Political Legitimacy for an Appointed Senate

choices Vol. 14, no. 11, September 2008 ISSN 0711-0677 www.irpp.org
Strengthening Canadian Democracy
IRPP
Campbell Sharman
Political
Legitimacy
for an Appointed
Senate
Campbell Sharman is an adjunct professor in
the Department of Political Science at the
University of British Columbia and a senior
honorary research fellow in political science at
the University of Western Australia. Now based
in Vancouver after a teaching and research
career in Australia, he has published widely on
parliarmentary politics and federalism in
Australia and the effects of electoral rules on
representative government.
This publication was produced under the
direction of Leslie Seidle, Senior Research
Associate, IRPP. The manuscript was copy-edited
by Barry Norris, proofreading was by Zofia
Laubitz, production was by Chantal Létourneau,
art direction was by Schumacher Design, and
printing was by AGL Graphiques.
Copyright belongs the IRPP. To order or request
permission to reprint, contact:
IRPP
1470 Peel Street, Suite 200
Montreal, Quebec H3A 1T1
Telephone: 514-985-2461
Fax: 514-985-2559
E-mail: irpp@irpp.org
All IRPP Choices and IRPP Policy Matters are
available for download at www.irpp.org
To cite this document:
Sharman, Campbell. 2008. "Political Legitimacy for
an Appointed Senate.” IRPP Choices 14 (11).
Founded in 1972, the Institute for Research on
Public Policy is an independent, national, nonprofit
organization.
IRPP seeks to improve public policy in Canada by
generating research, providing insight and sparking
debate that will contribute to the public policy decisionmaking
process and strengthen the quality of the public
policy decisions made by Canadian governments,
citizens, institutions and organizations.
IRPP’s independence is assured by an endowment fund
established in the early 1970s.
Fondé en 1972, l’Institut de recherche en politiques
publiques (IRPP) est un organisme canadien,
indépendant et sans but lucratif.
L’IRPP cherche à améliorer les politiques publiques
canadiennes en encourageant la recherche, en mettant de
l’avant de nouvelles perspectives et en suscitant des
débats qui contribueront au processus décisionnel en
matière de politiques publiques et qui rehausseront la
qualité des décisions que prennent les gouvernements, les
citoyens, les institutions et les organismes canadiens.
L’indépendance de l’IRPP est assurée par un fonds de
dotation établi au début des années 1970.
The opinions expressed in this paper are those of the author and
do not necessarily reflect the views of IRPP or its Board of Directors.
This publication was
prepared in consultation
with the Forum of
Federations.
Contents
3 Conflicting Assumptions about Senate Reform
7 Power and Legitimacy
11 The Prime Minister and an Appointed Senate
12 Senate Reform as a Tactical Device
14 Modifying an Appointed Upper House: The
Australian Experience
15 Propositions for Successful Senate Reform
21 Conclusion
22 Notes
23 References
25 Résumé
26 Summary
Strengthening Canadian
Democracy / Renforcer la
démocratie canadienne
Research Directeur / Directrice de recherche
Geneviève Bouchard
Since the 1960s, increased levels of education
and changing social values have
prompted calls for increased democratic
participation, both in Canada and internationally.
Some modest reforms have been implemented in
this country, but for the most part the avenues
provided for public participation lag behind the
demand. The Strengthening Canadian Democracy
research program explores some of the democratic
lacunae in Canada’s political system. In proposing
reforms, the focus is on how the
legitimacy of our system of government can be
strengthened before disengagement from politics
and public alienation accelerate unduly.
Depuis les années 1960, le relèvement du
niveau d’éducation et l’évolution des
valeurs sociales ont suscité au Canada
comme ailleurs des appels en faveur d’une participation
démocratique élargie. Si quelques modestes
réformes ont été mises en oeuvre dans notre pays,
les mesures envisagées pour étendre cette participation
restent largement insuffisantes au regard de
la demande exprimée. Ce programme de recherche
examine certaines des lacunes démocratiques du
système canadien et propose des réformes qui
amélioreraient la participation publique, s’intéressant
par le fait même aux moyens d’affermir la
légitimité de notre système de gouvernement pour
contrer le désengagement de plus en plus marqué
de la population vis-à-vis de la politique.
I R P P C h o i c e s , V o l . 1 4 , n o . 11 , S e p t e m b e r 2 0 0 8
2
If democratic legitimacy is seen as synonymous
with elections, representative institutions which
are not directly elected face a double problem:
their authority can be questioned and their role is
unclear. This is the case whatever the constitutional
provisions specifying their function and the extent of
their formal powers. And these are precisely the
charges which have dogged the Canadian Senate.
Whatever the merits of its activities, they have been
undermined by a lack of institutional legitimacy.
Yet to argue that elections are the sole source of
political legitimacy is too broad a claim; the courts in
Canada, particularly since the Charter, are an obvious
example of an institution whose widely accepted
authority does not derive from popular representation.
Elections are only one component of liberal
democracy; constitutionalism, the rule of law and an
institutional framework both to implement and to
monitor representative government are equally
important. Nor do elections alone guarantee popular
acceptance of an institution; the directly elected
Australian Senate for much of the first half-century
of its existence was regarded as a chamber of little
significance. Political legitimacy for a representative
institution requires more than elections; the question
is whether legitimacy can be achieved without elections.
If the answer is yes, this assumes there is some
institutional design which can generate enough
political authority to sustain the legitimacy of a representative
institution.
The many schemes for the reform of the Senate
through the modification of the selection process of
senators without using direct election have been
motivated by the belief that political legitimacy can
be achieved by institutional engineering of the selection
process. The recent experience of the UK House
of Lords adds weight to this view — the drastic
reduction of hereditary representation and the
Political Legitimacy for
an Appointed Senate
Campbell Sharman
ambitions of the House of Commons. All but one of the
propositions could operate without constitutional
change; the remaining one requires a removal of the
Senate’s legislative veto as part of a package of changes
to ensure the acceptability of a reformed Senate.
Conflicting Assumptions about
Senate Reform
There are few commentators on the Senate who
think that it should be left as it is — that reform
of any kind is undesirable. But, putting aside
those who wish to abolish the Senate,3 the wide acceptance
of the need for Senate reform masks disagreement
over the extent and direction of desirable change.
Contributing to the difficulty of discussion are profound
differences in assumptions about the purpose of
the Senate, the goal of Senate reform and the method
of achieving reform. This makes for a confusing debate,
so it may be helpful to set out the different assumptions
in each of these areas.
The purpose of the Senate
Examining the purpose of the Senate is not a matter of
historical accuracy but of current assumptions about what
the Senate is supposed to achieve (see Stilborn 2003). For
some, the Senate should represent the social and regional
diversity of Canada as a way of bringing within the parliamentary
process voices which might not be heard in the
partisan debates of the House of Commons. One version
of this view is eloquently stated by Ajzenstat (2003), who
accepts that a parliamentary executive with a lower house
majority will prevail eventually, but feels that delay and
the canvassing of alternative proposals in the Senate is an
appropriate and necessary parliamentary function. She
argues that this is consistent with the founders’ assumptions
that the Senate’s ability to reflect sectional and
regional interest was what made the Senate an integral —
and logical — component of a national parliament (but see
Smith 2004, 47-50). Ajzenstat might admit (2007) that this
view of the Senate rests on notions of limited government,
parliamentary representation and the need for executive
restraint which are now not widely shared, but
similar views about the proper purpose of the Senate
underpin David E. Smith’s extensive work on the chamber
(2003a, 2003b).
Some put more stress on the representation of
regional diversity, but also accept that being able to
manifest this diversity in the Senate, rather than to
introduction of balanced partisan appointments have
enhanced the public acceptance of the role of the
chamber. But many questions remain about the
changes which could be applied to the selection
process of senators and their consequences for the
role of the Senate and the parliamentary process.
These issues have been very well canvassed in the
literature on the Senate. The chamber, and the possibility
of its reform, has produced a great deal of
excellent scholarship,1 and it could be argued that
there is little to say on the topic that has not already
been said by previous generations of scholars. The
contribution of this paper is to put past debates into
a contemporary context and, by looking at the experience
of bicameralism in similar parliamentary
democracies, to provide some suggestions about the
reconfiguration of existing ideas about Senate
reform — and to set out another set of proposals.
The paper begins with an attempt to avoid the
confusion which sometimes surrounds debates over
Senate reform by setting out the differing assumptions
about the purpose of the Senate, the goals for
reform and the methods of achieving them.2 This part
of the paper also looks at the meaning of legitimacy
as an attribute of institutions, and its association with
democracy and representation. The following part
examines the relationship between the power and the
legitimacy of parliamentary institutions, and argues
that these two attributes can contribute to the creation
of a stable role for an appointed upper house in
the parliamentary process. This is supplemented by
an examination of the way in which the House of
Lords and the Australian Senate have evolved to
achieve such a role in their parliamentary systems.
The analysis then moves to the Canadian Senate
and examines the role of the prime minister in the
appointment of senators and the implications of the
Senate’s fixed size and regional constraints on
appointments in shaping its partisan dynamics. This is
illustrated by an examination of the way in which
Senate reform can be used as a tactical device for partisan
gain. A survey is then undertaken of the issues
raised by the reform of an appointed Australian state
upper house and its broader implications.
Finally, the paper sets out six propositions concerning
the Senate which argue that the most plausible
course for reform is a choice from the wide
repertoire of appointment procedures to achieve partisan
balance. These must be combined in a way which
enhances the legitimacy of the Senate while not
unduly threatening the government or the partisan
3
Po l i t i c a l L e g i t i m a c y f o r a n A p p o i n t e d S e n a t e , b y C a m p b e l l S h a r m a n
I R P P C h o i c e s , V o l . 1 4 , n o . 11 , S e p t e m b e r 2 0 0 8
4
in which this can now be achieved. Smiley (1985, 35-
6) posed the consequent dilemma:
No case at all can be made for a weak elected
Senate in Canada, a body whose powers can
easily be overridden by governments sustained
by majorities in the House of
Commons. Yet the existence of any other
kind of elected second chamber is almost
impossible to reconcile with the operative
rules of responsible government as Canadians
have come to understand them. However,
responsible government should not be a shibboleth,
both the empirical and normative
assumptions on which this regime is based
are questionable. Thus an elected Senate with
the power and assertiveness to protect
regional interests effectively will inevitably
challenge legislative supremacy which is in
essence a check for executive power.
Finally, there are those who see a powerful elected
Senate as one way of achieving real parliamentary
supremacy in a Canada which can finally cast off
the executive dominance claimed to be inherited
from its colonial past (Sproule-Jones 1984; and note
Sharman 1990).
These three perspectives on the purpose of the
Senate — as the parliamentary representation of social
and regional diversity, as a vital component of an efficient
parliamentary process and as a necessary check
on the executive — explain why proposals for Senate
reform generate disagreement. Each suggests a different
dynamic for the operation of the Senate and its
relationship with the lower house and with the government
of the day. Not surprisingly, these differing perspectives
suggest contrasting goals for Senate reform.
The goals of Senate reform
The key factor in distinguishing among the goals of
those who argue for Senate reform is their attitude
toward the role of partisanship and political parties. If
the Senate is to be a body of expert legislative advice,
party is largely irrelevant. Decisions should be made on
merit, and partisan differences do nothing but complicate
the deliberative process. This is an overstatement,
but it points to the dilemma of reforming the Senate as
though it were a committee of inquiry or a debating
society. The chamber has real power, and some organizing
principle must be used to coordinate majorities so
that decisions can be made. As long as the decisions of
the Senate impinge on the political priorities of the
government by amending legislation, scrutinizing government
actions or public inquiries, partisan politics
will play a critical role. It may not always trump decisions
made on other criteria, but it will be the dominant
consideration in the operation of the Senate.
force compliance, is its most important attribute. This
perspective sees the Senate as a chamber which could
be reformed without the need for popular elections.
Elections, even with the use of electoral systems
designed to encourage regional and partisan diversity,
would still limit representation to a mechanical
process rather than encourage the variety of opinions
possible from a modified appointment process.
Another view is that the purpose of the Senate
should be to complement the parliamentary activities of
the House of Commons (Smith 2003a, 159). The Senate
should examine the fine details of legislation, use the
committee system to provide further information relevant
to decisions on legislation and government
administration and hold inquiries on matters of public
interest (Thomas 2003, 215-26); but all these deliberative
activities should be in the form of advice to the
executive (Parkinson 2007). The Senate is intended, in
other words, as a chamber of review and expert commentary;
it should not be the forum for partisan confrontation
between the Senate and the government.
