Document Information

Date: 1978-08
By: Marc Lalonde
Citation: Canada, Minister of State for Federal-Provincial Relations, Constitutional Reform: House of the Federation, by Marc Lalonde (Ottawa: Canadian Unity Information Office, 1978).
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Constitutional Reform
House of the Federation

Index

Introduction [1]

Why Replace The Senate? [3]

• The arguments for a bicameral legislature [3]
• The evolution of the Canadian Senate [3]
• Other forums [4]

What Are The Alternatives?[7]

• How should members be chosen? [7]
• 1st alternative: appointed for life [7]
• 2nd alternative: appointed for fixed terms [7]
• 3rd alternative: a “Bundesrat” [8]
• 4th alternative: direct election [9]
• 5th alternative: indirect election [10]

Choosing Among These Alternatives [13]

• Criteria for a new second chamber [13]
• Applying the criteria [14]
• Distribution of seats [14]
• The “double majority” mechanism [15]

What Is Proposed In The Bill? [17]

What Are Likely To Be The Results? [19]

Conclusion [23]

Appendices [25]

1. The German System and the Bundesrat [25]
2. Directly-elected second chambers [29]

• Australia [29]
• Switzerland [30]
• The United States [31]

3. The present and proposed distribution of seats [33]
4. Distribution of seats among political parties [34]

Endnotes

[Page 1]

Introduction

On June 20, 1978 the government tabled in the House of Commons the Constitutional Amendment Bill. The Bill includes proposals for a new House of the Federation to replace the present Senate. While a number of important sections of the British North America Act may be amended only by the Parliament of the United Kingdom, Canada’s Parliament has the authority, since a 1949 amendment to the B.N.A. Act initiated by the then Prime Minister, the Right Honourable Louis St-Laurent, to amend on its own certain sections of Canada’s Constitution. These sections include the ones dealing with Parliament’s second chamber, the Senate.

Since June 20 the proposals for the new House have been variously described as audacious, of no consequence, the centrepiece of the Bill, mere tinkering, dangerous, well-balanced, unworkable, ingenious, and so on. Evidently, there is a wide difference of opinion about whether the Senate should be abolished, what kind of second chamber (if any) should be put in its place, and how the new House of the Federation proposed by the government would be likely to function in practice.

This paper attempts to set forth the government’s thinking about the question of replacing the Senate: why the government believes that a new second chamber is needed which will be significantly different from the present Senate; why direct election of members could create difficulties for our parliamentary system; why appointments by governments would not yield as good results as selection by legislatures of members representing all political parties, and why the provincial as well as the federal legislatures should participate in selection. It deals with other questions involved with the new proposals, including why there should be a special voting procedure to protect the position of the French language in Canada and how the proposed new House of the Federation would be likely to affect the legislative process.

In explaining why the government made the choices that it did among the various possible alternatives, and in attempting to forecast the effect that the new House would have, the paper tries to take into account some of the questions which have been raised since the proposals were made public. The government recognizes that there are no perfect solutions to the problem of restructuring the institutions of government. Any solution will represent a compromise among several sometimes competing objectives.

The solutions that the government is proposing are the best that it has been able to devise. They are presented for discussion, and comments are not only needed but welcomed. It is hoped that this paper will contribute to discussion of the issues, and to furthering the process whereby we may finally arrive at a wise choice of new constitutional arrangements as part of the renewal of Canada’s federal system.

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Why Replace The Senate?

The government believes that it is necessary to replace the Senate because the country and Parliament need a second chamber that will function as a politically effective regional forum; that is, a forum in which different and competing regionally-based interests can be freely expressed, argued, and, if possible, reconciled by persons who are recognized by the public to be representative of their region.

Why does the present Senate not fill this role? Why is such a forum needed now? Could the House of Commons fill the need better than a new second Chamber? In attempting to answer these questions it will be useful to look first at the arguments for a “bicameral” legislature and then at the evolution of the Senate since 1867.

The arguments for a “bicameral” legislature

The central institutions of a federation typically include a “bicameral” legislature: that is, one composed of two chambers. One of the two chambers is elected on a “rep by pop” basis (proportional to population), but the other is usually one in which the component units or regions are represented equally or nearly so. Such a bicameral legislature has, ever since the U.S. Confederacy became a federation in 1789, been a device, when a federation is established, for reassuring the less populous units that they would not be completely subject to decisions taken by the majority of the population. Thus reassured, they could acquiesce in sufficient powers being given to the central authorities to achieve common purposes.

A further reason for having an “upper house,” both in federations and in unitary countries, has been to provide for “sober second thought” to be given to legislation emanating from the “lower house.” The usual practice has been to select the members of the upper house in a more “conservative” way than members of the popularly-elected lower house, in order to provide a greater element of stability, and, some thought, wisdom, than might be found in an assembly elected solely by purely democratic means. The unfettered will of the majority was, and often still is, mistrusted, therefore, not only by the less populous units of a federation but by those who fear demagogues, charismatic leaders, and indeed just the pressures which may be brought on the government of the day to act in a hasty, ill-considered and unwise fashion.

The manner of selecting the members of the house of “sober second thought” has varied a great deal. There have, for example, been qualifications of heredity and lineage (as in Britain), of property, and of age. Persons have been appointed by the Crown, by the President, or by the government. Or they have been elected by a much smaller group than the population at large, for example, by the members of a legislature. Frequently, members of the upper house are given a longer term of office than members of the lower house, in order to give them greater independence and to provide stability. Occasionally, several such provisions are brought together. In the United States, for example, Senators used to be “indirectly” elected, that is, elected by the state legislatures; the minimum age for Senators was and still is higher than for members of the House of Representatives, and Senators had and still have a longer term of office than members of the lower house.

The establishment and evolution of the Canadian Senate

The two main arguments for a bicameral legislature in a federation were accepted at the time of Confederation: that is, that the less populous units should be given protection, and that the legislation of the popularly elected lower house, the House of Commons, should be subject to “sober second thought.” A second chamber, the Senate, was therefore established. Protection for the less populous units was to be achieved by distributing the seats in the Senate on the basis of “Senate regions” and

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“sober second thought” was to be achieved by having Senators appointed by the Governor General in Council, for life. (The first group of Senators was, however, to be drawn wherever possible from among the members of the Legislative Councils in each province. The nominations were made by the provincial governments, and they were to ensure that both political parties were fairly represented.)

In 1867 there were three Senate regions (Ontario, Quebec and the Maritimes), and in 1915, at the time of the last main distribution of Senate seats, there were four regions, the West being the new region. Each region had 24 seats. However, since 1949 the Atlantic region has had 30 seats, six more than the others, because of the seats given to Newfoundland when it became a part of Canada. One seat has been added for each of the Territories.

At the time of Confederation, the debates about the composition of the Canadian Senate were extensive and a key element in the founding of our present federal system. For example, the fact that Quebec would receive as many Senate seats as the more populous Ontario made Quebec’s acceptance of the federal arrangements, which included a “rep by pop” Commons, easier.

The Confederation debates about the Senate were vigorous because the Senate was expected to be a politically powerful institution. In fact, the Senate has not over the years proved as important as the Fathers of Confederation anticipated. Undoubtedlya major factor has been that Senators were appointed by the government of the day, mainly from among supporters of the government party. A further factor has been the evolution since the 19th century of popular attitudes regarding appointed versus elected representatives. As a result, the Senate has become very much overshadowed by the directly- elected House of Commons.

The Senate has played a most useful role as a house of “sober second thought”: it has improved the quality of legislation by careful vetting of draft legal texts, and its committees have done valuable investigative work. But its members are not recognized by the public to be strong advocates of regional interests, and their influence as regional representatives on what might be called the policy content of federal legislation has been relatively small. The Senate has therefore been more successful as a house of “sober second thought” than as a regional forum. in most countries, whether federal or unitary, there has been a trend towards discounting the importance of the “second thought” role, while in federations the regional forum role is on the whole just as important as it ever was. In Canada the need for an effective regional forum may even be said to be a pressing one.

Other forums for the reconciliation of regional differences

Regional interests are of course espoused and reconciled within the Cabinet and within the parliamentary caucuses of the House of Commons, but for reasons of Cabinet and caucus solidarity this process takes place behind closed doors.

