MDRN-18

The Special Senate Committee on Senate Modernization

Consideration of methods to make the Senate more effective within the current constitutional framework: Issue 10

29th Meeting, March 1, 2017

Witnesses: B. Thomas Hall
and Gary Levy, Research Fellow, Carleton University

The Special Senate Committee on Senate Modernization met this day at 12:03 p.m. for the consideration of methods to make the Senate more effective within the current constitutional framework. 1

Senator Thomas Johnson 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

Before the winter adjournment, we heard 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: 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

We then heard from Professors Lagassé, Heard, Docherty and Hicks on the same issues. In so doing, we gathered considerable evidence about the Senate and the fundamental aspects of the Westminster system. Today, we are continuing this phase of the study by looking at the essential elements of the effective parliamentary debate and deliberation, assessing how the Senate uses debate and deliberation in performing its institutional role within the Westminster system and considering how else the Senate might organize and promote effective scrutiny. As such, the committee has invited Dr. Gary Levy and Mr. Thomas Hall to speak on these issues. 3-2

Dr. Levy will commence with some reflections in the context of what we have been hearing so far. Gary Levy is a research fellow at the Confucius Institute of Carleton University. He also served, from 2013 to 2015, as a fellow with the Bell Chair in Canadian Parliamentary Democracy at Carleton University and, from 1980 to 2013, as the editor of the Canadian Parliamentary Review and has written extensively on parliamentary democracy, Senate reform and the Westminster system throughout his career. 3-3

Mr. Thomas Hall will follow with his thoughts on how parliamentary debate might be differently structured in light of what this committee heard about the Westminster system more generally. Mr. Hall served in the House of Commons as a procedural clerk for over 24 years. Since retiring, Mr. Hall has built upon his experience by researching and writing about many procedural issues, including an appearance before the House of Commons Procedure and House Affairs Committee on the subject of prorogation. 3-4

Dr. Levy, we will begin with your presentation, followed by that of Mr. Hall. Then members of the committee will pose questions for the two of you, I'm certain. Please proceed. 3-5

Gary Levy, Research Fellow, Carleton University, as an individual: It's an honour to have been invited to appear. I'll comment on a few issues that seem to be central to your discussions. 4

It's common practice for Canadians to proclaim ourselves adherents to the Westminster model, but there's little agreement as to what this means. Senator Harder has argued that the Westminster system is flexible, and I agree with that. But it's not infinitely flexible. 4-1

Some scholars limit the model to the 16 members of the Commonwealth that recognize the Queen as head of state. Others argue that, for practical comparative purposes, the model is limited to the U.K. and three of the four original dominions: Canada, Australia and New Zealand. 4-2

Some identify responsible government and the confidence convention as defining features. Others think it's the existence of an impartial presiding officer. Professor Phillip Norton, perhaps the greatest living authority on this subject and also a member of the House of Lords, has written that the distinctive feature of the Westminster model is the concept of Her Majesty's loyal opposition. 4-3

My former boss at the Library of Parliament, Philip Laundy, also an expert on Westminster, used to say that Parliament is, above all, a vehicle for opposition. 4-4

It may be argued that this logic only applies to opposition in the House of Commons and that, in the upper house, opposition can take many forms, including the view expressed by some of your witnesses that all 105 members can be independent and in opposition. I understand that argument, but I do not think that a Parliament with a completely non-partisan upper house is still following the Westminster model. 4-5

On this point of what a Westminster system is, I recall a conversation with an Australian political scientist. I asked him how Australia, with all of its unique innovations, can continue to refer to itself as following a Westminster model. He said, "We don't. We call it the Australian model." 4-6

I think we are headed towards a Canadian model, and the question you are wrestling with, without much help from our government, is whether the new Canadian model will be better suited to the modern political context than what we have traditionally called the Westminster model. 4-7

Senator Harder has also argued that we have little to learn from the House of Lords. Professor Smith, whom I admire greatly, used more academic language to say essentially the same thing. There are many differences between the Lords and the Senate and between Great Britain and Canada. But, institutionally, we are still closest to the United Kingdom Parliament, and we should take at least two things from their experience. 4-8

First is the appointment process. Before the last election, I wrote a paper recommending an independent appointment process, but I never envisaged a commission appointing all senators or ending up with a 100 per cent non-partisan Senate. I proposed the British approach, or a version of it, whereby some members are appointed by an independent commission but most are still appointed by the Prime Minister. 4-9

There are many countries where the opposition party leader has input into upper house appointments either formally, as in the Trinidad and Tobago constitution, or informally, as in the U.K. In my view, Canada would be well-served by following this practice. 4-10

Another thing we can learn from the U.K. concerns the relationship between the houses. As you know, by law, the House of Lords is limited to a one-year suspensive veto over legislation. This has only been invoked four or five times since 1911. More important are the conventions governing the relationship between the houses. 4-11

Many senators have stated that we have a convention in Canada whereby the Senate ultimately defers to the House of Commons in cases of dispute. We certainly have that practice, but it's hardly a constitutional convention. There have been two cases where the upper house has forced an election, in 1911 over the naval bill and in 1988 over the free-trade agreement. A third possibility was avoided in 1990 only by invoking section 26 of the Constitution and appointing extra senators. 4-12

In 2008, at the time of a minority government, a frustrated Minister of Justice told the Senate Legal and Constitutional Committee that it had taken long enough to consider an amendment to the Criminal Code, and if it it did not pass the bill by February 28. He said, "I do not believe I would have any choice except to advise the Prime Minister that I believe this is a confidence measure and I will put the matter in his hands." 4-13

So the fear of defeat or obstruction has been the main reason successive governments have worried about the partisan composition of the upper house, and preferred to fill it with persons who could be counted upon to support it. One way to mitigate partisanship would be a British-style suspensive veto since it removes the incentive for partisan opposition. We also need to look at a less well-known British device called the Salisbury Convention. It provides that the lords will not obstruct bills that seek to implement policies contained in an election manifesto. It was established in 1945 when the labour government found itself with virtually no members in the House of Lords. The convention does not affect the lords' ability to amend legislation. 4-14

There are at least three other conventions governing relations between the chambers and when disputes arise. As to the meaning of these, it is the practice to refer them to certain committees, such as the 2006 Joint Committee on Conventions and the 2015 review by Lord Strathclyde following the defeat of a statutory instrument relating to tax credits. 4-15

If we are going to have a largely or completely non-partisan Senate, it is important to have clearer conventions on relations between the chambers. 4-16

Let me turn now to the four questions that you have been considering. Virtually everyone, including the unaffiliated senators, have stated that political party caucuses do have a role in the Senate. Yet the number of senators belonging to a political party continues to decline. It's theoretically possible for any of the newly appointed senators to sit with a party caucus, but that has not been the practice. 4-17

Perhaps the reason is found in a recent speech by Senator Harder where he claimed that only 14 per cent of Canadians prefer that senators be members of a party caucus. That may be true, but I think it's an overreaction to a particular period and incidents. The idea that political caucuses are somehow the root of all evil is not a good basis for reforming our institutions. 4-18

