Thank you very much, Madam Chair. It's certainly a privilege to be able to testify before this committee, and I thank you very much for the opportunity. I also apologize to you and to my colleagues present that the press of commitments means I have to talk to you via video.
I confess that I am deeply ambivalent about Bill C-20 as well and about how to respond to it. I share most of the concerns that have been raised by my colleagues, but I think I do perhaps come down at a slightly different point.
There is much to be said in favour of Bill C-20, I think. After decades of frustration in our debates about Senate reform, it does break a logjam and opens the possibility of real change without plunging us into yet another round of failed constitutional negotiations. It does bring an element of real democracy into the process of selecting senators, thus potentially making the Senate more representative, responsive, and accountable.
It promises a check on the excessive concentration of the power of appointment in the hands of the Prime Minister—a major part of the democratic deficit in Canada and the fundamental reason for the weakness of the Senate as an effective body representing regional and provincial interests in central institutions.
It creates the possibility of a Senate that is perhaps more effectively able to represent provincial voices in the federal Parliament. Professor Watts referred to Tom Kent's argument, and I think I agree with him that the legitimacy of the central government will be enhanced by election, and that will place some sort of potential check on the ability of premiers to have a monopoly of representing the provincial views on national issues. I think that would make for a healthy federalism.
So there are some good things to be said here, but of course I have some real doubts about Bill C-20 as well, and they are partly procedural and partly substantive.
First, on procedure, there are several elements here. The two reforms under discussion, consultative elections and a fixed term for senators, are a very limited second best to more fundamental reform. I realize the scope of the bills is sharply limited by the government's desire to find a way to make changes by Parliament alone, rather than through formal constitutional amendment.
But the cost of that is that a full review of the Senate, as Professor Watts said—one that would include the roles and powers of the Senate and the allocation of seats across provinces—will not take place. And yet all these factors are linked and need to work together. For example, do we want to enhance the power of the Senate, as this bill likely does, without addressing the gross underrepresentation of western provinces in Senate seats?
Second, we have not had a full public discussion about Senate reform here. There's been virtually no public involvement in this process, even though over the years many imaginative proposals for different kinds of reform of the Senate have been made.
In addition, as has been pointed out, the Senate is a vital element in federalism, so the lack of intergovernmental consultation here is a problem. A number of provinces, including a unanimous Quebec legislature, have objected to the bill. Several provinces already have or are considering their own legislation to generate potential Senate nominees. Indeed, I think that suggests an interesting alternative avenue that we might explore.
What if all provinces were to hold elections for nominees, the results of which would be submitted to the Prime Minister? He would retain his constitutional discretion over appointments and could ignore the result if he felt the provincial processes were undemocratic, but it seems to me a way to achieve a lot of what's intended here without raising quite the same constitutional difficulty that this bill does.
The federalism perspective casts another light on the issue of the constitutionality of Bill C-20. I do defer to those legal experts, such as Peter Hogg and Patrick Monahan, who have told you that the bill is drafted narrowly enough that formal amendment is not necessary, but even they admit we could easily find ourselves in a constitutional grey area, especially if the bill is strengthened.
But the reason we require the amendment for major change in the Senate is that the interests of provinces are so deeply engaged. Whether or not this bill is constitutional in the large “C” sense of that word, it does suggest, as has been pointed out, a new set of rules that could in the long run significantly affect the role and powers of the Senate and thus would be a change in our operating or conventional Constitution, with potentially important implications for federalism.
So, yes, there are real procedural problems.
Next I'll make some observations on the substance of the bill.
Perhaps the most troubling aspect for me is its uncertain character: the government may or may not decide to hold a consultative election; it may or may not decide to appoint those who have won the election; elections may be held in some provinces and not in others.
It seems to me that if we are to have Senate elections, let's do it. They should take place everywhere. The results should be binding, and so on. It would be a major confusion for citizens if, whenever there was a vacancy, they were unsure about whether there would be a vote and what its effects would be. It also seems odd that we would legislate the complex and detailed rules set out in the legislation and mobilize all the resources of Elections Canada to manage an election whose status and effect are unclear.
Second, I raise the question of when senatorial elections would be held. The bill contemplates holding them at the time of either a federal or a provincial election. The Chief Electoral Officer has argued persuasively that coordinating with provincial election law could be very complicated, so it's most likely that senatorial elections would coincide with federal elections, but there are problems with that: the likelihood is that the Senate election would be lost or drowned in the broader focus on the general election; Senate election results would be driven by the preoccupations of the national parties; and it would be difficult to keep funding and other activities of the Senate apart from general elections.
It would be far better, I believe, to conduct Senate elections separately, on fixed dates. Perhaps one day every two years could be set aside as Senate election day, with elections held for all vacant Senate seats on that day. That would make it simpler to administer, it would reduce partisanship, at least somewhat, and it would provide provincial electorates with a much greater ability to reflect on how they wish their interests to be represented in Ottawa.
I also have a word or two about the single transferable vote system that is provided here, but I don't want to say much about that because I'm running out of time. Let me just say that if we're going to introduce two major sets of changes--a change to the electoral system and fundamental changes to the Senate--then we should realize that an enormous public education process is necessary here. We've had two failed referendums about electoral reform in Ontario and B.C., and that's partly because in neither case was there proper provision for an educational process.
There are a number of other issues. The funding provisions are unclear, and campaigning will be expensive, so it's unclear why political parties can contribute services but not direct funding, or why there are no direct limits on direct contributions to candidates, which is different from other elections. And should there not be some form of public subsidy for senatorial election candidates? These kinds of questions all have a bearing on whether and how much we want Senate elections to be inoculated against party influence, and indeed how seriously we take these elections. Much clarification is necessary.
The most important question is, of course, what the effects of the changes would be in the very long run. Political scientists and constitutional designers have a very poor track record in predicting the consequences of institutional change, but clearly, as has been said, this is pretty fundamental. Once the system is in place and accepted, the Senate would have far more legitimacy, and hence influence, than it has at present. It would be a significant alternative centre of power, especially since its powers would remain intact. We might say that the House of Commons would remain the confidence House, with the power to make and unmake governments, but that's a convention, and it could easily change with a more legitimate Senate. However, I'm not sure that these doubts and uncertainties about the long-term future should stop us from doing something now to get this ball rolling.
Let me conclude by saying that I do not love this bill. I see it as an incremental ad hoc effort whose main outlines are shaped by the desire to make some change without falling into the pit of constitutional change. One certainly might argue that we should have the larger debate, even if it does take a long time; after all, there's no outcry in the streets for urgent reform, no crisis calling out for action, and so on.
Nevertheless, on balance, I would say, despite my misgivings and my preference for an alternative route, let us make this change but with a few alterations. I would like to see the following happen: that the bill be strengthened in some of the ways I've already suggested; that elections be held in all provinces, for all senatorial appointments; that they be honoured by the Prime Minister; and that there be an election day, and so on.
I realize that such strengthening might well tip this over into a change that does require formal amendment. Perhaps the best way would be to strengthen the bill in the Commons; seek a Supreme Court reference on its constitutionality; and see where it does or it does not transgress the amendment procedures. Then the court would be able to clarify for the House the scope and limits of what Parliament can do unilaterally and thus guide the final debate on this bill.
Thank you very much, Madam Chair.