A check on the prime minister's power
It doesn't help that, in Canada, you have to substitute Senate for Lords. But on a panel at St. Paul's University discussing "Can the Senate act as a catalyst for informed public engagement in ethical policy making?" I said it was certainly worth a try. We're not overloaded with public engagement or ethical policymaking these days. The great obstacle to the Senate playing this role, I noted with regret, is the same one it faces whenever it tries to do anything worthwhile: Widespread public conviction that Senators are illegitimate participants in government because they are not elected.
This objection overlooks that democracy is a means toward good government, not an end in itself. A pedantic quibble? Well, few people mind that we don't vote for judges, who comprise one of three branches of government. I never heard anyone complain that public servants aren't elected even though they now generate much of the policy rubber-stamped by MPs. And today, when the ship of state is all sail and no anchor, a good case can be made that an unelected upper house is good for parliamentary government.
Following Richard Weaver's The Ethics of Rhetoric, let me ask what the Senate is meant to be before rushing into what it should do and how. I answer that it is intended as a brake upon the autocratic ambitions of the Executive, and the demagogic ambitions and reckless haste of the House of Commons. If someone has a plan for electing senators to make the Senate better able to do those things I'm keen to hear it. And if anyone is so bold, or foolhardy, as to say today we need less sober second thought in legislating, they too may speak up. Meanwhile, I shall proceed with my chant.
It comes from Edward Coke in the early 17th century. His immediate concern was that the monarch would proclaim laws on his own or with the fig leaf of assent of the Lords, brushing aside protests from the Commons. I realize Queen Elizabeth isn't about to usurp our liberties. But his larger concern about executive power is acutely relevant now that cabinet has fused with the public service and largely absorbed Parliament. Today, Coke's three separate agencies jealous of one another have been replaced by an omnipotent hybrid dominated by a small group around the prime minister and in the upper civil service before whom backbench as well as opposition MPs are effectively helpless.
Only the Senate can now stand in the way of this juggernaut. So I find it paradoxical that the people most irritated by the narrow autocratic style of, say, the Harper Tories are also generally most determined to get rid of the two independent bastions of constitutional authority that must also assent to legislation.
One of my fellow panelists observed that many nations get by with unicameral legislatures. But most places I'd be willing to live have upper houses, including Canada, Britain, Australia, the U.S., France, Germany and Japan. And while our provincial governments lack second chambers and are not conspicuously worse than our federal one, the weakness of our Senate deprives the comparison of much of its value.
Electing the Senate might seem the obvious way to reinvigorate it. But let us reason from first principles. As Jean-Louis de Lolme suggested a quarter-millennium ago, unelected upper houses are structurally a brake on populism because they cannot aspire to seize executive power, alone or in company with the Commons, in the name of "the people." They stand for the people's liberties precisely because they cannot embody the popular will.
Mind you, as a fellow panelist rightly observed on Saturday, the great weakness of the Senate is an appointment process that undermines public trust. It's not obvious that the electoral process is doing wonders for the Commons in this regard either. But prime ministers do have a vested interest in appointments that discredit their only effective institutional opponent. And if the Governor General, who actually appoints senators, won't reject a few as insufficiently distinguished and dare the PM to fire her, we may need to ponder the Australian method of electing senators, and of resolving deadlock between the two houses.
These are details. And details matter. But we must begin with this crucial point: When a breakdown of the separation of powers has left legislative authority in the hands of demagogues who wrap reckless profligacy in a skilful counterfeit of the popular will, our upper house needs more power and authority, not ridicule, abolition, or conversion into a spare tire for the Commons.
So chant it with me: "It is no act of Parliament ..."
[First published in the Ottawa Citizen]