Reform of the Senate of Canada: A Progressive Conservative Perspective (Partial Study)

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REFORM OF THE SENATE OF CANADA REFORM OF THE SENATE OF CANADA REFORM OF THE SENATE OF CANADA REFORM OF THE SENATE OF CANADA:

A PROGRESSIVE CONSERVATIVE PERSPECTIVE

A Partial Study

Prepared for the Benefit of

the Progressive Conservative Parties

of Atlantic Canada

S.M. MacLean

Disraeli-Macdonald Institute

4 June 2011



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TABLE OF CONTENTS

Preface...................................................................................................................................... ii

1. Introduction.............................................................................................................................. 1

2. Progressive Conservatism and the Red Chamber................................................................2

Defining Progressive Conservatism — Tradition — Constitutionalism — Macdonald on theSenate — Organicism — Particularism versus Universalism — Principle versus Ideology — ‘First, Do No Harm’ — Scepticism — Limited Government — ‘Politics Is Not the HighestEnd’

3. Reasons to Favour the Appointed Red Chamber...............................................................12

Legitimate and Accountable — Election Is Duplication — Experience and Expertise — TermLimits — Sober Second Thought — Public Choice Theory — The Common Good versus Special Interests — Abolition— An Hybrid Chamber?

4. What Role for the Provinces?...............................................................................................20

Distinct Jurisdictions — The Confederation Intent — The American Senate Model — Provincial Prerogatives

5. Some Modest Proposals for Senate Reform........................................................................23

Increase the Age of Eligibility — Appoint More Independent Senators — Legislate for Plurality — More Open Consultations

6. Conclusion.............................................................................................................................. 25

Works Cited............................................................................................................................ 27

For Additional Study.............................................................................................................29

About Disraeli-Macdonald Institute....................................................................Back Cover



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PREFACE

With the election of a majority Conservative government in Ottawa in May 2011, I knew that thequestion of Senate reform — particularly, if the past is any guide, of elected senators and termlimits — would once more be on the political agenda, this time with more force than times previous in minority parliaments.

Curious as to the position of its provincial counterparts in the East, I came up short when lookingfor official statements on Senate reform from the four Progressive Conservative parties inAtlantic Canada.1 In a moment, it seemed like a good idea — and more especially as aninteresting research project — to put together some thoughts on the Senate from a decidedconservative position and send it to the PC parties, in the offhand chance that they might findsuch a document useful as a guide in their deliberations and also as a means of generating some beneficial feedback for my own studies in Anglo-Canadian Toryism. Another consideration wasthe conventional wisdom that Eastern conservatism, such as in Ontario and Québec, but more prominently in the Atlantic provinces, adheres more faithfully to traditional Toryism than doesits Western cousin.

I had another motive, too: Fearing that, in the absence of any official position on Senate reform,the Progressive Conservatives would simply mimic the policy goals of the federal Conservative party, such a document could serve as a line in the sand.2 In any event, it would serve as my owndeclaration on the matter in future disputation. In the sombre words of Richard Hooker,‘Posterity may know that we have no loosely through silence permitted things to pass away as ina dream.’

This document has been entitled a ‘partial study’ since I felt it important to stake out a positionearly, before the Conservative government in Ottawa tabled another round of Senate reform proposals. The provinces would necessarily be compelled to comment and weigh-in — as theyhave done3 — and if I wanted my traditional Tory perspective to have a fair hearing, it would bedifficult to change the tide if PC leaders took an opposing position early on.

Readers will find here a core defence of an appointed Red Chamber; a fuller examination in planned for the autumn — if its reception is favourable — with more integration of historicalcontext and in-depth reviews of Senate reform proposals to date. Another hope is thatconstructive feedback will be conducive for matured reflexion and provide an opportunity toanswer questions arising from and to address shortcomings in my initial analysis.

S.M. MacLean Anniversary of the birth of King George III (1738)

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In the interim, the NS Progressive Conservative caucus issued an uninspiring press release, ‘Baillie says NovaScotia should hold Senate elections (31 May 2011)’ <http://www.pccaucus.ns.ca/?q=node/3543>. [Retrieved 2011-vi-04]2 Common sense, one hopes, has returned to at least some party stalwarts; see Althia Raj, ‘Conservative senators balking at Senate reform agenda: sources’, Decision Canada, 1 June 2011 <http://www.canada.com/news/decision-canada/Conservative+senators+balking+Senate+reform+agenda+sources/4876722/story.html>. [Retrieved 2011-vi-02]3 Both the Liberal premier of Ontario and the NDP premier of Nova Scotia have called for abolition of the RedChamber; Québec, ever jealous of its constitutional prerogatives, is calling for a Supreme Court review of Ottawa’s‘unilateral’ actions.



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1.0 Introduction

Since its election to minority national government in January 2006, the Conservative Party of Canada has put forward a number of reform proposals for the Canadian Senate. The ultimateaim is to transform the Senate from an appointed Upper Chamber to an elected body. Termlimits is an ancillary reform measure.

To promote these steps at Senate reform, the Conservative party has called for support from the provinces. One suggestion is for the respective provinces to establish mechanisms by whichelections may be held, with the names of successful candidates put forward as prospectivesenators as vacancies in the respective provinces become available.4

Across Canada, few of the provinces have taken up seriously Ottawa’s offer — Alberta andSaskatchewan being notable exceptions —examining the proposition with varying degrees of interest. Recently, though, opposition parties in Atlantic Canada — the ProgressiveConservatives in Nova Scotia and the Liberals in Newfoundland and Labrador — have joined thecry for the provinces to enhance their authority in Ottawa via elected senators.

But too few have challenged the Government’s Senate proposals; fewer still have questionedwhether or not the provinces have legitimate constitutional and political rights to involvethemselves in national institutions.5 Worse still, from my perspective, is that the Senate reformcharge is led by self-professed conservatives, who seem to have either no knowledge or noregard for the tradition Tory attitude to the Red Chamber.6

The claims in favour of appointed Upper Chambers and the criticisms of the elective modelgrafted onto the Westminster Parliamentary system are well-rehearsed (if not correspondinglywidely known).7 I am especially indebted to those Britons associated with the Parliamentary

Campaign for an Effective Second Chamber, which does yeoman service in defence of theHouse of Lords.8

I rely heavily on quotations from Benjamin Disraeli and Sir John A. Macdonald (as well asEdmund Burke) to illustrate the benefits of appointed Upper Chambers as well as the Tory provenance of such a defence.9 One aim has been to emphasis what conservatives in the past

4 According to the various legislative proposals put forward, the Governor-in-Council retains ultimate authority toaccept or reject names submitted for approval; one would surmise that this oversight is merely a formality.5 See my modest contribution to the debate, ‘Anticipating the Consequences of Bill C-20’, in The Democratic

Dilemma: Reforming the Canadian Senate, Jennifer Smith, ed. (Montreal: McGill-Queen’s University Press, 2009),113-16.6 I do not recount the functions of the Senate in this study, but introductory texts can be found on the Parliament of

Canada website (many senators also include guides on their personal web pages). I recommend The Senate Today website <http://www.parl.gc.ca/About/Senate/Today/home-e.html>. Also available on-line is the small classic byEugene A. Forsey, How Canadians Govern Themselves, 7th ed. (Ottawa: Information Office, Library of Parliament,2007).7 For a collection of related information, see my Advocacy for Appointed Upper Chambers website:<http://tinyurl.com/UpperChamberAdvocacy>.8 See the Campaign for an Effective Second Chamber website:<http://www.effectivesecondchamber.com/index.php>.9 For more on the Disraeli-Macdonald connexion, see Joseph Tassé, Lord Beaconsfield and Sir John A. Macdonald:

A Political and Personal Parallel , James Penny, trans. (Montreal, 1891).



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have said in favour of the appointed model, so that readers can contrast their position with thearguments of contemporary soi-disant conservatives.

The flavour of Macdonald’s attitude toward the future Senate of Canada — modelled upon theBritish House of Lord — and the role of the provinces in Canadian affairs is evident from theopening proceedings at the Quebec Conference:

Macdonald stressed the necessity of taking the British constitution as their model, so far as circumstances might permit, in forming their proposed federal union. He was equallyinsistent that they must carefully avoid the great ‘error’ made by the American foundingfathers when they reserved to the individual states all powers not specifically assigned tothe central government, thus leaving sovereignty on the periphery instead of at the centre.While the provinces could not aspire to ultimate sovereignty, which must remain inBritain with the Queen, Lords, and Commons, such power as the provinces might attainmust be placed securely in the central government of the new federation. Copying theBritish model, Macdonald felt, would also aid in binding the provinces to the mother country. So frequently throughout the conference did Macdonald hark back to this

theme, that one is left wondering whether the phrase ‘the well-understood principles of the British constitution’ was for him ore of a pass-word or shibboleth than a positivearchetype.10

Without falling into caricature, I hew closely to Macdonald’s example.

The study begins with a short overview of conservative political principles, what it means to be a‘progressive conservative’, and how conservatism should colour one’s approach to Senatereform. As this section inclines to positive ways at looking at the appointive model, thesucceeding section focusses instead on some negative consequences of the elective option. Therole of provinces is up next, where I assume what may be considered a very idiosyncratic — Macdonaldesque? — position with respect to the relevance of their Senate input. One feelscompelled, when writing about Senate reform proposals, to offer something to the pot, so Icontribute a few basic, non-controversial ideas on improving what I think is an alreadyserviceable parliamentary institution — as the Brits say, our Red Chamber is still ‘fit for purpose’. A conclusion follows, with some parting thoughts.

