 CANADA The Special Senate Committee on Senate ModernizationConsideration of methods to make the Senate more effective within the current constitutional framework: Issue 16? 49th Meeting(?), May 23, 2018 Paragraph IDs yet to be added The Special Senate Committee on Senate Modernization met this day at 12 p.m. to consideration of methods to make the Senate more effective within the current constitutional framework. Senator Stephen Greene (Chair) in the chair. The Chair: Good afternoon, ladies and gentlemen and welcome to the special Senate Committee on Senate Modernization. I confirm that this meeting is in public. Today we continue our consideration of methods to make the Senate more effective within the current constitutional framework. I am pleased to welcome the Honourable Senator Peter Harder, the Government Representative in the Senate, as our witness today. Senator Harder is well known to senators as a long-tenured deputy minister to successive governments since 1991, but some may not know that his time on the hill goes back to before he was appointed to the Senate. Senator Harder first began on the hill over 40 years ago as an intern and then as an assistant to Flora MacDonald before becoming chief of staff to the Right Honourable Joe Clark, who was leader of the official opposition in the other place. He also served as chief of staff to former Deputy Prime Minister Erik Nielsen during the Mulroney years. I'm not sure how he came to be associated with the Liberals, but I guess that's politics. Regardless, Senator Harder is here at the invitation of the committee, an invitation which has been sent to all party and group leaders within the Senate, to address the following question: Do the relevant statutes, such as the Parliament of Canada Act, procedural rules and administrative Rules of the Senate and policies of the Senate adequately reflect the new reality of the Senate? With that, I turn the floor over to Senator Harder. Hon. Senator Peter Harder, P.C., Government Representative in the Senate: Thank you very much, Mr. Chair and committee members. Let me make a few comments at the start and then get into the questions. I want to thank you for the invitation to appear here today and giving me an opportunity to provide input on the important work being done by this committee. As the chair has stated, you have been charged by the Senate to consider methods to make the Senate more effective within the current constitutional framework. That mandate includes navigating the new reality of the Senate and ensuring that each member has an effective voice. This is not an easy task, particularly as the composition of the Senate is changing and breaking new ground in the history of the Westminster-style Canadian parliamentary democracy. Your deliberations and your recommendations are crucial to the future of the Senate, a body that the Supreme Court recognized in 2014 as "one of Canada's foundational political institutions." So, I hope you don't feel too much pressure. Colleagues, I have been asked to give my perspective on the Rules of the Senate. My remarks today will focus not on the precise details of specific rules, rather I felt it would be more helpful for me to speak to a broad set of principles that I think ought to drive your study and recommendations. First, I would like to begin by touching upon the context in which you are conducting this important work. The modernization of the Senate is no longer an ethereal concept. We are living it. In two short years the face of the Senate has changed dramatically. Not too long ago, envisaging a chamber where a plurality or a majority of members did not align themselves with a political party was unthinkable. Those few who chose to sit as independents were an anomaly. Today it is increasingly the norm. Based on current standings and existing vacancies yet to be filled, it shall remain the norm for years to come. However, an election is a little over a year away and it could conceivably bring yet more change to the Senate. Unlike the Rules of the Senate, this is entirely out of our control. Regardless of the election's outcome, in re-examining our Rules, there are broad dynamics that will and ought to remain. This is no longer an experiment. The new Senate is what we are dealing with for a very long period of time, regardless of which party will come to power next. Consider the three options or outcomes in the next election. Should the Conservative Party form and follow through on Mr. Scheer's statement that his government would revert to partisan appointments, we would likely see the return of a government caucus in the Senate with open questions as to which group, if any, would occupy the role of opposition in the Senate. Nevertheless, barring new developments in time travel, it is not as though it will be possible for a Conservative government to simply turn back the clock. There would continue to be a very large majority of senators not affiliated with a national political caucus. It would take nearly a decade to reverse that number, and the Rules must accommodate that fact for the Senate to deliver on its constitutional obligations. Should the Liberal Party win, it will continue to build upon the process it has established to make appointments through the independent advisory board with a Government Representative office in the Senate instead of a government caucus. All else remaining equal, we have to acknowledge and respect the fact that there would still be a Conservative caucus that is likely to remain a part of the national Conservative caucus. That group will continue to want to exercise what it sees as its legitimate role as the opposition caucus. Should the New Democratic Party form a government in the next election, Mr. Singh would have to reconcile his party's policy of Senate abolition with the Supreme Court's ruling of 2014. While this is pure speculation on my part, I would be willing to bet that, faced with the likely impossibility of fulfilling the NDP's preferred policy of abolition, Mr. Singh may opt to continue to build upon the appointment process established by the present government. No matter the outcome of the next election, we know that most of us, as appointed senators, will still be here working together to provide sober, second thought each in our own way to bring credit to an institution in which we all believe. We also know that when the curtain falls on the 2019 election, groups in the Senate will still be numerous and diverse. What matters is that we should all be empowered by the Rules to fully participate on an equal footing, regardless of where or with whom we sit. In light of this, I believe that three broad sets of principles could help inform your study. First, I have heard Senator McInnis state on at least a few occasions that, whatever this committee does, it should be workable in the longer term. I think that's good advice. In order for that to be the case, the rules necessarily have to be flexible and permissive enough to work for all senators regardless of which political party comes to power in the other place. We shouldn't approach this study as a zero sum game with winners and losers. On this point, I'd like to quote from the conclusions of the second report of this committee, which dealt with the Westminster system, and I quote: "... the Senate is free to approach the modernization project with an open mind and a focus on how, in light of its changing composition, it can best serve the Canadian people—as the site of sober, second thought for the improvement of legislation, as a vehicle for scrutiny of the government, as the voice of regions, as an independent form for policy inquiry and as a space for minorities to be heard and for opposition to rally." I agree with these sentiments wholeheartedly. We are the masters of our own house and the Rules of the Senate are there to serve us, not to hamstring any one group or any one senator. With the benefit of hindsight, we know now that our Rules were not sufficiently flexible and permissive to absorb many of the changes that have taken place in the last few years, generating frustration, points of order and protracted negotiation that have too often distracted us away from the work of legislative review. We shouldn't repeat history by bringing forward changes that would only work under the current dynamics. We need a solution that will accommodate the community of perspectives in the Senate and enable all of us to focus on the discharge of our collective constitutional responsibility as a chamber of sober, second thought. The business conducted inside the Senate Chamber and in our committee rooms is required for this country to function and for the government to deliver on its commitments to Canadians. At this point in the Senate's history, the last thing we need is a straitjacket. I don't have a ready-made answer as to how we can accomplish this in every detail. Nonetheless, it is in the spirit of sustainable long-term modernization of the Senate that I have advocated for the creation of a business management committee, as have others inside and outside the Senate. Similar to Scotland's parliamentary bureau and New Zealand's business committee, it would propose