The wilder shores of Triple-E

UPDATE: Some slight amendments. Thanks to Alan for a perceptive comment (indeed, more perceptive by far than any other comment ever made upon this post) that "The Canadian [S]enate is the standard-issue British colonial upper house of its time." True, but federalism wasn't standard-issue for British colonies, and what is true of an upper chamber in a single colony ("unitary", other than loose imperial supervision - much looser than supervision by a federal government) isn't necessarily true for the upper house of a federation. Other federal upper houses within the British Empire later adopted a model of mixing (a) indirect election by provincial assemblies with (b) appointment by the federal executive, in varying proportions - from Malaysia at the "appointed" extreme, through pre-apartheid South Africa in the middle, to India and Pakistan at the other. Canada's was, I believe, the first federal upper house under the British Crown - unless we stretch the definition of "federal" ve-e-ery widely to include the Scots peers in 1707 and the Irish peers in 1800. And thanks to Mr Cosh himself for his feedback:

"That is indeed very interesting, the more so for its revelation that I was channelling the late personages of the JCPC. I see the "middle ground" point you are trying to make, but I'm not so sure it is really in the middle. It was really the position of the Chretien and Martin governments that they were actually forbidden to voluntarily exercise their discretion in favour of an elected candidate. I would still argue that nothing prevents the accommodation that Alberta has now reached with Prime Minister Harper; the PM is not abandoning the privilege of royal assent, merely exercising it according to a rule he freely accepts. Of course it's true that Triple-E advocates hope to establish a convention that is difficult for future PMs to retreat from, but much of our constitutional and peri-constitutional law is of precisely this nature. (And they were bold enough to retreat from it already after Mulroney left office.) For what it's worth, I see no flaws in your understanding of the history of the Senate, the reasons it operates the way it does, or its public standing."

* * * * * *
And now, on a topic on which I claim no particular expertise whatsoever: the Canadian Senate.

Quick background: The founding fathers of Canadian Confederation, in 1867, were aghast at the horrors of the American Civil War. Too much democracy, they thought, too much sloganeering about popular sovereignty, "We the People" and all that. Not only was this hypocritical coming from slave-owners, but it was deeply destabilising. Just as the original 13 Colonies had invoked their people's sovereignty to secede from the British Empire in 1776, so too had the 11 Southern Confederate States in turn invoked their people's sovereignty, in turn, to secede from the American Union in 1860. Similarly, federalism might be unavoidable over a large, sparsely-populated land with several rival population centres, but it was unwise to take the idea too far. (And since Canada, unlike the US, had a linguistically divided white population, the British North America Act 1867 gave protection to non-territorial language rights as well as the "States' Rights" of territorial regions). The fact that US Senators were (from 1789 to 1911) appointed by State legislatures, had led those legislatures to fancy themselves rather too highly.

(This is very broad-brush and simplified).

The Canadian founders therefore made the Dominion pretty much as unlike the United States as it is possible for an English-speaking, common-law, democratic federation to be. America has a President and Vice-President? Good for them - but we'll have a Monarch, Governor-General and Prime Minister, thanks. America has “States”? Fine. We’ll call ours “Provinces,” so they don’t start getting any ideas about sovereignty or secession. American States have Governors? We’ll call ours Lieutenant Governors! America has (or, by 1867, had developed) judicial review? Fine – we’ll enforce and uphold OUR Constitution through Royal powers of reservation and disallowance instead. America has a House of Representatives? We’ll have a House of Commons! America has "States"? Fine. We'll call ours "Provinces", so they don't start getting any ideas about sovereignty or secession. American States have Governors? We'll call ours Lieutenant Governors! America has a House of Representatives? We'll have a House of Commons!