2.0 Progressive Conservatism and the Red Chamber

2.1 Defining Progressive Conservatism – Before embarking upon a close examination of theconsequences of various Senate reform proposals, it is necessary to revisit quickly what itmeans to be a conservative with respect to reforming parliamentary institutions and, in

particular, what constitutes a progressive conservative. Too often, unfortunately, themodifier has come to dominate that which it describes, robbing the subject of allmeaning.11

10 W.M. Whitelaw, The Quebec Conference, Historical Booklet o. 20 (Ottawa: Canadian Historical Association,1966), 16. See §2.3.1 below.11 Anyone professing to be a progressive conservative would do well to look at the ‘progressive’ phenomenon fromthe American perspective. I recommend two quick overviews: William L. Anderson, ‘The Legacy of



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Perhaps the best place to start is with Sir Robert Peel who, along with the 2nd Earl of Liverpool, is credited with modernising Britain’s ‘reactionary’ Tory party. Following theReform Act of 1832 which broadened the franchise, Peel saw the need likewise to broaden the party’s appeal from the landed interests which had been its core support;without more general, widespread identification of the party with their concerns, the

British electorate would keep the Whigs in continual office.

Peel signalled this shift in party principles in his famous Tamworth Manifesto, which setout the party’s post-Reform Act positions. He wrote, in part, that

if the spirit of the Reform Bill implies merely a careful review of institutions, civiland ecclesiastical, undertaken in a friendly temper combining, with the firmmaintenance of established rights, the correction of proved abuses and the redress

of real grievances, — in that case, I can for myself and colleagues undertake toact in such a spirit and with such intentions.12

The Tory party of reaction had become the Conservative party of reform. Disraeli had

said much the same in High Wycombe two years earlier: ‘I am a Conservative to preserve all that is good in our constitution, a Radical to remove all that is bad.’13 Sir John A. Macdonald traversed much the same path in Upper Canada, uniting the province’s ultra Tories with the moderate Reformers, becoming known as the Liberal-Conservatives (he was joined, in Lower Canada, by George Etienne Cartier’s Bleus).14 Conservative parties throughout the colonies followed suit.15

So, instead of progressive conservatism being an oxymoron, an equally strong case can be made that it is rather a tautology, that reform and progress are by definitioncomponents of the conservative philosophy. (For this reason, much of what follows willrevert to the ‘conservative’ short-hand, with Tory/Toryism used synonymously for traditional Anglo-Canadian conservatism.) But what kind of progress are we talkingabout?

Progressivism’, Mises Daily, 10 January 2000 <http://mises.org/daily/364/The-Legacy-of-Progressivism> andMatthew Spalding, ‘Do We Still Hold These Truths?’, First Principles, ISI Web Journal, 4 July 2010<http://www.firstprinciplesjournal.com/articles.aspx?article=1417>. While the Anglo-Canadian context differssignificantly from the American attitude toward the State, Tories should nevertheless think deeply about the extentof government intervention and on the issues of relativism and historicism these authors raise.12 Sir Robert Peel, The Tamworth Manifesto, 18 December 1834,<http://en.wikisource.org/wiki/The_Tamworth_Manifesto>. Emphasis added. [Retrieved 2011-v-31]13 Benjamin Disraeli, Selected Speeches of the Late Right Honourable the Earl of Beaconsfield , T.E. Kebbel, ed.,

Vol. I. (London: Longmans, Green, and Co., 1882), 8.14 I have not been able to ascertain whether Macdonald’s Liberal-Conservative party is, according to nomenclature,strictly synonymous with the later Progressive Conservative party. The term may simply signify the union of twodistinct entities, such as the Cunard-White Star Line or the Waldorf-Astoria Hotel. The duo political name wasretired in 1873, reverting to the Conservative party.15 See F.H. Underhill, Canadian Political Parties, Historical Booklet o. 8 (Ottawa: Canadian HistoricalAssociation, 1956), esp. 11ff. For more on the situation in the United Province of Canada, see Whitelaw, The

Quebec Conference, 7: Of the two rival parties, ‘the members of one of these regularly called themselvesConservatives, more rarely Tories. Occasionally they were called Bleu in Lower Canada.’ The moderatinginfluence from reaction to reform was already at play in Canada.



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The answer lies with Peel and Disraeli: ‘the correction of proved abuses and the redressof real grievances’, ‘to remove all that is bad’. Unfortunately, in their zeal to earn popular favour and win votes, oftentimes conservatives will undertake initiatives that donot address abuses but instead impose innovations without just cause. (This has specific problems in regards to political economy, where the sphere for beneficial government

involvement is rather more limited than most politicians are willing to admit.)Conservative reform should always aim to be an outgrowth of existing institutions and practices:

In a progressive country change is constant; and the great question is, not whether you should resist change which is inevitable, but whether that change should becarried out in deference to the manners, the customs, the laws, and the traditionsof a people, or whether it should be carried out in deference to abstract principles,and arbitrary and general doctrines.16

Geoffrey Butler, writing of Edmund Burke in The Tory Tradition, makes a stringentobservation:

Cynical as it may sound, the distinction between the Radical and Tory is best seen in the manner in which these two parties approach an abuse.Confronted with a rotten institution, the Radical is apt to say that the principlewhich lies behind it must be faulty. To the Tory it would readily occur thatalthough this particular embodiment of the principle was surely wrong, the valueof the principle might not be affected. For the one, all interest is centred inimmediate reform; in the other, there is sympathy for established institutions anda desire to interpret their true meaning before their reformation is attempted. Thevery principle which the radical rejected may, if properly interpreted, furnish inthe end the instrument by which the evil features can be removed from the

principle’s concrete embodiment. This distinction of attitude is as old as Burke,for it is to him that the Tory may trace this conserving, yet reforming, predilection. ‘A spirit of reformation,’ he said, ‘is never more consistent withitself, than when it refuses to be rendered the means of destruction.’17

2.2 Tradition – Conservatism is best identified as respect for — if not necessarily uncriticalreverence — for tradition, custom, and past practice:

This respect for Precedent, this clinging to Prescription, this reverence for Antiquity, which are so often ridiculed by conceited and superficial minds, andmove the especial contempt of the gentlemen who admire abstract principles,appear to me to have their origin in a profound knowledge of human nature, and

in a fine observation of public affairs, and satisfactorily to account for the permanent character of our liberties.18

16 Disraeli, Selected Speeches, Vol. II, 487.17 Geoffrey G. Butler, The Tory Tradition: Bolingbroke — Burke — Disraeli — Salisbury (London: John Murray,1914), 46-47.18 Benjamin Disraeli, ‘Vindication of the English Constitution’, in Whigs and Whiggism: Political Writings, WilliamHutcheon, ed. (New York: Macmillan, 1914), 124.



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It should be noted in passing that a respect for tradition does not entail a slavish devotionto it; above all, the conservative should be concerned with justice and with doing right.This is why reform is such an important component of the conservative disposition. Withrespect with Macdonald, therefore, while he was a firm proponent of unitary governmentduring the Confederation debates and ‘that the provinces should be reduced practically to

municipal status’

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, it is doubtful that any conservative would adhere to this position to-day.20 The virtues of subsidiarity — of the exercise of power on a local level to deal withlocal issues — are well-known and accepted. So a defence of Macdonald’s conceptionon Canada’s Red Chamber should not be seen as a mere recitation of the ‘master’, but asa case built upon firm principle.

2.3 Constitutionalism – Anglo-Canadian conservatives have prided themselves on their adherence to constitutional principles. In Canada, Sir John A. Macdonald is credited with being the principle author and draftsman of the British orth America Act, 1867 , while inGreat Britain Benjamin Disraeli led cheering supporters with the assertion that‘Gentlemen, the programme of the Conservative party is to maintain the Constitution of the country.’21

The constitution is viewed as more than the highest law in the land; conservatives feel asSocrates, who dreamt that the laws of Athens, personified, came to him in a dream, andexhorted him: ‘In view of your birth, upbringing, and education, can you deny, first, thatyou belong to us as our offspring and slave, as your forebearers also did?’22 Constitutions, much like our families and the communities into which we are born, mouldus to be the people we grow up to be; in the realm of politics, it nutures a set of beliefsand attitudes about what constitutes legitimate government and its lawful acts and whatexceeds its rightful authority. Any reform of constitutional precedent, therefore, isundertaken with great caution and with respect to first principles. Conservatives wouldaver that

When a society is perishing, the wholesome advice to give to those who wouldrestore it is to call it to the principles from which it sprang; for the purpose and perfection of an association is to aim at and to attain that for which it is formed,and its efforts should be put in motion and inspired by the end and object whichoriginally gave it being. Hence, to fall away from its primal constitution impliesdisease; to go back to it, recovery.23

19 Whitelaw, The Quebec Conference, 14.20

Macdonald was not alone in his antipathy toward the provinces; see J. Murray Beck, Joseph Howe: Anti-Confederate, Historical Booklet o. 17 (Ottawa: Canadian Historical Association, 1968), 16. SummarisingHowe’s opinion of the Quebec proceedings, and with reference to the unitary system in Great Britain, Beck writes,‘If the Dominion Parliament was to be completely paramount, as it was apparently intended, why have provinciallegislatures at all? Would they not be useless, mischievous, perhaps even dangerous?’ Useless no, but I contendincreasingly mischievous with respect to Senate reform. See also footnote 33 below.21 Disraeli, Selected Speeches, Vol. II, 491.22 Plato, Crito, in Defence of Socrates, Euthyphro, Crito, David Gallop, trans. (Oxford: Oxford University Press,1997), 50e.23 Leo XIII, Rerum ovarum, 15 May (Vatican: Libreria Editrice Vaticana, 1891), §27.



