MDRN-4

The Special Senate Committee on Senate Modernization

Consideration of methods to make the Senate more effective within the current constitutional framework: Issue 2

4th Meeting, April 12, 2016
with some "inked-in" comments in part relative to my essay and Brief. v.E.

Witness: Prof. Meg Russell,
University College London 0

The Special Senate Committee on Senate Modernization met this day at 2:50 p.m. for the consideration of methods to make the Senate more effective within the current constitutional framework. 1

Senator Tom McInnis (Chair) in the chair. 2

The Chair: Honourable senators, I call this meeting of the Special Senate Committee on Senate Modernization to order. 3

Today, we have invited Professor Meg Russell to appear, Director, Constitution Unit, Department of Political Science, University College London. Professor Russell also teaches British and comparative politics. She is a highly respected expert on upper chambers around the world, with a particular focus on reform of the House of Lords. She is appearing by video conference from London, England. 3-1

I could list her noteworthy publications which would take up a large part of today's meeting, but I would like to note one which caught our attention called Independent Parliamentarians En Masse: The Changing Nature and Role of the 'Crossbenchers' in the House of Lords in Parliamentary Affairs. Copies were distributed to all members of the committee. 3-2

Professor Russell, please begin your presentation. Afterwards, senators will have questions for you, I am certain. 3-3

Meg Russell, Director, Constitution Unit, Department of Political Science, University College London, as an individual: Thank you very much for that generous introduction, and thank you for inviting me to give evidence to this important inquiry. It's a great honour and pleasure to be with you, and I hope I can be of some use to you. 4

As you've indicated, my expertise is twofold: In the British Parliament, particularly the House of Lords and also in comparative bicameralism. 4-1

In the second of those roles I've studied Canada to some extent, but I don't pretend to be a Canadian politics expert, and I will hesitate to try and suggest to you how you should run your system. But I hope that some British and more general comparative experience will be of interest to you. 4-2

In my opening remarks, I thought it might be helpful to touch on three things: The House of Lords and in particular the role of the independent cross-benchers, some more general comparative lessons on bicameralism and some recent changes in the British House of Commons which seem similar to some of the changes you're contemplating. 4-3

With respect to the House of Lords, you will know that the parallels are often drawn with the Canadian Senate. There are some important similarities between our two systems but also some important differences. 4-4

The House of Lords like the Senate remains an entirely un-elected institution. The majority of its members are life peers appointed by the Queen on the advice of the Prime Minister. 4-5

Since reform in 1999 which removed most of the hereditary peers, those who inherited their seats, no political party has had a majority in the House of Lords. The two main parties, Conservatives and Labour, remain roughly equally balanced, and the balance of power is therefore held by the third party, the Liberal Democrats, and also a large group with independent cross-benchers. 4-6

The chamber has significant formal power to veto some bills and delay most others for a year, but in practice it exercises significant restraint rather than using its powers to the full. Nonetheless, while I defer to David Smith's huge expertise in Canadian politics, I disagree with his suggestion to your committee that the House of Lords has only a peripheral role in British politics. Particularly since 1999 it has found a new confidence and has defeated the government over 500 times. Of particular interest, as you already indicate, I guess given recent Canadian developments, are the independent cross-benchers, both how they got to the House of Lords, how they behave when they get there and the wider impact on its culture and policy role. 4-7

You have seen from the article that you referred to—those of you who have had an opportunity to read it—that the cross-benchers represent the largest group of independents in any parliamentary chamber around the world. There are currently 178 of them in the House of Lords. 4-8

The group developed slowly over time, as a result of members being appointed to the Lords or indeed born into membership who had no political party allegiance. Originally, the word "cross-bench'' was just a geographical descriptor of where they sat on the benches between the government and opposition sides. Gradually, and particularly from the 1960s, the group has taken on formal organization. It now has a convenor, a skeleton staff, organizing weekly meetings of its members, and staff that circulate briefing papers and so on. I know that you are due to be speaking to the convenor in evidence at a future meeting and he can explain more to you about that. 4-9

Today, those who sit on the cross-benches are expected to be completely separate from the political parties. Most of them are appointed by the House of Lords Appointments Commission. That body was created in 2000 and openly advertises for applicants who are expected to demonstrate, and I quote, "a record of significant achievement.'' 4-10

The House of Lords Appointments Commission shortlists based on written applications, interviews candidates, and then make recommendations to the Prime Minister to appoint. This is a very open process of appointments and has resulted in about 70 people being appointed so far since 2000. 4-11

Within the House of Lords, the cross-benchers are a very important group. Many are very well established experts in their fields, and the House of Lords Appointments Commission makes an effort to balance this expertise. 4-12

Note! The House of Lords Appointments Commission makes an effort to balance established experts in their fields. n4-12

The nature of the parties and make-up of the House of Lords, with no party holding a majority, means that cross- benchers can be decisive in the outcome of votes which puts them potentially in the firing-line. But the group takes no collective line and usually members' votes will be split to some extent for and against a proposition. 4-13

When members don't have clear knowledge of a topic, they also often don't vote. Cross-bencher turn out is only between 10 and 20 per cent. 4-14

Nonetheless, cross-bench impact on voting is important but it goes far wider than voting. These members very much affect the tone of debate in the House of Lords. The fact that government ministers have to defend their policy in front of a group of respected non-partisan experts leads to a more rational evidence-based debate. In addition, sometimes high profile cross-benchers challenge government policy which places real pressure on ministers. Ministers are subject to questioning from cross-benchers during Question Time, and they play a full role in committees of the House of Lords. 4-15

Note! The fact that government ministers have to defend their policy in front of a group of respected, non-partisan experts leads to a more rational evidence-based debate. n4-15

Overall, the cross-benchers' presence is very important to the image of the House of Lords as a less partisan and more expert chamber. Public understanding of these members is generally low and they receive little media attention, but broadly their presence is popular and one of the most valued aspects of the Lords. 4-16

The cross-benchers are an enormously important and valuable part of the House of Lords. Therefore, I see the addition of non-party members into the Canadian Senate as a potentially positive step, but I have to say, when we might speak about this, that I'm skeptical of the prospect of a Senate where all members are cross-bench independents. 4-17

If the cross-benchers were the only members of our House of Lords, it would function differently, and I think members would become more pressurized and controversial. Our cross-benchers exist in an environment where the majority of members are party peers. 4-18

