Canadian Senate being debated in Supreme Court

Via CBC:

Prime Minister Stephen Harper’s government has asked the Supreme Court of Canada to advise whether it can proceed unilaterally to impose term limits on senators and create a process for electing them.

The government contends that some such reforms can be imposed by the central government, citing the imposition of a retirement age for senators in 1965. However, the government’s question also considers the question of possible abolition of the senate. Here the question is whether unanimous consent of the provinces would be required, or whether the “750 formula” must be adhered to. The latter means seven provinces, accounting for half the national population.

61 thoughts on “Canadian Senate being debated in Supreme Court

  1. For the record, I would support a Triple E Senate along the Australian model for Canada, if anyone asks. Not having a clear, simple, and fair system for amending the constitution seems to me to be a much bigger problem.

    One would think that having a constitution that is hard to amend is one thing, but a constitution that no one knows how to amend is something entirely different. I’m not a fan of the government being able to amend on a whim, no ratification, no supermajority. But I am also not a fan a system where a single province/state/whatever can block whatever the rest of the nation wants.

  2. I agree about the Canadian system (term used extremely loosely) for amending the constitution.

    I don’t know that a reformed senate necessarily needs equal representation by province. I do think Canada desperately needs a reformed senate to balance the over-powerful executive. A couple of semi-equal alternatives have been proposed.

  3. I don’t propose this as a solution now, but I think that what the framers should have done back in 1867 was to make the Senate appointed not by the Governor-General, but by the (provincial) Lieutenant-Governors, who would be acting on the advice of provincial premiers.

  4. The weirdness with the Canadian senate is that it has never been reformed.

    At origin it was the standard colonial legislative council found throughout the British empah. It would take 30 years before Australia adopted an elective senate over vigorous Imperial opposition, including the rather unlikely (and deeply scurrilous) claim that Victoria would be personally distraught if Australian senators served under writs of election rather than royal warrants.

    As well, it was not clear at the time that provincial lieutenant-governors would act on the advice of provincial ministers. That was one theory. The other was that the LGs would have the same relationship to the federal government that the GG had to the imperial government.

  5. In fact, in 1867, they REVERTED to an appointed upper house : the province of Canada (Ontario + Quebec) had a Legislative Council, and went from appointments to elections in 1856. The ‘divisions’ for those elections are still relevant for the appointment of senators from Quebec (1867 Act, s. 22); that’s why Quebec has 24 senators, and the other ‘senatorial regions’ too.

  6. The reversion brought them into line with the legislative councils of life appointees in the Australasian colonies, the Cape Colony and Natal. Canadian legislative councils had also comprised life appointees from 1838 to 1856. The more interesting question is why, when every other colony/former colony replaced or abolished their appointive chambers by 1933, the Canadian senate looks set to remain appointive for the foreseeable future.

  7. First, equal representation for each province is not a serious option. I assume it keeps being mentioned because of the residual prestige of the United States, though the concept doesn’t work particularly well in the U.S.

    Canada has ten provinces. Five of them are in just one region of the country, which has less than 10% of the population. The equivalent for the US would be as if New England was not just overrepresented in the Senate, with 12 out of 100 Senators, but had 50 of the 100 Senators, or if half the Australian Senate was elected from Victoria. There is also the matter that there is just one French speaking province.

    I’m eccentric in thinking that the Canadian Senate should be kept exactly as it is, though I have alot of respect for the NDP position of abolishing the body. First of all, political conventions has kept the current version pretty harmless, if embarrassing. Its not quite as useful as the House of Lords or potentially as harmful as the Electoral College. So you immediately have a situation that reforms (other than abolishing the institution) would likely make things worse.

    Second, the nature of the country is that if you were designing an upper chamber from scratch there really is no good way to do it. The country is mid-sized in terms of population, but everyone is spread out on a line in diverse regions. As I noted before, the provinces don’t match up at all well with the regional realities, and you have a large and distinct linguistic minority that is concentrated in one province. There are various existing mechanisms other than the Senate that give provincial governments input into federal government decisions. Politics is fragmented along the regions, the provincial parties don’t really line up with federal counterparts, and there are big variations in performance region-by-region with the federal parties. Having the Senate elected by national proportional representation adds little (on the other hand, if you elected the House of Commons by PR, a more national political system could well develop, but then you do this by electing the House of Commons by PR and abolishing the Senate, the NDP position).

