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choicesVol. 14, no. 11, September 2008 ISSN 0711-0677 www.irpp.org Political Legitimacy for an Appointed Senate

Campbell Sharman ounded in 1972, the Institute for Research on Public Policy is an independent, national, nonprofit F organization. IRPP seeks to improve public policy in Canada by generating research, providing insight and sparking debate that will contribute to the public policy decision- making process and strengthen the quality of the public policy decisions made by Canadian governments, citizens, institutions and organizations.

IRPP's independence is assured by an endowment fund established in the early 1970s. Campbell Sharman is an adjunct professor in the Department of Political Science at the University of British Columbia and a senior ondé en 1972, l’Institut de recherche en politiques honorary research fellow in political science at publiques (IRPP) est un organisme canadien, the University of Western Australia. Now based in Vancouver after a teaching and research F indépendant et sans but lucratif. career in Australia, he has published widely on parliarmentary politics and federalism in L’IRPP cherche à améliorer les politiques publiques Australia and the effects of electoral rules on canadiennes en encourageant la recherche, en mettant de representative government. l’avant de nouvelles perspectives et en suscitant des This publication was produced under the débats qui contribueront au processus décisionnel en direction of Leslie Seidle, Senior Research matière de politiques publiques et qui rehausseront la Associate, IRPP. The manuscript was copy-edited qualité des décisions que prennent les gouvernements, les by Barry Norris, proofreading was by Zofia citoyens, les institutions et les organismes canadiens. Laubitz, production was by Chantal Létourneau, art direction was by Schumacher Design, and L’indépendance de l’IRPP est assurée par un fonds de printing was by AGL Graphiques. dotation établi au début des années 1970. Copyright belongs the IRPP. To order or request permission to reprint, contact:

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To cite this document:

Sharman, Campbell. 2008. “Political Legitimacy for an Appointed Senate.” IRPP Choices 14 (11).

This publication was prepared in consultation The opinions expressed in this paper are those of the author and with the Forum of do not necessarily reflect the views of IRPP or its Board of Directors. Federations. Strengthening Canadian Democracy / Renforcer la démocratie canadienne

Research Directeur / Directrice de recherche Geneviève Bouchard

ince the 1960s, increased levels of educa- tion and changing social values have S prompted calls for increased democratic participation, both in Canada and internationally. Some modest reforms have been implemented in this country, but for the most part the avenues provided for public participation lag behind the demand. The Strengthening Canadian Democracy research program explores some of the democrat- ic lacunae in Canada's political system. In pro- posing reforms, the focus is on how the legitimacy of our system of government can be strengthened before disengagement from politics and public alienation accelerate unduly.

epuis les années 1960, le relèvement du niveau d'éducation et l'évolution des D valeurs sociales ont suscité au Canada comme ailleurs des appels en faveur d'une partici- pation démocratique élargie. Si quelques modestes réformes ont été mises en œuvre dans notre pays, les mesures envisagées pour étendre cette partici- Contents pation restent largement insuffisantes au regard de la demande exprimée. Ce programme de recherche examine certaines des lacunes démocratiques du 3 Conflicting Assumptions about Senate Reform système canadien et propose des réformes qui 7 Power and Legitimacy amélioreraient la participation publique, s'intéres- 11 The Prime Minister and an Appointed Senate sant par le fait même aux moyens d'affermir la légitimité de notre système de gouvernement pour 12 Senate Reform as a Tactical Device contrer le désengagement de plus en plus marqué 14 Modifying an Appointed Upper House: The de la population vis-à-vis de la politique. Australian Experience 15 Propositions for Successful Senate Reform 21 Conclusion 22 Notes 23 References 25 Résumé 26 Summary IRPP Choices, Vol. 14, no. 11, September 2008 Campbell Sharman an AppointedSenate Political Legitimacy for reduction ofhereditary representationand the of Lordsaddsweighttothis view—thedrastic tion process.Therecentexperience oftheUKHouse be achievedbyinstitutional engineeringoftheselec- motivated bythebeliefthat politicallegitimacycan senators withoutusingdirect electionhavebeen through themodificationofselectionprocess resentative institution. political authoritytosustainthelegitimacyofarep- institutional designwhichcangenerateenough tions. Iftheanswerisyes,thisassumestheresome is whetherlegitimacycanbeachievedwithoutelec- institution requiresmorethanelections;thequestion significance. Political legitimacyfor arepresentative of itsexistencewasregardedasachamberlittle Australian Senateformuchofthefirsthalf-century acceptance ofaninstitution;thedirectlyelected important. Nordoelectionsaloneguaranteepopular monitor representativegovernmentareequally institutional frameworkbothtoimplementand democracy; constitutionalism,theruleoflawandan tion. Electionsareonlyonecomponentofliberal authority doesnotderivefrompopularrepresenta- example ofaninstitutionwhosewidelyaccepted Canada, particularlysincetheCharter, areanobvious political legitimacyistoobroadaclaim;thecourtsin undermined byalackofinstitutionallegitimacy. Whatever themeritsofitsactivities,theyhavebeen charges whichhavedoggedtheCanadianSenate. their formalpowers.Andthesearepreciselythe provisions specifyingtheirfunctionandtheextentof unclear. Thisisthecasewhateverconstitutional their authoritycanbequestionedandroleis I The manyschemesforthereformofSenate Yet toarguethatelectionsarethesolesourceof are notdirectlyelectedfaceadoubleproblem: with elections,representativeinstitutionswhich f democraticlegitimacyisseenassynonymous 2 introduction of balanced partisan appointments have ambitions of the House of Commons. All but one of the enhanced the public acceptance of the role of the propositions could operate without constitutional chamber. But many questions remain about the change; the remaining one requires a removal of the changes which could be applied to the selection Senate’s legislative veto as part of a package of changes process of senators and their consequences for the to ensure the acceptability of a reformed Senate. role of the Senate and the parliamentary process. These issues have been very well canvassed in the literature on the Senate. The chamber, and the possi- Conflicting Assumptions about bility of its reform, has produced a great deal of Senate Reform excellent scholarship,1 and it could be argued that there is little to say on the topic that has not already here are few commentators on the Senate who been said by previous generations of scholars. The think that it should be left as it is — that reform contribution of this paper is to put past debates into T of any kind is undesirable. But, putting aside a contemporary context and, by looking at the expe- those who wish to abolish the Senate,3 the wide accept- rience of bicameralism in similar parliamentary ance of the need for Senate reform masks disagreement democracies, to provide some suggestions about the over the extent and direction of desirable change. reconfiguration of existing ideas about Senate Contributing to the difficulty of discussion are pro- reform — and to set out another set of proposals. found differences in assumptions about the purpose of The paper begins with an attempt to avoid the the Senate, the goal of Senate reform and the method confusion which sometimes surrounds debates over of achieving reform. This makes for a confusing debate, Senate reform by setting out the differing assump- so it may be helpful to set out the different assump- tions about the purpose of the Senate, the goals for tions in each of these areas. reform and the methods of achieving them.2 This part of the paper also looks at the meaning of legitimacy The purpose of the Senate as an attribute of institutions, and its association with Examining the purpose of the Senate is not a matter of democracy and representation. The following part historical accuracy but of current assumptions about what examines the relationship between the power and the the Senate is supposed to achieve (see Stilborn 2003). For legitimacy of parliamentary institutions, and argues some, the Senate should represent the social and regional that these two attributes can contribute to the cre- diversity of Canada as a way of bringing within the par- ation of a stable role for an appointed upper house in liamentary process voices which might not be heard in the the parliamentary process. This is supplemented by partisan debates of the House of Commons. One version an examination of the way in which the House of of this view is eloquently stated by Ajzenstat (2003), who Political Legitimacy for an Appointed Senate, by Campbell Sharman Lords and the Australian Senate have evolved to accepts that a parliamentary executive with a lower house achieve such a role in their parliamentary systems. majority will prevail eventually, but feels that delay and The analysis then moves to the Canadian Senate the canvassing of alternative proposals in the Senate is an and examines the role of the prime minister in the appropriate and necessary parliamentary function. She appointment of senators and the implications of the argues that this is consistent with the founders’ assump- Senate’s fixed size and regional constraints on tions that the Senate’s ability to reflect sectional and appointments in shaping its partisan dynamics. This is regional interest was what made the Senate an integral — illustrated by an examination of the way in which and logical — component of a national parliament (but see Senate reform can be used as a tactical device for par- Smith 2004, 47-50). Ajzenstat might admit (2007) that this tisan gain. A survey is then undertaken of the issues view of the Senate rests on notions of limited govern- raised by the reform of an appointed Australian state ment, parliamentary representation and the need for exec- upper house and its broader implications. utive restraint which are now not widely shared, but Finally, the paper sets out six propositions con- similar views about the proper purpose of the Senate cerning the Senate which argue that the most plausi- underpin David E. Smith’s extensive work on the chamber ble course for reform is a choice from the wide (2003a, 2003b). repertoire of appointment procedures to achieve parti- Some put more stress on the representation of san balance. These must be combined in a way which regional diversity, but also accept that being able to enhances the legitimacy of the Senate while not manifest this diversity in the Senate, rather than to unduly threatening the government or the partisan

