Document Information
Date: 1980-08-06
By: R.B. Bryce
Citation: Memorandum from R.B. Bryce to G. Veilleux, The Senate in a Renewed Constitution (6 August 1980).
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TO: Mr. G. Veilleux
FROM: R.B. Bryce
SECURITY CLASSIFICATION
CONFIDENTIAL
DATE
August 6, 1980
SUBJECT The Senate in a Renewed Constitution
This memorandum is in response to your request when we discussed Package III last Thursday. You asked what would best be done if there were not time to work out and negotiate, both with the Provinces and with appropriate present Senators, an acceptable “renewed” Senate to be included in whatever initial constitutional package would go forward after the First Ministers’ meeting in September.
As you know, I favour including in the first package a “hybrid” Senate, which would have an intergovernmental role, operating in public with reasoned debate and evolving policies, as well as being an effective upper House of Parliament, with realistic powers and renewed prestige. The intergovernmental role would help in getting other parts of the package accepted, for it would involve some constraints on the “unilateral” federal powers (such as the spending and declaratory powers) and some alleviation by a political interpretation of the new constitutional provisions for safeguarding the economic union.
It must be recognized, however, that the few weeks remaining before the First Ministers’ meeting next month will make it difficult to work out the composition, powers, and methods of appointment or election of such an important institution. It may be possible to do so, with the aid of what has been written in recent years, and I think it should be tried but I think there should be an acceptable fall-back position prepared for use if necessary. I think the fall-back position should not hinder the eventual achievement, during the next half-dozen years of a reformed “hybrid” Senate which can serve in the intergovernmental role in addition to being an effective and improved Upper Chamber of Parliament.
To accomplish this purpose, I suggest two interim measures. The first would be to carry out the intergovernmental role directly rather than through a new institution, for a period of say five years, during which we would hope to work out a renewed Senate. This could be done by stipulating in the initial constitutional text that the federal actions to which it is desired to secure provincial assent would have to be approved by the Lieutenant Governor in Council of a majority of the provinces having a
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majority of the population of Canada. The requirement for this assent would lapse after five years, thus putting pressure on the provinces to reach agreement on an alternative by that time. This intergovernmental role should also include the political review and approval of provincial statutes which would otherwise be contrary to the provisions of the constitution safeguarding the economic union. This need not, and I would think should not, involve the federal government passing judgement on provincial actions. It would suffice, as an interim measure, to have the constitution require that such a law derogating from the economic union would be valid only if it were formally approved by the governments of a majority of the other provinces. We can expect that public interest groups, and many business and labour circles as well, will be more alert and articulate in criticizing legislation of this character after the inclusion of the new section 121 and other safeguards of the economic union in the constitution. As a result there should be some public pressure on provincial governments to take their role seriously in approving such legislation by other provinces, and not just exchange favours with one another.
The second element in the fall-back position I would suggest is a special authority in the initial constitutional package to permit the revision of the present provisions of the BNA Act relating to the Senate. This should be separate from and in addition to the general amending formula and should require only action by Parliament (including of course the existing Senate) and the approval of a majority of provinces, containing a majority of the population of Canada. No one province should have a veto, as it really is taking nothing material away from the provinces, and a large majority should not be required as it seems broadly essential now, as well as equitable, to increase the proportionate representation in the Senate of the four Western Provinces and reduce that of the Eastern four, who may then oppose it (even if Newfoundland’s representation is increased). There should also be an escape provision against the Senate itself blocking change. This could be a provision that a measure to alter the provisions relating to the Senate which has passed the House of Commons and been rejected (or not acted upon) by the Senate, can be placed before the provinces for approval without Senate approval if it is passed again by the House of Commons of a later Parliament (i.e. following a general election).
Given these two provisions it should be possible to look forward to a substantial reform of the Senate during this decade, a reform that will facilitate the better working of federal provincial relations and of Parliament itself.
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I would like to add a few paragraphs about the powers, selection and composition of the renewed Senate.
As to powers, it should have the special intergovernmental powers discussed above, both in approving the exercise of the “unilateral” federal powers and the sanctioning of provincial laws that would be exceptions to the constitutional provisions entrenching the economic union. These powers would be exercised by bloc voting in the way first proposed by British Columbia in 1978. In general however, the new Senate would only have powers to delay legislation, not to block it if the House of Commons wants to proceed. It should not have power even to delay supply bills (i.e. appropriation acts to meet general expenditures) since this would give it power in effect to dismiss a government, as happened in Australia in late 1975. It might also have the right to concur in or reject various important government appointments (I have doubts about the wisdom of this in the Canadian context). It would of course have the usual power to question the Government, conduct inquiries and make comprehensive reports on policies and problems.