As to whether a modern Senate needs government representation, my answer is yes. I was disappointed when Mr. Harper removed the government leader from cabinet in 2013 and even more disappointed when Mr. Trudeau decided to follow that precedent in 2016, because he combined it with a sleight of hand by creating a position of Government Representative without amending the law that creates the office of the Leader of the Government in the Senate. 4-19

The results are odd, and in my view, an unsustainable structure whereby three individuals, the G3, are charged with pushing the government agenda, and everyone else is either in opposition or on their own. One of the strengths of the Canadian system, as opposed to the American one, is the presumption of a leadership role for the government. It's best fulfilled by having a member of the Senate in caucus. 4-20

My answer as to whether a modern Senate needs an official opposition is obvious from my opening comments. 4-21

Let me conclude with some thoughts on possible changes to the rules and practices that might work, whether you have a body of 105 non-affiliated senators or two, three or four parties. 4-22

The key is for the Senate to focus on roles that are not being well-performed by the House of Commons. One of these, I would say, is examination or creation of public policy. The house is losing its capacity to do serious public policy studies. It devotes an inordinate amount of time to unearthing scandals such as the cost of a glass of orange juice or where people spend their holidays. Constituency service has been prioritized, public consultation processes have been expanded, but opportunities for debate and deliberation have been reduced. 4-23

The Senate has always done useful public policy study in its committees, and this can be continued and expanded. However, it should be coordinated around government priorities, rather than a free-for-all for individual hobby horses. It's hard to see how this can be done without effective government input and leadership. 4-24

The second area relates to constitutional amendment. We have an odd situation in this country where all parties reject any proposals that involve constitutional amendment, due to an unsuccessful project 25 years ago. In my view, we drew the wrong lessons from that experience and a de facto moratorium on constitutional change is not an intelligent way to run a country. 4-25

Even the slightest change to the Senate would require approval of the provinces. A week ago when Senator Hays appeared, he suggested that the Senate should be proactive in seeking input from the provinces as to whether they would agree to a particular constitutional amendment, starting with those that affect the Senate. Of course, such amendments could be initiated by senators, since they are not ministers of the Crown. 4-26

My final point, what the Senate may do, is in an area I call "procedural modernization.'' I'm sure Thomas is more of an expert on this than I, but the House of Commons has done little to improve its procedures, despite a number of problems over the last few Parliaments. I wonder if the Senate could become a model to the lower house in certain areas. I think you're already moving in that direction. 4-27

For example, the recent approach to Question Period whereby one minister is invited to the Senate and questioned without a stopwatch and other obstacles to effective questioning that exist in the house is a good example. 4-28

Televising the Senate is under consideration, and if this new approach to Question Period was televised, I'm convinced the House of Commons would find itself under pressure to offer something similar instead of its present format. 4-29

You are also looking at how to discourage omnibus bills, another area where the house has real problems. You have suggested the Senate Rules Committee develop a process by which omnibus bills are referred to an appropriate committee to determine whether and how they could be divided into several bills. That's a step forward, but the simpler solution is for the Senate Speaker to make that determination. The concept of an elected and presumably more influential Speaker is something you are also examining. 4-30

Thank you for the invitation. 4-31

B. Thomas Hall, as an individual: I will give you a general background view, and then I'll go into concrete procedural things that I would suggest you consider. 5

The Westminster system is located in the House of Commons, period. The House of Commons is the locus of responsible government and is the house of confidence. The Westminster system does not require an upper house at all. As you know, there are many Westminster Parliaments in the former dominions that don't have upper houses, and none of our provinces has an upper house, yet you would say they are following the Westminster system. 5-1

The Westminster system involves at least two parties. You have to have a government side and an opposition side, but what that means is the lower house is adversarial and majoritarian. Adversarial in the sense that these two parties conflict with each other, or the two sides oppose each other, government proposes, the opposition criticizes, and you have to get things through. You get things through on the basis of having a majority in the lower house. Lower houses in the Westminster system are adversarial and majoritarian. 5-2

With regard to the upper house, what does the Westminster system require? Only one thing: That if you have an upper house, it has to be subordinate politically to the lower house. Otherwise, responsible government would not work if it were not subordinate. That was the problem in Australia in 1975. They do not follow the Westminster system in their upper house. Their upper house is based on Washington, D.C. So they really have a split kind of Parliament—lower house Westminster, upper house Washington, D.C.—congressional, adversarial and majoritarian again in their upper house. 5-3

If the upper house is politically subordinate, what is the Prime Minister doing by appointing so many non-partisans? I would argue that rather than looking at it as he is trying to destroy the opposition or political caucuses in the upper house, what he is really doing is changing the political culture of the upper house. By that I mean it will become non-adversarial and non-majoritarian. This will enable it to perform its role as a critic of what the government has done in the lower house more easily than if you were having a duplicate of the lower house in the upper house. 5-4

The parties that exist in the upper house right now are extensions of the parties that we find in the lower house. That has been good in some respects and bad in other respects. We do not need to go into that. 5-5

If, as I think, that the Prime Minister is destroying the adversarial and majoritarian climate or culture in the upper house, what is it to be replaced with? That's your challenge because you have no control over who the Prime Minister appoints, but you do have control over how you respond to those appointments. 5-6

I'm going to suggest that the political scientists have come up with a concept that is very useful in responding to what the Prime Minister is doing. It is creating a deliberative and consensual upper house so that all senators, as equals, are deliberating and examining the bills that the government has sent through the House of Commons to the upper house. That is, in a sense, everyone performs an opposition role vis-à-vis the lower house and the government. You do not reproduce in the upper house, or there is no need to reproduce, this adversarial and majoritarian view that the lower house has. 5-7

How would you implement this deliberative and consensual approach? I'm not suggesting at all that you need to get rid of all of your political parties. That's another matter. It's something for the individual senators to decide whether they want to group together as members of parties. 5-8

However, I think that the wise approach here would be to reduce the role of parties in controlling and directing the upper house. Here I agree with former Senators Segal and Kirby when they suggested that there be some kind of coordinating body for the work in the Senate. I'll give you an idea of how what I call the "business organizing committee'' would work. It's going to replace what the parties do now in planning how the Senate operates. The government controls what bills it will call from the Order Paper. Let's turn that all over to the business organizing committee. There is no need at all for a Government Representative in the upper house. 5-9

What you would do—and I'll give you an example here of how it could work—if, let's say, a bill comes from the House of Commons. It's brought over by message, as it is now. The Speaker announces that the bill has been received from the House of Commons, a government bill or a private member's bill, and, if it is a government bill—let's concentrate on government bills; that's the most important thing right now—the table officer reads the bill, and that is the first reading. The Speaker then announces, either immediately or later, based on what the business organizing committee decides, which committee that bill is going to. The bill goes to the committee. Nobody is sponsoring the bill. There's no motion. It's written in your Rules that the bill, when the Speaker announces which committee it goes to, goes to that committee. Committees are going to have to play a much larger role in a deliberative body than they do now, and they already play a pretty important role. The committee then is going to be charged with going through, tearing the bill apart, examining its good parts, bad parts. They can call any witnesses they want, ministers, members of opposition from the lower house, anybody. But they assign that bill to one of their own members to report it back to the house. 5-10

