MDRN-15

The Special Senate Committee on Senate Modernization

Consideration of methods to make the Senate more effective within the current constitutional framework: Issue 8

25th Meeting, December 14, 2016
with some "inked-in" comments in part relative to my essay and Brief. v.E.

Witnesses: Prof. Philippe Lagassé, School of International Affairs, Carleton University, and
Prof. Andrew Heard, Political Science Department, Simon Fraser 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: We have a couple of senators who are vying to be on this committee. This is their "try-out committee," if I can put it that way. They are Senator Dean and Senator Forest. 3

We hope that you're approved for the committee. Welcome. It is an interesting committee. We look forward to your input. 3-1

Members of the committee, we are going to pass around a copy of the chart as to where we are with respect to the recommendations in Part 1 of the modernization report that was presented in the Senate. That will show you where we are with each of the individual reports. Today we are on day 15 on one and on day 14 on two others. We want to move those along today in the Senate, if we can. I will ask that these be passed around now for your information because we have been on top of this. I have written the leaders, and so on, urging them to get to it. I would rather they didn't drop off the Order Paper. 3-2

If the work of a committee struck by a motion of the Senate as a whole can just drop off the Order Paper, isn't there something wrong with the way the Senate's work is organized? n3-2

Over the last few weeks we've been hearing from the different leaderships and from the different groups and caucuses. I asked them to reflect on the following questions—and each of the leaders have been posed the same questions: 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? 3-3

Today I am pleased to welcome our first witness, Philippe Lagassé, Associate Professor, School of International Affairs, Carleton University. 3-4

Following Professor Lagassé's testimony, we will be joined by a second witness, Andrew Heard, Professor, Political Science Department, Simon Fraser University, who will be appearing before us via video conference from Victoria, British Columbia. 3-5

Dr. Philippe Lagassé is Associate Professor and the William and Jeanie Barton Chair in International Affairs at the Norman Paterson School of International Affairs, Carleton University. 3-6

Professor Lagassé is an expert on the Westminster system, in particular on the Crown, its role, its foreign affairs and military policy and its relationship with Parliament. 3-7

Professor, we appreciate your appearance before us today and we invite you to begin your presentation. 3-8

Philippe Lagassé, Associate Professor, School of International Affairs, Carleton University, as an individual: Mr. Chair, honourable senators, I thank you for inviting me to appear before you today. 4

My recent research focused on how the government in charge operates, from a contemporary perspective, and on the variations in institutional changes in Westminster-style governments. I'm also currently contributing to a study on the role and influence of legislatures in the supervision of military affairs in 15 countries. This research has enabled me to carry out field investigations in Australia, France and Belgium. 4-1

A hallmark of this research is the important role played by upper houses in ensuring government accountability. As a result, my initial remarks will refer to my research on accountability in the Westminster system, and to my work on the role played by upper houses in government accountability before parliaments. 4-2

To prepare me for this appearance, your clerk sent me specific questions. I also consulted the transcripts for the appearances of the witnesses you met with recently. I'll try to answer the questions without repeating what the other witnesses said. 4-3

The Senate is not primarily a confidence chamber. The function of expressing and withdrawing confidence belongs with the House of Commons. Although a stalemate between the government and Senate could lead to a situation where a government is untenable, as the Australian Governor General believed in 1975, the Canadian Constitution has safeguards to reduce this possibility, notably section 26 of the Constitution Act, 1867, which allows the Queen to name additional senators. 4-4

Despite not being a confidence chamber, the Senate remains a critical chamber for holding the government to account. But the way in which the Senate can do so and should differs from the House of Commons. 4-5

Whereas the House of Commons relies on a strict division between government and opposition to achieve accountability through adversarial scrutiny and questioning, the Senate has exercised its accountability function through a less categorical division between government and opposition—one where all senators, regardless of affiliation, are expected to exercise greater independent, individual judgment of government initiatives and over bills emanating from the lower house. 4-6

This has not meant that the Senate has eschewed party caucuses, only that senators are provided with greater independence from their party and caucuses and can and should exercise independently minded scrutiny. 4-7

This relates to the very essence of the Senate and the senators' responsibilities. Senators are appointed by the Crown on the advice of the Prime Minister. However, when senators are appointed, they're responsible only to the Senate, and not to the government, Crown, House of Commons or people. 4-8

On the one hand, this provides an argument in favour of retaining strong party caucuses in the Senate, since individual senators have been sanctioned by being expelled from their caucus without having to resort to punishment by the entire chamber. Caucuses have acted as a remedial tool against errant senators. As well, caucuses encourage senators to be mindful of the views and democratic mandates of their colleagues in the lower house. Political caucuses have thus served to reinforce the constitutional pre-eminence of the House of Commons. On the other hand, partisan party caucuses may not need to be an essential part of the Senate in the future, particularly if the aim is to amplify the exercise of independent individual judgments of government and lower house initiatives. Put differently, eschewing political party caucuses, or at least those tied to parties in the lower house, could ensure or encourage more independent judgments regarding the efforts of the government and lower house, insofar as individual senators would stand at a farther distance from members of Parliament, the government or opposition leadership and be less mindful of pressures or sanctions from their caucuses. 4-9

When answering the question, "Do you believe that political party caucuses have a role and a future in the Senate," then my response would be that it depends on how much independence we are seeking to foster in Parliament's upper house. As I noted, senators already exercise such judgments, but they are softly restrained and guided by partisan caucuses. Ending partisan caucuses would further dilute that restraint and guidance, including, I should add, the restraint of belonging to a group that identifies with elected members who are directly accountable to the people. Hence, I believe that this question rightly touches on the central tensions regarding the Senate's relationship with the Commons and cabinet today. 4-10

From a broader perspective, I predict that ending partisan caucuses could result in less structured and formal debates on government initiatives. The Senate could end up depending more on certain expert senators to guide their colleagues when the time comes to support or criticize the government and bills. 4-11

Specifically, my recent research suggests that this could lead the Senate to rely still more heavily on subject-matter experts found in the chamber. In effect, senators with specialized knowledge could play a larger role in shaping debates that touch on their area of expertise. While this could produce more informed debates, it may make the Senate's approach to accountability less political and more technocratic. 4-12

An advantage of this evolution would be to strengthen one of the Senate's most important features, the exercise of cautious, knowledgeable scrutiny. 4-13

But a disadvantage could be that this scrutiny would be too disparate when subject matter experts in the Senate side with the government and perhaps too intense and confrontational when these senators disagree with the government. Put simply, the result may be a Senate that is either too deferential or too obstructionist. 4-14

The former would be problematic for the Senate's accountability function, while the latter would raise concerns about the limits of the chamber's role as an appointed body. I should add that there is another possibility, of the Senate being used as a vanguard by a politically cautious government, but I will leave that for the question period. Instead, in the interests of time, I will briefly answer two other questions. 4-15

Anticipation (vanguard) is the hallmark of my essay. If not altogether quite in the context of Prof. Lagassé's remarks, that is because all the MDRN discussion up till now have been in the context of legislation whereas my essay is more concerned with an expanded investigative role of the Senate. n4-15

First, does a modern Senate need governmental representation? Yes, I believe that there should be a Government Representative in the Senate. I further believe that the Government Representative should be a member of cabinet, with organizational support from the Privy Council Office. 4-16

How about a Senate representative in the Commons and/or in the Cabinet? Quoting from my essay's chapter "Interaction with the Commons": "Our constitution demands that new legislation be passed by both Houses, the Commons and the Senate, even though the passing back and forth of bills consumes time. One time saver may be found by informing as much as possible members of Parliament before they deliberate an issue. This process may be further sped up by having some form of Senate representation (read: think tank representation) present during some of the ongoing discussions in Parliamentary committees and on the Commons' floor, possibly with a right to alert MPs to vital points they may have overlooked or to avoid bones of contention between the two chambers. And by arriving at a culture of debating issues efficiently." n4-16

My reasoning is simple: The Government Representative should be privy to the deliberations of cabinet, be on par with departmental ministers and receive institutional support from the executive in dispatching their duties. 4-17

