It's becoming a bit of a trite comeback on social media, whenever certain Conservative senators express their displeasure at some Liberal policy or other, to remind them that they only promised to serve eight years. "It will be a shame losing your thoughtful contributions in the Senate when you resign as promised this August," Rob Silver tweeted to Senator Linda Frum the other day over an issue they were sniping at one another about.
When the Hill Times ran a story about the eight-year promise a few weeks ago, a number of those Conservative senators insisted that this promise was apocryphal at best, or a media fabrication being used to attack them at worst (never mind that other Conservative senators acknowledged that they made such a promise and some of them still insisted that they may yet live up to it). Others still said that while they may have made the promise at the time, it was with the understanding that Stephen Harper was going to legislate term limits something that he attempted to do on a number of occasions but was blocked, and the whole notion was shot down entirely by the Supreme Court of Canada in their Senate reference decision that stated that it wasn't something that Parliament could do on its own, but rather that it would require the constitutional amending formula of seven provinces representing more than fifty percent of the population. With those legislated term limits no longer on the table, those senators no longer feel bound by that promise because it places them on an un-level playing field with other appointees, or so the logic goes.
The romance with term limits in the Senate is one that hasn't really gone away, and it seems to be predicated on a number of different things. For one, there are prime ministers who have made very young appointments to the Senate, and when you think that there are still a couple of senators still sitting, for better or worse, that were appointed by Pierre Trudeau in the early 1980s, it sets a few people's sensibilities on edge. For others, it's a stepping stone toward the dream of an elected Senate, where you have term limits that are either renewable or not (there is no uniformity on how they want an elected upper chamber to operate), which means that the debate around term limits seems to be predicated on this distinction.
During the Harper era, a variety of proposals were put forward that suggested terms that were in the eight-to-ten-year range, but non-renewable (at least at first), which is partly where the promise stemmed from. Part of the problem with those term limits and far more with eight-year limits, but still as much with ten-year limits is that a prime minister with back-to-back majorities can essentially turn over the entire population of the chamber, which is hugely problematic when it comes to having the chamber serving an accountability function, or its ultimate function of being a check on a prime minister with a majority government. While twelve-year terms are probably the bare minimum that would be acceptable from that particular perspective, it ignores some of the other reasons why we have a chamber that operates with its tenure appointments.
When the Senate was first created, appointments were for life, which was changed to age 75 in 1965, owing in part to longer life-spans than in 1867. Age 75 is also the mandatory retirement age for judges and other senior positions, so it's consistent in that regard. Why this length of tenure to a mandatory retirement age is important is because it's part of creating the chamber's institutional independence. The Senate needs the ability to speak truth to power, and to stand up to prime ministers with majorities in the House of Commons, which is why it's virtually impossible to fire a senator without their first having been convicted for a major criminal offence, or as we saw recently with the Don Meredith imbroglio, a major ethical breach that the rest of the Senate agrees was heinous enough to warrant declaring their seat vacant. In such a case, it's also an important distinction that it's the Senate itself that vacates the seat by means of internal discipline rather than the Prime Minister and cabinet giving the order, because doing so would mean the check on their power is worthless.
Where the mandatory retirement age becomes important is because the security of tenure is another way to keep Senators from feeling pressure to bow to the will of the government. A senator know knows there are term limits would be far more likely to try and curry favour with the government to either try to get re-appointed, if terms were made renewable, or the more likely scenario, of trying to curry favour in order to get another appointment once their term is up, be it to a diplomatic posting, or to head an administrative tribunal, or any number of other Governor-in-Council appointments that the PM and cabinet do have a say over. And that's why age 75 is a magic number because any of those other posts tend to be ruled out by that point as well. Which isn't to say that we haven't seen examples of sitting senators lobbying for other appointments, because we absolutely have (though in the examples I'm aware of, they never did get the posts they lobbied for), but the incentive is no longer there to make it something relatively necessary.
When it comes to any promises of eight-year terms that any of these senators may have made to Stephen Harper upon appointment, we should consider them null and void for the very reason that such a promise was unconstitutional. Stephen Harper's reform plans may have seemed high-minded at the time, but were in practice a continued assault on the independence of the upper chamber, along with his mass appointments and the brandishing of the whip to those new senators. Any insistence on holding senators to those promised limits is tacit endorsement of that assault, regardless of how you feel about those senators.
