Objectivity Argues for Senate Reform

Many Liberals have argued that Objectivity should be the driving force behind our policy approaches. The same objectivity that pushes scientific or academic pursuits should be applied to Government Policy. It is not a surprise that John Stuart Mill asked for such an approach in the 18th Century. Nor is it a surprise that Liberals have used a similar line of reasoning ever sense. For such an approach has generally brought the most benefit to most Canadians. Objectivity has led us to balance the needs for individual liberty against the need for societal norms.

In the name of objectivity, Ralph Goodale, Mark Holland and the Liberal Caucus argued for the protection of the Long Form Census. In that Debate, Liberals argued that there was no better way to maintain statistical integrity than by having Canadians answer a long list of questions. In fact, Liberal MP Marlene Jennings said that “the decision is dangerous and must be reversed. By making the survey voluntary, its findings will likely be skewed and rendered irrelevant. Municipalities, provincial governments, community groups, business and other organizations that depend on the data for developing sound policy, will be negatively impacted.” (Don’t cut long census form: Liberals, Last Updated: Wednesday, July 7, 2010 | 1:26 PM ET, CBC News)

For, they listened to former chief statistician Munir Sheikh. They listened to a man who resigned his position because he felt that the government of the day “cancelled the long-form census with little heed to the consequences of its decision”. He argued that “the census decision has shaken Statistics Canada’s neutrality and independence, and put at risk the government’s own work in many areas” (Former chief statistician picks apart Tory long-form census decision, by Heather Scoffield, Globe and Mail, Published Tuesday, Sep. 20 2011) Or put differently, the Conservative Government was not being objective in their decision making process. Unlike the ideological driven Harper Government, the Liberal Party fought for an objective policy process and we became quite incensed that other Parties were not doing the same. Consequently, our Party was energized and exercised by the principle of objectivity.

After almost four years, an interesting observation can be made: the Liberal Party has been proven to be right. To quote Aaron Wherry of Maclean’s: “If you adjust for inflation, the amount spent in 2006 is equal to about $623 million in 2011. By that measure, the 2011 census and NHS cost $29 million more. If you’d rather use the acknowledged supplementary funding, the 2011 census and NHS cost $22 million more. Either way, it would seem to have cost more money to produce less reliable data.” (The cost of scrapping the long-form census, By Aaron Wherry – May 9, 2013)

Therefore, it is easy for me to argue that Objectivity is a Liberal value. For it provides “the greatest benefit to the greatest number”. From George Brown onward, we have shown that providing the greatest benefit means that Government has had to balance the needs of society with the needs of individuals and minorities. By recognizing the needs of individuals to have liberty, we all benefit. In this same way, I would argue that Liberals should argue for Senate Reform and not the status quo or the abolishment of the Senate.

This is something that the NDP has never understood. Thomas Mulcair has noted that the NDP, since its founding, has argued for the abolishment of the Senate. Or as he noted, “We’re starting now to explain exactly what we’re going to do, which is to work with the provinces and territories to abolish the unelected, unaccountable, and unapologetic Senate, and we’re not going to change our point of view. That’s been our position for the past 50 years.” (Scandal in a modern democracy’: Mulcair turns up Senate rhetoric as PM looks to poke holes in NDP plan, by National Post Staff and Postmedia News | 13/03/06 | Last Updated: 13/03/06 5:08 PM ET)

The reason for this approach, he says is simple: “We’re going to stop trying to find excuses for keeping a bunch of party hacks, bagmen, political operatives and defeated candidates sitting in appeal of the duly elected members of the House of Commons,” Mr. Mulcair told reporters on Wednesday. (NDP’s Mulcair takes aim at Senate abolition, by GLORIA GALLOWAY, The Globe and Mail, May. 22 2013, 1:00 PM) For in his words, “It’s a shame that a band of unelected people can overturn the decisions of the elected representatives”. He often refers to the last session of Parliament where a climate change bill, sponsored by the NDP, failed to get the consent of the Senate.

However in saying that, he fails to recognize that our Supreme Court is unelected. Nor does Mr. Mulcair recognize the history and valuable contributions of the Senate. It was the Senate, and not the House of Commons, that tried to defeat the politically unpopular GST. It was the Senate which defeated Prime Minister Mulroney’s attempt to pass abortion legalization. It was the Senate which forced the Liberal Government of Jean Chretien to add a sunset clause to many of the additional powers awarded to the Crown after September 11th. In fact, from what we can tell, Conservative Senators have frustrated the reform plans of the Harper Government because Provincial Governments, most of the “Constitutional Academic world” and some Senators have indicated that what the Government –and the Conservative Majority – has proposed would likely be unconstitutional. (Stephen Harper wants Supreme Court’s opinion on Senate reform, by Tonda MacCharles, Toronto Star, Feb 01 2013; Harper to seek top court’s blessing in bid for Senate overhaul, by Daniel LeBlanc, The Globe and Mail, Sep. 17 2012.) So the Senate – whether controlled by Conservatives or Liberals – for the most part has been the progressive legislative body. Since its founding, it has been a body which recognizes the excesses of the House of Commons and corrects for it.

