 CANADA The Special Senate Committee on Senate ModernizationConsideration of methods to make the Senate more effective within the current constitutional framework: Issue 15? 44th Meeting, February 28, 2018 The Special Senate Committee on Senate Modernization met this day at 12 p.m. for the consideration of a draft report on methods to make the Senate more effective within the current constitutional framework. 1 Senator Stephen Greene (Chair) in the chair. 2 The Chair: Welcome to the Special Senate Committee on Senate Modernization. I want to welcome back Senator McInnis and to let him know he was missed at our last meeting. 3 I also want to welcome Senator Gold who is here today replacing Senator Verner, and I'm told that Senator Neufeld, who is replacing Senator Maltais, will be joining us. Oh, he is here. Good. 3-1 Today, we are considering an updated draft report on the Westminster system, or Westminster principles, if you will. The report has been updated to reflect input from committee members from our last meeting. 3-2 Like our previous meeting, I propose we go section by section as opposed to page by page. 3-3 As we proceed, I would like members to concentrate on the yellow highlighted text, which reflects updates suggested by staff in response to comments made at the last meeting. 3-4 The blue highlighted text refers to updates suggested by Senator Joyal, at the steering committee level, that he feels—as do I—add to the report. 3-5 If colleagues have questions or comments on a specific section, please wait until we get to that section as opposed to putting all of your remarks on the record at once. The clerk will start a new speaking list as we start each section. 3-6 Before we begin, I would like to note one update that you will not immediately notice as it is not highlighted because it was a deletion rather than an addition. 3-7 This has to do with the bullets on page 9. There previously was a bullet that referenced parliamentary supremacy as one of the principles of the Canadian Westminster system. At the suggestion of Senator Joyal, it was removed because in Canada Parliament has never operated supreme. It has always been restricted by the Constitution Act, first, in 1867, by the division of powers and, again, in 1982, by the Charter of Rights and Freedoms. 3-8 Unless there are any general comments, I would like to now proceed to the introduction section. 3-9 Looking at the draft, we see that the highlighted table of contents is the result of changing page numbers mainly. So can we go forward from section 1, introduction? Comments? 3-10 Senator Frum: I just have a question before we do that. Can I just understand what the purpose of this report is and what it is to be used for? 4 The Chair: Well, as you know, over the past year, we've had a substantial body of evidence presented by various people on the issue of what constitutes a Westminster system. We've been doing that really since we published the previous report about a year and a half ago. We've had academic input. We've had input from the people around this table, and we've had the leaders also providing input. So the question is, what is the framework that we're working under? And that is what the report is all about. 5 At the 6th meeting of the MDRN Committee, held on September 28, 2016, the Chair announced that "Over the next few weeks, we will be hearing from the leadership of the different Senate caucuses and groups. In my invitation to each of them, I asked them to reflect on the following questions: 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?" n5
Those points have been commented on by Senator Peter Harder, Government Representative in the Senate; Senator Claude Carignan, P.C., Leader of the Opposition; Senator Elaine McCoy, Facilitator, Independent Senators Group; David Docherty, President, Mount Royal University; Prof. Bruce Hicks, Glendon School of Public and International Affairs, York University; Senator Joseph A. Day, Leader of the Senate Liberals; Prof. Philippe Lagassé, School of International Affairs, Carleton University; Prof. Andrew Heard, Political Science Department, Simon Fraser University; Dr. Gary Levy, Research Fellow, Carleton University; and Mr. Thomas Hall, former procedural clerk in the House of Commons. As for the Westminster System, other witnesses have mentioned or commented on the Westminster System as well. n5A The late Dr. Gary was heard as an expert on the Westminster system. Futher about the U.K system, the Committee heard from The Right Hon. The Lord Wakeham DL, House of Lords; Lord Norton of Louth, House of Lords; Prof. Meg Russell, Director, Constitution Unit, Department of Political Science, University College London. n5B The following witnesses discussed the role of the Senate in Canadian governance and its relationship with the House of Commons: Prof. Adam Dodek, Faculty of Law of the University of Ottawa; Prof. John Whyte, Saskatchewan Institute of Public Policy; Prof. James B. Kelly, Political Science Faculty at Concordia University; Roberto De Luca, Staff Lawyer, Canadian Civil Liberties Association. An opportunity arose to also hear The Rt. Hon. Ken Macintosh M.S.P., Presiding Officer, The Scottish Parliament; and Sir Paul Grice, Clerk and Chief Executive, The Scottish Parliament. n5C Senator Frum: What is this report supposed to support? What work is this supposed to support? What is its purpose? 6 The Chair: This is the Committee of Modernization. It is a special committee. I really don't know or can't predict how long this committee will last, but, right now, we are in the midst of creating a report that will deal with modernization issues. One of them is the structure of debate, and it can be argued or not argued that the structure of debate is limited by the system that we've got. 7 Senator Frum: Okay. There are no specific recommendations in this report. 8 The Chair: No. 9 Senator Frum: So this is really a background. I'm asking these questions because I want to know just how vigorously to argue about it, frankly, because, as we discussed at the last meeting, there are those of us who do not feel this is a very balanced report, given the evidence that was heard. It's tilted in one way. There haven't really been very many changes. We were told at the last meeting that there would be a rewrite. There have been some— 10 The Chair: We never mentioned a rewrite. 11 Senator Frum: I thought we did. Anyway, there have been a few minor edits, but the principal report remains the same. So, therefore, the lack of balance remains the same. I only saw this five minutes ago, before the meeting, which wasn't enough time to really— 12 The Chair: Well, it was sent to all of your offices on Monday, I believe. Isn't that right? 13 Senator Frum: Yes? Okay. But the way we left things at the end of the last meeting was that the balance of this report was out of whack before, and, therefore, if you only made a few half dozen edits, that doesn't change the principal nature of the objections that some of us had at the last meeting. So we can go over those edits, but the principal objection remains. 14 The Chair: Let's proceed with the edits. 15 Senator Frum: Sure. 16 The Chair: So the introduction? Any comments? 17 Hon. Senators: Agreed. 18 The Chair: Agreed. 19 Section 2, "What is the Westminster System?" We've got some small edits in that section. 19-1 Senator Eggleton: I think, on page 5 in that section, lines 18, 19, 20, there is a good summary of the Westminster system. It says: 20 The draft report was, and maybe never will be, available to the audience listening in the current proceedings of the MDRN Committee, hence I do not know how the framers of the report summarized the Westminster system. n20 Overall, the evidence received by the Committee supports this thesis: the Westminster system is less a fixed and limiting prescription than a set of principles capable of alteration to suit the particular realities of the nation or community in which it is applied. 20-1 I think that sums it up, but I also think that the work is a good piece of work in terms of summarizing the testimony that we heard. Maybe there was other testimony that some people would have liked that might have changed the direction or the colour of this. I don't know, but I think that's a good summary. I think that really is what it's about. I think the characteristics of the Westminster system are, by and large, in the lower house, by and large in the House of Commons, and I think that's pretty well, as I understand it, the same for other parliaments. The upper houses can be quite varied and quite different. I think that's our case. Our Senate is unique to our needs and the country that it is a part of. 20-2 Prof. Lagassé, introduced by the Chair as an expert on the Westminster system, said, "Westminster is not a system so much as a set of principles that tend to float around." (Source.) Thomas Hall said, "The Westminster system is located in the House of Commons, period." (Source.) n20-2
I just wanted to point out that one thing. I agree with the document. I agree with the section that you've called, but I just wanted to point out that particular statement. 20-3 The Chair: Thank you very much. Anybody else on that section, or can we move to section 3, "'Canadian-Style' Westminster"? There are a couple of small edits in this section. 21 If it is agreed that the Westminster system only applies to the Commons, then why include the word "Westminster" in matters that pertain to our Senate? An Australian political scientist, asked how Australia, with all of its unique innovations, can continue to refer to itself as following a Westminster model, replied, "We don't. We call it the Australian model." (Source.) n21
