Report of the Subcommittee on Certain Aspects of the Constitution, document presented to the Senate by the Standing Committee on Legal and Constitutional Affairs, November 26, 1980, 44 p.

Few ideas have proved more seductive to would be constitution makers than reform of the Upper House. From the House of the Provinces, in proposals by the B.C. Government, the Ontario's Advisory Committee on Confederation and others, to the House of Federation in Ottawa's Bill C60, to the Provincial Council, proposed by the provinces in September 1980, virtually every recent set of recommendations for constitutional change has focussed on the role of the Upper House as an institution of federalism.

The impetus for such proposals varies. Most common is the belief that in a renewed federal system, there must be far more effective representation of the regions "at the centre". Provincially representative Second Chambers are the classic institution for doing this in federal systems.

But beyond this general concern to build a greater element of "intrastate federalism" into the present system, the suggestions for a new Upper Chamber have varied widely in their underlying assumptions, and therefore in their ideas with respect to its composition, appointment procedures, powers and legal status. In general, the idea has evolved from conceptions which build provinces or regions directly into Parliament itself, to those which see a new body as a separate, intergovernmental institution in which the two orders of government are brought together for more limited purposes.

Among the most interested observers of this debate, of course, are the members of the present Senate. Their very existence is in question. Therefore, it is not surprising that a subcommittee of the Senate's Standing Committee on Legal and Constitutional Affairs, chaired by the Honourable Maurice Lamontagne, has carefully assessed the many proposals, and has developed a model which includes a new institution to meet the challenges of federalism, while retaining the existing Second Chamber virtually intact. The subcommittee's brief report, published in 1980, was virtually lost in the sound and fury of wider constitutional debate. That is a pity, since it provides a much needed clarification of a controversial idea.

The Lamontagne committee makes a basic distinction between two separate problems, which in most other proposals have been combined. The first problem is an intergovernmental one: the need to regulate relations between the two orders of government. To deal with that, it rejects the approach of Senate reform and instead recommends formalization of the federal-provincial conference as a "Federal-Provincial Council". The second problem is to assure that the central government itself is more representative and responsive to regional interests. This they address through moderate reform of the existing Senate.

The primary provincial constitutional grievance, the subcommittee argues, is the existence in the BNA Act of a number of broad, discretionary, federal powers which permit Ottawa to override the provinces and act in their jurisdiction. Reservation, disallowance, the declaratory power, the spending power and the emergency power are all instruments by which Ottawa can dominate or subordinate the provinces. All are inconsistent with the constitutional equality of the two orders of government, with the principle of non-subordination," and with provincial sovereignty in their assigned areas of jurisdiction. These are usually considered the essential characteristics of genuine federalism. The subcommittee would abolish the reservation and disallowance powers as obsolete. But, it argues that the other powers are likely to be retained. "So the problem remains of harmonizing the exercise of these overriding powers with the principal of non-subordination". The committee believes that the answer lies in securing the consent of both orders of government before such powers can be used. Both "federal" and "provincial" agreement are required. Clearly the existing Senate does not meet the test of provincial consent, nor could one whose members were elected, or jointly appointed, as suggested in Ottawa's Bill C-60 of 1978.

But equally repugnant to the Committee are proposals for a provincially appointed Upper Chamber within Parliament. That would meet the provincial test, but deny the federal one. It would introduce a "major confederal element into the system, and by making the members instructed delegates of provincial governments, it would introduce a provincial executive power into a federal legislative body. "It would make the federal Parliament a hybrid body amounting to a monstrosity".

The solution, the committee argues, lies in an intergovernmental rather than a parliamentary body. And there already exists an "old and unique Canadian mechanism that could easily provide a practical solution with a minimum of institutional disruption" the federal-provincial conference. Hence, the subcommittee's central recommendation is that the conference be reconstituted as the Federal-Provincial Council with specific powers and formal rules for decision-making. Its members would be the First Ministers, or their delegates, assisted by a permanent secretariat and an advisory committee of officials.

The Council would have three roles. First, it would be the forum for negotiation of future constitutional amendments. Here the voting rule would be whatever amendment formula is eventually adopted. Second, it would ratify use of the remaining federal overriding powers the declaratory power, the spending power, but only in reference to shared cost programmes, and the emergency power in peacetime. Federal initiatives in these areas would require approval of a majority of the provinces, representing a majority of the whole population. Third, the Council would play a broad co-ordinating role in areas like fiscal and economic policy. Here it would be a forum for discussion, and would not make binding decisions or take formal votes. In all cases where formal decisions were taken, they would have to be ratified by the various legislatures.