flexible timetables and work plans to the Senate. Any decision of a Senate business management committee would be put senate for approval, ensuring that the chamber has the final say. All groups would have a seat at the table and public deliberations would bring transparency to the development of the Senate's work plan. It would also serve to formalize a successful approach to deliberation and debate that we have implemented on two important items of government business. I believe that the experiences of the Senate's study of Bill C-14 two years ago in its current innovative approach on Bill C-45 demonstrate how we can work together to handle legislation in a more modern, transparent and predictable fashion that is accessible to Canadians. Most importantly, on both Bill C-14 and Bill C-45 the approach taken safeguard every senator's individual right to debate, scrutinize, propose amendments and oppose. I think such a committee would work well regardless of the direction taken in the next election. If we do see the return of a Conservative government caucus, such a committee would ensure that the independent voices in the Senate do not get drowned out bay framework that was designed on the basis of a duopoly that no longer exists. Your committee can provide a formal framework for the Senate business management committee, for example, through proposed additions of a new section to chapter 12 of the Rules. Second, as Senator Woo explained eloquently when he was last here, your review of the Rules should also be driven by the principles of fairness and equality of all senators. I think Senator Woo made a strong case that the Rules currently do not reflect the reality of today's Senate, in which the largest and fastest growing group is affiliated neither with the government nor with the opposition. I will not repeat at length the precise points made by Senator Woo on behalf of the Independent Senators Group but I do think he made a strong case for a pragmatic review of certain specific processes, such as the selection process for members of the ethics committee and the invocation by the government of time allocation. The ISG is essentially invisible to both of these processes in our Rules. The Independent Senate Liberals aren't included in the process relating to the ethics committee. In this last respect, I would suggest that we need to establish a process that will ensure that all senators, without exception, have the right to cast a vote on the membership of the ethics committee. This ties into a broader point: The need to ensure in our Rules that all senators have fair and equal rights, including those that are affiliated with recognized party or parliamentary groups and those who are not. When it comes to the Rules, the treatment of non-affiliated senators should be at the heart of our deliberations, not a footnote. This principle of fairness and equality was ignored in the last round of negotiations on committee membership. A closed shop, where only those who can choose to affiliate have full participation rights, is quite simply contrary to the spirit of a more independent Senate. As Senator Bellemare has noted in the past, before many of us rookie senators were appointed, former Senator Wallace fought tooth and nail for the rights of non-affiliated independent senators. I think we should work to make him proud. After all, we pride ourselves on our constitutional duty to give voice to minorities. Should that spirit not apply to our inner workings as well? Finally, any changes to the Rules should acknowledge the primary importance of government business in the Senate's workload. The review of government business is the Senate's most important occupation. As a matter of principle, your study should take into consideration the diversity of responsibilities that exist in the Senate which naturally includes those of my office in regards to government business. I would suggest that, whatever changes this committee might recommend, that they ensure that the Rules continue to facilitate and prioritize government business, safeguarding the government's ability to have a say in the process of debate of its own items and a say in identifying its own priorities. For example, the government has a legitimate and direct interest in decisions on the duration of bells and the deferral of votes on government legislation. These powers notably exist to prevent unwanted and potentially disastrous outcomes such as the unintended defeat of a government bill. Without the ability to defer a vote or to insist on a one-hour bell, for example, the government could potentially lose a budget bill. In saying this I fully acknowledge and accept the points made by Senator Woo last week. It is peculiar that the largest group in the Senate does not have any procedural role in these decisions. Surely, we can agree that the leadership of the ISG has a legitimate interest in ensuring that ISG members have an opportunity to cast votes, which is largely what deferrals and bells are all about. Another example is the role of ex-officio members. On this topic, I would urge the committee to consider the practicalities of its recommendations on the Government Representative office. Our collective of three senators is not affiliated to any group and under the terms of the sessional order has no membership on any committee of the Senate. When government bills are studied at committee, it is crucial that the government have access to the deliberations and maintain the ability to move motions through one of its representatives, as I have done in the past. In a nutshell, while the Senate has moved quickly toward increased independence from the executive, we must remember that our day-to-day work is of crucial importance to the Government of Canada. Indeed, by necessity, our agenda is largely the agenda of the Government of Canada. Hence, to the extent that the committee examines these practical aspects of our work, I would urge members to try to consider the issues from the perspective of the managing the government's business. As a final point, I would be remiss not to mention the Parliament of Canada Act which I know is on many minds. An argument could be made that current legislation is not in line with the new Senate. For example, one could make the case that the act is not sufficiently flexible or permissive. Yet, any change to the act would require the consent of both chambers of Parliament. And to the extent that any change would require a royal recommendation, the legislation would have to be introduced in the House of Commons through a government bill. Because the Senate is a self-governing body, it is not for the government to unilaterally come forward with its own view of amendments to the Parliament of Canada Act that could affect the inner workings of the Senate. In April of this year, speaking to The Hill Times, Senator Joyal expressed the following and I quote: Reviewing the Parliament of Canada Act is an important objective, if changes are made the Senate should go through the process of drawing up the recommended changes to the act itself, through the Rules Committee, and then send them to the house to include in legislation. I am in total agreement with the deputy chair of this committee. When being questioned by this committee two weeks ago, Senator Woo stated that there has to be a process whereby the government has to signal its intention and desire to amend the Parliament of Canada Act and then a process whereby all of us work on what those changes would be. Colleagues, on February 24, 2016, the then Leader of the Government in the House of Commons, the Honourable Dominic LeBlanc testified before the Standing Committee on Rules, Procedures and the Rights of Parliament. Minister LeBlanc stated at the time: I would be amenable to suggestions that Senate colleagues would have or whatever process you, Madam Chair, or your colleagues think is appropriate. You'll appreciate that it's not up to somebody who is serving in the House of Commons to come and suggest to senators how you may want to change or adjust your own Rules. I would be happy to work collectively or collegially to ensure that if the government brings in a bill to amend the Parliament of Canada Act, we at the same time fix, amend, modernize or correct whatever you and your colleagues think might be important . . . I consider this statement as a long-standing invitation for the Senate to move forward and make recommendations to the government for changes to the Parliament of Canada Act. Notably, with respect to Senator Woo's comments and in consideration of Senator Joyal's suggestion, I recently reiterated this message in a letter to Senate leadership, stating clearly that the government continues to welcome a Senate study on the subject. It is not up to me or the government, frankly, to dictate how or by whom a study should be conducted. That would be up to the chamber and its referral of a motion to one or more committees. I do, however, believe that such a motion would be a positive step in the right direction and not to be taken as quickly as possible. Thank you for your time. I'm prepared to answer questions as you wish. The Chair: We appreciate those comments very much. Senator