3 IRPP Choices, Vol. 14, no. 11, September 2008 executive. Senate’s principalpurposeistoactasacheckonthe process inmorecombativeterms.Forthem,the Senate isheldbythosewhoseetheparliamentary informed review, thelessrelevantelectionsbecome. importance oftheSenateasasourceexpertiseand involve directelections;thegreaterstresson reform oftheSenateasaprocesswhichneednot parliamentary process.Again,thisperspectivesees role asafacilitatorfortheefficientfunctioningof This makes itsrepresentativefunctionsubordinateto frontation betweentheSenateandgovernment. mentary; itshouldnotbetheforumforpartisancon- other words,asachamberofreviewandexpertcom- executive (Parkinson 2007). TheSenateisintended,in tive activitiesshouldbeintheformofadviceto interest (Thomas2003,215-26); butallthesedelibera- administration andholdinquiriesonmattersofpublic vant todecisionsonlegislationandgovernment committee systemtoprovidefurtherinformationrele- should examinethefinedetailsoflegislation,use the HouseofCommons(Smith2003a,159).TheSenate should betocomplementtheparliamentaryactivitiesof possible fromamodifiedappointmentprocess. process ratherthanencouragethevarietyofopinions sity, wouldstilllimitrepresentationtoamechanical designed toencourageregionalandpartisandiver- Elections, evenwiththeuseofelectoralsystems be reformedwithouttheneedforpopularelections. perspective seestheSenateasachamberwhichcould force compliance,isitsmostimportantattribute.This direct popular electionsarelikely tobethe onlyway resistance tothe governmentoftheday, and that needs asourceoflegitimacy tounderpinforceful Of greatestsignificance,itassumes thattheSenate be abletorelyonapartisan majorityintheSenate. government. Itimpliesthat the governmentmustnot views oftheoperationresponsibleparliamentary by aHouseofCommonsmajorityandconventional ones beingthedominanceofanexecutive supported about theCanadianparliamentaryprocess,critical perform adequately. parliamentary scrutinythattheHousecannolonger The roleoftheSenateistofulfillthosefunctions effective inquiriesintotheactivitiesofgovernment. partial exception ofminoritygovernments,tosustain the extensiveexaminationitdeservesand,with ity oftheHouseCommonstosubjectlegislation A verydifferentanalysisofthepurpose Another viewisthatthepurposeofSenate This perspectivechallengesmanyassumptions 4 Party disciplinehaslongreducedtheabil- spectives suggestcontrastinggoalsforSenatereform. ment oftheday. Notsurprisingly, thesedifferingper- relationship withthelowerhouseandgovern- dynamic fortheoperationofSenateandits reform generatedisagreement.Eachsuggestsadifferent on theexecutive —explainwhyproposalsforSenate cient parliamentaryprocessandasanecessarycheck and regionaldiversity, asavitalcomponentofaneffi- Senate —astheparliamentaryrepresentationofsocial Sharman 1990). from itscolonialpast(Sproule-Jones1984;andnote the executive dominanceclaimed tobeinherited supremacy inaCanadawhichcanfinallycastoff Senate asonewayofachievingrealparliamentary 6) posedtheconsequentdilemma: in whichthiscannowbeachieved.Smiley(1985,35- consideration in theoperationofSenate. sions madeonothercriteria, but itwillbethedominant will playacriticalrole.Itmay notalwaystrumpdeci- ernment actionsorpublicinquiries, partisanpolitics government byamendinglegislation, scrutinizinggov- the Senateimpingeonpolitical prioritiesofthe that decisionscanbemade.Aslongastheof ing principlemustbeusedtocoordinatemajoritiesso society. Thechamberhasreal power, andsomeorganiz- though itwereacommitteeofinquiryordebating but itpointstothedilemmaofreformingSenateas cate thedeliberativeprocess.Thisisanoverstatement, merit, andpartisandifferencesdonothingbutcompli- party islargelyirrelevant.Decisionsshouldbemadeon the Senateistobeabodyofexpertlegislativeadvice, toward theroleofpartisanshipandpoliticalparties.If those whoargueforSenatereformistheirattitude The key factorindistinguishingamongthegoalsof The goalsofSenatereform These threeperspectivesonthepurposeof Finally, therearethosewhoseeapowerfulelected essence acheckforexecutive power. challenge legislativesupremacywhichisin regional interestseffectivelywillinevitably the powerandassertivenesstoprotect are questionable.ThusanelectedSenatewith assumptions onwhichthisregimeisbased boleth, boththeempiricalandnormative responsible governmentshouldnotbeashib- have cometounderstandthem.However, rules ofresponsiblegovernmentasCanadians impossible toreconcilewiththeoperative kind ofelectedsecondchamberisalmost Commons. Yet theexistenceofanyother tained bymajoritiesintheHouseof easily beoverriddenbygovernmentssus- Senate inCanada,abodywhosepowerscan No caseatallcanbemadeforaweakelected 4 But to stress the importance of party does not are those who aim for the Senate to be guided by a require the persistence of the kind of party warfare much weakened partisanship; the selection of senators that typifies the current operation of the Senate. would reflect regional diversity by appointing people Some suggestions for reform deal explicitly with the who have status in their communities. In this case, par- question of party and seek to moderate its role. One tisan attachment would be blended with personal way is to produce a balance between the two major attributes to ensure that party considerations were parties and to change the way senators are chosen so moderated by local experience and personal beliefs. that parity is maintained even when there is a change Whatever the goals of Senate reform, consideration of government. In addition, reform could ensure that of the role of parties is unavoidable in the selection of parties other than the two largest are regularly repre- senators, in the operation of the Senate and in its role sented in the Senate, together with, perhaps, the in the parliamentary and governmental process. occasional independent. The goal of these reforms is to recognize the central role that the governing and Method of achieving reform major opposition parties play in the parliamentary The focus of this paper is not on the circumstances in process, but to temper the operation of the Senate by which successful reform of the Senate might be having a significant cross-bench component. If this achieved or on an extensive history of proposals for went so far as to require the governing party to gain reform since the 1960s (see Seidle 1992; Stilborn 2003). the support of cross-bench senators to achieve a Rather, the issues to be canvassed here are the institu- majority, the major parties would retain their domi- tional changes to the Senate that reformers advocate. nant role but would be subject to the moderating Chief among these are changes to the procedures for effect of compromise and coalition building with selecting senators. This might appear to provide a rela- other parties and independents. tively limited set of choices, but it has not prevented Other reforms see party playing a different role. the topic from being one of the most contentious. The For those whose principal goal is to make the Senate big divide is between the direct election of senators and responsive to the political priorities of the provinces, all other methods of selecting senators. party is the agency for regional responsiveness — Those who argue for direct election argue that the party as determined by the government in each Senate needs the political legitimacy that only direct province or as decided by popular election. In the election can bestow. This raises the question of what German Bundesrat model, under which all the sena- the added legitimacy is to achieve. For those who wish tors from a province would be selected by the provin- the Senate to use its powers to confront a government cial government, partisanship for each delegation of supported by a majority in the House of Commons, the senators would be defined as loyalty to the governing purpose of direct elections is clear. But few reformers party in the province. Direct election of senators from regard this as the primary role of the Senate. Those Political Legitimacy for an Appointed Senate, by Campbell Sharman each province would inject provincially based parties who want the Senate to reflect the interests of regional into national politics. This would certainly not reduce political communities see elections as a way of both the importance of party, but might work to blur the expressing and legitimizing their concerns. But a difference between provincial and national parties Senate elected on this basis is likely to succumb to the (the German experience is surveyed in Detterbeck and dictates of party even if it is a different constellation of Renzsch 2003). Whether appointed or elected, the parties than those which now populate the Senate partisan attachments of province-based senators benches. Regional elections are just as likely to lead to would transform the operation of the Senate in ways confrontations between the Senate and the government which are unpredictable. on partisan grounds as a Senate elected on some other For a few reformers, the most important goal of basis. Legitimacy intended for one purpose may end up Senate reform is to enhance the role of party rather supporting a very different one. than to reduce it. In addition to ensuring that the Elections are assumed by many reformers to be the governing party would not likely control a Senate only way in which popular support for the Senate can majority, reform would entail providing nongovern- be achieved; democratizing the Senate through an elec- ment parties with much greater political legitimacy so toral process is seen as a cure-all. The hope that the that they could use to the full the Senate’s powers to direct election of senators can, by itself, solve the prob- force negotiation with the government over its legi- lems of the role of the Senate is certainly misplaced. It slative proposals. At the other end of the scale, there is easier to argue that direct election without other

5 IRPP Choices, Vol. 14, no. 11, September 2008 for their“propriety” independent statutorybodytovetpartynominees Appointment Commission,setupin2000asan by abodysimilartotheHouseofLords opportunities forregionalparticipationandreview the Senate.Thisprocesscouldbecombinedwith erning partycanensureamajorityonthefloorof permit allpartiestoselectsenators,evenifthegov- be nominatedbypartycommitteeswithrulesthat nature ofappointments,butarguesforsenatorsto tions ontwothemes.Thefirstacceptsthepartisan cise itspowerseffectively. Senate ofthepublicsupportnecessaryforittoexer- an exercise inpartisanpatronagewhichrobsthe appointed. Thisprocesshasbeenroundlycriticizedas ing theregionsfromwhichsenatorsaretobe availability ofSenatevacanciesandtherulesspecify- prerogative oftheprimeminister, subjectonlytothe recommending theappointmentofsenatorsis amend theappointmentprocedure.Atmoment, senators —theotherinstrumentofreformisto elected forthepurposeofchoosingsenators)toelect federal orprovincialparliaments(oraconvention enabling someorallofthesittingmembers of reform. question ofthepurposeSenateandgoals pose directelectionsbringsthedebatebackto electoral processthatisthecriticalvariable.To pro- is thelikely goalsofthosepartiesratherthanthe without politicalpartiesplayingacentralrole,andit hard toimaginedirectelections,howeverorganized, the governmentofday. Asmentionedabove,itis of theSenate—thiswouldcertainlybeview institutional changeswouldexacerbatetheproblem to theapproval oftheprimeminister. partisan recommendations, however, mightbesubject of theseoptionsandanysystem whichwasbasedon gested bythepublic(seeUnited Kingdom2000).Both appropriate peoplefromalong listofnamessug- of LordsAppointmentCommission, whichselects Or itcouldbeastandingcommissionlike theHouse guidance astowhatsortofpersonshouldbeselected. panel ofnotableschosenbythegovernment,with ators nominatedbyanonpartisanpanel,perhaps that thecurrentonecannot? Senate reformedalongtheselineslikely toachieve the goalsofthisreformbecomeanissue:whatisa mendations fornonpartisanappointments.Again, Alternative appointmentproceduresarevaria- If indirectelectionsareignored—anarrangement A moreadventurouschangewouldbetohavesen- 5 and tomake itsownrecom- macy express public assessmentoftheworth ofan of thistopic,see Beetham1991). Bothformsoflegiti- institution’s performance(for anextendedtreatment public assessmentoftherelevance andqualityofthe selected, andoutputlegitimacy, whichreferstothe the wayinwhichmembers ofaninstitutionare kinds oflegitimacy:inputlegitimacy, whichrelatesto is especiallyuseful.Shepointsoutthattherearetwo tinction isimportant. in thedesignoflegislativeinstitutions,butdis- that electoraldemocracyisofoverridingimportance sentativeness maynotmattertothosewhobelieve more effectivewayofachievingit.Ofcourse,repre- major goal,someformofappointmentmaybea — asopposedtopopularrepresentationisthe unlikely tobefullyrepresented.Ifrepresentativeness views, socialattributesandoccupationsinsocietyare main organizingagentsforelections,thediversityof tiveness ofthechamber;ifpoliticalpartiesare 2003). Butelectionsmaynotenhancetherepresenta- is directlyelected(seeMcLean,Spirling,andRussell of Lordssothatsome,mostorallitsmembership proposals forchangingthecompositionofHouse ing anelectedcomponent—therehavebeenseveral ratization, shesuggests,isintimatelyrelatedtohav- justify themanyschemesforLordsreform.Democ- way inwhichtheyhavebeenusedtodescribeand tions betweentheseterms,andpointstotheconfused of Lords,Kelso(2006)makes somehelpfuldistinc- focused onthedebateoverreformofHouse legitimacy (seeStilborn2003,58-9).Inastudy tiveness and,perhapsmostfrequently, enhancingits democratizing thechamber, increasingitsrepresenta- wish toreformtheSenateoftenrefertheirgoalas As asupplementtothediscussionabove,thosewho A noteonlegitimacy in theHouseofCommons. harass thegovernmentatbehestofopposition irritant lackingthelegitimacytodoanythingbut were controlledbyanongovernmentmajority, asan vestigial attachmenttoParliament or, iftheSenate good workitmightdo,wouldbeseenaseithera Commons. IftheSenatewereappointed,despiteany ation ofgovernmentandtheroleHouse ways whichcouldhaveprofoundeffectsontheoper- dynamics oftheCanadianparliamentaryprocessin Senate wereelected,itcouldthreatenthecurrent circularity ofdebatesaboutSenatereform.Ifthe Kelso’s (2006)treatmentofinstitutionallegitimacy To listtheseoptionsistoreinforcethedepressing 6 institution, but input legitimacy is a matter of the could have challenged the Senate directly by calling an design of the institution while output legitimacy must election on the issue, but the unpopularity of the meas- be earned by the institution’s performance. Assess- ure and fear of defeat forced the government to admit ments of the Senate are an excellent example of the that the Senate was a critical player in the legislative gap between the two: the Senate clearly performs process whose consent had to be gained for the gov- many useful functions in the Canadian parliamentary ernment to implement its financial measures.6 process (see Franks 2003) but the public, largely Governments usually have partisan majorities in the unaware of this, focuses almost exclusively on its lack House of Commons, which, when combined with strong of input legitimacy. The whole thrust of the debate on party discipline, give the government of the day a free the reform of the Senate is not the quality of its insti- hand in the running of the lower house and deny the tutional performance but the way it is chosen. opposition parties the ability to force changes on gov- ernment legislation or to pursue inquiries into matters the government does not want aired. This is not to Power and Legitimacy deny the importance of the House as a forum for debate on matters of public importance and for provid- he elephant in the room in debates about the ing numerous opportunities for embarrassing the gov- composition of the Senate is the extent of the ernment. But this is a long way from fulfilling the T Senate’s powers. The Senate has the same pow- nominal role of the chamber: the independent scrutiny ers as the House of Commons, with the exception that of legislation and government activities. With the par- appropriation and tax bills “shall originate in the tial exception of periods of minority government, the House of Commons” (Constitution Act, 1867, section House has long ceased to be an autonomous actor in 53). This means that the Senate has the power to veto the parliamentary process. any legislation proposed and passed by the lower Executive control of the business of the House of house, to introduce a bill on any topic other than a Commons is now taken for granted, and even celebrat- money bill, to set up committees of inquiry on any ed as a way of ensuring the electoral accountability of subject and to act as a forum for wide debate on any governments. Parties in government have a period matter of public importance. Of greatest significance, between elections to follow their preferred policies and although the Senate does not have the power to pass legislation with few formal parliamentary originate financial legislation, it may block money restraints on their activities, and must then justify their bills, including the budget and other key appropria- activities at the next election. This view of the parlia- tion bills essential for the operation — and the life — mentary process is so ingrained that those who suggest of a government. This power makes the Senate a electoral reform which might deny the government a Political Legitimacy for an Appointed Senate, by Campbell Sharman potential threat to the government’s control of the solid partisan majority on the floor of the lower house parliamentary process, notwithstanding those who are accused of fostering government instability. The argue that there is something vaguely unconstitu- thought that governments might have to justify legisla- tional about the Senate’s use of the legislative veto tion on its merits in parliamentary debate, and to per- (Rémillard and Turner 2003, 126-7). suade members of Parliament other than government The power of the Senate was amply demonstrated partisans to support it, is seen as almost revolutionary. during the Progressive Conservative government of Executive dominance has become the defining charac- 1984 to 1993, when the Liberals were usually able to teristic of the political process in Canada. muster Senate majorities to harass the government’s This explains why the position of the Senate is legislative program and to block the passage of the anomalous. All provincial legislatures are now uni- occasional bill when they believed they had the sup- cameral,7 and the idea that parliaments should be port of the public. Even Prime Minister Mulroney’s bicameral to provide an upper house which can act as unprecedented use of section 26 of the Constitution a continuing check on governments supported by a Act, 1867 in 1990 to appoint eight additional sena- lower house majority has little currency in Canada. tors to enable the passage of legislation to introduce But the Senate continues to hold the power to disrupt the goods and services tax can be seen as strengthen- the government’s control of the parliamentary process. ing, rather than weakening, the power of the Senate This anomaly has been papered over by degrading the (Franks 2003, 155-65). The Mulroney government status of the Senate so that its members do not feel they have the authority to use their powers to

