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The Canadian Senate in Bicameral Perspective [1 ed.]
 9781442680609, 9780802087881

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THE CANADIAN SENATE IN BICAMERAL PERSPECTIVE

The Canadian Senate in Bicameral Perspective is the first scholarly study of the Senate in over a quarter century and the first analysis of the upper house as one chamber of a bicameral legislature. David E, Smith's aim in this work is to demonstrate the interrelationship of the two chambers and the constraints this relationship poses for Senate reform. He analyses pastliterature on the Senate and current proposals for reform - such as a Triple-E Senate - and compares Canada's upper chamber with those of Australia, the United States, Germany, and the United Kingdom, noting a revival of interest in Canada and abroad in upper chambers and bicameralism. Drawing on parliamentary debates and committee reports, as well as a broad range of secondary sources, The Canadian Senate in Bicameral Perspective examines the Canadian Senate within the international context, shedding light on its role as a political institution and arguing for a renewed investigation into its future. DAVID E. SMITH is a professor emeritus sin the Department of Political Studies at the University of Saskatchewan.

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The Canadian Senate in Bicameral Perspective

David E. Smith

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

www.utppublishing.com University of Toronto Press Incorporated 2003 Toronto Buffalo London Printed in Canada ISBN 0-8020-8788-4

Printed on acid-free paper

National Library of Canada Cataloguing in Publication Smith, David E., 1936The Canadian senate in bicameral perspective / David E. Smith. Includes bibliographical references and index. ISBN 0-8020-8788-4 1. Canada. Parliament. Senate. I. Title. JL155.S65 2003

328.71'071

C2003-900685-9

This book has been published with the help of a grant from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

For my students

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Contents

Preface ix Parti 1 Bicameralism: A Concept in Search of a Theory 3 2 Bicameral Perspectives 22 3 The Senate as an Object of Study 47 Part II

4 Representation 67 5 Federalism 89 6 Legislation 110 7 Responsible Government 131 Part III

8 The Canadian Senate: What Is to Be Done? 149 9 Conclusion 176 Notes 185 Bibliography 227 Index 251

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Preface

Is it time for another book about the Senate of Canada? The upper house of Canada's Parliament is the subject of perpetual complaint but the site of little formal reform. In 1965 lifetime appointment was changed to mandatory retirement at age seventy-five, and two decades later the Constitution Act, 1982, limited the Senate to a suspensive or delaying veto on subsequent amendments to the constitution of Canada. Nonetheless, much has changed in the recent operation and composition of the Senate, albeit not by formal amendment, and for that reason readers may deem a new book on Canada's only remaining upper chamber useful. Public opinion about the Senate being what it is - largely critical some justification for this enterprise is in order. It is worth noting that every two or three decades for almost a century, Canada's upper house has been the subject of an academic study. Such episodic treatment requires elaboration. There appears to be, first, a recurring need to renew public understanding of one of the major institutions of government; secondly, a sense of obligation to explain why the Senate appears impervious to formal change; and, lastly, an imperative to interpret the constitutional role of the Senate in a manner that is theoretically coherent. This last task has assumed renewed importance in recent decades as emphasis on political structures, accountability, and participation grow and as domestic critics invidiously compare Canada's upper house with those of Australia and the United States. Legitimacy is often cited when discussing the Canadian Senate, although the word is usually employed in its negative form because an unelected Senate is deemed not legitimate. The meaning of that label is rarely analysed, although presumably it is not to suggest that the

x Preface

senators hold their position illegally or even unconstitutionally, since the manner by which they achieve and conduct their office is consistent with the practice and usages of the Constitution. Rather it is implied that, as an upper chamber, the Canadian Senate is counterfeit: no other country of Canada's political and constitutional repute has a second chamber that is wholly appointed. It is this uniqueness that explains a steady succession of governmental and non-governmental studies, as well as journalistic articles, promoting a change in the system of senatorial selection. These proposals offer a splendid array of alternatives. The only characteristic they share in common is that they are hermetic: that is, they treat the Senate as a self-contained entity. There is no acknowledgment of the profound implications for the political system that would flow from such changes. Nor is there recognition that an elected Senate, but without a separation of powers, is a very different entity from the United States Senate; or that an elected Senate in a British-styled parliamentary system that does not subscribe to a theory of popular constitutionalism (as found in Australia) is theoretically suspect; or, finally, that an earlier enthusiasm for a provincially constituted senate modelled on the German Bundesrat will result in a different arrangement of power in Canada, where there is neither a Bundestag (with its mixed electoral base) nor Germany's administrative style of federalism. Here, then, is the first reason for a new book on the Senate: to summarize second chamber developments over the past three decades and to place these in a comparative context. But this study of the Canadian Senate differs from past treatments by analysing the second chamber as an institution of Canada's only bicameral legislature. Canada is unique among federations in being bicameral at the centre but unicameral on the periphery. That helps to explain the insensitivity its antihistorical politicians and academics display toward the complexities of bicameralism. And there are complexities because bicameralism is on the rise. The high tide of unicameralism - New Zealand 1952, Denmark 1953, and Sweden 1970 - has ebbed. In the new European democracies, in the restored civilian rule of Latin American republics, in the European Union (where in 2001 German Chancellor Gerhard Schroder proposed that the community's existing Council of Ministers become an upper chamber on Bundesrat lines), bicameralism prospers but goes unremarked and unopposed. A new literature has emerged that reflects what might be called the bicameral assumption. This is illustrated by

Preface xi

the Report of the Royal Commission on the Reform of the House of Lords, A House with A Future, along with a series of legislative studies from the Constitution Unit, University College London; while the fiftieth anniversary of the introduction of proportional representation in Senate elections in Australia has produced a collection of papers, Representation and Institutional Reform, on its consequences. These works and others in the bibliography signify scholarly interest in an area of politics that has often been ignored. This has been the case in Canada, as a survey of the indexes to political science textbooks will confirm. But studies of Senate reform do not fill the gap. The purpose of this book is to unite the two topics - that is, to integrate the discussion of Senate reform with the theory of bicameralism. Contrary to prevailing opinion, it argues that Senate reform is not a question of elections to the second chamber but rather of determining how that body should complement the work of the elected House of Commons. The premise is that, absent this linkage, reform is impossible. The new literature argues that 'bicameralism matters.' This book agrees with this proposition, and it goes further; it maintains that one reason everyone talks about Senate reform but nothing happens is because the Senate matters. The difficulty in Canada is that the upper chamber matters to different people in different ways; in short, it is part of the whole realm of representation. If that is the case - and Canada is not unique in this regard; Eamon de Valera speaking of Ireland's predicament said an ideal Senate was not possible - then it is fundamentally important that Canadians agree on the second chamber's purpose. Without such agreement, there can be no consensus on the design of the chamber. It is essential to escape from imprisoned ideas of what a second chamber should be, to escape the tyranny of example. Many distinguished men and women (along with some not so distinguished) have sat in the Senate. However, few were as constitutionally acute or articulate as the late Eugene Forsey. Speaking on one occasion of federalism, but the remark holds equally true for the design of Canada's Senate, he rhetorically asked: 'What if we started from the premise that Canada is not the exception to the rule but its own rule and then marvel at that rather than try to fit it into some other box.' I have dedicated this book to my students. After nearly forty years of teaching, there are many of them, some even in the Senate. While my responsibility has been to lead them, they have, less overtly, helped mould my interests and questioned my assumptions. Every professor

xii Preface

will attest that students are one of the joys of the occupation. But so too is research and writing. As in the past, I am indebted to individuals and institutions for their support. Among these are Michael Atkinson, vice president (academic) and provost, University of Saskatchewan, Dianne Brydon, John Courtney, Donna Greschner, John Higley, Andrew Hubbertz and his staff at the Government Publications Room of the University of Saskatchewan Libraries, Senator Serge Joyal and the staff of his office, Paul McCormick, Louis Massicotte, Howard Millard, Ted Morton, Gary O'Brien, Charles Robert, Tom Round, Meg Russell, Campbell Sharman, Donald Shell, Donald Story, and Duff Spafford. I have also received valuable assistance from officials in the Senate of Australia and the National Archives of Canada. I wish especially to acknowledge the help given me in this project by David Brock, a graduate student. As a research assistant, with computer skills I lack, he lightened the load the Internet imposes on the technically challenged. Since this book is dedicated to a generation of students, I have chosen to consider Mr Brock the representative type efficient, enthusiastic, and effective - Triple E in his own right. I am, as I have been in the past, indebted to Lorrie Burlingham for her patience and perseverance in transforming my nearly indecipherable handwritten manuscript into an admirable typed copy. The University of Toronto Press provided its reliable services, including the assignment of that sharp-eyed editor, Diane Mew. Indexer Bobbi Coulter has saved me hours of tedious work, for which I give thanks. The award of a general research grant by the Social Science and Humanities Research Council of Canada helped to defray expenses associated with research in Canada and abroad, and with manuscript preparation. This assistance I am pleased to acknowledge. Finally, although the book could not have written without the help of others, I alone am responsible for the text that follows.

PART ONE

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Chapter One

Bicameralism: A Concept in Search of a Theory

The Senate is Canada's only legislative second chamber and Parliament its only bicameral institution. It was not always so: the Maritime provinces, Manitoba, and Quebec once had upper houses called legislative councils but the last, Quebec's, was abolished in 1968.1 Canadian academics have displayed no lack of interest in the Senate as an institution: between 1926 and 1978 three major works of political science appeared in English that examined the federal upper chamber.2 Yet while they do not ignore the House of Commons, the reciprocal relationship between the two chambers goes largely unexplored. In this respect, research priorities mimic social attitudes, since public disenchantment with the Senate directs attention to discrete aspects of the Senate's composition and work. For instance, the manner of senatorial selection - appointment on recommendation of the prime minister - and the alleged failure of the institution to incorporate and express provincial sentiment are subjects of repeated commentary. And there are those, always a minority, who wish to abolish the Senate and move directly to unicameralism. Details of criticisms raised against the Senate and of suggested reforms to the current second-chamber arrangement will be analysed in Part Two of this book. For the moment it is sufficient to note only public disfavour with the Senate and lack of interest in the bicameral arrangement of legislative power currently in place. These introductory remarks lead to the preliminary observation that there is a predisposition to unicameralism in Canadian politics. An extreme conclusion, perhaps, yet one that gains credence when placed in context. Consider the personal invective directed at senatorial appointees - at best as partisan loyalists, at worse as '"ethnic vote brokers and cultural pimps" for the federal Liberals.'3 Here is a modern Cana-

4 The Canadian Senate in Bicameral Perspective

dian equivalent of what Garry Wills discovered in the decades leading up to the American revolution, when colonists verbally pummelled English politicians using 'accusation as an instrument of reform.'4 Whether the goal is abolition or reform, denigration is meant to undermine the Senate's legitimacy. And it works. Consider, for instance, that doubt about the Senate's status is asserted by informed and respected commentators: '[I]t lacks legitimacy as a representative body/ says C.E.S. Franks; Gordon Robertson believes that 'the Senate will achieve a faint tincture of legitimacy as a voice of regional interests if ... federal patronage is diluted by recommendation from a province for a nomination to fill a Senate vacancy/ while the Royal Commission on the Economic Union and Development Prospects for Canada (the Macdonald Commission) uses phrases like 'institutional failure' and speaks favourably of second chamber models designed to incorporate provincial representation in the central institutions of government.5 Consider, again, that even within the Senate, members deplore the 'constant denigration of the institution by ourselves [which contributes to] the gulf between public perception of the Senate and its reality.'6 Lamentation from all sides cannot be dismissed. Nonetheless, such uniformly negative opinion leads one to ask how much of this criticism is echo. Familiarity breeds more than contempt; it encourages inattention. When a close observer of Canadian political institutions writes that 'Senate reform is not worth the effort if it does not terminate appointment and substitute election as the basis of membership/ then the purpose of a bicameral legislature is thrown seriously into doubt.7 There is much to be said against the Senate, but the fact that it is not elected is not one of them. Nor (despite repetition since the early 1980s) is election necessary for or an aid to effective bicameralism. In both the criticisms and the proposals for reform, there is slight regard for the Senate as a chamber of a single Parliament. The title of Gordon Robertson's book is taken from St Mark's Gospel; its injunction - that a divided house cannot stand - however could be applied with profit to Parliament itself - where the work of each house should complement the other. The reasons for this disposition to see the parts and not the whole of Parliament are both short-term and long-term. In the short term, that is the last forty years, Canada has been preoccupied with reducing strains within its federal system. Neither federalprovincial nor English-French tensions are new phenomena, but large-scale, concerted attempts to address their causes, in the form of language legislation and almost continuous constitutional negotiation,

Bicameralism: A Concept in Search of a Theory 5

are unprecedented. The political careers of such leaders as Pierre Trudeau, Joe Clark, and Brian Mulroney have, to a large extent, been moulded by this issue. One result of a constitutional debate defined over decades almost exclusively in terms of federalism is that it exhausts interest in other kinds of constitutional issues. To the extent that unity concerns in this period have had to share the spotlight, the rival has been the Canadian Charter of Rights and Freedoms. None the less, the one remedy for Canada's federal problem increasingly advocated after the 1970s is Senate reform. While the prescriptions differ, they begin with a common diagnosis: insufficient attention and responsiveness in the upper house to provincial interests. (As an aside, the same argument is advanced for abandoning the plurality electoral system in favour of some form of proportional representation). From the 'unity' perspective, the health and vigour of a bicameral legislature are of secondary importance. However, this book will argue that a less provincial-centric view might see in the Senate an opportunity to develop national political debate and policy. The long-term explanation inevitably invokes the influence of Walter Bagehot. A journalist, Bagehot is best remembered for his book, The English Constitution, in which he anatomized monarchy and the institutions of Parliament.8 If the work had a theme, it was captured in the famous dichotomy he made between 'dignified' and 'efficient' institutions. In the British political system, some institutions do the daily work, others confer authority on what is done. The power of his writings, which are really dicta, may have embalmed the constitution; monarchs and their progeny are schooled in Bagehot still - but they have also devalued it as a set of principles. Part of the British political inheritance overseas was to adopt a practical approach to government: keep what worked, romanticize or discard what was deemed superfluous.9 Today, in Canada's tripartite Parliament, constitutional matters are the preserve of the government which sits in the Commons. The Crown and the Senate are treated as lower orders of political invention. However, at the end of the twentieth century, it would appear that Bagehot has come in for revisionist treatment. Australians debating a republic have discovered that the Crown, in the form of the governor general, is more than a dignified institution; it also possesses important prerogative power that has to be dispersed somewhere once Australia ceases to be a constitutional monarchy. Again, the Royal Commission on Reform of the House of Lords (chaired by Lord Wakeham) discovered that the unreformed Lords had over the past

6 The Canadian Senate in Bicameral Perspective

forty years reversed the transition Bagehot predicted and had become efficient again.10 Bicameralism offers amplitude for study in topics such as separation of powers, legislative second-thought, executive oversight, and representation. As attractive as that may be, studies of bicameralism even outside of Canada do not flourish. The Australian scholar, Rufus Davis, an expert on federalism, says that 'there is nothing that even remotely approaches a fully articulated theory of bicameralism.'11 His observation is unexpected, since Australia has had more experience with bicameralism than any other parliamentary democracy. Each of the six colonies that united to form the Commonwealth of Australia in 1901 had legislative councils and each of the six states following federation had an upper house, until Queensland broke ranks and abolished its chamber in 1921. Some have been nominated, some elected; in 2000 all are elected with three using the proportional representation system found for the past half-century in the Senate of Australia. That body was the world's first popularly elected (initially, by plurality vote) upper house in the world.12 Keith Jackson, who has chronicled the end of bicameralism in New Zealand and written comparatively of upper houses in New Zealand, Australia, and Canada, echoes Davis, when he says that commitment to a two-chamber legislature is 'an article of faith buttressed by selected examples.'13 Thus, while bicameralism may be cited as a pillar of Australia's indigenous experience of government, along with federalism and entrenched constitutions, the theory that sustains it has yet to acquire general consensus.14 The constitutional crisis of 1975, which saw the Senate reject a money bill and the governor general subsequently dismiss the prime minister because he could not get his legislation through Parliament, underlines an uncertainty about the respective roles of the two houses, one that sets Australia apart from Great Britain and Canada. Systems that do not follow the Westminster model of responsible government, where the executive is largely drawn from and is accountable to the lower house, possess something closer to a coherent theory of bicameralism. It is worth emphasizing, none the less, that the theory is not the same for every legislative arrangement. For example, after comparing unicameral and bicameral systems, William Riker offers what he labels a 'normative justification for bicameralism': the twohouse arrangement minimizes majority tyranny. By contrast, in the one-house legislature, which in Riker's description includes the British Parliament where the House of Lords has only limited and temporary

Bicameralism: A Concept in Search of a Theory 7

autonomy, there is 'no test of whether or not an apparent (that is, parliamentary) majority is in fact a real (that is, an electoral or societal) majority/15 Riker's principal purpose is to evaluate the effect that the number of houses has on policy. He claims that unicameralism leads to policy instability, and cites as evidence the nationalization and then denationalization of steel in Great Britain in the 1940s and early 1950s. Depending upon which party is in office, the power of the Lords to delay temporarily has had more effect than Riker suggests. However, Riker's scheme of analysis takes into account factors such as policy preferences as well as alternative methods of delay (for instance, supermajoritarianism), in addition to multicameralism. It directs attention to an important difference between the House of Lords and the upper chambers for which it is said to be a model; neither the senates of Canada nor Australia are confined to a suspensive veto. Two other American political scientists, who look at the operation of bicameralism in France, Germany, Japan, Switzerland, the United States, and the European Union, offer a more guarded opinion: 'Bicameral influence may not be readily visible to the untrained eye.' Notwithstanding this caution, for a study of a system like Canada's where bicameralism is viewed, when viewed at all, through a narrow lens of federalism, the conclusion that 'second chambers matter' is an important proposition, and one that this book will assess.16 It is not possible to speak of bicameralism and upper house models and not mention the German Bundesrat. That model has long been a favourite of Senate reformers in Canada. In 1979 the Task Force on Canadian Unity (Pepin-Robarts) recommended a Bundesrat-style Senate composed of appointees of the provincial government. Unpublished studies carried out by Task Force staff speak of a new, reformed upper house, where there would be 'power brokerage operations between the two orders of government.' The Senate's role would be as a symbol, 'a demonstration that a national consensus has been achieved.'17 Like the twenty-three other proposals for Senate reform over the past twenty-five years, Pepin-Robarts and its recommendations disappeared from view and debate,18 except to be cited periodically to confer authority on the Bundesrat model. Yet the Bundesrat structure, personnel, and operation are as divorced from Canadian Senate traditions and practices as is German administrative federalism from the jurisdictional concerns that dominate Canadian federalism. For instance, the capital (so to speak) which members of the Bundesrat possess takes the form of 'expertise and administrative experience.' They are appointed,

8 The Canadian Senate in Bicameral Perspective

not elected; they vote en bloc rather than as individuals; and they are more at home approving regulations than they are debating policy. None of these features speaks directly to Canadian experience, where senators act as individual members of the Senate, sometimes voting at variance with their party's stand in the lower house. They are allocated by region, and sit for a province or a district within the province of Quebec. For reformers, the attraction of the German over the British model lies in the interpenetration of state (or lander) and federal politics in the Bundesrat. The attraction is twofold: there is the legal or constitutional right of state ministers to participate in policy formation, and the political sanction that comes from high-profile politicians of both levels of government uniting behind policies. Agreement in the Bundesrat and between the Bundesrat and Bundestag means nearly certain acceptance of policy by the German people. For those who see the Canadian Senate as too national in concerns and composition, the charm of the German alternative is captured in one argument recently advanced for its imitation in the new constitution of the Republic of South Africa: 'The Bundesrat model was attractive to South Africans because it made the second house an integral part of the system of decentralized government agreed to by the negotiators in 1993.'19 Historically, the strongest analogy for the Canadian Senate was always assumed to be the House of Lords. Sir George Ross, former Ontario premier (1899-1905) and author of an early full-length study of the upper house, The Senate of Canada: Its Constitution, Powers and Duties, Historically Considered (1914), once described the Canadian constitution as 'more in harmony with the British constitution than that of any dependency beyond the sea.'20 This was a view widely held a century ago and in some quarters is still heard, though it was from the first a debatable proposition. Canada was a federation, the United Kingdom was not. Federal and provincial legislatures could not be 'replicas' of the United Kingdom's Parliament, if only because of the division of legislative power. In England, 'all different branches of government' were subject to 'legislative supremacy.' Because the Constitution Act, 1867 apportions authority to different agencies of the state, there actually is no separate federal constitution.21 Nor was it accurate to say, as the Preamble of the federative act implied, that the 'Constitution [was] similar in principle to that of the United Kingdom,' unless the constitution in question was the unwritten conventions of responsible government.

Bicameralism: A Concept in Search of a Theory 9

As for the Senate, the analogy with the House of Lords was suspect on several grounds. First, and most important, even admitting section 26 of the Constitution Act, 1867, and its provision for appointing additional senators, there is a constitutional limit on the number of senators at any one time. Harold Laski said that part of the reason for the enfeeblement of the House of Lords was its immense size: the political value of membership declined as the number increased.22 The story of the Lords' eclipse is more complex than this, certainly. For instance, it is possible to see the Parliament Act, 1911, which introduced the suspensive veto, and the House of Lords Act, 1999, which severed most of the peers from the Lords, as the culmination of events that began with the Glorious Revolution of 1688 and continued through the Reform Act of 1832. Here again is the theme of the triumph of parliamentary and, indirectly, popular power at the expense of the Crown and the upper house. None the less, the size of legislative chambers, and particularly upper houses, is vitally important to the operation of a bicameral parliament. Section 24 of the Australian constitution recognizes this truth when it requires that the number of members of the House of Representatives 'shall be as nearly as possible, twice the number of the senators/ This so-called nexus provision underlines one tie that exists between the two houses of the Australian Parliament, but it symbolizes a more intricate relationship that links the chambers of all bicameral legislatures. Upper chambers (with the exception of the Lords) are invariably smaller than their lower houses. This encourages a phenomenon common to the study of upper houses, which is to look at them in their 'corporate capacity.'23 In one respect, this feature of upper houses may be explained and treated as a function of their role as a 'state or provincial entity.' That rationale is not altogether convincing; more generic is the contrast Norman Ward once noted between Canada's House of Commons and Senate: 'Where proposals for improving the Commons lean heavily toward increasing the role and effectiveness of the individual MP, the Senate is viewed as a whole, the position of individual senators a secondary consideration.'24 With the exception of United States' senators, there is scant literature on career expectations or job performance of upper house members. One of the reasons for this is the autonomy of the upper house in a parliamentary system. Where independence is a goal to be sought, then the extent to which it is won isolates the upper house. Size is not the only difference between the Canadian Senate and the House of Lords. Despite what its critics say, the Senate is a chamber in a

10 The Canadian Senate in Bicameral Perspective

federation and its composition reflects that fact. Territory has never been a determining factor in the composition of the Lords, although the Wakeham Report calls for around one-fifth of the members of the new second chamber to be selected from regional constituencies. It is anticipated that these individuals will provide a kind of 'constitutional glue/ because the second chamber will be seen to be 'representative of British society in all its dimensions/25 One recommendation of the report, which if implemented will bring Great Britain's reformed second chamber closer to Canada's, is the proposal that its members be selected by a statutory appointments commission, itself a creature of the government. From being a hereditary body with a minority of life (appointed) peers, the Lords is to become an appointed body with a minority of elected members. Thus size, selection, and 'constituency' distinguish the Lords from the 'imitation' Canadian Senate. But there is another difference, more fundamental than all of these. Since 1911 and the Parliament Act of that year, the Lords has had only a suspensive veto over legislation. This means it can delay but not defeat government legislation. The delay varies according to whether the bill involves the appropriation of money, but since 1911 (and re-emphasized in 1949), the Lords is definitely an inferior body to the Commons. This description for the Lords does not now, nor has it ever, fit the Canadian Senate. For reasons associated with the original federation agreement, the Senate possesses an absolute veto over all legislation. Possession and practice are different matters, and the Senate has created for itself sets of understandings on when to use its veto.26 The Senate was never conceived in imitation of the Lords. The Parliament Act, 1911, represented a victory of the Commons over the Lords after a battle, waged for fifty years, that began on the eve of Canadian confederation: In 1860 the House of Lords rejected Mr. Gladstone's bill to repeal the duties on paper. The Lords had not rejected a tax bill for many years. That date is significant for Canadians. It shows that the authors of the British North America Act, 1867, were fully aware of the possibility of a head-on conflict between the House of Commons and the Senate on tax and appropriation bills. Yet they made the Senate's powers virtually the same as those of the House of Commons.27

The British parliamentary mould was broken by Canada in the 1860s,

Bicameralism: A Concept in Search of a Theory 11

and the Australian founders repeated the institutional rebellion in the 1890s. At the Adelaide session of the convention leading to federation, the premier of New South Wales, spoke specifically to this point: '[W]e must here deviate from the British Constitution and give the Senate powers which have ceased practically to belong to the House of Lords for a long period/28 While admitting that the senates of Canada and Australia may be similar in principle but not in detail to the House of Lords, the occasion of Lords' reform might still have been expected to nourish the impoverished theory of bicameralism. In fact, that has not happened. From the outset, the royal commission report adopts an insular approach to the subject: 'We did not consider that any other second chamber provided a sufficiently close parallel to justify making an overseas visit.'29 More promising was an active publication program of the Constitution Unit, University College London. The unit produced a series of monographs on aspects of second chambers culminating in a book by Meg Russell, Reforming the House of Lords: Lessons from Overseas, which appeared simultaneously with release of the royal commission Report.30 The Russell book looks at Australia, Canada, France, Germany, Ireland, Italy, and Spain, comparing each country's second chamber in terms of its performance of a range of functions such as committee work and participation in constitutional matters. In the tradition of bicameralism studies, the discussion is heavily factual. Several pages are devoted to the size of upper houses in twenty countries. For each, the reader is given the number of members in both upper and lower chambers, the percentage of upper to lower house seats, occupants' terms, and their methods of selection. But there is nothing that links the chambers, nothing about representation (the word does not appear in the book's index), nor any reference in the bibliography to the work of people such as William Riker. Yet there is a chapter with the title 'Binding Different Levels of Government Together,' in which the senators of Canada and Australia, along with those of Italy, are described as 'basically another brand of national party politician, indistinguishable in this sense from their colleagues in the lower house.' The more basic critique turns on the failure of these upper houses as territorial chambers. In one respect this is an unexpected indictment, since territorial representation is to be such a minor (albeit hitherto unknown) function of Britain's new second chamber. Russell claims that 'to carry out these territorial functions it [is] essential that members of the upper house [be] genuine representatives of

12 The Canadian Senate in Bicameral Perspective

the nations and regions, rather than simply being national politicians/ She says that in many countries, Canada and Australia being examples, 'genuine links have not been forged.'31 This is surely a tendentious account of second chamber life in Australia and Canada, most notably because it depreciates that which is central to second chamber existence in these countries: partisanship. Britain's new second chamber, it is contended, should 'complement' not 'rival' the Commons: in a test of wills, if such a prospect can be contemplated, the second chamber must acquiesce. Yet, with the departure of most of the peers, how to legitimate anew the second chamber? Here is part of the rationale for institutionalizing the territorial dimension in the upper house. The other source of legitimacy will come in the quality and manner of the chamber's work, which, the report says, will not be radically disturbed. A second edited work (1999), this time by two American academics, again looks at comparative bicameralism but uses a country-bycountry analysis.32 The countries are the same as found in the Russell book, with the exception that the United States and Poland are included but Ireland omitted. There is an introductory chapter on 'Senates and the Theory of Bicameralism,' but the theory (or justification) for a twohouse parliament is restricted, first, to 'representation' (largely a short exploration of the Connecticut Compromise, when the Philadelphia Convention agreed to a Congress comprised of an upper house based on equal state representation and a lower house based on representation by population) and, second, to 'redundancy,' that is, the idea of the upper house as a 'brake' on the 'engine' of the lower house. The individual chapters offer more detail about national practice and experience but contribute only slightly to elaborating a theory of bicameralism. The recent literature has done little to eradicate the sense of staleness that surrounds the theory of bicameralism or to dispel the ambiguity that envelopes the functions of second chambers in a bicameral legislature. Writing of Australian experience but offering an opinion of much wider application, political scientist Joan Rydon has asserted that 'the basic arguments ... for or against bicameralism, have changed very little.'33 Evidence to support that conclusion is to be found in a survey of the topical literature that appeared in the decades before and after the First World War. Sentiment that 'something' had to be done with the House of Lords grew following the progressive extension of the adult male franchise in the second half of the nineteenth century. Disraeli's Tory democracy and the rise of a non-conformist labour

Bicameralism: A Concept in Search of a Theory 13

movement with party political ambitions posed a new order to a hereditary landed aristocracy and an established church entrenched in Parliament's upper house. Baron Stockmar, sometime constitutional adviser to the royal family, caught the spirit of the age when he said of the Lords that it 'wounds democratic feeling.'34 Opposition to Gladstone's Home Rule bills aside, there was little in what the Lords had done to merit that indictment. One observer predicted, correctly, that 'the unreformed House of Lords, if it falls at all, will fall a sacrifice to theory - as the unreformed House of Commons did.'35 In 1907 Sir Edward Grey, foreign secretary in the Campbell-Bannerman Government, sent a circular to more than a dozen European powers and to the United States seeking an array of information on upper chambers: selection process, membership qualifications, mode of operation, provisions for dissolution (if any), the resolution of intercameral conflict, and 'all other relevant information respecting the constitution and status of such Upper Chambers.' The resulting parliamentary return ran to 107 pages along with a fifteen-page supplementary return, both to be found in the Sessional Papers of Canada's Parliament (1914).36 More important than the answers to Grey's queries were the themes that appear in the replies from Budapest and Washington, Oslo and Madrid, and in between. Repeatedly, reform or evolution of a country's upper house is coupled with changes in (or as an alternative to) modification of the electoral system used to select members of the lower houses; to questions about the suffrage (universal as opposed to one based on a property qualification); to concerns about rural and urban representation; to the matter of government accountability to the second chamber; to questions about the role played by the upper house in the control of public finances. The intricacies and complexities that this ninety-year-old survey reveals leads to a very modern conclusion: Practically everywhere there is a recognized Second Chamber problem ... Everywhere there is dissatisfaction and irritation, a feeling that the secret of combining constitutional stability with legislative efficiency has not yet been discovered... [W]hat constitutes the ideal Second Chamber? This is to enter a field that is peculiarly one of opinion, and one moreover in which political tempers and theories of the social union play a large part.37

The conclusion of the First World War introduced an era of constitutional debate equalled only in range by that at the end of the twentieth century in Great Britain. The Speaker's Conference on electoral reform

14 The Canadian Senate in Bicameral Perspective

(1918) and the Representation of the Peoples Act (1918) coincided with major constitutional changes in postwar Europe, such as the rise of republicanism and the introduction of proportional representation. In 1917-18 James (Viscount) Bryce, diplomat and political observer, chaired a conference and wrote a report on "The Reform of the Second Chamber.' Bryce attributes a role for second chambers that includes the examination and revision of bills sent from the Commons, the discussion of large policy questions (foreign policy is the example given) that do not threaten the government's life, and, occasionally, the initiation of bills. Each of these speaks of the role of the second chamber in improving legislation for the benefit of the people. The second chamber is there not as champion of vested interests; rather it is 'the ally, and not the opponent, to the popular will.'38 In this respect, the second chamber has the same function as reservation exercised by the Crown or the referendum activated by the people. The populist dimension of second chamber debate is seldom evident in Canada. Yet it was a central premise of the debate in the United States that fuelled the unicameral movement, which achieved its objective of a single-house legislature only in Nebraska. Distrust motivated unicameralism - to be precise, popular distrust of state legislatures and their members who would use a two-chamber system to pass the buck and avoid responsibility. A bicameral legislature composed of two elected houses would allow legislators to mock the people they were chosen to serve.39 Contrary to the argument heard in parliamentary systems, where the tension associated with bicameralism is said to arise out of the incompatibility of an elected and non-elected chamber, in the United States unicameralists saw the source of the problem in the presence of two elected houses. In fact, that rhetoric still has a constituency and was being used at the beginning of the twenty-first century by the only American governor then advocating a unicameral state legislature Jesse Ventura of Minnesota. A single house, he says, will produce better legislation, since 'legislators will... debate important issues as a whole body' and it will make politicians more accountable to the public, since 'legislators will [no longer] be able to use the other legislative body to justify why a bill... didn't pass.'40 In the context of this chapter's argument, the unicameral literature parallels its bicameral genre in one important respect: neither solution perceives itself as the only solution to the problem it seeks to remedy. That is, where William Riker saw the benefits of redundancy and sober second thought in bicameralism, he also recognized that the same

Bicameralism: A Concept in Search of a Theory 15

benefits could be achieved through the requirement of supermajorities Similarly, the benefit of unicameraliam in checking legislative malfeasance is achievable in ways other than imposing a single chamber; examples would be constitutional restrictions on the frequency and length of legislative sessions or on the size of the legislature. Nebraska remains the legislative exception in the United States. Everywhere else state constitutions still cleave to some congressional analogy, although in 1963 the Supreme Court of the United States struck down as unconstitutional 'little federal' schemes, which saw state upper houses based on territorial representation and the lower houses based on population. The court ruled that both houses must henceforth be based on population. In the course of its judgment, the court spoke directly to the continued reason for bicameralism: We do not believe that the concept of bicameralism is rendered anachronistic and meaningless when the predominant basis of representation in the two state legislative bodies is required to be the same - population. A prime reason for bicameralism, modernly considered, is to insure mature and deliberate consideration of, and to prevent precipitate action on, proposed legislative measures. Simply because the controlling criterion for apportioning representation is required to be the same in both houses does not mean that there will be no differences in the composition and complexion of the two bodies.41

The preceding paragraphs make clear why bicameralism is an unsatisfactory subject of study. Taken as a whole, the literature and the history of the subject can be contradictory: houses check other houses; houses check executives; houses expand (or constrict) the opportunity for the people to be heard. Bicameralism, as a theory, lacks independence. It is bound up with analogies and models. One of the arguments in the United States for moving to unicameralism was that 'the pattern used by our forefathers has been abandoned [as a result of the 1911 Parliament Act] by the mother country/42 By contrast, J.G. Bourinot could see no alternative to a bicameral parliament for the Canadian nation: "The bicameral system has met the approval of most of the leading political writers and is realized in practice by the legislatures of the principal countries/43 In this respect the recent royal commission on reform of the Lords was right: comparisons are meaningless (sometimes even invidious) because political systems are distinct. How distinct, even when the systems are institutionally similar, becomes evident

16 The Canadian Senate in Bicameral Perspective

in a comparison of countries that share a common (that is, British) constitutional root. The history of bicameralism in these countries, as opposed to the classical theory of bicameralism, begins in the late eighteenth century in debates leading to the Constitutional Act, 1791, which divided Quebec into Upper and Lower Canada and statutorily provided each with an upper and lower legislative house. The background to the act was the American Revolution and the lessons British politicians took from the loss of the thirteen colonies. The old assemblies had grown too strong because the governors had been too weak. Eleven of the thirteen colonies were bicameral (Georgia and Pennsylvania being the exceptions), but their upper houses were not second chambers in the sense accepted today; rather the governor's advisory council acted as the second branch of the legislature.44 The innovation of the Constitutional Act, 1791, was to provide for two councils, one executive, the other legislative, with the first to act as adviser to the governor (in modern guise, the cabinet) and the second to - to do what? Debate at Westminster makes clear that the intent of the tripartite arrangement (Assembly, Legislative Council, and Governor-in-Council) was to confine democracy and thus prevent a repetition of rebellion. The theory that informed the plan was that of a balanced constitution.45 In a matter of six decades, that constitution, whose origins lay in the arrangement of power introduced by the Glorious Revolution of 1688, was displaced by the arrival of responsible government and the concentration of power in the lower house. As important as that transformation was to the development of parliamentary government, it is not the centrepiece of this discussion. The focus here is on the consequences of this transformation for bicameralism. Even in the debates preceding the Constitutional Act, 1791, it was clear that the composition of the upper chamber presented a problem. The theory of the balanced constitution achieved an internal coherence by positing a link between monarchy, aristocracy, and democracy on one hand, and the three parts of Parliament or the legislature on the other. From the outset the weak spot in the theory was the legislative council. Neither in Canada, nor Australia, nor New Zealand was there a societal aristocracy. Compacts, cliques, squatters, perhaps, but no acknowledged superior class entitled because of heredity to govern.46 Yet there was throughout the British Empire a belief that 'an essentially atypical second chamber, the House of Lords, represented a basic element of a stable constitution.'47 In colonial eyes, it would have been inconceivable not to have fol-

Bicameralism: A Concept in Search of a Theory 17

lowed the model. In Whitehall, between 1830 and I860, there was a more open mind on the subject. The paladins of the second British empire, the .secretaries and under-secretaries of the Colonial Office, debated the comparative merits of elected upper houses, nominated upper houses, and unicameral bodies composed of both elected and appointed members. Concern was repeatedly voiced about the implications of the choice for republicanism, radicalism, conservatism, and constitutional tradition. It was in this atmosphere that the decision was taken to replace the nominated upper house of the now United Canadas with an elected body to be introduced in stages (beginning in 1856, but not completed before Confederation). The raison d'etre of an upper chamber became more puzzling once responsible government had been achieved, for what had been sought during the 'struggle' - the Crown to accept advice from those who commanded the support of the popularly elected Assembly - had now been won. An upper house, and particularly an elected upper house, might challenge that monopoly by asserting some competing legitimacy. Yet bicameralism, in fact if not in philosophy, remained an integral part of the constitution.48 Everywhere but in the United States, it would appear, the story of second chambers is one of dissatisfaction. On all sides critics claim to want change. The Canadian Senate may be unusual in terms of its composition (unique among advanced democracies if the United Kingdom adopts the recommendations of the royal commission on Lords' reform), but Canadians are not alone in desiring an improvement in the structure and operation of their upper house. For this reason, the next chapter will place Canada's bicameral parliament in comparative perspective. Because of historical, cultural, and constitutional parallels, the salient exemplars are the United States, Great Britain, and Australia. But since the Inter-Parliamentary Union in 1996 found fifty-eight of 178 parliamentary democracies to be bicameral, the latitude for comparison is wide indeed. Arguably, Ireland, despite its unitary system (minus the six counties of the North) and turbulent constitutional history, offers enlightenment about some of the problems associated with bicameralism. In the decades leading up to the republic in 1949, the Irish, more than any other people of the Commonwealth, debated questions of constitutional theory and practice, and the institutional forms required to implement them. If ever there was a country that seemed to have no need for a second chamber, it was Ireland, whose Dail Eireann from the start acted as a constituent assembly and thereafter displayed what one writer described as 'imperfect sympathy' for the Senate (Seanad

18 The Canadian Senate in Bicameral Perspective

Eireann).49 A review of the Irish constitution in 1996 observes that 'the primary issue, of course, is whether Seanad Eireann should continue to exist in any form, an issue which ... has been discussed inconclusively in the past.'50 At one point during that inconclusive debate Eamon de Valera, the founder of modern Ireland and a president of the republic after 1949, concluded that 'an ideal Senate was not... possible.'51 In that comment may rest Ireland's principal contribution to Canada's bicameral quandary. Not only is an ideal not possible, but in all likelihood it is unknowable. Or, even where there is substantial agreement on the purpose of a second chamber, no assurance that that understanding will be permanent. It is a matter of some importance to explain why today, but not for most of Canada's history, 'regional representation ... [is] virtually the universal preoccupation of [Senate] reformers.'52 The preoccupation of reformers is more specific still: it focuses on neither sectional nor regional but rather provincial interests defined by territory and articulated by provincially appointed or periodically elected senators. It is a long reach from saying that 'primarily, the role of the Senate [in 1867] was to give the federal principle its place in the Parliament of Canada' to maintaining that 'one of the dysfunctional features of Canadian parliamentary democracy is that the provinces have come to exercise a regional role that should more properly be exercised by the Senate.'53 The transformation of the Senate from a federal into a provincial body, or at least the ease with which this new interpretation of its purpose has taken the field, reveals much about the nature of modern Canadian politics. At the same time, the idea behind the concept of recasting one of Parliament's chambers into a house of the provinces raises theoretical and practical concerns. Is the primary function of upper houses in federal systems to represent and articulate the interests of those jurisdictions? And even if the answer to that question is yes, who determines what these interests are? The vocabulary of reformers who want to make the Senate more sensitive to provincial issues suggests that they are willing to limit the independence of senators. As will be seen in later chapters, this argument is both more complex and less provincial-centric than these few sentences suggest. Nonetheless, they indicate a shift in perspective on the purpose of Parliament's upper house. Whatever the criticism voiced about the way senators are selected by the prime minister, whatever the unhappiness manifested at a partisan upper chamber that almost totally excludes anyone who is not identi-

Bicameralism: A Concept in Search of a Theory 19

fied with the country's two old parties, the Senate was at its inception, and for many still is, a national institution. That was how the chamber was viewed by Australian politicians who had reason to examine it closely in the 1890s. The politicians of Australia and New Zealand convened four times during the 1890s to discuss the terms of federation for the eventual Commonwealth.54 A primary theme running through the convention debates is the structure of the new upper house. Was it to be a states' house and, if so, how constructed? The Australian founders were generally well informed about North America's two federal systems, with the result that a subsidiary theme on the comparative advantages of the Canadian and American federal systems weaves its way through the debate. It would be only a slight exaggeration to say that the federal arrangement of the United States won the contest hands down. Andrew Inglis Clark, whose name is immortalized in the Hare-Clark system of proportional representation, isolated the crucial weakness of the Canadian arrangement as far as most Australians were concerned: 'In Canada they have only one system. Canada is what may practically be called a unified community.'55 Speaking only a few months before the death of Sir John A. Macdonald, Clark was less impressed than some of his fellow delegates at Canada's political stability as represented by the old man's long tenure in office: 'When we know that he has the power of nominating every member of the senate [etc.] ... his term of office is easily accounted for. With such reins in his hands he might be expected to remain in the saddle an indefinite term.'56 (Macdonald was the first of several prime ministers to hold office for extraordinarily long periods of time compared to leaders in Australia or Great Britain.) The relationship between prime ministerial tenure and the composition and operation of the second chamber is a subject for later examination. Clark's opinion was not his alone. At a session of the second conference, Isaac Isaacs, then attorney general of Victoria but later the first native-born Australian to be named governor general in 1931, expressed a more nuanced appreciation of Canada's federative arrangement: 'I do not understand that sentiment that Canada has no Federation ... It is a Federation upon the centralising principle, just as the United States is a Federation on the decentralisation principle, the principle I hope we shall follow.'57 However, there could be no following the Canadian model, even though it, like Australia, was a federal parliamentary monarchy, because the delegates were committed to having a Parliament of two chambers of near equal powers - a house of the people to

20 The Canadian Senate in Bicameral Perspective

which the government was accountable, and a house of the states. At one level the Australian debate was about institutional design, but at another it was about the shape of the new nation. Structures matter at the beginning because they are part of an interpretive order that makes a constitution coherent. It is one of the weaknesses of today's Canadian Senate that it is not seen to contribute to the constitution's coherency. To the outsider, the unification of Australia seems to have been inevitable - a nation for a continent, a continent for a nation. Such was never the case with Canada's federation, could (not would) it be brought about? Canada was created, and the confidence for that undertaking had to be encouraged, said one Australian delegate: 'Canadians have had [the idea of unity] preached to them, and inculcated in them since the time of Lord Durham, but which took a long time to bear fruit.'58 John A. Macdonald shared this view, and it explains his centralist policies, ranging from the protective tariff to establishing a federal franchise. But it also explained Macdonald's support for those features of the Senate that today spark criticism. The purpose of the Senate, according to long-time member Arthur Roebuck, was to perform a unifying function, and its success in this task depended upon its members not being elected by a constituency, however defined.59 Following the close results in the Quebec referendum of October 1995, calls were heard 'to make federal organs such as the Senate more representative of the linguistic duality of Canada, the regions, the provinces, and the Aboriginal Peoples.'60 It is never clear what such pleas imply. Assuming, as is the case with the Canadian Senate, some upper limit to membership, what can being 'more representative of the linguistic duality of Canada' mean? Less representative of some other Canadian feature? And which feature? To what extent should 'features' be part of this discussion at all? The Roebuck way is to see the Senate as representative of no faction or territory but of the whole community. Because of the nature of its appointment and because it has no constituency base, as does the House of Commons, the Senate is better situated to offer a national outlook. Yet that national perspective must be qualified; the Supreme Court of Canada said in its 1980 advisory opinion on the government's authority to amend those provisions of the Constitution relating to the Senate unilaterally, that the smaller provinces only consented to Confederation on the understanding that there would be a regional upper house.61 In this respect the Senate helped define, and this book will argue is still capable of defining, Canada's all-embracing identity.

Bicameralism: A Concept in Search of a Theory 21

Albert Breton has written extensively on what he calls the 'vertical competition' that exists between the federal and provincial (state) governments in federations. In this arrangement upper chambers have a crucial role to play in monitoring competition, and Breton attributes to Canada's Supreme Court in 1980 'a profound understanding of federalism.'62 Still, to speak of the Senate in this way risks reifying an institution composed of human beings, treating it as a monolith, when in fact it is the individual voices of senators that are heard speaking on behalf of minority or sectional concerns. And it is the labour of individual senators that constitutes the chamber's legislative contribution at the same time as it illuminates Arthur Meighen's description of the Senate as 'a workshop and not a theatre.'63

Chapter Two

Bicameral Perspectives

Australia

In the minds of Canadian reformers, the Australian Senate is everything they want in an upper house. It was the first popularly elected second chamber in the world, coming more than a decade before the seventeenth amendment, to provide for the direct election of senators, was adopted in the United States in 1913. It was equal - originally having six, now twelve, senators per state with the Northern Territory and the Australian Capital Territory having one apiece. And it was effective; while the meaning of the word may be open to interpretation, there is no question that the Australian Senate can stop a government in its policy tracks and force a compromise. It can even, indirectly, dislodge a government, as happened in 1975, when the Senate blocked passage of supply, thus preventing the government from carrying on its work. In consequence, the governor general dismissed the prime minister and appointed as his successor someone who did not enjoy the confidence of the lower house. A dissolution quickly followed.1 Here effectiveness lay in the eye of the beholder, since some saw the Senate's action as destructive. The events of 1975 gave rise to prolonged and intense constitutional debate. The Australian Constitutional Convention of the 1970s, the Constitutional Commission of the 1980s, and the Constitutional Convention convened in February 1998 to debate the terms of a referendum on a republican option, have all confronted but failed to resolve the uncertainties that attend the government's dismissal or tests of parliamentary confidence; nor did they agree on means of strengthening responsible government or limiting opportunities for Senate blockage

Bicameral Perspectives 23

of money bills.2 At first glance, these questions appear to go far beyond conventional interpretations of the meaning of bicameralism. For one thing, they speak of matters that transcend the customary tripartite separation of institutions into executive, legislative and judicial branches of government. Yet, in a system of government based on the British or Westminster model, where the functional executive is drawn from, sits in, and is responsible to the legislature, the concept of separation itself is somewhat inapt. But only somewhat, since a study of second chambers in bicameral legislatures looks at that aspect of the legislature least likely to overlap with the executive. Even in Australia, and certainly in Canada and Great Britain, fewer members of the upper than the lower house enter the executive, while that executive by popular agreement and by constitutional convention is expected to control the lower house. In the bicameral parliaments of the old Commonwealth countries, the upper chambers swing both ways: they may be considered outside and, to some extent, distant from the political fray, but they may also be viewed as part of it, if only because all upper chambers are partisan institutions. For this reason, it misrepresents their role to label them as institutions of federalism, or of legislation, or of review. They may be all of these and more, and it is for this reason that in the Westminster tradition bicameralism and the operation of the constitution are closely interwoven. Nowhere is this so apparent as in Australia, who deliberately undertook to marry American ideas of separation with British practices of executive dominance. Sir Samuel Griffith, later the Commonwealth's first chief justice, recognized early the unprecedented nature of the project: 'It is absolutely new to us in the British empire, that every law shall receive the assent of a majority of the people, as well as a majority of the states.'3 Australia's founding fathers set out to create an upper house, coequal with the lower, in which the states would be represented. Here the federal principle would be institutionalized. It is no slight on this invention to note parallels with the United States Senate or the extensive discussion of the American model that preceded its adoption. At the same time, it is important to recall the originality of the undertaking in light of the political tradition with which the convention delegates were most familiar - that is, the bicameral arrangement of the United Kingdom Parliament. The very year of the first Australian convention on federation (1891) witnessed a heightening of debate in Britain on the 'House of Lords question.'4 What role was the Lords to have and, depending upon the answer to that question, what was to be its rela-

24 The Canadian Senate in Bicameral Perspective

tionship to the House of Commons? Another two decades were required before a partial answer was forthcoming in the Parliament Act, 1911, and nearly a century before the royal commission report on a reconstituted House of Lords in 1999. Thus, at the time the delegates in Sydney and, later, Adelaide and Melbourne were meeting, there was no consensus on the model the Lords provided, except in this respect: the chamber had entered upon an era of prolonged decline as a legislative institution. For Australians embarking upon a new constitutional venture that sought chambers of equal status, the Lords were inimitable: '[W]e must here deviate from the British Constitution and give the Senate powers which have ceased practically to belong to the House of Lords for a long period. We know well that for some time past the House of Lords has given up any pretence to financial control, any pretence to amending the Appropriation Bill... any pretence to amending a Taxation Bill.'5 Interpreters in Britain were unanimous that, notwithstanding the law, the conventions of the constitution allowed the Lords a delaying function only. The will of the people, expressed more forcefully with each extension of the franchise (1832,1867 and 1885), had drowned out the aristocratic voice. Or so it seemed before the budget crisis of 1909. The diverging paths of constitutional development in London and in a unifying Australia drove some colonial delegates to imagine the unimaginable: Is the commonly called responsible government system - the Cabinet system - consistent with true Federation?'6 Here was the source of every major problem to confront the delegates - that is, 'the financial problem, the basis of state representation in the Senate, the power of the Senate with regard to money bills, and the insertion of a provision for deadlocks.'7 If equal representation in the Senate was viewed as compensatory treatment for unequal representation in the House of Representatives, because already the bulk of Australia's population congregated in the southeastern states of Victoria and New South Wales, then that compensation had to be respected, especially when money was the issue. Otherwise majoritarianism would win the day every time. Yet, as is repeatedly demonstrated throughout the Convention debates in Australia, there was reluctance to confront the contradiction or even to articulate its essence: was coordinate authority to prevail or was government responsible to one chamber? The will of the people, expressed through lower house elections, was more representative than that expressed through upper house elections, if only because there

Bicameral Perspectives 25

were twice as many representatives as senators. Nor did the American example always fit, and never less so than when the upper house was depicted as a check on popular legislation. In America, noted one Australian critic, '[federation cannot exist, co-ordinate houses cannot exist and work together unless they both recognize [and yield to] the sovereignty of the people/8 Thus, on one hand the argument posited that the essence of federalism lay in two houses, on the other hand that the essence of responsible government implied a single chamber. The issue turned on the power of the upper house to amend money bills. In no instance of a 'consolidation constitution of the British type, [was] the power of amending money bills given to the upper house/9 The tension between these two positions runs throughout the decade-long discussion of Australian federation. Finessed, disguised, depreciated, it never disappears. In fact, the incompatibility of the parliamentary and congressional norms at play in these discussions becomes entrenched in the resolution of one of the great problems to confront the delegates - what to do in case of deadlock between the two chambers. In Britain this dilemma ultimately was resolved by confining the Lords to a suspensive (or delaying) veto. Before 1911 the solution lay in the threat by government to advise the sovereign to create a sufficient number of peers to swamp opposition in the upper house. Limiting the Senate was not appropriate for Australia, a federation whose bargain respected the states through the Senate: 'It would require plain language in a bicameral legislative system to provide that on some occasions the federal Parliament should operate as a unicameral institution/10 Instead of lapsing into unicameralism in the face of disagreement, section 57 of the Australian constitution sets out an 'ingenious' method for solving deadlocks.11 The ingredients of that method were simultaneous dissolution (of both houses of Parliament) followed by a joint sitting. The stages of resolution are easier to describe than the instance in which they might be applied. The criteria of what constitutes a deadlock have proved contentious, since the essence of parliamentary business is conflict and opposition. From the perspective of bicameralism, the key issue is the weight to be given the respective chambers in securing a resolution to deadlock. One of the most important provisions of Australian bicameralism is section 24, the nexus provision of the constitution, which states that 'the number of [House of Representatives] members shall be, as nearly as practicable, twice the number of the senators/ In 1901 the relevant

26 The Canadian Senate in Bicameral Perspective

numbers were seventy-five and thirty-six; a century later, they are 148 and seventy-six. In later chapters of this book, there will be reason to return to the nexus provision; for the moment section 24 is noteworthy because of the respect it signals for the Senate. Whatever governments may think of the Senate's behaviour and whatever constraints the Senate places on executive autonomy, the Australian second chamber enjoys a protection that neither its British nor its Canadian counterparts have. Most observers of the Australian constitution are aware of its unBritish provision for a referendum in the amending process. They are also aware that the constitution came into force in 1901, following endorsement by the voters in the colonies. In that light, it is significant that the deadlock clause avoids the use of a referendum. The proposal to use a referendum was made at the federation convention but rejected on the grounds that such a general vote posed a threat to small states, while a so-called dual referendum (as occurs in the amendment procedure which requires support from a majority of the popular vote and a majority of the states) might be inconclusive. This concern has been borne out since 1901 by the large number of proposed amendments that have gone down to defeat before the double hurdle. Much more than the Canadian Fathers of Confederation, the Australian founders 'thought bicameral thoughts and adopted bicameral principles.'12 It is a characteristic even more evident in Australia today. The convention delegates of the 1890s thought of the Senate as a states house devoted to protecting states rights. They did not anticipate, anymore than did the Founding Fathers at Philadelphia, the rise and extension of national political parties to the states. In time the Australian Senate became no more a states house than did the United States Senate. The transformation that parties wrought on the Senate, thanks to the plurality and then alternative voting systems in place up to 1949, has already been noted. With the introduction of proportional representation that year, on the occasion of the first enlargement since 1901 of the House of Representatives (and, thanks to the nexus, also the Senate), the influence of partisanism on the Senate continued but, after a brief period of quiescence, significantly changed. The result, say some observers, is 'a regime change,' with minor parties holding the balance of power for over thirty of the last forty-five years. As a result, the Senate has become the forum for expressing minority interests but with this distinctiveness: '[T]he womens, environment, gay, Aboriginal, con-

Bicameral Perspectives 27

sumer, multi-cultural... movements are all organised independently of the major parties/13 Following this line of argument, the Senate in Australia has become a house of minorities whose primary concern is to broker interests that go un- or under-represented in the lower house. Passage of the Howard government's GST legislation in June 1999 depended upon support from the leader of the Australian Democrats in the Senate. In addition to winning a GST exemption for food, the Democrats won a government commitment to increase social benefit spending. Some observers have said that the Senate has yet to define its role in Australian politics. That may be true from where Australians stand, but from the vantage point of an outsider what is significant is that the Senate is not now, nor has ever been, the states' house so dear to federal theorists. Nor, if states rights was the objective, was the introduction of proportional representation in 1949 the solution, since it did 'nothing to keep state delegations cohesive.'14 Reminiscent of the Charter in Canada, the Senate is viewed as a forum that articulates and authoritates multiple interests whose common characteristic is their lack of a territorial base. More than that, the Senate, especially in its modern transmutation, is cited as confirmation of 'Australia's indigenous experience of government ... enshrined in such institutions as bicameralism, federalism and entrenched constitutions/15 Others go further and see 'Australia a constitutional hybrid ... thanks in no small part to its vigorous bicameralism/16 Not everyone agrees. Critics of the 'Washminster' interpretation point out that Australia's government is responsible to the lower chamber, its leader and a majority of its members come from that chamber, and legislative initiative overwhelmingly rests with that government and chamber.17 They also posit an alternative explanation for the appearance of an upper house of co-equal power with the lower house: the experience convention delegates had with colonial legislative councils who possessed similar powers. In the last half of the nineteenth century, colonies such as Queensland, Victoria and South Australia debated whether their upper houses 'should be guided by the convention rule against amending [or rejecting] money bills which the House of Lords had accepted in the United Kingdom/ It was out of these disputes that the distinctive Australian provision that allows the upper house to request amendments (section 53, Constitution Act 1900) originates.18 Formally, the legislative powers of the Senate in Canberra are no

28 The Canadian Senate in Bicameral Perspective

different from those of the Senate in Ottawa. In neither (nor in the Senate in Washington) can financial bills be initiated; in fact, the Australian Senate (but not the Canadian) is limited to requesting amendments to financial bills. Notwithstanding what the constitution says, in practice, because the Australian body is popularly elected, there is among its members a greater perceived sense of independence than is found in Ottawa among appointed senators.19 The Australian Senate remains a partisan body: the large majority of its members are of the Labor and Liberal-National parties and those with career ambitions accept the party whip imposed according to the calculations of the government and its opponents in the lower house. That being said, there is a sense of drama in the upper house that arises from the uncertainty of its politics, the lack of agreement on its role, and the absence of controlling figures like the prime minister and the leader of the opposition. A comparative study of print media coverage of the Senates in Canberra and Ottawa would bear out the greater attention the Australian press pay to the upper house of their Parliament. Thus, compared with the Canadian upper house, the Australian Senate is close to the centre of political interest and speculation. In the last decade it has become the cynosure of academic interest, much as the Charter has in Canada. And, as in Canada, where an active school of thought raises alarms at the influence of the Charter on political practice, so a proportion of commentary in Australia deals with concerns about the destabilizing effect of nearly balanced legislative chambers in a Westminster parliamentary system. These concerns should have particular interest for Canadians who advocate institutional reform along Australian lines. Putting aside the question of the composition of a revised Canadian Senate and assuming for the moment that the upper house acquired a measure of the legitimacy its critics say it currently lacks, what issues might confront the Senate? Using Australia as a guide, one major concern is the question of the mandate: could one expect to see senators assert 'a counter-mandate to justify resistance to the government's mandate?' Or, given the prevalence and persistence of partisanism, could one expect to see a 'clash of mandates' within the Senate?20 Could the Senate, or some of its members, agree that it was their job to see that the government abided by its promises?21 On rare occasions the Canadian Senate has interpreted its review function narrowly, as when it has criticized specific government policy on grounds of omission or commission. To date, it is exceptional for the Senate to see itself