Consider a scenario where life-long senators who are "considered experts in their fields" are connected to finer-grained expertise who may be called upon to serve on certain committees as senators pro-temp (and get remunerated accordingly, for their time served). Those people would be far more under pressure by their peers than by political forces. n4-18

In terms of our reform pressures, there are very few complaints about the cross-benchers' role. Indeed, most reform proposals for the Lords suggest they should be guaranteed 20 to 25 per cent of seats in a reformed chamber. There are, nonetheless, many other complaints about party appointments. Party appointments to the Lords are much less open with members simply chosen by party leaders. In addition, there is no agreed formula for sharing out seats between the political parties, and there is pressure for that; for example, to base the share of seats on general election votes. And there is, unfortunately, unlike in Canada, no limit on the number of members who can be appointed, and our House of Lords now exceeds 800 members. 4-19

So many people would like the power of the House of Lords Appointments Commission to be extended beyond picking cross-benchers to include regulating the share of seats between the parties and maintaining a limit on the size of the chamber. I mention that because it may offer you some future possible directions. 4-20

Moving on from the Lords, and I'll be much more brief now. I said I would say something about comparative bicameralism. I simply make the observation that my study of bicameral parliaments around the world suggests there is no simple way of getting it right. It's fairly clear that first chambers exist to represent the people and should be elected. Second chambers then exist in large part to challenge first chambers. This by its nature makes them controversial. Whether elected or appointed, they're always likely to be subject to challenges regarding their legitimacy, especially by those holding a majority in the first chamber. 4-21

The House of Lords, like the Canadian Senate, has long been subject to this kind of challenge. Most recently, it's been subject to attack by the Conservative government as for the first time it's been able to mount challenges from the left. Notably, when Labour was in power, the cross-benchers were accused of being overly conservative. Now the Conservatives are in power, they face accusations of being too left wing. 4-22

To me, this suggests that the House of Lords in general and the cross-benchers in particular are probably getting something right, but it's not a particularly comfortable place for them to be. In short, I'd say if you aim at creating an uncontroversial second chamber, you're probably doomed to fail. The House of Lords shows that there are things you can achieve. You can gain quite a lot without moving to election. 4-23

You're thinking about election of committee chairs and election of the Speaker. These are both reforms that have been introduced in recent years in our House of Commons. The first Speaker elected by secret ballot was chosen in 2009. In 2010, we introduced a new system for electing select committee chairs in a secret ballot across the house. That was a recommendation from the House of Commons Reform Committee for which I was the specialist advisor. It's been seen as a significant success, so I'm quite happy to talk about that if you'd like. 4-24

The election of committee members and chairs hasn't as yet extended to the House of Lords. Membership of committees continues to be negotiated through the usual channels, but the Lord Speaker is elected again in a secret ballot. In both chambers our Speakers are expected to be strictly non-partisan. 4-25

My essay proposes that in many or most instances committee members and Chairs are chosen by a "research director" (convenor?) in cooperation with the Senate's elected Speaker. This ought to strike a balance between the represential/political aspect of the House and the blend of expertise perceived as desirable for attempting the solving of some assigned complex problem. n4-25

I hope those words provided some things of interest and some indication of what we could speak about. I would be open to your questions. 4-26

Senator Joyal: Welcome, Ms. Russell. I am a faithful reader of your extensive writings on the issue of the reform of the House of Lords, especially starting with the Wakeham report in 2000, and many papers issued by the British government. I read them with great gratitude for the comments you put forward because it was helpful in my own writing and reflection in relation to the modernization of the Canadian Senate. 5

The express intention of the government is to transform the Canadian Senate into a house where 105 of its members would be independent. Do you know any Parliament that operates on the Westminster model whereby the upper chamber is composed only of independent members? 5-1

Ms. Russell: Thank you very much for your comments and your faithful following of my readings and my writings. It's very nice to see you again. I'm always glad if I can be useful. 6

In answer to your question, I think you know the answer is no. The paper circulated which was named by the chair of the cross-benchers was published in 2009. It is a few years old now. In some respects to the House of Lords, it's slightly out of date. However, for the preparation of that paper, I did conduct a survey looking at independent parliamentarians in countries around the world. There are very few examples. 6-1

The few examples that you can find with particularly large numbers of independents tend to be in countries where you have some suspicion about the definition of independents, perhaps countries where political parties aren't allowed, for example. There is no comparable chamber around the world where they are all independent. Our crossbenchers are probably your best example of a large group of independents and the dynamics of such a thing. As I said, it's crucial that they're operating in something which is a largely party environment. 6-2

Senator Joyal: The word "cross-benchers'' by its own meaning means there are at least two benches, because it's supposed to be a cross between those two benches. By the very definition of the word itself, it refers, in fact, to the party existence in the chamber. 7

I would like you to elaborate is the definition of "independent.'' 7-1

On a new paper on Page 37 if I might quote it to you, you say on top of page 37, "There is thus no such thing as a typical independent peer.'' You refer then to the allegiance of the peer by stating, "There is thus no such thing as a typical independent peer.'' Later on in the paper, at page 47, you say, "There is far less clarity on what 'independent' means.'' 7-2

Could you help us to have a better grasp of the notion of independents in the context of an upper chamber in relation to peer and in relation to the chamber by itself? Because there are different levels of independence. 7-3

Ms. Russell: I'm saying two rather different things in those comments. When I say there is no such thing as a typical independent peer, I'm saying that this group is extremely diverse. Clearly, it is a large group, 178 members, and they come from a range of walks of life. They've reached the chamber through a number of routes. I indicate in the paper six routes, some of which have subsequently closed down. So those sitting in the House of Lords as members of the judiciary, that's largely ended. People who used to be members of political parties don't really sit on the cross-benches any more. They have their own group. It has become a much more clearly self-defined group of non-partisan experts than it used to be, even when I wrote that paper a few years ago. By their nature they are extremely diverse. 8

You have people from business backgrounds, voluntary sector backgrounds, public service backgrounds, scientists, and people from the world of arts, et cetera. So you can't pinpoint a typical member. They vary in age, in interests, in opinions and so on. 8-1

