Senate reform is now within sight, although it will take several steps to get there. Here's a road map to the destination.
By appointing five new senators, Prime Minister Stephen Harper has created a plurality of 51 Conservative senators against 49 Liberals, with five independents holding the balance of power. Prorogation means that Senate committees will be reappointed with Conservative majorities. Now, when the two reform bills are reintroduced - one to limit senatorial terms to eight years, the other to provide for consultative elections - the government doesn't have to worry about the bills being held up in committees.
Passage of these bills in the Senate is still not guaranteed, however - it will depend on who shows up to vote and how the five independent senators decide. But Mr. Harper has a trump card if he wants to use it. Under Section 26 of the Constitution Act, 1867, he can request that the Queen appoint four or eight additional senators pledged to support Senate reform. That's how Brian Mulroney secured passage of the GST in 1990.
Invoking Section 26 would be risky, because the opposition would paint it as another tricky power play. But it would also showcase Mr. Harper at his strategic best - using power politics not just to confound the opposition but to democratize the Canadian Constitution.
Once out of the Senate, the reform bills should be introduced into the House of Commons as confidence measures, thereby putting the Liberals to the test. Michael Ignatieff says he supports limiting senators' terms to 12 years, rather than the eight years suggested by Mr. Harper. I think 12 years is too long and eight years is about right, but if Mr. Harper is in a blue-sweater mood, he might offer to split the difference at 10. In any case, the Liberals can't be expected to vote for the election of senators because, in their view, that change requires a constitutional amendment.
The Liberals, therefore, will dislike one and perhaps both reform bills. But will they force an election by defeating the bills if they are presented as confidence measures? Probably not, because Mr. Ignatieff has been insisting that he doesn't want an election. Too bad, because if the Liberals did defeat one or both bills, we would be catapulted into an election that was actually about something, like the 1988 election that became a virtual referendum on free trade.
It would be good for the issue of Senate reform to have it front and centre in an election campaign. An elected Senate will lead to important changes in Canadian politics, so the best thing would be to build public support for it by debating it in an election, as happened with free trade.
When the Liberals consider the potential polarization, however, they are unlikely to force an election. The Conservatives would be the only party in favour of Senate reform, while the opposition parties would divide the anti-reform vote. Once again, the Conservatives could ride a "divide and conquer" strategy into office, even if public support for Senate reform was only a plurality rather than a majority, as was the case with free trade.
Rather than put their necks in a noose, the Liberals may offer to support the bills, or at least abstain, if the government inserts a clause referring them to the Supreme Court for an advisory opinion before they take effect. There is a serious argument that a changeover to an elected Senate would be constitutional in character and thus require a constitutional amendment rather than ordinary legislation. That is what the Liberals, as well as pundits such as The Globe's Jeffrey Simpson, have been saying for several years in opposition to Senate reform.
But a direct reference by the federal Minister of Justice to the Supreme Court is a bad idea because it suggests that the government harbours doubts about its own legislation. It would be better to pass the two bills and let them be challenged by dissident provinces, which can refer them to their own courts of appeal. The Supreme Court can do its work better after letting several provincial courts of appeal thrash through the issues.
I hope the government keeps forging ahead. At worst, we'll get an authoritative judicial opinion about the feasibility of Senate reform through legislation; at best, we might get a reformed Senate.
Tom Flanagan is professor of political science at the University of Calgary and a former Conservative campaign manager.
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