 CANADA The Special Senate Committee on Senate ModernizationConsideration of methods to make the Senate more effective within the current constitutional framework: Issue 1 3rd Meeting, March 23, 2016 "Inked-in" comments relative to my essay and Brief may be found in my essay's appendix g. v.E. Witnesses: Hon. Senators Paul J. Massicotte and Stephen Greene 0 The Special Senate Committee on Senate Modernization met this day at 12 p.m. to consider methods to make the Senate more effective within the current constitutional framework. 1 Senator Tom McInnis (Chair) in the chair. 2 The Chair: Honourable senators, good afternoon. 3 From October 26 to 28, 2015, a group of some 40 senators, Conservatives, independent Liberals and independents, came together in meetings to discuss changes to the Senate of Canada, now called the Working Sessions on Senate Modernization. These meetings were hosted by Senator Stephen Greene and Senator Paul Massicotte. While these two senators are members of this committee, they have been invited to appear as witnesses today to discuss the outcome of the working sessions and the subsequent report that has been tabled in the Senate. 3-1 For the viewing public, the Greene-Massicotte report will be available on the Special Committee's website under the tab "briefs." Senator Greene and Senator Massicotte, I know that you are familiar with the routine so please begin your presentation, to be followed by questions, I'm sure. Please proceed. 3-2 The Honourable Stephen Greene: Thank you. We are appreciative of being asked to appear before this Special Senate Committee on Modernization. We are special; we all know that. 4 Why work on Senate modernization now? There is a broad appetite for change and improvement amongst Canadians and senators to make the Senate more relevant, useful, credible and productive to better serve Canadians. It is within our authority and up to us to make the operations of the Senate more relevant to the parliamentary process and the needs of Canadians. If we fail to make the Senate better, there is only blame to be laid on senators themselves. 4-1 The Honourable Paul J. Massicotte: Our approach is simple: We invited all senators to participate at every stage, including the independents. On multiple occasions, everyone was requested to participate. As our chair so notes, approximately 40 senators accepted our invitation. We submitted a questionnaire to those 40 not only to stimulate thought but also to educate us on the issues. We wanted everyone to contribute to how we could improve the place; so we sought opinions from everybody. That was the basis for us to then prepare the working sessions in October. They took place over a three-day period. On the basis of the responses to the questionnaire, we knew the contentious issues among ourselves to the best of our opinions and also had a good sense of where debate could achieve a large consensus. 5 There were three major components to the October sessions. First was a discussion about our mission, what we're doing here and what our purpose is; second, was how to deal with this word "partisanship," what it means, how we manage it and still do our job in spite of those opinions, values or biases we may have; and third, based upon the questionnaire, it was calculated that 10 broad issues deserved significant detailed discussion so that we could achieve results from that. 5-1 On the first day, we basically focused on the election results, because this meeting was held shortly after that. We debated a mission statement. We talked about guiding principles of the Senate. 5-2 On Tuesday, we talked about partisanship and how to integrate it into our objectives. We split up into groups to discuss democracy. On the last day, our discussions were focused on Senate operations. The agenda was distributed to everyone. We held a dynamic, wholesome and serious debate. 5-3 Senator Greene: We will look now at the discussion and presentation of the questionnaire summary. The foregoing analysis is based on 28 completed questionnaires. The type of analysis we chose is in the form of pie charts. While pie charts are simple and the visuals are great, they have limitations in that they do not readily lend themselves to satisfy open-ended questions, which were numerous. 6 Please note that with regard to the way in which the agenda flowed initially, we moved some slides that address partisanship and the mission statement to a little later. 6-1 In 1865, Sir John A. Macdonald said the following: 6-2 There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatever were it a mere chamber for registering the decrees of the Lower House. It must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch, but it will never set itself in opposition against the deliberate and understood wishes of the people. 6-3 I ask you to note the words "opposing, amending and postponing," which were his words. He never said "defeating" the legislation. 6-4 More recently, in 2014 the Supreme Court said: 6-5 The Senate is one of Canada's foundational political institutions. It lies at the heart of the agreements that gave birth to the Canadian federation. 6-6 The Supreme Court further confirmed the Senate's fundamental nature and role as a complementary legislative chamber of sober second thought, not a competing body. On the questionnaires, all who responded had that background. It was provided to them in advance and was dealt with accordingly. 6-7 On the question: "Are you satisfied that the Senate's current practices, procedures, conventions and rules enable the Senate to perform its constitutional role in the Canadian democracy as expressed by Macdonald and the Supreme Court?" 6-9 The majority were satisfied because they believe the Senate requires only cultural change. Other senators suggested that rules and practices force partisan conflict. Many answers gave specific examples of how our rules and practices are an impediment to the Senate doing its job. 6-10 The next question was: If your answer is no to that former question, what are the two or three main problems or blockages that prevent the Senate from fulfilling its role? How would you propose to solve or remove them? There are a number of detailed answers. One senator talked about institutional partisanship, which they explained by saying that, "While partisanship on some level is expected and even encouraged, we have, over time, institutionalized the role of the party so it is very difficult for senators to escape it and to vote in any way but the party line. Voting for the party line is not what the Senate was composed to do." 6-11 Another senator advised that there are three main problems, which are: first, appointment of leadership by the House of Commons; second, selection of the Speaker in a partisan manner; and third, absolute power in a partisan leadership. 6-12 Another senator said that, "Senators should not participate in their political party meetings, maintaining some independence as its purpose dictates. Every senator should also remind and pursue the best interests of Canada in their deliberations without regard to the politics." 6-13 Another question, 2(a) in this case: If you were assigned to develop the operations of the Upper House of Canada from scratch, whose primary function was to be the review of legislation, how would you organize the ideal Senate assembly of 105 committed and wise senators? What would be your key organizing principles? 6-14 There were many, many answers, and here are a few: "Eliminate the preoccupation with Senate private member bills. Discourage them as being inimical to process;" "Stop allowing the recitational practice of senators reading speeches," and another suggested that, "On major government legislation, require the minister to appear before the Senate Chamber for cross-examination." 6-15 Others replied that, "The key fundamental organizing principle for senators is obvious: Do the job that our Constitution requires of us, which is to be an effective check and balance of the actions of the lower house, including the executive;" and "The solutions are obvious and straightforward and it is within the present ability of each senator to do so." 6-16 One senator said that, "My primary goal would be to organize the Senate around two things: first, reviewing legislation; and, second, committees. This means that at the centre of the entire organization would be committees in the way they function. Using committees as the core around which all other operating principles revolve means the Senate could focus on doing the meticulous but important work that is often overlooked in the house." 6-17 The chamber seating plan: Is that an issue? And how should it be arranged? 6-19 As you can see, a majority of senators are open to changing the seating plan in some way and organizing it around a different principle. There are many different answers chosen. One is to arrange the seating plan with regard to seniority, by alphabetical order, in a theatre shape, committee chairs acting as ministers do in the House of Commons or by regional seating. Some thought there is no problem with the current configuration and didn't think it was an important issue. 6-20 The Senate calendar: Should it be identical to the House of Commons or be sensitive to the flow of legislation? 6-22 Overwhelmingly, senators indicated it should be sensitive to the flow of legislation. This fits into a theme that runs throughout the answers, which is that the Senate can be different from the House of Commons, and should be, if it results in doing our job better. However, nobody specifically said it should be identical to the house. 6-23 The weekly schedule: Should senators sit more than three days? 6-24 The various answers given underline that this is a complex issue. Canada is large, and travel times to Ottawa vary. Many interesting schedule configurations were proposed, but the question is really imprecise and no fewer than 10 senators criticized even asking the question. 6-25 The daily schedule: Is it an efficient use of time? As we can see, a majority of senators decided "no." Answers painted a picture of how the Senate could become more efficient and provided insight into how to improve the operations of this place. Many thought that Wednesday mornings could be better used—and we all know what that means—and that the chamber should meet Thursday morning with committees running in the afternoon to help the senators better plan for their departure. 6-27 Many senators also used this question to talk about Question Period and how it should be restricted or abandoned. 6-28 Member statements: Are they important? 6-30 Overwhelmingly, the answer is "yes." Most felt they were important, and some who agreed they were important also felt that sometimes they were misused or even boring. 