I did comment later in the paper on the difficulty of pinning down the definition of independent. So our group developed as an accident of history, really, through people being appointed who had reached high levels in their fields or who simply had inherited a title in the House of Lords through the hereditary peerage and who didn't have a party allegiance. This group developed gradually over time, and having developed, was seen to be a very useful part of the House of Lords, and therefore there was a very sort of explicit and deliberate effort to maintain that group, to build it. It has become more and more clearly defined as non-partisan over time. For example, a few years ago it was certainly the case that you could still be appointed to that group while being a member of a political party, not an active member of a political party, but a member of a political party. The requirement was that you should be independent-minded and able to exercise your own opinions, even if you might have some kind of a partisan loyalty buried perhaps a little bit deep. 8-2

So this is one of the things that concerns me about an all-independent chamber. Because our cross-benchers are a minority in the House of Lords, albeit a very large minority, they don't come under the absolute spotlight. And the main, leading, most visible roles in the House of Lords are taken by people who are party representatives. 8-3

If you took those party representatives away, and you only had the independent members, they would come under a much tougher spotlight. The expectations on them to perform would be much higher, I think. So that's quite a hard thing to ask people to do. I don't wish to tell people how to do things in Canadian politics. Your culture is different from ours. Your expectations are different than ours, but I think if you stripped away the political parties in the House of Lords—it would be interesting to ask the convener about this—I think the cross-benchers would feel they were really in the political spotlight in perhaps an uncomfortable way. 8-4

Senator Joyal: You refer to the convener. It doesn't seem to be clear in the minds of some of my colleagues that there is only one group under the convener. They're not multiple cross-bencher groups, each one with its own different convener. As I understand the structure in the Lords presently, they are the party peer, member of the Liberal, Democrats, Labour, Tories and the Green. You say the Irish group in the Lords is a very important group. However, there is one group or umbrella for the whole of the cross-benchers. In other words, there is only one person holding the convener status that covers all of the cross-benchers. They're not different groups of cross-benchers with each selecting his convener and having multiple groups of different cross-benchers or so-called independent peers. Am I right? 9

Ms. Russell: You're broadly right. There's certainly only one group of cross-benchers. Just to introduce a little complexity, which I think we can then probably quite easily put to one side, there are two other groups that are nonparty aligned in the House of Lords. There are the Church of England bishops, who are there as a result of history. There are 26 of them. They actually have their own convenor. They are non-partisan also. They operate a bit like the cross-benchers, but they are rather different and clearly you don't have a parallel for those. 10

We then have a group of others who are sort of none of the above. We have the Conservatives, Labour, the Liberal Democrats, and we have, as you say, some other smaller parties and the cross-benchers. Then there's a group of peers like the mixed group that exists in many parliaments, who are not in any of the above groupings but that doesn't have a convenor. There is only one convenor and one organized group for independent peers who are not bishops. 10-1

I guess this is another of my concerns with an all-independent house. That works in an environment where there are other groups. But in an environment where there's nothing but an independent group, there might be a temptation for subgroups to form. One of the things that I was interested in when I went to study the cross-benchers was whether there was any internal organization within the cross-benchers—in effect, whether there was a group of left-wing cross- benchers who worked together and a group of right-wing cross-benchers who worked together, and whether there were professional groupings who worked together. There certainly are no factions at all of a sort of left/right character. 10-2

There are professional networks, so the medics tend to know each other and the former civil servants tend to know each other. But even they don't organize in any formal way. I would say that fundamentally you are correct; there is one group with one convenor and one weekly meeting and one office. Individual members within that large grouping firmly defend their individual independence. The group as a whole firmly defends the fact that members are independent of each other and that there is no collective line. If you've read my paper, you will have read that there's positive resistance to any kind of organized groupings within that group. 10-3

If the group were the only group in the chamber, it would be quite hard to prevent organized groupings from developing. It would be quite natural for organized groupings to develop, I think. 10-4

Senator Joyal: In other words, the peers, who are not part of the cross-benchers under that one convenor, could not expect to be on the list of committee membership or to be vice-chair of a committee or even chair of a committee. I see that the Social Affairs Committee is chaired by a cross-bencher. If you want to be part of the organization of the work in the House of Lords under the convenor and privileges attached to that status, you have to be part of the convenor groups to be assigned to a committee. You might have expressed a desire to be a member or part of another group that might exist in terms of parliamentary association and so forth. 11

If you are not a member of that group, you would stay outside. You could not expect that you would have a right to sit on a committee and introduce amendments to bills in the committee and so forth, except, of course, to stand up in the House of Lords and speak to issues whereby it's an open-ended participation for all Lords in attendance. Am I right? 11-1

Ms. Russell: I think that's not quite right, actually, for a couple of reasons. First, our rules, unlike the rules in many other parliaments, and this is true in the House of Commons as well as the House of Lords, don't explicitly privilege the party groups. We have a general principle that seats on committees ought to be shared fairly. In practice, that tends to mean sharing out between the groups. In some Parliaments, if you're not a member of one of the well-established and recognized groups, you have no opportunity to be on a committee. That's not true in our Parliament. Indeed, if you were some kind of specialist who wasn't sitting as one of the main groups and were seen as somebody who would be useful to a committee, it's not inconceivable you could be appointed. 12

The other reason is that towards the end of what you said doesn't quite characterize the Lords, you talked about committees and being able to move amendments and so on. As it happens, in the House of Lords, the committee stage of bills is taken either on the floor of the house or in what we call a "grand committee.'' In a grand committee, all members are entitled to attend. There's no bar at the committee stage on any bill of any member being able to turn up and move an amendment. 12-1

Again, whether you're a member of a group or not doesn't give you any extra privileges. Because of the relatively weak—very weak—nature of our Lord Speaker and the relatively unregulated nature of procedure in the House of Lords, nobody calls speakers and nobody selects amendments. Therefore, it's a very egalitarian environment where all members have equal privileges. 12-2

Senator Joyal: Thank you, Ms. Russell. 13

Senator Bellemare: I was privileged to meet you last year. I learned a lot from our conversation when I was there with our former Speaker Pierre Claude Nolin. I would like to go back to the issue raised by Senator Joyal about the privilege and duties of the cross-benchers. 14

From what I understand, in the U.K., the Lords, even though they are cross-benchers, have equal powers as though they belonged to a traditional party. My first question is: Has it always been that way or has that been negotiated over time, from what you remember? 14-1