Bicameral Perspectives 29

as a 'partner in policy making'; it is even unusual to see it overtly claim the role of 'agent of accountability/ In Australia, however, these are live questions that stem directly from a situation where each house of Parliament has - and is understood to have - equal power over the legislative process. A second concern originates in the non-simultaneous election of the two houses of the Australian Parliament. Not only are there different terms, which only coincide in the unusual event of a double dissolution and simultaneous election for both houses, but different electoral systems are used for each house - a PR list system with the state as a single unit for the Senate and a preferential ballot for the House, to determine the outcome in individual constituencies. The effect is to separate the parts of the bicameral system. While it is true that the nexus provision is a countervailing, that is a uniting, force, in general Australia's constitution works to promote independence between the two chambers. Is this a problem, and could it happen in Canada if both houses were elected without concern being given to linkage? The answer to both questions is yes. The events of 1975 demonstrate that, in certain circumstances, the Senate can bring about the defeat of a government and perhaps even the dissolution of the lower house if the resulting deadlock between the chambers is not resolved. The ultimate power of resolution lies with the governor general's prerogative to summon new advisers or dissolve the lower house. The Crown is one part of a tripartite parliament and in those situations where the conventions of responsible government fail to obtain, it alone possesses the power to restore harmony. But the Crown exercises its prerogative on advice that is partisan. It is one of the most important, though least observed, features of political life in the United States that all elections are held simultaneously. Canadians, but not Australians, take this for granted. In 1988 the Constitutional Commission of Australia recommended that the maximum term for the House of Representatives be raised to four years, and that Senators should serve for two terms of the House of Representatives, with one half retiring at each election, save in the case of a double dissolution ... [T]he House of Representatives ... should ordinarily serve a minimum of at least three years and should only be dissolved in less than three years if the Prime Minister loses a vote of confidence. During the three year minimum term, the Senate would lose its power to reject money bills.22

30 The Canadian Senate in Bicameral Perspective

Bicameralism in Australia, and by inference in Canada, is a matter not only of composition and power, it is also intimately tied to questions about the use of the Senate's veto, the implications of votes of confidence in the lower house, terms of Parliament, the definition of money bills, and the exercise of the Crown's prerogatives to dissolve Parliament and dismiss governments. Few political subjects could be as structural in appearance yet as influenced by process as bicameralism. Australia's contribution to the study of bicameralism lies in its intent, if not success, in adapting the practices of Westminster-style government to a non-executive dominated Parliament. Great Britain The history of bicameralism in central Canada begins with the creation of two-chambered legislatures for Upper and Lower Canada by the Constitutional Act, 1791. Whatever theory of stability and balance lay behind this arrangement of legislative powers in company with the Crown's representative, the councils were from the outset 'the weak part of the constitution.' That was the opinion of the colonial secretary (Earl Grey) in 1849, even before the achievement of responsible government whose central principle of accountability to the peoples' elected representatives awarded primacy to the lower house. Grey was corresponding with the governor general, Lord Elgin, who, in reply, echoed his political master's view. In his opinion, the councils were 'worse than useless,' since they brought criticism upon themselves if they resisted the popular branch and upon the Crown if new appointments were made in order to manufacture harmony. In what was to become a pronounced Canadian trait in the discussion of upper house matters, the source of grievance arose as much from comparison with the practice of upper chambers elsewhere as it did from the behaviour of the local councils themselves. According to Lord Elgin, 'an inexhaustible fund of declamation and denuntiation [sic] is supplied by analogies sought in the British House of Peers. Analogies which are utterly faulty, but satisfactory enough to people in a passion.'23 Analogies with the House of Lords were singularly inapt then or later, once Confederation was achieved. For a start, there was no aristocratic class from which to make appointments; and as long as British honours were awarded to Canadians (until 1919, with a brief return in the early 1930s), they displaced political appointments as desired preferment.24 Second, Canada was a federation, and Great Britain, despite

Bicameral Perspectives

31

flirtation with federal solutions to the Irish problem, a unitary system. More than that, the Canadian Senate was a chamber designed to respond to the country's regional and sectional interests; the House of Lords was not hostile to diversity, even where, as with the Irish and Scottish peers, there was a territorial base, but that in no way made it federal. Third, because the Senate was a body whose job it was to protect territorially-based interests, its membership was capped. Had the Canadian prime minister shared with the British prime minister the right to advise the use of the sovereign's prerogative to create new members as he saw fit, the federal bargain, which had occupied so much of the Fathers of Confederations' time at Quebec City, would have been no guarantee of protection to the smaller provinces. Fourth, the Canadian Parliament, contrary to the constitution's preamble which spoke of Canada having 'a Constitution similar in principle to that of the United Kingdom,' was fundamentally different from the British Parliament in that it was not a body supreme over all others. The Canadian Parliament and the provincial legislatures experienced a condition the Parliament at Westminster did not encounter until it entered the European Union - limited power and subordination. Lastly, the Canadian Senate differed from the House of Lords in one respect vital to any discussion of bicameralism: the Senate never acknowledged that it must yield when it and the Commons disagreed on legislation or supply. From the 1860s onward, the Lords' subordination to the Commons at Westminster was customarily asserted and, except for the crisis of 1909-10, generally prevailed. The Parliament Act, 1911, transformed custom into statutory law. At no time in its history would it be correct to say that the Senate of Canada agreed to accept a role constitutionally inferior to that granted the lower house, except for the power to initiate financial bills. This did not mean that the Canadian Senate acted hastily or aggressively, only that its circumspection in dealings with the Commons was self- not constitutionally-imposed. Yet the claim is still made that Canada's 'bicameral legislature ... was closely modelled on its British parent.'25 This, despite the fact that the House of Lords was, in Keith Jackson's words, 'essentially a-typical.'26 Paradoxically, more than a century after confederation, the recommendations of the royal commission on Lords reform will make the 'transitional, UK upper house ... very similar' to the Canadian Senate.27 The similarity these comments refer to is limited to the composition of the two houses, and then only to the original lifetime tenure of Canadian senators (since 1965, the retirement age is seventy-five) and to the

32 The Canadian Senate in Bicameral Perspective

nature of their appointment, by the Crown on recommendation of the prime minister. Yet there have always been significant differences between the two upper houses, even within these selected areas. With two exceptions, the House of Lords was a hereditary body until the arrival of life peers in 1958. These exceptions were the law lords (the twelve Lords of Appeal in Ordinary, first appointed as life peers under the Appellate Jurisdiction Act, 1876) and the archbishops (Canterbury and York) and bishops (London, Durham, and Winchester plus twentyone other senior diocesan bishops of the Church of England), the latter of whom cease to be members of the Lords on retirement from their bishoprics.28 The Canadian Senate never played a functional role in the administration of law or a symbolic role in the practice of religion.29 Another feature of the Lords that distinguishes it from the Canada's upper house is its size. At the end of the twentieth century but before the beginning of reform, the Lords had 1,210 members, 60 percent of whom were peers by succession and the remainder life peers. Of particular note is its exponential growth during the last century. At the time of the Parliament Act, 1911, there were only approximately six hundred peers, but the sale of peerages in the Lloyd George era a decade later vastly enlarged the number. Thus, while it would be difficult to prove a connection, the fact remains that the Lords grew in numbers as its constitutional powers declined.30 Harry Evans, clerk of the Senate of Australia, claims that the separation of powers into executive, legislative and judicial branches and the division of powers associated with federalism interact in Australia to create a sense of constitutionalism and a belief in the need to limit state power in order to promote individual liberty.31 Whether or not Australia is the political equivalent of Darwin's Galapagos, whose flora and fauna isolation and time had allowed to develop independently of outside influence, the fact remains that ideas of government in Australia deviated from the British model. As seen earlier, Australian beliefs in balance and separation displaced 'the good old constitutional method of fighting it out at the polls.'32 Thus, from before the creation of the Commonwealth, the Australian conception of constitutionalism was unBritish. This contrast was evident in the views each held of the proper relationship between upper and lower houses of Parliament. In British eyes in the 1890s, as in the 1990s, Parliament should be seen not as the sum of its parts but as a whole. And as a single organism, the duty of the upper house was to yield to the lower house. In a discussion of the franchise during the conventions in Australia,

Bicameral Perspectives 33

one delegate (Henry Dobson of Tasmania) recalled a comment by George Eliot to the effect that 'England is a country very much governed by phrases.'33 In the matter of the Lords' relationship to the Commons, the governing phrase is the single word 'complementary' and its variations. Thus, the second chamber should not be 'a fully bicameral' body that could force its will on the lower chamber. As well, 'the second chamber should not be given additional powers in respect of constitutional issues/ nor should its powers be increased 'in respect of any particular category of legislation.' The upper house must not rival the lower house; deference not defiance is to be its demeanour. The second chamber should have the confidence to make the government and the House of Commons think again about an issue, but it should not oppose them when their views are 'clearly expressed' or when they advance legislation in response to an election commitment. This last consideration, the so-called Salisbury Convention with roots in the late nineteenth century, depends for its authority on the premise that sovereignty lies with the people manifested in Parliament through the House of Commons chosen by the electorate. This is the same reasoning that supports a suspensory rather than an absolute veto. If the report on the reform of the House of Lords can be said to embrace an elemental political theory, then it is this: 'the House of Commons is the pre-eminent political forum.' In fairness, the commissioners had this theory thrust upon them by the opening words of their terms of reference, which enjoined them to have 'regard to the need to maintain the position of the House of Commons as the pre-eminent Chamber of parliament .../34 The Senate in Canberra is an important measure of the values of the Australian political system. In a word, they concern accountability, especially of the executive to the legislature. Similarly, the House of Lords may be seen as an index of the British political system. In this instance, however, the history of the Lords for well over a century reveals an opposing value; the first duty of a second chamber is to support the executive that commands the Commons. In Britain, there is no sense of the constitution separate from Parliament; Parliament is a true constituent body. By contrast, the Australian Parliament shares in constitutional change with the people, as provided for in the amending provisions set out in section 128 of the constitution. Another way of looking at the difference between the two is to view Australia as a system of 'distributed majorities/ and thus analogous to the 'competing legitimacies' provided by the presidency, Congress, the courts, and

34 The Canadian Senate in Bicameral Perspective

voters in the United States constitution, while in Britain parliamentary sovereignty treats as foreign the premise of accountability to any external body.35 For the past century and a quarter, the House of Lords has fallen into that external category: 'One of the direct results of the growth of modern political parties in the late nineteenth century was the development of a House of Lords question.'36 The 'question' was the belief that, following mass adult male suffrage, the lower chamber was the house of the people and the upper chamber, the preserve of hereditary privileges, its opponent. That problem was compounded by the partisan imbalance in the second chamber, which saw Conservative peers vastly outnumber Liberal peers. The House of Lords question might be the offspring of mass democracy, but its resolution, through curtailment of the Lords' veto power, was the product of minor party pressure. After the Lords rejected the Asquith government's budget in 1909 - an action the prime minister labelled 'a breach of the Constitution and an usurpation of the rights of the Commons' - the government went to the people in 1910 and emerged with the slimmest of majorities.37 To pass the budget through the Commons now required support from the MPs of the emerging Labour party and, most crucially, from the seventy-one Irish Nationalists. 'Irish support,' says John Fair, 'was contingent mainly on the provision of assurances by the government for a delimitation of the Lords' veto which might ensure and expedite the passage of home rule.'38 It would be not much of an exaggeration to say that the prospect of Irish Home Rule drove the events that led to the Parliament Act, 1911, and adoption of the suspensive veto. The events surrounding adoption of the suspensive veto are important to an understanding of bicameralism, and not only because they signalled the conclusion in the shift of constitutional power that had begun with patronage reforms even before the great Reform Act of 1832. Debate over schemes to limit the legislative power of the Lords raised issues endemic to the study of bicameralism. First, there was the question of how to curtail the Lords. The plan eventually adopted (and as modified in 1949) provides that 'a non-money Bill can be passed into law over the opposition of the House of Lords if it has been passed by a simple majority in two consecutive sessions by the House of Commons and one year has elapsed between the second reading of the Bill in the Commons in the first session and its third reading in the Commons in the second session.'39 This was essentially the scheme of Sir Henry Campbell-Bannnerman, Asquith's predecessor as prime minister and

Bicameral Perspectives 35

Liberal leader, with one significant difference: Campbell-Bannerman had envisioned the time period as a single session of Parliament. The effect of the narrow period was that 'it practically abolished the legislative power of the house of lords.'40 But by the time the Lords rejected the 1909 budget, Asquith was leader. Initially, he had favoured a different scheme to check the power of the upper house. Its core idea was to place a disputed measure before a joint vote of the House of Commons and a delegation of one hundred from the Lords. The scheme was more complicated than this suggests but its central weakness is clear enough - it did not change the House of Lords. By contrast, the suspensive veto permanently altered the constitutional balance of parliamentary power. There was more to the suspensive veto scheme than this, however. First, the Parliament Act, 1911, reduced the life of parliaments from seven to five years. This was a concession to the Lords, for the introduction of the suspensive veto brought the British Parliament close to unicameralism and closer than in the past to a potential for arbitrary action. Interestingly, another argument for reducing the statutory life of Parliament lay in Liberal fears that seven-year parliaments together with a weakened Lords would lead the opposition to press for an equally unprecedented recourse - the referendum. Second, unsuccessful attempts were made by the opposition 'during the committee stages of the Parliament Bill in 1911 ... to insert a requirement of a qualified majority vote in the House of Commons before it could override the veto of the Lords.'41 No doubt it was to be expected that the Asquith government would resist such a change, since it limited its or any government's freedom. But there was a second consideration, the same one that had prompted a Parliament Act in the first place: the imbalance in Parliament between the Unionists (Conservatives) and their increasingly fragmented Liberal, Labour, and Irish Nationalist opponents. There is more to be said about the qualified or supermajority, since one of its effects is the same as bicameralism, that is 'to slow down the pace at which decisions are taken/ Had the override of the Lords' veto been made subject to a qualified majority vote in the Commons, then the Lords might well have been perceived as strengthened rather than curtailed by the reform. In addition to joint sittings and to a short-term veto on legislation, there was a third proposal to handle intercameral disagreement. While it failed to win support, it bears features familiar to Canadians. The idea was to designate organic from ordinary legislation, and to devise special safeguards for the former; in other words, differentiated con-

36 The Canadian Senate in Bicameral Perspective

stitutional treatment. Once again, that would have run counter to the belief in parliamentary sovereignty and the lower house as the superior chamber. Next to its hereditary foundation, the House of Lords has been most widely known among students of politics for the suspensive veto it may exercise over legislation coming from the House of Commons.42 The delaying function of a second chamber, so often cited as a proper role for an upper house in a parliamentary system, is perfectly encapsulated in the suspensive vote. Because of that sense of appropriateness, which belies the four-year struggle between 1907 and 1911 to secure its adoption, the suspensive veto has been assimilated into British parliamentary culture. Early in its report, the Royal Commission on House of Lords Reform recommends that 'the second chamber should continue to have a suspensory veto of the present length in respect of most primary legislation.'43 It is not necessarily a sign of its weakness that the Parliament Act has been implemented only five times in the last ninety years. Quite the reverse. There is a school of thought that believes that, absent an absolute veto, the Lords have greater potential to disrupt government legislative planning and, as a result, governments are more, not less, solicitous of the Lords' opinion. As a former Speaker of the House of Commons has observed, the Lords can ask the Commons 'to think again,' and in that request 'they have the constitutional clout to ensure that what they say is heard by the Government.' In this respect, it can be argued, the Lords are more powerful than the media.44 In light of what has been said about bicameralism in Britain, it is convenient to see the suspensive veto as a predictable outcome of the country's constitutional development. The democratization of the (male) franchise by 1885 broke the last of the Lords' constitutional moorings, which had definitely begun to fray in 1832. Of course, Canada experienced no similar constitutional development after 1867, and even if it had, there was no contradiction between the franchise and the upper house. What set Canada apart was that it was a federation of provinces from each of which the governor general appointed senators to constitute Parliament's upper chamber. Among their tasks was to protect sectional and minority interests. Here was the rationale for endowing the Senate with an absolute veto. And it should not be forgotten that there was a choice, since in the mind of The Economist, alternatives existed on the eve of confederation: '[WJould it not be expedient to allow a two-third vote of the Commons, if accepted by the Viceroy, and

Bicameral Perspectives 37 repeated in two succeeding Parliaments, to overbear the Senate? ... [W]hy not establish by law in Canada the practice which time and wisdom have created among ourselves?'45 Modern attitudes to the Senate's absolute veto power reveal a timidity foreign to the Fathers of Confederation. Even when it was still a predominantly hereditary body, the House of Lords with its suspensive veto was an example Canadian Senate reformers liked to invoke. The proposals for Senate reform that peppered the constitutional discussion of the last three decades of the twentieth century frequently displayed great willingness to trade an absolute for a suspensive veto. To the degree that a rationale was offered for this one-sided bargain, it generally suggested that with reduced power would come legitimacy, a quality reformers of the Senate were united in maintaining the present Senate lacked.46 The United States The Australian Senate may charm some Canadian reformers today and the non-elected House of Lords may impress others as the original model for Canada's Senate that must now be abandoned, but whatever their respective merits, they pale in comparison to the influence the United States Senate has exercised over debate on Canada's upper house. Caution is required when explaining the nature of this influence, for while there are frequent, even predictable, references to the Great Compromise at Philadelphia, which saw the Founding Fathers agree to a Congress composed of one chamber based on equal representation of the states and another on representation by population, it is rare that Canadian commentators examine the bicameral arrangement that compromise produced. Instead, attention is focused almost totally on the United States Senate and on the equal representation of each state regardless of population. Yet the importance of the compromise was not that each house had a different representational base but that both representational bases would co-exist within one legislature.47 Intercameral linkage of a different sort has already been observed in the nexus provision (section 24) of the Australian constitution. The one bicameral legislature barren of this type of connection is the British Parliament, for there the House of Lords had no representation function. Indeed, the royal commission report of 1999 recommended that in a reformed upper chamber up to 20 percent of its members should be elected (using some variant of proportional representation) from 'the

38 The Canadian Senate in Bicameral Perspective

nations and regions of the United Kingdom/ Regional members would 'underline the fact that, in broad terms, the second chamber should be representative of the whole of the United Kingdom.48 Endowed with a representational function, the Canadian Senate was no replica of the House of Lords, but it was no copy of the United States Senate either. If a word were sought to describe the nature of Senate representation in Canada, that word would be compensatory. Debates in the Senate and House of Commons in 1914 and 1915 over future representation of a fourth senatorial region (west of Lake Superior), offered an early twentieth-century opportunity to reaffirm or reject the representational understanding of the Fathers of Confederation. The following excerpt indicates that half a century after 1867 the original bicameral agreement held: As to what has been said about representation, it is very well known that the fathers of Confederation from the Maritime provinces would never have consented to representation by population unless the Senate had been constituted as a compensation for the representation in the House of Commons, and unless that representation had been made permanent and effective and proportionate. Therefore, the constitution of the Senate, in so far as it is made to represent the smaller bodies of Confederation, to represent the smaller provinces as well as the smaller bodies in every province concerned has not been made on the principle of the American Senate or of a similar body in any other country. It was made to meet the circumstances of Canada as a whole, as it was to be with that growing preponderance from the West. This Senate, therefore, has one chief object in view, that is, the protection of minorities.49

While it is a subject of a later chapter, the question of representation is raised here as a reminder that for the Fathers of Confederation it constituted a heavy problem whose resolution required a compound answer. In the quest leading to Canada's distinctive bicameral arrangement, the republican institutions of the neighbouring United States deserved and received close scrutiny. Ultimately, they were rejected. In light of the attraction the United States constitution holds for some modern-day Senate reformers in Canada, it is important to understand the reason for that conclusion. The place to begin is with American republican thought whose fulcrum is its theory of representation. As opposed to the British constitution which recognizes no constituent power apart from Parliament, the

Bicameral Perspectives 39

American constitution places sovereign power in the hands of the people. They limit and check government at both the state and national level. Following the revolution, popular sovereignty in the United States 'reduced the scope for state power/50 and as a consequence made the concept of representation in the United States very different from what was to obtain later in Canada. The United States constitution did more than provide for the three branches of government; it founded the first modern federal system and, with it, re-created the states of the Union. The point requires emphasis, since after 1787 the states owed their legitimacy to the United States constitution. They had no prior claim to recognition based on historic, collective, or popular identity (in a sardonic aside, Samuel Beer once wondered if 'there could have been a United States, if the rectangle had not been invented');51 rather, their security lay through Congress in 'the mutual recognition of the legitmacy of statehood/ The Anti-federalists challenged the proposition that the separate sovereignties of individual states might be merged into 'one entire sovereignty/52 This was another way of expressing their belief that a large republic and the thirteen states of the new Union constituted the largest republic then known - was a contradiction in terms. More fundamental still, in accepting that recognition, the American states forfeited 'the essential prerogatives of sovereign statehood/ The result, says Peter Onuf, was a 'debase[d] statehood/ The Senate, then, legitimated the states, not the states the Senate. This is the reverse of the argument advanced by Triple E Senate reformers in Canada, whose critique inevitably fixes on the Canadian Senate's purported lack of legitimacy because of the manner of its selection. The equal representation of states in the Senate is a fact commentators on American politics and federalism never fail to note. Canadian Senate reformers, who come mainly from western Canada, infer from this American representational guarantee an equality of status owed but still denied under the system of Canadian senatorial regions. That is one interpretation of how bicameralism functions in the United States. Another view is to pay less attention to the equal number of senators per state and more to the small number of senators each received and the large number of states. Whatever other resources may be employed by a state's senators in debate in the chamber, the influence of numbers is not one of them. And this is so because, arithmetically, two out of one hundred is insignificant, and because American political culture and the American constitution promote the national and the public over the

40 The Canadian Senate in Bicameral Perspective

state and the private interest. This is a disputable claim, since it is widely held that American politics is driven by the pressure of interests that, in some cases at least, are territorially specific. The distinction being drawn is not about the greater or lesser prominence of local interest politics in the United States than in Canada, but about the absence of state-centred politics in its Senate. Regionalism may not be absent in the United States but states as a voice of regionalism are. The contrast between the Canadian and American second chambers is marked. Americans would never say that 'a self-governing Colony [before Confederation] was something more than the number of its inhabitants' and, therefore, after confederation, deserved 'adequate representation' in Parliament. Nor would they agree that 'population was not the sole consideration in fixing representation.'53 Representation in the Canadian Senate was about compensation not about equality. At the beginning, Senate composition was divided into three equal parts Ontario, Quebec, and the Maritime provinces - each with twenty-four senators. Equality of regions, yes, but compensatory too, since under the confederation agreement Ontario had received representation-bypopulation in the lower house. Norman Lambert once observed that the provinces 'were given ... equal representation in the Senate of Canada which was to be the collective equivalent of the regional Legislative Councils of the provinces.'54 Again, the emphasis is on Senate representation as insurance, the same goal, now viewed from a different, western vantage point, as expressed by Triple E reformers. Stripped of their details, the basic objective of past proposals for Senate reform has been to create an effective regional counterweight to the demographic domination of Ontario and Quebec in the House of Commons. The language of Canadian Senate reformers today is almost exclusively the language of territorial interest as defined by provincial boundaries. Nor is this perspective the preserve of Senate reformers: the same arguments are advanced in support of electoral reform. The history of proportional representation in the nineteenth century, the theory of that system advanced by John Stuart Mill and the experience of countries that employ PR, share little with its advocates in Canada. The case for proportional representation is to make the popularly elected chamber representative of the opinion of the nation. In Canada, however, electoral reform is advanced solely to deal with one kind of election result the scarcity, even absence, of members in the governing caucus from individual provinces. The press of the collegial convention in govern-

Bicameral Perspectives 41

ment is so strong that election results that see few or no government members from individual provinces lead to calls for electoral change.55 What reformers want is less centralized federalism and national institutions. The implication is that the American upper chamber conforms more faithfully to the model they have in mind. That view of the U.S. Senate may have been true once, but is no longer the case. William Riker has demonstrated that the members of the Senate, as appointees of the state legislatures, originally offered an opportunity to peripheralize the federation, but the rise of national political parties and their intrusion into every state transformed the Senate from an institution of the states into one of the people.56 Constitutional provisions relating to the structure of the Senate and the original selection of its members also recommend themselves to Canadian reformers, since at the outset of the Republic, the Senate appeared to be 'an appendage to the Executive.'57 Few in number - the early Senates were two-thirds the size of the average Canadian cabinet today. More to the point, the constitution conferred upon the Senate duties it shared with the president: article II 2(2) awards it power to advise and consent to treaties by requiring a super-majority of twothirds of the senators present. Again, it is the Senate that advises and consents to senior judicial and diplomatic nominations made by the president. The United States constitution confers constitutional duties upon the Senate that the Canadian constitution denies, but reformers would like to give, to Canada's upper house. Riker records a single evolutionary track for the U.S. Senate leading to a 'national, centralizing purpose.'58 If in the 1890s, at the very moment the Judicial Committee of the Privy Council was set to unravel the work of the Fathers of Confederation, delegates of the Australian conventions mistook Canada for a highly centralized federation, Canadians made an equally fundamental miscalculation on the future of the American federation. They saw state appointment of senators as a crucial constitutional weakness leading to assertive state rights culminating in the Civil War. The United States federation was too decentralized and, as a check on similar development north of the forty-ninth parallel, the Fathers opted for central appointment of Canadian senators. They also claimed that experience with elected legislative councillors in United Canada after 1856 prompted second thoughts on the benefits of democratic selection. Following the Civil War, federalism in the United States moved onto a centralizing track that even John A. Macdonald should have applauded. As far as the Senate was con-

42 The Canadian Senate in Bicameral Perspective

cerned, the journey ended with the seventeenth amendment in 1913, which provided that senators from the states 'shall be elected by the people thereof.' The requirement for super-majorities reinforced the centripetal thrust of American politics. Its influence is felt in the effect exerted on parties and in the relationship between parties. Few adjectives are used as frequently in American politics as bipartisan. The reasons for bipartisanism in American politics are several and changeable; one that is unalterable is the structural or arithmetical explanation - it is nearly impossible to muster the super-majority required to support a treaty, for example, without the cooperation of senators from both major parties. In forcing broad consent within one chamber, the super-majority plays the same role as bicameralism in aggregating support for policy in both chambers. In this respect article II 2(2) is redundant, in the same way that federalism is a redundant arrangement of power, by requiring duplication and imposing delay.59 The United States Senate institutionally echoes the American concept of representation, in the sense that the procedures and pathways of the upper house filter and distil public opinion. In sum, the United States Senate contributes to but does not determine the nature of American politics. It is an important question for this study to assess the influence other upper chambers have on the politics and political cultures of their countries. In parliamentary systems there is little capacity or willingness for bipartisanism. The focus of politics is on the electoral horizon. To what extent do non-elected upper chambers in Canada and Great Britain affect political calculations? It is the opinion of some Canadian observers that 'an elected Senate would only add [to the power of the prime minister]' and that election to the Senate would bring with it 'a standard House of Commons political agenda.'60 Whether this is borne out by the evidence remains for later discussion. Germany It is not possible to talk of bicameralism in comparative perspective and leave Germany out of the discussion. There are numerous legislative systems with two chambers (the Inter-Parliamentary Union has reported that of 178 parliamentary democracies in 1996, fifty-eight were bicameral), but outside of academic texts no one talks about Italian or Irish bicameralism.61 Just as Germany's constitution in 1949 (the Basic

Bicameral Perspectives 43

Law) created an unusual double electoral system, which used proportional representation to correct the imperfections of the plurality system for the lower house of the national Parliament (the Bundestag), so it was equally innovative in designing the upper house (the Bundesrat). In fact, it is so unusual one German scholar has written that 'the Bundesrat is not, strictly speaking, the second chamber of a bicameral national parliament.'62 The basis for that opinion is the following: Bundesrat members are state (lander) politicians, usually prime ministers or cabinet ministers, although often their places are filled by state bureaucrats; state delegations are permanent (although their composition would reflect partisan fortunes in state elections), without term, who vote as a bloc. Displaying these characteristics, it is understandable why another writer has described the Bundesrat as 'a chamber of provincial potentates.'63 Like all political systems, the German one is complex; federalism is all about administration. The federal government and Parliament possess the bulk of legislative powers but in most instances administration is the job of the states. There are historical reasons for this orientation that go back to Bismarck as to well as Allied concerns in 1945 to limit the power of the postwar central government. The contrast with Canadian (and American and Australian) federalism is that in these systems federalism is about jurisdiction. While it may not be true that whoever the constitution endows with a field of jurisdiction necessarily administers that field, the fact remains that that is the first and, sometimes, only question to be asked in Anglo-American studies. The implications of these contrasts extend to the heart of political conduct. If the clout that members of the Bundesrat possess derives from their administrative acumen, the same cannot be said of their Anglo-American counterparts, who overwhelmingly have no administrative experience. In fact, the separation of politics and administration is a convention of Britishstyled parliamentary systems going back to the 1850s and the NorthcoteTrevelyan report on civil service reform. Even though it took some years to disentangle politics and bureaucracy in countries such as Canada, the ideal was clear enough. Members of upper chambers in the Anglo-American world are usually politicians, or at least political in the sense that the qualities that recommend them for their position - a capacity to bargain or advocate - are valued in politics. Even in the unreformed House of Lords, with its large component of hereditary peers, the most active members were political in their orientation. It is no surprise that if the qualities valued among the members of upper

44 The Canadian Senate in Bicameral Perspective

houses differ in this respect, then the work of the Bundesrat and the Anglo-American Senates also probably differs. The Bundesrat is a faithful practitioner of the German way of politics, that is, consociationalism. The essential objective of consociationalism is to protect interests whose integrity is viewed as fundamental to the preservation of the political union.64 The history of relations between English- and French-speaking Canadians, for instance, is marked by informal mechanisms like the alternation in office of individuals from the official language groups. One example would be the chief justice of the Supreme Court of Canada and, with modification, the composition of the court itself. But while consociationalism is not unknown in Canada, and can even be found in the so-called federalized cabinet, the character of politics in this country, Australia, the United States, and Great Britain is unquestionably adversarial in spirit. Canada differs from the other three countries in that consociationalism has a long history, in some parts of the country more than others, and thus there is a continual tension between consociational and adversarial styles of politics. Adversarial politics are not unknown in Germany, but Werner Patzelt describes the Bundesrat as 'the institutional adversary' of the Bundestag.65 Partisan considerations are not absent from this picture, since Bundesrat members come from state governments composed of parties the voters have often chosen with a view to offset a different party dominance at the centre. The result can be a Bundesrat dominated by state officials representing party interests opposed to those that dominate the lower house. Thus, it would be quite misleading to press the consultative, cooperative, consociational theme to the exclusion of partisanism. Yet the infusion of administrative matters in upper chamber business, especially its committees, and the concern about the implementation of law by state bureaucracies sets German politics apart from those in Anglo-American countries. The German upper chamber is concerned with legislation, both the making and the implementation of laws. In none of the other upper chambers under study would legislation dominate as an activity. Even in the United States Senate, but certainly in the second chambers of Great Britain and Australia, deliberation and investigation and review would rank ahead of legislation. The names of senators are not household words in Canada, but then neither are those of most members of Parliament or even cabinet ministers. Nevertheless, when people speak favourably of the work of the Canadian Senate, they invariably refer to

Bicameral Perspectives 45

the work of its committees, for instance, the Croll Committee on Poverty or the Lamontagne Committee on Science or the Davey report on Mass Media. The point is that regardless of their reputation before they entered the Senate, these senators and many others are known for their work as senators. Compare that with Patzelt's comment that 'the problem for the Bundesrat is that its members are state prime ministers or cabinet ministers ... [T]hey definitely are not perceived as "members of the Bundesrat/"66 The conclusion Patzelt comes to is that the Bundesrat lacks 'direct democratic legitimation' because it is not elected. For a Canadian, this is a surprising comment, since this is the same criticism usually voiced about the Canadian Senate and yet, at the same time, the Bundesrat attracts much favourable Canadian attention.67 How to explain this paradox? The answer lies in the Bundesrat's role as an institution of intergovernmental relations. Back in 1983, before the Triple E Senate assumed the prominence it now holds as a reform option, Roger Gibbins isolated the attraction of Germany's second chamber: 'The objectives of Senate reform cluster around a single core, that of enhancing the quality of regional representation within national political institutions by national politicians.'68 It is often said in Canadian political writing that the country's central institutions are bereft of some body that incorporates provincial interests into the national forum. Here is the putative attraction of the U.S. Senate, here too the explanation for the extraconstitutional development of executive federalism, and here also the lure of the Bundesrat.69 It is in its role as an intergovernmental institution that some Canadians find the Bundesrat so attractive, especially when it is remembered that the Bundesrat possesses both a suspensive and an absolute veto over legislation. Since the absolute veto applies to bills 'affecting states' rights in the areas of finance and taxation, and touching on the states' administrative responsibilities/ the potential the Bundesrat has to paralyse a federal government is real indeed. In the early 1980s, when the Trudeau government's National Energy Policy had raised some westerners to a 'passion' (in Earl Grey's word of long ago), the German bicameral system, which would see the premiers and cabinet ministers of the oil-producing provinces in the upper house of Parliament, exerted much appeal. No one asked whether an upper house patterned on the German model was actually a parliamentary chamber as that term is understood in Anglo-American political theory. The Australian and Cana-

46 The Canadian Senate in Bicameral Perspective

dian constitutions explicitly say, as do the statutes passed at Westminster, that Parliament is composed of three parts, of which the second chamber is one. The United States constitution, article I, section I, says that "all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives/ Parliament is an institution of and for, if not by in the case of the House of Lords and the Canadian Senate, the people. Whatever claim is made for the Bundesrat, it cannot be said to be of, by or for the people. In that sense, it is less a representative than an administrative body and less a parliamentary than an intergovernmental institution.

Chapter Three

The Senate as an Object of Study

Like Mark Twain's weather, the Canadian Senate is more a topic for discussion than action. Indeed, this paradox is the first comment usually made when the subject of the Senate arises. Not that it arises all that often, for contrary to what might be thought, the Senate is not a subject of sustained popular or even scholarly interest. In consequence, there is no attitude to bicameralism. A bibliography on the Senate, compiled by the reference section of the Library of Parliament and issued in 1991, shows that of 243 entries under the heading 'Historical and General Works,' forty-eight publications emanate from the government and its agencies or from Parliament and its library. Under 'Senate Reform' another 338 entries appear, with sixty from government and thirtyseven from a single publication, Alberta Report. Since the bibliography includes works from as far back as the first decade of the twentieth century, the number of entries over eight decades is comparatively small. They are also episodic in the sense that they cluster around events such as the National Energy Policy.1 Corroborative evidence for the claim that public interest in the Senate is low-level can be found in the aftermath of the Charlottetown Accord's defeat in a national referendum in 1992. As opposed to many proposals over the past decades to reform the Senate, the Accord had the support of the country's first ministers. More than that, it was radical in its provisions for a reconstituted upper chamber: a suspensive veto, equal provincial membership, direct or indirect election of senators (at the discretion of the provinces), and elections simultaneous with those for the House of Commons. Yet there is no evidence that Canadians felt an intense or urgent need to rescue this aborted attempt at reform. In the decade that has elapsed since the referendum, Senate

48 The Canadian Senate in Bicameral Perspective reform proposals continue to appear but remain diffuse in their particular objectives and fragmented in their source of support. The saga of Canadian Senate reform lends support to John Wahlke's claim that 'citizens are apparently able to dislike something or other about the actions of government and at the same time support its continuation institutionally unchanged, and their levels of support in this respect apparently fluctuate over time.'2 If the general public displays only a low-level interest in the Senate, what of the interested public? Outside of academic or governmental circles, attention fluctuates sharply, as a compilation of articles in a periodical such as Alberta Report demonstrates. In other publications, such as Maclean's and L'Actualitie, or the Globe and Mail and the National Post, references to the Senate are too infrequent to confirm any pattern of attention. It needs to be emphasized that paucity of attention is not the same thing as unformed opinion: commentary on the Senate of Canada is strongly negative although not necessarily united in its cause for complaint. Rather than an object of study, in the words of a young John Turner, 'the Senate has become an object of ridicule.'3 The range as well as the substance of that criticism will be described and assessed later. The focus here is on scholarly literature, which includes works of an official provenance, such as reports of royal commissions, task forces, and public inquiries, as well as the work of individual authors. Since the appointment of the Royal Commission on DominionProvincial Relations (Rowell-Sirois) in 1937, and the employment of university economists, historians, and political scientists on royal commission reports, a figurative legion of professors has written about the constitution and institutions of Canadian government. Two relevant examples of what might be called university-inquiry bridging are David Hoffman and Norman Ward, Bilingualism and Biculturalism in the Canadian House of Commons and Donald V. Smiley and Ronald L. Watts, Intrastate Federalism in Canada. In 1970 Hoffman and Ward were political scientists at McMaster University and the University of Saskatchewan respectively. The original task of their project was 'to describe and analyse the relationship of the Canadian MP and Senator in the political process.' In the tradition of what political scientists called structuralfunctionalism, Hoffman and Ward were to examine the relationship between socio-economic and ethnic characteristics on the one hand, and role performance on the other. The intention was to interview all MPs but just 40 per cent of the senators: 'More limited in scope, but using comparable data, this [Senate] section will set out the Senator's

The Senate as an Object of Study 49

general orientation to politics, his interests, perception of proper role, etc., in the light of the Senate's "ostensible first duty ... to protect the provinces and the sections ..."'4 As it turned out, in April 1965 the survey of members of the House of Commons became controversial; one of the commission's responses was to cancel the Senate study before it had begun.5 Twenty years later, Smiley and Watts, political scientists at York University and Queen's University, wrote a study for the Royal Commission on the Economic Union and Development Prospects for Canada (the Macdonald Commission) that examined institutional reform as it applied to the House of Commons, the Senate, and the Supreme Court, in order to accommodate and reconcile the variety of regional interests within the country. Institutional inadequacy rather than individual role performance assumed prominence. Here there is no citation of literature on structural-functionalism but frequent reference to upper chamber institutions elsewhere, to the history of the Canadian Senate, and to proposals for reform of the Senate emanating from bodies such as the Task Force on Canadian Unity (1979), the Constitutional Committee of the Quebec Liberal Party (1980), and the Special Joint Committee of the Senate and House of Commons on Senate Reform (1983). These two works are among the best known of what is referred to here as bridging studies. Linkage, however, is not limited to academic authorship of a 'public' study; academics also propagate the same ideas in seminar rooms, on conference platforms, in scholarly publications, and in media analyses. It is not surprising that this would happen, but it is an unexplored dimension of the transmission of ideas. There is also a generational lag in this activity as far as students are concerned. For instance, the centralism implicit in the concept of national standards, which lies at the heart of the Rowell-Sirois recommendation to institute a scheme of national adjustment grants, did much to create a federalist atmosphere in university classrooms that persisted long after it encountered opposition from provincial governments.6 The genesis of ideas is obviously important and never more so than in the realm of politics. In this regard, the Senate holds interest, for while it is true that the institution has long been the subject of criticism, the cause and nature of that criticism have evolved. For example, it is curious that a royal commission charged with investigating dominionprovincial relations never refers to the Senate.7 Of course, that was 1937, and despite what the textbooks say now, the Senate was not perceived then as an institution of federalism. Thus, before examining

50 The Canadian Senate in Bicameral Perspective

the Senate in action and proposing changes to its operation, it is essential that the study of the upper chamber be examined as a subject itself. The place to begin is with academic works, for the reach of their influence is longer than either parliamentary debates or legislative and royal commission reports. Four book-length studies of the Senate were published in English in the twentieth century: Sir George Ross, The Senate of Canada: Its Constitution, Powers and Duties Historically Considered (1914); Robert A. MacKay, The Unreformed Senate of Canada (1926, and revised edition 1963); F.A. Kunz, The Modern Senate of Canada, 19251963 (1965); and Colin Campbell, The Canadian Senate: A Lobby from Within (1978). A fifth, French-language work by Jean-Charles Bonenfant, Le senat dans le federalisme canadien, appeared in 1966.8 The Senate has also been a subject of study in monographs and journal articles. Still, among secondary sources it is these five books, and particularly the English-language publications, that have provided the foundation for the study of Canada's upper house. The Ross book, published only three years after passage of the Parliament Act in Great Britain, reflects the concerns of that era, of which the primary one was the relationship between the two houses of Parliament. Half the book is devoted to examining the 'constitutional obligations of the Senate/ 'the legislative obligations of the Senate/ 'collision with the House of Commons/ and 'the Senate and public opinion.' There are also chapters on the history of the British North America Act, whether the act was a 'treaty' among the 'parties' who made it (according to Ross, the answer is yes) and, finally, on amending the constitution, in which he argues the Senate cannot be altered without the consent of all 'parties.' One chapter of sixteen pages is devoted to 'Senate Reform.' Here there is a single reference to a motion in 1874 by Liberal member of Parliament David Mills, then in opposition, to make senators provincially selected. Otherwise, the chapter is devoted to examining proposals to make the senators more responsible. Ross's answer is to improve the appointment process by choosing 'rightly.' Thus 'a nominative Senate could be made the strongest bulwark of the Constitution, and the most impartial guardian of true democracy.'9 To the modern eye, the most striking feature of Ross's book is the omission of the subjects of representation and geography. In this respect, it stands in sharp contrast to 'the virtually universal preoccupation of [Senate] reformers today, which is regional representation.'10 Notwithstanding their contents, the next three studies - those by MacKay, Kunz, and Campbell - share a common provenance: each

The Senate as an Object of Study 51

began as a doctoral dissertation in political science, MacKay at Princeton (1924), Kunz at McGill (1963), and Campbell at Duke (1974). Each book reflects its pedagogic origin in the enunciation of a research problem and in the scope and thoroughness of its analysis. There is about these works a self-contained sense of completeness, with this codicil: in its structure, emphasis, and perspective the Kunz book reads as if it were a sequel to MacKay's volume. The table of contents appears similar although the period examined is sequential, with Kunz's research beginning in 1925, the year after MacKay had finished his Ph.D dissertation. None of the three had written about their dissertation topic before beginning the thesis and none of them afterwards published anything substantive on the Senate.11 Less expected, however, was that afterward none of the three maintained a research interest in the Senate that manifested itself in publications.12 In this regard, their careers were very different from someone like Norman Ward, whose Ph.D dissertation at the University of Toronto on representation in the House of Commons was published in 1950 (with a second edition in 1963). This was followed by a score of books, articles, and reports centred on the lower house, elections, public accounts, and committees.12 The contrast is less a question of numbers than it is of Ward's devotion to studies on electoral institutions of Canadian democracy and the absence of similar interest in the Senate, beyond their initial work, on the part of MacKay, Kunz, and Campbell. The Senate has never had interpreters whose scholarship progresses with the institution and who, as a consequence, bring to their task a continuing vision of the institution. The MacKay and Kunz books are more encyclopedic in their ambition than is the Campbell volume, which develops and argues a highly articulated thesis. Aside from the history of the colonies and confederation negotiations, MacKay and Kunz devote their attention to the daily work of the Senate. These books are indispensable if one is to learn about the structure and function of committees and the passage of legislation. Inevitably, as in everything written about the Senate, there is a discussion of the appointment system, the functions of a second chamber, and whether to abolish or reform the chamber. Significantly, and in sharp contrast to more recent discussion, there is very little about regional representation. Thus, when these books mention provincial rights, they refer to the Senate's behaviour when considering questions deemed contentious in the provinces, such as changes to the federal franchise in the nineteenth century or changes to taxation fields

52 The Canadian Senate in Bicameral Perspective

in the twentieth. When they discuss representation of the provinces, they refer to the presence of provincial appointees (or nominees) which 'might well increase [the Senate's] usefulness.'13 What is missing is any sense of advocacy. Neither book foreshadows the thrust of secondchamber literature to appear in the late 1970s and early 1980s. Colin Campbell's The Canadian Senate: A Lobby from Within appeared a quarter of a century ago and is the last book-length study of Canada's upper house. But where MacKay and Kunz explain the work of the institution and associate its labours with their interpretation of the role the Fathers of Confederation intended for the second chamber, Campbell indicts the Senate as 'antipathetic to democracy' and immune to substantive reform. He concludes that it should be abolished.14 While acknowledging that Canada's upper house has conducted important investigations into such questions as poverty and science policy, he condemns the institution for allowing itself to be used as an intermediary between the world of business and government. Preferential access, he says, conflicts with the liberal democratic belief in 'reasonably equal opportunities for access to the process of decision making.'15 Campbell's critique stands out on three counts. First, up to then no one had attacked the Senate as an agent of special interests. This is not to say that the societal unrepresentativeness of Senate appointees had gone unnoticed, only that the economic and occupational bias had failed to provide the basis for a general critique. Second, Campbell is the first writer to employ liberal democratic and elite theory in his analytical framework; Robert Dahl, Robert Presthus, V.O. Key, and Peter Bachrach figure prominently in his citations.16 Finally, unique among academic authors, as opposed to the CCF for whom Senate abolition was an article of faith, Campbell's answer to the perennial problem of the second chamber was to do away with it. In its time this was an unorthodox response, but what makes it important for this study was the rationale Campbell offered for his radical conclusion. In 1978, the year his book appeared, Canada was embarking on a period of intense constitutional change following the victory of the Parti Quebecois two years before. It was also the year the Trudeau government released its Constitutional Amendment Bill (Bill C-60) which, among other things, proposed in place of the Senate a House of the Federation. The new house was to be selected through indirect election by provincial legislative assemblies and the House of Commons.17 At the end of the 1970s, the problem the second chamber needed to repair had nothing to do with the question of accountability

The Senate as an Object of Study 53

and everything to do with improving federal-provincial relations. Whether the House of the Federation was based on the right design to achieve that end is open to debate. In any case, the answer will never be known, since in response to doubt expressed by the provinces and in Parliament, the federal government sought an advisory opinion from the Supreme Court of Canada on whether Parliament could unilaterally alter the composition of the upper chamber. The answer from the court was no.18 Campbell's willingness to see the Senate abolished fitted into this era of constitutional change. So too did his enthusiasm for a Bundesrat-like replacement: '[S]uch an institution/ he said, 'can be a highly effective vehicle for Lander [and provinces] in influencing federal policy.'19 From the perspective of this chapter's theme, Campbell's book is a transitional study of the Senate: the older concerns, about scrutiny, accountability, and the protection of interests, which are no less legitimate because of their age, give way to an overriding preoccupation with provincial representation at the centre. In the nearly four decades since Kunz's book appeared, the number of scholars who have written about the Senate, as opposed to advancing a particular reform for the Senate, are few. Of these, C.E.S. Franks and Norman Ward discuss the Senate within the larger parliamentary framework that is the subject of their texts, The Parliament of Canada and Dawson's The Government of Canada, although Franks has also written pieces on the Senate that have been published independently, while Donald V. Smiley and Ronald R. Watts produced for the Macdonald Commission a research study, Intrastate Federalism in Canada, which includes a chapter on 'reform of the second chamber/ as well as a more general discussion of second chambers and intrastate federalism.20 In company with earlier writers, Franks and Ward focus on the traditional second chamber concerns such as appointments and legislative work. But Franks, like Campbell, critically assesses the move toward provincialization of the Senate. There are, he concludes, 'fashions in parliamentary reform, and the idea of a "House of the Provinces" has now lost favour.' The reason for caution is the asymmetry that would come with the provinces dominating one house of Parliament. The sequel to a House of the Provinces is the Triple E Senate proposal, favoured by, among others, the Alberta government, the Canada West Foundation, and the Macdonald Commission.21 Again, Franks asks some difficult questions: Would an elected Senate be more vulnerable than an appointed one to the influence of lobbies? If so, what effect

54 The Canadian Senate in Bicameral Perspective

would this alteration have on relations between the Senate and the Commons? Would it not be the case that the more influence the upper chamber was viewed as having, the more assertive the political parties would become and, perhaps, the more fractious the party relations between houses? What kind of voter participation could be expected in Senate elections, be they simultaneous or non-simultaneous contests with the House? Why would an elected Senate lead to reduced federalprovincial conflict? These are fundamental questions, and they place Senate reform under an analytical lens it seldom finds itself. Not that there was insufficient opportunity in the period after the Canada West Foundation put its Triple E proposal onto 'the contemporary constitutional agenda in 1981./22 At least a dozen proposals, of federal or provincial origin, adopted as their central proposition the equation of elected status with legitimacy. The grounds for this claim are open to debate and will be discussed below. For the moment, it needs to be said that, despite the plethora of proposals, the form an elected upper chamber would take remains unclear. Some schemes call for a system of proportional representation, although whether via the single transferable vote (as used in Australian Senate elections) or a list system (as favoured for selecting half of Germany's lower house seats) remains undecided. Other schemes call for maintaining consistency with lower house elections throughout Canada and using simple plurality voting to determine the election outcome. Again, some schemes envision at-large Senate elections, that is, treating each province as a single constituency; others call for individual constituencies within provinces but drawn to encompass and promote the representation of 'community interests' rather than population. Some see upper house and lower house elections coordinated, some do not. What these schemes share is the presumption, in the words of the Report of the Special Joint Committee of the Senate and of the House of Commons on Senate Reform (1984), that 'an elected Senate is the only kind of Senate that can adequately fill what we think should be its principal role - the role of regional representation.' The following year the Report of the Alberta Select Special Committee on Senate Reform echoed the federal parliamentary committee. As its first recommendation, it called upon 'the Senate of Canada [to] maintain as its primary purpose the objective established by the Fathers of Confederation, namely to represent the regions.'23 The Senate might 'represent the regions/ whether or not as a primary function, but as Mark MacGuigan, Canada's then minister of

The Senate as an Object of Study 55

justice, asked in a paper he presented in 1983 to the Special Joint Committee of the Senate and the House of Commons, 'who then should speak for the regions of Canada? That is the question.' And indeed it was: for depending upon who spoke for the regions and how they were elected, much else followed. As MacKay and Kunz had made abundantly clear in their studies, Senate-House of Commons relations were, with momentary lapses, cordial and constructive. This despite the fact that the Senate, unlike the House of Lords after 1911, held an absolute veto over all legislation coming before it. It would be incorrect to say that the Senate never exercised its veto but equally misleading to suggest it used it thoughtlessly or often. An elected Senate, with regional representation however achieved, would be a different matter altogether. The temptation to use the Senate's veto for partisan advantage or regional benefit would grow. It is this possibility that explains Roger Gibbins's cautionary comment about the unintended consequences of reform: It is thus somewhat paradoxical that most proposals for Senate reform begin with the assumption that a reformed Senate would have fewer and more limited powers than the existing Senate. It is assumed that an elected Senate possessing the same powers as the existing Senate would be too much for the Canadian political process to swallow, and thus that realistic proposals for reform must rein in Senate powers and subordinate the upper house. This is easier said than done if the Senate is elected and therefore able to claim the same democratic legitimacy as the House.24 Works on the Senate before the appearance of Colin Campbell's book in 1978 essentially accepted the status quo. The labour of committees the investigative work, the scrutiny function - these were the tasks an upper chamber in a parliamentary system with responsible government was expected to perform, and it was these jobs MacKay and Kunz (and Ross up to a point) described the Senate of Canada as doing. By contrast, Campbell's book offered a critique so devastating that reform was not possible. Abolition first, with a federal council of provincially appointed delegates to follow, was the answer. This too passed from view as a favoured option, to be replaced by another Senate that would be elected, equal, and effective. Significantly, for the purposes of a chapter devoted to examining the Senate as an object of study, the Triple E proposal entered the debate on upper house reform not as a result of an academic study but as a subject of advocacy: first by the

56 The Canadian Senate in Bicameral Perspective

Canada West Foundation, then by the Alberta media and, finally, by the provincial legislature. The difference is important, because from the first, the Triple E proposal has had articulate and established voices to speak on its behalf. For instance, the Alberta Report took up the Triple E banner early. When the Alberta Select Special Committee on Senate Reform backed Triple E in 1985, the editor of the Alberta Report, Ted Byfield, spoke strongly in support of the recommendation.25 Nor was the Alberta Report a lone voice: the Globe and Mail and, more energetically, the National Post echoed the cause of Triple E. Whether or not these publications reflect Alberta let alone Western Canada or national opinion on the matter of Senate reform is unimportant in the context of this discussion, although it is worth noting that Canada West Foundation data show a decline in support for the status quo from about 30 per cent in the early 1980s to between 5 and 10 per cent at the end of the 1990s.26 What is important is that the Triple E concept had from its birth tireless champions in the print media, especially in Alberta. The link between the readership of these publications on one hand, and the constitution of a movement to transform the upper chamber on the other, is a subject of considerable political interest. First, advocates of Triple E possess immense Tom Paine-like faith in the curative powers of institutional reform. Second, despite the flood of articles on the virtues of Triple E, the chief of which is to give outer Canada its rightful voice in the national capital, there is inadequate reflection on the theory of political representation and nothing about what senators would do. The repeated denigration of Senate appointments as legalized bribery' and of those who accept them as immoral or dishonest discourages the construction of a new identity for their replacements.27 The caricature of Canada as 'a ridiculous little empire, run by a coterie of petty bureaucrats, brokers, bankers and media hipsters, all heavily subsidized by us/ where 'the Commons plays a purely ritualistic role' is reminiscent of the view expressed in the prerevolutionary American colonies - that they were 'ruled by paragovernment, by the "private constitution" of patronage and influence.'28 Triple E would confer 'real power over public policy' to be exercised not by 'provincial sycophants ... sent like ambassadors into Ottawa, but [by] people who belong there ... but who take orders from the people back home, rather than from Ontario and Quebec.'29 Double representation is an essential element in the literature on bicameralism, but for the Triple E advocates the lower house seems to disappear. This will

The Senate as an Object of Study 57

happen largely because it will lie in the shadow of the new Senate: "The office of senator would... quickly eclipse that of MR If MPs don't like it, there is a clear remedy: run for the Senate.'30 Implicit in the Triple E perspective (in striking contrast to the literature on Senate reform that preceded it), the upper house will become a stronger institution than it is now and, although it is unarticulated, stronger than the House of Commons. Here is the basis for the criticism directed at Brian Mulroney's unkept promise to reform the Senate. At issue was the Liberal-dominated chamber's delay in passing a $19 million borrowing bill (Bill C-ll) in 1985 on the grounds that the government had failed to give satisfactory information on how the money would be spent. Triple E proponents expressed fear that the government's objective regarding the Senate was not theirs; that is, the government wanted 'to weaken rather than strengthen an institution which could guarantee inter-regional equality.'31 Omitted from this discussion of influences promoting Triple E is the former Reform party. Triple E is also a plank in the platform of the Canadian Alliance; still, it was Preston Manning, Reform's founder, who conferred upon Triple E an institutional legitimacy enjoyed by no earlier proposal for upper chamber redesign. National Post correspondent Scott Feschuk scarcely exaggerated when he described the Senate 'Reform's evil empire.'32 For if there was a core theme propelling Mr Manning and his followers in the 1990s, and the Canadian Alliance afterwards, it was the upper chamber's purported 'lack of legitimacy/ What made it so was patronage and the appointment system. As a consequence, the Senate was 'a fraud since its inception,' undemocratic and without accountability.33 Adopting this line of reasoning, nothing would make it right but to start afresh, with an elected chamber. And from this perspective, every new appointment only nurtured the grievance and sparked more criticism. Nor was it a mitigating factor that through appointment the Senate had a higher percentage of women or Aboriginal members than the House of Commons: 'I don't care what your ethnic background is or what your political background is. It's a chamber of elites who are appointed by one person and who are beholden to that person who appointed them ... who are not accountable to the public and who cost us about $60 million a year.'34 The last comment was not from a Reform or Alliance member, but from Roger Gallaway, a Liberal member of Parliament from Sarnia, Ontario. Unlike Mr Manning, Mr Gallaway and Lome Nystrom, a New Democratic member, favoured abolition of the Senate, and the two MPs

58 The Canadian Senate in Bicameral Perspective

sponsored a public petition to this effect. Thus, notwithstanding partisan affiliation, there is a widely-shared view of long standing that because the Senate is unelected, it is illegitimate.35 Abolition of the upper chamber is a familiar plank in most socialist platforms, in Australia and the United Kingdom as well as Canada. But there is another explanation for the antipathy of the CCF and the New Democratic party: historically, labour and social democratic parties (including the Australian Labor party) look upon federalism as an impediment to their policy objectives. Thus, for some at least, an upper house in a federal system has two strikes against it. In a discussion of the Senate studies, the fact that the institution is more often than not reviled is surely significant. It certainly colours the investigation if it does not obscure it totally. On all sides, it would seem, the observation is the same: 'The Canadian Senate, in comparative terms, suffers from a perceived lack of public legitimacy as a body representing regional and provincial interests within the federal Parliament' (Watts); Today's Senate has no legitimacy as a representative body or as part of the Canadian parliamentary system' (Franks); Today's Senate still has almost all of the powers of the House, but is clearly without legitimacy to thwart its will' (Bliss); The Senate is an anachronism, because 'it has no democratic legitimacy for exercising real power independently of the elected Commons' (Galligan); '[T]he fact senators are appointed deprives them of the democratic legitimacy to make use of [their] powers' (Lijphart).36 Nor is this opinion confined to those outside the walls of the Senate: The major thrust of these [reform] proposals is an attempt to reconfirm legitimacy for the exercise of power by the Senate' (Buckwold); 'the denunciation of the Senate as patronage writ large served chiefly to rob the Senate of legitimacy' (Stewart); '[T]he appointive nature of the Senate undermined the chamber's legitimacy, there-by constraining it from vigorously checking the will of the elected chamber' (Gigantes and Elrington).37 Now enshrined in the literature, the legitimacy argument has been used with effect by the media, academics, and special interests to undermine public confidence in the Senate. How effective, said one senator, is to be seen 'by our fear to take on our critics, in the misguided belief that because we are not elected, we have no right to speak out.'38 The assumption that election confers legitimacy and the absence of election its opposite is treated as a self-evident rather than a demonstrated truth. Since, for better or worse, the Senate is an appointed body, to chastise its members for not being elected and to dismiss their

The Senate as an Object of Study 59

work for that reason seems a profitless exercise. More than that, it is self-defeating, since it undermines the lower house as well. Abundant evidence exists to demonstrate significant public dissatisfaction with the way the popularly elected chamber works. The same data also show strong regional disaffection in the West.39 At the same time as calls are heard for an elected Senate, there is also pressure to institute the recall of MPs and to constitutionalize such instruments of direct democracy as the initiative, the referendum, and the plebisite. The decline of legislatures has been a feature remarked upon at least since the First World War. One of the chapters of Viscount Bryce's widely-read book Modern Democracies (1921) has this phrase as its title. If there is a problem, however, it is not unique to second chambers. There is an expanding literature on the so-called tragedy of the Commons (as opposed to the much earlier agrarian catastrophe of the enclosure movement), which has seen the elected chamber falter in its representational duties in the face of competition from specialized interests. Pressure groups, the media, the courts, the public - all seem ready to feed off the traditional terrain of elected representatives. A contrary view (which nonetheless accepts the tragedy thesis) would posit that it is less accurate to talk about the decline of Parliament than it is to note the rise in power of political parties and their control over legislatures. In consequence, the difficulty Parliament has in mobilizing consent for its policies mounts. And consent, as well as counsel, are primary functions of parliamentary institutions. The decline of legislative chambers is not a problem of legitimacy in the strict sense of the term, since all the second houses discussed in this book are rooted in their respective constitutions. Nor again does the fact that the Canadian Senate is unelected constitute in and of itself evidence of illegitimacy. What the members of the second chamber do, not how they got there, should be the test. If election were the standard of proof, then not one but two parts of Parliament would have to be replaced. Yet while support for monarchy in Canada appears to be in slow decline, no one has suggested that the Canadian Crown, as represented by the office of governor general, is illegitimate. These remarks are not intended to depreciate concerns expressed about the operation of Parliament and responsible government in this country and elsewhere. Low voter turnout, inflexible party discipline, a sense of impotence on the part of backbenchers - all are manifestations of a political system under stress, and one which increasingly seems to be in danger of losing its bearings.40 Consider, for instance, the growing support

60 The Canadian Senate in Bicameral Perspective

(paradoxical in light of the present discussion) from MPs and the public for appointed officers of Parliament to oversee the activities of elected legislators.41 Rather they serve as a caution to critics of the second chamber who, because they misdiagnose the source of Parliament's ills, may misconceive the object in need of reform. The 2000 federal election results highlight the imprecision and contradictions that accompany talk of legitimacy or its absence. In that campaign the Liberal party won an increased number of seats in the House of Commons, their share of the popular vote climbed, and they alone elected members in every province in Canada. Yet the results became the basis for complaints that the West was ignored; that because the plurality electoral system distorted results, it should be changed to a proportional system that would strengthen western membership in the Liberal caucus and thus make the federal government appear more legitimate. (Or for that matter, the opposition; the Canadian Alliance won two of Ontario's 103 seats, but 23.6 per cent of its popular vote.) The label used so freely by critics of the Senate is employed once again this time to describe the popularly elected chamber and the government drawn from it. That observation may be relevant in a book about bicameralism, but the present discussion will limit its remarks on the legitimacy question to the upper house. The claim that the Senate lacks legitimacy is a serious charge. It needs to be supported by evidence, if only to refute the countervailing evidence that the public as individuals and in groups, bound by economic, religious, linguistic, social, and other ties, seek to be heard by Senate committees. It is not the case that the Senate is shunned, as one might expect were the house as ill-reputed as its critics say. How then to explain this pejorative but favoured description of the Senate? The critics appear to assume that legitimacy is equated with some broad claim to representing the interests of the state as a whole. That may or may not be disputable; what is not in doubt is the necessary link between representation and legitimacy. By contrast, if the function of an upper house is not essentially about representation, then the question of its legitimacy must be determined by some other standard. Much else flows from this determination. For instance, unlike the House of Lords, the Canadian Senate holds an absolute veto. Nonetheless, the claim is often made by critics that the veto has atrophied in the sense that its use is invalidated because the Senate is illegitimate. This claim is wrong: the Senate vetoed legislation on four occasions in the 1990s (an example was the Mulroney government's intended merger

The Senate as an Object of Study 61

of the Canada Council and the Social Sciences and Humanities Research Council in 1993) and a number of times in the nineteenth and twentieth centuries.42 The number of times the Senate 'thwarted the will of the popularly-elected house' is still relatively few, as is to be expected of a chamber which, unlike the House of Commons, is not answerable to the electorate. Yet the occasions are more frequent than the critics would suggest, although the importance of this fact does not lie in the numbers. The Senate believes that in certain situations it is eminently proper for it to exercise its veto. The situations are relatively few, since in politics there are less brutal ways of achieving objectives. The fact remains that the Senate has refrained from using its powers for reasons other than its perceived lack of legitimacy. No one can deny that representation occurs in the Senate, but it is not on behalf of interests as that relationship is understood in electoral politics. Closer to the truth is the explanation offered by Alfred de Grazia: 'The whole process of representation becomes an acting out of a play in which the actors are independent within the limits of the state, the setting, and the changing tastes of the audience. Their role is meaningful but it has no direct connection with the ticket the audience files for admission.'43 In their work, significantly entitled Rediscovering Institutions, James March and Johan Olsen reaffirm the importance of process: 'Potential participants seem to care as much for the right to participate as for the fact of participation ... [H]eated argument leads to decision without concern about its implementation; information relevant to a decision is requested but not considered; authority is demanded but not exercised.'44 Participation offers citizens an opportunity to make their representation. Senators are not prevented from making representation themselves, but in the absence of a constituency in the sense of an electoral district, how would such an interest be defined? The legitimacy of the Senate arises, therefore, not from its faithful representation of interests but from the opportunity it offers people to speak for themselves. In short, it is the people who through the activity of the Senate bestow legitimacy. What the Senate does, not what it is, constitutes the test of its validity. The books on the Senate that have provided the focus for this chapter treat public participation tangentially or mechanically - that is, as a predictable step in the legislative process. The remaining chapters of this book will elaborate on the theme of participation, although it has to be admitted that the public attitude toward bicameralism, which really means the attitude toward the upper house, is elusive. In Great Britain,

62 The Canadian Senate in Bicameral Perspective

chronology is everything: for centuries the House of Lords surpassed the House of Commons in stature and political importance; with the Reform Bill of 1832 the House of Commons proceeded through stages of democratic enfranchisement, and then the Parliament Act of 1911, to outdistance the House of Lords. Reforms begun in 1999 mark the end of heredity as an organizing principle of politics. Instead, authority had to be reattributed from social hierarchy to some other arrangement, which must now include a territorial dimension as well. In Australia, an entrenched constitution, federalism, and bicameralism went hand-inhand to create a society where 'people thought bicameral thoughts and acted upon bicameral principles/ Alan Ward has ascribed the strength of Australia's upper house today to the strength of the upper chambers in the colonies a century ago.45 Unlike Britain, Canada did not earn its democracy at the expense of the upper house and, unlike Australia, its upper house was patterned on no colonial precedent. In any case, only five of Canada's ten provinces ever had upper houses in their legislatures.46 Whether this asymmetry in the matter of upper houses between the provincial and the federal levels of government contributes to an understanding of Canadian bicameralism, it does offer Canadians a demonstration of unicameral and bicameral institutions at work in the same political system. In 1999 a cabinet minister in favour of the abolition of the Senate argued that provincial unicameralism not federal bicameralism was the sign of the future.47 The implication of his remarks was that only the complex constitutional amendment formula, adopted in 1982, prevented change. Since the Senate had remained unreformed for decades prior to 1982, that explanation for the status quo is suspect. Ambiguity about the Senate's position in the political system and misconceptions about its purpose help explain a strong feature of scholarship and commentary on the Senate, which is to compartmentalize it, neglect its relationship to the lower house, and dream of what might be. There are exceptions to that general criticism, of whom C.E.S. Franks is one. For instance, in his study of the Canadian Senate in the 1980s, Franks evaluates the proposition as to whether, with a strong government and weak opposition in the lower house, the Senate should 'try to become the "real" opposition and defy and obstruct a government supported by a majority in the lower house.'48 Interestingly, it is Franks as well who speculates that the distaste for what the Senate is perceived to be and its chronic lack of legitimacy have led to the

The Senate as an Object of Study 63

Canadian obsession with 'Hypothetical Senates' that will resolve the problems of confederation.49 If representation is the key function of the Senate, as the Triple E proponents maintain, then the hypothetical Senate, the Senate that never was, becomes understandable. The Senate has been, and still is, all things to all interpreters. A year after the British Parliament Act of 1911, George M. Wrong, who in 1926 wrote the introduction to MacKay's The Unreformed Senate of Canada, observed incorrectly that 'the popular or "lower" house controls the Senate ... [T]he head of the state and the "upper" house have thus lost all power but that of revision and delay.'50 In this opinion Wrong anticipated Ross, whose book on the Senate appeared two years later. Here, as with so much that has been written about the Senate, theory followed events. The Parliament Act and the suspensive veto in Britain led to pronouncements that had little application to the Canada's upper chamber. The same could be said much later of the Bundesrat and the theory of a Senate acting like a federal-provincial council. Again, theory comes after. So, too, when the National Energy Policy assumed iconic standing for the overweening centralism of the federal government, the move to make the Senate elected, equal and effective followed. Triple E was unhistorical and anti-historical. Because it used strong but vague phrases, it offered a distorted depiction of how a future upper house would operate. No one knew when, how, or where elections would take place. No one was told how an upper house could be effective but not, at the same time, challenge the authority of the government and the members of the lower house.