7 IRPP Choices, Vol. 14, no. 11, September 2008 facing widespread publicopposition.The diagram willingness to challengethegovernmenton measures consequence ofchangestoits compositionandits past 30years,however, itslegitimacyhasgrown asa to delaylegislationfurtherreduced in1949.Overthe to vetolegislationwasremoved in1911 anditspower lar tothoseoftheHouseCommons,butitspower 1948. TheHouseofLordsoriginallyhadpowerssimi- representation (PR)fortheelectionofsenatorsin trol ofthechamberafteradoptionproportional to highlegitimacysincethelossofgovernmentcon- Canadian Senate,butithasmovedsteadilyfromlow chamber withverysimilarpowerstothoseofthe status. TheAustralianSenateremainsapowerful Lords andtheAustralianSenatehavechangedtheir legitimacy quadrant.Overtime,boththeUKHouseof and theCanadianSenateinhigh-powerbutlow- located inthehigh-power, high-legitimacyquadrant on thepolicyatissue. to limitgovernmentaction,whetherornottheyagree on popularacceptanceoftheuseitsformalpowers ent purposes,itistheabilityofachambertocount cept anddeservesfurtherexamination,butforpres- legislative process.Legitimacyisamoreelusivecon- of theinstitutiontotake independentactioninthe this contextisequatedwiththeconstitutionalpower sible combinationsofpowerandlegitimacy. Power in position oftheSenateincomparisonwithotherpos- political legitimacy, itmaybeusefultolookatthe reform ofthisdisparitybetweenformalpowerand uncertainty ofhavingapowerfulSenate. response ofanexecutive which wishestoreducethe This situationhasnotoccurredbyaccident;itisthe weakness iscompoundedbypartisanindifference. sans intheSenatesothatchamber’spolitical government’s securitybycreatingamajorityofparti- sufficient Senatevacanciestofurtherenhancethe Senate enablesaprimeministerwhohasaccessto of appointmenthasbeenused.Thefixed sizeofthe and themanifestlypartisanwayinwhichprocess appointments aremadebytheprimeministeralone of senatorsoncetheyareappointed,thefactthat retirement, thelackofallbutmostcursoryreview permanent natureoftheirtenureuntiltheage appointment, ratherthanelection,ofsenators,the of thenatureSenate’scomposition: ernment determinedtogetitsway. challenge governments,especiallyiftheyfaceagov- In figure1,theUnitedStatesSenateisclearly Before discussingtheimplicationsforSenate Most ofthisdiminutionlegitimacyistheresult powers ofinquiry. review and,inthecaseofAustralianSenate,its for theircontinuingindependentactioninlegislative cated. Forbothinstitutions,thereisstrongbacking question thatchangehasbeeninthedirectionsindi- public acceptanceoftheirlegitimacy, butthereisno Lords andtheAustralianSenateextentof may overstatethedegreeofchangeforHouse ing itslegitimacy. Working initsfavour, however, is maintain itsinfluence onlybysuccessfully maintain- the analogy, itisinunstableequilibrium—can tive influenceonthegovernmental process.To push dependent onitshighlegitimacy toremainaneffec- Its lackofconstitutionalclout meansthatitis and themannerinwhichitcarriesoutitsfunctions. combination ofthewayitsmembershipisselected which hasgainedwidepublicsupportthroughsome high-legitimacy quadrantimpliesaninstitution ond chambersarelikely toarise.Thelow-power, esting becausetheyindicatewheretensionsoversec- tial reformorabolition. implies aninstitutionwhosefutureinvitessubstan- low-legitimacy quadrantmaylookstable,butit and likely tobeself-reinforcing. Thelow-power, value ofitsrole.Thesetwoattributesarecongruent backing, reinforcedbypublicacceptanceofthe implies thatthechamberhasstrongconstitutional power, high-legitimacyquadrant.Highpower urally stablepositionforanupperhouse:thehigh- the HouseofLords the CanadianSenate,Australianand Four SecondChambers:TheUnitedStatesSenate, Constitutional Power andPolitical Legitimacyof Figure 1 Formal power of chamber Figure 1suggeststhattheremaybeonlyonenat- The quadrantswithmixed valuesaremoreinter- Low High Senate 2 Australian Senate United States House ofLords3 Senate?) (Reformed Canadian ihLow High 8 Political legitimacyofchamber 8 PR elections Appointment House ofLords1 Australian Senate1 Canadian Senate House ofLords2

1911 Act that a disagreement with the government and/or the creating wild swings in the partisan character of the lower house will be seen as a political conflict, not a chamber, sometimes producing a Senate with more constitutional challenge. Its lack of constitutional than 90 percent of the seats held by one party group- power means that the government may disagree with ing.9 This usually meant that the government of the the policies of the upper house, but does not see dis- day had a comfortable majority in the chamber, but, on agreements as threatening the system of government. occasion, a government could face a Senate controlled The upper house is a nuisance but its actions cannot by an opposition determined to be as obstructive as prompt a constitutional crisis. possible. The manifestly partisan character of the The position of the current Canadian Senate — high chamber, combined with candidate selection based on power with low legitimacy — can be seen as the most party loyalty rather than on ability or ambition and the unstable quadrant. The upper house poses a continuing general lack of parliamentary activity and initiative left source of uncertainty to the government because of the impression that the chamber had little constructive the chamber’s constitutional powers, but its low legiti- role to play. The move to adopt proportional represen- macy reduces the chances that this will be a problem tation (by the single transferable vote) in 1949 and a for the executive. But the executive is always appre- split in the Australian Labor Party in the mid-1950s hensive that a change in partisan alignment in the triggered a series of developments which led to minor upper house, the emergence of an issue which places parties and independent senators regularly holding the the upper house on the side of public opinion in its balance of power in the chamber, and a huge change in dealings with the government or pressures for consti- the scope and consequence of Senate parliamentary tutional change will give the upper house the political activities (Sharman 1999a). backing to match its formal powers. Moreover, a clash The result has not reduced the suspicion and resent- between the government and a high-power but low- ment of governments towards the power and influence legitimacy upper house bent on blocking government of the Senate; the memory of its exceptional, dramatic legislation is not just a nuisance but can rapidly and highly partisan action in forcing a government to become a serious constitutional standoff. the polls in 1975 has not faded.10 But there is now suf- ficient public acceptance of its role for the Senate to be The Australian Senate seen as an important independent player in the parlia- The two non-Canadian cases show how this instabili- mentary process (Mulgan 1996). The crisis of 1975 cer- ty can be resolved or at least substantially reduced. tainly demonstrated the Senate’s power, but it was also The Australian Senate moved from the high-power an important factor in prompting the rise of minor par- but low-legitimacy position of the Canadian Senate ties that had no wish to see the Senate used merely as to the high-legitimacy quadrant as a consequence of the tool of opposition parties in the lower house. The the government’s losing its partisan majority in the fact that minor parties have held the balance of power Political Legitimacy for an Appointed Senate, by Campbell Sharman chamber and the balance of power being held by for most of the period since 1975 has been the major minor parties and independents. These minor party factor in legitimating the role of the Senate (Sharman groups had an interest in fostering a brokerage role 1999a). During a recent period when the government for the Senate in dealing with government legislation managed to regain a partisan majority in the Senate, and using its powers of scrutiny to, as one minor there was a good deal of newspaper commentary to the party slogan had it, “keep the bastards honest” effect that the loss of the Senate’s ability to moderate (Warhurst 1997). government legislation represented a substantial loss to Direct popular election had not, by itself, given the the parliamentary process and that this worked against Senate high legitimacy until there were major both the public interest and the long-term interest of changes in the chamber’s composition and, as a con- the government. sequence, its mode of operation. This is of relevance The Australian Senate has achieved legitimacy through to the Canadian case, since it demonstrates that direct a sequence of events which can be summarized as: election of an upper house does not automatically • an electoral system change which reduced the domi- generate wide public acceptance of its role. The elec- nance of large party groupings; toral systems used by the Australian Senate from its • the election of minor party and independent sena- creation in 1901 — plurality voting in the states as tors who held the balance of power; multi-member districts until 1918, then the alterna- • the focus of minor party and independent senators tive vote until the 1949 election — had the effect of on the legislative role of the Senate and its

9 IRPP Choices, Vol. 14, no. 11, September 2008 further attempts atreform—theLordshad already more drasticchange. Thisembarrassmentdiscouraged change andrebelLabourbackbenchers whowanted of Conservativeoppositionmembers whoresisted nent oftheLords,whichwas defeatedbyacoalition ment’s 1969billtophaseout thehereditarycompo- graphic examplewastheWilsonLabourgovern- reform andabolition(seeDorey2006).Themost Party wheningovernmentabouttherivalclaimsof happen arebasedondivisionswithintheLabour or disestablishedentirely. reduced orbeingreconstitutedassomeadvisorybody it aprimecandidateforhavingitspowerfurther power andlow-legitimacyquadrantoffigure1made had cometotypifyUKpolitics.Itsplaceinthelow- tarian, executive-dominated styleofpoliticswhich appeared tohavelittleincommonwiththemajori- abolition. Asapicturesquefeudalanachronism,it appeared tosettheLordsonatrajectoryeventual veto poweroverlegislationin1911 and1949 mon withtheAustralianexperience.Thelossofits tory but,initsmostrecentphase,hasmuchcom- The HouseofLordshashadamorecomplicatedhis- The HouseofLords parliamentary process. Senate asalegitimatecomponentoftheAustralian indications oftheacceptanceanindependent tinization ofconsultationisonethestrongest both formalandinformalnegotiations.Thisrou- isters havebeensenators,providingopportunitiesfor has ensuredthatsomeoftheablergovernmentmin- by theselectionprocessforSenatecandidates,which party senatorsandthegovernmenthasbeenaided than abnormal,politics.Consultationbetweenminor control assomethingwhichrepresentsnormal,rather with aSenateoverwhichtheydonothavepartisan shows thatgovernmentshavebeguntoseedealing the evolutionofprotocolsbetweengovernments • thechangeinrecruitmentofcandidatesto • thegrowingwillingnessofSenatetouseits • Most ofthemanyaccountswhythisdidnot This lastcharacteristicisimportantbecauseit tion overtheintroductionoflegislation. and minorpartysenatorstoregularizeconsulta- tors; and favour ableandpoliticallywellconnectedsena- ment legislation; power toamendand,ifnecessary, rejectgovern- ties andmattersofpublicinterest; committee workinquiringintogovernmentactivi- ment’s 1999reform.The social diversityofthechamber’smembership. way whichhasincreasedboththepoliticaland tion oftheLords,butpowerhasbeenusedina the primeministergreatpowertoshapecomposi- Prime MinisterBlair’stermofofficealone.Thisgives been createdsince1958—morethan350during of lifepeerages,withmorethanathousandhaving hereditary peerages.Thereisnolimittothenumber out gettingembroiledinthebroadersocialissueof to thechamberandgovernment’simagewith- to appointmembersfortheirpoliticalcontributions cance ofthischangewastheabilitygovernments women forthefirsttime.Thelonger-termsignifi- of hereditarypeers,mademembershipopento appointed totheLordswithoutincreasingnumber government, inadditiontopermittingmembersbe Act, 1958 profile andenhanceitsreputation.The which hadenabledtheHouseofLordstoincreaseits Lords whenitwonofficein1997. Blair Labourgovernment’scommitmenttoreformthe interest ininstitutionalreform,culminatingthe individual rightsallledtoaresurgenceofbroad tional structureandtherisingconcernwith faction withthearcanenatureofUKconstitu- the “democraticdeficit”inUKpolitics,dissatis- But theincreasingmalaiseaboutwhatisnowcalled tive programs—andthepressureforchangereceded. ceased tobeaseriousobstaclegovernmentlegisla- process andfor thisclaimtobebroadlyaccepted. challenge the government intheparliamentary Lords toclaimthatithasalegitimate functionto sentative andunelectednature, thishasenabledthe opposition fromthechamber. Despiteitsnonrepre- more difficultforthegovernment tobrushaside have reinforcedthestatusofLordsandmadeit san diversityofthechamber. These developments had beenappointed,furthercontributingtotheparti- some 47oftheseindependentlyselectedlifepeers prime ministerretainsthefinalsay. ByApril2008, Commission solicitssuggestionsfromthepublic; allocated bythegovernment,andAdvisory for theappointmentoftheseindependentpeersis san appointments. and canalsoadvisetheprimeministeronnonparti- ment nomineesforlifepeeragestheirpropriety Lords Advisory Commission,whichnowvetsgovern- all but92hereditarypeersandsetupaHouseof This processhascontinuedsincetheBlairgovern- This hadbeenprecededbyseveraldevelopments , passedbytheConservativeMacmillan 10 11 A fixed numberofopportunities House ofLordsAct Life Peerages removed This is not the case in Canada, and it is the but would not be hard for most current Canadian citi- dynamics of the Canadian Senate and the procedures zens to meet (section 23). for the appointment of senators to which we should The major constraint on the prime minister’s discre- now turn our attention. tion to appoint senators is the limit on the size of the Senate. If a government inherits a Senate with no vacancies, there is no opportunity to appoint new sena- The Prime Minister and an tors; if the Senate has a large partisan majority hostile Appointed Senate to an incoming government, there is no way to change its complexion. This limit is critical for understanding n suitably arcane language, the Constitution Act, the dynamics of the operation of the Senate and the 1867 specifies that “The Governor General shall attitude of governments to Senate reform. If, for exam- I from Time to Time, in the Queen’s Name, by ple, there were no limit on the size of the Senate, a Instrument under the Great Seal of Canada, summon government could, as an extreme measure, swamp a qualified Persons to the Senate” (section 24). By cus- hostile Senate majority by appointing new senators tomary practice, sanctified by the minutes of a meeting sympathetic to it. Appointing new lords — both before of the committee of the Privy Council in 1920, the rec- and after the creation of life peerages — has always ommendation to the governor general for the appoint- been an option for UK governments faced with a recal- ment of senators is the “special prerogative of the citrant House of Lords; in Australia, during the time Prime Minister” (Dawson 1933, 125). Membership of that membership was by appointment, neither the New the Senate is thus the gift of the prime minister alone. South Wales nor the Queensland legislative council had 13 The exercise of this power has few substantive constitutional limits on the number of members. constraints but a great many procedural ones. Section Its fixed size intensifies the partisan edge to the atti- 22 of the Constitution Act specifies that 24 senators tude of governments to the Senate, and there is no are to be appointed from each of the four regions recourse to the large-scale creation of senators beyond (divisions) into which the act divides Canada: the eight provided for in section 26 of the Constitution Ontario, Quebec, the Maritime provinces and the Act, 1867. Without these limits, the Senate would still Western provinces. There are additional specifications be important and would remain a significant actor in for individual Maritime and Western provinces, and the legislative and parliamentary process, but its exis- provisions for six senators to be appointed from tence would not involve the fear that it might block Newfoundland and Labrador and one each from the key government legislation without redress for the gov- three territories, making a total of 105. In certain cir- ernment; in such case, the government could simply cumstances (sections 26-28), the governor general appoint enough new senators to give it a majority. But, Political Legitimacy for an Appointed Senate, by Campbell Sharman may appoint four or eight additional senators,12 one as presently constituted, the Senate retains the power or two each from the four divisions set out in section to wreak havoc on a government’s legislative program 22, to create a Senate with a maximum complement and to use its powers of investigation and inquiry to of 113 members. This procedure for the appointment undermine government policies. of supplementary senators has been used only once, Of course, one person’s unprincipled Senate obstruc- when the Mulroney government appointed eight tion is another person’s necessary and effective parlia- additional senators in 1990 to enable passage of leg- mentary scrutiny of government and its legislation. The islation establishing a national goods and services Mulroney Conservative government, particularly from tax over the vigorous objections of the opposition 1985 to 1990, faced repeated challenges from a Liberal Liberals (for a summary of these events, see Franks majority in the Senate. While acknowledging the parti- 2003, 161-3). san battle in the Senate during this period and the sub- Apart from these regional requirements — and sequent years to 1993, a respected scholar of the additional rules for Quebec senators to be chosen Canadian parliamentary process has argued that the from electoral divisions within the province — there Senate operated on many occasions as a chamber of are no special qualifications for becoming a senator sober second thought (Franks 2003, 165). This, how- except a minimum age of 30 and the need to fulfill ever, does not make Senate challenges any less threat- citizenship, residence, solvency and property require- ening in the eyes of governments. ments which, at $4,000, may have been high in 1867, These apprehensions aside, for the prime minister, the power over appointments to the Senate generates

