At the time this article was written Michael
Pitfield was a Senator.
Why reform the Senate? The senate has done a
good job in legislative review, and in the technical sense, in my view,
certainly a better job than the House of Commons.
My experience since becoming a senator has
opened my eyes in a very major way to how big a job there is to do in this
regard, and how very important it is that it be done. I believe the recent
increased emphasis on pre-study is also an exceptionally promising and useful
At the same time, in its second and more important
role of regional representation, I believe the Senate has done a very poor job.
This is a tragic failure because, particularly in a federation, this is a
special, and in a sense, unique role for a second chamber. The failure is not
the fault of senators; to the contrary, many excellent men and women have
worked hard to have the Senate perform this function. But it cannot, because as
an appointed chamber it simply does not carry the credibility necessary to
perform the role in this day and age.
Most recently, for want of a proper Senate,
Cabinets of both major parties have not contained adequate regional
representation to ensure that the host of decisions the executive takes, are
appropriately regionally sensitive. These two shortcomings have been important
factors in preventing our federal system from evolving as it should. They have
contributed significantly to the high degree of confrontation, the damage to
national unity. the inefficiencies and ineffectiveness of which many Canadians
This is not merely a matter of the Senate s
not being able to do what it should do. It is also a matter that no other
institution one can envisage in a federal system can fulfil these roles nearly
as well. To leave the Senate as it is and try to do the job by innovation
elsewhere in the federal system would be terribly counterproductive.
As I do not believe Canada can be strong,
much less prosper, in the modern world without much better regional
representation in day-to-day political decision-making at the parliamentary
level, inside the federal government, I believe Senate reform is of surpassing
importance and urgency.
Functions of a Reformed Senate
So what should a reformed Senate do? It
follows from what I have said that the functions of the second chamber include
legislative review, regional representation and representation and protection
With regard to legislative review, this is a
very important function. The Senate does it well and with greater credibility
would do it better. It is an important complement of the House of Commons
which, because of its heavy partisan bias and because of its traditional
methods, does not do the technical side well. I think it is unlikely that it
can or that it ever will. It is important in constitution-making to build on
what exists, not on what is envisioned as ideal. We should not imagine that the
House of Commons will change its spots, but build to complement it.
As regards regional representation. I take
this term to mean more than geographic representation and to include the
representation of all of what John A. Macdonald called sectional interests.
They are the concerns that Canadians in the various regions of our country
expect our federal system to protect from the simple representation by population
rule that is the oasis of the House of Commons. Today these fundamental
regional interests include: in the Maritimes, regional disparities; in Quebec,
language and culture: in Ontario, industrial policy, in the west, resource,
policy. An appropriately designed second chamber is the classic method of
recognizing and protecting such fundamental regional interests, especially in a
How the Senate should perform this function
in our federal system is a uniquely Canadian challenge. Meeting it will colour
the selection, powers and composition of the Senate.
In constitution-making it is important to
recognize what is uniquely Canadian, to avoid seduction by what can be taken
discretely from foreign systems because it simply happens to 1ook good in
another context. We should not figure that an American Senate or a German
Bundesrat, which works one way in their culture and system, would work in
anything like the same way here To the contrary, the chances are that
transplants would cause, in practice, grave distortions to our own system of
It is only a half step from regional
representation to protection of minorities. Bearing in mind that the protection
of French Canadian language and culture – and by necessary implication the
protection of the English-speaking minority in Quebec – is largely subsumed
under the heading of regional representation, what other minorities require
representation and protection? The native peoples are obviously some who do.
but even here, and especially as we move into other minorities, it seems to me
that we must recognize the role of the Charter and, consequently. of the
In constitution-making it is also important
not to overload an institution with too many missions, and particularly with
missions that are already done or could be more naturally done elsewhere.
Recent constitutional developments in Canada seem to me to have reduced the
necessity and the efficacy of using the Senate to the extent that might once
have been desirable for the representation and protection of minorities other
than the two large groups I have mentioned.