Ms. Russell: Probably it's more a matter of it was always like that. One of the peculiarities of the British Parliament is that it's an ancient institution, as you know. The procedures of the British Parliament, to an important extent but not entirely, and many of the traditions of the British Parliament predate the party system. That's a main reason the political parties don't have much recognition in our standing orders and why, for example, we don't parcel out seats on committees according to party membership. Committees have existed since before parties have existed. It's a very long- standing tradition that individual members in both houses have rights. 15

There have been important developments with respect to the cross-benchers. Certainly prior to the reform in 1999, which to some extent put the cross-benchers centre stage—before 1999 the House of Lords was a very Conservative- dominated institution. The main dealings were—and I suppose you would say continue to be, but much more in the past than in recent years—negotiations between the party groupings. 15-1

After 1999, when the two main party groupings became much more equally balanced, the cross-benchers self- evidently became much more important. Therefore, there was more interest in involving the cross-bench convenor in discussions. This convenor is a relatively new convenor, and you can talk to him about this but he may not be fully aware of what the arrangements were for his predecessors. I think it's fair to say that gradually over time the cross- bench convenor has become more involved in the usual channels. Even now, he would probably not be considered a core member of the usual channels. But the cross-bench group is much more consulted than it used to be. 15-2

One interesting thing in recent years that developed under the Labour government in power from 1999 and continues to this day is that ministers who want to convince the House of Lords to support their legislation have got into the habit of going and speaking to the cross-bench group. They know that the cross-benchers are pivotal in the outcome of voting and in the general sort of mood in the House of Lords. The importance of the group has definitely grown, and its formal recognition has grown to some extent. Still underlying that, we have the basic principle of equality of members. 15-3

Senator Bellemare: That brings me to the second question. I would like you to discuss the relationship of the cross- bencher with the government. You just mentioned that sometimes ministers go to seek the votes of the cross-benchers. But can you qualify how they react to government bills? Are they septic about the government? Are they in favour? Are they trying to find the bad thing about the bills? Can you comment a bit about the relation of the independent group with the government bills? 16

Ms. Russell: I think that goes back to one of the first responses to Senator Joyal, that there is no such thing as a typical independent member. So you can't generalize about them at all. Each individual member of that group weighs up each individual proposal coming from the government on its merits. They never respond as a group at all. It will vary occasionally. If things were purely randomly distributed, you would get the occasional vote where all of them were on the same side, particularly when there are only five or ten members voting. But the typical pattern is that their votes are split either 50-50, or maybe two thirds on one side, one third on the other, something like that. So the group really genuinely has no collective line and individual members will make up their minds on their merits. 17

In my paper, I tried to look a bit at the voting habits of individual cross-benchers. They are very widely distributed. There are some members who vote quite a lot with the Conservative side and much less with the Labour side. There are some members who vote quite a lot with the Labour side and much less with the Conservative side. There are a lot of members who split their votes quite equally. This may be frustrating, but it's also fascinating. This is why I've studied it. 17-1

Maybe it's time I updated the paper because they took on a pivotal role when we had a coalition government because the Liberal Democrats were in government and they were the only deciding group in the House of Lords. That's been an important development. They are a fascinating group, but it's very hard to generalize about them at the same time. That's kind of frustrating perhaps. 17-2

Senator Bellemare: You said in your paper that cross-benchers may be a modern phenomenon of upper houses, because voters are becoming less and less loyal to a political party. The phenomenon of an independent group in the Senate is characteristic of what the voters are becoming more and more. I would like to have your comment on that. Are you still in agreement with what you said in your paper? You didn't find in the world many independent groups. There's one in Australia. They call themselves cross-benchers. It's more of a coalition. Can you comment on that, please? 18

Ms. Russell: There have been periods in history when independent members of the Australian Senate have held the balance of power. There are small parties and there are also people who have been elected to the Australian Senate who genuinely have no party affiliation whatsoever. There have been times in history where those people have held the balance of power, but the Australian Senate is even smaller than the Canadian Senate. It's less than one-tenth the size of the House of Lords. So you're looking at really a handful of people there. 19

On one visit I made to Australia about 15 years ago there was an independent member in Tasmania who was holding the balance of power. He was subject to enormous pressure. National attention was focused upon him and how he was going to cast his vote in individual divisions, which was quite a tough thing for him. But let me go back to the previous part of your question, which I fear I may have forgotten. 19-1

Senator Bellemare: It's about the modern fact. 20

Ms. Russell: Of course, yes. I would stand by that comment. In the U.K.—and I think we're fairly typical of the advanced democracies—there's a sense that loyalty to political parties has been breaking down, loosening. We see what political scientists refer to as "political disengagement.'' There's more interest among politicians in creating arm's- length bodies that are seen as independent and apolitical. In a sense, the House of Lords, and in particular the cross- benchers in the House of Lords, embody that. I said that they developed historically. The group has been there, albeit without a name, for over 100 years. But it does have a curiously kind of modern feel. In a sense, its time has arrived. 21

I think it is the presence of people who have no party allegiance that the public likes about the House of Lords, insofar as the public has much engagement with the House of Lords at all, because it's not in the news very often. Being unelected, a lot of people are fairly unaware of its details. But the independent members are one of the things that people in the general public like best about the House of Lords. The House of Lords in general is seen as a less rigidly partisan institution. People like the fact that members on the party benches are seen as having slightly looser affiliations to their parties than members do in the House of Commons and the fact that the overall ethos and culture of the House of Lords is a relatively less partisan one. 21-1

One of the points in my paper, which I reiterated in my book, published two or three years ago on the House of Lords, the presence of the cross-benchers is one of the things that generate that non-partisan culture across the whole house. Political members sit in a chamber where the balance of power is held by independent members, the politicians can't simply attack each other by virtue of party label. They actually have to have rational arguments on the basis of evidence, because the independent cross-benchers to some extent sit in judgment of the quality of the arguments. If one side was seeking to win purely through political point scoring that would soon lose the support of the independent members who might then be more inclined to vote with the other side. So in a sense it depoliticizes the House of Lords to quite a large extent, even on the party benches. I hope that makes some sense. 21-2

Senator Bellemare: Absolutely. 22

Senator McIntyre: Thank you, Ms. Russell, for your oral presentation. I also had the opportunity to read your paper on this subject. 23

