MDRN-12

The Special Senate Committee on Senate Modernization

Consideration of methods to make the Senate more effective within the current constitutional framework: Issue 7

22nd Meeting, November 23, 2016
with some "inked-in" comments in part relative to my essay and Brief. v.E.

Witnesses: David Docherty, President, Mount Royal University and
Bruce Hicks, Adjunct Professor, Glendon School of Public and International Affairs, York University 0

The Special Senate Committee on Senate Modernization met this day at 12 p.m. for the consideration of methods to make the Senate more effective within the current constitutional framework. 1

Senator Tom McInnis (Chair) in the chair. 2

The Chair: Honourable senators, I call this meeting of the Special Senate Committee on Senate Modernization to order. Today's meeting is in public. 3

Over the past few weeks, we have been hearing from the leadership of the different Senate caucuses and groups. In my invitation to each of them, I asked them to reflect on the following questions; the same ones were posed to each of the leaders, I should point out: Do you believe that political party caucuses have a role and a future in the Senate? Does a modern Senate need governmental representation? Does a modern Senate need an official opposition or any opposition groups? What changes do you feel are required to our rules or practices? 3-1

Today I'm pleased to welcome our next witnesses, Professor Bruce Hicks and Professor David Docherty, who will each be making brief presentations, followed by a period of questions and answers on the same general questions. 3-2

Dr. Hicks' primary research focus is on formal institutions of governance, constitutions, legislatures, courts, governments, and federalism in developed countries like Canada, the U.S., the U.K., Australia, New Zealand and Europe. More specifically, he has been researching institutional change. 3-3

Dr. Docherty is the ninth president of Mount Royal University, and the author of numerous books and articles on Canadian politics. Of particular interest to many might be his chapter in an Australian publication entitled Restraining Elective Dictatorship: The Upper House Solution, wherein Dr. Docherty explains the merits of having upper chambers in Canadian provinces. We will not let that get out. 3-4

Gentlemen, we appreciate your appearance before us today. Dr. Docherty, I invite you to begin your presentation, to be followed by Dr. Hicks. 3-5

David Docherty, President, Mount Royal University, as an individual: Thank you very much, Mr. Chair. As someone whose first academic love has been the study of Canadian assemblies, I thank you for asking me here. I admit that since moving into administration, first as a dean and then as a university president some dozen years ago, I've moved a little bit away from spending time studying my first love, Canadian legislatures and assemblies. 4

I would also qualify that by saying I am in wonderful company both today and among those academics you met and heard from in your first report. Those very intelligent individuals are no doubt on top of the literature in a way that I don't think I have been as much recently, given my role. 4-1

Thus I think my remarks are primarily observations and thoughts based more on my earlier writings and experience. I will not have a lot of detailed comments at this stage of my presentation, but I'll be brief on the details of what the committee is looking at and will try keep this more broadly focused on the Senate and how any changes must not alter what I believe are the many positive features and activities of the Red Chamber. In fact, I think this is the most critical thing we should be concerned about. 4-2

Let me begin with the following comment: This is not about the recent U.S. elections, but I think it's a trend taking place in legislatures and elections across North America. I firmly believe that the Canadian Senate is quickly becoming the last bastion of civil political discourse in North America. My concern is that as we move forward you're at a critical juncture in the evolution of the Canadian Senate, and my hope is that you don't lose that, that you remain a beacon of how bright individuals can discuss ideas with dignity and respect for each other. I really encourage you, as you move forward in your changes and looking at how to organize yourself, to keep that front and centre. I think that Canadians are looking for respect in our representative institutions, and this is a great opportunity for the Senate to display the type of respect that actually should be the hallmark of Canadian representative discussions. I would ask you to keep that in mind when you deliberate about what you're doing. 4-3

In addressing the questions the Senate asked, my perspective is on how it can do those things and how changes would impact what I believe the Senate does so well. 4-4

So, very quickly, what do I think the Senate does so well? I think it checks and, when necessary, alters legislation: its scrutiny and accountability function. You don't fine-tune legislation, but you certainly alter it and discuss it and scrutinize what the government does. 4-5

In most cases, the voice of sober second thought is more correctly the ear of the people and the voice of reason. If there were not a Senate, then this would have to be done elsewhere, and I fear it would be done far outside the light of the public eye, so I think what you are doing in that regard is very important. In many cases the Senate needs to do far more than alter legislation. Some years ago I looked at significant legislation, including the Clarity Act and the magazine tariff legislation, and I compared the House of Commons hearings to the Senate committee hearings on those matters. 4-6

What I found, though it was not necessarily remarkable to me, was that the Senate committees heard from more witnesses, spoke to the them and asked more questions and made more cross-partisan changes to the legislation in all cases than the House of Commons committees did. It was no big surprise when your clerk, Charles Robert, was far more eloquent than saying, "I told you so," but he made the case that this was not surprising to many. 4-7

I think this is important. I think it's what you do well. You represent communities, and in some cases it may be regional. You represent communities of interest and have no territorial defined interest. I have not looked at the numbers recently, but in work I did earlier it was clear that the Senate was more representative of the Canadian demographic than any elected body was, and I think that's important. Senators have a responsibility to represent the Canadian demographic both figuratively and substantively. 4-8

"The Senate was more representative of the Canadian demographic than any elected body." Compare and contrast: demography and democracy. n4-8

I think senators also have a unique opportunity to represent policy interests. As senators, you have an important platform that even royal commissions would envy. Historically, senators have had a great opportunity to use the position and resources given them to be expert policy advisers to the government and the Canadian people. From Keith Davey and his work in the print media to Senator Kirby on health care and Senator Kenny on security, senators have used their position to inform Canadians. 4-9

"Senators have used their position to inform Canadians." One would look forward to the Senate informing of Canadians and their poilicy-makers about digital technology (AT, robotics, and consequences), education, climate change and worldwide migrations, inequality and populism, etc. This calls for integrating scientific mindsets with humanity-based mindsets (social ideals). n4-9

References: Kirby report (overview), Final of six Kirby reports, Davey report. n4-9A

If you just compare for a minute the Romanow commission on health care with the Kirby report, both were excellent pieces of work, very thoughtful and helpful, but I would argue that, once completed, the royal commission did not have a platform to stay in the public mind the way the Kirby report did. That's very important, and I think we should keep it in mind. 4-10

When we look through these eyes at the challenges facing the Senate, how will changes impact the ability of the Senate to perform these tasks? 4-11

And how will, after a full year of removing cobwebs largely accrued since 1867, permit the Special Senate Committee on Senate Modernization to get on with that kind of real modernization needed this day and age? n4-11A

Do political party caucuses have a role and a future in the Senate? Putting this more simply, is the important number 2, 3 or 105? And I think that 105 is probably an unreasonable way to organize a body, but I think we have to ask what is that appropriate number? 4-12

I believe that the above numbers apply to caucuses, not party caucuses. n4-12A

In terms of doing the work mentioned above, I think the organizing number is irrelevant; 105 can do the work of those three important things I talked about just as easily as two or three can. But in terms of organizing itself, I think that number has to be smaller. 4-13

So does the modern Senate need government representation and official opposition or any opposition groups? Having said that the important number is 105, that would be difficult. I would argue that the Senate needs some caucuses, as it needs some way to officially organize itself, to staff Internal Economy and the Selection Committee, but I would suggest that it does not have to be based on the results of an election to send representatives to the lower house. It can be, but it doesn't have to be. One of the primary duties, for example, of the Governor General is to ensure there is a party in the lower house that can make the government work. Should that not be the case, the Governor General may call an election or may see if there is another party in the lower house that can make government work. 4-14

The Governor General does not turn to the Senate for that function, because that's not the Senate's role. So having an opposition or government caucus in the Senate is not as critical to performing some of those roles. 4-15

Calling ministers to answer questions in the Senate can provide accountability without a government or opposition organizational caucus. 4-16

So what should form the basis of organizing caucuses? It could be party identification. It could be a coalition of independent members. 4-17

It could be region; after all, one of the fundamental responsibilities of the Senate is to represent Canada's regions, and there would be some rationale to this. One of the consequences would be introducing intrastate federalism to Canada in a manner not dissimilar to the United States. This might be a nice counterweight to our present system of interstate federalism, with premiers representing the provinces in the national capital. 4-18