So far as their public utterances are concerned, Members of Parliament will usually subordinate advocacy of regional interests to their primary responsibility of supporting or opposing the government of the day. With neither the Senate nor the Commons filling an unfettered role as a regional forum, the public debate and reconciliation of regional differences regarding national policies is being increasingly taken over by federal-provincial negotiations or so-called “executive federalism.”

Executive federalism does, however, have a number of drawbacks. Executives are strengthened in relation to legislatures, at a time when the reverse may be required. Conferences often take place in private and they often fail to produce a consensus or even a clearly articulated result. This leaves an impression of continual discord between govern-

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ments which can exaggerate the degree of division within the country. The federal institutions of government, because they do not contain an effective regional forum, lose political authority. The result has tended to reinforce some of the centrifugal tendencies which have always been present in the Canadian Federation and which weaken our sense of unity.

It has been suggested by some that one could, by making changes in the way the House of Commons operates, turn it into a forum in which regional views are more freely expressed and thereby perhaps do away with the need for a second chamber. For example, it has been suggested that party discipline could be relaxed in two ways, thus allowing MPs more easily to argue publicly on behalf of the interests of their particular region or province. One way would be to allow more “free votes,” that is, votes that are not subject to the party whips. A second way would be to provide that a loss of confidence in the government could be registered only by a specific vote to that effect, which would allow MPs of the government party on occasion to vote against the government on a measure which they thought was injurious to their region. It has also been suggested that the “first past the post” electoral system could be changed to remedy some of its negative effects on provincial representation in the House of Commons. One of these effects is that political parties may win in the various provinces a share of seats that is much different from their share of the popular vote, with the result that parties become identified in the public mind with certain provinces or regions more than is really warranted, and this can be a handicap to the government of the day. For example, the present distribution of seats understates Liberal support in the West and Progressive Conservative support in Quebec. it sometimes happens, as the result of the electoral system, that the government party may fail to elect a single MP from a given province, which ordinarily means that the province will be unrepresented in the Cabinet.

The government has considered these suggestions, and it agrees that to implement them could have some beneficial results, although some unacceptable problems may be created too. For exam- ple, a change in our electoral system to one of proportional representation would change greatly the operation of our party system and parliamentary system of government. It could result in a multiplicity of parties and continual coalition governments.

The main difficulty, however, is that it seems doubtful whether such change would achieve the objective of an effective regional forum. For example, there is probably very limited scope in our system of government for having free votes on major policy questions that affect the regions. Most federal legislation does have different regional effects, so that to except all or much of such legislation from partisan politics would be to take away a good deal of the need for party organization and activity. Secondly, while a new electoral system would change the representation in the Commons it would not of itself remove the need for party discipline, and one possible result is that one might end up with a multiplicity of parties each representing a different province or region, so that one would lose the integrating role which is now carried out by the major federal parties which have support across the country. While this result would be tolerable in a second chamber to which the government was not responsible, it would scarcely be tolerable in the House of Commons.

Other federations have invariably found it necessary to have a second chamber, and this does seem to be the advisable course for Canada too. The problem is to devise a second chamber that will be not only politically effective as a regional forum but also compatible with our parliamentary system of government. In other words, a new second chamber should have sufficient political authority to represent regional interests effectively, but it should not undermine the ultimate supremacy of the House of Commons, because otherwise our system of having a government answerable to one directly-elected chamber would become unworkable. The succeeding sections of this paper will assess the various alternatives with these criteria in mind.

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What Are The Alternatives?

There are three principal choices to be made regarding the creation of a new regional forum:

• How members should be chosen.
• What powers the new House should have.
• How seats would be distributed among Canada’s provinces.

How should members be chosen?

Perhaps the key issue is how members should be chosen, because the method used will determine to a large extent the political authority they can command and the power which they can effectively exercise. The present Senate has legislative power which, except as regards money bills, is equivalent to that of the House of Commons, but Senators feel that they can exercise it to the full only on rare occasions. There are several alternatives to the present system of appointment, and the principal ones are as follows:

A first alternative:

Senators appointed for an indefinite period (until retirement) by the federal government from among persons nominated by provincial governments. (The Special Joint Parliamentary Committee on the Constitution recommended in 1972 that half of the Senate be appointed in this way.)

A second alternative:

Senators appointed for fixed terms by the federal and provincial governments.

A third alternative:

A Senate composed of provincial government ministers, similar to the German “Bundesrat” where a province’s votes are cast in a block by each provincial government (see Appendix 1).

A fourth alternative:

Senators elected directly by popular vote, as in the United States, Switzerland and Australia (see Appendix 2).

A fifth alternative:

Senators elected by federal or provincial legislatures, or by both. (This is known as “indirect election.”)

First alternative: Senators appointed by the federal government for life from among persons nominated by the provincial governments.

In the view of the Government of Canada this would not be likely to bring about a significant change in the role of the second chamber. It is true that there could be some improvement of regional representation, in that the parties in the Senate would become more varied, although probably not as varied as under a system of selection by provincial legislatures (see the fifth alternative described below). The main difficulty would be that Senators appointed for life (at least, until retirement) would not feel able to play a politically effective regional role. This point will be expanded upon later.

Second alternative: Senators appointed for fixed terms by the federal and provincial governments.

While this would involve more of a change from the present system, because appointments would be for a limited period, one would not necessarily succeed in having members in the second chamber who would be seen as truly representative of their region. For example, when there is a change of government, the Senators appointed by the former government would be open to the charge of being no longer representative. A further difficulty is that, while there would be representatives from more than one federal or provinci-

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al party, as governments change, it would be difficult to achieve a broad mix of regional representatives drawn from minor as well as major parties.

Third alternative: a “Bundesrat”

This would involve a major change from the present system, and because it has been the subject of considerable interest in some quarters, it merits an extended discussion here. A Bundesrat is a second chamber composed of provincial ministers voting on the instructions of their government, not just nominees or appointees of provincial governments as under the first and second alternatives mentioned above.

The idea of a Bundesrat type of regional forum appeals to some, because the institution has undoubtedly been successful in Germany, and it is argued that a comparable body in Canada would result in better coordination of federal and provincial government activities and in a greater integration of federal and provincial politics. It must be noted, however, that there are several reasons why the institution is particularly suited to the German federal system and why it might not work as well in Canada.

Germany has a distinctive type of federal system in which most legislative power is concentrated at the centre, with a resulting high degree of uniformity in public programs throughout the country, and much of the central legislation is administered not by the central government but by the provinces. A high degree of institutionalized coordination is therefore essential, because in broad terms it may be said that the specialty of the central authorities is legislation and the specialty of the provincial authorities is administration. This “division of labour” is, therefore, a principal justification for the existence of the Bundesrat.

Moreover, there are two features of the German federal system which, compared with the Canadian system, may make it easier for a Bundesrat to work well, in a spirit of compromise and give-and-take The first is the absence in Germany of some factors in Canada which tend to place a strain on inter-regional relationships. Thus, the divisions that we have in Canada between centre and periphery (e.g. about tariffs and freight rates), between poor and rich provinces, between resource-rich provinces and those less well endowed, and between linguistic groups, do not exist in comparable degree in Germany.

The second feature of the German system is the greater degree of integration of the federal and provincial political parties. Most of the great political issues in Germany are party political issues rather than interregional or federal-provincial issues. The two latter types of issue tend for the most part to be resolved first within the political parties, and then between them. The result is a regionally more cohesive system, since the debate about the issues takes place with a national focus centred on national institutions, notably on the lower house of the federal legislature, but also more recently on the Bundesrat as well because it has lately become increasingly involved in the national struggle for party supremacy.

It is argued by some Canadians that the creation of a Canadian equivalent to the Bundesrat would help to bring about integration of the federal and provincial political parties and make provincial governments politically “responsible” for the positions they take with regard to federal legislation and policies. While this could in fact happen to some degree, it is unlikely that it would come close to reproducing the situation in Germany, first because of the differences already mentioned between Canadian regions and linguistic groups, and second because there is little prospect of the provincial governments in Canada agreeing to the same kind of “division of labour” (legislation at the centre, and administration by the provinces) that is practised in Germany. If the provinces were to retain their present wide range of legislative authority, which is wider than in any other

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of the well-known federations except perhaps Australia, a solid basis for separate provincial parties would remain. (Even in Germany Bavaria has a separate political party.) In a Canadian Bundesrat they would confront one another on the basis of widely-divergent interests, wider than in Germany.

