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In the wake of panic over the second reading vote on Bill C-45, to legalize recreational cannabis, the Government Leader in the Senate err, "government representative," Senator Peter Harder, penned an op-ed for Policy Options that claimed that the Senate of Canada has adopted the "Salisbury Convention" of the UK's House of Lords.  In this, Harder claims that the attempt by Conservative senators to try and defeat the bill at second reading did not have "democratic legitimacy."  The problem?  The Senate has never adopted such a convention, nor should it.

The Salisbury Convention is the practice adopted by the UK Parliament in 1945 that would ensure that the Lords would not defeat a measure that was contained in the election manifesto of the current government.  There was also a previous Salisbury Convention that dates back to the Reform Bill of 1832 (proffered by the Third Marquess of Salisbury, whereas the 1945 convention was proffered by the Fifth Marquess of Salisbury) that stated that if the government were using the Commons as a tool to pass a bill that had no express mandate of the support of the people, then the Lords had a duty to defeat it essentially making them the unelected guardians of the people.

As with so many of Harder's forays into revisionist history to try to make his points about his vision of the Senate, his invoking of the Salisbury Convention lacks any kind of historical context as to why it came to pass in the UK, which is not just about the fact that it was about the opposition Conservatives in 1945 saving face in the wake of a Labour landslide (and preventing Labour from swamping the chamber), but it was also about the fact that throughout the history of the Westminster Parliament, it has been a gradual diminution of the power of the Lords in favour of the Commons, which was a very long and slow process (and indeed, as the Third Salisbury doctrine shows, the Lords was still the preeminent power in the 1830s).  That the hereditary peers still held a lot of political power up until 1945 is not a situation that existed in Canada, in no small way because we did not have a hereditary peerage to begin with.

Indeed, when the Canadian constitution was drafted in 1867, the Fathers of Confederation ensured that the Commons would have supremacy through a couple of different means.  For one, the Senate is unable to initiate a money bill, and as we know, confidence is tied to Supply in our system of government.  For another, there is Section 26 of the Constitution, which states that the Prime Minister can request that the Queen appoint an additional four or eight senators (one or two from each senatorial region) in order to ensure that a legislative measure can pass.  The only time this has been invoked in Canadian history was when Brian Mulroney arranged for the appointment of an additional eight senators to ensure the passage of the GST.

Part of where Harder's analysis around the supposed adoption of a Salisbury Convention in Canada falls apart is that it assumes that a government with a majority should automatically get all of its electoral promises through parliament, no matter how ill-conceived they may be, or how bad the legislation implementing them is.  In fact, to suggest that this is the case would go against the very design of the Senate, which has institutional independence in order to stand up to a government with a majority without fear of reprisal.  It's a check on executive authority that the Commons can't provide outside of extraordinary circumstances when they are willing to vote non-confidence in the government.  Because the Senate is not a confidence chamber, they can defeat a bill without defeating the government.  And this doesn't even get into the problem of how this convention would hold in a minority parliament, where the other parties could reasonably state that the Senate should defeat government bills because the majority of the MPs in the House of Commons were voted in by Canadians who were in opposition to those electoral promises.

As Liberal Senator Serge Joyal pointed out in his 2003 volume Protecting Canadian Democracy: The Senate You Never Knew, the Senate has only used its veto power forty-four times to reject legislation passed by the House of Commons since 1900, and of those bills vetoed, they generally fell under five particular themes that the bill was detrimental to one or more regions; that it breached constitutionally protected rights and freedoms; that it compromised linguistic or minority rights; that it was of such importance to the future of Canada as to require the government seek a mandate to implement it from the electorate; or that it was "so repugnant as to constitute a quasi-abuse of the legislative power of Parliament."  There is no indication that the Senate has abused its veto, regardless of the threats and hysterics around the vote on C-45.