But regional caucuses could require senators to subsume ideological ties under the interests of the regions, and I don't think this is necessarily helpful. It may also spark regional debates within the Senate, and I don't think that is necessarily helpful for the pan-Canadian solutions we're looking for as a country, either. Regions are not homogenous, and caucuses might end up voting on a partisan basis within those regions. 4-19

So I'm not too sure that regional caucuses are necessarily helpful. In fact, I think that may exacerbate a bit of a problem. 4-20

It could be floating caucuses. This would require some kind of structure, or reorganizing of how resources are provided to the caucuses that are more fluid than they are stable. 4-21

Policy caucuses are also possible, but they're likely to be very diffuse and not helpful in organizing. 4-22

So what are the solutions? I will say this, senators: I'm evangelical when it comes to the role of the Senate; I'm a bit more agnostic on how you should organize yourselves. 4-23

But as the president of a university, I would say this: The Senate reminds me an awful lot of my tenured faculty, in that you get a lot of bright people in a room, and they are very hard to organize. But if you get it right with a lot of smart people, they're going to answer questions they ask themselves and they're going to do good work. 4-24

Really, other than in our two chambers, an ordinary way of doing things although more is needed: the right blend of minds/expertise to deal with any particular issue to be solved as well as skill in complex-problem solving. n4-24

So the question is how do you try to provide the right kind of structure and framework to allow people to do the work they're trying to do? I think that's what we have to keep in mind as we start to move forward, because I'm very passionate about the work you do. 4-25

I think that some organization is necessary. I think partisan organization is absolutely fine and appropriate. It may be the simplest way, but I'm not necessarily sure you need a government versus an opposition partisan organization, because as we've known from the past, the Senate has often had government parties that are in the minority and not the majority and they'll switch back and forth. I think a partisan basis and other ways to hold the government to account without a government caucus in the Senate would be a very helpful way of moving forward. 4-26

Partisanship is by its nature not objective. The focus of partisans is on personal sentiments relative to a group whereas the focus ought be on the problem to be resolved. Considerable fine-tuning is found in the presentation by Prof. Philippe Lagassé in his presentation on Dec. 14. n4-26

That's what I have to say by way of introductory remarks. I look forward to Dr. Hicks' words and a discussion afterwards. Thank you, Mr. Chair. 4-27

Bruce Hicks, Adjunct Professor, Glendon School of Public and International Affairs, York University, as an individual: Hopefully, I won't overlap too much with what my colleague has said. He, being a university administrator, has seemed to actually have been typed up, whereas I have some fast notes. I hope they'll congeal into something constructive. 5

When I was doing my masters, I had a professor of the theory of empirical research. In the very last class, he canvassed the students to see what they thought was the most overused word in political science. The general consensus, after some discussion, was "democracy." As Oxford University professor Bernard Crick puts it, this is a very promiscuous word. We use it to justify all sorts of things, whether it's majority rule, the rights of minorities or a system of government. Name a communist country that doesn't have the word "democratic" somewhere in its title. 5-1

From Wikipedia: "Empirical research is research using empirical evidence. It is a way of gaining knowledge by means of direct and indirect observation or experience. Empiricism values such research more than other kinds. Empirical evidence (the record of one's direct observations or experiences) can be analyzed quantitatively or qualitatively. Through quantifying the evidence or making sense of it in qualitative form, a researcher can answer empirical questions, which should be clearly defined and answerable with the evidence collected (usually called data). Research design varies by field and by the question being investigated. Many researchers combine qualitative and quantitative forms of analysis to better answer questions which cannot be studied in laboratory settings, particularly in the social sciences and in education. n5-1

I would say that a close second to that, at least in Canada, is "responsible government." We similarly use the term to hide a multitude of sins and to justify outcomes. 5-2

My concern is that this term becomes overused and misused. 5-3

Ultimately, responsible government was about government formation. A. V. Dicey, who was a legal scholar in the United Kingdom, and rather prolific, wrote all the main texts for law school and was therefore able to influence several generations of lawyers coming through. He felt strongly that you could splice democratic principles onto a system that had emerged in medieval times. So we see the emergence of constitutional conventions that constrained the Governor General or the Crown, in the case of England, in how decisions are made. 5-4

But ultimately, those conventions, when it comes to government, have to do with the House of Commons and they have to do with government formation. The main principle is, first and foremost, that the Prime Minister must have the confidence of the House of Commons. 5-5

Then there's also a belief that there should be a government in waiting, an official opposition that could, in theory, step in and take over should the government lose the confidence. In Canada, we've never actually switched political parties; we hold elections because prime ministers prefer to roll the die. But that is the concept behind a government in opposition in the House of Commons. 5-6

There's no justification for that structure in the upper chamber, except that it's simple. It is something that people are familiar with, whether they trained in law school and they like the adversarial approach of two sides arguing an issue, or they cut their teeth in political parties or even in the House of Commons and are familiar with those structures. For the longest time, when the two caucuses were together, it was convenient, structurally, in that they could share information when it came to legislation. 5-7

But responsible government is not centred in the upper chamber, and there is no inherent requirement that those structures exist within the chamber. 5-8

What is important are the legislative principles that Bourinot and Beauchesne point out at the very beginning of their treatises on parliamentary government. The two most important of those, I would say, are some sort of way to effect government business in an expedited fashion, while at the same time ensuring the rights of the minority in the chamber are respected. Those are the fundamental principles that should be guiding whatever structure emerges to decide who serves on what committee and how resources are allocated. 5-9

Following on that, do we need a leader of the government in the Senate? I would suggest to you that, historically, the Speaker of the Senate was always the leader of the government. Constitutionally, that individual is actually appointed on the advice of the Prime Minister. But if you go back to colonial times, the Speaker actually sat in on cabinet meetings. The Lord Chancellor had the same function with the House of Lords. It was that person who was on the government payroll and therefore had to ensure that government business was put forward before the chamber. 5-10

So you need some sort of mechanism to put legislation before the chamber, whether you do it through the Speaker; through a Government Representative, which is the new experiment that's taking place; or you simply find bill sponsors within the upper chamber who will advance legislation on behalf of the government, assuming that the rules then have, as a priority, a certain amount of time each day to transact government business, while at the same time having a small portion of time to deal with private members' bills and ensure that the interests of the minority are represented. 5-11

By extension, equally we don't need an opposition, at least an official opposition. People will oppose. That is part of our legislative history. In fact, whether we're talking about England around the civil war or we're talking colonial Canada, it was actually the lower chamber that tended to oppose the Crown in a lot of the things it wanted to do, and you had a division between the two chambers, with the lower chamber representing the people and the upper chamber representing the Crown. 5-12

There will always be some form of opposition, especially when people are appointed until age 75. I suspect this body will have no shortage of people who will want to question legislation and challenge some of the ideas being advanced by the government of the day, whatever political stripe it is. 5-13

To the broader question of political parties, I would agree with Professor Docherty that political parties provide an easy mechanism for organization. I think that's why it is so attractive. If you have the party leadership meeting either on the Internal Economy Committee or the Selection Committee, it's a fairly simple process whereby all the spoils of seats on committees and resources are decided by the party leadership. 5-14

The ugly side to that is that frequently we've seen where whips and government leaders have punished their members for failing to behave in a proper fashion, whether it's voting on legislation or just generally not being a good team player. I think of poor John Turner's office in the attic of Confederation Building because David Dingwall said he spoke out of turn. 5-15

Those are not the exceptions, and they are not necessarily the rules, but they exist where the party whips and the party leadership have used their control over resources and the agenda to punish people. That is the ugly side to it that gives me pause. 5-16

Political parties are a new phenomenon. In the United Kingdom they began to re-emerge after the Reform Act. They were mechanisms for getting people elected to the lower chamber, ways of raising money, and as the franchise got cleaned up and you didn't have rotten boroughs anymore and you had to wage proper campaigns, political parties started to emerge as central to the organizational structure, at least of the lower chamber. 5-17

If we go back to 1867, and even before that, if you go to the Conservative website or the Liberal website, they trace their history all the way back to Confederation and beyond. I don't know if it's still true, but on the Liberal website they claim to be the party of George Brown, and the Conservatives claim to be the party of Sir John A. Macdonald. 5-18