Likewise, in the case of intergovernmental
relations it is clear that we have evolved in Canada the mechanism of
federal-provincial conferences at a variety of levels to provide a working
relationship between governments I doubt very much that the inter-institutional
relationship could be better done by mingling the legislatures or the
governments of the constituent political units to participate in the exercise
of legislative and executive power by the, central authority. Indeed, such a
development would be in complete and obvious contradiction to the doctrines
elaborated during the past hundred years by the Judicial Committee of the Privy
Council and the Supreme Court in their interpretations of our Constitution.
It is important to build on the genius of
the system itself, to avoid trying to achieve some sudden change of thesis or
basic direction by simply declaring it shall happen. Development should always
take account of the natural trend and momentum These can be shaped and bent,
but trying to break or stop them invariably leads to serious trouble. The
latter is what I believe we would be. trying to do if we were to invent a
formal role for the Senate in inter-governmental relations.
In short, we have managed through the
mechanism of federal-provincial conferences to steer a careful path between
executive federalism, on the one hand, and splendid isolations, on the other,
and I see no great benefits and many costs to abandoning this course.
An Elected Senate
How then should a reformed Senate be chosen?
I have already implied the convictions that a reformed Senate cannot be
credible without drawing its authority in some way from the people, and that
the way chosen must be entirely within the system of the federal government and
not shared with much less governed by. provincial governments From this it
follows that I would reject appointment by the federal government, appointment
by both federal and provincial governments, and appointment by provincial
governments. This leaves us with indirect and direct election.
Indirect election by the legislatures of the
provinces has two drawbacks The first is that it invites the mingling of the
provincial government system into the system of the federal government. I
believe that to be in fundamental contradiction to the essence of our system
and hence, be fraught with great dangers. The second drawback is that election
by the legislatures is almost inevitably a half-step to something else, perhaps
a fallback to the mingling I have just mentioned, but more probably a step
towards a directly elected chamber as happened in the United States. The first
step in reform is almost never the final step. To the contrary, it sets off a
process of evolution usually quite rapid at first and gradually petering out.
This reality can be used constructively. but only if it is carefully thought
through. Focusing merely on the change and not on its consequences as far as
the eye can see is to invite mistakes and chaos. Given its profound
contradictions and uncertain consequences, I believe that resort to the
technique of indirect elections by provincial legislatures would be foolish.
This leaves us with direct election, either
by simple majority vote or by proportional representation. The problem with
direct election by simple majority vote is that it would immediately pose a
challenge to the supreme authority of the House of Commons especially as
regards the locus of confidence. This would raise huge and fundamental issues
of ministerial responsibility and accountability, thereby leading to a
requirement for basic and far-reaching changes in the nature of our
governmental system. Clearly, this is unnecessary and undesirable and must be
It is true that the powers of a directly
elected second chamber could be reduced vis-à-vis the first chamber. This could
be done by statute in a number of ways. But in constitution-making it is
important to recognize that, as the case of the American Senate clearly demonstrates
sooner or later, no matter what the law says the fundamental authority conveyed
by an electoral mandate will eventually be realized. Thus it seems to me that a
second chamber elected by simple majority vote is not in the cards.
Direct election by proportional
representation, on the other hand, has virtually no drawbacks and a number of
important attractions. It provides a popular mandate, real but somewhat less
authoritative than members of the House of Commons would enjoy. It operates
entirely within the system of the federal government, avoids mingling with
provincial governments while at the same time maintaining the credibility of
regional integrity. And it could be crafted to provide our federal
parliamentary system with a different kind of member than election to the House
of Commons provides This last point is important.
I propose we use the single transferable
vote system with party labels uncontrolled by party apparatchiks This would
permit the design of a system of indirect proportional representation a system
that would encourage the election of senators not only regionally credible in
their own right, but also somewhat less rigidly partisan, somewhat less
dependent on the party system in general or the party leaders in particular, and
somewhat more specialized in public policy terms and more carefully picked in
representative terms than a system of direct election by simple majority vote
At least four great advantages would be
obtained. First such people are desperately needed in government; second, the
tempering of pure partisanship, of the tremendous power of a handful of party
leaders that would flow from such an innovation both immediately and
consequentially, would be a breath of fresh air to our governmental system; third,
regional representation and legislative review in Parliament would be greatly
improved; fourth extremely serious and far-reaching detects in Cabinet-making
and Cabinet decision-making that now plague us could be corrected.