This makes its representative function subordinate to its
role as a facilitator for the efficient functioning of the
parliamentary process. Again, this perspective sees
reform of the Senate as a process which need not
involve direct elections; the greater the stress on the
importance of the Senate as a source of expertise and
informed review, the less relevant elections become.
A very different analysis of the purpose of the
Senate is held by those who see the parliamentary
process in more combative terms. For them, the
Senate’s principal purpose is to act as a check on the
executive.4 Party discipline has long reduced the ability
of the House of Commons to subject legislation to
the extensive examination it deserves and, with the
partial exception of minority governments, to sustain
effective inquiries into the activities of government.
The role of the Senate is to fulfill those functions of
parliamentary scrutiny that the House can no longer
perform adequately.
This perspective challenges many assumptions
about the Canadian parliamentary process, critical
ones being the dominance of an executive supported
by a House of Commons majority and conventional
views of the operation of responsible parliamentary
government. It implies that the government must not
be able to rely on a partisan majority in the Senate.
Of greatest significance, it assumes that the Senate
needs a source of legitimacy to underpin forceful
resistance to the government of the day, and that
direct popular elections are likely to be the only way
are those who aim for the Senate to be guided by a
much weakened partisanship; the selection of senators
would reflect regional diversity by appointing people
who have status in their communities. In this case, partisan
attachment would be blended with personal
attributes to ensure that party considerations were
moderated by local experience and personal beliefs.
Whatever the goals of Senate reform, consideration
of the role of parties is unavoidable in the selection of
senators, in the operation of the Senate and in its role
in the parliamentary and governmental process.
Method of achieving reform
The focus of this paper is not on the circumstances in
which successful reform of the Senate might be
achieved or on an extensive history of proposals for
reform since the 1960s (see Seidle 1992; Stilborn 2003).
Rather, the issues to be canvassed here are the institutional
changes to the Senate that reformers advocate.
Chief among these are changes to the procedures for
selecting senators. This might appear to provide a relatively
limited set of choices, but it has not prevented
the topic from being one of the most contentious. The
big divide is between the direct election of senators and
all other methods of selecting senators.
Those who argue for direct election argue that the
Senate needs the political legitimacy that only direct
election can bestow. This raises the question of what
the added legitimacy is to achieve. For those who wish
the Senate to use its powers to confront a government
supported by a majority in the House of Commons, the
purpose of direct elections is clear. But few reformers
regard this as the primary role of the Senate. Those
who want the Senate to reflect the interests of regional
political communities see elections as a way of both
expressing and legitimizing their concerns. But a
Senate elected on this basis is likely to succumb to the
dictates of party even if it is a different constellation of
parties than those which now populate the Senate
benches. Regional elections are just as likely to lead to
confrontations between the Senate and the government
on partisan grounds as a Senate elected on some other
basis. Legitimacy intended for one purpose may end up
supporting a very different one.
Elections are assumed by many reformers to be the
only way in which popular support for the Senate can
be achieved; democratizing the Senate through an electoral
process is seen as a cure-all. The hope that the
direct election of senators can, by itself, solve the problems
of the role of the Senate is certainly misplaced. It
is easier to argue that direct election without other
But to stress the importance of party does not
require the persistence of the kind of party warfare
that typifies the current operation of the Senate.
Some suggestions for reform deal explicitly with the
question of party and seek to moderate its role. One
way is to produce a balance between the two major
parties and to change the way senators are chosen so
that parity is maintained even when there is a change
of government. In addition, reform could ensure that
parties other than the two largest are regularly represented
in the Senate, together with, perhaps, the
occasional independent. The goal of these reforms is
to recognize the central role that the governing and
major opposition parties play in the parliamentary
process, but to temper the operation of the Senate by
having a significant cross-bench component. If this
went so far as to require the governing party to gain
the support of cross-bench senators to achieve a
majority, the major parties would retain their dominant
role but would be subject to the moderating
effect of compromise and coalition building with
other parties and independents.
Other reforms see party playing a different role.
For those whose principal goal is to make the Senate
responsive to the political priorities of the provinces,
party is the agency for regional responsiveness —
party as determined by the government in each
province or as decided by popular election. In the
German Bundesrat model, under which all the senators
from a province would be selected by the provincial
government, partisanship for each delegation of
senators would be defined as loyalty to the governing
party in the province. Direct election of senators from
each province would inject provincially based parties
into national politics. This would certainly not reduce
the importance of party, but might work to blur the
difference between provincial and national parties
(the German experience is surveyed in Detterbeck and
Renzsch 2003). Whether appointed or elected, the
partisan attachments of province-based senators
would transform the operation of the Senate in ways
which are unpredictable.
For a few reformers, the most important goal of
Senate reform is to enhance the role of party rather
than to reduce it. In addition to ensuring that the
governing party would not likely control a Senate
majority, reform would entail providing nongovernment
parties with much greater political legitimacy so
that they could use to the full the Senate’s powers to
force negotiation with the government over its legislative
proposals. At the other end of the scale, there
5
Po l i t i c a l L e g i t i m a c y f o r a n A p p o i n t e d S e n a t e , b y C a m p b e l l S h a r m a n
I R P P C h o i c e s , V o l . 1 4 , n o . 11 , S e p t e m b e r 2 0 0 8
6
To list these options is to reinforce the depressing
circularity of debates about Senate reform. If the
Senate were elected, it could threaten the current
dynamics of the Canadian parliamentary process in
ways which could have profound effects on the operation
of government and the role of the House of
Commons. If the Senate were appointed, despite any
good work it might do, it would be seen as either a
vestigial attachment to Parliament or, if the Senate
were controlled by a nongovernment majority, as an
irritant lacking the legitimacy to do anything but
harass the government at the behest of the opposition
in the House of Commons.
A note on legitimacy
As a supplement to the discussion above, those who
wish to reform the Senate often refer to their goal as
democratizing the chamber, increasing its representativeness
and, perhaps most frequently, enhancing its
legitimacy (see Stilborn 2003, 58-9). In a study
focused on the debate over the reform of the House
of Lords, Kelso (2006) makes some helpful distinctions
between these terms, and points to the confused
way in which they have been used to describe and
justify the many schemes for Lords reform. Democratization,
she suggests, is intimately related to having
an elected component — there have been several
proposals for changing the composition of the House
of Lords so that some, most or all of its membership
is directly elected (see McLean, Spirling, and Russell
2003). But elections may not enhance the representativeness
of the chamber; if political parties are the
main organizing agents for elections, the diversity of
views, social attributes and occupations in society are
unlikely to be fully represented. If representativeness
— as opposed to popular representation — is the
major goal, some form of appointment may be a
more effective way of achieving it. Of course, representativeness
may not matter to those who believe
that electoral democracy is of overriding importance
in the design of legislative institutions, but the distinction
is important.
Kelso’s (2006) treatment of institutional legitimacy
is especially useful. She points out that there are two
kinds of legitimacy: input legitimacy, which relates to
the way in which the members of an institution are
selected, and output legitimacy, which refers to the
public assessment of the relevance and quality of the
institution’s performance (for an extended treatment
of this topic, see Beetham 1991). Both forms of legitimacy
express public assessment of the worth of an
institutional changes would exacerbate the problem
of the Senate — this would certainly be the view of
the government of the day. As mentioned above, it is
hard to imagine direct elections, however organized,
without political parties playing a central role, and it
is the likely goals of those parties rather than the
electoral process that is the critical variable. To propose
direct elections brings the debate back to the
question of the purpose of the Senate and the goals
of reform.
If indirect elections are ignored — an arrangement
enabling some or all of the sitting members of the
federal or provincial parliaments (or a convention
elected for the purpose of choosing senators) to elect
senators — the other instrument of reform is to
amend the appointment procedure. At the moment,
recommending the appointment of senators is the
prerogative of the prime minister, subject only to the
availability of Senate vacancies and the rules specifying
the regions from which senators are to be
appointed. This process has been roundly criticized as
an exercise in partisan patronage which robs the
Senate of the public support necessary for it to exercise
its powers effectively.
Alternative appointment procedures are variations
on two themes. The first accepts the partisan
nature of appointments, but argues for senators to
be nominated by party committees with rules that
permit all parties to select senators, even if the governing
party can ensure a majority on the floor of
the Senate. This process could be combined with
opportunities for regional participation and review
by a body similar to the House of Lords
Appointment Commission, set up in 2000 as an
independent statutory body to vet party nominees
for their "propriety”5 and to make its own recommendations
for nonpartisan appointments. Again,
the goals of this reform become an issue: what is a
Senate reformed along these lines likely to achieve
that the current one cannot?
A more adventurous change would be to have senators
nominated by a nonpartisan panel, perhaps a
panel of notables chosen by the government, with
guidance as to what sort of person should be selected.
Or it could be a standing commission like the House
of Lords Appointment Commission, which selects
appropriate people from a long list of names suggested
by the public (see United Kingdom 2000). Both
of these options and any system which was based on
partisan recommendations, however, might be subject
to the approval of the prime minister.
could have challenged the Senate directly by calling an
election on the issue, but the unpopularity of the measure
and fear of defeat forced the government to admit
that the Senate was a critical player in the legislative
process whose consent had to be gained for the government
to implement its financial measures.6
Governments usually have partisan majorities in the
House of Commons, which, when combined with strong
party discipline, give the government of the day a free
hand in the running of the lower house and deny the
opposition parties the ability to force changes on government
legislation or to pursue inquiries into matters
the government does not want aired. This is not to
deny the importance of the House as a forum for
debate on matters of public importance and for providing
numerous opportunities for embarrassing the government.
But this is a long way from fulfilling the
nominal role of the chamber: the independent scrutiny
of legislation and government activities. With the partial
exception of periods of minority government, the
House has long ceased to be an autonomous actor in
the parliamentary process.
Executive control of the business of the House of
Commons is now taken for granted, and even celebrated
as a way of ensuring the electoral accountability of
governments. Parties in government have a period
between elections to follow their preferred policies and
pass legislation with few formal parliamentary
restraints on their activities, and must then justify their
activities at the next election. This view of the parliamentary
process is so ingrained that those who suggest
electoral reform which might deny the government a
solid partisan majority on the floor of the lower house
are accused of fostering government instability. The
thought that governments might have to justify legislation
on its merits in parliamentary debate, and to persuade
members of Parliament other than government
partisans to support it, is seen as almost revolutionary.
Executive dominance has become the defining characteristic
of the political process in Canada.
This explains why the position of the Senate is
anomalous. All provincial legislatures are now unicameral,
7 and the idea that parliaments should be
bicameral to provide an upper house which can act as
a continuing check on governments supported by a
lower house majority has little currency in Canada.
But the Senate continues to hold the power to disrupt
the government’s control of the parliamentary process.
This anomaly has been papered over by degrading the
status of the Senate so that its members do not feel
they have the authority to use their powers to
institution, but input legitimacy is a matter of the
design of the institution while output legitimacy must
be earned by the institution’s performance. Assessments
of the Senate are an excellent example of the
gap between the two: the Senate clearly performs
many useful functions in the Canadian parliamentary
process (see Franks 2003) but the public, largely
unaware of this, focuses almost exclusively on its lack
of input legitimacy. The whole thrust of the debate on
the reform of the Senate is not the quality of its institutional
performance but the way it is chosen.
Power and Legitimacy
The elephant in the room in debates about the
composition of the Senate is the extent of the
Senate’s powers. The Senate has the same powers
as the House of Commons, with the exception that
appropriation and tax bills "shall originate in the
House of Commons” (Constitution Act, 1867, section
53). This means that the Senate has the power to veto
any legislation proposed and passed by the lower
house, to introduce a bill on any topic other than a
money bill, to set up committees of inquiry on any
subject and to act as a forum for wide debate on any
matter of public importance. Of greatest significance,
although the Senate does not have the power to
originate financial legislation, it may block money
bills, including the budget and other key appropriation
bills essential for the operation — and the life —
of a government. This power makes the Senate a
potential threat to the government’s control of the
parliamentary process, notwithstanding those who
argue that there is something vaguely unconstitutional
about the Senate’s use of the legislative veto
(Rémillard and Turner 2003, 126-7).