Sir John A. Macdonald would have eschewed this sort of notion. He spent most of his career rather cleverly claiming to be the head of a coalition government, whether it was the Province of Canada or after Confederation when he was the first Prime Minister, as he called himself a Liberal-Conservative. 5-19

The first people appointed to the upper chamber came from the legislative councils of the provinces. Most of them sat as Liberal-Conservatives. He promised in the Confederation debates that he would appoint with some sort of tacit respect for what the party divisions were within each of the provincial legislatures. Alexander Mackenzie, when he finally came to power, complained that he hadn't lived up to that commitment, but he at least went through the motions. 5-20

A lot of these legislative councillors served in both bodies. They served in the provincial upper chamber as well as the federal upper chamber. The Senate of Canada was able to function when there was very loose party identification, and it helped to contribute a lot to the emergence of a new nation. 5-21

I don't know that there's an inherent argument for political parties, but I'll go with Professor Docherty and say I'm not vehemently opposed to them, either. People will caucus or group along multiple lines. If you look at the United States Senate, there's a petroleum caucus, a black caucus, a women's caucus, a caucus on almost everything where people get together on issues that are of concern to them. I think that's going to be natural in some sort of body where you're discussing policy and legislation. 5-22

The idea of a regional caucus has been bandied about. I tend to respect Senator Pratte's concern that the two regions of Ontario and Quebec are problematic because they go along provincial lines, and you run the risk of the provincial government actually having undue influence over the caucus from their particular province. I don't think that's true for Atlantic senators or for the Western senators, but in the case of Ontario and Quebec I think that's true. 5-23

I wrote a month or so ago an article in the Montreal Gazette, where I raised the unique case that the reason we have 24 electoral regions in Quebec is that Alexander Galt, as a condition of giving a Canadian Senate, wanted to make sure the anglophones would be represented in the upper chamber. By definition, in the Quebec senators' caucus as a group, those anglophone voices are going to be in the minority. Are they better off perhaps caucusing issues with other senators from different regions—other minority senators, for example, like Acadians or francophone Manitobans—where they might have more in common in protecting minority language rights? 5-24

All of which leads me back again to having a large number of senators function in part as "citizen representatives" as distinct from others being "complex-problem solvers." (Ref.) Think of them as, respectively, the heart and brain of the body senatorial. n5-24

So there are other ways to do it. I'll throw this out and then we'll go to questions. There are also ways we can do this that don't require a formal structure that's put into the rules in terms of a caucus, in terms of how we divide up the spoils under that. This is going to be a transition period. Slowly the Senate is evolving. Its makeup today will not be the makeup in 10 years. It may revert depending on who is Prime Minister next, or it may continue on the trajectory of more independent senators, and we will see the demise of the Liberal caucus. 5-25

I don't think we have to solve all the problems immediately. At the same time, there are creative ways to solve problems. For example, two of the most important committees that I think most independent senators are concerned about are Internal Economy, Budgets and Administration and the Selection Committee. We could just as easily have the people voted onto those using single transferable balloting the way that the Canada West Foundation wanted the upper chamber voted on, and the way it is done in Australia, which is an electoral system that is designed to ensure different factions are represented, and have a diverse group on those two committees that in turn will select the membership of other committees and allocate resources. 5-26

We can be creative. For those of us who study electoral systems—and sadly that doesn't seem to include the House of Commons—we're fond of saying that there is no best or better electoral system and that there are as many electoral systems as there are system designers. I think there's room for creativity on how resources are allocated and how committee membership is chosen. 5-27

One of them, perhaps the easiest since everyone is familiar, is to use political parties and graft on caucuses for the independent senators. There's simplicity in that, and it fits in with a system that most people are aware of. 5-28

Equally, creative people, and there is no shortage in this chamber, can come up with all sorts of solutions, especially if we approach this as we're looking for solutions to carry over the short to intermediary time, as opposed to solving all of the Senate's problems for generations to come. 5-29

The Chair: Thank you very much, Dr. Hicks. 6

We have a lengthy list, as you can well imagine. I'll read it, and then we will start with Senator Joyal, the deputy chair of the committee. So there's Senator Joyal, Senator McCoy, Senator McIntyre, Senator Frum, Senator Tannas, Senator Tkachuk, Senator Wells, Senator Eggleton, Senator Cools and Senator Mockler. 6-1

Let me also welcome two new senators, Senator Cormier from New Brunswick, and Senator Bovey from Manitoba. 6-2

Senator Joyal: Welcome, Professors Hicks and Docherty. 7

I would like to seize upon the point that Professor Docherty made that we are in a bicameral system of government. There are two chambers, and the Supreme Court, in its ruling of April 2014, has been very clear in that. It means that each house has a specific role to perform in our democratic system. Professor Hicks mentioned the responsible government that takes place in the chamber, and we all know that through the years—and there is an abundant bibliography about this—the executive branch of government has taken hold of the chamber. 7-1

The party system over there is overpowered. The government caucus is totally under the domination of the Prime Minister. I lived it myself when I was in that place. I've been a cabinet minister and a member of Parliament, and I don't think that has subsumed through the years. On the contrary, the hold of the executive branch of government on the chamber has become stronger over the years, to the point where the role of an MP is limited. I was going to say meaningless, but I won't go that far. 7-2

The Senate certainly has a role to play to counteract that. We're talking here about the exercise of power. That's essentially what it is. In designing the power the Senate can exercise, we have to take into account how we can best use that power to keep the government accountable, generally, to Canadians. 7-3

As you stated, when legislation is adopted in the other chamber—you used the case of the Clarity Act and there are other bills we can look to in the archives—the debate on difficult legislation has happened better in the Senate than in the other place. There's a reason for that. It was the same with the exercise we had on Bill C-14. The debate in the Senate was much more comprehensive, freer, and in the end the vote was much more scattered on both sides of the chamber than it was in the government. Look how the government members voted on the bill and how the so-called independent Liberals voted on it. You'll see there's a very significant difference. 7-4

It seems to me to be very important that we keep in the Senate the capacity to hold the government to account. As you said, if you scattered the organization of the Senate over its 105 members, how can one member launch a fight against the overbearing power of the government's executive branch? It seems to me to be poetic to think along those terms. 7-5

We're dealing here with the exercise of power, and power is a confrontation of different ways of seeing a solution to a problem. It seems to me it is important to understand that traditionally the government of the day—the new government—was facing a Senate that was, in majority, represented by the party that had been defeated. As you know, the statistics in my books and in your own writing are pretty clear: For a period of time, the Senate is the real opposition to the government of the day because the Senate is in majority represented by senators who have an allegiance to the party that is the opposition, having been defeated. 7-6

It seems to me that we have to keep in mind the context of that dynamic when we want to juggle the way power is exercised in the Senate in terms of holding the government to account on its daily administration and its legislation. You can see in the legislation going through the chamber now how it is dealt with by the chamber and the way it will be dealt with in the Senate. 7-7

As you said, the value of the democratic debate in Canada is not essentially to count the number of amendments that the Senate has brought to a piece of legislation, but the in-depth study of the legislation so that everyone in Canada can see that the various aspects and implications of the legislation have been debated here. And the court, which has to interpret our Constitution and our Charter, can go back to the Debates of the Senate. My colleague Senator Baker, who is an expert on this, can tell you the court looks to the Debates of the Senate much more often than those in the House of Commons. That is essentially where the democracy is. Democracy is essentially the expression of opposition and pushing the government, in its last trenches, to reveal its true intention and understand the impact of the legislation on Canadians. That's where the health of a democracy has to be measured. 7-8

So it seems to me to be very important to never lose the fact that we have two systems, we play with two balls, and if you diminish the capacity of one ball to be able to hold the other one at the level it has committed to in order produce a result, that changes something fundamental in our democratic system. That's essentially what I wanted to put to you, because it seems to me that it's pretty fundamental in the decisions we take and how we structure our work. 7-9

Mr. Docherty: Thank you. I don't disagree with the thrust of your argument at all. I agree entirely with it. I think what's important to keep in mind is that I think we failed to recognize just how flexible and adaptable the Westminster parliamentary system is. They are much smaller, but we have two Westminster governments in Canada in two of the territories, and they don't have parties. They're elected as independents and they vote for who's going to be in cabinet, and that seems to work out fine. I don't think that's going to work in the Senate, but it is a suggestion of how adaptable Westminster systems are. 8

