism is a principle about the division of powers not who exercises them at the federal level and, despite the fact that the US Senate, on which the Australian institution was modelled, has more formal powers but no such power to use supply to force a change of government.” In other words, the Senate of the United States can exercise significant power in rejecting legislation passed by the House of Representatives precisely because its rejection of House legislation does not threaten the survival of the government, which is itself divided between the White House, the House of Representatives, and the Senate. However, if the Senate became a confidence chamber in a Westminster parliament, it would invariably destroy the principle of responsible government and render Westminster worse than the irresponsible government of the American separation of powers and totally dysfunctional.
If the Senate of Canada were reformed into an elected body by amending the Constitution Act, 1867, that amendment would probably need to codify the constitutional conventions that govern the relationship between the House and the Senate in order to avoid constitutional crisis and enshrine responsible government as relating only to the House of Commons.
The Parliament Act, 1911 and the Parliament Act, 1949 in the United Kingdom limited the formal powers of the House of Lords and formally granted the House of Commons legislative supremacy, and essentially relegated the role of the House of Lords to a chamber of “sober second thought”, as Canadians would say. The Lords recognize that as unelected officials, they must tread carefully. But no such legal limitation constrains the powers of Canadian senators, who enjoy all the same powers as their colleagues in the House, apart from the introduction of money bills because of an ancient English custom. Unfortunately, the conventional limitations on the Senate’s power do not always apply. In 1987-1988, a Liberal majority in the Senate refused passage of the Free Trade Agreement until Prime Minister Mulroney advised the governor general to dissolve the House of Commons and call and election. Therefore, the Senate inappropriately turned itself into a confidence chamber, just as the Senate of Australia did in 1975 when the Liberal majority refused to pass the supply of the Labor government in the House of Representatives, thus precipitating a significant constitutional crisis. Then in the next parliament, the Liberal majority in the Senate turned itself into a confidence chamber again by refusing to pass the Mulroney government’s GST bill. In order to avoid the necessity of requesting another dissolution, Mulroney resorted to the emergency provision and rather extraordinary measure contained in section 26 of the Constitution Act, 1867 that allows the Queen to appoint an additional 8 senators on the advice of the Prime Minister of Canada. There are two types of people in the world: those who understand what I’m talking about, and those who criticized Brian Mulroney for this particular decision. I view section 26 of the Constitution Act, 1867 as the Canadian equivalent to section 57 of the Commonwealth of Australia Act, 1901 that allows the Prime Minister of Australia to advise the Governor General to dissolve both Houses simultaneously in the event of prolonged deadlock. As Ironically, Professor Sampford relegated that gem of wisdom that I quoted above to a footnote in his paper, but it is a fundamental concept: deadlock between the two Houses in a Westminster system has profound consequences on the government and can precipitate unnecessary early dissolution, or even full-fledged constitutional crises.
As I stated at the beginning of veritable treatise, I still support the reform of the Senate into an elected body — provided that any such reform adequately takes into account the problem of upper chambers and responsible government in the Westminster system. The Commonwealth of Australia has functioned with an elected Senate since its inception in 1901 and encountered only one, albeit it very serious, problem. But one serious problem in 110 years does not invalidate the model, and thankfully since Australia already experienced this constitutional crisis, we could build an elected Senate here in Canada that could steer clear of those treacherous waters. The Parliament of Australia operates on the same tripartite Crown-in-Parliament as does the Parliament of Canada and shows overall that an elected upper house can work when it respects the principle of responsible government, that the government does not derive any authority to govern from the upper house.