6-31 Question Period: Overwhelmingly, the answer was, "A waste of time." There were long complaints about Question Period. Most wished to see an end to questions framed as opposition versus the government. Several answers included ideas, "perhaps limiting QP to one day a week or else have it consist of written questions and answers." Another was to, "Reorient QP around committee work only." 6-33 The Order Paper: The answers were divided but there was an interest in doing things better. As you can see, there is a large "No comment" question and many senators did not answer it. 6-35 The progress of government legislation: The voice for change was not loud even amongst those who were calling for it. Likewise, someone who said the rules ought to stay the same also suggested the current rules needed to be respected. There was an underlying consensus that government legislation is a priority and must be dealt with one way or another within a reasonable delay. 6-37 The progress of private member's bills: There was an overwhelming argument for change. Answers varied from PMBs being important, to being a waste of time. Several believed they should be dealt with one way or another and others that they were content that these bills have lesser priority. 6-39 The progress of Senate bills: This question did not garner much comment or even interest. Of the few thoughts expressed there was clear division. It doesn't seem to be a vital issue, although for others I would say it is. 6-41 The flow of chamber debate: This question may have been too vague as 70 per cent declined to answer, or wrote "no comment." 6-43 In the ideal Senate, should the rules force a vote on all bills? Should the rules allow their tactical use to delay bills and, if so, for how long? 6-45 This is another question which, on one level seems to be precise, though many senators were confused as to how to answer, and it was avoided by many who seemed to prefer to answer the next question instead. 6-46 Should time limits be placed on legislation, PMBs or Senate bills as soon as they are introduced? Why or why not? 6-48 As you can see there is a majority, although slight, in favour of saying "yes" to change. Once again, this question is a part of a grouping designed to address a number of ways we organize our workday. Although a consensus does not jump out from these numbers, many shared interesting ideas. One said, "Legislative death through attrition is not the answer. This practise denigrates the role, reputation and credibility of the institution." 6-49 Another said, "Only on government legislation when it is introduced," and another senator said, "I believe the House of Lords has a time limit with government legislation. If the Senate doesn't like a bill it should be amended and sent back, not delayed." 6-50 Would you continue the current discussion of bills with the often-used adjournment of discussion? Would you rather see a lumping of the discussion with defined breaks and defined schedule to allow senators to further research, develop and finalize his or her opinion with full knowledge of the schedule? 6-52 There was overwhelming support for these ideas with at least three quarters wanting change. Senators were receptive to the question and offered enthusiastic answers. They stated that, "The advantage of a debate schedule would help to increase participation and the quality of the debate," and that "It would also help to create cohesion and momentum for a debate topic instead of the entire chamber waiting on each senator whose turn it is to speak when the issue comes up." 6-53 Does time allocation need to be modified? 6-55 The answers are uncertain here. Most senators are fine with it for government legislation but complained about its use for private member bills, PMBs. 6-56 The length of speeches: Senators did not line up passionately for this question. Please note that within the category of change, some senators actually want more time for speeches. I wish I was joking, but that's true. 6-58 The resources available to committees: While most senators underlined that resources available were sufficient, there were quite a few who answered that they wished to rearrange the budget from their political leaders' offices and divert it to committees and committee chairs. In short, complaints were not about the resources available to the Senate but how they are allocated. 6-60 The resources available to senators: Most did not complain about the size of their budgets but wanted more flexibility in hiring, contracting and spending their budgets. 6-62 Senate regional caucuses: Some believe this to be the most important reform that senators could make, with some stating that attendance at such caucuses ought to be mandatory. Other answers underline that regional caucuses would need to develop an objective, as they couldn't be consensus-making caucuses designed to coordinate voting intentions like political caucuses are. Others worried about resources if we formed these. 6-64 Televising webcasting: As you can see, there is a majority in favour. There is a clear message from some that they would accept TV only if other changes are made to the Senate. Many senators believe televising or webcasting to be absolute priorities. Other answers confirm that there should be a priority for the Senate, which would go a long way toward communicating what the Senate does and how. Some answers state that cameras would add to our trouble because they would compel partisan grandstanding. 6-66 Electronic voting in the chamber: There is not much enthusiasm for this and often thought to be a waste of time and not a concern of ours just now. Others think we could address that in the future. 6-68 Whipped votes: What is their role in the Senate? Senators vary between whipped votes having no role in the Senate to underlining their specific place and role, such as confidence votes, budget votes or so-called "three-line whip items." 6-70 Committee chairs: How should they be selected? This question touches on democratic reforms that the Senate may choose to undertake. The election of caucus officers and the election of the Speaker were part of this current of thought. Several mention the need for some kind of competitive process involving the entire Senate. 6-72 Committee participation: How should committee members be chosen and by whom? As you can see, there is an overwhelming desire for change. Senators believe that committee membership should be chosen differently from the current method, although some see value in the leadership and naming of members if only to make the process efficient. Even amongst these answers, there is an appetite for more change in committee constitution by senators. One said there should be some kind of competitive process. 6-74 Should the Senate be an example of democracy within its own operations? Overwhelmingly, yes, although this answer did not gather many specific insights. 6-76 If the answer to the above question is yes, should the Senate elect/propose its Speaker? As you can see, the response is 100 per cent yes. Only one other question achieved unanimity, which Senator Massicotte will deal with. 6-78 Should the Speaker have a term limit? If yes, what is reasonable? The answers varied greatly as some don't think the term should have an explicit limit. Some who suggested that very thing went on to suggest it should be for each Parliament, which of course is a de facto limit. There is a lot of support for a three-year limit. 6-80 Should we enable the Speaker to be the final word on our procedures and rules or should we maintain our right to overturn the Speaker's rulings? If yes, under what conditions? Overwhelmingly people think the chamber should maintain the power. A number of senators believe that the powers of the Speaker could be increased if the Senate was able to choose its Speaker. 6-82 Should caucus officers be elected by senators? Overwhelmingly, the answer is yes. While some offer all kinds of configurations as to which officers would be selected, how and by whom, most agree that more input from senators is needed. 6-84 Who should name the leaders of each Senate side? They say clearly that leadership should be chosen by senators either through their caucuses or in the chamber if there are no parties. Even those who answer that the government should name the leaders mention that the leader should not exercise power over colleagues but instead should promote the government's agenda in the Senate. 6-86 Again, I'd like to point out that this questionnaire was completed roughly six to eight months ago in July 2015. In August we received most of them back and the rest in September. This was before the election, so quite some time ago. Those of us on the Conservative side couldn't imagine possibly losing, so I imagine that many of the answers were filled in with eyes on the election, et cetera. 6-87 I think that the atmosphere in the Senate has changed markedly and if the same questionnaire were delivered today, you would see more of an appetite for change and more openness to accept it. Nevertheless, from the vantage point here, there is a substantial and interested number of senators who would vote for change in at least some areas. 6-88 Senator Massicotte: One of the first things in our October sessions after we dealt with the questionnaire to share with you the variety of opinions we received, was to get down to some hard work. I must add that Senator Tannas and Senator Campbell organized these discussions about our values, the good and bad experiences of the Senate and we tried to learn from that because we want to repeat the good and learn from the bad. After that, we spent time to determine our purpose. 7 In any organization of this importance, and in any forum when you try to organize people, it's important to say why we are here, what our purpose is, what our job is and how we can be useful and credible. We had the significant debate and attended to it. Some thought for sure we would never reach consensus because opinions can vary significantly. It is something we don't do enough here. We are spending a lot of time and effort to do what? So we have this debate. We start off by showing slides from the questionnaire relative to how people answered. For instance, one question: 7-1 Do you think that Sir John A. Macdonald's statement, made 150 years ago, and the Supreme Court of Canada's statement in 2014 are relatively consistent? 