I don't think that changing the way you organize the Senate in terms of Internal Economy or the Selection Committee is necessarily going to impact the cross-partisan and non-ideological vote that takes place on various bills as the Senate pushes back against the wishes of a government that may have more control over its body than the Senate has over its own. 8-1

I don't think that change in the organizational structure in how the Senate works is going to necessarily negatively impact that. I think that's an important role for the Senate to play, but I do think we are a very adaptable system, and the Senate can figure out ways to organize itself to try to make sure, for example, that you don't need political parties to make sure you have policy experts on the right committees that are looking at legislation. That can be done outside of a party structure. It can be done inside of a party structure, as well. 8-2

Mr. Hicks: I would tend to agree with both the points you made. When we look at the United States, which has a very powerful Senate where individual senators are beholden to few, a lot of wheeling and dealing takes place. Also a lot of policy expertise is developed by senators who are there for a long period of time. One of the points for a chamber that has a retirement age of 75 is that you build institutional capacity and memory. 9

I would tend to pick up on the last point that Professor Docherty made about making sure you get the right people on the committees, people who are passionate. When I think of the senators who have undertaken studies, in many cases they've done it because they've had a passion for the subject matter, like Jack Marshall on veterans, for example. It's not because he was on the Defence Committee and he was bored. It's because he had an actual, genuine passion for veterans in Canada and for merchant seamen he wanted to see recognized. 9-1

When you look at some of the more interesting studies, it's because there have been individual senators who have championed that on their own and therefore were given the support either through the committee, their own staff or jerry-rigging both to do that sort of undertaking. I think that's key. I don't know if that's necessarily an artifact of party decision making, because that will often allocate committee membership as rewards and punishment as opposed to in response to an identifiable expertise. That doesn't mean they often don't get it right, but they're not necessarily putting those with the greatest legal and constitutional minds on the Constitutional Affairs Committee. Sometimes they are, and I think that's what holds the institution in good stead. 9-2

But I don't know that you can actually point to the party leadership and say that, because this leadership exists, we're able to have committees with good people on it. We have good people on them because we have good people in the Senate, and by hook or by crook, some of them have found their way onto committees they are passionate about and on which they are able to do something. 9-3

I think that's what's key. I don't see it inherent in a party system, but I do see it as essential for what Professor Docherty said at the beginning, which is that the Senate focus on what it does well. 9-4

We have this unique opportunity in Canada now where people are actually cutting the Senate some slack. They're sort of doing a wait-and-see on how the Senate is going to reorganize itself. We're not having the sort of knee-jerk media coverage that tends to come with appointments to the upper chamber that we have seen historically. 9-5

I think there's an opportunity for the Senate to go back to the sort of work that earned it a reputation among the few scholars who study the Senate at particular moments in its time. 9-6

Senator Tkachuk: As one who has been here for almost 24 years, and there are a couple others in this room who have been here longer or just as long, all those committees that you talked about that have done outstanding work—and there are many more—we're all appointed by the party system. Every one of them. I have never seen a leader try to appoint a bad person to a committee who didn't know anything. 10

In all the years I've been here, on both sides of the house, when I go into a committee meeting, I know that the people appointed have a definite interest in that committee and want to work on that committee. I know that because there's corporate history in the party; there are people who know where these people came from, what they did, what their academic standing was, what their business interests were and all the rest. When you take all that away, you've got yourself a real problem. 10-1

The Chair: Do you want to comment very briefly? 11

Mr. Hicks: I don't disagree— 12

Senator Tkachuk: I don't know what problem we're trying to solve. 13

Mr. Hicks: I just don't know that it's inherent to a party system. If we look down the hall at the House of Commons, critic posts get moved around frequently; somebody might discover they're a critic on something they had no interest in the day before. They develop some expertise on that subject because they've been tasked by the leader for that. But that puts them on a committee. 13-1

I just don't know that it's inherent in a political party. That doesn't mean there haven't been really good people in the Senate and in the Senate leadership who have ensured there are good people on the committees. 13-2

Senator Tkachuk: Sometimes people are just smart and they figure it out. 14

Mr. Hicks: Yes, but I don't see a causality between party structure and good people on a committee. 15

The Chair: We're going to have to tighten it up somewhat. We let it go a little bit. 16

Senator McCoy: I'll try not to be a witness before I ask a question. 17

What I'm appreciating about what the two of you are saying is that you're taking a functional approach. You're saying the outcome we want is a Senate that is able to scrutinize legislation and pass it, amend it and defeat it, but in all cases improve it, if necessary, and to do that with people who are dedicated and well informed. To do that, then, let's at least look at the possibilities of how we empower people to achieve that in an effective, efficient manner. Is that a restatement of your position? 17-1

I'd be interested in hearing what you might say about this, but some of us have argued that, especially in the last 15 years, I would say, because we've had only two political caucuses in the Senate, that structure has encouraged more of the behaviour that you've described some party functions can fall into—the reward-punishment dichotomy. That's as opposed to the function they can and have in the past performed brilliantly, and that is choosing good people for the right task. 17-2

So the proposition of those who have argued this have asked, "Why don't we institute at least three groups in the Senate so that tendency to fall off the wagon, if I can put it that way, is diminished? So I put that question to you: Would it help to have at least three groups in the Senate, keeping in mind that I think we're all of the same view that we need to be organized in order to do our job well? 17-3

Mr. Docherty: The reality is that you do have three groups right now. When I look at the standings on the Senate web page, I see a group of independents, Liberals and Conservatives. There are three groups at the moment. 18

The question is how does the third group effectively organize itself—what's the role of that third group and should that third group have the largest number—or whatever group should that be—and have control over the Senate? I would say "no" to that. 18-1

I want to be clear, Senator McCoy, I don't have an issue in that I'm not recommending that there not be party caucuses. The question that I was specifically answering was whether there should be a government or opposition caucus, and I'm not too sure that's necessary. That's pretty clear for me. There are other ways to keep that scrutiny function on the government. I'm not opposed to party caucuses, but I'm saying there are other alternatives as well. 18-2

Senator McCoy: That's a point of agreement between us. 19

Dr. Hicks? 19-1

Mr. Hicks: At the very least, the reality for the short term will be that the independent senators are going to organize, and I think you've been trying to do this. They will of necessity start to organize themselves just to get a slice of the pie, whether as membership on committees or resources. We see a little of that playing out in the media when the media pays attention, which it doesn't frequently do to the Senate—but we see some of the backroom discussions coming to light. 20

In the short term, the reality is that there are going to be three groups, maybe even four. Then, over time, as the ex-Liberals become ex-senators and then as the Conservative numbers dwindle, there will either be more independents because Trudeau continues to be the prime minister, or we might have a full reversal if the Conservatives came back into power. In that case, we will be looking at all the roles in a different light. 20-1

But in the short term, for simplicity's sake, the easiest way to allocate resources is to have three or four caucuses and divide them up. 20-2

As I said in my remarks, there's no shortage of ways to do this. People can be organized based on the prime minister who appointed them. We already accuse senators of being loyal to that one prime minister, right? Caucuses could be organized around that. 20-3

We've heard from several senators that regional caucuses are the solution. 20-4

There are different ways to do it. But for the short term, what seems to be emerging, if I can second-guess what you guys are doing internally, at the very least there will be three in the short term, possibly four. How the two in charge deal with the third will probably dictate whether more independent senators coalesce around the independent senators group. 20-5

Getting these new people involved is key to making the Senate work and not creating bad blood. That means keeping them busy with committee work, getting them appointed to things and taking advantage of their expertise. There has to be a mechanism to do that. 20-6

Senator McCoy: Just one more short question, just to underline and repeat what I believe you both said. You might have said it more clearly, Dr. Hicks, that there is no inherent need in the Westminster model to have a government and opposition caucus in the upper chamber. 21

Senator Tkachuk: Benign dictatorship. 22

Mr. Docherty: I think I was the one who said that. 23

Senator McIntyre: Thank you, gentlemen, for being here today and answering our questions. Obviously in the short time frame you have answered a lot of our questions. So I'll get to the point. 24

