was appointed to the Senate in 1990 and at the time this article was written h
was Leader of the Opposition in the Senate. This is a revised version of a paper presented to a meeting of the
Canadian Study of Parliament Group on March 8, 2000.
In recent years the Senate
has played an increasingly active role in the legislative process and has been
subject to much criticism for its efforts. This article argues that the Senate
has played this role at various times since its origin in 1867. It also points
out some recent developments that have changed the way the Senate works and how
it is perceived in the legislative process.
The Senate’s rejection of the 1913 Naval Bill is
perhaps the best known example of its playing an active and partisan role in
the legislative process during the early years of Confederation. From 1922 to
1930 the Senate amended 25% of all bills – both public and private – brought
before it, and rejected 7% of them. From 1930 onwards and for over fifty years
after that, the Senate was compliant and passive and rarely challenged
decisions of the other place. The Coyne Affair in 1961 stands out as one of the
few times the Senate reverted to its pre-1930 mode when it voted to support a
committee report that a Commons bill declaring a vacancy in the office of the
Governor of the Bank of Canada be thrown out and that Mr. Coyne be declared
innocent of misconduct.
All this changed in 1988 when
the Senate majority refused to allow a vote on the enabling legislation
confirming the Free Trade Agreement. As the Agreement was to be in force on
January 1, 1989, the government met the challenge by calling an election which
it won in November. The Senate dutifully passed the enabling legislation a few
The next five years were marked
by unprecedented challenges to House of Commons bills, culminating in the GST
debate, a sad spectacle of deliberate obstruction. When the Conservatives
formed the Senate opposition following the 1993 election, they had 58 members,
a comfortable majority. There was a strong temptation amongst many PC Senators
to give as well as they took – in other words, to obstruct for the sake of
obstruction. In the end, this approach, attractive as it appeared, was
abandoned in favour of one intended to return the Senate to what it was originally
created to be: a chamber of sober second thought, respectful of the decisions
of the elected house, conscious of its responsibility to improve on them or, as
the case may be, to warn of any legal and constitutional flaws to the point of
defeating such bills if not corrected.
What actually happened, however,
is that the Senate’s role after 1993 has gone beyond its traditional one as the
official opposition in the House of Commons failed in its role as a
government-in-waiting in order to gain the confidence of the electorate. This
has not been the case since 1993.
That year, the official
opposition was made up of members whose objective was and is to break up the
country, while in 1997 it was replaced by another regional party whose
commitment to the traditional responsibilities of opposition in a parliamentary
system was no stronger than its predecessor’s.
Just consider the treatment of
major legislation by the opposition in the House since 1993. Overall, it has
been motivated by narrow political objectives. One example of this is its
treatment of the Nisga’a Bill. There was little questioning or debate on the
content of the agreement, but when it came time to vote at report stage, the
official opposition, in an unconscionably excessive use of the rules forced
nearly five hundred votes without interruption over a three-day period.
The treatment of the Pearson
Airport Bill is but the most prominent earlier example of the opposition in the
other place ignoring the offensive content of the Bill as it preferred instead
to thrive on the political difficulties of supporters of the previous
government. The Bill not only cancelled a contract – which by itself is legally
acceptable – but denied the right of those affected by the cancellation to seek
damages in court. Any compensation was limited, to be fixed by the Minister and
not subject to appeal.
The opposition joined the
government in lambasting its predecessors over its interpretation of the
contract and supported the bill without any regard to the fundamental rights
which it denied.
I do not hide the fact that my
initial reaction and that of my caucus colleagues was somewhat defensive and
that our opposition to the bill was flavoured with irritation over the
treatment of its targets. This being said, our major concern at all times was
that the bill violated the rule of law. I will spare you more on this bill
except to say that, after months of trying to get it through the Senate, the
government failed. Ironically, the first to show great satisfaction was the
spokesman of the Reform Party in the Commons, the one party which after the
government was the bill’s most enthusiastic supporter. He candidly admitted
that information on the contract and the questionable constitutionality of the
bill itself had not been properly brought before the House which had been taken
in by the perverse satisfaction derived from bashing the previous government.
For the last thirty years, the
House of Commons, wittingly or not, has ceded much of its authority to the
Governor-in-Council which in reality means the Prime Minister’s Office. The
concentration of powers held in the Langevin Block by unelected members of the
PMO is extraordinary. The House has only itself to blame. Repeatedly, major
legislation is drafted more as an outline of an objective, with the details of
its implementation delegated to the Governor-in-Council through regulations.
These are regulations which are not always submitted to Parliament prior to
publication. It has reached the point where the Canada Gazette is
becoming the authority on legislation, not Hansard, a sorry state indeed.
This concentration of power
combined with a Commons official opposition not fulfilling its traditional role
has led to many bills being sent to the Senate which have not been given proper
scrutiny in the other place.
The government’s attempt during
debate on the Clarity Bill to limit the number of amendments to any bill was
understandable, but still wrong. If it had succeeded, it would only have
diminished even more the House opposition’s participation in legislative
scrutiny and increased that of the Senate.