Because we have seen what happens in the Provinces when there is not a check on Governments. Provincial Governments, like that of Mike Harris in Ontario, tend to steam roll over every other point of view. Anyone who lived in Ontario in the late nineties can attest to the power of a Canadian Premier. If they have a majority in the House, even if elected by a minority of the population, they are virtually unstoppable. For the only check on the Legislature is the Legislature itself. Unless Backbench MPs stand up against the Government, huge changes can be made. Given that the Federal Parliament controls the Military, the Security Services, the RCMP, the Border Patrol, the Canadian Revenue Agency and a number of other powerful departments, Objectivity would indicate that having a second set of eyes’ – to review potential legislation – is a good thing.

In other words, while the Supreme Court might be able to offer or render legal opinions on the Constitutionality of Laws, the Senate is the only body in our system that can render a political review of legislation. Mulroney’s abortion legislation did not meet that test. While, Jean Chretien’s terror legislation only met that test after changes. Therefore, there is a reason and a purpose for the Red Chamber.

With that being said, the recent Harper appointments have proven one thing: that the good work that the Senate does can be blemished, tainted and ruined much too easily. Consequently, reform is necessary to preserve the Red Chamber’s relevance and legitimacy. The question is what does reform look like.

The answer, I think, is a four “A” Senate. The term comes from some work done by the Rahim Sajan Nomination Campaign in the 2012 By-Election for the Calgary Centre seat. While he was unsuccessful, as a member of the Policy Development Team, we had long conversations on what Senate Reform should look like. So we talked about whether a future Canadian Senate should apportion its seats through the principle of Equality of Regions or Equality of Provinces. We talked about whether the Senate should be partisan or not. We talked about whether Senators should be appointed or elected. In having these conversations, we felt that Senate Reform should be based on four principles. They are as follows:

1. Achievability
2. Acknowledge the Public’s Will
3. Accessibility
4. Appropriateness.

Achievability is the first and most important principle. If one remembers the failure of both the Meech Lake Accord and the Charlottetown Accord, one will quickly come to the understanding that any changes should be based on what is possible and not what is ideal. For example, Abolition of the Senate is not achievable. While there are many reasons for this opinion, let us consider the idea of unanimous consent.
Among academics and many constitutional lawyers, based on present law, it is felt that the Provinces and the Federal Government would have to agree to abolish the Upper Chamber and that will not happen. PEI, for example, would not likely agree because they would lose a vital constitutional protection. Section 51A of the Constitution Act (1867) says that “a province shall always be entitled to a number of members in the House of Commons not less than the number of senators representing such province.” Without that protection, Prince Edward Island would lose three of their Seats.

Continuing on this trend one can see that other provinces might be equality interested in keeping the Senate to guarantee their numbers in the House of Commons. Consider New Brunswick. The province has 10 Senate Seats and 10 Members in the House of Commons. However, the average number of citizens in a New Brunswick seat is about 73,000. This is more than 30,000 fewer citizens than the median number of seats in the average federal seat (i.e. 113,308). More telling is that the average seat in Ontario has 114,720 citizens, while the average number of citizens in BC and Alberta are 114,264 and 117,513, respectively. Given that only three provinces – Ontario, BC and Alberta – do not depend on special clauses in the Constitution to achieve their House of Commons Seat Numbers, one can expect that few provinces will push towards abolition of the Senate.

However in saying that, one can see that small changes could be achieved in seat totals. One can see that reorienting the seat numbers could reflect the relative strengthening of Western Provinces and Ontario since 1867. At present, the Canadian Senate is divided into Four Regions. The Western Region (i.e. BC, Alta, Sask. And Manitoba) have 24 seats. Ontario and Quebec are considered to be two separate regions and accordingly have 24 seats each. The Maritime Provinces (i.e. Nova Scotia, New Brunswick and PEI) share 24 seats and Newfoundland has six additional seats.

Now, I will not get into the history of why the seats were apportioned, for it is long and complex. However, today we could achieve a small change. We could ensure that we have the Equality of Regions. Through a Constitutional Amendment, we could have a situation where Nova Scotia and New Brunswick lose four seats each and PEI gains 2. Such a change would increase the relative strength of most provinces and establish a better rationale for the way that the seats are divided. At present, the four Atlantic Provinces have approximately 6.9% of Canada’s population and control 30 (28.57%) seats in the Senate. After the changes suggested, the four Atlantic Provinces would control 24 seats (24.24%). Today, Ontario and Quebec with 60% of the country’s population control 45.71% of the seats. After the change, those two provinces would control 48.48% of the Seats. Additionally, Western Provinces with 30% of the population would move from having 22.86% of the seats to 24.24%. Thus, this small change will allow us to get on track.