7-3 The answer is clear: 96 per cent think there's no inconsistency and that it's very good. 7-4 Here is another question: Do you think that any changes made to the modern Senate of Canada's operations and practices must be consistent with the constitutional principles as laid down by John A. Macdonald and the Supreme Court of Canada? In fact, 93 per cent of senators completely agree, and many of them said that the Senate must fulfill its mission and that those statements reflect the role the Senate should play. 7-6 Another question we brought up is the following: Do you agree that a senator's legislative role encompasses a particular sensitivity to our regions, minorities and under-represented segments of our population, to seek and achieve the best possible legislation? Once again, 82 per cent agree with that statement, and most senators fully agree with the strong dynamic in the Senate. Nearly 7 per cent said that these were secondary issues, while others saw no importance in them. The disagreement mostly has to do with the federal interpretation of the Senate, an institution that comes under federal law, federal policies and federal legislation, and not regional issues, unless they interfere with federal responsibilities. 7-8 We also asked whether it was believed that the Senate's and senators' fundamental role and purpose include work on Senate committees to study and report on matters relevant to our society, to seek and achieve the best possible committee reports. If they answered no, we asked the senators to explain how they saw that role and committee work. 7-10 That is one of the questions where we had unanimous agreement and huge support for the Senate, of course, throughout the questionnaire, and for the work focused first on the committees and second on other responsibilities. When we looked at the questions and answers received, we prepared a project that sets out our mission, our goal, our purpose. Following the important work done by Senator Joyal, who played a key role, in response to seven amending documents, we arrived at a very broad consensus, which is reflected in this report. Let us take, for example: 7-11 The Senate is the appointed upper house in Canada's bicameral parliament. 7-12 That is an important point. 7-13 The Senate plays an important complementary role again, according to the Supreme Court's decision to the elected House of Commons by, first, providing independent—"independent" is a very important word—sober second thought to legislation with particular respect to Canada's national interests, Aboriginal peoples, regions, minorities, and under-represented segments of Canada's population. 7-14 Number two. Undertaking policy studies, reports and inquiries of public issues relevant to Canadians. 7-15 And, I must admit, number three was not in our original draft but Senator Joyal raised some very important arguments, including: Understanding, sharing and representing the views and concerns of different groups based on a senator's unique perspective. That was somewhat coloured by saying, "Yes, we are members of the community so we take the Senate out there but we must take our own experiences from our communities, from our present life, back here. Basically, it's an outreach, back and forth. 7-16 Also, this answers, quite frankly, a question we hotly debated over the last two years relative to the Auditor General: Do we have such a role? Is it strictly legislative? We all agreed that, no, we have a very important role to be in the community, to represent the community and bring it back home, and this third point covers that angle, which is important for our role. 7-17 After that, we said that we were pretty happy with that result. It can always be perfected but after seven drafts I think it's a broad consensus. 7-18 Then we dealt with the issue of partisanship. It's a complicated one, as you know. Here is a question that is relevant to it. 7-19 Do you agree that the modern Senate of Canada, and any changes made to its operations and practices, must be consistent with the constitutional principles as laid down by Sir John A. Macdonald and the Supreme Court of Canada? As you can see, 93 per cent agree, and that is very important. Don't forget that Macdonald, in the quote we provided earlier, felt that independence was important, with the goal of opposing and amending, but never against the wishes of the people. The Supreme Court reminded us that our main role was to provide sober second thought. Here is another question. 7-21 The role of partisanship: Is there a need to identify senators as belonging to a political party? 7-22 This is very hotly debated issue. If you look at the results, they are quite split. The answers range from one senator saying, "I am not against senators being members of parties, and I think to change things would be a very hard sell. However, I think much of what we want to accomplish in cultural change will come from senators not sitting in national caucuses and once that happens, party membership restrictions might become much more easily accepted." Another senator said, "There is not a need to do so. However, if senators are prepared to honour and properly fulfill their constitutional role and responsibilities, even when they are in conflict with partisan political considerations, then political party identification could remain an element in the Senate." Another senator said, "Partisanship in the Senate has been an obstacle to efficient and effective governance." Another senator said, "Party membership does not necessarily lead to partisanship. Partisanship is a choice and can exist in any system." 7-23 So, if you notice, this is a pretty wide range of hotly-debated opinions. 7-24 The next question was about attendance at national caucus. Do you agree or not? The opinions vary greatly. A number of senators believe that this issue is one of the biggest obstacles to the Senate's independence, but once again, the opinion is largely divided. 7-25 Another question is about attendance at Senate party caucus. In this case, 52 per cent agreed and saw no issues with that, but once again, the responses had to do with constitutional obligations. 7-26 Then there was the question: What is your brief definition of partisanship? 7-27 I must say that this is the crux. We don't all have the same definition and we waste a lot of time talking the same language but not talking about the same issue. Here are some definitions: "Partisanship is a prejudice or bias in favour of a particular cause." Another senator said, "A commitment to a set of ideas and beliefs that are, in a general way, best represented by a specific party." Another reply said that, "Partisanship is where, despite overwhelming evidence, one continues to vote on ideology rather than logic or common sense." 7-28 I would ask you, for the sake of future discussion, if you look at a couple of dictionaries, the real definition of partisanship is one where there is a bias in favour of a predetermined result. It's important to keep that in mind. It's not a political party, it's where you have a bias, and that is critical. If you agree to the definition, the discussion gets a lot more intelligent when we agree to disagree. That's what the dictionary says and that's what we should go back to. 7-29 Another question is: What is the role and purpose in the Senate of partisanship? 7-30 One senator said, "Partisanship is an irrational bias in favour of a party, and it doesn't belong in the Senate." 7-31 Another says, "It is a good management tool, but can also get in the way," while a third's opinion was that, "It's valuable mostly as it provides predictable and stable results through a process driven by like-minded individuals. It's destructive when it requires blind obedience to issues that need debate." 7-32 Another question: Should we try to define, perhaps as part of a code, what level of partisanship is or is not appropriate? If so, how would you define such? 7-34 If you look at the answers, 59 per cent said no. Senators are basically against the idea mostly because they thought putting this into words would be difficult and impractical. 7-35 All this debate—and we all have opinions—raises this issue as its conclusion: How do we best integrate partisanship into our Senate culture in a way that is consistent with our constitutional mandate of sober second thought? 7-36 Often it is a belief or a bias that we have, but we all think our biases are rational and logical. What do we do with this issue? How do we make sure that we satisfy our most important role—that of sober second thought—and, more importantly, act in the interests of Canadians, and not in the interests of our political party? 7-37 It's a personal issue, to a large degree. Institutionally, there are some things we can do to make sure we maintain that process. 7-38 Let me raise a couple of issues. If you look at our history in the Senate—and I must say I think it has improved in the last six to nine months—we have often voted and blocked with certain opinions, probably under the influence of a party or the national or original caucus, but there is something wrong with that. We all know that when you have 99.9 per cent of the people voting a certain way in a caucus and the other votes differently, somebody is wrong or, probably, we are all wrong. There is something wrong in the process. Canadians spend $100 million a year to get to us do our job, and when we vote in such a formal division, there is something wrong with that process. 7-39 Let me share something with you. Look at the Senate in Australia: One third of all government bills are amended, and are improved. Look at the House of Lords: Two thirds of all government bills are amended, and are improved. 7-40 In our case, looking at the history of the last 30 or 40 years, we amend an average of one government bill a year. It goes up to two when the majority in the Senate is not equal to the majority in the House of Commons. I would suggest to you there is something wrong with that. I think it has to change, and I think we all believe it has to change. It can't be there that our bills are perfect when those in England's House of Lords and those in Australia are obviously that wrong. They are not, and I think there is a job to be done there. I'll leave us to further debate on how we get there later on. 7-41 Senator Greene: To recap where we are in the process, it's important to understand how we developed what we developed. There were six layers. The first was the questionnaire used to identify where there could be consensus. The second was a team-building exercise conducted by Senator Tannas to advance the idea of what a smart resolution would be. The third was the selection of issues and sub-groups of six or seven people. The fourth was having the sub-groups meet around carefully defined issues to create a resolution. The fifth was to bring those resolutions to the plenary for another long discussion as to what everybody felt was appropriate and not appropriate. The final was a review of the wording of each of the resolutions, which resulted in a list of ideas. 