choicesVol. 14, no. 11, September 2008 ISSN 0711-0677 www.irpp.org

Strengthening Canadian Democracy

IIRRPPPP

Campbell Sharman

PoliticalLegitimacy for an AppointedSenate

Campbell Sharman is an adjunct professor inthe Department of Political Science at theUniversity of British Columbia and a seniorhonorary research fellow in political science atthe University of Western Australia. Now basedin Vancouver after a teaching and researchcareer in Australia, he has published widely onparliarmentary politics and federalism inAustralia and the effects of electoral rules onrepresentative government.

This publication was produced under thedirection of Leslie Seidle, Senior ResearchAssociate, IRPP. The manuscript was copy-editedby Barry Norris, proofreading was by ZofiaLaubitz, production was by Chantal Létourneau,art direction was by Schumacher Design, andprinting was by AGL Graphiques.

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To cite this document:

Sharman, Campbell. 2008. “Political Legitimacy foran Appointed Senate.” IRPP Choices 14 (11).

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Contents

3 Conflicting Assumptions about Senate Reform

7 Power and Legitimacy

11 The Prime Minister and an Appointed Senate

12 Senate Reform as a Tactical Device

14 Modifying an Appointed Upper House: TheAustralian Experience

15 Propositions for Successful Senate Reform

21 Conclusion

22 Notes

23 References

25 Résumé

26 Summary

Strengthening CanadianDemocracy / Renforcer ladémocratie canadienneResearch Directeur / Directrice de recherche

Geneviève Bouchard

S ince the 1960s, increased levels of educa-tion and changing social values haveprompted calls for increased democratic

participation, both in Canada and internationally.Some modest reforms have been implemented inthis country, but for the most part the avenuesprovided for public participation lag behind thedemand. The Strengthening Canadian Democracyresearch program explores some of the democrat-ic lacunae in Canada's political system. In pro-posing reforms, the focus is on how thelegitimacy of our system of government can bestrengthened before disengagement from politicsand public alienation accelerate unduly.

D epuis les années 1960, le relèvement duniveau d'éducation et l'évolution desvaleurs sociales ont suscité au Canada

comme ailleurs des appels en faveur d'une partici-pation démocratique élargie. Si quelques modestesréformes ont été mises en œuvre dans notre pays,les mesures envisagées pour étendre cette partici-pation restent largement insuffisantes au regard dela demande exprimée. Ce programme de rechercheexamine certaines des lacunes démocratiques dusystème canadien et propose des réformes quiamélioreraient la participation publique, s'intéres-sant par le fait même aux moyens d'affermir lalégitimité de notre système de gouvernement pourcontrer le désengagement de plus en plus marquéde la population vis-à-vis de la politique.

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I f democratic legitimacy is seen as synonymouswith elections, representative institutions whichare not directly elected face a double problem:

their authority can be questioned and their role isunclear. This is the case whatever the constitutionalprovisions specifying their function and the extent oftheir formal powers. And these are precisely thecharges which have dogged the Canadian Senate.Whatever the merits of its activities, they have beenundermined by a lack of institutional legitimacy.

Yet to argue that elections are the sole source ofpolitical legitimacy is too broad a claim; the courts inCanada, particularly since the Charter, are an obviousexample of an institution whose widely acceptedauthority does not derive from popular representa-tion. Elections are only one component of liberaldemocracy; constitutionalism, the rule of law and aninstitutional framework both to implement and tomonitor representative government are equallyimportant. Nor do elections alone guarantee popularacceptance of an institution; the directly electedAustralian Senate for much of the first half-centuryof its existence was regarded as a chamber of littlesignificance. Political legitimacy for a representativeinstitution requires more than elections; the questionis whether legitimacy can be achieved without elec-tions. If the answer is yes, this assumes there is someinstitutional design which can generate enoughpolitical authority to sustain the legitimacy of a rep-resentative institution.

The many schemes for the reform of the Senatethrough the modification of the selection process ofsenators without using direct election have beenmotivated by the belief that political legitimacy canbe achieved by institutional engineering of the selec-tion process. The recent experience of the UK Houseof Lords adds weight to this view — the drasticreduction of hereditary representation and the

Political Legitimacy foran Appointed Senate

Campbell Sharman

ambitions of the House of Commons. All but one of thepropositions could operate without constitutionalchange; the remaining one requires a removal of theSenate’s legislative veto as part of a package of changesto ensure the acceptability of a reformed Senate.

Conflicting Assumptions aboutSenate Reform

T here are few commentators on the Senate whothink that it should be left as it is — that reformof any kind is undesirable. But, putting aside

those who wish to abolish the Senate,3 the wide accept-ance of the need for Senate reform masks disagreementover the extent and direction of desirable change.Contributing to the difficulty of discussion are pro-found differences in assumptions about the purpose ofthe Senate, the goal of Senate reform and the methodof achieving reform. This makes for a confusing debate,so it may be helpful to set out the different assump-tions in each of these areas.

The purpose of the SenateExamining the purpose of the Senate is not a matter ofhistorical accuracy but of current assumptions about whatthe Senate is supposed to achieve (see Stilborn 2003). Forsome, the Senate should represent the social and regionaldiversity of Canada as a way of bringing within the par-liamentary process voices which might not be heard in thepartisan debates of the House of Commons. One versionof this view is eloquently stated by Ajzenstat (2003), whoaccepts that a parliamentary executive with a lower housemajority will prevail eventually, but feels that delay andthe canvassing of alternative proposals in the Senate is anappropriate and necessary parliamentary function. Sheargues that this is consistent with the founders’ assump-tions that the Senate’s ability to reflect sectional andregional interest was what made the Senate an integral —and logical — component of a national parliament (but seeSmith 2004, 47-50). Ajzenstat might admit (2007) that thisview of the Senate rests on notions of limited govern-ment, parliamentary representation and the need for exec-utive restraint which are now not widely shared, butsimilar views about the proper purpose of the Senateunderpin David E. Smith’s extensive work on the chamber(2003a, 2003b).

Some put more stress on the representation ofregional diversity, but also accept that being able tomanifest this diversity in the Senate, rather than to

introduction of balanced partisan appointments haveenhanced the public acceptance of the role of thechamber. But many questions remain about thechanges which could be applied to the selectionprocess of senators and their consequences for therole of the Senate and the parliamentary process.These issues have been very well canvassed in theliterature on the Senate. The chamber, and the possi-bility of its reform, has produced a great deal ofexcellent scholarship,1 and it could be argued thatthere is little to say on the topic that has not alreadybeen said by previous generations of scholars. Thecontribution of this paper is to put past debates intoa contemporary context and, by looking at the expe-rience of bicameralism in similar parliamentarydemocracies, to provide some suggestions about thereconfiguration of existing ideas about Senatereform — and to set out another set of proposals.

The paper begins with an attempt to avoid theconfusion which sometimes surrounds debates overSenate reform by setting out the differing assump-tions about the purpose of the Senate, the goals forreform and the methods of achieving them.2 This partof the paper also looks at the meaning of legitimacyas an attribute of institutions, and its association withdemocracy and representation. The following partexamines the relationship between the power and thelegitimacy of parliamentary institutions, and arguesthat these two attributes can contribute to the cre-ation of a stable role for an appointed upper house inthe parliamentary process. This is supplemented byan examination of the way in which the House ofLords and the Australian Senate have evolved toachieve such a role in their parliamentary systems.

The analysis then moves to the Canadian Senateand examines the role of the prime minister in theappointment of senators and the implications of theSenate’s fixed size and regional constraints onappointments in shaping its partisan dynamics. This isillustrated by an examination of the way in whichSenate reform can be used as a tactical device for par-tisan gain. A survey is then undertaken of the issuesraised by the reform of an appointed Australian stateupper house and its broader implications.

Finally, the paper sets out six propositions con-cerning the Senate which argue that the most plausi-ble course for reform is a choice from the widerepertoire of appointment procedures to achieve parti-san balance. These must be combined in a way whichenhances the legitimacy of the Senate while notunduly threatening the government or the partisan

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in which this can now be achieved. Smiley (1985, 35-6) posed the consequent dilemma:

No case at all can be made for a weak electedSenate in Canada, a body whose powers caneasily be overridden by governments sus-tained by majorities in the House ofCommons. Yet the existence of any otherkind of elected second chamber is almostimpossible to reconcile with the operativerules of responsible government as Canadianshave come to understand them. However,responsible government should not be a shib-boleth, both the empirical and normativeassumptions on which this regime is basedare questionable. Thus an elected Senate withthe power and assertiveness to protectregional interests effectively will inevitablychallenge legislative supremacy which is inessence a check for executive power.

Finally, there are those who see a powerful electedSenate as one way of achieving real parliamentarysupremacy in a Canada which can finally cast offthe executive dominance claimed to be inheritedfrom its colonial past (Sproule-Jones 1984; and noteSharman 1990).

These three perspectives on the purpose of theSenate — as the parliamentary representation of socialand regional diversity, as a vital component of an effi-cient parliamentary process and as a necessary checkon the executive — explain why proposals for Senatereform generate disagreement. Each suggests a differentdynamic for the operation of the Senate and itsrelationship with the lower house and with the govern-ment of the day. Not surprisingly, these differing per-spectives suggest contrasting goals for Senate reform.

The goals of Senate reform The key factor in distinguishing among the goals ofthose who argue for Senate reform is their attitudetoward the role of partisanship and political parties. Ifthe Senate is to be a body of expert legislative advice,party is largely irrelevant. Decisions should be made onmerit, and partisan differences do nothing but compli-cate the deliberative process. This is an overstatement,but it points to the dilemma of reforming the Senate asthough it were a committee of inquiry or a debatingsociety. The chamber has real power, and some organiz-ing principle must be used to coordinate majorities sothat decisions can be made. As long as the decisions ofthe Senate impinge on the political priorities of thegovernment by amending legislation, scrutinizing gov-ernment actions or public inquiries, partisan politicswill play a critical role. It may not always trump deci-sions made on other criteria, but it will be the dominantconsideration in the operation of the Senate.

force compliance, is its most important attribute. Thisperspective sees the Senate as a chamber which couldbe reformed without the need for popular elections.Elections, even with the use of electoral systemsdesigned to encourage regional and partisan diver-sity, would still limit representation to a mechanicalprocess rather than encourage the variety of opinionspossible from a modified appointment process.

Another view is that the purpose of the Senateshould be to complement the parliamentary activities ofthe House of Commons (Smith 2003a, 159). The Senateshould examine the fine details of legislation, use thecommittee system to provide further information rele-vant to decisions on legislation and governmentadministration and hold inquiries on matters of publicinterest (Thomas 2003, 215-26); but all these delibera-tive activities should be in the form of advice to theexecutive (Parkinson 2007). The Senate is intended, inother words, as a chamber of review and expert com-mentary; it should not be the forum for partisan con-frontation between the Senate and the government.This makes its representative function subordinate to itsrole as a facilitator for the efficient functioning of theparliamentary process. Again, this perspective seesreform of the Senate as a process which need notinvolve direct elections; the greater the stress on theimportance of the Senate as a source of expertise andinformed review, the less relevant elections become.

A very different analysis of the purpose of theSenate is held by those who see the parliamentaryprocess in more combative terms. For them, theSenate’s principal purpose is to act as a check on theexecutive.4 Party discipline has long reduced the abil-ity of the House of Commons to subject legislation tothe extensive examination it deserves and, with thepartial exception of minority governments, to sustaineffective inquiries into the activities of government.The role of the Senate is to fulfill those functions ofparliamentary scrutiny that the House can no longerperform adequately.

This perspective challenges many assumptionsabout the Canadian parliamentary process, criticalones being the dominance of an executive supportedby a House of Commons majority and conventionalviews of the operation of responsible parliamentarygovernment. It implies that the government must notbe able to rely on a partisan majority in the Senate.Of greatest significance, it assumes that the Senateneeds a source of legitimacy to underpin forcefulresistance to the government of the day, and thatdirect popular elections are likely to be the only way

are those who aim for the Senate to be guided by amuch weakened partisanship; the selection of senatorswould reflect regional diversity by appointing peoplewho have status in their communities. In this case, par-tisan attachment would be blended with personalattributes to ensure that party considerations weremoderated by local experience and personal beliefs.