The power of the Senate was amply demonstrated
during the Progressive Conservative government of
1984 to 1993, when the Liberals were usually able to
muster Senate majorities to harass the government’s
legislative program and to block the passage of the
occasional bill when they believed they had the support
of the public. Even Prime Minister Mulroney’s
unprecedented use of section 26 of the Constitution
Act, 1867 in 1990 to appoint eight additional senators
to enable the passage of legislation to introduce
the goods and services tax can be seen as strengthening,
rather than weakening, the power of the Senate
(Franks 2003, 155-65). The Mulroney government
7
Po l i t i c a l L e g i t i m a c y f o r a n A p p o i n t e d S e n a t e , b y C a m p b e l l S h a r m a n
I R P P C h o i c e s , V o l . 1 4 , n o . 11 , S e p t e m b e r 2 0 0 8
8
may overstate the degree of change for the House of
Lords and the Australian Senate and the extent of
public acceptance of their legitimacy, but there is no
question that change has been in the directions indicated.
For both institutions, there is strong backing
for their continuing independent action in legislative
review and, in the case of the Australian Senate, its
powers of inquiry.
Figure 1 suggests that there may be only one naturally
stable position for an upper house: the highpower,
high-legitimacy quadrant. High power
implies that the chamber has strong constitutional
backing, reinforced by public acceptance of the
value of its role. These two attributes are congruent
and likely to be self-reinforcing. The low-power,
low-legitimacy quadrant may look stable, but it
implies an institution whose future invites substantial
reform or abolition.8
The quadrants with mixed values are more interesting
because they indicate where tensions over second
chambers are likely to arise. The low-power,
high-legitimacy quadrant implies an institution
which has gained wide public support through some
combination of the way its membership is selected
and the manner in which it carries out its functions.
Its lack of constitutional clout means that it is
dependent on its high legitimacy to remain an effective
influence on the governmental process. To push
the analogy, it is in unstable equilibrium — it can
maintain its influence only by successfully maintaining
its legitimacy. Working in its favour, however, is
challenge governments, especially if they face a government
determined to get its way.
Most of this diminution of legitimacy is the result
of the nature of the Senate’s composition: the
appointment, rather than election, of senators, the
permanent nature of their tenure until the age of
retirement, the lack of all but the most cursory review
of senators once they are appointed, the fact that
appointments are made by the prime minister alone
and the manifestly partisan way in which the process
of appointment has been used. The fixed size of the
Senate enables a prime minister who has access to
sufficient Senate vacancies to further enhance the
government’s security by creating a majority of partisans
in the Senate so that the chamber’s political
weakness is compounded by partisan indifference.
This situation has not occurred by accident; it is the
response of an executive which wishes to reduce the
uncertainty of having a powerful Senate.
Before discussing the implications for Senate
reform of this disparity between formal power and
political legitimacy, it may be useful to look at the
position of the Senate in comparison with other possible
combinations of power and legitimacy. Power in
this context is equated with the constitutional power
of the institution to take independent action in the
legislative process. Legitimacy is a more elusive concept
and deserves further examination, but for present
purposes, it is the ability of a chamber to count
on popular acceptance of the use of its formal powers
to limit government action, whether or not they agree
on the policy at issue.
In figure 1, the United States Senate is clearly
located in the high-power, high-legitimacy quadrant
and the Canadian Senate in the high-power but lowlegitimacy
quadrant. Over time, both the UK House of
Lords and the Australian Senate have changed their
status. The Australian Senate remains a powerful
chamber with very similar powers to those of the
Canadian Senate, but it has moved steadily from low
to high legitimacy since the loss of government control
of the chamber after the adoption of proportional
representation (PR) for the election of senators in
1948. The House of Lords originally had powers similar
to those of the House of Commons, but its power
to veto legislation was removed in 1911 and its power
to delay legislation further reduced in 1949. Over the
past 30 years, however, its legitimacy has grown as a
consequence of changes to its composition and its
willingness to challenge the government on measures
facing widespread public opposition. The diagram
Political legitimacy of chamber
High Low
Figure 1
Constitutional Power and Political Legitimacy of
Four Second Chambers: The United States Senate,
the Canadian Senate, the Australian Senate, and
the House of Lords
United States
Senate
Australian

Senate 2
Canadian Senate
Australian Senate 1
House of Lords 1
House of Lords 2
(Reformed Canadian
Senate?)
House of Lords 3
Formal power of chamber
High
Low
PR elections
Appointment
1911 Act
creating wild swings in the partisan character of the
chamber, sometimes producing a Senate with more
than 90 percent of the seats held by one party grouping.
9 This usually meant that the government of the
day had a comfortable majority in the chamber, but, on
occasion, a government could face a Senate controlled
by an opposition determined to be as obstructive as
possible. The manifestly partisan character of the
chamber, combined with candidate selection based on
party loyalty rather than on ability or ambition and the
general lack of parliamentary activity and initiative left
the impression that the chamber had little constructive
role to play. The move to adopt proportional representation
(by the single transferable vote) in 1949 and a
split in the Australian Labor Party in the mid-1950s
triggered a series of developments which led to minor
parties and independent senators regularly holding the
balance of power in the chamber, and a huge change in
the scope and consequence of Senate parliamentary
activities (Sharman 1999a).
The result has not reduced the suspicion and resentment
of governments towards the power and influence
of the Senate; the memory of its exceptional, dramatic
and highly partisan action in forcing a government to
the polls in 1975 has not faded.10 But there is now sufficient
public acceptance of its role for the Senate to be
seen as an important independent player in the parliamentary
process (Mulgan 1996). The crisis of 1975 certainly
demonstrated the Senate’s power, but it was also
an important factor in prompting the rise of minor parties
that had no wish to see the Senate used merely as
the tool of opposition parties in the lower house. The
fact that minor parties have held the balance of power
for most of the period since 1975 has been the major
factor in legitimating the role of the Senate (Sharman
1999a). During a recent period when the government
managed to regain a partisan majority in the Senate,
there was a good deal of newspaper commentary to the
effect that the loss of the Senate’s ability to moderate
government legislation represented a substantial loss to
the parliamentary process and that this worked against
both the public interest and the long-term interest of
the government.
The Australian Senate has achieved legitimacy through
a sequence of events which can be summarized as:
• an electoral system change which reduced the dominance
of large party groupings;
• the election of minor party and independent senators
who held the balance of power;
• the focus of minor party and independent senators
on the legislative role of the Senate and its
that a disagreement with the government and/or the
lower house will be seen as a political conflict, not a
constitutional challenge. Its lack of constitutional
power means that the government may disagree with
the policies of the upper house, but does not see disagreements
as threatening the system of government.
The upper house is a nuisance but its actions cannot
prompt a constitutional crisis.
The position of the current Canadian Senate — high
power with low legitimacy — can be seen as the most
unstable quadrant. The upper house poses a continuing
source of uncertainty to the government because of
the chamber’s constitutional powers, but its low legitimacy
reduces the chances that this will be a problem
for the executive. But the executive is always apprehensive
that a change in partisan alignment in the
upper house, the emergence of an issue which places
the upper house on the side of public opinion in its
dealings with the government or pressures for constitutional
change will give the upper house the political
backing to match its formal powers. Moreover, a clash
between the government and a high-power but lowlegitimacy
upper house bent on blocking government
legislation is not just a nuisance but can rapidly
become a serious constitutional standoff.

The Australian Senate
The two non-Canadian cases show how this instability
can be resolved or at least substantially reduced.
The Australian Senate moved from the high-power
but low-legitimacy position of the Canadian Senate
to the high-legitimacy quadrant as a consequence of
the government’s losing its partisan majority in the
chamber and the balance of power being held by
minor parties and independents. These minor party
groups had an interest in fostering a brokerage role
for the Senate in dealing with government legislation
and using its powers of scrutiny to, as one minor
party slogan had it, "keep the bastards honest”
(Warhurst 1997).
Direct popular election had not, by itself, given the
Senate high legitimacy until there were major
changes in the chamber’s composition and, as a consequence,
its mode of operation. This is of relevance
to the Canadian case, since it demonstrates that direct
election of an upper house does not automatically
generate wide public acceptance of its role. The electoral
systems used by the Australian Senate from its
creation in 1901 — plurality voting in the states as
multi-member districts until 1918, then the alternative
vote until the 1949 election — had the effect of
9
Po l i t i c a l L e g i t i m a c y f o r a n A p p o i n t e d S e n a t e , b y C a m p b e l l S h a r m a n
I R P P C h o i c e s , V o l . 1 4 , n o . 11 , S e p t e m b e r 2 0 0 8
10
ceased to be a serious obstacle to government legislative
programs — and the pressure for change receded.
But the increasing malaise about what is now called
the "democratic deficit” in UK politics, the dissatisfaction
with the arcane nature of the UK constitutional
structure and the rising concern with
individual rights all led to a resurgence of a broad
interest in institutional reform, culminating in the
Blair Labour government’s commitment to reform the
Lords when it won office in 1997.
This had been preceded by several developments
which had enabled the House of Lords to increase its
profile and enhance its reputation. The Life Peerages
Act, 1958, passed by the Conservative Macmillan
government, in addition to permitting members to be
appointed to the Lords without increasing the number
of hereditary peers, made membership open to
women for the first time. The longer-term significance
of this change was the ability of governments
to appoint members for their political contributions
to the chamber and to the government’s image without
getting embroiled in the broader social issue of
hereditary peerages. There is no limit to the number
of life peerages, with more than a thousand having
been created since 1958 — more than 350 during
Prime Minister Blair’s term of office alone. This gives
the prime minister great power to shape the composition
of the Lords, but the power has been used in a
way which has increased both the political and the
social diversity of the chamber’s membership.
This process has continued since the Blair government’s
1999 reform. The House of Lords Act removed
all but 92 hereditary peers and set up a House of
Lords Advisory Commission, which now vets government
nominees for life peerages for their propriety
and can also advise the prime minister on nonpartisan
appointments.11 A fixed number of opportunities
for the appointment of these independent peers is
allocated by the government, and the Advisory
Commission solicits suggestions from the public; the
prime minister retains the final say. By April 2008,
some 47 of these independently selected life peers
had been appointed, further contributing to the partisan
diversity of the chamber. These developments
have reinforced the status of the Lords and made it
more difficult for the government to brush aside
opposition from the chamber. Despite its nonrepresentative
and unelected nature, this has enabled the
Lords to claim that it has a legitimate function to
challenge the government in the parliamentary
process and for this claim to be broadly accepted.
committee work inquiring into government activities
and matters of public interest;
• the growing willingness of the Senate to use its
power to amend and, if necessary, reject government
legislation;
• the change in the recruitment of candidates to
favour able and politically well connected senators;
and
• the evolution of protocols between governments
and minor party senators to regularize consultation
over the introduction of legislation.
This last characteristic is important because it
shows that governments have begun to see dealing
with a Senate over which they do not have partisan
control as something which represents normal, rather
than abnormal, politics. Consultation between minor
party senators and the government has been aided
by the selection process for Senate candidates, which
has ensured that some of the abler government ministers
have been senators, providing opportunities for
both formal and informal negotiations. This routinization
of consultation is one of the strongest
indications of the acceptance of an independent
Senate as a legitimate component of the Australian
parliamentary process.
The House of Lords
The House of Lords has had a more complicated history
but, in its most recent phase, has much in common
with the Australian experience. The loss of its
veto power over legislation in 1911 and 1949
appeared to set the Lords on a trajectory to eventual
abolition. As a picturesque feudal anachronism, it
appeared to have little in common with the majoritarian,
executive-dominated style of politics which
had come to typify UK politics. Its place in the lowpower
and low-legitimacy quadrant of figure 1 made
it a prime candidate for having its power further
reduced or being reconstituted as some advisory body
or disestablished entirely.
Most of the many accounts of why this did not
happen are based on divisions within the Labour
Party when in government about the rival claims of
reform and abolition (see Dorey 2006). The most
graphic example was the Wilson Labour government’s
1969 bill to phase out the hereditary component
of the Lords, which was defeated by a coalition
of Conservative opposition members who resisted
change and rebel Labour backbenchers who wanted
more drastic change. This embarrassment discouraged
further attempts at reform — the Lords had already
but would not be hard for most current Canadian citizens
to meet (section 23).
