Guest Post: Senate Abolition as a Matter of Law and Politics
Once again, I have been lucky enough to snag a guest post from an academic expert in a topical field – this time from the former Dean of Law at the University of New Brunswick, who in his former life worked on Meech Lake and Charlottetown, and on constitutional and intergovernment issues for several premiers.
Today, Ian Peach is arguing that Senate abolition is a much easier prospect legally and politically than has been realized. And, interestingly, that one of the provincial legislatures could choose to get the ball rolling if Ottawa won't.
Senate Abolition as a Matter of Law and Politics
… or, How to abolish the Senate in 8 easy resolutions
by Ian Peach
Should we abolish the Canadian Senate is a top of mind question these days. Could we, though? That’s a matter of both constitutional law and intergovernmental politics.
On the first question, and in spite of the contributions made by a number of good Senators over the years, I’ve concluded the right answer is “yes”. People of that calibre do not need to be Senators to exercise influence over Canadian society – they did so before becoming Senators, and could do so equally without a second chamber to be appointed to.
How to abolish the Senate is a separate question, though, and we need to address both the theory and practicalities.
As a matter of constitutional law, our governments can amend the Constitution as they see fit – the only question is how many provincial governments need to agree to a particular amendment, in order for it to be adopted. While there is some uncertainty – which is why the federal government has asked the Supreme Court’s opinion on the requirements for Senate abolition – it seems most likely that the Senate could be abolished by resolutions of Parliament and the legislatures of seven provinces having 50 per cent of the population of all provinces (the 7 and 50 rule).
Moreover, the Constitution does not require that Parliament start the process of adopting a Constitutional amendment. Any provincial legislature could pass the first resolution and get the ball rolling. For example, the Québec National Assembly was the first to pass the resolution to entrench the Meech Lake Accord in the Constitution. The other legislatures would then have three calendar years to complete the process.
So I ask: why not start the Senate abolition ball rolling in a province, rather than in Ottawa?
The resolution would be simple: that sections 26 through 31 of the Constitution Act, 1867 be repealed.
Of course this brings us to the practicalities.
The stars seem to be aligning in favour of such a constitutional amendment. Moving west to east, newly-re-elected BC Premier Christy Clark is on record as preferring Senate abolition, and Saskatchewan Premier Brad Wall re-iterated last week his earlier view that it’s time to abolish the Senate. As well, Manitoba Premier Greg Selinger has already stated his government’s preference for Senate abolition. That’s three of four western provinces then.
Looking to Central Canada, while the current Ontario Premier Kathleen Wynne has recently commented that she would like to see the Senate reformed rather than abolished, her predecessor Dalton McGuinty clearly came out in favour of abolition in 2011. As well, Wynne leads a minority government, and the Ontario NDP supports abolition. Wynne has indicated that she will not put Senate reform onto the agenda for this summer’s Council of the Federation meeting, the annual premiers’ conference which she is hosting. One wonders, though, how she would react if a wave of support for abolition came from the other premiers present.
As for Québec Premier Pauline Marois, while she does not seem to have said anything on the matter, Québec governments have traditionally not been Senate supporters. They see themselves as the proper defender of Québec’s interests, rather than Senators appointed by the Prime Minister. It is hard to imagine that Premier Marois, at the head of a Parti Québécois government, would oppose a proposal to abolish the upper chamber.
That leaves Atlantic Canada. New Brunswick Premier David Alward has expressed support for the Prime Minister’s Senate reform plan in the past, but it’s not clear what he will do if the Prime Minister officially shelves his Senate reform proposals (which the PM has effectively done already).
As well, New Brunswick is going into an election next year and the New Brunswick NDP is gaining ground in the polls, to the point where New Brunswick now looks like a three-way race. If the NDP were to hold the balance of power in a new government, where New Brunswick would come out on Senate reform could change.