Section 4 is Westminster governments around the world. The opening paragraph was reworked a little bit, as you can see. 21-1 Is that okay? On page 11, we've got Senator Joyal's changes there, which I accept. 21-2 Senator Bellemare: With regard to the section entitled "Westminster Governments Around the World," I would like to make a comment regarding the United Kingdom and the part that talks about the various changes that have taken place in the House of Lords. The process of appointing Lords has undergone some changes, which have been confirmed through legislation, I believe. The changes to the process of appointing Lords could be included on page 12 of the French version. A note could be added after note 38, or it could be inserted after the changes recognizing the group of independents. 22 If we look back, the number of cross-benchers in the United Kingdom increased gradually. They got organized. The appointment process changed in the year 2000. A commission was created that gathers the CVs of individuals who wish to become Lords. Political parties can also recommend names. I would have liked to see that change included. I don't know whether it's possible to add it. I would be satisfied with a footnote, but I thought it was important to point it out. 22-1 The Chair: Is there any reaction to that? 23 Senator Joyal: I agree with Senator Bellemare's suggestion. If I remember well—I don't have the text of the legislation in front of me, I just have the report of the Wakeham Royal Commission on the Reform of the House of Lords—it goes as far as to consult the leaders of the respective parties to maintain the balance between the various parties that are present in the Lords. 24 So in other words, if there are seats that should be occupied, for instance, by the Liberal Democrats, the Prime Minister will consult the Liberal Democrats' leader on the appointments. 24-1 So in other words, there is the principle of balance, and then the names to maintain the balance, of course, are determined by the leaders of the respective parties. So the Prime Minister doesn't appoint only, for instance, all Tory or all Labour. He has to maintain a balance. 24-2 We could certainly find a way to recognize that. And the commission has the role to suggest a cross-bencher. The commission has a certain number of criteria to follow, including regional considerations and minorities and what not. They come to more or less try to duplicate what we try to respect in the Senate when the Prime Minister makes appointments in different regions of Canada. 24-3 Senator Bellemare: But this commission especially tries to verify, per its mandate, the qualifications of those who apply. 25 Senator Joyal: I don't have the text of the act in front of me, but we could have recognition that the process has been improved and changed. 26 The Chair: We could have a footnote, perhaps. 27 Senator Frum: I think the obvious place to put that is on page 11. I was going to make a similar comment. Thank you, Senator Joyal. At the end of the first paragraph. 28 The Chair: The end of the first paragraph? 29 Senator Frum: At the end of line 7, where it says it's "... crucial that no one political party should be able to dominate the second chamber...." it could be useful to add the explanation there that Senator Joyal just gave: that the Prime Minister does appoint, on consultation with the leader of opposition parties, opposition members as needed. 30 Senator Bellemare: That would refer to the process of identifying the Lords. 31 Senator Joyal: It stems from the report's specific recommendations. 32 Senator Frum: I want to point out that opposition parties are consulted on who they want their opposition appointees to be. That's very important because it's not the Prime Minister appointing them himself. 33 Given that the Westminster system is something that applies to the Commons only, this part of the discussion does not make sense at all. Not to me, anyway—see above. Senator Frum's comment seems to relate to something she said at a previous meeting, "The Westminster system is entirely based on protecting a loyal opposition. That is the Westminster system. It's not about protecting the government; it's about protecting the opposition." In other words, notwithstanding what we heard from Mr Hall in terse form ("The Westminster system is located in the House of Commons, period.") the notion of a government with an opposition is distilled over into the Senate. It, therefore, seems to behoove me to quote Senator Joyal, "The Westminster system is based on a government and an opposition. There is the government of the day and there is the government in waiting, which is the opposition. The government in waiting is serious about its decision, because it pretends to be the government one day. That maintains the balance in the existence of the system. The existence of parties is essential in terms of maintaining the principle of responsible government. If the government failed, there is immediately another group ready to form the government. That's the essence of the system." (Source.) That statement is followed by elaborating paragraphs that consider the existence of an opposition in the Senate, but that should, to my mind, not be viewed as coming under the label "Westminster system." It is a distinct—and deep—concern that the Senator comes back to in subsequent meetings. n33
I have a feeling that what Senator Frum refers to as "Westminster system" is the way the entire government at Westminster operates whereas others use the term strictly to apply to the Commons at Westminster. Damn confusing. n33A
Senator Bellemare: In fact, I think they do, but they apply through a commission, and the commission verifies that the people are properly qualified, and then it goes to the Prime Minister, who decides who applies. But all the parties can propose candidates and groups and individuals. So there's a variety of applications. 34 Senator Frum: But the Prime Minister wouldn't appoint a Labour Lord without consulting the leader of Labour. 35 Senator Bellemare: I don't know about that. 36 Senator Joyal: No, that's the procedure. They consult on whoever is going to sit under the label of a party; it will not be imposed. 37 Senator Bellemare: It makes sense. 38 Senator Joyal: It makes sense that there is cohesion within a particular political group. 39 It's among the cross-benchers where a variety of people are drawn from appointments suggested by the public or by the various groups, because as you know, British society is very well structured. There are interest groups that have been represented traditionally, so they could propose names and so forth. And it's the commission that makes recommendations, but the Prime Minister is totally free to select among that group whoever he or she sees fit. 39-1 Senator Massicotte: Just to get things going, I have different opinions. What I would suggest, Chair, is to make sure I do agree with adding the one sentence that Senator Frum is recommending to line 7, but relative to all the background information that Senator Bellemare is recommending, we should do it by footnote. In other words, add the one sentence because that's the fact, but for those who understand more, there will be a footnote explaining the history and relevance of Senator Bellemare's comments, and I would leave the executive committee to decide on the final wording of those things. 40 The Chair: Do you agree with that idea? I'm seeing and hearing nods around the table. 41 Hon. Senators: Agreed. 42 Senator Lankin: Did you say you were hearing nods around the table? 43 The Chair: I did say that. Your hearing is good. 44 Senator Bellemare: I have a question on the case of Australia. Maybe you have the answer, and it could be interesting, maybe, according to the answer, to have a footnote on Australia. 45 We are saying that sometimes the senators or the Lords identify with a political party that is in the other chamber. That's the case in the U.K. 45-1 But because of the way the appointment process is done in Australia, it's elected every six years, as it says, and in the other place it's three years. When I looked at Australia some time ago, the senators belong to all sorts of political parties, but I'm not sure that those political parties are all recognized in the other place. 45-2 Do you know the answer? I don't think the election process is necessarily at the same time as the election process in the other place. Individuals who want to become senators in Australia may be from the Rhinoceros Party, or from other kinds of political parties as there are a lot of them in the Senate of Australia. Did you verify the association that the senators in Australia all respond to a political party that is officially represented in the other place, or whether there is a grouping that is not related, in part or in totality? 45-3 The Chair: We have our analysts. 46 David Groves, Analyst, Library of Parliament: I can double-check that. It is my understanding that there are parties that exist in one chamber that do not exist in the other chamber because of the different selection process. 47 Senator Bellemare: That was my understanding. 48 Mr. Groves: I wouldn't know at this point whether there are parties that are not formally linked that meet informally in caucus or informally across the houses. I can check that if you would like. 49 Senator Bellemare: I would like that very much. 50 Senator Massicotte: Where are we now? 51 The Chair: We just finished page 11, I believe. On page 12 there are no changes. 