Whatever the goals of Senate reform, considerationof the role of parties is unavoidable in the selection ofsenators, in the operation of the Senate and in its rolein the parliamentary and governmental process.

Method of achieving reformThe focus of this paper is not on the circumstances inwhich successful reform of the Senate might beachieved or on an extensive history of proposals forreform since the 1960s (see Seidle 1992; Stilborn 2003).Rather, the issues to be canvassed here are the institu-tional changes to the Senate that reformers advocate.Chief among these are changes to the procedures forselecting senators. This might appear to provide a rela-tively limited set of choices, but it has not preventedthe topic from being one of the most contentious. Thebig divide is between the direct election of senators andall other methods of selecting senators.

Those who argue for direct election argue that theSenate needs the political legitimacy that only directelection can bestow. This raises the question of whatthe added legitimacy is to achieve. For those who wishthe Senate to use its powers to confront a governmentsupported by a majority in the House of Commons, thepurpose of direct elections is clear. But few reformersregard this as the primary role of the Senate. Thosewho want the Senate to reflect the interests of regionalpolitical communities see elections as a way of bothexpressing and legitimizing their concerns. But aSenate elected on this basis is likely to succumb to thedictates of party even if it is a different constellation ofparties than those which now populate the Senatebenches. Regional elections are just as likely to lead toconfrontations between the Senate and the governmenton partisan grounds as a Senate elected on some otherbasis. Legitimacy intended for one purpose may end upsupporting a very different one.

Elections are assumed by many reformers to be theonly way in which popular support for the Senate canbe achieved; democratizing the Senate through an elec-toral process is seen as a cure-all. The hope that thedirect election of senators can, by itself, solve the prob-lems of the role of the Senate is certainly misplaced. Itis easier to argue that direct election without other

But to stress the importance of party does notrequire the persistence of the kind of party warfarethat typifies the current operation of the Senate.Some suggestions for reform deal explicitly with thequestion of party and seek to moderate its role. Oneway is to produce a balance between the two majorparties and to change the way senators are chosen sothat parity is maintained even when there is a changeof government. In addition, reform could ensure thatparties other than the two largest are regularly repre-sented in the Senate, together with, perhaps, theoccasional independent. The goal of these reforms isto recognize the central role that the governing andmajor opposition parties play in the parliamentaryprocess, but to temper the operation of the Senate byhaving a significant cross-bench component. If thiswent so far as to require the governing party to gainthe support of cross-bench senators to achieve amajority, the major parties would retain their domi-nant role but would be subject to the moderatingeffect of compromise and coalition building withother parties and independents.

Other reforms see party playing a different role.For those whose principal goal is to make the Senateresponsive to the political priorities of the provinces,party is the agency for regional responsiveness —party as determined by the government in eachprovince or as decided by popular election. In theGerman Bundesrat model, under which all the sena-tors from a province would be selected by the provin-cial government, partisanship for each delegation ofsenators would be defined as loyalty to the governingparty in the province. Direct election of senators fromeach province would inject provincially based partiesinto national politics. This would certainly not reducethe importance of party, but might work to blur thedifference between provincial and national parties(the German experience is surveyed in Detterbeck andRenzsch 2003). Whether appointed or elected, thepartisan attachments of province-based senatorswould transform the operation of the Senate in wayswhich are unpredictable.

For a few reformers, the most important goal ofSenate reform is to enhance the role of party ratherthan to reduce it. In addition to ensuring that thegoverning party would not likely control a Senatemajority, reform would entail providing nongovern-ment parties with much greater political legitimacy sothat they could use to the full the Senate’s powers toforce negotiation with the government over its legi-slative proposals. At the other end of the scale, there

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To list these options is to reinforce the depressingcircularity of debates about Senate reform. If theSenate were elected, it could threaten the currentdynamics of the Canadian parliamentary process inways which could have profound effects on the oper-ation of government and the role of the House ofCommons. If the Senate were appointed, despite anygood work it might do, it would be seen as either avestigial attachment to Parliament or, if the Senatewere controlled by a nongovernment majority, as anirritant lacking the legitimacy to do anything butharass the government at the behest of the oppositionin the House of Commons.

A note on legitimacy As a supplement to the discussion above, those whowish to reform the Senate often refer to their goal asdemocratizing the chamber, increasing its representa-tiveness and, perhaps most frequently, enhancing itslegitimacy (see Stilborn 2003, 58-9). In a studyfocused on the debate over the reform of the Houseof Lords, Kelso (2006) makes some helpful distinc-tions between these terms, and points to the confusedway in which they have been used to describe andjustify the many schemes for Lords reform. Democ-ratization, she suggests, is intimately related to hav-ing an elected component — there have been severalproposals for changing the composition of the Houseof Lords so that some, most or all of its membershipis directly elected (see McLean, Spirling, and Russell2003). But elections may not enhance the representa-tiveness of the chamber; if political parties are themain organizing agents for elections, the diversity ofviews, social attributes and occupations in society areunlikely to be fully represented. If representativeness— as opposed to popular representation — is themajor goal, some form of appointment may be amore effective way of achieving it. Of course, repre-sentativeness may not matter to those who believethat electoral democracy is of overriding importancein the design of legislative institutions, but the dis-tinction is important.

Kelso’s (2006) treatment of institutional legitimacyis especially useful. She points out that there are twokinds of legitimacy: input legitimacy, which relates tothe way in which the members of an institution areselected, and output legitimacy, which refers to thepublic assessment of the relevance and quality of theinstitution’s performance (for an extended treatmentof this topic, see Beetham 1991). Both forms of legiti-macy express public assessment of the worth of an

institutional changes would exacerbate the problemof the Senate — this would certainly be the view ofthe government of the day. As mentioned above, it ishard to imagine direct elections, however organized,without political parties playing a central role, and itis the likely goals of those parties rather than theelectoral process that is the critical variable. To pro-pose direct elections brings the debate back to thequestion of the purpose of the Senate and the goalsof reform.

If indirect elections are ignored — an arrangementenabling some or all of the sitting members of thefederal or provincial parliaments (or a conventionelected for the purpose of choosing senators) to electsenators — the other instrument of reform is toamend the appointment procedure. At the moment,recommending the appointment of senators is theprerogative of the prime minister, subject only to theavailability of Senate vacancies and the rules specify-ing the regions from which senators are to beappointed. This process has been roundly criticized asan exercise in partisan patronage which robs theSenate of the public support necessary for it to exer-cise its powers effectively.

Alternative appointment procedures are varia-tions on two themes. The first accepts the partisannature of appointments, but argues for senators tobe nominated by party committees with rules thatpermit all parties to select senators, even if the gov-erning party can ensure a majority on the floor ofthe Senate. This process could be combined withopportunities for regional participation and reviewby a body similar to the House of LordsAppointment Commission, set up in 2000 as anindependent statutory body to vet party nomineesfor their “propriety”5 and to make its own recom-mendations for nonpartisan appointments. Again,the goals of this reform become an issue: what is aSenate reformed along these lines likely to achievethat the current one cannot?

A more adventurous change would be to have sen-ators nominated by a nonpartisan panel, perhaps apanel of notables chosen by the government, withguidance as to what sort of person should be selected.Or it could be a standing commission like the Houseof Lords Appointment Commission, which selectsappropriate people from a long list of names sug-gested by the public (see United Kingdom 2000). Bothof these options and any system which was based onpartisan recommendations, however, might be subjectto the approval of the prime minister.

could have challenged the Senate directly by calling anelection on the issue, but the unpopularity of the meas-ure and fear of defeat forced the government to admitthat the Senate was a critical player in the legislativeprocess whose consent had to be gained for the gov-ernment to implement its financial measures.6

Governments usually have partisan majorities in theHouse of Commons, which, when combined with strongparty discipline, give the government of the day a freehand in the running of the lower house and deny theopposition parties the ability to force changes on gov-ernment legislation or to pursue inquiries into mattersthe government does not want aired. This is not todeny the importance of the House as a forum fordebate on matters of public importance and for provid-ing numerous opportunities for embarrassing the gov-ernment. But this is a long way from fulfilling thenominal role of the chamber: the independent scrutinyof legislation and government activities. With the par-tial exception of periods of minority government, theHouse has long ceased to be an autonomous actor inthe parliamentary process.

Executive control of the business of the House ofCommons is now taken for granted, and even celebrat-ed as a way of ensuring the electoral accountability ofgovernments. Parties in government have a periodbetween elections to follow their preferred policies andpass legislation with few formal parliamentaryrestraints on their activities, and must then justify theiractivities at the next election. This view of the parlia-mentary process is so ingrained that those who suggestelectoral reform which might deny the government asolid partisan majority on the floor of the lower houseare accused of fostering government instability. Thethought that governments might have to justify legisla-tion on its merits in parliamentary debate, and to per-suade members of Parliament other than governmentpartisans to support it, is seen as almost revolutionary.Executive dominance has become the defining charac-teristic of the political process in Canada.

This explains why the position of the Senate isanomalous. All provincial legislatures are now uni-cameral,7 and the idea that parliaments should bebicameral to provide an upper house which can act asa continuing check on governments supported by alower house majority has little currency in Canada.But the Senate continues to hold the power to disruptthe government’s control of the parliamentary process.This anomaly has been papered over by degrading thestatus of the Senate so that its members do not feelthey have the authority to use their powers to

institution, but input legitimacy is a matter of thedesign of the institution while output legitimacy mustbe earned by the institution’s performance. Assess-ments of the Senate are an excellent example of thegap between the two: the Senate clearly performsmany useful functions in the Canadian parliamentaryprocess (see Franks 2003) but the public, largelyunaware of this, focuses almost exclusively on its lackof input legitimacy. The whole thrust of the debate onthe reform of the Senate is not the quality of its insti-tutional performance but the way it is chosen.

Power and Legitimacy

T he elephant in the room in debates about thecomposition of the Senate is the extent of theSenate’s powers. The Senate has the same pow-

ers as the House of Commons, with the exception thatappropriation and tax bills “shall originate in theHouse of Commons” (Constitution Act, 1867, section53). This means that the Senate has the power to vetoany legislation proposed and passed by the lowerhouse, to introduce a bill on any topic other than amoney bill, to set up committees of inquiry on anysubject and to act as a forum for wide debate on anymatter of public importance. Of greatest significance,although the Senate does not have the power tooriginate financial legislation, it may block moneybills, including the budget and other key appropria-tion bills essential for the operation — and the life —of a government. This power makes the Senate apotential threat to the government’s control of theparliamentary process, notwithstanding those whoargue that there is something vaguely unconstitu-tional about the Senate’s use of the legislative veto(Rémillard and Turner 2003, 126-7).

The power of the Senate was amply demonstratedduring the Progressive Conservative government of1984 to 1993, when the Liberals were usually able tomuster Senate majorities to harass the government’slegislative program and to block the passage of theoccasional bill when they believed they had the sup-port of the public. Even Prime Minister Mulroney’sunprecedented use of section 26 of the ConstitutionAct, 1867 in 1990 to appoint eight additional sena-tors to enable the passage of legislation to introducethe goods and services tax can be seen as strengthen-ing, rather than weakening, the power of the Senate(Franks 2003, 155-65). The Mulroney government

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may overstate the degree of change for the House ofLords and the Australian Senate and the extent ofpublic acceptance of their legitimacy, but there is noquestion that change has been in the directions indi-cated. For both institutions, there is strong backingfor their continuing independent action in legislativereview and, in the case of the Australian Senate, itspowers of inquiry.