I'll repeat a comment I inserted in the MDRN committee's session with Senator Day: "I am under the impression, rightly or wrongly, that Senator Harder, along with the other two members of the "G3," would/should serve as a conduit—a rapporteur—between the Executive and the Senate rather than as government representative. As for elucidating or pushing a government bill, I understand that such would be up to a Minister invited to the Senate or a Senate committee for that purpose." (Ref.) n4-17

Second, does a modern Senate need an official opposition or any opposition groups? No, the Senate does not need an official opposition, but the absence of any opposition groups would be detrimental to the chamber's accountability function. 4-18

To that end, I would argue that having senators organize along broad ideological or philosophical lines would be especially worthwhile in the absence of partisan caucuses tied to the Commons. Equally important, stating that the Senate does not need an official opposition does not imply that the chamber should not have one. The continued existence of an official opposition would act as a counter balance to the Government Representative and thereby preserve the institutionalized adversarial scrutiny within the upper house, even if most senators serve as independents. I thank you for your time and look forward to your questions. 4-19

Suppose we were to have senators as convenors, each philosophically aligned with a party represented in the Commons. Those convenors would have lists of philosophically like-minded senators to call on. (Or senators known to be like-minded on a some specific issue.) The convenor of the second largest party in the Commons might be given some priority speaking right during Senate debates, etc. I deliberately used the word "convenor" instead of "leader." n4-19

The Chair: Thank you very much. We will start with the Deputy Chair of the Committee, Senator Joyal. 5

Senator Joyal: Welcome, Mr. Lagassé. 6

I first want to ask you about your last point regarding the lack of a structure to organize debates in the Senate. If it's not a political body that serves as the opposition and that is responsible for ensuring substantive debates on bills each day, then we must rely on senators who, given their considerable experience in relation to others regarding certain issues, may feel obligated to play this role. 6-1

However, they aren't obligated to assume this responsibility. They have only a moral obligation to challenge the government regarding its bills. In these cases, we must rely on the individual goodwill of a senator, who could have a professional interest in the subject of the bill in question, as opposed to a political body organized to lead the opposition that has the institutional responsibility to organize and lead the debate. 6-2

Senators who aren't part of the opposition would still have a role to play. Sometimes, their role may be even more effective than the opposition's role. However, the fact remains that, to guarantee a substantive debate will be held for each bill, there must be an opposition. Each day, when the Senate opens the debate, that opposition is responsible for really pushing the government when it comes to analyzing and understanding the bill. 6-3

It looks to me that Senator Joyal's comments so far go well together with my previous "inked-in" comment. :-) n6-3

The text of the Constitution doesn't contain a constitutional guarantee. However, the opening clause of the Constitution refers to a constitution that is similar in principle to the constitution of the Parliament of Westminster, namely, a government and its counterweight. As a result, the government in charge must justify the legislative proposal or legislative debate it introduces in the House. This seems inherent to the smooth running and guarantee of democracy. In the end, the democratic debate is as good as the opposition is effective in encouraging the government to state and justify the reasons a bill should be passed in its current form. It seems that the democratic guarantee lies in the a form of structured opposition that, in some way, is integral to the Westminster structure as we have known it for 150 years in our parliamentary institution. 6-4

Mr. Lagassé: I agree with these main points based on the other houses influenced by the development of the Westminster system, which includes an institutionalized opposition. I think we're focused on this point, which is the idea of institutionalizing an opposition role in the upper house. 7

That said, what type of development could we find in the Senate? As you said, one part of my research shows that, from a political standpoint, the lack of an institutionalized opposition leads to greater dependence on the expertise of individual members, which creates two risks or two different ways of working. 7-1

In one case, we end up depending more on individuals and experts in the Senate to take a position and to organize their colleagues and lead an opposition. However, if these experts agree with the government, where does this lead the opposition? Is there a stronger opposition? Or, on the contrary, is there a greater desire to pass bills or to go even further than the government by enabling it to take more extensive steps? 7-2

The opposition's role may be lost or limited. It's a risk, and it should be noted. On the other hand, it could also result in a deeper and more technocratic opposition that aligns itself more with the knowledge of an expert rather than the knowledge of a partisan. From an institutional standpoint, the Westminster tradition is more based on the idea of generalist partisan politicians who question their philosophical opponents. 7-3

I agree with you. There must be a compromise and an exchange between the two visions. 7-4

Senator Massicotte: Thank you for being here, Mr. Lagassé. It's a very interesting subject. There are arguments in favour of a politicized or partisan caucus, as you said. However, when we look at the advantages of avoiding erroneous or exaggerated opinions, this benefit can be found in a non-partisan caucus. 8

As a senator, I'm concerned about our main mission, the sober second thought. When a vote is held, I must rationally review the facts and consequences of my action. I've noticed something amusing. A psychology of peer pressure and group influence exists, even among independent senators. However, we don't discuss our vote, because that would violate the rules. Regardless, I've noticed that, for the past two days, all the independent senators in the Senate have been voting the same way. Does peer pressure or group psychology influence the vote? That's difficult to determine based on statistics. Are we actually providing sober second thought, independently of our thoughts, given this result? The caucus further undermines this process, so how do we address this problem? 8-1

Those effects of psychological ecology are likely to be different among senators steeped in a discipline (experts, say). It is the discipline, typified by the scentific mode of thinking, that exerts a substitute for peer-pressure. Which brings us back to cognitive diversity (largely) in contrast to identity diversity. n8-1

Mr. Lagassé: Yes, I completely agree. In principle, a senator's responsibility is to independently examine House of Commons bills and initiatives. The caucus's mission is to form the opinion and place some level of social pressure on the senators to obtain results. 9

Let's ask ourselves about the future of a Senate without a caucus. Do we want a Senate in which members no longer feel this pressure? The link made a few years ago between the partisan caucus and the members of the House is another way to place pressure on the senators and remind them of the ministers' opinions and their leader's perspectives in the House of Commons. This also strengthens the convention of the pre-eminence of the House of Commons. 9-1

It's true that the lack of caucuses would reduce this psychological pressure. We must be aware of this. 9-2

Senator Massicotte: We're all human. If a group of people is mandated to contradict the government and identify its difficulties, we know that it's their job and that their work doesn't necessarily reflect their personal opinion. When the conservatives put forward their arguments regarding certain bills, I thought it was normal for them to always be opposed, since they wanted to embarrass the government. This lowers their credibility, because we know that it's their job. It's unfortunate, because their opinions would have a great deal of merit. 10

Mr. Lagassé: This raises a question. Should there be an official opposition? That's something to debate. As an alternative, could a single individual organize the debates with the government's representative, to avoid this issue? I agree with you about the principle of partisanship in the upper house, which should be less present than in the House of Commons. 11

We should encourage a certain level of independence, even among senators in the opposition, which would provide for a better debate. There's a division of duties between the two houses. If the official opposition or the caucuses create a situation where expertise is reduced in the debates, it's not beneficial. We want to strengthen your role as an independent entity within Parliament. 11-1

Senator Tkachuk: Thank you for that presentation. I believe everyone wants to see a more independent Senate, but we're having an argument and a debate here based on a number of false premises. 12

Lacking political party membership does not make you independent. That's my main argument. What it does is just say that you've never joined a political party, but that doesn't mean you don't have a brain. You have beliefs, ideology, values, and all of those things make up a human being. 12-1

Senator Joyal: And you have voted in at least eleven federal elections. 13

Senator Tkachuk: Exactly. The Prime Minister says he wants a more independent Senate, but if he appoints people who all have the same values, who cares if they have a political membership? They will all vote the same way. 14

To me, it's a cover that the Prime Minister is using to show that he's appointing a more independent caucus. I saw it yesterday. You can't have three votes and everyone vote exactly the same. 14-1

It would be a more independent caucus if we knew that the Prime Minister would appoint an equal number of Conservatives, Liberals and NDP. What it would do is give confidence to the people there that their role would not be diminished with each government change. In other words, I would be more independent if I knew that when I left, there would be another Conservative. 14-2