Usually, in the European context, that's called a rapporteur. The rapporteur brings the bill back to the house and announces what the committee has found, the positive points, the negative points of the bill, everything that they found about the bill, explains the report from the committee. Then there's a brief debate or a long debate. Other members may ask questions about the bill. They may express their opinions because they have read the bill on their own or followed the committee and maybe even attended some of its meetings. 5-11

At the end of that debate, the bill is given second reading, or not, by a vote in the house. If it passes second reading, the next thing on the schedule is the amendments proposed by the committee. At this time, it's on the floor of the Senate. We're at the amendment stage on the floor of the Senate. Any member can propose an amendment at that time. Once the amendments have been dealt with, it doesn't go back to committee; the Senate gives the bill third reading or not. 5-12

One of the things that the committee may do that I'm proposing is that, if it finds that the bill is irredeemable or has very serious flaws, in its report, the rapporteur will say, "The committee has examined this, and the majority of us find that the bill is defective in certain respects.'' A message could be proposed by that committee to be sent to the House of Commons to tell the House of Commons what they found was really wrong in that bill. It's given them great pause; they can't amend it in a way that would be satisfactory. This would give the House of Commons a chance to rethink that bill and see if they want to proceed with it. If they respond to the committee's message that they insist that they want to proceed with that bill, then the Senate has a choice. If it violates the Charter or the Constitution, if it's a serious defect in the bill that would harm a particular industry, let's say the potash industry in Saskatchewan, the tax changes are going to decimate that industry, then if the Senate can't amend the bill, it may be fully entitled to say, "We will not proceed with this bill,'' and so report to the lower house. 5-13

Your powers to veto a bill are important, to be held in reserve. Don't think that anyone should ever say to you, "Get rid of those powers.'' They are like the Governor General's reserve powers; they are for emergencies, very serious matters that can't be remedied through an amendment and that the government refuses to back down on. So keep them in reserve. Don't use them casually, but they are important. 5-14

So once the amendments go to the lower house and are sent back to the Senate, it's just like your procedures now. The biggest change here is sending a bill to committee before you give it second reading, and that's so that the committee can deal with the bill and take it apart and tell the senators what they thought of the bill rather than having somebody on the floor of the Senate who is a minister or government house leader or somebody who's standing in, pretending to be the sponsor and telling you about the bill for second reading. You don't need that. It's not that productive. It's based on the false adversarial and majoritarian model of the House of Commons. 5-15

What will come out of this, I would think, is that the Senate will be a very strong critic of all of the government's measures. The government is going to have to up its game. I don't know if the Prime Minister has realized the full implications of creating a fully deliberative Senate. It will be a good thing. It can be very powerful. 5-16

I'll just add one more thing about the Speaker's role. The Speaker is the only person who has to be appointed by the government. I agree with Professor Hicks. I think you can use the Speaker as the conduit. For example, if the government wants to introduce a bill in the Senate, rather than finding someone to sponsor it, they could send the bill to the Speaker, and the Speaker could announce that he has received a bill from the government. 5-17

It follows the same procedure as if it had come from the House of Commons. It goes to committee. It's torn apart by the committee. It's examined thoroughly. Then the report goes on the floor of the Senate. The senators decide what to do with the bill. Same process. 5-18

You don't need to have a Government Representative in the Senate. One of the reasons I dislike having the Government Representative in the Senate, I will confess, is all senators have to be equal. You all have to be free to criticize the bill or support a bill or half support it and half oppose it. Every vote is a free vote and no senator should be deprived of that. 5-19

If you want to meet in caucuses, still do it. Have all the caucuses you want, but the running of the Senate has to be taken out of the hands of political caucuses. 5-20

That's where the business organizing committee comes in. I would suggest your procedures are a little old-fashioned and cumbersome. Rather than going through your Order Paper every single day, things are on the Order Paper, the business organizing committee, in conjunction with suggestions made by senators, and in communication with the committees—where is the bill at, when do you think you'll be reporting it—can schedule when the second reading debate will take place. The bill goes to committee after it's introduced in the Senate. The committee says they're ready to report next week, and the business organizing committee can schedule the debate. 5-21

When it doesn't have any government bills, that's the perfect time to schedule your private members' bills. You don't have to do both every day. You can set aside a day that will be second reading debate on bill such-and-such. This day is going to be—we have finished second reading debate, it has been approved—we will deal with the amendments to it and give it third reading. 5-22

It's the business organizing committee that decides that, not parties. There may be party members on the business organizing committee. In fact, I would hope there would be as long as you have some political parties in the Senate, as well as independents. It should be a mixture so that you can discuss and make sure everyone is fairly treated in committee and on the floor of the Senate. 5-23

There has been a question about whether or not you would have regional caucuses. Don't have regional caucuses in the sense of political caucuses. What you might want to do, however, because the territorial divisions in the Constitution have been neglected from the very beginning, this leads some people to feel as if, well, maybe we, in this particular region of the country, aren't really represented well in Parliament. We don't have enough seats or something. 5-24

The Senate is designed specifically to counteract that, that you do have representation from each of the four divisions of the country. That's a nice symbolism. 5-25

I'm going to read you something that the new Supreme Court justice said, if I may. 5-26

Justice Malcolm Rowe is quoted by a newspaper when he was appointed a Supreme Court justice from Newfoundland and Labrador, and some of you may remember there was a question of whether or not the Prime Minister was going to follow the convention of appointing somebody from the Atlantic area. I congratulate the Conservative Party for insisting that that convention be followed. That played a role in helping to make a good decision. 5-27

Justice Malcolm Rowe said the following: 5-28

It's important to have no blind spots, in terms of the whole country. All the members of the Supreme Court of Canada must speak for the country. If you're from Quebec, you must be mindful of British Columbia. If you're from the Prairies, you must be mindful of the North.... [This] is a common undertaking, but to do so effectively, it helps to have voices from across the country to give a sense of the wholeness of the country and its components. 5-29

Professor Watts at Queen's University says there are two aspects to a federation. First is the constitutional division of powers. We have that in our Constitution Act. 5-30

The second is that all parts of the country have to see themselves in the shared institutions. The Senate can play a big, big role here because they will be able to say and show, if you do certain things, that Quebec is guaranteed, practically always, a quarter of the seats in that upper house. The least populous provinces are guaranteed a quarter. Unfortunately, with Newfoundland that's a little over a quarter because Newfoundland came in late to the picture. 5-31

This is a powerful symbolism to the country, and that's all that the regional representation should be. I would suggest that you consider the possibility of sitting as regions in the Senate, just so that this is visually shown to people, but that's up to you. It also does away with the problem of assigning seats, by the way, because if you had regional seats you could put the older senators in the front, newer senators in the back, and no quarrels about where you're going to be sitting in the Senate. It would be automatic, but that's another matter. It's entirely up to the Senate, if they think that symbolism is important. 5-32