What this is ultimately boils down to is that Harder once again doesn't actually want to do his job.  He refuses to negotiate on legislative timetables with the other caucuses in the Senate because he insists that any kind of horse-trading is "partisan," preferring to fob it off onto a business committee that he keeps proposing.  He was caught with his pants down around the C-45 vote because he couldn't be bothered to canvas the independent senators about their voting intentions, so he wants a guarantee that these kinds of bills can't be defeated.  After all, it's supposed to be his job to ensure that the government's agenda makes it through the Senate, but time and again, we have seen that he doesn't want to do the actual work that it entails.  By inventing the supposed adoption of this convention, he is trying to ensure that he has even less work to do in the future essentially shouting to the Conservative senators that they can't defeat government bills because they were election promises.  This op-ed is just political cover for the fact that he's not doing his job and is trying to engineer an excuse to keep it up.

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.


During the 2017 Conservative Party leadership race, I convened a Facebook group called Libertarians and Common Sense Conservatives for Maxime Bernier.  At its peak, the group contained 750 members from across Canada.  It was an eclectic bunch, a microcosm of the party's big blue tent: social conservatives hoping for free votes in Parliament (if nothing else); hunters and sports shooters who welcomed his stance on firearms; twenty-something meme-makers who loved the "Mad Max" brand; young libertarians in search of a standard-bearer; fiscally conservative wonks who were overjoyed at the prospect of a party leader taking audacious policy positions, potentially making up for the squandered Harper majority.  Finally.

Bernier's narrow loss to Andrew Scheer hit hard.  His promise to "be silent" in the near future on supply management  the emblem of his appeal to his base didn't help.  But it was understandable.  Ottawa is notoriously inhospitable to people who wish to keep opinions of their own.  No doubt Bernier, for all his promises of loyalty, felt stymied.  His biggest contribution as the Conservatives' critic for innovation, science, and economic development has been a private members' bill calling for more transparency in federal business loans.  It's on-brand, if watered down.

In some ways, Bernier's recent attentions to the "culture war," as most of us think of it the war between social justice warriors/post-modern neo-Marxists and . . . everyone else, I guess is also on-brand.  On the campaign trail, he framed his rejection of the anti-Islamophobia M103 as a matter of free speech.  He used the same framing in March after Liberal MP Celina Caesar-Chavannes told him to "check his privilege and be quiet" after he attacked funding for programs for "racialized Canadians" in Budget 2018.  Caesar-Chavannes later offered a dialogue, which Bernier, unhelpfully, snubbed.

Caesar-Chavannes may not have intended it to be so, but she set a common Liberal trap: give a Conservative an opportunity to respond indignantly to minor social justice measures, which they will inevitably take, thereby creating an opportunity for yourself to look morally superior in your defence of a downtrodden group.  Bernier certainly isn't the first to fall for this one, and won't be the last.  But his experience with Caesar-Chavannes has had the unfortunate but typical effect of giving him an inordinate focus on identity issues: wishing Canadians well as they culturally appropriated from the Irish on St. Patrick's Day, quoting University of Toronto not-political-science-or-economics professor Jordan Peterson's take on the budget, asking if a directive for Service Canada employees to use gender-neutral language (until advised otherwise by the client, it must be said) was an April Fools' Joke, and preparing Canadians to be told "how systemically racist and intolerant" they are during one of those protracted, ineffectual consultations the Liberals love.

There is an audience for this message.  That's why Jordan Peterson gets asked for a budget comment.  But for people who were drawn to Bernier for other reasons for his willingness to enter the Thunderdome on much more serious issues like supply management, healthcareforeign aidthe tax code, and the CBC's mandate  the identity-focused culture war isn't just distracting.  It's distasteful.  That culture war is a matter for campus reactionaries and columnists who wish they were campus reactionaries, not for Mad Max.

This time last year, Bernier was in the home stretch of a very different culture war, in which the enemy was Canada's conventional wisdom.  He was the only person in Parliament willing to call out the flaws in the foundations of cherished political institutions.  In doing so, he took huge risks with his own political capital, even in the riding he inherited from his father.  As a foot soldier for his thoroughly conventional ex-rival, he has little room to be bold, except when it comes to those classic Liberal tripwires.  But where Scheer and the identity obsessives have gained a foot soldier, Bernier's base has lost a road warrior.

Written by Jess Morgan

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.