McInnis: Thank you very much for coming in and for the effort in drafting your paper. The question I have is dealing with amendments that are made in the Senate and sent to the other place. Normally when I review legislation, I'll read the speeches that are made in the other place, and in particular I'll read the evidence and the questioning in the respective committees. With all due respect to the legislators in the other place, they tend to be more political as opposed to the committee structure that we have here in the Senate. We all agree that our committees do a marvellous job. Therefore, when they come forward with amendments, I'm not sure, when we send them to the other place, they are given the credibility that they deserve—in fact, I'm not even certain how they're dealt with—and they're sent back. It strikes me that since I've been here I have seen a number of really credible amendments, and they don't tread water at all in the other place. They used to have a system here—and I'm not advocating it because apparently it didn't work that well—where, if there are some dilemmas, they would have conferencing and there would be so many senators and MPs, and they would discuss it. How are they dealt with? Without mentioning the other place, do you not agree that we do a real credible job with the witnesses, the questioning and the results and reports that come back to the Senate? Senator Harder: Senator, let me respond by saying, first of all, I share your view with respect to the work of Senate committees. I've said elsewhere, when I was a deputy minister and appeared before a Senate committee as opposed to a committee of the other place, I ensured I was more prepared because the questioning was more relevant and from senators who probably understood the legislative framework because they had served for a longer period of time and were less devoted to the headlines of the Globe and Mail of the day. I agree with that. Having made that observation, I would also point out to senators that the last two years, in which this Prime Minister has sought from the Senate improvements to a bill, has been serene in receiving amendments. You will know that 10 bills in the last two years have had multiple amendments accepted. Those amendments have been accepted whether they were proposed by Conservatives, independents, independent Liberals or groups of senators from various groups. The government has, from time to time, as in the role that I have, signalled even in committee a willingness of the government to receive an amendment or, indeed, I have myself proposed amendments on behalf of the government even on matters as important as a budget bill that reflected the considerations the government had in light of concerns raised in the Senate even before it sent a piece of legislation back to the other place. In that regard, I take my role as the Government Representative in the Senate seriously and one that affords me the opportunity and indeed the obligation to bring those concerns of the Senate that are taking place in committees for potential amendments and working with the sponsors to highlight those. You asked what happens when an amended bill goes to the other place. We've had a variety of experiences on that. Technically, of course, the government, as a government, has to form a view through the cabinet process of what amendments are acceptable or not. That process takes place and the government forms a view and presents that view in the House of Commons through the message process. As I say, that process has involved, successfully, in terms of accepting amendments in 10 bills. Most recently on Bill C-49, we have had a number of amendments accepted, and we have traditionally, as a Senate, received the message from the other place and have, in all cases, except the one of yesterday, accepted the message and not insisted on our amendments. That is a complementary role in a bicameral system in which one institution is appointed and the other is elected that adequately reflects the duty to both provide consideration and judgment and bring forward recommendations to improve the legislation, the obligation of the government to consider that, and for us to exercise our responsibilities. I would point that those numbers are significantly different than previous practice. There has not been a long history of governments accepting significant Senate amendments on a regular basis, and I make no judgment. I believe that the Senate I am describing is one more in line and consistent with the Supreme Court's 2014 decision in which it talked about the complementary role of the Senate that is not a rival to the House of Commons. Senator McInnis: But if we're better, and if we actually adjudicate on these matters, and that is our role, then we surely have the right to insist, to some degree, that our amendments be accepted. I see your point being that there's a great number, 10 or whatever, amendments that have been accepted. It shouldn't be a numbers game. It rather is one that, if we are correct in what we say, and we truly believe that as a Senate, then is there a mechanism that we could put in place to be more insistent? Senator Harder: Senator, I believe that the mechanisms of political accountability exist through the ballot box, and they exist in the chamber that is elected. They exist in the platform and what you described as a more partisan approach in the other chamber. That's entirely appropriate. What is right is a judgment call that elected governments make in terms of balancing the public interest on a wide range of subject matters, and they bear the responsibility for accountability at the end of the day. We don't have that in an appointed body such as ours. We have, I would argue, the responsibility to, yes, exercise our judgment, seek to make the case for improvements to legislation, and, by the way, not oppose legislation, but to improve legislation, and to take note of the views of the other chamber. Senator Joyal: I have some qualifications on your proposal to Senator McInnis that not being elected would be barred, or at least block the legislation. I'll tell you why. I have been part of initiatives in the Senate that have blocked government legislation and rightfully so. It was the Harper government legislation on the reform of the Senate. I say that with the greatest deference to the Tory senators around the table. I will outline the context. The Harper government was elected with one outstanding promise and commitment that extends back to its birth, as the Alliance Party and the Reform Party, to change the Senate structure—to elect the Senate and have shorter terms. The government put that as a priority of its mandate. In fact, and I remember very well, Mr. Harper came himself to testify at the special committee of the chamber to advocate for that. You know, it was unprecedented that the prime minister, immediately after the election, came to the chamber and pleaded for the reform of the chamber. The bill was introduced in the Senate. It was sent to legal and constitutional affairs. After a thorough debate and study of the legislation, the majority—which was a liberal majority—came to the conclusion that the bill raised important constitutional implications and that those implications needed to be heard by the Supreme Court because we were changing the structure of the Parliament of Canada. The government and the committee recommended that the bill be stood as long as the Supreme Court would not pronounce on it. The government then introduced the bill in the House of Commons. The bill stayed on the order paper in the House of Commons because it was a minority government and the bill failed with the government. Then the government reintroduced the bill and finally, after three years, the government, in my opinion, very wisely referred the question to the Supreme Court and we got the decision you referred to from the Supreme Court. Well, the conclusion of that is if the Senate would not have opposed it against clear electoral commitment, you would not be sitting there. It would be another senator on behalf of the government because that senator would have been elected and not appointed by the government, be it independent or otherwise. It could be a senator from the Green Party, or a western party, or any other kind of party. So the conclusion I draw from there is that it is not true that the Senate should always yield to the House of Commons, especially when a question like the definition of the structure of the Parliament of Canada is at stake. Let me give you another example. The Chretien government got elected with a promise in its red book to cancel the Pearson airport contract. They introduced a bill abolishing the contract and there was a clause in that bill to prevent the contractor from suing the government for compensation against the charter. In other words, abolishing the right to go to court. The bill came in front of this chamber and this time there was a Tory majority and the liberals joined the Tory majority to delete that clause of the bill and we sent the bill back to the other place. Well, it is again a clear initiative of the Senate against a government legislation sanctioned by the