11 IRPP Choices, Vol. 14, no. 11, September 2008 weaken andhewillappointenough Conservative remains inoffice, theprimeminister’sresolve may trol theSenate—whileHarper government ators dropsbelow53—the number requiredtocon- Liberals. Itmaybethat,ifthe numberofLiberalsen- vacancies but60ofthecontinuing senatorswere end ofApril2008,therewere14unfilledSenate paign tosupportlegislationforSenatereform.Atthe used bytheHarpergovernmenttoorchestrateacam- This mayseemaperversebenefit,butithasbeen also providestheopportunitynottoappointsenators. minister torecommendappointmentstheSenate tion, tousetheSenateembarrassgovernment. nity fortheformergoverningparty, nowinopposi- for thenewgovernmentandgreateropportu- larger theSenatemajority, thegreaterdifficulty incoming governmentofarivalpartisancolour. The partisan bonus:thecreationofapoisonpillforan cies intheSenatecantake satisfactioninanother a partisanmajorityandleaveofficewithfewvacan- mendation ofpreviousprimeministers. weakness ofaSenateappointedonthepersonalrecom- stress theirpopularmandateandthecorresponding supported byaHouseofCommonsmajoritycanalways when theyopposegovernmentpolicies.Governments of theSenateandunderminesitscommitteeinquiries ous theappointments.Thishelpstodiscreditwork the legitimacyofchamber, nomatterhowillustri- the selectionofsenatorsbyprimeministerreduces comed. Thearbitrary, partisanandpersonalnatureof which limitsthesignificanceofSenateistobewel- pendent actorintheparliamentaryprocess;anything ernment relishestheexistenceofapowerfulandinde- obvious benefittothegovernmentofday. Nogov- unlikely tocauseitanyseriousproblems. the governmentcanfeelsecurethatSenateis appointments buildormaintainapartisanmajority, the primeministerwhomadethemsenators.Ifthese tribute totheranksofthosewhosupportparty senators. Alloftheseappointmentsarelikely tocon- appointing afewsymbolicthird-partyornonpartisan positions andtoenhancethegovernment’sappealby those whohavemissedoutonothergovernment group orlocality, toprovideaconsolationprizefor signal governmentconcernwithaparticularissue, assisted thegovernmentandprimeminister, to partisan gain:theabilitytorewardthosewhohave large benefits.Themostobviousarepatronageand The exclusive powerwhichresideswiththeprime Prime ministerswhoareabletocreateormaintain Prime ministerialappointmenthasanother, less Consultations Act the advise theselectionofSenatenominees(BillC-20, ernment billprovidingforprovincialelectionsto ity, notwithstandingthelackofprogressonagov- sympathizers togivethegovernmentaSenatemajor- (Senate Tenure) C-19, sition oftheSenatewerebeforeParliament in2008: parliamentary process.Twobillsaffectingthecompo- be putandthedominanceofpartisanconcernsin debate, thetacticalgoalstowhichSenatereformcan T Device Senate ReformasaTactical Research Service (Canada2007a) includedextensive bill publishedbytheParliamentary Information and life untilretirementatage75. Thesummaryofthe for senatorsinplaceofthecurrent appointmentfor the introductionofeight-year nonrenewableterms recent legislationnominallyaimedatSenatereform. house. Nothingindicatesthismoreforcefullythan thwart thewillofmajorityapopularlyelected undemocratic andunrepresentativeinstitutionto ance andtoimpugntheoppositionforusingan chamber’s lackoflegitimacytodenigrateitsresist- ernment whichfacesahostileSenatecanusethe ments withmajoritiesintheSenate,butevenagov- process. Thisclearlyworkstothebenefitofgovern- is effectivelyconstrainedbythepartisanappointment process. Underthecurrentsystem,Senate’spower the government’sfamiliarroleinparliamentary reduce theopportunitiesforpatronage,buttothreaten over thecompositionofSenateisnotjustto reform. Buttoremovetheprimeminister’scontrol of legitimacyandthegreatestbarriertoSenate of senatorsisthesourceSenate’sgreatestlack patronage tohissuccessor. porters and,intime-honouredfashion,todeny vacancies beforeheleavesofficetorewardhissup- the primeministermaychoosetofillallSenate with hispoliticalcommitmenttoSenatereform,that always thepossibility, howeverdistantandatodds should hisgovernmentfaceimminentdefeat,thereis The primeminister’spowerovertheappointment Senate AppointmentsConsultationAct minister’s powertosetthetermsofpolitical in 2006and2007 areexamples oftheprime he billsintroducedbytheHarpergovernment An Act toAmend theConstitutionAct, 1867 12 ; 14 . 15 and C-20,the The firstofthesebillsproposed Senate Appointment ). And, commentary on the bill and rehearsed its previous elections for Senate nominees, on pain of eventually introduction into the Senate in 2006, its treatment losing their representation in the Senate (Flanagan before a Senate committee and the Senate’s decision 2007).17 The only exception to this policy to date has not to proceed with it. It also included justification been the appointment of Michel Fortier to both the for the bill and an opinion that changing the term of Senate and cabinet in 2006 to enhance the latter’s rep- senators did not fall within the class of subjects resentation from Quebec and to give Montreal a senior requiring constitutional change but could be altered representative in the government. by legislation of Parliament acting alone. An alternative explanation of the Harper govern- Bill C-20 was much more adventurous. It main- ment’s actions is that this scheme had little to do with tained the current monopoly of prime ministerial Senate reform but was simply a way of embarrassing nominations for Senate appointments, but provided the Liberal majority in the Senate, further reducing the for “consultations” which would permit the prime legitimacy of the Senate while placating those in the minister to recommend candidates who had won elec- Conservative party who wanted Senate reform. Evidence toral contests in each of the provincial jurisdictions for this is not hard to find. There was no suggestion for which there were vacancies. The bill provided that, if the scheme were fully implemented, the Harper details about the way these elections would be run: government would relish an upper house composed of they would achieve proportional representation using senators with an added sense of their own legitimacy, the single transferable vote, they could be held at the whose partisan loyalties could be very different from same time as provincial general elections and the those of the government of the day. The prime minister components of electoral administration might be dele- had even mused about the possibility of abolishing the gated to provincial administrative bodies. Again, the Senate. The scheme made a lot more sense as a device legislative summary provided details, explanations to confuse and discredit the Liberals as an opposition and justification, and suggested that, “In future years, party which controlled a majority in the Senate. For a it may be that an informal practice of appointing sen- government without a partisan majority either on the ators from a list of selected nominees will transform floor of the House or in the Senate, proposals for Senate itself into a constitutional convention that would reform that involved limited terms and an electoral ‘constrain’ the prime minister in making his or her component would challenge the Liberal Party’s demo- choice for Senate appointments” (Canada 2007b, 19). cratic credentials and, if rejected, help to undermine At first glance, these bills could be seen as a leg- Senate opposition to government legislation. Senate islative scheme to create an elected Senate without reform of this kind could be seen as designed explicitly making formal changes to the Constitution. This to weaken one of the strongest weapons of the opposi- route had been flagged by the Progressive Con- tion Liberal Party, which was its control of the Senate. servative government of Alberta when it held an The demonstration of the Senate’s reluctance to sanc- Political Legitimacy for an Appointed Senate, by Campbell Sharman election in the province in 1989 for a nominee to fill tion changes to its current partisan composition — a Senate vacancy. The winner, Stan Waters, was sub- amply demonstrated by the hostile treatment of both sequently appointed by the Mulroney Conservative bills by the opposition in the House and the Liberal government in 1990. When elections for Senate nom- majority in the Senate — would further reduce the inees were held again in Alberta in 1998, Liberal chamber’s standing in the eyes of the public. prime minister Jean Chrétien declined to appoint such There is also the possibility that the Harper govern- “senators in waiting” (for background and commen- ment is playing a very long game. If several provinces tary, see Smith 2003a, 103-4). The experiment was agreed to hold Senate nominee elections and it began resumed in Alberta with Senate nominee elections in to look as though there would be sufficient partisan 2004;16 upon taking office in 2006, Harper, as a representation from these elections to affect the parti- Conservative prime minister and former member of san balance in the Senate, alarm bells would ring in the Alberta wing of the party committed to extensive party headquarters and premiers’ offices across Canada. Senate reform, appointed the winner, Bert Brown, to This may provide the background for concerted moves the Senate. As soon as the prime minister indicated for substantial constitutional reform of the Senate to that he would appoint to the Senate only nominees reduce its powers and, perhaps, to modify its composi- who had been chosen by provincial elections, the tion. But this is a situation which requires time and grand plan was revealed: a legislative scheme backed many preconditions over which the national govern- by executive discretion to force the provinces to hold ment has little control.

