Tom Flanagan is a distinguished fellow in the School of Public Policy, University of Calgary, and a former campaign manager for conservative parties.
It's finally final. The Supreme Court of Canada has told us that the Senate can be neither abolished nor turned into an elected body without a constitutional amendment. The practical hurdles in the face of enacting such amendments, whether support of all provinces or two-thirds with 50 per cent of the population, are so high that we might as well forget about it. The only major Senate reform that is legally and politically possible is to change the appointment process.
Constitutionally, an appointment to the Senate is made by the governor-general on the advice of the prime minister. Although his or her discretion is legally unfettered, a prime minister can seek advice about Senate appointments and choose whether to follow it. That, in effect, is what has been happening with appointments of Alberta senators, as prime ministers Brian Mulroney and Stephen Harper have chosen to follow the results of that province's senatorial advisory elections, whereas prime ministers Jean Chrétien and Paul Martin did not.
This freedom to seek advice furnishes a feasible avenue of Senate reform. A prime minister could announce that from now on, he will appoint as senators only those whose names have been recommended by an established advisory process. That's more or less how judges are appointed now, and the same general approach could be extended from the judiciary to the Senate.
A prime minister could do this unilaterally, but I think that would be a mistake. The Senate is a national institution, and it is important that all parties regard it as legitimate. A unilateral change to the appointment process by one prime minister would likely call forth criticism and alternative proposals by leaders of the other parties. Nothing would be worse for the Senate than to turn the appointment process into a political football, open to change every time a new government is elected.
A better approach would be to appoint a high-level task force to design a new appointment process, and to invite prominent figures from all major parties to sit on it. With good luck and good will, the result would be an appointment process that all parties could live with and that could withstand the transition from one government to another. Political leaders in Britain have done it for their House of Lords; why not in Canada for our Senate?
Some humility will be required from all party leaders. Mr. Harper will have to acknowledge that the idea of an elected Senate, which he has advocated for more than 20 years, is not feasible. It may be a good idea in the abstract – voters in Australia, Switzerland and the United States elect upper houses – but there is no constitutional path to get there in Canada.
Similarly, Opposition Leader Thomas Mulcair will have to recognize that the New Democratic dream of abolition is a non-starter. Senate abolition may be a good idea; admirably democratic countries such as New Zealand and Sweden have just one chamber in their legislatures. But unicameralism is not compatible with the existing Canadian Constitution as interpreted by the Supreme Court.
Justin Trudeau, leader of the third-party Liberals, will also have to climb down a bit. He deserves credit for being the first major-party leader to advocate Senate reform through changes to the appointment process, but his vision of a completely non-partisan Senate is inconsistent with parliamentary government. To be sure, there is a place for independent senators – "cross-benchers," in British terminology – but the government of the day needs a party caucus in the Senate to ensure that legislation is managed (not rubber-stamped) in a coherent way.
Now that the Supreme Court has winnowed out the options, real progress on Senate reform is possible if our party leaders can work together on this national project.