52 In order to reflect the last meeting, we've made some changes in wording, et cetera, and some additions under the conclusion. 52-1 Senator Stewart Olsen: On line 26, you have "... a role in holding the executive branch to account, in determining its composition, and in providing a forum for opposition...." 53 I don't quite understand what "providing a forum for opposition" means, and I think we have to be a little more specific in that particular instance. 53-1 The Chair: Do you have a recommendation? 54 Senator Stewart Olsen: Well, I'd like to hear from around the table perhaps. 55 Senator Frum: I have a recommendation. 56 Senator Stewart Olsen: Sure. 57 Senator Frum: After line 19, "principles are inherent," the most obvious and essential principle is opposition. The fact that that's not listed in lines 21, 22 and 23 is strange, and it belongs immediately after line 19 as the most essential and most consistent feature. If you read the previous pages about the other models, what do they all have in common? 58 The Chair: According to the Supreme Court, we are a complementary body, not necessarily an opposition body. 59 Senator Frum: You're asking the question what is the Westminster system. This is the broad principle inherent in the Westminster system. There is one broad principle, really. You can have these others, but there's one. We're not talking about the Senate of Canada. This is not a study about the Senate of Canada. It's a study about the Westminster system. To not have that in your list of broad principles—never mind foundational, essential principles—is an extreme omission. 60 "The broad principle," then refers to the entire government system at Westminster, see my previous note about this. n60
Senator Stewart Olsen: If I could, when you say "complementary body, "complementary" means much the same. I would suggest that in the House of Commons you have different parties, but you do have government and you do have opposition. 61 I think if we're a complementary body, then we have to reflect the opposition in the conclusion. 61-1 Senator Wells: I want to go directly to the conclusion and the complete absence of any discussion or any conclusion regarding official opposition. It is a pillar of the Westminster system. To follow on from what Senator Frum said, we're not talking about the Senate of Canada; we're talking about the Westminster system. At the beginning of line 26, "a role in holding the executive branch to account, in determining its composition, and in providing a forum for opposition...." Well, "a forum for opposition" is a clever way to say something else; "a forum for opposition" could be a newspaper, a blog, a soapbox or me standing on the corner, but we're talking about the Westminster system, which has a necessary and critical component called "the Official Opposition." That's why it's got upper case, why it's funded and why it's referenced. And it's absent in this report and in the conclusions, specifically. 62 That section in the draft may well be about the Westminster system and not about the Senate of Canada, but the ensuing discussion about that section is spilling over into the Senate of Canada as will be seen most clearly when Senator McInnis will be quoting from the MDRN Committee's first report, vide ultra. n62
Senator Lankin: I was just clarifying with Senator Wells that, of course, it is mentioned in the report. What he indicated to me is that it's not mentioned clearly enough in the conclusion. There is reference to it there, but it's not clear enough. 63 I don't particularly have a problem with it. I have a problem when you say it's the only broad principle. That's not true. I disagree with the factual basis from where you draw that assumption. The fact that in most Westminster systems there is official opposition is true. I don't think it's a problem to indicate that. I think it doesn't change the basic outcome of this report. 63-1- What we're doing here once again is arguing, jockeying and positioning around the real conversation that we need to have, which is how are we going to organize debate and the operation of the Senate? What role do funding and resources for an official opposition versus other groups play? Those are real and important questions. We've spent so much time at the Rules Committee and here jockeying around these little insertions of this or taking this out—it goes both ways—so we could have a document at the end that I would say any one of us who wants to read what we want into it can read what we want into it. It's important to get it done because it is a reflection of what we heard and of the importance of the issues. So I'd say put that in as a principle. If you want to be really accurate, then we can say, "in lower parliaments of Westminster systems." I don't care. We don't particularly have to— 63-2 Senator Frum: That's not true. In the U.K., in the House of Lords there is an opposition. 64 Senator Lankin: Sure, and we've heard perhaps that in some others there isn't, that they're broader than the houses or the parties that are in the lower parliament and that, based on the selection process, it has a big impact, and we're starting to see that here. It's different. This is evolving. 65 All I'm saying, Senator Frum, is that I understand what you're saying. I have from day one. But—and I've said this over and over again—could we stop the jockeying around these things and actually have the conversation? It gets into if, for example, we were to have some structure to work collaboratively to organize our debates, and it wasn't a one-off series of negotiations on a particular bill—you still may do that but you've got some approach to it—what could it look like if it was different from today? Is there a particular role, or privilege, or resources, or hierarchy to what the role of the official opposition is in that versus others? Whether it's the organization of the house, whether it is how we bring debates forward, whether it is the funding of our research, those are critical issues. I'm sorry; I'm going on. 65-1 I don't mind if people want to put that in that particular set of bullet points, but let's stop this and let's craft a discussion that actually gets to the real points of differences that we want to surface and see if we can come to agreement around them. 65-2 The Chair: Well said. 66 Senator Gold: So well said that I have very little to add except—and this is not to return to jockeying because I totally agree that there are more important issues that we ought to be dealing with going forward—the notion of an official opposition simply has no place in the Senate. It's not in the Parliament of Canada Act. I think that might have been a slip of the tongue, Senator Wells, but I would not approve of seeing that in the document. There's simply no legal basis for that. 67 That said, when the Supreme Court and, indeed, John A. Macdonald and others, spoke of the Senate as complementary, I don't think they meant similar. 67-1 Senator Stewart Olsen: I think you're reading into something that you don't know. I think they did mean similar. 68 If they mean "similar" then we would not have regions represented by defined quotas of Senate membership. Or the UK would have quotas for England, Ireland, Wales, Scotland. And we would have the British way of ensuring a majority of senators beholden to the governing party, a point Senator Joyal will elucidate in this session. n68 Senator Gold: I will let that pass. But if I may continue, I do not believe they meant similar; they meant that the work of the Senate ought to complement that of the House of Commons. 69 In that regard, not only were there structural differences from the start, but we've now come to understand with the help of the courts that those structural differences—like the fact that we're not elected, amongst other things—have helped structure the different way in which we approach our tasks from the way parliamentarians in the other place do. 69-1 I think Senator Lankin is quite correct that, in terms of the Westminster system writ large, we do have to distinguish, if we want to—and this document doesn't fully, which is fine—upper and lower chambers because their roles are different. For example, responsible government and holding the government to account in the sense of responsible government is clearly only a lower chamber function, as a confidence chamber. It doesn't belong in the Senate, whatever other important work we do in guarding against majoritarian excess and so on. 69-2 I think that representative and responsible government does capture the idea that in lower houses there is typically an opposition party. But again, as long as we avoid terms that really don't belong here, like "official opposition," I think the document can live with some insertions. I'm not going to stand on that point. Thank you. 69-3 Senator McInnis: Thank you very much. There was much discussion leading up to Part I of our report with respect to opposition. Permit me, if you will, to read from Part I, Senate Modernization: Moving Forward, at page 26: 70 Finally, in upholding the long-standing and effective tradition of our House of Parliament, the Senate has been and is comprised of senators who propose and those who oppose; those senators who are associated with a recognized party under the Canada Elections Act and who have the greatest number of senators who are not government supported shall be the opposition. 