Figure 1 suggests that there may be only one nat-urally stable position for an upper house: the high-power, high-legitimacy quadrant. High powerimplies that the chamber has strong constitutionalbacking, reinforced by public acceptance of thevalue of its role. These two attributes are congruentand likely to be self-reinforcing. The low-power,low-legitimacy quadrant may look stable, but itimplies an institution whose future invites substan-tial reform or abolition.8

The quadrants with mixed values are more inter-esting because they indicate where tensions over sec-ond chambers are likely to arise. The low-power,high-legitimacy quadrant implies an institutionwhich has gained wide public support through somecombination of the way its membership is selectedand the manner in which it carries out its functions.Its lack of constitutional clout means that it isdependent on its high legitimacy to remain an effec-tive influence on the governmental process. To pushthe analogy, it is in unstable equilibrium — it canmaintain its influence only by successfully maintain-ing its legitimacy. Working in its favour, however, is

challenge governments, especially if they face a gov-ernment determined to get its way.

Most of this diminution of legitimacy is the resultof the nature of the Senate’s composition: theappointment, rather than election, of senators, thepermanent nature of their tenure until the age ofretirement, the lack of all but the most cursory reviewof senators once they are appointed, the fact thatappointments are made by the prime minister aloneand the manifestly partisan way in which the processof appointment has been used. The fixed size of theSenate enables a prime minister who has access tosufficient Senate vacancies to further enhance thegovernment’s security by creating a majority of parti-sans in the Senate so that the chamber’s politicalweakness is compounded by partisan indifference.This situation has not occurred by accident; it is theresponse of an executive which wishes to reduce theuncertainty of having a powerful Senate.

Before discussing the implications for Senatereform of this disparity between formal power andpolitical legitimacy, it may be useful to look at theposition of the Senate in comparison with other pos-sible combinations of power and legitimacy. Power inthis context is equated with the constitutional powerof the institution to take independent action in thelegislative process. Legitimacy is a more elusive con-cept and deserves further examination, but for pres-ent purposes, it is the ability of a chamber to counton popular acceptance of the use of its formal powersto limit government action, whether or not they agreeon the policy at issue.

In figure 1, the United States Senate is clearlylocated in the high-power, high-legitimacy quadrantand the Canadian Senate in the high-power but low-legitimacy quadrant. Over time, both the UK House ofLords and the Australian Senate have changed theirstatus. The Australian Senate remains a powerfulchamber with very similar powers to those of theCanadian Senate, but it has moved steadily from lowto high legitimacy since the loss of government con-trol of the chamber after the adoption of proportionalrepresentation (PR) for the election of senators in1948. The House of Lords originally had powers simi-lar to those of the House of Commons, but its powerto veto legislation was removed in 1911 and its powerto delay legislation further reduced in 1949. Over thepast 30 years, however, its legitimacy has grown as aconsequence of changes to its composition and itswillingness to challenge the government on measuresfacing widespread public opposition. The diagram

Political legitimacy of chamber

High Low

Figure 1Constitutional Power and Political Legitimacy ofFour Second Chambers: The United States Senate,the Canadian Senate, the Australian Senate, andthe House of Lords

United StatesSenateAustralianSenate 2

Canadian SenateAustralian Senate 1House of Lords 1

House of Lords 2

(Reformed CanadianSenate?)House of Lords 3

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creating wild swings in the partisan character of thechamber, sometimes producing a Senate with morethan 90 percent of the seats held by one party group-ing.9 This usually meant that the government of theday had a comfortable majority in the chamber, but, onoccasion, a government could face a Senate controlledby an opposition determined to be as obstructive aspossible. The manifestly partisan character of thechamber, combined with candidate selection based onparty loyalty rather than on ability or ambition and thegeneral lack of parliamentary activity and initiative leftthe impression that the chamber had little constructiverole to play. The move to adopt proportional represen-tation (by the single transferable vote) in 1949 and asplit in the Australian Labor Party in the mid-1950striggered a series of developments which led to minorparties and independent senators regularly holding thebalance of power in the chamber, and a huge change inthe scope and consequence of Senate parliamentaryactivities (Sharman 1999a).

The result has not reduced the suspicion and resent-ment of governments towards the power and influenceof the Senate; the memory of its exceptional, dramaticand highly partisan action in forcing a government tothe polls in 1975 has not faded.10 But there is now suf-ficient public acceptance of its role for the Senate to beseen as an important independent player in the parlia-mentary process (Mulgan 1996). The crisis of 1975 cer-tainly demonstrated the Senate’s power, but it was alsoan important factor in prompting the rise of minor par-ties that had no wish to see the Senate used merely asthe tool of opposition parties in the lower house. Thefact that minor parties have held the balance of powerfor most of the period since 1975 has been the majorfactor in legitimating the role of the Senate (Sharman1999a). During a recent period when the governmentmanaged to regain a partisan majority in the Senate,there was a good deal of newspaper commentary to theeffect that the loss of the Senate’s ability to moderategovernment legislation represented a substantial loss tothe parliamentary process and that this worked againstboth the public interest and the long-term interest ofthe government.

The Australian Senate has achieved legitimacy througha sequence of events which can be summarized as:• an electoral system change which reduced the domi-

nance of large party groupings;• the election of minor party and independent sena-

tors who held the balance of power;• the focus of minor party and independent senators

on the legislative role of the Senate and its

that a disagreement with the government and/or thelower house will be seen as a political conflict, not aconstitutional challenge. Its lack of constitutionalpower means that the government may disagree withthe policies of the upper house, but does not see dis-agreements as threatening the system of government.The upper house is a nuisance but its actions cannotprompt a constitutional crisis.

The position of the current Canadian Senate — highpower with low legitimacy — can be seen as the mostunstable quadrant. The upper house poses a continuingsource of uncertainty to the government because ofthe chamber’s constitutional powers, but its low legiti-macy reduces the chances that this will be a problemfor the executive. But the executive is always appre-hensive that a change in partisan alignment in theupper house, the emergence of an issue which placesthe upper house on the side of public opinion in itsdealings with the government or pressures for consti-tutional change will give the upper house the politicalbacking to match its formal powers. Moreover, a clashbetween the government and a high-power but low-legitimacy upper house bent on blocking governmentlegislation is not just a nuisance but can rapidlybecome a serious constitutional standoff.

The Australian SenateThe two non-Canadian cases show how this instabili-ty can be resolved or at least substantially reduced.The Australian Senate moved from the high-powerbut low-legitimacy position of the Canadian Senateto the high-legitimacy quadrant as a consequence ofthe government’s losing its partisan majority in thechamber and the balance of power being held byminor parties and independents. These minor partygroups had an interest in fostering a brokerage rolefor the Senate in dealing with government legislationand using its powers of scrutiny to, as one minorparty slogan had it, “keep the bastards honest”(Warhurst 1997).

Direct popular election had not, by itself, given theSenate high legitimacy until there were majorchanges in the chamber’s composition and, as a con-sequence, its mode of operation. This is of relevanceto the Canadian case, since it demonstrates that directelection of an upper house does not automaticallygenerate wide public acceptance of its role. The elec-toral systems used by the Australian Senate from itscreation in 1901 — plurality voting in the states asmulti-member districts until 1918, then the alterna-tive vote until the 1949 election — had the effect of

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ceased to be a serious obstacle to government legisla-tive programs — and the pressure for change receded.But the increasing malaise about what is now calledthe “democratic deficit” in UK politics, the dissatis-faction with the arcane nature of the UK constitu-tional structure and the rising concern withindividual rights all led to a resurgence of a broadinterest in institutional reform, culminating in theBlair Labour government’s commitment to reform theLords when it won office in 1997.

This had been preceded by several developmentswhich had enabled the House of Lords to increase itsprofile and enhance its reputation. The Life PeeragesAct, 1958, passed by the Conservative Macmillangovernment, in addition to permitting members to beappointed to the Lords without increasing the numberof hereditary peers, made membership open towomen for the first time. The longer-term signifi-cance of this change was the ability of governmentsto appoint members for their political contributionsto the chamber and to the government’s image with-out getting embroiled in the broader social issue ofhereditary peerages. There is no limit to the numberof life peerages, with more than a thousand havingbeen created since 1958 — more than 350 duringPrime Minister Blair’s term of office alone. This givesthe prime minister great power to shape the composi-tion of the Lords, but the power has been used in away which has increased both the political and thesocial diversity of the chamber’s membership.

This process has continued since the Blair govern-ment’s 1999 reform. The House of Lords Act removedall but 92 hereditary peers and set up a House ofLords Advisory Commission, which now vets govern-ment nominees for life peerages for their proprietyand can also advise the prime minister on nonparti-san appointments.11 A fixed number of opportunitiesfor the appointment of these independent peers isallocated by the government, and the AdvisoryCommission solicits suggestions from the public; theprime minister retains the final say. By April 2008,some 47 of these independently selected life peershad been appointed, further contributing to the parti-san diversity of the chamber. These developmentshave reinforced the status of the Lords and made itmore difficult for the government to brush asideopposition from the chamber. Despite its nonrepre-sentative and unelected nature, this has enabled theLords to claim that it has a legitimate function tochallenge the government in the parliamentaryprocess and for this claim to be broadly accepted.

committee work inquiring into government activi-ties and matters of public interest;

• the growing willingness of the Senate to use itspower to amend and, if necessary, reject govern-ment legislation;

• the change in the recruitment of candidates tofavour able and politically well connected sena-tors; and

• the evolution of protocols between governmentsand minor party senators to regularize consulta-tion over the introduction of legislation.This last characteristic is important because it

shows that governments have begun to see dealingwith a Senate over which they do not have partisancontrol as something which represents normal, ratherthan abnormal, politics. Consultation between minorparty senators and the government has been aidedby the selection process for Senate candidates, whichhas ensured that some of the abler government min-isters have been senators, providing opportunities forboth formal and informal negotiations. This rou-tinization of consultation is one of the strongestindications of the acceptance of an independentSenate as a legitimate component of the Australianparliamentary process.

The House of Lords The House of Lords has had a more complicated his-tory but, in its most recent phase, has much in com-mon with the Australian experience. The loss of itsveto power over legislation in 1911 and 1949appeared to set the Lords on a trajectory to eventualabolition. As a picturesque feudal anachronism, itappeared to have little in common with the majori-tarian, executive-dominated style of politics whichhad come to typify UK politics. Its place in the low-power and low-legitimacy quadrant of figure 1 madeit a prime candidate for having its power furtherreduced or being reconstituted as some advisory bodyor disestablished entirely.

Most of the many accounts of why this did nothappen are based on divisions within the LabourParty when in government about the rival claims ofreform and abolition (see Dorey 2006). The mostgraphic example was the Wilson Labour govern-ment’s 1969 bill to phase out the hereditary compo-nent of the Lords, which was defeated by a coalitionof Conservative opposition members who resistedchange and rebel Labour backbenchers who wantedmore drastic change. This embarrassment discouragedfurther attempts at reform — the Lords had already

but would not be hard for most current Canadian citi-zens to meet (section 23).

The major constraint on the prime minister’s discre-tion to appoint senators is the limit on the size of theSenate. If a government inherits a Senate with novacancies, there is no opportunity to appoint new sena-tors; if the Senate has a large partisan majority hostileto an incoming government, there is no way to changeits complexion. This limit is critical for understandingthe dynamics of the operation of the Senate and theattitude of governments to Senate reform. If, for exam-ple, there were no limit on the size of the Senate, agovernment could, as an extreme measure, swamp ahostile Senate majority by appointing new senatorssympathetic to it. Appointing new lords — both beforeand after the creation of life peerages — has alwaysbeen an option for UK governments faced with a recal-citrant House of Lords; in Australia, during the timethat membership was by appointment, neither the NewSouth Wales nor the Queensland legislative council hadconstitutional limits on the number of members.13

Its fixed size intensifies the partisan edge to the atti-tude of governments to the Senate, and there is norecourse to the large-scale creation of senators beyondthe eight provided for in section 26 of the ConstitutionAct, 1867. Without these limits, the Senate would stillbe important and would remain a significant actor inthe legislative and parliamentary process, but its exis-tence would not involve the fear that it might blockkey government legislation without redress for the gov-ernment; in such case, the government could simplyappoint enough new senators to give it a majority. But,as presently constituted, the Senate retains the powerto wreak havoc on a government’s legislative programand to use its powers of investigation and inquiry toundermine government policies.

