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Stephen Harper's policy on the Senate, giving up on reform, wasn't popular, and didn't provide enough distance from scandals in the Red Chamber. So he has evidently decided he will appeal to public sentiment by announcing he will hold the Constitution in abeyance, declining to appoint senators.

Mr. Harper has let Senate vacancies pile up for more than two years. But just two months ago, his government wrote to the Federal Court of Canada to say the Prime Minister had never decided to stop appointing senators. On Friday, he announced that very decision, declaring a moratorium.

Until now, the Senate scandals, notably the Mike Duffy affair, had made it politically unpalatable to be seen naming another lifetime appointee. That wasn't enough to stop the political damage, however, so he's promised to make it a moratorium. But it's not a promise he can keep indefinitely.

The government is already fighting a court case brought by a Vancouver lawyer, Aniz Alani, who argues that Mr. Harper's refusal to appoint senators over the past two years, and the PM's statements that he doesn't see any need to fill the vacancies, amounts to a breach of his constitutional duty. The Constitution states that the Governor-General "shall" appoint senators, and by convention, the viceroy only does that on the advice of the PM.

In that case at the Federal Court, the government has been filing materials to back up an argument that Mr. Harper is delaying appointments, not refusing them. They include an affidavit from McGill political science professor Christopher Manfredi, who declared that there's no constitutional convention that dictates how much time PMs have to appoint senators, and they can take their time. But refusing to appoint senators?

"Certainly, at some stage, senators have to be appointed," Federal Court Justice Sean Harrington wrote in May, when he rejected the government's motion to dismiss Mr. Alani's case. He noted that if there were less than 15 senators, the required number for quorum in the chamber, Parliament could not function. (Mr. Alani argues the Constitution requires Mr. Harper to appoint senators, and refusing to do so defeats constitutional provisions guaranteeing levels of representation to provinces.)

He also wrote this: "I know of no law which provides that one may not do what one is otherwise obliged to do simply because it would be embarrassing."

But government lawyers told the court, in a letter dated June 15, that there was never any decision made by the Prime Minister to leave Senate seats vacant. The letter was sent as part of the court process: Mr. Alani had asked for copies of all the materials the PM used to make the decision to leave Senate seats vacant, and government lawyer Jan Brongers replied that there were no materials, because there was no such decision.

Those are legal issues due to be wrangled over in court and decided by judges. But it's clear prime ministers can't indefinitely refuse to appoint senators. Now that's official policy, a policy that was rushed out to meet electoral needs, because Mr. Harper, surprisingly, has failed to adopt measures to mitigate the damage of the Senate scandals.

Mr. Harper argued Friday that stopping Senate appointments will cut money, but he could have done that the direct way, by slashing senators' budgets. He could have announced a change in the kind of appointments he would make, since the public is annoyed by the partisans both Conservatives and Liberals have appointed.

But he has been outflanked. Thomas Mulcair's NDP proposes abolition, and that's a simple message with populist appeal – even if it may fail because it requires the consent of all the provinces.

The NDP's policy is essentially that it would pass a federal resolution calling for abolition, and invite all provinces to do the same.

But Mr. Harper had said that path was hopeless, and he could do nothing – not even send a letter to the provinces. It wasn't much defence against the scandals. He needed to portray more zeal. The decision his lawyers said only two months ago had never been made has, now, been made. Refusing to appoint senators really is the government's policy. But it is one that can't last.

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