Senator Joyal made reference to the April 2014 decision of the Supreme Court, and I would like you to expand a little further on that. 24-1

Does the opinion issued by the Supreme Court in Reference re Senate Reform have an impact on political parties in the Senate? 24-2

Mr. Hicks: In the interest of full disclosure, I wrote an expert opinion for the Quebec government in its reference at the Quebec Court of Appeal. By the time it got to the Supreme Court, I was actually cited by both sides, so I'm not sure where I came down on that one. 25

I don't see that there's any limitation from that reference on how the Senate internally organizes its activities. Both chambers are masters of their own house. They set their own rules. The courts aren't even supposed to be looking at the rules and procedures within the chambers when they're considering legislation and the like. I don't see anything in that decision that would limit a hybrid of a continued government and opposition and caucuses and some sort of hybrid like that. There's nothing in the decision that would limit that. 25-1

Senator Frum: I'd like to begin by thanking you both for your very interesting presentations. 26

I think I've heard from both of you that you've said there is no need necessarily in the Senate for government and opposition caucus. What do you think of the model that is being proposed by the government leader in the Senate now, which is only to have a government caucus and no other kind of caucus, or other caucuses but no official opposition? In other words, I hear you say you don't need government or opposition, but how about government only? 26-1

Mr. Docherty: Personally, I would think that that would be problematic. 27

Senator Frum: Glad to hear it. 28

Mr. Docherty: And you as a thoughtful Senate will make those decisions about how that's organized. But I would say that you can't have simply a government caucus. If you're going to have one, you probably need both. 29

But that opposition caucus could form naturally. It could be all those members who aren't part of the government caucus can serve to unite. I'm not saying that's what's being suggested. 29-1

Senator Frum: That is exactly what's being suggested. 30

Mr. Docherty: But I'm giving my view on what should take place, then, that there would be a natural opposition that would form to the government caucus, whether that's one or two different bodies. 31

My argument is you don't necessarily need a government and an opposition caucus, but as an external observer, I would not be thrilled to see a Senate that only had a government caucus. 31-1

Senator Frum: What we're being offered now is an official government caucus of three members who are requesting million-dollar-plus budgets for themselves, for the three members in that caucus. Then they are saying they will leave it to the rest of the Senate to decide, if it chooses, to organize itself in an oppositional force or in a complementary force. That would be completely voluntary. That's the system they would like to see happen. 32

Professor Hicks, any comments from you? 32-1

Mr. Hicks: I think looking at this from a longer-term perspective that would happen. That's the history of the Westminster Parliament in London. It's the history of our colonial legislatures. People are going to coalesce and caucus because they have shared interests. So I think that will take place. 33

If the government is suggesting that their party of three is there to represent the government, full stop, I don't think they're suggesting that nobody else do anything. If I read the first report properly, it's talking about allocating resources on a per capita basis, in which case if senators wanted to get together in groups because they share an ideology or they tend to be socially conservative or fiscally conservative, they can pool their resource monies and form a well-funded caucus. If they want to continue their party ID, they can continue to do that. People are going to coalesce against a government no matter what, especially in a chamber like this. 33-1

Senator Frum: Just to be clear, the proposition is that the government would have government-level resources, not based proportionally on three senators but based on the status of being a government caucus—therefore $1 million and up. And then individual senators would come with an individual budget. And yes, they can coalesce and work together, but they will never have the power of the resources of a protected official opposition. 34

Mr. Hicks: Like I said in my statement, there isn't a need for an opposition based on the Westminster model, because government formation doesn't take place in this chamber. 35

Will an opposition emerge? Yes, because people oppose. People are independent-thinking and they're going to oppose the government on a variety of fronts. 35-1

If you look at the diverse backgrounds, there are people who are going to be for doctor-assisted suicide, people who are against. And I don't see why, irrespective of what the government would like, resource budgets can't be pooled and research bureaus created or even the Library of Parliament be tasked with starting to provide the level of research it used to years ago, like the Congressional Research Service does in the United States where it can provide adequate servicing, regardless of your political party or group. 35-2

Senator Frum: My last comment. The Westminster system is entirely based on protecting a loyal opposition. That is the Westminster system. It's not about protecting the government; it's about protecting the opposition. This is just a comment. 36

Senator Tannas: Thank you both for being here. We've heard a lot about this, and you've posited your opinions with respect to whether there needs to be organized proposers and opposers in order to generate debate. 37

When we talk about the Westminster system and the history that goes there, they're still functioning with the idea in their equivalent of a Senate, in the House of Lords, with an opposition and a government, a proposer and an opposer kind of function. 37-1

I've heard you talk about the territories. With respect to the territories, each one of them has a population of less than Medicine Hat, Alberta. I think we can maybe put them in the municipal government category. Let's go with a million people. Is there any government of a country that you could point to and say, "Now there is a shining example of no proposers and opposers and a shinny hockey game that results in success?" Could you give us examples that we can then zero in on a bit and look at? 37-2

Mr. Docherty: In jurisdictions of whatever number you want to take, political parties are a very good method of mobilizing— 38

Senator Tannas: I'm not talking about political parties. I just want to talk about opposition and proposition, the idea of organized proposers and somebody who is going to organize the opposition. Let's step aside from parties for a minute. Is there any government of a country that you can see functioning anywhere that doesn't have that kind of an organized function? If so, where, so that we could learn more about it? 39

Mr. Docherty: With all due respect, senator, the first answer would be no. Second is I'm not too sure that's relevant for the discussion we're having here, because political parties, opposition, pro-government, are ways of mobilizing public support for different initiatives. The Senate is a check on that, and it's a darn good check on that. It may or may not need parties to organize that check. 40

Senator Tannas: I didn't get an answer to my question. I'm really looking for an example where there is no one in charge of getting debate going on one side and no one on the other side. That's what we're talking about here. We just happen to be talking about it in terms of party. 41

Let's say that we decided that there would be four caucuses and eventually no parties, but there are four caucuses. Would it make sense that one of those four caucuses would be in charge of organizing? There will always be a government, right? They are not going to give that up. They have made that clear. Would there, amongst the other three, be some kind of a responsibility that would come and resources that would come to organize a debate, in your mind? If so, is there any country that you can point to that comes close to what we're talking about here? 41-1

Mr. Docherty: No, unless I'm really missing your point. I may be. With respect, if we get back to first principles, part of the principles I would have and the Senate has had is that minority caucuses are not treated unfairly in any system. That's the critical question. I'm not aware of any jurisdiction where there's no kind of organization whatsoever. So I think for the Senate, the question is would minority caucuses have the ability to be treated fairly and have the resources that are requisite to them? So when I read the first report of this committee and the recommendation to define caucuses of groups of nine, I would say that there should be minimum kinds of resources provided to those kinds of caucuses. That would be my response. I don't know if that's helpful or not. 42

Senator Tkachuk: We always had the rule to recognize groups that wanted to organize, and they fall under the Elections Act. There was never any question in the Senate, as far as I knew, that would deny the fair share of committee representation to independents. I mean, it just makes sense. 43

The reason that we have the time period of waiting for the next Parliament is that in our committee, Banking, we're in the middle of studies right now. We've been here for a year. All these new senators got appointed in that time, as I got appointed the same way. So you're not going to lift all these senators out and put new senators in in the middle of a study or the middle of a bill or the middle of a budget bill. That's not going to happen. That's why the rules are set up as they are. 43-1

But no one is denying the fact that if there is a prorogation, it's all going to be based on how many independents there are and how many Liberals, and how many Tories. That's the way it will work. 43-2

I'd like you to comment on a number of issues that were raised. It's news to me that the Senate is there to hold the government accountable. The Senate was there to ensure that the House of Commons did not overrun regional interests. That's why there is a Senate. 43-3

There may have been intellectually an idea in 1867 that that's why the $4,000, to make sure the commoners didn't go crazy, and so there was a kind of landed gentry that would look after it. But the opposition in the house is there to hold the government accountable. We're there to assist in the legislation. We're there to ensure that the legislation is proper, and we're there to study it further to make sure, as Macdonald said, that we throw it in there to let it stew around a little bit. That's why we're there. We're not there to hold the government accountable. I don't know where that came from, but I certainly don't see myself that way. 43-4