Of course, one person’s unprincipled Senate obstruc-tion is another person’s necessary and effective parlia-mentary scrutiny of government and its legislation. TheMulroney Conservative government, particularly from1985 to 1990, faced repeated challenges from a Liberalmajority in the Senate. While acknowledging the parti-san battle in the Senate during this period and the sub-sequent years to 1993, a respected scholar of theCanadian parliamentary process has argued that theSenate operated on many occasions as a chamber ofsober second thought (Franks 2003, 165). This, how-ever, does not make Senate challenges any less threat-ening in the eyes of governments.

These apprehensions aside, for the prime minister,the power over appointments to the Senate generates

This is not the case in Canada, and it is thedynamics of the Canadian Senate and the proceduresfor the appointment of senators to which we shouldnow turn our attention.

The Prime Minister and anAppointed Senate

I n suitably arcane language, the Constitution Act,1867 specifies that “The Governor General shallfrom Time to Time, in the Queen’s Name, by

Instrument under the Great Seal of Canada, summonqualified Persons to the Senate” (section 24). By cus-tomary practice, sanctified by the minutes of a meetingof the committee of the Privy Council in 1920, the rec-ommendation to the governor general for the appoint-ment of senators is the “special prerogative of thePrime Minister” (Dawson 1933, 125). Membership ofthe Senate is thus the gift of the prime minister alone.

The exercise of this power has few substantiveconstraints but a great many procedural ones. Section22 of the Constitution Act specifies that 24 senatorsare to be appointed from each of the four regions(divisions) into which the act divides Canada:Ontario, Quebec, the Maritime provinces and theWestern provinces. There are additional specificationsfor individual Maritime and Western provinces, andprovisions for six senators to be appointed fromNewfoundland and Labrador and one each from thethree territories, making a total of 105. In certain cir-cumstances (sections 26-28), the governor generalmay appoint four or eight additional senators,12 oneor two each from the four divisions set out in section22, to create a Senate with a maximum complementof 113 members. This procedure for the appointmentof supplementary senators has been used only once,when the Mulroney government appointed eightadditional senators in 1990 to enable passage of leg-islation establishing a national goods and servicestax over the vigorous objections of the oppositionLiberals (for a summary of these events, see Franks2003, 161-3).

Apart from these regional requirements — andadditional rules for Quebec senators to be chosenfrom electoral divisions within the province — thereare no special qualifications for becoming a senatorexcept a minimum age of 30 and the need to fulfillcitizenship, residence, solvency and property require-ments which, at $4,000, may have been high in 1867,

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sympathizers to give the government a Senate major-ity, notwithstanding the lack of progress on a gov-ernment bill providing for provincial elections toadvise the selection of Senate nominees (Bill C-20,the Senate Appointments Consultation Act). And,should his government face imminent defeat, there isalways the possibility, however distant and at oddswith his political commitment to Senate reform, thatthe prime minister may choose to fill all Senatevacancies before he leaves office to reward his sup-porters and, in time-honoured fashion, to denypatronage to his successor.

The prime minister’s power over the appointmentof senators is the source of the Senate’s greatest lackof legitimacy and the greatest barrier to Senatereform. But to remove the prime minister’s controlover the composition of the Senate is not just toreduce the opportunities for patronage, but to threatenthe government’s familiar role in the parliamentaryprocess. Under the current system, the Senate’s poweris effectively constrained by the partisan appointmentprocess. This clearly works to the benefit of govern-ments with majorities in the Senate, but even a gov-ernment which faces a hostile Senate can use thechamber’s lack of legitimacy to denigrate its resist-ance and to impugn the opposition for using anundemocratic and unrepresentative institution tothwart the will of the majority of a popularly electedhouse. Nothing indicates this more forcefully thanrecent legislation nominally aimed at Senate reform.

Senate Reform as a TacticalDevice

T he bills introduced by the Harper governmentin 2006 and 2007 are examples of the primeminister’s power to set the terms of political

debate, the tactical goals to which Senate reform canbe put and the dominance of partisan concerns in theparliamentary process. Two bills affecting the compo-sition of the Senate were before Parliament in 2008:C-19, An Act to Amend the Constitution Act, 1867(Senate Tenure);14 and C-20, the Senate AppointmentConsultations Act.15 The first of these bills proposedthe introduction of eight-year nonrenewable termsfor senators in place of the current appointment forlife until retirement at age 75. The summary of thebill published by the Parliamentary Information andResearch Service (Canada 2007a) included extensive

large benefits. The most obvious are patronage andpartisan gain: the ability to reward those who haveassisted the government and the prime minister, tosignal government concern with a particular issue,group or locality, to provide a consolation prize forthose who have missed out on other governmentpositions and to enhance the government’s appeal byappointing a few symbolic third-party or nonpartisansenators. All of these appointments are likely to con-tribute to the ranks of those who support the party ofthe prime minister who made them senators. If theseappointments build or maintain a partisan majority,the government can feel secure that the Senate isunlikely to cause it any serious problems.

Prime ministerial appointment has another, lessobvious benefit to the government of the day. No gov-ernment relishes the existence of a powerful and inde-pendent actor in the parliamentary process; anythingwhich limits the significance of the Senate is to be wel-comed. The arbitrary, partisan and personal nature ofthe selection of senators by the prime minister reducesthe legitimacy of the chamber, no matter how illustri-ous the appointments. This helps to discredit the workof the Senate and undermines its committee inquirieswhen they oppose government policies. Governmentssupported by a House of Commons majority can alwaysstress their popular mandate and the correspondingweakness of a Senate appointed on the personal recom-mendation of previous prime ministers.

Prime ministers who are able to create or maintaina partisan majority and leave office with few vacan-cies in the Senate can take satisfaction in anotherpartisan bonus: the creation of a poison pill for anincoming government of a rival partisan colour. Thelarger the Senate majority, the greater the difficultyfor the new government and the greater the opportu-nity for the former governing party, now in opposi-tion, to use the Senate to embarrass the government.

The exclusive power which resides with the primeminister to recommend appointments to the Senatealso provides the opportunity not to appoint senators.This may seem a perverse benefit, but it has beenused by the Harper government to orchestrate a cam-paign to support legislation for Senate reform. At theend of April 2008, there were 14 unfilled Senatevacancies but 60 of the continuing senators wereLiberals. It may be that, if the number of Liberal sen-ators drops below 53 — the number required to con-trol the Senate — while the Harper governmentremains in office, the prime minister’s resolve mayweaken and he will appoint enough Conservative

elections for Senate nominees, on pain of eventuallylosing their representation in the Senate (Flanagan2007).17 The only exception to this policy to date hasbeen the appointment of Michel Fortier to both theSenate and cabinet in 2006 to enhance the latter’s rep-resentation from Quebec and to give Montreal a seniorrepresentative in the government.

An alternative explanation of the Harper govern-ment’s actions is that this scheme had little to do withSenate reform but was simply a way of embarrassingthe Liberal majority in the Senate, further reducing thelegitimacy of the Senate while placating those in theConservative party who wanted Senate reform. Evidencefor this is not hard to find. There was no suggestionthat, if the scheme were fully implemented, the Harpergovernment would relish an upper house composed ofsenators with an added sense of their own legitimacy,whose partisan loyalties could be very different fromthose of the government of the day. The prime ministerhad even mused about the possibility of abolishing theSenate. The scheme made a lot more sense as a deviceto confuse and discredit the Liberals as an oppositionparty which controlled a majority in the Senate. For agovernment without a partisan majority either on thefloor of the House or in the Senate, proposals for Senatereform that involved limited terms and an electoralcomponent would challenge the Liberal Party’s demo-cratic credentials and, if rejected, help to undermineSenate opposition to government legislation. Senatereform of this kind could be seen as designed explicitlyto weaken one of the strongest weapons of the opposi-tion Liberal Party, which was its control of the Senate.The demonstration of the Senate’s reluctance to sanc-tion changes to its current partisan composition —amply demonstrated by the hostile treatment of bothbills by the opposition in the House and the Liberalmajority in the Senate — would further reduce thechamber’s standing in the eyes of the public.

There is also the possibility that the Harper govern-ment is playing a very long game. If several provincesagreed to hold Senate nominee elections and it beganto look as though there would be sufficient partisanrepresentation from these elections to affect the parti-san balance in the Senate, alarm bells would ring inparty headquarters and premiers’ offices across Canada.This may provide the background for concerted movesfor substantial constitutional reform of the Senate toreduce its powers and, perhaps, to modify its composi-tion. But this is a situation which requires time andmany preconditions over which the national govern-ment has little control.

commentary on the bill and rehearsed its previousintroduction into the Senate in 2006, its treatmentbefore a Senate committee and the Senate’s decisionnot to proceed with it. It also included justificationfor the bill and an opinion that changing the term ofsenators did not fall within the class of subjectsrequiring constitutional change but could be alteredby legislation of Parliament acting alone.

Bill C-20 was much more adventurous. It main-tained the current monopoly of prime ministerialnominations for Senate appointments, but providedfor “consultations” which would permit the primeminister to recommend candidates who had won elec-toral contests in each of the provincial jurisdictionsfor which there were vacancies. The bill provideddetails about the way these elections would be run:they would achieve proportional representation usingthe single transferable vote, they could be held at thesame time as provincial general elections and thecomponents of electoral administration might be dele-gated to provincial administrative bodies. Again, thelegislative summary provided details, explanationsand justification, and suggested that, “In future years,it may be that an informal practice of appointing sen-ators from a list of selected nominees will transformitself into a constitutional convention that would‘constrain’ the prime minister in making his or herchoice for Senate appointments” (Canada 2007b, 19).

At first glance, these bills could be seen as a leg-islative scheme to create an elected Senate withoutmaking formal changes to the Constitution. Thisroute had been flagged by the Progressive Con-servative government of Alberta when it held anelection in the province in 1989 for a nominee to filla Senate vacancy. The winner, Stan Waters, was sub-sequently appointed by the Mulroney Conservativegovernment in 1990. When elections for Senate nom-inees were held again in Alberta in 1998, Liberalprime minister Jean Chrétien declined to appoint such“senators in waiting” (for background and commen-tary, see Smith 2003a, 103-4). The experiment wasresumed in Alberta with Senate nominee elections in2004;16 upon taking office in 2006, Harper, as aConservative prime minister and former member ofthe Alberta wing of the party committed to extensiveSenate reform, appointed the winner, Bert Brown, tothe Senate. As soon as the prime minister indicatedthat he would appoint to the Senate only nomineeswho had been chosen by provincial elections, thegrand plan was revealed: a legislative scheme backedby executive discretion to force the provinces to hold

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South Wales lower house, the Legislative Assembly, atodds with a majority in the appointed LegislativeCouncil. Two consequences followed. The first wasperennial debates of varying intensity over the legiti-macy of a nonelected body thwarting the popularlyelected government and demands for reform or aboli-tion of the council.

The second consequence was the politicization ofthe governor’s role in appointing new members of theLegislative Council. When a new government tookoffice and found that its legislation was beingblocked by a hostile upper house, premiers could goto the governor and request the appointment ofenough new upper house members to give the newgovernment majority support in the council. Gov-ernors were reluctant to do this — blanket acceptancewould reduce the role of the council to a cipher anddestroy any claim to its being a house of review. Butignoring the wishes of a popular government andrejecting the advice of a premier was politically risky.With varying degrees of skill, governors aimed torestrict any increase in the size of the council unlessthe subject of the conflict with the council had beenan explicit part of the new government’s electoralmandate. This was especially the case where con-tentious legislation concerned the amendment of thecouncil’s composition and powers.

The rise of the Australian Labor Party in the 1890sand the increasing frequency of Labor Party majoritygovernments across Australia after 1900 intensifieddebate over the powers of legislative councils, espe-cially the undemocratic nature of appointed councils.The Labor Party was committed to abolition and, inQueensland, the Theodore Labor government, afterconsiderable political turmoil and manoeuvring, con-trived to abolish that state’s Legislative Council in1922 (McMinn 1979, 150).

