The Government Representative in the Senate, Senator Peter Harder, recently contributed to the ongoing debate on the role of a modern Senate thanks to his discussion paper “Complementarity: The Constitutional Role of the Senate of Canada”.

As independent senators from different political backgrounds who both have a less partisan and more credible Senate at heart, we share much of Senator Harder’s vision. However, a few of his suggestions, namely his interpretation of the Salisbury Convention, his support for a suspensive Senate veto and what he sets out as basic principles the Senate should use as guidelines when reviewing government legislation, are issues that need to be debated further. His arguments raise questions about how the Senate would continue to exercise its constitutional role as a chamber of second sober thought.

To begin, Senator Harder emphasizes the importance of the Salisbury Convention, which he interprets as “the upper house does not oppose the Second and Third Readings of bills which have been put before the electorate and approved”.

But that interpretation is much broader than the two other references Senator Harder makes on the same subject.

Senator Harder quotes recently retired Senator Fraser in support of his interpretation of the Salisbury Convention. However, the quotation that Senator Harder uses says that “if a government has been elected on a specific element of its platform ... then we [the Senate] do not believe it appropriate to block that thing”.

To further buttress his interpretation, Senator Harder quotes former Leader of the Government in the Senate, Senator Austin. But again, the quotation cited speaks of the proposed legislation having to be “a key part of the elected mandate” for the convention to be applicable.

There is quite a difference between Senator Harder’s proposition that the Senate not oppose any bill stemming from the government’s electoral platform versus the views of former Senators Fraser and Austin, that the Senate should not oppose only those bills that encapsulate the government’s most important electoral promises.  If the latter applies, the question becomes: how can the Senate differentiate between the more important promises versus the others, especially given that priorities often change?

As an example, in the 2015 Liberal Platform, the government made over one hundred promises in an 82-page document. While electoral reform occupied pages 26 to 28, legalized recreational cannabis was only a few paragraphs on page 55. Both have been, either in the past or more recently, touted by the government as “key” promises yet electoral reform was not brought forward in legislation while legalized recreational cannabis was. Is it only the government that can determine what is a key promise or not at any given time to suit their own political agenda?

Arguably, this debate may be academic because in our opinion a party’s electoral platform is not the most decisive factor in determining how a person votes.

Senator Harder also appears to support limiting the Senate to a “suspensive veto” where the Senate could only delay passage of government legislation, but not defeat it. As an example, Senator Harder refers to Section 47.1 of the Constitution Act of 1982, which allows the House of Commons to by-pass the Senate by readopting a constitutional amendment pursuant to Sections 38 and 41 to 43 should the Senate not adopt the amendment within one hundred and eighty days. It should be noted that any such amendment made using this procedural tool still requires significant provincial support.

But by broadening this procedural tool to all government legislation passed by the House of Commons it would automatically favor the House of Commons’ position regardless of the nature of the dispute with the Senate; thereby striping the Upper House of any of its leverage to induce the Lower House to consider any attempts to improve legislation for the benefit of Canadians. 

Failing the implementation of a suspensive veto, Senator Harder lists a set of “basic principles” to serve as guidelines for when senators review government legislation. While we agree with Senator Harder that the Senate should defeat government bills “exceptionally rarely”, we disagree with him that Senate amendments should only be restricted to matters that are “consistent with the spirit and intent of the [government’s] policy initiative”.

Senator Harder goes on to state that “if a senator wishes to insist on a [different] policy, he should run for office,” implying that only policies sanctified by election are valid and that senators have nothing to add to the public debate.

We recognize that senators are not elected, and we value democracy as much as Senator Harder. But we are left wondering how the Senate can seriously play its complementary role of “sober second thought” with such pigeonholed power as suggested by Senator Harder? How does an amendment proposed by the Senate with the intention of getting the best legislation possible endanger democracy?

Senator Harder completes his discussion paper by denouncing the opposition’s “direct challenge to representative democracy” when “votes are cast in a bloc with the explicit intent of defeating legislation”. According to him, the opposition’s “apparent goal is to give the public the false impression that a complementary, less partisan and more independent Senate cannot work diligently or efficiently.”

We question the accuracy of the way the opposition’s objective is portrayed here.   All senators, including the opposition, are equally responsible to ensure that the Senate fulfills its sober second thought duty effectively. History shows us that opposition parties have acted appropriately to ensure due process of government bills in the Senate, even when the opposition held a majority in the Senate.

We are still left with an overarching question: why is Senator Harder so concerned with amendments proposed by the Senate? Should Canadians not expect a less partisan and more credible Senate to contribute to the public debate by proposing more amendments than in the past? Especially given the fact that the House of Commons is increasingly controlled by the agendas of the various political parties who often act and vote in a block.

Senator Stephen Greene represents Nova Scotia and chairs the Special Senate Committee on Senate Modernization. Senator Paul J. Massicotte represents the De Lanaudière division of Quebec and is a member of the modernization committee.

This article appeared in the May 21, 2018 edition of The Hill Times.