    Really the most appropriate upper chamber for Canada, a copy of the Bundesrat, is already effectively duplicated by the various conferences between the federal and provincial premiers.

  8. The Hynes proposal. which I linked above, would retain 3 territorial seats and 110 provincial seats. All would eb welted by STV. 60 of the provincials eats would be distributed equally by province. The remainder would be determined by population. Québec and the Maritimes would lose seats. I’d think one could probably make a special case for Québec and grandfather their 24 seats for a limited period. Everyone else would gain.

  9. Thanks, Ed. Just adding my agreement that any attempt to make the Senate truly effective runs into massive federalism and regionalism issues. I suppose it’s possible that a reform could make things better, but I can imagine so many more ways it could make things worse.

  10. I would propose dividing the seats by the Penrose method – proportional to a square root of the population. With 110 provincial seats, the distribution is: Ontario 25, Quebec 20, BC 15, Alberta 14, Manitoba 8, Sask. 7, NS 7, NB 6, Nfld 5 and PEI 3.

    I would support a max. 10 year term (8 or less, if the fixed elections law holds up), with half of each province’s delegation directly elected by STV at each general election (presumably the territories’ senators would all be replaced at each election, as in Australia).

    However, I’ve been toying with the ideas of indirect election, or elections being held alongside provincial elections. And then there’s the issue of deadlock-breaking mechanisms to attend to.

  11. The Penrose numbers, with one exception, are better than the Hynes numbers and have the advantage of relying on a basic mathematical principle. The one group that loses significant numbers of seats is Francophone Canada. A possible solution would be 5 Francophone (not Quebecois) senators named by an electoral college comprising the Québec national assembly and delegates from Francophones living outside Québec.

    I think there is also a case (you know what I’m about to say) for 3 ‘community’ seats for the Indians, Inuktitut and Métis. The first nations themselves could determine whether to elect all three jointly or separately.

    NSW has a second chamber that combines fierce independence and scrutiny with inability to bring down the government or force an early election. The legislative council has effectively zero powers on money bills. The assembly can call a referendum on other bills rejected by the council.

    I would not have rotation, especially where so many provinces would have odd numbers of senators. I would tie senate elections to provincial elections rather than federal elections and include the premier automatically in each provincial legation.

  12. all: What are your thoughts on indirect elections by provincial legislatures?

    Alan: Francophone representation may indeed be an issue, but I wonder why elect address it the way you propose, especially in terms of in/direct election and extra seats elected by an electoral college the election of which may potentially require a whole new definition of who is a ‘Francophone’… I would have thought extra seats for Quebec and NB would essentially do the trick.

    You suggestively mention the NSW LegCo as a model, which is fair enough, but I’d like to discuss the possibilities and consequences of applying the model on the Canadian Senate. Is deadlock-breaking by referendum a good idea for a federation (and whatever else applies to Canada but not NSW)? How viable is it in a country which to my knowledge has never had a federal referendum? And, of course, what about the alternatives?

    I would like some clarifications on the next one… What exactly do you mean by no rotation? What is the problem with odd numbers of senators? What term length do you suggest and why?

    Why would you opt for electing senators at provincial elections (I know I suggested it, and that’s actually why I’d like more feedback)?

    And lastly, why go for the South-African style automatic premiers in the Senate? Several issues I have with this, but I want to let you elaborate/motivate more first…

    ps (to all): I have of course always greatly enjoyed our discussions here.However, sometimes, in this kind of detailed, specific discussion, I’ve had the feeling that we don’t engage too much which each others ideas and that the communications break down with people not responding to many questions (maybe it’s just me…). In this discussion, I will do my best to respond adequately and address these issues; I would greatly appreciate all efforts to do the same and make this a rewarding discussion. Thank you🙂

  13. Referendums are a fairly recent innovation in Britain, but there’s a good argument now that you don’t make fundamental change to the constitution without one. So the lack of precedents, while it’s a problem, is one that can be overcome. Referendums as a result of intercameral deadlocks are vanishingly rare in NSW. We’ve had, since 1972, referendums in 1995, 1991, 1981, 1978 and 1976. Only one (daylight saving in 1976) was intercameral, the rest were amendments to entrenched sections of the state constitution. Oddly enough all were approved without exception.