70-1 But do we need to uphold that "the Senate has been and is comprised of senators who propose and those who oppose; those senators who are associated with a recognized party under the Canada Elections Act and who have the greatest number of senators who are not government supported shall be the opposition." The MDRN is about modernizing and therefore involves breaks with past practices! The Report's paragraph referred to is not recommending any such "upholding," it merely makes a statement that is followed by Recommendation 7 which offers a choice of definitions for "caucus." n70-1 That's what we agreed to in that part; that established it, and there was great discussion and debate. I think what I'm hearing here is—and I'm not saying it's intentional at all—that it is important, and perhaps not where it was suggested, but on page 14, line 1, where it talks about bicameral, "a second chamber which is not a confidence chamber, but plays multiple roles, including allowing for a diversity of representation, ensuring more robust deliberation and providing scrutiny of the executive." You might want to put something about opposition in there. I think that would be the appropriate place to put it. 70-2 It was not agreed to remaining a continuing practice. 70-2 I think what happens is—I don't want to say that our opposition, as it is, is vulnerable, but it plays an important role in the Westminster system. Sometimes we become a little conscious of the fact that, look, don't forget it. It's there and it's a responsible job that's being done. 70-3 That's not to diminish the fact that we are modernizing and there are senators coming in that are independent senators, and they may speak on their own and they may caucus. I don't know. I'm just telling you that that is a modernization part, but we cannot forget the group we've already identified here in Part I the opposition, and it should be mentioned from time to time. 70-4 That might be the right place to put it. 70-5 Senator Eggleton: I don't mind saying "opposition" in here. It's in here on line 27, but if putting it in the upper half also makes it quite clear that it's part of the principles inherent in the Westminster system, I don't mind seeing that. 71 "Official opposition" I do object to. I think official opposition does belong in the lower chambers of the Westminster system but not necessarily in the upper chambers. 71-1 I don't think our Senate is going to lack, regardless of the identities or the affiliations of any of its members, for any opposition, sober second thought or ability to change things they see need to be changed. We've seen that already. Numerous bills have crossed over party or group lines on the matter. Everybody is taking seriously the matter of sober second thought. I think that's the function of the Senate in the review of legislation. 71-2 To have some sort of thing called the official opposition which opposes for the sake of opposing, but also thinks its mandate is to make sure its people get elected to the House of Commons in the next election as the Government of Canada, is, I think, wrong in terms of the upper house. It's fine in the lower house, and that's where it is as the official opposition, or Her Majesty's Loyal Opposition, as it's formally called. But opposition with a small "O" is still necessary throughout the entire system, so I don't mind it showing up in here, but I don't think we need "official opposition" in the upper house. 71-3 The Chair: I agree with that, actually. 72 Senator Frum: I am okay with not using the words "official opposition," but I do think you need to say either "enshrined opposition" or "protected opposition" if we're talking about principles. 73 Senator Lankin, I appreciated what you said that this is jockeying. 74 Senator Lankin: No. 75 Senator Frum: No what? 76 Senator Lankin: I don't think you do appreciate what I say. I think you just rejected it completely by what you said. A protected opposition: That's the discussion we should be having and maybe the answer to that is yes. There's nothing in the principles or anything I heard that says that a protected opposition in a second chamber is a principle of Westminster. 77 I think you're still reaching to justify an end point you want to get to as opposed to letting us get to the conversation. 77-1 Senator Frum: I'm not reaching for anything. I find it bizarre we have the section preceding this, where you have Australia that's being used as an example of something, I don't know what, because it has an elected upper chamber, which is completely irrelevant to us. You have New Zealand and Scotland that have no upper chamber, but we're still using that as a learning tool. Why? Are we only looking at upper chambers? In which case, why are we including it in the study? 78 I find there's a lot of cherry picking of information. You want to prove a point about Scotland, but it doesn't have an upper chamber, but that's okay if you want to prove proportional representation is what you want. 78-1 What's very clear is that if you insist on having these other examples in the study, there's one thing they all have in common and only one thing, actually, and that's the one thing you refuse to put in this study, which is about having an agenda. It's about having a huge agenda. I can't sign on to the agenda when it's just so completely inaccurate, ahistorical and non-reflective of the reality of what it means to have a Westminster system. 78-2 The Chair: I think the Australian example is a good one because we have elected representatives in the Senate today. We have a couple of senators who were elected from Alberta and we may have more in future, so we should always keep that in mind. 79 Senator Frum: Okay. 80 The Chair: But the nature of opposition is an interesting question. I agree with Senator Eggleton. I have no problems with it being in the text somewhere except if it's "official opposition." That's a different story. Different words and different languages. 81 Senator Frum: Then we get to the point where we get the tyranny of the majority that is going to vote out the mention of opposition as a fundamental principle feature of the Westminster system, which is just a beautiful thing to watch here. 82 The discussion has veered away from one strictly concerned with the Westminster system. There is no sign yet that "the tyranny of the majority that is going to vote out the mention of opposition as a fundamental principle feature of the Westminster system." Not being under Bourinot's Rules of Order, this thing is beginning to turn my stomach. "Jockying" sounds more Bourinotial. n82 The Chair: You interrupted where I was going. Where I was going was the concept of a protected opposition or an opposition that is protected or that the ability to oppose needs to be protected. I agree with all of that. 83 Senator Frum: That's great. I'm glad you agree with all of that, but I'd like to see it in the report. 84 Senator Bellemare: I would simply like to point out that in the same text, on page 14 of the French, where it talks about the Scottish Parliament, it says very clearly that there is no official opposition, and that is the Westminster system. Geographically, that is where it is. There is no Senate, rather, just one lower House, and there is no official opposition. Any party that is not the government is an opposition party. The opposition is made up of a coalition of individuals of sorts, but there is no official opposition. I very much agree with Senator Eggleton's suggestion, a view shared by others as well. We could add the word "opposition." From there, however, to say that every Westminster system has an official opposition with a particular status is to contradict what is written in the report right before the conclusion. 85 Interesting, isn't it? n85 Senator Stewart Olsen: Thanks, everyone, for the input. Not wanting to be confrontational on this, but, line 1 on page 14 says "a second chamber which is not a confidence chamber, but plays multiple roles, including allowing for a diversity of representation, ensuring more robust deliberation," et cetera, et cetera. 86 Well, I think, if this is where we're going, then the Senate or the Modernization Committee must do a review of the system of appointment because, if you are going to assure that you have a diversity of representation in our country, then the system of appointment must be reviewed and looked at because we don't have a system of appointment right now that ensures a diversity. I think we must have a look at that, then. There's work to be done here. We have to ensure that—We have one farmer now, and that's because Senator Griffin spoke up and criticized the method of appointment. 86-1 I have a lot of views on that, but I think, if you're going to ensure that you have a functioning upper chamber, you must have an opposition. You must have supporters. You can't just review legislation ad hoc. How are you going to select a critic? You can't. And Senator Eggleton, you were happy as could be when you were in government, and you were happy as could be when you were official opposition. I don't want to go there, but I think now we should be really looking at how we function. 86-2 I should think that intelligent people are critical almost as per definition. One hates to see senators who are not of a discerning mind. n86-2 I think that's what Senator Lankin is saying, and I agree with her. But I think that, in this overall report, there has to be some reference to opposition. 86-3 Senator Lankin: I'm in agreement. 