Senate’s new-found independence may prove contagious
The background of these senators is less important than their number, because they bring the Senate closer to the day when senators with no formal allegiance to a party will form a plurality in the red chamber.

thestar.com
By Paul Wells
Oct. 28, 2016

Justin Trudeau named nine new senators on Thursday. It’s said he’ll name 12 more within days. Live in Ontario or Quebec? Check the mail. You may already be a winner!

This is especially likely if you’re one of 2,700 people who applied for a seat in Parliament’s plush red upper chamber. This is the first time applications have been accepted. Well, the first time there’s been a formal process. It’s not as though Canadians in decades past were strictly forbidden from asking for a seat in the great beyond. It’s just that their method used to be looser and more improvised, often over an umpteenth round of libations at the National Press Club or in a corner booth at Hy’s.

The latest nine seem a worthy bunch. Party bagmen and famous broadcasters are conspicuously under-represented among their number.

One new senator, Winnipeg psychiatrist Harvey Chochinov, is particularly hard to square with the notion that a Liberal-designed process will pick conspicuously Liberal senators. His previous government appointment, to a panel examining options for physician-assisted dying, came from Stephen Harper’s Conservative government. Chochinov had argued earlier that the legislated ban on assisted suicide should remain in place.

The background of these senators is less important than their number, because they bring the Senate closer to the day when senators with no formal allegiance to a party will form a plurality in the red chamber. Already this non-aligned faction is feeling its oats. Senator André Pratte, who was a newspaper editorialist before Trudeau appointed him a few months ago, welcomed the newcomers by sending out a news release to complain that the non-aligned bloc has only half as many seats on Senate committees as its numbers would indicate. Time to change the rules, Pratte said.

Indeed there will be many changes to the rules. Divorced from allegiance to party whips, the newly frisky Senate could cause all sorts of trouble, indefinitely stalling legislation by sending bills back to the Commons heavily amended. The Commons can, of course, ignore the amendments and send back the version MPs passed first. But what if the Senate sends the bill back down, amended again?

Now, up to a point, this is precisely what Trudeau had in mind when he booted Senate Liberals from the party’s national caucus nearly three years ago, and again when he campaigned on a promise to appoint new senators at arm’s length. Let ’em judge bills by their own lights, he said. Caucus discipline isn’t the world’s only virtue.

But even some of the new senators think there should be reasonable limits on their exercise of their independence. They came up with a decent compromise in June when they considered the Trudeau government’s assisted-dying legislation. Many senators thought the bill, as sent up from the Commons, restricted access to assisted dying too narrowly. They sent it down with amendments.

But when the Commons passed the bill again without the amendments, Senator Peter Harder, the Trudeau appointee who acts as the government’s representative in the Senate, called on his colleagues to approve it this time, to “accept the message passed by the House of Commons.” And enough of them did that the bill passed that way.

Let’s be clear here: here was a triumph of the party line, handed down by Prime Minister’s Office and obeyed in these days by nearly 100 per cent of MPs nearly 100 per cent of the time, over the right of senators to think independently. And that’s the way it should be. Prime ministers and their caucuses are elected and can be unelected. Even when they’re annoying they should win these confrontations.

The Senate would do well to codify the rule it improvised for the assisted-dying bill: Senators can send a bill back with amendments once, but not twice, or at least not forever. MPs may even choose to accept the odd Senate amendment, but it must be their choice.

But if that becomes the rule, strange things may start happening. An upper chamber where members could be thoughtful, entrepreneurial, free from groupthink but responsible in their exercise of modest power, would present a tempting contrast to the whipped and disciplined life most MPs live during office hours in Ottawa. Surely the Senate can’t have all the fun forever before MPs start to want some of what their colleagues down the hall enjoy. The Senate’s new-found independence may turn out to be contagious.