    Some of the constitutional referendums were rejected by the legislative council, but they would have required referendums to pass in any case.

    A province with an odd number of senators has to elect different numbers of senators if it has staggered terms. That slightly empowers the cohort of electors at one election over the cohort of electors at another, and even numbered elections are in any case deeply undesirable under STV. Even numbered electorates are so undesirable that the ACT actually bans them by an entrenched law.

    I would opt for provincialised senate elections to separate the senate from bandwagon effects at general elections and to enhance the provinciality of the senate delegations. Ditto the inclusion of provincial premiers. Australia and Canada both have large structures of federal/provincial councils, committees, conferences etc etc. In Germany and South Africa those structures are organised as committees of the Bundesrat and the National Council of Provinces. The advantage of including the premiers is a that it nudges the federal/provincial structures towards much greater accountability than those structures now exhibit in either country.

    Incidentally the typical federal/state structure in Australasia includes the relevant NZ minister as well as the Australian federal and state ministers.

    I’ll address the Francophone issue in another comment.

    • I wonder if there is research on Alan’s interesting “cohort empowerment” thesis from Brazil. There, the senate is elected to staggered terms, with three per state. Each state alternately elects two, or one, at any given general election. (I believe all states are on the same cycle, meaning sometimes a president is elected along with two thirds of the senate, and other times along with only a third.)

  14. Alan: I wasn’t really challenging the viability of a referndum deadlock-breaker, only wondering about any related eventualities. Perhaps on the federal level, a double majority should be required to pass?

    How would including the premiers enhance accountability? And why should it be as part of the system, seeing as presumably premiers could stand for election anyway? Also how would it work in practice seeing as premiers would usually be very busy elsewhere (a great deal further away than in Germany or SA).

    I’m still wondering about your take on terms; you imply a term to correspond with provincial elections. Personally I favour a longer term for more long-term thinking, independence and experience than the lower house.

  15. Premiers in Canada, like premiers in Australia, spend a great deal of time negotiating with the federal government. Westminster federations,for some reason, are peculiarly prone to ‘federalisation by treaty’. The Gillard government gave us a spectacular example when she reached agreement with the states, without public notice, debate or involvement, that all environmental planning would be returned to the states. The agreement that establishes the joint federal/state body responsible, the Council of Australian Governments, actually excludes any involvement by parliaments or public in its decisions. COAG communiqués are then typically presented to the federal and state parliaments as a fait accompli that cannot be amended because it would require further negotiations with the other governments.

    Transferring that process into the senate would be a profound improvement in democracy, transparency and openness, both in Canada and Australia.

    I think long terms and independence are a charming myth from the eighteenth century. Where is the evidence that longer terms allow legislators to take a long view?

    • Alan, to answer your last question, the paper I mentioned earlier on Japanese House of Councillors members, for one. It showed members acting with less evidence of electoral pressure in the years they were not up for election but colleagues were. Note I am not suggesting this is a good thing (nor was the author), but not being concerned with immediate electoral interests seems a decent proxy for “evidence that longer terms allow legislators to take a long[er] view”.

      As for the point about “federalism by treaty” rather than through “ordinary” constitutional processes including representation in the second chamber, good point. I think this is generally a feature of federal systems that evolve out of more centralized systems–or legal traditions derived from more centralized systems. That is, not just the Westminster-derived federations, but others, such as Mexico. There, conferences of governors are more important for some key aspects of center-state relations than is the Senate (or at least this was the case in the Fox years). We could also include Spain and Belgium, two federal systems that started out as centralized. Probably others, as well.

      • The thing is, if you want to insulate senators from the fickle, dangerous and overweening passions of the mob, the easiest way to do it would be to set up a supreme ephorate of life appointees who could devote all their energy to legislating the good, the true, and the beautiful. Oh wait…

      • Of course, if you overemphasise one principle over all others and forsake all standards of political legitimacy or any other principle, you end up with things which are hard to defend, as you end up with with your reductio ad absurdum, Alan. I expect one would also reach unwholesome results if one insisted on annual elections; I personally have a strong feeling that a part of the problem (a small part, admittedly) in the US is their 2-year terms for representatives.

        About putting premiers in the Senate: does the South African experience indicate that the negotiations would indeed transfer into the the Senate, rather than remain as they are at present?