vote of the electorate of Canada about denying Charter rights. I think that the Supreme Court decision in 2014 clearly recognized the right of the chamber to oppose in some specific circumstances, where the Constitution of Canada is at stake or the Charter rights are at stake. As long as I am a senator I will advocate that. It doesn't mean the Senate can, in any case or any instance, oppose the government on its electoral commitment. I don't contend that, but I contend even if the government has received a clear electoral mandate, if the interpretation is against the Constitution or the Charter, the Senate is founded to oppose it. The final judge is either the court or the electorate. At the end of it, there is an arbitrator in terms of where the chips should fall. I'm not a proponent of the abuse of the capacity of the Senate to veto. If the Supreme Court would have come to the conclusion that the Senate should not exercise its veto to negate the democratic component of the Constitution as interpreted by the existence of the election, the Supreme Court would have said it. It never said it. It said the Senate has legitimate power that it exercises in specific circumstances. I think we're founded as an institution to use it, not to abuse it. If we abuse it, we know what would happen. Those did not happen in the 19th century—it was 3 years ago or 10 years ago, when myself and Senator Verner were members of the government in those days. I think there are nuances. That's why I think that when we question ourselves on how we should exercise our power, our legislative power, we should finally exercise them. But it is not for the government to take a position of principle, like the prime minister said some while ago—no amendments from the Senate, thank you very much, we did our job in the House of Commons. We had the then Minister of Justice, Anne McLellan, come in front of this committee on the youth criminal justice bill. She was testifying on that important criminal code amendment. She came and she stated, listen, the House of Commons has made 18 amendments to the bill, it's perfect, thank you very much, adopt it and thank you. Well, we made one amendment to protect Aboriginal youth. At that time it was not the agenda of the government to protect Aboriginal rights the way we understand them today—rightfully, in my opinion. I don't say that because the government was insensitive to Aboriginal people generally, but in relation to the bill it didn't reflect the plight of Aboriginal kids. We made one amendment and sent it to the other place. The government was confronted with the challenge—do we not recognize the status of the Aboriginal people? And they did accept it in the end. If we had accepted the words of the then Minister of Justice, we would have said thank you, that's enough, and sent back the bill. When a government comes and says no more amendments on that bill, I'm not sure it's very respectful of the rights of the Senate. Public opinion can judge us for abusing our rights or not, or if we're found to insist, in the case of the Aboriginal kids, for a minority that had no voice nowhere. You know the judgment of the human rights tribunal for kids in foster homes, and the condemnation of the United Nations for that situation. You know it better than me. I don't think the government should take a position in principle on a bill—thank you, maybe next month, but not on this bill. That's not the way the institution should function. The institution should function on the merit of the analysis that we make and on the expertise that we hear here at the table where you sit. It's where we draw these conclusions. Of course not all the amendments are of the same importance and, in my opinion, when the amendments deal with the rights of minorities or the rights of Canadians who are seen as marginalized in the Canadian fabric, I think the Senate has the right to insist. In those circumstances, I hope I will still be in the Senate in a situation where we will be insisting on the basis of rights relating to the Charter or Constitution of the country. I will be ready to insist at any time, to go on any platform, press conference, any television or journalism interview to explain why the senate insisted. We have to understand that very clearly, and I think the government should insist to understand that very clearly. Because otherwise we try to window-dress the Senate. Discuss as long as you want, but, at the end of the day, it is over, and we will decide any time, on any occasion, when it is over. The system is more nuanced than that, and the Supreme Court has got it very nicely when they made that decision. I understand your position. I'm not addressing myself to you personally. You are the government; you express the government views. In conveying to you that expression, I wanted the government to understand that clearly because some of them might not remember what has happened 3 years ago, 10 years ago, 15 years ago in relation to how the Senate has exercised its veto power. Senator Harder: Senator, your comments are worthy of a considered response. I broadly share your conclusion, by the way, and the paper that I distributed recently on complementarity goes into this in some depth, longer than I was able to in the statement today, in which, for example, I describe why I don't agree with a suspensive veto in the Canadian context because we need more nuance in the understanding of our principles because they are not straitjackets. Indeed, at one point I posed the question: What is appropriate self-restraint? The short answer is that it's complicated because you have to have the circumstances of the moment to best determine how the Senate ought to exercise its very substantial power in light of its complementary role. I'm not offended at all by your description of the circumstances; they certainly would be debatable. By the way, at the end of the day, it is the majority of the Senate that determines whether or not we insist. On Bill C-14, for example, when the message was received, a number of senators—you included—would not have accepted the message from the other place for very good reasons and arguments you put forward, but that was not the majority view of the Senate. The majority view was we accepted and did not insist. That is the debate we will have. What I would like to suggest, though, is those debates don't happen on every piece of legislation. They happen on the pieces of legislation that touch in the areas you've described. We have to reflect our experience with that reality. Again, our practices and principles are not a straitjacket. In a sense, the recognized self-restraint is, frankly, a powerful tool when dealing with circumstances that demand a more activist Senate. Senator Stewart Olsen: Thank you, Senator Harder. I'm going to go to your presentation, actually, because I would like you to flesh out a little bit more your idea of a business committee. It would seem to me that setting up another bureaucracy within the Senate is potentially just another bureaucracy. I wonder that the business committee you're suggesting is not already happening—it just doesn't have a name—but all of the groups and independent senators meet—with the exception of those independent-independents—and you decide the order of the day, you negotiate on the various bills. I'm not sure what you're suggesting. If this would come to pass, in my view, your office would be severely restricted in its staffing because you simply wouldn't need all the staff that you have. How do you see it functioning? Is it higher than Internal Economy? Senator Harder: Thank you for the question. Let me expand and direct you to an example that ought to be considered. Go to the website for the Parliament of Scotland where they— Senator Stewart Olsen: I did. Sorry to interrupt you, but I do like to see what we have here. Senator Harder: I'll get to that. I wanted to say that there is an example that works that is not terribly bureaucratic that allows those who participate in observing or legislating in the Scottish Parliament to have some degree of predictability on scheduling of debates and what they describe as "decision time." What I am suggesting is building on the leaders' discussions that now take place where they certainly exchange information, but they rarely conclude with agreement on how a particular bill will be managed in what time frame. We did reach that agreement in the context of Bill C-14 and Bill C-45, which I referenced in my comments on a business committee as building on that experience. I don't think it was bureaucratic in any way. It was certainly one that was brought to the floor of the Senate, as senators will know, and accepted. It did provide a framework for committee work and for the Senate as a whole to deal with second and third reading debates. That would go a good distance in ensuring that the pace of our consideration didn't, frankly, have the June and December rush, that there could be a more deliberative pace to our deliberations that would reflect itself in a more thoughtful use of our time. It's not a revolutionary concept. It certainly doesn't mean we have less work to do. It means we have a more focused management of