8 On the second and third days of the working session, we separated the participants into preselected sub-groups, each of which was assigned a specific issue from a list of 10 that arose from the questionnaire and Senator Tannas' exercise. The sub-groups had one hour to identify the pros and cons of their issue and to develop a SMART resolution, which meant specific, measurable, actionable, realistic and timely, and attempt to arrive at a consensus. Subgroups were then asked to return to the plenary for a full discussion and consensus. All participants were given a handout detailing all 10 issues for each issue-related questionnaire's chart, et cetera. The five issues addressing democracy in the Senate were discussed on the second day, and the five issues addressing operations in the Senate were discussed on the third day. 8-1 Group one dealt with the issue of should the Senate be an example of democracy within its own operations? The various questions asked were: How should committee chairs be selected and by whom? How should committee members be selected and by whom? 8-2 Group two dealt with the issue of party identification: Is it important or not? The questions were: Is there a need to identify senators as belonging to a political party? Should they attend national caucus? Should they attend Senate party caucus? 8-3 Group three dealt with the issue of whipped votes and whether they have a role. The questions were: Do whipped votes have a role in Senate? If so, what is that role and when should they be applied? 8-4 Group four dealt with the selection of the Speaker: Is he or she the final authority? 8-5 Group five dealt with caucus officers, their selection and roles. Should they be elected by senators? If yes, should all of them be elected or some appointed and which ones? 8-6 On the third day, we moved into Senate operations. Group one dealt with Question Period: Should we eliminate it, change it or maintain it? The current Question Period format of having a minister appear before the Senate came out of the group that handled this question. 8-7 Group two on Senate operations and Order Paper issues: Should we change the structure of the Order Paper to enable debate grouping? Would you continue the current discussion of bills with the often-used adjournment of discussion, et cetera? 8-8 Group three on relationships and communication issues: Should we televise or webcast chamber proceedings? Are there any specific ideas for improving nonpartisan relationships and communications? Would regional caucuses or seating be a good vehicle? 8-9 Group four dealt with issues that affect how the Senate is different from the House of Commons: Should the chamber seating plan follow partisan principles or other principles? To what extent should the Senate calendar follow the house calendar? Is the Senate's daily calendar an efficient use of time? 8-10 Group five dealt with Senate standing and ad hoc committees. Are there too many or not enough? Should committees be smaller? Should committees have greater communications resources? Should more ad hoc committees on public issues be struck? 8-11 Senator Cools: What is an "ad hoc committee"? 9 Senator Massicotte: It's a committee set up for discussion of one issue. 10 Senator Greene: This committee is, in some way, ad hoc. 11 Senator Cools: That sounds like a special committee. Okay, I understand. 12 Senator Massicotte: Let me remind you: We had 10 broad subject matters. They were discussed in groups of five to seven for an hour. The purpose of each sub-group was to come up with a consensus, pros and cons and what they would recommend to the rest. Every issue was discussed for an hour within a sub-group and then came before the whole group where the sub-group had to sell their ideas and achieve consensus. You may have noticed that some did not and we'll make a note of it later. Those who did were varied. 13 I will describe the 11 issues where we had nearly unanimous approval. There was a large consensus based on those sub-group discussions. Here are the results of that discussion. Don't forget that this is after much discussion, not only about the idea but also the wording. The first thing we achieved consensus on was the mission statement, which I talked about earlier. I won't read it again. 13-1 The second element was about the Speaker's selection and authority. We came to the conclusion that the Senate should choose by election and secret ballot the senator who shall be proposed for consideration by the Governor General for appointment as Speaker of the Senate for a term of up to three years. Rulings by the Speaker on the interpretation of the Rules shall be subject to challenge by the assembly. In other words, the senators unanimously agreed that we should appoint or elect our Speaker ourselves, and that is indeed very important. 13-2 We also achieved consensus regarding Question Period. To use their time more efficiently, senators should realign Question Period to focus on key issues of committee work, committee reports and other key issues relating to the work affecting committees. In this way, the name of Question Period should change to Issues Period. Further, from time to time, ministers and officers of Parliament should be summoned to the floor of the Senate to respond to questions of senators on issues under their responsibility. 13-3 As Senator Greene mentioned earlier, this is the practice we have been using for a few months, and it has turned out to be very valuable and useful. The comments are positive. I want to thank the subcommittees that came up with this recommendation. 13-4 As for members' statements, there is consensus over the importance of statements and the fact that they should continue to broadcast good and current news. Senators should be respectful of and informed on the rules and should avoid opinions or debatable issues within the time outlined in the Rules. In other words, this is simply put a useful practice, but we should come back to the basics and think about the goal of senators' statements. The statements often have to do with rather personal issues that are not intended for the public. We must be more strict when it comes to respecting the Rules. 13-5 Retirement tributes for senators should be limited to a short thank you by the leaders. All other speeches should be done at the Speaker's reception. The approach proposed assumes that, if cameras are present in the Senate chamber, paying tribute to one of our colleagues for an hour or two may not be the best way to use our time from Canadians' point of view. 13-6 When it comes to broadcasting, communications and relationships, the Senate should televise and webcast its proceedings. That's fairly clear. We have been talking about it for a long time, and I think it is time to take action. This is a matter of transparency and communication. It's a proposal that has a great deal of merit, especially if we implement the other changes. 13-7 From time to time, informal regional caucuses should meet. 13-8 If you look at the questionnaire, you can see that the majority of people agreed we should be more regionally oriented. When you get down to the definition of what they would do, how they would get it organized and how they would be seated and so on, we could not achieve a great consensus. There is debate to be had that we should be oriented more to the federal perspective, not so much regional. Yes, when the Constitution created the Senate, the focus was significantly on regional representation. In fact, that was the base. One could argue that it has progressed much, whereby the Supreme Court and the provinces have taken up much of the slack. There is actually an annual meeting of premiers of each province and the territories. One has made the argument that the need for the Senate to be so regionally oriented has somewhat altered and is less relevant, and so we should have no orientation. 13-9 Nothing stops us from meeting ad hoc, on occasion or on a permanent basis with people of shared regional interest. But the bottom line is that we couldn't agree more than that, to be very frank. Yes, we should encourage it, and maybe it would be good for experience, but that's the most we could achieve by consensus. 13-10 Senator Greene: I think it might work better in some regions than others. For example, in Atlantic Canada, I think it could work very well, but maybe not so well in other places. 14 Senator Massicotte: Order Paper issues: If you remember the questionnaire, there was very strong support for changing the process of our deliberations. If you look at Question Period—in fact Senator Bellemare also raised the issue more recently—there is not a debate. I think Senator Stewart Olsen made the comment that there is a debate but it's isolated. We don't know when it is going to continue. People make a speech, but I'm not sure how many people are listening and there has to be value added to that debate. 15 We learn from listening and from the debate, and it is certainly more interesting when we know we are going to have a discussion of a certain subject on that matter, on that date. If you remember the unfortunate debates about suspension of senators, there was very broad interest, one speech after another, and we learned from the process. Right now, it's disjointed, you don't know what is happening and anybody can adjourn the issue. There is a significant need for change. The hard part is how do we get there? 15-1 What we did do is ask the advice of the clerk in helping us with that subcommittee. Here is what we can recommend: The senator should receive the specific Order Paper instead of the general Order Paper—apparently, there are two of them; senators should be able to adjourn a private member's bill, Senate bill or a motion for 15 days, only once, and rule 6-10(2) should be amended accordingly; the listing of items on the Order Paper should be expressed more clearly and should be easier to follow; all references to "stand" should be avoided but the ability for a senator to speak to every item should be maintained. This procedure would occur as follows: Each day, a senator who wishes to speak to the matter should give notice to their respective deputy leader or the Speaker. As the chamber's work begins, each noticed item should be discussed first in succession with the senator giving notice speaking, followed by any senator who feels prompted to respond. Once all notice items are called, the Clerk should call all skipped non-notice items, giving senators the chance to speak to these items. If no senator speaks to a non-notice item, no other items would be called and the session would be adjourned. 15-2 This would provide constant freedom to speak your opinion, a bit more order, avoid too many adjournments for discussion and try to lump it a bit more. I'm not sure it gets there, but people who have more experience in this matter can probably help us. 15-3 Turning to the subject of elected caucus officers, Senate caucuses should elect all officer positions by secret ballot at intervals determined by each caucus. 15-4 I must note at this point and time that I think all caucuses are now satisfied in that obligation, certainly with no influence from our degree. I have had many discussions on that matter with both caucuses. 