The Senate after the Election: How will the NDP and the Liberals react?

Although the Senate is a much-maligned institution, it plays a vital role in our bicameral parliament. The current debate on the Senate, and the stated positions of the opposition parties that seek to form government after October, downplay its centrality to the functioning of any government. I am not referring to the embarrassment that Senators may cause a future government, or how they may undermine confidence in the Prime Minister. Instead, a very practical issue exists that the two opposition parties have downplayed – the need to have a caucus in the upper chamber that ensures the passage of legislation referred to it by the House of Commons.

The Leader of the Government in the Senate is responsible for the management of the government’s legislative agenda, which is principally introduced in the House of Common. This individual coordinates with the Leader of the Opposition in the Senate to ensure the passage of government bills, once received from the House of Commons, and reviewed by the appropriate Senate Committee. In short, the government that resides in the House of Commons requires individual Senators to adopt, support, and drive its legislative agenda until Royal Assent is granted.

Leaving aside the Conservative party, which has a disciplined caucus and a workable Senate majority despite 22 vacancies, how do the stated positions of the Liberals and NDP square with this basic principle of Canadian parliamentary democracy, which is bicameralism?  Who will be the Leader of the Government in the Senate if either of these parties form government after the October election? Will the Senate Liberal Caucus – what the expelled Liberal Senators are now referred to as – be welcomed back into the fold, once Justin Trudeau realizes that being Prime Minister without a Senate majority and a Leader of the Government in the Senate makes passing any bill rather complicated? I wonder whether the Liberal advisors surrounding Justin Trudeau now realize that their practical ‘reform’ of the Senate is misguided as it creates real constitutional consequences for the act of governing.

Of the two opposition parties, the NDP predicament is far more serious. Unlike the Liberal party, which at least has a former Senate caucus that may be reintegrated as a minority party in the Senate, or at the very least, support government bills, the NDP caucus does not have a single Senator. In recent parliaments, it has not been unusual for the Official Opposition to be lead in the Senate by a party other than the one that performs this role in the House of Commons. During the periods in which the Bloc Québécois, the Reform Party and the Canadian Alliance lead the Official Opposition in the House of Commons, the Progressive Conservatives and the Conservative Party performed this role in the Senate.

For a party committed to abolishing the Senate such as the NDP, the absence of senators in its caucus is a perfectly understandable position. For a party that is a government-in-waiting, this is a serious constitutional situation, and requires the NDP to inform Canadians how it would interact with the Senate if it forms the next government.   Would Thomas Mulcair appoint NDP Senators to ensure that the Leader of the Government in the Senate is drawn from his own party? Alternatively, would the NDP ask Conservative senators or Senate Liberals to represent the government in the Upper House? Would an NDP government act as if Parliament is unicameral, and simply expect the Senate to pass its legislative agenda without scrutiny?

The NDP response to this practical issue may simply be that it intends to abolish the Senate, and the absence Senators is a short-term problem. However, altering the Senate is a long-term constitutional project that extends beyond the life of the next Parliament.

If the NDP or the Liberals form government, this would be the first time that a government residing in the House of Commons would not have Senators in its caucus. More significantly, the government would not be lead in the Senate by a member of the same political party. Our system is based on peace, order, and good government. Our parliament is bicameral and both houses advance legislation toward Royal Assent. The length of the current campaign provides ample time for the opposition parties to tell Canadians how they intend to work with the current Senate to pass legislation, as the Liberal and NDP positions create a potential crisis for parliamentary democracy after the October election.

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