Sunday, June 02, 2013

The road to abolition

Ian Peach's guest post at Pundits' Guide is well worth a read in setting out a feasible path to Senate abolition. But I'll note that the exact wording of an abolition resolution would need to be somewhat more complex than that proposed by Peach - while the political push might also take a slightly different shape than he seems to be counting on.

Peach's proposal for an abolition resolution - which, as he rightly notes, could originate with a province rather than the federal government - is as follows:
The resolution would be simple: that sections 26 through 31 of the Constitution Act, 1867 be repealed.
Now, I won't claim to be a constitutional scholar on Peach's level. But I'm not sure how the repeal of those provisions governing the appointment, tenure and disqualification of Senators would serve to effectively abolish the institution, particularly when it would leave intact:

- section 17, which defines the Parliament of Canada to include an upper house styled the Senate;
- sections 21-22, defining the number and geographic distribution of Senators;
- section 23, setting the qualifications for Senators;
- sections 24 and 32, providing for the appointment of Senators by summons; and
- section 35, setting a quorum requirement for the conduct of Senate business.

While the elimination of constitutional protection for tenure might provide more avenues to remove Senators from office, it wouldn't provide a clear answer as to what comes next. And it would seem to me to be at least open to future federal governments to keep making use of the power to summon Senators even if Peach's proposed resolution passed.

Again, that observation doesn't affect the possibility that an abolition resolution could originate with a province. But it does signal the need for a resolution originating with a province to fully excise the Senate (and the Senate alone) from Canada's current constitution.

As for the political side of abolition, Peach seems hopeful that pressure from the provincial NDP will turn the tide in provinces with current or potential minority governments. And it's possible that the NDP could make Senate abolition into part of its demands for support of any minority government.

But I'm not sure that provincial NDP wings will see much benefit in doing so unless public demand for abolition is so high that the provincial government would feel significant pressure to go along in any event. Which means that rather than hoping for NDP demands in minority governments in Ontario and New Brunswick as a necessary element of an abolition strategy, the more plausible path looks to involve the strength of the federal party's Roll Up the Red Carpet campaign in placing pressure on provincial governments to either support abolition, or be seen as parties to a continued stream of scandals and abuses.

Update: In comments at his guest post, Peach notes that his proposed resolution should in fact repeal sections 21 to 36 of the Constitution Act, 1867 - addressing most of my concerns above. But I'd still see it as important to include consequential amendments to section 17 (and other sections featuring mention of Senate authority) lest a future government take any remaining references to the Senate as an invitation to keep a second chamber running.

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