27 July 2015

Smoke, mirrors, and Harper’s senate moratorium #nlpoli #cdnpoli

Heading into an election and with the three major federal parties within five or six points of each other in the opinion polls, the Prime Minister has decided that this is the time to talk about reforming the senate.

Stephen Harper said last week that he will not make any more appointments to the senate.  His plan is to create a crisis and then either reform the senate or abolish it in the ensuing melee among and with the provincial premiers.

The New Democrats are flattered. They have already advocated abolishing the senate altogether. This is a popular idea in Quebec where the NDP are threatened by the resurgence of the Bloc Quebecois.  The NDP won its current status as official opposition in 2011 with a surprising haul of seats in the province as the Bloc vote collapsed and its supporters looked for a politically friendly home. 

The sovereignists found a welcome embrace from the NDP.  To the extent that anyone else in the country thinks about the senate, it is likely only as the object of derision given the recent scandals over spending.  Few have thought through the implication of the NDP plan.  In Newfoundland and Labrador, for example, it would cut in half the province’s representation in Ottawa. 

For Newfoundland and Labrador, as with other small provinces,  the NDP plan would reduce it to perpetual insignificance. The province  would always be overshadowed by the more populous areas of the country.  But that, of course, is irrelevant, to the sort of politicians who think that the province is only about  a one-day-a-year holiday in its capital city,  deep fried fish, and a sugary soft drink made with fake flavouring.

The NDP and Thomas Mulcair are flattered that Harper is talking about the senate too. But do not trust him, warns Mulcair. 

Canadians would be well advised not to trust either of them.  Mulcair cannot deliver his promise.  To abolish the senate, he would need the same unanimity among the premiers that someone else would need to reform it.  The provincial premiers cannot agree on anything and the senate is one of them.  One of the biggest opponents of senate abolition, in fact, is the current provincial administration in Quebec.

This is the same problem Stephen Harper faces. To confront the problem, Harper will stop appointing senators until the provincial premiers come to their senses. Harper said last week that his plan

… will force the provinces over time — who as you know have been resistant to any reforms, in most cases — to either come up with a plan of comprehensive reform or to conclude that the only way to deal with the status quo is abolition.

The theory seems to be that this will happen once provincial representation in the senate drops below a certain point. 

At the very least,  Harper’s ideas has given constitutional nerds something to talk about. The CBC’s Terry Milewski even has an “analysis” piece on the CBC website to discuss the Harper plan.  There are problems, according to Milewski.  The Prime Minister may not be able to do as he says and simply opt not to make appointments.  Then there is the issue of impotence:  the senate doesn’t have any impact now, according to Milewski.  Maybe holding the senate hostage will not be such a good idea since no one seems to care.

That second one is a good point.  No one may care.  The first one is just nonsense: The prime minister has the absolute discretion to make appointments to the senate. There are absolutely no rules – written or unwritten – that describe any of the rules for appointing senators beyond a couple about age and property holdings.  There is nothing in any Canadian constitutional practice that says a seat must be filled within a particular time period.

Some of you have likely already started to see the problem with this Harper story.  The senate comprises 105 seats.  Currently, there are 22 vacancies. Each senator can stay in office until he or she reaches the age of 75 years.

The youngest senators are in their 40s. The oldest are in their early 70s.  The average prime minister will hold office for maybe a decade or less.  The longest-serving prime minister in Canadian history held office for a total of 22 years.

To get a really good sense of this, take a look at a list of senators.  You can sort this list – via Wikipedia – according to the age to retirement.   Scan down the list and you will see that none of the four senatorial divisions will hit zero,anything near zero, or even a tipping point in the near future.  So the idea that a particular province or group of provinces will feel pressure is a bit of wishful thinking.

As far as absolute numbers go, we’d need to see about another 35 retirements before we get the senate down to half the number of seats set out in the constitution. We will hit that point in late 2019 or early 2020.

Talk about your imminent crisis.

What are the odds Stephen Harper will still be in office five years from now? What are the odds that Thomas Mulcair, unable to abolish the senate, will hold to Harper’s promise?

Well, in both cases, the odds are about the same:  it doesn’t matter.  The prime minister has an absolute discretion when it comes to appointing senators. He can appoint them and he can decide not to appoint any.  Stephen Harper may hold to his pledge just as Thomas Mulcair might continue it, if he ever got to live at 24 Sussex Drive.

And then we might have a crisis of some kind.  Perhaps Mr. Harper will find himself beleaguered in a minority parliament.  Perhaps Mr. Mulcair will find it inconvenient to have a senate full of people who do not share his views. 

At that point, the appointments will start.  Indeed Mulcair as prime minister might make a crap-load of appointments on his first day in office.  The official excuse will be that he wants to get a bunch of his cronies in office to help advance the NDP agenda.  He will be no different – at that point – than any other prime minister.

That assumes, of course, that Harper will leave office and give Mulcair a pile of patronage seats to fill. If you believe that will happen, then you believe that this little Harper pledge is really about finding a way to force senate reform.  You will also believe that it was purely coincidental that Mulcair renewed his commitment to making it easier for Quebec to leave Canada  the same week that Gilles Duceppe returned as head of the Bloc Quebecois.

Whatever Stephen Harper is up to, senate reform isn’t it.  To figure that much out, you only have to think about it for a second.

Finding out what Harper is really doing, might take a bit more time and information.