The major constraint on the prime minister’s discretion
to appoint senators is the limit on the size of the
Senate. If a government inherits a Senate with no
vacancies, there is no opportunity to appoint new senators;
if the Senate has a large partisan majority hostile
to an incoming government, there is no way to change
its complexion. This limit is critical for understanding
the dynamics of the operation of the Senate and the
attitude of governments to Senate reform. If, for example,
there were no limit on the size of the Senate, a
government could, as an extreme measure, swamp a
hostile Senate majority by appointing new senators
sympathetic to it. Appointing new lords — both before
and after the creation of life peerages — has always
been an option for UK governments faced with a recalcitrant
House of Lords; in Australia, during the time
that membership was by appointment, neither the New
South Wales nor the Queensland legislative council had
constitutional limits on the number of members.13
Its fixed size intensifies the partisan edge to the attitude
of governments to the Senate, and there is no
recourse to the large-scale creation of senators beyond
the eight provided for in section 26 of the Constitution
Act, 1867. Without these limits, the Senate would still
be important and would remain a significant actor in
the legislative and parliamentary process, but its existence
would not involve the fear that it might block
key government legislation without redress for the government;
in such case, the government could simply
appoint enough new senators to give it a majority. But,
as presently constituted, the Senate retains the power
to wreak havoc on a government’s legislative program
and to use its powers of investigation and inquiry to
undermine government policies.
Of course, one person’s unprincipled Senate obstruction
is another person’s necessary and effective parliamentary
scrutiny of government and its legislation. The
Mulroney Conservative government, particularly from
1985 to 1990, faced repeated challenges from a Liberal
majority in the Senate. While acknowledging the partisan
battle in the Senate during this period and the subsequent
years to 1993, a respected scholar of the
Canadian parliamentary process has argued that the
Senate operated on many occasions as a chamber of
sober second thought (Franks 2003, 165). This, however,
does not make Senate challenges any less threatening
in the eyes of governments.
These apprehensions aside, for the prime minister,
the power over appointments to the Senate generates
This is not the case in Canada, and it is the
dynamics of the Canadian Senate and the procedures
for the appointment of senators to which we should
now turn our attention.
The Prime Minister and an
Appointed Senate
In suitably arcane language, the Constitution Act,
1867 specifies that "The Governor General shall
from Time to Time, in the Queen’s Name, by
Instrument under the Great Seal of Canada, summon
qualified Persons to the Senate” (section 24). By customary
practice, sanctified by the minutes of a meeting
of the committee of the Privy Council in 1920, the recommendation
to the governor general for the appointment
of senators is the "special prerogative of the
Prime Minister” (Dawson 1933, 125). Membership of
the Senate is thus the gift of the prime minister alone.
The exercise of this power has few substantive
constraints but a great many procedural ones. Section
22 of the Constitution Act specifies that 24 senators
are to be appointed from each of the four regions
(divisions) into which the act divides Canada:
Ontario, Quebec, the Maritime provinces and the
Western provinces. There are additional specifications
for individual Maritime and Western provinces, and
provisions for six senators to be appointed from
Newfoundland and Labrador and one each from the
three territories, making a total of 105. In certain circumstances
(sections 26-28), the governor general
may appoint four or eight additional senators,12 one
or two each from the four divisions set out in section
22, to create a Senate with a maximum complement
of 113 members. This procedure for the appointment
of supplementary senators has been used only once,
when the Mulroney government appointed eight
additional senators in 1990 to enable passage of legislation
establishing a national goods and services
tax over the vigorous objections of the opposition
Liberals (for a summary of these events, see Franks
2003, 161-3).
Apart from these regional requirements — and
additional rules for Quebec senators to be chosen
from electoral divisions within the province — there
are no special qualifications for becoming a senator
except a minimum age of 30 and the need to fulfill
citizenship, residence, solvency and property requirements
which, at $4,000, may have been high in 1867,
11
Po l i t i c a l L e g i t i m a c y f o r a n A p p o i n t e d S e n a t e , b y C a m p b e l l S h a r m a n
I R P P C h o i c e s , V o l . 1 4 , n o . 11 , S e p t e m b e r 2 0 0 8
12
sympathizers to give the government a Senate majority,
notwithstanding the lack of progress on a government
bill providing for provincial elections to
advise the selection of Senate nominees (Bill C-20,
the Senate Appointments Consultation Act). And,
should his government face imminent defeat, there is
always the possibility, however distant and at odds
with his political commitment to Senate reform, that
the prime minister may choose to fill all Senate
vacancies before he leaves office to reward his supporters
and, in time-honoured fashion, to deny
patronage to his successor.
The prime minister’s power over the appointment
of senators is the source of the Senate’s greatest lack
of legitimacy and the greatest barrier to Senate
reform. But to remove the prime minister’s control
over the composition of the Senate is not just to
reduce the opportunities for patronage, but to threaten
the government’s familiar role in the parliamentary
process. Under the current system, the Senate’s power
is effectively constrained by the partisan appointment
process. This clearly works to the benefit of governments
with majorities in the Senate, but even a government
which faces a hostile Senate can use the
chamber’s lack of legitimacy to denigrate its resistance
and to impugn the opposition for using an
undemocratic and unrepresentative institution to
thwart the will of the majority of a popularly elected
house. Nothing indicates this more forcefully than
recent legislation nominally aimed at Senate reform.
Senate Reform as a Tactical
Device
The bills introduced by the Harper government
in 2006 and 2007 are examples of the prime
minister’s power to set the terms of political
debate, the tactical goals to which Senate reform can
be put and the dominance of partisan concerns in the
parliamentary process. Two bills affecting the composition
of the Senate were before Parliament in 2008:
C-19, An Act to Amend the Constitution Act, 1867
(Senate Tenure);14 and C-20, the Senate Appointment
Consultations Act.15 The first of these bills proposed
the introduction of eight-year nonrenewable terms
for senators in place of the current appointment for
life until retirement at age 75. The summary of the
bill published by the Parliamentary Information and
Research Service (Canada 2007a) included extensive
large benefits. The most obvious are patronage and
partisan gain: the ability to reward those who have
assisted the government and the prime minister, to
signal government concern with a particular issue,
group or locality, to provide a consolation prize for
those who have missed out on other government
positions and to enhance the government’s appeal by
appointing a few symbolic third-party or nonpartisan
senators. All of these appointments are likely to contribute
to the ranks of those who support the party of
the prime minister who made them senators. If these
appointments build or maintain a partisan majority,
the government can feel secure that the Senate is
unlikely to cause it any serious problems.
Prime ministerial appointment has another, less
obvious benefit to the government of the day. No government
relishes the existence of a powerful and independent
actor in the parliamentary process; anything
which limits the significance of the Senate is to be welcomed.
The arbitrary, partisan and personal nature of
the selection of senators by the prime minister reduces
the legitimacy of the chamber, no matter how illustrious
the appointments. This helps to discredit the work
of the Senate and undermines its committee inquiries
when they oppose government policies. Governments
supported by a House of Commons majority can always
stress their popular mandate and the corresponding
weakness of a Senate appointed on the personal recommendation
of previous prime ministers.
Prime ministers who are able to create or maintain
a partisan majority and leave office with few vacancies
in the Senate can take satisfaction in another
partisan bonus: the creation of a poison pill for an
incoming government of a rival partisan colour. The
larger the Senate majority, the greater the difficulty
for the new government and the greater the opportunity
for the former governing party, now in opposition,
to use the Senate to embarrass the government.
The exclusive power which resides with the prime
minister to recommend appointments to the Senate
also provides the opportunity not to appoint senators.
This may seem a perverse benefit, but it has been
used by the Harper government to orchestrate a campaign
to support legislation for Senate reform. At the
end of April 2008, there were 14 unfilled Senate
vacancies but 60 of the continuing senators were
Liberals. It may be that, if the number of Liberal senators
drops below 53 — the number required to control
the Senate — while the Harper government
remains in office, the prime minister’s resolve may
weaken and he will appoint enough Conservative
elections for Senate nominees, on pain of eventually
losing their representation in the Senate (Flanagan
2007).17 The only exception to this policy to date has
been the appointment of Michel Fortier to both the
Senate and cabinet in 2006 to enhance the latter’s representation
from Quebec and to give Montreal a senior
representative in the government.
An alternative explanation of the Harper government’s
actions is that this scheme had little to do with
Senate reform but was simply a way of embarrassing
the Liberal majority in the Senate, further reducing the
legitimacy of the Senate while placating those in the
Conservative party who wanted Senate reform. Evidence
for this is not hard to find. There was no suggestion
that, if the scheme were fully implemented, the Harper
government would relish an upper house composed of
senators with an added sense of their own legitimacy,
whose partisan loyalties could be very different from
those of the government of the day. The prime minister
had even mused about the possibility of abolishing the
Senate. The scheme made a lot more sense as a device
to confuse and discredit the Liberals as an opposition
party which controlled a majority in the Senate. For a
government without a partisan majority either on the
floor of the House or in the Senate, proposals for Senate
reform that involved limited terms and an electoral
component would challenge the Liberal Party’s democratic
credentials and, if rejected, help to undermine
Senate opposition to government legislation. Senate
reform of this kind could be seen as designed explicitly
to weaken one of the strongest weapons of the opposition
Liberal Party, which was its control of the Senate.
The demonstration of the Senate’s reluctance to sanction
changes to its current partisan composition —
amply demonstrated by the hostile treatment of both
bills by the opposition in the House and the Liberal
majority in the Senate — would further reduce the
chamber’s standing in the eyes of the public.
There is also the possibility that the Harper government
is playing a very long game. If several provinces
agreed to hold Senate nominee elections and it began
to look as though there would be sufficient partisan
representation from these elections to affect the partisan
balance in the Senate, alarm bells would ring in
party headquarters and premiers’ offices across Canada.
This may provide the background for concerted moves
for substantial constitutional reform of the Senate to
reduce its powers and, perhaps, to modify its composition.
But this is a situation which requires time and
many preconditions over which the national government
has little control.
commentary on the bill and rehearsed its previous
introduction into the Senate in 2006, its treatment
before a Senate committee and the Senate’s decision
not to proceed with it. It also included justification
for the bill and an opinion that changing the term of
senators did not fall within the class of subjects
requiring constitutional change but could be altered
by legislation of Parliament acting alone.
Bill C-20 was much more adventurous. It maintained
the current monopoly of prime ministerial
nominations for Senate appointments, but provided
for "consultations” which would permit the prime
minister to recommend candidates who had won electoral
contests in each of the provincial jurisdictions
for which there were vacancies. The bill provided
details about the way these elections would be run:
they would achieve proportional representation using
the single transferable vote, they could be held at the
same time as provincial general elections and the
components of electoral administration might be delegated
to provincial administrative bodies. Again, the
legislative summary provided details, explanations
and justification, and suggested that, "In future years,
it may be that an informal practice of appointing senators
from a list of selected nominees will transform
itself into a constitutional convention that would
‘constrain’ the prime minister in making his or her
choice for Senate appointments” (Canada 2007b, 19).
At first glance, these bills could be seen as a legislative
scheme to create an elected Senate without
making formal changes to the Constitution. This
route had been flagged by the Progressive Conservative
government of Alberta when it held an
election in the province in 1989 for a nominee to fill
a Senate vacancy. The winner, Stan Waters, was subsequently
appointed by the Mulroney Conservative
government in 1990. When elections for Senate nominees
were held again in Alberta in 1998, Liberal
prime minister Jean Chrétien declined to appoint such
"senators in waiting” (for background and commentary,
see Smith 2003a, 103-4). The experiment was
resumed in Alberta with Senate nominee elections in
2004;16 upon taking office in 2006, Harper, as a
Conservative prime minister and former member of
the Alberta wing of the party committed to extensive
Senate reform, appointed the winner, Bert Brown, to
the Senate. As soon as the prime minister indicated
that he would appoint to the Senate only nominees
who had been chosen by provincial elections, the
grand plan was revealed: a legislative scheme backed
by executive discretion to force the provinces to hold
13
Po l i t i c a l L e g i t i m a c y f o r a n A p p o i n t e d S e n a t e , b y C a m p b e l l S h a r m a n
I R P P C h o i c e s , V o l . 1 4 , n o . 11 , S e p t e m b e r 2 0 0 8
14
South Wales lower house, the Legislative Assembly, at
odds with a majority in the appointed Legislative
Council. Two consequences followed. The first was
perennial debates of varying intensity over the legitimacy
of a nonelected body thwarting the popularly
elected government and demands for reform or abolition
of the council.
