The ongoing controversies around Senators’ living expense claims and their ability to meet constitutionally-entrenched residency requirements continues to give the NDP Question Period fodder.
With at least four Senators under investigation over expense claims by the Senate’s Standing Committee on Internal Economy, Budgets, and Administration, NDP Leader Tom Mulcair (Outremont, Que.) and his caucus have been pressing the government to consult with the provinces on abolishing the Upper Chamber.
But numerous constitutional experts say that abolition is a long shot.
“They really haven’t done much homework on the pros and cons of bicameralism. I don’t know if they honestly know how to spell the word,” constitutional expert Peter Russell said of the NDP’s calls for abolition.
Prof. Russell, professor emeritus at the University of Toronto, said that the Upper Chamber plays an important role in legislative oversight and has produced “fantastic” studies on social issues that New Democrats claim to be most concerned with, including poverty and the living conditions of people with disabilities.
“They should take a close look at that, rather than just have this knee jerk idea that since it’s not elected it can’t be any good,” said Prof. Russell.
Bruce Ryder, who specializes in constitutional law at Osgoode Hall law school, said that he would prefer that the Senate be abolished, but conceded that it was “highly unlikely” that any federal government would be able to because it would require the unanimous consent of each province, the Senate, and the House of Commons under section 41(b) of the Constitution Act of 1982.
“Even if we reach a strong consensus on the need for abolition, it’s still going to be difficult to do because it requires unanimous consent of both houses of Parliament - so the Senate would have to agree to its own destruction, which could be an obstacle too, of course, as well as support from 10 provincial legislatures,” said Prof. Ryder.
Prof. Ryder said he favours abolishing the Senate because he’s not convinced that its function is worth the cost required to maintain the institution. He suggested that other public institutions could provide the same legislative oversight for which the Senate was intended, but at a lower cost.
It costs between $90-million and $100-million annually to maintain the embattled chamber of sober second thought.
“The question is, is it work that can’t be done as effectively by other institutions at a lot less cost,” said Prof. Ryder. “I think many Canadians are reaching the conclusion that the answer to that is it can be done elsewhere at less cost.”
Beyond the required approval of 10 provinces and both houses of Parliament, the Senate’s far-reaching role in the federal legislative framework further adds to the complexity of abolishing the Senate.
“Abolition is really a daunting thing because there’s so many sections of the Constitution that are built on the premise of two Houses—a Senate and a House of Commons. It would be an extraordinarily complex redoing of the legislative part of our founding Constitution,” Prof. Russell said.
University of Ottawa law professor Benoit Pelletier, who served as minister of intergovernmental affairs in former Quebec premier Jean Charest’s Cabinet, agreed that abolition was a long shot.
“I don’t see the abolition of the Senate to be something that would get the approval of all the necessary provinces that would have to give their approval,” Prof. Pelletier observed. “I’m sure that different provinces, including Quebec, would like other subjects to be discussed at the same table. We would eventually get something as large, as wide, and as substantial as the Meech Lake Accord or even the Charlottetown agreement.”
Senate abolition is one of seven proposed reforms that the federal government asked the Supreme Court to rule on on Feb. 1. Other amendments include fixed term lengths and appointment consultations by provincial election. Bill C-7, the government’s Senate reform bill, would allow provinces to elect “nominees” for Senate appointments and would impose single nine-year term limits on Senators.
Experts expect the Supreme Court to confirm that abolishing the Senate would require unanimous consent from the provinces, House of Commons, and Senate, but the processes for establishing term limits and elections are far less clear.
While Bill C-7 frames provincial elections for the Senate as consultative and non-binding for the Prime Minister, Prof. Ryder noted that it comes close to having a fully elected Senate, which would dramatically alter how the Senate exercises its discretion over legislation.
“The reality is that there’s a very good chance the passage of Bill C-7 will have a radical impact on the democratic legitimacy of the Senate that could lead us quite quickly to the equivalent of an elected Senate,” he explained. “If that’s the case, then Parliament is fundamentally transformed.”
While Prof. Ryder and others acknowledged that the federal government was limited in its ability to unilaterally reform the Senate, there was agreement that the Prime Minister could strike advisory panels that could vet Senate appointments or even nominate appointees independently of the Prime Minister.
National Post columnist John Ivison recently urged the Prime Minister to establish an “independent appointments commission” to make non-partisan recommendations to fill Senate vacancies. Senate opposition leader James Cowan also called for an expert panel to oversee appointments in a recent Postmedia interview, saying that it would bring transparency to the nomination process.
An arm’s-length advisory panel is one unilateral move that constitutional experts said was within the Prime Minister’s power, as long as the panel’s recommendations were non-binding.
“In the current circumstances, I think it would be beneficial,” Prof. Pelletier said. “The circumstances surrounding Sen. Brazeau and the expenses of other Senators—all this is affecting the credibility of the Senate, that’s for sure.”
Original Article
Source: hilltimes.com
Author: CHRIS PLECASH
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