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PART II

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Chapter Four

Representation

It may seem perverse to devote a chapter to representation in a book that has the Senate of Canada as its focus. Critics say the Senate represents no one because it is appointed. Reformers, today more than in the past, want to make it elected, so that it will become a true federal body, like the United States and Australian senates which provide a forum at the centre of the political system for the expression of state interests. Still others warn that any benefit that may arise from incorporating provincial interests within the decision-making process of the federal government challenges the core principle of Canadian politics, which is that governments are chosen from and responsible to the lower house of Parliament. Declamations come from all sides but to the same effect: if the Senate is to refurbish its reputation, it must be an elected and, thus, a representative body. Michael Pitfield, a senator since 1983 and before that clerk of the Privy Council and secretary of the cabinet (1975-9 and 1980-3) has argued that 'a reformed Senate cannot be credible without drawing its authority in some way from the people' (he favours using proportional representation)/ Bob Rae (at the time of this quotation leader of the New Democratic Party of Ontario and a former member of Parliament) believes that the Senate is 'so discredited in the public's eyes on democratic as well as regional representational grounds' that it cannot be 'resurrected as a serious political force.' Still, if an attempt were made, he says, 'the only way you are ever going to give any credibility to a second institution is to have it popularly elected.' Duff Roblin, a former premier of Manitoba (1958-67), appointed to the Senate in 1978 and later government leader in the chamber, concurs: 'The defect in our arrangement in the Senate is quite simple to identify. It is

68 The Canadian Senate in Bicameral Perspective

to be found in the fact that senators are summoned to office by appointment of the federal prime minister, and in no other way ... [That] fact vitiates its capacity for independent action.'1 Representation is one of the oldest topics in political science; it is also one of the most conceptually complex. Nor is it the property of politics alone: it is sometimes used in literature or the theatre with respect to the depiction of persons or objects.2 Nor, again, is that idea - representation as a portrayal or mirror - foreign to politics. The Senate, as it performs its work now, as critics would like to see it, and as upper chambers that operate in other Anglo-American democracies diverge from it, is the subject of this chapter. Representation linked to federalism, which is a form of double representation, will be discussed in the next chapter. Justification for separate treatment lies in the distinct structural function attributed to representation in a federal system. Arguably, representation and federalism are not easily disentangled; but the attempt will be made in this chapter. To revert to the assertion by former Senator Roblin: Is representation a sufficient precondition for independent action, as he implies? The answer to the question is important on two counts: the assumption of many critics that the appointed Senate is not independent, and the belief that election is a necessary precondition for representation to occur. While it will come as no surprise that there can be no categorical answer to the question, the range of possible solutions is disturbing. Hanna Pitkin has said that an individual is not a representative if he never abides by his constituents or if he always does.3 In other words, representation is not a question of either-or but a matter of degree. Representatives should exercise discretion, that is, independence; but when, and on what grounds? In the Australian Senate, party discipline rules, at least within the Labor and Liberal-National Coalition alignments. In an elected Canadian Senate, would there be parties, and if there were, would they look and act like the parties Canadians know? Because there are many proposals for Senate reform, to cite one seems arbitrary. On the other hand, each has in common that it is hermetic, paying no attention to other proposals or to the existing institutional arrangement that must be adapted using existing constitutional rules. The result is conceptual imprecision which undermines the policy or educative influence a particular proposal might exert. Consider the report of the Alberta Select Special Committee on Upper House Reform. Entitled Strengthening Canada and released in 1985, the

Representation 69

report calls for a Triple E Senate, which will "be the institution through which people of the provinces can participate in national and decisionmaking.'4 In the report's words, 'a unique aspect of the Committee's conclusions is the recommendation that the Senate be organized on a different basis than any other Upper House in the Commonwealth.' The new Senate would be organized 'without the recognition of political parties,' because the region's interests are seen as different from those of national political parties. The Senate should be 'as independent as possible from the House of Commons.' Each province would have six senators, elected at large by plurality vote for the life of two provincial legislatures (that is, three senators elected at each election). A whole thesis could be written on the subject of representation embedded in these recommendations: the separation of the upper and lower chambers in Canada's bicameral Parliament; at-large (that is, province-wide) voting and its effect upon urban-rural relations; the rejection of political parties in the new Senate but their continuation in the other house. How do the recommendations influence representation and, more particularly, effective representation? But there is more. Under the heading 'Senate Organization,' the committee recommends that 'the traditional opposition and government roles in the current Senate be abolished'; that senators 'should be physically seated in provincial delegations, regardless of party affiliations'; that each provincial delegation choose a 'chairman/ and the ten provincial chairmen constitute a 'Senate Executive Council,' which would determine 'the order of business, the appointment of committee chairmen,' and the selection of committee members. Finally, senators 'should not be eligible for appointment to cabinet.' The Senate the Alberta committee envisions would have only a suspensive veto but, as opposed to now, would ratify 'non-military treaties,' while 'all changes affecting the French and English language in Canada should be subject to a Double Majority veto.' The report describes Canada as 'the only free federal state that does not have an effective Upper House.' That is something Canada needs 'in order to protect the diverse interests of Canadians.' Not every proposal to reform the Senate calls for a chamber quite so detached from its lower house partner. And the Canadian constitution, which sees the three parts of Parliament as an integrated whole, would find the principle of detachment difficult to reconcile. Relinquishing the absolute veto, which, while used infrequently none the less has been used, and which, more importantly, stands ready to be used, represents a

70 The Canadian Senate in Bicameral Perspective

countervailing reform, since the House of Commons may now 'override a Senate veto/ The Alberta committee's recommendations, which could be replicated at least in part many times over by reference to the score of proposals for upper house reform in the past thirty years, emphasize assumptions about representation and illustrate the disposition to view Senate reform as a question of reform of the Senate only. But bicameralism is about two chambers; any change in one will necessitate change in the other. Is it possible, for instance, to imagine an upper chamber without political parties, when the lower chamber and government are composed of them? Nowhere does the Alberta report speak of the Senate of Canada as a national institution with national responsibilities. The United States Senate, which is frequently invoked by provincialcentric critics as a model to emulate, is the least state-oriented upper house that can be found. Writing of the 1970s, the decade in American politics that Triple E proponents know best, Nelson Polsby listed the U.S. Senate's three central activities: 'cultivating national constituencies, formulating questions for debate and discussion on a national scale ... and incubating new policy proposals that may at some future time find their way into legislation.'5 The nature of representation that occurs in a chamber is influenced by the role assigned to or envisioned for that chamber. Metaphors are suspect but they can also enlighten. To demonstrate the distinction being discussed, the metaphor of photography (not inappropriate in itself as a mechanism to capture representation) is appropriate: Pitkin's interpretation sees representation as cinematography, involving movement and change; the Alberta report sees it as a snapshot, frozen and static. It is generally assumed that the organizing principle of the House of Commons is representation by population, while for the Senate seats are distributed equally (twenty-four each) among four regions plus six senators for Newfoundland, which joined confederation forty-four years after mainland Canada was consolidated, and (as of 2001) one senator each from Yukon, Northwest Territories, and Nunavut. Thus, population is supposedly represented in the lower house, and territory in the form of the four senatorial regions (Western, Ontario, Quebec, and Maritime), plus add-ons, in the upper chamber. To the degree that the subject is considered, it is also assumed that because there is a different organizing principle for each house, the chambers act independently of one another in the matter of representation. These assumptions are fundamental to understanding the operation of bicameralism in Canada, and since all of them are misconceived, clarification is in order.

Representation 71

Norman Ward, who wrote more than any academic on the subject of representation in Canada, used to say that if there was one principle that did not inform representation in the Commons, it was representation by population.6 Of course, population was the most important consideration, but it was not the only one, and to the extent that lower house representation deviated from population, so the autonomy of the chambers was compromised. As a point of comparison, it may be noted that bicameralism in the United States at the national level suffers from no similar blurring of representational roles. As regards the Senate, representation is simplicity itself - two senators per state; as regards the House of Representatives, the allocation of seats is ruthlessly carried out following each census. The House of Representatives is the same size today as in 1941, except for the entry of Alaska and Hawaii. As a consequence, New York, the state with the largest contingent of congressmen in 1941, now ranks behind California by nineteen seats and ahead of Texas by only one. Thus, in the Canadian discussion of representation, American analogies are highly suspect.7 The details of House of Commons redistribution are elaborate and arcane. The best that can be done here is to summarize them, in layman's language. Since Confederation there have been three eras of redistribution, the first two (1867-1946 and 1946-74) defined by different formulae to distribute Commons seats, the last (since 1974) characterized by a series of formulae whose common feature is that no province loses seats in the House. The first seventy-five years saw Quebec with sixty-five seats (the number it, as Canada East, had had in the Legislative Assembly of the Parliament of the United Canadas before 1867). The other provinces had a proportionate number of seats relative to Quebec; that is, whatever quotient resulted from dividing sixty-five into Quebec's population would, in turn, be divided into the population of Ontario, Nova Scotia, and New Brunswick. In the first Parliament, those provinces had eighty-two, nineteen, and fifteen seats respectively. Significantly, for this discussion, the section of the 1867 British North America Act that dealt with this matter (s. 51) also said that no readjustment following a census would reduce the number of members for any province unless and until its relative population decreased by 5 percent. Section 52 still says that the number of members of the House of Commons may be from time to time increased by the Parliament of Canada, 'provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed.' In other words, from the outset, Canada enjoyed representation by population by, in the careful phrasing of a Federal Court of Canada judg-

72 The Canadian Senate in Bicameral Perspective

ment in 1999, 'ameliorating any requirement for mathematical strictness.'8 It is crucial to the history of representation in Canada in both chambers, and thus to the study of bicameralism, that proportionate (not proportional as in the system for allocating votes) representation prescribed by the 1867 Act contemplated imperfect representation by population. The BNA Act provided initially for three senatorial regions of twentyfour members each, with each of the four western provinces receiving six senators in 1915. At the same time, to take account of the increase in the West's population as a result of the massive immigration into this part of the country following the Sifton policy of 1896, the House of Commons grew by fourteen seats. While Canada's Parliament, unlike that of Australia, has no nexus provision intended to maintain a ratio of 2:1 between lower and upper house seats, it has looked upon the number of members in the two houses as a related rather than separate matter. The representational linkage between the chambers was more evident in the debate of 1914-15 than on any previous or subsequent occasion; it still remains a continuing theme and was evident again in 1994, when the Liberal government, in the face of Senate opposition, abandoned legislation to suspend the redistribution process triggered by the 1991 census. In addition to the original provisions regarding the size of the two houses, an imperial amendment to the BNA Act in 1886 authorized Parliament to provide for representation in the Senate or House of Commons of any territory not included in any province. In the more than a century since then, the Northwest Territories in its various jurisdictional incarnations has been the beneficiary of this amendment. During the 1915 debate Sir Wilfrid Laurier, then leader of the official opposition, criticized the 1886 amendment as 'very wide in its terms,' granting representation from the beginning, 'altogether out of proportion to their [the Territories'] actual population,' and thus 'deficient.'9 Once again, as with the 5 percent rule in section 51, no theoretical rationale for deviating from a rep-by-pop standard is offered. The inference to be drawn from a series of debates on redistribution is that representation is granted as a form of protection. Representational protection is a perennial theme in both houses. For instance, the 1914-15 debate turns on the threat that the redistribution formula of 1867, applied to Prince Edward Island Island's population as a fraction of the national figure, will reduce the province's representation to half its original number, and without any guarantee that it might not subsequently fall even further. More than population was at

Representation 73

issue in this debate, since the increase in Quebec's population (which therefore affected its all-important quotient) had come about because of the extensions of its boundaries (along with those of Ontario and Manitoba) due to the transfer by Parliament to those provinces of large stretches of the Northwest Territories that embraced Hudson Bay. The wartime debate on redistribution in the House of Commons and on the allocation of Senate seats cast a long shadow over the subject of representation in Canada for the rest of the century. First, it reaffirmed the continued acceptance by parliamentarians of the regional representational model the Fathers of Confederation had established. It also confirmed acceptance of the appointed model. Repeatedly it is asserted that appointment (at this time for life) guaranteed independence and a capacity, said one senator, to 'do justice impartially.'10 The Senate was permanent, said a New Brunswick member of the House of Commons, 'in order that men appointed as senators may be free from the prejudices of the people.'11 Those qualities were necessary if the Senate was to perform its major task - that is, to afford adequate protection to minorities. In the debate, which extended over two sessions because the government withdrew the initial bill in the face of Senate opposition, the minorities mentioned included French-speakers in Canada, English-speakers in Quebec, Irish Catholics and Protestants in Quebec, Roman Catholics elsewhere, Prince Edward Island, and small provinces generally. Missing from the list, let alone at its head, was provincial interest. That Canada was a federation, there was no doubt. Stronger still, however, was the sentiment that for the federation there was one house of Parliament in whose composition these interests, along with the provinces, found protection. A striking feature of the concerns expressed was their territorial ambivalence. A later version of this same perspective appears in remarks Senator Michael Pitfield made before the Special Joint Committee of the Senate and House of Commons on Senate Reform in 1983: As regards regional representation, I take this term to mean more than geographic representation and to include the representation of what John A. Macdonald called sectional interests. They are the concerns that Canadians in the various regions of our country expect our federal system to protect from the simple representation by population rule that is the basis of the House of Commons. Today these fundamental regional interests include: in the Maritimes, regional industrial policy; in Quebec, language and culture; in Ontario, industrial policy; in the West, resource policy. An

74 The Canadian Senate in Bicameral Perspective appropriately designed second chamber is the classic method of recognizing and protecting such fundamental regional interests, especially in a federation.12

Nonetheless, there was nothing ambivalent about Prince Edward Island's anxiety that, if the 1867 redistribution formula were strictly applied, it would continue to lose seats in the House of Commons. Nor was there a mystery why its members of Parliament looked to the Senate for protection. If in 1999 the preferred word used by the Royal Commission on Reform of the House of Lords to describe the relationship of Britain's upper to its lower chamber was 'complementary/ then the favourite adjective in 1914 and 1915 to describe the relationship between Canada's chambers was 'compensatory.' And those who used it had historical evidence on their side. 'The representation in the Senate is the necessary consequence of the representation in the House of Commons,' said Senator David of Quebec. A legion of constitutional commentators and historians agreed that in exchange for meeting the demand of Canada West (Ontario) for rep-by-pop in the Commons, Canada East (Quebec) and the Maritime provinces were given 'commensurate voice' (with Ontario) in the Senate. Thus, while everyone recognized that the House of Commons would be 'the engine of the new vehicle,' it was also understood that 'the Senate would be the brakes.'13 The conservation of provincial and sectional interests was part of the original pact; and in recognition of this truth, James Lougheed, then leader of the Conservative party in the Senate, concurred with the Commons' Redistribution Committee that 'it was undesirable and incongruous that any province in Canada should have a smaller representation in the House of Commons than in the Senate.'14 (For comparison's sake, it might be recalled that this incongruity still obtains for seven American states: Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming.) On the opposition side, the Liberals agreed, and, in the words of Mr Justice Teitlebaum speaking in the Kassongo Tunda case, 'in the best Canadian tradition, a political compromise was approved by an amendment to the Constitution called the Senatorial or Senate Floor Rule which was enacted in 1915 adding s.SIA to the British North America Act... "A province shall always be entitled to the number of members of the House of Commons not less than the number of senators representing such province."'15 The Senatorial Rule proved a fixture of redistribution until its appli-

Representation 75

cation threatened to produce incongruous results. But before that happened, the formula for allocating House of Commons seats was changed in 1946; at the same time the 5 percent rule was repealed and an upper limit on the number of House seats was set. Rather than Quebec acting as the fulcrum for representation, a national quotient was established by dividing the total number of Commons seats (minus the seats allocated to the Territories) into the national population. That quotient was then divided into each province's population to determine its number of Commons seats. Where the number was smaller than its number of senators, the province received the larger of the two. Once again, a special case intervened; this time Saskatchewan was the sick man of Confederation because of its decline in population following the depression and drought of the 1930s. As a new rule had helped Prince Edward Island, so another appeared - the under 15 percent rule, no province at any redistribution should lose more than 15 percent of the seats to which it was entitled at the last preceding readjustment. Shortterm relief, but this formula also proved impermanent. The 1867 formula lasted for sixty years, the 1946 formula for twentyeight. By the 1970s it had become evident that no single formula could encompass the representational needs of all ten provinces. In 1974 the Amalgam Method introduced a three-part formula that allocated seats differently according to whether the province in question was treated as large, intermediate, or small. The last two classes enjoyed a refined version of the Senatorial Rule, that is, a grandfather clause that ensured existing floors of representation would be maintained. By the 1980s the Amalgam Method (used only once) threatened to produce an unacceptable increase in the total number of Commons seats, unless some provinces accepted a loss of seats. The tension between the growing and the static parts of the country - a phenomenon as evident in the United Canadas of the 1840s and 1850s as in the federation a century and a half later - drove the parties to find a new formula.16 Once again, a fixed total number of seats (279 after subtracting Territorial seats) is divided into total population to determine a quotient that is then divided into the population of each province. Where a province would receive fewer members than it already had, then the grandfather clause protected its representation. In moving third reading of the bill, Mr Hnatyshyn, then president of the Privy Council, said on 1 October 1985: 'The new method of redistributing seats throughout Canada is fair because it ensures that the proportion of seats and proportion of population of each province does [sic] not significantly deviate from the present situation. This

76 The Canadian Senate in Bicameral Perspective

means that the relative imbalances which exist today and have long been accepted as necessary compromises on the principle of absolute representation by population will remain.'17 A more exact meaning of the word compromise can be gained by noting that in the 1985 redistribution, the British Columbia electoral quotient was 85,765, while other provinces, for example Prince Edward Island and Saskatchewan, had reduced quotients of 30,627 and 69,165 respectively. With such variation, the House of Commons could never replicate Canada in miniature. Rep-by-pop is not possible as long as rules exist to prevent its application. And the rules exist and continue to be applied because of the Senate, either as in 1914 and 1915 when it provided a lifeline to Prince Edward Island's sinking Commons membership, or in the case of Saskatchewan in 1952 or the smaller provinces in 1974 when Senate numbers were seen as immaterial compared to retaining effective representation in the Commons. That a symbiosis between the two chambers of Canada's Parliament remained nine decades after the great debate during the First World War became evident in the complex parliamentary trade-off in the Charlottetown Accord in 1995. The Accord saw first ministers agree to a Senate with equal provincial representation (six seats apiece, with one each for Yukon and the Northwest Territories) in exchange for more faithful adherence to the rep-by-pop principle in the House of Commons. This was to be achieved by adding additional seats to the House, which in turn were to be distributed to the provinces most adversely affected by the operation of the current formula. At the same time Quebec was guaranteed in perpetuity 25 percent of House seats. But there is more to the Senate's contribution to parliamentary representation in Canada than providing an irreducible guarantee of Commons members. It is one of the Senate's most important features that its own numbers are fixed; the Senate, unlike the House of Lords, cannot be swamped with any number of new appointees. Except for s. 26 appointees, 'the three great divisions are there equally represented, for the purpose of defending [sectional] interests against the combinations of majorities in the Assembly.'18 Fewer in number than the lower house, required to be men of property (s. 23.4), and appointed for life, the composition of the Senate stood apart from that of the House of Commons. Later critics of the upper house point to these characteristics, along with Macdonald's much quoted phrase about the Senate, minorities, and the rich always being a minority, and see the upper chamber as

Representation 77

only a bastion of property. This does a disservice to the agreement the Fathers of Confederation reached in 1865-7, and disregards the contribution these characteristics make to the independence of members of the upper chamber. It also fails to acknowledge that the Fathers of Confederation acted on the basis of experience. Twenty years before the conferences leading to Canadian union, the legislative assemblies of New Brunswick and Prince Edward Island separately sought second chambers 'free from official influence' in order to 'form a constitutional check ... upon the executive [and] the representative branch of the legislature.' As opposed to holding office at pleasure, councillors would be men of property ('unencumbered real estate'), appointed for life. Only with such independence, said the elected branch, would the second chamber enjoy the confidence of the public.19 It also needs to be remembered that the agreement was reached in a context where governments were short-lived and increasingly coalitions. The phenomenon of single-party government and extraordinarily long periods of party leadership under one individual (Macdonald, Laurier, King, Trudeau) could not have been anticipated. Another feature of that context is one that still obtains in Canadian politics - the turnover of members of the lower house. According to Henry Boulton, speaking in 1853, 'Every new election changed the lower house about one half.' Writing in 1997, David Docherty concludes that turnover of membership is almost as high, the average at each election between 1968 and 1993 (excluding the elections of 1974 and 1980, which followed minority governments) was approximately 45 percent. The moral Boulton drew was that 'from change of men must proceed change of opinion, and from change of opinion a change of measures, a mutable government forfeits the respect and confidence of the people.' For Docherty the lesson is different: "The opportunity structure is extremely unwelcoming.'20 For Boulton, the presence of an upper chamber was welcome, since it provided ballast for a political system that needed anchoring; for Docherty, the plague of uncertainty affects individuals rather than governments. For this, the Senate offers no solace. The composition of the Senate differs from that of the Commons, but always in the same direction - certitude and permanence for the upper chamber. Even relatively recent change emphasizes this point. Consider, for instance, the procedure for amending the constitution in the Constitution Act, 1982. While the principle of proportionate representation of the provinces in the House of Commons is subject to the general procedure of agreement from seven provinces with at least

78 The Canadian Senate in Bicameral Perspective

50 percent of the population of all the provinces, when it comes to the Senate, the powers of the upper house, the method of selecting senators, and the number of senators by which a province is entitled to be represented all fall under that amendment provision. As noted, one of the most disputed modern questions concerning the Canadian Senate is the manner of its selection. It may come as a surprise to learn that 'Macdonald and George Brown, divided on most questions, were united on [an appointed Senate],' although their opinion was not universally shared. At the Quebec Conference, Oliver Mowat and William McDougall spoke against appointment and for election; when this failed, they moved that 'the twenty-four senators assigned to Ontario should be elective.' This, too, was 'negatived after much debate.'2^ Nor, contrary to what might be thought, were all colonial politicians suspicious of elected upper councils as foreign imports into the British system of governing colonies. In the debate in the House of Commons at Westminster on the 'Quebec Governmental Bill' (Constitutional Act) 1791, Pitt the Younger and Charles James Fox argued the respective merits of 'an hereditary council, in imitation of our House of Lords' (Pitt) and an elective council, which Fox contended was the only way to designate an aristocratic element in a society without rank and where property easily changed hands. Through property qualifications for both candidate and voter, there would emerge an independent aristocracy prepared to resist the Crown and people in the public interest. Conversely, an appointed upper house would be but the 'semblance' of an aristocracy and not its 'substitute.' Fox and Pitt agreed on the ends they sought - a balanced constitution - but disagreed over the means by which the aristocratic or deliberative element should be constituted. To this difference of opinion might be added another: whether constitutions, in this case that of the mother country, were imitable, Pitt's preference for appointing rather than electing councillors carried the day, but it did not end the argument.22 In Canada the movement for elected upper chambers gained momentum in the years before the rebellion of 1837. But in far-flung sister colonies, such as the Cape and Australasia, 'a flurry of constitutionmaking unparalleled' for more than another century was under way: "The Colonial Office produced no fewer than nine new constitutions in the nine years after 1846 and the forms of the upper houses to be provided proved one of the more contentious issues. In particular, the impetus imparted by the innovating conservatism of the new Colonial Secretary, Earl Grey, resulted in an extraordinary efflorescence of differ-

Representation 79

ing forms of upper chambers, three nominated, four directly elected, and one colony without an upper house at all.'23 Grey was one of a series of four colonial secretaries of the period who favoured elected upper houses; the others were Gladstone, Newcastle, and Stanley. The reasons for this view reflected conditions specific to the individual colonies, but invariably they also echoed Fox's belief that there was no obvious social basis for selection. It should also be noted that the Canadian rebellions and, more particularly, the passage of the Rebellion Losses Bill in 1849 following appointment of additional councillors, raised further doubt about the wisdom of an appointed chamber. Imperial constitutional history is not the subject of this chapter, but it is relevant. One of the stock criticisms of the Canadian Senate is that it is appointed using the prerogative of the Crown on the advice of the prime minister. It should be recognized that a majority of the Fathers of Confederation, as well as colonial officials in London, were acquainted with elected upper houses; after all Prince Edward Island's nominated body was reconstituted as an elected chamber in 1862, while in the Canadas, the appointed upper chamber had embarked in 1856 upon a measured transformation which saw two-thirds of its seats elected by 1867. Canada was the first country in the world to marry parliamentary government and federalism, and in the discussions preparatory to the union, both the United Province of Canada and the British viewed elected councils with emotions ranging from mixed to hostile. The Canadian argument, advanced by Macdonald, Brown, and Tache among others, spoke of the size of upper chamber constituencies (double or more those of the Commons); the consequent cost (financial and physical) to candidates as they seek to become known to voters; the attraction which political parties offer to candidates who cannot make it on their own; the fear that partisanism will be injected into upper house debate and business, and, thus, the potential for conflict with the lower house. The costs of such conflict (that is, legislative deadlock) were well known to Canadian politicians of the 1860s.24 Those were the negative appraisals of an elected upper house. Brown, more than anyone, succinctly stated the positive virtues of nomination: "The desire was to render the Upper House a thoroughly independent body.' As he had said when the elective scheme was introduced in 1856, the upper house should be like 'the House of Peers - responsible to no one,' and thus no threat to the operation of responsible government.25 The British viewed matters from a different perspective, although by the 1860s they had cause to reach the same conclusion. An Australian

80 The Canadian Senate in Bicameral Perspective

demonstration of two different models (side-by-side) made the point; New South Wales was granted a nominated Legislative Council in 1853, Victoria an elected one in 1856. The story of the two quickly proved instructive. Whatever the intent - and the governor of New South Wales, William Charles Wentworth, spoke of creating a 'constitutional aristocracy' - the result was something rather different: a chamber less conservative than 'expansive' (Wentworth's word). And certainly less oligarchical and rigid than its neighbour's elected upper chamber. Thanks to a high property franchise, Victoria's rural aristocracy, the squatters, dominated. In a colony where the urban-rural divide appeared earlier and deeper than in Canada, the composition of the upper chamber did nothing to moderate divisions. Election led to a more exclusive chamber there than did nomination in New South Wales. Speaking at almost the same time as George Brown in Canada, the Sydney Morning Herald editorialized: 'Let it [the upper house] be elected ... and it would represent a class. Let it be appointed by the Crown and it would represent the Commonwealth.'26 It was a long-held opinion in Canada that elected upper chambers were counterfeit institutions. They were not what they seemed; rather than liberate, they fettered public opinion. They limited responsible government, an arrangement of power under constitutional monarchy that knew no limits until, in Canada's case, the Charter of Rights and Freedoms appeared. More than that, elections were decentralizing devices, certainly when both houses of Parliament were elected, in a constitution whose organizing principle was the centralization of power in the Crown's advisers. Before, at, and after Confederation, one parliamentary and constitutional monarchy to which Canadian politicians made repeated reference was Belgium. In the last half of the twentieth century, Belgium has been a favourite source of comparison, although the main reason lay in the country's bilingual problems and language regimes. A century ago, no one spoke of language or culture, but numerous references were made to Belgium's elected upper chamber, as provided for in the constitution of 1831, itself a consequence of Europe's post-Napoleonic adjustments. The feature that attracted or repelled comment was its 'element of conservatism,' the source of which was restrictive property and age qualifications that 'insure[d] the existence of a stable and conservative element, counterbalancing the elective character of the Senate and the low franchise under which it is chosen.'27 In the eyes of critics, the Senate and representation is a relationship

Representation 81

empty of meaning. According to Robert MacKay, 'deprived of any real representative character by reason of the fact that the sections and provinces were given no hand in the appointment of its members ... the Senate rests upon nothing but itself.'2** There is no doubt that in much of the literature the institution is viewed as a lower order of an upper chamber. Yet the same literature occasionally acknowledges a representative function for the Senate; MacKay himself discusses Senate membership in light of minorities (linguistic, religious, and ethnic), occupations, and age, while Kunz supplements this material and adds education. More recently, the Senate's composition has become an argument marshalled in its defence: 'The Senate is more representative of the democratic diversity of the population of Canada': women represent roughly 35 percent of the Senate (20 percent in the House), francophones, 24 percent, Aboriginals, 5 percent and visible minorities, 5 percent.29 The report of the Royal Commission on the Future of the House of Lords employs similar language when it talks about making 'early progress towards achieving gender balance and proportionate representation for members of minority ethnic groups.' An analyst of Lords' reform, who is not enthusiastic at the direction of this reform, has mordantly observed, in reference to Canada's Senate, that 'one of the only positive ways in which the appointment system is presented to the public is as a means of guaranteeing seats for groups that are otherwise under-represented in politics.'30 Whether or not interpreted as symbolic, the diversification of Senate membership can have representative implications, as borne out in a very public but unexpected way by the Persons case. In 1929 the Judicial Committee of the Privy Council overturned a Supreme Court of Canada decision and found women eligible to be called to the Senate of Canada under s. 24 of the British North America Act, which specified that 'qualified Persons' could be so summoned. There is no question that Edwards v. the Attorney-General of Canada, [1930] AC 124, the official citation of this case, marked an important advance in citizenship for women. Nonetheless, the meaning of the Persons case, and the 'Famous Five' women who instituted the judicial challenge, has over the decades assumed far wider significance than at the time the opinion was handed down. As recently as the 1980s the Historic Sites and Monuments Board of Canada declined to recognize the litigants as of national historical significance. In 2000, however, a monument (the only non-royal, non-party political statue on Parliament Hill) was erected to commemorate the achievement of the five women and to signify the

82 The Canadian Senate in Bicameral Perspective

singular importance of the Persons case. The same year The National, a publication of the Canadian Bar Association, ranked the Persons case as the fourth of twenty 'significant legal events of the last 100 years/31 The popularization of the Persons case and the annual celebration of the achievement of the 'five' Alberta women who challenged female exclusion have had the unintended effect of recognizing the Senate as a legitimating institution.32 More than that, the wording of the Judicial Committee opinion recognized that Canada had been constitutionally and socially transformed in the matter of those eligible to perform public service. Admittedly, the appointment of women has grown only slowly and pressure mounts for another Persons case to promote gender equality. Still, the use of the term symbolic to describe the female (or any other) component of the Senate is inapt.33 Not that symbolism is unimportant in the appointment, but to label senators in this manner is to present a distorted picture of the institution. The chamber may be permanent, in that it does not have a life' as the House does, but its members now serve until age seventy-five and they are individually appointed as persons. The prime minister may control the patronage of appointments, but he does not control their sequence and, only moderately, their timing. In light of the age and property qualifications, senators are highly independent once they are appointed. Of course, linguistic, religious, business, and partisan affiliation and sense of common feeling exist too; the senators are not as isolated as the word symbol made them sound. On the other hand, and here MacKay was accurate when he wrote, 'the Senate rests upon nothing but itself.' The Report of the Royal Commission on Reform of the House of Lords (Wakeham Report) adopted the view that the role of the Lords was to 'complement' the Commons, and that, on balance, it did this very well, with the proviso that its hereditary base must be abolished. The House of Lords Act, 1999, severed hereditary title from eligibility to hold a seat in the Lords. In place of peers, the royal commission recommended an appointed House of Lords 'more "representative" than it has ever been hitherto.'34 As discussed in an earlier chapter, the Australian Senate is a representative body. Referring to the nomination process associated with the electoral system in place since 1949, some critics say the senators represent state parties more faithfully than they do the states; for this reason, John Uhr notes that 'the Australian Senate retains something of the character of those nominee upper houses so roundly criticised by a long tradition of Australian democrats.'35

Representation 83

Others see PR as opening the door to representation of new interests based on sectional or minority identity. In either case, representation as a concept complements the Australian Senate as an institution. While the Australian founders borrowed heavily from American example, they could not maintain, as Americans did, that 'in all its parts, the representative part [is] the whole of if.'36 In Canada and Australia, as in Britain, representation is not the source of executive and judicial power. In the United States the weaving of ideas about constituent power and representation led, in Edmund Morgan's phrase, to 'inventing the people.'37 Republican and representative government marched hand-inhand, although it took more than a century before the people imposed themselves on the Senate through the seventeenth amendment. Without question, representation is a role the senates of the United States and Australia are expected to play. That said, the expectation is less unanimous in Australia, where the presumptions of responsible government set up tension with the upper chamber. David Butler, probably the most published political scientist in the field of parliamentary electoral studies in the English-speaking world and himself a student of Australian politics, admits that 'it is the experience in Australia that has made me a sceptic about a fully elected House.'38 The source of the scepticism is fully explored in the Wakeham Report, and has been expressed by others, such as Viscount Whitelaw, a man with extensive Commons and governmental experience before being made a peer: .

Why were those great Parliamentarians, Mr. [Michael] Foot and Mr. [Enoch] Powell, so much against this proposal? - for a very simple reason, which stemmed from their very great adherence to another place. They believed - and I do not think I could claim they were wrong - that if changes were made in the composition of your Lordships' House which would make it perhaps more elected, the result would be that before very long that House, made more elected than it is at present, would demand more powers.39

In Great Britain the authority of the Commons and the Lords is as one, since together with the Crown they constitute Parliament, the only constituent power the British constitution knows. The pre-eminent partner in that relationship is the Commons. In the United States and Australia the Senate is one of the institutions that represents the people, who themselves are (unequivocally in the case of the United States) the

84 The Canadian Senate in Bicameral Perspective

constituent power in the constitution. In Canada the people as citizens are missing from the constitution. The Senate does not represent people: its members are not the people incarnate. Nor do provincial senators taken together embody a transsubstantiated provincial interest. As in Britain, the authority of Canada's Senate derives from being part of Parliament, although its position is not as passive as that makes it sound. On the contrary, the legitimacy of the Senate (if that phrase be permitted when discussing an unelected body) rests in its activity. Decades ago, Sir George Ross described the Senate as having 'spheres of usefulness not yet cultivated/ but when they were, then the job of the Senate was 'to form public opinion [which was] just as useful as to direct it/40 What the spheres are and when they assume prominence depend both upon circumstances beyond the control of the Senate - for instance, the timing of public concern about poverty, drug abuse, euthanasia and pornography - and upon the interests and ability of individual senators. The same circumstances might influence members of the House of Commons, although mitigating factors are the high turnover of MPs at each general election and the subjection of MPs to party discipline, which determines not only voting but the order of business, of debate, and of committee membership. The essence of the Senate's function consists in being unspecific. Writing about modern parliaments generally, Gerhard Loewenberg has said the same thing: they are 'not functionally specific institutions/41 But in Canada, debate about the second chamber has increasingly concentrated upon its perceived inadequacy as a representative institution. More than the Commons, the Senate has had a territorially specific function attributed to it, and as this book argues, without historical or constitutional justification. The popular opinion of the relationship between the two chambers - that the Commons represents people and the Senate the provinces - is misperceived. A closer description of what the Fathers of Confederation intended was actually offered twenty years before union during debate in the lower house of the United Canada's Parliament: The Legislative Assembly and the Legislative Council were a check upon each other. It was for the purpose of having a check... that the bill had been framed ... There would be a kind of compulsory harmony between the branches of the Legislature as far as the recognition of public opinion was concerned on important questions ... [I]n the Lower House the local,

Representation 85 particular, and material interests of the people would be chiefly represented, while the public feeling on the general policy of the country, would be represented in the other House. In legislative capacity there was no essential difference between the upper and lower houses. Either could introduce measures and either could obstruct the legislation of the other. The difference was that to this house belonged the keys of the public purse. The great check they had on the Upper House ever becoming the popular branch of the Legislature, was, that the keeping of the public purse was reserved to the Lower House, with the sole right to originate any money grants, and as long as it had this power, it must necessarily be the ruling and governing body of Canada.42

Two things happen in general elections: members of Parliament are chosen, and eligible voters, to varying degrees, enter the electoral process. But something more happens: a set of obligations and expectations develops which is fundamental to the construction of the concept of representation. The way people perceive that concept affects how they view the job of the member of Parliament and their relationship to that member. One difference between the Commons and the Senate lies in how citizens approach those bodies. While there are always exceptions, on balance citizen contact with MPs takes place as individuals. With the Senate, it occurs in groups - for instance, churches, businesses, and voluntary associations. The contrast in approach may not be surprising, since senators in Canada are not elected; it is, nonetheless, important to understanding the distinctive role each house plays. Both provide counsel and both provide consent, although because of its monopoly of appropriations, Commons' consent is more directly the consent of the people - the constituents. Yet the nature of their activity is different. For better or worse, the House of Commons is about governments and their opposition. Partisanism is pervasive; it informs everything that happens in the chamber. With a single government leader and a lone opposition leader in its ranks, the Senate is less obviously and less practically a partisan chamber. It is not a confidence chamber, and it does not act as one. Instead, it investigates, scrutinizes and, paradoxical as it sounds in light of the criticism the Senate attracts, legitimates public policy. Consider, for example, the extensive hearings the Senate Legal and Constitutional Affairs Committee held (more than two weeks compared to the Commons' two days) on the first resolution to amend the Constitution Act (Terms of Union) to allow Newfoundland to reform its denominationally-based school system. The commit-

86 The Canadian Senate in Bicameral Perspective tee spent part of that time travelling to St John's to hear witnesses. The issue was minority rights, and the Senate was urged 'to raise its voice to ensure that the entrenched rights ... are not removed or reduced for political occasions.' Ovide Mercredi, then national chief of the Assembly of First Nations, echoed the concern about 'the tyranny of the majority. For that reason [he said], I am here to express support for the submission provided to the Senate by the Canadian Conference of Catholic Bishops.' The Senate was told by a series of religious groups that 'as the guardian of minority rights, [it] has a fundamental role to protect'; and it was 'commend[ed]... for taking the opportunity to hear publicly our points of view.'43 Amendment of Term 17 proved complex and controversial, in part because of Senate action: on 27 November 1997 the upper chamber refused to endorse a motion 'to change the Constitution to allow Newfoundland to reform its church-run school system.' By a free vote of forty-six to thirty-five, the Senate approved an amended version of the resolution. As this was a constitutional amendment whose passage the Senate could only delay, the Chretien government five days later reintroduced a new motion, one the Commons approved two days after that. In March 1997 the prime minister and the Newfoundland premier, Brian Tobin, signed the constitutional amendment. As the Newfoundland government proceeded against local opposition to reorganize its school system, the province's Supreme Court (Trial Division) in July 1997 issued an injunction restraining the move to replace denominational with interdenominational school boards.44 From the perspective of this study, the significance of the court's decision lay in the reasons offered for it. Mr Justice Leo Barry spoke in terms similar to those heard in the Senate (that is, 'a minority right means that it continues to exist, even when the majority does not want it to exist') and, more to the point, which had led the upper chamber to refuse to pass the original motion. There was, said Mr Justice Barry, 'inherent value' in unidenominational education; its loss would cause 'irreparable harm'; the policy objective of the Department of Education must not 'render rights meaningless;' and 'the interests of identifiable groups [were] at issue.' Quoting approvingly the Supreme Court of Canada in R.J.R.-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada, Mr Justice Barry agreed that 'the Attorney General is not the exclusive representative of a monolithic public ... "Public interest" includes both the concern of society generally and the particular interests of identifiable groups.'45

Representation 87

In September 1997 Newfoundland voters in a referendum chose to end church-controlled education. A second request to Ottawa for a constitutional amendment was made by the provincial legislature. This time, the federal government's resolution was referred to a special joint committee of the two houses of Parliament. In December, both houses adopted the requisite motion to alter Term 17. Senate debate on Term 17 is not the only example of the upper house anticipating language later heard from the judiciary on the same issue. Consider, for instance, the Senate debate in 1998 on second reading of Bill C-40, 'An Act respecting extradition ...' Here, Senator Gerald-A. Beaudoin noted that under the bill the minister of justice 'may refuse to make a surrender order if the conduct in respect of which the request for extradition is made is punishable by death under the laws that apply to the requesting state.' He further noted that the death penalty was abolished in Canada in 1976; that as a signatory to the International Covenant on Civil and Political Rights, Canada had reinforced its opposition to the death penalty; and that the death sentence is in conflict with 'the protection provided by section 12' of the Charter of Rights and Freedoms.46 Four years later, in United States v. Burns, the Supreme Court of Canada dismissed an order for the extradition of two Canadian citizens to the State of Washington where they would be tried for first degree murder. The court noted that the minister had not sought assurances from the United States that the death penalty, if imposed, would not be carried out. The conflict with the Charter lay not in section 12, 'cruel and unusual punishment' but in section 7, 'fundamental justice.' The death sentence would, the court said, Violate our sense of fundamental justice' and 'shock the conscience.'47 In the world and language of rights, the Senate occupies a prior, although not a privileged, place under Canada's constitution. To be sure, the Charter confers primacy upon the judiciary in such matters. Yet at Confederation the Fathers looked to Parliament's upper chamber as a shield. As sensitivity in the area of rights grows, so the Senate's role in the scrutiny of legislation in advance of judicial review may be expected to grow too. The measure of the Senate consists in what it does; and it would be a 'strange and inadequate notion of political representation which said nothing [about this matter].'48 Representation is only part of what the Senate does; even then, what it represents is not essentially territorial. That does not mean that it does not articulate regional concerns, although it would be unusual to hear the senators of a region or a

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province speak as one. The work of a senator is less about being a voice for an interest, certainly not one defined by political boundaries, than it is about being an acute listener. Often, those appearing at Senate meetings thank the committee for the opportunity of being heard. Never at these times is there a suggestion that the Senate as an institution, or its procedure, is illegitimate. Nor is there a sense that it is an exclusive private institution - a lobby from within. On the contrary, with its greater autonomy, more leisurely pace, and less combative members than the lower house, the Senate is in a better position to provide an atmosphere congenial to deliberation. In a democracy, it would be foolish to idealize the Senate to the extent that it fell short on the standard of representation but met some other criterion of political participation. Nonetheless, it is important to emphasize that rhetoric about the Senate and representation may be inflated or at least misplaced, for representation and election are not the same thing. There is much in the recent literature on American politics to substantiate that statement: 'The unrepresentativeness of the U.S. House of Representatives - in terms of ethnicity, gender, race, and socioeconomic status - and its nearly closed system for election have generated questions about the legitimacy and authority of the House as an institution which "represents" citizens.'49 The 'revolt of the voting classes' - lower turnout, less confidence in government and a decline in political party loyalty - signals that questions about legitimacy and representation are not confined to the upper house of Canada's bicameral Parliament.50 Representation is a function shared by the two chambers, but not so imitatively as is sometimes suggested. The United States' model proved important to Canada, even when John A. Macdonald was rejecting it. Parliament was as vital to the success of the new federal dominion after 1867 as Congress was to the American federation after 1787. There was a superficial similarity between the systems, particularly the Senates, where 'the Government is neither represented in it directly, nor is it responsible to it.'51 There the parallel ended, for the allocation of seats and the selection process were starkly different. From the first, the Canadian Senate was less accountable than its American counterpart to the public, the parties, or the interests. That is what its critics have long claimed. Over the decades, the object of that accountability has shifted, driven not by constitutional theory so much as events that have strained the Canadian federation.

Chapter Five

Federalism

Federalism and bicameralism go hand-in-hand. Few federal systems are not bicameral, and none of these is a major federation. Canada, Australia, and the United States are major federations who, along with Switzerland, provided the prototype of this form of government in the period after the Second World War. The most widely cited theoretical works on comparative federalism - K.C. Wheare's Federal Government and William Livingston's Federalism and Constitutional Change - dwelt respectively upon the characteristics of federal governments and federal societies in these four countries. Later Germany proved attractive because of the Bundesrat's personnel, drawn from the Lander, and its role, despite being a national upper chamber, in the administration of German federalism. By contrast, federalism in the Anglo-American world is jurisdictionally focused, with preponderant attention paid to constitutional law and judicial interpretation. The reason for that emphasis lies in the decision by these countries (beginning with the United States) to create parallel national and state or provincial administrations. The implications of that choice for the making and carrying out of public policy and for the attendant interests involved were immense, but no more so than for the subject of this study - bicameralism. Administrative solitudes guaranteed a national spotlight for the upper chamber in the federal parliament regardless of its composition. Cheryl Saunders has said of Australia (but it was also true of Canada) that although 'the Senate was the key element in the federal bargain ... it is questionable whether the Senate plays any role as a federal institution at all, apart from providing a vehicle for larger numerical representation in the Parliament of the smaller states than the size of their populations otherwise would suggest/1

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That assessment might be more expected from a student of Canadian politics. And there is no shortage of views: 'It is only by way of the Senate, as a second chamber of Parliament, that we can institute representation by region to check representation by population, as instituted in the House of Commons'; 'The major function of most of these upper houses [Australia, Switzerland, and the United States are cited] is to review federal legislation from the perspective of the regions and of minority interests'; 'Their lack of institutional connection to provincial governments or electorates negates any role for senators in federalprovincial bargaining.'2 That the earlier assessment comes from Peter Aucoin, a close observer of a federal system admired by Canadians for, among other reasons, having an upper chamber deemed as equal, elected, and effective, should encourage us to look more carefully at the subject of bicameralism and federalism. Even if the British government were not to proceed to the second stage of the Lords' transformation, Canada would still have the distinction of being the only federation whose upper chamber members are all appointed on the personal recommendation of the chief political official, the prime minister. The relationship between bicameralism and federalism in Canada requires analysis: to understand what purpose that relationship once served, whether it serves that or any other purpose now and, if so, whether this purpose can be met by a reconstituted Senate that also meets other needs that critics say currently go unaddressed. To begin with, the relationship between bicameralism and federalism today is not what it was at Confederation or for most of the country's history. A careful reading of Senate and House debates in the first two decades of the last century suggests that, among the functions of the Senate, its federal or territorial role ranked behind other responsibilities. For instance, in a long debate on Senate reform in 1906 and 1908, members spoke of the upper chamber as 'an isolated body,' 'uncontrolled by the public opinion of the country,' and as an 'irresponsible' chamber, yet at the same time as an 'absolutely needed safeguard for the smaller provinces against a possible invasion of their rights by the larger provinces.'3 While a few saw the Senate's composition as 'inconsistent with the federal principle,' most who spoke expressed strong reservation about either a popularly elected chamber or one selected totally or in part by the provincial governments. The proposed reforms that occasioned the debate - to abolish life appointment, set an age for retirement, and limit tenure to three Parliaments - did not address federal or territorial concerns.

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There is no cruder way to assess what debate on Senate reform has become than to remember what it used to be. Contrast, for instance, the 1906-8 debate with one held in the Senate in 1998, when the issue in question was 'the concerns expressed by Albertans with regard to the Senate as an institution.'4 Among these later worries was 'the nature of its regional representation.' The difference in emphasis and tone is striking, although perhaps not surprising in view of the debate's location and terms. Except in this respect, pervading the whole debate was the issue of how to make the Senate 'truly representative of our regions.' The particulars of the debate are unimportant to this discussion, although the use of the word representation requires a caveat. The sense of the term in this context deals with selection: the beginning of the representative process, as it were. There is, however, another way of seeing representation: as accountability for what a member does, and that occurs later in the relationship between the legislator and the people. What needs explaining is the shift in the debate's focus. One ready answer would be that four decades of constitutional strain, with prolonged intergovernmental negotiations and a series of agreements and failed agreements, had sharpened institutional sensibilities; that politicians and the public had become aware of what was wrong with certain institutions and how they might be changed to make things right. The Senate would seem an obvious candidate for refurbishment as a federalized centre. Yet the Senate is the last place to see change or proposals for change as result of the upheaval the Quiet Revolution brought to Canadian federalism after 1960. Opting-out, tax-sharing, a bilingual public service, first ministers meetings, active recruitment and promotion of able French-speaking politicans - these initiatives and more signalled a dramatic change in the conduct of the continuing Confederation bargain. The Senate, which participants at the time and historians since have assured Canadians was the pivotal element of the 1867 agreement, appeared untouched by the wave of change that engulfed Quebec a century later. The discussion will return to Quebec and the Senate. For the moment the exploration is focused on the shift in debate about the upper chamber toward the subject of representation. The cause of the change can be stated with unusual precision: the National Energy Policy announced by the Trudeau government in 1980. Alberta Report, the voice of regional remonstrance, expressed the grievance as clearly as anyone: 'The National Energy Program radically centralized oil and gas policy and increased the federal share of petroleum resource revenues; in the

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process they ignited intergovernmental warfare between the western provinces and Ottawa, which was seen to be pandering to the consuming provinces of Ontario and Quebec, which control the House of Commons and therefore the government/5 If ever an illustration were needed of the dictum that events create theory, then the National Energy Policy and several other federal government decisions judged discriminatory to the region (for example, the award of an aircraftservicing contract to a Montreal firm although a bid by a Winnipeg company was acknowledged to be technically better and cheaper) stand on permanent offer as explanations for the appearance of the Triple E Senate campaign. Testimony to this proposition is readily found in parliamentary debates, as in the following comment by Arnold Malone, MP, in a debate on Senate reform: There is probably no place in Canada which has more of a grass roots, broadly spread desire for changes to the Senate than has the Province of Alberta. This came about because of a bleeding away from that province of some $30 billion as a result of the Liberal National Energy Program. It brought about a sense of anger which is so deep-rooted in Alberta that today it believes the only way in which it will be able to sustain a sense of fairness in Confederation is with a reformed Senate.6

Whether a Triple E Senate would have thwarted the National Energy Program or federal government procurement policies is difficult to say with confidence but it is open to doubt, at least without other changes to the constitution. For an elected Senate will not alter the conventions of responsible government, among which is cabinet's collective responsibility. Initially invoked as 'a defence against the prerogative, [i]t could also, in its call for confidentiality and unanimity, be a defence against the Commons [and the Senate].'7 By coincidence, the Triple E plea found a theoretical echo almost immediately in the work of Australian Preston King, who argued that 'the most distinctive feature of federation is the entrenchment of regional components such that these are represented at - and in this sense constitute a part of - the national centre/8 Congenial in sentiment, the practical difficulties associated with implementing a scheme that subordinated executive decisions to bicameral oversight require careful thought. The assumption here, it should be said, is that King's proposition about incorporating the parts refers to something more than a federalized cabinet. As it currently stands in Canada, the federalized cabinet displaces a reformed Senate.