The second consequence was the politicization of
the governor’s role in appointing new members of the
Legislative Council. When a new government took
office and found that its legislation was being
blocked by a hostile upper house, premiers could go
to the governor and request the appointment of
enough new upper house members to give the new
government majority support in the council. Governors
were reluctant to do this — blanket acceptance
would reduce the role of the council to a cipher and
destroy any claim to its being a house of review. But
ignoring the wishes of a popular government and
rejecting the advice of a premier was politically risky.
With varying degrees of skill, governors aimed to
restrict any increase in the size of the council unless
the subject of the conflict with the council had been
an explicit part of the new government’s electoral
mandate. This was especially the case where contentious
legislation concerned the amendment of the
council’s composition and powers.
The rise of the Australian Labor Party in the 1890s
and the increasing frequency of Labor Party majority
governments across Australia after 1900 intensified
debate over the powers of legislative councils, especially
the undemocratic nature of appointed councils.
The Labor Party was committed to abolition and, in
Queensland, the Theodore Labor government, after
considerable political turmoil and manoeuvring, contrived
to abolish that state’s Legislative Council in
1922 (McMinn 1979, 150).
New South Wales proved to be a more intractable
case. Labor premier Lang had tried on several occasions
during the 1920s and 1930s to abolish the
Legislative Council, but was finally thwarted by his
dismissal in 1932 as premier by the governor in the
turmoil of Depression politics. But the removal of
Lang and the installation of a conservative government
did not remove the problem of the council —
there remained wide agreement that it needed to be
reformed and its composition determined by some
method other than appointment by the governor on
the recommendation of the premier.
Many options were canvassed, but the one chosen
to operate from 1934 until 1978 was a halfway house
Notwithstanding these speculations, the most
interesting long-term consequence of this scheme for
Senate reform was not its rejection by Parliament —
its short-term partisan success can be seen as
dependent on its nonacceptance by the Liberals — but
how it indicated the ways in which the existing
appointment procedure for senators might be modified
by a combination of new statutory machinery
and the willingness of the prime minister to vary the
customary appointment practices.
Modifying an Appointed Upper
House: The Australian Experience
In Australia, bicameralism has always been tied
more closely to the politics of resisting radical
action by governments than it has in Canada. The
early extension of the franchise for legislative assemblies
in the Australian colonies created apprehension
among local elites and in the Colonial Office in
London that governments supported by adventurous
lower house majorities might use their power to
threaten propertied and commercial interests. As a
consequence, the arrival of responsible government
for the Australian colonies after 1856 was linked to
the continuation of powerful legislative councils as
upper houses in new bicameral parliaments. But there
was debate over how these upper houses should best
be constituted.
Two models emerged. The more popular method
was to ensure that elected legislative councils would
maintain a conservative bias by having a franchise
based on substantial property qualifications. In this
way, the veto power of the upper house on all legislation,
including financial legislation, would be given
the legitimacy of popular election, albeit on a restricted
franchise. The rival model, initially adopted
by New South Wales in 1856 and then by Queensland
in 1859, was to have an appointed legislative council
similar in composition to the Canadian Senate but
with no limit on the number of councillors as long as
the governor was willing to appoint them on the
recommendation of the premier. The adoption of this
system had much to do with the preconceptions of
colonial politicians and the lack of familiarity with
responsible government in New South Wales during
the 1850s (Clune and Griffith 2006, 65-75).
Over the following 70 years, issues emerged which
put governments supported by a majority in the New
house with the balance of power held by minor parties
was likely to be of more long-term advantage to Labor
governments than one which might be controlled by a
belligerent opposition.
But the period of indirect election was a useful
experiment. It probably made the transition to a directly
elected chamber more acceptable by demonstrating
to governments that indirect election would, in the
longer term, do little to enhance the public acceptance
of the institution. And an indirect election which produced
a chamber controlled by the governing or the
opposition party could create as many difficulties as
one chosen by a more democratic system. It is interesting
to speculate about the changes that could have
given the indirectly elected council a more diverse partisan
composition and one that neither of the major
party groupings controlled. One solution would have
been to give an independent appointing authority the
power to choose a small number of nonpartisan and
third-party members. This approach was unthinkable in
the highly charged partisan climate of the early 1930s,
but the example of the House of Lords Appointments
Commission makes it more of a possibility today.
Propositions for Successful Senate
Reform
From the discussion and surveys of the experience
of similar UK-derived parliamentary systems, it is
now possible to set up a series of propositions
about the direction for successful Senate reform. As
this paper has argued, there must be congruence among
the assumed purpose of the Senate, the goals for reform
and the methods through which reform is to be
achieved. Smith (2003b) uses much the same procedure,
although his "principles” are focused more on protecting
the dominant position of the House of Commons
than are the propositions listed below.
The purpose of the Senate is effective scrutiny
The greatest contribution of an upper house to a contemporary
parliament is scrutiny of legislation and
inquiries into the conduct of the executive and its
agencies. The effective discharge of this function is the
foundation on which the current reputations of the
Australian Senate and the House of Lords have been
built. Effectiveness requires two components: a constitutional
one, that the chamber has sufficient formal
power to amend and delay legislation; and a political
between modification of the process of appointment
and direct election. Membership of the council was set
at 60 (the lower house, the Legislative Assembly, had
90 members in 1934). Each member served a twelveyear
term, and a quarter of them retired every three
years. These 15 vacancies were filled by indirect election
— not by the public, but by the 90 members of
the Legislative Assembly and the 45 nonretiring members
of the council. A system of proportional representation
by the single transferable vote was used for
the elections. The combined effect of staggered threeyear
terms and proportional representation meant that
the partisan composition of the Legislative Council
changed only slowly, reflecting changes in the party
composition of both the lower and upper houses. This
approach had short-term benefits for the conservative
party in power in 1934, but it also expressed the belief
that the council should be a stabilizing factor in the
political process (Turner 1969; Clune and Griffith
2006, 320-51).
The success of this system was mixed. The reforms
removed the problem of appointments and, by taking
away the Legislative Council’s power to veto financial
bills, reduced its potential to precipitate a constitutional
crisis. The ability of a future government to
amend the composition or powers of the council was
constrained by the requirement that the legislation
gain popular endorsement through a referendum. The
problem of the council’s legitimacy remained, however,
because of both its lack of direct representation
and, of greater importance, its domination by government-
controlled majorities or, occasionally,
majorities controlled by the opposition. In both circumstances,
party discipline and institutional inertia
greatly reduced the standing of the chamber in much
the same way as the Australian Senate had been until
its rejuvenation by a change to the electoral system
and the enlivening effect of minor parties on the role
of the chamber.
In 1978, the New South Wales Legislative Council
became a directly elected chamber chosen by proportional
representation,18 a model pioneered for legislative
councils by South Australia in 1975 and now
adopted, with variations, by four of the five remaining
legislative councils in Australia.19 These chambers
are now valued for their representativeness and their
often-constructive contribution to the parliamentary
process (Stone 2002). These transitions, all of which
were undertaken by Labor Party governments, resulted
from the realization that abolition was unlikely to
gain popular support and the belief that an upper
15
Po l i t i c a l L e g i t i m a c y f o r a n A p p o i n t e d S e n a t e , b y C a m p b e l l S h a r m a n
I R P P C h o i c e s , V o l . 1 4 , n o . 11 , S e p t e m b e r 2 0 0 8
16
— and occasionally resisted — attempts at government
manipulation of their activities, even when the government
had a majority in the upper house. As Norton
(2003) points out for the House of Lords since 1999, if
the government has few carrots or sticks to enforce
discipline, party allegiance is a matter of temperament
rather than necessity (note also Shell 1992, 64-98). But
it is unclear whether such a view of party would operate
among members of the governing party without
structural change in the selection procedure for members
of the upper house and the chamber’s acquisition
of an established reputation as an independent actor in
the parliamentary process.
Control of a second chamber by the largest opposition
party in the lower house may not be much of an
improvement over control by the governing party.
Opposition control makes it difficult for the party
leader in the lower house to resist the temptation to
see the upper house as no more than a component of
strategies to win the next election. The experience of
Australian upper houses in this position is that the
chambers’ review function is subordinated to headlinegrabbing
attacks on the government and to using the
inquiry process to investigate specific government
misdeeds rather than to generate information for
long-term reform. Partisan, short-term and sporadic
best describe the direction of parliamentary activity
in upper houses controlled by an opposition party
majority.
As both the House of Lords and the Australian
Senate have shown, the ability of minor party and
independent members to hold the balance of power in
the chamber is the key to the development of an
effective review function (Sharman 1999b). This is
not because they are more virtuous but because they
are interested in legislative politics. The payoff for
such members is not gaining executive office and the
perks of government but demonstrating to the public
the utility of their role in forcing the government to
negotiate on controversial legislation and to disclose
information on matters of public interest. This does
not prevent grandstanding and partisan attempts to
claim media attention, but it means that these members
have a long-term interest in establishing and
maintaining structures for parliamentary scrutiny of
legislation and executive action. In particular, they
stand to gain from a well-developed and wellresourced
committee system.
The House of Lords and the Australian Senate also
demonstrate the differing ways in which minor parties
can affect the dynamics of an appointed chamber
one, that the chamber is not controlled by a majority
of members which acts on the instructions of the
governing party in the lower house. Both of these
components need elaboration.
Governments are not persuaded by sweet reasonableness;
effectiveness requires the upper house to
have enough formal power to force the government
to consider the cost of overriding the upper chamber’s
decisions, even if this is possible. Substantial
delay of at least a year might be the minimum
requirement if delay is the only option — it is clear
from the experience of the House of Lords that the
two-year delay on nonfinancial legislation introduced
in 1911 was sufficient to act as a substantial check on
the pursuit by government of controversial legislation
(Dorey 2006). In the Canadian case, the Senate
already has power to reject legislation without any
override from the House of Commons, but the question
of delay may become important if the Senate’s
powers were part of a reform package. Whatever
modifications there might be to the legislative powers
of the Senate, its privileges and its power to inquire
into the actions of government should not be
reduced. Parliamentary upper houses already have
political limits on the extent to which they can use
their powers to investigate the executive; any reduction
of the Senate’s formal powers over inquiries
would further undermine its ability to compel witnesses
and to extract information from governments.
The partisan requirement for effectiveness in an
upper house is more elusive. It is clear what is not
effective: government-controlled majorities are unlikely
to challenge legislation in ways which act as an
effective check, and are even less likely to pursue the
investigation of executive actions which may embarrass
the government. But government-controlled
majorities are not always the same thing as upper
house majorities of the same partisan colour as the
government. Prime Minister Thatcher, for example,
found the House of Lords a persistent and effective
critic of her government’s legislation, notwithstanding
the nominal majority of Conservatives in the Lords
(Baldwin 1999, 42-4). If party members in the upper
house have a degree of autonomy in the organization
of an upper house caucus and the habit of making
their own decisions about the conduct of business in
the chamber, partisanship may be moderated by other
considerations in both the scrutiny of legislation and
committee proceedings. There have certainly been
occasions when members of the governing party in the
upper houses of Australian parliaments have resented
But this is not the Canadian way, and there are
many other reasons a directly elected upper house is
not appropriate. High on the list is the difficulty in
determining what an elected Senate would represent.
As previously discussed, party division would certainly
be the main organizing principle for the vote, but an
electoral system structured by province — whatever the
electoral system used — would produce a pattern of
party representation that would almost certainly differ
from that of the lower house. Whether this would produce
a Senate that represented regional interests or
simply transformed the representation of existing parties
is hard to know, but the likelihood of intense partisan
discord seems likely. This is not a good basis for
effective Senate review as set out in proposition 1.
There are many pragmatic considerations which do
not make a directly elected Senate a viable option. No
government wants a powerful upper house underpinned
by a popular mandate. It is true that the Harper
government has introduced legislation which looks as
though it is happy to accept that possibility, but, as discussed
above, the proposals embodied in Bills C-19 and
C-20 appear to be tactical ploys to embarrass the
Liberal Party and placate some members of the
Conservative Party rather than considered attempts at
reform. Even if the proposals were intended as catalysts
for long-term constitutional change, the changes
required to implement an elected Senate would be substantial,
complicated and likely to generate strong
provincial opposition, particularly if the amendments
were to alter the weighting of provincial representation
in the Senate. Provincial governments — premiers, in
particular — would not be enthusiastic about a group of
provincial senators who could claim to speak as representatives
of provincial interests in Ottawa.
In sum, the difficulties, both of principle and practice,
of designing a directly elected Senate are overwhelming.