I'd like you to comment on that, because that has been talked about here. I don't know if it was the two of you or Senator Joyal. Senator Joyal talks like an academic, so I get you guys all mixed up. Could you comment, because I think we're wrong going down that path. 43-5

Mr. Docherty: We can get into the terms or the definitions, but as a check on the elected lower house, we can call that a check. We can call that sober second thought. We can call that examining legislation, part of the accountability of legislation or a government action as it moves through the legislative cycle. 44

Senator Tkachuk: That's fair enough. 45

Senator Wells: Thank you, Professor Hicks and Professor Docherty. You mentioned, Professor Hicks, the protection of the rights of the minority. I want to ask about that. 46

I've heard in other areas the majority rule, and we all understand that concept. We live under it. Then the minority be heard, and that's an important part of our function in the Senate. The minority is generally the opposition. Certainly in the Senate it is now. 46-1

You mentioned the Senate also being a check on the power. Senator Tkachuk I think agrees on that. We're not there to override or to hold anyone accountable, really. We're a check on the power, and that's why we are given the powers we have as an opposition. 46-2

Given this fundamental responsibility that we have, and part of that is the challenge function, what's your opinion of any effort there might be to change the Parliament of Canada Act to reduce the powers of any opposition in the Senate so that the government can or would be able to rule with the tyranny that majorities have? 46-3

Mr. Hicks: I think the Senate has historically showed restraint. I don't know that there's an immediate crisis that we need to point to where the Senate has overstepped what is appropriate. 47

This sort of ties into what you were raising. There haven't been that many, but the people who have written about bicameralism have tried to come up with a theory for it, to no avail. They can't agree on a common theory, whether you look at this inductively by comparing different bicameral systems, or you try it inductively by going back to the writings of Aristotle and Plato and trying to build something. 47-1

The Bryce committee, in I think it was 1916, tried to come up with an explanation for the House of Lords. They suggested that the House of Lords was there to review legislation, but they went a step further and said in those rare instances where the public has not had time to properly express its view on legislation, to delay it sufficiently so that the House of Commons is forced to face the electorate and see if the electorate is willing to give it. We saw that in the GST debate and free trade. We've seen it the few times where the Senate has actually used the powers that are there. 47-2

I'm not a big believer that you have to move to a suspensive veto or rein this in, because I don't think there is a huge history of where the Senate has overstepped. 47-3

Senator Wells: It's been done by convention and agreement. 48

Mr. Hicks: Yes, and I think most senators believe that. There are probably people in the government who are terrified by the new approach. That was the whole point of the super eight senators in section 26. When there is a complete impasse, that's when you start to think about how do we have a dispute-solving mechanism? But there isn't a permanent ditch scored between the House of Commons and the Senate yet. So I would think we are trying to fix a problem that has yet to appear. 49

Senator Wells: I would agree. Mr. Docherty? 50

Mr. Docherty: Bruce said it better than I could. 51

Senator Eggleton: If the current course were to carry on for quite a number of years, we could have, theoretically anyway, 105 independent senators. That scares some people. However, I come from the municipal level, and that's how municipalities operate. In fact, Toronto City Council is the sixth-largest governance structure in the country in terms of its budget. 52

City councils never lack for getting the pros and cons on any issue. They don't have to be organized around some sort of party system to be able to do that. They just do it. Some people might think they don't do it particularly well compared to parliaments, but I would disagree with that. 52-1

Quite aside from that, I'm wondering what your thought is of that kind of a course. A correction to that course, and one that will likely take place, is the formation of something akin to a political party—maybe not the traditional political parties. One of the arguments—and I won't mind hearing your thoughts on this—is that one of the problems with traditional parties is that, certainly when I came here, both major parties belonged to the national caucuses of their respective parties. I spent 15 years in the Liberal Party of Canada national caucus, both in the house and in the Senate, and I can tell you it is controlled by those folks on the other side. Right now, we have one party that is still part of a national caucus, and that is the Conservatives. We are no longer there. We decided to kick them out, or was it the other way around? 52-2

Anyway, I'd like your thoughts about forming new kinds of political groups based on people's common beliefs, shared values, et cetera—and maybe around an independent group that doesn't have any of those but gets together just for organization's sake. What are your thoughts about those? 52-3

Mr. Docherty: I tried to say that in my opening remarks. I don't necessarily have a problem with that at all. There will be some kind of organization; 105 is hard to organize. It's too big and difficult, so there will be some organization about it. It could be a partisan organization. It could be ideological. It could have nothing do with the parties in the lower house; that would be fine. I don't see why there needs to be that connection to the lower house. 53

To get back to Senator Frum, my comment is that I would be concerned if only one was linked to a government and not having an opposition. Other than that, it could be ideological but not partisan, for example. There could be ideological groupings. That's why I like the recommendation of nine—and it could be any number, such as 10—in the first report of Senate modernization. There would just have to be the minimum number of resources to be associated for any group that had nine, 10 or whatever, but there has to be some form of organization. For 105 to organize themselves would be a little more difficult. 53-1

Mr. Hicks: I'm mindful of the challenge of organization. 54

I would point out that 105 people are a smaller group than frequent majority caucuses in the House of Commons side, whether it's Mulroney or Chrétien. They tended to have more than that within their own political caucus. That doesn't mean they were organized in a great way, but they were able to organize themselves, elect caucus chairpersons, divide up among regional lines and do all sorts of things like that. 54-1

I think your analogy to Toronto is an interesting one. In universities, we're all familiar with the senates and the boards of governors. None of them have political parties, and yet these are deliberative bodies that can come together and address some major issues when it comes to policy and academic criteria. There does tend to be caucusing—students caucus together, admin caucus together, and it's the faculty that decide. 54-2

One of the things we like about what's developed in the United Kingdom and that exists in Australia is the crossbenchers, because now you have things not being decided by the two main parties but by these independent voices you have to court for their support. 54-3

I think there's a trend toward a little less control. Maybe I'm idealistic in that I think 104 people plus the Speaker could their act together, because they're smart people, and form structures. 54-4

I'm not opposed to some form of structure. I like the idea that there would not be a direct connection between the House of Commons' parties and the upper chamber. The whole purpose of political parties in the House of Commons is singular: It's to get elected to the House of Commons, raise money and organize workers. For decades it's annoyed me when I see senators putting a particular riding after their name as opposed to just the province, because they're appointed for a province. But because they want to fit into the political party, they also grab a riding in the House of Commons so that they can be ex officio members for policy conventions, vote and so on. I think that's a counterintuitive pull that I've never really liked. 54-5

I would think some sort of umbilical break from the people who are dictating in the House of Commons would be healthy. 54-6

But having an organizational structure—by all means, as long as we come back to what I was talking about earlier: Within that structure, there has to be an acknowledgement of the minority interests of some people who won't be part of or want to join a caucus, whether it's an independent Senate group or one of the political party caucuses. They need to also be participating in discussions, considered for committees and have their expertise drawn upon. 54-7

Senator Eggleton: The other thing that's very new is this Government Representative system in the Senate. There are three of them. I don't agree with Senator Frum that they are a caucus. They certainly don't control a lot of votes. There are only the three of them that they control. Sometimes they call themselves independent, but I wouldn't call them independent. They are there to represent the government, so we call them the G3. 55

Maybe the government should be paying their budget. They're sort of like an ambassadorial team to the Senate. Maybe the government should be paying their budget. 55-1

The Chair: Thank you, Senator Eggleton. I don't think you were looking for a response. We will move on. 56

Senator Cools: I would like to begin by thanking the witnesses for coming before us, and I certainly would like to thank you for your good scholarship and academic work over the years. I'm a great reader, as most of us know. 57

Coming to the issue of responsible government, I want to come to the question that's been raised about the notion of the Government Representative in the Senate, which is quite a novel idea. I thought perhaps we could roll back in time and look at something that the Durham report—Lord Durham—and you guys could probably teach me a little bit. Lord Durham pulled no punches in his report. He basically said clearly and very well that the reformers—they were called the reformers at the time—were nothing less than full responsible government, just as the Brits had. I believe they used the words "the image in transcript of Great Britain." 57-1

