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.