Federalism

93

While useful, the dictum that events create theory is not omnicompetent. Earlier it was noted that some theories about bicameralism are borrowed. The federal council (Bundesrat) model of an upper chamber composed of provincial ministers and bureaucrats found favour in the 1970s but has since lost support. Earlier still, the disposition of the House of Lords' 'problem' through recognition by the Parliament Act of 1911 of the supremacy of the House of Commons, influenced but did not determine the outcome of discussion in Canada. The official precis of discussions at the 1927 Dominion-Provincial Conference communicated the power of that example: The British system, under which in 1911 the powers of the House of Lords with respect to money and general Bills initiated and passed in the representative Chamber were restricted, was discussed at considerable length during the conference, while reference was also made to the system existing in the other Dominions of the Empire. Throughout the discussion the right of the provinces to be consulted on such an important matter as this was frequently emphasized. While there was a strong body of opinion in favour of any reforms which might strengthen the general machinery of Parliament there was no attempt on the part of any speaker to minimize the value of a second chamber.9

However rational or attractive borrowed models appear, they are vulnerable to the charge that they are inauthentic because they lack political and historical roots. Tautological but true, or at least persuasive for the Wakeham Commission. Its report on the House of Lords reform concluded that 'the more successful second chambers are those which best fit with the history, traditions and political culture of the country concerned ... [W]e did not consider that any other second chamber provided a sufficiently close parallel to justify making an overseas visit.'10 To date, in the field of Canadian bicameralism, the influence of comparative example has been slight. Even so, why, before the appearance of Triple E, was there not some other coherent proposal to reconstruct Canada's upper chamber? And, especially, why not a proposal from out of western Canada, which for so long was fertile ground for grievance against central policies? Of course, there was no shortage then, as now, of individuals who said the institution should be abolished or made elective. But the origin of those preferences lay in some socialist or populist ideology; it was never part of some larger vision of the representative dimension to

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federalism. The explanation lies partly in the absence until the 1970s of a leader, such as Preston Manning, committed to institutional reform among other changes; it also lies partly in the slow emergence in the West of a sense of itself as an entity within Confederation. While the West was a seedbed of agrarian protest and third parties, the conditions in which they operated - indeed their very cause sometimes - lacked stability. Rapid expansion, war, more expansion, then depression, drought, and war, followed by further expansion along with Ottawa's retention of natural resources in the prairie provinces until 1930 preoccupied the region. It was only after 1945, with the exploitation of newly discovered resources and a change in the immigration patterns nationally, that the West began to think of itself as a mature rather than junior part of Canada, yet still blessed with great expectations. Only then did a constitutional perspective begin to form that challenged the central understanding of Confederation, which has hitherto been that Canada had united not to promote representation but to secure protection. It will be recalled that some of the delegates to the Australian federation conventions of the 1890s dismissed Canada as a true federation. They had in mind features like the federally appointed lieutenantgovernors of the provinces and Parliament's declaratory power (s. 92(10)(c) of the Constitution Act, 1867). But there was another way in which Canada failed the federal test or, in Joseph Howe's words, existed only as 'a confederacy in name.'11 That can best be demonstrated by reference to the American federal theorist Martin Landau, who has written extensively on federalism as a system of redundancy.12 At one level - the sober-second-thought defence - redundancy is as central an element of bicameralism as it is of federalism. But the word has several definitions, also meaning either superfluidity or duplication. When Landau talks about redundancy as a feature of American federalism, he is using it in the first sense. Employing the metaphor of a jet aircraft, he depicts the checks and the balances, the separations and the divisions, the superimposed layers of American government as back-up to maintain stability if failure should occur in some part of the complex constitutional machinery. In Canada too there is redundancy, but there is no tolerance for the superfluous features of federalism. On the contrary, there is a desire to simplify, clarify and compartmentalize responsibility and jurisdiction. How many royal commissions have had as one of their goals, and even a term of reference, to eradicate waste? How to explain the asymmetry between Canada's bicameral federal Parliament and unicameral pro-

Federalism 95

vincial legislatures? In answer to that question, consider the rationale for abolishing the upper chamber of Manitoba's young bicameral legislature in 1876.13 It was considered redundant, costly and, therefore, wasteful. This is an argument heard in Canada today: 'I've said lots of times that I thought "Senate reform" would be better (as) "Senate abolition." All the provinces function quite well with one house'; - and at its birth: 'As to Local Governments, we desire in Upper Canada that they should not be expensive ... We ought not to have two electoral bodies. Only one body ,..'14 The first speaker was John Manley, at the time (1999) industry minister in the cabinet of Jean Chretien; the second was George Brown. More than parsimony explained provincial unicameralism. There was from the era of Confederation onwards a belief, most vividly articulated by George Brown, that, given the structure and intended purpose of the Senate, provinces had no need of upper chambers. Speaking at the Quebec Conference, when the name of the new federal second house had yet to be agreed upon, he made the case for unicameralism in the provinces: 'One material point is that the choice of the Federal Legislative Councillors will extinguish or largely diminish the Local Legislative Councils. If you have a Local Legislative Council you then embarrass yourselves by reconstructing that body ... Consider how insignificant the matters agreed at Charlottetown to be left to the Local Governments.'15 Here was the institutional setting for the argument, endlessly made in later debates on Senate reform, that the Senate was the protector of the provinces. 'Equal representation in the Senate/ wrote Senator Norman Lambert in one of a series of articles in the Winnipeg Free Press in 1950, 'was to be the collective equivalent of the original Legislative Councils of the provinces.'16 Just as today a cabinet minister who favours Senate abolition can say that strong provinces make the Senate unnecessary, so in the 1860s the argument was heard that a strong Senate made provincial upper houses unnecessary. The insinuation into the duties of the Senate of what elsewhere might be considered provincial legislative functions reaffirms that Canada's federation was no carbon copy of the American one, any more than did the practice until 1873 of the dual mandate. According to Norman Ward, 'In the first House of Commons there were about twenty-five members from Ontario and Quebec who sat in the local House, and in both provinces a majority of the provincial Cabinet held federal seats.'17 While there were partisan arguments for and against retaining the dual mandate, there was a systemic argument, peculiar to the nature of

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Canadian federalism, for its removal. Alexander Mackenzie made the point in an 1869 debate: [HJe believed the Dual system to be extremely injudicious, because that House was supposed to exercise certain powers over the Local Assemblies, and if seats in the Federal Parliament were to be open to all the Local members, and supposing the possibility of all the members of Ontario and Quebec having seats in that House, where would be the control which the Dominion ought to have over Local Legislation.18

Dominion oversight of local legislation was a joint responsibility of the two houses of Parliament, but it was especially understood to be a task of the upper house. That it was the leader of Liberal opinion in the House who expressed concern about constraints on central control of provinces underlines the un-American nature of Canadian federalism. This is not an understanding of redundancy as a matter of superfluidity but rather of duplication. And it is duplication which in 1867 had a specific purpose - to protect Quebec. As already noted in the last chapter, the House of Commons, based on representation by population, was viewed as Ontario's chamber; the Senate, with equal representation of the three original regions, 'belonged' to Quebec and the Maritime provinces. But Quebec's place was special not only because of the interests to be served but because of the manner of their protection. To begin with, unlike the provinces to its west, Quebec was given a bicameral legislature. Like senators from Quebec, the province's legislative councillors were originally appointed for life, one each from the same twenty-four districts that provided for senatorial representation. The districts (established before Confederation to elect legislative councillors in the last years of the old United Province) were intended to assure representation of the Anglophone minority. In fact, the Englishspeaking minority that appeared 'were closely tied to the French-speaking members by a community of economic interests.'19 This feature of the Legislative Council gives support to a view commonly heard: Although the reason why Quebec ... should have been saddled with a second chamber is not spelled out in the BNA Act, it is clear from the context of the debates ... [T]he Legislative Council was to protect the English Protestant minority of Quebec. That similar councils were not set up to protect, say, the Catholic minority in Ontario speaks volumes about the nature of the bargain struck.20

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It may speak volumes, but perhaps it is not the whole story. Andre Bernard has argued that bicameralism in Quebec signified status for Quebec: 'un moyen de faire des institutions legislatives du Quebec un veritable parlement/21 Two chambers indicated more distinction and autonomy than one. For Quebec, unlike Ontario, there was at Confederation a nesting of bicameral structures. Jean-Charles Bonenfant, the Quebec political scientist who has written most extensively on the Senate, envisions it as an institution of two nations: II y a, enfin, le reve d'une Chambre haute assurant au niveau federal une meilleure realisation du principe de participation, participation non pas de dix provinces mais des deux groupes ethniques qui, de plus en plus, constituent la division reelle du Canada. Les Canadiens de langue franchise ne peuvent guere esperer posseder a la Chambre basse une representation superieure au tiers des deputes, a laquelle leur donne droit leur proportion dans le pays, mais dans une Chambre haute ideale pour assurer le veritable federalisme, ils pourraient avoir la moitie des representants se recrutant non seulement dans le Quebec, mais aussi dans toutes les autres provinces.22

It is not necessary to go as far as Bonenfant in adopting a two-nations view of Canada's federal system to see the Senate as part of the protective armament awarded French-speaking Canadians living in what was to become Quebec in exchange for acceptance of the federal union. The division of powers gave Quebec the jurisdictional autonomy it had had under the Constitutional Act, 1791, but this time with responsible government. The fixed term for senators and the limited power to enlarge the chamber fortified the French-speaking minority against majoritanian surges that in a system like Britain's could lead to swamping of the upper chamber; section 132, which guaranteed equality of language in the legislature and Parliament and in the courts, and section 93, with its guarantees in regard to education, continued the existing protection of denominational minorities. These and other protective arrangements may be cited as inadequate to their purpose; in similar fashion a succession of majoritarian-minoritarian conflicts in the provinces threw doubt on the utility of these and other provisions. The fact remains, however, that Canadian federalism is different from its AngloAmerican counterparts because from the first it paid attention to an identifiable national minority, most of whom lived in one province. It did this through a number of mechanisms of which the Senate, at

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Confederation, was deemed an essential part. Without the Senate, there would be no Canadian federation. Abolition of the Senate would not only be inconsistent with Canadian federalism, it would destroy it. In a unicameral Parliament, presumably based at least as closely upon the principle of rep-by-pop as now, Ontario would dominate the chamber. Of course, it could be said that this is the case now where Ontario accounts for one-third of the total Commons seats. The difference would be that the Senate and its final weapon, the absolute veto (or even a suspensive veto), would have disappeared. The regional, sectional, provincial, and associational rights the Senate was established to protect would lack an institutional forum in which to be heard. There is no doubt that one of the features of Canadian federalism, the federalized cabinet, has lessened the importance of the Senate as an institution of regional opinion. This is so because the cabinet is the site where the accommodation of interests takes place in the Canadian system and, more germane to this discussion, a minimal number of senators is present. As recently as 1992, Kent Weaver went so far as to say that 'the primary function of the Senate has been to supply cabinet ministers from regions where the governing party is weak, promoting at least the appearance of broad representation of interests.'23 In 1980, when no Liberal was elected west of Manitoba, Pierre Trudeau appointed one senator from each of the three provinces to cabinet to provide for the missing voices. It is not a common practice, but it is misleading to call it the primary function, since that implies that the Senate is otherwise functionally moribund. There is a large literature on political parties and representation in Canada. All of it is united in agreeing on the dominance of the prime minister, the effectiveness of collective responsibility, and the consequent ineffectualness of Parliament in the matter of policy-making. If members of Parliament feel impotent before the juggernaut of party, how much more must senators feel disregarded? Perhaps not as much as one might think. Senators have no constituency in the sense MPs do. They are appointed from a province, but there is no evidence that senators from a province speak as one. More likely, and more understandable, would be an alignment of senators according to their personal interests and expertise or those characteristics combined with concerns expressed by Canadians generally. A 'Review of Senate Committee Studies' completed by the Parliamentary Research Branch in 1999, looked at twenty-two studies in five broad areas: agriculture, banks, human rights, social policy, and fisheries. With the exclusion of

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the last, in which studies of freshwater, West Coast and Atlantic fisheries predominate, the studies are noticeable for their absence of geographic specificity. For instance, 'Soil at Risk/ 'Profit from Authorship Respecting a Crime/ 'Abortion, Bill C43/ 'Retirement without Tears/ deal with topics that affect Canadians across the country. If anything, Senate committee work actually counters the sectionalism evident in cabinet. There is irony in this observation, since it contradicts the call repeatedly heard for the second chamber to represent, defend, and promote provincial interests. To turn this argument around, if the Senate should represent provincial interests - if, in other words, the local should supersede the national - then the Senate becomes part of the whole realm of representation. The phrase is not inapposite. On all sides, in and out of Canada, there has been a vast inflation in the concept and meaning of representation. The Wakeham Report on the reform of the Lords recommended that up to 20 percent of the members of the new chamber be elected from within the nations and regions of the United Kingdom, thus giving those areas 'a direct voice at Westminster which they currently lack.'24 Even critics of the Senate speak favourably of the greater number of under-represented groups - women and visible minorities, for example - represented in the upper house. Nor are the lower houses of legislatures immune to this kind of discussion; it invariably arises when proportional representation schemes are proposed for bodies that currently use plurality systems. Nor, again, are quasi-public bodies such as health or other boards excluded. It follows that if some structure or scheme is adopted whereby the Senate is intended to promote (that is, represent) provincial interests more accurately or vigorously than it does now, then that representational supplement must be added to other manifestations of representation, be they the constituencies that send MPs to Parliament or Professor Bonenfant's two nations within the existing Senate. It is questionable that MPs would agree to accept such a fragmented and compartmentalized view of their job. Whether they would is beside the point. What is central is the inevitable reply to any proposal that would claim to reconstitute the representative function of the Senate. That is, any change to one house of the bicameral legislature involves compensatory change to the other chamber. That would be as true of Canada as it is of Australia with its constitutional provision for a nexus between the two chambers of Parliament, or as it appears to be of Britain's House of Lords as it proceeds through its transformation. That is the opinion of Bernard Weatherill, former Speaker

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of the House of Commons at Westminster: 'You can't really make changes in one part without having an effect on another.' The job of the second chamber in Britain, he believes, is 'to ask the Lower House to think again [and] to have general debates on subjects unlikely to be raised in the Commons.' It would, however, be 'quite wrong' for the Lords 'to thwart the will of the Commons.'25 Despite the representation imperative so evident in modern politics, Senate critics adopt too narrow an analysis of federalism. Consider the assertion of Jake Epp, former minister from Manitoba in the Mulroney government, that people would be interested in Senate elections if they 'actually knew that their area considerations and concerns were going to be brought to the national forum ... "You can't just elect a Senate and say our problems are over. You have to have a shift of the balance of power.'"26 One way of describing Epp's view is to say that it is only a partial focus, that it omits as much as it includes - the trees are there but not the forest. A sense of what is lost can be found in the writing of J.G. Bourinot at the beginning of the twentieth century. The triumph of Confederation, he believed, was to break down barriers rather than erect them. The union of 1867 had 'brought [the separate colonies] out of their political isolation and given a community of interest to all of British North America, except Newfoundland.'27 But where is the community of interest in the Epp depiction of a reformed upper house? The forum may be national but not the interests expressed there. In any case, to describe Epp's focus as partial is misleading, since the metaphor he employs is a mechanical one: the balance of power. The mechanical reference is a favourite one of critics. Used in the summary report of the conference on parliamentary reform sponsored by the Canada West Foundation, 'Re-Inventing Parliament,' it reads as follows: 'A reformed Senate would serve as a valuable balance to the House of Commons and the power of the PM.'28 Favourite or not, the reference is inappropriate where the political executive sits in the lower house (with the exception of the government leader in the Senate and, occasionally, ministers appointed to compensate for poor election returns) and where that house and the upper one constitute two-thirds of Parliament. The dispersal of power implied in the word balance and its fusion as evidenced by the unity of the Queen-in-Parliament, signal a fundamental difference in constitutional perspective. More than that, they indicate another view of federalism. The question is whether it coincides with the American version with its superimposed, superfluous authorities or whether it is yet another variant of

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Canada's protective double federalism. The language the critics use fairer, more equal representation - sounds American. At the same time, there are overtones of a much older, English political struggle - the court and country debate of the late seventeenth century. Court supporters or Tories favoured strong monarchy and an active central government, while the country or Whig leaders of the period were 'suspicious of central power and looked to Parliament as an important check on aggrandisement of royal administration.'29 The debate between Federalists and Anti-Federalists in the early years of the United States may be similarly interpreted, with the anti-Federalists hostile to the scale of the republic being put in place. In either instance, it is possible to see a 'defensive country response to the closer, more effective organization of the Court party in Parliament.'30 A distinctive and important feature of the Canadian 'country' phenomenon is the influence of non-Canadian or global events, such as pricing decisions by OPEC, in galvanizing opposition to the status quo and, with regard to the Senate, looking at reform of the upper house as a way of forcing the federal government to pay attention to specific concerns. Where the court-country analogy fails as an explanatory device is that, unlike the Tories and Whigs locked in battle for power in England two and a half centuries ago, neither an elected Senate nor an upper house structured on the lines of the German Bundesrat would be a replacement for government. At the same time, a political party wholeheartedly supported by the areas of the country most disaffected with the federal government cannot form a government without support from one of the provinces of central Canada. It is this quandary that explains much of the imprecision that accompanies proposals for reform, although it is also the case that theoretical integrity is generally scarce when it comes to Senate reform. As Donald Smiley once observed in reference to the Trudeau government's Bill C-60 in 1978, which proposed a House of the Federation half of whose members would be chosen by the House of Commons and half by provincial legislatures: 'No one, it seems, has thought through carefully the relations between the new second chamber and the ongoing processes of executive federalism.'31 They should; the legitimacy of any reconstituted second chamber poses a threat to executive federalism as practised by first ministers in Canada today. The fact remains that a reformed upper house is not a replacement government. The reality behind the reform is an upper house that remains limited in its effect. Indeed, it is more limited than the chamber

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the Fathers of Confederation bequeathed their country, since most proposals either reject an absolute veto for the Senate or curtail it through some kind of House of Commons override vote. Still other proposals grant to a reformed Senate the possibility of double majority voting on specific measures having, for example, linguistic significance. Proponents of a Triple E Senate seek institutional change in order to achieve greater regional influence over national policies. They believe that those policies reflect central Canadian interests because the government dominates the Commons and the House is dominated by members from Ontario and Quebec. While reformers talk about little other than an upper chamber that is equal, effective, and elected, they should favour retention of the Senate veto. Otherwise, a reformed Senate, if that could ever be achieved by constitutional amendment, would have less power than the present body. Thus, from the perspective of reformers and of improvers, who maintain constitutional amendment is not a practical alternative at present, the status quo as regards the veto is acceptable. In The Unreformed Senate of Canada, published in 1926, Robert MacKay described the Parliament Act of 1911 as 'Democracy's answer to an unfortunate exercise on the part of the Lords of their undoubted legal powers.' He doubted, however, whether the act had great practical implications, since 'it simply embodied in a statute the principle upon which the Lords had long acted but for the moment had forgotten - that they should not obstruct the clearly expressed wishes of the people.' Extrapolating from British experience, he observed that in Canada 'the Senate occupies a similar place in the Canadian Constitution.'32 On the contrary, because Canada is a federation, because the federalism principle has, in the words of the Supreme Court of Canada in the reference on Quebec Secession, 'from the beginning been the lodestar by which the courts have been guided,' and because, in another opinion (the Senate reference of 1980) the court described 'a primary purpose of the creation of the Senate ... was ... to afford protection to the various sectional interests in Canada in relation to the enactment of federal legislation,' the Senate of Canada occupies a position in the country's constitution that is fundamentally different from that of the Lords in Great Britain.33 For all practical purposes, the Parliament Act of 1911 constitutes unicameralism by other means. The strengthening of majoritarian rule, which would be a consequence of abolition, would only be delayed by introduction of the suspensive veto. The Canadian Senate may not have exercised its veto freely, but it has

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used it forty-four times in the twentieth century. Critics who say that the Senate possesses no legitimacy also say it lacks moral authority to refuse the passage of legislation. That proposition is at least open to question. Also open to question is how free the Senate would feel to exercise its veto if it were an elected body. What considerations would guide its action? If the object of reform is, say, to address regional grievances that are now ignored, would the thwarting of the will of the lower chamber in which the government sits be acceptable? Such questions are impossible to answer without more information. For instance, would the new upper chamber be composed of partisans, and would they belong to the same parties as were present in the lower house? The whole matter of parties and their place in a reformed Canadian Senate is ambiguous. Most schemes are silent on the subject. Yet, in the one senatorial 'election' to date that ultimately produced a senator, in Alberta in 1989, there were six candidates (three Independents, a Liberal, a Progressive Conservative and a Reformer), and the party issue bulked large in the campaign. All candidates argued that a Senator would have to be free to vote against the House of Commons. How could Mr. [Bert] Brown [PC nominee and long time advocate of Triple E] be an effective Senator if he was a member of the party that controlled that House? The independent candidates argued that this meant that only a Senator without party affiliation could be effective.34

The conclusions to be drawn from a single Senate election are no better than apocryphal, although it is worth noting that the sole study of the exercise judged the results 'exceptional in that - it served as a referendum on both the government in Edmonton and the one in Ottawa/ In fact, there was a second senatorial election, in 1998, that produced two senators-in-waiting. This time the prime minister of the day, Jean Chretien, did not follow the precedent of his predecessor Brian Mulroney and treat the provincial contest as a primary. The explanation for the contrast says a lot about the politics that surround the campaign for an elected Senate. The events of 1989 can only be understood in the context of the founding of the Reform Party, for whom an elected upper house was proclaimed a high constitutional priority, and the unravelling of the Meech Lake Accord. Opposition to its terms, especially a potential Quebec veto over subsequent Senate reform, was on the rise in Alberta,

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and the province's premier, Don Getty, was under pressure to rethink his government's support for the Accord. According to a close observer, 'Getty agreed not to withdraw Alberta's consent in return for Mulroney agreeing to appoint the winner of an Alberta Senate election to the Senate.'35 The winner of that election, Stan Waters, was appointed to the Senate in 1990. The following year he died of a brain tumour. The collapse of the Accord, the sudden death of Waters, and the arrival in power of the federal Liberals changed the context of the debate over Senate elections in Alberta. In 1998 Preston Manning of the Reform Party, along with the Canada West Foundation, pressed a new Alberta premier, Ralph Klein, to hold a second senatorial election, this time to elect two prospective senators to fill second chamber vacancies as they occurred. In fact, the goal of election fizzled when only the Reform Party ran a candidate. The demonstration effect and the legitimacy that were to flow from election were undermined. Moreover, there was no advantage for the federal government to cooperate with the experiment. On the contrary, Chretien worked to discredit it. The details of these events are well told by one of the participants, F.L. (Ted) Morton, a political science professor and one of the Reform candidates in 1998. But from the point of view of Senate reform, interest lies less in the Alberta contests than in attitudes elsewhere. The most significant point is that senatorial elections are an Alberta phenomenon only, and that even then the initiative behind them comes from outside the provincial government. Senatorial elections arise not in response to some popular movement, although opinion polls show that when asked people support election, but out of a context of partisan bargaining.36 More significant, provincial governments have not taken the initiative anywhere, even in Alberta, to hold elections. It seems unrealistic to think that an elected Senate in a free political system will not attract parties. Canadians have on their doorstep American examples of the electoral college and state legislative selection of United States senators, both institutions founded in an era that distrusted faction but which in time became partisanized. As important as the presence of parties is the timing of elections. Would Senate elections be held at the same time as House of Commons or provincial legislative elections (the Alberta Senatorial Selection Act allowed for the latter)? When the election is held is material to the outcome. Speaking of the operation of bicameralism in the State of Victoria, a member of the Legislative Council there has cautioned that 'Conjoint elections

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were .. the biggest single factor in swamping the Council with party politics and rigid party control which reduce it to its role as a rubber stamp and futile talking shop.'37 While that comment refers to party politics between two chambers within one jurisdiction, it is not unrealistic to surmise a comparable tie forming within one party but between jurisdictions. Returning to the earlier discussion, what would be the effect of Senate elections on redundancy? Proponents sometimes talk in a language reminiscent of the checks and balances of American federalism. Translated into the 'systems talk' of Martin Landau, an elected Senate would act as one of the 'negative feedbacks ... preventing] stresses from building up to the point where some part of the structure breaks down.'38 But redundancy defined as a system of superfluous mechanisms to check error can also sound at other times like the more familiar Canadian practice of duplication. (In American terminology again, the Canadian response has overtones of John C. Calhoun's nullification doctrine: before the Civil War, Calhoun, a senator from South Carolina, maintained that a state might constitutionally suspend a federal law within its territory.) Because equal or more equitable membership in the upper house for the provinces is a companion feature of Senate elections, the protective role the Fathers of Confederation assigned the Senate was meant to be performed for all. In Canada, protection is redundancy under another name. A more basic question still is whether institutional change can ever resolve regional grievances. That depends upon how decisions are made, what characteristics enter into the discussion, and what weight is given each factor. Paul Thomas has studied the ways of parliamentary parties and has expressed reservations about institutional change as a solution for dissatisfaction that comes from 'differing visions of the country and the competition among governments within the federal system': [T]here is more regional input into party discussions than is popularly assumed. Only a few issues divide party caucuses along regional lines. Parties do search for accommodations of competing regional concerns when these arise ... [A]ll of this raises the interesting question of how far we should go with electoral reform and/or Senate reform as a response to regional alienation caused by a small number of emotional issues that are often misperceived as involving zero-sum competition between two or •JQ more regions.

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Thomas's view is not a prerequisite for treating Senate reform proposals with caution. Still, it highlights a source of the unease they create, since they do reach the heart of the bicameral problem. The critics are unrelenting in their indictment of Canadian federalism and of the place of the Senate in its operation. From the perspective of a resident of Alberta, and to a lesser extent Saskatchewan, the invidious, discriminatory, and exploitative elements of the National Energy Policy were indefensible. Another way of looking at the energy crisis and Ottawa's response is to view Canadian federalism as a system of interdependencies. In that sense of the term, the Senate can be considered a chamber of interdependencies. Acceptable or not to the critics or to provincial governments who seek more jurisdiction or greater security for the jurisdiction they already have, it is clear that reform of the Senate, in whatever form, will not alter the disparities of Canadian federalism that give rise to interdependency or the inevitability of distance that made federation necessary in the first place. The problem of Canadian federalism is one of incorporation; but not all such problems are the same. Federation can be used for contradictory objectives - to expand and to subdivide. Confederation attempted to secure both: on one hand, by creating the nucleus of a country that would eventually become a transcontinental state, and on the other, by reconstituting one of its founding colonies into two provinces, thereby freeing each to pursue its own self-determined policies. Thus, for Frenchspeaking Quebec, in addition to constitutional protection for its law and language, the provincial government, institutions, and populace could work together to create a distinct culture, society, and identity.40 The problem of incorporation has arisen again, although its exact meaning remains unclear, with regard to First Nations. In 1992 the Charlottetown Accord specifically guaranteed representation for Aboriginal people in the Senate. The recommendations of the Royal Commission on Aboriginal Peoples speak of 'a third chamber of Parliament' which would 'provide a means for the Aboriginal peoples of Canada to share in governing the country, while at the same time acknowledging [their] distinct interests, cultures and values.'41 Nothing is said in the report about the composition of the 'third chamber' or what tricameralism would mean for the operation of Canadian federalism. Indeed, Alan Cairns has commented that 'this lack of attention ... is extraordinary given that other students of treaty federalism, a variant of which RCAP proposes, assert that adequate representation is "by far the most critical objective.'"42 At its core, the Triple E proposal would seem to be

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territorially based and conceived. Much of what has been written about it supports that view. Yet occasionally a comment may qualify that perception. This happened at the Renewal of Canada Institutional Reform conference sponsored by the Canada West Foundation in 1992. The conference was part of the consultative process with the public preparatory to the referendum on the Charlottetown Accord. The conference report said that 'equity for provinces [was] not enough/ that delegates 'insisted that a reformed Senate must reflect all dimensions of the Canadian diversity/ that 'representation of the wide range of "nongeographical communities" now underrepresented in Canadian political life' be encouraged, and that 'this demand, could perhaps be summed up ... in a phrase: "Triple-E Plus/"43 Constitutional amendment is a test for every federal system. Canada was the last of the original major federations to secure agreement on a domestic amending formula. Even then, agreement was not unanimous; Quebec opposed the 1982 formula, sought (but lost) an opinion from the Supreme Court of Canada that the agreement violated its historic veto on fundamental constitutional change, and opposed the central government more strenuously in the last two decades than at any time in the country's history. A student of the amending process in the United States calls it 'a creative and revolutionary instrument/ while Australian scholars point to the double-majority requirement of their amendment process (a majority of the people in a majority of the states) to support their claim that the constitution rests on popular sovereignty.44 A study of the history of Canada's amendment process is a revelation for what it reveals about the country's federal system, no more so than with regard to the amending formula adopted in 1982. Prior to the Senate reference in 1979, when the Supreme Court said that 'it is not open to Parliament to make alterations which would affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process/ Senate reform was believed to fall within the legislative authority of the Parliament of Canada. After 1982, and according to section 42(1) of the Constitution Act, the powers of the Senate, the method of selecting senators, and the number of senators per province are subject to the general amending provision, which requires support in seven provinces (as shown by resolutions of the provincial legislative assemblies) that have at least 50 percent of the population. Thus, the Senate today is more entrenched and more protected from

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constitutional reform than ever before. But since 1982 there is a countervailing force at work in the form of a suspensive veto limited to constitutional matters. When provincial legislatures were incorporated into the assent process for amendments secured under sections 38, 41, and 42, of the constitution, the Senate's role in approval was reduced to a delay of 180 days in the passage of the resolution in question. In the words of Marc Audcent: The logic of this constitutional structure is impeccable. The House of Commons speaks for the Canadian people. The Senate speaks for the regions. But the provinces are the regions. In these circumstances, the Senate should not be able to veto an amendment that has been agreed to by the House of Commons and the affected provinces. By contrast, if a constitutional amendment does not involve the provinces, but is a solely federal matter to be made by Act of Parliament, it is the Senate that speaks for the regions. And it retains its veto to do so.45

The change in constitutional amendment procedures since 1982 has had a number of consequences for Canadian politics and federalism. One of the least noted is the belief that the Senate has all along played a secondary role in the constitutional amendment process. (An analogous but unrelated distortion is the view expressed by many young people that Canadians had no rights until the adoption of the Charter.) It has been suggested that prior to the 1982 patriation, constitutional amendments were almost exclusively the preserve of the House of Commons. Only members of the Commons initiated, examined, debated, and determined the course of constitutional evolution, with the Senate content to leave such matters alone. However, a historical examination of the role that the Senate has played over the past one hundred years does not support this position. Prior to 1982, the Senate was actively involved in the constitutional amendment process. Its integral role was not questioned and, on several occasions, it was the Senate that made the critical contribution to the process. For example, in Constitutional Amendment in Canada, Paul Gerin-Lajoie writes that 'the necessity of securing the concurrence of both Houses as a prerequisite to any constitutional amendment was never questioned.'46 Moreover, prior to 1982, the Senate often examined the constitution and constitutional issues, both by participating in special joint committees with the House of Commons and by conducting studies of its own. Examples are the Special Joint Committee of the

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Senate and the House of Commons on the Constitution of Canada (Molgat-MacGuigan), 1972, and the Special Senate Committee on the Constitution, 1978. Since 1982, the Senate has continued to investigate and study constitutional issues; it still has the power to initiate a constitutional resolution; and it still has an absolute veto over constitutional amendments relating to the Senate, the House of Commons, or the executive government of Canada under section 44 of the Constitution Act, 1982. Thus, rather than a secondary participant, the Senate has been actively involved in a broad range of constitutional debates and decisions, and has at times been the decisive voice. Rather than taking a laid-back approach to the constitution, the Senate has been a full partner in, and often the initiator of, many constitutional investigations, whose central concern is the welfare of the Canadian federation.

Chapter Six

Legislation

What the Canadian upper house does rather than for whom it speaks is the major source of the Senate's good report. Even the sternest critics compliment the senators for their work in the scrutiny, investigation, and revision of legislation. It is said repeatedly that the Senate is less partisan than the Commons, that its members have more political and other experience which sharpens their critical capacity, that Senate committees possess a reservoir of talent because of the continuity of membership, that members of the upper house have time and leisure to spend studying the details of legislation, that they are unconcerned about election results, and that the media display a profound disinterest in their work. Ironic confirmation of this last claim may be found in the 2001 amendments to the Canada Post Corporation Act to increase the power of customs officers which the government introduced in the Senate, according to the National Post, because 'in the upper chamber there is substantially less scrutiny of the proceedings by the public and the media.'1 Whether that surmise had any basis in fact is unknown. What is clear from a study of the upper house in action is that it has for a long time concerned itself with 'protecting private rights against arbitrary procedure by Ministers or officials.'2 The Senate is not reluctant to scrutinize government or administration. In fact, since the senators are appointed and have no political futures, in debate they often speak in an admonitory language. To describe them as scrutinizing, investigating, and revising legislation or policy conveys a detachment of almost judicial restraint that is not borne out by the facts. On the contrary, senators see themselves as parliamentarians, as an integral part of the legislative process. They also realize that, notwithstanding the absolute veto given them by the

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constitution, it is the House of Commons that is the confidence chamber. Members of the lower house are elected by and accountable to the people. That means that MPs are subject to popular pressure the senators do not experience. This is why senators are in a position to speak as the conscience of Parliament. To the sensitive this phrase may sound patronizing, but it is meant rather to emphasize both the independence senators have from direct pressure and the national perspective they bring to issues. This last characteristic does not mean they are inured to sectional or minority concerns - on the contrary, the constitution enjoins them to protect these interests - but that they place these interests in a national context. One of the stock charges brought against the Senate is that it is a 'somnolent' institution.3 In his study of the Senate between 1925 and 1963, F.A. Kunz discussed the upper chamber's inquiry function and concluded that its 'real value lies in the long-term education effect produced by the accumulated evidence and information of their proceedings.'4 Kunz categorized twenty-nine inquiries according to subject matter, date, areas of concern (for instance, economic or operations and administration). His general findings are reinforced by reference to more recent committee inquiries. For example, there is not a study of the Senate's committee work that does not refer favourably to two committees chaired by Senator David Croll in the 1960s and 1970s. The first, the Special Senate Committee on Aging, tabled its report in February 1966, which recommended a reduction of the eligible age for old age security from seventy to sixty-five and provision for some type of basic income. The following year the Pearson government introduced the Guaranteed Income Supplement. A decade later, Senator Croll chaired the Special Senate Committee on Poverty. The committee's hearings across Canada and its report, which proposed a guaranteed annual income and a 'single national official poverty line to provide a benchmark for measuring the extent and the trend of poverty in the country,' proved controversial.5 Regardless of controversy or the quality of the recommendations, the Croll committee never suffered media neglect, nor have other special Senate committees on the mass media, or science policy. Arguably, they have become the keystone for all later studies, parliamentary or otherwise, of these subjects. The quality of the investigations has led some defenders of the upper house to propose that the Senate be used as a more economical alternative to royal commissions as public inquiries. (As of 2002, nine years after the Chretien government came to power, the prime minister had created only a single, one-

112 The Canadian Senate in Bicameral Perspective

man commission, on the Future of Health Care in Canada. In fact, after much public criticism of its conduct, the Chretien government wound up the Somalia Commission of Inquiry in 1997.) Critics admit that special committees are useful, as are standing committees. Even those advocating major change, in the form of a Bundesrat-like second chamber for Canada, as the Pepin-Robarts Task Force recommended, have agreed that the present Senate provided 'substantive input into issues the House of Commons [did] not hav[e] the time to consider in depth.'6 But the same commentator concludes that because the Commons is the confidence house 'the Second Chamber never had the political clout to make use of the considerable power it holds on paper.' That comment strikes at the heart of the issue of a second chamber's role in the passage of legislation in the parliamentary system, although not all observers of parliamentary second chambers share this view. Consider, for instance, J.R. Lucas's opinion that 'the Lords are better informed and go into matters much more thoroughly than most discussion in the media and have the clout to ensure that what they say is heard by the Government.'7 Lucas believes that the strength of the Lords lies in its weakness - that is, the suspensive veto liberates them from the constraint the reality of an absolute veto imposes. Canadian censors of the absolute veto seem indirectly to share that view. In a non-elected chamber, representation may be an attenuated concept. The same cannot be said of the kinds of issues Senator Croll's committees considered or of the ten standing committees (as of 2001, they are Aboriginal Peoples; Agriculture and Forestry; Banking, Trade and Commerce; Energy, the Environment and Natural Resources; Fisheries; Foreign Affairs; Legal and Constitutional Affairs; National Finance; Social Affairs, Science and Technology; and Transport and Communications). The Atlantic fisheries, euthanasia and assisted suicide, the loss of denominational rights in education in Newfoundland, health care, and much more are eminently concrete touching the life and prosperity of Canadians. And those who appear before the committees - individuals, consumer groups, churches, trade unions, business organizations - do not speak in abstractions. The testimony seldom refers to jurisdictional propriety, although one of the features of witnesses is that their life and work, and, important to this discussion, the reason for their appearance before the committee, are often provincially rooted. Of course, all Canadians have a dual jurisdictional identity; still it is not the federal dimension that is predominant in the testimony,

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unless it is the argument that the Senate and Parliament more generally must don their armour to protect minority or sectional rights. What happens at a committee hearing? More than might first be apparent. As citizens (in their corporate and individual capacity) have an opportunity to vent grievances or express concerns, so do senators have an occasion to be educated. At the same time as citizens publicize and aggregate their interests, parliamentarians may mobilize consent, build external support, and even promote the legitimacy of some public policy. All of this is done in an atmosphere less pressured than the House of Commons, and less politically charged. Writing on the eve of the great debate on the Parliament Act of 1911 in the United Kingdom, a defender of second chambers, even reformed ones, maintained that they are 'well adapted for the discussion of topics ... which never ought to be regarded as within the domain of party-politics/8 Here is what could be called the 'deliberative' defence of bicameralism. Sober second thought might be considered a synonymous idea, but it is both a cliche and misleading, since much of the best work the Senate provides takes the form of thinking in the first instance. Carrying deliberation to its ultimate conclusion, to earlier theories that saw the upper chamber proposing laws and the lower chamber disposing of them, Neal Blewett, a former Labor cabinet minister in Australia, has made the following suggestion: It may be ... that instead of paying attention to reform of the House of Representatives we should accept that chamber as essentially a debating forum between two party teams, and particularly their leaders, designed to clarify choices for a mass electorate, and concentrate on perfecting the Senate as a House of legislative review and as the body for effective scrutiny of the Executive.9

In a system of responsible government, where accountability conventionally occurs in the lower house, Blewett's proposal will never be more than that. Which is not to say that the upper house as currently constituted in Canada has no analogous role. In 2000 the leader of the opposition in the Senate articulated the role he saw for the 'much maligned' and 'ridiculed' appointed body: '[I]n recent years [it] has by its own diligence substituted for the official opposition in the other place.'10 The reference here is not to the period of intense partisanship in the Senate in the 1980s, when Liberals under Senator Allan MacEachen's leadership set themselves in opposition to the govern-

114 The Canadian Senate in Bicameral Perspective

ment led by Brian Mulroney. Instead, it refers to the effects of partisan warfare in the House of Commons among which are inadequate and careless examination of legislation which the Senate must remedy.11 The Senate is picking up huge gaps in definition and in approach in legislation. [I]n areas where the House should have full sway, which is in committee reports and dissents from reports, the quality of legislation is getting lower. The standards of lawmaking and policy development are falling, not increasing. And the House of Commons is indeed suffering from a 'malaise/ and 'Parliament as a safety valve, as a check and balance against government legislation, isn't working the way it should.'12

Here is legislative, not representational, bicameralism, that has nothing to with anything so grand as sober second thought or investigation but with the elemental oversight of legislative drafting. It might be assumed that the level of amendments made by the Senate was a function also of partisanship. A study of 'the treatment of Commons bills in the Senate, 1957-88' offers no support for this proposition. Indeed, Andrew Heard found that 'the size of the government majority ... [is] the single variable, with a significant positive correlation to the number of bills amended.'13 The explanation, he maintains, lies in the importance the Senate attributes to its role in 'constraining majority governments/ even when that government and the Senate majority are identified with the same party. The Senate's role as legislative overseer is seen as neither inappropriate nor illegitimate. In fact, it is accepted in the Commons, in the Senate, and among the public that the Senate's concentration of talent and experience should be used to improve the quality of legislation. How that expertise is brought to bear upon legislation can either weaken or strengthen the Senate as an institution. For instance, until Allan MacEachen, leader of the opposition in the Senate, put a stop to it after 1984 a procedure devised in 1971 by Senator Salter Hayden, known as pre-study, allowed Senate committees to review draft legislation before it had been adopted in the House of Commons. Senate committee reports might include proposals for amendments and these, in turn, might be incorporated into legislation while still before the Commons. Rather than strengthening the upper chamber as a countervailing force in the legislative process, pre-study united both chambers' efforts. Critics within the Senate disapproved of pre-study because the work of a Senate committee took precedence to the chamber itself (that is, normal

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legislative review sequence was not followed) and because it compromised the independence of the Senate. In this regard pre-study carried with it the unicameral implications that accompany the suspensive veto.14 Commons acceptance of better-drafted legislation thanks to superior personal skill and less partisan competition is one thing; amendment of government bills is another. Here the charge that the Senate is illegitimate is encountered with full force. Arguably, this situation is no different from the one the Salisbury Convention in the House of Lords is intended to meet: 'the upper chamber would not seek to block legislation which enacted government manifesto commitments/ Although today's partially reformed House of Lords throws in doubt justification for retaining the convention; 'In a speech in November 1999, Lord Strathclyde, Conservative leader in the Lords, stated that '[m]ost of the conditions that gave rise to Salisbury have gone.'15 Nonetheless, if the Senate's web page in 2001 was to be believed, the Canadian upper house envisioned for itself a role comparable to the Lords' complementary relationship with the Commons: 'The Senate has a history of not rejecting bills passed by the House of Commons, and very rarely insisting on an amendment that the House of Commons rejected.'16 But that would be a false conclusion. Statistically, the number of public bills vetoed outright is small: forty-four for all of the twentieth century, with thirty-nine of those before 1940. The most famous veto early in the century was of the Borden government's Naval Bill. In 1913 the Senate refused to provide the British navy $35 million as a contribution towards its arms race with Germany. In the 1990s the Senate vetoed three bills that had passed the Commons: in 1991 an abortion bill intended to recriminalize abortion defeated on a tie vote (seven government senators voted with the opposition); in 1992 a third reading for a budget implementation bill which would have merged the Canada Council with the Social Sciences and Humanities Research Council (eight government senators joined with the opposition); and in 1996 a bill to cancel the Pearson Airport contracts, preventing the contracting parties from applying to any court for any civil action related to their cancellation, defeated on a tie vote. The number of bills that the Senate subjects to an indirect veto is similarly small.17 There are three types of indirect veto. First, when the Senate delays passage of bills by holding them in abeyance so that hastily-made decisions may be reconsidered. The Senate's delay of the free trade agreement with the United States in 1988 is a well-known

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example of a 'cooling off veto. The opposition considered that the government did not have a mandate from the electorate to legislate such a dramatic change to trade policy, which would have a profound effect on the economic structure and development of Canada. The Senate's delay led to the prime minister calling an election in order to seek a mandate from Canadians. Another example of an indirect veto, included here because of its subject matter, is Bill C-69, to amend the Electoral Boundaries Redistribution Act. Read the first time in the Senate on 2 May 1995, it was then read the second time and referred to committee. The bill was ostensibly introduced to improve the system for adjusting electoral boundaries after every decennial census. Conveniently, it also had the effect of setting aside the reports of the Electoral Boundaries commissions that were set up after the 1991 census. As a result, passing the bill would almost certainly mean that the 1997 election would be fought on boundaries based on the 1981 census. The Senate committee studied Bill C-69 for six months without reporting. The leader of the government in the Senate moved a motion to instruct the committee to report the bill to the Senate. That motion was defeated in the Senate on 21 November 1995. A similar motion to instruct the committee to report was defeated again on in December. Nine months after being sent to the Senate, the bill died on the order paper when Parliament was prorogued on 2 February 1996. The bill was not reintroduced in the subsequent session. The Senate did not vote against the bill per se, but by not proceeding with the bill, it applied a cooling off veto. The second type of indirect veto is the power of the Senate to amend bills which come from the House of Commons. To quote Raymond du Plessis, former law clerk and parliamentary counsel, in a 1987 note on the Senate's veto power: [W]hen the Senate amends a bill passed by the House of Commons, it is, in effect, exercising its so-called 'veto power/ because it is refusing to concur in the bill as passed by the House. If the House, in turn, does not agree with the amendments made by the Senate and the Senate decides to insist on its amendments, the bill will die on the order paper and the Senate can then be said to have exercised its legislative (or Veto') power to the fullest extent.18

This power to amend has often served to improve legislation. In a few cases, it had the effect of preventing a bill from becoming law. An

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example of the latter is a private member's bill, Bill C-216 in the thirtysixth Parliament, introduced by Roger Gallaway, MP (a proponent of Senate abolition), in an attempt to prohibit 'negative option billing' by cable companies. That method of billing was a function of the bundling of cable channels into packages. The concern expressed by many Quebeckers, and by many minority language groups outside Quebec, was that the bill might have the side effect of threatening the viability of French-language television programming in Canada. Specifically, the fear was that if marketed individually, French cable channels would not attract enough subscribers to be profitable. Bill C-216 arrived in the Senate in September of 1996, and was referred to committee in December. The committee recommended an amendment to the bill, and the Senate adopted the bill as amended in April 1997. The bill was sent back to the House of Commons, but only a few days before the election was called. One might infer that senators defeated the bill indirectly by amending it and sending it back to the Commons shortly before the writ was expected to be dropped. The power to amend is a function of the power to veto. To remove it would be to remove the legislative function of the upper chamber. To remove the Senate's absolute veto would in fact undermine its role, together with its utility as illustrated by the examples above. There is a third form of the indirect veto power, one that is more difficult to define. The debate surrounding bills in the Senate certainly has a chilling effect on over-enthusiastic governments. In other words, governments sometimes become accustomed to winning every vote in the House of Commons; after all, the government is usually formed by the leader of the largest party in the House. But because the Senate is known to defeat measures that are excessive, governments are less likely to introduce bills containing excessive proposals. This last form of the Senate's influence over the legislative process is an important element of the Senate's contribution to the smooth running of the federation. The example of the bill to reinstate capital punishment is one clear illustration. On the whole, each time the Senate has used its veto it has met major concerns, both of a majority of Quebeckers and of minorities vis-a-vis the legislation of the government of the day. The Canadian Senate held little attraction for the authors of the report of the Royal Commission on Reform of the House of Lords, and even less for some of its reviewers. According to John Vincent, a professor of history at Bristol University, Canada's upper house was 'a national disgrace.'19 Significantly the cabinet document on reform of the

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Lords presented to Parliament a year earlier by the prime minister, Tony Blair, spoke in more positive terms: '[Canada's upper chamber] has a high reputation for its select committee-style investigation/20 The significance lies in the contrast between the critics' view of the chamber's selection process and its admirers' estimation of its function. A parallel theme to the Lords' new, largely non-hereditary composition was the practical role it should play. According to the royal commission, that role was really an extension of what the Lords had been doing for at least forty years. Since the introduction of life peerages in 1958, the Lords has become a more professional body, as measured by daily attendance figures for all peers (reproduced in the report) for parliamentary sessions. Before 1967, fewer than two hundred peers regularly attended; between then and 1983, fewer than three hundred; since then, well over three hundred and, at the end of the 1990s, over four hundred. In addition, between 1970 and 1998, 'sitting hours almost doubled.' The report notes that a 'new sense of purpose and direction' arose, and it attributes the chamber's 'relative success ... [in] its new role' to 'key features of the present House of Lords.' These include procedural freedom (proceedings regulated by consensus); expertise (members from varied backgrounds bring 'practical understanding' to debates); time (absence of constituency duties means more time to spend on scrutiny of parliamentary business); independence (few members have political ambition; all have security of tenure); and non-partisan style (the presence of crossbenchers and the atmosphere of House business discourage aggressive partisanism).21 Reversing Bagehot's law of institutional development, which said that institutions begin as 'efficient' but become 'dignified/ the report maintains that 'in many respects, the House of Lords has over the past forty years made the [opposite] transition' (p. 18). As a result, the commissioners conclude that 'the current balance [between the two chambers of parliament] is about right and should not be radically disturbed/ The second chamber should be neither 'a revising body' only nor 'a fully bicameral' one that could force its will on the lower chamber (p. 33). As well, 'the second chamber should not be given additional powers in respect of constitutional issues' (p. 51), nor should its powers be increased 'in respect of any particular category of legislation' (p. 49). The legitimacy that was said to be wanting in a chamber the majority of whose members were eligible by accident of birth would now arise

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through the nobility of committee work. True, Wakeham envisioned a fifth of the Lords being elected from the regions and nations of the United Kingdom, but the authenticity of the upper chamber's actions lay not in any claim to representativeness but in the contribution the Lords made to the Commons. In all bicameral systems both houses share a common workload. The United Kingdom is unusual among the countries under study because, with the exception of the judicial function of the Lords acting as the country's highest court, the upper chamber has no specific tasks. There is no constitutional duty to protect sectional or minority interests, no assigned role in the amendment of the constitution, no provision for super-majorities. In fact, the royal commission report recommends (and the Blair government accepts) curtailing the Lords' absolute veto of regulation (in addition to legislation). In the eyes of some observers, a reformed Lords is a weakened Lords: 'With diminished powers and no democratic legitimacy, the risk is that the reformed House would rapidly become supinely ineffective in the very tasks that the commission claims it wants a second chamber to fulfil.'22 Putting aside the new representative role for the upper house, the report speaks of the Lords acting as a check and balance on the actions of government and of legislative majorities. While there may be a sense of malapropism in discussing the Lords' veto power and legislation after all, a suspensive veto is no veto at all, only a delaying device with regard to regulations or statutory instruments it has been a different matter. Neither of the Parliament Acts said anything about delegated or subordinate legislation in the form of regulations. The result, says one authority, was 'the curious anomaly ... [of] the House of Lords possess [ing] an absolute veto over the smallest minutiae of administrative procedure contained in a statutory instrument, yet over major Bills of first rate constitutional importance ... no special legislative powers beyond a 12-month period of delay.'23 The royal commission report notes that more than three thousand statutory instruments appear yearly. A Joint Committee on Statutory Instruments drawn from the two chambers reviews the instruments to see that they conform technically and legally. The report notes that since 1968 there has been 'no serious challenge to the convention that the House of Lords does not reject Statutory Instruments.' That observation becomes the rationale for a second opinion that 'there is not much point in the second chamber having a theoretically greater power which it does not in reality exercise.'24

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That is a view that finds no echo in Canada. In fact, the opposite position is much more likely to be heard. That is, an absolute veto exercises an anticipatory restraint. It poses uncertainty in a system that values predictability; for this reason it forces government, and ministers who are familiar with easy passage of bills through the lower house, to pay attention. In this context bicameralism is less about duplication than it is about concentration. The British royal commission report takes a different view: the second chamber should have the power to vote against an instrument but that vote might be overridden by a resolution of the lower chamber. In other words, the Commons must consciously reject the view of the Lords. Still, if adopted, it may reject the upper chamber's will on instruments just as it may do with legislation. What roles are left to the Lords? There are two, both of which are important: there is revision of legislation, and there is deliberation. While the suspensive veto is indicative of the latent unicameralism of the British constitution, the Lords has carved out an undisputed area of activity based on the breadth of knowledge of its members. When compared to the narrower range of careers of MPs plus their greater partisanship, the finding that 'the House of Lords is presently the best reviewing body we have' is understandable.25 It is estimated that the Lords spends more than half its time in legislative work, producing a large number of amendments - as many as two thousand a year - to bills that come from the Commons. Many of these are technical, and many originate from peers who support the government. The point is that the second chamber, even in Britain with the suspensive veto, allows for closer scrutiny than the pressure of the Commons often allows. By consensus there are two areas where the Lords excel. The first is on questions to do with the law, rights, and the judicial system. The Lords is the equivalent to a supreme court and its Speaker is the Lord Chancellor, who is also the head of the judiciary (and a cabinet minister). Generally, on matters of the law, much deference is shown by the press, the public, and the government to the opinion of the Lords. The second area where all commentators acknowledge the Lords has an advantage over the Commons is in European Community matters. While much of the Lords' debate is still done in committee of the whole, select committees, such as that on the European Community, are becoming more common. In this description of the work of the Lords, and the Canadian Senate too, a danger lies in the description itself. It does not communicate the

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spirit of the discussion that takes place. Frequently, the word 'debate' is used to describe what happens in this context; but that, as Donald Shell has written, is a misnomer. Rather, he says, 'a series of speeches are made in which speakers may answer, or may avoid, one another's points.'26 If he is right in this depiction, is it important? The answer is yes, and in a way that is almost never mentioned when discussing second chambers. Consider, for example, this description of Baroness Thatcher speaking in the Lords: She flailed away with her spectacles just as she used to do in the Commons; she stood in front of the front bench of the Lords as she used to stand in front of the front bench in the Commons. Somehow it didn't work. The power had gone ... Nicholas Soames, one of her loyal lieutenants in the old days ... [shook] his head. 'It's the same with Ted Heath. His whole style is based on being very rude to people and people being very rude back. He knows his act would never work in the Lords. What she used to flourish on was interruptions. In the Lords no one interrupts, she has nothing to play off.'27

It is important to understanding the Lords or the Canadian Senate to understand what is being described here. As opposed to the lower house, members of these upper chambers speak as individuals and not as representatives of anything or anyone. They are operating in a forum such as critics of parties say they would like the Commons to become. In this situation the prize goes to the literate and articulate, and not to the partisan. Argument rather than debate is essential to deliberation. Again, unlike the Commons, the outcome is more often unknown. In that respect, the atmosphere of the upper chamber shares something in common with a court room. Missing from the parliamentary upper chamber on both sides of the Atlantic is a strong government presence. The royal commission says it would be 'desirable if the second chamber were to continue to furnish several Ministers of State and at least two members of the Cabinet/28 Except in the rare situation where a Canadian prime minister looks to the Senate for provincial representation in cabinet to rectify the error of the electorate, there is only one cabinet minister in the Senate. And in both countries, senators and peers are acknowledged to be at the end of their political careers. Australia poses a different bicameral arrangement in that it has the world's first elected upper chamber. In addition, an elected upper house in Canberra must fit with an elected lower house. As a result, the

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tenor of Australian politics is going to be different from its Anglocounterparts. This has become evident in the decades following the introduction of proportional representation (the single transferable vote) for the selection of senators in 1949. Gradually the terms and electoral systems used to select members of the two chambers have worked together to sustain the emergence of different party systems in each chamber. Today, and for much of the last four decades, no governing party has controlled the upper house. The importance of minor parties in the Senate, says Campbell Sharman, is that 'they have fundamentally altered the dynamics of the legislative process in Commonwealth parliament/29 They are able to do this because they deny control of that chamber to the government located in the lower house. It is inconsequential that the operation of the chambers in Britain and Canada are similarly separated. As already noted, the job of the House of Lords, reaffirmed as recently as 1999 by the Wakeham Commission, is to complement not contradict the Commons. The Senate of Canada has never acquiesced in quite so passive a role, and the Supreme Court of Canada in 1980 emphatically assigned the Senate 'a vital role as an institution forming part of the federal system.'30 Nonetheless, the upper chambers on either side of the Atlantic have more in common with each other than with their Australian counterpart. With two popularly elected chambers, the Parliament at Canberra is the deviant case in any discussion of the so-called Westminster model. Arguably, the adjective 'deviant' may be inappropriate, since it suggests a departure from the Westminster norm; yet there is abundant evidence in the records of the Federal Conventions to indicate that delegates were aware of the conundrum they faced in imposing the institutions of federation on a system of responsible government. At this intersection Australia's founders chose neither one nor the other but both - that is, a constitution that would recognize the British inheritance and also acknowledge a colonial tradition that 'limited the concentration of power.' Part of this last was 'the inclusion of powerful upper houses as components of colonial legislatures.'31 Thus, while the Senate may be the institutional embodiment of the federal principle in Australia, its significance in the discussion of bicameralism is more than this. According to Cheryl Saunders, thanks to the Senate, the Australian Parliament performs a distinctive role. In one respect at least... the Senate has enhanced the quality of responsible government in Australia, by extending the real capacity of the Parliament

Legislation 123 to scrutinize the executive. In other respects the Senate detracts from the operation of responsible government, as generally understood. Legislation proposed by the government is not guaranteed passage through the Australian Parliament, even where it is an item in the government's election policy. In rejecting or forcing the modification of proposed laws, as well as in exercising its scrutiny function, the Senate operates as a check and balance in a system of government that otherwise tends to concentrate power.32

The intercameral bridge, so to speak, linking responsible government in a lower house and federalism in the upper, was the political parties. Until the introduction of proportional representation in 1949, party fortunes in the Senate echoed the government's electoral popularity in the House of Representatives. After 1949, and for reasons unconnected with the subject of this book, minor parties began to appear in the Senate, and the chamber grew increasingly independent of the lower house. In Saunders's phrase, the Senate became 'a Chamber with a will of its own/ and it is this sense of autonomy that is the main source of Australia's legislative distinctiveness. Nor is that distinction confined to the Commonwealth government: all the country's states, with the exception of Queensland, have popularly elected upper chambers (legislative councils) and for some, such as Western Australia, the upper chamber is deemed to hold a 'vital, if unrealized, place in our constitutional fabric.'33 From the perspective of those in government, the attractions of upper chamber autonomy pale alongside the problems they create. Paul Keating, Labor prime minister from 1991 to 1996, viewed the Senate as a 'spoiling chamber' and its members, on one occasion at least, as 'unrepresentative swill' (this last label alluded to the Senate's staggered and at-large elections.34 Governments have no reason to favour opposition, and it is surely a well-known feature of Australian politics that governments can be (and in 1975 one was) indirectly brought down by the actions of the Senate. That is a dramatic and rare example of intercameral antagonism. More common and representative of the Australian system is the culture of political accommodation that pervades the Senate. Central to this development has been the appearance of minor-party senators (in 2000, twelve senators came from the minor parties). However, that alone is insufficient to explain what has happened in Canberra. More germane is Saunders's observation that 'the infrastructure to support a powerful Senate began to be put in place in the early 1970s, in the form of a

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system of Senate committees.'35 The committees have become the sites for 'strengthening government-citizen connections' and for 'broadening participation in the deliberative process.'36 At one level, the same might be said to happen in Canadian Senate committee meetings: the private enters the public sphere. Yet there is a fundamental difference. In the Canadian Senate minor parties have never been present; this is a stock criticism of the appointment process. Although there are some independent senators, that is not the same as partisan senators who hold the balance of power and who press the government. In a study of second chambers instigated by the British Foreign Office before the First World War, one of the correspondents (from Spain) commented that 'it is not customary [there] to press controversial questions to an issue between the two Houses. Such questions are either quietly dropped or taken up again when the parliamentary situation permits.'37 An antique observation but an accurate comment on the difference between Britain and Canada on the one hand, and Australia on the other. In Australian bicameralism, controversial questions are 'pressed.' An interesting contrast between the senates of Canada and Australia occurred in their handling of a similar piece of legislation, the Goods and Services Tax, in 1990 and 1999 respectively. The Canadian legislation led to the appointment for the first time in the country's history of so-called additional senators (under section 26 of the Constitution Act, 1867), to a report of the Senate Banking Committee to reject the GST, and to a bitter filibuster before passage of the bill. By contrast in Australia, according to Campbell Sharman, 'the Senate debate in 1999 over the goods and services tax, for example, represents a good example of the detailed legislative scrutiny and creative compromise on legislative policy engendered by the representation of minor party and independent senators, but it also reflects the accumulation of many years of experience in devising procedures, both formal and informal, to cope with the negotiations required.'38 The conclusion is that proportional representation in the Senate promotes upper house independence and robust bicameralism. Uhr says that the resulting 'culture of accommodation greatly enhances the Australian deliberative process,' while Arend Lijphart argues that as a result of proportional representation, and in comparison to the Westminster model, 'Australian democracy [is] slightly, but by no means insignificantly, more consensual.'39 Independence is explained by more than the electoral reform of 1949, however. In their magisterial Austra-