Moreover, it is an unnecessarily fundamental
and contentious change to achieve the specific goal of a
Senate that undertakes effective scrutiny of government
legislation and activities.
Senate reform can best be achieved through
amending the appointment process
In the cases of the United Kingdom and the two
Australian state upper houses discussed above, appointment
to the upper house follows the same procedure as
that for the Canadian Senate: appointment is by the
monarch on the recommendation of the government of
the day in the person of the prime minister or premier.
But the circumstances and trajectory of the use of the
as opposed to an elected one. In the Lords, minor
party members add further political diversity to an
institution without strong party discipline for the
large parties (Baldwin 1999, 32-44; Norton 2003). In
such a context, whether the minor party members
hold the numerical balance of power is not critical
for the discharge of an effective review function. This
is not the case in the Australian Senate, where strong
party discipline in the governing and major opposition
parties and dependence on the goodwill of state
party machines for their endorsement at elections
have made senators very sensitive to party direction.
It is only when minor party and independent senators
hold the balance of power that the Senate uses its
review powers effectively.20 Given the nature of the
system of proportional representation used to elect
the Australian Senate and the continuation of the
trend for 20 percent of the electorate to favour Senate
candidates from other than the two largest party
groups, the chances are that minor party and independent
senators will usually hold the balance of
power in the chamber.
Partisan balance of some kind is as much a critical
component of the process of effective parliamentary
scrutiny as the powers of the chamber. Only by continuing
to use its reviewing power is a second chamber
able to find a place in the governmental process
which is broadly accepted as legitimate by both the
public and the government of the day.
Direct election of senators is not a plausible
strategy for reform of the Senate
The proposition that direct election of senators is not
a plausible strategy for Senate reform is shorthand
for a number of assumptions about the role of the
Senate. While direct election greatly enhances a
chamber’s "input legitimacy” (Kelso 2006), it raises
many difficulties in the Canadian context. The most
serious is that Canada does not have a tradition of
strong elective bicameralism involving the acceptance
that the dominance of a government with a
majority in the lower house may be constrained by a
powerful upper house that claims an equal mandate.
It has taken the Australian political system the better
part of 150 years to come, grudgingly, to an acceptance
of the benefits of such an arrangement for representative
democracy (Stone 2002). From one point
of view, this is a pity, because it denies Canada the
benefits of the symmetry of a powerful upper house
matched with a democratic legitimacy that cannot be
acquired by any other means.
17
Po l i t i c a l L e g i t i m a c y f o r a n A p p o i n t e d S e n a t e , b y C a m p b e l l S h a r m a n
I R P P C h o i c e s , V o l . 1 4 , n o . 11 , S e p t e m b e r 2 0 0 8
18
some proportion, fixed or variable. The other option
is partisan nominations derived directly from the parties
represented in the House of Commons or through
a nominating committee or an appointments commission.
A critical question is whether there should be an
attempt to insert an element of regional consultation
in the appointment process, by an appointments
commission or by a process involving the parties or
by some other procedure (see Stilborn 2003).
There is a further option, that of indirect election.
In the institutions examined in this paper, only the
New South Wales Legislative Council between 1934
and 1978 employed this method as a substitute for an
appointed house rather than as a supplement to it.
For the Canadian Senate, several suggestions have
involved indirect election, most notably the Trudeau
government’s "House of the Federation” proposal set
out in Bill C-60 in 1978 and the reconstitution of the
Senate envisaged by the Charlottetown Accord in
1992.23 Both proposals considered legislatures as
agencies for selecting senators: Bill C-60 provided for
half the Senate to be chosen by the members of the
House of Commons and half by provincial legislatures;
initially, the Charlottetown Accord proposed
that senators be chosen by direct election, but its
final form included a provision for senators to be
selected by provincial legislatures rather than direct
election if the provincial government so chose
(Stilborn 2003, 35).
The difference between these two proposals reflects
different perspectives on the kind of partisan balance
to be achieved by indirect election. Bill C-60 was
intended to provide a balance between national and
provincial partisanship, reinforced by its choice of
proportional representation as the electoral formula,
while the Charlottetown formula made the Senate a
manifestation of provincial partisanship with no specification
of the electoral system to be used for either
direct or indirect elections. The Charlottetown Senate
might have produced a measure of partisan balance in
the chamber, but this was not a feature of its design.
Both the Bill C-60 and Charlottetown proposals
intended to use indirect elections to involve provincial
electorates in the selection of senators, but indirect
elections can be used for other purposes. If the goal is
to achieve a Senate with a partisan balance which
tracks, even if slowly, the pattern of representation in
the House of Commons, then members of the House
can be the electorate, with elections based on proportional
representation, as in New South Wales. Under
one version of such a scheme, Senate vacancies would
appointment procedure have differed widely among
the chambers. For the House of Lords, outside the
process of ennoblement, the appointment of life peers
is only 50 years old and the current mixed procedure
of appointment — where most life peers are nominated
by the government but a small number are nominated
by the House of Lords Appointments Commission —
has been in place for less than ten years. The
Australian experience of appointed upper houses was
terminated either by the abolition of the chamber
(Queensland in 1922) or by the rejection of appointment
as a suitable method of selecting members (New
South Wales in 1934). Canada has been unusual in the
persistence of the appointment process since the original
design of the Senate in 1867.
There have been good reasons for this, chief among
them the fixed size of the Senate and the specification
of regional quotas — none of the other appointed
chambers reviewed have had such constraints. The
regional components are not only constitutionally
enshrined and politically sensitive; they play a role in
calculating the minimum number of seats in the
House of Commons allocated to some provinces.21
Altering the formula requires broad agreement and
constitutional change — which the experience of the
Charlottetown Accord of 1992 shows is very difficult
to achieve.22 This means that the first question to be
asked about amending the appointment procedure is
whether the size and regional constraints on Senate
membership are to be maintained. If the answer is yes,
change must fit within the constraints of the current
composition of the Senate. This does not mean that
constitutional change is precluded — altering the formal
process of appointment, for example, is likely to
require such a change — but that arguments over
provincial representation would be less central to the
debate. If the answer is no, reform of the Senate is
likely to be part of a broad-based constitutional
debate about the institutions of the national government
in a federation. Again, if the goal of the Senate
reform is to achieve a chamber with effective reviewing
power, inviting wholesale constitutional change is
an unnecessarily contentious method.
What choices are on the table if the current Senate
of 105 members is maintained with the existing pattern
of regional apportionment? If we accept that
partisan balance of some kind is to be the goal of the
appointment process, two methods used by the House
of Lords are available. One is an independent
appointments commission to select nominees; this
could apply to all appointments or, as with the Lords,
The prime minister needs to be persuaded of
the benefits of reform
The prime minister’s unfettered power over the
appointment of senators, and the way it has been used
for partisan purposes, has been the most important factor
in undermining the legitimacy of the Senate. But
that power also generates many benefits for the prime
minister and the governing party. Executive officers do
not give up power voluntarily unless there is a clear
payoff. Unfortunately, the experience of reforming the
appointment process for the House of Lords suggests
that the payoff must be significant. The creation of life
peers for the Lords was triggered not by any commitment
to the creation of balanced partisanship in the
chamber, but to avoid the political embarrassment of
perpetuating a hereditary aristocracy. The Labour Party
was also committed to reforming the Lords as part of a
larger package of constitutional reform in response to
political pressure from its rank and file, even though
the topic led to disputes within the caucus and government
(Dorey 2006). On the other hand, favourable
assessments of the reform — despite continuing political
pressure for some form of direct election — have
brought praise to the Labour government while still
leaving it discretion over appointments.
For Canadian Senate reform, however, there appear
to be few immediate payoffs for a prime minister. In
fact, as the Harper government has shown, an unreformed
Senate can be used to considerable political
advantage. A reformed Senate could cause problems for
a government because of the enhanced public support
of its scrutiny of government legislation and activities.
The only clear benefit of a Senate in which minor parties
and independents — that is, neither the governing
nor major opposition parties — held the balance of
power is that it would remove the tactical advantage of
denying the ability of an opposition party acting alone
to use the Senate as a partisan weapon against the government.
This, however, may be no small benefit. It was
certainly the major motivation for Australian state
governments to introduce proportional representation
for the election of upper house members — even when
the Labor Party has had a chance to control both
chambers: denying any party the ability to control the
upper house alone is strategically more valuable than
having periods when control varies between the government
and the opposition.
Occupying the moral high ground may also be useful
for a government which introduces reform, especially if
it is popular, fulfills an election promise and catches an
opposition unwilling or unable to mount a strong
not be filled until there were three or more vacancies.
Once this number had been reached, an election
would be held by secret ballot with each party represented
in the House of Commons nominating a candidate
for each vacancy. A government with a majority
in the House would likely gain two of the three
vacancies, with the third gained by the largest opposition
party. Over time, the partisan balance in the
Senate would change to respond to changing party
fortunes in House of Commons elections. The Senate
could, of course, be made more balanced and responsive
to other parties by aggregating a larger number
of vacancies — the more vacancies to be filled, the
more proportional the result. Such a system could be
used to fill all vacancies or to work together with an
independent appointments commission which could,
for example, be responsible for filling every fifth
vacancy. Such a mixed system of indirect election
could work with the existing terms of senators, or
with fixed terms as long as they were at least eight
years in duration and staggered so as to have a continuing
series of appointments.
In the absence of a change to the Constitution,
indirectly elected senators would still have to be recommended
formally for appointment by the prime
minister. It is possible that the actors might broadly
agree on the desirability of such an amendment, but
it is equally possible that regional or partisan issues
would make such a change as controversial as previous
proposals have been. Whether constitutional
change is a component or not, there are many variations
possible on the themes of appointment and
indirect election, but the goal is the same: to ensure
the maintenance of a rough partisan balance in the
Senate; only with such a balance can the Senate pursue
its review function effectively.
There remains the question of the number of senators,
if any, that the prime minister should be able to
recommend without the use of any additional procedure.
This remains the source of most new appointments
to the House of Lords, but there is no limit to
the membership of the Lords. In contrast, the
Canadian Senate’s fixed number of members combines
different modes of selecting members and few
vacancies. Generating batches of, say, 21 vacancies —
a fifth of the Senate — with each batch to be filled by
two or three appointment procedures, requires a substantial
change to the terms of senators and a complicated
formula for the transition period. But this might
be required if the prime minister were anxious to
retain some personal discretion to choose senators.24
19
Po l i t i c a l L e g i t i m a c y f o r a n A p p o i n t e d S e n a t e , b y C a m p b e l l S h a r m a n
I R P P C h o i c e s , V o l . 1 4 , n o . 11 , S e p t e m b e r 2 0 0 8
20
The Senate must prepare the ground for
reform and hope for partisan commitment
Preparing the ground and hoping for partisan commitment
to reform is more a process than a model for
change, but without it Senate reform will remain a
topic of speculation rather than of action.25 Yet there
is no way of knowing in advance what will trigger
the circumstances favourable for reform, short of a
major constitutional crisis. For the House of Lords, it
was a process which emerged under the Labour government
of the years immediately after the end of the
Second World War and picked up momentum with a
revolt against unpopular legislation proposed by the
Thatcher government. Under Thatcher, the Lords
could claim backing by public opinion in its criticism
of contentious government legislation. What
strengthened its position was that it was nominally a
Conservative chamber complaining about the actions
of a Conservative government. Similarly, the fiercest
debates over proposals for reforming the Lords took
place within the Labour Party. These intraparty disputes
help to reduce the view of upper house reform
as simply a partisan tactic to embarrass the opposition.
The Harper government’s bills for Senate reform
fall into this latter category. Whatever the motivation,
the proposals were not the result of any bipartisan
discussion, but were greeted by the opposition parties
as an attack on the Senate Liberal majority rather
than the basis for constructive change.
The Australian experience of changes to the composition
of upper houses varies from the brutal partisan
attack on the Queensland Legislative Council in
1921 (McMinn 1979, 150) to a reform achieved as an
incidental consequence of electoral changes made to
the Australian Senate in 1948 for other purposes
(Sharman 1999a; see also Uhr 1995). More recent
changes to Australian state upper houses have
retained a partisan edge, but disputes have been over
the design of a reformed chamber rather than the
need for change (Stone 2002). The example of the
increased status and effectiveness of the Australian
Senate since the 1960s gave state upper houses good
reason to support reform measures and to argue that
such changes were good for the parliamentary system
as a whole rather than simply an expression of partisan
advantage.