15-5 On the question in regard to committee membership and chairs, there was an immense sense of a need to change the way we nominate committee members and how the process is done, but it was a hotly-discussed issue because there are limitations. 15-6 We came up with the following: For each session of Parliament, the Senate shall choose committee members through the Selection Committee elected by the Senate as a whole on a secret ballot vote according to guidelines agreed to by the leadership of the recognized political parties in the Senate; the Internal Economy Committee should be elected by the Senate as a whole on a secret ballot according to guidelines agreed to by the leadership of the recognized political parties; membership of the Selection Committee should have representation from the four Senate divisions of Canada, and the selection committee shall exercise its powers and populate Senate committees and subcommittees according to guidelines agreed by leadership of the recognized political parties in the Senate; the Selection Committee shall be responsible for all permanent committee membership changes. Once formed, the committees shall elect their own chairs, deputy chairs and third members of steering committees by secret ballot according to guidelines agreed to by the leadership of the recognized political parties in the Senate. And this process shall be reviewed after one year of operations. 15-7 This is a difficult challenge because there is an argument to be made as to other obligations to satisfy. That's why we have constant reference to some guidelines or framework by the leadership. The bottom line is the election of the Selection Committee—the selection of the committee—shall be done by secret ballot by the members and not informally by the leadership as it is today. There has to be a framework to get where we want to go, but with as much freedom. That's what we said. We're not sure it can work, but let's try it for a year and we'll make improvements as we go along. Then we will see. 15-8 Senator Bellemare: What do the guidelines agreed on by the leadership of Senate-recognized political parties mean? 16 Senator Massicotte: The question is good, Chair. I suggest we delay. 17 The Chairman: We'll put you on the list. 18 Senator Massicotte: Another issue we discussed was Senate standing and ad hoc committees. The consensus was that the Senate should take advantage of its ability to promptly examine and highlight high-profile current issues with existing committees or special committees where necessary. Committees are the Crown jewels of the Senate, and, therefore, in an effort to continuously strengthen this asset, the Senate should more actively review the mandate, size and composition of standing committees, so not always the maximum. Committee reports receive a significant communications budget to promote the work, including social media, and outreach by all committee members. 19 The bottom line is consistent with the questionnaire. Committees are a very important part of our Senate. We do very good work; All we're saying is let's be more prompt, let's be more relevant and let's adjust, as necessary, the membership and the issues, like you see sometimes in other countries, where it's very prompt and very aggressive. It should be very relevant to Canadians. That's basically the message we are making there. 19-1 Senator Greene: Now we turn to a list of the outstanding important issues without consensus at the time. It could have been that we dealt with them but couldn't come to a conclusion, or, in some instances, we didn't really deal with them at all. 20 On the list—and we advise this list should be for this committee to advance as far as they possibly can—the first is no whipping of votes, with exceptions or not exceptions. We couldn't come to any agreement on that, nor could we come to an agreement on political party participation in national caucuses, Senate caucus or regional caucuses. 20-1 We weren't able to deal with the issue of independents. Certainly, at the time, which was October, the issue of independents didn't hit all of us the way it is holding now because of the issue of more independents than probably the Senate has ever seen in its history. This is an urgent matter that must be dealt with by this committee. 20-2 We didn't really deal with the issues of regional caucuses, omnibus bills or, finally, a time frame for decision on bills and final authority of the House of Commons on our bills. In other words, what is the procedure after we amend a bill, and whether we accept the final authority of the house? 20-3 Senator Massicotte: Let me conclude our discussion by saying that what we dealt with, very much, in the three days is how we operate in the Senate, organize committees, improve our working relationship, and make ourselves more relevant and credible. That's really a lot of kitchen stuff. They are things we can deal with because we know as senators what works and what doesn't work and we've dealt with those issues. 21 To be very clear, I think our committee is obviously focusing on that, but we want to remind everybody that that is only one issue of what we consider a stool with four legs. The other three legs, which are very, very important and which I think we need to acknowledge, because otherwise I don't think the Senate will get where it wants to go if we don't do it. 21-1 One issue is financial integrity and accountability. The Auditor General raised that in a significant way. We made a note that is already under study by the Standing Committee on Internal Economy, Budgets and Administration. I think to do one without the other three is a problem. I think that's been dealt with but we should not forget about it in our own modernization. 21-2 Another issue is effective communication and transparency. It's a big issue and very important. Again, we note it's already been dealt with by the Standing Committee on Internal Economy, Budgets and Administration. 21-3 The fourth leg of that stool is strong and coherent ethics guidelines and measures of discipline. It's something we were not prepared with a year and a half ago but it's very important. I note that the Standing Committee on Ethics and Conflict of Interest for Senators has dealt with that I think to the satisfaction of most of us. That's a very important improvement we made over the last two years to basically satisfy our need to the Canadian public. 21-4 Thank you chair, and now, we are prepared to take any questions. 21-5 Senator Joyal: First, I would like to extend congratulations for the work you have done. It is very helpful for our reflection and for the improvement of the working of the institution. 22 When I went through the list of recommendations, I tried to identify in a sequence which recommendation calls upon amendments to the Rules of the Senate. If they were recommendations that addressed the Parliament of Canada Act, that would involve the concurrence of the House of Commons which recommendation might impinge on the Constitution. Then we are in a different ball game. 22-1 Did you try to list what are the recommendations that are immediately accessible for the Senate to do by itself? The rules are totally under our mastership. If there are changes to the Parliament of Canada Act, then we have to seek the concurrence of the other place, which is always more troubling or complex. The Constitution, unless we seek some rainbow in the sky, we should probably avoid touching it for the time being. It is not that we cannot do it, but we cannot expect in the short term that we will be able to put that into effect. Did you do that exercise in terms of the recommendations? 22-2 Senator Massicotte: No, but we have met with the caucus leaders in both cases and they have gone through that debate. For instance, relative to the Speaker of the Senate, the wording we suggested was "make it an issue of custom." In other words, ask for cooperation. Then the question is: can you only name one person? To allow that to work, you need three. Ideally, you need an amendment to the Parliament of Canada Act. When we met with the minister two or three weeks ago, he made a comment that they had an opinion that we could not amend it without the constitutional amendment. That would be a problem if that remains the case. The other thing is the rules, not the Constitution, from the opinion of the Caucus leaders. 23 Senator Joyal: In relation to the Speaker's status, I share the opinion of the government that this is an amendment to the Constitution. I suggested it when Senator Oliver introduced a bill more than 12 years ago. The Speaker at that time let the debate go on. There was no formal decision on the bill, but I think there is a way around it, which would be for the Senate to select some candidates, not only one, as does the special advisory board to the Prime Minister. Come forward with five names for each position to be filled. 24 We could think of a rule whereby the Senate, at the opening of a session, would propose three, four or five candidates drawn from each group in the Senate. If there is a Tory party, they could propose a candidate. If there is a Liberal independent party, and if there is independent group, they could poll themselves and come forward with one candidate. The Prime Minister could choose from among those candidates which one he would recommend to the Governor General. We would be in sync with the spirit of the Constitution as much as the Prime Minister has been following a similar pattern in terms of recommending senators to the Governor General or recommending appointments to the Supreme Court of Canada or the superior court in the provinces, which fall under the purview of the prerogative of the Crown. We leave the prerogative of the Crown intact, we maintain the capacity of the selection, then we serve the spirit of the convention. It would be a major step forward in the spirit of the recommendation that the committee has made. 24-1 This is a way to advance the notion that the Senate would be part of the decision to identify which senator would be recommended to the Governor General. Do you think that would be the right approach? 24-2 Senator Massicotte: Both caucus leaders believe that is workable and with that approach we do not need an amendment to the Parliament of Canada Act. 25 Senator Joyal: And the Constitution, section 34, remains intact, but at least we would be involved in the selection processes. 26 Senator Massicotte: They both offered an agreement with that. Your opinion is probably more substantive given your experience, but the caucus leaders agree with your opinion. 