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lia's Commonwealth Parliament, 1907-1988: Ten Perspectives, Gordon Reid and Martyn Forrest note several examples of 'the Senate's early claims to independence of Executive Governments.'40 Yet in the 'age of minority/ as some have described the period since the major parties lost control of the Senate, the prominent feature of second chamber independence lies in the manner in which business is conducted. Does the resulting compromise mean that there is less partisanship than before, or than is found in Britain or Canada? Paradoxically, that does not appear to be the case; the discipline now found in the major parties in the Senate appears to have grown in consequence of the rise of the minor parties. Nor can this phenomenon be discussed in intracameral isolation. In Canberra, as in Ottawa and Westminster, upper house members of the major parties are, by definition, members of their respective party's caucus. Partisan loyalty transcends institutional independence. This is all the more the case in Australia where up to a third of the cabinet ministers sit in the Senate. Compared to the other parliamentary systems under review, ministers are, according to one commentator, 'Trojan horses' who carry with them 'an inherent and insoluble conflict of interest.'41 Their job is to get legislation through the Senate, not hold it up; after all, in Australia, ministers who are senators or senators who would like to be ministers have, or anticipate having, political careers. In this context, it is the prime minister who has the power, and whose perspective and calculations are influenced less by events in the Senate than by those in the House and the party. Politically ambitious senators look beyond the walls of the chamber. By contrast, Canadian senatorships signal an end to political expectation. In short, the Australian Senate displays strong cleavages at the same time that it operates a consensual approach to the exercise of power. These circumstances reward senators who have brokerage skills. That is an expertise for which there is less demand in Canada or Britain; there intellectual capital is at a premium. The authority of Canadian Senate committees rests in their superior (to the House of Commons) intellectual rigour and content. The structure of second chamber committees in the respective countries reinforces this contrast. For instance, in 1994 the Australian Senate 'restructured its committee system by establishing a pair of standing committees - a References Committee and a Legislation Committee - in each of eight subject areas/42 half of which replicated the subject areas of the Canadian Senate committees (for example, foreign trade, finance, legal and constitutional, and envi-

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ronment). The Australian legislation committees consider bills or draft bills referred to them and also monitor the performance of government departments and agencies. Most significant for non-Australians, they 'inquire into and report upon estimates of expenditures referred to them.' The explanation for this line-by-line examination goes to the heart of the Australian constitution, which is that the Senate possesses the power to deny supply. The same may be said of Canada's Senate but with this provisio: in Australia the power is real. It has been used, and the possibility of its use is treated seriously. It is no exaggeration to say that part of the reason for the defeat of the republican referendum in 1999 was the failure of the presidential model to provide for some limitation on the Senate's power to block supply and, equally important, some diminution of the Crown's reserve power to check an adventurous Senate. Each legislation committee has a government chair and an effective government majority. Reference committees are a different matter, they inquire into and report upon general matters falling within the area of their mandate. Thus, investigating Australia's legal aid system falls to the Legal and Constitutional References Committee. Most strikingly, however, reference committees are chaired by non-government senators (six to the major opposition party and two to the largest minority group). Government members of the reference committees are in a minority. Australian precedent has proved to be no precedent in the appointed second chambers being discussed here. Drawing on the previous discussion, several reasons might be suggested. One that has not received attention but which is central to understanding the difference between perceptions toward bicameralism in Australia as opposed to Canada and the United Kingdom concerns the meaning and machinery of government accountability. It is a signal theme of constitutional scholars in Australia to see proportional representation in the second chamber as a means of 'preventing] the virtually complete suppression of accountability that occurs when governments have that control.'43 How might this be done? According to John Uhr, there are several methods: the non-government parties may 'keep the heat of accountability on the administration' through Senate Question Time, which attempts 'to share around as evenly as possible the exposure time enjoyed by questioners and replying ministers'; or they can make use of Senate rules that give the upper house a comparative advantage in extracting information from the government/ Among these rules, he says, is the use of orders

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directing the auditor general to investigate matters on the Senate's behalf, a relatively new practice begun in the 1990s which could signal a 'revolution' in the use of so-called 'parliamentary officers' as the investigative agents of opposition parties.'44 Elsewhere, using the metaphor of an umbrella, Uhr says there really is no unified Parliament; rather there are parliamentary institutions of which the houses and their committees, the political parties and the independents, the 'specialist parliamentary clerks' and officers of Parliament, like the auditor general, are all components. This particular Australian view is not shared abroad, and for reasons that are important to the discussion of bicameralism. The disentanglement of legislative institutions allows for escape from executive control in Canberra. It also grants to proponents of this version of bicameralism a crucial role to the second chamber. It is not only a house of review, but also one that holds government to account. One of the great weaknesses in the general discussion of bicameralism is the lack of a coherent theory about the role of second chambers. The accountability thesis in the Australian literature supplies that want. More than that, it becomes part of a larger theory of the Commonwealth constitution - that Australia is 'properly a federal republic rather than a parliamentary democracy.'45 Proposals to reform the Senate of Canada place representation ahead of accountability. The distortion of regional sentiment in Parliament is blamed upon the Senate's appointed character. Yet the two objectives are connected. In 1981 the Canada West Foundation published a report on regional representation. It promoted an elected but hermetic Senate: unlike the Australian upper chamber, Canadian senators would be barred from cabinet appointment; all votes would be free; and government would be responsible only to the Commons. Ordinary legislation rejected by the Senate could be overridden by repassage through the Commons using a supermajority. In a tightly argued review of the proposal, Australian political scientist Brian Galligan warned that 'a system that provides the way encourages the will.' As an example, he noted that in consequence of giving the upper chamber the power to reject money bills, as the task force recommended, the Canadian Senate would be a confidence chamber.46 Some years later Canadian Senator Norman Atkins echoed the same view: 'Anyone who believes that an elected senate ... will not act to thwart the will of the House of Commons doesn't understand political realities.'47 Despite parallels between the Australian and Canadian constitu-

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tions, legislative bicameralism in each country takes different forms in response to different political realities. In a review of Galligan's book A federal Republic, Sir Anthony Mason, former chief justice of the High Court of Australia, observed that 'Galligan's discussion is a valuable corrective to the superficial notion that the three concepts [majoritarian democracy, responsible government, and parliamentary sovereignty] are the dominant constitutional principles/48 It would be hard to find a comparable sentiment expressed in Canada, particularly as regards the over-ascribed importance of responsible government. A greater commitment in Australia to institutional balance and a requirement for popular consultation demonstrate fundamental contrasts between the two federal, parliamentary monarchies. Nowhere is this contrast more evident than in section 57 of the Australian constitution which provides for the resolution of deadlocks between the two houses of Parliament. The annotated text of The Australian Constitution, issued by the Constitutional Centenary Foundation in 1997, notes that the 'underlying strategies [of section 57] are to provide time during which a disagreement might be resolved; to allow the voters themselves some say on controversial bills and, if disagreement continues, to enable the members of both Houses to sit together (most unusually) to make a joint decision/49 While section 26 of Canada's Constitution Act, 1867, allows for the appointment of a limited number of additional senators, presumably in a deadlock situation such as the one time the provision was used (in 1990 when the Goods and Services bill was being filibustered in the Senate), it does not provide for reconciliation through authentication by the parts of the constitution. Rather, in Canada, the executive sitting in the lower chamber can enforce its will on Parliament and the people. At the same time that section 57 sets Australia's constitution apart from Canada's, it also highlights the difference between the Americaninfluenced bicameralism of Australia and that of the United States itself. In Washington, intercameral conflict is resolved through congressional conference committees, what someone has called 'the third House of Congress,' instead of joint sittings or, in extreme cases of deadlock, dissolution of both houses.50 Australia may be institutionally divided, but not so divided that the institutions cannot be forcibly reconciled, by using either section 57 or the Crown's prerogative of dismissal to get rid of a government that could not obtain supply from Parliament. In the American constitution there is no government in the British-Canadian-Australian sense of the term. There is no control, no centre to

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enforce its will, no single will to enforce. The word gridlock is often used to describe the nature of government that results; patience, though less frequently explored, is the virtue required to break the political impasse.51 A feature of politics in the parliamentary systems under review is the absence of patience shown by governments when second chambers appear ready to question (and delay) their legislation. In the 'age of minority/ Australian governments appear to have accepted, through legislative necessity, the virtues of patience. In the United States, conference committees are an historic and necessary part of bicameralism. Around 20 percent of the bills before Congress end up in committee. The United States Senate is a distinctive body among upper chambers; not only are the branches of government separated in the United States but, within the legislative branch, the two houses are equal. Only the House of Representatives may initiate tax legislation, but the Senate has the clear power to amend. Nonetheless, the Senate is endowed with exclusive constitutional functions in respect to consenting to treaties and federal appointments. It was these functions that led some interpreters at the constitution's outset to see the Senate as an assembly of state advisors to the executive. Whatever the original understanding, time disproved that interpretation. Even in the years before the Civil War, and certainly in the many decades since, the Senate has never acted as a house of the states in a manner that would commend itself to reformers of the Canadian Senate. Contrary to the view that the US Congress brings both popular and geographic perspectives to bear on legislation as bills pass through the House of Representatives and the Senate respectively, bicameralism in Washington is as much about subjecting legislation to the review of 'two different sets of participants in the legislative process/ American senators have been national not state politicians, be they Henry Clay and Daniel Webster or Mike Mansfield and William Fulbright. The reason for this is that the Senate is a small chamber (fewer than one-quarter the number of congressmen); American political parties are comparatively weak, particularly in terms of controlling the political careers of senators; senators are independent and individualistic in the realm of policy initiation to an extent unique among upper chamber members elsewhere; and they possess immense resources that set them apart from House members which can be used to promote extra-state (including presidential) political ambitions. Also, as opposed to congressmen, who are elected for only two-year terms, senators can take time out from campaigning and turn their attention elsewhere. Taken

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together, these characteristics constitute a countervailing influence to the claim that there are no 'truly national policies' in the United States.52 The literature on the American Congress is immense, in part because the story it tells is contradictory and episodic and the view of Congress's power relative to the executive fluctuates. The 1970s were the years of congressional oversight as opposed to legislative initiatives; the 1990s, on the contrary, witnessed the 'Contract with America' and talk of a Republican legislative mandate.53 It is always premature to expound authoritatively on legislative bicameralism in the United States. In Great Britain and Canada the balance for long has tilted toward the executive in the lower house and, as a result, made the upper house a dependency of that institution. In Australia, on the other hand, the balance in the last few decades has inclined in the opposite direction, although it would be a misnomer to describe the Senate of Australia as independent. Certainly, it is not as independent as the US Senate in its potential to direct and deflect the course of government. Nowhere but in the United States are the legislature and executive rivals. Institutional jealousy pervades the branches of government and the two houses of Congress. And it is a jealousy which, when combined with the personal ambition and institutional autonomy that characterize government in Washington, raises questions about the applicability of America's constitutional experience: "The fact that bicameralism was widely imitiated while other institutions were not stands in the way of a theory that relies too heavily on one country's historical compromise.'54

Chapter Seven

Responsible Government

The principle that informs responsible government is antithetical to the theory of second chambers. In Australia the tension between the two is overt, while in the United Kingdom it has all but disappeared before the triumph of popular government. In Canada both the reformers of the Senate and the country's highest court see a role for a second chamber as a check on majoritarian-based responsible government, or, in Lord Hailsham's phrase of a quarter-century ago, 'elective dictatorship.'1 Responsible government in the United States does not have the same categorical meaning as it does in systems based on the British model, where it is the first principle, with the fusion of executive and legislature its outward form. Yet while the principle has special meaning for these systems, it is not always the same meaning. For example, Lord Durham's recommendations, which led to the implementation of responsible government in Canada after the mid-1840s, lessened interest in bicameralism (regularly associated in the first decades of that century with republicanism) and directed attention to the lower house.2 Thus, responsible government in the strict constitutional sense - that is, government commanding the confidence of the elected chamber - is synonymous with concentrated power, and its practitioners suspicious of the dispersion of power associated with bicameralism. Yet, from a different perspective - that is, accountability or review - it can be argued that bicameralism helps to enforce responsibility. (It will be recalled, however, that in the early decades of the twentieth century, American advocates of unicameralism disputed this view; bicameralism, they said, blurred the fixing of responsibility by allowing each chamber to blame the other for unpopular decisions.) Nonetheless, responsible government is about more than accountability, it is about

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the quality of the decisions made. Defenders of second chambers like to attribute to them the function of sober second thought. This view is voiced in particular on behalf of appointed upper houses such as the House of Lords and Canada's Senate. For instance, in England the Appointments Commission, created in response to a recommendation of the Wakeham Commission on reform of the Lords, is charged with ensuring that at least 30 percent of the new members are women and at least the same percentage are men. At the same time, it is directed to seek representation in proportion to population for minority ethnic groups. The first of the 'people's peers' were announced in April 2001. The Times reported that 'of the more than 3,000 applicants, 81 per cent were men ... The Appointments Commission wrote to 10,000 organizations urging them to inform their members and staff ... [Yet] all of the initial 15 had nominated themselves.' And again: 'despite expectations that the list would include some ordinary people, it comprised seven knights, one lady, three professors, three charity bosses and a captain of industry.' In reply to press criticism, the commission's chairman, Lord Stevenson of Coddenham, said: 'You haven't got your hairdresser in this list... [o]ne [of our criteria] is that the human being will be comfortable operating in the House of Lords.'3 Putting to one side the unstated assumptions about the utility of quotas, the royal commission obviously embraces the belief that the composition of the chamber is an important determining factor in the quality of its work. In fact, this is not an innovative idea, since the report had much the same thing to say about the unreformed Lords after the introduction of life peerages in 1958: 'The blend of experience and expertise found among members of the House of Lords means that on any given issue there are usually a number of persons with relevant practical experience and knowledge or with long experience of grappling with the same policy issues.'4 The same argument has been advanced, perhaps a little less sweepingly, in support of the composition of the Canadian Senate: that is, senators who have expertise, for instance in banking or commerce, when combined with long tenure in the Senate, are knowledgable critics of legislation. Moreover, when compared to members of the Commons, it was worth the senators' time to be informed, since their votes are less 'predetermined' by the whips and they have more opportunity to translate opinion into action. Indeed, on this last point, MPs would be shocked to learn how easy it is for senators to get items into debate. The problems of private members' bills in the Commons are legion and legendary.5

Responsible Government 133 While this description may not fit every appointed member of the upper houses of the two countries, it applies to the majority of the regular attendees. To the extent that it does, sober second thought follows. That is one contribution bicameralism makes to responsible government, but it is not the only one. Another is the upper chamber's capacity to delay the passage of legislation. This is true even at Westminster, where the Lords have only a suspensive veto over bills. Delay is so simple a concept that the motivations leading to and the consequences flowing from this 'stopping mechanism' are easy to ignore. Also easy to overlook is the source of the delay - separate action by two legislative bodies: 'Separate action means, at a minimum, sequential action, and sequential action very likely means different actions'6 This is particularly true in a system where party discipline is sufficiently strong to reaffirm a government's legislative priorities and, therefore, limit the second chamber's potential ultimately to thwart its will. An example in Canada in 2000 was Bill C-20 (an act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference). The Senate devoted extensive time to debate and committee hearings on the bill's provisions, particularly section 2.1 that granted the House of Commons (but not the Senate) authority to determine whether a province's referendum question was clear and whether following a referendum there was 'a clear expression of a will by a clear majority of the population of that province.' At one level, the purpose of the prolonged Senate debate was to express dissatisfaction at its own exclusion from determining a question of great constitutional moment; at another, it was to voice dissent as to the constitutionality of the bill and object to a pattern of government behaviour that depreciated the Senate's importance.7 That the government of the day would agree to amend the terms of the bill was never a strong possibility, especially when there were vacant Senate seats that the could be filled with new appointments. Still there was another purpose which, even though the Senate failed to alter Bill C-20, could be called a contribution to responsible government: it informed public understanding of the terms of the bill by subjecting constitutional authorities to questions about the effect the bill would have upon Parliament, bicameralism, and federalism. Again, senatorial expertise was a principal feature of the enterprise; but, more central still, was the Senate's ability to delay the legislation and to focus public attention. Few acts possess the drama of the Clarity Bill, partly because anxiety about secession had grown as a consequence of the near-loss by the No

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side in the Quebec referendum of 1995 and partly because in its reference opinion of 1998 the Supreme Court of Canada had acknowledged that secession in and of itself was not an unconstitutional act. No bill in the last decade has been more central to a government's sense of purpose than this one; and no government in recent memory has been as committed as the Chretien government to seeing its passage through Parliament. This was why debate in the House of Commons lasted less than two weeks and why witnesses who appeared before its special committee were restricted to ten minutes to present their views and why members had only ten minutes to respond. In the Senate, however, the matter was treated quite differently; debate lasted three months and witnesses before the Senate special committee had, on average, an hour and a half to present their views and answer questions. Clearly, the time the Senate devoted to examining the proposed legislation presented an obstacle to the government's timetable, and at the end of the day the Senate voted to pass the bill. Yet the conclusion to be drawn from this incident is not the one critics of the Senate usually draw: that because it failed to thwart the government, the Senate was ineffective. On the contrary, as one inveterate critic, the National Post, observed in an editorial: "The surprising thing about the Clarity Bill... is how drastically the public debate about it has changed since the Liberal government introduced it seven months ago ... For this remarkable development, we have the Senate to thank.'8 It is hard to imagine a more telling affirmation of the value of bicameralism in moulding opinion by heightening an awareness of issues and by promoting debate. The editorial in the National Post, as well as opinion pieces published in the weeks preceding the vote, confirm this assessment. Nor is the general assessment uniquely Canadian. Consider, for example, the description of the Australian Senate's Estimates and Standing Committees offered by its president in 1990: '[T]he wide range of inquiries which have been undertaken ... have increased the knowledge of participating Senators, focused interest upon the subjects that the committees have addressed, and increased the information available to the public about the aspects of government in Australia.'9 C.E.S. Franks maintains that Canadian governments experience 'a peculiar problem' mobilizing consent for the policies they promote. The reason is that with rare exceptions, like the House of Commons committee hearings on patriation of the constitution and the content of the Charter, policies arise out of bartering and interest group interaction.

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This process leads to policies emerging fully formed before the public. Thus the stages by which a bill becomes law neither 'educate the public nor encourage consent formation/10 One might disagree with this analysis, but it is not easy to dismiss 'the problem' that prompted Franks's concern in the first place. There is abundant evidence that responsible government in Ottawa does not mobilize consent: for instance, in the matter of firearms and languages, pornography and the National Energy Policy, there was no public consensus. In 2000 it might have been an exaggeration to say, along with constitutional scholar Peter Hogg, that 'every public policy issue in Canada for the last 30 years has become a constitutional issue.'11 Still, the observation and the period of reference, which is the same as Franks had in mind, suggest a new perspective for studying a topic which has been more customarily limited to inquiries that focus on federal-provincial relations. Even at the same time as its own credibility is subject to question, the Canadian Senate is in a position to help mobilize consent, especially on constitutional issues. The Clarity Bill is one example; another example of delay contributing to deliberation and thus to responsible government is the chronology of Parliament's handling of the constitutional resolution to allow Newfoundland to reform its denominationallybased school system. Term 17 of the province's Terms of Union with Canada permitted a continuation of the church-run school system after Newfoundland joined Confederation in 1949. The proposed amendment, which fell under section 43 of the Constitution Act, 1982 and under section 47 (an amendment giving the Senate a delay of no more than 180 days, at which time the House of Commons might readopt its original resolution), came to Parliament twice between 1996 and 1998. The first time, the Senate insisted on an amended version of the resolution it had received from the Commons; however, the House persisted in its original resolution, which ultimately led to provincial legislation that was declared unconstitutional by a Newfoundland court, thus necessitating a second resolution. During debate on the second resolution, senators made frequent reference to the way they had handled the first motion. A theme of these interventions, and of those by witnesses who appeared before a Special Joint Committee on the Amendment to Term 17 of the Terms of Union of Newfoundland, was that House of Commons consideration of the first resolution had been 'too hasty/ particularly for a constitutional matter, and most particularly for a matter that affected minority rights. A sense of unfairness was common to the testimony. The follow-

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ing comments, first by the leader of the opposition in the Senate (John Lynch-Staunton) and, then, by the leader of the government in the Senate (Sharon Carstairs) communicate the tenor of that opinion: The House of Commons, it will be remembered, rammed through the Term 17 resolution without significant debate or any hearings, Fortunately, the Senate insisted on both, including hearings in Ottawa and St. John's. This led to amendments to the Term 17 resolution which, when sent back to the House, were rejected. I am convinced that, had they been accepted, a second resolution would not have been necessary. The Government of Newfoundland, however, decided to amend its school system even contrary to the original resolution, with the result that we all know. I think that our study of Term 17... was a most valuable contribution to the debate and study of that constitutional amendment in that the House of Commons did not debate it at length and held no public hearings. We did hold those public hearings. We began that process on June 13,1996, and we tabled our report on July 17,1996. We met in that period of time for 14 meetings spread over nine days ... [w]e did manage to complete an intensive study of the constitutional amendment, even though we had only a very short period to time in which to do so.12

The author of an article on 'Majority Rule and Special Majorities' has argued that 'in as far as the presence of a qualified majority leads to a greater measure of negotiation between parties and factions, the effect may also be to slow down the pace at which decisions are taken ... It is worth emphasizing here, since exception is sometimes taken, not to the narrowness of the voting margin by which legislation has been passed, but to the speed with which it has passed through all its stages as a bill/13 Bicameralism, even where the upper chamber possesses only a suspensive veto (on all or on some classes of legislation) can perform the same function. The United States' constitution provides for bicameralism and for qualified majorities, although in the latter instance only with regard to the upper chamber, for reasons that go back to the early view of the Senate as an advisory body to the president drawn from the states. The power of the Canadian Senate to delay or block legislation is one abolitionists ignore. Because of the nature of its selection, the Senate is dismissed as: 'unrepresentative' and 'partisan dependent/ and therefore lacks virtue. And yet, if abolitionists had their way, would not some provision for institutional delay be needed to ensure that the

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(now) unicameral parliament gave proper attention to the legislation before it?14 Deliberation and delay contribute to the quality of responsible government in parliamentary systems just as they contribute to the sense of legitimacy of decision and outcome in congressional systems. In other words, there is more to responsible government than what the textbooks usually say - that is, ministerial and collective responsibility. Perhaps a more inclusive perspective is necessary in a study of bicameralism where the majority of attention focuses on parliamentary systems of the British model. For, as is clear in British and Canadian textbooks, '[A] Government defeat in the Lords [or Senate] does not constitutionally involve an issue of confidence in the Government as such a vote would in the House of Commons.15 Yet if that were an exhaustive explanation of the meaning of responsible government, then there would be no place for upper chambers. While it is possible for responsible government to operate in a unicameral legislature (witness New Zealand), bicameralism broadens the base of consultation. This is certainly true in a country like Australia, where, according to Geoffrey Sawer, the 'present committee system makes [the Senate] much more than a house of review.' In fact, in Sawer's opinion, the superiority of that system has put 'the Senate as a whole ... in the position which at Westminster is possessed by the committees of the House of Commons.'16 Significantly, the Australian Senate is a partisan political house. While its members' opinions may be more muted than those in the lower house, selection for the list ballot and campaigns both introduce a partisan tone into legislative debate that is absent in appointed bodies. More than that, the presence of minor parties committed to securing specific objectives, as opposed to the broad church of major parties, encourages short-term bargaining; some critics describe it as 'buying off' support.17 Whether this practice produces more acceptable or considered policies than emerge from upper houses with a different composition is for others to judge: the important point lies in Australia's having two elected and partisan chambers. For Canadian Senate reformers who either promote non-partisan elections (the Canada West Foundation) or non-partisan nominations (the Senate provisions of the Meech Lake Accord), the Australian Senate and its relationship to the House of Representatives offers a cautionary tale. It is questionable whether those who have subdued 'political obligation' and are 'more inclined to act in support of national and regional interests as they see them,' would contribute to responsible government, however defined.18

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A topic more traditionally associated with responsible government is the subject of the mandate. Even here, however, when linked to bicameralism the mandate appears a conventional idea in an unconventional setting. Responsible government, in the sense that the executive is responsible to the lower house of the legislature and may be removed when it loses the confidence of that chamber, is far from being an absolute guide to conduct in legislatures at Westminster, Ottawa, or Canberra. The meaning of a concept derived from 'a combination of law, convention, and political practice' is, said the New South Wales Court of Appeal in 1996, 'not immutable.' In that instance the Court of Appeal was asked to determine whether a state minister (who was also leader of the government in the Legislative Council) could be suspended from the council for failing to produce state papers at the order of the upper house. (The court found the council had that power, as well as the power to enforce its call.) In his decision, the chief justice noted that the meaning of responsible government depends upon numerous factors. He observed that 'a newer term, accountability, has entered into political discourse. Its meaning, also, is protean'19 Harry Evans, clerk of the Senate of Australia, argued in 1999 that accountability embraced a lesser standard than responsibility: governments are accountable to Parliament and 'responsible to the electorate at election time.' Yet governments seek to avoid parliamentary accountability. It is for this reason that the Australian Senate has a special role to play, one 'outside the theory of party government.' Thus, in Australia, the Senate is a major constitutional mechanism 'to constrain the power of government.'20 In this Australian version of bicameralism, the second chamber becomes the guarantor of responsible government. This is a presumption which the upper chambers of Great Britain and Canada, and for that matter the United States, would not assert. Implicit in it is hierarchy and the superiority of the second chamber, which neither the history nor the theory of bicameralism in those countries would support. Robert MacKay said long ago that Senate majorities in Canada 'have never advanced any claim to make or unmake Governments, whatever the Senate's legal powers over legislation.'21 A more recent study reached the same conclusion: 'The Senate was not to be a confidence Chamber itself.'22 The line between saying the Canadian Senate is not a confidence chamber and then maintaining that there are specific circumstances where the Senate might exercise its absolute veto may be thin. Still, there is a difference, one that is evident when the discussion turns

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to a distinctively Australian debate - the so-called mandate wars waged between the House of Representatives and the Senate. According to John Uhr, this siege is 'the latest episode in the ongoing dispute over the relevance of "the Westminster model" as an explanatory or interpretative device for Australia's "Washminster" government.'23 It is commonly understood in systems based on the British parliamentary model that lower houses may have a mandate. The permissive 'may' is used advisedly, for the extent to which the mandate prevails in Canadian politics today is open to question or, at least reinterpretation, in light of the Liberal party's Red Book (and its sequels) during the 1990s. In Great Britain, the sovereignty of the people manifested through the lower house of Parliament supports the theory of the mandate. At the same time, understandings such as the Salisbury Convention, that 'the second chamber should respect a governing party's general election manifesto' reinforce both the concept and the claimant to the mandate.24 A reformed upper chamber, one that could claim to speak for 'the regions and nations' of the kingdom, might be viewed as in conflict with that particular convention and with the general conventions of the constitution that recognize the pre-eminence of the House of Commons. For the foreseeable future, the upper chamber at Westminster poses no challenge to that aspect of the status quo. In the United States, where political parties are more organized than foreign observers sometimes think but much less disciplined than found in the Anglo-parliamentary systems, the concept of the mandate is at best tenuous and partial. Newt Gingrich's Contract with America in the mid-1990s was different not only in substance but in reliability from Tony Blair's New Labour election manifesto later in the decade. A sense of the qualitative difference between conceptions of the mandate on each side of the Atlantic is captured in the following comment by James L. Sundquist. Speaking of congressmen newly arrived in Washington after an election, he says: 'They have listened to thousands of [constituents]. They have presented their platforms, explained and defended policy positions, and received approval. Their mandate to fulfill their campaign promises, whatever those may have been, is clear.'25 Compared to Canadian, but not British, systems, Australian politics are ideologically aligned. None of the many proposals for reforming Canada's Senate has considered the effect an elected Senate using a proportional representation electoral system might have on both the partisan composition of the chamber and on the resulting relationship with the lower house of Parliament. In light of the fact that Canada has

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had a long history of third or minor or regional or protest parties active in general elections, this is an important omission. The Labor-nonLabor cleavage in Australian politics, with doctrinal divisions over such things as public ownership and regulation of the economy, permeated the Senate; indeed, proportional representation coupled with enlarged parliamentary chambers appealed to the Labor government of the day 'with its promise of electoral success to sitting House members, who would now have safer seats, as well as sitting senators/26 Even before the introduction of proportional representation, two ideologically distinct partisan battalions competing in two sets of popular elections offered the ingredients for intercameral warfare. But it was the arrival of the minor parties and Independents in a system of strong bicameralism who posed both a theoretical and practical challenge. For instance, according to Richard Mulgan, 'it was the Democrats' claim to a counter-mandate [deriving from their own campaign promise] that weakened the government's unique claim to a mandate.'27 Equally as important as the issues at stake in the mandate wars - that is, was the Senate's mandate specific or general; was its responsibility limited to reviewing legislative bills or did it have a general duty to scrutinize the actions of the executive? - was the constraint a claim to a mandate imposed on a minor party in the Senate.28 Proportional representation may be applauded for broadening the range of interests that find expression in the Senate, but its influence is not always expansive. Consider, for example, the following remarks of an experienced leader of the government in the Senate, John Button (Labor): It is very difficult to negotiate with the Australian Democrats on the certain understanding that you will get legislation through. At times, the same sorts of difficulties occur with the independents... The other problem is that some of the independents and some of the Democrats often salve their commitment to single issue politics - and that is what a lot of them are about - by declining to participate in votes at all or in committees of the Senate. From time to time we will get single issue independents - and I include the Democrats in that - declining to participate in votes, which makes the task of negotiations even more difficult. These sorts of negotiations, certainly in my earlier time as leader in the Senate, depended very much on leaders; for example, the interaction between me and Fred Chancy [Liberal] or Don Chipp [leader of the Australian Democrats]. Negotiations depended very much on those sorts of things.

Responsible Government 141 With the passage of time and the decline in the respect for the major political parties, more complex negotiations have been required. In that process of complex negotiations, you get into the mess of individual Ministers trying to negotiate their legislation with independents and Democrats.29

An elected upper chamber in which the government does not command a majority is not the same thing as an elected lower house in the same situation. At least, they are not the same thing if the example of the first is the Australian Senate and of the second, the Canadian House of Commons. Australia has no experience with minority government, as Canadians understand that term; either Labor or the Liberal party and their allies dominate in Canberra. Canadian experience with influential minority politics is usually in the context of aroused regional sentiment. While under the workings of proportional representation in Australia minor party and independent senators may disproportionally come from smaller states, the policies they promote are not regional in the sense identified with Canada's Progressives, Social Credit or the Bloc Queb&rois. It is commonly stated in Canadian political literature that minority governments are responsive or sensitive to public opinion. One of the questions the Australian example of double elected representation raises is whether a minority situation in the upper chamber has the same effect as minority government is reputed to have on Canada's government. John Button's description of the operation of bicameralism in Australia's peculiar partisan alignment - where the minor parties that hold the balance in the upper house have no counterpart in the lower house - prompts questions about what provisions Canadian Senate reformers plan in order to deal with a similar contingency in Ottawa. Another factor that has received little attention, but which is central to realizing some claim to responsible government, is control of chamber proceedings. The dependence upon minor parties in the Australian Senate means that the government control of the timetable is always in question. Minor parties carry weight in Canberra because proportional representation produces partisanly balanced Senates. Balance is not a longterm feature of the Canadian Senate. On the contrary, a distinguishing feature of its membership is the cyclical rise and fall in the numbers of Liberal and Conservative senators in slow tandem with the partisan complexion of the prime ministers who are also the prime nominators of senators. On past occasions, and as recently as the government led by Pierre Trudeau, special attention was given to reinforcing the dwindling numbers (on that last occasion) of Conservative senators. The

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theory that informed this practice was succinctly expressed by a former Liberal leader of the government in the Senate, Raoul Dandurand: 'I believe that the nearer the parties in this Chamber approaches [sic] numerical equality in the divergence of opinion which separates the parties, the better it will be for the country, and we have been striving... not to annihilate the party in opposition to the ministerial party.30 Altruism applied to the appointment process may enhance the Senate's critical capacity; it is doubtful whether it fortifies its contribution to responsible government. The absence of ministers in the Senate with specific portfolio responsibilities (as well as those who have shadow opposition responsibilities) remains a principal contrast between the Canadian and Australian houses. John Button has noted that Australia's senatorial ministers are always in a minority in their respective caucuses; still, their presence with designated tasks personalizes upper house politics, and attracts media attention, features whose absence is palpable in Ottawa.31 It would be wrong to suggest that the Canadian Senate never functions as an organ to instil government accountability. In fact, the Special Senate Committee established to examine the agreements leading to the lease of Pearson Airport and its subsequent cancellation has been described as just such a 'study.'32 The Australian Senate is a house of review with a twist — passive oversight may merge into active enforcement of accountability. Or at least that is one conclusion to infer from the literature. Here is where bicameralism in Canberra (and for that matter in some of the states) deviates from its conventional understanding in Ottawa and Westminster. Here, too, is bicameralism's fork in the road, so to speak: one leading to a dispersion of power, enforced by culture, history, geography; the other to its confinement, enforced also by culture, history, and geography. On this journey, Canada followed the road blazed by the United Kingdom, although not to its final destination of a suspensive veto for the upper house. Canadian senators could never say, as some of their Australian brethren have, that they have a counter-mandate. An appointed chamber has no grounds on which to make such an assertion; the best its members might claim is 'to assure [themselves] that the Commons have [a] clear mandate.'33 In the year 2000 in the debate on the Chretien government's Clarity Bill, Canada's authorities reinterpreted the relationship between bicameralism and responsible government. Stephane Dion, president of the Queen's Privy Council for Canada and minister of intergovernmental affairs, defended the provision of the bill that excluded the Senate

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from sharing with the Commons the determination of clarity in any subsequent provincial secession referendum. 'My main argument/ he told the Special Senate Committee on Bill C-20, 'to explain why the Senate has a different role from the House of Commons ... is connected with the fact that the government is responsible to the House of Commons.' To the mind of one critical listener (Senator Grafstein), that meant 'the Constitutional principle of responsible government leads to very different duties and roles for the two houses of Parliament.' This was an interpretation Mr. Dion accepted when he appeared before the same Committee for a second time: '[T]he attribution of a different role to the House of Commons is based on the fact that only the House of Commons can, by a vote of non-confidence, prevent a government from entering into constitutional negotiations or interrupt such negotiations.'34 Neither the political wisdom nor the political rationale for this legislation is mysterious. The complexity of Canadian federalism explains all. What it does not explain, however, is the logic that distinguishes the Clarity Bill, which to become law requires the approval of the three parts of Parliament but by whose terms only one part of Parliament (the Commons) will determine the clarity matter. Much of the evidence taken from leading constitutional scholars turned on such questions as whether the bill constituted an act of delegation by Parliament to one of its parts and, if so, whether such delegation to 'one house [was] unprecedented' and inexplicable, since 'the same object could be achieved by the conventional route of joint exercise of legislative powers by the house and the Senate'; whether the 'radical role' being assigned to the Commons '[to sit] in judgment of a valid provincial law') had any constitutional support; whether in addition to compromising the division of powers it violated the separation of power; whether than being simply a piece of ordinary legislation, it constitutes a constitutional amendment, and, thus, must receive sanction of a majority or of all provinces; and whether the trilateral relationship being affected was not Commons, Senate and executive but Commons, Senate and provinces, for as Roger Gibbins, President of the Canada West Foundation observed: "The very argument that the Senate can be excluded is an argument the provinces must be included.'35 While all of these questions may be seen to bear on the general topic under discussion, it is the exclusion of the Senate in the determination of the clarity question and, more particularly, the grounds the government gave for that exclusion that sparked senatorial criticism. The

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minister of intergovernmental relations invoked precedent to assuage concern; authorities such as Peter Hogg, dean of law, Osgoode Hall Law School, who saw the bill as constitutionally sound, assured the senators that 'the only power you have lost is the power to participate.' Section 1 (5) of the bill appeared to support this disenfranchisement, since the House of Commons was directed 'to take into account... any formal statements or resolutions' by the Senate, provincial governments or legislatures, and representatives of the Aboriginal peoples of Canada, as well as 'the views of all political parties represented in the legislative assembly of the province whose government is proposing the referendum on secession.' Members of the Senate themselves possessing distinguished constitutional reputations dissented from the minister's view, that 'this bill does not remove one prerogative of the Senate.'36 Senator Gerald Beaudoin voiced a concern others felt. 'If the Senate accepts not to be in the picture this time, and we do that 10 times in a row, the powers of the Senate will be very, very reduced.' His colleague Michael Pitfield echoed the unease: '[WJhen ... you propose to give a major institution of the Constitution different treatment than it has historically received, and you treat it apart from other constitutional instruments of the time, it seems to me you are effectively changing it.' Senator Serge Joyal distilled these sentiments into six words: 'We disappear as a legal creation.'37 The Senate of Canada is part of the machinery established to determine the national interest. In the Quebec Secession reference, the Supreme Court of Canada advised (paragraph 50) that there is 'an internal architecture' to the constitution. One component of that structure is the Senate, the necessary element to the federal accord of 1864. Yet, as a scholar critical of the bill and the government's defence of it stated: 'One notion that comes through ... is that somehow in the secession reference democracy at the federal level is identified with the elected people in the House of Commons.'38 It is important to keep Canada's federal difficulties distinct from the subject of bicameralism. For there is no federation that does not have a second chamber and none where the second chamber does not acknowledge the units of the federation. Canada is unusual in this respect only: it is regions not provinces (although two provinces constitute regions in and of themselves) that are recognized in the constitution of the Senate. With the exception of appropriation measures, Canada shares in the Anglo-American bicameral tradition where the two houses are equal: 'L'esprit de la Constitution, on devrait traiter le Senat et la

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Chambre des communnes d'une meme facon/39 Yet despite this element of theoretical and procedural commonality, the Canadian approach to bicameralism is unique. Earlier in this book, it was argued that at its centre Canada is a double federation - two nations and ten units (excluding Aboriginal peoples and the three territories). Here is a principal reason why there can never be agreement on Senate reform; interests overlap; institutions play more than one role. The Clarity Bill severs that dualism by removing from the upper chamber one of its historic functions - to protect minorities - of whom among the most historic and central to the preservation of national unity are residents of Quebec. As a result of Bill C-20's passage into law, determination as to a province's will in the matter of its secession from Canada lies with an institution whose most pronounced features are disciplined parties and dominance by members from two of Canada's ten provinces. As opposed to an upper chamber whose manner of selection and term of appointment assured some measure of autonomy, accountability in the matter of national unity now resides with the lower house. Thus, the Clarity Act confers the determination of the matter upon only one chamber of the bicameral parliament and, even then, not the one customarily associated in the literature on federalism with that responsibility.

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PART III

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Chapter Eight

The Canadian Senate: What Is to Be Done?

The preceding chapters have compared the concept of bicameralism in other Anglo-American jurisdictions, with special attention to Canada's Parliament and, especially, its upper house. This chapter will look almost exclusively at the Canadian Senate and at proposed improvements to its performance. Not all upper houses are the same: the United States Senate is the most powerful, the House of Lords the most exotic (Gilbert and Sullivan devoted one of their operas, lolanthe, to it), the Australian Senate the most unexpected since it constitutes a strong, elected upper house in a parliamentary system, and the Canadian Senate the most controversial and criticized. For instance, in none of the first three is abolition of the chamber suggested as an option since in none does the upper house lack acceptance. That does not mean that the action of senators elsewhere is uncontroversial: the role of Australia's Senate in the drama leading to the dismissal of the Whitlam government in 1975 or the repeated test of wills that takes place between a United States Senate and the House of Representatives or between the Senate and the White House stand as proof of that claim. By way of contrast, in the United Kingdom, the House of Lords may throw a government off its stride but poses no permanent obstacle to a government determined to realize its objective. This is true regardless of the political make-up of the government.1 Thus among second chambers, the Canadian Senate is the exception, and on several grounds. First, it is an appointed body, once with life terms and now to age seventy-five; second, it is an all-powerful body (with the customary limitations on financial initiatives understood); and third, it is a model of restraint in the exercise of its powers. The

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story of the GST aside, the rare occasions when the government does not see its will prevail underlines the Senate's generally cooperative nature. Like the Lords, the Canadian Senate is regularly celebrated by its members and a few academics for the breadth and quality of its investigative and scrutiny functions in committee, but just as regularly ignored by the media for this activity. At the same time, while less theatrical in appearance than the Lords (there have been no Canadian 'enrobed bishops'), the Senate too is the subject of 'media sensationalism and public fascination with the idiosyncrasies and quirkiness of the... Chamber.'2 The House of Lords' problem from the last quarter of the nineteenth century onward was what its role should be once the House of Commons had come to represent the popular will through the domination of electoral politics by mass parties.3 In time, this problem was corrected by the introduction of the suspensive veto (1911) and, much later, by the passage of the Life Peerages Act, 1958. The Wakeham Commission has characterized the arrival of life peers as a modernizing development because it diluted the influence of hereditary peers. Critics described the act as deeply reactionary, since 'it served to prolong the enfeeblement of the Second Chamber by deflecting rising criticism of the continuing appointment of hereditary peers and to strengthen the premier's powers of political patronage.'4 Life peers did not contradict the first principle of the Lords' composition, that it was a hereditary body, or the ensuing fact that most peers were Tory by birth and persuasion. This bias in partisan loyalty disguised another feature of the Lords that is often ignored: the contribution its members make to incorporating the provinces and principalities that comprise the United Kingdom. The Wakeham Commission recommends that a portion of the new Lords be elected in the regions and nations of the United Kingdom. Popular election will be new but not the incorporative function of the new peers. Indeed, the history of the British Parliament of the last two centuries has to be seen against the incorporative motif: in the late nineteenth century the Irish Nationalists and in the late twentieth century the Ulster Loyalists posed a threat to the unity the House of Commons symbolized - a threat the presence of non-English peers at Westminster helped moderate. And yet, the principle of territorial incorporation has never been articulated forthrightly in discussions about the Westminster Parliament. At best, it has been treated as an afterthought. The reason for belabouring this point is that territorial incorporation

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was a central theme at the creation of Canada's upper house in the mid1860s. Representation in the Senate was Confederation's answer to the concern the Maritime provinces and Quebec experienced at retaining 'adequate representation' in Parliament, either because the Maritimes saw a large measure of self-government surrendered at Confederation, or the French Catholics of Quebec sensed their vulnerability as a large but nonetheless minority population. As a federal negotiator of Newfoundland's Union with Canada said six decades later, accession would 'tend to strengthen the centrifugal forces within the Dominion.'5 In varying combinations, language, religion, and schools - for instance, in New Brunswick and Manitoba, Ontario and most recently Newfoundland - have destablized the bargain on which Confederation is based. Part of the potential for these issues to disrupt lay in the failure of the Fathers of Confederation to provide a basis for adjustment. Some federal theorists see constitutional amendment as a test of the resilience of federalism.6 If so, Canada fails the test: it had no general domestic amending formula until 1982, and since that date 'there have been more unsuccessful than successful attempts to amend the Constitution of Canada.'7 Constitutional amendment is never easy in federal systems; in the United States there have been only twenty-six in 214 years, in Australia forty-nine attempts but only eight successes in the century since the Commonwealth's creation. Still, Canada's constitution, with its multiple amending formulas and even sometimes needed unanimity, is extraordinary. Rather than enabling change, the formulas appear to prevent it. To be clear on this matter, it is useful to summarize the amendment terms. Part V of the Constitution Act, 1982, sets out a general amending procedure (section 38) that requires resolutions of the two houses of Parliament and seven provincial legislatures with 50 per cent of the population; another formula for specified matters (section 41) requires unanimity on the part of Parliament and all ten legislatures; and a third procedure (section 44) permits amendments in relation to the executive government, Senate and House of Commons by ordinary act of Parliament. In addition, An Act Respecting Constitutional Amendments (SC 1996, c.l), although an ordinary statute, prohibits the government from proposing certain amendments to the Constitution unless the amendment has first been consented to by a certain configuration of provinces. The result is to lend the political veto to Ontario, Quebec, British Columbia, the Atlantic provinces and the Prairie provinces.8 Finally, it needs to be recalled that under section 47(1) 'an amendment to the

152 The Canadian Senate in Bicameral Perspective

Constitution of Canada ... may be made without a resolution of the Senate... if... within one hundred and eighty days after the adoption by the House of Commons of a resolution ... the Senate has not adopted such a resolution and if ... the House of Commons again adopts a resolution.' This suspensive veto is logical because the determination of the fate of the amendment passes to the provincial legislatures. Amendments and bicameralism both involve delay and maybe even defeat. It would be illogical, therefore, to require constitutional change to clear both hurdles. Thus the Senate may delay but not prevent constitutional change. Technically this is true, but it does not go far enough in explaining the Senate's role, for during the amendment process the upper house offers a forum for both public participation and public understanding. The House of Commons may do the same thing, although past evidence demonstrates that Senate committees are more accessible and less subject to government-imposed deadlines. The Senate was the great mollifier of 1867. The terms of the bargain awarded jurisdictional and financial dominance to the central government but also placed the protection of sectional interests in the Senate and - at a time when the Lords' absolute veto was beginning to be contested - conferred an absolute veto on the Senate as well. As a protector of sectional interests the Senate was not alone - there were the courts and the cabinet - nor was it the most effective defender. Controversy over sectional and minority rights often arose as a result of thirdparty actions, such as by provincial governments, over whom the upper chamber had minimal influence. It is a refrain of critics of Canada's upper chamber that the Great Compromise (on the composition of the two houses of Congress), achieved at Philadelphia, recognized the equal claims of population and territory; here, they say, was a precedent the Canadian founding fathers chose to ignore. It is true that equality of representation of the new provinces in the Senate was never an option for serious discussion. And for a practical reason: the Senate was intended 'to fill out' the representation deficit in Quebec and the Maritimes. (Arguably, the Senate 'corrective' might be resorted to once more at the beginning of the twenty-first century in order to redress the weight of two new sections - the Prairie provinces and British Columbia - which by any comparative test of federal upper chamber representation would be found wanting in their current Senate numbers.) One of the arguments advanced in favour of the higher age and property qualifications for

What Is to Be Done? 153

senatorial appointments than for members of the House of Commons was that these criteria would guarantee a higher quality of representation from the regions in terms of the professional and life experience of the senators selected. Continuous tenure in the Senate versus high turnover in the Commons reinforced the quality of representation. More than that, the Fathers recognized the claims of population in the lower house but allowed for weighted territorial representation in the upper, so that both provinces and regions might be recognized. The result was that each of the three regions, of which two were provinces in themselves, had almost as many senators at the outset as all the original states of the American Union together had senators in 1787. In this difference there is no intended claim to superior achievement on the part of Canadians, only a plea to acknowledge the difference between the two upper houses and to recognize the role the Canadian Senate was given to accomplish this representational end. A number of reasons may be suggested for explaining why the Senate did not perform as the Fathers of Confederation expected it would. Most significant were the long periods of one-party rule that followed Confederation and the expansion of the national party system into the provinces of Canada. The emergence of disciplined parties and a political executive that controlled the House of Commons made impossible any sense of balanced power, as there was in the United States with its separated institutions, or in Great Britain with its monarchy, hereditary aristocracy ensconced in the Lords, and the Commons. The independence of the Senate 'alike of the people and the Crown' was, because of its creation through patronage appointment, viewed by critics as a counterfeit independence.9 The concept of balanced powers may be inapplicable to Canada's constitutional structure, but it may be inappropriate to other systems as well. Balance conveys a mechanical (Newtonian) analogy of planes and surfaces. When applied to the British constitution of responsible government, the mechanical metaphor, in the following case the image of a clock, must be abandoned. That at least was Issac Issacs's view when the delegates in the Australian conventions of the 1890s were weighing the comparative advantages of the British and American constitutions: The view formerly entertained with regard to the British Constitution, that deadlocks were an element of safety, and rather to be courted than guarded against, has now been abandoned, and ... we have ceased to regard as a proper form of government a constitution in which the hour and the

154 The Canadian Senate in Bicameral Perspective minute hands and the striking part should all be governed by different mechanisms, with no provision for the various indicators marking the correct and the same time.10

Chemistry rather than physics would offer more illustrative metaphors in a study of parliamentary bicameralism, for chemistry suggests an interaction between bodies. At the same time, to the unscientific mind it implies mutability rather than a fixed state. And change, contrary to popular opinion, is a feature of the Canadian Senate. "It is a fact, that the Senate - almost alone among our political institutions - has evolved to meet new needs and challenges.' That is Senator Lowell Murray's opinion, and as supporting evidence he uses the familiar Senate committee studies but also the Senate's autonomy, compared to the Commons, to provide 'some check on the power of the cabinet and its Commons majority without challenging or offending today's democratic culture.'11 Senator Murray's proposition that the Senate is a resilient institution would go some way to help explain one feature of Senate reform proposals: that they forever remain proposals, reformers being long on talk but short on action. This is more than a debating point; there is something fundamentally at issue in the perenniality of the debate. Of course, there are practical reasons why reform is difficult. One is the different roles the Senate is expected to perform: oversight, protection, innovation, representation, and more. Reforms can have contradicting effects depending on which role is being evaluated. Another is the current amending formula which requires a majority of the population and a majority of the provinces to amend the Senate's powers and the method of selection of its members. A third reason, of much older vintage, is the restrictive influence of the House of Lords. While it is true that that limitation disappeared when the Asquith government forced radical change on the Lords in the form of the Parliament Act of 1911, for decades before then the colonial and Westminster upper chambers were bound in a self-limiting relationship. Consider, for instance, the assertion by English Liberal George Grote (MP for London, 183241) on the eve of the 1837 Rebellions that He would not degrade the House of Lords by a comparison with the Legislative Council of Canada to the House of Lords ... The hon. Member [George Richard Robinson, Conservative (Worcester)]... had ... alluded to the division of the population of Canada into two distinct races, and had

What Is to Be Done? 155 contended that the Legislative Council was necessary for the protection of the minority. He could not admit any such necessity. The House of Assembly represented not only the majority, but the whole of the population of Canada, and though the decisions of that body were necessarily determined by a majority, the interests of the minority were not the less duly represented. If, indeed, a separate legislature was to be established for every separate class or minority, every principle of a representative government would be totally disregarded. Those hon. Gentlemen who maintained such a doctrine with regard to Canada were bound, in consistency, to apply the same principle to Ireland, and to support a proposition for the repeal of the Union.12

The implication of change in Canada's upper house for the precedent it might pose for House of Lords' reform was another disinclination for those in Canada who wanted reform of the Senate. As important as these reasons might be, there is a more fundamental explanation for why Senate reform languishes. If metaphors such as the one about equilibrium are misapplied and misleading, then what constitutional image does fit the Canadian case? The answer is none. Or several. The Canadian constitution is about fiscal federalism and linguistic federalism; it is about two nations (perhaps) and First Nations; it is about executive federalism and representational federalism; it is about the common law, the civil code and an entrenched charter of rights. Canada is made up of a number of little constitutional images in only a minority of which the Senate (and thus its reform) bulk large. This proposition can be pressed still further: it is not the Senate that fails to figure in the constitutional scheme but bicameralism because, except for the upper chamber in Ottawa, Canadians have before them only unicameral legislatures. This is why Senate reform proposals never succeed, why 'interest dies down, the reform promised ... forgotten.'13 In truth, the Triple E proposal may not be forgotten but interest in it is at best episodic. Despite the amount that has been written about the proposal, it too remains a little constitutional image. Too much is left out; for example, Triple E has nothing to say to Quebec or First Nations. As with the German Bundesrat before it, Triple E is all about foreground; there is no depth to the proposal because there is no depth to the analysis. How will the new Senate work with the House of Commons? What provision will there be for breaking deadlocks - will it be joint sittings, referendums, or double dissolution? How will campaigning for elec-

156 The Canadian Senate in Bicameral Perspective

tion to one chamber affect campaigning (and party organization) for the other. Will political careers in the two chambers overlap and, if so, to what effect? How well will the symmetrical Senate the Triple E system proposes serve Canada's asymmetrical federalism? Here, as with all Senate reform proposals, it is necessary to look behind the rhetoric in order to move from theory to practice. Especially is it necessary to acknowledge what is never discussed - that the Senate is one part of a bicameral legislature whose houses share a common workload but play different roles. Until that is admitted, reform proposals will encounter objections from the lower chamber and the government who is its master, on the grounds that any rehabilitation above will come at the expense of those below. Arguably, an elected (partisan) Senate might add to the prime minister's already large powers. But the prime minister is not the House of Commons and, in this case, both chambers would be weaker.14 An elected Senate poses more than an institutional problem; there is a theoretical challenge as well. It is no coincidence that Australian defenders of Senate power are also advocates of popular sovereignty. Do Canadian proponents of an elected second chamber share the same theoretical predisposition? And, more importantly, are they prepared to accept the consequences that flow from that argument? Angus Hawkins maintains that the theory of parliamentary sovereignty demands the exclusion of the sovereign and the people. Would not a theory of popular sovereignty demand the inclusion of the people in practice as well as in words? In short, would it not demand a reconceptualization of Canada's British-inherited constitution? One piece of evidence invariably cited to sustain the claim of popular sovereignty in Australia is the referendum-centred amending formula. Could Canada move to a constitution based on the people rather than the Crown-in-Parliament and maintain its current legislatively based amendment formula? Popular sovereignty is not a selective phenomenon in Australia. On the contrary, Australians are inordinately committed to the principle of equality in the counting of votes and the drawing of constituency boundaries. This is a shared national characteristic that long pre-dates the creation of the Commonwealth and is, perhaps, the country's political hallmark. Certainly, in Australia claims are neither acknowledged nor, even more surprising, made to 'effective/ or 'traditional,' or 'historic' representation. Putting to one side the problem that Canada's amending formula presents any move toward Senate elections, there is a more fundamen-

What Is to Be Done? 157

tal question: whether an elected upper house is desirable. The answer to that question demands an answer to a prior question: what role should the Senate play in Canada's constitution? Despite criticism, the Senate is credited on all sides with doing good work. But is this the work a second chamber should be doing, and is it work an elected house would do better than an appointed one? Once there is consensus on the role of the Senate, then it is possible to move on to discuss the characteristics an upper house with this role will have, including, for instance, whether it should possess an absolute veto. As the matter currently stands, there is no logical argument either for retaining the absolute veto or replacing it with some variant of a suspensive veto. John Turner, the only political leader to study the Senate (it was the subject of his honours thesis), observed that 'the Senate has never overstepped its bounds ... and scarcely deserves the tirades hurled against it on this score. Therefore, a limitation on the "veto" power would merely be a further emasculation of the chamber without any compensatory cure of an abuse.'15 Thus, the central problem for the Canadian Senate and for Canadian bicameralism is a conceptual one. Until there is agreement on what the Senate is supposed to do, there will be no agreement on its modification. More than that, until there is inevitable recognition that change to the composition of the upper chamber will necessitate change to the lower one also, and that the pair of alterations must be seen as valid if they are to gain acceptance - until this occurs, the prospect of reform is slight. In its place, agreements such as the Charlottetown Accord, which proposed equal Senate representation for every province but reduced power for the chamber and more seats in the Commons for the populous provinces, will not command the support they require for approval. Unless there is a logic to compensatory adjustments, as there was in the distribution of seats by senatorial region in 1867 coupled to representation in the lower chamber, then institutional redesign will not happen. Yet there is a practical need to do something in order to enhance the upper house and thereby make it a constructive element of Parliament within current constitutional arrangements. Thus, the discussion that follows concerns improving the Senate by non-constitutional means. To date, reformers have addressed the Senate as a one-dimensional institution with the result that a discrepancy prevails between the content of the reform they propose and the context in which it is to take place. The great expectations associated with large-scale institutional change are

158 The Canadian Senate in Bicameral Perspective

as inappropriate as they are unrealizable. Better a gradual, cautious strategy to make the most of the current Senate. Before turning to this question, the meaning of the phrase 'nonconstitutional' should be clarified, since, while convenient, it is imprecise. Some of the improvements cited below are constitutional in that they technically include unilateral amendments to the Constitution that can be made by Parliament (section 44 of the Constitution Act 1982). These changes, whether by an act of Parliament or modification of the Rules of the Senate, require only the development of a clear vision among parliamentarians in order to bring about results. (Of course, what cannot be done by this means, for instance, is to add new senatorial regions and more senators to correct perceived imbalance in the present upper chamber.) Role and Functions of the Senate of Canada Much can be done without constitutional amendment to make the Senate a more constructive and credible institution. The first step is to determine what the Senate is supposed to do, or what proponents of change want it to do, and then recommend how it might be altered to secure that result. Adopting this procedure for institutional design imitates Louis Sullivan's dictum for early twentieth-century architects: 'Form ever follows function.' It also reverses the process followed by most reformers: usually, for example, those who say the Senate should have a suspensive veto only to delay rather than an absolute veto to kill legislation, or those who campaign for an elected Senate, or start at the other end. Grounding their arguments on 'democratic' or 'representational' propositions, reformers give no thought to the effect the changes they advocate will have on the operation of the chamber nor on the operation of the lower house. By contrast, Viscount Cranborne, the first Conservative opposition leader in the House of Lords after the Labour Party came into power in 1997, acknowledged the importance of bicameralism to second chamber reform: 'Any examination of Parliament should start with the House of Commons ... Once we have addressed the House of Commons - and only then - would it make sense to think of the House of Lords.'16 If, as will be argued below, the Senate is found to have a role to protect regional and sectional interests, a role the Fathers of Confederation expected it to play, then loss of the power to veto legislation the Senate deems a threat to those interests, and which it also determines