87 Senator Stewart Olsen: I hear you, but some aren't. Senator Gold is not. I think we have to have that. 88 Senator Gold: I'll wait my turn. 89 The Chair: I think there is a consensus emerging around the table that we want to add something about opposition and the fact that it should always be protected in some way. 90 Senator Stewart Olsen: And sorry to interject, but I did— 91 The Chair: But not official opposition. 92 Senator Stewart Olsen: I did notice that, in the British system, they suggest that "... it is nevertheless crucial that no one political party should be able to dominate the second chamber." 93 So I think it's reflected in all of the way we're going, so we have to ensure that we don't all think the same way. How we come to that, I don't know, but I think, in this report, we have to include something on opposition. 93-1 Senator McCoy: It seems to me that we're wasting time. I don't know, with all the best will and all the bright minds around this table, that we can find a way through to having a report that is going to reflect the views of everybody at this table—or in the chamber, for that matter. 94 I don't see the need to do so, frankly. This is not a recommendation. It's been a learning experience. Many of us have taken different lessons from what we've learned. 94-1 I'm certainly very clear in my own mind that the Westminster principles apply in a variety of ways. You have to have at least one legislative body, and at least that one legislative body has to have a government that is responsible to that chamber. 94-2 I think the first clear naming of an official opposition—Her Majesty's Loyal Opposition, I think it was called—was in 18 something; it was after Confederation. It was that late in the day. It was Victorian days when that emerged. The reason for it was so that you always had a government in waiting. More and more they didn't form governments out of the upper chamber in England. 94-3 That's all historic, and that's the beauty of this model that allows the evolution. So I think we should stop fussing. I think we should put this report to one side and say, "What a good learning experience it has been," and get on to something important. Let's talk about the real issues here. 94-4 The fact of the matter is we do need lively diversity of opinions, and we do need lively debates. We do need a thorough vetting of policies that are brought forward in the form of legislation if we're doing our job as senators. I think that's what we should talk about at our next meeting. 94-5 And we need to move as much as humanly possible from opinions to substantiated facts. n94-5 One other small point. The only bullet on page 14, which is the last bullet of that series, it was just a matter of wordsmithing, but, when I read it, I tripped over it. So I read it three times. It still didn't make a lot of sense to me. 94-6 I think what you're trying to say is, if you have—and it's not necessary that you do have—a bicameral legislature, that's number one. One of the principles is you may or may not have a bicameral legislature. Secondly, the second chamber, or upper chamber as it is typically called, is not a confidence chamber. Well, you can't say that because, in Australia, it is regarded as a confidence chamber. God knows what else, if we really dug into the practices in other areas, would be true. 94-7 The whole thing about this remarkable set of operating principles is their adaptability, and we have adapted it in Canada in a way that has suited us very well. What we should be searching for are answers to this question: Have we still got it right, or is there something we can do even better in 2018 and going forward? 94-5 Senator Gold: I obviously don't communicate very well because I actually do agree with both you and Senator Lankin. My point of disagreement was on the term "official opposition." 95 Look, I do agree we should be focusing on real issues, how we organize our debate, how we ensure not only that there's a diversity of opinions when we review legislation or embark upon studies but that there's a critical perspective, by which I mean someone who is not necessarily just agreeing with whatever comes, and how we allocate resources and privileges to the different groups that make up the modern Senate. 95-1 I have views on this. I shared them in the chamber on partisanship. I shared them recently on the strength of the arguments for an opposition in an upper chamber, as you know. 95-2 But I want to close on this. I've dipped in and out of this committee, as you know. I'm just subbing, and I have on a couple of occasions. I've been here for well over a year, and I can tell you that certainly on Rules, in the chamber, corridors and elsewhere, the idea of the role of an opposition—a protected one, or "entrenched" was the term that Senator Frum used—was always defended as being intrinsic to the Westminster system. I heard that from day one. I understand the logic of why this committee says, "Well, okay, what is the Westminster system?" What I take from the testimony and this report is that it's a pretty flexible system, and I think the document captures it well. 95-3 Again, I don't have an objection to including or strengthening the reference to opposition somewhere, either in the bullets or the text, so long as we don't say more than the evidence and the diversity of Westminster systems as they apply to both upper and lower houses allow. We have to be careful about the words so that we don't inadvertently say something that isn't true. 95-4 Beyond that, I hope we can put this not necessarily aside, but move forward with this so that we can get on with what I think are more practical and important issues for the benefit of the Senate and Canadians. 95-5 Senator Dean: I will not extend the debate any further. Thank you. 96 The Chair: That was the most important comment yet made. 97 Senator Frum: I think there is more agreement here than we may think because I would also like to see this put to rest, this report. 98 Senator Lankin, what I was trying to say earlier, what I agree with you about, is what Senator Gold and Senator McCoy said. We have practical issues. You want to modernize debate in the Senate? Let's talk about that, by all means. Having this duelling match, this dust-up, it shouldn't be so hard. We're in agreement. You also don't think it should be so hard. And we have heard Senator McCoy and Senator Gold saying the same thing, which is why can't we make a concrete proposal to put in, after line 19 on page 13, an opposition? The following broad principles are inherent with a Westminster system of government, either a protected or enshrined opposition. 98-1 Senator Eggleton: We should put it in after responsible government, ahead of the Royal Prerogative to start with, and after that comes the opposition. 99 Senator Frum: If that's what it takes to get it in there, let's do that. 100 Senator Eggleton: That's where it appropriately belongs. 101 Senator Frum: Okay. 102 Senator Eggleton: You're going to put it ahead of the Queen? 103 Senator Frum: Yes, actually. It's more important to democracy than the monarchy. 104 Senator Lankin: I could agree to that. 105 Senator Frum: I would say a protected opposition, an enshrined opposition, presence of an opposition. 106 The problem is that Senator Eggleton thinks he's the opposition in this government, right now in this chamber, and you're not. 106-1 Senator Eggleton: I didn't say that. 107 Senator Frum: I think you think that. 108 Senator Eggleton: I'm saying everyone has a role doing sober second thought to review legislation, and that creates a lot of opposition. 109 Senator Frum: There's a difference between people self-appointing and a protected opposition. 110 Senator Gold: We're slipping. 111 Senator Frum: Because we're not agreeing on the right word. Let me say this, and then I'll pass the floor along because I have other comments. 112 On page 14, line 5: "... Westminster does not impose a limiting approach to parliamentary design." 112-1 Yes, it does impose a limiting approach to parliamentary design. You can't have a unilateral chamber. That's a limiting approach it has. You have to have a government side; you have to have an opposition side. There are fundamental, foundational premises to a Westminster system. There is a limited approach to parliamentary design in Westminster. You said, Senator Gold, let's not say things that aren't true; that's not true. It's also not true on line 16 that Westminster principles are understood as descriptive rather than prescriptive. Not true. There is prescription in Westminster. 112-2 Finally, line 27, we can approach modernization with an open mind. The Supreme Court told us we cannot have an open mind. We cannot, for example, have term limits, we can't have elections, we can't abolish the Senate. We cannot have an open mind. That's just not true. These are things that are false, and I don't know why we are saying them in our report. 112-3 Senator Joyal: I will try to give some understanding of the concept that lies behind the words because that's essentially what we're wrestling here with. 113 When the Parliament of Canada Act or the rules or standing orders of the other place talk about an official opposition, it's essentially linked to the principle of the responsible government. In other words, there has to be a party that is always in standing to replace the governing party if that governing party fails to get the support of the house. That official opposition is the party with the largest number of seats after the government party or the party that has been called to form the government by the Governor General. The term "official" in that context or in relation to the House of Commons refers to that reality of responsible government. 