New South Wales proved to be a more intractablecase. Labor premier Lang had tried on several occa-sions during the 1920s and 1930s to abolish theLegislative Council, but was finally thwarted by hisdismissal in 1932 as premier by the governor in theturmoil of Depression politics. But the removal ofLang and the installation of a conservative govern-ment did not remove the problem of the council —there remained wide agreement that it needed to bereformed and its composition determined by somemethod other than appointment by the governor onthe recommendation of the premier.

Many options were canvassed, but the one chosento operate from 1934 until 1978 was a halfway house

Notwithstanding these speculations, the mostinteresting long-term consequence of this scheme forSenate reform was not its rejection by Parliament —its short-term partisan success can be seen asdependent on its nonacceptance by the Liberals — buthow it indicated the ways in which the existingappointment procedure for senators might be modi-fied by a combination of new statutory machineryand the willingness of the prime minister to vary thecustomary appointment practices.

Modifying an Appointed UpperHouse: The Australian Experience

I n Australia, bicameralism has always been tiedmore closely to the politics of resisting radicalaction by governments than it has in Canada. The

early extension of the franchise for legislative assem-blies in the Australian colonies created apprehensionamong local elites and in the Colonial Office inLondon that governments supported by adventurouslower house majorities might use their power tothreaten propertied and commercial interests. As aconsequence, the arrival of responsible governmentfor the Australian colonies after 1856 was linked tothe continuation of powerful legislative councils asupper houses in new bicameral parliaments. But therewas debate over how these upper houses should bestbe constituted.

Two models emerged. The more popular methodwas to ensure that elected legislative councils wouldmaintain a conservative bias by having a franchisebased on substantial property qualifications. In thisway, the veto power of the upper house on all legisla-tion, including financial legislation, would be giventhe legitimacy of popular election, albeit on a re-stricted franchise. The rival model, initially adoptedby New South Wales in 1856 and then by Queenslandin 1859, was to have an appointed legislative councilsimilar in composition to the Canadian Senate butwith no limit on the number of councillors as long asthe governor was willing to appoint them on therecommendation of the premier. The adoption of thissystem had much to do with the preconceptions ofcolonial politicians and the lack of familiarity withresponsible government in New South Wales duringthe 1850s (Clune and Griffith 2006, 65-75).

Over the following 70 years, issues emerged whichput governments supported by a majority in the New

house with the balance of power held by minor partieswas likely to be of more long-term advantage to Laborgovernments than one which might be controlled by abelligerent opposition.

But the period of indirect election was a usefulexperiment. It probably made the transition to a direct-ly elected chamber more acceptable by demonstratingto governments that indirect election would, in thelonger term, do little to enhance the public acceptanceof the institution. And an indirect election which pro-duced a chamber controlled by the governing or theopposition party could create as many difficulties asone chosen by a more democratic system. It is interest-ing to speculate about the changes that could havegiven the indirectly elected council a more diverse par-tisan composition and one that neither of the majorparty groupings controlled. One solution would havebeen to give an independent appointing authority thepower to choose a small number of nonpartisan andthird-party members. This approach was unthinkable inthe highly charged partisan climate of the early 1930s,but the example of the House of Lords AppointmentsCommission makes it more of a possibility today.

Propositions for Successful SenateReform

F rom the discussion and surveys of the experienceof similar UK-derived parliamentary systems, it isnow possible to set up a series of propositions

about the direction for successful Senate reform. Asthis paper has argued, there must be congruence amongthe assumed purpose of the Senate, the goals for reformand the methods through which reform is to beachieved. Smith (2003b) uses much the same procedure,although his “principles” are focused more on protect-ing the dominant position of the House of Commonsthan are the propositions listed below.

The purpose of the Senate is effective scrutiny The greatest contribution of an upper house to a con-temporary parliament is scrutiny of legislation andinquiries into the conduct of the executive and itsagencies. The effective discharge of this function is thefoundation on which the current reputations of theAustralian Senate and the House of Lords have beenbuilt. Effectiveness requires two components: a consti-tutional one, that the chamber has sufficient formalpower to amend and delay legislation; and a political

between modification of the process of appointmentand direct election. Membership of the council was setat 60 (the lower house, the Legislative Assembly, had90 members in 1934). Each member served a twelve-year term, and a quarter of them retired every threeyears. These 15 vacancies were filled by indirect elec-tion — not by the public, but by the 90 members ofthe Legislative Assembly and the 45 nonretiring mem-bers of the council. A system of proportional repre-sentation by the single transferable vote was used forthe elections. The combined effect of staggered three-year terms and proportional representation meant thatthe partisan composition of the Legislative Councilchanged only slowly, reflecting changes in the partycomposition of both the lower and upper houses. Thisapproach had short-term benefits for the conservativeparty in power in 1934, but it also expressed the beliefthat the council should be a stabilizing factor in thepolitical process (Turner 1969; Clune and Griffith2006, 320-51).

The success of this system was mixed. The reformsremoved the problem of appointments and, by takingaway the Legislative Council’s power to veto financialbills, reduced its potential to precipitate a constitu-tional crisis. The ability of a future government toamend the composition or powers of the council wasconstrained by the requirement that the legislationgain popular endorsement through a referendum. Theproblem of the council’s legitimacy remained, howev-er, because of both its lack of direct representationand, of greater importance, its domination by gov-ernment-controlled majorities or, occasionally,majorities controlled by the opposition. In both cir-cumstances, party discipline and institutional inertiagreatly reduced the standing of the chamber in muchthe same way as the Australian Senate had been untilits rejuvenation by a change to the electoral systemand the enlivening effect of minor parties on the roleof the chamber.

In 1978, the New South Wales Legislative Councilbecame a directly elected chamber chosen by propor-tional representation,18 a model pioneered for legisla-tive councils by South Australia in 1975 and nowadopted, with variations, by four of the five remain-ing legislative councils in Australia.19 These chambersare now valued for their representativeness and theiroften-constructive contribution to the parliamentaryprocess (Stone 2002). These transitions, all of whichwere undertaken by Labor Party governments, result-ed from the realization that abolition was unlikely togain popular support and the belief that an upper

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— and occasionally resisted — attempts at governmentmanipulation of their activities, even when the govern-ment had a majority in the upper house. As Norton(2003) points out for the House of Lords since 1999, ifthe government has few carrots or sticks to enforcediscipline, party allegiance is a matter of temperamentrather than necessity (note also Shell 1992, 64-98). Butit is unclear whether such a view of party would oper-ate among members of the governing party withoutstructural change in the selection procedure for mem-bers of the upper house and the chamber’s acquisitionof an established reputation as an independent actor inthe parliamentary process.

Control of a second chamber by the largest opposi-tion party in the lower house may not be much of animprovement over control by the governing party.Opposition control makes it difficult for the partyleader in the lower house to resist the temptation tosee the upper house as no more than a component ofstrategies to win the next election. The experience ofAustralian upper houses in this position is that thechambers’ review function is subordinated to headline-grabbing attacks on the government and to using theinquiry process to investigate specific governmentmisdeeds rather than to generate information forlong-term reform. Partisan, short-term and sporadicbest describe the direction of parliamentary activityin upper houses controlled by an opposition partymajority.

As both the House of Lords and the AustralianSenate have shown, the ability of minor party andindependent members to hold the balance of power inthe chamber is the key to the development of aneffective review function (Sharman 1999b). This isnot because they are more virtuous but because theyare interested in legislative politics. The payoff forsuch members is not gaining executive office and theperks of government but demonstrating to the publicthe utility of their role in forcing the government tonegotiate on controversial legislation and to discloseinformation on matters of public interest. This doesnot prevent grandstanding and partisan attempts toclaim media attention, but it means that these mem-bers have a long-term interest in establishing andmaintaining structures for parliamentary scrutiny oflegislation and executive action. In particular, theystand to gain from a well-developed and well-resourced committee system.

The House of Lords and the Australian Senate alsodemonstrate the differing ways in which minor par-ties can affect the dynamics of an appointed chamber

one, that the chamber is not controlled by a majorityof members which acts on the instructions of thegoverning party in the lower house. Both of thesecomponents need elaboration.

Governments are not persuaded by sweet reason-ableness; effectiveness requires the upper house tohave enough formal power to force the governmentto consider the cost of overriding the upper cham-ber’s decisions, even if this is possible. Substantialdelay of at least a year might be the minimumrequirement if delay is the only option — it is clearfrom the experience of the House of Lords that thetwo-year delay on nonfinancial legislation introducedin 1911 was sufficient to act as a substantial check onthe pursuit by government of controversial legislation(Dorey 2006). In the Canadian case, the Senatealready has power to reject legislation without anyoverride from the House of Commons, but the ques-tion of delay may become important if the Senate’spowers were part of a reform package. Whatevermodifications there might be to the legislative powersof the Senate, its privileges and its power to inquireinto the actions of government should not bereduced. Parliamentary upper houses already havepolitical limits on the extent to which they can usetheir powers to investigate the executive; any reduc-tion of the Senate’s formal powers over inquirieswould further undermine its ability to compel wit-nesses and to extract information from governments.

The partisan requirement for effectiveness in anupper house is more elusive. It is clear what is noteffective: government-controlled majorities are unlike-ly to challenge legislation in ways which act as aneffective check, and are even less likely to pursue theinvestigation of executive actions which may embar-rass the government. But government-controlledmajorities are not always the same thing as upperhouse majorities of the same partisan colour as thegovernment. Prime Minister Thatcher, for example,found the House of Lords a persistent and effectivecritic of her government’s legislation, notwithstandingthe nominal majority of Conservatives in the Lords(Baldwin 1999, 42-4). If party members in the upperhouse have a degree of autonomy in the organizationof an upper house caucus and the habit of makingtheir own decisions about the conduct of business inthe chamber, partisanship may be moderated by otherconsiderations in both the scrutiny of legislation andcommittee proceedings. There have certainly beenoccasions when members of the governing party in theupper houses of Australian parliaments have resented

But this is not the Canadian way, and there aremany other reasons a directly elected upper house isnot appropriate. High on the list is the difficulty indetermining what an elected Senate would represent.As previously discussed, party division would certainlybe the main organizing principle for the vote, but anelectoral system structured by province — whatever theelectoral system used — would produce a pattern ofparty representation that would almost certainly differfrom that of the lower house. Whether this would pro-duce a Senate that represented regional interests orsimply transformed the representation of existing par-ties is hard to know, but the likelihood of intense parti-san discord seems likely. This is not a good basis foreffective Senate review as set out in proposition 1.

There are many pragmatic considerations which donot make a directly elected Senate a viable option. Nogovernment wants a powerful upper house under-pinned by a popular mandate. It is true that the Harpergovernment has introduced legislation which looks asthough it is happy to accept that possibility, but, as dis-cussed above, the proposals embodied in Bills C-19 andC-20 appear to be tactical ploys to embarrass theLiberal Party and placate some members of theConservative Party rather than considered attempts atreform. Even if the proposals were intended as catalystsfor long-term constitutional change, the changesrequired to implement an elected Senate would be sub-stantial, complicated and likely to generate strongprovincial opposition, particularly if the amendmentswere to alter the weighting of provincial representationin the Senate. Provincial governments — premiers, inparticular — would not be enthusiastic about a group ofprovincial senators who could claim to speak as repre-sentatives of provincial interests in Ottawa.

In sum, the difficulties, both of principle and prac-tice, of designing a directly elected Senate are over-whelming. Moreover, it is an unnecessarily fundamentaland contentious change to achieve the specific goal of aSenate that undertakes effective scrutiny of governmentlegislation and activities.