      • I tend to agree with you JD on the US bienniate.

        The trouble with South Africa is that I suspect most federal/provincial issues are handled by the ANC national executive, with the significant exception of Western Cape, the only non-ANC province. Helen Zille has been active in the national council of provinces, but the other premiers no so much. As ANC premiers are selected, remarkably enough, by the ANC national executive I’d guess they have other fish to fry. Perhaps if the DA wins Gauteng…

        Just for the record, South African premiers can send a deputy to the upper house when they are busy in their provinces.

  16. Have we talked about the electoral system actually being proposed by Harper for the Senate? Here are a few notes:

    – Senators will serve a single term of nine years.
    – Current Senators will be grandfathered in, serving until 75.
    – Elections will not choose Senators, but only Senator-nominees which the PM could later appoint when a vacancy occurs.
    – It’s not clear if the PM is bound by the election results, but he must at least “consider” the nominees.
    – Provinces can opt out, and the PM will choose Senators for them as before.

    – Senate-nominations are valid for six years, so elections will almost certainly be staggered.
    – The province decides the election timing, but they’re expected to occur at the same time as other provincial elections.
    – The province decides the number of Senator-nominees to be chosen at each election.
    – There’s no guidance on what that number should be. One province could elect one SN every other year. Another province could have massive 16-SN elections every six years. A third province could elect a different number at each election.
    – It’s not clear what happens if there aren’t enough Senator-nominees to fill vacancies.
    – There doesn’t seem to be a priority order of Senator-nominees. Does the PM first appoint the earliest to be elected, or the one with the most votes, or any one he prefers?

    – Senator candidates are to be affiliated with provincial parties, not federal ones. Independent candidacies are allowed too.
    – Elections must use MNTV, aka block vote.

    – The powers of the Senate remain unchanged, theoretically nearly equal to the House of Commons.
    – There’s no guidance on whether or not the Senate is expected to become “effective” now that it’s elected. It could remain toothless by choice, or it could start routinely disagreeing with the lower house.
    – There remains no way to dissolve the Senate.
    – It’s unclear what happens if the Senate refuses to pass confidence motions. Does the government dissolve?

    I suppose it would be possible to come up with a stranger system, but I’m having trouble imagining it.

    • Thanks for that list of provisions, Vasi. Wow, the Harper government really has managed to come up with something worse than the status quo, which seems like it ought to be hard to do.

    • The plans seems to be based to a large extent on the ‘senator-in-waiting’ elections as held in Alberta, which also use MNTV.

  17. It seems rather like the Harper government’s approach to the royal succession, which was almost certainly null and void. It does avoid facing Canada’s extraordinary constitutional amendment formula; on the other hand it creates a situation where popular election only counts if the choice of the electorate is ratified by the prime minister. And MNTV? I mean, seriously.

  18. I’d support having Senate delegations both (a) weighted partly (not totally) by population, and (b) being elected in conjunction with the Lower House of their home State/ Province. The latter would – like the Bundesrat system – provide rotation in turnover without having to give Senators a term that’s either the same as the federal Lower House, or an exact multiple of it.

    Having said that, combining these two desirable features could have the undesirable result that a Premier’s choice of election date might come to be seen as influenced by an impending reapportionment of federal Senate seats. “Premier MG[u]inty has rushed the Legislative Assembly election forward so that Victorialberta will keep its current 7 Senators for another four years. Had he let the Assembly run its full term for another three months, Victorialberta would have [dropped to 6 Senators and thus lost representation/ risen to 8 Senators and thus denied the Premier’s party a likely 4-3 majority of the delegation].”

    It also seems a bit unfair on Senators if they are working hard in the capital, minding their own business and acting non-disruptively, but have to go back to the polls six months later because the Premier can’t command a stable majority in the Legislative Assembly and has called another Provincial/ State election to resolve the deadlock.

    So maybe tweak this to something like: “A Senate election in a State/ Province is held (a) at, and in conjunction with, the first election for the more numerous house of the Legislature of that State/ Province that is held on or after the third anniversary of the previous Senate election, or (b) on the fifth anniversary of the previous Senate election – whichever happens first.”

    A

  19. The sliding term would be a good idea. I can’t see any reason that if the SCG’s delegation shrinks the most junior senator retires gracefully or if it expands an extra senator is elected. Penrose redistributions should be somewhat less frequent than standard rep-by-pop redistributions.