27 Senator Joyal: If we remain solely within the hands of the Senate as a whole, it would mean that the majority who would select the person can rally behind one name. The name would be the one selected through ballot. From each political party or independent group in the Senate, the Prime Minister would have the freedom to choose which one among those groups would be the person that would be recommended. We would avoid the criticism that the present Speaker was appointed by the government because it would have been selected by the Conservatives who happened to be at that time the majority party. Every group would have a say in proposing a candidate of his or her choice. 28 The Chair: It's a very interesting proposal. I'll come back to you. 29 Senator McCoy: I had the benefit of being there. Your suggestion I would endorse with embellishments. That discussion has been going on more broadly. It is a common sense approach of where we are. This is a good starting platform. I went out of my way to congratulate you at the time. I want to be on the record as congratulating you again, in particular because of the way you ran the working sessions. It was totally non-partisan, collaborative and inclusive. You really facilitated good discussions. 30 I didn't agree personally with all of the outcomes, but it was well-crafted and well-conducted. Once again, congratulations, and thank you for your contribution to moving us forward to a Senate for the 21st century. 30-1 There is one point I wanted to underline in particular, and that is your point to agree on the meaning of partisanship. If we could extract from your presentation a strong recommendation for this committee to do that, it would very much help. I see you're nodding, so I take it you would agree with that? 30-2 Senator Greene: It is very difficult. 31 Senator Massicotte: Are you saying we should pass a motion to agree with what the dictionary calls it? It is very clearly defined in the dictionary, but it is just us that use it inappropriately most times. 32 Senator McCoy: I looked at the Oxford English Dictionary and there must be Larousse in French or something. The OED is very similar. Meaning as to bias and you said bias and predetermined. We could, based on dictionary meanings, come up with an agreed meaning of the word and possibly encourage the expression "party affiliation" which is not as loaded. That could take its place in discussing other matters that would give us a little more scope, a little more room to follow the heart desires of many of our colleagues. 33 I wanted to also congratulate you on making the point this morning that this was conducted October 23, and so the answers to the questionnaires were after the election. Certainly there was still, I think, in most people's imaginations the idea that we still had a chamber that was composed of recognized parties and only two at that. So the full force of senators' imaginations was not brought to bear, I think, as you say, on answering some of the questions. And so without beating this particular drum at this stage, while you're doing the presentation, there is a group now that have announced that we are an independent, non-partisan group of senators and we are working to open up a space for independent and non-partisan. Therefore the expression "recognized political parties" needs to be addressed in the way we have used it in some of these recommendations. 33-1 Here is a question because your list is not exhaustive, but it is meaty. I think we do have an emerging feeling it might be useful to have an interim agreement of those things we can deal with because there is a broader consensus. Do you have a recommendation as to how this committee will come to an agreement? You managed it very well at your working sessions, but these points still take some discussion among the 15 members of this committee, I think. Do you have any recommendations as to how we might do that? 33-2 Senator Greene: With regard to a few of these items, particularly the notion of independence, which we didn't deal with at all and which if we had dealt with it, it wouldn't have been in the same way we would deal with it now, the dynamic has changed and so forth. It would be good to know, although we are representative of the Senate as a whole and we are a fairly large committee. It might be good—just to offer this idea—to develop a short questionnaire for all senators around the notion of independence. That could be done fairly quickly and so forth. It's just an idea but it's a research tool. That's the way I would look at it. 34 Senator Massicotte: I would vary that a bit. The question has a good example for getting information, but the issue of independence is quite complicated. It's for this committee to decide how to deal with it, but of all the issues that are outstanding that's probably the most significant and substantive one and it's a very important one and a timely one. Maybe the committee should ask Stephen and I, if you wanted us, someone should study that further and come back with a more serious recommendation of what to do with that; in other words, funding, committees, legislation, somebody has to spend more time with that and come back with something that this committee can respond to. 35 I would recommend it be by subcommittee because there is a bit of work. Maybe the subcommittee can circulate a questionnaire or at least meet with anyone who has an opinion on the issue and come back with recommendations that represent a broad opinion. 35-1 Senator Cools: In parliamentary terms, in the lexicon of Parliament, independent meant not a cabinet minister. 36 Senator Massicotte: No party affiliation. 37 Senator Cools: No, it was unrelated to party affiliation. "Independent" used to describe those members who were not members of cabinet; in other words, who were not Crown ministers, because only Crown ministers are compelled—formerly under execution maybe—to vote with the government. The other members are free to choose. They used to call them independents and that is the reason to this day the Brits do not use the term "independents," they use the term "cross-benchers." 38 Let us understand, at some point here we have to anchor ourselves in the original definitions that began with these questions, otherwise we will be totally lost. 38-1 The Chair: Point taken. 39 Senator Cools: Thanks. That was a minor point of order. 40 Senator McCoy: Maybe we can come back to it off-line because other people want to get their questions in and we've only got three quarters of an hour left. But we might be able to use a variation on a questionnaire at least to get everybody's opinion as to maybe just put the consensus items up and see if there is a consensus on those items here and do that electronically just to move ourselves along. That might work, too. 41 The Chair: The steering committee will take note and we'll deal with it. 42 Senator Stewart Olsen: I was thinking about a questionnaire myself because of the changes that have already happened. 43 I note in your survey that particular attention was touched on but not really paid attention to and that is the reason we're actually here. We have two reasons why we're here and it's evolved over time, so I think this committee has to look at whether we want to keep the evolution or do we want to go back to what we're actually here for and that's review of legislation and representing our regions. 43-1 The founding fathers established the Senate as a sop to the Atlantic Provinces, who were losing all their power and giving this great deal of power to Ontario and Quebec. That's what was really happening there. So do we want to move on from there? We've got to make a decision on that because I see all of this as everyone pursuing their own special interest and it costs a lot of money and we have no consensus. Someone may say, "My particular interest is service dogs. I could travel everywhere in this country because that's my particular interest." It's also a partisan interest, and you didn't deal with the special interest stuff at all. 43-2 I think Quebec tried to do it quite well when they assigned senators to come from senatorial districts. And in New Brunswick we do it quite well because luckily we're from a different part and we've all kind of fit into those areas. But I think that is something on which we're going to have to come to some conclusion because the general public in Atlantic Canada thinks that we are here to bolster our presence in Ottawa. They probably don't think that in the rest of Canada but that's what they think at home. And the other thing, of course, is to review legislation. 43-3 I think we're going to have to tackle that as our actual job description and if we don't get a job description all the new senators coming in will just develop whatever because that's what happens. Intelligent, good people are appointed here and there is no job description or nobody tells you "This is what you do," or "This is what you don't do." They make their own decisions as to what they're going to pursue and I'm not sure that's what the intent was. 43-4 Senator Massicotte: On the special projects—and I'm not sure of the right name—we had a discussion privately on what to do with this thing. It's a big issue. If you look at Justice Binnie's report from earlier this week, he raises that. It's a bit vague because there are contradictions about the letters given out and what our rule book says. We have concluded it was not in our mandate and it should be in the mandate of Internal because the big issue is not doing it but who pays for it. It's an outside issue that somebody has to deal with and I suspect Internal is the best place to deal with it, but it's a big issue. 44 Senator Stewart Olsen: But this committee should have some recommendation to take forward to Internal because I don't think Internal should be tasked with doing stuff like this. 45 Senator Bellemare: I will continue in the same vein as Senator Stewart Olson. I think she raised a fundamental point, that of our job description. We have a job to do, which is to modernize our institution, and we don't have a lot of time. We also have to think about how to get there. I am wondering about the practical side. 46 Maybe we could start with this report and go along and take different points, like the job description and the mandate of the Senate. Maybe we could tackle it here and invite people, if necessary, to help us. 46-1 In organizing our work, we have something here that has been started. The question of independent senators I think is an important question and it will need to be resolved because of all the new senators that will be appointed. Everything is interrelated, and my answer as to why we don't have a job description is probably because it was easier that way. We were asked to vote for government bills without party lines and whips and everything. 