113-1 In the Senate, the word "official opposition" takes a different colour. There is no government-in-waiting in the Senate because of course there is no government that falls in the Senate. 113-2 The word "opposition," in my opinion, is essential to the role of that chamber. The role of that chamber is what? The role of that chamber is to review the legislation. That doesn't mean you just peruse the legislation, such a nice thing to have a bill on the environment in those days that's so important and whatnot. 113-3 That's not the role of review. A review is to scrutinize and go deep into the legislation and identify the pros and cons. Having an opposition that is there, that is recognized, that exists, that is present means that there is a group, however it is formed, that will always have the responsibility to challenge the government's legislation and the government's decisions to make sure there is a debate where the multiple views are aired, proposed, expressed, and at that point in time a decision will be made by the chamber. 113-4 To me, if you wrestle with the idea of opposition in the Senate, at the point in time when there is no more an opposition recognized in our Rules, you will have the challenge to organize an opposition on an ad hoc basis. Suppose there are 105 independents. Some might be groups, some might not be groups. You might have three groups of different independents. However, at some point in time you will have to ask yourself who is going to be opposing the government on that legislation. Let's take the cannabis decision. Who is going to be organizing the opposition to that bill in a structured way, because it is an important bill, of course, and the various expectations generally in Canada are that there will be a democratic debate and that there will be a lot of challenges of the various elements of that legislation. There will be a group of senators who will support the legislation as is, and there has to be another group of senators who will challenge it on the basis of what it is supposed to achieve, and the good of it and the misses of it and whatnot. 113-5 Do you think that you could maintain the challenge to government legislation if there were no group formally identified at this point in time through the various elections that happened which will challenge the government? The debate will go in all directions at the same time. 113-6 This, to me, is the real challenge. The challenge is put to its extreme limits if there are 105 independents in the chamber, with no opposition. 113-7 The Chair: Do you not agree, though, that the opposition to a particular bill—name any bill—in our experience over the last couple of years has come from many different places around the chamber? We've had amendments put forward by the Liberals to bills. We've had amends put forward by the Conservatives and the ISG to bills. We are less reluctant as a group to offer amendments now than I think maybe ever before in our history. 114 Senator Joyal: Yes; I agree with that. 115 The Chair: So opposition can reside anyplace in the chamber. 116 Senator Joyal: But in my opinion, in a democratic system, there has to be the presence of a group that is identified clearly in the rules to be the one responsible to challenge the government on a daily basis. That doesn't prevent amendments and criticism to come from various sources, but we know that when the Senate sits, there is a group there on a daily basis whose responsibility is to challenge the government. 117 It doesn't mean that those who are independent or those who are from another political group cannot join or abstain from challenging the government, but at least the job of challenging the government is identified to a group of senators who define themselves as an opposition. 117-1 Let's make another scenario. Suppose we come to a point in our history down the road where there are 105 independents. There is a change of government and that government takes a stand on an issue that would really go against what we think would be the normal fabric of Canada. How do we make sure that the upper chamber that has the responsibility to review the legislation—and when I say "review," it doesn't mean to just read it and say, yes, it might be nice, it's to challenge it. That is what a review is, to push it to its limit. There are many meanings to "review." 117-2 To me, the important thing is that there should be an opposition in a democratic chamber—especially a chamber that is supposed to realize the diversity of views of Canada. Among the diversity of views of Canada there are the Tory, the Liberal, the NDP and the Green views; there are also the views of the Bloc. There are all kinds of views about the country. To make sure those views are aired in the chamber is proper. On the other hand, there has to be somebody, a group of senators, who, day in and day out, have the responsibility to challenge the government that occupies the role of government for a specific period of time. 117-3 The Chair: I'm not sure if I agree with that. 118 Senator Joyal: That's the Westminster model. 119 I have been impressed with defining the Westminster system as having an opposition in at least one chamber, which typically would be the Commons. So, I am quite non-plussed by this response. n119 Senator McInnis: Senator Joyal said it very well, but the way I look at opposition is that generally there is a philosophical bent that we have, and we become a team. Today we happen to be Conservatives, and we have common goals. 120 I'll be interested to know what exactly those common goals are. My understanding is that Canadian conservative goals have been in flux ever since Confederation and that any definition is bound to be on a slippery slope. n120 It is my understanding that conservatism opposes rapid societal change so as not to be overwhelmed by unexpected harmful consequences and to protect adherents' status in society. It better be considered that societal change is nilly-willy happening at an accellerating clip; there is no way of avoiding that, especially not in a global environment. That is why we have to move on from this wrangling to considering how best we can deal (learning to cope) with what is coming around the bend within a timeframe of months—decades at best. If we cannot put a brake on the flow we need to learn how best go with the flow. That is what my Senate essay and my Briefs to this MDRN Committee are about. Consider, if you will, how global society has changed just during the few years this MDRN Committee has existed! n120A The Chair: As I am. 121 Senator McInnis: Yes, that could be. We won't get into that. In this instance, we are the largest recognized party. But the way I look at opposition is that, as a group, we put our boots on in the morning. We come to work with an idea to critique. We're going to look at legislation in a critical way to make sure that it's correct—not making amendments for the sake of making amendments, but to do things constructively. There are some bills we would probably agree with. But for those reasons, we have an organized group called the opposition. You don't have to call it the official opposition. You can call it opposition. 122 That's how we got here, and we happened to have been appointed because we were Conservatives. We agreed with the philosophy of the Prime Minister of the day in government, so we were appointed. We are a group. We're a recognized group in a recognized party. That shouldn't be forgotten, as Senator Joyal said. It's an important group in the Westminster system, and it's an important group in our democracy. We shouldn't forget that. That's why I think it should be mentioned and mentioned many times over. 122-1 I do not know where we'll be. I've done some age checking and checking when senators will leave. There will still be a great number of Conservatives here in 2023. It's going to be a recognized party, and it's going to be an opposition. 122-2 It will be a long time, Senator Joyal— 122-3 Senator Joyal: It may be the government. 124 Senator McInnis: It may be the government. 125 The final point I want to make on modernization is perhaps what we do should be flexible. We're modernizing hopefully for the long term, and it's not going to be changed every other term. That's very important in these changes, namely, that there is some kind of consistency and continuity. 125-1 I doubt very much there will be a long term. We must modernize continually. n125-1 For what it is worth, I think the opposition plays a very important role, but I also see independent senators who are extremely competent and good opposition. I don't know how you operate, or if you caucus—I have no idea. You're an independent group and you do a good job. But I can tell you we're not lonely in our caucus in the sense that we know that we've got colleagues that are of like mind and that you can share. There is something valuable in that, I think. 125-2 Senator Massicotte: My interest is to try to agree to a report. I think it's a reference document, and I don't think any executive action arises from it, but it's an important debate. If I look at the constant, I think we agree that there needs to be an opposition. Forget the words "vibrant" or "real" or whatever. There has to be an opposition. We don't agree with the word "official," and we don't agree with the format at this time. I very much look forward to the debate we're going to have, but I don't think you're going to resolve it with this report. With this report I think there is a consensus on opposition, and we should have a discussion shortly as to how to best organize it for that debate. I think that will be very important. 