I know it sounds weird, but I think that's the way we'd all be. I want to make sure there is a Conservative voice in the chamber, so I may be more extreme sometimes than I need to be, only because I know when I leave, there would be a Liberal appointed. 14-3

It is to be hoped that Sentor Tkachuk's argument does not get lost! The idea expressed here may be hard to swallow by a Prime Minister from a political party, but he/she should be honour-bound by what the Senator just suggested. And yet not relegate cognitive expertise to some back-burner n14-3

Senator Massicotte: An independent Liberal. 15

Senator Tkachuk: Not necessarily. 16

I don't know how you feel about that, but it seems to me that what we have now is a process that will continue. It depends on how long they stay in power. If they stay in power three more years, we'll kick them out, and there will be Tories appointed who will go the same way. It won't be any different. 16-1

There has to be a more symbolic and different change to make us more independent, and to me, it depends on having partisanship, not not having partisanship. 16-2

Mr. Lagassé: I agree with the general thrust of your comment. 17

Senator Tkachuk: You don't have to get into the party politics. That's my job. 18

Mr. Lagassé: I won't make any particular comments about individuals that have been nominated. What I will say is, as I noted at the end of my comments, I would be uncomfortable personally with an upper house composed entirely of loose fish. I do think it would be advantageous to have broad philosophical divisions within the upper chamber, if only to ensure that different visions of the Canadian state and of the polity are represented. 19

That then behooves Prime Ministers—current or future holders of that office—to attempt to advise the appointment of individuals who would fit both those philosophical blocs, or perhaps a third philosophical bloc. I do think that's quite important, to be honest. I would be uncomfortable if I saw a Senate composed primarily of a very uniform philosophical perspective. 19-1

Now, it is early days in the process, and it may be that further tweaking of the new advisory body and how nominations are made may rectify that situation. I would hope that it would, just to ensure that everybody is satisfied that along broad philosophical lines the Senate has a good representation of different points of view. 19-2

Again, it may be that over time we're going to see those different points of view emerge; maybe the last week is not representative, it's hard to say. But to reinforce your point, I would feel more comfortable personally knowing that senators are organized along these broad philosophical lines, if only to reassure outside observers that there is a debate that's actually being conducted along these different philosophical perspectives, even if they're not partisan. 19-3

Senator Tannas: Thank you. Part of what you just said, I think, has answered my question more or less, but I'd like you to just focus on the emerging trend that we have right now. 20

We've got partisan groups and we have non-partisan groups within the Senate. We've now found ways through compromise, et cetera, and I think we'll formalize over the next little while, with the organization and funding of those groups for administrative purposes, et cetera, research dollars and proportionality on committees. Truly in a very short period of time, it's a spectacular move for any institution, let alone the Senate of Canada. 20-1

If we look out over the future and see where this goes, I think you could say that unless there is a rush to somehow blow up what we've got further, in terms of, now, an attack on anybody that belongs to a partisan political party, and if we just kind of have the status quo here, do you not think we're actually working into a pretty interesting hybrid of a philosophical perfection over here and the last 30 years of the tyranny of partisanship? 20-2

If we don't do anything dumb and we just kind of adapt here for the next little while, are you happy? That's number one. 20-3

Number two, you didn't mention one of the things a number of senators talked about; Senator Pratte, particularly, I think. In the absence of this modulating influence of a political party caucus, where things like the national interest get talked about, there are people from all parts and they understand because they see a window into government where there are a lot of compromises. A lot of national interest gets talked about and fought about in legislation. 20-4

Could you see the reflex then becoming regional? How dysfunctional do you think it would be if we all retreated to our provincial interests? I think of the facts that we can't even talk about constitutional change and we can't even trade efficiently between provincial boundaries over the most ridiculous obstacles. 20-5

Is there a case to be made for the political activity and political caucuses on that view of national perspective and also not retreating to provincial lines? 20-6

Mr. Lagassé: Thank you. I'll start with that last point first. 21

I would strongly caution against moving the Senate towards a regional caucus model. The division of powers within the Canadian Constitution is already such that you would not want to replicate or reinforce the constraints that exist upon the federal power, in my view. The provinces are there and they have quasi-sovereignty via their provincial Crowns. They are, by some accounts, effectively equal to the federal government. They are not, in any sense, shrieking violence [sic: shrinking violets] about their interests. We do not need to reinforce that power within the federal Parliament of Canada, in my view. The federal Parliament of Canada is there to look towards the national public interest. 21-1

I appreciate the view that the Senate was originally, according to some perspectives, meant to offer that regional view, but we need to bear in mind that when that was put together as a philosophy, the Confederation of Canada envisaged a much stronger federal government than currently developed. One has to bear in mind that historical perspective, which ultimately was then undone by the judicial committee of the Privy Council. It's only when you appreciate that historical evolution that you can understand why you would not want to go back to that particular type of senatorial role. 21-2

Would everything be fine if you move forward as you are? I'll explain my bias when I study institutions: I study institutions as power distributing mechanisms, and therefore, when I study institutions and when I look at institutional change, the first questions I ask are: How are these changes open to manipulation? How are they open to actors being able to achieve their ends in other ways through clandestine measures? I worry that institutional changes that are not clear and not based on first principles open themselves to far greater manipulation by various actors within the system. 21-3

When asking the question, "Should we just muddle along?" I would hope that there would be greater guidance along this, to be aware of what the consequences of some of these changes might be, so that at least some baseline considerations are established about what's acceptable, what's not acceptable and what ends we want to achieve. 21-4

In particular, what concerns me the most is that a lot of parliamentary reform in this country over the past 10 years has been cloaked in a veil of greater legislative involvement in certain decisions, when in reality it has largely been executive initiated and executive-benefiting. Therefore, I would caution against further reform that effectively enables the executive under the guise of giving itself the cover of parliamentary sanction. 21-5

I would really say focus first and foremost on the accountability function of the Senate as your main principle, and then after that see where that leads you, as opposed to seeing the Senate as potentially opening itself up to an executive manipulating it for its own ends. 21-6

Senator Eggleton: When we discuss the evolution of the Senate as it's currently happening, we talk about different models. Invariably a question comes up: "Is that model true to the Westminster system?" 22

We are definitely moving in a different space now. In the last Parliament, we had something more that we understood to be the traditional Westminster system: government bench and opposition bench. In the early stages, both of the major parties—two parties, essentially, and a small number of independents—were part of their national caucuses with the MPs, until, of course, the Liberals were removed. That changed the dynamic starting at that point, but we still operate as an opposition party. That was the traditional way we've operated. 22-1

My understanding is that other upper chambers in what is generally called the Westminster system have a lot of variations on this. Australia has an elected one and I think New Zealand got rid of theirs. There are variations all over. 22-2

Even the mother of parliaments of the Westminster system has a different system than we do. They have people appointed in parties in government and opposition, plus they have the cross-benchers, which is the second largest group. The Independent Senators Group strikes me as similar to the cross-benchers in the U.K. 22-3

So there are all of these different chambers and yet they're all still called part of the Westminster system. 22-4

What are the basic tenets of a Westminster system? Also, when is a Westminster system not a Westminster system anymore? 22-5

Mr. Lagassé: That's a very good question. I would encourage the committee to look at a very good book edited by R.A.W. Rhodes, John Wanna and Patrick Weller called Comparing Westminster. One of the key points they make is that Westminster is not a system so much as a set of principles that tend to float around. That allows for a great deal of variety between the various states that we call Westminster. Some states that don't look like Westminster in a formal sense look a lot like Westminster. Belgium is a good example: a parliament that, effectively, was influenced by these principles. 23

I've gotten into quite a few debates about this very question. When we read that preamble of a "constitution similar in principle to the United Kingdom," how do we interpret that in the context of the Senate? My answer is that when it comes to the senatorial function, we are primarily discussing the accountability function of sober second thought more so than the adversarial relationship, per se, because we have that function in the House of Commons and because it is not a confidence chamber. 23-1

So fundamentally, when we discuss upper houses in the Westminster tradition, my view is that it is a body that is meant to act as a check within conventional boundaries on the work of the executive and the lower house. Even here, this differs with Australia as an exception. 23-2