46-2 If we don't want to go that route anymore and we really want to focus on what we are supposed to be doing, I think we should concentrate on the issues here. We have an outline. It's not perfect, but people started with it in October and have answered questions. Maybe we should at least try to discuss amongst ourselves whether or not we agree with all those issues. Should we pursue some research and invite people? We know we will have a session with Lord Hope. We know that the question of independent senators will be addressed at that time. 46-3 So I think it's important that we focus on results from the committee and maybe we should start from here. That's my comment. 46-4 The Chair: Thank you. Look, we may have to leave here. We all want to be in the Senate from the beginning. I understand it will be a very short session. 47 Senator Cools: Today the Senate is sitting for five minutes at 1:30. 48 Senator Massicotte: Two o'clock. 49 The Chair: Two o'clock. We should try to wrap up here by 10 minutes to. I want to get succinct questions and answers, please. 50 Senator Cools: Colleagues, thank you very much for all your work. I have a question that I would like to put to you. It's a matter that has concerned me very deeply, because I thought that those events constituted contrary principles and actions to anything the Senate was ever constituted to do. I am speaking in particular of the audit by the Auditor General of Canada, which took thousands of hours, in the Auditor General's words, of each individual senator's time for two years. 51 You seem to have looked at the human behaviour of senators, but that's the whole thing about these kinds of surveys that you do, they are largely speaking to human behaviour. 51-1 Can you explain to me or have you considered why it is and how it could be that very intelligent people, wonderful people—senators—voted to bring the Auditor General in to the Senate to do an audit—he said it was a performance audit, and Senator LeBreton said it was a comprehensive audit. I wonder if you could help me in your knowledge of human behaviour, especially senators' behaviour, how such a heretical thing could happen, if not an apostasy. 51-2 Senator Massicotte: I'll let Stephen handle. 52 Senator Greene: I guess it's in the vein of it felt like the right thing to do at the time. 53 Senator Cools: But I don't believe that. 54 Senator Greene: Well, I don't know. In the end, the Prime Minister said that it's worth the money in the long run because it provides a basis for the Senate to go forward, and it reassures the public that there isn't more to expose, et cetera. 55 On that basis, I agree it was costly in time and effort for all of us, but in the end—the mechanics of it might not have been the way we would have preferred it, but I think that it was a good idea at the time and it looks like a good idea now. 55-1 Senator Cools: I have another question. How is it possible, then, that you and some senators can draw those conclusions in view of the fact that in the Auditor General Act he's what we call a "statutory officer." All that nonsense about him being an officer of Parliament, no such animal exists. 56 The fact of the matter is that his statute grants him no power whatsoever to do this. It was contrary to his act, and the only body that he is supposed to report to is the House of Commons. So I would like that squared off in respect of the Constitution of this country and the constitutional principles that created the Auditor General in the first place. 56-1 And that report, I don't mind saying it on the record, was a nasty attack on many innocent, hard-working, good, long-serving senators, and it's a disgrace and it's a pox on the Office of the Auditor General. If you want, I can say more. 56-2 Senator Greene: If we want to go further with this question— 57 The Chair: Stephen, I really want to go on. 58 Senator Cools: We are looking for this new Senate, and we let that happen. 59 The Chair: I appreciate that, and it has been noted. 60 Senator McIntyre: Thank you, gentlemen, for your presentation and your excellent work. I have no intention of echoing all the comments that have been made. I found the comments not only interesting but very valuable. 61 This is only our second meeting. Well, I have a feeling that we are moving in the right direction. 61-1 That said, as a committee, without minimizing the suggestions that have been made, I think we should give serious consideration to Senator Joyal's recommendation and this whole issue of the Crown prerogative remaining intact. That's all I have to say for now. Thank you. 61-2 Senator Cools: It has to remain intact. That's the nature of prerogative. 62 Senator Tannas: A couple of things. First, I wanted to go back to Senator Stewart Olsen's comments around a job description. I wholeheartedly agree. We are not going to get unanimous consensus on a job description, but I think we need to seek majority consensus on one and drive towards it. The idea that we can all self-style ourselves and spend taxpayers' money is 19th and 20th century thinking, and we can't do it. So at some point I think this committee will have to step forward on that, and I think the mission statement will help. Mission statement first, then job description from the mission statement, I think. 63 Again, Senator Massicotte, you mentioned Justice Binnie had some excellent comments in support of this idea of other interests besides legislative and so on that supports what we're doing in the mission statement without it getting crazy. 63-1 A question for you gentlemen: Given the change in the dynamic, we did not see a potential majority of unaligned senators presiding over the Senate a year ago. We didn't see it coming. I think we all see it coming now. This idea of committee selection and the clinging of some to the status quo, and the train that will hit that wish, when the majority sit as independents—just the impracticality of it all and pretending independent, unaligned people don't exist and therefore can't populate committees in some pro rata fashion. 63-2 We weren't thinking about it then, but I'm wondering if one of the ways in which we could parse the situation as it is, and as it will become, is to have a complete election of all committee members and all committee chairs; however, any political party could opt out of that on a pro rata basis. So now you have created the opportunity for parties, if that's the wish of the caucus, to do what they have always done, but for everybody else, there would be the opportunity to participate. 63-3 Obviously we'll have to put in some kind of a mechanism that allows us to enforce discipline of attendance, participation and all those kinds of things, but it would be to opt out rather than something where we're talking about leaving this all in the hands of party leaders to give us the guidelines. I'm convinced, now more than ever, that we won't get guidelines from party leaders and that would be the mechanism for delay. I would be interested in your comments on all of that. 63-4 Senator Massicotte: This is a very important issue. Things have changed from the time we met in October. I think the solution will be in two steps. The eventual step, if we ever get there, is that there are no whipped votes. If everybody is free to vote as they wish, it will not matter very much who is chair and deputy chair of every committee. It will not matter very much that for every committee we have, there are members there to defend our party position. Eventually it may not matter. But for some people in the current Senate, it does matter, and they want to have some sense of discipline or influence on their vote. 64 I must say—I don't think I'm speaking out of school—every leader today, including all parties, suggests there is no whipping at all of votes. The argument is being made that we just convince them what the right decision is, based upon their thought process. Irrespective, there is no whipping. 64-1 Some say they are not being whipped or under any strong influence of how they should vote, and that it should be just democratic. In other words, for the Selection Committee, the chairs and deputy chairs should always be elected by the committee members. But if you remember the process we followed, the first resolution from that subcommittee re this matter did not have the words "guidelines by the leadership." Then people suggested we have a problem, because how do we make sure that two thirds of senators on a committee are Conservatives? How do we make sure it represents the proportionality of the senators? 64-2 We couldn't find the right words, so we said we will let the leaders come up with a structure. They don't have any influence over who gets voted in and so on—it's always senators voting—but some structure whereby they can satisfy that pro rata or proportionate need. 64-3 I think that is the first step. I think you need to maintain some form of structure because for some people it's still important. 64-4 For instance, you have a committee of three. Let's say they are all independents or they are all independent Liberals. Some people would not think that is fair, that it should be pro rata. 64-5 I think for a while you need the pro rata. Maybe a year or two from now we can revisit it and remove any structure whatsoever, free votes, but I think at this point it's premature. 64-6 Senator Tannas: For the recommendation as it exists today, you would put in guidelines around pro-rated representation as determined by leaders; is that right? 65 Senator Greene: Pro rata guidelines to reflect what the chamber represents, that's what you mean, basically. 66 Senator McCoy: And also the monopoly decision. 67 Senator Greene: You could have a situation in which, say, the independents wish to vote and the Conservatives, let's say, wish to appoint. 68 Senator Massicotte: It will be of that party. It will be of that grouping. 69 Senator Bellemare: Definitely change the wording. 70 Senator Greene: That might be a step we have to go through. I don't think I like it, but it's a step we might have to go through. 71 Senator Massicotte: Before you deal with that, I think it would be useful if we consider how we deal with cross-benchers or independents. I think you have to come to some principles in terms of how you want these people treated, and then you make amendments to the recommendations. What you basically have to say is: How should the independents be treated? I think they should be treated equally. Their funding should be equal, as well as their rights to participation. I think you have to have consensus on that before you interpret broadly. 72 Senator McCoy: They are not there yet, but they are getting there. 73 Senator Eggleton: Thanks to both of you for your presentation and all your hard work on this. I participated in the session just after the election. There are some very good ideas that have come out of it. Some are pretty straightforward but can make the whole place look more efficient and effective if we modernized, if we adopted some of them very quickly. 