13 IRPP Choices, Vol. 14, no. 11, September 2008 customary appointmentpractices. and thewillingnessofprimeministertovary fied byacombinationofnewstatutorymachinery appointment procedureforsenatorsmightbemodi- how itindicatedthewaysinwhichexisting dependent onitsnonacceptancebytheLiberals—but its short-termpartisansuccesscanbeseenas Senate reformwasnotitsrejectionbyParliament — interesting long-termconsequenceofthisschemefor put governments supportedbyamajority intheNew the 1850s(CluneandGriffith 2006,65-75). responsible governmentinNew SouthWales during colonial politiciansandthe lack offamiliaritywith system hadmuchtodowiththepreconceptionsof recommendation ofthepremier. Theadoptionofthis the governorwaswillingtoappointthemon with nolimitonthenumberofcouncillorsaslong similar incompositiontotheCanadianSenatebut in 1859,wastohaveanappointedlegislativecouncil by NewSouthWales in1856 andthenbyQueensland stricted franchise.Therivalmodel,initiallyadopted the legitimacyofpopularelection,albeitonare- tion, includingfinanciallegislation,wouldbegiven way, thevetopowerofupperhouseonalllegisla- based onsubstantialpropertyqualifications.Inthis maintain aconservativebiasbyhavingfranchise was toensurethatelectedlegislativecouncilswould be constituted. was debateoverhowtheseupperhousesshouldbest upper housesinnewbicameralparliaments.Butthere the continuationofpowerfullegislativecouncilsas for theAustraliancoloniesafter1856waslinked to consequence, thearrivalofresponsiblegovernment threaten propertiedandcommercialinterests.Asa lower housemajoritiesmightusetheirpowerto London thatgovernmentssupportedbyadventurous among localelitesandintheColonialOffice blies intheAustraliancoloniescreatedapprehension early extensionofthefranchiseforlegislativeassem- I House: TheAustralianExperience Modifying anAppointedUpper Notwithstanding thesespeculations,themost Over thefollowing70 years,issuesemergedwhich Two modelsemerged.Themorepopularmethod action bygovernmentsthanithasinCanada.The more closelytothepoliticsofresistingradical n Australia,bicameralismhasalwaysbeentied to operatefrom 1934until1978wasahalfway house the recommendationof premier. method otherthanappointment bythegovernoron reformed anditscomposition determinedbysome there remainedwideagreement thatitneededtobe ment didnotremovetheproblemofcouncil— Lang andtheinstallationofaconservativegovern- turmoil ofDepressionpolitics.Buttheremoval dismissal in1932aspremierbythegovernor Legislative Council,butwasfinallythwartedbyhis sions duringthe1920sand1930stoabolish case. LaborpremierLanghadtriedonseveralocca- 1922 (McMinn1979,150). trived toabolishthatstate’sLegislativeCouncilin considerable politicalturmoilandmanoeuvring,con- Queensland, theTheodoreLaborgovernment,after The LaborParty wascommittedtoabolitionand,in cially theundemocraticnatureofappointedcouncils. debate overthepowersoflegislativecouncils,espe- governments acrossAustraliaafter1900intensified and theincreasingfrequencyofLaborParty majority council’s compositionandpowers. tentious legislationconcernedtheamendmentof mandate. Thiswasespeciallythecasewherecon- an explicitpartofthenewgovernment’selectoral the subjectofconflictwithcouncilhadbeen restrict anyincreaseinthesizeofcouncilunless With varyingdegreesofskill,governorsaimedto rejecting theadviceofapremierwaspoliticallyrisky. ignoring thewishesofapopulargovernmentand destroy anyclaimtoitsbeingahouseofreview. But would reducetheroleofcounciltoacipherand ernors werereluctanttodothis—blanket acceptance government majoritysupportinthecouncil.Gov- enough newupperhousememberstogivethe to thegovernorandrequestappointmentof blocked byahostileupperhouse,premierscouldgo office andfoundthatitslegislationwasbeing Legislative Council.Whenanewgovernmenttook the governor’sroleinappointingnewmembersof tion ofthecouncil. elected governmentanddemandsforreformoraboli- macy ofanonelectedbodythwartingthepopularly perennial debatesofvaryingintensityoverthelegiti- Council. Twoconsequencesfollowed.Thefirstwas odds withamajorityintheappointedLegislative South Wales lowerhouse,theLegislativeAssembly, at Many options were canvassed,buttheone chosen New SouthWales provedto beamoreintractable The riseoftheAustralianLaborParty inthe1890s The secondconsequencewasthepoliticizationof 14 between modification of the process of appointment house with the balance of power held by minor parties and direct election. Membership of the council was set was likely to be of more long-term advantage to Labor at 60 (the lower house, the Legislative Assembly, had governments than one which might be controlled by a 90 members in 1934). Each member served a twelve- belligerent opposition. year term, and a quarter of them retired every three But the period of indirect election was a useful years. These 15 vacancies were filled by indirect elec- experiment. It probably made the transition to a direct- tion — not by the public, but by the 90 members of ly elected chamber more acceptable by demonstrating the Legislative Assembly and the 45 nonretiring mem- to governments that indirect election would, in the bers of the council. A system of proportional repre- longer term, do little to enhance the public acceptance sentation by the single transferable vote was used for of the institution. And an indirect election which pro- the elections. The combined effect of staggered three- duced a chamber controlled by the governing or the year terms and proportional representation meant that opposition party could create as many difficulties as the partisan composition of the Legislative Council one chosen by a more democratic system. It is interest- changed only slowly, reflecting changes in the party ing to speculate about the changes that could have composition of both the lower and upper houses. This given the indirectly elected council a more diverse par- approach had short-term benefits for the conservative tisan composition and one that neither of the major party in power in 1934, but it also expressed the belief party groupings controlled. One solution would have that the council should be a stabilizing factor in the been to give an independent appointing authority the political process (Turner 1969; Clune and Griffith power to choose a small number of nonpartisan and 2006, 320-51). third-party members. This approach was unthinkable in The success of this system was mixed. The reforms the highly charged partisan climate of the early 1930s, removed the problem of appointments and, by taking but the example of the House of Lords Appointments away the Legislative Council’s power to veto financial Commission makes it more of a possibility today. bills, reduced its potential to precipitate a constitu- tional crisis. The ability of a future government to amend the composition or powers of the council was Propositions for Successful Senate constrained by the requirement that the legislation Reform gain popular endorsement through a referendum. The problem of the council’s legitimacy remained, howev- rom the discussion and surveys of the experience er, because of both its lack of direct representation of similar UK-derived parliamentary systems, it is and, of greater importance, its domination by gov- F now possible to set up a series of propositions ernment-controlled majorities or, occasionally, about the direction for successful Senate reform. As Political Legitimacy for an Appointed Senate, by Campbell Sharman majorities controlled by the opposition. In both cir- this paper has argued, there must be congruence among cumstances, party discipline and institutional inertia the assumed purpose of the Senate, the goals for reform greatly reduced the standing of the chamber in much and the methods through which reform is to be the same way as the Australian Senate had been until achieved. Smith (2003b) uses much the same procedure, its rejuvenation by a change to the electoral system although his “principles” are focused more on protect- and the enlivening effect of minor parties on the role ing the dominant position of the House of Commons of the chamber. than are the propositions listed below. In 1978, the New South Wales Legislative Council became a directly elected chamber chosen by propor- The purpose of the Senate is effective scrutiny 18 tional representation, a model pioneered for legisla- The greatest contribution of an upper house to a con- tive councils by South Australia in 1975 and now temporary parliament is scrutiny of legislation and adopted, with variations, by four of the five remain- inquiries into the conduct of the executive and its 19 ing legislative councils in Australia. These chambers agencies. The effective discharge of this function is the are now valued for their representativeness and their foundation on which the current reputations of the often-constructive contribution to the parliamentary Australian Senate and the House of Lords have been process (Stone 2002). These transitions, all of which built. Effectiveness requires two components: a consti- were undertaken by Labor Party governments, result- tutional one, that the chamber has sufficient formal ed from the realization that abolition was unlikely to power to amend and delay legislation; and a political gain popular support and the belief that an upper

15 IRPP Choices, Vol. 14, no. 11, September 2008 upper housesof Australianparliamentshave resented occasions when membersofthegoverning partyinthe committee proceedings.There havecertainlybeen considerations inboththescrutiny oflegislationand the chamber, partisanshipmaybemoderated byother their owndecisionsaboutthe conductofbusinessin of anupperhousecaucusandthehabitmaking house haveadegreeofautonomyintheorganization (Baldwin 1999,42-4).Ifpartymembersintheupper the nominalmajorityofConservativesinLords critic ofhergovernment’slegislation,notwithstanding found theHouseofLordsapersistentandeffective government. PrimeMinisterThatcher, forexample, house majoritiesofthesamepartisancolouras majorities arenotalwaysthesamethingasupper rass thegovernment.Butgovernment-controlled investigation ofexecutive actionswhichmayembar- effective check,andareevenlesslikely topursuethe ly tochallengelegislationinwayswhichactasan effective: government-controlledmajoritiesareunlike- upper houseismoreelusive.Itclearwhatnot nesses andtoextractinformationfromgovernments. would furtherundermineitsabilitytocompelwit- tion oftheSenate’sformalpowersoverinquiries their powerstoinvestigatetheexecutive; anyreduc- political limitsontheextenttowhichtheycanuse reduced. Parliamentary upperhousesalreadyhave into theactionsofgovernmentshouldnotbe of theSenate,itsprivilegesandpowertoinquire modifications theremightbetothelegislativepowers powers werepartofareformpackage.Whatever tion ofdelaymaybecomeimportantiftheSenate’s override fromtheHouseofCommons,butques- already haspowertorejectlegislationwithoutany (Dorey 2006).IntheCanadiancase,Senate the pursuitbygovernmentofcontroversiallegislation in 1911 wassufficienttoactasasubstantialcheckon two-year delayonnonfinanciallegislationintroduced from theexperienceofHouseLordsthat requirement ifdelayistheonlyoption—itclear delay ofatleastayearmightbetheminimum ber’s decisions,evenifthisispossible.Substantial to considerthecostofoverridinguppercham- have enoughformalpowertoforcethegovernment ableness; effectivenessrequirestheupperhouseto components needelaboration. governing partyinthelowerhouse.Bothofthese of memberswhichactsontheinstructions one, thatthechamberisnotcontrolledbyamajority The partisanrequirementforeffectivenessinan Governments arenotpersuadedbysweetreason- ties canaffect thedynamicsofanappointed chamber demonstrate the differingwaysinwhichminor par- resourced committeesystem. stand togainfromawell-developed andwell- legislation andexecutive action.Inparticular, they maintaining structuresforparliamentaryscrutinyof bers havealong-terminterestinestablishingand claim mediaattention,butitmeansthatthesemem- not preventgrandstandingandpartisanattemptsto information onmattersofpublicinterest.Thisdoes negotiate oncontroversiallegislationandtodisclose the utilityoftheirroleinforcinggovernmentto perks ofgovernmentbutdemonstratingtothepublic such membersisnotgainingexecutive officeandthe are interestedinlegislativepolitics.Thepayofffor not becausetheyaremorevirtuousbut effective reviewfunction(Sharman1999b).Thisis the chamberiskey tothedevelopmentofan independent memberstoholdthebalanceofpowerin Senate haveshown,theabilityofminorpartyand majority. in upperhousescontrolledbyanoppositionparty best describethedirectionofparliamentaryactivity long-term reform.Partisan, short-termandsporadic misdeeds ratherthantogenerateinformationfor inquiry processtoinvestigatespecificgovernment grabbing attacksonthegovernmentandtousing chambers’ reviewfunctionissubordinatedtoheadline- Australian upperhousesinthispositionisthatthe strategies towinthenextelection.Theexperienceof see theupperhouseasnomorethanacomponentof leader inthelowerhousetoresisttemptation Opposition controlmakes itdifficultfortheparty improvement overcontrolbythegoverningparty. tion partyinthelowerhousemaynotbemuchofan the parliamentaryprocess. of anestablishedreputationasindependentactorin bers oftheupperhouseandchamber’sacquisition structural changeintheselectionprocedureformem- ate amongmembersofthegoverningpartywithout it isunclearwhethersuchaviewofpartywouldoper- rather thannecessity(notealsoShell1992,64-98).But discipline, partyallegianceisamatteroftemperament the governmenthasfewcarrotsorstickstoenforce (2003) pointsoutfortheHouseofLordssince1999,if ment hadamajorityintheupperhouse.AsNorton manipulation oftheiractivities,evenwhenthegovern- — andoccasionallyresistedattemptsatgovernment The HouseofLordsandthe Australian Senatealso As boththeHouseofLordsandAustralian Control ofasecondchamberbythelargestopposi- 16 as opposed to an elected one. In the Lords, minor But this is not the Canadian way, and there are party members add further political diversity to an many other reasons a directly elected upper house is institution without strong party discipline for the not appropriate. High on the list is the difficulty in large parties (Baldwin 1999, 32-44; Norton 2003). In determining what an elected Senate would represent. such a context, whether the minor party members As previously discussed, party division would certainly hold the numerical balance of power is not critical be the main organizing principle for the vote, but an for the discharge of an effective review function. This electoral system structured by province — whatever the is not the case in the Australian Senate, where strong electoral system used — would produce a pattern of party discipline in the governing and major opposi- party representation that would almost certainly differ tion parties and dependence on the goodwill of state from that of the lower house. Whether this would pro- party machines for their endorsement at elections duce a Senate that represented regional interests or have made senators very sensitive to party direction. simply transformed the representation of existing par- It is only when minor party and independent senators ties is hard to know, but the likelihood of intense parti- hold the balance of power that the Senate uses its san discord seems likely. This is not a good basis for review powers effectively.20 Given the nature of the effective Senate review as set out in proposition 1. system of proportional representation used to elect There are many pragmatic considerations which do the Australian Senate and the continuation of the not make a directly elected Senate a viable option. No trend for 20 percent of the electorate to favour Senate government wants a powerful upper house under- candidates from other than the two largest party pinned by a popular mandate. It is true that the Harper groups, the chances are that minor party and inde- government has introduced legislation which looks as pendent senators will usually hold the balance of though it is happy to accept that possibility, but, as dis- power in the chamber. cussed above, the proposals embodied in Bills C-19 and Partisan balance of some kind is as much a critical C-20 appear to be tactical ploys to embarrass the component of the process of effective parliamentary Liberal Party and placate some members of the scrutiny as the powers of the chamber. Only by con- Conservative Party rather than considered attempts at tinuing to use its reviewing power is a second cham- reform. Even if the proposals were intended as catalysts ber able to find a place in the governmental process for long-term constitutional change, the changes which is broadly accepted as legitimate by both the required to implement an elected Senate would be sub- public and the government of the day. stantial, complicated and likely to generate strong provincial opposition, particularly if the amendments Direct election of senators is not a plausible were to alter the weighting of provincial representation strategy for reform of the Senate in the Senate. Provincial governments — premiers, in The proposition that direct election of senators is not particular — would not be enthusiastic about a group of Political Legitimacy for an Appointed Senate, by Campbell Sharman a plausible strategy for Senate reform is shorthand provincial senators who could claim to speak as repre- for a number of assumptions about the role of the sentatives of provincial interests in Ottawa. Senate. While direct election greatly enhances a In sum, the difficulties, both of principle and prac- chamber’s “input legitimacy” (Kelso 2006), it raises tice, of designing a directly elected Senate are over- many difficulties in the Canadian context. The most whelming. Moreover, it is an unnecessarily fundamental serious is that Canada does not have a tradition of and contentious change to achieve the specific goal of a strong elective bicameralism involving the accept- Senate that undertakes effective scrutiny of government ance that the dominance of a government with a legislation and activities. majority in the lower house may be constrained by a powerful upper house that claims an equal mandate. Senate reform can best be achieved through It has taken the Australian political system the better amending the appointment process part of 150 years to come, grudgingly, to an accept- In the cases of the United Kingdom and the two ance of the benefits of such an arrangement for rep- Australian state upper houses discussed above, appoint- resentative democracy (Stone 2002). From one point ment to the upper house follows the same procedure as of view, this is a pity, because it denies Canada the that for the Canadian Senate: appointment is by the benefits of the symmetry of a powerful upper house monarch on the recommendation of the government of matched with a democratic legitimacy that cannot be the day in the person of the prime minister or premier. acquired by any other means. But the circumstances and trajectory of the use of the