It is also within a Westminster system, however, to emphasize structured or institutionalized opposition, but one should not necessarily feel that is an undeniable constraint. You have the liberty to move away from that if you so choose and still call it Westminster. The question is: Do you still feel that model is essential to your work? Does it enable your work? 23-3

The discussion we've had thus far seems to indicate there are good reasons why one would want to continue with that. A Westminster context provides this institutionalized challenge function. If you are to have sober second thought, even if individual senators bring their own judgment to bear, you also want to ensure that in any context, there's still somebody whose job it is to raise objections and organize objection, if need be. Whether that be along partisan or philosophical lines, I would hope that we would still see some remnants of that. 23-4

Senator Eggleton: When you look at the Westminster system in its total context, there are three basic components: the lower chamber, the upper chamber, the monarchy. Those are the three entities. The confidence chamber is the House of Commons, and that gives, I would think, more latitude for an upper chamber along the lines in the countries I mentioned. 24

Mr. Lagassé: Right, which is why it's interesting to look at a country like New Zealand. They are without an upper chamber and yet are still Westminster. Similarly, our provinces lack upper chambers. 25

Dare one say, has that necessarily led them to have better policies? I would argue against that. I would argue that, at least at a federal level, the existence of the Senate has been largely beneficial. 25-1

I would anchor the discussion more in Canada's style of Westminster than Westminster in general. 25-2

Senator Eggleton: Good point. 26

You mentioned that a government presence in the Senate, you feel, is valuable, but you were "on the other hand/on the other hand" when it came to opposition. The government presence currently in the Senate is without caucus. I call them the G3, the "government three." There are three of them and they have no caucus, but they do represent the government. 26-1

Should we have an equivalent on the other side of the chamber called the O3, the "opposition three"? Again, it would be without an official opposition caucus but we'd have the Leader of the Opposition in the House of Commons appoint three senators to be the opposition three, just as the government has appointed three on their side. Would that work? 26-2

Mr. Lagassé: As a baseline minimum, that would be something one would want to embrace. At the very least, if there is a Government Representative in the Senate, there should be the equivalent, absolutely, without necessarily binding the rest of the chamber. 27

Going back over my previous comments, My preference tends toward offsetting the "partisan aspect" of the G3 with Senate representation in the Commons, see above and the "adversarial aspect" with the "convenor device" I fashioned elsewhere above. (I am also holding out still the idea of a "two-way" rapporteur belonging to neither the Commons or the Senate). n27

The Chair: Senators, we're going to be crunched for time. In 15 minutes, our witness must leave—at 1 o'clock—and we have Professor Andrew Heard standing by. Please tighten it up, if you will. We may not get to a second round, but I hope we can if you are brief. 28

Senator Stewart Olsen: It's a very interesting discussion, which is leading me more and more to the thought that perhaps this committee shouldn't be functioning at all. We all have a vested interest in this, and we all have come to it with our thoughts and our biases. 29

I have two questions. First, would you not think that perhaps an outside independent body should be looking at this and making recommendations? They take away all of the people who have been here for years; new people who are just coming in; the appointment system, which is seriously flawed, goes out the door. Someone else can maybe have a look at it. In this whole discussion, we've never talked about the people we serve, the people who pay our salaries. We're naval gazing. It's a lovely conversation in a café or something, but I don't think we're actually going anywhere because of our biases and how we are. 29-1

I'm wondering what you think of a third party to look at all of this rather than us doing it ourselves? 29-2

Mr. Lagassé: The first question would be: Who would be appointing them? What would be their terms of reference? 30

Senator Stewart Olsen: It's the same thing with the points with senators. You can go back and look at that, too. 31

Mr. Lagassé: I would simply say that, based on other areas where this has happened—I think back, for instance, the Senate report on various things—there are equally vested interests outside of this body in terms of how they see the vision of the upper house. 32

My only caution would be to say that I don't think you're going to find experts who are without interest in terms of how they see Canada's political institutions. I would only point to electoral reform as a good demonstration of just how divided opinion can be on these kinds of things. 32-1

In an ideal world, if somebody could authoritatively write on the platonic ideal of the Canadian Senate, perhaps, but I don't think one would be able to find such a person with ease. 32-2

The other concern I would have is, as with many reports, they are completed, there's a nice technical briefing at the press gallery, and they go on the shelf and nobody looks at them again. The advantage of having this body look at it is that you are those who are expected to actually bring this about; it concerns you. So, yes, you have an interest, but you also have an interest to bring about the changes you're recommending. There are two sides to it. 32-3

In terms of the larger question of whether outside opinions should be brought in, I would hope that greater work was done to commission studies looking at the various options, if that were a possibility, simply to get these points of view to go beyond the "naval gazing." You might consider comparative studies to see to what extent different models that exist in the world might inspire some of the reforms being seen here and doing that in a more systematic way. 32-4

Senator Stewart Olsen: You realize in your answer to me you almost debunked your suggestion of the independent senators sitting around and making the decisions because you acknowledge the biases of everyone. 33

I wonder about the organization and how you manage to move forward with everyone being independent or not aligned. I just think we're swimming in a canal and we don't know where the sides are or really anything is with this. Maybe, just maybe, the way we've been muddling along with an opposition and with the government, the opposition can consist of whatever—Liberals, New Democrats, Conservatives—and might just form a basis for a workable Senate with reforms that we can contemplate in a more practical measure. 33-1

Mr. Lagassé: To seize on your comment, certainly when we look at reforms of the House of Lords, it is not beyond the realm of possibility to have two partisan caucuses along with cross-benchers, a tripartite system. That is a possibility and one shouldn't ignore it. 34

In terms of the definition of "independent," I take independent to be non-partisan. I don't take it to be non-interested. There are differences there in the sense that one can leave aside partisan affiliation, but one will never abandon interests and perspectives and points of view. I don't think anyone will pretend that people who are named here who are leaders in their fields, as was said earlier, lack any kind of grey matter. They simply, to use the British term, may be more prone to crossing benches. That's a different type of perspective than the idea of independence as being totally disinterested. I really don't think we should embrace that vision. That doesn't exist. 34-1

Senator Stewart Olsen: I know, and I didn't mean to imply disinterest. I just meant that we seem to be going along a road where we don't quite know the end. 35

Mr. Lagassé: I agree there. 36

Senator Stewart Olsen: Thank you. I realize I'm taking up time. 37

The Chair: That is exactly why we're having this meeting and discussion, to find it. We will, as we've done in part one, forge a consensus on this particular topic. 38

Senator Forest: Thank you for being here. It's the first time I'm attending this meeting, and I'm pleased to be sharing my view. I have just been appointed to the Senate. I don't consider myself a liberal senator, but I have liberal values. However, I'm not affiliated with any political party. Regarding the notions of independence, I vote according to my values, convictions and experiences. I don't need to follow a party line. 39

I'm impressed with the quality of the debates in the upper house, even though the contributions are sometimes long. Beyond that, these substantive reflections are unknown to the public. When I was contacted, I did my research. However, I didn't know how important the Senate could be. 39-1

When we look at the Senate's development, we see that a new model is trying to emerge from the beaten path. For example, based on the affiliated caucus dynamic, an independent senator like me, who wants to say intelligent things—because many issues can be raised beyond simply bills—relies on support and the sharing of information. Independent senators, without identifying positions, can share their ideas. This creates a reflection model that encourages people to make decisions without following a party line and that respects each person's convictions. 39-2

If there are three representatives of the government, could there be an opposition model? Organizing the debate properly and creating a favourable environment that really pushes the government is a concern. If the Senate is a chamber of sober second thought without partisan influence, we must create an environment that encourages the review of major issues raised in the other location. 39-3

From this perspective, the debate on Bill C-29 shows the importance of a Senate that has a non-partisan approach and that amends a bill that I think was harmful to all Canadians. 39-4

We need to know how to create a counterweight with three groups of representatives in relation to the opposition, in order to help establish an environment that encourages substantive reflections by members and ministers who face an election deadline, which creates a constant sense of urgency. This completely changes the political landscape. We don't need to please the voters we may meet at the corner store or bingo on Friday night. This distance encourages a much deeper reflection on the issues. 39-5