It must also be noted that in Germany there are some important criticisms of the Bundesrat. It is argued that German provincial legislatures as distinct from provincial governments have little influence on federal legislation, even indirectly, and that executives generally have too much power. It has also been argued that all parties represented in a province’s legislature should be represented in the province’s block of votes in the Bundesrat, rather than just the government party or coalition. It should also be noted that for most of the period since the present German Constitution came into effect, the Bundesrat has been controlled by the same political party or coalition as the lower house. In the last few years the Bundesrat has been controlled, at first by a narow margin but now by one which is increasing, by the parties in opposition to the government, and the effects of this being carried on into the long term are not easy to assess. It is also a feature of the system that an election in a single province can change the party configuration in the Bundesrat and with it, the chances of the government implementing its political program because the Bundesrat has an outright veto over perhaps more than half of all federal legislation, and the second chamber more often than not votes on party lines.

On balance, it appears that for Canada to adopt a Bundesrat type of second chamber would represent a major institutional change comparable in degree with changing from a parliamentary system to a congressional one, and that given Canada’s particular characteristics it is by no means clear that such a change would be desirable or even workable.

It may be added that while a Bundesrat could introduce closer federal-provincial coordination (albeit somewhat one-sided, because only federal legislation would be subject to it), this is not the primary goal of the government in seeking to establish an effective regional forum. The government believes that effective coordination of federal and provincial policies and programs will continue to be largely the domain of intergovernmental consultation and conferences.

Fourth alternative: direct election

An obvious alternative to consider is direct election of members of the second chamber. This is the method used in two congressional type systems based on the separation of executive and legislative powers (the United States and Switzerland) and in one parliamentary system very similar to our own (Australia). The U.S. and Swiss upper houses each in their own way constitute an effective regional forum as part of the central institutions of government. They encourage a high level of national integration. For example, federalism in Switzerland is as much a question of the representation of the cantons in the Swiss Senate as it is of the degree of legislative autonomy which is given to the cantons. However, it is evident that it is easier to achieve a successful regional forum in congressional systems, and ones in which elections take place at fixed intervals: Senators may speak out and vote in a relatively independent fashion without fear that they are likely to undermine the position or bring about the fall of the government.

What is perhaps more instructive for Canadians is the Australian experience, because Australia like Canada has a parliamentary system, and the fact.is that that experience has on the whole been disappointing. The directly-elected Australian Senate has, by and large, tended to become not so much a forum for the articulation and reconciliation of regionally-based interests as an extension of the party-based conflict in the lower house. Thus, in the Australian Senate party discipline tends as in the lower house to mute the expression of regional interests. When the Senate helped to force the election

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that brought about the fall of the Whitlam Government in 1975, one result was an intensification of the controversy that has for a long time in Australia surrounded the role of the Senate.

It is perhaps possible by making some changes in the Australian model to adapt it for Canadian use. Thus, one could give a Canadian second chamber somewhat less power. One could also try to arrange matters so that a directly-elected second chamber would be less dominated by the struggle between the federal parties; this might be achieved by having members elected on the occasion of the provincial general elections in their province, so as to involve the provincial parties as much or more than the federal parties. However, no matter what precautions are taken, any form of directly-elected Senate is bound to raise questions about whether the government should command the confidence of not only one but both houses, and therefore about its capacity to act effectively. The experiment might work but it might not, because there would be a number of uncertainties. The risks would be much greater of paralyzing the system than under the less radical change which would be involved in the remaining alternative: the alternative of so-called “indirect” election.

Fifth alternative: indirect election

Members of the second chamber could be elected “indirectly,” that is, by a two-tiered system of elections: the voters first elect legislators, whether federal MPs or provincial MLAs, who in turn elect members of the second chamber. Indirect election was used for the United States Senate until 1913; until that time the state legislatures elected federal Senators. In Switzerland, the method of choosing a canton’s representatives in the second chamber depends on cantonal law, and until quite recently a few cantonal legislatures elected their representatives by this “indirect” method. Now all Swiss cantons use direct election. Both the U.S. and Swiss political systems are, as noted already, based on the separation of powers between the executive and the legislature, and in those countries the replacement of indirect election with direct election could be undertaken with fewer worries than in a parliamentary system. In India, which has a post-World War II constitution and a parliamentary system, indirect election by state legislatures is used for the federal second chamber, with the exception of a few members chosen by the President of India.

One criticism of indirect election is that it is less democratic than direct election. The advantage for a parliamentary system, on the other hand, is that members of an upper house who are elected indirectly are less likely to feel that they have an electoral mandate that is strong enough for them to challenge repeatedly and in a partisan way the directly-elected members of the lower house.

The principal questions which arise in the case of a system of indirect election are as follows:

• Should the federal legislature or the provincial legislatures, or both, elect members to the second chamber?
• Should the elected members be chosen by majority vote in the legislature (and so perhaps be likely to come mainly from the government party)? Or should they be chosen to reflect the proportion of seats held by each party in the legislature? Or should they be chosen to reflect the proportion of the popular vote won by each party represented in the legislature?

On the first question, there are those who would argue that, failing direct election by the voters in a province, the institution which represents only the province, that is, the provincial legislature, should elect its representatives. This would correspond with past practice in the United States and Switzerland and with present practice in India. Against this view it might be argued that the provincial legislature is elected solely to pass laws in areas of provincial jurisdiction; that the voters in provincial elections

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should not be asked to take into account an added complex dimension, namely, how MLAs may proceed to choose members of the federal second chamber.

A further argument is that there is no good reason for a “check” by the indirectly-elected representatives of provincial legislatures on the exercise of federal jurisdiction by directly-elected MPs (except possibly in relation to use of the federal spending power in areas of provincial jurisdiction). Consequently if members of the second federal chamber are to be indirectly elected they should be elected by the House of Commons which, no less than provincial legislatures, contains members who represent local and regional constituencies and interests, but who were elected to discharge a role in relation to federal affairs.

Evidently, there are arguments on both sides. The question is perhaps best resolved by recognizing that federal and provincial legislators both represent regional interests, although from different perspectives. If follows that the federal and provincial legislatures and political parties should all play a role in the selection of members of the second chamber.

The second question was how the various political parties which are represented in the federal and provincial legislatures should be represented in the second chamber. If only the government parties are represented, and if, say, half of the members of the second chamber are from the party of the federal government of the day, that government could well be in a position to control the new House at all times thus reducing the likelihood of achieving a forum in which regional views may be freely expressed. If, despite the arguments in the preceding paragraph, one were to exclude members elected by the House of Commons and confine the membership to persons representing the provincial government parties, one would have something that closely approached a Bundesrat, except that the members would not be provincial ministers. Enough has been said already in this paper to suggest that a Bundesrat type of second chamber is probably not suitable for Canada.

If the term office of such members ended with each provincial election similarity to a Bundesrat would be very close. The term of office could, however, be fixed and of such a length that it would exceed the life of a provincial government, thus giving the members somewhat more independence. The problem then would be that when a government changes hands during this fixed term, the new government would no longer regard the province’s members in the second chamber as being properly representative.

One further difficulty with only the government parties being represented in the second chamber is that, under our “first past the post” electoral system, a government may have a majority of seats in the legislature but represent only a minority of the electorate. While the electoral system may help to increase the likelihood of governments having a majority of seats in the legislature, and this is seen by some as being helpful to our system of parliamentary government, a fairly strong argument could be made against using the disparate results of the electoral system as the basis for a further, “indirect” election of persons to serve in the second chamber.

It is evident that there are difficulties with confining the representation to government parties only. The advantages of extending the representation to opposition parties are equally evident. With more parties represented in the second chamber, the chances of the federal government of the day or the official opposition controlling it are likely to be small, so that party discipline should play a minor role and, as a result, regional viewpoints could be more freely expressed. With all opposition as well as government parties represented, the debates would probably be more vigorous, and the confrontation of differing views and their reconciliation would probably be a more open process. For example, if only provincial government parties were represented, it is quite conceivable that more agreements and accom-

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modations would be made out of the public eye, rather than on the floor of the new House, much as they are now made among governments at and in between many federal-provincial conferences.

A further advantage of having more parties represented is thatginterregional “cleavages” or hostility could be softened by the formation, with regard to different specific issues, of different inter-party alliances which cross regional boundaries. The House of Commons already performs such an integrating function but, as has been noted, within the constraints of a measure of party discipline which has to be severe enough to carry on parliamentary government.