What Is to Be Done? 159

was fundamental to achieving the Canadian federation, would render the role useless. Similarly, to recast the composition of the Senate so that each province had an equal number of senators would also have direct implication for its role as protector of minorities. In this discussion the statement by the Supreme Court of Canada in the Senate reference must be recalled once more: 'The smaller provinces only consented to Confederation on the understanding that there would be a regional Upper House.'17 The primary function of the Senate is to complement the House of Commons. Because the Senate is not a confidence chamber, it does not compete with the House of Commons in its most important elective function - that is, to make and unmake governments. Rather than compete, the upper house completes the work of the lower house. It is from this activity that the deliberative role of the Canadian Senate or the House of Lords in the United Kingdom arises. Redundancy is as central an element of bicameralism as it is of federalism, and Canadian senators, who are free from the pressures of constituency and electoral duties, have the time to consider and become educated on issues in a manner different from that of members in the House of Commons. However, duality does not mean repetition; nor does it imply superfluousness. It is one of the paradoxes of modern politics in parliamentary systems that the upper houses are in a stronger position today to carry out the deliberative work of Parliament, which Walter Bagehot described as its 'expressive,' 'teaching,' and 'informing' functions, than is the House of Commons to which Bagehot originally assigned the tasks.18 In the study of bills, the Senate has an advantage over the House of Commons because of its small numbers, because with shorter and fewer speeches, procedure is informal and flexible, and because senators have more time, freedom, and expert knowledge as well as greater independence than do members of Parliament. That independence is a product not only of subdued partisanship (every commentator on the Senate remarks invidiously upon the adversarial tone of the Commons and its general absence in the upper house) but of distinctive procedures. The manipulation of House committee chairmen and members has no equivalent in the Senate. Where volatility characterizes the former, stability and continuity mark the latter.19 The Senate's purpose is to deliberate, to build up its legislative case through debate, the taking of testimony from witnesses, and the collection of a broad range of opinion from Canadians in all walks of life and all parts of the country. In the political marketplace, the Senate's capital, so to speak,

160 The Canadian Senate in Bicameral Perspective

lies not in its skill at brokering interests (that clearly belongs to the Commons) but in distilling arguments. While the Senate is not an academic body, the influence it exerts is intellectual in content. This is why the senators spend more time in committee than in the full house: the Senate sat on sixty-two calendar days in 1997-8, and its committees held meetings on ninety-five days. Another technique is to use Senate committees for investigative purposes, as in such highly regarded studies as the Croll report on poverty, the Lamontagne report on science policy, the Davey report on the media and communications policy.20 There have also been proposals to use special Senate committees in lieu of far more costly royal commissions and inquiries. This option merits serious consideration, particularly as the composition of special committees, unlike standing committees, could be constructed to ensure the most appropriate membership in terms of expertise and representativeness. Like royal commissions, investigative studies by the Senate can be a source of public policy. On the other hand, like royal commissions, their recommendations and findings may languish unregarded by government. The government is free to reject a committee report, and the outcome then would be no different from the case of the unamended Clarity Bill. Yet the argument used to assess the work of the Senate on that bill applies with equal force to all committee activity: the deliberative role of the Senate is important because of the diminished capacity of the lower chamber and of citizens generally to frame public debate. The Senate provides a forum for broadened participation. Its structure and procedures are more receptive to encouraging focused debate and less susceptible to domination. In short, the Senate provides ballast to a system that seems increasingly weightless. This is an opinion widely shared: 'The work of Commons' committees in Canada is now almost as irrelevant as debate in Parliament'; '[Mjinisters ... say that Cabinet is no longer where important decisions are made ... Rather, it is a kind of focus group for the prime minister'; 'Canadians continue to feel that they do not have much say over what government does and that their elected representatives are not in touch with the people.'21 If the primary function of the Senate is to complement the House of Commons, then in its deliberative role it helps to complete the legislative process. Improvements to the manner in which that deliberation takes place - the organization, size, and membership of committees, the frequency with which they meet, the possibility of a timetable of fixed sittings, whether the pre-study of bills should be reintroduced

What Is to Be Done? 161

as a regular feature of Senate procedure, and whether the government should be pressed to introduce more government bills into the upper chamber - these and similar matters can all be accomplished by nonconstitutional means. The internal arrangement of Parliament's business is Parliament's business. In other words, if it is agreed that the work of the Senate described above is its principal activity, then improving its performance lies solely with members of the two houses of Parliament, including the government of the day. What is problematic about this depiction of the Senate at work is the proposal to transform the chamber into an elected body. While plausible, an elected Senate is not probable, for reasons already given. Still it helps focus attention on the Senate's current operation to consider the adjustments election would bring. To begin with, there would be greater, sustained partisanship in a manner comparable to the Commons. Of course, there is partisanship now, as critics never tire of pointing out, usually by referring to the period between 1984 and 1993.22 There is nothing wrong with partisanship in an upper chamber; in fact, bicameralism would be in jeopardy if the government could not look to supporters there to shepherd its bills through that legislative process. (It is one of the new concerns of some Senate critics that were a Canadian Alliance government, minority or majority, to be formed at some point in the future, there would have been no Canadian Alliance senators appointed to the upper house.) All that may be admitted, but as every commentator on the operation of the Senate states, partisanism there is muted and, sometimes, inverted. It is not uncommon to see senators speaking and even voting in opposition to a bill that originated in the Commons with their party. Elected senators, like elected members of Parliament, would have constituents to serve and a voting base to protect and mobilize. Independent MPs do not get elected in Canada, nor would independent senators. Party support at the time of nomination and party resources during campaigns would assume an importance now absent in an unelected chamber. At the same time, the changed relationship to the House of Commons cannot be ignored. That relationship would deepen: if parties are inevitable, equally certain is it that the same parties would be active in the two chambers.23 In this scenario, the future of Canada's minor or third parties would substantially change, since either they would be pressed out of the lower house or they would make their appearance in the upper house. The type of electoral system used would be all-important. The question to be asked is whether an elected

162 The Canadian Senate in Bicameral Perspective

Senate would perform its deliberative role more fully and more faithfully than the Senate as presently constituted. If the answer is no, then improvers of the Senate should focus on what the Senate does and concentrate on non-constitutional means to bring about those changes deemed desirable. If the answer is yes, then proponents of reform must show how election would strengthen deliberation; and once this is done, they are then confronted with the impenetrability of constitutional reform. The Senate does more than deliberate; it also represents. It is well known that the Fathers of Confederation spent longer at Quebec City in 1864 discussing the composition of the Senate than any other institution of government. The reason is with Canadians still: the provinces now are manifestly unequal in population. They are unequal in other respects, but it is population that is the issue here. One of the attractions of bicameralism in the 1860s - perhaps the main attraction - was that it offered a counterweight to 'rep-by-pop' enthusiasts such as George Brown. Unlike other federations, which also experienced population disparities among their states or provinces but which used the states and provinces as units for equal representation in the upper chamber, Canada opted for senatorial regions of equal representation. These reasons lay partly in the lessons Canadians drew from the causes of the Civil War in the United States and partly in the value they placed on government being responsible to an elected chamber. (It should be remembered that Confederation came only thirty years after the Rebellions of 1837.) Those reasons notwithstanding, the agreement on the Senate illustrates an important feature of British North American political culture: a tolerance of difference or, phrased more bluntly, a recognition that equality would undermine the federation altogether. It needs to be remembered that treating the provinces unequally in the matter of Senate representation in 1867 was not a cause for sorrow. For their part, the Fathers of Confederation did not envision the Senate acting as a House of the Provinces. Originally appointed for life by the governor-in-council, Canadian senators were in a position to be independent of provincial governments, of the people of the provinces, and of public opinion in the country.24 The federative principle in Canada concerned jurisdiction, not representation. Equality of power in the matter of jurisdiction for the provinces, normally unconstrained by the exercise of superordinate federal power in the form of disallowance or declaratory legislation - that was the view of how Canadian federalism should work. Neither equality of representation nor popular represen-

What Is to Be Done? 163

tation of provincial electors was possible. Nor was the Senate's composition a source of grievance with the founding provinces, since the sectional and regional interests the Senate was expected to protect were not viewed as territorially confined to provinces. A variation on this theme is the concept of interest-based constituencies. In the words of the study on The Senate Veto: Individual senators over the years have become advocates for children, the poor, the aged, visible minorities, prisoners, veterans and illiterates. Their ability to knit together national constituencies of people who might otherwise have an inadequate voice in Parliament can be attributed at least in part to not having to run for election in a geographically defined constituency.25

That quotation is drawn from a section of the report that describes the Senate as a 'house of equalization.' If in its deliberative role the Senate acts as a house of legislative completion, then in its representative role it acts as a house of compensation. From its personnel it can replenish the depleted ranks of a government, witness Mr Trudeau's selection of the three western senators as ministers in 1980. Again, it may inject sectional interests into a debate from which they are being excluded. An example of this occurred following the 1993 election: Liberal MPs supporting the Chretien government 'occupied all but one of the thirty-two seats from the Atlantic region. For the next four years, Conservative senators from that region provided almost the only parliamentary debate and serious questioning of government policies affecting Atlantic Canadians/26 A house of equalization perhaps, but the Senate has never functioned as a House of the Provinces, although it is fair to say, as Jack Stilborn does, that today 'regional representation...[is] virtually the universal preoccupation of reformers/27 The preoccupation of these reformers focuses on neither sectional nor regional but rather provincial interests defined by territory and articulated by provincially appointed or, better still, periodically elected senators. The federal principle as embraced by the Fathers of Confederation and institutionally embodied in the Senate disappears. So, too, does the constitution's internal architecture which harmonized the Senate's deliberative and representative roles. Deliberation, as applied to national policies, cannot be reconciled with the promotion or defence of provincial interests. Foreign practice in this matter is informative. Australia's Senate has

164 The Canadian Senate in Bicameral Perspective

been exceptional among upper houses in parliamentary systems, for since its inception it has been elected. Indeed, three electoral systems have been employed: plurality, preferential and, since 1949, proportional. Each change was introduced to respond to unexpected problems that arose with the previous method. From the perspective of Canadian reformers committed to an elected upper house of Parliament, the instructive lesson to draw from Australian experience is that it has never acted as a House of the States. Either parties dominated its activities or it provided a forum for minority representation. There is no question, as one Australian political scientist has said, that 'state identity continues to be a potent force in Australian politics, but it has been joined by cross-cutting sources of sectional or minority identity/28 Since the introduction of the Charter of Rights and Freedoms two decades ago, Canadians have grown familiar with this latter form of interest aggregation. Up to the present, these interests have been more prominent in the judicial than in the electoral arena, although a pattern appears to be emerging of the Senate responding to minority interests and debating issues that eventually reach the courts. Nor does Canada have a system of proportional representation from which minority interests might profit. Nonetheless, Australian experience with upper chamber reform serves as a reminder that the interests of states (or provinces) in a federation are less easily transferred to national politics than reformers may suppose. The history of the Australian Senate affords one other cautionary note in the discussion of the role and function of upper chambers. There, as here, the constitution requires that appropriation measures be introduced in the lower house only. There, as here, the upper chamber refuses to acknowledge any limitation on its potential action even with regard to financial bills. But there, unlike here, the Senate has used its powers to block the passage of budgetary measures proposed by a government that controls the lower house. The outcome of that impasse in 1975 has already been discussed. The incident is notable only to underline the extension of partisan politics into the second chamber of the Australian Parliament to a degree unknown in Canada. Whatever its putative failings, the Senate of Canada has never been the cause of a constitutional crisis. There is a third role the Senate plays, one less commented upon than the previous two but which illustrates the special duty it was given to protect. In a comparison made to highlight the unique circumstances and expectations surrounding the creation of Australia's Senate, Aus-

What Is to Be Done? 165

tralian political scientist John Uhr explained why the framers of the Commonwealth were attracted to the example of American federalism but lukewarm about the Canadian variant: Stripped of exclusive constitutional functions, the Australian Senate had no need for those other structural devices designed to differentiate the Senate from the House and so enhance the review capacity: such as the different age qualification ... and commitment to as small an upper house as feasible. The Canadian model should have been of great interest, since the whole rhetoric of 'responsible government' derived from the Canadian struggle for self-government; but the Canadian federal model in the 1867 British North America Act attracted very little support during the Conventions.29

Unlike Australia, Canada initially had no domestic amending formula for its constitution. Only in 1982 was the constitution patriated with a set of amending formulas. Originally, therefore, protection of the rights of sectional minorities rested, on the one hand with the executive (for example section 93 of the Constitution Act, 1867, assigns to cabinet the responsibility to hear appeals on the actions of provincial authorities that affect the educational rights of denominational minorities where they exist, and, if necessary, to initiate remedial legislation to restore those rights), and, on the other hand, with the Senate, as indicated in Uhr's description above. In Australia an amendment is an amendment is an amendment: initiated by the federal government, passed by both houses of Parliament, and supported by a majority of voters in a majority of states. There is no partitioning of the constitution, of which Canadians are so fond. Questions about the degree of consent, the determination of who gives the consent, the classification of subject matter according to requirements for different levels of consent - none of these issues afflict Australian politics. Powers The roles and functions of the Senate are finite, but except for the requirement that money bills be introduced in the House of Commons, the formal powers of the Senate are infinite. What the Senate does with these powers, and whether they are appropriate to the functions it performs, are central issues in any discussion of improving the Senate. There is no question that the ability to reject legislation rather than

166 The Canadian Senate in Bicameral Perspective

simply delay or amend it is exceptional among upper chambers. Certainly, there is no unelected chamber that possesses similar power. And even elected bodies with this power, such as the Senate of Australia, are vulnerable to criticism from government and the public when they contemplate exercising it. Parliamentary democracies based on the Westminster model are strongly imbued with the belief that 'governments should be allowed to govern.' Opposition, whether elected or appointed, is unpopular.30 In his study of The Senate Veto, the law clerk and parliamentary counsel to the Senate presents an appendix entitled 'Senate Use of the Veto to Defeat Bills.' That list shows that the veto was used forty-four times in the twentieth century. For those critics who oppose the Senate as currently constructed, that figure may appear excessive. From any other vantage, it indicates voluntary restraint on the part of senators. That judgment emphasizes a point sometimes overlooked by reformers who want to see an elected upper house; there is no reason to believe and some cause to doubt that an elected body would approach the use of power in the same way as an appointed body does. This was the issue on which the referendum on an Australian republic foundered in 1999: how to give the majority of citizens the popularly elected president they wanted but, at the same, to guarantee that the president would honour the conventions of the constitution whereby the prerogative powers of the Crown are exercised (except in the most extraordinary situation) only on ministerial advice. More than in most political systems, the constitutions of Canada and Australia depend upon understandings for their operation; the written portions of those documents are worse than useless, since they falsify the modern arrangement of political power. This is particularly the case with the executive, defined as the Crown and in whom all executive power is vested, but it is also true of other institutions, none more so than the Senate of Canada. The Senate possesses broad powers which it uses sparingly. This is not to say that it would make no difference if the Senate were to exchange its absolute veto for a suspensive one. The Wakeham Commission is precise in recommending that the reformed second chamber should have no more than a suspensive veto in the future. The House of Commons is the confidence chamber and the commission believes that any stronger power on the part of the upper house would set up a rival to the Commons. While the new upper chamber in the United Kingdom will incorporate representation from the country's regions and

What Is to Be Done? 167

nations, the vast majority of the members will be centrally appointed. All of Canada's senators are regional in that they all are appointed for some province. It is that regional and sectional complexion that sets Canada's Senate apart from the House of Lords and which defenders of the Senate veto cite in defence of their position. Proponents of a Triple E Senate seek institutional change in order to achieve greater regional (that is, western) influence over national policies. They believe that those policies reflect central Canadian interests because the government dominates the House and the House is dominated by members from Ontario and Quebec. While reformers talk about little other than an upper chamber that is equal, effective, and elected, they should still favour retention of the Senate veto. Otherwise, a reformed Senate, if that could ever be achieved by constitutional amendment, would have less power than the present body. Thus, from the perspective of reformers, and of improvers who maintain constitutional amendment is not a practical alternative at present, the status quo as regards the veto is acceptable. Composition The composition of the Senate is subordinate to agreement about the role it should fulfil as a second chamber. That purpose is to complement the House of Commons, first, as a deliberative body that amplifies, clarifies, and scrutinizes legislation and, second, as a representative institution that articulates and protects regional and sectional interests. The primacy awarded here to function over form is not universally shared. Indeed, the National Post echoes many critics who reverse these priorities and who say that 'the Senate's central flaw is that it is filled through patronage appointments [made on the prime minister's recommendation] that last until age 75.'31 From this 'flaw,' they say, follows others: senators are either accountable to no one or they are in the pocket of the prime minister; senators are privileged, partisan, and in the service of special interests; and senators are old, out of touch with society, and a standing rebuke to Canada's democratic pretensions. Critics in Canada no more like the patronage system of selection than did critics in the United Kingdom like the hereditary base of the House of Lords. The difference between the two situations is that, paradoxically, it was easier to sever the peerage from the Lords (by simple statute) than it will be to agree on an alternative senatorial selection process in Canada. The Wakeham Commission proposed a statutory

168 The Canadian Senate in Bicameral Perspective

appointments commission to appoint the independent members of the reformed Lords. While nominations may come from several sources, including the political parties, the final say rests with the commission. It would work under a set of guidelines that is supposed to keep the chamber broadly representative of the larger society, balanced between the parties in light of the last general election vote, and moderately independent. The majority of members of the new Lords would be nominated by the political parties, but in proportions intended to reflect the shares of the national vote and with the actual number of seats determined by the commission. The age of swamping has finally passed. The prospect of a second chamber at Westminster acting wilfully independent, if only temporarily because of the suspensive veto, has disappeared. Because any move to elect senators in Canada will require constitutional amendment, whose passage is improbable because of the conflicting interests at stake in the bicameral Parliament, discussion of the Senate's composition must look to non-constitutional means to improve selection process. And it needs improvement on several fronts. One of these is the current retirement age of seventy-five. In the Constitution Act, 1965, Parliament unilaterally set an age limit to Senate membership, since prior to 1965 senators were appointed for life. This establishes a precedent for further unilateral (defined here as non-constitutional) action.32 However, rather than an age limit, tenure could be defined as a term, one long enough to ensure a Senate that possesses both independence and experience. The average tenure of a senator is about fifteen years or approximately three parliaments. A fixed term would have the advantage of equalizing appointments, since it would translate what is now an average into fixed tenure. At the same time, it would respect the deliberative function of the second chamber. More practically, it would also conform to the Supreme Court's 1980 opinion that changes to the Senate should not 'affect the fundamental features, or essential characteristics, given to the Senate as a means of ensuring regional and provincial representation in the federal legislature process.' The unilateral or non-constitutional formula could also be used to change the minimum age requirement and property qualification for senators, although the latter provision as it applies to senatorial divisions in Quebec may require that province's consent to abolition. The heart of the criticism of the selection process remains the prime minister's monopoly to name senators. Over the past two decades similar arguments have been heard about the Crown's prerogative in

What Is to Be Done? 169

the making of all appointments, for example judicial and diplomatic, on the sole advice of the first minister. There have been suggestions that this task should be shared with Parliament, just as the president and the Senate are required to cooperate under the United States constitution. Arguably, appointments per se are not the issue but, rather, who makes the appointments. Is there some way, within the scope of section 44 of the amendment procedure, to limit the prerogative of the prime minister? Is it possible to frame a set of objectives to guide prime ministerial appointments? In other words, can Canada approximate the procedure the Wakeham Commission proposes the United Kingdom follow.33 It should be recalled that, for some years now, the prime minister and the minister of justice have been assisted by advisory committees (composed, among others, of members of the provincial bar) in selecting judges for appointment by the governor general. And this has been done without constitutional amendment. Of course, the guidelines would be dictated by different considerations and concerns. Compared with his British counterpart, a Canadian prime minister appoints few members to the upper house. In his first three years in office, Mr Blair made nearly two hundred appointments.34 In a comparable period, Mr Chretien appointed one-fifth that number, although the regular selection of at least some aged appointees (three over seventy), with few years to acquire the deliberative skills senators must have increases these opportunities. The explanation lies in the fact that historically the Lords had no upper limit on its number. The swamping power was absolute, and its thrust immense - as witness the events that preceded passage of the Parliament Act, 1911, which deprived the Lords of their absolute veto. Perhaps because the number of senators a prime minister appoints is comparatively few, the impact appointments have is all that much greater. There seems little doubt that if the Fathers of Confederation were devising an upper chamber for the Parliament of Canada today, they would shun an appointed chamber. But even if this were the case, the Fathers would still be confronted with the conundrum of how to harmonize two elected bodies. Their original answer to the clash that would inevitably occur between elected chambers was to make the Senate appointed. This assured that a government enjoying the confidence of the House of Commons would normally be able to have its legislation adopted by Parliament, but gave the Senate the ability to act as a check in those rare instances when it was absolutely necessary. Australian experience is one indication of how Canadian history might

170 The Canadian Senate in Bicameral Perspective

have unfolded. Canada, however, must live with the institutions it has and the constitutional amendment formula its elected politicians have given it. In that circumstance, it seems less than constructive to criticize every Senate appointment simply because he or she is an appointee. Accountability Advocates of an elected Senate want senators to represent their provinces. They explicitly say that senators do not do this now because they are appointed on the recommendation of the prime minister. Yet it is neither the role nor the function of senators to advance the cause of specific interests, territorially defined or otherwise. First and foremost, they are expected to bring their considered judgment to bear on questions of national importance, including the maintenance of the federation. A necessary condition to that end is the independence of the Senate and senators. The age and property qualifications, the term of appointment, the absolute veto, the cap on membership, along with the restrictive provision for the appointment of senators - these and other characteristics of the operation of the chamber are explicable as guarantees of institutional and personal independence. Those who want to anchor senatorial selection in provincial electorates champion improved accountability as well as representation. In their eyes, senators appointed by the Crown on prime ministerial advice are unaccountable. This is one variant of the argument that permeates criticism of existing governmental institutions and reveals itself in calls for initiative, recall, and referendum and for legislative confirmation of federal (but, seldom, provincial) appointments. As with representation, the concept of accountability is narrowly defined. The critics of the Senate are correct: the chamber is not responsible to the people or to interests outside of Parliament. On the contrary, it is responsible to Parliament. If the Senate possesses a veto on the legislative process, so does the House of Commons. Laws are made when the two parts of Parliament act as one. When comity fails, then some means of reparation must be found. All legislative bodies are self-governing institutions who police themselves and, occasionally, others. Again, this is understandable only when the primacy historically accorded the independence of Parliament is appreciated.35 Rather than focus on that dimension of parliamentary life, critics increasingly call for improvements in the internal administration of the Senate. Here, perhaps more than anywhere else, the Senate is open to im-

What Is to Be Done? 171

provement by non-constitutional means. Here, too, the benefits to be gained from improvement are greatest. Too often reform and media critics depict the Senate as a private club whose members act without regard to interests beyond their immediate personal concern. This is quite the reverse of the way private clubs function, and it is a misinterpretation of the Senate's mode of operation.36 The parallel between the two lies in the Senate's small size and the long tenure of its members. The result is that the Senate has operated largely on unwritten rules agreed to by members of the Liberal and Progressive Conservative parties. This is not altogether true; from Confederation onward the Senate has listed members in attendance in the daily Journals, and since 1990 those names, along with committee attendance, have been available to the public. Nonetheless, controversy surrounding non-attendance of individual senators and the fact that existing Senate rules provided no penalty for the most infrequent attendees depreciates Senate governance in the eyes of the public. To this should be added public displeasure at the Senate's response to criminal charges brought against its members. The Senate must design and implement codes or frameworks of conduct to guide itself in dealing with controversy. Thus procedural change would accompany clarification in the public mind of Senate practice and policy in matters involving dereliction (or charges of dereliction) of duty. That being said, a caveat or warning is in order. The Senate is a small chamber where codified rules can be kept to a minimum. Indeed, they should be kept that way if the flexibility and informality of the chamber are to be retained. The fear of some senators, such as Michael Pitfield, is that if the Senate does not remain that way, it will become but a 'pale image of the other place.' The threat lies in not valuing the second chamber for its distinctiveness - particularly its comparative independence - but subjecting it to performance criteria drawn from the much more partisan House of Commons.37 At the same time as Senator Pitfield voiced his fears, an echo of concern was heard at Westminster. A former long-time member of the British House of Commons, Sir Robert Rhodes James, addressed 'the plague of reform' and its wake, an explosion of career politicians 'anxious for preferment.' In this situation, 'the obsequious got on ... the critics ... did not.' If the partisan lower house is to become the standard for conduct in the upper house, then only the executive stands to gain.38 Under the general heading of accountability fall policies on retirement and disability. Until 2001 the absence of policies permitting early

172 The Canadian Senate in Bicameral Perspective

retirement with improved pension programs, as exist for judges, has meant that senators who would favourably consider early retirement continued in office.39 If the objective of improvement is to rejuvenate the Senate, to make it more responsive to public opinion, then early retirement is one alternative that rests with Parliament to implement. Senators should not be placed in the position that they must incur financial hardship if they vacate their seats early. On a related matter of finance, it has been official policy of the Reform and Canadian Alliance parties to favour an elected upper house and also to oppose election expense legislation that sought to control the cost of House of Commons elections. By any measure, the Senate is an economical institution: 'During 1995-96, Senate operating expenses were 21% of those of the House of Commons. The Senate cost approximately $1.50 per Canadian annually, compared with $7.13 for the House of Commons. The per capita costs for provincial legislatures ranged from $6.97 in British Columbia to $17.79 in Prince Edward Island/40 Conclusion Improvement of the Senate by non-constitutional means is both necessary and possible. In its role as a deliberative and representative institution, in its powers which include the veto, in its composition as an appointed body and in its accountability procedures, the Senate is a more substantial and responsible legislative chamber than its critics allow. That does not mean that there is no room for improvement, but this can be done by turning the existing Senate to good account rather than transforming it by introducing the elective or some other principle. There is no sovereign reform for the Senate of Canada. It needs emphasizing once again that the Senate is not an embalmed institution that the Fathers of Confederation would immediately recognize. In fact, Canada's upper chamber has been transformed out of all recognition from its nineteenth- and earlier twentieth-century character. Largely, and in spite of the criticism reformers direct against the Senate, this has happened because of the use of the appointment power. It is because of the transformation in appointments that the Senate has a more diversified membership in terms of gender, language, and race than any comparable second chamber in the Anglo-American world or than the House of Commons. With this composition the Senate is a national institution; and it is an institution with experience, memory, and a long view of policy and

What Is to Be Done? 173

events. Although the Canadian people no longer believe it is credible in its present form, yet it is these features that are the chamber's fundamental characteristics. Any improvements must reinforce these features at the same time as they complement the work of the House of Commons. It may not be impossible, but it is futile, to consider changes to the upper house that do not take account of its relationship to the lower house. In short, in the matter of improvements to the Senate by non-constitutional means, context is everything. The Senate already does excellent committee work. Improvements would see greater use of special committees as well as of the Committee of the Whole. If the latter committee's meetings were televised, the Canadian people would have the rare opportunity of seeing a national institution at work. Through electronic communication, as now happens in non-televised committee work, such as study of the amendment to Newfoundland's Term 17, the Senate moves 'closer to the people.'41 Its debates and hearings on questions like minority rights present rare occasions for citizens to be heard and listened to. There are a number of organizational and procedural matters with regard to committee meetings that need study, such as their timetabling, size, and work allocation. These are matters that fall within the mandate of the Senate to determine. In other words, they are non-constitutional matters which, nonetheless, have the potential to energize and reconfigure public perception of the Senate as an operating institution. A standing criticism of the Senate is its partisan complexion. However, the problem is not partisanism in and of itself but the monopoly of the selection process in the hands of the prime minister and the imbalance in party standings which results. A major improvement would result if agreement were reached on the Senate's desired composition and if that agreement were accepted as a guide by the prime minister in the use of the prerogative of appointment. Two examples make the point. First, prime ministers should agree not to let the ranks of the opposition in the Senate fall below a certain floor, say one-third of the total. Mr Trudeau's actions two decades ago foreshadowed support for this norm, but they constituted no convention of the constitution.42 Second, while exercise of the prerogative is discretionary, agreement on a limit on the amount of time taken to fill Senate vacancies would help counter the perception that appointments occur solely according to the prime minister's personal judgment. Finally, it is vital that senators have enough time to gain experience of the chamber and of its symbiotic relationship to the House of Commons. For that to happen, sena-

174 The Canadian Senate in Bicameral Perspective

tors should have the experience of one full Parliament. It therefore seems desirable that the maximum age of senators at their appointment should be no more than seventy and, ideally, less than that. A final general area where improvements are needed is in the standards and enforcement of senatorial behaviour. Matters such as conflict of interest, non-attendance, travel expenses, and complaints from the public or from within the chamber about improper behaviour, require a forum in which to be heard. One of the great difficulties the Senate faces is that, to many observers, it appears sequestered and deaf to criticism. Prime ministerial appointment and the Senate style of self-government convey (perhaps erroneously) both a lack of attention and a disregard for public opinion. The House of Commons may be in as much need of improvement as the Senate, but at least the public thinks their members of Parliament represent a channel through which criticism can be made. Events subsequent to the terrorist attacks on the United States in September 2001 may give cause to reconsider that view: John Reid, information commissioner and thus as officer of Parliament, looked to the Senate for protection (in the form of amendments) to the sweeping powers of Canada's anti-terrorist legislation (Bill C-36) passed through the Commons under closure. Otherwise, he said, 'the independence of an officer of Parliament would be at risk if a government could ... terminate its investigations at will.'43 Nor was he alone. The Special Senate Committee that studied Bill C-36 broadened its concern to include the privacy commissioner and the potential interference in the conduct of his office posed by the legislation. However, two of the committee's recommended amendments, as set out in its final report creation of a new 'Officer of Parliament to monitor the exercise of powers under [the] Bill' and 'the application of a true sunset clause to virtually all parts of the Bill' - were ignored by the House of Commons.44 The government and Parliament's handling of this extraordinary matter requires the perspective of time before it can be judged. Still, from the perspective of this study, the assessment of one close observer deserves attention. In an essay entitled 'Terrorism's Challenge to the Constitutional Order/ Lorraine Weinrib reminds readers that 'bicameral, multi-party examination of government policy ... can prevent and remedy abuses before they would come to the attention of the judiciary.'45 The Senate may not be a representative body like its lower house partner in Parliament. Nor need it be, since parliamentary democracy

What Is to Be Done? 175

does not require that a useful and legitimate second house of Parliament be elected. Nonetheless, it is a public body, and the public has lost confidence in its ability and commitment to rehabilitate itself in the absence of non-constitutional change of the order discussed in this chapter.

Conclusion

The problems that confront Canada's second chamber are not unique to Canada. And for an obvious reason. At its core, bicameralism everywhere rests on obstruction: rather than empower, it restrains government. In the words of an article cited earlier, bicameralism is based on the premise that 'two decisions are better than one.'1 Since two decisions take more time, bicameralism means delay. An earlier, and more extreme, expression of this view can be found in Sir Henry Maine's belief that 'almost any Second Chamber is better than none.'2 Putting aside whether that generalization is acceptable - and for countries such as New Zealand and Denmark, who abolished their upper houses in the 1950s, clearly it is not - the point requires making that the duality inherent in bicameralism takes many forms. In other words, it is misleading to suppose an inherent class of second chambers exists in some unchangeable form. Even among parliamentary systems that follow the Westminster model, variation rather than sameness is the norm. This may be no more than saying, as the Supreme Court of Canada did in the Quebec reference, that constitutions have an internal architecture or, as Giovanni Sartori has asserted, that 'systems have a systemic logic of their own'; but if it is, it is a truism often ignored.3 In the debate on Senate reform in Canada, there is a continuing, if unarticulated, assumption that the upper house set down in the Confederation agreement is imperfect. Imperfect not so much in the sense that prerogative appointment is bad (although that charge is often heard) but that appointment (or, again, the power of absolute veto) is archaic and that, as a consequence, the Senate is underdeveloped. There are several difficulties with this view, beginning with the fact that the Senate has proven to be highly adaptable. It alone cannot

Conclusion 177

change its method of selection, but it can (and has) changed its methods of operation. The Senate today is not the same institution it was thirtyfive years ago.4 The Senate's capacity to adapt is a major reason why there is so much talk and so little action in the matter of upper house reform. Inaction is more than a topic of curiosity, although it predictably appears in studies of the Senate along with charges of illegitimacy and lack of political clout. Inaction is symptomatic of a political situation where the status quo benefits too many political actors, be they governments, parties, or provinces. Not all may share this view, but all do not have to to thwart reform. As with electoral reform, governments see any alternative as making Parliament, or in this instance, the second chamber, more obstructive - which in the instance of bicameralism is its principal purpose. This is not a prospect that pleases those in power, as witness the campaign by Australian governments to check the independence of the Senate they cannot control.5 Tony Blair's removal of hereditary peers from the House of Lords is no exception. For good or ill, the peers had few defenders; the crucial non-partisan replacements will be selected by an appointments commission itself chosen by the prime minister. The implication that the Canadian Senate lacks completeness, that it is not a sound institution, arises again in discussion of the veto. The inappropriateness of a nominated body possessing anything but a suspensive veto is a standard indictment.6 Just as standard is the evocation of the Parliament Act, 1911, and the situation at Westminster. Implicit in this position is the argument that the House of Lords, having given up its absolute veto (under duress, it should be remembered), the Senate should follow in the spirit of Canada's having 'a Constitution similar in Principle to that of the United Kingdom.' On such occasions, it is never said that the Parliament Act, 1911, was understood to be a temporary and not final settlement of bicameral relations at Westminster. Nor that it is viewed today in some quarters as flawed because it promotes 'the ascendancy of the ... ruling party of the day.' Nor that it and its 1949 amendment have 'ceased ... to represent an appropriate constitutional balance between the Houses of Parliament.'7 Another way of misrepresenting the Senate as incomplete is to depict it as a residual institution, one whose time has passed. This attitude may manifest itself in several guises. Reference has been made to the omission in 2000 of the Senate as a political actor in the Clarity Bill (C20). The same might be said of twenty-seven other acts that suggest a difference in status between the two houses of Parliament.8 These in-

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stances lend support to the argument that the government of Canada in recent decades is undermining bicameralism by neglecting to respect it. The official attitude appears to be that bicameralism does not matter; and it is one communicated by various means. Consider, for instance, the Senate's reputation for innovative and meticulously written committee reports. Even its critics compliment the upper house for this work. Senate committee reports have an added advantage, according to political scientist Paul Thomas, since their authors, unlike say royal commissioners, do not 'disperse to other careers' at the end of their labour, but 'remain around to lobby for their implementation.'9 This contrast was underlined in pronounced fashion in 2001 when the federal government appointed Roy Romanow, the former Saskatchewan premier, a one-man inquiry to study health care in Canada. As it happened, the Senate's Social Affairs Committee, under Michael Kirby, had been studying the subject for more than a year. Its approach - to take evidence and hold public hearings across the country - anticipated the Romanow inquiry's own strategy. Nonetheless, the two national investigations differed, first on cost: the Senate committee's budget was set at under $300,000, while the Romanow study had a budget of $15 million dollars. The second big difference was that within its own ranks the Senate committee embraced expertise in the form of two doctors, a nurse, and a former minister of health, while the Romanow inquiry had to hire its own experts. Here is a situation that would seem to lend support to the charge that the Senate is a residual, or at least, redundant institution. Senate defenders might see the matter the other way around, but in either case, there is undoubtedly duplication. Yet, according to some long-time observers of Canadian politics, it is duplication with a point. The National Post reported that Tom Kent, 'one of the Liberal architects of medicare in the 1960s,' saw the two bodies as having 'complementary roles': the Senate's work 'to generate debate and ideas about the problems of health care in general' and Romanow's 'to broker a pact between Ottawa and the provinces to end continued political infighting over health care.'10 The future of this public policy area notwithstanding, the importance of Kent's interpretation of these events lies elsewhere for this book. It is said that Mr Romanow, but not the Senate, has territorial bona fides to negotiate change with provincial governments, that is, with the premiers. Would a reformed Senate, more sensitive to provincial desires, be in a stronger position to do what Mr Romanow is purportedly

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expected to do? Would a reformed Senate, in the words of the National Post, have 'influence with the provincial governments'? In neither Australia nor the United States are the national senates states' houses; in both, partisan and national debate drown out state concerns. Whether for good or bad, territory is less pronounced in each than Canadian reformers suggest. In Australia and the United States bicameralism is less about mimicking the complexities of federalism than it is about acting as an antidote to the concentration of power at the centre. Particularly in a system such as Australia's, where government is drawn largely from and controls the lower house, bicameralism is a means of helping to escape 'the density of government.'11 Part of the weakness of Senate reform in Canada is that it pays little attention to this role of a second chamber. And yet it should. The concentration of power in the hands of the prime minister and his advisers is a matter of increasing comment; those seeking to limit executive power look, for instance, to officers of Parliament, such as the auditor general and the information and privacy commissioners, who are appointed on address, singly or jointly, of the two Houses of Parliament. In a system of parliamentary government, it is neither reasonable nor desirable, except in the gravest circumstances, for an upper chamber, elected or not, to block the actions of government once the will of the executive is clearly and publicly expressed. Ideally, the role of the second chamber is not to substitute its will for that of the government; rather it is to promote discussion and an atmosphere conducive to reaching agreement. Some issues may have the potential for exerting more territorial impact than others; when that happens, then it is for government and not one house of the legislature to assume responsibility for the resulting policy. In the words of journalist Chantal Hebert, the 'demise of the Commons as a venue for meaningful debate,' evident in the Chretien government's disposition to limit debate wherever possible, reinforces the importance of 'the much maligned Senate' as a debating chamber.12 In this counsel there is much irony. Reformers from the West who want to check the dominance of Ontario and Quebec in the House of Commons and in the government propose equal representation of provinces in the Senate. Yet it is quite clear from the preceding discussion and from events of the last decade that the introduction of equality as a principle in Senate composition will require compensating treatment for losers. The mathematics of representation in Canada is that everyone must be a winner. How different from the United States, where

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Nevada and California, for instance, each send two senators to Washington, but Nevada and almost a quarter of the sparsely-populated states send two or even one Congressmen, while California, New York, and Texas, by contrast, send (as of 2000) fifty-two, thirty-one, and thirty congressmen respectively. To the extent that a reformed Senate is achievable and the upper chamber has more 'clout/ more bargaining than occurs now will be required to secure the passage of each piece of legislation. There is no reason to conclude, says one scholar, that such an outcome will favour the West or that the region will be comparatively better off than it is at present.13 Arguably, and paradoxically from the perspective of reformers, the Senate as presently constituted could serve the needs of the regions as well as the nation, which was what it was meant to do. According to the Star-Phoenix of Saskatoon, 'The Senate was never meant to protect the provinces - their rights were enshrined in the Constitution and protected by the courts - but to provide a voice for the regions and minorities and to slow down actions taken by the Commons to give Canadians a chance to consider the impact of important bills/14 If, as the argument goes, the executive speaks on behalf of a new 'court' alliance of advocacy groups, then the Senate can act as the lungs of the 'country/ in both senses of that term. The Fathers of Confederation, but more particularly later politicians, turned the Great Compromise of Philadelphia on its head. The representation of the provinces became as central a concern of the redistribution process in the Commons as did the representation of population. The Senate did something different again; it functioned as a vehicle for the weighted expression of regional opinion whose sum was the nation. Here is the source of the long-harboured grievance that the interests of Ontario and Quebec are treated, because of the population of those provinces, as the national interest, when that interest should, say the critics, be determined not by the counting of heads but by the accommodation of regional, sectional, and minority as well as the public interests. An upper chamber is part of the continuity inherent in 'a Constitution similar in Principle to that of the United Kingdom/ Federalism amplified the rationale for a second chamber; there would have been no federation had there been no Senate constructed as set out in the Constitution Act, 1867. It is a much-repeated observation that, after 1885, the opinions of the Judicial Committee of the Privy Council initiated Canada's transformation from a centralized to a decentralized federation. Less remarked

Conclusion 181

upon was the effect these opinions exerted upon the theory of the Senate that had guided the Fathers of Confederation. In both Quebec and Ontario the structure and powers of the Senate (in the case of the former, the common geographical base for selecting senators and legislative councillors; in the latter, the absence of a provincial upper chamber at all) were important to the provinces' calculations on entering the federation. John Uhr has commented that, in contrast to Australia's Senate, Canada's had an apparent 'conscious review capacity,' as hinted at by the lower age limit of thirty years as well as tests for property and against indebtedness.15 Neither the Canberra nor the Washington senates were intended to perform a similar function. Canada is not unique in having the expectations of its founders confounded by events. Nonetheless, as a federation it is singularly unfortunate in losing the raison d'etre for its second chamber. In 1867 the future was unknown, and nothing reported from the Charlottetown or Quebec conferences indicated that the provinces, and their premiers, would come to play the pivotal role they eventually did. The abolition of second chambers in the provinces that had them further contributed to conceptual ambiguity as far as second chambers in Canada was concerned. There is no question that the absence of upper houses elsewhere in the country affects how premiers see Senate reform. Nor is there any question that the eclipse of the original theory of the Canadian Senate helps explain the series of invertebrate proposals for second chamber reform that look only at the second chamber while ignoring its symbiotic attachment to the lower house with whom it comprises the Parliament of Canada. If a theme were sought for the story of Canada's second chamber, the motif of legitimacy would warrant attention. To be more precise, the claim has long been that, because the Senate of Canada is not elected, it is illegitimate. The previous chapters have looked at parliamentary systems where the second chamber is elected (Australia) or appointed or hereditary (United Kingdom). The claim for election is that in its absence, a second chamber lacks influence (the favoured word is 'clout'). And in 1975 the Australian Senate had clout, for it drove a government that commanded a majority in the House of Representatives from office. But - and it is a big but - it did this indirectly, when the governor general used his prerogative power to dismiss the prime minister in order to resolve the deadlock between the two chambers (each dominated by one of Australia's two principal political parties). With the crisis of 1975 as background, it is not surprising that Australia's repub-

182 The Canadian Senate in Bicameral Perspective

lican debate focused on the Crown's prerogative powers and their disposition or regulation in a new republic.16 While there is no doubt that the Australian Senate possessed the heft sought by Canadian second-chamber reformers, there is also no question that two houses of equal power in a parliamentary systems present difficulties. Calling it 'a problem without a solution/ Sartori says that 'two Houses that must assume, in order to function, similar majorities, stand as a macroscopic instance of ill-conceived constitutionalism.'17 Comparisons help inform; in a book devoted to comparative analysis one must hope that is the case. Still, comparisons are only that; they are not dictates, and in some instances they may even be beside the point. An appointed Senate assuredly would not work in Australia, but an elected Senate in Canada may be no more feasible in the constitutional, historical, and social context of Canada. In an observation more than a judgment, John Connolly, a Canadian senator from 1953 until 1982, once remarked that 'the British in 1910 and since have made changes in their Upper House. They have failed because they made it too weak. The Australians tried reform in their Upper House by making it elective. They made it too strong. Both have lived to regret it/18 (Connolly favoured selection by prime ministerial nomination but with the operational needs of the Senate in mind. Partly for that reason, he thought that at least 'one third of the complement of the Senate should be opposition members.' The chief function of the Senate, he said, was as 'a legislative court of appeal/ although it should also study 'great national issues.' Like virtually every senator who has spoken on the matter and in contrast to what is frequently heard in the Commons, Connolly had a high regard for his fellow senators and for the chamber. Yet his good opinion did not blind him to the fact that 'most of these people could not get elected if they tried; nor would they want to'.) There is no doubt that Australians are a sovereign people, nor is there any question that the popularly elected Senate helps verify that proposition. That is the legitimacy function of the second chamber in Canberra. Analogously, although differently, Canada's appointed Senate expresses in a 'weighted' manner the voice of the regions and linguistic and other minorities.19 In their daily work, in both Canberra and Ottawa, the legitimacy or authority of each upper house rests upon the validity of its decisions as evidenced by their popular acceptance. Validity arises from the quality and breadth of discussion. Issues change in the Senate, as they do in the House and the media. Barbara Sinclair

Conclusion 183

has argued that the emergence of social welfare and civil rights as issues in American politics in the 1960s and 1970s led to the growth of interest groups and a new role for the media. More germane to this discussion, it led to 'the emergence of a new Senate style/20 Issues can change institutions, even those that are not elected. It seems clear from what has already been said that the Canadian Senate is increasingly involved in studying issues whose jurisdictional boundaries are ambivalent - the environment, health, cultural industries, language, First Nations, science, and education are examples - but which have country-wide appeal. When it pursues these matters, it offers both space and a platform from which can be heard not just the parties' and the premiers' but the people's voice as well. And this at a time when the House of Commons is less accessible because government is more dominant and the opposition parties more fragmented than ever before. Only in Australia is election, and, more particularly, proportional representation deemed essential to the quality of parliamentary oversight that the second chamber performs. So constituted, the Senate there becomes 'a manifestation of constitutionalism.'21 But that is not an opinion shared by authorities such as Philip Norton in the United Kingdom. He advocates the opposing thesis that in the matter of upper house composition 'complacency ... lies with those who argue for an elected second chamber/ Election is unnecessary, according to this line of argument, because the real power of second chambers, elected or not, lies in their power 'to embarrass the government/22 The elements of bicameralism serve this end: double not dual representation, sequential not divided action, protective not superfluous redundancies. Its essence, drawn from the Book of Proverbs and enshrined in the mosaic floor of the entry hall to Victoria's bicameral Parliament House in Melbourne, explains why: 'Where no counsel is the people fall, but in the multitude of counsellors there is safety/

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Notes

1 Bicameralism: A Concept in Search of a Theory 1 The Maritime legislative councils preceded Confederation by some decades. The upper houses of Quebec and Manitoba were granted at the time of Confederation, although Quebec, first as Lower Canada and later as part of the United Province of Canada, had intimate knowledge of the intricacies of bicameralism. Newfoundland's Legislative Council ceased to operate in 1934, but term 14(2) of the Terms of Union states: "The Constitution of the Legislature of Newfoundland insofar as it relates to the Legislative Council shall not continue, but the Legislature of the Province of Newfoundland may at any time re-establish the Legislative Council or establish a new Legislative Council.' 2 Robert A. MacKay, The Unreformed Senate of Canada; F.A. Kunz, The Modern Senate of Canada: 1925-1963: A Re-Appraisal; and Campbell, The Canadian Senate: A Lobby from Within. 3 National Post, 12 August 1999, A7. The speaker was Rob Anders, Reform MP for Calgary West. 4 Garry Wills, Inventing America: Jefferson's Declaration of Independence, 40. 5 C.E.S. Franks, 'The Canadian Senate in Modern Times,' in Serge Joyal, ed., Protecting Canadian Democracy: The Senate You Never Knew, 3; Gordon Robertson, A House Divided: Meech Lake, Senate Reform and the Canadian Union, 13; Canada, Royal Commission on the Economic Union and Development Prospects for Canada (Ottawa: Minister of Supply and Services Canada, 1985), III: 72. 6 Senate Debates, 26 March 1998,1306 and 1307 (Senator Di Nino). 7 Robertson, A House Divided, xxi. 8 Walter Bagehot, The English Constitution. 9 See M.J.C. Vile, Constitutionalism and the Separation of Powers, 227-8. Ac-

186 Notes to pages 6-7 cording to Michael James, a 'complacent reliance on convention has helped to dissipate in Britain any understanding of the distinction between constitutional and political matters.' Michael James, 'The Constitution in Australian Political Thought,' in James, ed., The Constitutional Challenge: Essays on the Australian Constitution, Constitutionalism and Parliamentary Practice, 16. 10 See Cheryl Saunders/Representation and National Political Institutions.' Paper presented to conference 'Parliamentary Government at the Millennium: Continuity and Change in Westminster Systems,' 8; Alan J. Ward, 'Australian and Parliamentary Orthodoxy: A Foreign Perspective on Australian Constitutional Reform'; Royal Commission on the Reform of the House of Lords, A House for the Future, 18 (hereafter cited as A House for the Future or the Wakeham Report). A sometimes apocalyptic view of constitutional matters, but one that nonetheless sees the constitution as more than a rule-book, is found in Keith Sutherland, ed., The Rape of the Constitution? 11 S.R. Davis, 'What Price Upper Houses in Australia?/ in G.S. Reid, ed., The Role of the Upper Houses Today, 11. 12 A selection of papers presented at a conference, 'Representation and Institutional Change: 50 Years of Proportional Representation/ in Canberra, August 1999, to mark a half-century of proportional representation, is found in the Australian Journal of Political Science 34, no. 3 (1999): Arend Lijphart, 'Australian Democracy: Modifying Majoritarianism?'; Murray Goot, 'Whose Mandate? Policy Promise, Strong Bicameralism and Polled Opinion'; and Campbell Sharman, The Representation of Small Parties and Independents in the Senate' (pp. 313-61). All of the papers are available in a work with the conference title, edited by Marian Sawer and Sarah Miskin, and published as No. 34 of Papers of Parliament (Canberra: Department of the Senate, December 1999). Individual papers from this publication are cited hereafter. 13 W.K. Jackson, The New Zealand Legislative Council: A Study of the Establishment, Failure and Abolition of an Upper House, ix. See also Keith Jackson, 'Bicameralism and Unicameralism in Australia, Canada and New Zealand/ in Malcolm Alexander and Brian Galligan, eds., Comparative Political Studies Australia and Canada, 27-44. 14 Campbell Sharman, 'Australia as a Compound Republic/ Politics 25, no. 1 (May 1990), 3. 15 William H. Riker, "The Justification of Bicameralism/ 115. 16 George Tsebelis and Jeannette Money, Bicameralism, 3 and 4. 17 National Archives of Canada (NA), RG33-118, Task Force on Canadian

Notes to pages 7-10 187 Unity, vol. 4, file 413, Ghislain Fortin, "The House of the Federation Proposal Revisited/ 24 August 1978,8 and 3 (emphasis in original). Another forty-seven-page document, 'The Question of a Reconstituted Senate/ 1 December 1977, examines the Bundesrat and other models for a reconstituted upper house. See vol. 3, file, 'Question.' 18 The history of proposals for Senate reform is longer and more complex than this statement suggests. The first suggestion appeared in 1874, and proposals continued to resurface at intervals thereafter. The floodgates opened in the 1960s, when the federal government unveiled the first of a series of mega-constitutional reform packages in which reform of the upper chamber was one part. Ever since, Senate reform has been tied to change to other parts of the constitution. For a discussion of these proposals, see Jack Stilborn, Senate Reform in Canada - A Discussion Paper, and Comments on Twenty-four Senate Reform Proposals Provided for Analysis; and F. Leslie Seidle, 'Senate Reform and the Constitutional Agenda: Conundrum or Solution?' in Janet Ajzenstat, ed, Canadian Constitutionalism, 1791-1991,91-122. 19 Christina Murray, 'Designing Parliament for Cooperative Federalism: South Africa's National Council of Provinces/ paper presented to Canadian Study of Parliament Group Conference on 'Parliamentary Government at the Millennium: Continuity and Change in Westminster Systems/ 5. See also Gary O'Brien, 'South Africa's New Upper Chamber/ 16-18. 20 Senate Debates, 22 January 1914,31. 21 Noel Lyon, The Central Fallacy of Canadian Constitutional Law/ 45. 22 Harold J. Laski, Parliamentary Government in England: A Commentary, 135. He also said that the Lords was 'never rationally defensible after about 1867' (134). In addition to size, Laski saw as causes of decline, first, 'the invention of limited liability/ so that peers became directors of companies thereby destroying the idea that land and finance constituted separate interests and, second, the monopoly the Commons came to exercise over political careers. For more on these developments, see Herman Finer, The Theory and Practice of Modern Government, 406-20. 23 Official Report of the National Australasian Convention, Debates (Sydney), vol. II (1897), 377 (Quick, Victoria), (henceforth Convention Debates). 24 Norman Ward, Dawson's Government of Canada, 153. 25 A House for the Future, 58 and 98. In November 2001 the British government released its white paper, "The House of Lords: Completing the Reform' in response to the Royal Commission report. While accepting in broad outline the recommendations, the government's proposals appeared heavy-handed when it came to implementing the details. For instance, it

188 Notes to pages 7-13

26

27 28 29 30 31 32 33 34 35 36 37

proposed to reduce the role of the independent Appointments Commission and, as an alternative, increase the scope for party political patronage. In February 2002 the government's response was rejected in the Commons, where a majority of MPs of all parties favoured election of new members of the upper house. The Times, 'Report offers compromise on elected House of Lords,' 13 February 2002,13. One catalogue of situations where the veto might be used is taken from a letter (27 August 1998) by Senator Serge Joyal to then Senator Jacques Hebert. It envisions the possibility of the veto in the following situations: When the Senate judges a bill 1) is of grave detriment to one or more regions 2) breaches the fundamental human rights and freedoms as stated in the Constitution 3) is of grave detriment to linguistic and other minorities 4) is of such importance to the future of our country or our institution that the Government needs to seek a mandate for it from the electorate 5) is so repugnant as to constitute a quasi abuse of the legislative power of Parliament. See Mark Audcent, The Senate Veto: Opinion of the Law Clerk and Parliamentary Counsel, 27. Senate Debates, 29 November 1990,4495 (Senator John Stewart). Convention Debates (Adelaide), 1897,275 (George Reid). A House for the Future, 11. Meg Russell, Reforming the House of Lords: Lessons from Overseas. Ibid., 211, 286. Samuel C. Patterson and Anthony Mughan, eds., Senates: Bicameralism in the Contemporary World. Joan Rydon, 'Upper Houses - The Australian Experience,' in Reid, ed., The Role of Upper Houses Today, 22. F. Max Muller, ed., Memoirs of Baron Stockmar (London: Longmans, Green and Co., 1872), II: 550. T.E. Kebbel, 'A Conservative Estimate of the House of Lords,' in Edward A. Freeman, ed., The House of Lords and Other Upper Houses, 87. Canada, House of Commons, Sessional Papers, vol. 28, no. 246 (1914), 'Return to an Order of the House of Commons, dated March 2,1914.' Ibid., 'Supplementary Return/ 15. A recent document that adopts a similarly catholic approach to political and constitutional reform is the Report of the (New Zealand) Royal Commission on the Electoral System (Wellington, 1985). See Elizabeth McLeay, Towards a Better Democracy?: Review Essay

Notes to pages 14-17 189

38 39

40 41 42 43 44 45

46

47 48

on the "Report of the Commission on the Electoral System/" Political Science 39, no. 1 Ouly 1987), 80-96. H.B. Lees-Smith, Second Chambers in Theory and Practice, 34. Chapter 11 of this book is devoted to a discussion of 'the Bryce Conference.' While there is a large volume of primary literature in the United States that takes unicameralism as its cause, the most accessible secondary literature is Harrison Boyd Summers ed., Unicameral Legislatures and Unicameralism in Practice: The Nebraska Legislative System; John P. Stenning, The One-House Legislature. It is an open question whether Summers advanced the cause of unicameralism when he reported that in a survey that included one-third of the membership of the American Political Science Association (five hundred members), 85 percent favoured a single chamber. William F. Buckley's quip - that he would prefer to be governed by the first one hundred people listed in the Boston telephone book than by a century of Ivy League professors - comes to mind. George Carrier shared this sentiment: 'He would distrust the legislation of men who had done nothing also but read.' Debates of the Legislative Assembly of United Canada, I (1841) to XIII (1856). Gen. ed., Elizabeth Nish (Montreal: Presses de 1'Ecole des Hautes Etudes Commerciale, 1970 and Concordia University, 1993), 27 May 1853 (XI.IV.1852-3), 3149 (hereafter DLAUC). See 'Governor Ventura's Remarks on a Single-house Legislature,' 17 August 1999 (http://jesseventura.org/issues/singlehouse/shgovrem.htm). Reynolds v. Sims, 377 US 533 (1964) at 576. Summers, ed., Unicameralism in Practice, 215. J.G. Bourinot, 'The Canadian Dominion and the Proposed Australian Commonwealth, 19 Vile, Constitutionalism and the Separation of Powers, 126-7; see also Thomas Francis Moran, The Rise and Development of the Bicameral System in America. For elaboration on the theory and its application to Canada, see my The Republican Option in Canada: Past and Present, 68-74; Janet Ajzenstat, 'Bicameralism and Canadian Founders: The Origins of the Canadian Senate/ in Joyal, ed., The Senate You Never Knew.' See S.J.R. Noel, Patrons, Clients, Brokers: Ontario Society and Politics, 17911896; and Ged Martin, Bunyip Aristocracy: The New South Wales Constitution Debate of 1853 and Hereditary Institutions in the British Colonies. Jackson, The New Zealand Legislative Council, ix. Ibid., chapter 1. The story of a nominated and an elected upper house in two Australian states, New South Wales and Victoria, is told by C.N. Connolly in "The Origins of the Nominated Upper House in New South

190 Notes to pages 18-19

49 50

51

52 53

54 55

Wales/ 53-74. The New South Wales chamber became popularly elected in 1978. While the Victorian upper house was always elected, that was not the end of the story: See John Cain, 'How to decolonize our upper house/ The Age, 7 June 2000, and Paul Rodan, 'Labor goes house hunting/ ibid., 10 June 2000. Donal O'Sullivan, The Irish Free State and Its Senate: A Study in Contemporary Politics, 120. Government of Ireland, Report of the Constitution Review Group, 67. See also ibid., Appendix 7, Michael Laver, 'Notes on a new Irish Senate/ 531-7. O'Sullivan, The Irish Free State and Its Senate, 373. The literature on Irish constitutional matters is extensive, because Ireland was determined after 1919 to disentangle itself from Great Britain. The complexity and, sometimes, subtlety of that disengagement are recounted in Leo Kohn, The Constitution of the Irish Free State; D.W. Harkness, The Restless Dominion: The Irish Free State and the British Commonwealth of Nations, 194-31; and Alan J. Ward, The Irish Constitutional Tradition: Responsible Government and Modern Ireland, 1782-1992. Canada and Ireland's constitutional status became intertwined in the 1920s, when Ireland accepted dominion status but on condition that executive authority exercised by the Crown be modelled on 'the practice and constitutional usage of the Dominion of Canada/ article 51, Constitution of the Irish Free State. Linking Ireland's status to that of Canada had the unexpected consequence of limiting Canada's constitutional development. Jacqueline Krikorian, 'Imperial Politics and the Judicial Committee: An Examination of Nadan v. The King,' paper presented at the sixty-ninth annual meeting of the Canadian Political Science Association, St John's, June 1997. Jack Stilborn, Comments on Twenty-Four Senate Reform Proposals Provided for Analysis (Ottawa: Parliamentary Research Branch, Library of Parliament, 5 July 1999,6. Senate Debates, 29 November 1990,4477-8 (Senator John Stewart); Evidence (unrevised), Special Senate Committee on Bill C-20 (Clarity Bill), 1 June 2000,21 (Roger Gibbins). When he appeared before the committee, Professor Gibbins disclaimed to be speaking on behalf of the Canada West Foundation of which he was at the time president and chief executive officer. In 1981 the foundation introduced the Triple E proposals into debate on Senate reform. Stilborn, Comments on Twenty-Four Senate Reform Proposals, 19. In 1891 the Sydney Convention consisted of one session. The 1897-8 Convention consisted of three sessions: Adelaide, Sydney, and Melbourne. Convention Debates (Sydney) 1891, 253.