Mr. Lagassé: The only comment I want to add is that it would be important to look at the work of my colleague, Jean-François Godbout, who works at the Université de Montréal. He recently published a document on the development of the parties and votes within the Senate since Confederation. 40

If we're looking for lessons on how to work, it's a good idea to examine the history of the Senate of Canada to see how the institution has organized itself over the decades. It would be worthwhile to go back to the period where the Senate started voting consistently along more partisan lines, which may help us learn some lessons. 40-1

If you have the opportunity, it would be important to look at the work of Jean-François Godbout, whose study of the Senate's organization according to partisan lines should appear soon with the Canadian Study of Parliament Group. 40-2

Senator Forest: Thank you. 41

Senator Dupuis: Thank you for being here today. My question concerns the distinction Senator Joyal made earlier between institutional responsibility and individual responsibility, and whether it depends on the goodwill of each independent senator. 42

Did you say that the institutional responsibility to ensure an opposition and a substantive debate on bills may or may not be fulfilled, regardless of political affiliation? In other words, currently a given political party is in opposition. However, could the Senate still have this institutional responsibility but be structured differently? 42-1

Mr. Lagassé: Nothing is preventing the Senate from organizing itself differently. We must ask ourselves the following question. Should the Senate be more dependent on experts within the Senate to organize opposition to government or House bills? Are we depending on certain experts in the Senate to demonstrate goodwill and organize their colleagues to show opposition or to criticize bills? 43

This carries a certain risk. We must be aware of the risk that, if the experts in both houses are in favour of a bill, the Senate's role may be compromised or called into question, because we depend on the opinion of experts who support this bill. Is an organized opposition missing a key component? If the Senate is too dependent on the experts in the House in certain debates, it may be less effective in terms of responsibility. 43-1

Senator Dupuis: If I understand correctly, the institutional responsibility to ensure a substantive debate as part of the study of a bill by means of the opposition does not depend exclusively on the possibility of a political party embodying the official opposition in the lower house. 44

Mr. Lagassé: I agree that other ways of working exist. However, we want to ensure that, basically, we have an institution in which the role of senators is to question the government and executive. 45

The Chair: Senator McCoy. 46

Senator McCoy: I apologize for being late to the committee. I was caught up in another committee. I am very impressed by the conversations around the table and your contributions, so thank you for coming. 47

Have we developed appropriate performance indicators so that we know what independence looks like? We tend to be a little vague on that. Sometimes we say, "Well, they all voted the same and that means they're not independent." Sometimes we say, "There aren't enough amendments so that's not independent." I wonder if we should be perhaps pushing intellectual rigour on that topic a little further. 47-1

In the last six months, I have seen unanimous votes in the Senate of Canada. Does that mean that we're independent enough? Even though several points of view all came together to share an opinion on a certain bill or a motion, lately I've seen a divide on three votes, as someone said earlier, on budget bills. Two of the votes encountered the question of whether the Senate should impose its will on the elected house. Other votes on the amendment were unanimous or almost unanimous, however. With Bill C-14, I saw a series of amendments brought from all corners of the Senate and I saw everyone voting every which way and it finally coming down to one of two votes. In the end, you come down to one of two votes, namely, either "yea" or "nay." However, that doesn't reflect the entire scope of perspective that you've sorted through and come to some final opinion on—plus an abstention. 47-2

What is your view—and perhaps you have some guidance for us on it—on performance indicators for independence? 47-3

Mr. Lagassé: I would echo your view that votes themselves, particularly when they pertain to budget bills, are not necessarily the best indicator of independence. It would be worthwhile looking at the work that the Constitution Unit in the United Kingdom has done on the role and influence of the Westminster Parliament. Under Professor Meg Russell, that unit has looked at the entire literature that exists about the so-called "impotence of the Westminster Parliament" part and said the problem is what we're measuring. She looked at all of the different factors. 48

When you look at influence, committee work and various other measures of influence that you seek to tease out in looking at the influence of a legislature, you discover that individual members and lords exercise far greater influence than we might presume if you look at other informal or indirect means of influence. I think that touches a bit on your question of indirect means of exercising independence. There may be these measures that are teased out in the latest and newest literature on Westminster parliaments that could guide you in asking, "How do we actually measure these things?" 48-1

Senator McCoy: I had a conversation with her. Perhaps we can encourage that conversation to involve others here in Canada. 49

Senator Cools: Thank you very much, professor. As always, I thank you for coming before us. My question is relatively simple, I think. I'm seeking your opinion on one particular issue. 50

Traditionally, the Leader of the Government in the Senate has always been a member of the government, a minister of the Crown. However, the current government leader is not. I have always understood, as most senators until very recently have always understood, that only a minister of the Crown or member of the government can declare in the Senate what government business is. This, to my mind, is a unique animal because a horse can't give birth to a human being and human beings don't give birth to mules. 50-1

So the only person who can declare what the government wants and what is the government business must be a member of the cabinet. I am very concerned about this novelty that we have been—I wouldn't say compelled—involved in. As you know, these are systems that use precedents, practices and customs. They're not very tolerant of novelty. They want to look to precedents. 50-2

Do you have any opinions on that? 50-3

Mr. Lagassé: I do. I am of the view that the Government Representative should be a minister of the Crown, should be part of cabinet and be privy to cabinet deliberations and to cabinet confidences. These are essential features to my mind, if only because the Government Representative should have a full understanding, when appropriate, of what the government's position is and what the deliberations of government were. 51

I respect that we are now in an intermediary phase, but I am of the view— 51-1

Senator Cools: It's still wrong. 52

Mr. Lagassé: —that it is more effective to have the Government Representative having a better or a fuller understanding of what government policy is, not merely through interactions with the party leadership of the executive. 53

Senator Cools: I thank you very much for that opinion because even the term "Government Representative" is not really appropriate. 54

What the government must give to the Senate are members of the government. We're not a foreign mission. Even when ministers are members of the Senate they do not represent the government. They're members of the government but they represent the Queen. It is Her Majesty's government. Many Canadians are forgetting that Her Majesty in this country is the head of state, the head of government and the head of Parliament. I find some of this a bit unsettling, especially the overlooked notion that responsible government demands and agreed that the King would no longer rule or govern by personal intervention. They agreed that he would act through the agency of ministers who are chosen from the membership of both houses. That is what responsible government is. I find it very disturbing. I'm hoping that other people will begin to grasp and understand that this is a very profound thing. 54-1

A debate carried out on a co-authored document, such as I outlined in the chapter "Optimizing effectiveness: Digital collaboration" gives the debatants an opportunity to take time out for reflection and gaining a better grasp of what a co-author offers as his/her thoughts. n54-1

The Chair: Thank you, Senator Cools. 55

Senator Cools: That is, Her Majesty is currently not represented by the Leader of the Government in the Senate because he is not a minister. That's a very serious matter. 56

The Chair: Thank you very much, Professor Lagassé, for coming. It was very interesting and very helpful. 57

Mr. Lagassé: Thank you. 58

The Chair: Honourable senators, we have with us by video conference Professor Andrew Heard joining us from Victoria, British Columbia. Welcome, Professor. 59

Professor Heard is a professor in the Political Science Department at Simon Fraser University. He is an expert on the Canadian Constitution, focusing on issues as varied as constitutional conventions, Senate reform, federalism and parliamentary privilege. Professor Heard submitted a brief to this committee in April of this year, entitled The Senate's Role in Reviewing Bills from the House of Commons. 59-1

Professor, I would invite you to make a brief presentation, followed by a period of questions and answers. Professor, the floor is yours. 59-2

Andrew Heard, Professor, Political Science Department, Simon Fraser University, as an individual: Thank you very much. It's a great pleasure to join you by video today, and I appreciate the invitation. I was given the four questions that you've put to your witnesses before, and I'm going to spend a bit more time on the first two and have some brief comments on the last two. 60