Senate reform can best be achieved throughamending the appointment process In the cases of the United Kingdom and the twoAustralian state upper houses discussed above, appoint-ment to the upper house follows the same procedure asthat for the Canadian Senate: appointment is by themonarch on the recommendation of the government ofthe day in the person of the prime minister or premier.But the circumstances and trajectory of the use of the

as opposed to an elected one. In the Lords, minorparty members add further political diversity to aninstitution without strong party discipline for thelarge parties (Baldwin 1999, 32-44; Norton 2003). Insuch a context, whether the minor party membershold the numerical balance of power is not criticalfor the discharge of an effective review function. Thisis not the case in the Australian Senate, where strongparty discipline in the governing and major opposi-tion parties and dependence on the goodwill of stateparty machines for their endorsement at electionshave made senators very sensitive to party direction.It is only when minor party and independent senatorshold the balance of power that the Senate uses itsreview powers effectively.20 Given the nature of thesystem of proportional representation used to electthe Australian Senate and the continuation of thetrend for 20 percent of the electorate to favour Senatecandidates from other than the two largest partygroups, the chances are that minor party and inde-pendent senators will usually hold the balance ofpower in the chamber.

Partisan balance of some kind is as much a criticalcomponent of the process of effective parliamentaryscrutiny as the powers of the chamber. Only by con-tinuing to use its reviewing power is a second cham-ber able to find a place in the governmental processwhich is broadly accepted as legitimate by both thepublic and the government of the day.

Direct election of senators is not a plausiblestrategy for reform of the Senate The proposition that direct election of senators is nota plausible strategy for Senate reform is shorthandfor a number of assumptions about the role of theSenate. While direct election greatly enhances achamber’s “input legitimacy” (Kelso 2006), it raisesmany difficulties in the Canadian context. The mostserious is that Canada does not have a tradition ofstrong elective bicameralism involving the accept-ance that the dominance of a government with amajority in the lower house may be constrained by apowerful upper house that claims an equal mandate.It has taken the Australian political system the betterpart of 150 years to come, grudgingly, to an accept-ance of the benefits of such an arrangement for rep-resentative democracy (Stone 2002). From one pointof view, this is a pity, because it denies Canada thebenefits of the symmetry of a powerful upper housematched with a democratic legitimacy that cannot beacquired by any other means.

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some proportion, fixed or variable. The other optionis partisan nominations derived directly from the par-ties represented in the House of Commons or througha nominating committee or an appointments commis-sion. A critical question is whether there should be anattempt to insert an element of regional consultationin the appointment process, by an appointmentscommission or by a process involving the parties orby some other procedure (see Stilborn 2003).

There is a further option, that of indirect election.In the institutions examined in this paper, only theNew South Wales Legislative Council between 1934and 1978 employed this method as a substitute for anappointed house rather than as a supplement to it.For the Canadian Senate, several suggestions haveinvolved indirect election, most notably the Trudeaugovernment’s “House of the Federation” proposal setout in Bill C-60 in 1978 and the reconstitution of theSenate envisaged by the Charlottetown Accord in1992.23 Both proposals considered legislatures asagencies for selecting senators: Bill C-60 provided forhalf the Senate to be chosen by the members of theHouse of Commons and half by provincial legisla-tures; initially, the Charlottetown Accord proposedthat senators be chosen by direct election, but itsfinal form included a provision for senators to beselected by provincial legislatures rather than directelection if the provincial government so chose(Stilborn 2003, 35).

The difference between these two proposals reflectsdifferent perspectives on the kind of partisan balanceto be achieved by indirect election. Bill C-60 wasintended to provide a balance between national andprovincial partisanship, reinforced by its choice ofproportional representation as the electoral formula,while the Charlottetown formula made the Senate amanifestation of provincial partisanship with no spec-ification of the electoral system to be used for eitherdirect or indirect elections. The Charlottetown Senatemight have produced a measure of partisan balance inthe chamber, but this was not a feature of its design.

Both the Bill C-60 and Charlottetown proposalsintended to use indirect elections to involve provincialelectorates in the selection of senators, but indirectelections can be used for other purposes. If the goal isto achieve a Senate with a partisan balance whichtracks, even if slowly, the pattern of representation inthe House of Commons, then members of the Housecan be the electorate, with elections based on propor-tional representation, as in New South Wales. Underone version of such a scheme, Senate vacancies would

appointment procedure have differed widely amongthe chambers. For the House of Lords, outside theprocess of ennoblement, the appointment of life peersis only 50 years old and the current mixed procedureof appointment — where most life peers are nominatedby the government but a small number are nominatedby the House of Lords Appointments Commission —has been in place for less than ten years. TheAustralian experience of appointed upper houses wasterminated either by the abolition of the chamber(Queensland in 1922) or by the rejection of appoint-ment as a suitable method of selecting members (NewSouth Wales in 1934). Canada has been unusual in thepersistence of the appointment process since the origi-nal design of the Senate in 1867.

There have been good reasons for this, chief amongthem the fixed size of the Senate and the specificationof regional quotas — none of the other appointedchambers reviewed have had such constraints. Theregional components are not only constitutionallyenshrined and politically sensitive; they play a role incalculating the minimum number of seats in theHouse of Commons allocated to some provinces.21

Altering the formula requires broad agreement andconstitutional change — which the experience of theCharlottetown Accord of 1992 shows is very difficultto achieve.22 This means that the first question to beasked about amending the appointment procedure iswhether the size and regional constraints on Senatemembership are to be maintained. If the answer is yes,change must fit within the constraints of the currentcomposition of the Senate. This does not mean thatconstitutional change is precluded — altering the for-mal process of appointment, for example, is likely torequire such a change — but that arguments overprovincial representation would be less central to thedebate. If the answer is no, reform of the Senate islikely to be part of a broad-based constitutionaldebate about the institutions of the national govern-ment in a federation. Again, if the goal of the Senatereform is to achieve a chamber with effective review-ing power, inviting wholesale constitutional change isan unnecessarily contentious method.

What choices are on the table if the current Senateof 105 members is maintained with the existing pat-tern of regional apportionment? If we accept thatpartisan balance of some kind is to be the goal of theappointment process, two methods used by the Houseof Lords are available. One is an independentappointments commission to select nominees; thiscould apply to all appointments or, as with the Lords,

The prime minister needs to be persuaded ofthe benefits of reformThe prime minister’s unfettered power over theappointment of senators, and the way it has been usedfor partisan purposes, has been the most important fac-tor in undermining the legitimacy of the Senate. Butthat power also generates many benefits for the primeminister and the governing party. Executive officers donot give up power voluntarily unless there is a clearpayoff. Unfortunately, the experience of reforming theappointment process for the House of Lords suggeststhat the payoff must be significant. The creation of lifepeers for the Lords was triggered not by any commit-ment to the creation of balanced partisanship in thechamber, but to avoid the political embarrassment ofperpetuating a hereditary aristocracy. The Labour Partywas also committed to reforming the Lords as part of alarger package of constitutional reform in response topolitical pressure from its rank and file, even thoughthe topic led to disputes within the caucus and govern-ment (Dorey 2006). On the other hand, favourableassessments of the reform — despite continuing politi-cal pressure for some form of direct election — havebrought praise to the Labour government while stillleaving it discretion over appointments.

For Canadian Senate reform, however, there appearto be few immediate payoffs for a prime minister. Infact, as the Harper government has shown, an unre-formed Senate can be used to considerable politicaladvantage. A reformed Senate could cause problems fora government because of the enhanced public supportof its scrutiny of government legislation and activities.The only clear benefit of a Senate in which minor par-ties and independents — that is, neither the governingnor major opposition parties — held the balance ofpower is that it would remove the tactical advantage ofdenying the ability of an opposition party acting aloneto use the Senate as a partisan weapon against the gov-ernment. This, however, may be no small benefit. It wascertainly the major motivation for Australian stategovernments to introduce proportional representationfor the election of upper house members — even whenthe Labor Party has had a chance to control bothchambers: denying any party the ability to control theupper house alone is strategically more valuable thanhaving periods when control varies between the gov-ernment and the opposition.

Occupying the moral high ground may also be usefulfor a government which introduces reform, especially ifit is popular, fulfills an election promise and catches anopposition unwilling or unable to mount a strong

not be filled until there were three or more vacancies.Once this number had been reached, an electionwould be held by secret ballot with each party repre-sented in the House of Commons nominating a candi-date for each vacancy. A government with a majorityin the House would likely gain two of the threevacancies, with the third gained by the largest opposi-tion party. Over time, the partisan balance in theSenate would change to respond to changing partyfortunes in House of Commons elections. The Senatecould, of course, be made more balanced and respon-sive to other parties by aggregating a larger numberof vacancies — the more vacancies to be filled, themore proportional the result. Such a system could beused to fill all vacancies or to work together with anindependent appointments commission which could,for example, be responsible for filling every fifthvacancy. Such a mixed system of indirect electioncould work with the existing terms of senators, orwith fixed terms as long as they were at least eightyears in duration and staggered so as to have a con-tinuing series of appointments.

In the absence of a change to the Constitution,indirectly elected senators would still have to be rec-ommended formally for appointment by the primeminister. It is possible that the actors might broadlyagree on the desirability of such an amendment, butit is equally possible that regional or partisan issueswould make such a change as controversial as previ-ous proposals have been. Whether constitutionalchange is a component or not, there are many varia-tions possible on the themes of appointment andindirect election, but the goal is the same: to ensurethe maintenance of a rough partisan balance in theSenate; only with such a balance can the Senate pur-sue its review function effectively.

There remains the question of the number of sena-tors, if any, that the prime minister should be able torecommend without the use of any additional proce-dure. This remains the source of most new appoint-ments to the House of Lords, but there is no limit tothe membership of the Lords. In contrast, theCanadian Senate’s fixed number of members com-bines different modes of selecting members and fewvacancies. Generating batches of, say, 21 vacancies —a fifth of the Senate — with each batch to be filled bytwo or three appointment procedures, requires a sub-stantial change to the terms of senators and a compli-cated formula for the transition period. But this mightbe required if the prime minister were anxious toretain some personal discretion to choose senators.24

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The Senate must prepare the ground forreform and hope for partisan commitment Preparing the ground and hoping for partisan com-mitment to reform is more a process than a model forchange, but without it Senate reform will remain atopic of speculation rather than of action.25 Yet thereis no way of knowing in advance what will triggerthe circumstances favourable for reform, short of amajor constitutional crisis. For the House of Lords, itwas a process which emerged under the Labour gov-ernment of the years immediately after the end of theSecond World War and picked up momentum with arevolt against unpopular legislation proposed by theThatcher government. Under Thatcher, the Lordscould claim backing by public opinion in its criticismof contentious government legislation. Whatstrengthened its position was that it was nominally aConservative chamber complaining about the actionsof a Conservative government. Similarly, the fiercestdebates over proposals for reforming the Lords tookplace within the Labour Party. These intraparty dis-putes help to reduce the view of upper house reformas simply a partisan tactic to embarrass the opposi-tion. The Harper government’s bills for Senate reformfall into this latter category. Whatever the motivation,the proposals were not the result of any bipartisandiscussion, but were greeted by the opposition partiesas an attack on the Senate Liberal majority ratherthan the basis for constructive change.

The Australian experience of changes to the com-position of upper houses varies from the brutal parti-san attack on the Queensland Legislative Council in1921 (McMinn 1979, 150) to a reform achieved as anincidental consequence of electoral changes made tothe Australian Senate in 1948 for other purposes(Sharman 1999a; see also Uhr 1995). More recentchanges to Australian state upper houses haveretained a partisan edge, but disputes have been overthe design of a reformed chamber rather than theneed for change (Stone 2002). The example of theincreased status and effectiveness of the AustralianSenate since the 1960s gave state upper houses goodreason to support reform measures and to argue thatsuch changes were good for the parliamentary systemas a whole rather than simply an expression of parti-san advantage.

This may be the route for the Canadian Senate. Ifthe chamber itself can develop proposals for changewhich are seen as remedying a systemic defect in theCanadian parliamentary process, this could be a wayto persuade the public that Senate reform is desirable,

argument against change. In the Canadian context, theprime minister will require at least some symbolic pay-off, and reduction of the Senate’s power might be anacceptable one. It would also show, if supported by theSenate itself, that the Senate was serious about reform.