Let me also refer to the
government’s attempt to delay the electoral boundary redistribution process
which is required following every ten-year census. The legislation passed the
House with little debate except for individual concern regarding its impact on
the next election. The Senate in turn raised serious objections to it because
it did not meet the constitutional obligations regarding redistribution.
It and the Pearson Bill failed,
and they are the only two pieces of legislation which have come before the
Senate in the six years that I have been Leader of the Opposition where a
deliberate attempt was made to defeat legislation. Why? Simply because they did
not meet basic constitutional tests, a view supported by many witnesses before
the committee studying these two bills. The Senate succeeded where the House
I can sympathize with the
difficulties a minister encounters in moving along a major piece of
legislation. Many hurdles must be overcome: the department itself, caucus,
Treasury Board, the Prime Minister’s Office and the various stages a bill goes
through before a House of Commons vote. When this last step is taken, usually
many months later, too often the Minister and his office feel that the battle
is over and that the Senate will confirm the elected chamber’s decision with
little or no question.
At one time, this may well have been
the case, but no longer because, to put it in blunt terms, the House is not
doing its job properly when it comes to assessing a bill.
Too frequently, bills come to
the Senate which have drafting and translation errors and are missing important
clauses. I speak here not of policy, only of the fundamental mechanism of
drafting and the constitutionality test. The fact is that it is difficult to
draft legislation today. Ministers sit around the cabinet table each with ideas
competing for legislative form. When one is given the green light, usually only
the germ of the idea is conveyed to the drafters who are then under extreme
time pressure to produce legislation which when given first reading, sometimes
shows too many signs of hasty preparation.
In the House, both in committee
and in chamber, the opposition parties are not so much interested in improving
legislation, as they are in scoring political points – and the Minister,
because of growing impatience in getting to a final vote, is rarely receptive to
amendments unless they are presented by the government itself. What too
frequently results, is that many bills are simply not getting the thorough
examination they deserve which allows for major and minor flaws getting
through. Ironically, it is an appointed body – much maligned and ridiculed –
which in recent years has by its own diligence substituted for the official
opposition in the other place. This claim applies to all senators, not just to
those who sit to the left of the Speaker.
So if there is an unwelcome
delay in responding to a House decision, or if a Bill is returned with
amendments, the Senate should be commended for doing its work properly and the
House faulted for being delinquent. Many ministers do not appreciate what they
consider irresponsible interference by unelected busybodies, but at the end of
the day, they have to recognize that the Senate acted in their best interests.
Witnesses who appear before
House and Senate committees on the same legislation are struck by how different
the environment is one from the other. In the House, questions to the witness
are a thinly disguised way of promoting a party’s political agenda. A
questioner has but a few minutes to ask anything, seldom is there a good
exchange as too many members want to participate in the short period available.
In a Senate committee, time is a factor, but not a straight-jacket. Senators go
to the heart of the matter, and usually in a collegial way. Both witness and
Senate profit from the exercise, unlike in the House where a witness often
leaves in frustration.
As I mentioned earlier, the best
recent example of this came with the Nisga’a Bill - C9. The Minister for Indian
Affairs appeared before the Senate Committee which is examining C-9 and here
are part of his remarks at the end of his testimony.
“...we had a lot of difficulty in the other
place in getting down to the facts of the treaty. We were very annoyed about
the fact that we did not get to talk about the particular clauses and the
chapters and what they mean in the other place. I think that was a disservice
to Canadians and British Columbians.”
What struck the Minister is that
the Senate committee wanted enlightenment on the Bill itself, and he left
impressed and I daresay somewhat taken by the fact that Senators not only had a
good grasp of a most complex and controversial issue, but were able to engage
in an exchange of views beneficial to all.
That, in a nutshell, is how the
role of the Senate in the legislative process has evolved, not through any
ideas of self-aggrandizement, but because of a lack of purposeful, thorough
study and analysis of legislation by the official opposition in the House of
Commons. It is not a task the Senate sought, it is one it had no choice but to
take on. Otherwise, our statute book would be replete with seriously flawed,
even constitutionally faulted legislation.
I cannot resist pointing out, in
closing, that anyone accepting the basic premise behind these remarks has to be
struck by the fact that it is the appointed body which is being more diligent
in the legislative process than the elected one. Would the same be true were
the Senate elected?
You can expect the Senate to
continue to assess legislation critically. This will mean upsetting sponsoring
ministers who anxiously await Royal Assent. More important, however, it will
mean better legislation, and fulfill the Senate’s original purpose as set out
by John A. Macdonald in 1865:
“There would be no use of an
Upper House, if it did not exercise, when it thought proper, the right of
opposing or amending or postponing the legislation of the Lower House. It would
be of no value whatever were it a mere chamber for registering the decrees of
the Lower House. It must be an independent House, having free action of its
own, for it is only valuable as being a regulating body, calmly considering the
legislation initiated by the popular branch and preventing any hasty or ill
considered legislation which may come from that body, but it will never set
itself in opposition against the deliberate and understood wishes of the
I like to think that were John
A. with us today, he would be more than satisfied with the way the Senate is
carrying out its responsibilities.