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2.3.1 Macdonald on the Senate – Within this context of constitutionalism, it seems appropriateto give Macdonald’s evolving stance on the Senate of Canada:

(a) Macdonald at the Quebec Conference:

With respect to the mode of appointment to the Upper House, some of us are in

favour of the elective principle, more are in favour of appointment by the Crown.I will keep my own mind open on that point, as if it were a new question to mealtogether. At present I am in favour of appointment by the Crown. While I donot admit that the elective principle has been a failure in Canada, I think that wehad better return to the original principle, and, in the words of Governor Simcoe,endeavour to make ours ‘an image and transcript of the British constitution.’24

(b) Macdonald speaking in the Legislative Assembly of the United Province of Canada:

As may be well conceived, great difference of opinion at first existed as to theconstitution of the Legislative Council. In Canada the elective principle prevailed; in the Lower Provinces, with the exception of Prince Edward Island,the nominative principle was the rule. We found a general disinclination on the part of the Lower Provinces to adopt the elective principle; indeed, I do not think there was a dissenting voice in the Conference against the adoption of thenominative principle, except from Prince Edward Island. The delegates from New Brunswick, Nova Scotia and Newfoundland, as one man, were in favor onnomination by the Crown. And nomination by the Crown is of course the systemwhich is most in accordance with the British Constitution. We resolved then, thatthe constitution of the Upper House should be in accordance with the Britishsystem as nearly as circumstances would allow. [...] The only mode of adaptingthe English system to the Upper House, is by conferring the power of appointmenton the Crown (as the English peers are appointed), but that the appointmentsshould be for life. The arguments for an elective Council are numerous andstrong; and I ought to say so, as one of the Administration responsible for introducing the elective principle into Canada. I hold that this principle has not been a failure in Canada; but there were causes — which we did not take intoconsideration at the time — why it did not so fully succeed in Canada as we hadexpected.25

(c) Macdonald’s mature reflexions on the Senate of Canada:

It is true that, at an early period of his career, he favoured an elective Upper House, but eight years’ experience of this system was sufficient to change his

views, and to convert him into a firm upholder of the nominative principle. Everyyear since Confederation strengthened the conviction of his matured judgment,and showed him more and more clearly the advantages of the nominative over the

24 Joseph Pope, Memoirs of the Right Honourable Sir John Alexander Macdonald , Vol. I (Ottawa: J. Durie & Son,1894), 270.25 Cited in Parliamentary Debates on the Subject of the Confederation of the British orth American Provinces, 3rd Session, 8th Provincial Parliament of Canada (Quebec: Hunter, Rose & Co., 1865), 35. Also see Christopher Moorereference at §3.3.



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elective system. To his mind the chief among the objections to a Senate chosen by the popular vote, was the ever-present danger of its members claiming the rightto deal with money Bills, and the consequent possibility of disputes with theHouse of Commons. The proposal that the provincial legislatures, whosemembers are elected for purely local purposes, should choose the senators to

legislate on matters of general concern, was also objectionable, being opposed tothe spirit of the constitution, which confined the local assemblies to a strictlylimited sphere of action. He held that the system unanimously agreed to at theQuebec Conference had worked well, and should be undisturbed. A senatorship,in his opinion, was an important and dignified office, and a worthy object of ambition to any Canadian.26

2.4 Organicism – Organic principles are well-favoured by conservatives, whether in the formof the evolution of societal practices over revolutionary upheaval or as preferring anholistic approach — the whole is greater than the sum of its parts — to an atomisticworld-view (the whole is nothing but its parts). In this vein, organicism can be viewed asa complement of parts that function well together and which cannot be altered without

seriously compromising the entire organism. This was Burke’s conservativeunderstanding of political institutions: ‘Our fabric is so constituted; one part of it bearsso much on the other, the parts are so made for one another, and for nothing else, that tointroduce any foreign matter into it, is to destroy it.’27

The appointed Senate and the elected House of Commons is just such a conservativeorganism; were the Senate to become an appointed body, for instance, the equilibrium between the two would be lost and harmony between them destroyed (see §3.2 and §3.3 below). ‘Are we to be ever deaf and ever blind?’ Disraeli warned. ‘Are we never tolearn that a Constitution, a real Constitution, is the creation of ages, not of a day, and thatwhen we destroy such a Constitution we in fact destroy a nation?’28 The Commons is the

‘confidence chamber’ where the Executive is accountable to the nation through itsrepresentatives; the Senate its ‘complementary’ partner, adding value to the political process but not assuming its ‘democratic’ responsibilities to the people.

2.5 Particularism versus Universalism – Conservatism champions the unique qualities thatmake up individual men and women and also individual nations; it has eschewed the‘universalism’ that constitutes much of the collectivist agenda which fails toacknowledge and celebrate our distinctiveness. Disraeli castigated the British Whigs for their indifference, for ‘they endeavoured to substitute cosmopolitan for national principles ... to attack the institutions of the country under the name of Reform, and to

26

Pope, Memoirs, Vol. II, 235.27 Edmund Burke, ‘An Appeal from the New to the Old Whigs’, in Further Reflections on the Revolution in France,Daniel E. Ritchie, ed. (Indianapolis: Liberty Fund, 1992), 196.28 Disraeli, ‘Vindication of the English Constitution’, in Whigs and Whiggism, 132-33. Also see Peter Hennessy,Lord Hennessy of Nympsfield, ‘Don’t lay waste to the wisdom of the Lords’, The Telegraph, 17 May 2011,<http://www.telegraph.co.uk/news/politics/8519732/Dont-lay-waste-to-the-wisdom-of-the-Lords.html>: ‘Lordsreformers tend to fall into two distinct types. First, there are the physicians, who seek to improve the health of theHouse with organic changes, in tune with its existing physiology. Second, there are the engineers, who go for radical solutions. In effect, they are abolitionists, wishing to bolt on to Parliament a new construction — a prefab — in the hole where the Lords used to be, in the shape of a largely or wholly elected chamber.’ [Retrieved 2011-v-18]



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make war on the manners and customs of the people of this country under the pretext of Progress.’29

The Senate of Canada is just such a unique institution, crafted by the Fathers of Confederation, modelled on the examples of Britain’s House of Lords and the AmericanSenate, with a particularness all its own. Yet many Canadian conservatives are unwillingto accept our distinctive — and effective — Red Chamber and instead endeavour tosimply replicate what have evolved in other countries instead. Shame! To them Disraeliwarned: ‘Nations have characters as well as individuals, and national character is precisely the quality which the new sect of statesmen in their schemes and speculationseither deny or overlook.’30

2.6 Principle versus Ideology – In an effort to underpin the fact that conservatism eschewsabstract theorising, an unfortunate contrast was allowed to flourish (largely, I fear, due tothe influence of Russell Kirk), that conservatism was a programme of pragmatism rather than of principle. Let us state rather categorically that conservatism is a political philosophy that is built upon principles, but that its principles are informed by practice

and experience — which clearly distinguishes it from the errors of abstraction which sorepelled Kirk. ‘In old establishments various correctives have been formed for their aberrations from theory,’ wrote Burke. ‘They are not often constructed after any theory;theories are rather drawn from them.’31 And according to Disraeli, ‘It would appear thatthis scheme originated in the fallacy of supposing that theories produce circumstances,whereas the very converse of the proposition is correct, and circumstances indeed produce theories.’32

This understanding of conservative principles — leavened by experience — is a usefulfoil to the sometime synonym, ideology. For those of whom ideology is a negative term,it often happen that my good principles are contrasted with your ill-founded ideology; but

if we position principles against an ideology that is founded upon abstract reasoning and,more importantly, reasoning that is impermeable to experience and therefore immunefrom adjustment and correction, then a serviceable distinction is rendered.

This distinction is especially important with respect to Senate reform, for while thosewho favour the appointed model can point to its demonstrable benefits and raiselegitimate concerns about the unintended consequences of an elected Upper Chamber — while admitting openly that an appointive model has its own weaknesses — those for whom Senate reform is an ideological article of faith are unwilling/unable to addressthese shortcomings and remain wedded to a failing programme of change.33

29 Disraeli, Selected Speeches, Vol. II, 524.30 Disraeli, ‘Vindication of the English Constitution’, in Whigs and Whiggism, 120.31 Edmund Burke, Reflections on the Revolution in France, Conor Cruise O’Brien, ed. (Harmondsworth: PenguinBooks, 1986), 285.32 Disraeli, ‘Vindication of the English Constitution’, in Whigs and Whiggism, 119.33 It is worthwhile noting, in passim, Macdonald’s stance of legislative union: ‘...we were forced to the conclusionthat we must either abandon the idea of Union altogether, or devise a system of union in which the separate provincial organizations would be in some degree preserved. So that those who were, like myself, in favour of aLegislative Union, were obliged to modify their views and accept the project of a Federal Union as the only scheme



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What a number of faults have led to this multitude of misfortunes, and almost allform this one source, that of considering certain general maxims, withoutattending to circumstances, to times, to places, to conjectures, and to actors! If wedo not attend scrupulously to all these, the medicine of to-day becomes the poisonof to-morrow.34

2.7 ‘First, Do No Harm’ – A conservative, all things being equal, is content with the statusquo. It is what Burke termed ‘prejudice’: that willingness to accept things as-they-are before embarking upon change whose end result is unknown.35 Before any reform isundertaken, the burden of proof lies with the reformers to satisfy those unperturbed bythe present situation that those imperfections that do exist can be lessened or removedwithout jeopardising the well-being of the whole.36

With respect to Senate reform, it is incumbent upon the reformers to demonstrate thattheir prescribed alterations will improve the Red Chamber, not worsen it, and that theCanadian polity will benefit overall. Yet we are asked to accept their reforms on credit,while they neglect to address with sincerity our misgivings. Senator Sir John J.C. Abbott,

sometime prime minister, addressed this point in a Red Chamber debate:

We have had offered to us various modes of electing this House, but we have nothad suggested to us any reason whatever that I can see for changing our constitution. The only semblance of a reason offered ... [was] that we were notdoing what was expected of us, no [sic] properly carrying out the objects of our constitution. [...] I think I have shown, and other members of the Senate haveshown, that we have really performed our duties with regard to those objects; thatwe are daily performing them, and that every day we are seeking to take toourselves a larger amount of work. So far from shirking work and desiring to livein indolence and luxurious ease, drawing our pay for nothing, we are seeking for

all the work we can legitimately do within the sphere of our duties. What wehave had before us we have done and done well. It is not disputed — no hon.gentleman who has spoken has disputed — that we have done the work well.37

practicable ( Parliamentary Debates , 29)’. On Macdonald’s evolutionary position on the composition of the Senate,see §2.3.1 (a-c) above.34 Edmund Burke, ‘A Letter to a Noble Lord’, in Further Reflections, 65.35 Burke, Reflections, 183: ‘...in this enlightened age I am bold enough to confess, that we are generally men of untaught feelings; that instead of casting away all our old prejudices, we cherish them to a very considerable degree,and, to take more shame to ourselves, we cherish them because they are prejudices; and the longer they have lasted,

and the more generally they have prevailed, the more we cherish them. We are afraid to put men to live and tradeeach on his own private stock of reason; because we suspect that the stock in each man is small, and that theindividuals would do better to avail themselves of the general bank and capital of nations, and of ages. Many of our men of speculation, instead of exploding general prejudices, employ their sagacity to discern the latent wisdomwhich prevails in them. If they find what they seek, and they seldom fail, they think it more wise to continue the prejudice, with the reason involved, than to cast away the coat of prejudice, and to leave nothing but the nakedreason; because prejudice, with its reason, has a motive to give action to that reason, and an affection which willgive it permanence.’36 See my forthcoming article, ‘Edmund Burke and the Metaphysics of Reform’.37 J.J. C. Abbott, ‘Functions of the Senate’, The Gazette, Montreal, 28 April 1890, 10.



