Let's remember that the last time Stephen Harper broke his promise not to appoint unelected Senators, his rationale had nothing at all to do with the passage of legislation.
Instead, it arose in response to the prospect of a coalition government winning power - and Harper's
was that if any party was going to appoint cronies and bagmen to publicly-funded sinecures, it would be his own.
Between Stephen Harper's combination of broken promises and ongoing scandals, I'm rather shocked that anybody thought the Senate would be anything but a political liability for the Cons. But let's highlight what's worth taking away from an
.
Prime Minister Stephen Harper says he refuses to name any senators until the Senate is reformed, adding he hopes it will put pressure on the provinces to figure out a plan to update the institution.
...
The policy will remain in place as long as the government can pass its legislation, the prime minister said.
Of course, the Cons have a majority in the Senate and will for some time no matter what happens. As a result, they face no risk at all in their ability to pass legislation in the foreseeable future.
But the more general principle that the Senate shouldn't interfere with the passage of government legislation is rather more important given the prospect of a new government facing Con obstruction.
So between now and election day, it's worth pressing Harper, his party, and particularly their unelected non-representatives on their willingness to apply the same rule no matter who forms government. And if the result is a consensus that the Senate won't interfere with the will of the electorate, that should make for an important step in placing decision-making authority where it belongs.
In that respect, Campbell Clark's
discussion (link is external) of the difference between Harper's new announcement and the position the federal government has taken in Aniz Alani's
lawsuit (link is external) seeking to require the appointment of Senators might be of particular interest:
In that case at the Federal Court, the government has been filing materials to back up an argument that Mr. Harper is delaying appointments, not refusing them.
They include an affidavit from McGill political science professor Christopher Manfredi, who declared that there’s no constitutional convention that dictates how much time PMs have to appoint senators, and they can take their time. But refusing to appoint senators?
“Certainly, at some stage, senators have to be appointed,” Federal Court Justice Sean Harrington wrote in May, when he rejected the government’s motion to dismiss Mr. Alani’s case. He noted that if there were less than 15 senators, the required number for quorum in the chamber, Parliament could not function. (Mr. Alani argues the Constitution requires Mr. Harper to appoint senators, and refusing to do so defeats constitutional provisions guaranteeing levels of representation to provinces.)
He also wrote this: “I know of no law which provides that one may not do what one is otherwise obliged to do simply because it would be embarrassing.”
But government lawyers told the court, in a letter dated June 15, that there was never any decision made by the Prime Minister to leave Senate seats vacant. The letter was sent as part of the court process: Mr. Alani had asked for copies of all the materials the PM used to make the decision to leave Senate seats vacant, and government lawyer Jan Brongers replied that there were no materials, because there was no such decision.Harper's new announcement surely changes the factual landscape underlying Alani's application.
And it's worth wondering whether Harper's plan might open the door to his being provided with an excuse to make appointments in advance of the election.