Notes to pages 19-26 191 56 Ibid. Half a century later and from a very different source, the American journal The New Republic came the same opinion: 'Give me the right to name a couple of Senators each year - Senators who remain Senators for life ... then tell me I have no power!' See vol. 99 (20 June 1939), 215. 57 Convention Debates (Adelaide) 1897,175. 58 Convention Debates (Sydney) 1891,126 (Sir Patrick Jennings). 59 A.W. Roebuck, Tinkering with the Senate of Doubtful Value,' 7. 60 John Halstead, 'A Vision for Canada,' 3. 61 Reference re: Legislative Authority of Parliament in relation to the Upper House [1980], 1 SCR54 at 67. 62 Albert Breton, 'The Theory of Competitive Federalism' in Garth Stevenson, ed., Federalism in Canada: Selected Readings, 484-5. 63 Arthur Meighen, 'The Canadian Senate,' 162. 2 Bicameral Perspectives 1 Cheryl Saunders, 'The Australian Republic: Act I/ paper presented to Canadian Study of Parliament Group, Conference on 'Parliamentary Government at the Millennium: Continuity and Change in Westminster Systems,' Ottawa, June 2000. 2 For more on these events, see R.J. Ellicott, 'The Australian Constitutional Convention,' 89-96; Charles Sampford and David Wood, 'Codification of Constitutional Conventions in Australia,' 231-44; H.P. Lee, 'Reforming the Australian Constitution - The Frozen Continent Refuses to Thaw,' 535-46. 3 Convention Debates (Sydney) 1891,31. 4 See Edward A. Freeman, ed., The House of Lords and Other Upper Houses. 5 Convention Debates (Adelaide) 1897,275 (G.H. Reid). 6 Convention Debates (Sydney) 1897,28 (Sir Richard Baker). 7 J.E. Richardson, 'Federal Deadlocks: Origin and Operation of Section 57,' 723. 8 Convention Debates (Sydney) 1891,200 (J-A. Cockburn). 9 Convention Debates (Sydney) 1897,535 (P.M. Glynn). 10 Richardson, 'Federal Deadlocks/ 708. 11 The word belongs to Viscount Bryce. See W. Redmond Curtis, "The Origin and Genesis of the Deadlock Clause of the Australian Constitution,' 412. Bryce later chaired the Conference on the Reform of the Second Chamber, whose report of the same name may be found in Parliamentary Papers (1918), Cmd. 9638. See John D. Fair, British Interparty Conferences: A Study of the Procedure of Conciliation in British Politics, 1867-1921, chapter 9, 'House of Lords Reform, 1917-1918.' 12 Harry Evans, 'Constitutional and Party Government in Australia/ Aus-

192 Notes to pages 26-8

13

14 15 16

17 18 19

20

21

tralasian Study of Parliament Group, Occasional Paper No. 1, August 1988, 93. Ian Marsh, 'Opening up the Policy Process/ in Marian Sawer and Sarah Miskin, eds., 'Representation and Institutional Change: A Conference to Mark 50 Years of Proportional Representation in the Senate, 190. John Uhr, 'Why We Chose Proportional Representation/ in ibid., 20. Campbell Sharman, 'Australia as a Compound Republic/ 3. Elaine Thompson, 'The "Washminster" Mutation/ in Patrick Weller and Dean Jaensch, eds., Responsible Government in Australia (Richmond, Victoria: Drummond, 1980), 32-40 cited in Alan J. Ward, 'Australia and Parliamentary Orthodoxy: A Foreign Perspective on Australia Constitutional Reform, Australian Senate Occasional Lecture Series, Canberra, 18 June 1999,2. See also Senator Helen Coonan, 'The Role of Upper Houses: Is Washminster Washed Up?/ in Charles Sampford and Tom Round, eds., Beyond the Republic: Meeting the Global Challenges to Constitutionalism. Ward, 'Australia and Parliamentary Orthodoxy/ 3-4. See Richardson, 'Federal Deadlocks/ 717-18; Sharman, 'Australia as a Compound Republic/ 3; and Ward, 'Australia and Parliamentary Orthodoxy/ 4. Independence is difficult to define: 'In the summer [1995] we had a visiting delegation of Australian ... I guess they were MLAs. They were from New South Wales. They had tied themselves up in knots that I wouldn't wish on anyone. They had got to the point where they didn't consider themselves to be citizens. They were citizens who got elected to their legislature, but once this happened they were no longer citizens ... Presumably a legislature is citizens being elected to parliament, but not in New South Wales.' Senate of Canada/House of Commons, Proceedings of the Special Joint Committee on a Code of Conduct, No. 1,18 September 1995,1: 55 (Senator Stollery). See Richard Mulgan, 'The "Mandate": A Response to Goot/ 320, and John Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament, 105-8 cited in ibid. See also, Murray Goot, 'Mulgan on Mandates/ 323-5, and Goot, 'Can the Senate Claim a Mandate?/ in Sawer and Miskin, Representation and Institutional Change, 79-94. Richard Mulgan, 'The Australian Senate as a "House of Review/" 191-204. Attitudes toward review differ. According to one observer of Australian politics, 'Australian^]... assume that politics is a corrupting activity, and argue that people in power must be monitored and checked as closely as possible.' See Howard Cody, 'Lessons from Australia in Canadian Senate

Notes to pages 29-32 193

22

23 24

25 26 27 28

29 30

31 32

Reform/ 21. Support for that position can be found in the mammoth Report of the Western Australia Commission on Government. Its terms of reference as well as recommendations share a common theme: to institute institutional reform 'to prevent corrupt, illegal or improper conduct in the Western Australian public sector.' Western Australia, Commission on Government, Report No. 5 (Perth, WA., August 1996). Alan J. Ward, 'Responsible Government and Recent Constitutional Change in Australia and New Zealand,' 169-70. See also Commonwealth of Australia, Constitutional Commission, First Report of the Constitutional Commission: Summary. The relevant letters are Grey to Elgin, 31 July 1849 and Elgin to Grey, 27 August 1849 in Sir Arthur G. Doughty, ed., The Elgin-Grey Papers, 1846 to 1852,1: 435-6 and II, 452. See, for instance, David Mills to Sir Wilfrid Laurier, 22 December 1900, in which he informs the prime minister that 'in return for the promise of a knighthood Senator Gowan had agreed to resign, thus enabling the government to strengthen its position in the Senate.' Cited in Paul Stevens and John T. Saywell, eds., Lord Minto's Canadian Papers: A Selection of the Public and Private Papers of the Fourth Earl ofMinto, 1898-1904,1: 449. Meg Russell, Reforming the House of Lords: Lessons from Overseas, 53. W.K. Jackson, The New Zealand Legislative Council: A Study of the Establishment, Failure and Abolition of an Upper House, ix. Meg Russell, Reforming the House of Lords: Lessons from Overseas, 52. A House for the Future, 92 and 150. The composition of the pre-reform Lords is discussed by Donald Shell, 'To Revise and Deliberate: The British House of Lords,' in Samuel C. Patterson and Anthony Mughan, eds., Senates: Bicameralism in the Contemporary World, 205-9. A possible exception would be the Senate's former role in the matter of divorce. Mr Justice Allison A.M. Walsh, 'Divorce by Resolution of the Senate,' 1-22. Peter Carrington, "The Lords are A-Leaping' in Keith Sutherland, ed., The Rape of the Constitution?, 188-90. Lord Carrington (leader of the House of Lords from 1963 to 1964 and leader of the opposition in the Lords from 1964 to 1970 and 1974 to 1979) has noted that of 'the enormous figure of 932 Barons and Baronesses [in 1998]... only 80 were created before 1800 and only 180 before 1900.' Harry Evans, Constitutionalism and Party Government in Australia,' Part 2, 'Constitutionalism and Second Chambers.' Convention Debates (Melbourne) 1898, 761 (G.H. Reid). Anthony Trollope

194 Notes to pages 33-6

33 34 35

36 37 38 39 40 41 42

43

expressed a similar sentiment in Ralph the Heir: '"A stand-up fight, and if you're licked - take it." That was his idea of what an election should be.' (London: Humphrey Milford, [1946]) I: 305. Convention Debates (Sydney), 1897,192. Quotations in this paragraph and the previous paragraph are from the royal commission report, A House for the Future, 33,49 and 25. See John Nethercote, 'Senate is a people's house, too/ Sydney Morning Herald, 14 March 1994,13, and 'The Senate, the House of Representatives and the Condition of the Commonwealth Parliament/ 3-7; Charles Jones, 'A Way of Life and Law/ 1-9, and Tony Wright, Citizens and Subjects: An Essay on British Politics, chapter 1. Fair, British Interparty Conferences, chapter 9, 'House of Lords Reform, 1917-1918.' Commons Debates, 21 February 1910, 52-63, cited in Fair, British Interparty Conferences 79. Ibid. Joseph Jaconelli, 'Majority Rule and Special Majorities/ 597. Corinne Comstock Wilson, 'The Liberal Leadership and the Lords' Veto, 1907-1910/517. Jaconelli, 'Majority Rule and Special Majorities/ 597. 'Only five Bills have been enacted under Parliament Act procedures ... The Government of Ireland Act 1914, which was suspended on the outbreak of war and repealed by the Government of Ireland Act 1920; the Welsh Church Act 1914, which was also suspended on the outbreak of war and given effect by the Welsh Church (Temporalities) Act 1919; the Parliament Act 1949; the War Crimes Act 1991; and the European Parliamentary Elections Act 1999.' A House for the Future, 32. Ibid.; 36, Recommendation No. 3. The commissioners do recommend one amendment to strengthen the Parliament Acts (1911 and 1949), thereby 'excluding] the possibility of their being further amended by the use of Parliament Act procedures.' In particular, the commissioners do not want existing Parliament Act procedures to be used to limit the second chamber's current absolute veto over any bill to extend the life of a Parliament (Recommendation No. 19). This is not an unimportant consideration, although in its white paper in reply to the report, the government chose not to make the recommended change. See 'The House of Lords: Completing the Reform/ 7 November 2001, paragraph 30. In the opinion of William Riker, the 'skipped' elections of 1916 and 1940 were not the 'non-political events' British writers treated them as being. On the contrary, he concludes that unicameralism, the label he applies to

Notes to pages 36-7 195

44

45

46

47

Britain's 'one-house legislature' run by its executive 'committee/ makes it 'relatively easier for the legislators to perpetuate their offices and thus to violate a fundamental democratic norm than does bicameralism.' 'The Justification of Bicameralism/ 114-15. See Bernard Weatherill, 'The Law of Unforseen Consequences' and J.R. Lucas, 'Constitution and Democracy' in Keith Sutherland, ed., The Rape of the Constitution?, 172 and 206. Weatherill was Speaker of the House of Commons from 1983 to 1992, Lucas formerly a fellow and tutor at Merton College, Oxford. The Economist, 23 February 1867,203. Still in the nineteenth century, see C. Berkeley Powell, 'Senate Reform: speech delivered in the Legislative Assembly, Toronto, 21 March 1899.' (Ottawa: Ottawa Print Co., 1899), microform, CIHM microfiche series no. 04956: '[I]f the House of Commons passes any Bill and the Senate rejects such Bill and fails to pass it, or passes it with any amendment or amendments to which the House of Commons shall not agree and to which amendment or amendments the Senate adheres, the Governor General may, by message, upon the advice of his Council, convene a joint sitting of the two Houses, at which the questions in controversy and the final passage of such Bill shall be decided by a joint vote of the two Houses without debate.' S.J.R. Noel notes that as a result of Newfoundland's Legislature Act of 1917, the Legislative Council 'was empowered to delay a money bill for one month and any other bill for three consecutive sessions of the legislature.' Politics in Newfoundland, 19. See, for instance, Senate Committee on Legal and Constitutional Affairs (Goldenberg-Lamontagne), 1980; Special Joint Committee on Senate Reform (Molgat-Cosgrave), 1984; Royal Commission on the Economic Union and Development Prospects for Canada (Macdonald), 1985; Special Joint Committee on a Renewed Canada (Beaudoin-Dobbie), 1992. For a discussion of the effect of selected reforms on the complex interrelationship of Senate powers, see C.E.S. Franks, 'Not Dead Yet, but Should It be Resurrected? The Canadian Senate/ in Patterson and Mughan, eds., Senates: Bicameralism in the Contemporary World, 150-7. In 2004 seven states (Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming) will have the same congressional representation they had on joining the Union - one representative and two senators. Five others (Hawaii, Idaho, Maine, New Hampshire, and Rhode Island) have two representatives. The implications of these numbers require study. That is, in almost one-quarter of the American states, senators are more or as numerous as congressmen. Strategies of representation

196 Notes to pages 38-41

48 49 50

51 52 53 54

55

56 57

for these states will differ significantly at both levels of Congress when compared with the behaviour of senators and congressmen from California, New York, and Texas, for instance. Saul Levmore, 'Bicameralism: When Are Two Decisions Better Than One?,' 154—5. A House for the Future, 60. Commons Debates, 17 February 1914,863 (O. Turgeon). Peter S. Onuf, The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775-1787,22ff. Unless otherwise noted, quotations in the next paragraph are from this work, chapter 2, 'From Colony to Territory: Changing Concepts of Statehood.' Samuel H. Beer, 'Federalism, Nationalism, and Democracy in America,' 16. M.N.S. Sellers, American Republicanism: Roman Ideology in the United States Constitution, 153-4. Canada, 'Minutes of the Proceedings in Conference of the Representatives of the Provinces, October 1913,' Dominion Provincial and Interprovincial Conferences from 1887 to 1926,77 (emphasis in original). Senator Norman Lambert, 'Reform of the Senate: Historical Justification,' Winnipeg Free Press, 17 April 1950 19. Senator Lambert's opinion finds support in the fourth and twelfth resolutions unanimously adopted by the first Interprovincial Conference (1887). These were: 'that the purpose of the Senate was to protect the interests of the Provinces as such ...' and 'that the experience which has been had since Confederation shows that, under Responsible Government and with the safeguards provided by the British North America Act, a second Provincial Chamber is unnecessary...'. 'Minutes of the Proceedings of the Interprovincial Conference held at the City of Quebec, from the 20th to the 28th October, 1887, inclusively/ Dominion Provincial and Interprovincial Conferences from 1887 to 1926, 21 and 22-3. Electoral reform in Canada has been a pastime of an academic elite. Unlike in Australia or Great Britain, neither citizen nor extra-university bodies have advocated change. Founded in 2002, Fair Vote Canada (www.fairvotecanada.org), 'a new citizens' campaign for voting system reform' may signal a departure from this civic lethargy; but see Christopher Moore, 'Why "fair voting" can't live up to its name/ National Post, 25 May 2002, B1-B2. William H. Riker, "The Senate and American Federalism/ 452-69. It is Riker who develops the contrast between 'centralized and peripheralized federalisms.' J.A.R. Marriott, Second Chambers: An Inductive Study in Political Science, 103.

Notes to pages 41-5

58 59 60 61

62

63 64

65 66 67

68 69

197

See also Elaine K. Swift, The Making of an American Senate: Reconstitutes Change in Congress 1787-1841. Riker, 'The Senate and American Federalism/ 461. See Martin Landau, 'Federalism, Redundancy and System Reliability/ 173-96. Senate Debates, 26 March 1998,1306 (Senator Di Nino). See David Smith, 'A House for the Future: Second Chamber Reform in the United Kingdom/ 325. Arend Lijphart has written extensively on the reasons for the adoption and retention of unicameral and bicameral legislatures. He argues that there is only 'a weak connection' between the number of houses and how homogeneous society is. On the other hand, 'both size and federalism are clearly related to bicameralism. All of the large countries and all of the federal systems have bicameral parliaments. Of the countries that are both small and unitary, almost all are characterized by unicameralism; the only exception is Ireland.' Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries, 92-4. Werner J. Patzelt, 'The Very Federal House: The German Bundesrat' in Patterson and Mughan, eds, Senates: Bicameralism in the Contemporary World, 65. Nevil Johnson, State and Government in the Federal Republic of Germany: The Executive at Work, 126. See Kenneth McRae, Constitutional Democracy: Political Accommodation in Segmented Societies, Part Four, 'Canada'; see also Herman Bakvis, Catholic Power in the Netherlands. Patzelt, 'The Very Federal House: The German Bundesrat/ 65. Ibid., 84. According to Donald V. Smiley and Ronald L. Watts, in Intrastate Federalism in Canada, 163, n34: 'Canadian proponents have included the Government of British Columbia (1978), the Ontario Advisory Committee on Confederation (1978), the Progressive Conservative Party of Canada (1978), The Canada West Foundation (1978), The Canadian Bar Association (1978), the Task Force on Canadian Unity (Pepin-Robarts) (1978), the Quebec Liberal Party (1980) and the Government of Alberta (1982).' Roger Gibbins, Senate Reform: Moving Towards the Slippery Slope, 8. See Smiley and Watts, Intrastate Federalism in Canada, 121-3 for a discussion of two Bundesrat-like proposals: British Columbia, Constitutional Proposals: Reform of the Canadian Senate, Paper 3 (Victoria 1978), chapter 8, and Quebec Liberal Party, Constitutional Committee, A New Canadian Federation (Montreal, 1980), chapter 9.

198 Notes to pages 47-50 3 The Senate as an Object of Study 1 The bibliography is divided into six parts: 'Historical and General Works/ 'Senate Reform/ "Triple E" Proposal/ 'Australian and German Models/ 'Legislation/ and 'British House of Lords/ Entries in the first three parts total 654. The Library of Parliament issued an additional bibliography on the Senate in 1999. This time there were five parts, but except for the first, 'General Studies/ the others were geographically labelled: Canada, the United States, Great Britain, and Australia. Entries totalled 116. Because documents emanating from federal bodies are published in both official languages, the figures involve some double-counting. 2 John C. Wahlke, 'Policy Demands and System Support/ in Gerhard Loewenberg, ed., Modern Parliaments: Change or Decline?, 161. 3 John N. Turner, "The Senate of Canada. Political Conundrum/ in Robert M. Clark, ed., Canadian Issues: Essays in Honour of Henry F. Angus, 57-80, quoted by Senator John B. Stewart in speech on third reading of Bill C-62 (GST bill), Senate Debates, 29 November 1990,4490. 4 Saskatchewan Archives Board, Norman Ward Papers, A526, 'Project #2, The Members of Parliament/ n.d. [1964] (Folder 110). The same folder includes a seven-page 'Interview Schedule for Canadian Senators.' 5 Other responses included omitting front benchers and party leaders from the study; using a stratified sample of 110 MPs rather than all members of the House; and replacing student interviewers with senior interviewers. Questions about the study may be found in Commons Debates, 9 April 1965, 167-8. 6 See Edwin R. Black and Alan C. Cairns, 'A Different Perspective on Canadian Federalism/ 27-^4. 7 'Never' may not be quite accurate. At page 2,300 of the Report of Proceedings, which runs from no. 1 (29 November 1937) to no. 68 (2 June 1938), T.C. Davis, Saskatchewan's attorney general, says that with Ontario's twenty-four senators and Saskatchewan's six, 'we believe we are a "little out of line"' (17 December 1937). A rare reference to the commission's resounding silence on the Senate's role in the Canadian federation is to be found in Randall White, Voice of Region: The Long Journey to Senate Reform in Canada, 125-6. On 28 January 1938 the commissioners heard from Dr Heinrich Bruning, Hitler's predecessor as chancellor of the Weimar Republic. Then teaching at Harvard, Bruening explained at length Germany's practice of legislative and administrative federalism (3657-3775A). 8 Excluded from this account is Randall White's Voice of Region, on the

Notes to pages 50-2 199

9 10 11

12

13

14

15 16

17

grounds that, in the author's own words, his 'book has as much to do with the history of Canadian regionalism as with the history of the Canadian Senate ... It is especially tilted toward Western Canada' (7). Sir George Ross, The Senate of Canada, Its Constitution, Powers and Duties Historically Considered, 100. Jack Stilborn, 'Comments in Twenty-Four Senate Reform Proposals Provided for Analysis,' 6. According to the Library of Parliament bibliography on the Senate, a year after the revised edition of The Unreformed Senate in Canada appeared, MacKay published one journal article, To End or Mend the Senate/ 28796. While it was not published, Kunz did deliver an address, "The Senate as a Parliamentary Institution' to the Senate Committees Professional Development Workshop in 1991. This appeared in a collection of Keynote Addresses, issued by the Senate Committees and Private Legislation Directorate, March 1995,1-6. For the range of Norman Ward's published writings, see 'Norman Ward: A Selected Bibliography,' compiled by Shirley Spafford in John C. Courtney, ed., The Canadian House of Commons: Essays in Honour of Norman Ward, 201-14. Robert A. MacKay, The Unreformed Senate of Canada (rev. ed.), 187. In the original edition (223-4), MacKay proposed a scheme whereby half the senators would be elected by the House of Commons and the other half appointed by the governor-in-council. Rather than life appointment, the term of office would be nine years, with one-third of both elected and appointed senators retiring every three years. This proposal does not appear in the revised edition. Colin Campbell, The Canadian Senate: A Lobby from Within, 32. On the matter of the Senate's composition, MacKay is more sanguine than Campbell: 'Given the prevailing public philosophy, directorships, as such, can scarcely be regarded as sinister, and it is difficult to see why they should be when held by Senators.' Unreformed Senate of Canada (rev. ed.), 141. Ibid., 33 (emphasis in original). Robert A. Dahl, A Preface to Democratic Theory, and Pluralist Democracy in the United States: Conflict and Consent; Robert Presthus, 'Interest Groups and the Canadian Parliament: Activities, Interaction, Legitimacy and Influence,' 411-60; V.O. Key Jr., Public Opinion and American Democracy; and Peter Bachrach, The Theory of Democratic Elitism: A Critique. '[Fjollowing a general election, the respective legislative assembly or the House of Commons would choose persons from a nomination list so that the final choice "fairly reflects" the "political preferences" of the electors ...'

200 Notes to pages 53-4

18 19

20

21

22

'The position paper suggested the constitution could explicitly state that the government was "not formally obliged to command the second chamber's confidence," and Bill C-60 provided for a suspensive veto of no longer than 120 days over ordinary legislation. The proposed method of selection was linked to a concern about "a situation in which a second chamber could repeatedly frustrate the government's attempts to legislate. The best way to ensure against this would be to so arrange matters that no single federal political party can at any one time expect to have a majority of members, or to control a permanent majority in concert with other parties'" (F. Leslie Seidle, 'Senate Reform and the Constitutional Agenda: Conundrum or Solution?/ in Janet Ajzenstat, ed., Canadian Constitutionalism, 1791-1991,97-8). Re: Authority of Parliament in Relation to the Upper House (1980) 1 SCR 54. Campbell, The Canadian Senate, 162. In these same pages, Campbell discusses (and dismisses) Richard Simeon's unfavourable assessment of a Bundesrat-styled upper house for Canada. Simeon, the author of the most cited work on Canadian federalism in the 1970s, Federal-Provincial Diplomacy: The Making of Recent Policy in Canada, argued that German federalism was essentially different from Canadian. He might also have observed, along with the Special Committee of the Senate on the Constitution, First Report, 1:17, that there was 'an underlying confusion ... between a federalprovincial enclave and a parliamentary second chamber.' Cited in Seidle, 'Senate Reform and the Constitutional Agenda,' 98. C.E.S. Franks, The Parliament of Canada, chapter 9 and Norman Ward, Dawson's The Government of Canada, chapter 8. One of the pieces by Franks on the Canadian Senate appears with the title 'Not Dead Yet, But Should It Be Resurrected?, in Samuel C. Patterson and Anthony Mughan, eds., Senates: Bicameralism in the Contemporary World, 120-61. Franks notes that in its support for Triple E, the Macdonald Commission's report 'was more enthusiastic about what Senate reform might accomplish than the cautious studies [Smiley and Watts] made for it' (The Parliament of Canada, 199). For a chronology of reform proposals in the 1980s and 1990s, see Jack Stilborn, 'Comments on Twenty-Four Senate Reform Proposals Provided for Analysis.' Stilborn identifies as a continuing unresolved problem the inability 'to translate a vision of needs that require Senate reform into a more specific set of roles that can provide a basis for the design of the institution' (3). On Triple E, see Peter McCormick, Ernest C. Manning, and Gordon Gibson, Regional Representation: The Canadian Partnership, and David Elton and Peter McCormick, A Blueprint for Senate Reform.

Notes to pages 54-8 201 23 Among other purposes, the Alberta Committee recommended that it 'should continue to act as a body of "sober second thought."' As well, it recommended that 'another original purpose of the Senate, that is, to represent property owners, should be abandoned immediately' and that 'the Senate should not be a forum for inter-governmental negotiations' (4). 24 Roger Gibbins, Senate Reform: Moving Towards a Slippery Slope, 25. 25 Ted Byfield, 'A Triple E plan to make Ottawa ours, not theirs,' Alberta Report, I April 1985,44. The Library of Parliament Bibliography on the Senate, compiled in March 1991, lists one hundred articles published in the Alberta Report between 1985 and 1991. 26 Jack Stilborn, Senate Reform in Canada - A Discussion Paper, 61, citing Canada West Foundation, Taking a Look: Public Opinion in Alberta and Canada on Senate Reform, September 1998 (available at www.cwf.ca) 9. 27 Bert Brown (Alberta 'senator-in-waiting'), quoted in National Post, 'Wouldbe senators get into the chamber as visitors,' 3 December 1998, A7, and 'Chretien names 3 new senators,' ibid., 3 September 1999, Al. 28 Byfield, 'A Triple E plan to make Ottawa ours, not theirs,' 44. Garry Wills, Inventing America: Jefferson's Declaration of Independence, 40; Tom Flanagan, 'Why Canada is a Kleptocracy/ National Post, 6 February 2001, A14. 29 Byfield, 'Big gain for the Triple E Senate, but remember: every E is vital,' Alberta Report, 15 December 1986,52. 30 Byfield, 'A Triple E plan to make Ottawa ours, not theirs,' 44. 31 'A threat to real Senate reform,' Alberta Report 11 March 1985,6-12. In response to the Senate's action, the Mulroney government drafted an amendment that would have allowed a money bill to be proclaimed if the Senate had not passed it within thirty days; for other bills the time limit was forty-five days. In other words, the Canadian, like the British, upper house would have a suspensive veto only. 32 National Post, 3 December 1998, A7. 33 'Patronage taints Senate Manning tells House,' Globe and Mail, 21 April 1998, A7. 34 'Chretien names 3 new senators/ National Post, 3 September 1999, Al. 35 Frontbench Liberals, such as Lloyd Axworthy, John Manley, and Stephane Dion, all three cabinet ministers in 1999, were 'on record as favouring the end of the upper house/ Even the Liberal caucus's constitutional expert, Ted McWhinney, viewed the Senate as 'an illegitimate body as it now exists/ 'Top Grit politicians critical of Senate/ Star-Phoenix (Saskatoon), 31 May 1999, A6. 36 Ronald L. Watts, 'Bicameralism in Federal Parliamentary Systems/ in Serge Joyal, ed., Protecting Canadian Democracy: The Senate You Never Knew, 91; Michael Bliss, 'The Olympic Stadium of Canadian Politics/ National

202 Notes to pages 58-62

37

38 39 40

41 42 43 44 45

46

Post, 4 February 1999, A18; Brian Galligan, 'An Elected Senate for Canada?: The Australian Model/ 81; Arend Lijphart, 'Bicameralism: Canadian Senate Reform in Comparative Perspective,' in Herman Bakvis and William D. Chandler, eds., Federalism and the Role of the State, 104. The Hon. Sidney L. Buckwold, "The Canadian Senate: Between Past and Future,' in G.S. Reid, ed., The Role of Upper Houses Today (Proceedings of the Fourth Annual Workshop of the Australasian Study of Parliament Group, Hobart: University of Tasmania, 1983), 163; Senate Debates, 29 November 1990,4491 (Senator John Stewart); Philippe D. Gigantes and Susan Elrington The Thin Line: Reforming the Senate, 7. Senate Debates, 26 March 1998,1306 (Senator Di Nino). Paul Howe and David Northrup, Strengthening Canadian Democracy: The Views of Canadians, 8-14. This is not the same thing as saying that Parliament, and more particularly the House of Commons, is 'a totally dysfunctional institution.' That remark was made by a frustrated Saskatchewan member of Parliament, who decided not to run in the 2000 election campaign. His criticisms provided the National Post with the occasion to run a week-long series of articles on the eclipse of Parliament. See, for example, 'Putting the Whips in Chains,' 'Backbenchers Fight Back,' and 'No Room for Dissent,' National Post, 12-17 February 2001. Officers of Parliament pose a limitation on political responsibility. Megan Michelle Furi, 'Officers of Parliament: A Study in Government Adaptation,' MA Thesis, University of Saskatchewan, August 2001. For numbers and descriptions, see Mark Audcent, The Senate Veto: Opinion of the Law Clerk and Parliamentary Counsel, Appendix 1, 'Senate Use of the Veto to Defeat Bills.' Alfred de Grazia, Public and Republic, 170, quoted in Gerhard Loewenberg, ed., Modern Parliaments: Change or Decline?, 162. James G. March and Johan P. Olsen, Rediscovering Institutions: The Organizational Basis of Politics, 48. Alan J. Ward, 'Australia and Parliamentary Orthodoxy: A Foreign Perspective on Australian Constitutional Reform,' Australian Senate Occasional Lecture Series, Canberra, 18 June 1999,4-5. The literature on provincial upper chambers is sparse and antiquated. See Edmond Orban, Le conseil legislatifde Quebec, 1867-1967; Gustave Turcotte, Le Conseil Legislatifde Quebec, 1774-1933; D.C. Harvey, 'The Passing of the Second Chamber in Prince Edward Island/ 22-31; Duncan McArthur, 'A Canadian Experiment with an Elective Upper Chamber/ 79-88.

Notes to pages 62-71 203 47 On this point, it is worth noting Orban's comment: 'Le Conseil Legislatif... s'est done inspire de 1'esprit qui regne a la Chambre des Lords, plutot que des pratiques du Senat canadien' (p. 134). 48 Franks, "Not Dead Yet... the Canadian Senate/ in Patterson and Mughan, Senates: Bicameralism in the Contemporary World, 121. 49 Franks, 'The Canadian Senate in Modern Times/ in Serge Joyal, Protecting Canadian Democracy, 185. 50 George M. Wrong, "The Relations of the Legislative to the Executive Power in Canada/ 174-6. 4 Representation 1 Michael Pitfield, 'An Appointed Chamber will Always Lack Credibility/ 12-15; Bob Rae, 'Scrap the Senate and Start Afresh/ 16-18; Duff Roblin, "The Case for an Elected Senate/ 6-10. 2 See 'Introduction: The Concept of Representation/ in Hanna Fenichel Pitkin, ed., Representation, 10-11, and Pitkin, 'Commentary: the Paradox of Representation/ in J. Roland Pennock, and John W. Chapman, eds., Nomos X: Representation, 38-42. 3 Pitkin, 'Commentary: The Paradox of Representation/ 41. 4 All quotations in the next two paragraphs are from Alberta, Strengthening Canada: Reform of Canada's Senate. It is incorrect to say, as the report does, that the reformed Senate would ratify treaties. The United States Senate, which is often cited as a model in this regard, gives its 'advice and consent ... to make treaties' (art. II, s. II). The actual making (ratification) of treaties is an executive act. 5 Nelson Polsby, 'Strengthening Congress in National Policy-making/ 487, cited in Thomas E. Mann and Norman Ornstein, eds., The New Congress, 366. On linkage between the two US chambers, particularly in regard to electoral campaigns, see Richard F. Fenno, Jr, The United States Senate: A Bicameral Perspective. 6 R. MacGregor Dawson, The Government of Canada (5th ed., rev. by Norman Ward), chapter 16. 7 The same can be said of the forty-nine states (excluding Nebraska) that have bicameral legislatures. In Reynolds v. Sims, 377 US 533 (1964), the United States Supreme Court dismissed as illegitimate any legislative institution that was not apportioned on a population base (574-6). Oneperson one-vote was the constitutional basis of representation for all (upper and lower) state houses. So-called little federal schemes in the

204 Notes to pages 71-6

8

9

10 11 12

13 14 15 16

17 18

states were unconstitutional. Court decisions of this kind explain Governor Ventura's recent campaign to make Minnesota's legislature unicameral. See The New Yorker, 6 September 1999,23-4. Kassongo Tunda (Alias Kizuzi Dibayula) v. The Minister of Citizenship and Immigration, 11 June 1999, Docket IMM-980-97, (FCC), paragraph 23:18. See also Canadian Rights Reporter 70 (2000), 372-6. The history of redistribution can be found in several sources, for example, Norman Ward, 'A Century of Constituencies,' 105-22. In Kassongo Tunda Mr Justice Teitlebaum admirably summarizes the story. This and the following paragraph borrow heavily from his judgment. Commons Debates, 10 April 1915,2328. Randall White discusses the debate over 'the new western section' in Voice of Region: The Long Journey to Senate Reform in Canada, 109-11. Senate Debates, 10 March 1915,62 (L-O. David). Commons Debates, 11 June, 1914,5296 (O. Turgeon). Proceedings and Evidence of the Special Joint Committee of the Senate and House of Commons on Senate Reform, 18 October 1983,30: 26. The same regional emphasis is found in a letter from Claude Gauthier, secretary to Prime Minister John Diefenbaker, to Master Richard Kelley: 'It is also provided that each of the great sections of Canada shall be represented equally by twenty-four members of the Senate. The sections so represented include the great Agricultural West; Industralized Ontario; the Province of Quebec which has special interests, institutions and laws; the Maritimes, regarded as having problems unfamiliar to Western Canada.' Diefenbaker Archives, Diefenbaker Papers, 14 May 1962 (file VI/275,320/225566-7). Senate Debates, 29 November 1990,4478 (Senator John B. Stewart); ibid., 9 March 1915,52-3. Ibid., 11 June 1914,890. Kassongo Tunda ... v. The Minister of Citizenship ..., paragraph 10. An almost duplicate debate occurred in 1853, when A-N. Morin (then in coalition with Francis Hincks) recognized that in such a conflict of goals the only alternative was to ensure that no one lost by increasing the size of the chamber and giving the additional seats to the areas of population growth. The slow growth areas would remain undisturbed. The unpalatable second choice was to 'disfranchis[e] the smaller constituencies to make up a higher number of representatives in the large ones.' DLAUC, 1 March 1853 (XI.III.1852-3), 1795. Quoted in Kassongo Tunda, v. The Minister of Citizenship ..., paragraph 25. Parliamentary Debates on the subject of Confederation of the British North American Provinces, Quebec 1865 (Ottawa: King's Printer 1951), 6 February 1865, 38. (John A. Macdonald), (hereafter Confederation Debates).

Notes to pages 77-81 205 19 New Brunswick Assembly Journal (1843), 288-9, quoted in J.G. Bourinot, 'The Constitution of the Legislative Council of Nova Scotia,' 153-4. See also D.C. Harvey, 'The Passing of the Second Chamber in Prince Edward Island,' 24. 20 DLAUC, 8 October 1853 (XI.II. 1852-3), 933; David C. Doucherty, Mr. Smith Goes to Ottawa: Life in the House of Commons, 52. Thirty and 22 percent respectively of the turnover in 1974 and 1980 were due to retirement and not defeat. That is, in a matter of months, persons who ran in one election decided not to run again. 21 James Young, Public Men and Public Life in Canada, 1: 266-8. 22 The Parliamentary Debates of England, 29 (1791-92), 385-412. A discussion of this debate and the application of theories advanced there to government in Canada before Lord Durham's Report may be found in David E. Smith, The Republican Option in Canada, Past and Present, chapter 3, 'Canadian Attitudes: The Search for Constitutional Balance in Pre-Confederation Canada.' 23 W.K. Jackson, The New Zealand Legislative Council: A Study of the Establishment, Failure and Abolition of an Upper House, 4. Grey and Elgin corresponded on the matter of an elected council. See Sir Arthur G. Doughty, ed., The Elgin-Grey Papers, 1846 to 1852, II: 613. 24 Confederation Debates, 21,35,88-90,240-1. 25 Ibid., 90; also DLAUC, 16 March 1855 (XII.IV.1854-5), 8243-6, passim. 26 Sydney Morning Herald, 29 August 1853, quoted in C.N. Connolly, The Origins of the Nominated Upper House in New South Wales,' 60. According to Brown, the effect of the elective principle would be 'to check the will of the people/ DLAUC, 19 October 1852 (XI.11.1852-3), 1105. 27 Ibid., 1102 and 1110. Confederation Debates, 2 March 1865,569 (Evanturel and Cauchon). Cauchon defends himself against the charge that he is critical of the Belgian constitution because it is 'too conservative; on the contrary I use it as an argument in my favor, because the qualification there is so high, that hardly one in six thousand can be found who can aspire to the post of senator.' For a description of the bicameral parliament of Belgium, fifteen other European countries and the United States before the First World War, see Canada, Sessional Paper No. 246 (1914). To an Order of the House of Commons, dated March 2,1914, giving the following information ... respecting the constitution of Upper Chambers or Senates ... in foreign countries ...,' 107p. Plus Supplementary Return, 246a (1914), 16p. 28 Robert A. MacKay, The Unreformed Senate of Canada (rev. ed.), 159. See also Meg Russell, Reforming the House of Lords: Lessons from Oversees, 163 and 286. 29 Joyal, "The Senate that you thought you knew.'

206 Notes to pages 81-5 30 31 32 33 34

35 36 37

38

A House for the Future, 8; Russell, Reforming the House of Lords, 101-2. The National 9, no. 8 (December 2000), 11-18. See The Famous 5: Nation-Builders (Calgary: Famous 5 Foundation, 1999). Saskatoon Star Phoenix, 27 May 1996, A7. See David E. Smith, 'A House for the Future: Debating Second Chamber Reform in the United Kingdom/ 325^14; see also Peter Dorey, The Labour Party and the Problems of Creating a "Representative" House of Lords/ 121. John Uhr, 'Why We Chose Proportional Representation/ in Marian Sawer and Sarah Miskin, eds., 13-14. Arthur Sheps, 'The American Revolution and the Transformation of English Republicanism/ 20 (emphasis in original). Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America. See also Gordon S. Wood, Representation in the American Revolution. 'Roundtable on the Wakeham Report/ Representation, 37 (no. 2,2000), 105. A former federal cabinet minister in Australia has suggested that Butler's scepticism has substance: [There is the] political opportunism which undermines its role as a house of review, a flaw which derives from the Senate's own entanglement in the battle for executive power. Opposition executive, or would be executive, figures seek to exploit the minority position of the government, characteristic of the Senate over most of the last thirty years, for oppositionist ends, a task often facilitated by the populist inclinations of the minority parties. The consequences of this opportunism will not be in the interest of good government; frequently they may not be in the interests of a good Parliament. (Blewett, 'Parliamentary Reform: Challenge from the House of Representatives/ 68).

39 40 41

42

In his memoir A Cabinet Diary: A Personal Record of the First Keating Government, 151, Blewett developed this analysis further, noting in some detail struggles between the government and the upper house over control of the policy agenda. House of Lords Debates, 12 February 1986, cols. 257-8. George W. Ross, Getting into Parliament and After, 233-4. Gerhard Loewenberg, ed., Modern Parliaments: Change or Decline?, 15. According to David B. Truman, what a political system does and how well it and its institutions perform, is an indicator of legitimacy. "The Representative Function in Western Systems/ in Edward H. Buehrig. ed., Essays in Political Science (Bloomington: Indiana University Press, 1966), 88-9. DLAUC, 16 March 1855 (XII.V.1854-5), 2249 (John A. Macdonald).

Notes to pages 86-91 207 43 Senate of Canada, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 21:28 (25 June 1996), 21:100 (26 June 1996), and 23:30, 23:59 and 23:63 (9 July 1996). 44 Hogan et al. v. Newfoundland (Attorney General) et al. (1997), 154 Nfld. and PEI Reports, 121. Quotations in the following paragraph are found at pages 138,144,141, and 140 of the judgment. Debate in the Senate is found in Senate Debates, 7 November 1996,1145 (Senator Michael Kirby). 45 R.J.R.-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (procureur general), [1994]! SCR 311. 46 Senate Debates, 10 December 1998,2445. 47 United States v. Burns, 2001 SCC 7, file no. 26129. 48 Proceedings of the Special Joint Senate-House of Commons Committee on Senate Reform, 6 October 1983,25:49 (witness, D. Spafford). 49 Joseph F. Zimmerman and Wilma Rule, 'This Old House: Remodel or Rebuild? (A More Representative United States House of Representatives?)/ 5-10. 50 Michael Adams, The Revolt of the voting classes,' Globe and Mail, 30 November 2000. While the context is the New Democratic Party, the following sentiment is nonpartisan: 'For people like them, the fight is outside the House of Commons; the enemy is big corporations rather than the Liberal government' Globe and Mail, 19 March 2001, A4. 51 F.A. Kunz, The Modern Senate of Canada, 1926-1963,155. 5 Federalism 1 Cheryl Saunders, 'Representation and National Political Institutions' (paper presented to conference on Parliamentary Government at the Millennium: Continuity and Change in Westminster Systems,' Canadian Study of Parliament Group, 10 June 2000), 8. In 2000, Cheryl Saunders was director of the Centre for Comparative Constitutional Studies, University of Melbourne. 2 Peter Aucoin, 'Regionalism, Party and National Government' in Peter Aucoin, ed., Party Government and Regional Representation in Canada, 150; David Cameron, 'Background Paper, "Structures of the Intergovernmental Relations'" (Forum of Federations International Conference on Federalism, Mont Tremblant, Quebec, 1999), 5; D.A. Soberman, 'Canada's Institutional Deficit/ 205. 3 Commons Debates, 30 April 1906,2301,2280 and 2284; inclusive pagination for 1906 is 2276-2320 and for 1908,1514-84. 4 See Senate Debates, 18 February 1998,1061-6; 24 February 1998,1117-20;

208 Notes to pages 92-5

5 6 7

8 9

10 11 12 13

14

19 March 1998,1235-8; 24 March 1998,1256-9; 26 March 1998,1304-10; 2 June 1998,1606-10; and 9 June 1998,1706-10. Alberta Report, 11 March 1988,10, and 'Angry Westerners had reason to stay,' National Post, 22 March 2001, A16. Commons Debates, 19 March 1987,4373. Angus Hawkins, '"Parliamentary Government" and Victorian Political Parties, c. 1830-C.1880,' 651. See also 'An all-party committee of MPs will begin hearings tomorrow into government secrecy, saying the Access to Information Act cannot be left in the hands of the cabinet and bureaucracy/ National Post, 6 June 2001, A6. Preston King, Federalism and Federation, 142. Canada, Precis of Discussions, Dominion Provincial Conference, 3 to 10 November 1927 (Ottawa: King's Printer, 1928), 10-11. According to the Precis, Senate reform appeared on the conference agenda because the House of Commons had 'initially instructed' the government (120 to 39) 'to submit the question to a provincial conference.' The House resolution 'was to the effect that the Senate as at present constituted was not of the greatest advantage to Canada.' In addition to the House of Lords example, other proposals reviewed were abolition, election, a combination of appointment and election, a fixed and limited term, and an age limit. A House for the Future, 11. The Speeches and Public Letters of Joseph Howe, II: 490-1 quoted in Judge P.J.T. O'Hearn, 'Nova Scotia and Constitutional Amendment/ 433. See, for example, Martin Landau, 'Federalism, Redundancy and System Reliability/ 173-96. See memorandum on the finances of Manitoba, prepared by Edward Blake, minister of justice, dated 25 October 1875. Speaking favourably of a 'simpler and more rudimentary form of self-government for Manitoba/ Blake recommends that 'the present form of Government should be simplified and cheapened by the abolition of the second Chamber.' Canada, House of Commons, Sessional Papers 9, no. 8 (1876), 3. The economy argument proved determinative two decades later in Prince Edward Island, as evident in the preamble of the 1893 act that abolished the province's upper chamber: 'Whereas it is expedient to change the constitution of the Legislature for the purpose of reducing the cost of legislation in the province.' See D.C. Harvey, 'The Passing of the Second Chamber in Prince Edward Island/ 22-31. Star-Phoenix, 31 May 1999, A6. Presumably Mr Manley subscribed to the following view, expressed three-quarters of a century ago, on Manitoba's vigorous unicameral democracy: 'Thus a public politically educated and

Notes to pages 95-100 209 alert, aided by a vigorous parliamentary opposition, with an appeal to electors ever on the horizon, provides a much more effective check on the abuse of its powers by a provincial assembly ... than any second chamber could furnish.' Arch B. Clark, 'Our Legislative Mills, IX: The Single Chamber Legislature of Manitoba/ 229. See also Joseph Pope, ed., Confederation: Being a Series of Hitherto Unpublished Documents on the British North America Act, 74 (hereafter Pope, Confederation ... Documents). 15 Pope, Confederation ... Documents, 76-7. 16 Senator Norman Lambert, 'Reform of the Senate/ Winnipeg Free Press, 16-25 April 1950. 17 Norman Ward, The Canadian House of Commons: Representation, 65. Nova Scotia and New Brunswick disqualified members of the House of Commons from sitting in the local house. 18 Commons Debates, 28 April 1869,102. For an earlier debate, see Debates, 28 November 1867,149-55. See also 'Abolition of Dual Representation, Mr. Laurier's Speech on that Question/ 24 November 1871 in Ulric Barthe, ed. Wilfrid Laurier and the Platform, 1870-1890,9-19. 19 Edmond Orban, 'La fin du bicameralisme au Quebec/ 315. See also Garth Stevenson, 'A Long Farewell: The Declining Representation of Quebec Anglophones in Parliamentary Institutions since 1867,' 22-34. 20 Reg Whitaker, 'Democracy and the Canadian Constitution' in Reg Whitaker, A Sovereign Idea: Essays on Canada as a Democratic Community, 214. 21 Andre Bernard, La politique au Canada et au Quebec, 451. Louis Massicotte agrees: 'Paradoxically, a desire to reinforce the value of the government of Quebec was often the direct cause of this [British] borrowing' ('Quebec: The Successful Combination of French Culture and British Institutions/ in Gary Levy and Graham White, eds., Provincial and Territorial Legislatures in Canada, 72-3). See also F.F. Schindler, Responsible Government in Ontario, 81-4. 22 Jean-Charles Bonenfant, 'Le Senat/ in Louis Sabourin, ed., Le systeme politique du Canada, 138. 23 R. Kent Weaver, 'Political Institutions and Canada's Constitutional Crisis/ in R. Kent Weaver, ed., The Collapse of Canada?, 43. 24 A House for the Future, 30-1. 25 Bernard Weatherill, 'The Law of Unforseen Consequences/ in Keith Sutherland, ed., The Rape of the Constitution?, 163,172 and 174. 26 Quoted in Lynda Rivington, 'Senate Reform: The View from the Other Chamber/ 6. 27 J.G. Bourinot, "The Canadian Dominion and proposed Australian Commonwealth: A Study in Comparative Politics/ 5.

210 Notes to pages 100-6 28 Canada West Foundation, Re-inventing Parliament...: A Conference on Parliamentary Reform, 25-26 February 1994,2. A co-sponsor was the Department of Political Science, University of Lethbridge. 29 Gordon T. Stewart, The Origins of Canadian Politics: A Comparative Approach, 11. See also John M. Murrin, "The Great Inversion or Court versus Country: A Comparison of the Revolutionary Settlements in England (1688-1721) and America (1776-1816),' in J.G.A. Pocock, ed., Three British Revolutions 1641,1688,1776,368^453. Using the phrase 'court party' as a double entendre has led to a variation on the court-country theme. See F.L. Morton and Rainer Knopff, The Charter Revolution and the Court Party. 30 G.E. Aylmer, 'Place Bills and the Separation of Powers: Some SeventeenthCentury Origins of the "Non-Political" Civil Service/ 57. 31 D.V. Smiley, Canada in Question: Federation in the Eighties, 85. 32 Robert A. MacKay, The Unreformed Senate of Canada, 62-3. 33 Reference re: Secession of Quebec (1998), 2 SCR 217, para. 56, and Reference re: Authority of the Parliament of Canada in relation to the Upper House (Senate Reference 1980) 1 SCR 54 at 67. 34 Patrick Malcolmson, 'Reflections on Canada's First Senate "Election/" 16. See 'Senatorial Selection Act/ Alberta Statutes (1989), ch. S-11.5. 35 F.L. (Ted) Morton, 'Senate Envy: Why Western Canada wants what Australia has/ lecture delivered in the Australian Senate, Parliament House, Canberra, 22 March 2002, 7. 36 For an account of the 1998 senatorial election in Alberta, see F.L. Morton, "The 1998 Alberta Senate Election: A Post-Morton/ adapted from an address originally given on 25 November 1998 as the third lecture in the Big Rock University Lecture Series. 37 James Guest, 'Upper Houses - Victorian Present and Future' in G.S. Reid, ed., The Role of Upper Houses Today, 64. 38 Landau, 'Federalism, Redundancy and System Reliability/ 183. 39 Paul G. Thomas, 'Caucus and Representation in Canada/ keynote address to the Canadian Study of Parliament Group Fall Conference on 'Party Caucuses: Behind Closed Doors/ Ottawa, 21 November 1997,5, 6. 40 An immense literature exists on the causes and consequences of federalism for French-speaking Canadians. A thought-provoking debate on what today is termed civil society but was called 'the public spirit' occurred in the Legislative Assembly of United Canada in 1853. The issue was a bill to incorporate La Societe des Dames de la Paroisse de St Etienne de la Malbaie. The argument quickly turned to invidious comparisons between Canada East and Canada West in the matter of 'private benevolence' versus 'the enervating effect of charitable corporations.' The attraction of

Notes to pages 106-10 211

41 42 43

44

45 46

federalism as a means of escape was never clearer than in Cauchon's summation of the debate: Much was said about the backwardness of Lower Canada, and she was continually taunted with her infirmity; but this should not be attributed to the effect of the institutions they were discussing. There was, perhaps, a lack of energy on the part of the inhabitants which might be removed by example: but which could not be removed by sneers and discouraging, insulting comparisons. Vous insultez sans cesse le Bas-Canada; vous dites qu'il n'a ni energie ni Industrie, ni esprit de progres. Croyez-vous que 1'outrage soit le meilleur moyen d'ameliorer son sort? Croyez-vous que vos insultes incessantes puissent amener la conviction? Oh! non, c'est par le conseil, c'est par la bienveillance, c'est surtout par 1'exemple que vous parviendrez a votre but, si ce but est louable et bon. L'agriculteur s'ameliorera en voyant son voisin cultiver mieux que lui et non pas si vous 1'outragez chaque jour en 1'accusant d'ignorance et d'incapacite. (Tres bien). DLAUC, 24 February 1853, XI.III.1852-3, 1727 Canada, Report of the Royal Commission on Aboriginal Peoples, II: 327-77. Alan C. Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State, 147. Canada West Foundation, Conference Report, Renewal of Canada-Institutional Reform, 12 and 14. The report also refers to 'the very complex relationship between the House and the Senate, one which is central to the creation of an effective Senate' (9). Donald S. Lutz, 'The Theory of Consent in the Early State Constitutions,' 39. See Australian Capital Television Pty Ltd and Others v. The Commonwealth of Australia, 177 Commonwealth Law Reports (1992), 138: 'Despite its initial character as a statute of the Imperial Parliament, the Constitution brought into existence a system of representative government for Australia in which the elected representatives exercise sovereign power on behalf of the Australian people. Hence, the prescribed procedure for amendment of the Constitution hinges upon a referendum at which the proposed amendment is approved by a majority of electors and a majority of electors in a majority of the states.' Audcent, The Senate Veto, 23. Paul Gerin-Lajoie, Constitutional Amendment in Canada, 149.

6 Legislation 1 'Bill Lets Customs Seize Outgoing Mail,' National Post, 3 April 2001, A4. 2 R.H. MacKay, To End or Mend the Senate/ 290.

212 Notes to pages 111-15 3 Jeffrey Simpson, 'We must look past the Canada Health Act,' Globe and Mail, 4 April 2001, A15. 4 F.A. Kunz, The Modern Senate of Canada, 1925-1963: A Re-Appraisal, 265. 5 See R. Warren James, The People's Senator: The Life and Times of David A. Croll, 181. For those interested in the provenance of Senate inquiries, James attributes the poverty inquiry to a statement found in the Economic Council of Canada's Fifth Annual Review: '[T]he Senate of Canada might consider the advisability of creating a committee to enquire into the problem of poverty in Canada/ 176. James's biography of Senator Croll offers a rare look into the life of a senator. More common and less illuminating are accounts such as Frederick W. Rowe, Into the Breach: Memoirs of a Newfoundland Senator, Norman Ward, ed., A Party Politician: The Memoirs of Chubby Power, and Duff Roblin, Speaking for Myself: Politics and Other Pursuits. 6 NA, Task Force on Canadian Unity, Ghislain Fortin, 'Politics and the Constitution/ chapter 3: 'Options for Senate Reform and Federal-Provincial Relations' (draft 12 July 1978), 10. 7 J.R. Lucas, 'Constitution and Democracy' in Keith Sutherland, ed., The Rape of the Constitution?, 206. 8 J.A.R. Marriott, Second Chambers: An Inductive Study in Political Science, 79. 9 Neal Blewett, 'Parliamentary Reform: Challenge for the House of Representatives/ 12, quoted in Alan J. Ward, 'Australian and Parliamentary Orthodoxy: A Foreign Perspective on Australian Constitutional Reform/ Australian Senate Occasional Lecture Series, Canberra, 18 June 1999,8. 10 Senator John Lynch-Staunton, The Role of the Senate in the Legislative Process/ 12. For a supporting but more critical analysis, see Michael Crommelin, 'Senate Reform: Is the Game Worth the Candle?/ 197-213. 11 On MacEachen in the Senate, see Charlotte Grey, 'Life after Death/ Saturday Night, May 1988,11-14. 12 The Hill Times, 19 February 2001,4 (editorial, 'Reforms to Parliament'). Contemporaneously, confirmation of this view could be found in the opinion of the leader of the opposition in the Senate: 'The role of the Senate in the legislative process has evolved, not through any ideas of selfaggrandizement, but because of a lack of purposeful, thorough study and analysis of legislation by the official opposition in the House of Commons.' Staunton, 'The Role of the Senate.' 13 Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics, 91. 14 Peter C. Dobell, "The New Senate/ 29-32. For a short, general discussion of

Notes to pages 115-22 213 Senate committee work, see C.E.S. Franks, 'The Canadian Senate in an Age of Reform/ 663--81. A vigorous defence of Senate committees is found in Eugene Forsey, A Life on the Fringe: The Memoirs of Eugene Forsey, 153ff. 15 Quoted in Meg Russell, 'Upper House Reform in the United Kingdom and Australia/ 34. 16 'Facts, Facts, Facts/ 'Senate Facts' www.sen.parl.gc.ca/scarstairs/ca.../ carstairs_english/ the_senate / facts.htm. 17 Material in the next several paragraphs is taken from a letter from Senator Serge Joyal to former Senator Jacques Hebert, 27 August 1998, in the author's possession and quoted with permission. 18 Memorandum from Raymond du Plessis, in the author's possession and quoted with permission. 19 John Vincent, 'All That Matters Is What Tony Wants/ quoted in Randall White, Is Canada Trapped in a Time Warp?: Political Symbols in the Age of the Internet, 53. 20 United Kingdom, Cabinet Office, Modernising Parliament: Reforming the House of Lords, 25 (Cm 4183). 21 The quotations in this paragraph come from pages 19-23 of the Wakeham Report. A dissent from the strong sense of institutional approval communicated by the report is offered by Robert Blackburn, 'The House of Lords/ in Robert Blackburn and Raymond Plant, eds., Constitutional Reform: The Labour Government's Constitutional Reform Agenda. On the matter of the Life Peerages Act, 1958, held up as an expansive influence on the second chamber, Blackburn calls it 'deeply reactionary/ serving both 'to prolong the enfeeblement of the second chamber' and 'to strengthen the premier's powers of political patronage' (p. 24). 22 Donald Shell, 'Reforming the House of Lords: the Report and Oversees Comparisons/ 196. 23 Robert Blackburn, 'The House of Lords' in Blackburn and Plant, eds., Constitutional Reform, 37-8. 24 Wakeham Report, 76-7. 25 J.A.G. Griffith, Parliamentary Scrutiny of Government Bills, cited in Blackburn, "The House of Lords/ 27. 26 Donald Shell, To Resolve and Deliberate: The British House of Lords/ in Samuel C. Patterson and Anthony Mughan, eds., Senates: Bicameralism in the Contemporary World, 217. 27 John Wells, The House of Lords: From Saxon Wargods to a Modern Senate, 278-9. 28 Wakeham Report, 81. 29 Sharman, 'The Representation of Small Parties and Independents/ in

214 Notes to pages 122-5

30 31 32

33 34

35 36

37 38 39

40 41

42

Sawer and Miskin, edsv Representation and Institutional Change: 50 Years of Proportional Representation, 151. Reference re: Legislative Authority of Parliament in relation to the Upper House [1980] 1 SCR 54 at 56 (emphasis added). Campbell Sharman, 'Australia as a Compound Republic,' 3. Cheryl Saunders, 'The Australian Republic: Act I/ paper presented to Canadian Study of Parliament Group Conference, 'Parliamentary Government at the Millennium: Continuity and Change in Westminster Systems/ Ottawa, 10-11 June 2000,9. Western Australia Royal Commission, Report into Commercial Activities of Government and Other Matters, quoted in Bruce Stone, 'Constitutional Design, Accountability and Western Australian Government/ 59. Quoted in John Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament, 109. An insider's account of the Keating government is found in Blewett, A Cabinet Diary: A Personal Record of the First Keating Government. Blewett was minister for social security. For an outsider, an intriguing sub-theme of the book is Keating's relationships with the Senate, his cabinet, the Labor party and its different factions (in the House of Representatives and the Senate), and the opposition parties, again in both chambers. Saunders, 'The Australian Republic/ 9. Marian Sawer, 'Dilemmas of Representation' in Marian Sawer and Sarah Miskin, eds., Representation and Institutional Change, 103. The first phrase is also the title of an OECD Working Group Meeting, Paris, 17-19 June 1999, cited by Sawer. House of Commons, Sessional Papers, 'Constitution of Upper Chambers, 63. Sharman, 'The Representation of Small Parties and Independents' in Sawer and Miskin, Representation and Institutional Change, 150. John Uhr, 'The Australian Senate in its Second Century/ 139, and Arend Lijphart, 'Australian Democracy: Modifying Majoritarianism?/ in Sawer and Mishkin, eds., Representation and Institutional Change, 55-69. G.S. Reid and Martyn Forrest, Australia's Commonwealth Parliament, 19011988. Ten Perspectives, 143-4 and 168. D.J. Hamer, Towards a Valuable Senate/ in Michael James, ed., The Constitutional Challenge: Essays on the Australian Constitution, Constitutionalism and Parliamentary Practice, 65. Elected as a Liberal senator for Victoria in 1977, Hamer was the Senate's deputy president and chairman of committees from 1983 to 1990. Parliament of Australia, Senate, Senate Brief No. 4, 'Senate Committees,

Notes to pages 126-30 215

43

44

45 46

47 48 49 50

51 52

December 1998, http://www.aphgov.au/senate/pubs/briefs/brief4.htm (retrieved 15 May 2001). Harry Evans, 'Accountability Versus Government Control: the Effect of Proportional Representation/ in Sawer and Miskin, eds., Representation and Institutional Change, 74. See also Campbell Sharman, "The Senate and Good Government/ in The Senate and Good Government and Other Lectures in the Senate Occasional Lecture Series, 153-70. Uhr, 'The Australian Senate in its Second Century/ 144. Harry Evans, clerk of the Senate, has noted that '[decentralized administration, particularly independence of the Department of the Senate, has been vital in allowing the Senate to avoid executive control to the extent that it has.' Review of Reid and Forrest, Australia's Commonwealth Parliament, 1901-1988: Ten Perspectives in Parliamentarian 21 (January 1990), 86-7. Brian Galligan, A Federal Republic: Australia's Constitutional System of Government, 1. Brian Galligan, 'An Elected Senate for Canada? The Australian Model/ 91. Twenty years later, a Canada West Federation monograph entitled 'Senate Reform: Expanding the Blueprint-Beyond Regionalism: The Rest of the Senate Story ...' (October 2000), supported Galligan's prediction: 'Areformed Senate is Canada's best bet to check the power of the political executive ... What is needed is a new institution that can "break the back" of party discipline' (p. 13). Senate Debates, 9 June 1998,1707. Review of Brian Galligan, A Federal Republic: Australia's Constitutional System of Government in Australian Journal of Political Science 31, no. 2 (July 1996), 257. Constitutional Centenary Foundation, The Australian Constitution (annotated text by Cheryl Saunders, Carlton, Victoria, 1997), 64. George Galloway, "The Third House of Congress/ Congressional Record, 84th Congress, 1st session, 8 March 1955,2556, quoted in Lawrence D. Longley and Walter J. Oleszek, Bicameral Politics: Conference Committees in Congress, 2. For a discussion of the role of impatience in politics, see George Tsebelis and Jeannette Money, Bicameralism, chapter 7. On the US Senate, see Barbara Sinclair, 'Coequal Partners: The US Senate/ in Samuel Patterson and Anthony Mughan, eds., Senates: Bicameralism in the Contemporary World, 32-58; Barbara Sinclair, The Transformation of the U.S. Senate- and James L. Sundquist, Constitutional Reform and Effective Government. See also Richard Simeon and Elaine Willis, 'Democracy and Performance: Governance in Canada and the United States/ in Keith

216 Notes to pages 130^4 Banting, George Hoberg, and Richard Simeon, eds., Degrees of Freedom: Canada and the United States in a Changing World, 150-86; Richard F. Fenno, Jr, The United States Senate: A Bicameral Perspective. 53 Sinclair, 'Coequal Partner: The U.S. Senate/ 51. 54 Saul Levmore, 'Bicameralism: When Are Two Decisions Better Than One?, 154. 7 Responsible Government 1 Lord Hailsham, The Dilemma of Democracy: Diagnosis and Prescription, chapter 20. 2 See David E. Smith, The Republican Option in Canada: Past and Present, chapter 3. 3 The Times (London), 27 April 2001, 6. See also 'Welcome to the self preservation society: Profile, Lord Stevenson,' Sunday Times, 29 April 2001, 145; and Roy Hattersley, 'Hairdressers of the World Unite,' The Guardian, 30 April 2001,16. 4 A House for the Future, 44. 5 See Patrick J. Boyer, Direct Democracy in Canada: the history and future of referendums, 252, and National Post, 3 May 2002: 'Only 30 backbenchers attend hearing on lack of clout.' 6 Richard F. Fenno, Jr, The United States Senate: A Bicameral Perspective (Washington: ), 5. The phrase 'stopping mechanism' comes from Saul Levmore, 'Bicameralism: When Are Two Decisions Better than One?,' 146. 7 See concerns expressed by the leader of the opposition in the Senate in John Lynch-Staunton, 'The Role of the Senate in the Legislative Process/ 10-12. See also the debate on Bill S-8, 'Bill to Maintain the Principles Relating to the Role of the Senate as Established by the Constitution of Canada': '[TJhis omnibus bill... essentially repairs and restores the legislative regimes that excluded the Senate, especially with respect to "oversight," the receipt and review of government reports.' Senate Debates, 8 February 2001,106 (Senator Grafstein). 8 National Post, I July 2000, A17. 9 President of the Senate, the Hon. Kerry W. Sibraa, 'Conference Proceedings, Session One, The "Revolutionary Proposals" of 1970,' in 'Senate Committees and Responsible Government/ proceedings of the conference to mark the twentieth anniversary of Senate Legislative and General Purpose Standing Committees and Senate Estimate Committees, 3 October 1990, Papers on Parliament, No. 12 (Canberra: Department of the Senate, September 1991), 2.

