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What We Should Do with the Senate

Either abolish it or create one that better suits less populous provinces.

Rafe Mair 29 Nov

Rafe Mair writes a column for The Tyee every other week. Read his previous columns here. He is also a founding contributor to The Common Sense Canadian.

Let's cool down a little, folks. Before we make changes to Canada's Senate let's use this opportunity to examine the whole idea of a senate, the pros and cons, then do something.

Our Senate is more than three greedy grubs and we've had the thing for 146 years. Given that longevity, we shouldn't be in a hurry to toss it aside. Let's first see what we have. Can it be changed so as to improve our system of governance or should it simply be thrown on the rubbish pile of history?

Let's stand back and look at why we had the Senate in the first place. Let's also look at the U.S., Australia and Germany, who have functioning senates, and explore why they have them.

The Senate is useful when you have, as Mackenzie King once said, too much geography and too little history. Its purpose, then, is to make sure that the elected lower house can't oppress with its populous power base. This was the key in the famous U.S. Constitutional Conference of 1787 when smaller states refused to join in a union where their interests would be dominated by New York, Pennsylvania and Virginia. The great men of the time, James Madison, Alexander Hamilton and Benjamin Franklin, guided the convention to an upper house where each state, irrespective of size of population, had two senators. Those senators originally were selected by state governments and eventually they were elected.

One must be careful when examining the U.S. senate, which was designed to handle their situation in 1787; thereafter-new states to the union would have two senators, which meant that states weren't created if the balance was too badly skewed. Much depended in early days on the slavery question, which became part of deal that saw new slave states being balanced off by a non-slavery state.

The point is that the U.S. recognized that strict "rep by pop" created a tyranny of the populous over the smaller states.

Other places, other senates

One can argue that those with the most should get most of the power. The trouble with that is in Canada it leads to a situation in which representation by population doesn't give a proportionate share to the large regions, rather it gives them all the power. This problem would be ameliorated to some degree if we implemented election by proportional representation, but that's for another day.

Australia is perhaps a better example. They, too, have an abundance of geography. A senator is a member of the Australian senate, elected to represent a state or territory. There are 76 senators, 12 from each state and two each from the Australian Capital Territory and the Northern Territory.

The powers of the two houses of the Commonwealth Parliament, the Senate and the House of Representatives, are defined by the Australian Constitution. All proposed laws (bills) must be passed by both houses. The Senate's law-making powers are equal to those of the House of Representatives, except that it cannot introduce or amend proposed laws that authorize expenditure for the ordinary annual services of the government or that impose taxation. The senate can, however, request that the House of Representatives make amendments to financial legislation and it can refuse to pass any bill.

Germany is a bit different because, instead of having too much geography, they have too much history. Regions such as Bavaria, the Palatinate etc. had separate jurisdictions, which lasted until fairly recent days. In fact one might argue that it didn't end until Hitler came along.

They also have a constitutional court sitting in Mainz which sorts out constitutional spats.

"The Upper House, the Bundesrat, has," as its web page explains, "the following purpose: It is a constitutional body within a federal system.

"The basic idea underlying the democratic and federal constitution of Germany is the division of power.

"In the performance of their tasks, the Federation and the Länder [states] should work within a mutual checks-and-balance system but also practice mutual co-operation and consideration. The main difference between the German form of federalism and other federative systems when it comes to the division and execution of tasks is that the individual federal state governments participate directly in the decisions of the national state or Federation. This is done through the Bundesrat.

"Within this system of division of power and combined performance of tasks," the Bundesrat has three central functions:

It defends the interests of the Länder vis-à-vis the Federation and indirectly vis-à-vis the European Union.

It ensures that the political and administrative experience of the Länder is incorporated in the Federation's legislation and administration and in European Union affairs.

Like the other constitutional organs of the Federation, the Bundesrat also bears its share of the overall responsibility for the Federal Republic of Germany.

It is not my purpose to recommend any particular brand of upper house to Canada but to point out that Upper Houses in three examples are part of the government structure, each tailored to local circumstances.

What you can be sure of are two things -- the upper house often upsets and annoys people, especially those sitting in the lower house yet none of the countries I mentioned would get rid of it.

Don't elect them, yet

There is one thing we must not do -- elect senators under the present system. We must stop and think. If we elect senators they will assume a mandate from the people and the mischief that would flow from that ought to scare the pants off us! Surely it's bad enough to have New Brunswick with two more senators that we do, with Ontario and Quebec having four times as many. I simply do not understand why any thinking person in western Canada would want an elected senate on the same model we have now.

Of course senators should be elected but only after we have a reformed senate, which suits our common purpose.

When deciding what we should have we must remember not to make perfection the enemy of improvement.

In my view the sensible options are two -- abolish the Senate or create one that suits us.

A useful start would be to set up a constituent assembly of ordinary citizens chosen by lot as we did in our own province a few years ago. Pay them and give them a reasonable time frame within to work. Let them cover the entire nation. The expense will be justified by the catharsis of the exercise itself.

As we think and work our way through this problem, remember that Justin Trudeau told a Quebec audience that Quebec having 24 senators to B.C.'s six "is in our favour," no prizes for guessing who "our" refers to.

A proper Senate would be good for the country but will be vigorously opposed by Ontario and Quebec. As that happens, remember that abolition of the present Senate or election of senators will greatly augment the powers they have now.

If Canada is really a nation, not just a collection of shopping centres, we should have the wit and wisdom to create an elected upper house that fairly balances off the tyranny of straight representation by population.  [Tyee]

Read more: Politics

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