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Lord Howe of Aberavon noted the same absence of complaint among critics of the Houseof Lords. ‘Every discussion of the future of the Lords seems to start from the same premise. Even the critics make no significant proposal for change in the role, powers or expectations of the House,’ he observed. ‘For all the talk of reform, there’s scarcely ever a word of criticism of what the Lords actually do, or of the way in which they do it. On

the contrary, indeed — the House is perceived as an unique and indispensable componentof our democratic legislature.’38

2.8 Scepticism – While conservatives are not immune to optimism, nor have they a full-flown unquestioning faith in the unlimited power of progress. Whether believers or agnostics, there is general acceptance of man’s fallen nature, of his imperfectability.Conservatives, moreover, are sceptical that where individuals have failed, their necessarysalvation lies with the State — a man-made institution — and with social planning.39 Onthis latter score they are especially wary when change becomes an end in itself. ‘Men of Letters, fond of distinguishing themselves,’ wrote Burke, ‘are rarely averse toinnovation.’40

Senate reform, then, is discounted by conservatives as a panacea for what ails the State, both as the source of discontent and as a utopia fount. ‘It is simply not possible to talk about Senate reform without discussing the House of Commons,’ writes Gibson. ‘Manyof the “faults” commonly argued in our system — that it is remote, unrepresentative, partisan to a fault, dominated by party leader, regionally insensitive (at least to the West),unresponsive to the citizenry, and so on — really have much more to do with theCommons than with the Senate.’41 Again, Burke is a key proponent of this principle:

He shared to the full the Tory disbelief in the finite wisdom or finite capabilitiesof any one individual. He shared their belief in the power of tradition and of ancient processes of government to grapple with new situations, if only those

inherited methods are rightly handled, and those inherited traditions rightlyunderstood.42

2.9 Limited Government – A paragraph or two may be necessary to explain why thisshibboleth of classical liberal and libertarian political theory is held up as a conservativevirtue. After all, Toryism, in its Anglo-Canadian formulation, does not eschewgovernment action but is amenable to it. Indeed, liberalism, in part, arose as a reaction tothe Tory governments of Throne and Altar .

I contend that Toryism took root in the antecedents of a world that was transformed bythe Renaissance and the Enlightenment, a feudal world of reciprocal responsibilities

38 Geoffrey Howe, Lord Howe of Aberavon, ‘If It Isn’t Broke...’, Parliamentary Campaign for an Effective

Second Chamber, [nd], 1.39 On the British situation, see Kenneth Minogue, The Constitutional Mania, Policy Study No. 134, June (London:Centre for Policy Studies, 1993).40 Burke, Reflections, 211.41 Gordon Gibson, Challenges in Senate Reform: Conflicts of Interest, Unintended Consequences, ew Possibilities,Public Policy Sources, A Fraser Institute Occasional Paper , No. 83., September (Vancouver, BC: Fraser Institute,2004), 4.42Butler, The Tory Tradition, 44.



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where the prince was the apex of the governing structure, whose public acts were amixture of personal charity and — to use contemporary language — government welfare.

When, therefore, Toryism became a recognisable political creed in the late 17th and early18th centuries, it was a commonly held tenet that the Crown — and hence the State — would be an active player in the lives of its citizens, economically and morally.Whiggism was a defiance of this role, arguing for personal liberty, free from governmentinterference. The Crown’s prerogative to grant monopoly privilege — also known as‘rent seeking’43 — was thus challenged in favour of laisser-faire economic policy.

As economic science advanced, the virtues of liberalised economics became moreapparent; for Tories to deny these truths would be akin to an ostrich who buries his headin the sand so as to avoid hard truths above ground. Recognition of these economictheories accounts for, in part, the transformation of the Tory party into the Conservative party in the early to mid-1800s.

Anglo-Canadian conservatism, though, never fully abandoned what it saw as the moral

imperatives of government. If too much activity became anathema, it neverthelessreserved the right for the State to use its considerable powers to benefit the commonweal — the poor and disadvantaged especially — as a last resort. And so a prescriptive faithin limited government became a tenet of Tory belief. Why this is an importantconsideration with respect to Senate reform will become apparent in the next section (seeespecially §3.7).

2.10 ‘Politics Is Not the Highest End’ – Another conservative rationale for limited governmentfocusses on the role of politics in our lives. Politics is not the end of our existence — the be-all and end-all — but rather is a means for the achievement of individual potential,accomplishment, and self-realisation; the study of politics, likewise, is not the ‘highest’intellectual pursuit. According to the Greek philosopher Aristotle, ‘It would be absurdfor someone to think that political science or practical wisdom is the best science, unlesshuman beings are the best thing in the cosmos.44 St Thomas Aquinas, a mediaeval proponent of Aristotelian thought, expressed similar sentiments that are readilycomprehended by present-day contemporaries wary of the growth of government:

Man is not ordained to the body politic, according to all that he is and has; and soit does not follow that every action of his acquires merit or demerit in relation tothe body politic...45

Conservatives point to an elected Senate as a sign that its adherents believe in the beneficence of more government — any government — and of thus raising the prestige

43 See Gordon Tullock, ‘The Theory of Public Choice’, in Government Failure: A Primer in Public Choice, GordonTullock, Arthur Seldon, and Gordon L. Brady (Washington, DC: Cato Institute, 2002), 44: ‘Although rent seekingis essentially a new idea to modern scholars, and has not been explicitly discussed until the past 25 years, it wouldnot have been much of a surprise to Adam Smith because he lived in the latter stages of a dying rent-seeking society.His work [The Wealth of ations], in a real sense, gave the coup de grâce to rent seeking.’44 Aristotle, icomachean Ethics, Roger Crisp, trans. (Cambridge: Cambridge University Press, 2000): VI, vii(1141a).45 St Thomas Aquinas, The “Summa Theologica” of St. Thomas Aquinas, Literally Translated by Fathers of theEnglish Dominican Province, 2nd rev. ed. (London: Burns Oates & Washbourne, 1920), I-II, 21.4, ad 3.



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of electoral legitimacy beyond what it warrants in the larger scheme of humanity (see, for instance, the debate between majoritarian democracy versus individual rights; also see§3.7).

3.0 Reasons to Favour the Appointed Red Chamber

3.1 The foregoing was a brief ‘celebration’ of Canada’s appointed Senate as seen from aconservative perspective. Now the emphasis will shift slightly, looking instead at somedrawbacks and unintended consequences were the Upper House to become an elective body. A thumb-nail dichotomy between the two chambers will be the primary undertone:whereas the House of Commons is more partisan than not, the Senate is more impartialthan not; whereas the Commons has little time to fully debate the minutiae of bills, this process of scrutiny and revision is where the Senate excels; and whereas a narrowcomposition of professions is elected to the Commons, a more varied background of employment pursuits is appointed to the Senate (with more ethnic representation, too).

3.2 Legitimate and Accountable – These two political concepts, for present purposes, can beseen as two sides of the same coin: if the Senate is legitimate, then it must beaccountable; and if accountable, then it follows that it is legitimate. Unfortunately, because the Senate is appointed by the Governor-in-Council, and not by a vote of the people, its legitimacy is questioned. But as Lord Norton writes in ‘Complementing theCommons’:

Legitimacy derives from recognition that people are properly qualified to fulfil a particular task and that the method by which they are selected to fulfil it isappropriate. In some contexts, that method of selection is election. In other cases, it is not.46

An appointed Senate does not mean that its members are not legitimate, no more so thanCanada’s appointed legal community is considered to be lacking in legitimacy (morerelevant now in our Charter age of judicial review). Were it elected, the Red Chamber could, in fact, challenge the legitimacy of the House of Commons, with two elected bodies each ‘speaking’ on behalf of Canadians. Such a contest of wills becomes more problematic since the Senate is nearly co-equal with the Commons, save that the later enjoys spending powers the former does not (see British orth America Act , §53). Thus by seeking to establish legitimacy — a redundant task, in my opinion — reformers rather undermine accountability:

There is one body — chosen through elections to the House of Commons — that

is responsible for public policy. Electors therefore know who to hold to accountat the next election. Election day, in Karl Popper’s words, is judgement day.There can be no blaming of others; the government takes the credit or the blamefor what has happened on its watch.

46 Philip Norton, Professor The Lord Norton of Louth, ‘Complementing the Commons: The case for an effectivesecond chamber’, Parliamentary Campaign for an Effective Second Chamber, 17 March 2005, §6.



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There is thus what I have termed core accountability. Once one has two electedchambers, one creates an element of divided accountability. An elected secondchamber at Westminster may not claim the same powers as the first — fewelected chambers are co-equal with the first — but it is likely to claim more powers than the existing second chamber. It may demand more statutory powers.

