July 23, 2015
Renewing the Senate: An Ethical Approach
By Ian Greene and Garrett MacSweeney, York Collegium for Practical Ethics York University
The term “Senate Reform” has been bandied about haphazardly in the media with regard to a range of options from abolition, to an elected Senate, to appointing Senators in a non-partisan way. The 2014 Supreme Court reference decision answered important questions about how the Senate can be changed in compliance with the constitution. Abolition requires unanimous agreement of all provincial legislatures and Parliament (the Senate having only a time-limited veto). Creating an elected Senate requires the agreement of two-thirds of the provincial legislatures representing at least fifty percent of Canada’s population, and Parliament. As a result, neither of these options is feasible in the short term of the life of the next Parliament. But major change in how the Senate functions is desperately needed during the life of the next Parliament in order to restore democratic principles in Parliament, as well as to restore the faith of Canadians in our Parliamentary system. Rather than an unachievable Senate “reform” in a grand sense, Senate “renewal” is not only feasible, but should be an essential part of the agenda of the next government. In order for that renewal to earn the trust of Canadians, it needs to take place in an ethical fashion.
An ethical foundation for a Senate renewal process would need to encompass the same principles for ethical conduct in our political system that have become standard as Canadian jurisdictions have moved toward clearer ethical standards in the political process through, for example, the development of conflict of interest rules, standards for lobbying and the prevention of wrongdoing, the promotion of fairness and impartiality, and the protection of minority rights. Canadians have come to expect higher ethical standards in the political process during the past three decades of ethics reforms, although these expectations clearly have not always been met. We argue that any proposal for Senate renewal is more likely to succeed if Canadians perceive the process to be an ethical one, in part because of these new and higher expectations. In addition, because of the Senate/PMO expenses scandal involving Mike Duffy and others, many Canadians currently view the Senate as a hotbed of corruption, and so a renewed Senate must show real promise that the result will be an upper house with much higher ethical standards.
The Supreme Court of Canada’s decision in the Senate Reference of 2014 has not only clarified how Senate reform can take place in a constitutional manner, but it has also set out the purpose and role of the Senate in the Canadian constitutional structure. We begin with a summary of the critical parts of the Supreme Court Senate reference. The paper will then review the Justin Trudeau proposal for changes to the procedure for Senate appointments, and will examine how this proposal, or something similar to that, could be pursued in an ethical fashion after the October 2015 election, regardless of the election outcome.
The Supreme Court Senate reference (2014)
The 2014 Senate reference was initiated by the federal Cabinet primarily to clarify whether the Conservative government’s draft legislation to facilitate provincial consultative elections for prospective Senate appointees, and for Senate term limits, can be accomplished under s. 44 of the Constitution Act, 1982 – the section that allows Parliament to amend its own internal constitution. This is a question that the cabinet should have put to the Court in 2006 when this approach to Senate reform was first proposed by the minority Conservative government, but it is probable that the government knew what the answer would likely be and did not want the answer publicized. The government preferred to attempt to try informally to amend the constitution between 2006 and 2014 by inviting provinces to hold Senate consultative elections, as in the Alberta example, appoint those so “elected” to the Senate, and then see the whole process become a fait acompli. The Supreme Court found that Senate consultative elections, and the introduction of term limits would be constitutional only after a constitutional amendment under s. 42 using the “seven-fifty” general formula that dissenting provinces cannot opt out of.
The Supreme Court’s reasoning was that an appointed Senate, in which Senators are appointed until retirement, is part of the “constitutional architecture” of Canada. In the negotiations leading up to Confederation in 1867, the nature of the upper house in the new Parliament was of paramount importance, and the union would never have come about without agreement about the nature of the Senate. Lower Canada saw the proposed Senate as a means of protecting French language rights, and the Maritime provinces saw it as a place to safeguard minority religious rights and regional interests. The Senate was to be appointed rather than elected so that it could act as a non-partisan chamber of sober second thought, and Senators were appointed for life (later until retirement) to encourage independent legislative review based on years of experience:
[56] The contrast between election for members of the House of Commons and executive appointment for Senators is not an accident of history. The framers of the Constitution Act, 1867 deliberately chose executive appointment of Senators in order to allow the Senate to play the specific role of a complementary legislative body of “sober second thought”.