So on the first one, "Do you believe that political party caucuses have a role to play in the future in the Senate," the short answer is that, in the short to medium term, it is a fact that party caucuses will continue to play a role, given the organization and numbers of the Conservative Party, as well as the independent Liberal caucus. Going down the road, a lot will depend on who wins the next two elections and whether they continue the process of appointing non-aligned senators or return to partisan appointments in the case of a Conservative government or perhaps even refuse to make any appointments in the case of a possible NDP government. So we have party caucuses. They will continue to function. 60-1

The question going forward is: Should party caucuses play a major role in the Senate? My short answer is yes. There is a very constructive role for partisan party caucuses to play alongside the non-aligned senators. 60-2

Cf the UK's House of Lords. n60-2

Mind you, the Senate was intended from the start to be a partisan body, and I think it's very important to emphasize that point. It was intended to be a partisan body but independent-minded partisans, and, as you have heard from other witnesses already, the early years of the Senate were clearly dominated by partisan groupings. There was the inclusion of many senators as cabinet ministers, and even two prime ministers were drawn from the Senate as well. I think it's really important to emphasize the intentions for a partisan chamber by looking back to the Quebec and London Conferences that led to Confederation in 1867. 60-3

In 1864, the Quebec Resolutions called for the first appointments to the Senate to be made with care that "... all Political Parties may as nearly as possible be equally represented." The London Conference of 1866 modified this slightly to say that it should be "... the fair representation of both political parties." Indeed, the first appointees were fairly balanced party representation. Among the senators who first gathered in 1867, there were 36 Conservatives, one independent Conservative, 24 Liberals, 7 Liberal Conservatives and two Nationalist Liberals. 60-4

It has become fashionable of late to downplay the partisanship of the 19th century, but even Eugene Forsey's characterization of "loose schools of fish" still conveys the image of fish who swim in proximity to each other. Partisanship meant something in the 19th century. People of the day understood the difference between Grits and Tories, les bleus and les rouges. 60-5

William Ross' 1914 book on the Senate points out that the Senate was relatively even-handed in its treatment of government legislation, regardless of which party controlled the majority at the time. And he concluded that this showed that senators were not being directly controlled by the party leaders of the House of Commons to block opponents' legislation. 60-6

So the lesson from this is that the senators were independent-minded partisans but still partisans nonetheless. In my view, the Senate was never intended to be a non-partisan collection of unaffiliated members. The Fathers of Confederation knew full well that the chamber would be essentially a partisan chamber, and, in my view, to turn the chamber into a collection of non-affiliated independent agents risks rewriting history and undermining a fundamental part of the Confederation bargain. 60-7

Now, that said, I recognize absolutely the value of a large group of independent senators in the process, working alongside their party caucus colleagues. But I think it is important to ground this discussion in an understanding of what was intended and how things unfolded at the time of Confederation. 60-8

So turning to the value of party caucuses, there are some positive benefits for the Senate collectively, as well as for individual senators, but there are also negatives as well, institutionally and on an individual basis. 60-9

On the positive side, as you have heard and know well yourselves, party caucuses provide a clear and efficient way of planning membership on committees, settling priorities on the agenda for the study of bills and inquiries and committee and so on. 60-10

They allow decisions to be reached easily in setting that agenda, and it's most easily done through leaders of caucus groupings who have an understanding of where their members lie, where problems might come ahead and where there is consensus and agreement. 60-11

I perceive a devolution to a, for want of a better term for now, R&D director, who sets priorities w.r.t. our country's most pressing needs, in particular those calling for committees to be studded with a variety of experts engaged in highly-complex problem solving, see here ff. n60-11

Caucuses also provide an important back channel through which members can communicate with the other house. Over the years, about 80 per cent of Senate amendments to Commons bills have been readily accepted by the House of Commons. I think a large measure of that acceptance is testimony both to the common sense of those amendments and the groundwork laid through the political caucuses, with senators convincing their party leaders and MP colleagues of the value of their amendments. 60-12

The other thing is that senators have been indirectly accountable to the public through those party caucuses. If the public had been absolutely up in arms over how Conservative or Liberal senators were behaving or not behaving, pressure would have been put on the elected party leaders to come down on the Senate. So I think it is important to emphasize this indirect accountability of the elected chamber. 60-13

There are benefits for individual senators, and the main one is to be able to work with like-minded senators to achieve common policy goals. That involves both mobilizing sympathizers, as well as out-focusing those who oppose them. 60-14

On a practical basis, there is a huge benefit in sharing research staff who have their ideological interests at heart, as well as sharing each other's professional and legislative experience in caucus. Individual members can take a cue from their caucus leaders and colleagues. There is no need to research each and every issue personally that comes up before them that they have to vote upon. 60-15

The matter of research organization—resources, financing, staffing, expertise ... the whole kit-and-kaboodle— would have been better addressed had we followed the suggestion in my brief to deal with the senate's function before form, i.e. how best to organize how to do things after determining what needs to be done. But there is no point in crying over spilled milk. I believe that the sooner the MDRN committee attends to the matters discussed in my essay, the better the outcome will be. Also, the essay suggested many a solution to problems currently being discussed, suggestions made well before the committee was even slated. But then, what can senators expect from some unknown 90-year-old fogey living in the boondocks and has never ever set foot in the Parliament building? All quite understandable. After all, I myself look at an author's reputation before considering reading his/her book. On the other hand, I had been invited to submit a Brief to the committee. n60-15

Those are a number of positives to come from that caucus organization, some of which would apply to an organization of non-aligned members as well. 60-16

On the negative side, there has been a great harm to the Senate, institutionally, over the years through hyper-partisanship. We have seen periods in the 1960s, 1970s and in recent years where the Senate amended a small number to no government legislation. That was through very strong party discipline, ensuring the will of the government of the day. I think that has undermined the legitimacy of the Senate in order to do that. 60-17

In my view, the Senate should not be a chessboard for party leaders to play out their strategies with loyal foot soldiers deployed on a second battlefield after combat in the Commons is over. 60-18

Senators need to be independent-minded enough to vote against their own party's positions from time to time. When there has been a party majority in the past, amendments have been made to government bills through the government itself recognizing weaknesses, but also because of the independent-mindedness of individual senators. 60-19

My study of the period from 2001 to 2004 found that there were only 34 per cent of Senate recorded votes where there was not a dissent among one member of the caucuses or another. 60-20

When firm party discipline is imposed on individual senators, they lose the ability to vote as they see fit. They fear being removed immediately from committee assignments because of proposing or supporting amendments. 60-21

There is also harm to non-aligned cross-bench members, as well, from the party caucuses because they do not have the same advantages as party caucuses. They're not grouping with like-minded individuals to share and achieve common goals. They have to rely on a pooled research staff that would serve a large and diverse group of senators. Individual senators only have limited support staff that cannot conduct a wide range of research in all matters coming before them. 60-22

My view on party caucuses is that they have many strengths. There are evident weaknesses that we've seen as well. Some of those caucus benefits can be translated into groupings for non-aligned senators, but there are limits as to what would occur. 60-23

I would say in passing that I'm very skeptical of the value of trying to organize senators into regional caucuses, and I would be happy to talk about that more in the question-and-answer period. 60-24

The second question is: Does the modern Senate need government representation? Absolutely. The whole premise of modern parliamentary government is that the bulk of Parliament's activity is devoted to considering government's legislative proposals, and it is assumed that the government should play a managing role in the process and timing of debates and votes. It's also assumed that this be in consultation with opposition leaders. A healthy Parliament is one where there is give and take by all concerned, not just government dictating or opposition obstructing. 60-25

The Senate's place in the legislative process is meant to be an extension of the basic responsibility of Parliament to give precedence to government business. As long as the government of the day has the confidence of the majority of elected members, the collective responsibility of all members in both houses is to move forward on considering government business. 60-26

The Senate's main role in the legislative process is to consider measures already approved by the Commons, but it also has the secondary and important role of being a place where non-controversial pieces of legislation can be initiated by the government for detailed scrutiny. 60-27

The Senate also has a very important and respected role in policy inquiries that by a necessary implication are assessments of government policies. As a result, the government has a legitimate and strong interest in committee inquiries held in the Senate. If there is government involvement in that, it is far more likely that Senate proposals may be adopted as government policy down the road. 60-28