126 Whatever the changes that will be made in the way senators debate Bills and other issues, we must consider that those will not be "perfect" from the word go; there will need to be opportunities for quick course corrections. And the way senators may best organize for the debate will depend on what the Senate should be and what it should do. To my own mind,it should rapidly transform into a guardian Senate beyond that of protecting minorities. One cannot protect minorities without protecting their "umbrella," the majority! 126 We should also have a discussion on your agenda about the independents. Maybe there should be a maximum. If you look at the British system, no one member ever controls the chamber. Maybe we should have debate amongst ourselves that no party should have in excess of 50 per cent of the Senate seats. Maybe we should have that discussion. That would probably also create a better opposition in the future. 126-1 But I think to come to an agreement, I agree with Senator Frum in a sense that we're talking about words here, and later on she makes reference to the Westminster model. In my words, it provides immense flexibility to go where you want to go, but it does have limits, such as term limits and so on. 126-2 I think you've got to choose the words to say it's not a buffet-style free-for-all. There are parameters, but there's flexibility within that to shape it and organize ourselves to do a good job for Canadian citizens. I think that's where we have to go. 126-3 And then, some minor stuff. I would like to choose words that are more understandable to Canadians because we hope people will eventually read this report. Responsible government and Royal Prerogative aren't defined very well in the report, so we should use words that are understandable. 126-4 With respect to the legislative branch, I think you mean the House of Commons, but the Senate is part of the legislative branch, too. It's not right to say we hold executives to account, because I think there is some wording there to make it clear and more easily understood by average Canadians. Less fancy, but a bit broader. 126-5 The Chair: After we hear from the rest of the senators, I'll ask the analysts to say what they heard. I hope the comments will be short because we're light on time. 127 Senator Wells: We've heard around the table the various references to opposition or official opposition. I agree with Senator McCoy that I don't think this is going anywhere. I heard Senators Eggleton and Gold, and in more depth in your speech in the chamber two weeks ago you gave your opinions. I don't think there should be an opposition. Senator Eggleton just said that. I'm paraphrasing, excuse me. 128 Senator Gold: Respectfully, that's not what I said. I was very clear on that point. 129 Senator Wells: What I heard from Senator Joyal—and I have on my desk a book called Protecting Canadian Democracy: The Senate You Never Knew, written by Senator Joyal—is that he wasn't presenting his opinion. He was presenting the fact of what the Westminster system is and the foundational aspect that the official opposition carries. 130 Senator Joyal did not write the book, he was the editor who also happened to be the author of the book's last chapter. n130 I reference Senator McInnis's reading from the earlier report. I believe it was the first report where he referenced those who propose and those who oppose, and that's how we find our balance. That's how we get our voices out. We know we don't win every vote in the opposition. In fact, we win very few, but the important aspect is that we get our voice out there. We lay it on the table for consideration. 130-1 Here is an example of a case where a simple error, shich I pointed out above, has taken on a life of its own. n130-1 I don't think we're going to reach a consensus today. We've walked around the table, and there are some who agree and clearly some who disagree with the wording of the report. I don't think the report reflects what was said in the hearings that led up to this. I know Senator Carignan was very clear about the official opposition, and there is virtually nothing referencing the necessity of that. 130-2 If it were appropriate, I'd like to move a motion so that we can move on from this and get to what Senator Lankin referenced earlier, which is getting to some of the real things that we need to discuss regarding the structure of the Senate. 130-3 Therefore, I would like to move that we shelve this document and move on to other issues. 130-4 Senator Frum: I would second the motion. 131 The Chair: We have the motion on the floor. We have to respond to it, so I guess we can either debate it or we can have a vote on it. I'm interested in hearing opinions. 132 No, I don't think there is a motion on the floor. Senator Wells "would like to move," which is not the same as "move"; Senator Frum "would second the motion," which is not the same as "second the motion." n132 Senator Wells: If I may, I think the debate has happened on this, so I would suggest—obviously. 133 Senator Bellemare: What is the motion? 134 Senator Wells: The motion is that we shelve this. We can't come to a consensus, in my opinion. I'm pretty sure I won't change my mind, and I'm pretty sure those opposed to my view won't change their minds. The motion is that we shelve this and that we try not to come to an agreement on wording because I don't think there is agreement on wording. Whatever is the official word for parking something forever. 135 The Chair: I'm optimistic myself. I think we have consensus in a number of places. 136 Senator Wells: Chair, I have no doubt that we have consensus in a number of places, but in the critical place I do not believe we have consensus. 137 The Chair: I think maybe we do. 138 Senator Bellemare: I had some comments to add to open the debate because, clearly, there is some confusion. There are very strong positions on both sides. With respect to Senator Wells' suggestion, I have in the past been a member of committees in other places where it was important to have a report. If unanimity cannot be reached—since consensus does not necessarily mean unanimity—we could vote on the report as presented. 139 I want to raise a point that is important to the debate regarding the need to have an opposition. We agreed on the word "opposition" without the word "official." There are other senates around the world that we did not look at, including the French Senate, for example. I'm sure Senator Joyal is very familiar with it. There is no official opposition, no opposition at all, in the French Senate, and debates take place among groups. Certain political groups align themselves based on political affinities. The French Senate is not the last of senates. We are not talking about a sparsely populated country. If we had looked at how the French Senate is organized, we could have come up with some solutions. On this motion, if we cannot open the debate to other issues— 139-1 Senator Neufeld: There is a motion on the floor. The motion isn't about the opposition. The motion about shelving this report. Senator Bellemare is speaking more to the issue that's been discussed here for the last hour and a half. 140 Chair, I think the real thing we should be doing now is, if someone wants to speak to it, they should speak to the motion and not the body of the report. 141 The Chair: I accept that. Do you want to say something, Senator Bellemare? Are you referring to the motion that's on the table? 142 Senator Bellemare: I am of the opinion that we should vote on the report rather than shelve it. In my opinion, if we adopt the motion, that is the same as not adopting the report. Let's be frank and transparent. Are we adopting the report or not? In any case, I am not entitled to vote. I am here as a non-affiliated member. I also do not represent the government representative. 143 Senator Gold: My reservation about the motion, Senator Wells, is only that we haven't had a chance to see how all of the discussion might or might not be incorporated into a revised text. 144 For sure, on some fundamental issues that are outside this document, we won't agree. But I thought we were fairly close to agreeing at least on some wording, subject to some of Senator Frum's observations about the last paragraphs, which I hope would be looked at, too, by the staff. 144-1 I would rather have a chance to decide to shelve or not shelve once we see the extent to which we can actually come together around wording. 144-2 The Chair: I share that sentiment. 145 Senator Massicotte: I kind of agree with that. I think we have made significant progress. I think we are getting close to agreement. Would you agree to shelve your shelving motion for a week to see what draft we come up with next week? 146 Senator Wells: I would agree to that. 147 The Chair: Okay. That's very good. We have something. We have agreement. 148 Is it agreed that the motion is withdrawn? 148-1 Senator Wells: With that caveat, yes, that we try to find wording that is agreeable or that we have consensus on for the next meeting or whenever the chair decides. 149 The Chair: Okay. We have senators Dean, Eggleton and Lankin. Then I wanted to turn to the analysts for them to let us know what they heard. 