The power of the Senate to veto financiallegislation should be removed and its powerto veto other legislation should be replaced bythe ability to impose substantial delay Successful Senate reform depends on the chamber’sattaining a congruent relationship between its powersand its legitimacy. Given Canada’s parliamentary tra-dition, the Senate’s use of its powers to block finan-cial legislation and precipitate a constitutionalconfrontation is unlikely ever to be seen as acceptableby the public. This means that the Senate can neverhave the legitimacy to exercise its powers fully and, ifits powers are unchanged, it will remain a threat,however distant, to the government of the day. It isnot sufficient to argue that the Senate’s current powerto veto financial legislation would never be usedbecause of convention. This may well be true of othersections of the Constitution Act, 1867 — such as thepower under section 90 to disallow provincial legisla-tion — but such sections do not have the potential tothreaten the existence of the government, unlike theSenate’s power to block financial legislation, whichcould force a government to the polls. The experienceof the denial of supply to the Whitlam government bythe Australian Senate in 1975 and of Whitlam’s dis-missal by the governor general is a reminder thatevents which “never” happen, occasionally do.

The loss of this power could be seen as part of ascheme to reform the Senate and set it on a trajectoryto gain wider public legitimacy. Any constitutionalchange is difficult, but limiting the legislative powerof the upper house by abolishing one of its least-usedpowers would seem a relatively uncontentious pro-posal among the provinces, unlike the vexed questionof regional representation. Such a limitation of itspowers might also make other Senate reforms morepalatable to the executive, and could even be a pre-requisite for the government to take Senate reformseriously. It is true that, as with the reform of upperhouses in Australia and the House of Lords, somewould see this as strengthening an institution theywish to see abolished, and would oppose such reform.But if the supporters of a reformed Senate are seriousabout their wish to achieve change, the attempt atconstitutional amendment must be made.

not just a partisan scheme to attack the prime minis-ter.26 Unfortunately, a minority government is amajor impediment to proposals for Senate reform.Such governments are concerned with the very shortterm and are already subject to a highly effectivecheck on their activities by opposition parties in theHouse of Commons. The most conducive circum-stances for Senate reform may be the period immedi-ately after a rampant government, supported by alarge House of Commons majority, has trampled overwidely held public objections in a way that offendsthe governing party’s members in the Senate. But theevents that trigger reform are unpredictable. The bestthat reformers can do is produce plausible schemesand hope they will be taken up by one of the majorparties.

Conclusion

T he six propositions presented above list the keycomponents to be considered if Senate reform isto be achieved. They are more important for

setting out the problems which must be confrontedby any reform process than for the particular sugges-tions they make. In particular, they point to the inter-ests which must be accommodated: partisanship andthe power of the prime minister. Ignoring these issuesand generating ambitious plans for large-scale con-stitutional change is a recipe for failure. If Senatereform can focus on dealing with the central problemof achieving good and responsive governmentthrough the effective scrutiny of the national execu-tive, then the issue is one of institutional design toharmonize competing interests. For this reason, directelection of the Senate is too ambitious a goal. Butthere is just a chance that amending the selectionprocedures for senators might be congruent with arange of interests concerned with parliamentaryreform, and might provide Canada with the benefitsof an effective system of parliamentary bicameralism.

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Four or Eight Members be added to the Senate, theGovernor General may by Summons to Four or Eightqualified Persons (as the Case may be), representingequally the Four Divisions of Canada, add to the Senateaccordingly.” The circumstances for these appointmentsare not specified, but breaking a deadlock or, as the incase of the Mulroney government, giving the govern-ment a working majority in the Senate are two of themore likely. Note that it is the Queen, rather than thegovernor general, who gives the final approval.

13 Although there could be major political constraints,not least being the reluctance of some governors toappoint more members; see, for example, the problemsof New South Wales premier Lang in 1930-32 (Cluneand Griffith 2006, 296-9).

14 This bill was first introduced in the Senate on May 30,2006, as Bill-S4 (1st Session, 39th Parliament). Afterreferral to the Senate Standing Committee onConstitutional and Legal Affairs and a Special SenateCommittee on Constitutional Reform, the Senateresolved on June 19, 2007, that the bill should notproceed to third reading until the Supreme Court ofCanada had ruled on its constitutionality. The sub-stance of the bill was reintroduced in the House ofCommons on November 13, 2007, as Bill C-19 (2ndSession, 39th Parliament).

15 This bill was first introduced in the House of Commonson December 13, 2006, as Bill-C43 (1st Session, 39thParliament), and was awaiting second reading whenthe House was prorogued. The bill was reintroduced onNovember 13, 2007, as Bill-C20 (2nd Session, 39thParliament).

16 See the Elections Alberta website: http://www.elections.ab.ca/Public%20Website/589.htm.

17 The governments of both Manitoba (New DemocraticParty) and Saskatchewan (Saskatchewan Party) indi-cated in May 2008 that they were considering ways toconsult the citizens of their provinces about the selec-tion of nominees for Senate appointment.

18 Summary details of the electoral changes can be foundin the notes to Legislative Council elections shown onthe Australian Government and Politics Database web-site, http://elections.uwa.edu.au/, under “StateParliament (legislative council, NSW only).”

19 In Tasmania, the Legislative Council retains represen-tation by single member districts, but it has a long tra-dition of control by independent members; the lowerhouse, the House of Assembly, has been elected usingproportional representation by the single transferablevote method since 1909.

20 The period from July 2005 to November 2007 was thefirst occasion since 1981 that the Senate was held by agovernment majority, enabling the government notonly to pass controversial legislation without havingto make amendments, but to reduce substantially theopportunities for Senate scrutiny. Since the currentRudd Labor government lacks a Senate majority, it isassumed that procedures for more extensive Senatescrutiny will be reinstated.

Notes1 Joyal (2003) and Smith (2003a) are but the most

recent. Also note the proceedings of the conference“Transforming Canadian Governance Through SenateReform,” Centre for the Study of DemocraticInstitutions, University of British Columbia, Vancouver,April 18-19, 2007; available at http://democracy.arts.ubc.ca/index.php?id=10651; and “Senate ReformWorking Papers 2008,” Institute of IntergovernmentalRelations, Queen’s University, Kingston, ON; availableat http://www.queensu.ca/iigr/working/senate/papers.html.

2 For a detailed survey of government proposals forSenate reform since the 1960s, see the reviews bySeidle (1992) and Stilborn (2003).

3 It is sometimes unclear whether authors in favour ofabolition disagree with the idea of an upper house forCanada or with the use to which the Senate has beenput; see, for example, Campbell (1978).

4 This may or may not correspond with Sir John A.Macdonald’s much-quoted role for the Senate: “theUpper House...which has the sober second thought inlegislation” (Macdonald [1867] 1951, 35).

5 “The Commission takes the view that in this context,propriety means: first, the individual should be ingood standing in the community in general and withparticular regard to the public regulatory authorities;and second, the individual should be a credible nomi-nee. The Commission’s main criterion in assessing thisis whether the appointment would enhance rather thandiminish the workings and the reputation of the Houseof Lords itself and the appointments system generally”(United Kingdom n.d.).

6 Early in the Mulroney government’s term of office, inthe 1984-85 parliamentary session, the Liberal-dominat-ed Senate delayed the passage of a borrowing bill. AsFranks (1987, 193) notes, “The Mulroney government inresponse threatened to reform the Senate by drasticallyreducing its powers to delay legislation.” But no actionwas taken at the time to implement such a change.

7 Five provinces once had legislative councils, but abol-ished them: Manitoba in 1876, New Brunswick in1892, Prince Edward Island in 1893, Nova Scotia in1928 and Quebec in 1968. Until its surrender ofresponsible government in 1934, Newfoundland main-tained a bicameral parliament.

8 The Irish Seanad may be in this position; see Russell(2000, 234-6).

9 Details of these elections can be found on theAustralian Government and Politics Database website(elections.uwa.edu.au) by selecting Elections, Senate(national results) and viewing election results for yearsbetween 1901 and 1946.

10 A balanced review and analysis of these events can befound in Kelly (1995).

11 See note 5, above.12 Section 26 of the Constitution Act, 1867 provides that,

“If at any Time on the Recommendation of theGovernor General the Queen thinks fit to direct that

Dawson, R. M., ed. 1933. Constitutional Issues in Canada1900-1931. London: Oxford University Press.

Detterbeck, K., and W. Renzsch. 2003. “Multi-Level ElectoralCompetition: The German Case.” European Urban andRegional Studies 10 (3): 257-69.

Dorey, P. 2006. “1949, 1969, 1999: The Labour Party andHouse of Lords Reform.” Parliamentary Affairs 59 (4):599-620.

Flanagan, T. 2007. “Rebuilding the Senate, One Block at aTime.” Globe and Mail, April 23.

Franks, C. E. S. 1987. The Parliament of Canada. Toronto:University of Toronto Press.

_____. 2003. “The Canadian Senate in Modern Times.” InCanadian Democracy: The Senate You Never Knew, editedby S. Joyal. Montreal: McGill-Queen’s University Press.

Johnston, R., A. Blais, E. Gidengil, and N. Nevitte. 1996. TheChallenge of Direct Democracy: The 1992 CanadianReferendum. Montreal: McGill-Queen’s University Press.

Joyal, S., ed. 2003. Protecting Canadian Democracy: The SenateYou Never Knew. Montreal: McGill-Queen’s University Press.

Kelly, P. 1995. November 1975: The Inside Story ofAustralia’s Greatest Political Crisis. St. Leonards, NSW:Allen & Unwin.

Kelso, A. 2006. “Reforming the House of Lords: NavigatingRepresentation, Democracy and Legitimacy.”Parliamentary Affairs 59 (4): 563-81.

Macdonald, J. A. [1867] 1951. Parliamentary Debates onConfederation of British North American Provinces. Ottawa.

McLean, I., A. Spirling, and M. Russell. 2003. “None of theAbove: The UK House of Commons Votes on Reformingthe House of Lords, February 2003.” Political Quarterly47 (3): 298-310.

McMinn, W. G. 1979. A Constitutional History of Australia.Melbourne: Oxford University Press.

McRoberts, K., and P. Monahan. 1993. The CharlottetownAccord, the Referendum and the Future of Canada.Toronto: Toronto University Press.

Mulgan, R. G. 1996. “The Australian Senate as a ‘House ofReview’.” Australian Journal of Political Science 31 (2):191-204.

Norton, P. 2003. “Cohesion without Discipline: Party Votingin the House of Lords.” Journal of Legislative Studies 9(4): 57-72.

Parkinson, J. 2007. “The House of Lords: A DeliberativeDefence.” Political Quarterly 78 (3): 374-81.

Rémillard, G., with A. Turner. 2003. “Senate Reform: Back toBasics.” In Canadian Democracy: The Senate You NeverKnew, edited by S. Joyal. Montreal: McGill-Queen’sUniversity Press.

Russell, M. 2000. Reforming the House of Lords: Lessons fromOverseas. Oxford: Oxford University Press.

Seidle, F. L. 1992. “Senate Reform and the ConstitutionalAgenda: Conundrum or Solutions?” In CanadianConstitutionalism 1791-1991, edited by J. Ajzenstat.Ottawa: Canadian Study of Parliament Group.

Sharman, C. 1990. “Parliamentary Federations and LimitedGovernment: Constitutional Design and Redesign inAustralia and Canada.” Journal of Theoretical Politics 2(2): 205-30.

21 Section 51A of the Constitution Act, 1867 stipulatesthat “Notwithstanding anything in this Act a provinceshall always be entitled to a number of members in theHouse of Commons not less than the number of sena-tors representing such province.”

22 See McRoberts and Monahan (1993) for a review ofthe Charlottetown Accord proposals; and Johnston etal. (1996) for an analysis of the political dynamics ofthe ensuing referendum.

23 For summary and background on the former, seeSeidle (1992, 97-8) and Watts (2006, 95-6). The DraftLegal Text of the accord can be found in McRobertsand Monahan (1993, appendix 2); see also Stilborn(2003, 39-55).