17 IRPP Choices, Vol. 14, no. 11, September 2008 could applyto allappointmentsor, aswiththeLords, appointments commission toselectnominees; this of Lordsareavailable.Oneis anindependent appointment process,twomethods usedbytheHouse partisan balanceofsomekind istobethegoalof tern ofregionalapportionment? Ifweacceptthat of 105 membersismaintained withtheexistingpat- an unnecessarilycontentiousmethod. ing power, invitingwholesaleconstitutional changeis reform istoachieveachamberwitheffectivereview- ment inafederation.Again,ifthegoalofSenate debate abouttheinstitutionsofnationalgovern- likely tobepartofabroad-basedconstitutional debate. Iftheanswerisno,reformofSenate provincial representationwouldbelesscentraltothe require suchachange—butthatargumentsover mal processofappointment,forexample,islikely to constitutional changeisprecluded—alteringthefor- composition oftheSenate.Thisdoesnotmeanthat change mustfitwithintheconstraintsofcurrent membership aretobemaintained.Iftheanswerisyes, whether thesizeandregionalconstraintsonSenate asked aboutamendingtheappointmentprocedureis House ofCommonsallocatedtosomeprovinces. calculating theminimumnumberofseatsin enshrined andpoliticallysensitive;theyplayarolein regional componentsarenotonlyconstitutionally chambers reviewedhavehadsuchconstraints.The of regionalquotas—nonetheotherappointed them thefixed sizeoftheSenateandspecification nal designoftheSenatein1867. persistence oftheappointmentprocesssinceorigi- South Wales in1934).Canadahasbeenunusualthe ment asasuitablemethodofselectingmembers(New (Queensland in1922)orbytherejectionofappoint- terminated eitherbytheabolitionofchamber Australian experienceofappointedupperhouseswas has beeninplaceforlessthantenyears.The by theHouseofLordsAppointmentsCommission— by thegovernmentbutasmallnumberarenominated of appointment—wheremostlifepeersarenominated is only50yearsoldandthecurrentmixed procedure process ofennoblement,theappointmentlifepeers the chambers.ForHouseofLords,outside appointment procedurehavedifferedwidelyamong to achieve. Charlottetown Accord of1992showsisverydifficult constitutional change—whichtheexperienceof Altering theformularequiresbroadagreementand What choicesareonthetableifcurrentSenate There havebeengoodreasonsforthis,chiefamong 22 This meansthatthefirstquestiontobe 21 one versionof suchascheme,Senatevacancies would tional representation, asinNewSouthWales. Under can betheelectorate,withelections basedonpropor- the HouseofCommons,then membersoftheHouse tracks, evenifslowly, thepatternofrepresentationin to achieveaSenatewithpartisan balancewhich elections canbeusedforotherpurposes.Ifthegoalis electorates intheselectionofsenators,butindirect intended touseindirectelectionsinvolveprovincial the chamber, butthiswasnotafeature ofitsdesign. might haveproducedameasureofpartisanbalancein direct orindirectelections.TheCharlottetownSenate ification oftheelectoralsystemtobeusedforeither manifestation ofprovincialpartisanshipwithnospec- while theCharlottetownformulamadeSenatea proportional representationastheelectoralformula, provincial partisanship,reinforcedbyitschoiceof intended toprovideabalancebetweennationaland to beachievedbyindirectelection.BillC-60was different perspectivesonthekindofpartisanbalance (Stilborn 2003,35). election iftheprovincialgovernmentsochose selected byprovinciallegislaturesratherthandirect final formincludedaprovisionforsenatorstobe that senatorsbechosenbydirectelection,butits tures; initially, theCharlottetownAccord proposed House ofCommonsandhalfbyprovinciallegisla- half theSenatetobechosenbymembersof agencies forselectingsenators:BillC-60provided 1992. Senate envisagedbytheCharlottetownAccord in out inBillC-601978andthereconstitutionof government’s “HouseoftheFederation”proposalset involved indirectelection,mostnotablytheTrudeau For theCanadianSenate,severalsuggestionshave appointed houseratherthanasasupplementtoit. and 1978employedthismethodasasubstituteforan New SouthWales LegislativeCouncilbetween1934 In theinstitutionsexaminedinthispaper, onlythe by someotherprocedure(seeStilborn2003). commission orbyaprocessinvolvingtheparties in theappointmentprocess,byanappointments attempt toinsertanelementofregionalconsultation sion. Acriticalquestioniswhetherthereshouldbean a nominatingcommitteeoranappointmentscommis- ties representedintheHouseofCommonsorthrough is partisannominationsderiveddirectlyfromthepar- some proportion,fixed orvariable.Theotheroption Both theBillC-60andCharlottetownproposals The differencebetweenthesetwoproposalsreflects There isafurtheroption,thatofindirectelection. 23 Both proposalsconsideredlegislaturesas 18 not be filled until there were three or more vacancies. The prime minister needs to be persuaded of Once this number had been reached, an election the benefits of reform would be held by secret ballot with each party repre- The prime minister’s unfettered power over the sented in the House of Commons nominating a candi- appointment of senators, and the way it has been used date for each vacancy. A government with a majority for partisan purposes, has been the most important fac- in the House would likely gain two of the three tor in undermining the legitimacy of the Senate. But vacancies, with the third gained by the largest opposi- that power also generates many benefits for the prime tion party. Over time, the partisan balance in the minister and the governing party. Executive officers do Senate would change to respond to changing party not give up power voluntarily unless there is a clear fortunes in House of Commons elections. The Senate payoff. Unfortunately, the experience of reforming the could, of course, be made more balanced and respon- appointment process for the House of Lords suggests sive to other parties by aggregating a larger number that the payoff must be significant. The creation of life of vacancies — the more vacancies to be filled, the peers for the Lords was triggered not by any commit- more proportional the result. Such a system could be ment to the creation of balanced partisanship in the used to fill all vacancies or to work together with an chamber, but to avoid the political embarrassment of independent appointments commission which could, perpetuating a hereditary aristocracy. The Labour Party for example, be responsible for filling every fifth was also committed to reforming the Lords as part of a vacancy. Such a mixed system of indirect election larger package of constitutional reform in response to could work with the existing terms of senators, or political pressure from its rank and file, even though with fixed terms as long as they were at least eight the topic led to disputes within the caucus and govern- years in duration and staggered so as to have a con- ment (Dorey 2006). On the other hand, favourable tinuing series of appointments. assessments of the reform — despite continuing politi- In the absence of a change to the Constitution, cal pressure for some form of direct election — have indirectly elected senators would still have to be rec- brought praise to the Labour government while still ommended formally for appointment by the prime leaving it discretion over appointments. minister. It is possible that the actors might broadly For Canadian Senate reform, however, there appear agree on the desirability of such an amendment, but to be few immediate payoffs for a prime minister. In it is equally possible that regional or partisan issues fact, as the Harper government has shown, an unre- would make such a change as controversial as previ- formed Senate can be used to considerable political ous proposals have been. Whether constitutional advantage. A reformed Senate could cause problems for change is a component or not, there are many varia- a government because of the enhanced public support tions possible on the themes of appointment and of its scrutiny of government legislation and activities. Political Legitimacy for an Appointed Senate, by Campbell Sharman indirect election, but the goal is the same: to ensure The only clear benefit of a Senate in which minor par- the maintenance of a rough partisan balance in the ties and independents — that is, neither the governing Senate; only with such a balance can the Senate pur- nor major opposition parties — held the balance of sue its review function effectively. power is that it would remove the tactical advantage of There remains the question of the number of sena- denying the ability of an opposition party acting alone tors, if any, that the prime minister should be able to to use the Senate as a partisan weapon against the gov- recommend without the use of any additional proce- ernment. This, however, may be no small benefit. It was dure. This remains the source of most new appoint- certainly the major motivation for Australian state ments to the House of Lords, but there is no limit to governments to introduce proportional representation the membership of the Lords. In contrast, the for the election of upper house members — even when Canadian Senate’s fixed number of members com- the Labor Party has had a chance to control both bines different modes of selecting members and few chambers: denying any party the ability to control the vacancies. Generating batches of, say, 21 vacancies — upper house alone is strategically more valuable than a fifth of the Senate — with each batch to be filled by having periods when control varies between the gov- two or three appointment procedures, requires a sub- ernment and the opposition. stantial change to the terms of senators and a compli- Occupying the moral high ground may also be useful cated formula for the transition period. But this might for a government which introduces reform, especially if be required if the prime minister were anxious to it is popular, fulfills an election promise and catches an retain some personal discretion to choose senators.24 opposition unwilling or unable to mount a strong