In all of this, the question of tenure is
important. The role and nature of the kind of senators I have described
obviously argues for a term not coincidental with, and somewhat longer than,
that of members of Parliament. I believe a term of six years, one and a half
that normal for the first chamber, staggered so that one-half of each
provincial contingent would be elected every three years, would fit the needs
of new governments and of continuing government. That this would entail
moderately more elections seems to me an advantage to democracy far exceeding
the financial cost or inconvenience to the community. That the standard cycle
of senatorial elections would not be coincident with general elections for the
House of Commons is necessary to secure the second chamber s longer term
perspective and independence from the bandwagon effect of a general election.
The non-coincidence of elections would also provide for continuity of
Some may fear that Senate elections might
take on the colour of a by-election protest vote, but that is unlikely and, to
the extent it might occur, would not necessarily be a bad thing in such a
Distribution of Seats
How should seats in a reformed Senate be distributed?
Several general observations can now be made in that regard. First. because of
the agreements with the provinces underlying confederation generally and the
present Senate in particular, equal representation of the provinces is probably
out of the question. Mr Gordon Robertson's speech at Laval last March made an
especially powerful case for Quebec to this effect1 but without
detracting from it there are other historical considerations that argue
strongly in the same direction. Second, because of the nature of confederation,
the size and demography of the country, whatever system of weighted
representation is selected, should continue to reflect a certain regional
equilibrium between the east. Quebec, Ontario and the west,. third, because of
the present distribution of population and wealth in Canada, western
representation should markedly increase.
With regard to overall numbers. there are
three reasons for keeping the Senate at about its present size. The first is
that a much smaller Senate would encourage faction, which in the context of a
reformed Senate could be quite damaging. The second s that a smaller number
would entail trying to reduce the existing representation of some of the
provinces, which could be quite difficult to secure. As I have already
suggested, in constitution-making as in so much of politics it is easier to add
than to take away.
The third is that as the present number is
decreased in a system of weighted representation, the appropriate
representation of the legitimate regional interests as broadly defined becomes
Powers of the Senate
To fulfil its role, a reformed Senate must
have the power to reject government bills, but not. as I have said, to the
point of defeating the government that retains the confidence of the House of
Commons. Since the Senate would be definitely the subordinate of the two
chambers, the government as a general rule should be able to override the
rejection of ordinary legislation by simple majority vote in the Commons at any
time during the same session of Parliament. Some might argue that this is not
enough authority; but, backed by the indirect electoral mandate it would have,
the likelihood is that the Senate would use the full amount of that authority
rather than feeling bashful and rarely speaking cut at all as it now does.
There is a nice balance to be struck between
authority and credibility and legality. The key to that conundrum is to have a
careful eye on political reality. This is partly a question of clout with the
electorate and partly also it is a question of the degree of trouble that can
be inflicted on other decision-makers. Intellectuals tend to overlook the
latter but the truth is that a government will always loos ahead to obstacles,
such as possible rejection by the second chamber, and all the damage that delay
and further debate could engender. Consequently a government will quickly
develop techniques of consultation and trade-off that will prevent problems
from arising before they do. It is important to bear in mind the preventative
behaviour engendered before a requirement has to be met and to take account of
the informal political processes thereby set loose. Such political activity is
good, constructive, and a necessary shock absorber in the decision-making process.
Everything does not have to be set down in letters of law. Often the most
important part of a constitutional mechanism is entirely conventional. Hence,
my reading is that a Senate that actually rejected legislation would be by that
fact alone a real power to be reckoned with.