Notes to pages 134-9 217 10 C.E.S. Franks, 'The "Problem" of Debate and Question Period/ in John C. Courtney, ed., The Canadian House of Commons: Essays in Honour of Norman Ward, 12. 11 Senate of Canada, Proceedings of the Special Committee on Bill C-20, 5 June 2000,3:61. 12 Senate Debates, 8 October 1997,115 and 117. 13 Joseph Jaconelli, 'Majority Rule and Special Majorities,' 602. 14 J.R. Mallory, The Structure of Canadian Government, 258. 15 Lord Morrison of Lambeth, Government and Opposition: A Survey from Inside, 184. Herbert Morrison was deputy prime minister from 1945 to 1951 in the Labour government of Clement Attlee. It was this government that introduced the amendment to the Parliament Act, 1911 in order 'to limit further the powers of the Lords to delay the passage of Bills approved by the Commons' (184). 16 Sawer was a member of a panel of speakers responding to a keynote address, 'The "revolutionary proposals" of 1970 by Peter Rae in Proceedings of the Conference to mark the twentieth anniversary of Senate ... Committees October 1990.' Papers on Parliament, No. 12,2. His opinion received more recent confirmation from Hiroya Sugita, 'Parliamentary performance in the Senate,' in John Warhurst, ed., Keeping the Bastards Honest: The Australian Democrats' First Twenty Years, 159-60. 17 Senator Helen Coonan, "The Role of Upper Houses: Is Washminster Washed Up?' in Charles Sampford and Tom Round, eds., Beyond the Republic: Meeting the Global Challenge and Constitutionalism, 160. See also Senator Andrew Bartlett, 'Washminster Revisited: The Role of the Upper House,' in ibid., 164-72. 18 Peter G. Dobell, 'The New Senate,' 31. 19 Egan v. Wittis and Cahill (1996) 40 NSWLR 650 at 660. 20 See Harry Evans, 'Accountability versus Government Control: The Effect of Proportional Representation/ in Marian Sawer and Sarah Miskin, eds., Representation and Institutional Change, 71-8, and Harry Evans, 'Constitutionalism and Party Government in Australia/ Australasian Study of Parliament Group, 15-16 and 28 (typescript). 21 Robert A. MacKay, The Unreformed Senate of Canada, 169. 22 Mark Audcent, The Senate Veto, 9. 23 John Uhr, 'Parliament/ in Brian Galligan, Ian McAllister, and John Ravenhill, eds., New Developments in Australian Politics, 75. Uhr cites E. Thompson, "The "Washminster" Mutation/ in P. Weller and D. Jaensch, eds., Responsible Government in Australia, 32-40. 24 A House for the Future, 4.

218 Notes to pages 139-42 25 James L. Sundquist, Constitutional Reform and Effective Government, 114. 26 John Uhr, 'Why We Chose Proportional Representation/ in Sawer and Miskin, eds., Representation and Institutional Change, 18. 27 Richard Mulgan, '"The Mandate": A Response to Goot/ 320. 28 The content of the debate is elaborated and analysed by Richard Mulgan, "The Australian Senate as a "House of Review/" 191-204. See also Murray Goot, 'Can the Senate Claim a Mandate?' in Sawer and Miskin, eds., Representation and Institutional Change, 79-94, and 'Mulgan on Mandates/ 323-25. 29 Senator John Button, "The Role of the Leader of the Government in the Senate.' Parliamentary Perspectives, No. 14,1991 (Canberra: Department of the Senate, 1992), 4. 30 Senate Debates, 29 March 1915,215. Dandurand's opinion was echoed three and a half decades later by another prominent Liberal, Norman Lambert. See 'Representation Question/ Winnipeg Free Press, 24 April 1950,19. Duff Roblin, premier of Manitoba and a one-time federal Progressive Conservative leadership candidate, was one Tory proposed by federal opposition leader Joe Clark in response to an invitation from then prime minister Pierre Trudeau. Roblin described Trudeau's initiative in bolstering PC numbers in the Senate as 'a decision that became him.' Duff Roblin, Speaking for Myself: Politics and Other Pursuits, 184. 31 John Abbott, one of two late-nineteenth century senators to become prime minister (June to November 1891), voiced the Canadian view in admirable fashion: 'I do not feel at all satisfied that this House is the proper place for those who rule over the great spending departments. I think that is very doubtful.' Senate Debates, 17 June 1891,97. 32 Senate of Canada [Gary O'Brien], 'Executive-Legislative Relations and the Pearson Airport Inquiry/ paper presented to the Clerks-at-the-Table Conference, Edmonton, Alberta, August 1996,9. See also Gary Levy, 'Summoning and Swearing of Witnesses: Experience of the Pearson Airport Committee/ Canadian Parliamentary Review, 19 (Spring 1996), 2-7. Under the chairmanship of then Senator Finlay MacDonald, 'this committee of inquiry demonstrated the positive work that can be done by this chamber at a fraction of the cost of a royal commission.' Senate Debates 17 February 1998,1829 (Senator John Lynch-Staunton). Senators and the sanctity of contracts is a concern of long standing. See Ken Cruikshank, Close Ties: Railways, Governments and the Board of Railway Commissioners, 1851-1933 (Montreal & Kingston: McGill-Queen's University Press, 1991), 258, n!7. 33 Senate Debates, 22 May 1918, 669-71, quoted in Dawson, ed., Constitutional Issues in Canada, 1900-1931, 264 (Senator Raoul Dandurand).

Notes to pages 143-51 219 34 Senate of Canada, Proceedings of the Special Committee on Bill C-20, 1:45 and 1:55-6, 7:66. Committee meetings were held between 29 May and 19 June 2000. 35 Ibid., 3:58 (Peter Hogg) and 4:20 and 4:23 (Robert Howse, University of Michigan Law School); 3:40-2 (Stephen G. Blair, Ottawa lawyer), 3:32-3 (Blair); 3:72-3 (Senator Grafstein). 36 Ibid., 2:9; 3:64; 1:57. 37 Star-Phoenix (Saskatoon), 22 April 2000, A13; Proceedings of the Special Committee on Bill C-20, 29 May 2000, 1:57, and 1 June 2000, 2:44. 38 Proceedings of the Special Committee on Bill C-20, Robert Howse (University of Michigan Law School), 8 June 2000, 4:20. For a critique of Professor Howse's submission, see Patrick J. Monahan, 'Why Canada Needs Clarity/ National Post, 14 June 2000, A18. For a contrary view, see Andrew Coyne, 'Poking Holes in the Clarity Act/ ibid., 12 June 2000, A7. 39 Proceedings of the Special Committee on Bill C-20, 29 May 2000, 1:39 (Senator Beaudoin). 8 The Canadian Senate: What Is to Be Done? 1 '[I]n 1991 ... the Conservative Party which has traditionally championed the role of the House of Lords chose simply to overrule the Second Chamber 's carefully considered rejection of the War Crimes Act and proceed to enact the legislation without peers' consent under the terms of the Parliament Acts.' Robert Blackburn, "The House of Lords' in Robert Blackburn and Raymond Plant, eds., Constitutional Reform: The Labour Government's Constitutional and Reform Agenda (London: Longman 1999), 22. 2 Ibid., 19. 3 See Angus Hawkins, '"Parliamentary Government" and Victorian Political Parties, c. 1830-c. 1880/ 638-69. 4 Blackburn, 'The House of Lords/ 24. See also Lord Ponsonby of Shulbrede, 'The House of Lords: An Effective Restraint on the Executive?/ 83-5. 5 N.A. Robertson, 'Memorandum from the Under-Secretary of State for External Affairs to Prime Minister/ 25 September 1945, in Documents on Relations between Canada and Newfoundland, II: 170. 6 See Donald S. Lutz/The Theory of Consent in the Early State Constitution/ 11-42

7 James Ross Hurley, Amending Canada's Constitution: History, Processes, Problems and Prospects, 99, and especially chapter 6. 8 Mark Audcent, The Senate Veto: Opinion of the Law Clerk and Parliamentary Counsel, 72.

220 Notes to pages 153-60 9 This opinion was not shared by all senators: 'We are a nominated body, and we are not subject to the conditions that render such legislation [the Independence of Parliament Act] necessary in the other House ... These considerations do not apply to us.' Senate Debates, 20 August 1891,477. (A.C. Miller). 10 Convention Debates (Sydney), 16 September 1897,660. 11 Senator Lowell Murray, 'Which Criticisms are Founded?' in Joyal. ed., Protecting Canadian Democracy: The Senate You Never Knew, 137. 12 Great Britain, Parliamentary Debates, Commons, 14 April 1837, the Canada Debate, cols. 1261-2. A Benthamite, champion of the Reform Bill, 1832 and frequent author of pamphlets on electoral reform, Grote sat as MP from 1832 to 1841. Author of a renowned history of Greece, Grote displayed a sharp sensitivity to the question of representing small, distinctive communities. Sir Leslie Stephen and Sir Sidney Lee, eds., The Dictionary of National Biography (Oxford University Press, London: Geoffrey Cumberlege, 192122), VIII, 727-36. Three-quarters of a century later, in 1918, the shoe was on the other foot: '[The Canadian Senate] rejected any analogy between [itself] and the British House of Lords which, after a constitutional crisis which included a threat of swamping, had its financial power eliminated in 1911.' See Henry Albinski, The Canadian Senate: Politics and the Constitution/ 382. 13 W.P.M. Kennedy, Some Aspects of the Theories and Workings of Constitutional Law (New York, 1932), 107, quoted in Albinski, "The Canadian Senate,' 391. 14 For a sample of the argument, see Senate Debates, 26 March 1998,1306 (Senator Di Nino). 15 John N. Turner, 'The Senate of Canada. Political Conundrum/ in Robert M. Clark, ed., Canadian Issues: Essays in Honour of Henry F. Angus, 74. 16 'Parliament, Government and the Constitutional Balance' (lecture delivered to Politeia, London, 1 April 1998), 9 and 12 (in typescript). 17 Reference re: Legislative Authority of Parliament in relation to the Upper House [1980] 1 SCR 54 at 10. 18 Marsh, 'Opening up the Policy Process/ in Sawer and Miskin, eds., Representation and Institutional Change, 195. Bagehot's discussion is in The English Constitution, chapter 5. 19 Paul G. Thomas, 'Comparing the Lawmaking Roles of the Senate and the House of Commons/ in Serge Joyal, ed., Protecting Canadian Democracy: The Senate You Never Knew, 218-9. 20 See A Review of Senate Committee Studies (Ottawa: Parliamentary Research Branch, Library of Parliament, December 1999). 21 Ottawa Citizen, 1 May 2000, A4; Donald J. Savoie, Governing from the Centre:

Notes to pages 161-4 221 The Concentration of Power in Canadian Politics, 260; Paul Howe and David Northrup, 'Strengthening Canadian Democracy: The Views of Canadians' Policy Matters (Institute for Research on Public Policy) 1, no. 5 (July 2000), 52. 22 For a description of this period, see C.E.S. Franks, 'Not Dead Yet, But Should It Be Resurrected? The Canadian Senate' in Patterson and Mughan, eds., Senates: Bicameralism in the Contemporary World, 120-61, and "The Canadian Senate in Modern Times/ in Joyal, ed., Protecting Canadian Democracy: The Senate You Never Knew, 155ff. 23 In this context, two remarkable features about elections in the United States should be noted: the United States is (and has always been) a twoparty system when it comes to election returns; and for the last century and a half, it is the same two parties that compete for election nationally and in every state (the Non-Partisan League in North Dakota and the Farmer Labor Party in Minnesota were surrogates for mainstream parties). The explanation for this phenomenon lies in the electoral college requirement that, in order to keep the choice of president out of the hands of Congress, a candidate must receive more than 50 percent of the electoral college vote. That is possible only if there are two parties. The electoral college was not intended to work this way. At the time the framers of the constitution agreed upon indirect election of the president and vice president by state coteries of notables there were no political parties. Here is an example of the law of unintended consequences working with a vengeance. For details, see William H. Riker, 'The Senate and American Federalism,' 452-69. 24 Canadian experience with an elected upper chamber, the Legislative Council of the United Provinces of Upper and Lower Canada from 1854 to 1867, did not recommend its continuation in the new federation: 'A Comparison of the votes polled in general elections and in the elections for councillors indicates that less interest was taken in the contests for council than for the assembly.... [The Council] still occupied a position of definite subordination to the popular assembly.' See Duncan McArthur, 'A Canadian Experiment with an Elective Upper Chamber,' 86-7. 25 Audcent, The Senate Veto, 11. 26 Senator Lowell Murray, 'Which Criticisms are Founded?/ in Joyal, ed., Protecting Canadian Democracy: The Senate You Never Knew, 144. 27 Jack Stilborn, Comments on Twenty-Four Senate Reform Proposals Provided for Analysis (Parliamentary Research Branch, Library of Parliament July 1999), 6. 28 Marsh, 'Opening the Policy Process/ in Representation and Institutional Change, 194.

222 Notes to pages 165-72 29 John Uhr, 'Why We Chose Proportional Representation/ ibid., 24. 30 See Harry Evans, clerk of the Senate, 'Accountability versus government control: the effect of proportional representation/ in Brian Costar, ed., Deadlock or Democracy?: The Future of the Senate, 48-57. 'Upper houses/ says Evans, 'have only one hold over governments, their ability to withhold assent from government legislation' (p. 55). In reply, Senate critics say that the House of Representatives is the more 'democratically legitimate House/ because its constituencies are designed to reflect 'one vote, one value.' See Senator Helen Coonan, 'Safeguard or Handbrake on Democracy?' in ibid., 12-28. 31 National Post, 10 August 2000, A15. 32 Henry S. Albinski 'The Canadian Senate: Politics and the Constitution/ 378-91. 33 This is not a new suggestion; see Senate Debates, 19 March 1998,1235-8, and 26 March 1998,1308, for commission schemes. 34 Constitution Unit, Wakeham in the Long Grass (Weedon), 26. 35 For a study of the House of Commons policing itself and others within its precincts, see Norman Ward, 'Called to the Bar of the House of Commons/ 529-46. See also Ward, The Canadian House of Commons: Representation, especially chapter 5. Recent judicial confirmation is found in Ontario (Speaker of the Legislative Assembly) v. Ontario, 8 June 2001, C35182, Court of Appeal for Ontario. 36 According to one close observer of Parliament, 'While such institutional loyalty runs high in the Senate, it does not appear to run as high in the House of Commons.' Gary O'Brien, 'Legislative Folkways: The Example of the Canadian Parliament/ paper presented to the 105th Inter-Parliamentary Conference and meeting of the Association of Secretaries General, Havana, April 2001,11. 37 Senate Debates, 9 June 1998,1705. 38 See Robert Rhodes James, 'Some Thoughts on Parliamentary Reform/ in Jack Beatson, Christopher Forsyth, and Ivan Hare, eds., Constitutional Reform in the United Kingdom: Practice and Principles, 112. See too Robert MacLennan, 'The Taylor Reforms to Commons Business and Reform of the House of Lords' in ibid., 119-24. 39 As part of a new salary package for MPs and senators, passed by Parliament in June 2001, members of the upper chamber will be able to go on long-term disability after age sixty-five, According to the Globe and Mail, 'Senators who take advantage of the change would be replaced and could not return/ 7 June 2001, A1/A4.

Notes to pages 173-6 223 40 Senate of Canada, The Senate Today (Ottawa, 1997), 12. 41 The phrase is taken from Elaine K. Swift, The Making of an American Senate: Reconstitutive Change in Congress, 1787-1841,117. It is Swift's thesis that 'between 1809 and 1829 ... the [US] Senate cultivated strong bonds with the people and distanced itself from state legislatures' (p. 140). Once aristocratic and British-like, it became a popular American institution. 42 The Wakeham Commission recommended that appointments to the new House of Lords should reflect party balance 'as expressed in votes cast at the most recent general election' (Report, p. 113). Writing in Saturday Night half a century ago, Senator A.W. Roebuck said much the same thing: T would like to see representation of the political parties more evenly divided. No change in Constitution or Reform of the Senate is required in this connection. Appointments to the Senate are made by the government of the day ... and the Administration is free to consider this as well as other factors involved.' Tinkering with Senate of Doubtful Value,' Saturday Night, 27 February 1954,8. 43 'Ramming terror bill into law could backfire,' Globe and Mail, 29 November 2001, A14. 44 The Special Senate Committee deliberations constituted 'pre-study' of the omnibus bill. As the chairman noted in an early meeting of the Committee, pre-study 'has not... been a regular practice for a considerable period of time.' Proceedings of the Special Senate Committee on Subject Matter of Bill C36,17 October 2001,1:12. The serious subject matter (but not the bill proper) and the urgency of quick action prompted the break from recent practice. The committee's First Report (1 November 2001) and its Second Report (10 December 2001) are available at http://www.parl.gc.ca/37/17 parlbus / commbus / senate / com-e / sm36-e. 45 Lorraine Weinrib, 'Terrorism's Challenge to the Constitutional Order,' in Ronald J. Daniels, Patrick Macklem, and Kent Roach, eds., The Security of Freedom: Essays on Canada's Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001), 105. 9 Conclusion 1 Saul Levmore, 'Bicameralism: When Are Two Decisions Better Than One?/ 145-62. 2 Cited in J.A.R. Marriott, Second Chambers: An Inductive Study in Political Science, 47.

224 Notes to pages 176-82 3 Giovanni Sartori, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes, chapter 12. 4 Kunz did not find the Senate of the 1960s the same institution that MacKay had studied. See F.A. Kunz, The Modern Senate of Canada 19251963: A Re-appraisal, 141,365, and 367. 5 For elaboration on the theme of how the Australian Senate is 'a thorn in the side of unfettered executive power/ see letters to the editor, The Australian, 7-8 November 1992,16. Author of the letter is John Coulter, then leader of the Australian Democrats. 6 See the letter to the editor, Globe and Mail, 27 July 1993, from Leslie Seidle, then research director, Institute for Research on Public Policy. Speaking of the Mulroney government's draft amendment to introduce a suspensive veto in 1985 (which failed for lack of sufficient provincial support), Seidle described the proposal as 'only one of a number of ways to reduce the Senate's powers to ensure it cannot do what it should not do - reject legislation passed by our elected representatives.' 7 Robert Blackburn, 'The House of Lords/ in Robert Blackburn and Raymond Plant, eds., Constitutional Reform: The Labour Government's Constitutional Reform Agenda, 37-8. 8 See second reading debate on Bill to Maintain the Principles Relating to the Role of the Senate as Established by the Constitution of Canada (Bill S-8), Senate Debates, 8 and 20 February, 2001, 60-2,106-8,128-32. 9 Paul Thomas, 'Comparing the Lawmaking Roles of the Senate and the House of Commons/ Joyal, ed., Protecting Canadian Democracy: The Senate You Never Knew, 220. 10 'Romanow: Ottawa's Spoonful of Sugar/ National Post, 7 July 2001, B1/B4. 11 The phrase is from Philip Corrigan and Derek Sayer, The Great Arch: English State formation as Cultural Revolution (Oxford: Basil Blackwell, 1985), 70. The authors use it to describe 'the steady growth of state intervention in national life/ as witnessed, for instance, in the appointment of commissions and the gathering of information. 12 'PM Ignores Parliament's Role/ Star-Phoenix, 25 May 2000, A14. 13 Michael Lusztig, 'Federalism and Institutional Design: The Perils and Politics of a Triple-E Senate in Canada/ 46-7. 14 'Wrong to Push End to Senate/ Star-Phoenix, 4 February 1999. 15 John Uhr, 'Why We Chose Proportional Representation/ in Sawer and Miskin, eds., Representation and Institutional Change, 24. 16 See Harry Evans, Essays on Republicanism: Small r Republicanism (Papers on Parliament, No. 24, Canberra: Department of the Senate, 1994). 17 Sartori, Comparative Constitutional Engineering, 187.

Notes to pages 182-3 18 19 20 21

225

John J. Connolly, 'Thirty Years a Senator,' 21. See Senate Debates, 6 February, 2001 (Senator Joyal). Barbara Sinclair, The Transformation of the U.S. Senate. Harry Evans, Constitutionalism and Party Government in Australia, Australasian Study of Parliament Group, Occasional Paper No. 1, August 1988,20f. 22 Philip Norton, 'Roundtable on the Wakeham Report,' 103 and 104.

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Bibliography

Primary Sources A Note on Newspapers, Newsmagazines and Parliamentary Debates Over the course of the country's history, the Senate has not been the subject of journalistic attention. A series of articles by Senator Norman Lambert that appeared in the Winnipeg Free Press over a ten-day period in April 1950 is the exception to the rule. Excluding newspaper commentary on Senate reform proposals associated with Canada's constitutional debate of the last quartercentury, journalistic interest in the operation and membership of the Senate is a phenomenon of the last half of the 1990s. Even that interest is confined largely to two of the country's English-language national newspapers, the Globe and Mail and the National Post. With one notable exception; the newsmagazine Alberta Report, founded in 1985, has made analysis of the upper house and Senate reform subjects of continuing commentary. If the print media's interest in the Senate is flat, the Senate's interest in itself as an institution of government is episodic. While references to reform regularly punctuate Senate discussions, substantive debates about the upper chamber arise irregularly. And these are often prompted by other constitutional happenings, such as a proposal for a domestic amending formula, or a change in the redistribution of seats in the House of Commons following the decennial census, or, in earlier decades, constitutional change at Westminster or in another Dominion such as Australia. As with newspapers, citations of parliamentary debates are confined to the endnotes. Archival Sources J.G. Diefenbaker Archives MG01 Diefenbaker Papers. File: VI/275, 320/225566-7

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Index

Aboriginal peoples, 57,81,106,144. See also First Nations Act Respecting Constitutional Amendments, 151 Alaska, 71, 74,195 n47 Alberta, 56, 82,91,92,103-4,106 Alberta, government of, 53,56 Alberta Report, 47,48, 56, 91 Alberta Select Special Committee on Senate Reform, 54, 56, 68-70 Alberta Senatorial Selection Act, 104 Abortion, 115 Amending formulas, 26, 33,107,151. See also Constitution, Canada, amending formula American Revolution, 4,16 Anti-Federalists (US), 39,101 Appellate Jurisdiction Act, 1876 (UK), 32 Appointments Commission (UK), 132 Aristocracy, 16,24,30 Asquith government (UK), 34,35, 154 Assembly of First Nations, 86 Atkins, Norman, 127 Attlee, Clement, 217 n!5

Aucoin, Peter, 90 Audcent, Marc, 108 Australia, 5, 6,16,19,22-30,32, 62, 68, 78, 79-80, 82,89, 90,94, 99,113, 126,192 n21; politics, 139,140; principle of equality, 156. See also Constitution, Australia; Proportional representation; Senate, Australia; Upper house Australian Labor Party, 28, 58, 68, 123,140,141 Australia's Commonwealth Parliament, 1907-1988: Ten Perspectives, 125 Axworthy, Lloyd, 201 n35 Bachrach, Peter, 52 Bagehot, Walter, 5,118,159 Balanced constitution, 16,153 Barry, Mr Justice Leo, 86 Basic Law, the, 42-43 Beaudoin, Gerald-A., 87,144 Beer, Samuel, 39 Belgium, 80,205 n27 Bernard, Andre, 97 Bicameralism, x, 3-46 passim, 22-46 passim. See also Responsible government; Upper house; and fed-

252 Index eralism, 89,90,179,197 n61; and redundancy, 159,183; 'deliberative' defence of, 113; effects, 35; in Australia, 6,9,26,27,30,62,124, 126,141,142,179; in Canada, x, 4, 47, 61, 62, 70-71, 72,130,142,145, 155,157,185 nl; in Germany, 4246. See also Bundesrat; Bundestag; in Great Britain, 32-33,130,142; in United States, 37,129,130,136, 179; theory of, xi, 6,12,14,15,30, 56,93,94,120,130 Bilingualism and Biculturalism in the Canadian House of Commons, 48 Bill C-36,174 Bill C-40, 87 Bill C-216,117 Bipartisanism, 42 Blair, Tony, 118,139,169,177 Blewett, Neal, 113 Bliss, Michael, 58 Bloc Quebecois, 141 Bonenfant, Jean-Charles, 50, 97, 99 Borden government, 115 Boulton, Henry, 77 Bourinot, J.G., 15,100 Breton, Albert, 21 British Columbia, 76,151,152 British North America Act, 10, 50, 71-72, 74, 81, 96,165,196 n54 Brown, George, 78, 79, 80, 95,162 Bryce, James (Viscount), 14,59 Buckwold, Sid, 58 Bundesrat, x, 7-8,43-44, 53, 63,89, 93,101,112, 200 n!9. See also Upper house Bundestag, 8,43 Butler, David, 83 Button, John, 140,141,142 Byfield, Ted, 56

Cairns, Alan, 106 Calhoun, John C, 105 California, 71,180,195 n47 Campbell, Colin, 50,52,53,55 Campbell-Bannerman, Sir Henry, 13, 34-35 Canada Council, 61,115 Canada East, 71, 74, 210 n40 Canada West, 74, 210 n40 Canada West Foundation, 53,54,56, 100,104,107,127,137,143 Canadian Conference of Catholic Bishops, 86 Canadian Senate, The: A Lobby from Within, 50, 52 Canadian Alliance party, 57, 60,161 Canadian Bar Association, 82 Carrington, Lord, 193 n30 Carstairs, Sharon, 136 CCF, 52, 58 Centralism, 19,20,41,49, 63, 80, 96 Chancy, Fred, 140 Charlottetown Accord, 47, 76,106, 107,157 Charter of Rights and Freedoms, 5, 27, 28, 80, 87,108,155,164 Chipp, Don, 140 Chretien government, 86, 95,134,163 Chretien, Jean, 103,104,111-12,169 Civil War (US), 41,129,162 Clarity Bill, 102,133-34,135,142^3, 145,160,176,177 Clark, Andrew Inglis, 19 Clark, Joe, 5,218 n30 Clay, Henry, 129 Colonial Office, 17, 78, 79 Competing legitimacies, 33-34 Confederation, 17,20, 30,31,36-37, 38, 77,90,94,100,106,135,151, 152,159,162,181,185 nl

Index 253 Confidence, 22, 30, 88,110, 111, 112, 127 Connecticut Compromise, 12 Connolly, John, 182 Consociationalism, 44 Constitution, Australia, 9,11,22, 25-26,29, 32,33,37,122,127,128, 151; amending formula, 156,165, 166,211 n44. See also Nexus provision Constitution, Great Britain, 5,8,13, 24,31,33,34, 35,37,118,139, 153-54 Constitution, Canada, 4-5,8,10,17, 20, 31,102,108,155,166,180. See also British North America Act; Charlottetown Accord; Charter of Rights and Freedoms; Confederation; Constitution Act, 1791,1867, 1982 and Terms of Union; amending formula, 77-78,107-S, 151, 154,156,165; and popular sovereignty, 156; and public policy issues, 135; and secession, 134; change, 144 Constitution Act, 1791,16, 30, 78, 97 Constitution Act, 1867, 8, 9, 94,124, 128,165 Constitution Act, 1900 (Australia), 27 Constitution Act, 1965,168 Constitution Act, 1982, ix, 77-78, 107,135,151,158 Constitution Act (Terms of Union), 85 Constitutional Amendment Bill (Bill C-60), 52,101 Constitutional Amendment in Canada, 108 Constitutions, comparisons between, 15-16

Council of Ministers (Europe), x Cranborne, Viscount, 158 Croll, David, 111, 112. See also Special Senate Committee on Aging; Special Senate Committee on Poverty Crown, the, 5,14,17,29,30,59, 79, 80, 83,128,156,166,182 Dahl, Robert, 52 Dail Eireann (Ireland), 17 Dandurand, Raoul, 142 Davey report on Mass Media, 45, 160 David, L.-O., 74 Davis, Rufus, 6 Dawson's The Government of Canada, 53 de Grazia, Alfred, 61 de Valera, Eamon, xi, 18 Delaware, 74,195 n47 Democrats (Australia), 27,140 Dion, Stephane, 142-43,201 n35 Distributed majorities, 33 Dobson, Henry, 33 Docherty, David, 77 Dominion-Provincial Conference (1927), 93 Dual mandate, 95-96 du Plessis, Raymond, 116 Durham, Lord, 20,131 Economist, The, 36 Edwards v. the Attorney-General of Canada. See Persons case Electoral Boundaries Redistribution Act, 116 Electoral systems, 26,29,164,221 n23. See also Plurality; Proportional representation

254 Index Elgin, Lord, 30 Epp, Jake, 100 Evans, Harry, 32,138 Fathers of Confederation, 79, 84 Federal Court of Canada, 71-72 Federal Government, 89

Federalism, 58, 89-109 passim; and bicameralism, 7, 21, 25,42, 89,197 n61; and representation, 68; and responsible government, 25; in Australia, 23, 24, 27, 32, 62; in Canada, xi, 5,19, 36, 41,49, 79, 144,155,162,165,180, 210 n40; in Germany, 198 n7, 200 n!9; in United States, 39, 94,100 Federalism and Constitutional Change, 89 Federal Republic, A, 128

Feschuk, Scott, 57 First Nations, 106,155 Foot, Michael, 83 Forrest, Martyn, 125 Forsey, Eugene, xi Fox, Charles James, 78, 79 Franchise, 20, 24, 32-33, 34, 36 Franks, C.E.S., 4, 53, 62,134-35 Free trade agreement, 115—16 Fulbright, William, 129 Gallaway, Roger, 57-58,117 Galligan, Brian, 127,128 Gerin-Lajoie, Paul, 108 Germany, 7,11,42-46, 89,198 n7; administration, 43,46, 89. See also Bundesrat, Bundestag Getty, Don, 104 Gibbins, Roger, 45, 55,143 Gingrich, Newt, 139 Gladstone, William Ewart, 10,13, 79

Globe and Mail, 48,56

Glorious Revolution, 9,16 Goods and services tax, 27,124,128, 150 Governor general, 5, 6,19,22,29, 36, 59 Graf stein, Jerahmiel, 143 Great Britain, 5, 7, 30-37, 61-62, 83. See also Constitution, Britain Great Compromise of Philadephia, 152,180 Grey, Earl, 13, 30, 78-79 Griffith, Sir Samuel, 23 Grote, George, 154 Hailsham, Lord, 131 Hare-Clark system, 19 Hawaii, 71,195 n47 Hawkins, Angus, 156 Hayden, Salter, 114 Heard, Andrew, 114 Hebert, Chantal, 179 Hebert, Jacques, 188 n26 Hnatyshyn, Ramon, 75 Hoffman, David, 48 Hogg, Peter, 135,144 House of Commons (Canada): allocation of seats, 74, 75; powers of, 57, 70,112,170; representation, 40, 51, 71-73, 74, 76, 81, 92, 95, 96; role, 5,9,52, 74,84,85,110,112, 143,144,156; turnover, 77,84,205 n20; weaknesses, 56,59-60, 84, 114,121,132,134,135,136,145, 159,160,179,183 House of Commons (UK), 13,24,33, 34,35, 36, 62, 74, 78, 83,93,102, 120,137,139,166,171 House of Lords (UK): See also House of Lords Act, 1999; Parliament

Index 255 Act, 1911 (UK); Royal Commission on Reform of the House of Lords (UK); Salisbury Convention; and democracy, 12-13,34; and patronage, 150; and political parties, 34,43,118,150,168,223 n43; and the European Community, 120; appointment and selection, 10, 31-32,168,193 n30,223 n43; as representative of regional interests, 150,166-67; attendance, 118; authority/autonomy of, 6-7,79, 139; composition and size, 9,25, 32, 76,132,150,167,168,169; election of, 150,166; efficiency of, 5-6,118; legitimacy of, 118-19; powers, 9,10,24,25,27,33,34-36, 62,83,93,100,102,119,149; relationship with the House of Commons 33, 74,122,130,166; reform, 171,177,182; representation, 10, 12-13,30, 34,119; role, 16,23-24, 118,119,120,150; veto, 7,9,10,24, 25,34-36,119,133,150,152,166, 168,194 n43,219 nl House of Lords Act, 1999,9, 82 House of Representatives (Australia), 113 House with a Future, A. See Royal Commission on Reform of the House of Lords (UK) Howard government (Australia), 27 Howe, Joseph, 94 Intergovernmental relations, 45,46 International Covenant on Civil and Political Rights, 87 Inter-Parliamentary Union, 17,42 Intrastate Federalism in Canada, 48, 53

Ireland, xi, 11,17-18,155,190 n51, 197 n61 Irish Nationalists (UK), 34,35,150 Isaacs, Isaac, 19,153 Jackson, Keith, 6,31 James, Robert Rhodes, 171 Joint Committee on Statutory Instruments (UK), 119 Joyal, Serge, 144,188 n26 Judicial Committee of the Privy Council, 41,81^82,180 Jurisdiction, 89,94,112; in Germany, 43 Kassongo Tunda case, 74 Keating, Paul, 123 Kent, Tom, 178 Key, V.O., 52 King, Preston, 92 King, W.L.M., 77 Kirby, Michael, 178 Klein, Ralph, 104 Kunz, F.A., 50,51,52,53,55,81, 111 Labour party (UK), 34,35 L'Actualitie, 48 Lambert, Norman, 40,95,196 n54 Lamontagne Committee on Science, 45,160 Landau, Martin, 94,105 Laski, Harold, 9 Laurier, Sir Wilfrid, 72,77 Law lords, 32 Legislative councils, 3,16,27,30,40, 41, 80,104-5,155,185 nl, 221 n24 Legislatures, decline of, 59 Liberal-National Coalition (Australia), 28,68 Liberal party (Australia), 140,141

256 Index Liberal party (Canada), 3, 60, 72, 74, 96,103,104,113,139,201 n35 Life Peerages Act, 1958,150 Lijphart, Arend, 58,124,197 n61 Livingston, William, 89 Lloyd George, David, 32 Loewenberg, Gerhard, 84 Lougheed, James, 74 Lower house, 16,27,34,35,113,139 Lower Canada, 16,30,185 nl, 221 n24 Lucas, J.R., 112 Lynch-Staunton, John, 136 Macdonald Commission, 4,49, 53 Macdonald, Sir John A., 19,20, 41, 73, 76, 77, 78, 79,88 MacEachen, Allan, 113,114 MacGuigan, Mark, 54-55 MacKay, Robert A., 50,51, 52,55,63, 81, 82,102,138 Mackenzie, Alexander, 96 Maine, Sir Henry, 176 Majoritarianism, 24,128 'Majority Rule and Special Majorities/ 136 Malone, Arnold, 92 Mandate, 139,140 Manitoba, 3, 73,95,151,185 nl, 208 n!3 and 14 Manley, John, 95, 201 n35,208 n!4 Manning, Preston, 57,94,104 Mansfield, Mike, 129 March, James, 61 Maritime provinces, 3,38,40, 70, 73, 74,96,151,152,185 nl Mason, Sir Anthony, 128 McDougall, William, 78 McWhinney, Edward (Ted), 201 n35 Media, 36,110, 111, 112,183

Meech Lake Accord, 103-4,137 Meighen, Arthur, 21 Mercredi, Ovide, 86 Mill, John Stuart, 40 Mills, David, 50 Modern Democracies, 59 Modern Senate of Canada, 1925-1963, The, 50 Morton, F.L. (Ted), 104 Money bill, 23,24,25,27,29,30 Morgan, Edmund, 83 Mowat, Oliver, 78 Mulgan, Richard, 140 Mulroney, Brian, 5,57,103,114 Mulroney government, 60-61,100, 201 n31 Multicameralism, 7 Murray, Lowell, 154 National Energy Policy, 45,47, 63, 91-92,106,135 National Post, 48, 56,57,110,134, 167,178,179, 202 n40 National unity (Canada), 5,20 Naval Bill, 115 'Negative option billing,' 117 New Brunswick, 71, 73, 77,151 New Democratic party, 57,58,67, 207 n50 Newfoundland, 70, 85-87,100,135, 151,185 nl New South Wales, 24, 80,138 New York, 71,180,195 n47 New Zealand, x, 6,16,19,137,176 Nexus provision (Australia), 9, 25-26, 29, 37 Northcote-Trevelyan report on civil service reform, 43 Northwest Territories, 70, 72, 73, 75, 76

Index 257 Norton, Philip, 183 Nova Scotia, 71 Nullification doctrine, 105 Nunavut, 70 Nystrom, Lome, 57-58 Olsen, Johan, 61 Ontario, 40, 60, 70, 71, 73,74, 78,92, 95,96,97,98,102,151,179 Organic legislation, 35-36 Paine, Tom, 56 Palzelt, Werner, 44,45 Parliament, decline of, 59,202 n40 Parliament, officers of, 60,179,201 n41 Parliament Act, 1911 (UK): impact of, 15,31,32,35, 62, 63,154,177; role of upper house, 24,36,50,93, 102,113; suspensive veto, 9,10,34, 169; use of/amendment of, 194 nn42 and 43; 217 n!5, 219 nl Parliament of Canada, The, 53

Parliamentary Research Branch, 98-99 Parliamentary systems: and bicameralism, 6-7,35-36,127,128,156, 170; concept of separation, 23; development of, 16; features of, 80; federalism, 25, 33-34,39, 69, 79, 83-84; problems of, 59,98; procedure, 114,116-17,124,195 n45; upper house in, 9,45-46,53, 58,112,156,159,179 Parti Quebecois, 52 Partisan politics, 42, 79, 85 Party discipline, 59, 68,84 Party loyalty, 88 Pearson Airport contracts, 115,142 Pearson government, 111

Persons case, 81-82 Philadelphia Convention, 12 Pitfield, Michael, 67, 73,144,171 Pitkin, Hanna, 68, 70 Pitt the Younger, 78 Plebiscite, 14,22, 26,35,59,87,103, 156 Plurality system, 26,54,60,99,164; in Germany, 43 Political parties, 34,54,59,98,105 Political systems, comparisons between, 15-16 Polsby, Nelson, 70 Powell, Enoch, 83 Prairie provinces, 151,152 Presthus, Robert, 52 Tre-study/ 114,160-61,223 n45 Prime minister, 6,19,22,31, 79,82, 90, 98,100,116,156,160,169,173, 179 Prince Edward Island, 72, 74,75,76, 77,79 Progressive Conservative party, 103 Progressives, 141 Proportional representation, 5,14, 19, 40-41, 54, 60, 67, 99,139; in Australia, xi, 6,26,27,29,54,83, 122,123,124,126,140,141,164, 183; in Germany, 43,54; in Great Britain, 37-38 Qualified majority. See Supermajority Quebec: and amending procedures, 151-52; and the Clarity Bill, 13334,145; and history of bicameralism, 3,16,95-97,185 nl; and Meech Lake Accord, 103; and minority rights, 117; impact on federalism, 20, 91,92,102,106,

258 Index

Redistribution, 71-73, 74-75; formulas, 72, 74-76 Redundancy, 12,14,94,105 Referendums, 14,22,26,35,59,87, 103,156 Reform Act, 1832 (UK), 9,34,62

mandate, 138; and the Senate, 79, 80,92; and unicameralism, 137; in Australia, 22,27,29,122-23,128, 137-39,142,166,181 Representation, xi, 61, 67-88 passim. See also proportional representation; American concept of, 38-39, 40,83,88,101; and independence, 68; Australian concept of, 156; by population, 15,24,37,38,40, 70, 71-72, 73,74, 75, 76,96,98,162, 180; in a federal system, 68,162; protection of, 72,74; regional/ provincial, 11-12,15,45,49,50, 52, 67, 70, 73, 77,99,179,180,204 n!6 Representation of the Peoples Act, 1918,14 'Review of Senate Committee Studies,' 98-99 Reynolds v. Sims, 203 n7 Riker, William, 6,11,14-15,41,194 n43

Reforming the House of Lords: Lessons from Overseas, 11

R.J.R.-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada, 86

'Reform of the Second Chamber, The,' 14 Reform party, 57,103,104 Regional representation. See Representation, regional Reid, John, 174 Renewal of Canada Institutional Reform conference, 107

Robertson, Gordon, 4 Robinson, George Richard, 154 Roblin, Duff, 67, 68,218 n30 Roebuck, Arthur, 20 Romanow, Roy, 178 Ross, Sir George, 8,50,55,63,84 Royal Commission on Aboriginal Peoples, 106 Royal Commission on DominionProvincial Relations. See RowellSirois Commission Royal Commission on Reform of the House of Lords (Wakeham Commission): and the Appointments Commission, 132,167-68; and bicameralism, x-xi, 11,15; find-

107; representation in House of Commons, 71,73,75; representation in Senate, 40, 70,74, 75,151, 152; and Senate reform proposals, 155,179 Quebec Conference, 78,95 Quebec Liberal party, 49 Quiet Revolution, 91 Radicalism, 17 Rae, Bob, 67 Read, Gordon, 125 Rebellion Losses Bill, 79 Rebellions of 1837,162 Red Book, 139 Rediscovering Institutions, 61

Representation and Institutional Reform, xi

Republicanism, 14,17,22,38,39, 83 Responsible government, 8,16,17, 30,162,165,166; and accountability, 79,138; and bicameralism, 6, 131,133,137,142,169,196 n54; and federalism, 24,25,122; and

Index 259 ings of, 93,150; government reaction to, 187 n25; opinions on Canadian Senate, 117; recommendations of, 10,17,36,37-38,81,83, 99,120,121,150,166; role of the House of Lords, 24,31, 33,74,82, 118,122 Royal Commission on the Economic Union and Development Prospects for Canada. See Macdonald Commission Rowell-Sirois Commission, 48,49 Russell, Meg, 11 Rydon, Joan, 12 Salisbury Convention, 33,115,139 Sartori, Giovanni, 176, 812 Saskatchewan, 75, 76,106 Saunders, Cheryl, 89,122,123 Sawer, Geoffrey, 137 Seanad Eireann (Ireland), 17-18 Senat dans le federalisme canadien, Le, 50 Senate, Australia. See also Constitution, Australia; House of Representatives; Proportional representation - NATURE OF: accountability, 33, 126-27,138-39,142; autonomy/ independence, 28,123,124-25, 130, 215 n44; partisanship, 12, 26, 28,123,124,125,139-40,141,164; party discipline, 68,125; party systems, 122,123 - REPRESENTATION: of minority interests, 26-27,89,164; of regional interests, 11,22, 26,27, 68, 82-83,164 - ROLES AND FUNCTIONS: in cabinet, 33,125,142; legislative overseer,

124,125,129; mandate, 123,13839,140,181,182; money bills, 6, 22, 23, 27-28,164; powers, 11,26, 27-28, 30,123,125,126,165-66, 181; relationship with House of Representatives, 6,16,122-23, 128-29,137,139-^0 - STRUCTURE: committee system, 33, 124,125-26,134,137; composition, 6,16, 22,29-30, impact of minor parties, 26,122,123,137,140,141; selection system, 6, 22, 29,54, 121-22,123,163-64,181 Senate, Canada. See also Upper chamber - COMMITTEES: autonomy of, 152, 154,159; authority and influence of, 60,125-26,152,160; Banking, 124; hearings, 113, Legal and Constitutional Affairs, 85-86; reputation of, 88,118,178,218 n32; role of, 55, 111, 124,150,154, 160-61; Social Affairs, 178; Special, 111, 112,134,142,160,173; Standing, 112 (list of); suggested changes to, 160,173; of the Whole, 173 - CRITICISM OF: accountability, 88, 157; appointees, 3, 68, 77, 79; appointment process, 39, 56-58; 80-81,153,167,168-69,170,176; partisanship, 136,161,173; representation, 4, 20, 52, 60, 67, 69, 8081,106,127,136,152; structure, 20, 80,90; veto powers, 37, 60-61,112, 176,177 - LEGITIMACY OF: implication of, ixx; need for elected status, 45,54,55, 181-82; perceptions of, 42, 62-63, 67-68,103,115,201n. 35; recogni-

260 Index tion of, 82,84,88,114; undermining of, 4,37,39,57,58-61 - NATURE OF: adaptability of, 154, 172,177,178; autonomy/independence, 9, 73, 77, 79,82,88,145, 162; cooperative, 150; interdependency, 106; partisanship, 85, 104,110,114,124,141^2,159; uniqueness, 149-50; weaknesses of, 19,20; view of, 9 - OPERATION OF: academic interest in, 48-49,50-54; codes of conduct, 171,199 n!4; media interest in, 28, 110,150; public interest in, 3,47, 48,110; suggested changes to, 173-75; work of, 45, 61, 87-88, 120-21,132,159-60. See also Committees - POWERS OF: absolute veto, 7,10, 36-37, 55,109,120,157,170; amendment of government bills, 115-17,136; constitutional, 31, 107-9,110, 112,126, 138, 144,16567; money bills, 28, 57,117,165, 201 n31; suspensive (delaying) veto, ix, 7, 47,108,109,152,157, 158-59,224 n6; use of absolute veto, 60-61, 69-70,115 - PROPOSALS FOR SENATE REFORM:

abolition, 52,55,57-58,62,93,98, 102,136; accountability, 127; and federalism, 5,100; Charlottetown Accord, 47-48,106; composition (representation), 69-70, 90-91, 106,127,163; Constitutional Amendment Bill (Bill C-60), 52-53; elected Senate, 29,54, 55,67-68, 137,156-58,161-62; government/ parliamentary/political, 49-50, 54, 68-70; implications of, 41,53-55, 58-59,101-5,139-41,155,156,

161-62; influence of National Energy Policy on, 91-92,106; influence of Western Canada on, 40,93-94,103-4,167; models for, 7-8,53,54,63,93; non-constitutional means of improvement, 172-75; non-success of, 154-56; protection of provincial interests, 40-41,54,95,99,159; public opinion on, 56; senatorial opinion on, 4,58, 67-68,113,127,182; Triple E, 39,40,45,53-57, 63,92, 102,106-7,155,156,167; use of veto, 98,102,103,188 n26, 199-200 n!7 - RELATIONSHIPS: constitutional perspective on, 100,108,130,139, 155,157; deadlock situations, 128, 155; federal-provincial, 53,54, 178-79; legislative disagreements with House of Commons, 31,114, 115,124,134; linkage with House of Commons, xi, 3, 55, 72-73, 76, 79, 84-85,122,142,156,159,160, 161,167; lobby groups, 53-54,140; special interest groups, 3, 52, 61, 76, 88,167 - REPRESENTATION: as compensatory, 38,163; linguistic duality, 20, 102,117,155; national, 20, 70, 90, 99,100, 111, 144,163,180; of Aboriginal people, 20,106; political, 11-12, 67,68, 69, 70, 79,88, 103,104,112; provincial, 5,20, 53, 72-73, 75,95,107; regional, 18, 20, 73-74,96, 98,107,144,153,167; sectional, 21, 73-74,99,102, 111, 113,152,163,167; Senatorial Rule, 74-75; territorial, 72,84,150-51, 153,163 - ROLE: as conscience of /check on

Index 261 Parliament, 62, 111, 113-14,131, 154,169; as House of the Federation/Provinces, 18,52-53,101, 162,163; constitutional, 77-78,86, 107-9,135-36,142-44,152,16465,177; delay of legislation, 86, 103,117,133,136,137,152; deliberative, 87-S8,110,136,137,15962,179; federal/territorial, 18, 20, 62,90,107,122,179,198 n7; federalism, 11,21,46,98-99,156, 170; legislative overseer, 31,87,96, 112,114-17,133,151-52,160,163; mandate, xi, 28, 111, 138,139,142, 159; protection of human rights, 87,98-99,110,174,183; protection of minority rights, 21,38, 73,86, 111, 113,117,135-36,145,152,155, 159,173; protection of provincial rights/interests, 36, 73, 74, 76,90, 95,99; protection of regional/ sectoral interests, 31, 36, 74,102, 158-59,180; public forum, 41,61, 84-86, 88,133-35,152,160; public interest in, 3,48; Quebec, 96,97, 117,133-34,145,151; redundancy, 95,105,159; representative, 8, 162-63,167; review of government policy, 28-29,90; 'sober second thought/ 94,113,114,133, 201 n23 STRUCTURE: allocation of Senate seats, 40, 72, 73-74, 76, 78,162-63; appointment process, 41,73, 7879,81, 82,154,167,168,172,173; composition, 36, 77, 81-82,132, 141,162,167,172,173; continuity of membership, 76, 77,110,153, 170; cost, 57, 79,95,172,178,218 n32; election of senators, 103-4; patronage, 4,18-19,57,58,136,

153,167; role of prime minister in appointment process, 19,68, 69, 70, 77,168-69; size, 9,41,76, 79, 128,158,169 Senate of Canada, The: Its Constitution, Powers and Duties, Historically Considered, 8,50 Senate Veto, The, 163,166 Senators, Canada, 9,21,45,48-49, 84,110,153; diversity, 172; in cabinet, 23,98,100,121,127,142, 163; selection of, 3,4, 7,18,19,30, 50,56,57, 78, 79,88,90,91,107, 118,124,132,141-42,168-69,173; tenure, ix, 31, 77,82,90,149,153, 162,168,172,173-74 Sharman, Campbell, 122,124 Shell, Donald, 121 Sifton, Clifford, 72 Sinclair, Barbara, 182-83 Single-party government, 77 Smiley, Donald V., 48,49,53,101 Social Credit, 141 Social hierarchy, 62, 78 Social Sciences and Humanities Research Council, 61,115 Somalia Commission of Inquiry, 112 Soames, Nicholas, 121 South Africa, 8,78 'Sovereignty of the people,' 25,33,39 Speakers Conference on electoral reform (UK), 13-14 Special Joint Committee of the Senate and House of Commons on Senate Reform, 49,54,55,73,108-9 Special Joint Committee on the Amendment to Term 17 of the Terms of Union of Newfoundland, 135-36,173 Special Senate Committee on Aging, 111

262 Index Special Senate Committee on Poverty, 45, 111, 160 Special Senate Committee on Science Policy, 111 Special Senate Committee on the Constitution, 109 Special Senate Committee on the Mass Media, 111 Star-Phoenix, Saskatoon, 180 Stevenson, Lord, 132 Stewart, John, 58 Stilborn, Jack, 163 Stockmar, Baron, 13 Strathclyde, Lord, 115 Structural-functionalism, 48, 49 Sullivan, Louis, 158 Sundquist, James L., 139 Supermajority, 7,15, 35,41,42,136 Supreme Court of Canada, 20, 21, 44,53,81,86,87,102,107,122, 134,144,159,176 Supreme Court of Newfoundland, 86 Supreme Court of the United States, 15 Sydney Morning Herald, 80 Tache, E-P, 79 Task Force on Canadian Unity, 7, 49,112 Texas, 71,180,195 n47 Teitlebaum, Mr Justice, 74 Thatcher, Margaret, 121 Thomas, Paul, 105-6,178 Times, The, 132 Tobin, Brian, 86 Treaty federalism, 106 Tricameralism, 106 Trudeau government, 52,91,101 Trudeau, Pierre, 5, 77,98,141,163, 173,218 n30

Turner, John, 48,157 Tyranny of the majority/ 6,86 Uhr, John, 82,124,126-27,139,165, 181 Ulster Loyalists, 150 Unicameralism, x, 3, 7,14-15,25,35, 62, 94-95,102,115,131,136-37, 155,189 n39,194 n43,197 n61, 208 nl3 and 14 United Province of Canada, 17,71, 75, 79,84-85,185 nl United States, 12,37-42,89,90,101 US constitution, 7, 33, 39, 41, 83-84, 94,128-29,136; amendment, 151; pre-revolutionary opinion of, 56; article 1,46; 17th Amendment, 22, 42,83 US Congress, 12,37,39,128,130, 152,180,195 n47; conference committees 128,129 US electoral college, 104,221 n23 US House of Representatives, 46, 71, 88,129 US Senate, 17,19, 23, 25,37, 39^0, 41,45, 46,67, 70, 71,83,136,180; as states' representatives, 130; legitimacy of, 222 n30; mandate of senators, 139; political parties, 129; power/independence, 39-40, 129,130,149; relationship with House of Representatives and White House, 149; role, 41, 70,129; selection of senators, 41,104; size and term, 129 United States v. Burns, 87 University College London, Constitution Unit, xi, 11 Unreformed Senate of Canada, The, 50, 63,102

Index 263 Upper Canada, 16,30,221 n24 Upper chamber/house. See also Bundesrat; House of Lords; Senate, Australia; Senate, Canada; US Senate - NATURE OF: conservative, 80; hereditary/long-term, 10, 32, 82; independence of, 28, 77; partisanship, 12,23,26,28,34, 82,105; perceptions of, xi, 6,13,34,36, 63 - OPERATION: media coverage of, 28; work of, 119,132-33 - POWERS: and accountability to executive, 23, constitutional, 22, 27,33; deadlock, 24,25-26; legislative, 25,29,33,35,112,222n. 30; money bills, 22,24,25; suspensive veto, 7,10,25, 33, 35,36,136 - REFORM: abolition of, 58,149; other proposals for, 10,12,13-14, 37-38,41,47, 70,112,120 - REPRESENTATION: impact of political parties on, 7,28,34,41, 121,122,133; of minorities, 26-27; regional/territorial, 11-12,22, 82, 89; rural/urban, 13 - ROLE: delaying function, 36; in the executive, 23; in a federal system, 8,21,24,27,41, 62,89-90; legislative overseer, 44,96,113-14; legitimacy of, 17; mandate of, 27; purpose of, xi; 'sober second thought/ 14, 33,36,113,132 - STRUCTURE: composition, 10,16, 22, 30, 34, 80,132-33; forms of senates, 3,20; history of, 3,13,16, 17,19, 78, 79,80; membership, 6,

22 (Australia); 47 (Canada); 43,89 (Germany); 32 (UK); of elected senates, 6,22,29,42,83,183; relationship to lower chamber, 13,25,27, 33, 34,122; size, 9,11, 25-26,32,39,41 Ventura, Jesse, 14,203 n7 Victoria (Australia), 19, 24,80,104-5 Vincent, John, 117 Voter turnout, 59,88 Wahlke, John, 48 Wakeham Commission. See Royal Commission on Reform of the House of Lords Ward, Alan, 62 Ward, Norman, 9,48,51,53, 71,95 Waters, Stan, 104 Watts, Ronald L., 48,49,53,58 Weaver, Kent, 98 Webster, Daniel, 129 Weinrib, Lorraine, 174 Wentworth, William Charles, 80 Western Canada, 59, 60, 70, 72, 73, 92,93,94,98,163,179,180 Weatherill, Bernard, 99-100 Westminster model. See Responsible government Wheare, K.C., 89 Whitelaw, Viscount, 83 Whitlam government (Australia), 149 Winnipeg Free Press, 95 Wrong, George M., 63 Yukon, 70, 75, 76