As the political philosopher, Raymond Plant — Lord Plant of Highfield — asupporter of election, conceded in the debate on Lords’ reform in 2007, it would be difficult to resist such claims. It is certainly the case that an elected chamber could simply repudiate existing conventions governing the relationship betweenthe two chambers.47

3.3 Election Is Duplication – Countries with bicameral legislatures most often employdifferent methods of composing the membership of the two chambers: the thinking beingthat were the methods of filling one chamber replicated in the others, representatives of asimilar nature would populate both. One of the rationales of two chambers being thedesire to have members of different make-up in each. As Disraeli opined,

Assuredly I cannot understand how an efficient senate is to be secured by merelyinstituting another elective chamber, the members of which, being the deputies of their constituents, must be the echo of the Lower House, or, if returned by adifferent class, the factious delegates of an envious and hostile section of thecommunity.48

It is little known — especially outside central Canada — that we have been down thisroad before, in the United Province of Canada. When the Quebec Resolutions weredebated in its parliament in 1865, the record of its Upper House was uninspiring:

Both in the Legislative Council and in the Assembly the resolution for anominated second chamber caused much debate. But the elective principle wasnot defended with marked enthusiasm. By the Act of 1840 which united theCanadas the Council had been a nominated body solely. Its members received noindemnity; and, as some of them were averse from the political strife which ragedwith special fury until 1850, a quorum could not always be obtained. [...] Toremedy the situation the Imperial parliament had passed an Act providing for theelection of a portion of the members. Fresh difficulties had then arisen. Theelectoral divisions had been largely formed by grouping portions of countiestogether; the candidates had found that physical endurance and a long purse wereas needful to gain a seat in the Council as a patriotic interest in public affairs; andit had become difficult to secure candidates. This unsatisfactory experience of anelective upper chamber made it comparatively easy to carry the resolution

providing for a nominated Senate in the new constitution.49

47 Philip Norton, Professor The Lord Norton of Louth, ‘House of Lords Reform?’, Stevenson Lecture, University of Glasgow, 25 January 2011, 9-10. Also see Norton, ‘Complementing the Commons’, §§8-9, and MacLean,‘Anticipating the Consequences’, 114-16.48 Disraeli, ‘Vindication of the English Constitution’, in Whigs and Whiggism, 196.49 A.H.U. Colquhoun, The Fathers of Confederation: A Chronicle of the Birth of the Dominion (Toronto: Glasgow,Brook & Co., 1920), 92.



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Canadian historian Christopher Moore examined this pre-Confederation institution for The Beaver ,50 which has special relevance for contemporary Senate reformers. ‘Our modern senate debate has been haunted by myths about whey the confederation-makersof 1867 opted for an appointive upper house,’ he writes. ‘It was not because they feared parliamentary democracy. They understood the focus of parliamentary democracy lies in

the lower house, the one elected on the basis of representation by population.’

They were not looking for a house of the provinces either, for they took steps todisconnect Senate seats from the provinces, and they gave the provinces no part infilling them. They did speak of regional representation, but region was anebulous concept, not a real source of power or authority.

The confederation-makers’ real concern was that the upper house be carefullylimited. They would let it live, they would let it protest against majoritarianexcesses that might arise in the lower house, but they agreed it should not wieldan effective veto on the place where the people were best represented. In 1867the elected senate of 1855 went back to being appointed, and that has kept the

upper house restrained to its advisory role ever since.

Furthermore, bicameralism, historically, has entailed two chambers of distinctivecomposition, with the lower house signified by a popular mandate and the upper houseidentified with an aristocratic pedigree.51 While the former has fallen into disrepute — witness the removal of most of the hereditary peers in the British House of Lords, on the basis that an accident of birth is not a sufficient prerequisite to be a legislator 52 — aremnant of an aristocratic flavour remains, if only embodied in the concept of merit or accomplishment.53

Lastly, a seldom raised consequence is the possibility of voter fatigue. ‘If people are becoming, as seems possible, disenchanted with the whole electoral process,’ writes LordHowe, ‘it may not be very profitable to multiply their opportunities for ignoring the process. If elections to the Lords — organized, quite probably on the basis of a listsystem — were to suffer in this way, it would be yet another means of reducing the

50 See Christopher Moore, ‘Electing the Senate — the First Time’, The Beaver , June/July 2006<http://www.christophermoore.ca/mooreCHarticle3.html#electing>. [Retrieved 2011-vi-02]51 See Whitelaw, The Quebec Conference, 17: ‘Macdonald, interested in preserving the strength and prestige of this body, proposed that a relatively high property qualification for Senate membership be required. He proposed, andthe conference after some argument agreed, that unencumbered ownership of real property, held in freehold tenure

and worth at least four thousand dollars, be required. This was reminiscent of the property with which theConstitutional Act of 1791 had endowed some Canadians in an attempt to create a landed aristocracy in the NewWorld to replace the aristocracy of lineage of the Old. This abortive British attempt to establish a landed aristocracywas, in its turn, reminiscent of the somewhat similar attempt by France to establish the feudal seigneurial system in New France. Both attempts had failed, and for much the same reason, namely, the preference of any New Worldaristocracy for residence in the Old.’52 An eloquent defence of the hereditary peers is raised by Simon Heffer, The End of the Peer Show? Why the

hereditary system is wright and wromantic, Policy Study No. 149, December (London: Centre for Policy Studies,1996).53 See footnote 55 below.



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authority of an institution that seems today to be functioning with growing confidence.Who knows?54

3.4 Expertise and Experience – Accomplishment, then, is conspicuous by the display of expertise and experience. Surely this is a qualification sought in politicians, in bothchambers of Parliament.55 Unfortunately, not only is expertise in the House of Commonsdrawn from a narrow professional pool — usually lawyers or career politicians — but the partisan nature of the House does not often give such talent an opportunity to demonstrateitself. Such talent, however, is given greater rein in the Senate, not only due to its less- partisan, impartial nature but also because, by the power of appointment, a diverse rangeof professions are present. Most of these men and women, though concerned with publicaffairs, would never trade their careers for the rough-and-tumble of an electoralcampaign, either for an elected House of Commons or Senate. Calling upon them for Royal Commissions of enquiry and information-gathering, though an option, is anexpensive and burdensome construct for the day-to-day scrutiny of legislation, such asthe Senate currently performs.56

3.5 Term Limits – The ‘added value’ of appointed senators is why the concept of term limits is especially odious: in the House of Commons it removes the electors’ democratic rightto vote for politicians who have proven their worth and ability (assuming, instead, thatconstituents are ignorant of their self-interest and vote unwisely), while in the Senate it prevents senators of ability from continuing in public service, consequently cutting shortthe time required to learn requisite Senate procedure (the learning curve) and curtailingthe beneficial accumulation of an institutional (and legislative) memory. Burke wasdismissive of the various attempts at constitution-making following the FrenchRevolution:

By the new French constitution, the best and the wisest representatives go equally

with the worst into this Limbus Patrum [‘Limbo of the Patriarchs’]. Their bottoms are supposed foul, and they must go into dock to be refitted. [...] Your

54 Lord Howe, ‘If It Isn’t Broke...’, 9.55 For Burke, those who offered their experience and expertise in the cause of public service were an example of a‘natural aristocracy’. See Burke, ‘An Appeal from the New to the Old Whigs’, in Further Reflections, 168: ‘A truenatural aristocracy is not a separate interest in the state, or separable from it. It is an essential integrant part of anylarge people rightly constituted. [...] To be taught to respect one’s self; To look early to public opinion; to standupon such elevated ground as to be enabled to take a large view of the wise-spread and infinitely diversifiedcombinations of men and affairs in a large society; To have leisure to read, to reflect, to converse; To be enabled todraw the court and attention of the wise and learned wherever they are to be found; [...] To be led to a guarded andregulated conduct, from a sense that you are considered as an instructor of your fellow-citizens in their highest

concerns... To be employed as an administrator of law and justice, and to be thereby amongst the first benefactors tomankind — To be a professor of high science, or of liberal and ingenuous art — To be amongst rich traders, whofrom their success are presumed to have sharp and vigorous understandings, and to possess the virtues of diligence,order, constancy, and regularity, and to have cultivated an habitual regard to commutative justice — These are thecircumstances of men, that form what I should call a natural aristocracy, without which there is no nation.’56 See Gibson, Challenges in Senate Reform , 6: ‘Some believe that in terms of value for money spent, over $70million per year, the occasional useful reports and hearings of the Senate could easily be provided by a few RoyalCommissions with considerable money left over. In rebuttal, Paul Thomas argues that, compared to RoyalCommissions and task forces, Senate inquiries “take less time, are less expensive, and often have more success ingaining adoption of their recommendations”.’



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constitution has too much of jealousy to have much of sense in it. You consider the breach of trust in the representative so principally, that you do not at all regardthe question of his fitness to execute it.57

3.6 Sober Second Thought – It follows that the Senate was not meant by the Fathers of Confederation merely to give a stamp of approval to the work of the House of Commons.When Confederation was debated in the Legislative Assembly of the United Province of Canada in 1865, Sir John A. Macdonald made an eloquent case for the independence of the Red Chamber:

There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of theLower House. It would be of no value whatever were it a mere chamber for registering the decrees of the Lower House. It must be an independent House,having a free action of its own, for it is only valuable as being a regulating body,calmly considering the legislation initiated by the popular branch, and preventingany hasty or ill considered legislation which may come form that body, but it will

never set itself in opposition against the deliberate and understood wishes of the people.58

Freedom from the rigours of electoral campaigns inculcates the freedom to study issueson their own merits, without conscious or unconscious considerations of winning votes.Tom Axworthy wonders whether or not Canadians fully appreciate the value the RedChamber bestows upon the legislative agenda: ‘And where we do have longevity andaccumulated policy expertise among legislators — such as in the Canadian Senate — weshould recognize it as being a priceless asset and perhaps be not so keen to throw itaway.’59

The Senate makes up for many of the weaknesses of the House: it is less partisan(though still organized in the party interest), Senators have longer tenure, and theSenate’s more leisurely pace allows it to get more value of the witnesses whotestify before its committees. George Kennan, one of the great American publicservants of the 20th century, proposed late in his life that what the US governmentneeded most was an appointed Council of State, with long-term tenure, drawnfrom a variety of experts, and able to advise the American people on long-termtrends. What Kennan advocated has many similarities with our CanadianSenate.60

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Burke, Reflections, 305-06.58 Macdonald quoted in Parliamentary Debates, 36. Joseph Pope records a favourite Macdonald anecdote that ‘theSenate is the saucer into which we pour legislation to cool’ in his second volume of Memoirs, see 233-34. LordHowe of Aberavon connects this independence of thought with the freedom from contested elections: ‘...peers arenot elected. So, by voting against their party, they do not put their own seats at risk.’ See ‘Don’t vote for us’, TheSpectator , 30 August 2003 <http://www.spectator.co.uk/print/essays/11427/dont-vote-for-us.thtml>. [Retrieved2011-vi-02]59 Thomas S. Axworthy, Everything Old Is ew Again: Observations on Parliamentary Reform, A Queen’sUniversity Centre for the Study of Democracy Special Report, Kingston, Ontario, April 2008, 37.60 Axworthy, Everything Old Is ew Again, 48.