the work we have to do. Senator Stewart Olsen: In other words, what's happening now, you would like to add more rules to that or more changes that would set a timeline so that there would be a rule, you get a piece of legislation, the rule is that we have to debate this? I'm trying to be clear. Senator Harder: It would be case-by-case. Senator Stewart Olsen: As it is now? Senator Harder: Yes, but it would have the benefit of having an agreed approach for a particular piece of legislation as to how long it would be deliberated and perhaps even identifying days so that those following, with interest, the subject matter wouldn't have to follow a scroll discussion of the whole Order Paper being debated. This is not a horribly intrusive intervention. It is, though, a marked improvement in our ability to manage our time and our consideration and to plan for how we deliberate and decide. Senator Stewart Olsen: I see your point. My point is that it's happening now, and where we can, it seems like we have come to agreements on legislation that you, as government leader, say that this is important, we need to get this through by, and then everyone sits around. It's not a formalized business committee, but it is a meeting where people negotiate, and perhaps you don't get what you want out of it every time, but we're moving to negotiations. It appears to me like that. I could be wrong. Thank you. Senator Lankin: I have a couple of comments on some of the discussions that have gone before and then a question for you, Senator Harder. Senator Joyal, I listened to what you said, and what I think you meant is that, in those situations, what's in the scope of our work as set out by the Supreme Court, that there might well be occasions where our duty is—so I agree with that, and I don't think anyone disagrees with that. I would just point out, as you said, it's been rarely used and so therefore not abused. Usually you've got institutional history to add to that, but there aren't many ministers who did what Minister Garneau did, which was to say, here is the bill, I want no amendments and I want it done by Christmas. I think neither of those situations should be abused, and they will happen at some point in time, but what was key for me was the scope of the work set out by the Supreme Court and that's where that would take place. I would argue that with bill C-49, sending back a number of amendments with some of them being accepted and sent back to us—the exercise one senator put us through to send it back again and to come back and see a whole number of senators vote to send it back again yesterday, even though it was defeated, is certainly not in the realm of responsible use, and borders more to abuse had it been successful. I think the reason for that is the testing of what happens when you have a group of independents who don't necessarily vote in an aligned manner. They don't come to an agreement to vote in an aligned manner. A couple of things where you get one or two and the balance changes, and the people celebrate they were able to get one on the government. None of that, for me, is valid in what the role of the Senate is. It's playing games. It's not that I want no opposition. I want considered opposition from all perspectives. However, I know a number of people who told me how they would feel about sending that bill back again. I saw them all stand and vote, opposite where I sit, in one way. All of them, who had told me they didn't agree with what they were doing. So Senator McInnis, I put that back to you. If we do it better, there should be more government listening to it. Frankly I say some of the things we do are not better. I come with a shorter perspective here. I'm sorry it's limited, but I've appeared in the past before a senate committee, and I agree that there is good work done on committees. I've seen too often on legislative review that people come with the same list of questions that they rotate, and it doesn't matter what the witness has said. There are only some people who do that, but it happens. I think we need to challenge ourselves on our level of professionalism. On the second reading on C-45 I heard three senators say the bill makes it legal for 12-year-olds to have marijuana. Three senators. That's not sober second review. The legislation does not say that; yet three senators stood and said that. I think there's a lot of room for us to up our game. My second question follows on Senator Stewart Olsen's question around the role of a management committee. I agree with this approach, only because I think—and from what I experienced in the legislature as a house leader and a whip—it's not the leaders we're talking about, but those charged with the responsibility to make sure we were getting through legislation. The fights were around that table and they got worked out because there was an expectation. When the leaders come together and then go back and talk to their groups and come back again, we're not getting to a resolution and there are other factors at work. What is wrong with the current system? Why does it not get us to the end result we want? Is it different people not executing the leadership's role in decision-making, first time round, giving it to another group to try and hammer it out? What would be different than what we have now, what could be different that would fix this? Senator Harder: Of course it depends on people and good will. In the tool box for a government representative or government leader in the Senate, the strongest tool is time allocation. That was used very regularly in a duopoly of partisan Senate representation as the ultimate hammer when agreement could not be reached in the bilateral conversations. As senators know, I have not used that tool. I will quickly add it is not because I haven't been tempted, but it's hard with a three-person caucus to say with confidence, here's my hammer. I think I came close on one occasion because of discussions I had, but I didn't need to because there was agreement to accept a time frame that I thought was entirely appropriate. It was not, perhaps, as quickly as I would have wished, but not as late as some would have wished. It is much better to have that as an agreement than to have this tool that is not entirely designed for a more independent Senate. That's why I would gladly exchange a theoretical right of time allocation with a practical approach to managing the business of the government that ensures appropriate debate, but also that we conclude and have a deliberation and a decision time. It shouldn't all be in the last week of the parliamentary cycle. Senator Lankin: I have one short supplementary. Senator Lankin: The business management committee. We've talked thus far about what goes on in the chamber. I have also been developing the opinion that the amount of committee work that is taking place at the same time the chamber is sitting diminishes the value of good debate and consideration. I want to hear what my colleagues have to say. I tend to stay, whenever I can when I'm not compelled to go to a committee, in the Senate, because that's where I'm going to hear these ideas. One of the problems is that I don't necessarily know until that afternoon when I arrive and look at the scroll notes who is going to be speaking to what bill. I don't know if we have five speakers on a bill I'm interested in that day. I also feel when we have a series of one-offs and big gaps in between, it's not considered debate. We're not hearing from each other. Would this business committee be looking at the issue of management of committee workload and chamber workload, and re-examine this? Senator Harder: Thank you, senator. Yes, it's consequential, isn't it? All government bills are referred to committees. If there's a bumper crop at the end to one committee, that impinges on the ability of that committee to provide sober second thought, which is why I would like to see us have some regard for the workload of committees when we allocate bills to committees. After all, they are simply a subgroup of the Senate. That would have some predictability. On timing, that's a really interesting question because we have had some debate, even in the chamber itself, with respect to the number of committee chairs who have asked for leave to sit while the Senate is sitting or indeed to travel. The rules of the Senate were designed, I think quite rightly, to protect the Senate sitting time for the Senate. We are a unique chamber by being as small as we are, and as long-serving as we are, that we get to know each other. We get to debate and have that experience which happens only in the Senate over time. I would share with you the view that we should husband that environment, that arena, and ensure that the committee work, important that it is, takes place in the slots outside of the normal sitting time—with some exceptions for management of bills—and that we ensure that the distribution of workload to committees is at least more balanced than it sometimes is. Think of, in your own experience, what were the best debates in the Senate? I'll guarantee you they were more than one speech in a row. They probably had diverse opinion, and they were, I think, edifying of