PEI Premier Robert Ghiz supports a Senate with equal representation of the provinces, but he is certainly not a strong supporter of the Senate as it exists. The PEI NDP, an advocate of Senate abolition, is making inroads in public opinion polls in the province as well, having ranked second in recent polls. It is not clear where Premier Ghiz would come down if it was clear that equal representation of provinces in the Senate was either impossible to achieve or would mean other provinces insisted on reducing PEI’s MP quotient from four to one, as would likely happen.
In Nova Scotia, Premier Darrell Dexter, on the other hand, is definitely in favour of Senate abolition and has spoken out on the matter in the past. Meanwhile, in Newfoundland and Labrador, Premier Kathy Dunderdale has said that the provincial government is interested in Senate reform, but is not interested in seeing reforms lead to a reduction in the representation of the province in Parliament or reforms that would download costs onto the provincial government.
She also wants to see substantial constitutional reform that makes the Senate effective and gives it a real mandate — a goal that already proved impossible to achieve, witness the failure of the 1992 Charlottetown Accord that took a chunk out of the reputations of several premiers with it (who from that era can forget “Premier Bonehead”, for example).
By that count, there are four premiers who clearly favour Senate abolition, one other likely in favour, at least two others whose governments are watching over their shoulders for pro-abolition NDP wings gaining strength, and one premier heading a minority government whose party has already flip-flopped on the question.
As well, in Atlantic Canada at least, the future of the Senate is a pocket-book issue. With the federal government making changes to Employment Insurance allegedly to save money and balance the budget, saving $92.5 million annually by abolishing the Senate instead starts to look attractive.
So I think getting the necessary seven provinces that represent at least 50 per cent of the population behind a resolution to abolish the Senate would certainly be possible today.
Admittedly, both BC and Alberta require a referendum before their governments participate in constitutional reform – in BC’s case, before the government even introduces a resolution into the legislature. When we look at how strong public support for abolition is these days, though, the necessity of a referendum does not seem like such a big impediment. Forty-three per cent support for outright abolition in the latest CTV-Ipsos Reid poll, compared with 45 per cent for reform and only 13 per cent for the status quo suggests abolition is as popular today as it’s ever been. If British Columbians were asked to choose between abolition and the status quo, which realistically is the only question that could be asked, one suspects abolition would win the day handily.
So, what about Ottawa? In the House of Commons, NDP leader Tom Mulcair is leading the charge, launching a campaign this past week to “roll up the red carpet” and abolish the Senate. Prime Minister Harper, too, while having most recently proposed reforms to the Senate, has said in the past that if it cannot be reformed, it should be abolished, and he has asked the Supreme Court of Canada to, among other things, pronounce on what it would take to abolish the Senate. Even the Government House Leader in the Senate, former Mulroney stalwart Marjory LeBreton, has said we should abolish the Senate if it cannot be reformed (which it can’t).
That only leaves Justin Trudeau defending the existing Senate. In his view, all we need is for Prime Ministers to appoint better Senators. The history of Prime Ministerial appointments, on the other hand, including any number by his own father, does not suggest that Prime Ministers are likely to demonstrate a consistent commitment to making better appointments.
Given the rise in the public’s disgust with the Senate and the realistic possibility that enough Premiers would jump on the abolition bandwagon to make it possible to achieve, we need someone to start the ball rolling. Federally, the NDP has already introduced a motion into the House of Commons to begin the process of Senate abolition, but it was defeated by the Conservatives and Liberals. Might the Prime Minister give up on Senate reform, though, and begin the movement towards abolition?
Premier Wall has now said that he wants to poll Saskatchewan Party members about whether the Saskatchewan Party government should support Senate abolition. Might Saskatchewan initiate the abolition process? Premier Dexter, how about you? With a Nova Scotia election looming, would this be a good plank in an election campaign platform?
Today, possibly more than at any other time in Canadian history, Senate abolition actually seems to be a realistic possibility. The only question is: who’s ready to take the first step?
Ian Peach is currently a consultant with KTA Inc. He is a former Dean of Law at the University of New Brunswick, Director of the Saskatchewan Institute of Public Policy, and advisor to federal, provincial, and territorial governments on constitutional law and public policy issues.