January 3, 2010 11:43 AM
By Kady O’Malley
Okay , first of all, don’t blame me for getting the ball o’ rampant speculation rolling before the sun has set on the last long weekend until Easter. It’s all Susan Delacourt’s fault for pointing out that, as of today, there are five empty seats* in the Upper House, just waiting to be filled with loyal and deserving Conservatives from New Brunswick, Newfoundland and Labrador, Quebec and Ontario.For the first time since this prime minister took office in 2006, the government is on the brink of a working majority – or, at least, plurality – in the Senate, which would be comprised of 51 Conservatives, 49 Liberals, 2 Progressive Conservatives, 2 Independents and 1 Anne Cools, which, as some Hill reporters have been telling you over and over again, is likely the real impetus for prorogation, since it means that the Conservatives may finally take control of Senate committees, although as I noted a few days ago, that’s not a sure thing.While those committees will, indeed, « reset » at the start of the new session in March, membership — including the numbers of seats allotted to each party — is decided through negotiations between Senate party leaders, which means that we could see a similar formula to what is currently in place in the House of Commons, where the government holds the plurality, but not the majority, of committee seats. (Former Colleague Wells, incidentally, questions the recent conventional wisdom that a prorogatory reboot was necessary to rejig the numbers; based on his reading of the Senate rules, committee membership can be adjusted at any point during a session, provided that both government and opposition Senate leaders sign off on the change.)
But let’s leave aside the issue of Senate committees for a moment, and consider the even more intriguing possibility that the prime minister is poised to invoke Section 26 of the Constitution Act, and appoint not five, but thirteen new Conservative senators, thus giving his party an absolute majority in the Red Chamber, with 59 seats out of 113.
Now, that particular provision has only been used once before: in 1990, when Brian Mulroney appointed the momentarily infamous « GST Eight » after the Liberals, who held the majority in the Senate at the time, threatened to block the bill implementing the tax for as long as it took to kill it off — they couldn’t simply vote it down, since it was a money bill, but they could have tied it up in procedural red tape for years.
The only other occasion in which a prime minister tried to do so was in 1873, when Canada’s very first Liberal PM, Alexander Mackenzie, asked Queen Victoria to appoint an additional six senators to balance an Upper House that was, at the time, dominated almost entirely by MacDonald-appointed Conservatives, a plea that was politely, but firmly rejected, on the advice of the British Cabinet:
The Earl of Kimberley, on the 18th February, 1874, answered; that after careful examination of the question, which was one of considerable importance, he was satisfied that the intention of the framers of the 26th Section of » The British North America Act, 1867, » was, that this power should be vested in Her Majesty, in order to provide a means of bringing the Senate into accord with the House of Commons, in the event of an actual collision of opinion between the two Houses.
That Her Majesty could not be advised to take the responsibility of interfering with the constitution of the Senate, except upon an occasion when it had been made apparent that a difference had arisen between the two Houses of so serious and permanent a character that the Government could not be carried on without Her intervention, and when it could be shown, that the limited creation of senators allowed by the Act would apply an adequate remedy.
Although initially unpublicized, the still-Conservative dominated Senate eventually found out about Mackenzie’s attempt to stack the Senate, and subsequently passed a resolution expressing « its high appreciation of the conduct of Her Majesty’s Government in refusing to advise an Act for which no Constitutional reason could be offered. » (For more about the history of Section 26 than you ever wanted to know, I heartily recommend reading the Library of Parliament’s backgrounder on the subject.)
But that was back in the dusty, pre-repatriation days. Since 1982, the use of Section 26 has been, at least in theory, entirely the prerogative of the prime minister of the day, as the approval of the Crown is no longer required, which means that there is nothing to stop the PM from appointing thirteen senators as early as this afternoon, provided he follows the approved formula of one – or two – from each of the four divisions. The only question, really, is why he didn’t do so last December, when the threat of losing power to the coalition led to him to break his pledge not to appoint a single one.Perhaps his advisors convinced him that it could be one of the few parliamentary precedents that he might want to avoid setting, what with the potentially troublesome optics, and the inevitable comparison to the last PM to do so. But given his persistent grumbling about the current state of the Senate, and the fact that his party won’t have a majority until December 2010, he may finally be ready to roll the dice if it means getting the upper hand in at least one House of Parliament without having to go back to the polls.And the best part of all, from PMO’s perspective, at least? With Parliament standing prorogued, there’s not a thing that the opposition can do to stop him. Unlike the House of Commons, the Senate rules allow the Speaker to recall the Senate during adjournment, should « public interest » require it. (The Standing Orders, in contrast, authorize the Speaker to recall the House only on the request of the government.)So, given all that — will we be seeing five new Conservative senators take their seats in March — or a baker’s dozen?Thoughts, commenters — on section 26, or, alternately, your guesses for possible senators-in-waiting?
*Yes, according to the official list of party standings on the parliamentary website, there are only four vacancies, but as of yesterday, a second slot has opened up in Ontario. Happy Belated 75th Birthday to Jerry Graftstein!UPDATE: As Commenter OttawaGuy613 notes, the Queen may, in fact, still be required to sign off on any S26-appointed senators, as repatriation did not explicitly transfer that responsibility to the Governor General. But what, really, are the chances that, if asked, she’d say no?