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3.7 Public Choice Theory – Applying the insights of economics to politics, public choicetheory argues that much as individuals in their private capacity are motivated primarily by self-interest, so too are self-interested motives at the heart of their public actions. Thisdoes not come as any great surprise with respect to voters — who presumably cast their ballots for issues that appeal to them — but it does unsettle the conventional wisdom with

respect to bureaucrats and politicians. Bureaucrats, after all, are employees of the Statewhose self-interest may often be at variance with the public interest (institutionaldownsizing and reorganisation, for instance). Politicians, on the other hand, get elected by promising to give the people what they want, and so, it is argued, will tailor their policies to be vote winners:

...democracy operates so that politicians who simply want to hold public officeend up by doing things the people want. Perhaps the people are badly informed intheir choice of policies, but all a democracy can really guarantee is popular control, and politicians whose motives and methods we have analysed do give the people control.61

Public choice theory also teaches that, while many will agree that the marketplace is not perfect, it does not necessarily follow that the answer is to be found in government; thatis, that there are also examples of government failure. Furthermore, government failuremay be more problematic than market failure, as it is less responsive to correction andtends to grow and extend its influence without warrant. As Arthur Seldon has written:

Government remedies are begun before the market’s imperfections have been removed by growing knowledge of its continuing flow of new, competingalternatives. They are applied too widely to where the market has not yetemerged, but could have been foreseen, to where it is expanding. And they aremaintained long after they have become superfluous and could be replaced by the

new supplies and demands.

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It is important to note that public choice theory is not necessarily against government; asGordon Tullock argues, ‘It does not follow that government cannot efficiently achieveother goals, or, indeed, that with appropriate redesign, it might not achieve some of theclassical goals, such as efficient enforcement of the law against assault and battery.’63 The goal is always to be focussed on the public interest, and in this respect the currentSenate of Canada very well may be a more appropriate structure than the elective model proposed.

61 Gordon Tullock, The Vote Motive, Rev. ed., Peter Kurrild-Klitgaard, ed. (London: Institute of Economic Affairs,2006), 59-60.62 Arthur Seldon, The Dilemma of Democracy: The Political Economics of Over-Government (London: Institute of Economic Affairs, 2002), 61-62.63 Gordon Tullock, ‘The Theory of Public Choice’, 10. Also see the appraisal by Charles K. Rowley, ‘The life andscholarship of Gordon Tullock: a personal appreciation’, in The Vote Motive, 109: ‘Tullock is not an anarchist. He believes that there is a role for the minimal state protecting the lives, liberties and properties of individual citizens. No doubt the role of the state extends in his mind beyond that of the minimal or “nightwatchman” state. Any suchextension is, however, extremely limited.’



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With respect to Senate reform, then, public choice theory offers three warnings: (1)Canadians should not look to an extra layer of government to solve their political problems, in which Senate reform has become a panacea; (2) an elected Senate may not be more public-oriented than the appointed chamber (and may actually be a worsealternative); and (3) while government can work, it does not necessarily follow that

‘more democracy’ is the answer (without realising it, the existing structure may be justwhat we want and need).

3.8 The Common Good versus Special Interests – A corollary of the above (and influenced by public choice theory) is that during the electoral process, politicians, in appealing for votes, cannot possibly solicit every voter and incorporate disparate objectives into their campaign platform. Likewise, the general electorate is more or less disengaged in the political process that does not affect it directly. However, those with particular aims inmind, which can be advanced through politics — such as unions or the agricultural lobby — are usually well-organised; politicians become the means by which their objectivescan be realised and hence become the target of their propaganda efforts. Politicians, inturn, needing the committed voter to win elections, will most often include the wishes of

special interests in their electoral programmes. And thus while the elected MP and thespecial interest wins, society in general may not. ‘The short-run interests of a group may be served by a privilege at the expense of other people,’ observed Ludwig von Mises.‘The rightly understood, i.e., the long-run interests are certainly better served in theabsence of any privilege.’64

While this ‘back-scratching’ phenomenon is the perceived normal practice in the Houseof Commons, it is less commonly observed in the Senate. Senators, after all, areappointed and therefore do not need to appeal to voters to hold office, but also becausethe Senate has by custom been the chamber with a concern for every region of Canada,with very little incentive to pitch region against region. Were an elected element to be

introduced into the Upper House, the appeal to special interest would no doubt also become a factor, which could become more problematic if provincial representation becomes one element of reform: provinces would vie with each other for governmentlargess, replacing sober second thought on behalf of the commonweal.

3.9 Abolition – Writing of the papacy, G.K. Chesterton averred that if it did not already exist,it would have to be invented. Much the same can be said for the Senate of Canada. In itsrole of providing sober second thought, of scrutiny and revision, and in its capacity for in-depth examination of issues of public policy, the Red Chamber performs a functionthat is beyond the time and inclination — not to mention the capabilities — of the Houseof Commons.65 ‘The claims of unicameralists that abolishing the second chamber would

64 Ludwig von Mises, The Clash of Group Interests (Auburn, AL: Ludwig von Mises Institute, 2011), 6-7.65 See Axworthy, Everything Old Is ew Again, 74: ‘The policy and public education contributions of the Senate of Canada are greatly undervalued. Canada’s Parliament has two chambers, and they are complementary. WhenParliament is often criticized for being overly partisan, lacking policy depth, and somewhat frenetic, it is usually theHouse of Commons that critics have in mind. The Senate is none of these things. Since the 1960s, it hasconsistently produced reports of high quality, which have contributed much to Canadian debates over public policy.These achievements must be weighed in the balance when the Senate’s so-called deficiencies in legitimacy aretrumpeted. The Senate is able to make such a contribution because compared to members of the House of Commons, Senators have longer tenures, and are not as entirely motivated by partisan passions. Appointment of



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force the House of Commons to reform in order to shoulder the burden effectively are notsustainable,’ argues Lord Norton.

The existing second chamber — the House of Lords — is itself one of the busiestlegislative chambers in the world. The task of MPs in fulfilling their collectiveand individual roles would become intolerable. The burden would be lessened but not alleviated by a massive increase in resources, but a corollary of anincrease in staff numbers is a distancing of the Member from constituents. One of the great strengths of the parliamentary system is the link between MP andconstituent.66

Were the Senate to be abolished, the loss of its legislative oversight would be keenlyfelt.67

3.10 An Hybrid Chamber? – Though it has not featured prominently in the debate on Upper Chamber reform in Canada — the question of an hybrid chamber has been the subject of discussion in the United Kingdom. It can be dealt with summarily; it is not a wise

compromise for conservatives to contemplate. First, by advocating a mixed chamber of elected and appointed senators, it concedes the fact that appointed senators add value tothe legislative process, while introducing the divisiveness that two elective bodies will present. Second, it introduces a two-tier Senate structure: Senate watchers will scrutiniseeach vote, to ascertain who voted for or against various bills, setting elected andappointed senators against each other. Depending upon the method of election, too, somesenatorial positions will become more coveted than others, for a list system with noconstituency duties will be less onerous than one with constituency duties attached. Lord Norton takes a similar position with respect to the House of Lords:

A part-elected second chamber also poses problems. Either appointed membersare legitimate or they are not. How will equality of membership be maintained?Votes in the House will, in all likelihood, be pored over to see if the appointedmembers determined the outcome. The argument for partial rather than completeelection is that it allows the house to retain the benefit of experienced andindependent members. That is to recognise the strength of the existing House.

such people as described above would achieve a measure of Senate reform without destroying its existing value.Distinguished past Senators, like Thérèse Casgrain or Eugene Forsey, could serve as a model for such nominees.’66 Lord Norton, ‘Complementing the Commons’, §3.67 No doubt reference will be made to the abolition of the legislative councils in the provinces. Briefly, my counter argument is that, following the lines of the principle of subsidiarity, as the provinces are charged with affairs of alocal nature, the people themselves are the best source of critical scrutiny on matters that touch them directly.

National affairs, dealing with matters that do often touch upon popular quotidian concerns, require their own uniqueavenue of critical reflexion. For an American perspective on ‘localism’, see James Madison’s Federalist o. 46, inThe Federalist , The Gideon Edition, G.W. Carey and James McClellan, eds. (Indianapolis: Liberty Fund, 2001),243: ‘...the first and most natural attachment of the people, will be to the governments of their respective states.Into the administration of these, a greater number of individuals will expect to rise. From the gift of these, a greater number of offices and emoluments will flow. By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be morefamiliarly and minutely conversant: and with the members of these, will a greater proportion of the people have theties of personal acquaintance and friendship, and of family and party attachments. On the side of these, therefore,the popular bias may well be expected most strongly to incline.’



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Injecting an element of election, to replace a number of existing members, willremove some of the experience available to the House. It is also not clear how thelegitimacy of the elected members will waft over and encompass the remainingappointed members.68

4.0 What Role for the Provinces?

4.1 It is argued that in Canada’s bicameral system, it is a given that the Senate shouldrepresent the provinces in the federal parliament. As Lord Norton wrote about thestandard practice world-wide, ‘‘Bicameral legislatures, with elected second chambers, arenotable in federal nations. Citizens vote as citizens of the nation for members of the firstchamber and as citizens of a state for the members of the second chamber. In short, theyvote twice but in different capacities.’69

4.2 Distinct Jurisdictions – Yet clearly this is not a necessary requirement — that of provincial representation at the federal level of government — for reformers who

advocate abolition of the Senate (see §3.9). As a supporter of the Senate, I concur: thatthere is no reason for the provinces to be represented at the federal level and that,furthermore, to do so would be in contravention of the spirit of the British orth America Act .