    Ideally senate committees would work along the same lines as Bundesrat committees.

  20. Hmm… not a bad idea. You could stipulate that if a State/ Province is currently entitled to (say) seven seats, you choose eight candidates by a PR-STV count, recount the ballots among those eight only to decide which seven of them get to sit right away, and then further choose by STV which six of those seven stay in office if the State/ Province drops a seat. If List-PR is used, the D’Hondt or Laguë divisors would determine the order. Anything but “first past the quota” for an issue so central to the Senate balance of power.
    Alan is right that the square (or a fortiori the cube) root will fluctuate less than the actual population. The latter would need to nearly double, to sixteen-ninths, to move from three seats to four. You could also stipulate that no State/ Province could change by more than one seat more or less at any one (triennial?) re-allocation.

  21. Francophone electoral college. Statistics Canada gives an interesting picture of la francophonie. Over a million Francophones live outside Québec. The most Francophone province after Québec is Ontario with 340, 295.

    I’d suggest the senate itself as the electoral college, with each provincial delegation exercising a Penrose-by-number-of-Francophones vote when electing Francophone senators. The indigenous senators and Francpphone senators would probably have to be tied to federal elections.

  22. One of my biggest concerns about Senate reform is what happens when the two houses of Parliament disagree. Different countries deal with these situations in many different ways:

    – In Ireland, the Seanad has much weaker formal powers than the Dail. If there’s a conflict, the Dail wins. I believe the UK’s House of Lords is similar.
    – In the US, government is non-parliamentary, the government can’t fall mid-term, and elections are fixed. The House and Senate are forced to come to some sort of accommodation.
    – In Australia, there’s a constitutionally specified process (double dissolution) for handling such conflicts.
    – In Italy, the government is responsible to the Senate. But if the government falls, the Senate as well as the Chamber of Deputies is dissolved.

    Canada is in a peculiar position here. The Canadian Senate has quite strong formal powers, almost equivalent to the House of Commons. It can reject bills, including confidence bills and the budget. Most bills can be introduced there, except for money bills. Senators can be cabinet ministers, or even the Prime Minister. Yet despite these strong powers, the Senate can’t be dissolved in any way short of a constitutional amendment, while the House is dissolved if a confidence bill is rejected. It sounds like the Senate is very capable of challenging the House, and winning! Despite this, conflict between the houses has stayed rare, for two reasons.

    First is perceived legitimacy: The unelected Senate isn’t considered by most Canadians at all representative of the citizenry. It’s therefore reluctant to be seen as interfering too much with the elected Commons, lest Canadians feel alienated and push to abolish the Senate.

    The second reason has to do with the influence of the government on each house of Parliament. A government based on support by the Commons can slowly but surely increase its support in the Senate, by appointment of new Senators. But ruling governments don’t have a very large advantage in House elections, in the long run. So a government based on support by the Senate would be in a much more tenuous position.

    With an elected Senate, both these reasons could disappear. Senators would presumably campaign on various issues, and proceed to vote on those issues as promised, even if it means rejecting Commons bills. And a government based in the Commons would no longer be able to appoint Senators, so couldn’t slowly move the Senate towards supporting it.

    It’s certainly possible that things wouldn’t greatly change. Maybe inertia or convention would make Senators roll over and let MPs win. Maybe some provinces will reject Senate elections, and the PM’s appointments for those provinces will make the Senate stay subservient. Maybe Senators will be too reluctant to cause a constitutional crisis by challenging the Commons. Maybe Senators from different provinces will be unable to cooperate long enough to reject House bills.

    But we could also end up with really weird results. An intransigent Senate could continually reject confidence bills, provoking election after election until it gets a House of Commons it likes. Senators could end up deferring to the leadership of their province, making every bill akin to a federal-provincial conference. A resurgent Bloc Quebecois/Parti Quebecois could refuse to pass any bills at all unless specific demands are met.

    Worst of all, unlike many changes to law and government, Senate reform could be very hard to reverse if Canadians decide they don’t like how it turns out. Once Senators feel they have legitimate power, who is going to run for Senate on a platform of not doing anything? Who in the Senate would support a bill taking away their own powers? I’m not thrilled with the idea of potentially irreversible reforms to a system that has, despite its problems, been relatively successful so far.