As to the method of selection of the Senators, I think most of them should be elected for six year terms, half of them every 3 years in all provinces, by means of proportional representation in the province as a whole, with recognized provincial and federal parties qualified to nominate lists. Each provincial government would also be entitled to appoint one Senator, to represent and speak for it, to serve “during pleasure”; and to cast the bloc votes of the Senators from that province, when that is permitted. The federal government should be entitled to appoint two or three Senators to speak for it in the Senate; perhaps one of them might be the Minister of State for Federal-Provincial Affairs, and one the Government Leader in the Senate. Each of the two territories should have one Senator (as was provided by Bill 60 in June 1978).
As to the distribution of Senate seats, the main change should be to give more representation to the four Western provinces who are under-represented now as compared with the four Eastern provinces, also as compared with the Central provinces. We do not want equal representation for all provinces, I think, when there are so few and they differ so in size and political importance. On the other hand we do not want ”rep by pop”. Equality of “districts” has proven a fiction now, and B.C.’s demand to be an equal district has shown the weakness of the concept. Probably the most acceptable blend of equity and politics would be to give Ontario and Quebec 20each instead of the present 24 (though the old rough equality of population has gone), give 12 each to the new young giants of B.C. and Alberta (whose populations are now about 2.6 and 2.1 million and growing relatively to the others), give 8 each to Saskatchewan and Manitoba, instead of the present 6. Then populations are about 1 million each. On the other hand both Nova Scotia and New Brunswick, with
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10 seats each are clearly over-represented as compared with the Western provinces (and with nearby Newfoundland). They should go to 8 each, and Newfoundland (which still grows despite its chronic high unemployment and dependency) should go to 8 as well. P.E.I. should remain at 4, which is chiefly important as resulting in it have 4 MP’s as well, much more in proportion than other provinces. This more or less arbitrary operation would create a total of 108 seats (compared with 102 at present) to which would be added two territorial seats and 2 or appointed federal Senators at large. The West would have 40 seats and the East 28, both larger than either Ontario or Quebec but the West would be equal to the two together which is probably of some value at present. I think this is more acceptable than the Manitoba proposal at Vancouver, which would reduce Quebec and Ontario to 16 each, enabling the West to outnumber the two combined. While what is proposed here would reduce the East, as well as the Center, one must recognize that the four Eastern provinces together have now less population than British Columbia and they would have more than twice as many Senators in what is proposed.
To see if some reduction in arbitrariness was possible with satisfactory results I tried to find an “objective” formula to allot the number of seats between the poles of equality and “rep by pop”. I started with BC as a “neutral” which might be given the percentage in Senate seats that it has in the population as a whole – i.e. 11% now (10.99 in April). I reduced the percentage representation of the two larger provinces half way down from their current levels (35.8% and 26.4%) towards BC’s 11%. This gave Ontario 23 seats and Quebec 19 out of a Senate of 100 (actually 101 because of “rounding” the numbers). The reduction in the percentages for Ontario and Quebec I then distributed proportionately to raise the percentage of Senate seats in the smaller provinces above the percentage of population up toward the 11% of B.C.; eg. in the case of Newfoundland its 2.42% of the population was increased to 5.84% of the entitlement for Senate representation. Rounding this off meant giving Newfoundland 6 seats as it has now. The process led to reducing New Brunswick, from its present 10 to 6, increasing PEI from 4 to 5 and reducing Nova Scotia from 10 to 7. The same process increased Manitoba and Saskatchewan from 6 to 7 and Alberta from 6 to 10. While the results of this formula corrected the under-representation of the West compared to the East it brought about a number of minor changes (some arising from rounding) that would give rise to trouble that would probably outweigh the advantages of an “objective” mathematical formula. Consequently I have proposed the discretionary distribution set out in the preceding paragraph,
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I should note that none of these problems as to detailed powers, method of appointment or election, or the distribution of seats need to be settled in order to proceed with the fall-back plan outlined above, though it probably would be necessary for the government to decide in principle that the Senate would probably be of a “hybrid” nature in order to defend the temporary provisions for dealing with the federal unilateral actions and provincial laws derogating from the economic union.
R.B. BRYCE