By: Leo Kristal-Polci
Edited by: Susie Rooney
On Parliament Hill, one famously awkward question has been nagging at government after government for decades: What’s to be done about the Senate? When determining the fate of the red chamber, emotions are strong among politicians and ordinary Canadians, lending a humorously literal meaning to the expression “seeing red”. On one hand, the Senate can be thought of as a pillar of Canada’s parliamentary system and the chamber of “sober second thought”. Conversely, it might be seen as the unelected, redundant counterpart to the House of Commons. These opposing conceptions of the Senate mean that Canadians have a range of opinions about what the future of the upper chamber should look like, spanning from maintaining the status quo, to instituting any number of reforms, to abolishing it entirely. This discourse eventually precipitated the Senate reforms of 2015, which, among other things, allowed Senators and parties to end their caucus affiliations if they so chose, and appointed an independent advisory board to help select new Senators to avoid overly partisan appointments. While the debate persists, Senate reform is not the focus of this article; just about every media outlet in the country has published op-eds weighing this or that structural change, and the topic has become somewhat exhausted. The far more salient problem at this point is what the informal role of the Senate should look like if we assume that it will exist in its current form for the foreseeable future.
Since Senators in Canada are not elected by the public, the Senate is often regarded with a sense of unease – a sentiment clearly reflected in the rules that govern its operations. Take its legislating power, for example. The Senate is not allowed to propose “money bills” — bills that spend public money or change the way that taxes are collected — the implication seeming to be that the lack of a clear connection between Canadians and their Senators gives the Senate no mandate to spend Canadians’ money. MPs and Party Leaders have also explicitly expressed their unhappiness with the Senate throughout its history, with nearly every party publicly suggesting its own version of reform at one point or another.
In 2018, however, an interesting solution to this tension was put forward by Senator Peter Harder. Instead of making formal structural changes, he proposed that the Senate adopt the Salisbury Doctrine as a framework for acceptable behaviour in the upper chamber. The Salisbury Doctrine is an understanding between the House of Commons and the House of Lords in the United Kingdom establishing that even if an opposition party holds a majority in the Lords, they should not block legislation proposed by the sitting government if it was explicitly promised in the government’s election manifesto. The idea behind this was, of course, to make sure that the will of the people would not be overridden by an unelected chamber, while also ensuring that the Senate still had the right to review other auxiliary bills. Harder was also sure to note that he felt any bill using the not-withstanding clause should be exempted from the doctrine and voted down by the Senate (for more info on the not-withstanding clause see this article). Because Parliament is a creature of convention, applying a similar understanding here in our country would have the chance to set a new precedent for the Senate’s role in Canadian politics.
While Senator Harder’s proposal might seem like a very tidy solution to a very messy issue, I am not wholly convinced. For all the criticism the Senate attracts, I believe it serves a distinct and important role in our parliamentary system, and that reaffirming its responsibilities would be more beneficial to the health of our democracy than allowing them to wane away. Right off the bat, a main worry that comes to mind is that an overly complacent Senate might allow a “tyranny of the majority” situation to go unchecked. As much as we all value the innumerable pluses of living in a democracy, nothing is perfect, and democracies do have a propensity to humour the will of the majority, even if it comes at the expense of the minority. The Senate has the unique ability to serve as a sort of safeguard against such cases. Senators not being confined by the strict party discipline enforced in the House of Commons gives them more flexibility to vote in a way they feel best reflects Canadian values and honours national interests. Even with the proviso that any bills violating Charter rights would be fair game to vote against, I worry that the doctrine would create a culture of deference to the House, making Senators less likely to oppose such a bill when it does cross their desks. The fact that Senators do not have to face reelection also means they have no obligation to play popularity politics, and are consequently less susceptible to bending to any dangerous rhetoric the majority may adopt. Advocating for racial, religious, and gender minorities has also become a part of the modern-day Senate’s mission statement, so doing away with Senators’ discretion effectively does away with a layer of protection afforded to those who need it most. And, if you still haven’t been convinced of the Senate’s merits, it has the unique ability to research bills in greater depth than the House of Commons, leading to more informed decision-making. The upshot of all of this? The Senate simply has a different function than the House of Commons, and attempting to meld the two stands to strip our democracy of its robustness.
It is also a valuable exercise to compare the conditions faced by the Senate today to those that gave rise to the Salisbury Doctrine in the first place. The first inklings of this convention came in the 1830s before being formalized over a century later in 1945. Regardless of which time point is taken to be the origin of the doctrine, the state of affairs in the House of Lords at either is practically incomparable to how Canada’s Senate works today. Rules and conventions of the House of Lords (many in place to this day) included the use of hereditary seats passed down between generations of a family, religious seats being granted to bishops of the Church of England, the partisan appointment of Lords, and the use of life-long terms (Ford). In contrast, the modern Senate of Canada uses a non-partisan committee to select candidates based on personal merit, has all but severed partisan connections between the lower and upper chambers, and imposes mandatory retirement at the age of 75. While the Salisbury Doctrine seemed more than appropriate for the House of Lords of 1945 (and its rules of dubious legitimacy), times have changed, and the relevance of the doctrine is no longer what it once was. In my eyes, the doctrine assumes the worst about a group of people who have been handpicked to best serve Canadians.
In concluding this article, the reader is encouraged to avoid looking at this issue from a place of pessimism. Disagreeing with the arguments laid out here is completely fine. In fact, disagreement is crucial to keep our democracy functioning best for every Canadian. That being said, ensure that the disagreement you might hold is not based on the cynical view that politicians have ulterior motives at heart rather than Canada’s best interest. Specifically in the Senate, the vast majority of those in office have dedicated their lives to some type of public service, so it is only fair to allow them the benefit of the doubt.
References:
Ford, Ed Selkirk. “What is the Salisbury-Adison Convention?” Policy Options, 30 July 2024, https://consoc.org.uk/what-is-salisbury-addison/. Accessed 21 November 2024.
Macfarlane, Emmett. “Senate Reform: The Good, the Bad and the Unconstitutional.” Policy Options, 21 September 2015, https://policyoptions.irpp.org/magazines/september-2015/the-future-of-the-senate/senate-reform-the-good-thebad-and-the-unconstitutional/. Accessed 21 November 2024.
“Notwithstanding Clause.” Centre for Constitutional Studies, https://www.constitutionalstudies.ca/2019/07/notwithstanding-clause-2/?print=print. Accessed 21 November 2024.
Parliament of Canada. “The Role of the Senate.” Learn About Parliament, https://learn.parl.ca/understanding-comprendre/en/how-parliament-works/the-role-of-the-senate/. Accessed 21 November 2024.
Trudeau, Justin. “The Road to Renewal.” Senate GRO, https://senate-gro.ca/timeline/senate-history/. Accessed 21 November 2024.Wherry, Aaron, and Justin Trudeau’s. “ANALYSIS | Should the Senate draw a line at the notwithstanding clause?” CBC, 22 August 2024, https://www.cbc.ca/news/politics/senate-notwithstanding-clause-constitution-1.7300921. Accessed 21 November 2024.
Image Source: Mitchell, Daryl. Senate Chamber 2. 2010. Flickr, https://www.flickr.com/photos/daryl_mitchell/4980072776/in/photostream/.