19 IRPP Choices, Vol. 14, no. 11, September 2008 Senate itself,thatthewasseriousaboutreform. acceptable one.Itwouldalsoshow, ifsupportedbythe off, andreductionoftheSenate’spowermightbean prime ministerwillrequireatleastsomesymbolicpay- argument againstchange.IntheCanadiancontext, constitutional amendment mustbemade. about theirwish toachievechange,theattempt at But ifthesupportersofareformed Senateareserious wish toseeabolished,andwould opposesuchreform. would seethisasstrengthening aninstitutionthey houses inAustraliaandthe House ofLords,some seriously. Itistruethat,aswith thereformofupper requisite forthegovernmenttotake Senatereform palatable totheexecutive, andcouldevenbeapre- powers mightalsomake otherSenatereformsmore of regionalrepresentation.Suchalimitationits posal amongtheprovinces,unlike thevexed question powers wouldseemarelativelyuncontentiouspro- of theupperhousebyabolishingoneitsleast-used change isdifficult,butlimitingthelegislativepower to gainwiderpubliclegitimacy. Anyconstitutional scheme toreformtheSenateandsetitonatrajectory events which“never”happen,occasionallydo. missal bythegovernorgeneralisareminderthat the AustralianSenatein1975andofWhitlam’sdis- of thedenialsupplytoWhitlamgovernmentby could forceagovernmenttothepolls.Theexperience Senate’s powertoblockfinanciallegislation,which threaten theexistenceofgovernment,unlike the tion —butsuchsectionsdonothavethepotentialto power undersection90todisallowprovinciallegisla- sections ofthe because ofconvention.Thismaywellbetrueother to vetofinanciallegislationwouldneverbeused not sufficienttoarguethattheSenate’scurrentpower however distant,tothegovernmentofday. Itis its powersareunchanged,itwillremainathreat, have thelegitimacytoexercise itspowersfullyand,if by thepublic.ThismeansthatSenatecannever confrontation isunlikely evertobeseenasacceptable cial legislationandprecipitateaconstitutional dition, theSenate’suseofitspowerstoblockfinan- and itslegitimacy. GivenCanada’sparliamentarytra- attaining acongruentrelationshipbetweenitspowers Successful Senatereformdependsonthechamber’s the abilitytoimposesubstantialdelay to vetootherlegislationshouldbereplacedby legislation shouldberemovedanditspower The poweroftheSenatetovetofinancial The lossofthispowercouldbeseenasparta Constitution Act, 1867 — suchasthe to persuadethe publicthatSenatereform is desirable, Canadian parliamentary process,thiscould beaway which areseenasremedying asystemicdefectinthe the chamberitselfcandevelop proposalsforchange san advantage. as awholeratherthansimplyanexpressionofparti- such changesweregoodfortheparliamentarysystem reason tosupportreformmeasuresandarguethat Senate sincethe1960sgavestateupperhousesgood increased statusandeffectivenessoftheAustralian need forchange(Stone2002).Theexampleofthe the designofareformedchamberratherthan retained apartisanedge,butdisputeshavebeenover changes toAustralianstateupperhouseshave (Sharman 1999a;seealsoUhr1995).Morerecent the AustralianSenatein1948forotherpurposes incidental consequenceofelectoralchangesmadeto 1921 (McMinn1979,150)toareformachievedasan san attackontheQueenslandLegislativeCouncilin position ofupperhousesvariesfromthebrutalparti- than thebasisforconstructivechange. as anattackontheSenateLiberalmajorityrather discussion, butweregreetedbytheoppositionparties the proposalswerenotresultofanybipartisan fall intothislattercategory. Whateverthemotivation, tion. TheHarpergovernment’sbillsforSenatereform as simplyapartisantactictoembarrasstheopposi- putes helptoreducetheviewofupperhousereform place withintheLabourParty. Theseintrapartydis- debates overproposalsforreformingtheLordstook of aConservativegovernment.Similarly, thefiercest Conservative chambercomplainingabouttheactions strengthened itspositionwasthatitnominallya of contentiousgovernmentlegislation.What could claimbackingbypublicopinioninitscriticism Thatcher government.UnderThatcher, theLords revolt againstunpopularlegislationproposedbythe Second World War andpicked upmomentumwitha ernment oftheyearsimmediatelyafterend was aprocesswhichemergedundertheLabourgov- major constitutionalcrisis.FortheHouseofLords,it the circumstancesfavourableforreform,shortofa is nowayofknowinginadvancewhatwilltrigger topic ofspeculationratherthanaction. change, butwithoutitSenatereformwillremaina mitment toreformismoreaprocessthanmodelfor Preparing thegroundandhopingforpartisancom- reform andhopeforpartisancommitment The Senatemustpreparethegroundfor This maybetheroutefor CanadianSenate.If The Australianexperienceofchangestothecom- 20 25 Yet there not just a partisan scheme to attack the prime minis- ter.26 Unfortunately, a minority government is a major impediment to proposals for Senate reform. Such governments are concerned with the very short term and are already subject to a highly effective check on their activities by opposition parties in the House of Commons. The most conducive circum- stances for Senate reform may be the period immedi- ately after a rampant government, supported by a large House of Commons majority, has trampled over widely held public objections in a way that offends the governing party’s members in the Senate. But the events that trigger reform are unpredictable. The best that reformers can do is produce plausible schemes and hope they will be taken up by one of the major parties.

Conclusion

he six propositions presented above list the key components to be considered if Senate reform is T to be achieved. They are more important for setting out the problems which must be confronted by any reform process than for the particular sugges- tions they make. In particular, they point to the inter- ests which must be accommodated: partisanship and the power of the prime minister. Ignoring these issues and generating ambitious plans for large-scale con- stitutional change is a recipe for failure. If Senate reform can focus on dealing with the central problem of achieving good and responsive government Political Legitimacy for an Appointed Senate, by Campbell Sharman through the effective scrutiny of the national execu- tive, then the issue is one of institutional design to harmonize competing interests. For this reason, direct election of the Senate is too ambitious a goal. But there is just a chance that amending the selection procedures for senators might be congruent with a range of interests concerned with parliamentary reform, and might provide Canada with the benefits of an effective system of parliamentary bicameralism.

21 IRPP Choices, Vol. 14, no. 11, September 2008 2 Section26ofthe 12 See note5,above. 11 Abalanced reviewandanalysisoftheseeventscanbe 10 Detailsoftheseelections canbefoundonthe 9 TheIrishSeanad may beinthisposition;seeRussell 8 Fiveprovincesoncehadlegislativecouncils,butabol- 7 EarlyintheMulroneygovernment’stermofoffice, 6 “TheCommissiontakes the viewthatinthiscontext, 5 ThismayornotcorrespondwithSirJohnA. 4 Itissometimesunclearwhetherauthorsinfavourof 3 Foradetailedsurveyofgovernmentproposalsfor 2 Joyal(2003)andSmith(2003a)arebutthemost 1 Notes Governor General theQueenthinksfittodirect that “If atanyTime on theRecommendationof found inKelly(1995). between 1901 and1946. (national results)andviewingelectionresultsforyears (elections.uwa.edu.au) byselectingElections,Senate Australian GovernmentandPolitics Database website (2000, 234-6). tained abicameralparliament. responsible governmentin1934,Newfoundlandmain- 1928 andQuebecin1968.Untilitssurrenderof 1892, PrinceEdwardIslandin1893,NovaScotia ished them:Manitobain1876,NewBrunswick was taken atthetimetoimplementsuchachange. reducing itspowerstodelaylegislation.”Butnoaction response threatenedtoreformtheSenatebydrastically Franks (1987,193)notes,“TheMulroneygovernmentin ed Senatedelayedthepassageofaborrowingbill.As the 1984-85parliamentarysession,Liberal-dominat- (United Kingdomn.d.). of Lordsitselfandtheappointmentssystemgenerally” diminish theworkingsandreputationofHouse is whethertheappointmentwouldenhanceratherthan nee. TheCommission’smaincriterioninassessingthis and second,theindividualshouldbeacrediblenomi- particular regardtothepublicregulatoryauthorities; good standinginthecommunitygeneralandwith propriety means:first,theindividualshouldbein legislation” (Macdonald[1867]1951, 35). Upper House...whichhasthesobersecondthoughtin Macdonald’s much-quotedrolefortheSenate:“the put; see,forexample,Campbell(1978). Canada orwiththeusetowhichSenatehasbeen abolition disagreewiththeideaofanupperhousefor Seidle (1992)andStilborn(2003). Senate reformsincethe1960s,seereviewsby senate/papers.html. at http://www.queensu.ca/iigr/working/ Relations, Queen’sUniversity, Kingston,ON;available Working Papers 2008,”InstituteofIntergovernmental ubc.ca/index.php?id=10651; and“SenateReform April 18-19,2007; availableathttp://democracy.arts. Institutions, UniversityofBritishColumbia,Vancouver, Reform,” CentrefortheStudyofDemocratic “Transforming CanadianGovernanceThroughSenate recent. Alsonotetheproceedingsofconference Constitution Act, 1867 provides that, 0 TheperiodfromJuly2005toNovember2007 wasthe 20 InTasmania, theLegislativeCouncilretainsrepresen- 19 Summarydetailsofthe electoralchangescanbefound 18 Thegovernmentsofboth Manitoba(NewDemocratic 17 SeetheElectionsAlberta website:http://www. 16 Thisbillwasfirstintroduced intheHouseofCommons 15 ThisbillwasfirstintroducedintheSenateonMay30, 14 Althoughtherecouldbemajorpoliticalconstraints, 13 scrutiny willbe reinstated. assumed thatproceduresformore extensiveSenate Rudd Laborgovernmentlacksa Senatemajority, itis opportunities forSenatescrutiny. Since thecurrent to make amendments,buttoreducesubstantially the only topasscontroversiallegislation withouthaving government majority, enablingthegovernment not first occasionsince1981 thattheSenatewasheldbya vote methodsince1909. proportional representationbythesingletransferable house, theHouseofAssembly, hasbeenelectedusing dition ofcontrolbyindependentmembers;thelower tation bysinglememberdistricts,butithasalongtra- Parliament (legislativecouncil,NSWonly).” site, http://elections.uwa.edu.au/,under“State the AustralianGovernmentandPolitics Databaseweb- in thenotestoLegislativeCouncilelectionsshownon tion ofnomineesforSenateappointment. consult thecitizensoftheirprovincesaboutselec- cated inMay2008thattheywereconsideringwaysto Party) andSaskatchewan(SaskatchewanParty) indi- elections.ab.ca/Public%20Website/589.htm. Parliament). November 13,2007, asBill-C20(2ndSession,39th the Housewasprorogued.Thebillreintroducedon Parliament), andwasawaitingsecondreadingwhen on December13,2006,asBill-C43(1stSession,39th Session, 39thParliament). Commons onNovember13,2007, asBillC-19(2nd stance ofthebillwasreintroducedinHouse Canada hadruledonitsconstitutionality. Thesub- proceed tothirdreadinguntiltheSupremeCourtof resolved onJune19,2007, thatthebillshouldnot Committee onConstitutionalReform,theSenate Constitutional andLegalAffairsaSpecialSenate referral totheSenateStandingCommitteeon 2006, asBill-S4(1stSession,39thParliament). After and Griffith2006,296-9). of NewSouthWales premierLangin1930-32(Clune appoint moremembers;see,forexample,theproblems not leastbeingthereluctanceofsomegovernorsto governor general,whogivesthefinalapproval. more likely. NotethatitistheQueen, ratherthanthe ment aworkingmajorityintheSenatearetwoof case oftheMulroneygovernment,givinggovern- are notspecified,butbreakingadeadlockor, asthein accordingly.” Thecircumstancesfortheseappointments equally theFourDivisionsofCanada,addtoSenate qualified Persons (astheCasemaybe),representing Governor GeneralmaybySummonstoFourorEight Four orEightMembersbeaddedtotheSenate, 22 21 Section 51A of the Constitution Act, 1867 stipulates Dawson, R. M., ed. 1933. Constitutional Issues in Canada that “Notwithstanding anything in this Act a province 1900-1931. London: Oxford University Press. shall always be entitled to a number of members in the Detterbeck, K., and W. Renzsch. 2003. “Multi-Level Electoral House of Commons not less than the number of sena- Competition: The German Case.” European Urban and tors representing such province.” Regional Studies 10 (3): 257-69. 22 See McRoberts and Monahan (1993) for a review of Dorey, P. 2006. “1949, 1969, 1999: The Labour Party and the Charlottetown Accord proposals; and Johnston et House of Lords Reform.” Parliamentary Affairs 59 (4): al. (1996) for an analysis of the political dynamics of 599-620. the ensuing referendum. Flanagan, T. 2007. “Rebuilding the Senate, One Block at a 23 For summary and background on the former, see Time.” Globe and Mail, April 23. Seidle (1992, 97-8) and Watts (2006, 95-6). The Draft Franks, C. E. S. 1987. The Parliament of Canada. Toronto: Legal Text of the accord can be found in McRoberts University of Toronto Press. and Monahan (1993, appendix 2); see also Stilborn _____. 2003. “The Canadian Senate in Modern Times.” In (2003, 39-55). Canadian Democracy: The Senate You Never Knew, edited 24 The Irish Seanad provides an example of a system of by S. Joyal. Montreal: McGill-Queen’s University Press. mixed prime ministerial appointment and elections Johnston, R., A. Blais, E. Gidengil, and N. Nevitte. 1996. The from a variety of special constituencies; see the Challenge of Direct Democracy: The 1992 Canadian Constitution of Ireland, section 18; for brief commen- Referendum. Montreal: McGill-Queen’s University Press. tary, see Carmichael and Baker (1999, 78-9) and Joyal, S., ed. 2003. Protecting Canadian Democracy: The Senate Russell (2000, 68-73). You Never Knew. Montreal: McGill-Queen’s University Press. 25 As the Crossman diaries noted for House of Lords reform: Kelly, P. 1995. November 1975: The Inside Story of “On summer evenings and winter afternoons, when they Australia’s Greatest Political Crisis. St. Leonards, NSW: have nothing else to do, people discuss how to reform the Allen & Unwin. House of Lords” (quoted in Dorey 2006, 599). Kelso, A. 2006. “Reforming the House of Lords: Navigating 26 See Seidle (1992, 98-103) and Stilborn (2003) for Representation, Democracy and Legitimacy.” details of past Senate committee proposals for reform. Parliamentary Affairs 59 (4): 563-81. Macdonald, J. A. [1867] 1951. Parliamentary Debates on References Confederation of British North American Provinces. Ottawa. Ajzenstat, J. 2003. “Federalism and Canada’s Founders: The McLean, I., A. Spirling, and M. Russell. 2003. “None of the Origins of the Canadian Senate.” In Canadian Above: The UK House of Commons Votes on Reforming Democracy: The Senate You Never Knew, edited by S. the House of Lords, February 2003.” Political Quarterly Joyal. Montreal: McGill-Queen’s University Press. 47 (3): 298-310. _____. 2007. The Canadian Founding: John Locke and McMinn, W. G. 1979. A Constitutional History of Australia. Parliament. Montreal: McGill-Queen’s University Press. Melbourne: Oxford University Press. Baldwin, N. 1999. “The Membership and Work of the House McRoberts, K., and P. Monahan. 1993. The Charlottetown of Lords.” In The House of Lords: Its Parliamentary Accord, the Referendum and the Future of Canada. and Judicial Roles, edited by P. Carmichael and B. Toronto: Toronto University Press.