If it is considered that the members chosen for the second chamber should be drawn from more than just the party which forms the government in the legislature, one must provide either by convention or by a written rule the way in which members would be drawn from other parties as well. It has already been suggested that the disparate results of our “first past the post” electoral system should not be used as the basis for a further, “indirect” election. One should therefore not use as the basis for distributing seats in the second chamber the number of seats held by each party in the legislature, but rather the share of the popular vote which each party received at the most recent general election.

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What Choice Should Be Made Among These Alternatives?

The first question for decision is the method of choosing members of the second chamber, because the method will in large measure determine what legislative power ought to be given the chamber and, as a result, the political authority which it can exercise. When one has an idea of the power and authority that will be conferred it is easier to address the important question of the regional distribution of seats.

Of the five ways of choosing members, it appears that the ones which ought to be carefully examined are the Bundesrat system, direct election, and indirect election. No attempt has been made to look at hybrid forms, because there would be serious difficulties both for the chamber and for handling the selection process in any system that did not have all or the vast majority of members chosen on the same basis. For example, with a mixture of directly-elected and appointed members invidious comparisons would probably be made between the “mandate” of each class of member.

Criteria for a new second chamber

The government has expressed a preference in the Constitutional Amendment Bill for the fifth alternative, the method of indirect election, because it believes that this method comes nearest to meeting all of the following criteria which it considers are necessary for a new second chamber.

1. The second chamber should constitute a forum in which regional views may freely be expressed.

Members should not be bound by the constraints of party discipline that apply in the House of Commons. This relative freedom from party discipline (it would only be relative and not absolute) could exist only if the government did not, either in law or in terms of practical politics, have to command the confidence of the second chamber in order to survive. The Constitution could state explicitly that the government is not formally obliged to command the second chamber’s confidence, and the second chamber’s powers of veto could be appropriately limited; but despite these constitutional provisions one could envisage a situation in which a second chamber could repeatedly frustrate the government’s attempts to legislate. The best way to ensure against this would be to so arrange matters that no single federal political party can at any time expect to have a majority of members, or to control a permanent majority in concert with other parties. Consequently, the new House should be so designed that party groups would be comparatively numerous and would tend to combine in different ways on different issues: alliances would be continually shifting. As a result, the government of the day in the House of Commons should be able to expect neither to control the new House, nor to face an unchanging hostile majority that is dedicated mainly to frustrating its political program.

2. The regional views expressed in the second chamber should reflect the broadest possible mix of representative groups.

This means in practice that all of the political parties, whether federal or provincial, which enjoy significant support in a region should be represented, and therefore both the federal and provincial legislatures should select members of the second chamber.

3. The House of Commons should remain supreme, so that the principle of responsible parliamentary government will be preserved.

While the Commons, through the government of the day which is responsible to it, should be obliged to negotiate

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and compromise with party groups represented in the second chamber, it should ultimately be able to make its will prevail on a given issue, although at some political cost if it does so without adequate justification in the eyes of the electorate.

Applying the criteria to alternative ways of choosing members

It has been argued here that a system of direct election might not meet the third criterion; nor might it meet the first, because a directly-elected body could, as appears to be the case with the Australian Senate, be dominated by a struggle of the federal parties to control it. This could happen even if the provincial parties were involved through the holding of elections for the second chamber coincident with provincial general elections. Thus, direct election would run the risk of failing to achieve the principal objective of a forum in which regional views may be freely expressed.

A Bundesrat type of second chamber would fail to meet the second criterion, which calls for a broad mix of regional groups to be represented. If one is establishing a forum to represent regional views it would seem that political parties other than the party of the government of the province should be represented as well. This is particularly desirable in Canada because, as the result of the “first past the post” electoral system which prevails in Canada, and which applies to elections in all of Canada’s ten provinces, a government may represent only a minority of the electorate. A Bundesrat would not only fail to provide a broad mix of regional representatives, it would also threaten Commons supremacy unless its powers were appreciably less than those of the Bundesrat in Germany.

A system of indirect election can more easily be designed so as to meet all of the three criteria listed earlier. If the political parties to be represented in the new chamber were sufficiently numerous and broadly representative, no one party or permanent grouping of parties would be likely to dominate the chamber, and it should therefore be possible to achieve in the chamber a degree of freedom for expression of regional views, based on a judicious balance of regional and party loyalty, that cannot be achieved in the House of Commons. Also, because members would be indirectly elected, it is unlikely that they would seek as a collectivity persistently to frustrate the will of the directly-elected Commons. It is these considerations which have guided the government in setting forth in the Constitutional Amendment Bill the particular features that it believes should characterize the new chamber. Before giving a resume of those features, it would be well to say something about two important matters: the distribution of seats among the provinces, and the proposed “double majority” voting mechanism for approving measures of special linguistic significance.

The distribution of seats among the provinces

It was noted at the beginning of this paper that the salient feature of a second chamber in a federal system is that, in order to ensure that all regions have an adequate input into the central legislative process, it overrepresents the less populous component units of the federation in relation to their share of population. In the present Canadian Senate, the distribution of seats among the provinces and regions has been of relatively limited importance, given the lack of political authority now exercised in that body. In the new second chamber in which the members would want, and would be expected, to exercise a greater degree of political authority, the question of the distribution of seats takes on added significance.

One of the principal and most persistent characteristics of the Canadian Federation is the tension between the “outer” provinces of the Atlantic and

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Western regions on the one hand, and the “inner” provinces of Ontario and Quebec on the other. It affects public discussion on numerous important policy issues, such as tariffs, freight rates, and industrial development. In the broad sweep of Canadian history it stands comparison with the tension between Canada’s linguistic groups. As Premier Blakeney of Saskatchewan has recently said, for the western grain farmer the “enemy” is Bay Street and St. James Street, rather than the francophone living in Quebec. In the terminology of Premier Levesque, the eastern, western and central scorpions have managed not only to survive but to flourish remarkably well together in the same Canadian bottle. However, the tensions between the regions have lately increased, and power has shifted, to the point that Canada’s central institutions of government should take account of these new developments. One may indeed speculate that, if the Senate had worked out in the way that was originally expected, this tension would have been more successfully accommodated.

Be that as it may, it is the belief of the Canadian government that the distribution of seats in a new second chamber should, while retaining the historic parity between Ontario and Quebec, give a larger share to the West. Within the Atlantic region additional seats should be given to Newfoundland to reflect a better balance within that region in relation to the population of the four provinces composing it.

The “double majority” mechanism for linguistic measures

The second matter mentioned above is the protection of the position of the French language in Canada. French-speaking Canadians fear that they may become a progressively smaller minority in Canada, and in North America as a whole, and that the survival of their language and culture is therefore seriously threatened. The government has inserted in the Constitutional Amendment Bill, as part of the proposed Statement of Aims of the Canadian Federation, “a permanent national commitment to the endurance and self-fulfillment of the Canadian French-speaking society centred in but not limited to Quebec.” Several provisions of the proposed Charter of Rights and Freedoms would help to ensure the realization of this goal, but such provisions could not alone ensure that the position of the French language would be fully protected against action that could be injurious even though it were not in breach of any of the provisions.

As has already been noted in this paper, the purpose of a federal second chamber is to protect the regional interests of the less populous provinces in the day to day consideration of federal legislation, by giving them a voting strength which is more than proportionate to their population. The same considerations argue that the second chamber should be used to protect the special interests of a minority linguistic community by according to it, for certain legislation, a voting strength which is more than proportionate to its share of population. The protection of Canada’s minority official language and the protection of the interests of the less populous provinces and regions are, in the view of the government, equally vital for the well-being of the Canadian Federation. The government has therefore included in the Bill the requirement that measures of special linguistic significance should be approved by a “double majority” in the new House; that is, a majority of its French-speaking members as well as a majority of its English-speaking members.

It should be noted that while a good many and perhaps most of the French-speaking members will be from the Province of Quebec (as will some of the English-speaking members), a number will also be from other provinces. This proposed voting mechanism is therefore not one that would give a “special status” to the representatives of the Province of Quebec. It would help to protect the language of the French-speaking Canadians from all provinces.

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What Is Proposed In The Constitutional Amendment Bill?

What follows are the principal proposals regarding the new second chamber that are contained in the Bill.

