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
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
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
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.
Director Institute of Intergovernmental
RelationsQueen's University Kingston