The Harper Government referred and the high court ruled. What now for Senate reform after the Supreme Court reference? According to the Prime Minister, nothing. In his well-prepared statement after the Supreme Court’s ruling in April, the Prime Minister waived the white towel on reforming the Senate. As he told it, his government had worked tirelessly trying to enact its limited package of reforms only to be thwarted by the opposition parties, the provincial premiers and now by the Supreme Court of Canada. That is certainly what the Prime Minister wants Canadians to believe.
Many of his natural conservative allies who support reforming the Red Chamber were outspoken in their criticism – not of the Supreme Court’s ruling but in the government referring the question of the reforms’ constitutionality to the high court. The National Post called the succession of Conservative Senate reform bills “a colossal waste of time, money and energy.” It said Mr. Harper should have directed the reference much earlier so Canadians “wouldn’t have spent the last eight years debating a fantasy”. Conrad Black – the man who founded the National Post and probably did more than any single person to promote the “unite the right” movement that led to Mr. Harper becoming the leader of the Conservative Party of Canada — called the reference “a charade” to find a respectable way of avoiding any consideration of constitutional change.
Thus, are we left to accept Mr. Harper’s declaration that Senate reform is now “off the table”? If we wish to reform the Senate must we be as bold Mr. Black and embrace constitutional change?
The answer to both is no. There is a middle way between both extremes.
There is much that the Prime Minister could have done to strengthen the Senate before the reference and there is much he could do now. I won’t develop this theme much here because the chances of that happening appear to be nil. Instead the Prime Minister seems to have embraced a political strategy of now running as far away from the Senate as possible. According to the government’s post-reference statement, efforts will be devoted to “minimiz[ing] costs” and “making the Senate more transparent and accountable” to Canadians. Fourteen of 105 seats are vacant.
Thus, it is worth stating that the single-most important reform that the Prime Minister could have implemented over the past eight years – and still can now – is to improve the quality of appointments to the Senate. One only need to look at the Office of the Governor General of Canada to see the difference that good (non-partisan, committed to the office) and bad (partisan) appointments make to the legitimacy of an important constitutional office.
As I have argued before, the Senate needs to reform itself. This doesn’t mean coming up with constitutional proposals or negotiating with the provinces (although a provocative idea). It means grabbing its constitutional powers by the horns and getting serious about demonstrating its own independence and relevance to Canadians.
First, the Senate needs to make itself a full-time job because it sure pays like one. The base salary for a Senator is $138,700.00 (Senators can earn supplements for being the chair or vice-chair of a committee, etc.). That’s not quite top 1% but it is more than 4.5 times the median individual Canadian income of almost $30,000 and almost twice the median Canadian family income of $76,000.
The Senate needs to institute full-time work for full-time pay. It must set an example for Canadians and apply the generally-accepted rule that if you don’t show up for work, you don’t get paid. The Senate should dock the pay of its members who miss a certain number of sessions.
It should also ban Senators from earning outside income, otherwise known as “moonlighting”. Many Senators would already be receiving pensions or have investments. If $138,000 isn’t enough for a Senator, let them resign from the Senate or refuse an appointment.
Second, the Senate should prohibit its members from holding any formal office in a political party and from raising funds for a political party. The best way to decrease partisanship in the Senate is not to make Senators elected or to impose term limits, it is to prohibit partisan activity by Senators.
Third, the Senate needs to become much more transparent. The House of Commons is known as “the People’s House” but that doesn’t mean that the Senate belongs only to its members. The Senate expense scandal can be explained in part because of an utter lack of transparency and a complete failure of accountability. The Senate should post all Senators’ expenses on its website. The House of Lords does it; there is no reason why the Senate can’t as well.
Fourth, following from the previous point, the Senate needs to demonstrate to Canadians that its members exist to serve the public. Individual Senators have surely done good works and the Senate as a body has also produced exceptional work. The Supreme Court used the phrase “sober second thought” thirteen times in the reference and never mentioned scandal once. Most Canadians would probably associate the Senate with scandal rather than with its proud moniker.
The Senate should make itself the most transparent body in Canadian government, an admittedly low bar but one worth achieving nonetheless. In addition to posting expenses, it should post attendance records as many municipal councils, public bodies and public corporations do. It should also post and specify Senate-related business engaged in by Senators outside the Red Chamber.
All of this would both encourage Senators to spend more time on Senate business and reduce the risk of malfeasance.
Finally, the Senate needs to establish a serious independent oversight body for itself. It has lost the trust of Canadians and it has lost its moral right to police itself, despite having the legal right to do so. Only by surrendering that legal right can it hope to build the trust of Canadians.
Nobody seems willing to stand up for the Senate these days. Its only chance is to stand up for itself.
Adam Dodek is one of the founders of the University of Ottawa’s Public Law Group and the author of the book The Canadian Constitution. He is currently a Visiting Professor at the Halbert Center for Canadian Studies at the Hebrew University in Jerusalem.