[57]As this Court wrote in the Upper House Reference, “[i]n creating the Senate in the manner provided in the Act, it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons”: p. 77 (emphasis added). The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives.
In fact, until the advent of the Harper government, the Senate often acted in a non-partisan fashion in order to counterbalance the excessive partisanship of the House of Commons. However, after 2006, the Senate began to lose its partly non-partisan approach because of unprecedented interference in Senate business from the Prime Minister’s Office. As well, the Conservative government’s attempt to reform the Senate was not only unconstitutional, from our perspective it was also unethical. In the second edition of The Responsible Public Servant (2014), Kernaghan and Langford underline the importance of “the demand for more deliberative democracy, legitimizing governing processes through more open, informed and equal engagement of citizens and affected stakeholders in decision making at all levels.” An attempt to amend the constitution without public consultation and without engaging citizens is clearly unethical.
The other two major proposals for Senate reform currently on the table are the NDP plan to abolish the Senate, and the Liberal plan to appoint future Senators in a non-partisan way. The 2014 Senate Reference confirmed that abolition of the Senate would require a constitutional amendment approved by Parliament and all provincial legislatures – the s. 41 procedure. This avenue would by necessity require a good deal of public consultation, and so the process is likely to be an ethical one. However, because Canadian public opinion is seriously divided on the question of Senate abolition, and the majority of provincial governments seem to be opposed to the idea at this time, Senate reform through abolition is not likely to come about in the foreseeable future. Because of the serious ethical issues faced by the Senate that make meaningful change of the institution in the short term imperative, we think that it is more useful to delve into the ethical issues surrounding the Liberal proposal, because it is our view that it is a more realistic approach in the short run regardless of which party wins the 2016 federal election.
Justin Trudeau summarized his proposal for Senate reform as follows: “I’m committing today that, if I earn the privilege of serving Canadians as their Prime Minister, I will put in place an open, transparent, non-partisan public process for appointing and confirming Senators.”
From the perspective of the Supreme Court Senate Reference, is a constitutional amendment required to implement the Liberal proposal? It all depends on how the Trudeau commitment is carried out should he become Prime Minister in October, or should the party that wins the election adopt a similar approach. Under the current system, the Prime Minister can ask the Governor General to summon any person to the Senate who meets the qualifications set out in s. 23 of the Constitution Act, 1867. No constitutional amendment would be required should the Prime Minister request the Privy Council Office to draw up a list of non-partisan Canadians that the Prime Minister could refer to when choosing whom to ask the Governor General to summon. Should a more formal process be developed, such as the creation of an independent Senate Appointments Commission along the lines of the independent House of Lords Appointments Commission that has recommended more than sixty of the appointments to the House of Lords since 2001, a constitutional amendment might be required. However, the Prime Minister should first send a reference question to the Supreme Court to settle two issues. First what degree of “residency” must a potential Senate appointee possess in his or her province of appointment prior to, and after the appointment? Second , is a constitutional amendment required to set up informal and/or formal mechanisms to make non-partisan appointments to the Senate, and if so should the amendment be made according to s. 44 of the C.A., 1982 (Parliament can amend its own internal constitution), or s. 42 (the general amending formula). However, regardless of the constitutional requirements, we argue that there are additional ethical requirements, which we will address next.
The ethics of moving to a non-partisan appointment procedure
Because of the recent ethical lapses in the Senate itself, it is imperative that Senate reform be pursued in an ethical fashion both to restore the legitimacy of the Senate, and of Parliament itself. We believe that serious ethical lapses in our political institutions not only reduce the level of trust that Canadians have in their political institutions, but also discourage potentially good leaders from entering politics, thus weakening our political institutions, and ultimately our quality of life.
