Improving the Senate’s role as protector of provincial rights

by Gary W. O’Brien. Originally published on Policy Options
January 19, 2023

In a Dec. 1, 2022 Globe and Mail article, columnist Andrew Coyne opined that the Alberta Sovereignty within a United Canada Act subordinates federal authority, as well as the role of the courts as constitutional interpreters, to the jurisdiction of the Alberta provincial government. He could also have added to his list one of the original roles of the Senate, which the Fathers of Confederation saw as being the protector of sectional interests.

In the Confederation Debates, Sir Étienne-Paschal Taché stated that each region was given equal numbers in the Senate “so as to secure to each province its rights, its privileges, and its liberties.” Alexander Galt declared: “To the (Senate) all the Provinces look for protection under the Federal principle.”

Even John A. Macdonald was adamant that: “To the Upper House is to be confided the protection of sectional interests; therefore is it that the three great divisions are there equally represented, for the purpose of defending such interests against the combinations of majorities in the Assembly.”

Two Senate changes are long overdue and within reach

The “new” improved Senate

The original Senate consisted of three divisions – Ontario, Quebec and the Maritimes (New Brunswick, Nova Scotia and Prince Edward Island). In 1915, the four western provinces became a fourth division with equal seats. Later, seats for Newfoundland and Labrador were added, as well as seats for the three northern territories.

It appears that one of the reasons the Alberta legislature passed the sovereignty act is because of the vacuum at the federal level in defending provincial rights – one of the roles the Senate was intended to play. Reforming the Senate to get it back to that point has been a hot-button issue in recent decades, although little progress has been made and it’s not really on the federal political radar today.

This is unfortunate because the idea of using two chambers instead of one dominated by Central Canada to promote legislation based on greater social and political consensus can only help mitigate regional alienation.

There are three changes that could get Canada started toward this key goal.

As Gordon Robertson, a former clerk of the Privy Council, concluded, the Senate “has failed to establish itself as the effective voice of regional interests that the Fathers of Confederation talked about and that the underlying conditions of federalism require.”

Michael Pitfield, also a former Privy Council clerk, felt that in its “important role of regional representation, I believe the Senate has done a very poor job. This is a tragic failure because, particularly in a federation, this is a special, and in a sense, unique role for a second chamber.”

This neglect in carrying out the Fathers’ vision can be traced to many sources, such as the requirement of responsible government, under which the government is answerable only to the elected House of Commons.

Despite their collective shortcomings in championing provincial rights, many senators have used their positions to try to protect local interests. Through representations in caucus and to ministers of the Crown, many senators have effected changes in policies and legislation involving their province and region.

This original role of the Senate has never been entirely forgotten. There are at least three initiatives the Senate could take to rebuild the infrastructure that would assist it in better protecting provincial interests.

The first two of these come from Germany’s upper house, the Bundesrat, whose primary role is to defend the interests of the Länder (the states) within parliament and secure their rights from intrusion by the federal government. These actions are:

1. Demanding the right to be informed by the federal government. The third sentence of Article 53 of Germany’s Basic Law states that “The Bundesrat shall be kept informed by the Federal Government with regard to the conduct of its affairs.” In accordance with this constitutional provision, the federal government is obliged to provide promptly – in full and on an ongoing basis – information on all government business, including draft legislation, administration policies and information concerning the general political situation. Article 53 has been called a key weapon in the Bundesrat’s armory in exercising control over the federal government.

2. Permitting representatives of both the provincial and federal governments to attend and participate in Senate committee meetings. The first and second sentences of Article 53 state: “The members of the Federal Government shall have the right, and on demand the duty, to attend meetings of the Bundesrat and of its committees. They shall have the right to be heard at any time.” (Emphasis my own.) Rule 40 of the Rules of Procedure of the Bundesrat states: “(1) Members of the Bundesrat and representatives of the Länd as well as members and representatives of the Federal Government, may attend meetings of the committees and sub-committees. (2) In the meetings committee members and representatives of the Länd governments may question the members of the Federal Government and its representatives.”

3. Including in committee reports a section on how a reported bill may infringe on provincial rights and powers. In the 1990s, when Senator Jack Austin chaired the Senate Rules Committee, he suggested as a component of the restructuring of committees that when reporting a bill back to the Senate, the committee should comment on its potential conflict with provincial powers. Unfortunately, he was not successful in convincing his colleagues to adopt this measure. Similar reforms have also been suggested by senators in later years but with little success.

By adopting such measures, senators can better focus their attention on regional anxieties. The founding fathers were insistent that the Senate be a key institution in giving regional-provincial interests a powerful voice.

Subscribe to our newsletter.

It may be useful to recall the statement made on June 19, 1950 by Senator Norman Platt Lambert on the Senate’s provincial role: “The provinces have a vital federal interest: it exists in the common ground of mutual relations in trade and commerce, in taxation, in defence, in social standards and security. In short, it exists in the sphere of all-around national welfare. Our duty is to see that matters of concern to the provinces are clearly and definitely presented here … and that unity of democratic purpose shall be promoted throughout this land.”

This article first appeared on Policy Options and is republished here under a Creative Commons license.