    So, there must be other countries with situations like this. An upper house that:
    1. Is elected independently from the lower house.
    2. Has powers roughly equivalent to the lower house.
    3. Cannot be dissolved, while the lower house can.
    4. Has no good procedure for resolution of conflicts between it and the lower house.

    It sounds like the Bundesrat meets these criteria. The Tasmanian Legislative Council seems to be like this as well, and maybe some of the others in Australia. The Iranian Assembly may in fact match our criteria, but doesn’t much help us figure out how to manage that situation. Have I missed some?

    And how do these jurisdictions prevent the upper house from going rampant? Why hasn’t the Bundesrat usurped the Bundestag?

  23. There are no examples of a popularly elected president in a parliamentary system overthrowing the constitution. That did not prevent endless claims of the fundamental threat to democracy from an event that has never happened in, for example, the republic debate in Australia.

    No upper house has ever taken over the government in a parliamentary democracy in the way constantly argued by opponents of elected upper houses in Britain and Canada. It is remarkable how much energy goes into defending parliamentary democracy from a threat that does not exist.

    It is equally remarkable that the stern guardians of parliamentary democracy, while tirelessly watching the horizon to guard against the inevitable threat from invading senators, never seem to notice how much power the executive acquires.

    • I have no problem at all with an elected upper house, as long as there is some reasonable procedure for dealing with conflicts. Double dissolution would do just fine, among other options. I don’t even mind even if an elected Senate becomes more powerful than the Commons, so long as it’s not completely broken in other ways, and (again) that there’s some procedure for handling disagreements.

      All I want is for the relationship between the Commons and Senate to be decided consciously. If we want two equal houses that can both bring down the government, let’s say so. If we want a subservient “sober house of second thought” that just happens to be elected, let’s say that instead. And so on, for all the many different reasonable choices.

      Is it really necessary to go with Harper’s approach of throwing apparently random rules at a wall, and seeing what sticks? There are plenty of models around the world of upper houses, and we ought to be capable of making a considered choice among them.

      (If I had to conjecture about what’s going on, the provisions of Bill C-7 were chosen by the government simply to retroactively legitimate the previous elections held in Alberta, rather than because they’re truly thought to be the best choices.)

      • I agree completely and I think I’ve repeatedly mumbled here that a constitution should be explicit and not rely, for instance, on the vagaries of the Westminster conventions.

        I think excluding the upper house from the power of the purse is fundamental. It’s probably a non-trivial fact that places as divers as Britain, India, Ireland, South Africa, New South Wales and several other Australian states all do this.

        I’d also think it’s a good idea to specify that only the House of Commons can pass a vote of no confidence.

        I think it’s important that the senate, acting alone, have power to disallow secondary legislation. The house cannot perform that function because any disallowance vote becomes a question of confidence that the government cannot afford to lose.

        Resolving deadlocks is going to be complex and I’ll comment on that separately.

    • “There are no examples of a popularly elected president in a parliamentary system overthrowing the constitution.”

      Hindenburg, 1932-4. Its the reason why Germany doesn’t have a popularly elected president.

      • Hindenburg did not overthrow the constitution. He used the bizarrely wide powers granted by the Weimar constitution to rule by decree. In fact the Weimar version of president-parlaimtarism involved such wide presidential powers it’s arguable whether the system could seriously be described as parliamentary.

  24. I would point out that indeed there are no examples of a “popularly elected president in a parliamentary system overthrowing the constitution” because a parliamentary system either does not have a popularly elected presidency, or if it does, the latter institution is too constitutionally and politically constrained to be a threat to parliamentary sovereignty (e.g. Ireland, and it is actually the only such example I know of, depending on how one understands the Austrian presidency).

    Otherwise, we are talking about variants of semi-presidentialism, and what Ed said about Weimar vs. the Bonn constitution (or “Basic Law”) applies.

  25. Sorry, MSS, that’s a bit of a “no true Scotsman” argument, isn’t it? If the popularly-elected president doesn’t manage to overthrow the constitution[‘s checks and balances] or centralise all power in him/herself, then we can say ex post facto that s/he was “too constrained”. If s/he does succeed, then s/he wasn’t constrained enough.But if a polity is debating ex ante whether to have an elected president, one doesn’t know in advance which way the frog will jump.

