The ongoing Senate scandal, with its questionable expense claims and reports about murky dealings with the Prime Minister's Office, has battered the institution's legitimacy, leading to renewed calls for Senate reform. Financial management and disclosure can be improved through administrative action, but nothing structural can be done until the Supreme Court of Canada gives its answer to the government's Senate reference.
Until now, the main Senate reform options have been election, supported by the Conservatives, and abolition, preferred by the NDP. The government has asked the Supreme Court to rule on whether these options can be done by simple legislation or require constitutional amendment. I won't try to prejudge the judges, but it's quite possible they will hold that both election and abolition require a constitutional amendment. Since all political parties say they don't want to reopen the Constitution, such a decision would leave us with the senatorial status quo – or would it?
There is, in fact, another option. We could look to the Mother of Parliaments, the original source of our own Constitution. For two decades, Britain has been struggling toward an elected House of Lords, but hasn't yet gotten there. In the meantime, however, it has developed mechanisms for appointment from which we could learn a great deal.
Britain has an independent House of Lords Appointment Commission, which names non-partisan members to the House of Lords. This helps to reduce the partisan warfare in and around the upper house, which is so much in evidence in Canada at the moment. We can't copy the British appointment system exactly because their House of Lords differs in key respects from our Senate. It doesn't have a definite size, it still has some hereditary members and it doesn't have the function of regional representation, as the Canadian Senate does. But we could draw inspiration from their system and apply it to Canadian realities.
A prime minister could announce that he will seek advice for all future Senate appointments before recommending them to the governor-general. That wouldn't raise a constitutional problem because the appointment mechanism would still be the same, just with an advisory layer added beneath it. It would be legally similar to what is now done with senators from Alberta, where the prime minister follows the advice of voters in a senatorial election, but still makes the actual nomination himself.
Alberta and other provinces that wished to adopt that model could continue to give their advice through popular election. Other provinces, if they wished to have a voice in senatorial appointments, would have to set up advisory committees. To maintain consistency across the country, the structure of these committees and the procedures they would follow would have to be negotiated among the provinces themselves and with the federal government. The committees might have some members appointed by the prime minister, some by the provincial premiers, and some from other sources, such as the Senate itself, or civil society organizations such as the Order of Canada.
Once constituted, the committees might operate much as judicial advisory committees do now. In preparation for Senate vacancies, they could seek out possible candidates and accept applications. When a vacancy did appear, the committee could recommend, say, three names for the consideration of the prime minister, as is now done with appointments to the Supreme Court of Canada. But having nominees appear for hearings before a House of Commons committee would not be appropriate, as the Senate is a separate body from the House.
These details are only meant as an example of what could be done. I'm not offering a full-fledged plan, just trying to start a conversation about alternatives. Many different approaches could work, as long as the goal was to depoliticize the appointment process. The prime minister would have to renounce his patronage power of choosing senators, but that should not be so hard – senatorial patronage has become as much a curse as a blessing.
I have long favoured an elected Senate and still do as a theoretical proposition. In a democratic age, election is the best way of conferring legitimacy upon a legislative body. But it's good to have at least the outlines of Plan B in case the Supreme Court says that Senate elections cannot be made mandatory without a constitutional amendment.
It could be a classic Canadian compromise, untidy but workable. Those provinces that want to elect senators could do so, while those that don't want elections could get a voice in a depoliticized advisory process that would gradually make the Senate a less partisan body.
Tom Flanagan is professor of political science at the University of Calgary and a former campaign manager for conservative parties.