What I would suggest is if you do form a business organizing committee, you do have representation from all territorial divisions and the North on that business organizing committee, just so that no area, no group of senators is going to be neglected in working out committee assignments. 5-33

You notice there I talked about committee assignments. The Committee of Selection should be swallowed up by this business organizing committee, because it will be very important to coordinate committees with what is going to happen in the chamber; so you need one large committee to do that as a governing body. 5-34

You have three governing documents. I have probably gone on too long. You have three governing documents. I'm proposing that you have three governing bodies. 5-35

The Chair: Very helpful. Thank you very much. 6

Senator Joyal: Thank you Mr. Levy and Mr. Hall for your creative thinking. I was trying to follow your line within all the changes that would have to be introduced in the procedure of debate in the Senate, if we were to follow your suggestion. 7

One fact that is inescapable is that you have a Government Representative in the Senate, that is, somebody who has the responsibility to move the government legislation. Somebody has to be there to be able to reach a result, which is for the Senate, as the Constitution provides, to give advice and consent to legislation, and the government has a fair expectation that its legislative program will be acted upon. That is, Parliament will finally pronounce on it. 7-1

The role of the Government Representative is essentially to make sure that the government legislation receives due consideration in the Senate. We have seen that, since we have had Senator Harder, the government is going to an individual senator of his choice to have that senator briefed by the department, to meet the higher officer of the department and to receive an explanation and an understanding of very complex legislation. There is very little legislation that reaches the chamber that is not complex, by all of its implication. I don't need to give examples. Be it on drugs, be it on the issue of health, on Aboriginal issues and so forth, the implications are multiple. Senators individually, and I certainly will not pretend otherwise, are not omniscient. We don't know everything to an expert level. Fortunately. Our head would explode. By identifying a senator and that senator receiving a briefing from the department, he or she has the whole background of the department to help him or her to support the bill. 7-2

I do not see how we could have an effective debate in the chamber if there is not a countervailing capacity to go, at length, to the government proposal and study it in as much depth as the government has the capacity. Otherwise, you give to the government the overall access to all of the government's resources, and you leave all the other senators on their own to be able to challenge the government presentation of the bill. 7-3

I think that there is an imbalance there that is, in my opinion, not conducive to a thorough debate and study of the legislation, hence of opposition, that is, another group of senators who have access also to research, who could also commission their own research and be, to a point, at par in making sure that there is a minimum of capacity in the group of senators who think that they should oppose that bill for x, y, z, reasons and want to improve the bill through amendments or want to defeat the bill, to see the bill defeated, or to see the bill stayed for additional initiatives being taken by the government. 7-4

So it seems to me that the very common sense of the rapport, the force, between the capacity of the administration to stand behind a senator to understand and defend a bill calls for, on the other side, a similar, comparable capacity. As Professor Levy has said, government is about opposition. As I always say myself, Parliament is as strong as its opposition is able to challenge the government because that is the essential role of democracy, the multiple expressions of views in relation to a bill. So I don't see how we could reach an as effective capacity to challenge the government on its legislative proposals if we don't manage to have some sort of an opposition ingrained in the system. That is that, structurally, it exists. 7-5

It could be the official opposition of the House of Commons or the party that has the majority of seats. We can discuss that. But I don't think we can get rid of the formal idea of balancing the government apparatus behind the legislation versus individual senators, and we don't know who could have an interest in that bill and would be ready to invest himself or herself as much as the government can support the bill with all the resources of the administration behind that senator. 7-6

I tell you, I'm not sure that we can part with that very structural definition of how we manage the two groups, the opposition versus those who support the bill. We can decide to organize the opposition on each bill. Senators could say, "On that bill, I'm opposed to it,'' from the beginning. But, we would not get rid, as I say, of the idea that the opposition has to be structured and not to come along when we study a bill and finally discover that we might have something against that bill. I do not really see how, with the pace of legislation, the number of days we sit, the number of issues there are to cover, there is another mechanism that could be as effective as that one. 7-7

Mr. Hall: What you described perfectly is the House of Commons. You have that in the House of Commons. You have the adversarial situation with government and opposition. That's all being done in the House of Commons. 7-8

So is the Senate supposed to be a mini House of Commons, duplicating exactly what the House of Commons does? I don't think that that's the best way to achieve how the Supreme Court has described the upper house. It has described it as a revising house, a house of sober second thought, a house that is not a rival of the lower house, a house that complements the lower house. Actually, the process I have described was intended to give you a way of answering the very serious questions you have raised in previous meetings, namely, how does the work gets done if you don't have parties running it? 7-9

My answer to that is that it gets done in two ways—the business organizing committee, to coordinate the work on the floor of the Senate, and with the committees themselves. If a bill goes to a committee, they need to designate a rapporteur right away. That rapporteur is in charge of meeting with the government, meeting with public servants, saying, "Okay, the committee needs to hear from so-and-so and so-and-so.'' That rapporteur is basically in charge of the bill. Not defending it, not opposing it but finding out about it and being able to tell the committee about it and making sure they hear the appropriate witnesses and also, when the committee reports to the Senate, telling the Senate about the committee's report. 7-10

If a bill is very big, you may want to have it divided up in the committee and have more than one rapporteur because some bills are just too complicated to have one rapporteur. It is the rapporteur who plays that role. 7-11

I'll just say one thing about moving motions. There are two ways that business gets done on the floor of a legislative body, through motions that are adopted and become orders, or through the Rules, which is why the House of Commons calls their rules Standing Orders because they are orders of what can be done. So you don't need to move a motion to get something done if it's written into your Rules that this is what happens. 7-12

So, if a bill comes in, the Senate Rules should say that the bill is announced by the Speaker, given first reading by the table officer and sent to the appropriate committee designated by the Speaker or designated by the business organizing committee. 7-13

The Chair: Not to cut you off, but you can see the clock on the wall. I really have a big list here, and I'd like to try to terminate by 1:30 because I wanted an in camera meeting. 8

Mr. Levy, would you like to respond quickly? 8-1

Mr. Levy: Well, Thomas made a number of excellent points, as did Senator Joyal. I'm not sure I can respond to all of them in a short period of time. I just noted that Meg Russell was one of your witnesses from the upper house. She noted that there is not a single example of an upper chamber that is purely non-partisan. I think that alone would give me pause for thought. 9

Thomas also mentioned trying to create a consensual political culture, but the legislatures reflect our political culture in the country. I'm not sure we have a consensual political culture. The two legislatures that have non-partisan assemblies, Nunavut and the NWT, maybe do have a consensual culture. So I'm not convinced that having the house represent our adversarial culture and the Senate—a consensual approach—would necessarily work. 9-1

Mr. Hall: Can I intervene? He said he is not sure there is another body that has the kind of situation that I have described. There is no other upper house in the world that is exactly like our Senate that exists now. 10

Senator McCoy: I will be as brief as I can. I know there are quite a few people wanting to ask questions. First of all, how would this business organizing committee be established? 11

Mr. Hall: I think it should be elected from the floor of the Senate. 12

Senator McCoy: We'd have all senators in a secret ballot or something? With a provision? 13