the debate. We had that recently on the Trans Mountain bill. That was a private member's bill, Senate public bill, but there were differing points of view in sequence. And then we decided. What's wrong with that? Similarly, one could imagine that—and we experienced that on various pieces of legislation that I can think of—there was genuine difference of view. It was more proximate in time and deliberation, and it led to decision-making. Senator Massicotte: Thank you, Senator Harder, for being with us today. First, let me acknowledge, Senator McIntyre, that you made a reference, basically you concluded quite conclusively, quite clearly, that a less partisan approach is obviously a better Senate. So thank you very much for saying that when you referred to the committees. Having said that, Senator Harder, in the letter you sent us and in the request for opinions on amendments, obviously this represents, I presume, an openness by the government, not only your own personal opinion. When you look at the Parliament of Canada Act, as well as at the Rules, there are a lot of nominations and appointments that are made by order-in-council or by the Crown, and, therefore, it implies their input. We even have a debate, as you know, on whether the leader of the independents is or is not. I want to go further with that. When you look, in particular, at the appointment of the Speaker of the Senate, I presume you must be aware of the opinion of the government. Are they prepared to amend that to allow us, as senators, to make that appointment, without consultation from the House of Commons? Senator Harder: Senator, I have not raised this with the government. The Senate has a report from this committee that it has not yet debated and come to a view, as a Senate, on. There is a different bill before the Senate, a Senate public bill, on this subject. I think it would be useful, at the appropriate time, perhaps not in the next three weeks, for the Senate to debate this modernization report and have a broader discussion. The government has not pronounced on this. What the government has said, with respect to all order-in-council appointments that it has responsibility for, is that they ought to be open to candidates from across Canada. They ought to be transparent and posted and that there ought to be a deliberate selection process. That appointments process is what they have taken to any number of appointments, but, as you know from our recent experience with the Speaker, that wasn't the case with the Speaker. And there are good reasons. Senator Housakos has spoken in the Senate about why he would oppose what you're suggesting. It would be premature for me to even enquire of the government because we, as a Senate, haven't really debated or come to a view. Senator Massicotte: Let me speculate. Maybe I can come up with why I think we haven't gone any further on the issue. It is our understanding—I think we testified to this in this committee—as confirmed by the Minister LeBlanc at that point in time, in direct discussion with me—He showed up, when we did this thing, saying, "Yes, our government is very open to having the Speaker named by the Senate," but then he came back to me and said, "We have a legal opinion that says, no, it would require the approval of more than our Parliament, than the two houses." There is a legal opinion out there saying that it would require the approval of the provinces, given the significance of that change. I asked for a copy of his legal opinion, which I never got, but I think it's something we need to pursue to find out what the reality is, what is doable. Because of that, I think our conclusion is not possible to do. That's why we're not completing our debate. Maybe we could find out more on that issue to see the openness of government. Is there a solution to that apparent problem? Senator Harder: I'd be happy to have discussions with you or anybody else offline on this matter. The Supreme Court has given guidance as to how you cannot circumscribe the prerogatives of the Prime Minister, but, even on the appointment of senators, for example, there are ways in which the prerogative is protected. So I don't think that, if there is a will, there ought to be a way, but I'm not privy to either legal opinions or the current views of any minister on this. Le sénateur Maltais: Merci, sénateur Harder, de votre présentation et je me demandais si vous auriez la gentillesse de nous donner un exemplaire de votre document dans les deux langues. Vous avez très bien expliqué l'idée du gouvernement à cet égard. Cela pourrait servir de guide aux membres du comité. Sénateur Harder, la réforme du Sénat nous obligera à modifier la Loi sur le Parlement du Canada. Dans votre préambule, vous dites que le ministre Leblanc est réceptif à cette idée. Nous n'avons pas eu d'engagement ferme, car nous ne sommes pas rendus à cette étape. Toutefois, si on modifie le fonctionnement du Sénat en apportant des modifications fondamentales à la loi, ne faudrait-il pas consulter les provinces pour savoir ce qu'elles en pensent? Le Sénat fonctionne en vertu de la Loi constitutionnelle de 1867 qui a été renouvelée en 1982. Les gouvernements qui se sont essayés se sont fait rebuter par la Cour suprême. Il faudrait peut-être connaître le point de vue des provinces. La façon dont on fonctionne à l'intérieur d'un groupe, c'est faisable. La loi actuelle n'est pas conçue en ce sens et ce n'est pas la faute des sénateurs. Lorsque le gouvernement actuel a changé la façon de nommer les sénateurs, il n'a pas pensé à son fonctionnement. Le problème est là. Il faut tenir compte du fonctionnement du Sénat et on doit obtenir l'unanimité de l'ensemble des sénateurs, qu'il s'agisse des indépendants, des libéraux indépendants ou des conservateurs. On veut modifier en profondeur le fonctionnement du Sénat. Je ne dis pas que ce n'est pas possible, mais actuellement ce n'est pas facile à gérer. Je le concède aussi pour mes collègues indépendants : ce n'est pas facile de travailler dans ce système. Le présent gouvernement ne pourrait-il pas demander à ses ministres de nous rencontrer pour nous expliquer comment ils perçoivent le fonctionnement du Sénat? Les ministres seraient-ils prêts à consulter l'ensemble des provinces pour savoir ce qu'elles en pensent? Je me demande également quelle place auront les autochtones dans les années à venir? Senator Harder: Thank you for the question. Let me respond by saying that the Government of Canada's view of Senate modernization, of a less partisan, more independent Senate, is really framed and resting on the foundations of the Supreme Court pronouncement of 2014, which clearly describes the constitutional role of the Senate, and that this committee, and, indeed, the Government of Canada, has been inspired by Senate reform within the existing constitutional framework because I don't think anybody wants to go down the road of constitutional reform that is Senate-specific. That would probably not be the best use of our time. I think the role of this committee can be very helpful in achieving consensus because it is representative of all of the groups and caucuses of our chamber, on bringing forward, in the spirit of the reform, those issues that can achieve a broad consensus. My hope is that that can reflect itself in the Rules on the basis of the points I made earlier, but the Rules interact with the Parliament of Canada Act. In an odd way, we have been just as slow to deal with our rules as the government has been in responding to the Parliament of Canada Act. And I would suggest that I have now—as I indicated—written to describe the openness of the Government of Canada to receive the views of the Senate in a more formal way of what Parliament of Canada Act amendments could be, but they ought to, I would think, be reflective of the rules that the Senate itself is prepared to adjust and see the Parliament of Canada Act reflect. My personal view on this, as I indicated, is that they ought to be flexible and permissive, not wedded to a particular model that will put us in a straitjacket, given what we may face. So let's be a little predictive, but I do think the obligation is on the Senate itself to bring forward and make changes to the Rules and to make recommendations to the Parliament of Canada Act, which I would be happy to then take to the government. It will have to be a government bill because, I presume, it would need a Royal Recommendation, but we ought to be creative enough to have that government bill dealt with in the Senate before, in some fashion, before it is ultimately taken up by the House of Commons. Le sénateur Maltais: Je comprends très bien votre rôle, sénateur Harder, vous avez le rôle de le rendre fonctionnel et vivable au goût du gouvernement. Lorsqu'on modifie un acte constitutionnel, et je vous invite à relire les débats d'un autre comité qu'il y avait cette semaine les recommandations de l'ancien juge Binnie de la Cour suprême qui nous a clairement dit : Lorsque vous modifiez des règles du Sénat, vous devez vous assurer d'avoir une très grande prudence parce que ça peut facilement se ramasser devant la Cour suprême si les provinces et si les territoires n'ont pas donné leur accord. Je ne vous