Our second aim was to “Acknowledge the Public’s Will”. Now, there are a couple of ways to do this. Firstly, we could have an appointment process with some form of review. That review could happen after five years or ten years. If a Senator did not live up to his expected behaviour – as judged by a blue ribbon panel, a jury, a citizens’ convention or a Parliamentary Institution – one could expect that that Senator could be forced out of his seat.

In conversations, though, the members of the Rahim Sajan’s team wanted to go a different route. We wanted a Senate that was non-partisan, bold and reflective of popular sentiment. However, that same Senate needed to be a deliberative body that enhances the governing experience for all stakeholders. This meant that the Senate needed to hear from the Government and Opposition MPs. It needed to hear from MLAs’, MNAs’ and MPPs’. The Senate had to hear the opinions of mayors, shareholders, debtholders and debtors. The Senate had to be able to give voice to those who the House of Commons would not listen to and sometimes stop the House of Commons from acting rashly. In short, the Senate had to be the one that the Founders of our Country envisaged.

To get us to this path, we proposed a difficult system. Senators, in our system, would not be nominated by political parties. Like our Founders imagined, Senators would have to build coalitions of people based on their influence, history and networks. Consequently, to update the system, we proposed that Senators would have to be nominated by 15 to 20% of the voting citizens of a particular province. Therefore, to be nominated as being a Senator, the potential nominee would have to campaign for it. Presumably, only a few people in a province could generate the supported required to get 15 to 20% of the voting citizens to sign a petition. Given the high level of support necessary, political parties would not be able to get involved. If you don’t believe me, just look at Ontario and PEI.

Based on the 2011 census, Ontario has just over 12.8 million people. Our system would require more than 1.3 million people to nominate an individual to become a Senator. Or put differently, given that the Liberal Party of Canada – through the recent Leadership Contest – was only able to generate about two-tenths of that result, on a national basis; one could say that Senators in this new system would likely be quite non-partisan. Consequently, if such a person were elected or acclaimed, he would likely be a non-Partisan Senator. Furthermore, with such a processes behind him/her, Senators would likely be able to question the actions of the House of Commons, the Federal Government of the Day or many other issues.

Such a system would guarantee our third Value: Accessibility. To maintain support Senators would have to talk to local, domestic and foreign interests. Senators would want to encourage bankers to come to Canada to do business because their own provinces would gain. Senators would want to investigate foreign governments because they would want to prevent wars. Senators would also want to speak to NGOs and clerics, executives and Labour Unions because if they wanted their seat they would need support from a large swath of society. Furthermore, the level of the work would encourage turn over after an 8 to 10 year term.

This leaves me with my last value: Appropriateness. In my head, there are many issues that Appropriateness covers. They include term limits, the level of work and the amount of power. However, as noted earlier, the nature of the post – I think – would solve many of those issues. The one which I am stuck with though is simple: Is it appropriate, for example, to have an elected Canadian Senate that can override the elected House of Commons? To answer this question, I turn to Australia and Iceland. In the last fifty years, they both have had to ask that question. In Iceland, the President used his veto to override a bill of Parliament. In their system, this meant that a referendum had to be called. The result was interesting: the people confirmed that the President was right. While Parliament found itself in turmoil, the people had the ability to speak between elections.

In Australia, the same thing has happened a few times under their Double Dissolution resolution system. For under their Constitution, disagreements between the House of Representatives and the Senate are solved through a process of “conversations”. If the Senate holds up Legislation, the Government can ask the Governor General to dissolve both Houses. This extreme step dissolves the four year cycle of the House of Representatives and the six year cycle of the Senate. All Members of Parliament are forced to go back to the people and talk about why all of Parliamentarians – the House and the Senate alike – are looking to be re-elected.
Should this not resolve the situation, and Parliament is still deadlocked, one final vote occurs. It is a joint session and this is the final voice on the matter. This series of conversations in the Australia Parliament means that contentious legislation can be reviewed and improved but that there is a way of ending the conversation. As every conversation has a beginning and an end, so can Parliament. This is why a Senate needs to exist.

In my head, there is the potential for abuse. The Senate might get carried away; and therefore, I would recommend that this form of elected Parliament would learn from the Australians and have a “Double Dissolution resolution system” of our own. However, the chances of that our low. Icelandic, Canadian and Australian histories teach us this. Therefore the Federal Liberals should argue for a reform. Our concept of objectivity provides us a model: the 4 “A” model. For this model of Senate reform provides “the greatest benefit to the greatest number”. By allowing for choice, this proposal balances the needs of society with the needs of individuals and minorities so that we all may benefit. This is why are argue that Liberals should argue for Senate Reform and not the status quo or the abolishment of the Senate.

