In the wake of the Senate spending scandals, Stephen Harper has decided that he’s not going to fill any Senate vacancies for the time being, apparently unaware that he’s in abeyance of his constitutional obligations to do so. But more than that, he is both precipitating a future crisis for the chamber, and breaking the promises made by the Fathers of Confederation almost 150 years ago.
It has become the fashion among the pundit class and certain opposition MPs lately to declare that Harper should just keep refusing to appoint senators in the hopes that one day the attrition will simply force the upper chamber to wither away simply vanish from lack of membership, and that it can be done without a constitutional amendment. Problem solved, ingeniously! Of course, anyone with half a clue about the way our system of government works also realizes that this is not only unrealistic, but is simply a recipe for legislative paralysis since it’s explicitly written in our constitution that Parliament consists of the Commons, the Senate, and the Queen, and that legislation must pass all three before it can become law. If you want to change that order of things then guess what – you’re going to need to change the constitution.
Undaunted, would-be clever commentators and partisans have wondered whether the constitution dictates that there be a minimum number of senators, and if one could simply adhere to that bare minimum in order to keep legislation flowing and leave it at that. And while one could reply that quorum in the Senate is 15, one wonders why you would really want to concentrate that much power in the hands of 15 individuals with few constraints, institutional independence, and an absolute veto over legislation. It hardly seems wise. The real answer, however, is that the minimum number of Senators is really 105 – just as there is no “minimum number” of MPs in the Commons, and why it has been mandated that by-elections be held to fill vacancies within six months.
Vacant senate seats are as anathema as they would be in the Commons because the Senate exists for a purpose under our constitution. In fact, it was the deal-breaker when it came to Confederation because the minority provinces and populations in this country demanded the protections that the Senate afforded them that the Commons could not if it was to be based around the principles of representation by population. When a prime minister doesn’t appoint senators to fill vacancies, he or she is not only denying those provinces of their rightful representatives, but he or she is also breaking the terms by which Confederation came to be.
Oh, but they’re not elected, so how can they be representative? Such an attitude presumes that there is really only one type of representation that can happen. People seem to forget that there had been elected members of the Legislative Councils – the pre-confederation upper chambers of the colonies – and that they had largely soured on the experience. One of the best descriptors of these elected proto-senators was that they were Triple-R: rich, rural, and reactionary. It was becoming a problem the amount of money that they had to raise and spend in order to wage an election campaign across the whole of the colony rather than a defined electoral district like an MP. And when the time came, the Fathers decided to go a different route, choosing appointed representatives that had the institutional independence enough to speak truth to power, and who could best represent minorities in a way that elected officials could not because that minority representation was guaranteed by virtue of appointment. And yes, they have as much constitutional legitimacy as a representative as an elected MP does.
There is a further problem with the increasing number of vacant senate seats in that a large influx of new members when they are filled causes a shock to the system. This happened in 2009, when Harper appointed eighteen senators in one fell swoop after previously refusing to appoint any senators who hadn’t been elected in a provincial process (Michael Fortier excepted). While the Senate can easily absorb two or three members at a time without disruption, and give those new senators time to learn the ways of the upper chamber – a process that can take up to three years – a full fifth of its membership at once caused a shock to the system.
It’s one of the reasons why the independence of the Senate has been so damaged in recent years – too many new senators without a sense of their roles, being told by their senate leadership that they can be whipped like MPs can, and acting out of a sense of obligation to the prime minister that appointed them. So many at once is why the Senate became more of an echo of the backbenches of the Commons, with pliant senators willing to do the Prime Minister’s bidding unquestioned, and why it’s only now that those senators are starting to get a firmer grasp of their roles and responsibilities and are starting to exercise more independence, as we’ve seen increasingly over the past few months.
But Harper is on course to repeat this shock to the system as the current number of vacancies sits at nine, with more on the way. Sure, Harper has a right to be nervous, given that his track record on appointments can’t exactly be called stellar, and so much of that is his own fault – the first batch of 18 weren’t properly vetted because he abdicated that responsibility until he panicked and made those appointments before an opposition coalition could do it for him. But he has the time and the people who can do the vetting properly now.
By leaving these seats vacant, Harper is not only looking to create more problems with the system down the road, but he is breaking the covenants of confederation. Canadians should care about this because it’s their representatives, their parliament, and their country that is ultimately being underserved.
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