1. The present Senate would be abolished. (While there are no provisions in the Bill itself to compensate present Senators for their loss of tenure, the Prime Minister has stated that a special commission would be established to review this question and to make recommendations)

2. A new House of the Federation would be established, composed of 118 seats. The distribution of these seats would be based partly on the four traditional Senate regions, and partly on the principle that the less populous is a province, the more should its share of seats be weighted. While the number of seats for Ontario and Quebec would remain at 24 each, the number for the Atlantic region would be increased by two for a total of 32 (these two additional seats going to Newfoundland), and for the Western region by 12, for a total of 36 (British Columbia and Alberta would get four more each, and Saskatchewan and Manitoba would get two more each). The two Territories would get one seat each, as now. Both the present and the proposed distribution of seats are shown in the attached table (Appendix 3).

3. Half of the members of the new House that are to be chosen from any particular province would be chosen by the House of Commons, following a federal general election, and half by the provincial legislature, following the general election in the province. In both cases, the allocation of seats would be made, so far as is practicable, in proportion to the popular vote received in the province by those political parties contesting the election in question and electing at least one member to the legislature. Members from the Territories would be selected by the Governor General in Council after each election of the territorial councils. The attached tables (Appendix 4) show how the seats would be allocated among the various political parties at this time (August 1978) if the proposals in the Bill were already in effect. The allocation has been worked out using the results of the most recent federal and provincial general elections. With each new election, the standings would of course be likely to change.

4. In keeping with long-standing Canadian parliamentary tradition, members of the new House could not also be members of Parliament or of provincial legislatures.

5. The government of the day would not have to command the “confidence” of the new House in order to survive.

6. The new House would have only a “suspensive” veto: that is, after not less than 60 days had elapsed following a negative vote in the new House on a Bill that had been passed by the Commons, the government would, despite the negative vote, have the option of presenting the Bill for the assent of the Governor General, whereupon the Bill would become law. Similarly, if the new House neglects to deal with a Bill, the government may, not less than 60 days after the Bill was presented to the new House, present it for assent. in both cases there is, after the minimum delay of 60 days, a limited period within which the government must exercise this option.

7. It is apparent that there could be an interval as long as 120 days between the passing of a Bill by the Commons and the day when the government may present it for assent over the objections of the House of the Federation. This is because the House of the Federation could defer voting on a Bill until the 60th day after it had received it, and if its vote is negative, the government must wait a further 60 days before presenting the Bill for assent.

8. If the House of the Federation receives a Bill within 45 sitting days of the end of a session,

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and if it takes no action on the Bill during the session, the government cannot proceed to present the Bill for assent 60 calendar days after the date the new House received the Bill. Instead, the Bill “dies” at the end of the session and would need to be reintroduced in both Houses during the following session.

9. Any urgent Bill which does not have a significant impact on federal-provincial relations, and which is not of special linguistic significance, may, if the action is authorized by a two-thirds vote in the House of Commons, be presented immediately to the Governor General for assent without the Bill having first received the approval of the new House of the Federation. Even in such urgent cases, however, the approval of the Commons for such handling of the Bill must not be sought before the new House has had at least seven days in which to consider the Bill.

10. Members of the new House would be able to intitiate legislation. However, like present Senators, they would not be able to originate money Bills.

11. Members of the new House would be eligible for inclusion in the federal Cabinet, as are members of the present Senate. However, contrary to present practice, Ministers from the second chamber would be able to answer questions, and take part in debate (though not vote), in the House of Commons. Ministers who are members of the Commons would likewise be able to speak in the second chamber.

12. The approval of the new House would be required for appointments to the Supreme Court of Canada, once candidates had been selected following the new federal-provincial consultation process which is provided for in the Bill.

13. The approval of the new House would also be required for senior appointments to certain institutions that have been established by Parliament, such as federal crown corporations and regulatory bodies. The institutions in question are those which would be designated by Parliament as ones to which the new approval procedure should apply.

14. Legislative measures or provisions of “special linguistic significance” would require the approval of a “double majority” of members of the new House: that is, a majority of French-speaking members as well as a majority of English-speaking members. Moreover, given the failure of a measure to receive the approval of this “double majority,” the government could not proceed after a delay of 60 days to present the measure for the assent of the Governor General, as with other legislation, without obtaining a second favourable Commons vote, and one consisting of two-thirds of the members of the Commons voting on the measure. It has been noted under 9 above that no measure of special linguistic significance may qualify as an urgent Bill. Such a measure could not therefore avoid the requirement for action by the second chamber and its “double majority.”

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What Are Likely To Be The Results?

As with most political institutions it is not possible to predict precisely how the new House would operate in practice. However, it should be possible to make some sort of reasonably informed forecast.

The government’s objective is to create a forum for the free expression of regional views as part of Canada’s Parliament, and one that will have significant political authority without challenging the supremacy of the House of Commons. The first question to ask is whether this objective is likely to be achieved, and the second is, if it is achieved, what are likely to be the effects on Canada’s political system.

The first question breaks down into three parts:

(1) Will regional views be freely expressed?

(2) Will the new House have significant political authority, as the result

(a) of its constitutional powers, and

(b) of the “mandate” and quality of its members?

(3) Will the House of Commons remain supreme and effective?

If the answer to all these questions is “Yes,” the government’s objective will be achieved.

Will regional views be freely expressed? it has been suggested in this paper that the chances are that they will, given that both the federal government party and the official opposition are likely to have difficulty in organizing a continuing alliance of party groupings in the second chamber that will produce a majority whose main objective is to sustain or defeat the government. There are at least two reasons for this. One is the multiplicity of federal and provincial parties represented in the new chamber, all of whom will have different allegiances and objectives. The second is that legislators who are not directly elected are likely to feel inhibited about opposing the will of the directly-elected Commons solely on partisan grounds. If these suppositions are correct, the government will not, any more in practice than in law, have to command the “confidence” of the second chamber, and party discipline is therefore likely to be less pervasive there than in the Commons, thus allowing the expression of regional views. Party allegiances will not be absent, but it can be hoped that they may be tempered by the considerations which have been mentioned.

Will the new House have significant powers under the provisions of the constitution? The answer is emphatically “Yes,” although this fact has not been recognized by a number of people who have commented publicly on the Bill. It is a key question, because if the answer is “No,” the government’s objective as defined above will not be achieved, and there would be little point in proceeding with the establishment of the new House and with the considerable inconvenience that the change entails.

The principal criticism by those who see the answer as “No,” is that the new House will have only a suspensive veto, and that its delaying power will be only 60 days. As a general principle, one ought not, in the view of the government, give a body that is not directly elected an outright veto over legislation approved by the House of Commons. However, the right to delay this legislation is a very important power indeed, as some commentators have been quick to realize, because a negative vote in the second chamber and the consequent delay will focus public attention on the issue in a way that few other devices can. if the government of the day. wants to proceed with a Bill unchanged, in the face of this negative vote, it will have to have excellent arguments as to why it is not willing to compromise.

It is also reasonable to suppose that an indirectly- elected body such as the one proposed is more likely, as would no doubt be the present Senate, to use a suspensive veto than an outright veto. Whereas the new House would hesitate to use an outright veto, because of the risk of public criticism that overriding the directly-elected House of Commons would entail, it would feel less constrained about delaying a Bill in the event that it could not force upon the government a compromise that it considered acceptable.

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The question of whether the delay attached to the suspensive veto should be 60 days rather than some longer period is, although important, a subsidiary one to the fact of giving the second chamber the power to delay Commons legislation. Whatever the period, the pressure will be on the government to defend its position. As was noted above, the government could, under the provisions of the Constitutional Amendment Bill, actually be forced to wait up to 120 days before it could present a Bill for assent over the objections of the new House.

The power of the new second chamber to delay legislation and to attract public attention by a negative vote is almost certain to bring about some major changes in the way that legislation is first formulated within the federal administrative apparatus and then handled in Parliament. As things stand now, the government of the day can normally count upon its control of the Commons, and upon the usual compliance of the Senate, to ensure passage of its legislation in a form that is little changed, so far as the major elements of it are concerned. With the establishment of a new House of the Federation, not controlled by the government, such relatively trouble-free passage through Parliament could no longer be counted upon. The government is most unlikely to disregard one negative vote after another by the second chamber. It is much more likely that the government will, through the minister responsible for a given piece of legislation, consult and negotiate, both in advance of the final drafting of legislation and during its examination in the second chamber, with interested members in the new House who would possibly be formed into committees for this purpose. The members and committees of the second chamber could in turn well become, along with the government, the focus for representations from the various interested groups in the country who would be affected by the legislation.

