In motion

Jack Layton's push to abolish the Senate has certainly managed to dominate Canada's political scene over the course of this week. But it's noteworthy that while false impressions about Layton's motion seems to have spread like wildfire, the real strategic context has been largely ignored.

Let's start by correcting the false claim that anti-NDP forces seem to have shouted in unision: there's nothing anti-constitutional or impossible about Layton's proposal. Instead, it's clear under the Referendum Act that a referendum may be held for the purpose of gathering the "opinion" of Canadian citizens (rather than to impose the proposed policy without further action):

3. (1) Where the Governor in Council considers that it is in the public interest to obtain by means of a referendum the opinion of electors on any question relating to the Constitution of Canada, the Governor in Council may, by proclamation, direct that the opinion of electors be obtained by putting the question to the electors of Canada or of one or more provinces specified in the proclamation at a referendum called for that purpose.

As I'd noted from the beginning, the effect of a referendum on abolition wouldn't be to actually abolish the Senate immediately. The effect would instead be to put pressure on the provinces to agree to abolition as a stand-alone issue without getting into the usual wrangling that accompanies constitutional changes.

Another point of confusion seems to surround the nature of Layton's motion. From the above portion of the Referendum Act, it should be obvious that the capacity to call a referendum lies solely with the Governor in Council (i.e. the federal government). If Harper wants a referendum, he can call it without any House motion; if he doesn't, then it would take a legislative amendment passed by all three opposition parties (not to mention the Senate) to impose one against Harper's will.

Likewise, the view of the current Senate is utterly irrelevant to the question of whether a referendum can take place. Layton's motion wouldn't be put before the Senate unless an individual senator chooses to introduce it separately - and even then the Senate's vote would similarly be of no immediate effect.

So what's the point of Layton's motion? From this angle, it seems to be directed far more at putting immediate pressure on the Cons than on the Libs. If Harper and his government vote against the motion, they'll be offering effective support for a body which is despised by a significant portion of their base in its current form; if they vote for it, then they'll have to answer for a serious reversal if they don't follow through and put the question to Canada's citizens.

Which means that absent some other factor, all roads lead either to the Cons losing face, or to a referendum on a longstanding NDP priority.

So far, so good. But then we get to Harper's decision to try to change the issue in order to toss the ball into the court of the Libs' senators. And that's where there's some real risk in Layton's motion.

Harper's strategy has obviously been to use the possibility of a referendum as leverage against the Libs' Senate majority. Indeed, his seemingly positive response to Layton was offered only with the proviso that the Libs can avoid a referendum by acceding to his party's demands. And the danger is that if the Libs decide to give in to Harper yet again, Harper will get his gridlock-friendly triple-E version of the Senate before 2009 without any meaningful public input, while the Canadian public will never get to vote on abolition (or even reform).

So does that mean that the NDP should back off? Not for a second.

Harper may be able to try to deflect from the real issue in the media by testing what the Libs' senators will put up with in order to avoid an abolition vote. But he and his party can only spin its own vote on an NDP-worded motion so far. Which means that by pushing forward, Layton can put the pressure squarely back on the Cons for the motion vote now - and hopefully again when it comes time to put the abolition question to the Canadian public in two years.