Mr. Hall: You have to decide whether you want secret ballot or open. It should be that all senators decide who is going to be coordinating their business. 14

Senator McCoy: And with some provision that there must be at least one person from each division. We might go a little broader because the North is not really a division. So we might want to have a northern voice there as well. 15

Senator Joyal, as always, there is a practicality that drives you, as well as some deeply-held beliefs. But the practicality is having as many resources to propose, as there might be to examine, the proposal. I'm going to say "examine'' the proposal as opposed to "oppose'' the proposal. 15-1

I think I would like to see us moving toward a position where we are examining each and every proposition that comes before us. I want to make the point that as things stand at the moment, we have had members of ISG who have sponsored bills, and who have said in briefing us, "I have to tell you, when the government came to brief me and the civil servants were briefing me, they did not give me all of the information. They did not answer all of my questions. I needed to go and find out the answers to those questions myself.'' 15-2

I recently asked for a briefing note from G3 on one of their bills, and what I got was talking points that would have been worthy of somebody from the PMO five years ago. This is not what I consider helpful. It's not the organizing committee. At this point it would be, it seems to me, giving sufficient money to each committee so that they have the resources behind them, and they can go out and muster all of that research and examine resources to properly examine a proposition. You are saying yes? 15-3

Mr. Hall: Yes, I would agree with that. In fact, money that is now spent on caucuses, I think, should be redirected to committees so that work, the information that your secretariats put together, is shared by all senators, so then you really have a central secretariat sharing information, gathering information, both for committees and for individual senators. Then you know everybody has as much information as possible, rather than some information for this political party, and other information is for that political party, and this information is collected by the Independent Senators Group. Let's pool our resources, and maybe we would even save a little money along the side. 16

Senator McCoy: Okay. Thank you. I won't pursue it because there are so many others. 17

Senator McIntyre: Thank you for your presentations, which I found rather enlightening. 18

I have noted the specific recommendations of your own that you wish the Senate to consider, and I thank you for same. 18-1

In October of last year, this committee filed a report on Senate modernization. It contains 21 recommendations. Bearing that in mind, and turning to this committee's mandate more generally, do you have any comments on the recommendations this committee has already issued? 18-2

Mr. Hall: No, I think you suggested Question Period maybe twice a week. I would have thought maybe once a week might be sufficient, except exceptionally for twice. I think your idea of calling ministers and officers of Parliament is a great one. You might even extend that to others. 19

One of the things I observed when I was on assignment in Quebec City is that they had a process—I don't know if they still do—that on certain Fridays of the sitting, a particular committee would sit in the chamber and grill the minister that reports to that committee. Basically, that's what you're doing now on the floor of the Senate. I thought it was a very productive exercise when I was in Quebec City. I'm glad to see the Senate has adopted that on its own. I think that's a great innovation. 19-1

The chair finds I talk too much, but if I might suggest, there are two other things I think the Senate could do that would increase your role. You serve a very long period of time. And the members of Parliament don't. You develop an expertise and knowledge. Senator Joyal said you don't know everything, but you learn a fantastic amount in the time that you serve in the Senate. 19-2

Members of Parliament rarely get that opportunity. Their focuses—I say that from working in the House of Commons for so long—are on the constituents, on the party and on this, that and the other thing. They don't even stay in the same committee all the time. The whip is constantly replacing them. 19-3

I would suggest that you consider doing what they don't do, which is scrutinizing government administration more carefully, rather than just calling ministers. I think the senators could do a great job coordinating with the Auditor General, and looking at the administration in more detail than the members of Parliament do. They don't do a particularly good job at that. 19-4

The other thing is—this is along the same line—that you have a joint committee that looks at delegated legislation, which is statutory instruments. Take that away as a joint committee and make it just a Senate operation. I think the senators would do a better job, frankly. That's a lot of work, and it's productive work, because government regulations are ignored by the House of Commons, except the few MPs that sit on this joint committee. It's rare that they take a big interest in it, I think. Derek Lee was probably the last one that did. Those are two suggestions. 19-5

Mr. Levy: Basically, I liked all the recommendations in your report. I mentioned the question of omnibus bills. I had a slight difference on that as I thought maybe the Speaker was the one who would decide that. 20

In any event, I think that's so important because I basically lost any faith in the House of Commons being able to deal with omnibus legislation. In the last Parliament, we had an omnibus budget bill that changed the process whereby people are appointed to the Supreme Court until the court finally declared it was invalid. If the House of Commons cannot stop an omnibus bill like that, then I think someone else, such as the Senate, has to step up and do it. If you were to divide a bill or two, I think they would get the message very quickly. 20-1

I don't think there was a recommendation about the use of time. That is something that might bear looking into. It's more an issue for the House of Commons, but I think there is room for a business committee with a specific rule on how you use your time on different bills. The U.K. has moved in that direction in the House of Commons. I wish our House of Commons would follow, but I think there's a better way to come up with how you divide up your time. That might be something to look into in the future. 20-2

The Chair: That part is coming. 21

Senator Eggleton: Thank you very much to the both of you for coming and for your ideas. You've given us some good ideas, both of you. I particularly want to single out what you said, Mr. Hall, about what the essence of the Westminster system is and it's the lower house. It's the adversarial system, it's the confidence structure, it's the executive within the framework of the lower house. The upper houses in the Westminster system are all different. We're different. U.K. is different. They're all different, and they can be in fact moulded to what each country wants in terms of an upper house, so I think we have a Westminster system but we have a differently designed upper house. 22

I want to talk about partisanship. This gets a lot of play. The appointments are coming for people to be less partisan and more independent. Partisanship is generally—I think most of the public as well—associated with the traditional political parties. In fact, part of our rules or legislation, I can't remember which one it is, says in order to be a party caucus we have to be a member of a political party that's registered with Elections Canada. Well, there's only the Conservatives, the NDP, the Liberals and maybe a few others, but it's the traditional political parties. 22-1

Why couldn't we have separate partisan groupings here? People who would form on the basis of their common beliefs, their values; certain people are like-minded in many ways, and maybe they form a group. You could consider that partisan, but it's not part of the political party structure. 22-2

In fact, being part of the traditional political party structure is a problem in terms of the intention of the Fathers of Confederation. They said they wanted an independent house. Well, I can tell you as someone who has sat in a caucus for many years, both as a senator at one point in time and also as a member of the house, you're not very independent as part of a member of that national caucus. It's all hyped and geared towards a team approach constantly. So I think that flies in the face of independence. 22-3

If you're saying that there's nothing wrong with being partisan and if we're going to follow the Fathers of Confederation in terms of independence—and, of course, that's what the Supreme Court also indicated—then why don't we just have separate partisan groupings based on common values and beliefs? What do you think of that? 22-4

Can I mention one other thing? In this connection, the whole idea of ensuring that there's critical comment and critical examination of legislation, I would suggest to you doesn't require a political party structure. It doesn't really require a partisan grouping structure because—and I've said this to my colleagues before—the sixth-largest government in this country does not have a political party structure. It's bigger than half the provinces. It's the City Council of Toronto. I can tell you that while it doesn't have a political party structure, when I was Mayor of Toronto I had no shortage of critics, no shortage of people that said, "There's one mayor and the rest of them think they could do a better job.'' 22-5