4.3 The Confederation Intent – Clearly such a view goes against the prevailing zeitgeist;many Senate zealots see the introduction of a provincial element as perhaps one of thegreatest means of introducing an element of legitimacy to the present Senate structure.Yet jurisdictional boundaries and constitutional competence stand in the way of seeingthe Senate as an instrument for the provinces:

4.3.1 At the time of the Confederation debates, a unitary form of government was proposed bymany of the framers, in particular Sir John A. Macdonald.70 Yet the representatives fromCanada East were opposed to such a plan which they viewed as subjecting the FrenchCanadian minority to the legislative whims of English Canada. A federal system wastherefore adopted, in which the provinces were given responsibility for local matter — ‘the uncontrolled management of its peculiar institutions and its internal affairs,concerning which differences of opinion might arise with other Members of theConfederation’71 — and the federal government jurisdiction in affairs — such as nationaldefence — that affected all provinces equally.72

68

Lord Norton, ‘Complementing the Commons’, §25.69 Norton, ‘House of Lords Reform?’, 12.70 See Macdonald speech as recorded in Parliamentary Debates , 29.71 Speech by Sir Alexander T. Galt in the Legislative Assembly of the United Province of Canada, 1858, quoted bySir George William Ross, The Senate of Canada: Its Constitution, Powers and Duties, Historically Considered (Toronto: Copp, Clark, 1914), 5.72 See Whitelaw, The Quebec Conference, 17: ‘This basic fact was embodied in the second of the Quebecresolutions, which was moved by George Brown and passed unanimously, to the effect that the federal system bestadapted to the circumstances would be a general government to deal with matters of common interest, and localgovernments for matters of particular and local interest. [...] True, Macdonald would have preferred ... a legislative



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4.3.2 The Confederation scheme, then, was clear: the federal sphere and the provincial sphereswere each given their respective jurisdictions. Senate membership, for example, was to be apportioned among ‘Divisions’ representing the Maritime Provinces, Ontario, andQuébec, not as provinces per se, but as distinct regions of the Dominion.73

4.3.3 We can recall Joseph Pope’s reflections on Sir John A. Macdonald:

The proposal that the provincial legislatures, whose members are elected for purely local purposes, should choose the senators to legislate on matters of general concern, was also objectionable, being opposed to the spirit of theconstitution, which confined the local assemblies to a strictly limited sphere of action.74

Gordon Gibson echoes this sentiment:

Moreover, the Senate of Canada does not reflect provinces or regions inany useful way. Of course, that was not really the intent of the Fathers of Confederation but is a widely desired function of the Senate today. As will beargued below, effective representation of the provinces in the Senate would be amajor, and arguably negative, change in our system but that is not the current popular view.75

4.3.4 Lastly, since provincial premiers will be among the first to decry interference in provincial jurisdiction by the federal government, why cannot the federal governmentraise the same cry and protest the encroachment of the provinces into the federaldomain?76 Worse still, premiers may find their roles as principal provincial spokesmen

union, and there is reason to believe that he hoped by strengthening the central at the expense of the provincialgovernments to succeed in making the proposed union virtually a legislative union.’ Also see Colquhoun, The

Fathers of Confederation, 68-69: ‘Several of the most influential delegates were in theory in favour of legislativeunion, and these were anxious to create, as the best alternative, a general parliament wielding paramount authority.This object was attained by means of three important clauses in the new constitution: one enumerating the powersof the federal and provincial bodies respectively and assigning the undefined residue to the federal parliament;another conferring upon the federal ministry the right to dismiss for cause the lieutenant-governors; and another declaring that any provincial law might, within one year, be disallowed by the central body. Instead of a looselyknot federation, therefore, which might have fallen to pieces at the first serious strain, it was resolved to bring thecentral legislature into close contact at many points with the individual citizen, and thus raise the new state to thedignity of a nation.’ (68-69)73 For more on the make-up of Senate divisions and the failed attempt for ‘the proposed Upper House to perform thedistinctively federal function of protecting provincial rights on the principle of the United States Senate’, seeWhitelaw, The Quebec Conference, 17f.74 Pope, Memoirs, Vol. II, 235.75

Gibson, Challenges in Senate Reform, 7. He expands on this theme in the section ‘The intent of the founders’, 9-12.76 Two points should be raised in passim: (1) it is unlikely that the provinces, were they given a role in the make-upof the Senate, would be content with the current practice of scrutiny and revision, but would desire to exercise theSenate’s full constitutional powers; and (2) the federal government does have certain constitutional powers withrespect to overseeing the provinces: witness the prerogative to appoint lieutenant-governors and the lapsed power of disallowance over provincial legislation (see British orth America Act , §§58-60 and §90, respectively). (On the position of lieutenant-governors, also see Whitelaw, The Quebec Conference, 20.) Some authorities will also arguethat the ‘Peace, Order, and good Government’ clause (see British orth America Act , §91) also confers an ‘holistic’authority upon the Dominion Parliament.



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co-opted by senators with greater provincial clout (possibly opening up a door for greater federal intrusion into provincial jurisdiction, too).77

4.4 The American Senate Model – Oftentimes the American model is held up for imitation but, whereas there are many useful examples to be learned from the American politicalexperience, Senate reform is not among them — unless as a cautionary tale. At the timeof constitution-writing both during and after the War of Independence, the Americanstates were sovereign entities. So while the Articles of Confederation and theConstitution of the United States of America were instruments whereby they cametogether on matters of collective concern — again, national defence tops the list — theynever abrogated their sovereign rights — witness the Ninth and Tenth Amendments andthe contemporary appeal of nullification of overweening government in Washington.This is the reason why the states are represented equally in the U.S. Congress, todemonstrate a union of independent sovereign States.78 As James Madison remarked inFederalist o. 43:

The equality of suffrage in the senate, was probably meant as a palladium to the

residuary sovereignty of the states, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on bythe states particularly attached to that equality.79

4.5 Provincial Prerogatives – This does not mean, however, that the provinces should remain passive spectators as the debate on Senate reform unfolds. There are any number of waysto urge caution on Senate innovation.

4.5.1 As has been raised earlier, an elected Senate with the current levels of representation willvie with the provinces as representatives; so though the reform measures currently promoted by the Harper ministry will not involve constitutional change per se (or so it

claims), one can foresee that it may disturb interprovincial relations, leading to the

77 See MacLean, ‘Anticipating the Consequences’, 115-16.78 Debate during the Quebec Conference seems to have misinterpreted this distinction, that the U.S. states retainedtheir sovereignty; see Macdonald’s own misconception reported by Pope, Memoirs, Vol. I, 269: ‘In framing theconstitution, care should be taken to avoid the mistakes and weaknesses of the United States’ system, the primaryerror of which was the reservation to the different States of all powers not delegated to the General Government.We must reverse this process by establishing a strong central Government, to which shall belong all powers notspecially conferred on the provinces.’ One can surmise that if this fact had been more openly acknowledged, thatthe Fathers of Confederation would have been even more adamantly against a provincial role in the DominionParliament. See Whitelaw, The Quebec Conference, 12.79

Alexander Hamilton, John Jay, and James Madison, The Federalist , The Gideon Edition, G.W. Carey and JamesMcClellan, eds. (Indianapolis: Liberty Fund, 2001), 228-29. (The states’ federal role in Washington was effectivelyvitiated by the Seventeenth Amendment.) See also Alexander Hamilton writing in o. 32: ‘But as the plan of theconvention aims only at a partial union or consolidation, the state governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States(155).’ Anthony A. Peacock has written a useful primer to The Federalist called How to Read The Federalist

Papers (Washington, DC: The Heritage Foundation, 2010). Thomas E. Woods, Jr. has written an engrossingaccount of when states seek to exercise their sovereignty, especially in relation to the federal government inWashington, called ullification: How to Resist Federal Tyranny in the 21

st Century (Washington, DC: Regnery

Publishing, 2010).



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question: Who speaks for the provinces? Other unintended consequences are bound tofollow.

4.5.2 The provinces as political entities are no different than the people found within their borders, in their combined aspirations for good government. Accepting the argument thatan elected Senate is bad for Canada means that Canadians will suffer. Provinces have theresponsibility, therefore, de facto if not de jure, to argue that Senate reform is not in the best interests of their citizens. Provinces can ensure that the Dominion Parliament, whenundertaking Senate reform, abides by Disraeli’s advice:

When you try to settle any great question, there are two considerations whichstatesmen ought not to forget. And, first of all, let your plan be founded uponsome principle. But that is not enough. Let it also be a principle that is inharmony with the manners and customs of the people you are attempting tolegislate for.80

5.0 Some Modest Proposals for Senate Reform

5.1 But as even the most stalwart defenders of appointed Upper Chambers will attest that anyhuman institution has its flaws and that correction is possible, it seems incumbent uponthe author to sketch out some reforms that will improve the functioning of Canada’sSenate, 81 — ever mindful, of course, of Burke’s opprobrium against ‘Men of Letters’.

5.2 Increase the Age of Eligibility – At present, Canadian citizens are eligible to becomesenators at thirty years of age: this threshold was set at a time when life expectancy wasmuch shorter than what we enjoy, due to better living conditions and medical advances.One well-rehearsed argument against the present system is that someone may beappointed to sit in the Senate for a maximum of 45-years, all at the taxpayers’ expense.

So, just as in 1965 a mandatory retirement age of 75 replaced the practice of senators-for-life, why not increase the age of eligibility, to 50 or 55 years of age? Moreover, thisreform bodes well with the Senate as a chamber of sober second thought, as men andwomen of this age will have established themselves in their careers, gained much usefulexperience and expertise, and be amenable to a change in career direction that includesservice in the public interest.

