Friday, June 16, 2017

The Liberals should be discouraged from tabling more omnibus bills

I've never been a huge fan of the Canadian Senate, although, to be fair, it's not living on a whole different planet like Britain's House of Lords sometimes seems to be.
Senators are appointed and not elected, which gives the Senate an awkward non-democratic character. Almost everything I have ever read about the body makes use of the phrase "chamber of sober second thought", which has become something of a mantra, although it does convey quite effectively the flavour of the Senate's purpose and function. There is a certain amount of partisanship in the chamber although, soon after being elected in 2015, Justin Trudeau "released" the Liberal senators from any party affiliations, and they now sit as independents. In most cases, the Senate just reviews government legislation, acting as a foil against any excesses, particularly in a government majority situation such as we currently have here in Canada. This is not quite a rubber-stamping exercise, although it can sometimes seem that way.  Certainly, historically, instances of the Senate overruling the House of Commons are few and far between.
Which is why the current kerfuffle over the government omnibus budget bill C-44 is all the more notable.
Now, I object to omnibus bills (the practice of combining several different, and often unrelated, bills into one huge and complex piece of legislation, usually as a means of pushing through a lot of legislation with a limited amount of discussion and debate) even more than I object to the idea of an unelected senate. Stephen Harper's Conservatives made free use of omnibus bills during the tenure of the previous administration, and the Liberals and NDP were outraged every time, accusing the Conservatives of a lack of accountability and transparency. Justin Trudeau was elected in 2015 on a platform that included a pledge of no more omnibus bills. A year and half into his incumbency, and what does he do?
The budget bill currently being debated includes the creation of several entirely new laws, including the Canada Infrastructure Bank Act, the Borrowing Authority Act, the Invest In Canada Act, and the Services Fees Act, all of which need proper study and debate, even though the Liberal majority in the House saw fit to pass it with very little discussion. Finance Minster Bill Morneau is arguing, rather disingenuously I think, that anything that was in the recent budget belongs in the budget bill. The Senate, though, led by Independent Senator André Pratte, has moved that the huge and important Canada Infrastructure Bank Act at very least should be split out from the omnibus bill and debated separately. The House Liberals are desperate to avoid more delays, particularly on the infrastructure bank, and really do not want the bill to go back to the House of Commons for yet more debate, especially with the summer recess looming.
I think Senator Pratte is right. If nothing else, the Liberals need to be taught the lesson that transparency is important, and that borrowing suspect plays from the Conservatives' playbook when it suits them is not OK. The irony is that, if the Liberals had put the infrastructure bank bill forward separately, it might already have been passed by now.

In the end, the Senate vote on the budget bill was evenly split - 38-38, with one abstention - which was enough to ensure that Senator Pratte's amendment was defeated. But hopefully, it was also enough to give Justin Trudeau and his Liberals pause, and to deter them from using omnibus bills of this kind in the future.
This neatly underlines the Senate's role, which is not to second-guess or subvert our main elected body of law-makers, but to act as a voice of reason and to guard against extreme measures and undemocratic tendencies. It did this when Stephen Harper was at his most dictatorial, and here is a timely reminder to Justin Trudeau not to go down the same path.
Senator Pratte himself points out that, although the Senate seems to have amended a large number of government bills over the last year or so, in many cases the amendments were accepted by the government, which agreed that the changes actually made the bills better. In many other cases, though, the bills were sent back unchanged to Senate, and the Senate (conscious of its unelected and secondary role) meekly accepted them. In fact, not one bill was ultimately blocked or rejected by the Senate.
The Senate is quite conscious of its role: it makes suggestions and alerts public opinion; it makes sure that legislation is properly drafted, and that it complies with the Canadian Charter of Rights and Freedoms. Reports of  an out-of-control "FrankenSenate", which represent a grave danger to our democracy, are greatly overstated.

In an unfortunate turn of events after a few days of rancorous exchanges between the Senate and the government, the Senate has effectively stamped their foot and taken their ball and gone home.
Although the Senate has approved, in genetal terms, the budget bill C-44 - including the infrastructure bank part that was an earlier sticking point - it sent the bill back to the House with a few picky amendments proposed by a Conservative Senator relating to the proposed automatic tax increases for inflation on beer, wine and spirits. The House of Commons then chose to reject those amendments, even though they are really not a major part of a huge encompassing omnibus bill, thus killing the whole bill until after the summer recess. So, I guess they were not that desperate to last it early after all...
What's kind of sad is that the impetus for all these last minute exchanges, and the ultimate rejection of the bill, has mainly been posturing and chest-thumping, both by the House Liberals and by the Senate. The House of Commons, by unanimously rejecting the Senate's small amendments, sent a message that the Senate should not "infringe on the privileges of the House". The Senate, for their part, objected to the Liberals' claim that unelected senators do not have the jurisdiction to alter or make suggestions on a finance bill (clearly they do, and they have in fact already amended two finance bills since Justin Trudeau's election in late 2015). The result? Neither chamber really got what they wanted, and the whole thing will probably have to be resurrected again in September.

At the last possible moment, on the very last day before Parliament goes on its summers hols, the Senate actually pulled back from the brink, passing the budget bill (including the Canada Infrastructure Bank Bill and all the rest) by a margin of 50-33, with Conservative Senators continuing to object.
So the upper house toed the line in the end, but nevertheless passed on loud and clear the unmistakable message that, yes, they absolutely can change budget and finance bills, and don't go abusing your majority mandate by hiding important issues deep in omnibus bills.
And it is no coincidence that on the very same day, the Senate declined to pass another government bill - S-3, on taking the sexism out of the Indian Act (declined, incidentally, on the grounds that it did not go far enough) - sending the bill back to the House of Commons, where it will now languish until mid-September.

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