dis pas que ça va se passer comme ça, mais je vous dis la recommandation que nous avons eue. Quelqu'un qui a siégé à la Cour suprême est une personne qualifiée pour nous donner ces mises en garde. Je ne vous dis pas qu'il a la science infuse, mais il a un peu plus de diplômes que moi. La seule chose qui m'inquiète dans ce que vous avez dit et ce que j'ai pu retenir—et je m'excuse d'avoir été en retard—, c'est le facteur du gouvernement. Vous êtes là comme représentant du gouvernement avec un leader adjoint et un whip. D'ailleurs, je me pose toujours la question, que fait votre whip? Je me pose toujours la question. Parce que le Groupe de sénateurs indépendants n'en a pas, car il n'est pas structuré de cette façon. Je comprends que vous ayez un message du gouvernement pour ce comité qu'il faut qu'il en arrive à une recommandation qui fera l'affaire du gouvernement. C'est votre rôle, et je ne le dénigre pas, bien au contraire. Sauf que les hommes ne sont pas éternels, mais les institutions durent longtemps. Faire bouger un gouvernement, une institution, ça prend du temps. J'aimerais encore une fois que vous pensiez avoir l'avis officiel du gouvernement là-dedans, quelqu'un qui viendrait témoigner et nous expliquer comment le gouvernement voit ça. Le problème est arrivé parce que le gouvernement a décidé de changer la façon de nommer les sénateurs. S'il n'y avait pas eu de changement, il n'y aurait pas eu de problème. Maintenant, nous avons ce problème-là. Comment le règle-t-on? Je pense que quelqu'un du gouvernement devrait venir nous l'expliquer—je ne dis pas que vous ne représentez pas bien le gouvernement, loin de là—, mais que la Chambre des communes soit par un ministre ou son président ou quelqu'un d'autorité qui viendrait nous dire comment il le voit. Ce serait un grand service que vous rendriez à ce comité. Senator Harder: Thank you, senator. Let me respond by saying that I will read the Binnie testimony with interest. He's always worth paying attention to. I do believe, senator, that the government has been very clear in its view of the role of the Senate in a bicameral Parliament of Canada, that it is seeking to have a Senate that is complementary to the House of Commons, that it acts in a less partisan fashion that is independent structurally from the executive and also is bringing to bear independent judgment, not the partisan considerations which may be constraining of debate in the other place. The appointments process is one aspect of that. This Prime Minister has now made 33 appointments of senators who have agreed to sit as independents, but you're quite right that change is cultural; it is rules and procedures, and it is time and people. The rules and procedures are before this committee, and I would simply suggest that this committee take early action to ensure that the rules and regulations of the Senate are reflective of the reality that we are living. We have made accommodations along the way but they're—and that we do so, I would suggest, in a spirit of not constraining what models might evolve. They should be empowering and they should be respectful of the differing perspectives on some of these issues. That time and culture will evolve, and I can only predict, as I tried to outline, what the next five years might bring. But that should not discourage us from seeking to make the rules work as best we can, the Parliament of Canada Act reflect and be permissive of the rules that the Senate would wish to apply. They are constrained, though, by the Government of Canada's desire not to go down a constitutional road for changes that would necessarily involve provinces and other actors in our constitutional deliberations. The Chair: Senator Harder has approximately 15 minutes left in his presence. Senator Eggleton: Senator Harder, I substantially agree with your comments and I hope we can now move in some of these directions. I think what's particularly important, and what you and some of the others have said, is that we need to be flexible in how we approach this. As we have found in some of our previous deliberations, it's easy to hit the third rail because there are some very firm positions and opposing positions on how this all should be structured. I think we have to find the common ground that isn't a threat to the way people see the place as functioning, even under different scenarios. I think we can do that. I like your idea of a business management committee. To make the place run in a little bit better way, we still have this problem of reports that just sit there for months and months. Sometimes they come up suddenly for a vote and you say, "What's that about? I forget. It has been months and months." There are a lot of different things that need to be reorganized, particularly since, when you—not me—go into the new facility across the road, television is going to be there. I think you want to put an honest foot forward, an accountable foot forward, but also something that truly reflects what the Senate is about. It's another reason why—I'm picking up on Senator Lankin's point—we should minimize the conflict between committee meeting times and the Senate meeting times. It's not like the House of Commons where you have the discipline of the party whip and following the party leadership all the time, so can you go off to committees and have a couple dozen people in the House of Commons. No. We really have to be in both places, particularly with the number of people that are independent. There is this report that—I don't know whether this is on the agenda officially, but it seems to have fit in with the conversation rather well, and that is from the Law Clerk—I don't know if you've read this. This is some suggestion on how the Parliament of Canada Act could be amended to accommodate some of the things you have talked about and others have talked about. If you've got any thoughts on that. Plus any thought on what is the next step? What should be the priority? How do we get the ball rolling on this? Priorities, next steps—that kind of thing. Senator Harder: Thank you, senator. The Chair: This paper has been distributed to the entire committee on behalf of the Law Clerk. Senator Eggleton: It also references some of the things he talked about. Senator Harder: Senator, I think that it would be helpful if the people to whom I addressed this offer of the government to receive the views of the Senate were to find a way of collectively agreeing, whether it's an ad hoc group or whether it's a committee. I sent it to the committee chair for this committee and for the Rules Committee so that they would be aware of the potential involvement of their committees. But it is not for the government to decide or determine, in this case, because it is, frankly, a way of getting the buy-in and views and hopefully a collective consensus on what changes to the Parliament of Canada Act could be considered. I would hope that that work could be launched before we go for the summer so that some work could take place in the course of the summer. Even if it was simply staff being designated to do some follow up to the work that you're referencing, so that we would have an ability to achieve a consensus and express that to a government in the course of the fall. But at the same time we can do what is entirely in our hands, and that is the Rules Committee and the rules changes that would interact with the proposed changes that we're suggesting to the Parliament of Canada Act. I think that that could be incited with more vigour and energy. Senator Eggleton: You're suggesting that we should come up with suggestions for amendments to the Parliament of Canada Act? Would you then take them to the government and tout them on our behalf? Senator Harder: Let me just describe how I think it would evolve. Again, I haven't confirmed this with the appropriate governmental voices. I think that it would be—and again it depends on the strength of the consensus. As I said, it would have to be a Government of Canada bill, which means it's a House of Commons' bill, but to the extent that it reflected the consensus of the Senate there ought to be less controversy in the Senate side to the extent that it added other things you might want to have some form study of the bill before you give it to the House of Commons. I think before the house pronounces the Senate should more formally pronounce on a bill that is reflective of its interests with respect to the Parliament of Canada Act. Senator Eggleton: We couldn't actually draw a bill up. It is a Royal Prerogative. Senator Harder: It would become a C bill but it could have pre-study in the Senate before it was even tabled in a committee in the other place, and we would have, as it went through the committee in the other place, it would have the benefit of what— Senator Eggleton: It would be in the full context of a legal bill? Is that what you're suggesting. Senator Harder: Absolutely. It would have to be. It's an amendment to an act. So it's trying to find a mechanism that is respectful of maître chez nous—as well as of processes that are prerogatives of the government and responsibilities of the government. Senator Frum: Just following up on that line of questioning. I understand your