Just as the creation of Canada’s original Senate was a result of political and regional compromise and the result the skill of politicians in putting the good of the new nation ahead of their own political ambitions, Senate renewal in 2015 will require the same high-minded and statesmanlike approach from a plurality of politicians in our federal parties.
Although Justin Trudeau has committed himself to an “open, transparent, non-partisan public process for appointing and confirming Senators,” this commitment leaves plenty of room for fine-tuning, which is a good situation as it opens the door to good faith discussions about this approach with members of the Conservative and New Democratic parties, and the Canadian public in general. The Conservative party may still be committed to an elected Senate in the long term, but the party may be willing to consider a non-partisan, or perhaps a multi-partisan, Senate appointments process in the meantime. Similarly, the NDP is committed to Senate abolition, but the party may be willing to consider changes to the Senate appointments process in the interim. Or perhaps the NDP would consider a sufficiently reformed Senate, in terms of the appointment process and the Senate’s internal ethical standards, as the equivalent to the abolition of the bad old Senate. Neither the abolition of the Senate, nor the creation of an elected Senate, can be realized for years or more likely decades (if at all), and in the short term serious action is desperately needed to restore public confidence in the Senate and Parliament.
Should the parties come to a general agreement on a way forward for short-term Senate reform or renewal, from an ethical perspective there should be an opportunity for extensive public consultation. There are a number of vehicles that could spearhead such a public consultation, from a Royal Commission to a special committee of Parliament. The special committee of Parliament created in 1980 that held public hearings about the proposal to patriate the Canadian constitution with a particular amending formula, and to include a Charter of Rights in the constitution, may serve as an example of how a public consultation can both improve a policy proposal — as “Charter Canadians” did during the public consultation process — but also encourage partisan politicians to compromise as a result of hearing public opinion. The 1982 constitutional compromise was, after all in the end nearly unanimously support in Parliament. Whatever process is utilized, it would be important to provide opportunities for all political parties with seats in the House of Commons to be meaningfully involved, for all groups representing Canada’s diversity to have meaningful input, and for all provincial legislatures to be engaged in the process.
Public hearings should also consider a transition from a partisan Senate to a non-partisan Senate. How would that transition take place? Once the majority of Senators have been appointed in a non-partisan way, how could Senate business be arranged in the absence of a government and opposition in the Upper House? From an ethics perspective, these are the kinds of issues best determined through a national debate and public hearings, and not through the unilateral implementation of the plans of one particular party.
A renewed Senate must put in place a regime to ensure much higher ethical standards both in terms of the behavior of individual Senators, and in terms of Senate procedure, than the current situation. In 2005, the Senate drove the process for legislation to create an independent Senate Ethics Officer, and to develop a Code of Conduct for Senators to prevent conflicts of interest. While changes need to be made to improve the Code as well as the independence of the Office, this innovation was a big step in the right direction, and has been successful in preventing any serious incidences of conflicts of interest in the Senate – a chamber that was at one time notorious for conflicts of interest. However, those intent on using public office for personal gain will avoid trying to get around strict rules, and will exploit remaining weaknesses. The fragility in the Senate’s oversight of expense claims is a good example.
Conclusion
Political scandals can have an ameliorative impact on the political system if the reaction to scandals leads to the reform of political institutions to make them more democratic, ethical, and better able to serve the public. Most of the ethics reforms in Canada that have come about with regard to the political branches of government over the past three decades have been reactions to scandals. These include the independent conflict of interest commissioners for legislatures that we now have in all provinces and territories, as well as the House of Commons and the Senate, and increasingly in Canadian municipalities, and independent lobbyist commissioners.
The current scandal involving the Senate and the PMO could lead to a renewed Senate with much higher ethical standards in terms of appointment and process, but only if most of the leaders of all Canadian political parties – federal and provincial –are driven by the desire to be statesmen and stateswomen instead of by self-interestedness and partisanship. We remain optimistic that a sufficient number of our leaders will rise to the occasion to spearhead meaningful – and ethical – change.