The Senate needs to provide a clear process through its government business as coherently managed. In the past, the Leader of the Government in the Senate was almost always a member of cabinet. The current Government Representative, however, is not a cabinet minister, but he does attend certain cabinet meetings. 60-29

I argued that the previous government had breached convention when they first dispensed with appointing senators to cabinet. In my view, it devalued the Senate and its role in the legislative process, and it is disingenuous to exclude the Senate government leader from the ministry while still ensuring they attend a range of cabinet meetings. 60-30

Practice has shown that the government leader's participation in cabinet meetings is both beneficial and necessary. The Leader of the Government in the Senate must be fully apprised of government priorities in order to determine priorities in the Senate. The government leader, in turn, needs to know how much time should be devoted to each issue and also how hard to press colleagues to pass measures and in what time frame. The government leader can also personally argue with cabinet ministers and convey first-hand the mood of the Senate and the need to consider amendments to government legislation. 60-31

These are all inherently party partisan matters, not generic public administration. These are party partisan concerns to the core, and the Government Representative cannot help but act in a partisan manner in trying to pursue and achieve the government's legislative agenda. 60-32

One alternative would be to propose to have multiple individual senators act as sponsors for government bills. That certainly is a potentially practical solution. However, one danger of that approach was shown by one senator's sponsorship of a government bill, who immediately proposed that there should be amendments made to the bill. My worry is that independent sponsors of government bills may be tempted to demonstrate their independence by proposing amendments. 60-33

The irony is that while the Senate should be more active than it has been, it still operates within a limited range of operation. Neither the government nor the public will stand for an appointed Senate routinely amending and holding up measures passed by the House of Commons. The Senate's role is meant to be a constructive complement, not a non-stop nuisance to the government and the House of Commons. The Senate should call for the House of Commons to reconsider certain matters when warranted, not as a matter of course. 60-34

If there is no single government leader to take charge with some effective means of managing the process, then there is the danger that individual senators voting on or sponsoring bills will be pressured and lobbied, not just from party leaders' offices but also with pressure from outside lobbyists. That pressure will occur in non-transparent means. 60-35

In conclusion, yes, the government needs an effective partisan presence in the chamber to pursue its business. How that is appointed is something we can discuss, whether it should be a prime ministerial appointment or something that can be self-assigned by members of the Senate who themselves wish to volunteer and act on behalf of the government, but in doing so, they should be genuine in conveying their support for those ideological measures and framework that the government has. 60-36

The last two questions: Does the modern Senate need an official opposition or opposition groups? This is a difficult one to answer. Parliament certainly works more efficiently with organized opposition groups. How those groups are formed or of what nature can be the subject of experimentation. 60-37

It is quite clear that, over time, independent senators will begin to associate into smaller groupings with like-minded individuals who have become far more formalized. Some of them may be wishing to oppose the government of the day, and some of them to support the government of the day. Whether or not they style themselves as "opposition" is something that we can see down the road. 60-38

The final question that was put to me was what changes I might consider to be helpful to the rules and practices. One that I would suggest to consider for committee membership, on top of the recommendations from your first report, was to consider a set term of tenure for members of committees, pending good behaviour and attendance, as I think this would encourage members of party caucuses to act with an independence of mind and not fear immediately being removed from the committee because of acting contrary to the party's interests. 60-39

I also believe the Senate should consider far more pre-study of bills and then revisit those recommendations when House of Commons bills arrive in the Senate. I think you could deal with more business more efficiently that way and also conduct a more effective follow-up on pre-study than we've seen in the past. 60-40

There should also be better informal communication channels between committee chairs in the Senate with their counterparts in the House of Commons over proposed amendments and the value of them. 60-41

In closing, I'll add that I have suggested in the past that the Senate should consider putting into the rules time limits for the consideration of House of Commons bills, just to expedite matters and to keep people focused on moving bills through the Senate. 60-42

With that, I conclude and look forward to your questions. 60-43

The Chair: Thank you, professor. 61

Senator Joyal: Good afternoon, Professor Heard. It's a pleasure to have you at our committee. 62

I want to concentrate on one aspect of what you said, which is essentially the fact that the Senate is a power chamber. It has legislative power, and this power, as you know, is shared with the House of Commons, generally, for legislation to be enacted by Her Majesty. 62-1

In the government's initiative to relinquish what I would say is its stronghold on the Senate Chamber by appointing a certain number of independents, the government nevertheless wanted to keep a "political capacity" to reach the senators. 62-2

One situation we have lived through in the last months, when we debated Bill C-14—the medical assistance in dying bill—or the last bill related to the estimates, we have seen the Minister of the Crown or the parliamentary secretary calling every senator involved in the debate individually either to have a private meeting with them or over the phone, to make sure they would convey their points of view and the overall arguments they might want the individual senator to make. 62-3

In my opinion, it's a more insidious way to have the government's point of view distilled individually to senators. But when the same senators were in an open briefing session or a caucus meeting where the government's point of view can be explained and debated with members of the caucus, that has disappeared because there are no more members of the government caucus. In fact, it has been resurrected in a way that, in my opinion, is less transparent but more efficient. 62-4

When a senator is sitting on the same couch as a minister, in the minister's office, and the minister exercises the whole of the argument that you can explain in a private meeting but that you would not put on the table and put up for challenge in an open meeting, you are acting in two different ways. In my opinion, it's the law of unintended consequences: By wanting the Senate to be more independent, in fact, you are opening ways for the government to have access to individual senators. 62-5

As an interim measure, such attempts might be referred to an ethics committee and made known in the Senate's proceedings and thereby enter into the Hansard. I.o.w. public shaming by name. But I am not sure about this. It depends on what is being conveyed and with what intend. The ethics committee might then be the judge. n62-5

I say that because I've seen it and I was the object of that, last week. When Bill C-29 was being debated, I had a call from the parliamentary secretary who wanted to meet with me and discuss the implications of the Estimates Bill. I refused. I said, "If you have any point of view to share with me, put it in writing through email or send it to me on a sheet of paper." Of course, it ended there. I felt much freer in taking the stand I wanted to take because I had no direct personal relations. 62-6

If I had been in a group with my fellow, like-minded senators having an open debate with that minister on the implications of the bill, I could accept that. But when I ponder the two options, are we not in fact giving individual ministers of the Crown a stronger hold on individual senators that they have pinpointed might be expressing objections or arguments to amend their bill or to vote against it? 62-7

This is the reality. As you know, there is no pure system of government. The government wants its bill to be adopted, not amended. I remind you that when Mr. Chrétien was the Prime Minister of Canada, he had declared that all bills were confidence bills. In other words, you had no choice but to vote for the bill. That was one of the unwritten rules of being a member of the team. I think it was an outrageous stretch of what I call the solidarity of like-minded people. 62-8

As much as I was opposed to this approach, and as much as I'm questioning myself, by relinquishing the link with the group in the House of Commons, we are in fact opening the door to pressure on individual senators that might be much more efficient. There are all kinds of elements that might be on the table in a one-on-one meeting that will never be part of a general discussion over the implications of a bill. That is presently the reality. I'm not the only one who has experienced that kind of approach. 62-9

When you ponder everything, which system is the best? How do we tackle the fact that the government wants to have its legislation debated as soon as possible, changed as little as possible and to project the best image of the government in relation to that bill, which is electorally favourable to the government's image or prospects? 62-10

We all know we are dealing here with the use of power at its extreme limit in how the government wants to deal with a chamber in terms of how it relates to the government, for an obvious objective that I might share in principle: a more independent context into which adult persons with their political or social backgrounds can exercise their independent judgment in relation to legislation. That's really, in my opinion, the Gordian knot of the situation in which we find ourselves now. 62-11

Mr. Heard: You have raised a number of really problematic issues, and that question of the balance between what is conducted in public in the Senate and what is done in back channels is an issue that you have in every single legislature. There's only a certain amount that can be done visibly and publicly. A large amount of important negotiations occur in committee meetings, caucus meetings and one-on-one meetings. That process is an established part of how all legislatures function. 63