Dickson. Oxford: Hart Publishing. Mulgan, R. G. 1996. “The Australian Senate as a ‘House of Political Legitimacy for an Appointed Senate, by Campbell Sharman Beetham, D. 1991. The Legitimation of Power. Basingstoke, Review’.” Australian Journal of Political Science 31 (2): UK: Macmillan. 191-204. Campbell, C. 1978. The Canadian Senate: A Lobby from Norton, P. 2003. “Cohesion without Discipline: Party Voting Within. Toronto: Macmillan. in the House of Lords.” Journal of Legislative Studies 9 Canada. 2007a. Parliament. Parliamentary Information and (4): 57-72. Research Service. Legislative Summary: Bill C-19, An Parkinson, J. 2007. “The House of Lords: A Deliberative Act to Amend the Constitution Act, 1867 (Tenure). Defence.” Political Quarterly 78 (3): 374-81. Ottawa. Accessed July 27, 2008. http://www.parl.gc.ca/ Rémillard, G., with A. Turner. 2003. “Senate Reform: Back to 39/2/parlbus/chambus/house/bills/summaries/c19-e.pdf. Basics.” In Canadian Democracy: The Senate You Never _____. 2007b. Parliamentary Information and Research Knew, edited by S. Joyal. Montreal: McGill-Queen’s Service. Legislative Summary: Bill C-20, Senate University Press. Appointment Consultation Act. Ottawa. Accessed July Russell, M. 2000. Reforming the House of Lords: Lessons from 27, 2008. http://www.parl.gc.ca/39/2/parlbus/cham- Overseas. Oxford: Oxford University Press. bus/house/bills/summaries/c20-e.pdf Seidle, F. L. 1992. “Senate Reform and the Constitutional Carmichael, P., and A. Baker. 1999. “Second Chambers — A Agenda: Conundrum or Solutions?” In Canadian Comparative Perspective.” In The House of Lords: Its Constitutionalism 1791-1991, edited by J. Ajzenstat. Parliamentary and Judicial Roles, edited by P. Ottawa: Canadian Study of Parliament Group. Carmichael and B. Dickson. Oxford: Hart Publishing. Sharman, C. 1990. “Parliamentary Federations and Limited Clune, D., and G. Griffith. 2006. Decision and Deliberation: Government: Constitutional Design and Redesign in The Parliament of New South Wales 1856-2006. Australia and Canada.” Journal of Theoretical Politics 2 Sydney: Federation Press. (2): 205-30.

23 IRPP Choices, Vol. 14, no. 11, September 2008 Sproule-Jones, M.1984.“TheEnduringColony:Political Smith, J.2004. _____. Watts, R.2006.“BicameralisminFederal Parliamentary Warhurst, J.,ed.1997. _____. United Kingdom.2000.HouseofCommons.“LordsReform: Uhr, J.1995.“ProportionalRepresentationintheAustralian Turner, K.1969. Thomas, P. 2003.“ComparingtheLawMakingRolesof Stone, B. 2002.“BicameralismandDemocracy:The Stilborn, J.2003.“FortyYears ofNotReformingthe _____. _____. _____. Smith, D.E.2003a. Smiley, D.1985.“An ElectedSenateforCanada? Clues from Shell, D.1992. Institutions andPolitical ScienceinCanada.” Columbia Press. Montreal: McGill-Queen’sUniversityPress. The SenateYou NeverKnew Nonconstitutional Means.”In Queen’s University Press. Never Knew Systems.” In Leonards, NSW: Allen&Unwin. Australian Democrats’FirstTwenty Years http://www.lordsappointments.gov.uk/appointees.aspx "Vetting." [Accessed 22September2008]. lib/research/rp2000/rp00-060.pdf. 27, 2008.http://www.parliament.uk/commons/ 1999.” ResearchPaper 00/60. London.Accessed July Major DevelopmentsSincetheHouseofLordsAct of Political Science Senate: RecoveringtheRationale.” Sydney Press. Legislative Council,1934-1968 Joyal. Montreal:McGill-Queen’sUniversityPress. Democracy: TheSenateYou NeverKnew Senate andtheHouseofCommons.”In Australian JournalofPolitical Science Transformation ofAustralianStateUpperHouses.” Queen’s UniversityPress. Never Knew Senate.” In The JournalofFederalism on Parliament Political Science Independents intheSenate.” Perspective Intergovernmental Relations. Kingston, ON:Queen’sUniversity, Instituteof the AustralianExperience.”DiscussionPaper 21. Hempstead, UK:HarvesterWheatsheaf. Senate/pubs/pops/pop33/c09.pdf 27, 2008.http://www.aph.gov.au/ Parliament, DepartmentoftheSenate.Accessed July Occasional LectureSeries1998 Government andOtherLecturesintheSenate 2003b. “TheImprovementoftheSenateby 1999b. “TheSenateandGoodGovernment.” n.d. HouseofLordsAppointmentsCommission. 1999a. “TheRepresentationofSmallParties and The HouseofLords Federalism . Canadian Democracy:TheSenateYou , editedbyS.Joyal.Montreal: McGill- , editedbyS.Joyal.Montreal:McGill- House ofReview:TheNewSouthWales Toronto: UniversityofToronto Press. Canadian Democracy:TheSenate You 33, May1999, The CanadianSenateinBicameral 34 (3):353-61. Keeping theBastardsHonest:The 30 (specialissue):127-41. . Vancouver: UniversityofBritish 14 (1):93-108. , editedbyS.Joyal. Australian Journalof , 2nded.Hemel The SenateandGood Canadian Democracy: . Canberra:Australian . Sydney:Universityof Australian Journal 37 (2):267–81. Canadian , editedbyS. . St. Publius: Papers 24 Political Legitimacy for an Appointed Senate Campbell Sharman Résumé

i la légitimité démocratique est synonyme d’élec- tion, les institutions représentatives non élues S directement font face à un double problème : leur autorité est contestable et leur rôle mal défini. Et c’est Suit une analyse du rôle du premier ministre dans les précisément ce qu’on reproche au Sénat canadien. Quel nominations au Sénat canadien, mais aussi de l’incidence que soit le bien-fondé de ses activités, son défaut de du nombre fixe de ses membres et des contraintes légitimité institutionnelle en a toujours affaibli la valeur. régionales sur la dynamique partisane de ces nomina- Mais il serait abusif de prétendre que les élections sont tions. Pour illustrer cet aspect, l’auteur examine les l’unique source de légitimité politique. Les tribunaux récentes mesures législatives du gouvernement Harper canadiens, surtout depuis la Charte des droits et libertés, visant à modifier la composition du Sénat et décrit dans offrent l’exemple frappant d’une institution dont l’au- quelle mesure cette réforme pourrait tactiquement servir à torité largement reconnue n’émane pas de la représenta- des fins partisanes. tion populaire. Les élections ne sont en effet qu’un Enfin, six propositions font valoir le rôle décisif que élément des démocraties libérales : le constitutionnalisme, peut jouer le Sénat dans l’examen critique des projets de la règle de droit et la structure institutionnelle jouent un loi et des mesures proposées par l’exécutif, sans pour rôle tout aussi important dans le fonctionnement et la autant être perçu comme une menace à l’existence du surveillance des gouvernements représentatifs. Il s’agit gouvernement. Ces propositions englobent les éléments donc de déterminer si une chambre du Parlement peut clés d’une réforme fructueuse du Sénat, en ce qui a trait fonder sa légitimité sur un concept institutionnel prévoy- notamment aux intérêts cruciaux découlant des liens de ant la nomination de ses membres. parti et du pouvoir du premier ministre. Négliger ces Une récente initiative du Royaume-Uni tendrait à le questions condamnerait à l’échec tout projet le moin- confirmer : l’instauration à la Chambre des lords de drement ambitieux de modification constitutionnelle. Si nominations partisanes équilibrées a renforcé l’adhésion une réforme du Sénat parvient à cibler l’enjeu central, qui de la population au mandat de l’institution. Mais beau- est la bonne marche et la réceptivité du gouvernement coup de questions subsistent quant aux modifications par le biais d’un examen efficace de l’exécutif national, la susceptibles d’accroître la légitimité d’un Sénat canadien question consistera alors à établir un concept institution- non élu et à leur incidence sur le rôle de la Chambre nel susceptible d’harmoniser des intérêts divergents. haute comme sur l’ensemble du régime parlementaire. L’élection directe du Sénat constituerait par conséquent Cette étude examine les différentes hypothèses sur le un objectif trop ambitieux. Mais on peut supposer qu’une rôle du Sénat, les objectifs d’une réforme et les méthodes modification de la procédure de sélection permette d’amé- qui permettraient de les atteindre. Elle fait valoir le lien nager l’éventail des intérêts touchés par une réforme par- critique entre le pouvoir et la légitimité des institutions lementaire et fasse profiter le Canada des avantages d’un parlementaires, de même que la nécessité d’équilibrer ces système bicaméral véritablement efficace. deux éléments pour affermir le rôle d’un Sénat non élu dans la procédure parlementaire. En contrepoint, l’auteur examine comment l’évolution de la Chambre des lords et du Sénat australien a consolidé leur rôle au sein de leur régime parlementaire respectif.

25 Political Legitimacy for an Appointed Senate Summary Campbell Sharman

f democratic legitimacy is seen as synonymous with elections, representative institutions that are not directly elected face a double problem: their authority I to be in balance if a stable role is to be found for an can be questioned and their role is unclear. And these are appointed upper house in the parliamentary process. This is precisely the charges that have dogged the Canadian supplemented by an examination of how the House of Senate. Whatever the merits of its activities, they have Lords and the Australian Senate have evolved to achieve been undermined by a lack of institutional legitimacy. such a role in their parliamentary systems. Yet to argue that elections are the sole source of politi- The analysis then moves to the Canadian Senate and cal legitimacy is too broad a claim. Canadian courts, par- examines the role of the prime minister in the appoint- ticularly since the Charter of Rights and Freedoms, are an ment of senators and the implications of the Senate’s obvious example of an institution whose widely accepted fixed size and regional constraints on appointments in authority does not derive from popular representation. shaping its partisan dynamics. This is illustrated by an Elections are only one component of liberal democracy; examination of the Harper government’s more recent leg- constitutionalism, the rule of law and an institutional islative initiatives to alter the composition of the Senate framework both to implement and to monitor representa- and the extent to which Senate reform can be used as a tive government are equally important. The question is tactical device for partisan gain. whether legitimacy for a parliamentary chamber can be The paper sets out six propositions concerning the achieved through some institutional design based on the Senate which stress its key role as a source of effective appointment of its members. scrutiny of legislation and executive action without being The recent experience of the United Kingdom House of seen as a threat to the existence of a government. The Lords adds weight to the view that this is possible; the propositions list the key components to consider for suc- introduction of balanced partisan appointments has cessful Senate reform; in particular, they point to the crit- enhanced the public acceptance of the role of the cham- ical interests that must be accommodated: partisanship ber. But there are many questions about the changes that and the power of the prime minister. Ignoring these issues would be needed to give greater legitimacy to an and generating ambitious plans for large-scale constitu- appointed Canadian Senate and about their consequences tional change is a recipe for failure. If Senate reform can for the role of the Senate and for parliamentary govern- focus on dealing with the central problem of achieving ment in general. good and responsive government through the effective This paper examines the differing assumptions about scrutiny of the national executive, then the issue is one of the purpose of the Senate, the goals for reform and the institutional design to harmonize competing interests. For methods of achieving them. It stresses the critical relation- this reason, direct election of the Senate is too ambitious ship between the power and the legitimacy of parliamen- a goal. But there is just a chance that amending the selec- tary institutions, and argues that these two attributes need tion procedures for senators might be congruent with a range of interests concerned with parliamentary reform, and might provide Canada with the benefits of an effec- tive system of parliamentary bicameralism.

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