    Interestingly, the powers of the President in the Federal Republic of Germany are also quite wide – not quite as wide as the Reichsprasident’s were in the Weimar Republic, but s/he can declare a “state of legislative emergency” and permit the Chancellor to legislate with the assent of the Bundesrat alone if the lower house is proving obstructionist, which goes beyond even what de Gaulle devised in 1958.

    Do we have a checklist of which powers [or combination of powers] it is or is not safe to grant to a president, and does this list vary in size or content according to whether the presidency is elected?

    (For example, authorising the President/ Governor to set legislative electoral boundaries by executive order could be justified if the President/ Governor is directly, or at least separately, elected – it could be viewed as a method of retaining ultimately majority rule, of “breaking through” the legislative stranglehold of an unrepresentative opposition party, in a way less biased than relying on the legislature but more democratic than relying on an independent districting commission. But it would make no sense in India/ Canada/ Australia where the President/ Governor-General/ Governor/ Lieutenant Governor would be either (a) acting on the advice of a Cabinet drawn from a majority in the same legislature that was elected on those boundaries, which would be biased – or else (b) acting on his/her own personal judgment, which would be undemocratic).

    • Strangely enough both Alaska and Hawaii have had, from statehood, redistricting commissions which make recommendations to the governor. The governor then implements the redistricting by an executive order that is reviewable in the state supreme court.

  26. Sounds like a good balance. As noted, it prevents the minority party in the electorate from entrenching itself with a majority of seats in the legislature, whether by malapportionment (USA pre-1960s), gerrymandering in the strict sense (USA post-1960s), or a combination of both (Queensland 1948-91). If the majority party wins the governorship, it can set the legislative boundaries. Some risk of bias towards the majority party but a lesser evil than bias towards the minority party.

  27. I actually consider the cases we were discussing to be semi-presidential, not parliamentary. I might grant an exception for Ireland, where the president apparently can’t even speak in public without the approval of the government. In Austria, the formal powers are quite extensive–I consider the system president-parliamentary–but campaign laws make it almost impossible for someone to be elected without the approval of the parties in parliament. Iceland’s president actually can refer bills to a referendum, so that is clearly a significant political actor–at least potentially. I do not recall the situation in Finland under the most recent changes, but my understanding is that it is closer to the Irish situation but perhaps not quite that extreme in being constitutionally or statutorily constrained.

    My point was that presidents without some combination of veto, decree, dissolution, or government-formation powers are quite unlikely to have the means to subvert the workings of parliamentary democracy. But with rare exceptions, popularly elected presidencies have some of these powers, and are in fact designed to “subvert” the parliamentary process. Ergo, we are then outside the realm of parliamentary democracy, by design.

    There is quite a substantial literature on presidential powers, some of it by me with various coauthors, but I am not aware of a “checklist” of what is safe or not. But, again, any presidency with actual powers means we are outside the category of parliamentary democracy.

    This is quite a long (and good!) thread as it is, and perhaps it might be best to steer it back towards the Canadian senate and comparative examples. There is a whole block on “Presidential and parliamentary government” where some of these other questions have been discussed before. In fact, there was one promising thread on the topic that elicited only a few comments at the time.

    • If we distinguish semipresidential systems from parliamentary systems, then Hindenburg cannot be an example of a popularly elected president overthrowing the constitution in a parliamentary system and we return to the hunt for the elusive president on horseback. I’d point to Finland, Iceland and Ireland as examples of parliamentary systems where the president is popularly elected.

      We cannot necessarily look only at the formal powers of the president. By that criterion Australia is not a parliamentary democracy, but a viceroyate where the functions vested by the constitution in the governor-general allow that worthy to rule alone. We need to look at whether powers formally vested in the president are exercised independently or on advice. I’d tend to class Austria as parliamentary rather than semipresidential on that basis.

  28. There are many ways to reform the Senate. They all require a constitutional amendment. A reformed and elected Senate with real power would require re-allocation of Senate seats (BC has only six Senators, New Brunswick 10), and provisions to prevent deadlock between the two houses. Proportional representation for the House of Commons, however, can be enacted without a constitutional amendment. Furthermore, the government is responsible to the House of Commons. Whatever you think should be done with the Senate (and good democrats have a variety of opinions, including abolition), the urgent first step to end our democratic deficit is to make every vote count equally for the House of Commons, where it matters.

