Friday, May 17, 2013

History of obscure Senate rules


Apart from the money and the general ick factor, Senator Mike Duffy has the big problem that if he doesn't live in Prince Edward Island, he is not eligible to be one of its senators. And the audit has established he doesn't live in Prince Edward Island.

But what's with that odd rule? It's right in the constitution (the 1867 one and all its updates): a senator must be “resident in the province for which he is appointed.” 

There's nothing like that for members of the House of Commons. William Lyon Mackenzie King was actually the MP for the Prince constituency in Prince Edward Island at one time, and no one claimed he lived there.  Mr. Harper doesn't spend many days in Calgary Southwest, and he's breaking no rules by that. The constituents doubtless want him to be in Ottawa, you know, doing stuff for them.

So why make senators sit at home?
The point is that the main requirement the constitution-makers had for the Senate was that it be weak.  There is a lot of nonsense, even in the standard texts, that the "fathers" were conservative anti-democrats and they created a powerful appointed upper house to limit and thwart democratic impulses. Actually, because they were parliamentary democrats, they ensured that the senate would be as weak as was possible short of not having an upper house at all -- because they intended to focus power on the representative and elected lower house.

Senators were deprived of the moral authority that election would have given them. They are not even appointed by the regions they allegedly serve. And -- just a little tweak to nail it down -- they were required by law to spend most of their time far from the centre of power and influence. Because in 1867 power and influence is the last thing anyone wanted Senators to have. Nobody really wanted senators who would actually do stuff on a regular basis.

There's one exemption.  Senators who hold office as members of cabinet may reside in Ottawa. But right now it does not look like Senator Duffy is going in that direction.

I've got more on this topic in my column in the June-July issue of Canada's History, hitting your mailbox any day now.... if you subscribe like you oughta.

Update, May 18:  Mark Reynolds raises the confederation agreement "that Senators were regional representatives, rather than provincial ones - i.e., that there is no "PEI Senate Seat" other than by convention. Would Duffy still be in violation if he had a house in New Brunswick?"

The BNA Act, 1867 had it both ways (I conclude after taking a look). The original Senate was divided into three equal (24 seats) regions:  Ontario, Quebec, and the (then two) Maritime Provinces, and later the West became another region with 24 senate seats. So it's a regional senate. But the act also set out how the Maritime seats would be allocated by province, and it specified that senators had to live in their province, not their region. So a house in New Brunswick, though it is within the Maritime region, would not help Senator Duffy. But an Ontario senator could move to Ottawa, and a Quebec senator could move to just across the river from Ottawa, and be in the clear.