150 Senator Lankin is off the list. 150-1 Senator Dean: Picking up on Senator Joyal's comments about the need for opposition and challenge, and the need for there to be a backstop against perhaps the unlikely event that at some meeting—it wouldn't be in the near future—the Independent Senator's Group all aligned around a single common position, I would just say this: "Opposition" sounds fine to me. I'm not in support of any prefix to opposition, but just in my own sense, personally, of opposition, following from Senator Joyal's comments, I think opposition is important. What I'm concerned about, and in support of, is opposition where necessary and appropriate, but not necessarily opposition all the time, on all issues, which is, I think, what I tend to witness. So not opposition that replicates what we see down the hall in the House of Commons, but opposition that's selective and thoughtful and that can hold significance as opposed to just the everyday day to day opposition for the sake of opposition. 151 I would be a lot more comfortable with the notion of opposition—and I've said this before, and it's for a future discussion—if opposition went hand-in-hand with independence of all senators to feel comfortable to speak, to vote, to express their opinions without fear of sanction or retribution. We'll come back to this, but I felt that it was important. Others have expressed their personal preferences and inclinations, and I wanted to leave mine on the record today. 151-1 In other words, whips have no place in our Senate. Nor shall the ISG's scroll manager serve as whip. In fact, what Senator Dean is saying is entirely in line with senators being appointed "for the purpose of obtaining your advice and assistance in all weighty and arduous affairs which may be the State and Defence of Canada concern." n151-1 The Chair: Very good, very interesting. 152 Senator Eggleton: Just briefly to pick up on that, I think official opposition, government and opposition, does belong in the Westminster system, but belongs in the House of Commons, in the lower house. Do we really want a Senate that's a carbon copy of the lower house? I don't think that's particularly useful at all, and yet, if you set up the same dynamic—and we've had that dynamic in the Senate; we had it until this term, until this Parliament—I don't think that that is a particularly useful dynamic. 153 Support the government for the sake of it; support the opposition for the sake of it in a duplicate fashion of what the House of Commons is. I don't think it's particularly useful. 153-1 I think you will always have opposition. I've used the example before; I'll use it again. The sixth-largest government in this country, bigger than half of the provinces, bigger budget, bigger population than half of the provinces, does not have an official opposition. That's the Toronto city council. It's a big government entity in this country. I can tell you, from personal experience, having been Mayor of Toronto for 11 years, there was no shortage of opposition each and every day. There was always the mayor and a whole bunch of councillors who thought they could do a better job all the time, and there was no shortage of opposition, sober second thought, I'm thinking. Because the personalities of people are so different, people will look at things differently. There will be different philosophical direction. There was no official opposition, but a lot of them had leanings to the left, leanings to the right. You do get that dynamic that comes out of a system that doesn't even have an official opposition. 153-2 There is also one of the territories. It's a small territory, but Nunavut, I don't believe, has an official opposition either. 153-3 Senator McCoy: Neither does N.W.T. 154 Senator Eggleton: But I think that, in the Westminster system, that kind of dynamic does belong in the lower house, but surely we can come up with something different for the upper house. 155 The Chair: Okay. 156 Senator Massicotte: Do we want to summarize the debate? 157 The Chair: Yes, we want to summarize the debate. Senator Gold? 158 Senator Massicotte: We should avoid the discussion on— 159 The Chair: Let's summarize. 160 Senator Gold: Yes. Sure. This can wait till another session. 161 The Chair: Would you like to? 162 Mr. Groves: I'll try. I understand one agreement was made to add a sentence in the section on the House of Lords, and a footnote as well, discussing the appointment process of opposition members. I have understood that. Yes, of peers generally, but the reference, in particular, was to opposition members. 163 Just walking into the wood chipper, the second sentence was to add the presence of opposition to the bullet points on page 13, the presence of opposition, and I'm not certain there was agreement on where in that list that would go. 163-1 Senator Eggleton: After 21. 164 Mr. Groves: After 21, okay. So between lines 21 and 23, 22. Sorry. 165 Then the last change that I understood to have received some agreement was to go to the last page and to remove the words "or limiting" from line 5 and then, at lines 16 and 17, remove that first sentence and replace "they" with "the Westminster principles." Lines 16 and 17, "The Westminster principles are better understood as descriptive concepts rather than prescriptive ones." The change would be to remove that sentence and change the "they" in the subsequent sentence to the "Westminster principles." 165-1 Senator Frum: And what about line 27, with the open mind? There is no—create the sentence that we want. 166 Mr. Groves: Okay. 167 The Chair: Do you have language to propose? 168 Senator Frum: I think it's a total rewrite, frankly, but, if you would like, I can propose language. I don't know if I can do it this absolute second. 169 Senator Gold: Might I suggest "subject to the Constitution" or some sort of general phrase that captures the idea that there are, after all— 170 The Chair: That's a good idea. 170 Senator Joyal: That has been the terms of reference. 171 Senator Gold: Yes. We're free within those constraints. 172 Mr. Groves: "With this conclusion and subject to the restrictions of the Constitution...." Maybe "restrictions" is the wrong word. "Subject to the Constitution, the Senate is free to approach the modernization project with an open mind and a focus on how—" 173 Senator Frum: The "presence of an opposition" may not be satisfactory. I'm going to have to think about that myself, if that language is good enough, because it might not be forceful enough for some of us, but we can discuss it at the next meeting. Oh joy. 174 Mr. Groves: Or we can do as we did with Senator Joyal and incorporate her suggestions. We're going to circulate it. 175 The Chair: We're going to be done. 176 Senator Frum: I don't want to waste your time because I think "a structured opposition" is a very reasonable middle path. 177 Senator Eggleton: That's getting back to "official." 178 Senator Frum: If that's going to be the make or break thing— 179 Senator Massicotte: Let's discuss it next time. I suspect we can find another word to satisfy, but I know people feel strongly about it. 180 Senator Frum: But we're here now, and we know our positions. I think "a structured opposition" is—It's Senator Lankin's idea, not mine. 181 Senator Massicotte: I'm okay with "structured," but we should discuss it. 182 Senator Eggleton: I think it's good enough. 183 Senator Frum: No, it's not. 184 Senator McCoy: I don't entirely agree with that, but, for the sake of peace— 185 Senator Massicotte: What would you like to see, Senator McCoy? 186 Senator Gold: She doesn't want it at all. 187 Senator McCoy: I don't see that you're really getting to the point for the Senate of Canada. I think you can say that one chamber of a Westminster parliament must be a responsible government, and, if there's a single chamber, the practice is, normally, to have an "Official Opposition." That isn't even true everywhere. It's not true in Nunavut; it's not true in Tasmania; it's not true in Scotland, and so on. There are some things that you can't say. 188 What is absolutely true, though—and the point I think you should be debating and we should be talking through here, is how are we in the Senate of Canada going to ensure that a proper, lively and useful debate takes place? 188-1 Now, Senator Joyal says you must have an opposition because you have to have somebody in charge. Well, I can think of probably three or four ways of making that happen, and it doesn't necessarily mean having Senator McInnis as leader of the official opposition. That's the debate. 188-2 Senator Massicotte: We all know and we agree that it's a very important debate to be had, but we're deviating from the report. The only issue left is whether there's another word to be added to "opposition." Let's try to resolve that issue and not this issue, or we're going to go nowhere. 189 The Chair: Can we circulate a draft to the committee? We welcome input around the word "opposition." We can do that. 190 Mr. Groves: The version we circulate will have that sentence highlighted so that we will hopefully find something there. 191 The Chair: When do you expect a draft could be circulating? 192 Mr. Groves: Very, very soon. 193 The Chair: Very good. 194 Senator Lankin: I think we should quote Senator McInnis, who quoted our first report, and simply say: "As we said in our first report, the importance of someone who opposes and someone who proposes," and— 195 Senator Frum: Well, why not? 196 Senator Lankin: It's already there. We already agreed. 197 Senator Frum: Why not? That's okay. 198 The Chair: I don't mind that, either. Do we have any more comments to make or can I draw this meeting to a close? 199 (The committee adjourned.) 200
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