74 I think the two that need a lot more deep digging are the committee membership and chairs, how that selection is done, and also the Speaker selection. I concur with what Senator Joyal says about a system that would work under the current composition, but we're in a state of evolution. By the time the next Speaker gets appointed, maybe that won't be as relevant. Maybe some other formula would be relevant for the Speaker, or maybe some other formula would be relevant for the committee membership and the chairs. It's quite possible that, by the end of this Parliament, the majority of the Senate could be independents, depending on how you qualify a Liberal these days. We're never quite sure ourselves what we are, except in our philosophy. 74-1 Senator Joyal: I thought you were ex-mayor of Toronto. 75 Senator Eggleton: I know I'm a small "L" liberal to the core. 76 Anyway, the situation is changing; it's evolving. We have to determine what might work in the current term but be flexible enough so it can be adaptable into the long term. 76-1 I want to ask you a question about the very first recommendation that came from the committee, and I think it got general acceptance. Draft mission and purpose, sober second thought, the studies that go on in committees, and these different perspectives some of us take on issues such as the Constitution, and other people have other issues that they are particularly good at, are very interested in and that are helpful to the whole process. 76-2 The one thing that didn't get mentioned here is holding the government to account. Is that necessarily part of the Senate's responsibility? We have had some senators not too long ago get up in the chamber and say that we need to hold the government to account. I heard them say that, very loudly and very clearly. I don't personally think so. Nevertheless, what do you think about this? 76-3 Senator Greene: My own view on this is that, as far as the Senate is concerned, the only place where our activity should loosely fall under the phrase "hold the government to account" is through our review of legislation. That's all. 77 Senator Massicotte: I'll add my two cents. I'm not an expert, and I would ask Senator Joyal's opinion. But from the readings of experts that I've done, it's not our place in the Senate to hold the government to account. That is the role of the House of Commons. We are not a confidence chamber. I'm just repeating what I read from all these experts. Senator Joyal has intimate knowledge of this issue. Could we have your opinion? 78 Senator Joyal: Thank you. I know there are other senators who want to ask questions, and I would certainly not want to impinge on their time, taking into account that it's already 20 to 2. However, it is an issue that we might raise. This is not a way for me to get out of it. I do have an opinion on it. 79 That issue was raised at the symposium. When we have the next panel here, we might keep that as the first question to ask them. Of course, I can participate in that discussion, but I would prefer, Mr. Chair, that you tour around the table. Thank you for "la perche tendue," but I think it would be preferable. 79-1 Senator Tardif: I will put a quick question to the two members and then comment on something that was said. I want to start by thanking you and congratulating you. I was also in attendance at the October meeting, where I was able to see the excellent work that has been done. I think we came to a consensus on some of the recommendations. 80 That said, only 28 questionnaires were filled out, and that accounts for about 25 per cent of respondents. Do you feel that the recommendations, on which those who filled out the questionnaire came to a consensus, would also get the support of other senators who did not fill out the questionnaire? In other words, would the other 75 per cent of senators agree with the 25 per cent who filled out the questionnaire on all the recommendations for which there was consensus? 80-1 I would also like to comment on the job description. Talking about job descriptions makes me pretty nervous because, when we talk about the role of senators—which is covered in the Canadian Constitution and the recent ruling of the Supreme Court—I believe that it is somewhat defined. We are outlining our work when we talk about a legislative role, an investigative role, a representation role, either in the regions or for minority groups. When we try to go deeper in terms of job description, each of us interprets their role differently. It would be difficult to come up with a much more specific job description. That's my comment, and I leave you with the question I asked. 80-2 Senator Greene: I quarrel a little with your 25 per cent because it wasn't out of 105. Only 82 senators at the time were available to be part of the session, so that's more like one third. 81 Senator Tannas: Did 40 senators respond to your questionnaire? 82 Senator Greene: We had 28 respond and 40 attend. Of the attendees, and I don't know the party breakdown of the 28 responses, we had over one third of the Conservative caucus and over one half of the Liberal caucus. It was very representative at the time. But the times have changed and so I think the results would be a little more towards the direction of change in a broad number of areas. If the questionnaire were put today, we would have an even greater participation in it. It was difficult then for some people to answer the question. 83 First, I don't know if everybody trusted Paul and me. There was that issue. Second, we were in the middle of an election, when partisan feelings were high. Some people decided almost as a group not to participate. There were various pressures like that not to participate. Still, many people did participate. 83-1 Today, all those pressures are gone. 83-2 Senator Tardiff: Was there a sense that we would move on some of the recommendations where there's buy-in? 84 Senator Greene: In my opinion, yes. 85 Senator Massicotte: When we left the three-day session, we asked everybody: What's the next step? What's the mandate? We agreed what we would do with the media. The next step is to meet individually with caucus leaders. We are not going to describe those meetings due to confidentiality. But both caucus leaders have since said publicly that they are in large agreement with the modernization of the Senate. It was a large, not total, approval of our recommendations without disclosing the minor stuff. There was very broad support. 86 Senator Joyal: I would propose to you an element of reflection in respect of partisanship in the Senate. I try to wrestle in my mind with the idea that in the extreme the Senate would be composed of 105 independent members. That seems to be the logic of the appointment as the course is now. 87 With what we know from our experiences past and present, what is the usefulness of party allegiance or party affiliation in the Senate? As much as I'm against the Liberal Party dictating to me how to vote and I have voted against the will of my party, I'm not shy about that. I speak at this stage on some issues when I could not follow the party line, if you want to put it in those terms. Although I can be against the party line, I can find some merit for party presence or a group of like-minded people under political affiliation in the Senate. I'll explain why. 87-1 The Westminster system is based on a government and a position. 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. 87-2 In the Senate, as you properly stated, the government cannot fail. The government can lose a bill in the Senate but the government won't resign the next day. The principle of responsible government doesn't exist in the Senate. But what does exist in the Senate in terms of the presence of parties is the fact that a party of the day, minority or majority, in the Senate that has an interest in making the institution function properly, that is, maintaining the flow of debates and ensuring that party members are sufficient to maintain the debate. There is a whole set of rules to be followed in terms of Internal Economy, public integrity and ethics and so forth. 87-3 There is an institution in the Senate that is responsible for ensuring that on the day, those are all followed as an institution, as much as there is an opposition that might be the majority or the minority in the Senate with a similar kind of conscience or responsibility. The very moment you see that disappear totally, then there would simply be 105 individuals. If I am an individual in the Senate, where am I responsible for the whole institution? Where am I responsible for ensuring that there are enough members in daily attendance on the committee to be sure that the debates will take place and the credibility of the institution will be maintained? 87-4 As much as I was attracted to the idea of being more independent, I thought I was independent enough in my mind, even though I am a card-carrying party member. If we were to abolish the presence of all parties, which is essentially like-minded groups of people, who will be responsible for the whole of the institution at any time in its life? That's essentially my conundrum at this stage. 87-5 As much as I am in support of an independent group of senators being organized and taking part in the manning of committees and the debates, they vote in elections, read the papers, and follow the news. They have an idea about decisions on issues of the day, international, national, regional and local. The Senate is an institution and there has to be responsibility somewhere for the smooth working of the institution and the maintenance of its credibility. This responsibility is linked in a way to the fact that one party is the government and another party pretends to be the government if the other one fails. Again, I'm trying to wrestle with it. As much as you have reflected upon it, and as much as I am sympathetic to having independents—I sometimes felt I was independent myself, in a way—I try to balance that in the modernization objective of the Senate. 87-6 The Chair: It's very good, but we have to come to a conclusion. Every paper I have read I have never seen, "elimination of partisanship." I have always seen, "less partisanship." That's what you see, so it's an interesting point. 88 I have an idea: We are going to plan an informal session where we can have two or three topics that on which we can have a really good, solid discussion without being limited by time. You'll get notice of that, and I hope all of you will attend. 88-1 I want to thank both of you for what you have done. I mean, to plan a three-day conference, then to come forward with all of the recommendations and the report that you did, and Senator Tannas and Senator Campbell for what they did in helping with this, I think it's commendable. You have done a wonderful job, and we thank you very much. 88-2 (The committee adjourned.) 89
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