There's no question that cross-benchers do not have a leader or whip. As indicated by Senator Joyal, they have a convener. However, they have official status, having been recognized as a political grouping, though not a party. They have rights of participation in chamber and proceedings, roughly proportionate to their numbers. They vote relatively little, but my understanding is that they participate in most debates. They have an influence in the business of the House of Lords. 23-1

Obviously, the House of Lords had to modify its rules and procedures in order to accommodate the cross-benchers. How has the house modified its rules and procedures to ensure cross-benchers are provided with adequate opportunities to participate in house business in proportion to their numbers? How successful have these procedural modifications been in ensuring cross-benchers exercise their rights to participation? 23-2

Ms. Russell: It's not so much a matter of modification of rules, because the cross-benchers grew up sort of organically across time. It's a long-standing tradition that we have members of the House of Lords that are not members of political parties. Indeed the House of Lords pre-existed the political parties. 24

I can see that what's happening in the Senate is you have the arrival of a new grouping, and that requires you to make some changes to existing assumptions. Whereas for us, our procedures grew up with the constant presence of independent members, and indeed, many of our procedures themselves predate the existence of the political party. So it was the political parties that arrived, in a sense. Our procedures develop over time, but they are, as I have already referred to, fundamentally rooted in a belief in the equality of members and the rights of all individual members, and they don't officially and formally privilege political parties and groupings very much at all. 24-1

The application in practice of the—I hesitate to even call them rules—the understanding of fairness in the House of Lords is, in practice, quite a lot based on group membership. So in terms of speaking time in debates, for example, it tends to circulate around the chamber between the government side, the opposition side, the cross-benchers with fair speaking rights for the smaller groupings, the Liberal Democrats and the bishops. 24-2

But these arrangements are very much informal and based on convention, tradition and understandings. They're not rigid rules. This is quite unusual in a parliamentary institution, I appreciate, but that makes them quite flexible to change to accommodate developments. It's not a matter of rewriting the rules. It's a matter of conventions developing. 24-3

Senator McIntyre: When you speak of cross-benchers, do you mean the six groups that you have identified in your paper, minus the parties from Northern Ireland? 25

Ms. Russell: In practice, yes. As I said, the groups in the paper have changed somewhat. The parties from Northern Ireland have since left the cross-bench group. We no longer have people appointed to serve as judges in the House of Lords due to the creation of the Supreme Court in the mid-2000s, but there was more of a presence of those members still around in the late 2000s than now. 26

Other members who have separated from their parties aren't really welcome on the cross-benches anymore. So it now comprises primarily hereditary peers, mostly members who have been appointed by the Appointments Commission and members who have been appointed by the Prime Minister as independents, mostly people who have held senior public office. 26-1

Because members are appointed for life, change takes a long time to work its way through the system, but most people who reach the cross-benches now are appointed by the Appointments Commission. 26-2

Senator Greene: Thank you very much for appearing before us. Is it possible for a cross-bencher to be a member of a political party? 27

Ms. Russell: I think it is, but you might be better speaking to the convenor about what their most recent rules are. I'm sorry to hesitate. There was a suggestion a few years ago that the cross-benchers were going to move to requiring their members to sign some kind of statement of independence. I'm not sure whether they ever actually implemented that rule, and I'm not sure whether that rule would have required you to sign that you weren't a member of a political party. The understanding has historically been a bit looser than that, that you're not going to follow a party whip, but that privately no one is going to regulate whether you are privately a member of a party. 28

So they're certainly not people who have been leading lights in their political parties. They're not people who have served as ministers or have been elected as MPs for their parties, that kind of thing. But if you are, as a private citizen, a member of a political party I suspect that that is not a bar to being a member of the cross-benchers, but you should check with the convenor to be absolutely up to date. 28-1

Senator Greene: In our case, we have a Conservative or a Liberal who decides, for whatever reason, to leave their Senate caucus and become an independent, in those cases they likely would become an independent in the Senate but also keep their party membership. I guess I'm asking what happens to people in the House of Lords who are appointed and are a member of the Conservative side, let's say, for a number of years and decide to become independent or, in other words, a cross-bencher? Where are they in the mix? 29

Ms. Russell: Well, this is one of the things that I try to deal with a bit in that paper, the boundaries of the cross- bench group gradually becoming more defined. 30

As I said, the group developed from a non-organized group into a more organized group over time, and gradually its boundaries have become clearer. It used to be that if you left your party, you went and sat on the cross-benches, and therefore you were a cross-bencher; but the cross-benchers have defined their boundaries more tightly now, which is why we have this other grouping, which really isn't a grouping, it's a group of people who have left their political parties. The cross-benchers are a self-declared group of independents, and they don't just accept anyone immediately upon their departure from a party. 30-1

This wouldn't have been the case 10 years ago or so, but it's developed increasingly so that the likelihood is if you were a Conservative and you left the Conservatives, you would probably sit outside all of the groups for a while. You might call yourself an independent Conservative or you might just call yourself independent, but you wouldn't necessarily automatically be accepted into the cross-bench group. You might then prove your independence over a period of time and eventually be accepted as a cross-bencher, but in effect you are renouncing your political party allegiance at that point. It's not just not being on the party bench; it's actually being explicitly independent. 30-2

Senator Greene: Yes, which someone who leaves the Conservative caucus in the House of Lords might not wish to do. 31

To change gears, in the earliest part of your presentation, you mentioned that in the past 15 years or so, the House of Lords has defeated the government about 500 times. What is the public reaction to that? 31-1

Ms. Russell: Most of it never reaches the public eye, actually. As you can see, it's a common occurrence. A defeat in the House of Lords is not particularly newsworthy because they happen quite often. I also said in the opening remarks that a great deal of caution is exercised by the House of Lords in the use of its power. We have a series of conventions about the use of powers which say, for example, that government bills in their entirety are not rejected. 32

Now, the House of Lords has the power to reject a government bill, but in practice, that happens vanishingly rarely. 32-1

So the things on which defeats happen are more the detail of policy; they are amendments to bills. Some of these are matters which are of high public salience and they reach the news. I can give you a recent example, which wasn't actually an amendment to a bill, but we had a very big row between the Conservative government and the House of Lords in October over a very high-profile matter. 32-2

