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Ask a New Democrat about the Senate, and they'll pretty much immediately bring up the defeat of the Climate Change Accountability Act in 2010 as one of their many grievances against the upper chamber.  It's one of those pernicious talking points that keeps getting recycled, and it reared its head yet again during the Maclean's leaders debate last week.

"This is the first time in the history of this country that appointed senators have killed a bill without a single day of study in the Senate of Canada," admonished Elizabeth May.

"What greater proof of a lack of respect for our fundamental democracy than asking unelected people to defeat a bill voted upon and enacted by the elected Parliament?" Thomas Mulcair decried.

The unspoken irony of Mulcair's statement is that the unelected Supreme Court will strike down bills enacted by an elected Parliament, and he certainly doesn't complain about that.  (We should also note that Mulcair also conflates the House of Commons with Parliament as a whole, which it most certainly is not).

The problem with using this particular bill as the issue to kick the Senate on is that it's one that almost everyone gets wrong in terms of what happened, and why the bill was defeated particularly because its defeat was actually safeguarding our system of parliamentary democracy.

The bill, C-311 as it was titled in the 40th parliament, would have demanded that the government set regulations to attain greenhouse gas reductions, in accordance with Kyoto protocol targets.  It has been introduced in the previous parliament by Jack Layton, but died in the Senate when that parliament was dissolved for an election.  In 2010, with the bill resurrected under Bruce Hyer's name, the Senate defeated it outright on a second reading vote.  (Hyer, it bears noting, later crossed the floor to the Green Party in the most recent parliament).  While there were some particular procedural issues with the vote itself, the fundamental problem remained that the bill was out of order, and should never have been allowed to pass the House of Commons.

Quite simply, in our system, governments govern, and the opposition opposes. It's a basic organizational principle, and it keeps the focus of MPs and senators on holding the government to account.  But seeing as the 39th and 40th parliaments were minorities, the opposition parties decided to try and use their numbers to govern from the opposition benches something that is clearly out of order.  Unless those opposition parties defeat the government and form a new governing arrangement, either by partnership or coalition, then they don't get to govern, even if they have more votes.  And yet, this was a blatant attempt to do just that, in keeping with Layton's clearly wrong notion of being in "proposition not opposition."

The other problem with the bill and it's not an insignificant one is the issue of costs.  The fundamental principle of private members' bills is that they cannot spend government money.  To do that, they need a royal recommendation, and C-311 certainly did not have that.  Instead, they managed to skirt the issue by giving the too-cute-by-half explanations that the bill was just about requiring regulations, or reporting on achieving targets.  While it's a clever attempt, it glosses over the very real fact that in order to achieve those GHG reduction targets, the government was going to have to expend some serious money.  The Speaker never should have allowed it, but for some reason he did, and the bill passed the Commons.

In the Senate, however, it was in for a rougher ride.  The Conservatives dragged their feet, and when Liberal Senator Grant Mitchell forced a vote on it, he made a couple of particular strategic blunders, not the least of which was the fact that he asked for a one hour bell.  Had it been a thirty-minute bell, it likely would have passed, Conservative senators later told me.  Instead, they were able to get enough people in place to stop the vote, and defeat it on second reading.  Other Liberal senators would later admit that there was really no chance that the bill would pass, and they had concerns about its propriety, but they did want to at least let it go before committee so that everything could be fleshed out, and its problems laid bare something that rarely happens in the Commons because debate on private members' bills is time-allocated, and committee study tends to be a mere couple of hours, leaving the Senate to do the hard lifting.

But there was plenty of awareness in the Senate that the bill was out of order.  MPs, however, have a tendency to ignore that particular problem.  They are happy to get PMBs through on technicalities because it means that theirs can be next we saw a prime example of that with C-377 in this past parliament, where a bill that would create a massive new bureaucracy within the Canada Revenue Agency not only passed the royal recommendation test, but eventually Parliament itself, because of niggling technicalities (including, in the end, the technicality in the Senate rules that allows the majority to overrule the Speaker).  They're also too quick to decry the Senate defeating bills that passed the democratically elected Commons as though the Commons were incapable of passing bad bills (and the number of bad bills has been climbing since rules changes allowed the proliferation of PMBs).

In defeating the Climate Change Accountability Act, the Senate clearly did its job, even if the procedural shenanigans around that vote muddied the waters.  MPs may not like it because they tried to game the system and were thwarted in their attempt.  That doesn't mean that the Senate did anything illegitimate or wrong, and it certainly doesn't impugn on the legitimacy of the institution.  MPs, candidates and leaders should best be aware of the facts before they try to score more cheap points off of this particular incident.

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