position that it's not for you to propose what those changes should be. I am very heartened by your comments that we need to be flexible, and that we should not be proposing solutions that only reflect our present dynamics is what you said, which I really do— Senator Frum: My question to you is. You don't have specific suggestions, but given that things change and they change more dramatically at different moments, is this really the right moment to do this? Have we had enough experience with this model that we're in right now, and that there is the possibility, as we all are aware, that there could be another government come in with an entirely different vision and model of how the Senate should be reformed or not. So the question is: What are the things we can work on right now, with the dynamics that we know about today? What are the things that you think are important to look at? Senator Harder: I suggested some of them but let me reiterate. I think that ensuring the appropriate consultation with all groups on matters that are governed by the Parliament of Canada Act ought to be one of them. I think that, clearly, the issue of remuneration of leadership in other groups that are presently not included under the Parliament of Canada Act, that would be another. I think that even in the report on the potential oversight committee that was referenced and is being looked at, that may require an amendment to the Parliament of Canada Act to ensure appropriate consultations. So those things can be done. You might want to include—I know there's great debate around the title of the government leader, the Government Representative. Why not be permissive? If the Prime Minister of the day wishes the Leader of the Government to be the Leader of the Government, let it be the Leader of the Government. If it wishes to be the representative of the government, let it be the representative of the government or with respect to the opposition, the same thing. We should be mature enough to have the flexibility and the respect one for the other that this isn't about using the act to get any group. It's about getting every group equally involved and engaged in the work that we do, that is respectful of their leadership role and treated equitably. Senator Frum:—the mechanisms. One of them, you referenced the bells and the decision how long the bells should be. I would argue that that is a political matter. It is not a logistical organizational matter. If it was, all bells would be 30 minutes despite default, and not everybody would have enough time to get there. Nobody is proposing to make all bells 30 minutes. If you only cared about logistics, that's what you would say. So the choice of how long a bell goes has a political purpose, often. To have a political purpose, you have to be political, but most of the people in this room are nonpartisan, so they can't be political. So I don't know why there would be interest on the part of some members to want to change the bells because they are beyond politics. Senator Harder: I would disagree with your analysis. Let me try. I think that—let's be very blunt—the facilitator of the ISG is not in our Rules with respect to the bells. Certainly the facilitator and the leadership group have every interest to ensure that all of the senators available for a vote are able to be there. The information that they might reflect itself in whether it's a 15-minute bell an hour bell or immediately would be useful. We do that informally now, but it would be useful to recognize that that's not a tool of the opposition and the government. It should be a tool that— Senator Frum: It's not a matter of logistics. It's a political tool. Senator Harder: I would argue it's a tool of respect to ensure that the maximum number of senators available to exercise their responsibilities. Senator Frum: Not only. Make it 30 minutes all the time if that were all it was. But that's not all it is. Senator Harder: I think there are times when you make it an hour. Senator Lankin: Because you come from a different motivation. Senator Frum: Because I acknowledge that I'm a political senator but— Senator Lankin: Partisan. There's a difference between partisan and political. Senator Frum: Well that's another interesting conversation. I'm partisan because I'm political but you're not partisan so you really shouldn't have any political motives for extending or shortening a bill. Senator Eggleton: I'm partisan to my political views. Senator Eggleton: They may not necessarily come with a capital "L." A lot of them are just small "l." Senator Frum: We've noticed. A lot of us have been saying that for quite a while. Anyway. Senator Harder: I just have a view that in respect of the bells, it is in every group's interest to ensure that there be the broadest awareness and participation in the votes and that we—there's obviously a government interest, and I acknowledge that in my comments, to not have a mistake and that's why the government can defer a vote. Now, that doesn't mean it's going to win— Senator Frum: But that's what we want. There's also an opposition interest, sometimes, in having a longer bell because you want to draw something out. Right? We all know that. Senator Harder: That's why under the rules we have an hour bell as the default. Senator Frum: I don't know why the ISG would have an interest in that, have a political reason to have a longer bell. Senator Harder: I can't say more than I already have. Senator Harder: That is to say that they have an interest in ensuring that their people, who may be in a committee in another building or otherwise occupied, would want to exercise their responsibility. Senator Eggleton: Political and logistic. The Chair: Senator Harder, we are at the 1:30 time that you indicate you were prepared to leave. We have a possible second round question coming from Senator Joyal. Can you give us another five more minutes? Senator Harder: As long as that gives me time to respond. The Chair: Senator Joyal will do his very best, I'm sure. Senator Joyal: I will do my best also, Mr. Chair. It's in relation to the Standing Senate Committee on Ethics and Conflict of Interest for Senators. The present arrangement that makes the composition of the committee two independent, two official opposition or two opposition and one liberal independent, is in my opinion balanced. I think it would be a mistake to have the election of the member presently the way the Senate is composed on the plurality of vote because you would probably then have as a result, finally, the majority deciding the five members. I think that as long as the Senate is composed of a multigroup situation, as we have now, I think the present composition reflects the, I should say, right of access to each of the groups to be represented in the committee. So my opinion is that if we are to change the rules, we should take that into account. In other words, if the Senate one day becomes an institution of 105 independent persons, I would say that's fine to have a majority selection. But as long as the Senate is composed of groups, I think the composition of the standing committee should be reflective of proportionality of groups so that there's not only one voice on the ethics committee. That would be contrary, in my opinion, to "fundamental justice," and I think this committee needs to operate under respect of the principle of fundamental justice to be credible on its responsibility according to the conflict of interest code. So I wanted to put some words to your comment and those of Senator Woo who said around this table that the committee was unfair and bad governance. I think the committee presently reflects the composition of the chamber and as long as we can make rules to reflect that I would certainly be supportive of that, but to compose the committee on the basis of a majority vote or even a secret ballot vote in the chamber, we would know where the chip would fall and I would be against that. I wanted to say that very clearly, not because I have a vested interest to be there where I've been since the beginning, but I think the sensitivity of the responsibility of the committee for having exercised those responsibilities in the past led me to conclude that the committee has to maintain its credibility to each and every senator. Senator Harder: Senator, let me say I agree with your objective of ensuring that there is integrity and credibility and certainly having it representative of all of the groups is significant validation of that. There is also the intercessional—the committee able to operate intercessionally, which does require special attention as well. Similarly, if we go the oversight role for audit, there would be an intercessional requirement there as well I would think. So your points are well taken and ones I would hope that we could bring to a conclusion because it's, again, one of those accommodations that has been made but it's really out of good will and let's formalize it so that we can be assured going forward that we are exercising the best governance. The Chair: Thank you very, very much. We appreciate your time and thoughtful presentation very, very much. Thank you.
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