COVER

Confronting the Red Chamber

PAUL GESSELL August 24 1987
COVER

Confronting the Red Chamber

PAUL GESSELL August 24 1987

Confronting the Red Chamber

COVER

Canada’s Senate was barely a week into its first sitting when some members of the Red Chamber began complaining that they had nothing to do. It was Nov. 15, 1867—and Liberal Senator David Christie said that the people’s nonelected representatives might as well take a week’s holiday. But Conservative Senator David Macpherson expressed concern about public opinion. According to the minutes of that day, “Mr. Macpherson said the House ought to be careful not to create the impression that its presence was not required.” More than a century later, Canadians are still debating the utility of the Senate. As York University professor Ramsay Cook, one of the country’s leading historians, told a parliamentary committee last week, “Almost since the day after Confederation we have had discussion on reform of the Senate —and with no result.”

Last week the possibility of reform loomed larger than at any time in the history of the Senate. On June 3 Prime Minister Brian Mulroney and the 10 premiers agreed as part of the Meech Lake constitutional accord to try a new method of making Senate appointments, at least for an interim period. They are scheduled to meet again next year to discuss further reforms. Public hearings on the proposals began two weeks ago and will continue until Sept. 14.

The hearings took on a special relevance last week as a bitter feud erupted between the Senate and the House of Commons. The Liberal-dominated Senate passed amendments on Aug. 13 that, if allowed to stand, would effectively gut a bill passed by the Conservative majority in the Commons. The bill is designed to give brand-name prescription drug manufacturers better protection from the producers of cheaper generic copies. It was the third time since the Tories came to power in 1984 that the nonelected Senate has tried to thwart the elected Commons. Consumer and Corporate Affairs Minister Harvie Andre told reporters, “The elected body should have the right to have its views prevail.”

Indeed, the government vowed last week to oppose the Senate amendments and return the original bill to the upper chamber. At that point, senators would have the option of retaining or dropping their amendments. Under the Senate proposals,

patent protection for multinational drug producers would be reduced to four years, as opposed to 10 years in the government bill. At the same time, it would increase the royalties that generic firms pay for the right to make cheaper copies of drugs—to

14 per cent from four per cent. Unless the Senate backs down, the bill could die. But Liberal Senator Lome Bonnell, chairman of the Senate committee that drafted the amendments, gave no indication that he was ready to yield to the government. Said Bonnell: “We’re not backing down and we haven’t lost any resolve. We’re going all the way.”

The outcome of the battle could go well beyond drug legislation. Last week U.S. officials declared that the free trade negotiations with Canada could falter unless Ottawa guaranteed better patent protection for multinational drug producers. The Conservative government, however, denies that its bill represents a concession to U.S. pressure. Instead, it maintains that the patent protection is necessary if Canada is ever to win a larger chunk of the millions of dollars in research and development now spent by drug producers in other countries. But Liberal senators pre-

diet that the legislation would increase the cost of drugs to consumers by hundreds of millions of dollars a year —a view that commands support from both Liberal and New Democratic Party MPs.

Parliamentary officials declared

last week that unless the Commons and the Senate reached a compromise, they were heading for their worst showdown in 40 years. The only way out of the impasse would be for the two houses to convene what is known as a free conference, in which three or more representatives of each chamber would negotiate a compromise. The conference has not been used since 1947, when the two chambers disagreed over Criminal Code legislation. Andre, however, said that he had no desire to enter a conference and he urged Allan MacEachen, the former senior cabinet minister who is now Liberal leader in the Senate, to change his mind. Andre pointedly added, “Allan MacEachen is no longer deputy prime minister.”

For his part, Commons Speaker John Fraser was acting cautiously. He summoned aides to brief him on the rare free conference procedure, but he found few who were knowledgeable on the subject. Said one

highly placed Commons official: “There are a lot of people working in the clerk’s office trying to get this straightened out.”

In the search for precedents, some politicians were even consulting the 1949 thesis of a University of British Columbia political science student named John Turner. The Liberal leader earned his honors degree with a two-volume study of the workings of the Senate. He concluded his effort by

writing: “The problem of the Senate has confounded Canadian statesmen since Confederation.” Turner now says that the way to solve that problem is to have an elected Senate.

For the most part, the public only hears about the Senate when it uses its powers to block Commons bills—instead of applying its usual rubber stamp. These controversies occur most frequently when different parties form a majority in each House. Turner’s university thesis noted that the Senate exercised its rights to amend bills most often from 1896 to 1901 and from 1911 to 1916, when the Liberals formed a majority in one chamber and the Conservatives in the other.

Since 1984, when that situation was recreated, the Senate has played havoc with the Conservative government’s agenda. In 1985 it delayed a borrowing bill for five weeks; then, on July 2, 1986, it refused, until the last minute, to tighten parole provisions. The 65 Senate Liberals in the 104-seat cham-

ber can easily hamstring government bills because there are only 31 Conservatives in the chamber (five are Independents, one is an Independent Liberal, and two seats are vacant).

At one point during the controversy over the borrowing bill, Mulroney raised the possibility of abolishing the Senate. Instead, in the Meech Lake accord, he struck a deal with the premiers under which the Prime Minister would consult provincial governments before appointing senators. A constitutional conference is to be held next year to find permanent ways of revamping the upper chamber. Among the key proposals to be discussed will be the Alberta government’s drive for a so-called Triple E Senate—a body that would be elected, contain equal numbers from each province and thus be more effective.

The Meech Lake Senate proposals have drawn decidedly mixed reviews. Testifying last week before the parliamentary committee holding public hearings on the issue, former Conservative leader and Nova Scotia premier Robert Stanfield endorsed the proposal for provincial guidance on Senate appointments. Said Stanfield: “After all, the Senate was intended to be a forum that would consider regional concerns.” But an earlier committee witness, retired senator Eugene Forsey, condemned the proposal. One of the country’s leading constitutional experts, Forsey said that Canada would be stuck with the interim system for making Senate appointments because unanimous consent of all the provinces would be needed before further changes could be made. The chances of achieving such consent, he said, were “microscopic.”

Under the current system, being appointed to the Senate has often been likened to winning a lottery. Senators draw an annual salary of $57,400 and have an expense allowance of $9,200. They receive generous pension benefits and, unlike MPs, cannot be removed until the compulsory retirement age of 75. As Liberal Senator David Steuart from Saskatchewan noted: “I can’t go down because I’ve got a lifetime contract—almost. I’m here until I’m 75 or dead, whichever comes first.”

The quality of Senate appointments, and the chamber’s ability to frustrate the will of elected politicians, has troubled Canadians for decades. Those worries were evident even in 1867 when Senator Macpherson said that the upper chamber should attempt to give itself “a firm place in the confidence of the country.” More than a century later, Canada’s politicians are still trying to achieve that elusive goal.

— PAUL GESSELL in Ottawa