America has a Senate? Then we're going to have a... okay, we'll call it a Senate too. (There are fewer alternative labels around for Upper Houses - "Senate", "House of Lords", "House of Councillors", "Council of the Regions", "Federal Council", and "First Chamber" [*] pretty much exhaust the list - than there are for Lower Houses, which can be the "House of Representatives," "House of Commons," "Dáil," "National Assembly," "General Assembly," "Second Chamber" [*], "Lok Sabha," "Chamber of Deputies", "Congress of Deputies", "Chamber of Representatives", "House of Delegates", etc, etc). But Canada's Senators were not to be elected - not by voters, not even by State legislatures; nor even (unlike Bismarck's Germany about this time) appointed by State governments. Instead, they would all be appointed by the federal Governor-General. In practice, the Prime Minister. And they would serve for life (or did until 1965, when retirement at age 75 was introduced for future appointees, just as Australian High Court judges swapped life tenure for retirement at age 70 in 1977).

Yes, the new Dominion's Senators would still "represent" particular regions - Provinces (Ontario), inter-Provincial regions (the Maritimes), intra-provincial regions (Quebec's 24 divisions). But this requires only that they own a home within the region represented. Short of coordinating some near-unanimous restrictive covenant that would block a really, really unpopular Senate appointee from meeting the requirement of residence within their area, there is no way for the inhabitants of that region to control who "represents" them

If you get the idea I think this is not world's best practice, you are correct. There do exist sound arguments in favour of electing (some) legislators indirectly, by a large number of disparate, dispersed small-E electoral colleges: Germany's Bundesrat and India's Rajya Sabha seem to work. But I can't think of many, or any, sound arguments in favour of unilateral, centralised executive appointment of a large (105-member), non-judicial body. Many Canadians agree. Constitutional expert Ronald L Watts, writing in 1996, considered it "clear... that, of all the federal second chambers, the Canadian Senate has the least public legitimacy" (Comparing Federal Systems in the 1990s, pp 88-89). Movements to reform the Senate have gained momentum in the past 20-30 years, either by introducing some element of election, or by giving Provincial governments some role, or both. Usually the stated goal is a "Triple-E" Senate - Elected, Equal (among Provinces) and Effective (ie, with some veto powers).

So far, these proposals have all been shot down, either because Quebec doesn't want to make any concessions, or because the English-speakers don't want to make any concessions to Quebec, or because Prime Ministers don't want to throw away their power to hand out 105 life-tenured seats on the plush red benches.

Amending the Canadian Constitution to make the Senate elective would be hard - you need both federal Houses, plus, normally, 7 out of 10 Provincial legislatures, representing 50% of the population, but this rises to 10 out of 10 for changes to Senate representation. Having said that, amending the US Constitution is hard, too, but Americans managed it with the Seventeenth Amendment in 1911. In fact, for several decades before they formally amended the document, they changed how it operated in practice. States began to hold non-binding votes, at election time, when the populace could tell their legislators which candidate they wanted to be their Senator. The famous Lincoln-Douglas debates of 1858 took place between two contenders in one such beauty contest, for an Illinois Senate seat. It would be a brave legislator who wanted to face re-election telling his constituents "Y'all preferred Mr Lincoln, but I done sent Mr Douglas to Washington instead". Just as the US Electoral College when electing a President, or the British Monarch when appointing a Prime Minster, almost invariably follows th'election returns, US State legislators gradually exchanged an "efficient" for a merely "dignified" role in the selection of the federal upper house. When the Seventeenth Amendment was ratified in 1911, it did little more than make official what was already the working practice. Lesson: a legal discretionary power may be trumped by democratic legitimacy.

In Canada, the Province of Alberta has tried a similar tactic, by holding advisory Senate polls in an attempt to shame the federal government into either supporting a direct election amendment or, less ambitiously, into appointing a winner of such a poll when a vacancy in that Province's Senate representation next arises. It is, however, easier for sub-national legislatures to waive their own constitutional prerogatives than to pressure the federal government into waiving its constitutional prerogatives.

Alberta has had only two successes in upgrading its "Senators in Waiting" from bridesmaid to bride status, starting with Stan Waters (Reform Party: elected October 1989, appointed in June 1990 by Conservative Prime Minister Brian Mulroney) and recently repeated with Bert Brown (Conservative, first elected 1998, re-elected 2004, finally appointed in 2007 by Conservative Prime Minister Stephen Harper). (Why do disputes over elected Senators versus appointed Senators so often involve "Berts"?).