Of course. the rejection powers of the
Senate could be cast immediately in stronger terms. The danger in doing so is
to overshoot the mark and turn the Senate from a subordinate into an equal or
even superior chamber. Better to start with a minimum and let matters evolve.
lt. is true that later changes are difficult to formally secure. but usually
the difficulties of stepping back are harder than those of stepping forward. It
is in this vein that to provide immediately for a refinement of powers that
would require joint sessions and conference committees and so forth seems to me
to be tempting fate. These should be left to evolve.
In only one area would I see a reformed
Senate with power that the House of Commons could not overcome by a simple
majority vote, and that is in the area of federal-provincial relations
involving the fundamental regional interests I mentioned in the context of a
reformed Senate's unique role in regional representation. Thus, where the
reformed Senate deems a measure by a two-thirds vote as a fundamental regional
interest and then rejects that measure by a simple majority, I suggest the
House of Commons should only be allowed to override by passing the measure
again by a two-thirds vote. If this requirement is regarded as loo onerous,
perhaps a lesser hurdle would be better: a different set of thresholds could be
used or a resort could be had to a relatively long suspensive veto. To reduce
the inflexibility of the suspensive veto technique, its duration could be set
within constitutionally established limits by the Senate in each case in its
deeming resolution There are many techniques that could be thought of, but one
way or the other the objective would be to amplify the power of the reformed
Senate in its unique function of regional representation without deadlocking
the government of the country.
For the matter of languages and culture a
special formula is required. By the nature of the number of representatives
involved, the single threshold deeming resolution would obviously not be
appropriate here. What might work is a variation on the double majority
principle which would permit the Senate to deem a measure to be of special
linguistic or cultural significance. not by a two-thirds vote but by a simple
majority vote that included a majority of the French-speaking senators.2
If such a bill were then rejected by the Senate by a simple majority, its
subsequent enactment would require the special override by the House of
Other powers that have been suggested to,
the Senate include approval of appointments to certain federal bodies of
special regional significance which seems to me a development entirely
appropriate to a reformed Senate and extremely useful to our constitution. A
second is approval of the exercise of certain federal powers – the spending,
emergency, declaratory, reservation, disallowance and treaty powers – which
seems to me both inappropriate and entirely unnecessary. The contested use of
these federal powers would be just the sort of thing that should engender the
process of a deeming resolution that I have proposed.
I would urge two things: one, to work out
the best proposal on which consensus can be obtained; and two, to propose the
process which could be successfully followed to obtain popular parliamentary
and provincial acceptance of that consensus. We tend to think of proceeding
immediately to negotiations, but I would emphasize the need to build popular
understanding and consensus early in the process.
I said at the outset that the Special Joint
Committee on Senate Reform has an historic responsibility and opportunity to
advance the important and urgent issue it is considering to the great benefit
of Canada's future well-being. To propose a consensus and a process, as I have
suggested, would by any measure be in itself a giant step forward. To try to do
more by dotting every "T" and crossing every "t" – to try
to work out a precise formula for proportional representation, for example –
would probably be to try to do too much. It would be not only a waste of time.
but would uselessly create tripwires on the road that lies ahead.
In reviewing my own proposals, I am mindful
that so many are the variables in Senate reform that it is possible to create
almost innumerable sets of proposals. Furthermore because a government is a
large system with an overall equilibrium all its own any change in one place is
bound to have repercussions elsewhere sometimes in surprising and far-off
places, sometimes with far-reaching and even contradictory effects.
Thus, in the final analysis the most
important rule of constitution-making is to keep changes as few, as simple, and
as intelligible as possible and to allow for the natural operation of politics
to create conventions over time that can gently update and modify governmental
arrangements as circumstances change. The great British constitutional scholar,
Sir Ivor Jennings, once said that treated this way, a constitution that has
lasted 100 years should last forever, and that the well-being secured by such
constitutional stability is one of the greatest gifts that governors can confer
on both the individual citizen and on society as a whole.
1. See Gordon Robertson, "An Elected
Senate: Our Best Hope for Real Reform", paper presented to seminar on
"Constitutional Act 1982: A Year After", Laval University, Quebec
City, March 26, 1983.
2. Ibid., pp. 9-11.