  29. I doubt the Canadian house of commons is or can be a first step. For whatever reason, governments are much more willing toe experiment with the second chamber than the first. Consider, for example, the pace of reforms to the house of lords and the house of commons in Britain over the lasted evade or so. Cosnider the wide variety of arrangements for second chambers can be compared wight eh relative uniformity of first chambers.

    Consider also that the advocate of electoral reform in Canada is asking Canadians to vote for something of which they have no experience. The answer Canadians give could be quite different after some experience with an elected PR senate.

    Always attacking the reform castle at its strongest point may be noble, but I’m not sure it’s effective.

    • The Senate of course has an Achilles heel in the fact that it can’t block constitutional amendments; I fear that this will ultimately mean that it will be abolished.

  30. It is very likely an electoral reform bill would be put to referendum, and as shown in Britain, BC and Ontario, it is remarkably easy for opponents to win electoral reform referendums when it is for the house that decides government.

    • Alan makes fair points, but recall that in BC the first STV referendum obtained a 57% yes vote. It failed due to BC requiring 60%. And don’t forget New Zealand, where FPTP has now lost three majority referenda since 1992.

      • However, Alan is correct that a government that wants to defeat an electoral reform referendum can easily leave the proponents handicapped, as in Ontario in 2007. Of course, the other problem in Ontario in 2007 was that the NDP already favoured MMP with regional lists (no other model was saleable in Northern Ontario, the strongest NDP region but the weakest region in the MMP referendum), and the Law Commission of Canada had with good reason recommended an open list MMP variant (flexible list as in Sweden). As Prof. Henry Milner wrote just after the referendum “opponents hammered away on the claim that there would be 39 MPPs beholden to party headquarters instead of voters. . . in a short campaign, this image of unrepresentative party hacks from Toronto getting in through the back door was fatal.”

      • The first BC referendum rather proves my point than weakening it. A referendum passed by 57.69% across the electorate as a whole, and by majorities in 77 out of 97 electoral districts would count as a resounding victory in most of the democratic world.In the unlikely even of the federal parliament calling an electoral reform referendum, I wonder what threshold they’d define to achieve electoral reform.

  31. it seems to me that judgment is an extremely good argument for the proposition that if different provisions of a constitution can be amended in different ways there needs to be a very clear identification of which provisions fall under which amending procedures. Ideally it should be something like ‘Sections X, Y and Z can only be amended by the Very Difficult Procedure contemplated by Section A, Sections U, V and W can only be amended by the Slightly Less Difficult Procedure contemplated by Section B, and so on’.

  32. Yes, but the problem is, the more difficult amending formula do not focus on sections, but on ‘matters’ because some of those ‘matters’ are not already mentioned in the text of the ‘formal’ constitution.

  33. The Supreme Court of Canada has answered the reference questions (), in line with the Québec Appeal Court opinion I mentioned earlier.

    Only one minor item of reform can be done ‘unilaterally’ (by a federal satute), consultative elections and fixed terms can only be done by the ‘7 provinces with 50% of population’ procedure.

    So, if the PM does not like to reform the senate any longer, it must be because he doesn’t like to bargain with the provinces over the constitution.

    • Senate Reform was always a distraction; to balance the over-powerful executive Canada needs, not a powerful (but unrepresentative) Senate, but a House of Commons empowered by being elected with an element of proportional representation, as 70% of Canadians support, needing no constitutional amendment. Abolishing the Senate will have to wait until they wake up and do something outrageous that galvanizes all ten provinces.

    • The Scottish parliament has a convenient dictionary (read crib sheet) for Scots Gaelic political terms. Oddly enough the word used for the Northern Ireland, London, and Welsh assemblies is ‘seanad’.

  34. “In Australia, New South Wales has 40 times the population of the Northern Territory…” Aaron Hynes, at URL linked to.
    What the ## is it with Canadians trying to understand Australian politics? Last week it was Maclean’s implying, wink wink nudge nudge, that using single-member preferential for the Canadian House would lead to group ticket voting as with the Australian Senate. Now we see Mr Hynes, above, failing to note that NSW and the NT do not have equal numbers of Senators. NSW has 12. The NT has 2. One reason is has fewer Senators than a State is that the territory’s population is smaller than any State’s. This tends to confirm, rather than to refute, the Canadian logic.

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