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One thought on “Objectivity Argues for Senate Reform

  1. I agree with almost all of your post. I agree that “Objectivity should be the driving force behind our policy approaches,” and I agree that “Liberals should argue for Senate Reform and not the status quo or the abolishment of the Senate.” However, I have a somewhat different perspective, and I thought I’d add it to the discussion.
    First of all, I’d like to comment about your comment about Thomas Mulcair. If you’ll excuse a gross over-simplification, I think the New Democrats believe in democracy, pure and simple. And I think the Conservatives believe in capitalism, pure and simple. More and more, I think the New Democrats have come to believe in capitalistic democracy, and I think the Conservatives, though less and less (i.e.; the Harper Conservatives), have believed in democratic capitalism.
    The Liberals have been different. More nuanced, if you will. And probably more objective, to use your term. They’ve been the most willing to straddle French and English Canada, and that has involved a democracy that is not always pure and simple. And, I would add, they’ve been the most willing to straddle the public and the private economies, and that has involved a capitalism that is not always pure and simple either.
    There’s a problem here, of course. “Democracy pure and simple” fits on a bumper sticker. So does “Capitalism pure and simple.” (Perhaps “Jobs pure and simple” is the way the Conservatives would rephrase this.) “Straddle French and English Canada and straddle public and private economies in as objective way as possible” doesn’t.
    I mention the New Democrats and the Conservatives for a reason, and that is that I think a reformed Senate should not only be objective as you suggest, it should also be a straddler. Let me explain. I’ll use as my example global warming. The science of global warming has been around since my university days if not earlier, and that’s a long time. Scientists with increasingly ferocity and increasing majorities have been pounding the table, but to little avail.
    Until, maybe, now. As I write we in Calgary are still recovering from a major flood, apparently due in part to the warming of the Arctic Ocean, which is significantly and increasingly weakening the jet stream so that weather systems move more slowly than usual, resulting in wet weather as well as dry taking longer to move on. Certainly the weather system that caused the flood took forever to move on. So in a way I guess it was our Hurricane Sandy.
    Anyway, back to a reformed Senate. The problem with global warming is that neither traditional democracy nor traditional capitalism are up to the challenge. The reason, in my opinion, is the time frame. Both are present oriented. It’s the vote in a couple of years that counts. It’s the stock price tomorrow or this quarter that counts. According to some of the climate scientists I have read, global warming may lead to mass starvation, a substantial “die-off” of most of the human race or even its extinction. Mass extinctions have happened before, of course. Five of them, in fact, and those without the encouragement of the oil and gas, automobile and airline industries (among others).
    The problem is that the mass starvation or substantial “die-off” or extinction of the human race will take place after the next election and after the present quarter.
    Here in Alberta we are largely dependent on the oil and gas industry, so we are faced with a choice:
    A.) Less prosperity now in order to help reduce our carbon emissions, etc., or
    B.) Mass starvation or a “die-off” or an extinction of the human race.
    Up to now our House of Commons, the U.S. Congress, the British House of Commons, the Chinese Politburo and almost every other decision making body on the planet has voted for choice A. And, I might add, it won’t be for the first time. Historically, a bird in the hand has been worth extinction in the bush, except in those cases – Easter Island, the Anasazi – the extinctions have been local.
    This is where I think a Senate of “Objectivity” and “sober second thought,” a chamber that can straddle the now and the future might come in handy. We already have, in theory at least, a chamber of “sober second thought,” one that is not elected but appointed and whose members may serve until they’re 75. Our present Senators can look beyond the now, but I’m not sure they’re not all that sober and their “Objectivity” is compromised, often severely, by the fact that they’re joined at the waist with politicians who are focused on the next election.
    I have some suggestions, but they’re just that – suggestions – not prescriptions:
    1.) Senators are appointed, and appointed for a ten year term, perhaps more.
    2.) Senators can not be politicians or related to politicians, much as the winners of contests can not be employees or related to employees.
    3.) Senators must be experts in their fields and nominated by their peers.
    4.) The nominations must be 5 in number, and the Prime Minister must select from that list.
    I recognize that this is all pretty rough and ready, but IMO it’s worth a discussion.
    Finally, there’s your question of achievability, which I agree is the most important principle. I do think such a Senate is achievable given today’s political climate. Naheed Nenshi may be the only popular politician left on the planet – certainly he’s one of very few – and more and more countries are turning away from politicians and toward technocrats, frustrated with politicians’ seeming inability to rise to the challenges we face, Egypt being the latest example. So I think a Senate of technocrats may have a certain appeal, particularly to those who champion evidence-based policy and objectivity.

    Like

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