5.3 Appoint More Independent Senators – Although the Senate is far less partial than theHouse of Commons, it is far from being a non-partisan body. This is to be expected, as itis a legislative chamber where debates for and against government policy occur. Yet thetone and level of discussion would be enhanced by the nomination of more senators

independent of party, such as the cross-benchers in the British House of Lords.82

Andwhile partisan nominations are often made up of former politicians — MPs, provinciallegislative members and the like — this would be an opportunity to expand the pool of

80 Disraeli, Selected Speeches, Vol. II, 482.81 An excellent source for promising Senate reform proposals is Campbell Sharman’s ‘Political Legitimacy for anAppointed Senate’, IRPP Choices, Institute for Research on Public Policy, 14:11, September 2008. I plan toexamine Campbell’s ideas when this document is revised.82 See the Crossbench Peers official website: <http://www.crossbenchpeers.org.uk/>.



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talent in the Red Chamber to include representatives of the myriad professions thatcomprise a larger part of the public interest than the political forum.83

5.4 Legislate for Plurality – As prime ministers have recommended senatorial appointmentsto the Crown, one drawback has been the tendency for governing ministries to favour their supporters to the exclusion of those allied with the opposition parties. This not onlyconduces to ill-will among the parties, but may also affect the independent nature of theSenate. There have been a few exceptions to this rule:

Given the Liberal majority in the Senate, Trudeau offered to the opposition thatthey could nominate replacements for their party stalwarts who were reachingretirement age. Like all Prime Ministers, he was very conscious of party interest, but he also appointed Senators like Thérèe Casgrain, Jean Le Moyne, EugeneForsey, and Michael Pitfield, who were accomplished leaders in their fields.Subsequent Prime Ministers also made meritorious, non-partisan appointments:Brian Mulroney appointed the world-renowned heart surgeon Dr. William Keon;Jean Chrétien appointed Laurier LaPierre, the noted broadcaster. There is no

denying that some Senate appointments are made to reward partisan loyalty, butour Prime Ministers have shown that they can reach out to the wider communityin the manner that George Kennan advocated.84

One reform measure may be to legislate a plurality of Senate membership in future, to provide for more equitable representation of political parties, with an appreciableindependent component.85

(Following the General Election of 2011, the NDP now forms the Official Opposition; its platform has long been in favour of abolishing the Upper House, yet the occasion presents itself for the appointment of future NDP senators that will both promote pluralityand a diversity of opinion.)

83 See Axworthy, Everything Old Is ew Again, 74: ‘‘One third of Senators should be appointed from Canadianswho have made a public contribution in science, the arts, business, higher education, philanthropy, or publicadministration.’ This is not to gainsay the value of ex-politicians in the Upper Chamber; see Lord Norton,‘Complementing the Commons’, §17: ‘The experience that is routinely brought to bear was made in a tellingexample offered by Lord Howe of Aberavon. He noted that, in one session, debate on four bills affecting the courtsattracted contributions from 23 peers who had served as ministers (including two as Home Secretary and one asLord Chancellor), the Lord Chief Justice, six former law lords (one of them a former Chief Justice of New Zealand),two former Bar Council chairmen, fifteen other QCs, five JPs, four solicitors, two former Police Authority chairmen,a former Commissioner of the Metropolitan Police, two who had served as chairmen as chairmen of the ParoleBoard, five professors, a former EU commissioner, as well as an array of peers with other related experience.’84

Axworthy, Everything Old Is ew Again, 48-49. Also see Whitelaw, The Quebec Conference, 18: ‘The firstmembers of the Canadian Senate were to be chosen from the existing provincial Legislative Councils, with therequirement that all political parties be fairly represented. No stipulation, however, was made for the perpetuationof this non-partisan senatorial distribution, and Macdonald himself, who was Prime Minister of the new Canadianfederation for most of the remainder of the century, in making subsequent Senate appointments, raised only a singleLiberal to the Upper House.’ Another opportunity presents itself to differ with Sir John A. on the question of principle.85 One of the current reform proposals for the House of Lords is legislation ensuring that, in future, no one party willenjoy a majority in the Upper Chamber. See House of Lords Bill [HL] 2007-08, §8 (2)<http://services.parliament.uk/bills/2007-08/houseoflordshl.html>. [Retrieved 2011-vi-04]



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5.5 More Open Consultations – There is no formal method for the selection of senators (notto include the sporadic provincial initiatives), other than at the prime minister’sdiscretion. One easy method for ensuring greater oversight in senatorial appointmentsought to be an article of faith for conservatives, that of restoring the responsibility of MPsto holding the Executive — even of their own party — to account. In this way there

would be pressure on prime ministers to appoint senators who had the tacit support of themajority of the House of Commons, senators who would be a credit to the Red Chamber.Yet as Lord Acton observed, power corrupts, and government backbench MPs are fain tooppose the source of promotion and prestige, their leader.86

The United Kingdom has addressed this issue by establishing the House of Lords

Appointments Commission;87 with a membership comprising political appointees andindependents, it vets recommendations by Number 10, opposition political parties, andthe public-at-large. Could such a system work in Canada? Perhaps. I would not suggesta commission for each province, as this would simply lead to a variant of more over-government. Yet a national commission is possible, with a membership comprisingnational and provincial appointees, with the ultimate power of senatorial appointment

continuing to rest with the prime minister.88 Two developments, though, should be prevented from developing: (1) that an elected element develop at the provincial levels,which would result in duplication (see §3.3) and almost certainly repel potential senatorswho would not wish to stand for election (see §3.4); and (2) the unintended consequencethat national oversight give way to parochial provincial concerns — this may be avoided by having a preponderance of federal appointees on the nominations board.

6.0 Conclusion

6.1 Thus concludes my partial study of Canada’s Senate from the perspective of progressive

conservatism, surveying both the conservative principles that demonstrate the benefits of the appointed Red Chamber and the traditional conservative critique of the elective modelfor the Upper Chamber.89

6.2 Feedback is welcomed from those who have read my defence and wish to contributeconstructive criticism. A more detailed examination is planned for the autumn, buildingupon these arguments and possibly raising new issues, after consulting the materialslisted for additional study and reflecting further upon the cause of Senate reform.

86 See Gibson, Challenges in Senate Reform, 5ff: ‘...the members of the government party in the House of Commons almost always see their duty as defending the government against the opposition and, if required, even

against the people rather than as the original, ancient British idea of defending the people against the government.’Gibson continues this theme at 18ff. Christopher Moore has argued the case for greater accountability of politicalleaders to their party’s MPs for years.87 See the House of Lords Appointments Commission website: <http://lordsappointments.independent.gov.uk/>.88 In an early draft of the British orth America Act , it states that the Senate of the 1st Parliament of Canada ‘shall beappointed by the Crown at the recommendation of the General Executive Government, upon the nomination of therespective Local Governments’ of their respective Legislative Councils. An objective was ‘that all political partiesmay as nearly as possible be fairly represented.’ See Pope, Confederation, 40-41.89 Sadly, given that many Canadian Conservatives who are pushing for an elected Senate, writing ‘traditionalconservative’ is not the oxymoron it should be.



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6.3 Though addressed principally to the Progressive Conservative parties in Atlantic Canada,I hope that my defence of the appointed Red Chamber will appeal to all Canadian political parties, to coin a phrase, ‘of goodwill’; that is, who approach the question of Senate reform with an open mind to consider and weigh the merits of appointment andthe dangers inherent in election (Section 3 is particularly pertinent for non-conservatives).

Perhaps a cadre of Canadian politicians will be inspired by the British example andestablish our own Parliamentary Campaign for an Effective Second Chamber. If so,let it be animated by the spirit of Burke:

Such admirers [of past deeds] were our fathers to whom we owe thissplendid inheritance. Let us improve it with zeal, but with fear. Let us follow our ancestors, men not without a rational, though without an exclusive confidence inthemselves; who, by respecting the reason of others, who, by looking backward aswell as forward, by the modesty as well as by the energy of their minds, went on,insensibly drawing this constitution nearer and nearer to its perfection by never departing from its fundamental principles, nor introducing any amendment whichhad not a subsisting root in the laws, constitution, and usages of the kingdom. Let

those who have the trust of political or of natural authority ever keep watchagainst the desperate enterprises of innovation: Let even their benevolence befortified and armed.90

90 Burke, ‘An Appeal from the New to the Old Whigs’, in Further Reflections, 199.



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About the Disraeli-Macdonald Institute for Organic Toryism

Disraeli-Macdonald Institute for Organic Toryism is my personal research website. It grew outof my graduate research in Anglo-Canadian conservative thought, and is focussed primarily on political philosophy, politics proper, and political economy.

As is readily apparent, Benjamin Disraeli and Sir John A. Macdonald, two Victorian politicalgiants, serve as my exemplars of Toryism-in-practice. Indeed, two components of DMI (which began as research proposals that received enthusiastic support), signal out the respective careersof these two men: the Young England Research Unit and the Centre for Confederation

Politics.

With time, other ancillary research aims joined the mix, looking at Catholic Social Teaching andat economics from the perspective of the Austrian School of Economics.

Why ‘organic Toryism’? At one point my primary interest was to analyse the conservativetenets that were key to understanding Disraeli and his followers in Young England (on which themediaeval revival and the Oxford Movement also had influence). A foil was needed tostrengthen the contrast with other species of conservatism, and Sir Robert Peel was the idealcandidate: Disraelian Toryism versus Peelite Conservative. Wishing to expand the parameters,this dichotomy later became Organic Toryism versus Laisser-Faire Conservatism.

While the individualism of the classical liberals has been integrated into my definition of organicToryism — much as mediaeval political thought was itself a dynamic between persons as‘single-beings’ and within their communities as ‘joint-beings’ — the term is more ever moreappropriate, as ‘organic’ signifies both holistic organisations wherein the whole is greater than

the sum of its parts, as well as spontaneous individual initiative.

Interacting with Disraeli-Macdonald Institute

Website: http://tinyurl.com/organic-tory

E-mail: [email protected]

Blog: http://www.organic-tory.blogspot.com

Facebook: http://tinyurl.com/DMI-FB-Friends

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Reform of the Senate of Canada: A Progressive Conservative Perspective (A Partial Study) :

http://tinyurl.com/SenateConservatism-1

Date post:	07-Apr-2018
Category:	Documents
Upload:	stephen-maclean
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