In between these two occasions, though, the two Liberal Prime Ministers, Jean Chrétien and Paul Martin, steadfastly ignored Alberta's quinquennial straw poll when advising the G-G whom to appoint to Senate vacancies. The old dead white guys of 1867 clearly said "appointed by the Governor-General"; be wary of tampering with the wisdom of previous centuries just to follow contemporary fads.

In addition, there are concerns that an elected Senate might be too majoritarian. Albertan law required multi-seat first-past-the-post "block vote" to choose its Senators in Waiting, which led to fears - not wholly unreasonable under the circumstances - that, with Prime Ministerial patronage abolished, women and minorities might be hardest hit. Alberta Senator Claudette Tardif  (who got her seat the good old-fashioned way) warns that:

... an elected Senate could mirror the House of Commons in its under-representation of women and minorities if measures aren't implemented to ensure diversity.... [B]ecause Senators are appointed rather than elected, the Prime Minister can make appointments reflecting Canada's diversity. But if they are elected, the Upper House could be less representative, she added...

        For example, women currently make up close to 37 per cent of the members of the Senate, while only 20 per cent of the House of Commons is made up of women. The first aboriginal [ie, Native American Indian] Senator was appointed in 1958, and Francophones have been represented in provinces outside of Quebec since 1871.

        "If Senators were elected in the same manner as MPs, representation of minorities of every kind - women, aboriginal people, Francophone minority communities and others - would likely diminish," [Senateuse Tardif] writes. "Therefore, it is possible that the Senate would deprive itself of a great diversity of expertise, viewpoints and knowledge, should the impact of Senate reform on the representation of minorities across the country be ignored."...

        - "Senate reform threatens diversity: Elected Upper House could raise obstacles to minorities," Edmonton Journal (26 September 2006)

"If Senators were elected in the same manner as MPs" - the key word, of course, is "if". Alberta uses winner-take-all plurality voting, which makes sense if you are waiting for individual seats to fall vacant one at a time. It would be problematic to use PR to choose four Senators-in-Waiting at once when only one can be appointed at a time, as this would leave the Prime Minister free to give the first seat to a candidate supported by a quota as low as 20%, while candidates representing the other 80% of voters miss out and have to wait. However, most of the elective-Senate reform proposals suggest Province-wide proportional representation, which would give an Upper House much like Australia's, in which women and "visible minorities" fare much better than in the Lower House, with its single-member electorates.

(For some reason, specifically the "Triple-E" proposals I've seen all seem to suggest six as the number of Senators per Province. Maybe this is to give a total chamber of 60-65 seats, so that electoral reform can be smuggled past public scrutiny as a "cutback amendment", but six is the second-worst number of seats you can have - after four - when using proportional representation, as it almost always ensures a 3-3 tie between left and right. Having said that, the 1998 Northern Ireland Good Friday peace accord specified PR with six-seaters, so maybe there is a method to the madness.)

(One of my contacts has suggested the Canadian reformers want six seats apiece in the expectation this would mean equal numbers of Anglophones and Francophones elected from the larger Provinces. If this really is the goal, it may be better served by having an odd number per Province at each election - say, 7, giving a Senate of 70-75, much like Australia's, assuming the Territories get a Senator or two each as well - and requiring parity, cumulatively, over successive elections. If and once, say, over three elections in a Province, one group - whether Francophones or Anglophones - has won 12 of the 21 seats,  it would be held at three seats at each of the next three elections, to make the total 21 out of 42. In addition there should be a cap of 4 seats out of 7 for either side at any one election. Once, say, 4 Francophones are past the quota - or three if the above provision has kicked in - the remaining Francophone candidates would be excluded from the count.)

Reporting on Senator Brown's elevation, libertarian Canadian journalist Colby Cosh  notes that the Liberal PMs' view was not just that they were not bound to appoint the Alberta straw-poll winner, but that they were bound not to. Cosh considers the Chrétien/ Martin line a reductio ad absurdum:

... at least [Canadian Liberal leader Stephane] Dion, unlike others in his party, spared us the complaints that it is "unconstitutional" for a Prime Minister to appoint a Senator who won an election and who otherwise meets the requirements of the office. According to this theory, the only eligible Albertans Mr Harper is categorically forbidden to appoint are the four people who were actually chosen by the province's voters in 2004. There could be no possible "constitutional" objection, after all, if Harper deliberately chose from the list of people who lost that election, or even if he pulled a random Albertan's name out of a hat on national television...