To that extent, that report remains quite a phenomenon, when you consider the results and what they led to. Canadians showed very early in their constitutional development that they wanted to move to responsible government. Now we come to the notion of responsible government. I've said before in this committee that responsible government was born of that period of time not too long after the short wars and not too long after Cromwell—but beginning with William and Mary, and the abdication of James. We all know this. 57-2

Responsible government was a landmark in constitutional development. From there on in it follows the development of British liberalism, but that's another story for another day. 57-3

The point is that what happened in that process was that the king was willing to surrender government by his own personal intervention. The exchange was—and it's a fantastic constitutional exchange—that he would govern not personally but through the agency of his ministers, who would be chosen from not one but both houses of Parliament. 57-4

I hope I'm making that clear. But responsible government means that the two houses are supposed to be led by ministers—the cabinet ministers. You cannot be a member of the government unless you are a member of the government. The only way you can be a member of the government is to be a cabinet minister. 57-5

This brings me now to the question of this new constitutional phenomenon that we have in the Senate. Remember, colleagues, the Fathers of Confederation were very clever boys and very skilled, and they sat down and knew that they had to reach agreement. And make no mistake about it. Yes, as glorious as the House of Commons is and has been, the fact of the matter is that they intended that the Senate—their emphasis was on the Senate—would last as long as Canada would last as a Confederation. This was in the back of their heads. 57-6

So fast forward now and I wonder if you have an opinion or constitutional thought or constitutional notion about it: We have this new constitutional animal, a very nice man, a very learned man, a very hard-working man—so personality and personal issues have nothing to do with it—who is called the Government Representative in the Senate. We do not know what this creature is. We know what a government leader is, because we know that responsible government means that the houses are supposed to be led by cabinet ministers. 57-7

I can make a little bit of a confession. I do not see how these new proposals are going to work. That is my own private view. I do not see how they are going to work, and I don't see anything available which is better, quite frankly, than responsible government as laid out by the Brits, as laid out in the Westminster system. I just don't understand why so many of us are busy reinventing what is already the best. 57-8

I have a lot of problems with it, but you cannot make something unless you are of it. You cannot reproduce it. In other words, a human being cannot give birth to a reptile. A reptile cannot give birth to a human being. So how can a Government Representative, whatever that means, in the Senate, make and declare business to the government when that person is not a member of the government? One has to be a member of the government to be able to say, "This is government business, this is not." 57-9

Have you given this any thought? It may be so novel that minds have not been able to really grasp it yet, but I just wonder if you've given it any thought. 57-10

Mr. Hicks: I've given it a little bit of thought. I think I said in my opening comments that for the life of me I couldn't understand why the Speaker of the Senate wasn't given the role of Government Representative because he or she is appointed by the Prime Minister, and that is a constitutional requirement. It was uncomfortable watching Senator Harder do intellectual cartwheels of arguing how he was independent but at the same time he was the Government Representative in the Senate. I don't think anyone was able to get his mind wrapped around that, including him, but certainly not the media he gave interviews to, and eventually everyone just dropped it and just accepted you need somebody to be tabling legislation. 58

To come back to what Senator Eggleton said, if they just embraced it then his budget could have come out of the Privy Council Office, as does the one for the Minister for Democratic Reform and so on. Therefore you embrace the fact that this person is unlike other independent senators instead of trying to be too clever by half. 58-1

Now, that being said, if the person's role is simply to be the facilitator of legislation and to try and convince senators on an individual basis to support that legislation and to navigate it through, there is an argument that that function needs to be provided. 58-2

I don't know that you need three people, and I think calling it a caucus is probably not fair to them because they aren't, and they're not trying to recruit people to a caucus. I refer to individuals with specific duties. 58-3

It will all come down to where the tire hits the pavement. How do you actually allocate your chamber's business in terms of who gets to move motions or who get to move time allocation? The Senate used to have very informal rules prior to the GST, when things got fairly nasty. The Conservatives never forgave the Liberals for that, and then the Liberals never forgave the Conservatives for bringing in lots of thick rules. It's in that climate of proceduralism, of which expertise has developed, that now people are trying to navigate how to go back to a friendlier time when this was—excuse the expression—a gentlemen's club where things could be done more informally. I think that's the disconnect. 58-4

The way this committee is approaching it is the way to do it, and that's to look at first principles. If you look at the debates over the British North America Act, these were brilliant treatise on responsible government and political theory. 58-5

Senator Cools: Brilliant. 59

Mr. Hicks: That's the kind of discussion we need to be have and we have the capacity to have. I think out of that then will come the institutional arrangements that people can live with as opposed to you sort of have the situation, well, simultaneously we're meeting here, but down the road or down the hallway there are also meetings taking place on how many people get added to a committee, where horse-trading is taking place. 60

I think that's the challenge that may only be solved in the short term by horse-trading, but I think what we're doing here is the sort of thing that this chamber has been known for and can only be healthy for democracy. 60-1

Senator Mockler: A statement was given by another parliamentarian, and it was said the Senate is broken and needs to be fixed. He said, "If the Senate serves as a purpose at all, it is to act as a check on the extraordinary power of the Prime Minister and his office, especially in a majority government." 62

This committee has recommended that the Senate adopt a mission and purpose statement that clearly emphasizes the Senate's independence, the independence of individual senators, its complementary role to the House of Commons and its status as a chamber of sober second thought, which you have expressed so accurately. 62-1

Do you see the current government or governments and opposition structure of the Senate as a help or a hindrance in achieving the mission that we want? 62-2

Mr. Docherty: I think historically it has worked, so it would be hard for me to say it has been a hindrance because historically it has worked. However, the reality is that the Senate is facing moving from two organized bodies to perhaps three. I'm not talking about the three individual, I'm talking about independent. And so that will change. 63

Also, I don't think the Senate is broken and needs to be fixed. I would say that the Senate is going through a period of transition and that it's a very adaptable body and will adapt to those kinds of changes in a responsible way, sticking to the kinds of principles that have governed it in the past. 63-1

Historically has the organization been a hindrance? I would say by and large no. There have been times when it has become too partisan, but overall has it been a hindrance? No, because I think the Senate has still managed to do some incredible things under that system, but that's not the reality that the Senate is facing today. 63-2

Mr. Hicks: I can't find any fault with that. I agree that the Senate has done some amazing things. There's a learning curve now, and growing pains, as you are dealing with a new group of people who are non-aligned and how you fit round pegs into square holes. But the rules are flexible, and at the end of the day I think solutions will present themselves. 64

Senator Mockler: This has to be a comment, with the indulgence of the chair, please. That quote came from Justin Trudeau in 2014 when he was interviewed in St. John's, Newfoundland. 65

Thank you for your answers. 65-1

Senator Lankin: That, of course, was not a partisan observation that was just made. I can have a little bit of humour, senator. 66

I want to make one comment. I gave notice to Senator Frum that I was going to say we look at the same things in the Senate in the development of the organization and have a very different analysis and come to a very different conclusion. That's part of the diversity of thinking and approaches on things. Because she put on the record some very strong statements about what she said was happening and what she said the position of the Government Representative was, I wanted to say I come to a different conclusion that she does. 66-1

Looking over the history of the Senate, there have been many fine moments, historically. I think the structure that has been in place has often worked very well. I'm not one who has a propensity to say partisanship has always been a problem in the Senate. I think there are some very notable examples of the executive branch of government overreaching in its relationship with the Senate in an attempt to control what's happening in the Senate. I think that has damaged the credibility of the institution in the eyes of the public. There's always a cause and a reaction, and some of the examination we're going through is a reaction to some of those examples. 66-2

Is it broken? Does it need to be fixed? Are there problems? There is a change happening, and we have to cope with that, adapt to it and determine a way forward. 66-3

One of the things that are said as a defence for keeping the structure of caucuses that have control over members, whether they're political party-based or not, is that we won't be able to have a functioning Senate that will be able to deal with government business, no matter whose business it is, in an efficient and effective way. As a new member, I've seen a lot of delays in what is happening, which doesn't seem efficient and effective to me. But it is as it has been, and maybe we can collectively deal with that and improve it. 66-4

However, I listen to people talk about the conventions and practices that the Senate has observed and respected with respect to our role as complementary to a democratically elected, responsible government, acceding at the end of the day to the wishes of the democratically elected, understanding that our role is to act as a series of checks and balances and not the initiator of all of that. I don't understand why people think that a number of independent senators would be any less committed and have less of a conviction of those conventions and practices or that it can only be brought about by the enforcement of caucus, whips and punishment for not voting the way of the group. 66-5