But the typical Lords defeat is on a relatively small change to a bill. The journalists don't consider it newsworthy because these happen all of the time, and the legislation will go back to the House of Commons, and the House of Commons will be asked to reconsider. 32-3

I have done work which has traced what happens to House of Lords defeats, and while in theory the House of Commons could overturn all House of Lords defeats, in practice about half of them go on to be accepted. 32-4

One of the things that I said—and I saw this in maybe David Smith's evidence, he made reference to Philip Norton, talking about the important connection between defeats in the House of Lords and the mood in the House of Commons. And this is definitely true, and my work shows this, that where the government is defeated on a matter in the House of Lords, and there is known to be discontent in the government's own party in the House of Commons, that's where it will tend to back down. 32-5

I often say, in the British context, that the role of the House of Lords is to throw matters back to the House of Commons and say, "Are you sure?'' If members of the House of Commons look at it again and say, "Yes, we are sure, thank you very much,'' and they prefer to overturn the Lords' defeat, usually the House of Lords will accept that. If the House of Commons is not going to be so sure, faced with this question, often ministers will not even ask them to overturn it. There is kind of a negotiation that goes on and a lot of this goes on outside the media spotlight. 32-6

Senator Massicotte: Thank you very much for being with us today. I have many questions but I'll throw off a couple and then I'll go to the second round. 33

Let me pursue the discussion you had with Senator Joyal about the hypothesis that we would only have independents or cross-benchers. From your experience, that would put a lot of pressure on those people. Maybe there would be some deviancy relevant to behaviour, and so on. I thought the argument you would have raised is the old British adversarial system, where it is by having opposite opinions that the truth comes out or a study on a bill comes out. You did not use that argument, I presume, because you don't believe that is the case. I would have probably said I buy that argument, yet there are many organizations in the world, private or public, which don't have an adversarial system and yet, through debate—that is, through basically arguing one's case and one's belief—the information and the truth does come out. 33-1

Could you elaborate a bit more about why you think it is so negative to have, if you wish, 100 per cent cross- benchers? 33-2

Ms. Russell: I think I actually do agree with that point. That is one of the reasons. 34

When I think about the various problems that could come up—as I said, I hesitate to pontificate about Canada. If you asked me what would happen in the House of Lords if the political parties were removed and we were left with only the 178 cross-benchers, I think the first and most obvious problem we would have is the one that you refer to, namely, that our system is based around there being a member, if not a group of members, a government minister, who promotes a bill and who defends the government. Then a member or a group of members—that is, the opposition spokesperson and their supporters—subject that proposition to the most rigourous scrutiny. So you have two very clearly defined roles there: the role of defending the government and the role of scrutinizing the government. You have two very clear blocs whose duty is to fulfill those functions. 34-1

Of course, if the political parties were removed from the House of Lords, those blocs would be gone. You would be facing the question that you are facing in Canada as to who is going to defend government policy. You would also face the question: Who is going to scrutinize government policy? That's where I begin to see that, in the absence of political parties in the House of Lords, the cross-benchers would have to establish even more elaborate organization than they have now. Somebody would presumably have to take the lead in examining a government bill and starting to ask tough questions about the bill, because that's what scrutiny is all about. 34-2

I do agree with you that there would be a serious challenge if the government and opposition polls were removed. 34-3

I think I do agree with you that there would be a serious challenge if the government and opposition poles were removed. 34-4

Would you assign policy briefs to a set of cross-benchers like a front-bench team? I'm not sure. How would you know that somebody was going to be there to introduce the debate? There would have to be some additional level of organization beyond what we have now. While the cross-benchers in the House of Lords are occasionally criticized for their low turnout in divisions—although, the senator who said that they're always there and that there is always a voice in debate is absolutely correct; there are always people there keen to speak—as I said, the turnout in divisions averages between 10 and 20 per cent. If that was the turnout in the entire chamber rather than in just one group, I think that might be subject to criticism. 34-5

In the absence of party groups—that is, blocs that are forming the sort of bedrock of for and against the proposition with the cross-benchers in the middle deciding—there would be a lot more focus on the individual cross- benchers and how they were going to vote. Broadly, in the absence of political parties, I think you would have to end up either with something that was relatively chaotic or something where there would have to be a lot more organization in the cross-bench group and people taking on front bench-like positions in the cross-bench group, which is hard within a group that has no collective line. 34-6

I'm sorry, I'm giving you another long answer. My answers are probably too long. 34-7

Senator Massicotte: Let me take it further and play the devil's advocate. Any decision body has to deal with that issue, and many organizations in the world do not purposely have an adversarial system to get at the right answer. People's interests and opinions will dictate and naturally we'll have a difference of opinion. Why do you argue a need to have the adversarial system? It is a typical British system, but why is it necessary? Are there not better solutions? Look at the United Nations, for instance. They don't have the adversarial system, the pro and con. Many organizations get the right answer. 35

Ms. Russell: Maybe there is one other factor with respect to the House of Lords. I'm not sure how this is working in Canada, but there is no expectation of full-time service in the House of Lords. Many of the people who are appointed—the cross-benchers in particular, but across the house more broadly and to a lesser extent within the political parties—are not only people who have an expert career behind them, but they're still engaged in their expert careers. So you have people who are practising doctors, practising academics or practising lawyers. There is not an expectation of full- time service. They don't get a salary. They're paid a daily allowance for the days they appear in the House of Lords under directive. For us it would be quite a big leap to have, in effect, full-time scrutiny. 36

I agree with you in principle that you could set up a system, particularly in the committee system, where you could allocate responsibilities to take the lead to members. That is, some sort of rapporteur system where you have one member leading on a bill who works with the officials and the lawyers to look at the potential flaws in the bill who leads questioning with expert witnesses and that kind of thing. However, that requires very active service. I think that's more than you could expect from our cross-benchers under the system we have, because a great many are very busy outside the house as well as contributing to the Lords. I don't know if that is different in terms of the expectation of full-time service in Canada. 36-1

Senator Massicotte: Let me ask you another question. The British system is such that I think the House of Lords has one year to approve, reject or amend a bill, and it goes back to the House of Commons. The House of Commons basically has the last say, in other words. In Canada, the current system we have is there is no such limitation of time. In fact, I think it is David Smith who says it would be disastrous for us to adopt your system, to put a limit and give up our veto rights. 37

