What if the UK reforms the House of Lords before we finally get serious about the Senate in Canada?

Apr 26th, 2014 | By | Category: Key Current Issues

Beverly McLachlin, Chief Justice of the Supreme Court of Canada. (FRED CHARTRAND/THE CANADIAN PRESS).

The April 25, 2014 Supreme Court of Canada response to the Harper government’s queries on Senate reform includes some poignant passages.

This is one of them: “The Constitution Act, 1867 contemplates a specific structure for the federal Parliament, ‘similar in Principle to that of the United Kingdom’ … The Act creates both a lower elected and an upper appointed legislative chamber …  It expressly provides that the members of the lower chamber — the House of Commons — ‘shall be elected’ by the population of the various provinces … By contrast, it provides that Senators shall be ‘summoned’ (i.e. appointed) by the Governor General.”

The Court goes on. If this constitutionally prescribed “appointed” character of our upper house — “similar in Principle to that of the United Kingdom” — is going to be changed, then the Constitution Act, 1867 must be amended, under the general formula for such purposes prescribed by the Constitution Act, 1982.  Ie, by the federal parliament and the legislatures of seven provinces, representing 50% of the Canada-wide population.

And so Prime Minister Harper’s attempt to gradually turn the Senate into an effectively elected body, without getting bogged down in any tedious (and “divisive”) federal-provincial constitutional debate, just will not fly, etc, etc. And all this may seem just fine to those who never really wanted Senate reform in the first place.

Colin Kidd is Wardlaw professor of modern history at the University of St. Andrews in Scotland, and the author of a number of books, including Union and Unionisms: Political Thought in Scotland, 1500-2000.

Whether you really want Senate reform or not, however, if you have also just been reading “A British Bundesrat? … Colin Kidd on how to balance ‘England’s House of Commons’,” in the April 17, 2014 issue of the London Review of Books, you may wonder a bit about what “similar in Principle to that of the United Kingdom” is actually going to mean — in the 21st as opposed to the 19th century.

Kidd begins his April 17 LRB piece with : “Whatever the outcome of the independence referendum in Scotland this September, it will be followed by an extensive inquest into the workings of the British constitution. In some quarters inquiries have already started. The Political and Constitutional Reform Select Committee of the House of Commons issued a report in March last year titled Do We Need a Constitutional Convention for the UK?”

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From the standpoint of Senate reform in Canada, Colin Kidd’s piece quite provocatively ends with :

The present-day German Bundesrat in session. Carsten Koall/AFP/GettyImages.

“Since the [UK] Parliament Act of 1911 first checked the powers of the House of Lords, politicians have struggled with the problem of finding an appropriate role for the upper chamber. For all the constitutional tinkering of the Blair years the House of Lords remains a problem shelved. The English regions are lukewarm at best about regional assemblies, not least as few taxpayers want to support an additional layer of costly legislators. However, were the House of Lords to be transformed — without any violence to the coherence of the British constitution —  into a German-style Bundesrat, with a membership drawn from the governments of the nations and regions of the United Kingdom … and a supermajority threshold introduced, then the powers of what is effectively England’s House of Commons might at last be clipped by a reinvigorated second chamber.”

Mmmmmm, one might say in Canada …  (And remember that the so-called powers of England’s  or Canada’s, etc, House of Commons, are really the powers of the Prime Minister today, assuming a majority government at any rate.) What if the upper house or second chamber in the United Kingdom actually were to become a “British Bundesrat” — in a new UK federal system, taking in the diverse nations of England (and its various regions),Scotland, Wales, and Northern Ireland? Would that mean the phrase “similar in Principle to that of the United Kingdom” in the preamble to Canada’s Constitution Act, 1867 had suddenly acquired some fresh new meanings?

The British House of Lords debating Irish Home Rule in 1893.

(And note that turning the Senate of Canada into a kind of Canadian Bundesrat has already been proposed by the Halifax Chronicle Herald in its April 25, 2014 “EDITORIAL: Court ruling shrinks Senate options.” Oh and btw, the possibility of a partial or even fully elected House of Lords has been discussed in the United Kingdom as well, during what Colin Kidd calls ”the constitutional tinkering of the Blair years.” If even an elected upper house became “similar in Principle to that of the United Kingdom” at some point over the next number of years, would that mean what now suddenly seems like Stephen Harper’s too-clever-by-half-schoolboy scheme for effectively electing Senators in Canada would suddenly be OK????)