Senator Tkachuk: It's such a well-run city. It's a great city. 23

Senator Eggleton: It's as well run as any government in this country. 24

Mr. Levy: What you're saying and what Thomas was saying is perfectly possible in theory, but I think we have to deal with some reality. We also have to say that the Senate now I think is functioning quite well, but it's also in a very particular time. It's the start of a new Parliament and you have a situation where there's no permanent leader of either of the main opposition parties in the House of Commons. So it's a rather unusual period. 25

As we get closer to the election, as those parties have leaders, things are going to get more partisan in the House of Commons, especially as you get closer to the election. This is going to spill over into the Senate. I've lived long enough and seen enough to know that is going to happen. 25-1

You have an opposition established in the Senate that is going to oppose, and we don't have conventions as they do in the House of Lords that say government business should be dealt with in about 60 days. So you could have obstruction and a lot of delay. Then the non-partisan senators, the unaffiliated senators, are going to have to make a decision. Are they going to support the government on vote after vote and get its legislation through or are they not? And if they do, then the question will arise as to why are they really not part of the government caucus since they're helping to get their legislation through? I think that whole spectacle tends to erode the credibility of the institution in a way that wouldn't if they were in a party. I think that's the road we're heading down. 25-2

I do agree, as you said and as Thomas said, that there are other ways that could work in theory, but I don't see it working in reality. 25-3

Senator Tkachuk: I have a couple of questions for Mr. Hall. Thank you both. Nice to see you again, Mr. Levy. 26

We've discussed this question of non-partisanship and partisanship quite a bit in this committee. Do political parties make you a partisan or are they a vehicle for people with certain beliefs to go into? When you talk about partisanship, what are you talking about—people's belief systems? If I joined a political party that makes me a partisan and before joining it I'm not a partisan, even though I'm a Conservative? 26-1

Mr. Hall: I've only used the expression "non-partisan'' in the context of the appointments that the Prime Minister is making. My understanding is that means they're not members of any political parties and they're not appointed to sit in the Senate as a member of a party. 27

Senator Tkachuk: Does that make them non-partisan? My view, so it's obviously a partisan view, is that they're all left of centre, so what's the difference? Why wouldn't they join the Liberal Party and say what they are, or NDP or the communists, for all I know? 28

Mr. Hall: He may be appointing people who are left of centre because there are already a number of Conservatives here. 29

Senator Tkachuk: Exactly. So we are going to have a partisan Senate because that is what we are. We are partisan. We have all those people being appointed by the present Prime Minister who aren't Conservative. I know they're not Conservative. 30

Mr. Hall: The majority of Canadians do not belong to any political party, and I think the fact that he's appointing people who don't belong to a political party is an opportunity to recognize that the majority of Canadians aren't in this adversarial position. It's not like the United States where everybody is divided between Republican and Democrat, even down to school boards and municipal bodies. It's incredible down there. But here that doesn't exist. 31

Senator Tkachuk: But is that a good thing or a bad thing? I'm saying that on city council in Saskatoon we don't have political parties, but I know who's left and who's right and everybody in the city knows who's left and who's right. The only difference is they don't spend the money to buy a membership and get involved in the process. 32

My view is that when you talk about non-partisanship and the media talks about non-partisanship, they're talking about a situation that does not exist. Everybody has a brain in their head and everybody is a partisan. Therefore, if you're saying you want a non-partisan Senate, I'll tell you how you get one. You put in a left-winger and you put in a right-winger. You put in a left-winger and make sure they're equal and then you'll have discussion on the bill and we'll have a non-partisan Senate, otherwise it doesn't work. There is no such thing as a non-partisan Senate. 32-1

Mr. Hall: That's one interpretation. 33

Senator Tkachuk: That's the only interpretation. If you have 80 per cent of the Senate that are left-wingers, then the Senate is left wing. There's no discussion of views. It's only one view. Watch the vote in the next few years and see what happens in the Senate. It will all be the same. 34

Mr. Hall: I'm glad you made that point, because here's where I disagree with Professor Levy. Don't look at your votes to decide whether a person is voting for the government. The Senate should pass most government legislation, not vote against it. You're not supposed to be a rival of the House of Commons. 35

If you were a rival of the House of Commons, then you would be defeating bills from the House of Commons. It should be rare that you defeat a bill. It should be more frequent that you suggest an amendment to the bill, but the rest of the time you should examine the legislation and see if it's acceptable. If there's nothing wrong with it, and you can't suggest any amendments, then pass it. That doesn't mean you're in favour of the government; that means you're doing the Senate's work. 35-1

The Senate's work was to scrutinize the bill, and once you've scrutinized it, pass it or suggest amendments to it. It's not voting for the government. You shouldn't be voting against bills. 35-2

Senator Tkachuk: I would suggest, sir, that is our culture. Our culture in the Senate, or at least the Senate that I've been part of, we're very careful about defeating a government bill. As an opposition member, it has only happened once. That's it. 36

Do you know that in June of last year, the budget was passed in committee with the Conservatives being in the majority? The Conservatives were in the majority. Everyone else had gone home. We were the only people in town, and we passed the budget because there was no one looking after our business. 36-1

That is our culture, sir. That is the way the Senate operates now. Historically, if you do your work, and you look at how the Senate operates, that is how we operate. We take that very seriously, because we know that people went to war to have a House of Commons that was elected and independent to the King. It's important to us, and we understand that. 36-2

Mr. Hall: It's also part of the Senate's history that Brian Mulroney, when he formed government, had his bills blocked in the Senate. That is also part of the history— 37

Senator Tkachuk: I'm talking about Conservative culture, not Liberal culture. 38

The Chair: Time is of the essence. Please. 39

Mr. Hall: My point is that there have been terrible abuses in the past. 40

Senator Tkachuk: I agree. 41

Mr. Hall: And if we get rid of that culture, perhaps we won't have the abuses of the future. 42

Senator Dean: Thanks to our expert witnesses for terrific presentations. Given that this is the last question, this is probably the time for me to admit that I have a degree in sociology. 43

Mr. Hall, I like the concept of a deliberative Senate. You said two things that are really important. One is the importance of reducing the degree to which parties control and direct the upper house. You also made the point that every vote should be a free vote. This is consistent with where the Supreme Court went on its reference decision in 2014 in talking about a more independent and less partisan Senate. It's consistent with where the Prime Minister has taken us and is going with appointments. 43-1

Regardless of design and mechanisms, whether there's an organizing committee or caucuses, whether there's something called an official opposition or an unofficial opposition, should there be a principle, as we go forward, that in this more deliberative enterprise that senators, in adopting positions and in their voting, should be free of influence, coercion, sanctions and any other influence that might persuade them away from their intellectual and natural inclinations, having heard the evidence on a particular issue? Regardless of where we go on design, is that a principle that goes to the heart of a more deliberative, independent and less partisan Senate? 43-2

