Well it seems that we will be in full election campaign mode in the next few days. For a political scientist this means that we get to examine and compare election promises and we get to pour over polls and analyze debates. I thought that this week I would take a look at one of the early campaign promises: Senate reform or abolition.
I have written a few times about the Senate and how it fits into our bicameral system. We have two houses modelled on the British system of government. We have a House of Commons and a Senate (they have the House of Lords). Both of these "houses" are explicitly mentioned in the constitution. At the simplest level of analysis the Senate is a "check" on the power of the House of Commons.
The idea of abolishing the Senate is problematic because it is a critical part of the Westminster style of government and because its abolition is not a simple act of Parliament. It would require a constitutional amendment which, since the 1982 Constitution Act, has been made very difficult.
In order to explain the difficulty of making a constitutional amendment, I need to go all the back to 1931 when Canada was given the opportunity to "bring home" its constitution from Britain. At that time, Britain passed the Statute of Westminster which, in essence, paved the way for Canada to fully patriate the Constitution. The key point of contention for bringing home the Constitution was the amending formula. An amending formula is a rule to change the rules." In other words, because a Constitution frames out the rules by which governments can act, it is important to include within the document itself a rule to explain how the constitution may be changed.
Think of it this way. Imagine that you are playing a sport and you have a league rule book. The book would outline certain rules of play including team make-up and perhaps age of the players and rotation of the playing fields etc. If someone were to just come along and change the rules they could potentially disenfranchise or disempower a certain team. In order to avoid arbitrary changes the rule book would need some kind of regulations that gives all the teams an equal opportunity to agree to any changes or, at the very least, agree to changes that will affect them.
In the case of our constitution we wrangled over this "amending formula" from 1931 all the way until 1982 when we finally "patriated" the constitution. The reason is that the provinces, and particularly Quebec, were concerned that they would not have sufficient power to stop changes that were disadvantageous to their interests. In the end, Canada adopted four amending formulas. The extent of the proposed change to the Constitution determines which of the formulas is used. Abolition of the Senate would require unanimous consent. The amending formula reads: "An amendment to the Constitution of Canada in relation to the following matters (which the Supreme Court determined includes Senate abolition) may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province."
The Constitution is also very clear on the requirements for reform of the Senate. It says that: "An amendment to the Constitution of Canada in relation to the following matters [which include the powers of the Senate and the method of selecting Senators and the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators] may be made only in accordance with subsection 38(1)" which reads: " an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by (a) resolutions of the Senate and House of Commons; and (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have...at least fifty per cent of the population of all the provinces."
The fact is that Senate abolition significantly alters the "rules of the game" and Senate reform will require very significant consensus.