This process of representation, consultation, negotiation and compromise is likely to slow down somewhat the formulation and passing of legislation. This is the almost inevitable result of any sharing of political authority, and the government believes that it is a worthwhile price to pay for obtaining a more visible and more broadly-based regional input into the federal legislative process.

The new House would have, in addition to the suspensive veto, significant powers in two other respects. it would be able to veto appointments to the Supreme Court and senior appointments to other designated federal institutions. And the French-speaking members of the chamber would be in a strong position to defend the French language, so far as federal legislation is concerned. It is true that the Commons could, by a two-thirds majority vote, override a rejection by the “double majority.” This arrangement recognizes the ultimate supremacy of the directly-elected Commons. However, there is considerable protection against irresponsible use of this supremacy. First, the debate in the new House would allow French-speaking members fully and publicly to express their views. Second, it would not be easy to muster a two-thirds majority in the Commons in such circumstances. And third, even if in spite of these protections a law should pass which adversely affected the preservation of the language spoken by any substantial identifiable French (or English) linguistic community, there would be the possibility of challenging the law under the Charter of Rights and Freedoms.

The new House would therefore have significant constitutional power. However, the same may be said about the present Senate which has an absolute veto over Commons legislation if it chooses to use it. That the Senate rarely uses this veto testifies to the fact that members of the second chamber feel that they do not have the sort of mandate which would permit them to exercise the constitutional power which is technically theirs. Would the members of the new House of the Federation, chosen in the way that is proposed, feel that they would have a mandate to use (or threaten to use) the suspensive veto?

The answer is probably “Yes.” It is worth contrasting the method by which members of the second chamber, compared with present Senators, would be chosen. At present, Senators are appointed only by the government of the day, and the

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cumulative result has been that an overwhelming majority in today’s Senate have been appointed by one political party. They are appointed for their working life, and there is no basis for public discussion of appointments before they are made. Under the proposed arrangements, members would be chosen by all the federal and provincial parties. Based on the most recent election results, the federal Liberal party, as distinct from the provincial Liberal parties, would nominate only 24 of 118 members of the new House (see Appendix 4). Moreover, the legislatures concerned would have the right to endorse or reject the parties’ choice. There would thus be the basis for public discussion on the merits of potential members before they are elected to the second chamber. A further difference is that members would be chosen for a limited and indefinite period of time, that is, until the next federal or provincial general election, although their term could be renewed to the extent that the party retains sufficient popular support to keep its second chamber seats.

The various parties’ share of seats in the new House may change with each election, but it is unlikely to change as much as their share of seats in their respective legislatures, because selection will be in proportion to the popular vote, and a party’s share of a popular vote does not normally change dramatically from one election to another. According to a report in the August 2, 1978 edition of the Toronto Globe and Mail, only 12 of the 118 seats in the new House would have shifted between the parties if the House had existed in the past five years. Consequently, the party composition of the new House will be more stable than that of the legislatures which select its members. For this reason, and because good members can expect to have continuity of tenure, it is not likely, as some critics have suggested, that there will be wholesale changes in membership after each federal and provincial election.

Some commentators have suggested that the only change resulting from the new House will be to spread the opportunity for patronage: that the party ist system used in each legislature will be used by the federal and provincial parties concerned to reward party members by appointing them to the new House and by renewing their membership with each election. As a result, it is argued, the parties would control the way in which their nominees vote.

In the first place it should be noted that a seat in the new House will be a less attractive “reward” than a seat in the present Senate. A Senate seat is held for one’s working life; but one would stand to lose a seat in the new House after any general election. It is true that a party, particularly a party with substantial popular support over the years, will always be able to count on a certain number of seats, so the question is, really, whether it is likely to nominate for these seats energetic persons of high quality.

Because a substantial number of federal and provincial parties will be represented in the new cham- ber, it seems unlikely that the government party in the House of Commons, or the official opposition party, will be able either on its own or in alliance with other parties to control the new House on a continuing basis. If this is the case, the new House is likely to become a lively forum for political debate. There will be no point in a party nominating a “rubber stamp” candidate, and as a result, good people should be attracted to serve in it. While “party list” systems of choosing legislators do leave some room for patronage, they also enable persons of outstanding ability to be brought into the legislative process who might not choose to enter it, or succeed in entering it, through a constituency election. Such a system also permits persons with special knowledge and experience to be brought in. For example, it is to be hoped that each legislature in choosing representatives to serve in the new House, will feel free to draw upon persons who are involved in municipal government, so that their particular perspective may find a place in the consideration of federal legislation. Competition among the parties in the new House may well result in them selecting persons of ability and useful experience. It will be up to each legislature, under public scrutiny in the discharge of its responsibility, to decide what kind of member it is going to send to the new House.

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On balance it seems likely that patronage would not play as large a part in the new House as some people suppose; that the quality of members may well prove to be high, and that members will feel that they have a mandate to use or threaten to use the suspensive veto.

The other side of the coin is what worries some commentators: that the House of Commons will be continually frustrated by the new second chamber in its attempts to pass appropriate legislation. This Concern is an important one and the Special Joint Committee on the Constitution, and others who are examining the Constitutional Amendment Bill, will no doubt wish to give it careful consideration. It is worth remembering however that the ultimate supremacy of the House is assured in several ways:

1. The suspensive veto may be disregarded after 60 days have elapsed (although in the case of measures of special linguistic significance a further, two-thirds Commons vote is required).

2. Certain urgent bills may be presented for assent more quickly.

3. Money bills may be introduced only in the Commons.

4. Half of the members of the second chamber are chosen by the Commons, and would stand to lose their seats following dissolution of Parliament, the date of which is usually determined by the government.

The government, in making its proposals in the Constitutional Amendment Bill, is searching for a certain balance between the two chambers, which although it ought to be weighted on the side of the House of Commons will nevertheless give the second chamber a major role in the legislative and political process. One may adjust the balance by, for example, shortening or increasing the period for which government legislation can be delayed, or by decreasing or increasing the number of members chosen by the House of Commons.

There remains one question to be examined. If the government’s objective of establishing an authoritative regional forum is achieved, what are likely to be the effects on Canada’s political system? No attempt will be made here to answer in a comprehensive or definitive way such a difficult question. However, the following things may be said with reasonable certainty:

1. The new House will have greater political authority than the existing Senate.

2. The executive power of the federal government and the legislative power of the House of Commons will be tempered by the need to negotiate and compromise with the second chamber.

3. The less populous provinces and regions should enjoy an increased influence in the federal legislative process as a whole.

4. French-speaking Canadians, despite their minority position in Canada, will have a substantial degree of equality in action on federal legislation which might affect the position of the French language.

5. Federal-provincial conferences will continue to be essential for the effective coordination of federal and provincial policies, programs and activities; but to the extent that the new House fulfills its role successfully, it will share with these conferences the function of expressing and reconciling regional views about federal policies and legislation.

6. In sum, a new regional forum will have been established which should contribute in a significant way to the renewal of our federal system.

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Conclusion

The government is aware that the proposals for the establishment of the new House are likely to have important consequences for the Canadian political system, and that some of the effects of the new second chamber are difficult to forecast. The detailed and specific nature of the Constitutional Amendment Bill is designed to make the examination of the government’s proposals easier, and it is hoped that this paper will also contribute to the process of discussion and assessment.

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APPENDIX 1
The German System and the Bundesrat

Ge any has a distinctive type of federal system in which most legislative power is concentrated at the centre, and in which much of the central legislation administered not by the central government but t the provinces. A high degree of institutionalized ordination is therefore essential, because in broad terms it may be said that the specialty of the centr authorities (the Bund) is legislation and the specialty of the provincial authorities (the Laender) is administration. This “division of labour” is, therefore, a principal justification for having an “upper” house of the federal legislature composed of provincial (Land) ministers who vote on the instructions of their government. This upper house is called the Bundesrat.

Although the Bundesrat and administration of federal laws by the Laender have their roots in the 19th century, the present German Constitution (the Basic Law) dates from 1949. in modern Germany, uniformity rather than diversity is the rule, because of the concentration of legislative authority at the centre. For example, the most important tax laws and rates are set by federal legislation and are uniform across Germany. Diversity is possible only in the small area of autonomy reserved to the Land legislatures and to some extent in the Land administration of most federal laws.