Mr. Hall: Yes, I would agree. I should mention that the idea of making this a more deliberative body is not mine; I stole it. It is a British professor, Professor John Parkinson, who has written a nice paper on deliberative democracy and how it could be adapted to the House of Lords and that it would serve as a complement to the House of Lords. Deliberative democracy is another way of doing democracy where you're not voting. That's the political scientist's term. Gary probably knows more about it than I do. 44

Basically it's the idea that rather than having a majoritarian system, you've listened to debates in the House of Commons; you know what the government and opposition parties are going to say. Who wins? Whichever one has the most seats. That's the majoritarian. So it's adversarial and majoritarian. 44-1

In the Senate you should be discussing the evidence. What does the evidence tell us? We've heard from so and so, and we do bring our own personal views. 44-2

Senator Tkachuk is quite right about that, and that's good because you want a mixture in the Senate. You don't want everyone with the same view. That would be a rubber stamp. You want the argument to take place in the committee and to bring those facts to the floor of the Senate, but you're free to judge them and react to them all together, as senators, without any party line or party rules. You're not looking at any partisan advantage, but judging it on the way you understand it should be done. 44-3

Senator Mercer: Senator Tkachuk, you almost had me agreeing with you 100 per cent until your last comment, because he makes a good point. 45

I have a bunch of things I would like to say, but I'm going to stick to the one that I've been before the committee with before. Mr. Levy, in your opening comments you made reference to the election of the Speaker of the Senate, but you didn't give an opinion. I'd like to hear your opinion. Obviously, Mr. Hall, if you care to comment as well. 45-1

Mr. Levy: I've changed my view on the role of the Speaker. I didn't used to think it would be a good idea to have him elected, but given that you're rethinking the whole idea of the Senate, it is time to also look at the speakership. I think an elected Speaker would be desirable for all the other things that have to be done. You need a strong Speaker. 46

In your proceedings I heard at least three people and they all had different views as to what type of amendment formula would be required. I have my view, but I'm not a lawyer, so I'll defer to them. There's also a non-legal way to do it, which has been mentioned. It's a good idea whose time has come. 46-1

Like I said, I used to think that, as Thomas mentioned, the Speaker, someone who is appointed by the government, might be—in fact, I think in his presentation he was almost suggesting that that person could be the government representative. That would be another approach. 46-2"

As we know, in the U.S., the Speaker is the head of the political people, but I don't think we want to go in that direction. I think we want to stick with an impartial and powerful Speaker, and therefore, I think he should be elected. 46-3

Senator Dupuis: Thank you to our two witnesses for helping us reflect on what the Senate committee has called the modernization of the Senate, that is, the expectation of major changes in the way Senate appointments are made and in the very essence and operation of the Senate. 47

Just as being a member of a political party does not discredit anyone in the Senate, not being a member of a party does not discredit them either. In recent months, we have heard disparaging remarks about the new independent senators, and the fact that they are not members of a political party seems to be the issue. 47-1

Here is my question for you, Mr. Hall. You talked about opposition and I am sensitive to Senator Joyal's arguments about the need for the Senate to play a critical role in examining the bills referred to it by the House of Commons. The first of my two questions is the following. Is it mentioned anywhere that the opposition to or criticism of bills must necessarily come from the official opposition, that is, from the party that is the official opposition in the House of Commons? Is it possible for the role of the opposition, as a critic of the bills put forward by the government, to be played other than by the party that is the official opposition in the House of Commons? In the current context, what would prevent the NDP from playing the role of official opposition in the Senate? 47-2

Mr. Hall: I completely agree with what you are saying. There is no reason that a single party has to play the role of official opposition. It is not a play, where one character has to oppose a certain bill and another character has to defend that bill. It is up to each senator to decide if they wish to oppose or support a bill. You must all play that role of critic by examining the bills from the House of Commons. This role is not exclusive to a group of senators designated as part of the official opposition. 48

That is how it works in the House of Commons right now, but the same model does not have to be reproduced in the Senate. You are free to criticize bills put forward by the government. 48-1

Senator Dupuis: Mr. Hall, in the process you have conceptualized and are presenting to us today, have you considered the possibility that the role a minister plays in defending a bill in the Senate could be played before all senators, so that everyone has the opportunity to understand the details of a bill, instead of it being referred to a committee? If I understand your process correctly, this would take place at a committee meeting. Have you imagined another scenario where this discussion with the minister might take place in the Senate chamber instead? 49

Mr. Hall: Yes. If we include that idea in what I have already proposed, we could do that in the Senate. Once the committee report is tabled, senators could ask to hear from the minister. 50

Senator Forest: In my opinion, it is clear that you decided to create the Committee on Modernization before the much talked-about period during which the large cohort of independent senators was appointed. It was stated at the time that it was necessary to reflect on updating the Senate in order to bring it into line with Canada's current values and reality. That was to be done in a context in which Canadians' trust in the institution may have been shaken. 51

To pick up on Senator Tkachuk's very astute observation, I would say that being partisan means having values and beliefs that guide our decisions. I hope we are all partisan in the Senate because, without values or convictions, I wonder what we would base on our decisions on. What threatens the operation of our venerable institution is partisanship, but having values does not make you partisan. 51-1

I have two quick questions for you, Mr. Hall. When examining an institution, we have to look at its essential mission. There are a number of documents and opinions, in particular the Supreme Court reference in 2014, which stated that the Senate exists to provide a second, non-partisan review, to represent the interests of the regions, minorities and underrepresented groups and to strengthen our laws in order to reflect those realities. Looking at the genetic make-up of the institution, I think non-partisanship is a very important feature. 51-2

As to Question Period and the way it works now, what is its purpose? Is it to inform the Senate about the bills under consideration or is to highlight or accentuate the fact that promises have been broken? 51-3

What is our objective as an institution? What added value does Question Period provide for our mission of improving the bills under consideration? In terms of "questioning'', it is the manifestation of partisanship that is not healthy for the institution. That is my personal opinion, and perhaps you will convince me otherwise. 51-4

In our discussions about Question Period, Senator McCoy said it is not easy to get information. I recognize the important work that is done in committee, but we cannot serve on every committee. 51-5

I spend all my time in committee. I do not know why I have an office because I am always in committee. Apart from that, as to the other matters that are addressed by other committees, could Question Period not serve to at least inform all senators? 51-6

Although I am an independent, I would never be forced to vote a specific way. I am not here for that. I want to make up my mind based on my knowledge, my values and my convictions. I want to make a decision that is in the best interests of those I hope to represent, not by being elected, but based on my experience and reality. 51-7

As to Question Period, I think we should give some thought to making it more relevant and effective for all members of the Senate. 51-8

Moving on to my second question, we have made many changes to the way debates proceed. In the past, the government leader in the Senate was in the chamber. Now there is a team representing the government. I agree with Senator Joyal: the government's legislative agenda needs to be coordinated with the priorities of all members of the Senate, either through private bills or through committee work. Could there not be a model, such as the one of the government representatives, whereby representatives of the Senate, with a fairly small team, could work with all senators, whether by group, affinity, caucus or otherwise, for the purpose of coordinating our work for greater effectiveness? We have a responsibility to Canadians. We are not here to delay files, but rather to move them forward. Some coordination is needed. How could our work be more effectively coordinated? The proceedings of the Senate will be televised soon. We have to think about how we could be more effective. 51-9