This formulation is a great improvement over earlier "House of Provinces" solutions, because it does not hopelessly blur legislative and executive roles, or greatly complicate the accountability of each government to its own electorate. The proposal is aimed squarely at a central issue in debate the equality of the two orders of govern merit and does address the critical question of how federal and provincial governments can better harmonize their activities. It implies that in thinking of institutional change, we need to bear in mind three sets of institutions those of the federal government, those of the provinces, and those of the federation itself. The last group includes the Constitution, the Supreme Court, the amendment procedure, and with this proposal, the Federal-Provincial Council. The Council could provide the vehicle for policy co-ordination, and the policing mechanism for federal intrusions into areas of provincial authority, and perhaps vice versa.

The Council as proposed by the Senate Sub-Committee, would be smaller and play a much more limited role than the Federal Council, based on the same principles proposed by the Quebec Liberal Party's Beige Paper. The provincial common stand" of September 1980, also differed from the committee's proposal, in that it did not include formal federal representation, required a two-thirds majority of provinces for approval of federal initiatives and included ratification of major appointments. Undoubtedly, some provinces would feel that the subcommittee's majority rule would not provide sufficient protection of their interests against federal use of the declaratory or emergency powers. But both these proposals are based on the same logic as the subcommittee's.

Thus, within the broad conception of an intergovernmental body as proposed by the committee, a number of variants are possible. It offers considerable promise. But the FederalProvincial Council, argues the committee, would be no substitute for the existing Senate. The Report presents a defence of its role, focussing on its effectiveness in revising complex, detailed legislation and investigating major social problems. It agrees that its role in representing regions, especially less populous ones has been 1ess significant than anticipated in 1867. It cites several examples of apparent defense of regional interests, but admits it could have done more". Nor, the members agree, has it done much to protect linguistic minorities. But that. the committee argues. calls for improvement. not abolition.

But how? Radical change is rejected. The reformed Senate would continue to be appointed by Ottawa. But every second appointment would be from a list of provincial nominees. The political weight of an elected Senate, it is argued, would rival that of the Commons, and create insurmountable problems within the parliamentary system. The Senate would be enlarged to 126 members, giving greater weight to the West. Members would serve for 10 years, with an additional five years on the recommendation of a special committee. The Senate's present unlimited power to veto legislation, unwarranted in a democratic society would be dropped; its legislative role of sober second though would be met by a six-month suspensive veto. This might well increase the Senate's activity, since a suspensive veto is much less draconian than an absolute one. The Senate would also have an expanded role in examining regulations made under delegated legislation.

It would be made a more effective reflection of regional and linguistic interest by the establishment of all party regional caucuses and by the creation of a Standing Committee on Regional Affairs and Official Languages. It would also continue to supply cabinet ministers for regions unfortunate enough to be unrepresented in the governing party in the Commons. The subcommittee ignores the flurry of debate about whether the Senate should continue to have a veto over constitutional change, since that argument developed after its work was completed. But its recommendation for only a six month veto on legislation implies that the same would apply to constitutional changes.

A number of other reforms an elected Speaker, a standing committee on human rights, regular conferences to resolve differences between Senate and Commons and the like are also proposed. While these changes would no doubt improve the Senate's effectiveness somewhat, they fall far short of a revitalization of the Federal Parliament's capacity to represent regional interests and act as the arena for compromise among them. The Achilles heel of federal appointment remains virtually intact. In no other federal system are the members of the Upper Chamber federally selected. Senators would still lack an effective political base. Nor are 10 to 15year terms likely to lead to greater dynamism than the present tenure. Regional caucuses, and a regional affairs committee could be a useful sounding board, but it is unlikely provincial governments or private interests would see them as an effective new avenue for influencing Ottawa. While helpful as ameliorative steps, these devices would not solve the underlying problem.

Thus, the Committee is more effective in addressing the intergovernmental issue than it is addressing the broader questions of the representativeness of the central government. That must come primarily through changes in the institutions of popular representation the parties, the Commons, and the cabinet.

It is easier to state the challenge than to meet it. It depends fundamentally on the reestablishment of countrywide political parties, on changes in the Committee system to provide a more concentrated focus on regional and federal-provincial issues, and perhaps on some modification of the rigidities of party discipline.

The Senators make a convincing defence of their utility. Their recommendations would make the Senate more useful, but they are only a tiny step towards restoration of the nation-wide legitimacy Ottawa must have if it is to wield effectively the authority it possesses, and to negotiate persuasively in a formalized Federal Provincial Council. But we should be grateful to the subcommittee for clarifying a debate, which it correctly argues had become hopelessly confused.

Richard Simeon

Director Institute of Intergovernmental RelationsQueen's University Kingston