A further important feature of the German parliamentary system is that elections take place normally every four years at regular intervals. Members of the federal lower house are elected by proportional representation. Half of the members are elected on a constituency basis and half are selected by the political parties from a party list.

The main provisions regarding the Bundesrat are as follows:

1. Each Land has three, four or five seats depending on its population. Population size is more disparate than the number of seats, so that the smaller Laender receive a proportionately bigger vote. Each Land’s vote must be cast as a block, on the instructions of the Land government.

2. Before federal legislation is tabled in the lower house, the Bundestag, it must be submitted to the Bundesrat for a preliminary statement of position by the latter. This provision results in much prior negotiation and adjustment of legislation. The Bundesrat is given six weeks (three in urgent cases), to express its position.

3. The Bundesrat itself may initiate legislation, but it does not often do so.

4. The Bundesrat has to approve all federal legislation, and most decrees and statutory instruments. It has an outright veto over legislation affecting the interests and duties of the Laender; this legislation, some of which is specified in the Constitution, accounts for the majority of all bills, more than was originally expected. Unspecified legislation which affects the interests and functions of the Laender is also subject to an outright veto, and the limits of this unspecified category are ultimately determined by the Constitutional Court.

5.The Bundesrat rarely opposes legislation which does not directly affect the Laender. If it does, its opposition may be overriden by the Bundestag. The formula is as follows. If the objection was adopted with the majority of the votes of the Bundesrat, it can be rejected by a decision of the majority of the mem- bers (i.e., not just those voting) of the Bundestag. If the Bundesrat adopted the objection with a majority of at least two-thirds of its votes, its rejection by the Bundestag shall require a majority of two-thirds, including at least the majority of the members of the Bundestag.

6. The Bundesrat also has a role in various appointments. It elects half of the members of the Constitutional Court.

7. A two-thirds majority of both houses voting separately is required for constitutional amendments. No Land has a veto. Constitutional amendments are more frequent than in

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Canada, but not numerous. In practice, the support of both of the major national parties is needed.

Most national issues in Germany are party political issues rather than federal-Land issues. The parties and the Bundestag dominate political life, despite the important role of the Bundesrat. The major role of the parties, whose federal and Land branches are for the most part highly integrated, can hardly be overstated. Within them, many interregional and federal-Land conflicts are reconciled.

The Bundesrat has over the years been very successful in that it has been able to influence the content of federal legislation without having to reject ultimately more than a comparatively small number of bills. Some of this success may be due to the fact that, for most of the period since the Basic Law was introduced in 1949, the Bundesrat has been controlled by the same party or coalition that governed in the Bundestag. Since 1972, when the Socialist-Liberal (SPD-FDP) coalition took over the government, the Bundesrat has been narrowly controlled by the opposition (the Conservative CDU-CSU coalition), and this has made the role of the Bundesrat somewhat more controversial. This opposition control did for a while depend marginally upon the Liberals, the smallest of the three national parties, who, while still forming a government coalition with the Socialists in the lower house, had formed coalitions with the Conservatives in two of the provincial governments which are represented in the Bundesrat. However, as the result of a recent election in Lower Saxony, the CDU Land government there no longer depends on the Liberals to govern and therefore the CDU-CSU can now control the Bundesrat without the help of the Liberals.

If in October, 1978, the CDU wins Hesse (an important Land with four Bundesrat seats) from the SPD-FDP coalition, the CDU-CSU will control two-thirds (28) of the seats in the Bundesrat and will be able to block all government legislation, because a two-thirds vote in the Bundesrat must be overridden by an equivalent Bundestag vote, and this could not be obtained without CDU-CSU cooperation. However, it should be noted that the CDU-CSU control of two-thirds of the seats in the Bundesrat would depend on controlling the three seats of the Saarland. This Land is governed by a coalition between the CDU and the Liberal FDP party. Without the Saarland, the CDU-CSU would have, even with Hesse, only 25 of the 41 votes in the Bundesrat.

Whether the Bundesrat from time to time plays a role that is definitely partisan or less so, it is an important element of the complex of constitutional and political factors in Germany which requires a national consensus to implement any really major constitutional or legislative change in that country. One other major element is the modified system of proportional representation which is used for elections. As in Bonn, coalition governments are the rule in most of the Laender. This facilitates some alliances in the Bundesrat across party lines.

While the efficiency of the German system is acknowledged by various observers, there are a number of broadly-based criticisms: that the degree of uniformity in Germany is excessive and inconsistent with a genuine federal system; that the emphasis on executive consultation and coordination stifles democratic processes, and that the imperative of compromise too often militates against vigorous government in favour of the “lowest common denominator”(1) One criticism of the Bundesrat itself is that the Land legislatures have little influence over

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the positions that Land Ministers adopt in the Bundesrat.

There is rarely any discussion in the legislatures of questions before the Bundesrat. Because the Bund has pre-empted virtually all concurrent jurisdiction, the Land legislatures are left with little to do, and they have some difficulty attracting good candidates for office. Executive level federal-Land agreements about various shared-cost activities also tend to make it difficult for Land legislatures to have an input even in some of those fields which remain under Land jurisdiction. It has been argued by some critics that a Landfs representation in the Bundesrat should be drawn from all political parties in the Land legislature, and not just from the Land government party or coalition.

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APPENDIX 2
Directly-Elected Second Chambers

Australia

The Australian Senate has the following characteristics:

(a) There are 10 members from each of the six states, each state is a single constituency, and candidates are elected from a list on the basis of proportional representation. As the result of a recent constitutional amendment, there are in addition two members from each of the Australian Capital Territory and the Northern Territory.

(b) Members are elected for a six-year term, half being elected every three years. Vacancies among members representing the states are filled by a replacement appointed by the state premier. It has been a convention and is now constitutionally required that the replacement member be of the same political party.

(c) The Senate may initiate legislation other than a money bill. It may not, in theory, amend money bills but in practice it does so by requesting the lower house to amend. It may veto any bill, including a money bill or any vote of Supply.

(d) The Government need not, legally speaking, command the confidence of the Senate in order to survive.

(e) Three months after a Senate veto the government may re-introduce a bill. If there is continued deadlock, the Governor General may dissolve both houses and call for elections. This has happened three times. Following the elections a joint sitting decides on the bill. This has never been necessary, because the three elections have returned houses controlled by the same party.

Constitutional amendment in Australia is by referendum, a majority being required in four of the six states as well as an overall majority. Before being submitted to popular vote, a proposed amendment is usually approved by both Houses of Parliament. However, an amendment may originate in either house, and if the other house rejects the proposal, the Governor General may nevertheless submit it to a referendum. Some proposals, such as those to reduce a state’s share of Senate and lower house seats, require the approval of the majority of the state’s electors voting in a referendum (Article 128 of the Constitution).

Party influence predominates over regional loyalty in the Senate. It is the state governments which are the principal spokesmen for the regions. Consequently, the Senate’s role as a states’ house has been limited. It does represent all states equally, and the smaller states attach value to that. Also, the premiers do bring pressure on their state’s senators to take a particular stand on any given issue, and the premiers can within limits oppose at subsequent Senate elections those senators who are not responsive to this pressure. A few senators are able to secure elections as independents, despite the difficulty of doing this with a constituency as large as a state. They find it easier to do this when voters are disenchanted with the political parties.

Despite these qualifications, it remains true that confrontation in the Senate is largely an extension of the inter-party conflict in the lower house. The sharp dividing lines of this conflict have to some extent been muted as the result of the introduction of proportional representation for Senate elections in 1949. The “P.R.” system was introduced by the Labour Party to serve its own interests, but ironically the party split shortly afterwards, and the splinter group, the Democratic Labour Party, eventually obtained the balance of power in the Senate in 1967. Neither of the two major parties regained a majority of Senate seats until 1975.

“Double dissolution,” the only way of overcoming persistent Senate opposition, is a blunt or excessively weighty instrument. It was last used in late 1975 as the result of the Senate denying Supply, and gave rise to a constitutional crisis.

The regular timing of Senate elections (half of the Senate is elected every three years, although some

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“leeway” is allowed as to the precise three-year interval) contrasts with the less regular timing of elections for the House of Representatives. The government of the day has to engage in some difficult calculations about the best time to dissolve the lower house and to call for elections in relation to the timing of the next Senate election.