Mr. Levy: You raise so many questions about partisanship. In terms of my presentation, I want to be clear that I don't think the members should be part of a national caucus. I wouldn't go that far. I don't think there should be whipped votes. I don't think there are whipped votes now in any party. 52

I have a slight disagreement with Senator Tkachuk in that I don't think absolutely everybody belongs to one of the two or three parties. There is room for some independence. Some people are just not happy and don't fit in parties. There should be room for them, as there is in the UK with a small number of independents. I'll leave it there. 52-1

Senator Lankin: I have a couple of comments and a question. There is much more that I hope we have an opportunity just to discuss these ideas with each other and explore them. The partisan/partisanship question is a really interesting one in getting to the root of those words, what they mean and what people actually object to or don't. We could spend time on that at another point. 53

The Chair: Behind closed doors. 54

Senator Lankin: Yes. 55

For the record, I want to say to Senator Tkachuk that if you were referring to last June and the vote on the budget that you're incorrect to say that it was only Conservatives here and everyone else had gone. I know from myself and some of our colleague that we were here. We were not at that point in time allowed to vote, because the Conservative caucus had not agreed to a motion to allow us to be members of committees and vote on committees, but we were here. That's just to correct the record on that. 55-1

Senator Tkachuk: You're not correct but— 56

Senator Lankin: I do note the scenario you talked about, Mr. Levy, where you could have an opposition party voting against government legislation and all the independents might feel compelled to vote for a government piece of legislation, because of the role of the Senate in terms of when we should be voting against and what we're looking for in terms of constitutional compliance and other things. 57

That's quite right; in fact, that has happened. When Senator Tkachuk says that the culture of this place has been, for example, the Conservatives in opposition to raise issues but vote for a government piece of legislation or a budget to maintain that convention of what our role is, I would say that was up until the time that there were enough independents that they didn't feel compelled to do that anymore and now regularly vote against, and leave the independents in the situation of determining what our job in the Senate is and when we should vote for and against, and then point to those votes as being evidence of lack of independence. To me, that's an element of partisanship versus the role of partisan values being brought up and explored in debate. 57-1

The issue of how we get information and research, and explore and examine bills from a critical base of evidence is a really crucial one. Any kind of change that allows us to do this job in a thorough way and explore all sides of an issue, without it being vested in a research bureau within caucuses, per se, is a critical one for us. 57-2

Forgive me if I've mentioned this before, but a number of years ago, I had the opportunity to bring an assistant deputy minister from the U.K. over for a special project with us. He told me at the time that he worked in the Whitehall Research Bureau for the opposition. I don't know what it was called. But it was a parliamentary-funded office that provided deep opposition research for all opposition parties. I think the caucuses had their own particular top-up on that. 57-3

I wonder if you're aware of that. I don't know if still exists. If I haven't asked before: Is there any way we could look into finding out what was that was and if it was deemed a successful model? If it doesn't exist, maybe it was deemed unsuccessful. I'd like for us just to learn from that experience. 57-4

Is that a potential way to be able to provide, beyond the kind of research that the Library of Parliament does, with a critical eye of examining legislation the kind of information that all senators would need? 57-5

Mr. Hall: I'm not familiar with that particular setup. However, I would say that I don't think it should be within the government, but I do think you're going to need a more robust kind of research. It's not just research but also ensuring that everybody has the information they need so there is a communication and a flow there, so that all senators can be aware of what is going on. 58

As the senator said, you may want to have during your Question Period chances for committees to inform the body of senators what they are doing and the progress of the work. That's not a bad idea at all. 58-1

But yes, you should have a more robust system than the library might be able to provide you with at this time. 58-2

Mr. Levy: Briefly on that, it also applies not just for legislation but for some of your public policy studies. If you're going to do serious work on public policy, you may need to hire on a short-term basis—a year or 18 months—someone who is a real expert in that area. That would go a long way to improving the level of the p58ublic policy work the committees can do. So I'd encourage you to do that. 59

Senator Tkachuk: It should be clear that senators do have a large budget to hire people outside, so if a person wants to do their own research, there is lots of money available in senators' budgets. 60

Senator Frum: Mr. Hall, I take it from your response to Senator Tkachuk that you anticipate, as do I, that in three years' time at the end of this Parliament when we look at the voting record of the independent senators who are appointed by Prime Minister Trudeau that we'll see in almost every case that they will have voted in support of government legislation. Your point was that's as it should be. That is correct. And that's fine. 61

But when you look at my voting record, when I was on the government side, I had the same voting record. One of the reasons we're here at this table and have this committee is because when the Conservatives voted in support of government legislation, we were told this was toxic, poisonous partisanship, and that we were applying a "rubber stamp,'' a phrase you used earlier. But you're also saying that when you look at the voting record in future, the independent senators will have had an identical voting record, but in that case it's not meaningful because that's as it should be. 61-1

So I don't understand the difference between the Conservative rubber stamp and the independent senators voting for the government, as it should be. Can you explain the difference? 61-2

Mr. Hall: I never said the Conservatives were giving a rubber stamp. I'm not responsible for those accusations at all. 62

The real test is not how you finally vote for a piece of legislation. The real test is amendments. Did you propose amendments that were needed, or did you just let the thing slide through? Not every piece of legislation requires amendment either, but did you give it a good look and decide whether or not it needed an amendment? So that's really the test. Did you really examine the bills? 62-1

I know the Conservative senators did some good work. What usually happened—and this is an important point, because it happens in the House of Commons as well—is that the examination of the bills occurs in your caucuses. What this is going to do, if we proceed this way, is that the examination of the bills will be more transparent, out in the open, and you're going to hear everybody voice their opinions. The tendency, by examining the bills in the caucus, is that the caucus finally comes to a conclusion, and everyone is a team player, or not. 62-2

Senator Frum: I appreciate that answer. That's a good answer, a fair answer. I suppose an even higher test of independence would be if independent senators were supportive of amendments that came from caucuses not their own. Would that not be the ultimate test of independence? 63

Mr. Hall: Yes, it should. 64

Senator Dupuis: And vice versa. 65

Senator Frum: We don't claim to be independent. 66

Senator Lankin: So that's an option. 67

Senator Frum: I'm a partisan. I don't deny it. I'm proud of it. 68

Mr. Hall: This is one of the differences that— 69

Senator Forest: Take Bill C-29 as an example. 70

Mr. Hall: This is one of the differences with the House of Commons. The government rarely accepts opposition amendments whereas here you don't have that restriction. You can accept or reject an amendment from anybody, and that's how it should be in the Senate. 71

The Chair: Gentlemen, thank you very much. As you can see, we have a lively discussion and out of all of this, hopefully it will get some resolve. I believe we will. Thank you very much for coming. 72

Could we go in camera for just a minute or two? 72-1

(The committee continued in camera.) 73

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