Analysis

Peter Harder says the Senate can save us from tyranny - if it can keep itself in check

Peter Harder, the former civil servant who now serves as a representative in the Senate for Justin Trudeau's government, believes the upper chamber should restrain itself. He also acknowledges the possibility that one day it might have to act against an elected government's wishes for the greater good.

'It is possible for the Senate to be redeemed' - Peter Harder

Senator Peter Harder, the Trudeau government's representative in the Senate, says the upper chamber's ability to resist abuses by future governments rests on its commitment to democratic norms. (Adrian Wyld/Canadian Press)

Peter Harder, the former civil servant who now serves as the Trudeau government's representative in the Senate, believes the upper chamber should restrain itself.

But in the 51-page discussion paper he released this week to explain how and why the upper chamber should (generally) stop short of standing in the way of a government's agenda, Harder acknowledges the possibility that, one day, it might fall to the Senate to act against the government for the good of society.

The fathers of Confederation, he notes, "sought an upper house with enough power to act as a legally effective safety valve against the tyranny of the majority."

And tyranny isn't quite the extreme hypothetical it used to be.

"This role remains highly relevant today given the significant power that majority governments wield in Canada and the wave of populism that has hit some corners of the world," Harder writes.

That might be the best argument for a credible, independent Senate.

The Salisbury doctrine

Harder takes his inspiration from the fifth Marquess of Salisbury, Viscount Cranborne, a member of Britain's House of Lords from 1941 until his death in 1971 and the man who gave his name to the Salisbury Doctrine.

Developed over a century of British parliamentary practice and established in 1945, the doctrine basically holds that the House of Lords — an appointed chamber similar to our Senate — will not reject legislation that implements a commitment made in the governing party's election platform.

Building on that, Harder proposes an approach that would see the Senate study and amend legislation, but generally defer to the will of the democratically-elected House of Commons.

Christopher Reed, an aide to Independent Sen. Stephen Greene, has already written an essay that takes issue with the idea of importing the doctrine. He argues the Canadian Senate has typically deferred to the government's agenda. Harder himself notes that the Senate has defeated a government bill on only four occasions in the last 70 years.

But since Prime Minister Justin Trudeau implemented his plan for independent non-partisan Senate appointments, some observers have fretted over signs the upper chamber is behaving more boldly. Legislation to legalize the recreational consumption of marijuana — a key 2015 Liberal campaign promise — briefly appeared at one point to be in real danger of defeat.

The current Senate has been more active than its immediate predecessor. Since 2011, the Senate has amended seven government bills. Between 2011 and 2015, when Stephen Harper's Conservatives were in power, the Senate amended just one government bill.

But the new Senate also has held itself in check. In cases where the House of Commons has disagreed with the amendments made by the Senate, the upper chamber has deferred.

'The objective of a less partisan Senate is to be a complementary chamber to the House of Commons, not an echo chamber of the partisanship,' says the government's representative in the Senate. 7:52

Independence followed infamy

That the Senate should generally (or ultimately) defer to the elected government might seem a rather self-serving argument for that government's representative to make. But Harder isn't the first to make it — and his support for the Salisbury Doctrine should not automatically disqualify it from consideration.

For that matter, Conservatives should be familiar already with some of the basic thinking behind the doctrine. In the early years of the Harper government, when the Liberals had a majority in the Senate, it was the Conservatives who were fond of complaining that "unelected, unaccountable" senators were holding up their agenda.

Soon after, the Senate began to explore new depths of infamy with a series of political and personal scandals.

In the midst of all that trouble, Trudeau ejected Liberal senators from his caucus and made his pitch for the appointment of independent senators who would not be aligned by party allegiance.

In doing so, he simultaneously insulated himself from the unfolding controversies, countered NDP and Conservative calls for constitutional reform — and perhaps offered the Senate a path to something like respectability.

"I would suggest that it is possible for the Senate to be redeemed in Canadians' eyes if it embraces the qualities that distinguish it from the House of Commons," Harder writes, calling for a Senate that is sober, constructive and "less partisan."

The Senate's credibility problem

At a few points in the paper, Harder invokes the Senate's "credibility" to suggest that any overzealous efforts by senators to thwart the will of the democratically-elected House of Commons could do great damage to the institution.

"The credibility of Senate ... depends on a measured and judicious approach to its relationship with the other place," he writes.

An overly obstructive Senate risks the public's wrath. It also could endanger the very idea of an independent Senate.

"If an independent Senate were to block government legislation too often, a Prime Minister might consider reviving the practice of appointing partisans," argues Philippe Lagasse, a professor at Carleton University who studies the Westminster system.

Reed argues the Senate should not bind itself to any expectations that might limit its work. And even Harder acknowledges that the Salisbury approach might have its limits — that, for instance, a government's election platform might include an egregiously anti-democratic promise that senators would be obliged to confront.

But a credible, independent Senate could come in handy if, someday, Canada finds itself in the grip of actual tyranny.

Senators Yuen Pau Woo, Tony Dean and Peter Harder discuss next steps for the government's pot bill as it passes a critical vote in the Senate. 1:54

Could appointed senators protect democracy?

Summarizing an argument that preceded the Salisbury doctrine, a British academic once wrote that the House of Lords "must ... preserve its powers intact against the day when it might have to spend them upon some great occasion."

A determined authoritarian could get away with a fair bit in our system. But what if, for instance, a future prime minister tried to appoint a party loyalist as the parliamentary budget officer? Or moved to abolish the legislation that governs how riding boundaries are drawn, to better stack them in the government's favour?

A complicit majority in the House might be willing to go along. The Senate might say no.

On that score, Harder points to an unsatisfying example from history: the Senate's move in the 1940s to limit the number of Canadians from "enemy races" who would be denied their right to vote during the Second World War, while still allowing Japanese-Canadians to remain disenfranchised.

Perhaps a Senate of independents would be more willing to block such an abuse.

There's obvious irony in holding up an unelected chamber as a guardian of freedom and democracy. And what constitutes tyranny might even be up for debate in some cases.

But recent world events have suggested that the concepts and structures behind Western democracy are vulnerable.

Canadians have spent 150 years lamenting the Senate's creation. Maybe one day we'll be thankful it exists.

About the Author

Aaron Wherry

Parliament Hill Bureau

Aaron Wherry has covered Parliament Hill since 2007 and has written for Maclean's, the National Post and the Globe and Mail.

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