As noted, control of both houses is most desirable for a government in Australia. A proposed constitutional amendment that would have required automa- tic dissolution of the Senate to coincide with dissolution of the house has recently been defeated in a referendum. The proposal had received the support of both major political parties, reflecting their unhappiness with the Senate regarding its part in the dissolution crisis of late 1975 which brought about the fall of the Whitlam government. One of the arguments in support of the proposed amendment was that with a fixed term senators become no longer representative of their electors. Another argument was the cost of separate Senate elections.

The Senate serves of course as a house of review. In the last 10 years its committees, and particularly the joint House-Senate committees, have earned some praise, since they are now reckoned to be more useful than the committees of the lower house. Legislation in the House of Representatives is generally subject to less discussion than in the Canadian House of Commons, and such discussion usually takes place on the floor of the house rather than in committees. Consequently, the Senate and joint committees help to fill a need so far as examination of legislation is concerned.

The Australian federation would not have been formed without a Senate along the lines of the present one, and to dispense with the Senate now is virtually impossible. In a system of parliamentary government, the Senate has emerged as a source of controversy. The main reason could be that it has somewhat too much power vis-a-vis the House of Representatives. The failure of the recent constitutional amendment regarding automatic dissolution is evidence of the difficulty of attenuating the Senate’s power.

Switzerland

The Swiss second chamber, the Council of States, is composed of 44 directly-elected representatives, two from each of the 19 cantons and one from each of the six half-cantons. The second chamber has powers that are identical with those of the lower house, the 200 member National Council. Elections for both houses, which together compose the National Assembly, are held every four years. The two houses meet in joint session to elect the seven-member executive, the Federal Council. Once elected, the members of the executive are not allowed to be members of the National Assembly. The office of president rotates annually among the members of the Federal Council.

The manner of electing members to the second chamber depends on cantonal law. Until recently, there was a certain amount of variation because some cantons used the method of indirect election by cantonal legislatures. Members of the second chamber may also hold a seat in a cantonal legislature (although some cantons limit the numbers of members of their legislature and executive who may hold both positions), but they are forbidden by the federal Constitution from “voting on instructions.”

An expert group, the so-called Wahlen group, was established in May, 1967 to determine whether a total revision of the Constitution was desirable. The group’s report was submitted to the Federal Councillor for Justice and Police in 1972. The group examined three questions concerning the Council of States.

The first is that perhaps the Council of States should be given a special role, different from that of the National Council, with regard to matters affecting cantonal jurisdiction. It has been proposed that the council should be like the German Bundesrat,

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with the members representing the cantonal governments. It has also been proposed, as an alternative, that the Council be given special powers with regard to federal laws affecting the cantons. Neither of these proposals found favour with the Wahlen group, nor with the Commission of Experts that succeeded it and which put forward a text for a new federal Constitution in 1977.(2)

Second, there is criticism of the disparity between population and representation of the various cantons and half cantons. A departure from “rep by pop” is of course inherent in the idea of a federal second chamber representing equally each constituent state of the federal union, as is the case with the United States Senate. The German Bundesrat and the Canadian Senate, while far from being based on “rep by pop,” do make some concession to it, and this is what some people in Switzerland— including the Wahlen group—would like to see adopted for the Council of States. In Switzerland the population-representation disparity is aggravated by the existence of half-cantons. For example, the half-canton of Basel City has six times the population of each of the full cantons of Uri and Glarus.

The Wahlen group recommended that some concession be made to “rep by pop” by increasing to some degree the number of seats of the more populous cantons. The Commission of Experts has recommended in its “Projet de Constitution” of 1977 that the four least populous half-cantons should have only one seat each, and that the other cantons and half-cantons should have two seats each. The commission also noted a possible variant of this, which would give the 16 most populous cantons a third seat each.

The third principal criticism is that the Council of States under-represents the left wing of Swiss politics, notably the Socialist party. The Wahlen group found this under-representation regrettable, and said that the explanation lies in the mode of election, which is determined by cantonal law. Apparently, because there are only two members from each canton the majority system, of election is used in most cantons in preference to the system of proportional representation, and the Socialist party rarely captures the majority vote. The Wahlen group pointed out that the situation could be improved both by changing the system of election—a matter for the cantonal authorities—and by increasing the number of seats. The Commission of Experts has recommended that a system of proportional representation be used to elect members to the Council of States, and that this be specified in the federal Constitution.

The United States

Under the Articles of Confederation (1781-89), the newly independent United States of America formed an alliance and a Continental Congress with very limited powers. Representation in the Congress was based on the equality of statehood rather than on population. However, weaknesses in the Confederation soon became apparent and a Federal Convention met in Philadelphia in 1787 with the purpose of amending the Articles. In the end, the convention proposed a new federal Constitution (which came into effect in 1789) rather than a set of amendments. Representation in the new Congress was a particularly thorny question at the convention. Small states, such as New Jersey, objected to the proposal for representation by population put forth by the larger states like Virginia. A compromise was struck with the acceptance of a bicameral legislature, with representation on the basis of population in one house (the House of Representatives) and equality of representation in the other (the Senate).

Because of the separation of powers and the system of “checks and balances” adopted by the convention, the president and the Congress would be politically independent of each other and yet they

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would be functionally interdependent. Only Congress could pass laws and both houses would have to concur, but a law adopted by Congress would take effect only if signed by the president. Consequently, there would be consultations and negotiations between the executive and legislative branches of the American government in developing the legislative program during a session of Congress, but the president would not be “responsible”. before Congress and the “Government” could not fall for want of confidence. Party discipline, therefore would not be essential to the operation of Congress.

If the Senate was designed to provide for equality of representation of the several states, it was also intended that it should act as a stable and “mature” check on the exercise of power by the popular house. While the whole House of Representatives was to be re-elected every two years, one-third of the Senate was to be re-elected at two year intervals; the term of a representative was two years, while that of a senator was six; representatives had to be at least 25 years old, while senators had to be at least 30; representatives were to be elected indirectly, that is by the state legislatures. According to James Madison, the longer tenure of senators was meant to serve as an obstacle to the instability which experience “had shown to be the besetting infirmity of popular Governments.”

In 1913, the Constitution of the United States was amended to provide for the election of senators directly in each state by those persons having the qualifications requisite for electors of the larger of the two houses of the state legislature. (All states, save one, have bicameral legislatures.) Each of the 50 states is now represented by two popularly elected senators whose six year terms do not coincide. Therefore, only one senator is elected in a state at a time. Each senator represents the whole state rather than a constituency within the state.

In addition to its normal legislative responsibilities, the Senate has several special functions. The Senate alone has the power to try all impeachments of public officials, including the president. The Senate, by simple majority vote, controls the president’s appointment of ambassadors, of judges of the Supreme Court, and of certain senior officers (notably the members of the Cabinet) of the United States. Two-thirds of the senators present must concur in a treaty proposal before it may be ratified. Finally the Senate and the House of Representatives, whenever two-thirds of both houses deem it necessary, may propose amendments to the Constitution or shall call, on application of the legislatures of two-thirds of the states, a convention for proposing amendments.

The longer tenure of senators and the special role they play in ratifying treaties and in approving key presidential nominations account in large measure for the greater prestige enjoyed by the Senate today in comparison with the House of Representatives.

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APPENDIX 3

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APPENDIX 4

(1) For two recent assessments of the German system see Gunter Kisker, “Unitarian and Cooperative Federalism: A Changing Concept of Federalism in West Germany?” and Gerhard Lehmbruch, “Federalism and the Problem of Party Government in West Germany.” Both papers were given at the workshop on Comparative Federalism held at Queen’s University, Kingston, in August, 1977.

For a discussion of the operation of the German upper house, the Bundesrat, see:

— Nevil Johnson, Federalism and Decentralization in the Federal Republic of Germany, Research Paper No. 1 for the U.K. Commission on the Constitution, H.M.S.O. London, 1973

— R.L. Watts, “Second Chambers in Federal Political Systems,” Volume 2, Background Papers and Reports, Ontario Advisory Commission on Confederation, Toronto, 1970.

— R.M. Burns, “Second Chambers: German Experience and Canadian Needs,” Canadian Public Administration, Winter, 1975.

— Albert Pfitzer, The Bundesrat, Press and Information Office of the Government of the Federal Republic of Germany, 1972.

(2) Rapport and Projet de Constitution, Commission d’experts pour la preparation d’une revision totale de la Constitution federale, Office central federal des imprimes et du material, Berne 1977.