In any event, I am tempted to draw two no doubt rather hasty conclusions from all this. First, the Supreme Court of Canada is of course just applying the obvious written law in both the Constitution Act, 1867 and the Constitution Act, 1982 in its April 25, 2014 response to the Harper government’s Senate reform queries. At the same time, doing this in the particular even-handed “internal architecture” way the Court insists on does seem to me to take a somewhat provincial or old-fashioned or even neo-colonial approach to the “similar in Principle to that of the United Kingdom” part of Canada’s present-day parliamentary democracy.

Prime Minister Stephen Harper arrives with newly-appointed (and “elected”) Alberta Conservative Senator Bert Brown, for his Oath of Allegiance on Parliament Hill, October 16, 2007. As of April 25, 2014 it at least seems clear that extending the clever sleight of hand involved here to the rest of the country is not going to work. TOM HANSON / THE CANADIAN PRESS FILE PHOTO/

The “Westminster model,” that is to say, is changing before our eyes in the Westminster home of the Mother of Parliaments. As someone who does not like Stephen Harper or his government, I still feel obliged to acknowledge that he was right when he called the Senate of Canada we have today “a relic of the 19th century.” And it is only a slight exaggeration, I think, to read the Supreme Court’s response to the Harper government queries on Senate reform as at least potentially implying that we are in danger in of retaining an aspiring archaic and at best elitist House of Lords in Canada, long after such a thing has vanished in the United Kingdom itself.

The second conclusion I am tempted to draw is that our alleged widespread fear of reopening the constitutional debate in Canada has finally become just another sad sign of our congenital inability to take ourselves even half-seriously. I don’t want to see the Senate abolished myself. So I am not worried about the now clarified constitutional requirement that all provincial legislatures must agree to the abolition of the Senate. I am even less worried about the seven provinces with 50% of the population requirement for any serious Senate reform.

(And remember : The federal parliament and the legislatures of all 10 provinces actually did unanimously agree to the terms of the Charlottetown Accord in 1992. What defeated constitutional change then was a subsequent popular referendum!)

My sense is that it’s the politicians and not the free and democratic Canadian people who are so neurotically afraid of federal-provincial constitutional debate. Our present constitution — a kind of crazy combo dominated by two in some ways contradictory major written documents : the Constitution Act, 1867 and the Constitution Act, 1982 — really does need some serious work.

Popular referendum on the Charlottetown Accord, by province, October 26, 1992. Blue is yes, and red is no. Canada-wide, 55% voted no in the end. But the federal parliament and all 10 provincial legislatures had actually agreed on the Accord before the referendum. Could this kind of unanimous agreement among federal and provincial legislatures happen again? Why not?

So …  Why not spend some modest part of the next 10 years or so trying to make more sense of what the Supreme Court calls our constitutional “architecture” for the 21st century? Our unreformed 19th century relic of a Senate remains a bizarre embarrassment. And the kind of theory of the institution we must apparently remain content with in the absence of proper constitutional amendments is just a foolish irrelevance in our present circumstances.

Of course, opening up the Constitution (again) will mean dealing with other issues too — the Quebecois nation in a united Canada, multiculturalism, the last vestiges of the British monarchy in our home and native land, the rights of our aboriginal peoples, and so forth. But these issues need to be dealt with in any case. If the confederation that will celebrate its 150th anniversary in 2017 is going to thrive for another 150 years, we will have to, in all provinces and regions, and both official languages, gradually come to some fresh and more workable understanding of our fundamental constitutional architecture today.

That is the challenge the Supreme Court of Canada has now laid bare “ for Canadians and their legislatures.” One way or another, we owe it to ourselves to rise to the occasion. Are we men (and women too, of course), or mice? Etc, etc, etc, etc….

Randall White is the author of a number of books on Canadian history and politics, including Voice of Region : The Long Journey to Senate Reform in Canada, and Ontario Since 1985.

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