I wonder if you've thought about that. At the end of the day, we've seen in certain bills, for example, since I have been here, where the official opposition caucus was, perhaps, ideologically opposed to something but chose to let a vote go forward with a combination carefully crafted of those voting against and those abstaining to ensure that the majority would pass the vote through. They made a political point, but they allowed the business to go on. I don't know that it has to be done in that way, and I think that individuals can come to the same conclusion at the end of the day. I voted, at the very end, in favour of Bill C-14 even though I had problems with it, because I respected the convention and the practice. 66-6

Have you thought about that with respect to there not being organizations of people who can whip, control and discipline members? 66-7

Mr. Docherty: I think I tried to answer that earlier, so let me just say this: Some years ago, I co-authored a piece on "the success of Parliament," and what I wrote then I firmly believe in now. The success of any legislature, whether it's a university senate, the Senate of Canada or the House of Commons, is determined by whether the public, or whoever the constituents are for that group, has more respect for the legislature at the end of the term than they did at the beginning. It's not how many bills are passed, how many times there has been a whipped vote or whether budgets are crafted. It's whether the public has more respect for that body at the end of the session than it did at the beginning. 67

I would just say to all senators that you are in a transition period, and how you handle the next couple of years will dictate the success of the Senate in the public mind. Keeping the respect for each other that has historically been part of the Senate is fundamental to having a successful Senate this session. I would ask all senators to keep that as a first principle moving forward in the next few months. 67-1

Senator Stewart Olsen: Thank you. I'll try to be quick. 68

For your suggestions and your positing to work, I believe that you have to go back to the selection process, because if the selection process is flawed, then you will not have a representative system. Either senators should be elected or there should be criteria because our job is to represent the broad group of Canadians. If you set up a system whereby you select only a certain part of the populace, then I believe we're doomed to failure with the independent type of Senate. Could you comment on that, please? 68-1

Mr. Docherty: I think the selection process is important. I'm not suggesting we should do this, but in the House of Lords there are often opposition appointments that come with it. That's a way of balancing to make sure the sides don't get too far out. Is there a way in the selection process to make sure there's a diversity of opinions selected? That would be something that I would think the Senate might want to make some comment on. I think the diversity of opinion would be very helpful in demographic diversity, opinions, ideology; all those things would be helpful, and ensuring the selection does that. The U.K. tends to do it based on party. We don't have to, but there should be diversity. 69

It's well to distinguish between identity diversity and cognitive diversity, ref. n69

The Chair: Dr. Hicks, do you have any comment? 70

Mr. Hicks: Yes. In the interest of disclosure, I wrote a piece in the Ottawa Citizen, after Trudeau suggested he wanted independent senators, suggesting the process that's in place now, which is modeled on the process that Harper had created to appoint lieutenant governors. 71

If I were to go back and do some criticism of that, I would say that because of the nature of the types of people who are appointed, there tends to be a lot of similarity in socio-economic background, and the diversity is not there as much as I would have liked to see, though generally I like the way the process has worked. I just was short-sighted in basing it entirely on people's CVs and regional interests. 71-1

Senator Greene: My question will be short. It refers to Senator Harder's most recent article in Policy Options, which came out two days ago. I don't know if you've seen it. I will read the paragraph. I do not know what I think of it, but I would appreciate your views. 72

But the very existence of my office raises an interesting question: should a Senate of Independents have an equivalent to my own role—an opposition representative in the Senate? I believe this idea merits exploration and serious consideration. The institution may benefit from a counterbalance to the government representative, as a safety net for opposing political views. Perhaps, just as the prime minister appoints a government representative, the leader of Her Majesty's Loyal Opposition could appoint an opposition representative. As the government representative does not lead a whipped caucus, an opposition representative should exercise his or her power as a voice of moral suasion, rather than an instrument of top-down directives. To do so, the opposition representative would require sufficient resources to effectively communicate to senators the perspective of the opposition with respect to the government's policies. 72-1

My initial reaction was one of confusion, but my second reaction was that the Government Representative in the Senate is a creature of cabinet and the Prime Minister, whereas the opposition representative in the Senate, as outlined here, is a creature more of the House of Commons. There's a difference between the two. 72-2

I don't know if you've had enough time to think about that, but I would appreciate your views. 72-3

Mr. Docherty: Just very quickly, two sentences. My view is, leaving aside how that Government Representative is chosen and what that structure looks like for a second, you either have both or you have neither. 73

Senator Greene: The issue of whether the Government Representative is actually part of the government strikes me a little bit like apples and oranges. 74

Mr. Docherty: I would have to think about that kind of thing, but I think the principle is the same. 75

Senator Tardif: Thank you. Most of my questions have been answered, but I did want some clarification. Professor Hicks, you indicated that there is no justification for the responsible government structure in the Senate but that certain legislative principles are important. 76

Two principles that you identified: There has to be some way of expediting government business and the rights of minorities have to be respected. How would you define the term "minority" as you use it? 76-1

Mr. Hicks: I think the way it's always used in Beauchesne's Parliamentary Rules & Forms or Bourinot's Parliamentary Procedure is a legislative minority. So if you are actually keeping with some form of party or caucus structure, then it would be that the smaller parties and caucuses and the independents who don't want to sit with any caucus have their day in court, if you will, and the opportunity to express views and fully participate in the debate, a limitation on the heavy-handed tools that used to be used only in the House of Commons, like closure and time allocation, so that people will have sufficient time to examine legislation in detail and get at least their views on the record. 77

Senator Tardif: You mentioned minority caucuses. Would they all have the same status, in your opinion? 78

Mr. Hicks: No, because I also think that if somebody was sitting as a full independent and didn't want to join any caucus, they should be able to participate. That's something problematic you see in the House of Commons, that the Green Party is too small to therefore be recognized. 79

The Senate has a rule of five members, which is better than the House of Commons, which has 12. You're more likely to get participation in this chamber, but I don't see why mechanisms can't be put in place whereby people can participate fully in the debate. 79-1

Senator Tardif: So in the Westminster system, was particular significance attached to the word "minority" when it was used? 80

Mr. Hicks: Yes. In the Westminster model, when they were talking about these foundational principles, they very much were talking about a government which tended to have a majority in the House of Commons not being able to ride roughshod over the opposition. So there had to be some restraint on the government use of the rules. Over time we've seen some of that whittled away, but that was the principle, whether it's the official opposition or the third parties or the independent members. 81

There has to be some sort of mechanism. They're fairly simple to do. You put limits on the number of days' notice you have to give to exercise these rules. You have adjournment debates and things like this where you can explore more fully things that were given short shrift during the thrust of debate. It's those sorts of things that you build into the rules to protect the minority interest. 81-1

Senator Massicotte: Just a clarification, Dr. Docherty. The answer you gave to Senator Greene where you either have one or you have none, I want to make sure we understand what you're saying. On the current structure where you have three persons representing the government, you're saying because that is the case, you now must have a formal opposition named and controlled by the House of Commons colleagues or the political party? 82

Mr. Docherty: No, how that's chosen may differ. My point is that as a point of principle I would be uncomfortable having government representatives in the Senate without opposition representatives in the Senate. That's my point. 83

Senator Massicotte: Designated by who? Who defines? 84

Mr. Docherty: I think that's the difficult question that the Senate will have to grapple with. For example, because there's an opposition in the House of Commons, would it be that opposition or would it be independents? That's the question that you have to grapple with moving forward. 85

Senator Greene: Because the article says they are a creature of the official opposition in the House of Commons. 86

Mr. Docherty: I have not read the article, but based on the one section you read to me, I would have trouble with that. But that's just hearing it from you, not reading the entire article. 87

The Chair: Thank you very much. As has been mentioned, this is a delicate issue but extremely important and an issue that must be discussed. We could not have had better witnesses than the two doctors today, Dr. Hicks and Dr. Docherty. So thank you very much for that. We stand adjourned. 88

(The committee adjourned.) 89

The space below serves to put any hyperlinked targets at the top of the window

MVE

Above space serves to put hyperlinked targets at the top of the window