24 The Irish Seanad provides an example of a system ofmixed prime ministerial appointment and electionsfrom a variety of special constituencies; see theConstitution of Ireland, section 18; for brief commen-tary, see Carmichael and Baker (1999, 78-9) andRussell (2000, 68-73).

25 As the Crossman diaries noted for House of Lords reform:“On summer evenings and winter afternoons, when theyhave nothing else to do, people discuss how to reform theHouse of Lords” (quoted in Dorey 2006, 599).

26 See Seidle (1992, 98-103) and Stilborn (2003) fordetails of past Senate committee proposals for reform.

ReferencesAjzenstat, J. 2003. “Federalism and Canada’s Founders: The

Origins of the Canadian Senate.” In CanadianDemocracy: The Senate You Never Knew, edited by S.Joyal. Montreal: McGill-Queen’s University Press.

_____. 2007. The Canadian Founding: John Locke andParliament. Montreal: McGill-Queen’s University Press.

Baldwin, N. 1999. “The Membership and Work of the Houseof Lords.” In The House of Lords: Its Parliamentaryand Judicial Roles, edited by P. Carmichael and B.Dickson. Oxford: Hart Publishing.

Beetham, D. 1991. The Legitimation of Power. Basingstoke,UK: Macmillan.

Campbell, C. 1978. The Canadian Senate: A Lobby fromWithin. Toronto: Macmillan.

Canada. 2007a. Parliament. Parliamentary Information andResearch Service. Legislative Summary: Bill C-19, AnAct to Amend the Constitution Act, 1867 (Tenure).Ottawa. Accessed July 27, 2008. http://www.parl.gc.ca/39/2/parlbus/chambus/house/bills/summaries/c19-e.pdf.

_____. 2007b. Parliamentary Information and ResearchService. Legislative Summary: Bill C-20, SenateAppointment Consultation Act. Ottawa. Accessed July27, 2008. http://www.parl.gc.ca/39/2/parlbus/cham-bus/house/bills/summaries/c20-e.pdf

Carmichael, P., and A. Baker. 1999. “Second Chambers — AComparative Perspective.” In The House of Lords: ItsParliamentary and Judicial Roles, edited by P.Carmichael and B. Dickson. Oxford: Hart Publishing.

Clune, D., and G. Griffith. 2006. Decision and Deliberation:The Parliament of New South Wales 1856-2006.Sydney: Federation Press.

23

Po

litica

l Le

gitim

ac

y fo

r an

Ap

po

inte

d S

en

ate

, by

Ca

mp

be

ll Sh

arm

an

IRP

P C

ho

ice

s, V

ol.

14

, n

o.

11

, S

ep

tem

be

r 2

00

8

24

_____. 1999a. “The Representation of Small Parties andIndependents in the Senate.” Australian Journal ofPolitical Science 34 (3): 353-61.

_____. 1999b. “The Senate and Good Government.” Paperson Parliament 33, May 1999, The Senate and GoodGovernment and Other Lectures in the SenateOccasional Lecture Series 1998. Canberra: AustralianParliament, Department of the Senate. Accessed July27, 2008. http://www.aph.gov.au/Senate/pubs/pops/pop33/c09.pdf

Shell, D. 1992. The House of Lords, 2nd ed. HemelHempstead, UK: Harvester Wheatsheaf.

Smiley, D. 1985. “An Elected Senate for Canada? Clues fromthe Australian Experience.” Discussion Paper 21.Kingston, ON: Queen’s University, Institute ofIntergovernmental Relations.

Smith, D. E. 2003a. The Canadian Senate in BicameralPerspective. Toronto: University of Toronto Press.

_____. 2003b. “The Improvement of the Senate byNonconstitutional Means.” In Canadian Democracy:The Senate You Never Knew, edited by S. Joyal.Montreal: McGill-Queen’s University Press.

Smith, J. 2004. Federalism. Vancouver: University of BritishColumbia Press.

Sproule-Jones, M. 1984. “The Enduring Colony: PoliticalInstitutions and Political Science in Canada.” Publius:The Journal of Federalism 14 (1): 93-108.

Stilborn, J. 2003. “Forty Years of Not Reforming theSenate.” In Canadian Democracy: The Senate YouNever Knew, edited by S. Joyal. Montreal: McGill-Queen’s University Press.

Stone, B. 2002. “Bicameralism and Democracy: TheTransformation of Australian State Upper Houses.”Australian Journal of Political Science 37 (2): 267–81.

Thomas, P. 2003. “Comparing the Law Making Roles of theSenate and the House of Commons.” In CanadianDemocracy: The Senate You Never Knew, edited by S.Joyal. Montreal: McGill-Queen’s University Press.

Turner, K. 1969. House of Review: The New South WalesLegislative Council, 1934-1968. Sydney: University ofSydney Press.

Uhr, J. 1995. “Proportional Representation in the AustralianSenate: Recovering the Rationale.” Australian Journalof Political Science 30 (special issue): 127-41.

United Kingdom. 2000. House of Commons. “Lords Reform:Major Developments Since the House of Lords Act1999.” Research Paper 00/60. London. Accessed July27, 2008. http://www.parliament.uk/commons/lib/research/rp2000/rp00-060.pdf.

_____. n.d. House of Lords Appointments Commission."Vetting." [Accessed 22 September 2008].http://www.lordsappointments.gov.uk/appointees.aspx

Warhurst, J., ed. 1997. Keeping the Bastards Honest: TheAustralian Democrats’ First Twenty Years. St.Leonards, NSW: Allen & Unwin.

Watts, R. 2006. “Bicameralism in Federal ParliamentarySystems.” In Canadian Democracy: The Senate YouNever Knew, edited by S. Joyal. Montreal: McGill-Queen’s University Press.

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Suit une analyse du rôle du premier ministre dans lesnominations au Sénat canadien, mais aussi de l’incidencedu nombre fixe de ses membres et des contraintesrégionales sur la dynamique partisane de ces nomina-tions. Pour illustrer cet aspect, l’auteur examine lesrécentes mesures législatives du gouvernement Harpervisant à modifier la composition du Sénat et décrit dansquelle mesure cette réforme pourrait tactiquement servir àdes fins partisanes.

Enfin, six propositions font valoir le rôle décisif quepeut jouer le Sénat dans l’examen critique des projets deloi et des mesures proposées par l’exécutif, sans pourautant être perçu comme une menace à l’existence dugouvernement. Ces propositions englobent les élémentsclés d’une réforme fructueuse du Sénat, en ce qui a traitnotamment aux intérêts cruciaux découlant des liens departi et du pouvoir du premier ministre. Négliger cesquestions condamnerait à l’échec tout projet le moin-drement ambitieux de modification constitutionnelle. Siune réforme du Sénat parvient à cibler l’enjeu central, quiest la bonne marche et la réceptivité du gouvernementpar le biais d’un examen efficace de l’exécutif national, laquestion consistera alors à établir un concept institution-nel susceptible d’harmoniser des intérêts divergents.L’élection directe du Sénat constituerait par conséquentun objectif trop ambitieux. Mais on peut supposer qu’unemodification de la procédure de sélection permette d’amé-nager l’éventail des intérêts touchés par une réforme par-lementaire et fasse profiter le Canada des avantages d’unsystème bicaméral véritablement efficace.

S i la légitimité démocratique est synonyme d’élec-tion, les institutions représentatives non éluesdirectement font face à un double problème : leur

autorité est contestable et leur rôle mal défini. Et c’estprécisément ce qu’on reproche au Sénat canadien. Quelque soit le bien-fondé de ses activités, son défaut delégitimité institutionnelle en a toujours affaibli la valeur.

Mais il serait abusif de prétendre que les élections sontl’unique source de légitimité politique. Les tribunauxcanadiens, surtout depuis la Charte des droits et libertés,offrent l’exemple frappant d’une institution dont l’au-torité largement reconnue n’émane pas de la représenta-tion populaire. Les élections ne sont en effet qu’unélément des démocraties libérales : le constitutionnalisme,la règle de droit et la structure institutionnelle jouent unrôle tout aussi important dans le fonctionnement et lasurveillance des gouvernements représentatifs. Il s’agitdonc de déterminer si une chambre du Parlement peutfonder sa légitimité sur un concept institutionnel prévoy-ant la nomination de ses membres.

Une récente initiative du Royaume-Uni tendrait à leconfirmer : l’instauration à la Chambre des lords denominations partisanes équilibrées a renforcé l’adhésionde la population au mandat de l’institution. Mais beau-coup de questions subsistent quant aux modificationssusceptibles d’accroître la légitimité d’un Sénat canadiennon élu et à leur incidence sur le rôle de la Chambrehaute comme sur l’ensemble du régime parlementaire.

Cette étude examine les différentes hypothèses sur lerôle du Sénat, les objectifs d’une réforme et les méthodesqui permettraient de les atteindre. Elle fait valoir le liencritique entre le pouvoir et la légitimité des institutionsparlementaires, de même que la nécessité d’équilibrer cesdeux éléments pour affermir le rôle d’un Sénat non éludans la procédure parlementaire. En contrepoint, l’auteurexamine comment l’évolution de la Chambre des lords etdu Sénat australien a consolidé leur rôle au sein de leurrégime parlementaire respectif.

RésuméPolitical Legitimacy foran Appointed Senate

Campbell Sharman

26

to be in balance if a stable role is to be found for anappointed upper house in the parliamentary process. This issupplemented by an examination of how the House ofLords and the Australian Senate have evolved to achievesuch a role in their parliamentary systems.

The analysis then moves to the Canadian Senate andexamines the role of the prime minister in the appoint-ment of senators and the implications of the Senate’sfixed size and regional constraints on appointments inshaping its partisan dynamics. This is illustrated by anexamination of the Harper government’s more recent leg-islative initiatives to alter the composition of the Senateand the extent to which Senate reform can be used as atactical device for partisan gain.

The paper sets out six propositions concerning theSenate which stress its key role as a source of effectivescrutiny of legislation and executive action without beingseen as a threat to the existence of a government. Thepropositions list the key components to consider for suc-cessful Senate reform; in particular, they point to the crit-ical interests that must be accommodated: partisanshipand the power of the prime minister. Ignoring these issuesand generating ambitious plans for large-scale constitu-tional change is a recipe for failure. If Senate reform canfocus on dealing with the central problem of achievinggood and responsive government through the effectivescrutiny of the national executive, then the issue is one ofinstitutional design to harmonize competing interests. Forthis reason, direct election of the Senate is too ambitiousa goal. But there is just a chance that amending the selec-tion procedures for senators might be congruent with arange of interests concerned with parliamentary reform,and might provide Canada with the benefits of an effec-tive system of parliamentary bicameralism.

If democratic legitimacy is seen as synonymous withelections, representative institutions that are notdirectly elected face a double problem: their authority

can be questioned and their role is unclear. And these areprecisely the charges that have dogged the CanadianSenate. Whatever the merits of its activities, they havebeen undermined by a lack of institutional legitimacy.

Yet to argue that elections are the sole source of politi-cal legitimacy is too broad a claim. Canadian courts, par-ticularly since the Charter of Rights and Freedoms, are anobvious example of an institution whose widely acceptedauthority does not derive from popular representation.Elections are only one component of liberal democracy;constitutionalism, the rule of law and an institutionalframework both to implement and to monitor representa-tive government are equally important. The question iswhether legitimacy for a parliamentary chamber can beachieved through some institutional design based on theappointment of its members.

The recent experience of the United Kingdom House ofLords adds weight to the view that this is possible; theintroduction of balanced partisan appointments hasenhanced the public acceptance of the role of the cham-ber. But there are many questions about the changes thatwould be needed to give greater legitimacy to anappointed Canadian Senate and about their consequencesfor the role of the Senate and for parliamentary govern-ment in general.

This paper examines the differing assumptions aboutthe purpose of the Senate, the goals for reform and themethods of achieving them. It stresses the critical relation-ship between the power and the legitimacy of parliamen-tary institutions, and argues that these two attributes need

Summary Political Legitimacy foran Appointed Senate

Campbell Sharman