Tuesday, September 12, 2006

Senate Reform from the Reformer - Part 2

Prime Minister Harper'’s current proposal before the Senate which precipitated his appearance are contained in Bill S-4, An Act to amend the Constitution Act, 1867 (Senate tenure). It's short, sweet and to the point: senators appointed after this Bill comes into force will sit for a term of 8 years.* That's very clear and has been on the public record for months.

What's new is the announcement he made during his appearance: this Fall he intends to introduce legislation to allow for elected senators rather than the current practice of Prime Ministerial appointments.

Let's take these issues one at a time and see where they lead us. First, the term limits.

Senator Marjory LeBreton, the Government House Leader in the Senate, stated that:

"The proposal to set the length of tenure at eight years does not change the method of appointment, the powers of the Senate, or the distribution of seats, which are known as "essential characteristics of the Senate."

Altering essential characteristics requires the use of the more demanding amending formula contained in the Constitution Act, which requires the support of the provinces. It is clear that Bill S-4 can be enacted by Parliament alone, as was done in 1965 when life tenure for senators was changed to the present mandatory retirement at age 75.

Comprehensive change that will make the Senate an effective, independent and democratically elected body that equitably represents all regions will require the consent of at least seven provinces representing 50 per cent of the population because these moves would alter "essential characteristics" of the Senate. This will take more time.

Therefore, in proposing a Senate tenure of eight years, the government has taken a significant first step toward ensuring that this important democratic institution evolves in step with the expectations of Canadians. It is a step that stands on its own as laudable and reasonable."

It's interesting to note that she uses the precedent of the 1965 tenure change to justify making the current change. In fact it is not clear at all that these kinds of tenure changes can be made by parliament alone for two reasons.

The 1965 change was initiated by the Canadian Parliament but then it had to be sent to Westminster for ratification through an act of the British parliament; that's the way amendments were done back then. This differs from her contention that the Canadian parliament did it alone.

Secondly,this pre-dates the Constitution Act of 1982 which established, for the first time, a made-in-Canada amendment formula for things like this.

Bear with me for a minute: Section 42. (1)(b) says that amendments affecting "the powers of the Senate and the method of selecting Senators" may be done only in accordance with the amendment formula in 38(1).

And in 38(1) the formula is passage by the parliament (House of Commons and Senate) and 2/3's of the provinces with at least 50% of the population.

It's worth noting that there are several amending formulas specified in the constitution. The first is that one: the 2/3's-50% formula.

The second is in section 38(2) and says that if the amendment affects only one province then it need only be passed by the federal parliament and the affected province only. If you think that's arcane, remember that this province has used that section twice already; once to change the name of the province and anther time to eliminate the denominational school boards.

The third and last is section 44: Parliament exclusively may amend the constitution on it's own if, and only if, it's related to "the executive government of Canada or the Senate and House of Commons".

The Senatorial question of the day is this: Can Prime Minister Stephen Harper unilaterally change the tenure of senators from retirement at age 75 to an 8 year term without going to the provinces for approval?

And the answer is probably. It depends on if the tenure change comes under "the executive government of Canada or the Senate and House of Commons" but only the Supreme Court of Canada knows for sure and we won't know that unless there's a reference of the question to the court or unless the proposal passes and then somebody takes it to court.

I'm not sure who would care enough to go through that effort especially since it seems likely that senatorial tenure comes under the matter of executive government of Canada. So Harper can probably go right ahead and make the change he wants without any provincial consultation and avoid going cap-in-hand to the provinces.

Next post will plough through the issues around the elected Senate proposal. I promise that issue will be more interesting.

* It's silent on the matter of re-appointments so, in theory, a Prime Minister could hand somebody a re-appointment on their way out the door and steer them right back in again. But no matter; that's not relevant to this discussion.

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