This may be the route for the Canadian Senate. If
the chamber itself can develop proposals for change
which are seen as remedying a systemic defect in the
Canadian parliamentary process, this could be a way
to persuade the public that Senate reform is desirable,
argument against change. In the Canadian context, the
prime minister will require at least some symbolic payoff,
and reduction of the Senate’s power might be an
acceptable one. It would also show, if supported by the
Senate itself, that the Senate was serious about reform.
The power of the Senate to veto financial
legislation should be removed and its power
to veto other legislation should be replaced by
the ability to impose substantial delay
Successful Senate reform depends on the chamber’s
attaining a congruent relationship between its powers
and its legitimacy. Given Canada’s parliamentary tradition,
the Senate’s use of its powers to block financial
legislation and precipitate a constitutional
confrontation is unlikely ever to be seen as acceptable
by the public. This means that the Senate can never
have the legitimacy to exercise its powers fully and, if
its powers are unchanged, it will remain a threat,
however distant, to the government of the day. It is
not sufficient to argue that the Senate’s current power
to veto financial legislation would never be used
because of convention. This may well be true of other
sections of the Constitution Act, 1867 — such as the
power under section 90 to disallow provincial legislation
— but such sections do not have the potential to
threaten the existence of the government, unlike the
Senate’s power to block financial legislation, which
could force a government to the polls. The experience
of the denial of supply to the Whitlam government by
the Australian Senate in 1975 and of Whitlam’s dismissal
by the governor general is a reminder that
events which "never” happen, occasionally do.
The loss of this power could be seen as part of a
scheme to reform the Senate and set it on a trajectory
to gain wider public legitimacy. Any constitutional
change is difficult, but limiting the legislative power
of the upper house by abolishing one of its least-used
powers would seem a relatively uncontentious proposal
among the provinces, unlike the vexed question
of regional representation. Such a limitation of its
powers might also make other Senate reforms more
palatable to the executive, and could even be a prerequisite
for the government to take Senate reform
seriously. It is true that, as with the reform of upper
houses in Australia and the House of Lords, some
would see this as strengthening an institution they
wish to see abolished, and would oppose such reform.
But if the supporters of a reformed Senate are serious
about their wish to achieve change, the attempt at
constitutional amendment must be made.
not just a partisan scheme to attack the prime minister.
26 Unfortunately, a minority government is a
major impediment to proposals for Senate reform.
Such governments are concerned with the very short
term and are already subject to a highly effective
check on their activities by opposition parties in the
House of Commons. The most conducive circumstances
for Senate reform may be the period immediately
after a rampant government, supported by a
large House of Commons majority, has trampled over
widely held public objections in a way that offends
the governing party’s members in the Senate. But the
events that trigger reform are unpredictable. The best
that reformers can do is produce plausible schemes
and hope they will be taken up by one of the major
parties.
Conclusion
The six propositions presented above list the key
components to be considered if Senate reform is
to be achieved. They are more important for
setting out the problems which must be confronted
by any reform process than for the particular suggestions
they make. In particular, they point to the interests
which must be accommodated: partisanship and
the power of the prime minister. Ignoring these issues
and generating ambitious plans for large-scale constitutional
change is a recipe for failure. If Senate
reform can focus on dealing with the central problem
of achieving good and responsive government
through the effective scrutiny of the national executive,
then the issue is one of institutional design to
harmonize competing interests. For this reason, direct
election of the Senate is too ambitious a goal. But
there is just a chance that amending the selection
procedures for senators might be congruent with a
range of interests concerned with parliamentary
reform, and might provide Canada with the benefits
of an effective system of parliamentary bicameralism.
21
Po l i t i c a l L e g i t i m a c y f o r a n A p p o i n t e d S e n a t e , b y C a m p b e l l S h a r m a n
I R P P C h o i c e s , V o l . 1 4 , n o . 11 , S e p t e m b e r 2 0 0 8
22
Four or Eight Members be added to the Senate, the
Governor General may by Summons to Four or Eight
qualified Persons (as the Case may be), representing
equally the Four Divisions of Canada, add to the Senate
accordingly.” The circumstances for these appointments
are not specified, but breaking a deadlock or, as the in
case of the Mulroney government, giving the government
a working majority in the Senate are two of the
more likely. Note that it is the Queen, rather than the
governor general, who gives the final approval.
13 Although there could be major political constraints,
not least being the reluctance of some governors to
appoint more members; see, for example, the problems
of New South Wales premier Lang in 1930-32 (Clune
and Griffith 2006, 296-9).
14 This bill was first introduced in the Senate on May 30,
2006, as Bill-S4 (1st Session, 39th Parliament). After
referral to the Senate Standing Committee on
Constitutional and Legal Affairs and a Special Senate
Committee on Constitutional Reform, the Senate
resolved on June 19, 2007, that the bill should not
proceed to third reading until the Supreme Court of
Canada had ruled on its constitutionality. The substance
of the bill was reintroduced in the House of
Commons on November 13, 2007, as Bill C-19 (2nd
Session, 39th Parliament).
15 This bill was first introduced in the House of Commons
on December 13, 2006, as Bill-C43 (1st Session, 39th
Parliament), and was awaiting second reading when
the House was prorogued. The bill was reintroduced on
November 13, 2007, as Bill-C20 (2nd Session, 39th
Parliament).
16 See the Elections Alberta website: http://www.
elections.ab.ca/Public%20Website/589.htm.
17 The governments of both Manitoba (New Democratic
Party) and Saskatchewan (Saskatchewan Party) indicated
in May 2008 that they were considering ways to
consult the citizens of their provinces about the selection
of nominees for Senate appointment.
18 Summary details of the electoral changes can be found
in the notes to Legislative Council elections shown on
the Australian Government and Politics Database website,
http://elections.uwa.edu.au/, under "State
Parliament (legislative council, NSW only).”
19 In Tasmania, the Legislative Council retains representation
by single member districts, but it has a long tradition
of control by independent members; the lower
house, the House of Assembly, has been elected using
proportional representation by the single transferable
vote method since 1909.
20 The period from July 2005 to November 2007 was the
first occasion since 1981 that the Senate was held by a
government majority, enabling the government not
only to pass controversial legislation without having
to make amendments, but to reduce substantially the
opportunities for Senate scrutiny. Since the current
Rudd Labor government lacks a Senate majority, it is
assumed that procedures for more extensive Senate
scrutiny will be reinstated.
Notes
1 Joyal (2003) and Smith (2003a) are but the most
recent. Also note the proceedings of the conference
"Transforming Canadian Governance Through Senate
Reform,” Centre for the Study of Democratic
Institutions, University of British Columbia, Vancouver,
April 18-19, 2007; available at http://democracy.arts.
ubc.ca/index.php?id=10651; and "Senate Reform
Working Papers 2008,” Institute of Intergovernmental
Relations, Queen’s University, Kingston, ON; available
at http://www.queensu.ca/iigr/working/
senate/papers.html.
2 For a detailed survey of government proposals for
Senate reform since the 1960s, see the reviews by
Seidle (1992) and Stilborn (2003).
3 It is sometimes unclear whether authors in favour of
abolition disagree with the idea of an upper house for
Canada or with the use to which the Senate has been
put; see, for example, Campbell (1978).
4 This may or may not correspond with Sir John A.
Macdonald’s much-quoted role for the Senate: "the
Upper House…which has the sober second thought in
legislation” (Macdonald [1867] 1951, 35).
5 "The Commission takes the view that in this context,
propriety means: first, the individual should be in
good standing in the community in general and with
particular regard to the public regulatory authorities;
and second, the individual should be a credible nominee.
The Commission’s main criterion in assessing this
is whether the appointment would enhance rather than
diminish the workings and the reputation of the House
of Lords itself and the appointments system generally”
(United Kingdom n.d.).
6 Early in the Mulroney government’s term of office, in
the 1984-85 parliamentary session, the Liberal-dominated
Senate delayed the passage of a borrowing bill. As
Franks (1987, 193) notes, "The Mulroney government in
response threatened to reform the Senate by drastically
reducing its powers to delay legislation.” But no action
was taken at the time to implement such a change.
7 Five provinces once had legislative councils, but abolished
them: Manitoba in 1876, New Brunswick in
1892, Prince Edward Island in 1893, Nova Scotia in
1928 and Quebec in 1968. Until its surrender of
responsible government in 1934, Newfoundland maintained
a bicameral parliament.
8 The Irish Seanad may be in this position; see Russell
(2000, 234-6).
9 Details of these elections can be found on the
Australian Government and Politics Database website
(elections.uwa.edu.au) by selecting Elections, Senate
(national results) and viewing election results for years
between 1901 and 1946.
10 A balanced review and analysis of these events can be
found in Kelly (1995).
11 See note 5, above.
12 Section 26 of the Constitution Act, 1867 provides that,
"If at any Time on the Recommendation of the
Governor General the Queen thinks fit to direct that
Dawson, R. M., ed. 1933. Constitutional Issues in Canada
1900-1931. London: Oxford University Press.
Detterbeck, K., and W. Renzsch. 2003. "Multi-Level Electoral
Competition: The German Case.” European Urban and
Regional Studies 10 (3): 257-69.
Dorey, P. 2006. "1949, 1969, 1999: The Labour Party and
House of Lords Reform.” Parliamentary Affairs 59 (4):
599-620.
Flanagan, T. 2007. "Rebuilding the Senate, One Block at a
Time.” Globe and Mail, April 23.
Franks, C. E. S. 1987. The Parliament of Canada. Toronto:
University of Toronto Press.
_____. 2003. "The Canadian Senate in Modern Times.” In
Canadian Democracy: The Senate You Never Knew, edited
by S. Joyal. Montreal: McGill-Queen’s University Press.
Johnston, R., A. Blais, E. Gidengil, and N. Nevitte. 1996. The
Challenge of Direct Democracy: The 1992 Canadian
Referendum. Montreal: McGill-Queen’s University Press.
Joyal, S., ed. 2003. Protecting Canadian Democracy: The Senate
You Never Knew. Montreal: McGill-Queen’s University Press.
Kelly, P. 1995. November 1975: The Inside Story of
Australia’s Greatest Political Crisis. St. Leonards, NSW:
Allen & Unwin.
Kelso, A. 2006. "Reforming the House of Lords: Navigating
Representation, Democracy and Legitimacy.”
Parliamentary Affairs 59 (4): 563-81.
Macdonald, J. A. [1867] 1951. Parliamentary Debates on
Confederation of British North American Provinces. Ottawa.
McLean, I., A. Spirling, and M. Russell. 2003. "None of the
Above: The UK House of Commons Votes on Reforming
the House of Lords, February 2003.” Political Quarterly
47 (3): 298-310.
McMinn, W. G. 1979. A Constitutional History of Australia.
Melbourne: Oxford University Press.
McRoberts, K., and P. Monahan. 1993. The Charlottetown
Accord, the Referendum and the Future of Canada.
Toronto: Toronto University Press.
Mulgan, R. G. 1996. "The Australian Senate as a ‘House of
Review’.” Australian Journal of Political Science 31 (2):
191-204.
Norton, P. 2003. "Cohesion without Discipline: Party Voting
in the House of Lords.” Journal of Legislative Studies 9
(4): 57-72.
Parkinson, J. 2007. "The House of Lords: A Deliberative
Defence.” Political Quarterly 78 (3): 374-81.
Rémillard, G., with A. Turner. 2003. "Senate Reform: Back to
Basics.” In Canadian Democracy: The Senate You Never
Knew, edited by S. Joyal. Montreal: McGill-Queen’s
University Press.
Russell, M. 2000. Reforming the House of Lords: Lessons from
Overseas. Oxford: Oxford University Press.
Seidle, F. L. 1992. "Senate Reform and the Constitutional
Agenda: Conundrum or Solutions?” In Canadian
Constitutionalism 1791-1991, edited by J. Ajzenstat.
Ottawa: Canadian Study of Parliament Group.
Sharman, C. 1990. "Parliamentary Federations and Limited
Government: Constitutional Design and Redesign in
Australia and Canada.” Journal of Theoretical Politics 2
(2): 205-30.
21 Section 51A of the Constitution Act, 1867 stipulates
that "Notwithstanding anything in this Act a province
shall always be entitled to a number of members in the
House of Commons not less than the number of senators
representing such province.”
22 See McRoberts and Monahan (1993) for a review of
the Charlottetown Accord proposals; and Johnston et
al. (1996) for an analysis of the political dynamics of
the ensuing referendum.