        - "Bert Brown's Red Chamber," National Post (Friday, 20 April 2007)

Here Colby is echoing the reasoning used by the Privy Council, then the supreme court of the British Empire, in R v Nat Bell Liquors [1922] 2 AC 128, when it upheld the Alberta Direct Legislation Act 1913 as valid even though it compelled the Provincial legislature to enact a proposal carried by voter-initiated referendum "without material alteration". Their Lordships concluded, with irony, that:

"It is impossible to say that [the Act] was not an Act of the Legislature... [merely] because it was the statutory duty of the Legislature to pass it. If the deference to the will of the people, which is involved in adopting without material alteration a measure of which the people has [sic] approved, were held to prevent it from being a competent Act, it would seem to follow that the Legislature would only be truly competent to legislate either in defiance of popular will or on subjects upon which the people is either wholly ignorant or wholly indifferent."

Zing! Gotcha! If you can choose, then you can choose not to choose, ie, to follow someone else's choice. Otherwise you don't really have a choice. Case closed, no? Well, no. As made clear above,  I'm no fan of an appointed Upper House, whether 100% appointed like the Canadian Senate, or only 20% appointed, like the Australian). But there's an excluded middle position here that Colby and the PrivCo haven't refuted.

It's entirely coherent, not self-contradictory, to authorise some person or body to make a particular decision, but also to stipulate (or imply) that a decision so made is invalid or void if the decision-maker is "acting under dictation", as the lawyers say. You could paraphrase section 24 of the Canadian Constitution Act 1867 (nee the British North America Act) as saying, in effect:

"Whenever a vacancy occurs in the Senate representation for a particular Province, the Prime Minister shall fill that vacancy by appointing the person, being a resident of that Province, whom the Prime Minister, in his or her own judgment, believes to be the most fit and proper person available."

This would be a reasonable paraphrase; you can imagine a democracy writing something like that into its Constitution, in as many words. But phrased that way, it would clearly make it unconstitutional for the Prime Minister to abdicate his or her own independent judgment. Then, if it became clear that the PM had appointed J Smith for no other plausible reason than that Smith had won a popular election in that Province (or, for that matter, had been put forward by the Premier of that Province), then someone who has sufficient legal standing (presumably, any voter of that Province) could petition the Supreme Court either (i) to bar that person from being appointed, or (ii) at least to suspend that appointment unless and until the PM has justified or reconsidered it... just as if the PM chose Smith because Smith paid the PM a hefty bribe (or, for that matter, because the PM pulled Smith’s name from a hat on national television).

(It's true that jurors sometimes - allegedly - flip a coin to decide guilt or innocence in a trial with confusing legal or factual issues. And those convictions or (especially) acquittals often stand, because juries (a) do not publicly state reasons for their verdicts, and (b) give only one of two verdicts. But when decision-makers (a) must state reasons for their decision, and/or (b) have a very wide menu of options, it is much easier to detect extraneous influences. If a Province has 1 million adult voters, there are nearly five hundred thousand million combinations of names that could come up if only two names are chosen. If the Prime Minister's selection of names "just happened" to match the four chosen in the Senatorial poll, the Supreme Court would have no difficulty at all in flushing out an arguably improper motive.)

This sort of judicial review - with the courts recognising that a certain other official or body rightfully enjoys a discretion, while insisting that each exercise of that discretion must represent the official's or body's own honest, reasonable and informed judgment - is well-established in common law systems. (Ironically, the classic case that reiterates this rule against "acting under dictation", Roncarelli v Duplessis[1959] SCR 121, is from Canada).

So, in the words of the prophet Brian: "You don't need to follow me! You've got to think for yourselves!"

[*]     The Dutch call their Upper House the "First Chamber" (Eerste Kamer) and their Lower House the "Second Chamber"(Tweede Kamer). Every other bicameral democracy numbers its two Houses the other way around.