Do you want to make a comment on that? 37-1

Ms. Russell: Yes. We don't push to the limit very much. The delay of a year is generally in the background as a threat because on most bills there is negotiation well before that. Undoubtedly, the ultimate power in the Canadian Senate is much greater, and I think perhaps that sits a little awkwardly with a group of independents as well. 38

One of the interesting features of the cross-benchers is that they tend to be less prepared to push arguments to their limits. In the House of Lords, although members are not elected, the political parties feel they have some sort of electoral mandate that comes from the House of Commons. In particular, the political party that shares the balance of power with the cross-benchers, the Liberal Democrats, our centre party, have a grievance with the use of the first-past-the-post electoral system in the House of Commons because it disadvantages them. They would prefer a proportional system. Although they're not elected to the House of Lords, they think that they do have a right to question government policy on the basis of the votes that they get for the House of Commons. 38-1

The cross-benchers tend to be less fierce in their determination to challenge government policy. They tend to back down more easily because they have no electoral mandate at all. This is another thing that I think would put quite a lot of pressure on a group of independents who made up the whole house. 38-2

There's an old cliché, isn't there, about second chambers, that if they're very vigorous and seek to use their powers they're controversial, but if they don't seek to use their powers they're also controversial. I think this is probably going to be a challenge for your independents, particularly given the veto power that the Senate has. If they seek to challenge the government a good deal, that's going to be controversial, but if they never challenge the government, that's going to be controversial too. 38-3

My preferred option for the House of Lords, as I sort of alluded to in my opening remarks, which might be something that might make some sense in Canada, although I get a sense that it's not on the agenda at the moment, is that rather than having an all-independent house, we have a house where there is a clear formula for sharing seats between the parties and the seats are shared on the basis of proportionality in general election votes and that it's quite clear that there's a reason why there's a certain number of Conservatives and a reason why there is a certain number of Labour people and a certain number of seats reserved for cross-benchers. That's what we're edging towards in the U.K. They're not looking to get rid of political parties. 38-4

Senator Massicotte: A quick technical question, if I could. You mentioned that your committee members and committee chairs are elected by secret ballot. If that is the case in a committee, therefore, you could have the chair and co-chair being in the same political party. Is that the case? And given the majority rules in any of these votes, therefore, if one could work out, the whole committee could only be Liberals, if you wish, and also the chair and co-chair also Liberals. Is that the case? 39

Ms. Russell: There is a two-stage process, or perhaps if I talk it through, it might even be a three-stage process. There is a two-stage process, at least for the election of chairs. We're talking about the House of Commons now, not the House of Lords, which hasn't adopted the elected system. 40

There is a general principle that seats on committees are shared out broadly proportionately to political party shares, or in the House of Lords, obviously, cross-bench shares as well, and the committee chairs are also shared out proportionally. 40-1

In terms of the election of members, the first thing that's decided is what the share of seats should be, and then elections are held within the political parties to fill those seats. So let's say the Conservatives are entitled to six, Labour is entitled to five, the Liberal Democrats are entitled to two; the parties go away and elect those members. 40-2

For the chairs because it's a matter of sharing out across the committees across the house, the first stage of the process is to decide what the share of chairs should be, that is, how many chairs each party should be entitled to. Then there continues to be an involvement of the usual channels in deciding which committee will go to which party, and I think it will be kind of informal, but there will also be some kind of recognition of the importance of the committees. The committees which are seen as being highest profile and most senior will be shared out between the parties and they will kind of work their way down. Then we know which party is entitled to chair each committee and then nominations are only invited for members in that party, but the election takes place across the whole house. 40-3

Supposing the Foreign Affairs Committee is going to be Conservative, that's a result of the usual channels discussion, then nominations will be opened and only Conservatives will be able to nominate and the voters will be the whole house. The result of the vote across the whole house is that there is a kind of push to the centre, that the members who have a broad appeal across the house, who can appeal to both the government side and the opposition side, have the advantage in those elections, which I tend to think is a good thing. Other people might disagree. 40-4

Senator Massicotte: Thank you. 41

Senator Stewart Olsen: Ms. Russell, I'm having a bit of difficulty. We've talked a lot about the rights of the House of Lords. We haven't said much about their responsibilities, and I'm very interested in knowing what the expectations are, because it's a very loose system. I don't really understand, with 800 people, who shows up to a vote. We're very different here, and there are expectations of us. I'm just wondering what the responsibilities are. 42

Ms. Russell: That's a very good question, and as you indicate and as is already clear from what I've said, they're pretty ill-defined. If every member of the House of Lords turned up, the place wouldn't function. You can't run an assembly with 800 members present, clearly. 43

One factor with respect to that is that life membership means some members fall in their later years into relatively inactive membership before they retire or, unfortunately, die. 43-1

There are members who clearly have responsibilities. Members who are chosen to serve on committees are expected to turn up to their committee meetings, and they do. They take that responsibility very seriously. Members who chair committees clearly have a very major responsibility with respect to those committees, and they take that responsibility very seriously. 43-2

You have members who are on the front bench in the main parties who have policy responsibility. You have ministers in the House of Lords, and you also have shadow ministers for the opposition. There is an expectation of full- time service among those members and there would be an expectation of full-time service from people like the convenor of the cross-benchers. 43-3

Beyond that, there is no clear requirement for full-time service. When people are appointed, there is clearly some kind of expectation of active service, and that has changed a bit over time with more of an emphasis on active service, including on the cross-benches. Part of the selection process for cross-benchers is that they are asked whether they have time to make a serious contribution to the House of Lords, albeit not a full-time contribution. 43-4

There is an expectation that when you are appointed you will play an active role, but no one can expect that you will do that for life, until the day you die. If you don't prove as active as, perhaps, you indicated you are going to be, there is no enforcement mechanism. 43-5

I can see it can appear quite strange. It is very different. 43-6

Senator Stewart Olsen: I see. Thank you. I guess no one takes attendance at chamber or committees. 44

Senator Eggleton: Thank you very much. I'm interested in the working relationship of the cross-benchers, in and of that group. They are independent, and they are non-partisan in the sense of not belonging to a political party—at least not being subject to a whip of any political party—but they do have their beliefs and they do have their values. 45