23 For summary and background on the former, see
Seidle (1992, 97-8) and Watts (2006, 95-6). The Draft
Legal Text of the accord can be found in McRoberts
and Monahan (1993, appendix 2); see also Stilborn
(2003, 39-55).
24 The Irish Seanad provides an example of a system of
mixed prime ministerial appointment and elections
from a variety of special constituencies; see the
Constitution of Ireland, section 18; for brief commentary,
see Carmichael and Baker (1999, 78-9) and
Russell (2000, 68-73).
25 As the Crossman diaries noted for House of Lords reform:
"On summer evenings and winter afternoons, when they
have nothing else to do, people discuss how to reform the
House of Lords” (quoted in Dorey 2006, 599).
26 See Seidle (1992, 98-103) and Stilborn (2003) for
details of past Senate committee proposals for reform.
References
Ajzenstat, J. 2003. "Federalism and Canada’s Founders: The
Origins of the Canadian Senate.” In Canadian
Democracy: The Senate You Never Knew, edited by S.
Joyal. Montreal: McGill-Queen’s University Press.
_____. 2007. The Canadian Founding: John Locke and
Parliament. Montreal: McGill-Queen’s University Press.
Baldwin, N. 1999. "The Membership and Work of the House
of Lords.” In The House of Lords: Its Parliamentary
and Judicial Roles, edited by P. Carmichael and B.
Dickson. Oxford: Hart Publishing.
Beetham, D. 1991. The Legitimation of Power. Basingstoke,
UK: Macmillan.
Campbell, C. 1978. The Canadian Senate: A Lobby from
Within. Toronto: Macmillan.
Canada. 2007a. Parliament. Parliamentary Information and
Research Service. Legislative Summary: Bill C-19, An
Act to Amend the Constitution Act, 1867 (Tenure).
Ottawa. Accessed July 27, 2008. http://www.parl.gc.ca/
39/2/parlbus/chambus/house/bills/summaries/c19-e.pdf.
_____. 2007b. Parliamentary Information and Research
Service. Legislative Summary: Bill C-20, Senate
Appointment Consultation Act. Ottawa. Accessed July
27, 2008. http://www.parl.gc.ca/39/2/parlbus/chambus/
house/bills/summaries/c20-e.pdf
Carmichael, P., and A. Baker. 1999. "Second Chambers — A
Comparative Perspective.” In The House of Lords: Its
Parliamentary and Judicial Roles, edited by P.
Carmichael and B. Dickson. Oxford: Hart Publishing.
Clune, D., and G. Griffith. 2006. Decision and Deliberation:
The Parliament of New South Wales 1856-2006.
Sydney: Federation Press.
23
Po l i t i c a l L e g i t i m a c y f o r a n A p p o i n t e d S e n a t e , b y C a m p b e l l S h a r m a n
I R P P C h o i c e s , V o l . 1 4 , n o . 11 , S e p t e m b e r 2 0 0 8
24
_____. 1999a. "The Representation of Small Parties and
Independents in the Senate.” Australian Journal of
Political Science 34 (3): 353-61.
_____. 1999b. "The Senate and Good Government.” Papers
on Parliament 33, May 1999, The Senate and Good
Government and Other Lectures in the Senate
Occasional Lecture Series 1998. Canberra: Australian
Parliament, Department of the Senate. Accessed July
27, 2008. http://www.aph.gov.au/
Senate/pubs/pops/pop33/c09.pdf
Shell, D. 1992. The House of Lords, 2nd ed. Hemel
Hempstead, UK: Harvester Wheatsheaf.
Smiley, D. 1985. "An Elected Senate for Canada? Clues from
the Australian Experience.” Discussion Paper 21.
Kingston, ON: Queen’s University, Institute of
Intergovernmental Relations.
Smith, D. E. 2003a. The Canadian Senate in Bicameral
Perspective. Toronto: University of Toronto Press.
_____. 2003b. "The Improvement of the Senate by
Nonconstitutional Means.” In Canadian Democracy:
The Senate You Never Knew, edited by S. Joyal.
Montreal: McGill-Queen’s University Press.
Smith, J. 2004. Federalism. Vancouver: University of British
Columbia Press.
Sproule-Jones, M. 1984. "The Enduring Colony: Political
Institutions and Political Science in Canada.” Publius:
The Journal of Federalism 14 (1): 93-108.
Stilborn, J. 2003. "Forty Years of Not Reforming the
Senate.” In Canadian Democracy: The Senate You
Never Knew, edited by S. Joyal. Montreal: McGill-
Queen’s University Press.
Stone, B. 2002. "Bicameralism and Democracy: The
Transformation of Australian State Upper Houses.”
Australian Journal of Political Science 37 (2): 267 81.
Thomas, P. 2003. "Comparing the Law Making Roles of the
Senate and the House of Commons.” In Canadian
Democracy: The Senate You Never Knew, edited by S.
Joyal. Montreal: McGill-Queen’s University Press.
Turner, K. 1969. House of Review: The New South Wales
Legislative Council, 1934-1968. Sydney: University of
Sydney Press.
Uhr, J. 1995. "Proportional Representation in the Australian
Senate: Recovering the Rationale.” Australian Journal
of Political Science 30 (special issue): 127-41.
United Kingdom. 2000. House of Commons. "Lords Reform:
Major Developments Since the House of Lords Act
1999.” Research Paper 00/60. London. Accessed July
27, 2008. http://www.parliament.uk/commons/
lib/research/rp2000/rp00-060.pdf.
_____. n.d. House of Lords Appointments Commission.
“Vetting.” [Accessed 22 September 2008].
http://www.lordsappointments.gov.uk/appointees.aspx
Warhurst, J., ed. 1997. Keeping the Bastards Honest: The
Australian Democrats’ First Twenty Years. St.
Leonards, NSW: Allen & Unwin.
Watts, R. 2006. "Bicameralism in Federal Parliamentary
Systems.” In Canadian Democracy: The Senate You
Never Knew, edited by S. Joyal. Montreal: McGill-
Queen’s University Press.
25
Suit une analyse du rôle du premier ministre dans les
nominations au Sénat canadien, mais aussi de l’incidence
du nombre fixe de ses membres et des contraintes
régionales sur la dynamique partisane de ces nominations.
Pour illustrer cet aspect, l’auteur examine les
récentes mesures législatives du gouvernement Harper
visant à modifier la composition du Sénat et décrit dans
quelle mesure cette réforme pourrait tactiquement servir à
des fins partisanes.
Enfin, six propositions font valoir le rôle décisif que
peut jouer le Sénat dans l’examen critique des projets de
loi et des mesures proposées par l’exécutif, sans pour
autant être perçu comme une menace à l’existence du
gouvernement. Ces propositions englobent les éléments
clés d’une réforme fructueuse du Sénat, en ce qui a trait
notamment aux intérêts cruciaux découlant des liens de
parti et du pouvoir du premier ministre. Négliger ces
questions condamnerait à l’échec tout projet le moindrement
ambitieux de modification constitutionnelle. Si
une réforme du Sénat parvient à cibler l’enjeu central, qui
est la bonne marche et la réceptivité du gouvernement
par le biais d’un examen efficace de l’exécutif national, la
question consistera alors à établir un concept institutionnel
susceptible d’harmoniser des intérêts divergents.
L’élection directe du Sénat constituerait par conséquent
un objectif trop ambitieux. Mais on peut supposer qu’une
modification de la procédure de sélection permette d’aménager
l’éventail des intérêts touchés par une réforme parlementaire
et fasse profiter le Canada des avantages d’un
système bicaméral véritablement efficace.
Si la légitimité démocratique est synonyme d’élection,
les institutions représentatives non élues
directement font face à un double problème : leur
autorité est contestable et leur rôle mal défini. Et c’est
précisément ce qu’on reproche au Sénat canadien. Quel
que soit le bien-fondé de ses activités, son défaut de
légitimité institutionnelle en a toujours affaibli la valeur.
Mais il serait abusif de prétendre que les élections sont
l’unique source de légitimité politique. Les tribunaux
canadiens, surtout depuis la Charte des droits et libertés,
offrent l’exemple frappant d’une institution dont l’autorité
largement reconnue n’émane pas de la représentation
populaire. Les élections ne sont en effet qu’un
élément des démocraties libérales : le constitutionnalisme,
la règle de droit et la structure institutionnelle jouent un
rôle tout aussi important dans le fonctionnement et la
surveillance des gouvernements représentatifs. Il s’agit
donc de déterminer si une chambre du Parlement peut
fonder sa légitimité sur un concept institutionnel prévoyant
la nomination de ses membres.
Une récente initiative du Royaume-Uni tendrait à le
confirmer : l’instauration à la Chambre des lords de
nominations partisanes équilibrées a renforcé l’adhésion
de la population au mandat de l’institution. Mais beaucoup
de questions subsistent quant aux modifications
susceptibles d’accroître la légitimité d’un Sénat canadien
non élu et à leur incidence sur le rôle de la Chambre
haute comme sur l’ensemble du régime parlementaire.
Cette étude examine les différentes hypothèses sur le
rôle du Sénat, les objectifs d’une réforme et les méthodes
qui permettraient de les atteindre. Elle fait valoir le lien
critique entre le pouvoir et la légitimité des institutions
parlementaires, de même que la nécessité d’équilibrer ces
deux éléments pour affermir le rôle d’un Sénat non élu
dans la procédure parlementaire. En contrepoint, l’auteur
examine comment l’évolution de la Chambre des lords et
du Sénat australien a consolidé leur rôle au sein de leur
régime parlementaire respectif.
Résumé Political Legitimacy for
an Appointed Senate
Campbell Sharman
26
to be in balance if a stable role is to be found for an
appointed upper house in the parliamentary process. This is
supplemented by an examination of how the House of
Lords and the Australian Senate have evolved to achieve
such a role in their parliamentary systems.
The analysis then moves to the Canadian Senate and
examines the role of the prime minister in the appointment
of senators and the implications of the Senate’s
fixed size and regional constraints on appointments in
shaping its partisan dynamics. This is illustrated by an
examination of the Harper government’s more recent legislative
initiatives to alter the composition of the Senate
and the extent to which Senate reform can be used as a
tactical device for partisan gain.
The paper sets out six propositions concerning the
Senate which stress its key role as a source of effective
scrutiny of legislation and executive action without being
seen as a threat to the existence of a government. The
propositions list the key components to consider for successful
Senate reform; in particular, they point to the critical
interests that must be accommodated: partisanship
and the power of the prime minister. Ignoring these issues
and generating ambitious plans for large-scale constitutional
change is a recipe for failure. If Senate reform can
focus on dealing with the central problem of achieving
good and responsive government through the effective
scrutiny of the national executive, then the issue is one of
institutional design to harmonize competing interests. For
this reason, direct election of the Senate is too ambitious
a goal. But there is just a chance that amending the selection
procedures for senators might be congruent with a
range of interests concerned with parliamentary reform,
and might provide Canada with the benefits of an effective
system of parliamentary bicameralism.
If democratic legitimacy is seen as synonymous with
elections, representative institutions that are not
directly elected face a double problem: their authority
can be questioned and their role is unclear. And these are
precisely the charges that have dogged the Canadian
Senate. Whatever the merits of its activities, they have
been undermined by a lack of institutional legitimacy.
Yet to argue that elections are the sole source of political
legitimacy is too broad a claim. Canadian courts, particularly
since the Charter of Rights and Freedoms, are an
obvious example of an institution whose widely accepted
authority does not derive from popular representation.
Elections are only one component of liberal democracy;
constitutionalism, the rule of law and an institutional
framework both to implement and to monitor representative
government are equally important. The question is
whether legitimacy for a parliamentary chamber can be
achieved through some institutional design based on the
appointment of its members.
The recent experience of the United Kingdom House of
Lords adds weight to the view that this is possible; the
introduction of balanced partisan appointments has
enhanced the public acceptance of the role of the chamber.
But there are many questions about the changes that
would be needed to give greater legitimacy to an
appointed Canadian Senate and about their consequences
for the role of the Senate and for parliamentary government
in general.
This paper examines the differing assumptions about
the purpose of the Senate, the goals for reform and the
methods of achieving them. It stresses the critical relationship
between the power and the legitimacy of parliamentary
institutions, and argues that these two attributes need
Summary Political Legitimacy for
an Appointed Senate
Campbell Sharman