What you need to distinguish is the kind of process that opens individual senators to pressures that can become conflicts of interest and compromise their integrity. The issue that you raise, of a minister or parliamentary secretary having one-on-one private conversations with individuals, raises the concern of other matters being on the table. What quid pro quo may be offered for someone's support of a measure, or opposition to a measure? That's the concern. In those private one-on-one meetings, you're far more likely to have inappropriate discussions occur than should a minister appear before a group in caucus. 63-1

The advantage, I guess, is that the minister and parliamentary secretary may be spreading their charms across members of all shades of the Senate, whereas in the past, only the government caucus would have the benefit of a minister in a room where you could directly engage in debate. 63-2

In the long run, though, I have concerns about the vulnerability of individual senators to quiet confidential pressure put on them, not just by cabinet ministers but, as I said in my opening comments, private interests as well. Lobbyists will pressure senators once they realize that senators are making their minds more independently and can encourage others to propose and secure amendments to government legislation. 63-3

The concern about a large collection of free-agent senators is the vulnerability of individual senators to that kind of backroom pressure and wheeling and dealing. 63-4

Senator Eggleton: Back-channel discussions and ministers or parliamentary secretaries phoning senators is nothing new. It happened when we were part of the national caucus. It doesn't make any more difference now than it did then. Then, they probably had more control over the people they were talking to because there were certain things in the caucus—advantages—that they might be able to change. 64

Professor, you gave details as to the advantages and the disadvantages of partisanship in the Senate. You also pointed out the conundrum of being independent and having an independent institution versus being part of a partisan political party. To me, the biggest problem with partisanship is belonging to the same caucus—senators and MPs belonging to the same caucus. It's not just an overt kind of pressure, by which I mean the government leader or the party leader says, "You senators must vote for this." I have not heard that very much. There's the subtle pressure; there's a lot of that because there is a herd mentality. You don't have to call it "herd mentality;" you can call it a "team approach"—a desire to be part of the team and to help your team and counterparts in the House of Commons. To me, that compromises the independence of the Senate Chamber. 64-1

In listing your pros and cons, you've said that perhaps the best way to change that is to change the behaviour, but I'm not quite sure how you can change the behaviour when you've got a government of any political stripe or an opposition of any political stripe trying to get media attention, trying their points across and trying to get the team to rally together. It's not instinctive for them to soften that kind of position. 64-2

Is there any other suggestion you may have as to how to ensure the independence of the institution and, at the same time, be part of partisan party politics? 64-3

Mr. Heard: Fundamentally, it is an issue of choices by individual senators and how independent-minded they want to be, regardless of pressure and consequences. We've seen that willingness to be independent rise and fall over the years with both of the major party caucuses. 65

In terms of practical suggestions, the only thing I can think of is ways in which certain sticks can be taken out of the hands of the party whip. One that was used effectively in recent years was removing people from committees when they felt they were becoming a little too independent-minded. My suggestion is that members be appointed to a committee for a session so that you are at least sure of a presence on the committee for a set period of time, and you can't be removed by a phone call overnight. 65-1

Senator Eggleton: The other thing about the independence of the institution, I don't recall any occasion in the last Parliament where the government-bench senators agreed to any amendment to any government legislation ever, unless it was already determined by the leader of the party that they wanted to have an amendment, but I don't really remember much of that, either. No matter what the testimony was at any committee, it didn't matter. The government benchers stuck to that position. 66

Maybe we could have partisan caucuses like Conservatives, Liberals, et cetera, but they shouldn't be part of a national caucus. 66-1

Mr. Heard: No, there's a real benefit in having the two caucuses meet separately with, perhaps, an occasionally joint meeting. But it is far better for the independence of the Senate as an institution for party members to caucus separately from the House of Commons on that weekly basis. 67

Senator Eggleton: You don't go Wednesday morning? 68

Senator Tkachuk: We caucus separately every week, which is what he said. 69

Senator Eggleton: So do we. 70

Senator Tkachuk: That's fine, Senator Eggleton. 71

Senator Eggleton: You're still partisan. 72

Senator Tkachuk: I have been here a long time, and I haven't seen too many changes in Liberal legislation, either. 73

The Chair: Order. Senator McCoy, the floor is yours. 74

Senator McCoy: First, I apologize for missing your presentation. I was caught on other business for a moment. I'm struggling for the name of the book that you wrote that has to do with the Senate and in particular what we call parliamentary conventions. If I recall correctly, you looked at the number of amendments that this Canadian Senate has made over time and tried to draw some conclusions. 75

So I would like to put to you the same question I put to our previous witness: Do you think that we have really nailed, as far as we might, getting a set of performance indicators that we could use to identify what we really mean by "independence" as opposed to struggling now when we say, "Well, if you're voting for a bill introduced by a Conservative, that must mean you're a Conservative. If you're voting for an amendment that is introduced by a Liberal, that must mean you're a Liberal"? I'll shorten my question to that extent, as I think it conveys the gist of it. I look forward to your opinion, sir. 75-1

Mr. Heard: On a large level, one can assess the Senate's institutional independence by the degree to which it recommends amendments to legislation that has already been passed by the House of Commons. You can compare how legislation by the two or perhaps three different parties in the future is treated by the Senate. 76

In the past, the Senate has been fairly even-handed over the long term between both Conservative and Liberal government legislation, regardless of which party controlled the majority in the Senate. There are notable exceptions but, in general, the long-term trend has been a fairly even amendment of legislation regardless of party. 76-1

In terms of individual senators' independence, that was easier in the old days when most senators were members of one or the other caucus. One could just measure how often they voted against their main grouping. 76-2

Senator McCoy: Exactly. 77

Mr. Heard: That has less meaning now. The Liberal group claimed to have no whip, but they will vote on many issues the same because they share basic principles, many of them, not all. With the independent ones, I think there will be some very interesting research done in the future to see how often individual independent senators vote with one of the party caucuses or the other. 78

Many years ago I tracked the votes and patterns of Supreme Court judges who are nominally independent, non-partisan and impartial. It's very clear that each individual has a basic ideological framework and are more or less likely to accept Charter claims, for example, and so on. Every individual has a root ideology to assess the value of choices before them, and it will be the same for the non-affiliated senators. 78-1

It's only with time that one can see how consistently individual, non-affiliated senators are voting one way or the other or are they truly all over the place. 78-2

Senator McCoy: That's an interesting point. I'm being called in by the chair because time is running out. 79

The Chair: The bells are ringing. 80

Senator Cools: Very quickly, Professor Heard. I'd like to thank you for your clarity of mind. 81

I wonder if you have an opinion on the question that these changes in the Senate have not been initiated by the Senate, have not been debated in the Senate and have not been subject to any decision invoked of the Senate. These actions and activities are all coming out of the minds of the Prime Minister and a few other people. I find this very troubling. Do you have an opinion? 81-1

Mr. Heard: As a policy development process, I think this was an appalling example of how not to conduct public policy. My colleagues who examine the public policy process would say the first thing you do is consult stakeholders. 82

Does the same apply to the attempt at initiating electoral reform? It ended with a invitation mailed to the entire electorate to go to a website and tick off a preference. If I remember well, it drew a three-percent response. Better go back first to my essay's chapter on Democracy in peril: The electorate. I wrote the new Minister of Democratic Institutions about that. Someone answered that it will be looked at. We shall see what we shall see. n82

This was a proposal developed without any effective input, even from the leader's own caucus members. An open cheque is being left to be written by the whole Senate to try to sort out the consequences. I think that's very problematic. 82-1

Very briefly, in terms of a question put to the previous witness, I think it's very important for the Senate itself to take charge of public discussion on where the Senate goes in the future. 82-2

Senator Cools: I thank you for that. Maybe some of us will consider moving some motions to that effect so that the Senate can actually debate what is happening to it and actually express some opinions. Thank you. 83

The Chair: Professor Heard, thank you very much. Sorry to rush you along. It was very interesting and your contribution was excellent. 84

To the remaining members of the committee who are here, please have a safe and happy holiday. Thank you very much. We stand adjourned. 84-1

(The committee adjourned.) 85

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