Do they form subgroups within the cross-benchers, with people who are of like mind? Would they tend to collaborate on working out amendments, or things like that? Would they tend to vote as a bloc? Are there such subgroups depending upon their political beliefs? 45-1

I am not surprised about Senator Eggleton speaking this way. For one, he is (or was) a professional in the domain of science. Secondly, he is on record as distancing himself from fellow committee members; wrote he, "An effort was made to include this perspective in the main report but the majority on the committee wouldn't allow different views to be included, although this has been done in the past and is a frequent feature in House of Commons reports", see here. n45-1

Ms. Russell: As I indicated earlier, this is something which I suspected would be the case when I set out to research the group, but I found that it really isn't the case. There certainly are not organized factions of a left-right kind. There are, as I indicated, to some extent, groupings of people who have common interests inasmuch as those who are interested in health matters, those who are interested in children's welfare, and those who are interested in the politics of the Middle East, for example, as there would be within a political party. People who find they have interests in common may meet to discuss issues, but they are not organized voting blocs by any means. 46

In fact, one of the things that is interesting about the House of Lords and a bit special, to some extent facilitated by the presence of the cross-benchers, is that when there are groupings of that kind, those who are interested in children's rights or health matters, et cetera, tend not to be just within one grouping. So there will be connections among members with interests across the party groups. And the cross-benchers are aware that they're not going to get anything done on their own because they are not the majority in the chamber. They're only going to achieve things if they have good connections within the political party. 46-1

In a purely non-partisan way—I'm not suggesting there's anything partisan about this—they build connections with people who share their policy interests within the parties. That's another way in which I think they're very important in building a less partisan atmosphere among the groups in the Lords. If you're a cross-bencher who is very interested in a particular health matter, you will seek out the Conservative members who have that interest and you will seek out the Labour members who have that interest. In that way, you will help to build connections between the Conservative members and the Labour members. 46-2

There's very little organization that goes on which is just within the cross-benchers. They facilitate a wider organization on a cross-party basis across the house, I would say. 46-3

Senator Cools: I would like to ask the witness if the House of Lords has a definition of "political party.'' If they do not, that is a different question. But if they do, what is that definition and who created it? Is it a statutory definition? For example, in Canada, at least in the Senate, a party is registered under the Canada Elections Act. I wonder if you could shed some light on that. Is the definition of the party so wide that it could be a party of 10 people only? 47

Ms. Russell: That's an interesting question. I suspect the answer is no. I've already indicated that our standing orders do very little to privilege political parties. The Standing Orders of the House of Commons recognize the government and recognize the main opposition party and the second opposition party. I think there's probably even less recognition for that in the standing orders of the House of Lords. 48

Beyond that, there's some recognition of political parties in terms of receiving funding, but in the House of Lords, I believe there are only three party groups. It would be only three groups, actually, because the government party doesn't receive any public funding because it's the government; it's getting its money directly through payment of ministers from the public purse. We have some funding for opposition parties, so the main opposition party and the second opposition party gets some public funding and the cross-benchers get some public funding now, which is rather minimal compared to the political parties. 48-1

I suppose in that sense, for funding purposes, you have a definition. But otherwise, the political parties appear practically nowhere in the standing orders, and so I think probably the answer is no. 48-2

Senator Cools: Thank you very much. 49

Senator Joyal: Professor Russell, I would like to submit to you my reasoning in relation to how we can "reshape'' or "remodel'' an upper house. As you know, we are confronted with the option of considering that the Canadian Senate would be composed of 105 independent members. 50

My approach to this proposal has in fact to take into account what Parliament is as a whole. Parliament is composed of an elected house, the House of Commons, where there is a government and a loyal opposition. There is a government of the day, and if that government fails, there's immediately another government to succeed, to maintain the governing of the country and to advise Her Majesty that she can enact legislation that her Parliament is proposing to her. 50-1

When you consider the nature of the House of Commons attached to an upper house—because both houses are essential to defining Parliament. Parliament is composed, of course, of Her Majesty and those two houses. That's the principle in Britain, and that's the principle in our Constitution Act dating back to 1867. 50-2

If you want to totally reshape the second chamber, how can you do that while you're not in sync with the very principles that define the first house? In the Senate, or in the Lords, the government cannot fail. If the government loses a vote in the Lords, there's no general election in Britain, no more than there are general elections in Canada. So the government is not responsible in the Lords no more than it is in the Senate. 50-3

But there is a government presence in the Senate, as you say, to stand by government legislation, to propose government legislation and to seek the concurrence of the house. As you know, Her Majesty will want to have concurrence of the upper chamber before enacting the legislation. If Her Majesty wants concurrence on legislation, that legislation has to be submitted to scrutiny before there is consent proposed to her on it. If there is no relationship between a majority and a minority in the upper house, how can you expect that the system of adversarial principle will be supported in the upper chamber? 50-4

That's why I think that the principle of having 105—I don't want to use a word that would demean my independent colleagues—but 105 loose cannons who are there—and I apologize sincerely, honourable senators, and to the new senators who were sworn in this afternoon. 50-5

How can you expect organization of the responsibility of that upper house? That upper house has to conduct a review of the legislation. In that review, there are proposals and there is scrutiny, and the house is as good as its opposition and how it scrutinizes legislation. That's the principle that is at the root of our Westminster model. 50-6

It seems to me we can say there is no government party and no opposition party but there has to be a majority and a minority. The important element is that there is somebody in that upper house that has the responsibility, as you say, between the lines, to make the system function credibly. And to make the system function credibly, there has to be a member in full attendance from beginning to end who has to maintain quorum, who has to make sure the experts are properly questioned and that there is full scrutiny of the legislation, and not people who come and leave when they want and listen to be entertained on the arguments and go back home and maybe think about it and decide if they will vote or not vote or come to vote because they have something else to do in their professional, family or leisure time. 50-7

It seems to me the fact that you have a government party, someone there is responsible for the proper functioning to maintain the credibility of the institution. It's the government of the day, and that's why people trust that party with the running of the country. That principle flows in the upper house by the very presence of a party that has the responsibility to make it function and by the opposition party that has to be there in waiting to succeed that party if they fail. 50-8

I have some conceptual problems to solve in coming to terms with the proposal that with 105 independent members, that unit of Parliament will function properly on the very basis of its philosophical system. 50-9

Am I really making it too much of a purist concept or do you think there is merit in that position? