On June 28, in response to questions from CBC reporter Rosemary Barton about what he would do with the Senate if he was prime minister, Conservative leader Andrew Scheer said he would “appoint people to the Senate who share my goal of lowering taxes and growing the private sector.” “They would be conservative senators who would implement the conservative vision for Canada,” he added.
Scheer seems to want to return Canada to the days of partisan Senate appointments. As a Conservative party member who now sits as an independent senator (because I was too independent for the Conservative Senate caucus), I can say that it would be unfortunate for Canadian democracy if partisan Senate appointments once again prevailed.
The Canadian Senate is a unique institution that can’t be easily compared with other unelected upper houses around the world. It’s clear from studying the 1867 Constitution, and reading the Supreme Court of Canada’s 2014 Senate Reference, that the primary purpose of our Senate is to offer its “sober second thought” on legislation, as a kind of counter balance to how legislation is created in the House of Commons, where partisanship is a necessary feature.
In my experience, the ability of senators to apply sober second thought erodes whenever partisanship rears its head. Partisan senators are inclined to take positions on legislation irrespective of its merits. Too often, their goal is to further the political interests of their party colleagues in the House. In other words, they sometimes vote like a back-bencher would in the House of Commons.
When the Senate is a wallflower that shrinks from doing its job, Canadians quite rightly question its purpose. If the Senate is simply going to mimic the partisanship of the House of Commons—voting “yes” if you sit on the side of the Government, and “no” if you don’t—how does it add value? Indeed, it was this emasculated version of the Senate that sparked Preston Manning’s Triple-E efforts and former Prime Minister Stephen Harper’s well-intentioned attempts at reform. Unfortunately, the Supreme Court scotched these plans.
Now, as a result of a fairly good arms-length appointment process that the Liberals have put in place, the Trudeau government is building a Senate without partisan stripes. While most of the appointees would appear to share the government’s ideology to some extent, the important point is that the new senators are not members of a political party and therefore do not take direction from a national party. The Senate’s political integrity is maintained and, arguably, enhanced with each new independent appointment.
This is important for a number of reasons. First, it provides stability. A return to a fully partisan Senate would likely prompt further intergovernmental bickering about whether to reopen the Constitution, and further deterioration of public support for an institution that is almost certainly here to stay.
Second, given the partisan and often hurried lawmaking in the Commons (in which ordinary MPs have little say over legislation), the Senate serves as an important quality control mechanism, ensuring Canadians get the best legislation possible. The Governor General can sign bills into law with confidence, knowing that a non-partisan chamber has examined them and given its consent.
Third, a prime minister with a majority in the House, coupled with a majority of partisan senators in the upper house, has extraordinary—almost unbridled—power for five years. An independent Senate, by contrast, can serve as an important constraint on power in these circumstances. If a leader like Donald Trump, for instance, ever became prime minister in a system like ours, I’d imagine most Canadians would want a non-partisan institution that could operate as a check on the legislative (and by extension, executive) powers, if absolutely necessary.
Of course, some people object to the Senate exercising its constraining powers in any fashion. They worry that the Senate—and particularly an independent Senate—is like a rogue elephant, running roughshod over the democratic will of the people. I believe these concerns are overstated. While we don’t have much history with an independent Senate, and are still figuring out how to make it work, I believe senators are conscious of their limited mandate, and are keen to create and improve rules that structure their debates.
Time will tell whether Scheer can return the Senate to a partisanship institution—a Senate that is the opposite of the independent Senate that the prime minister is now working to create. It would be unfortunate if he did. Canadian democracy needs a well-functioning upper house that is free of partisan shackles. It can’t be a copycat of the House of Commons. It must have a legislative role that is distinctive and valuable. But, because of its unelected nature, it must also act with restraint.
Stephen Greene is a senator representing Nova Scotia.
This article appeared in the July 27, 2017 edition of the National Post.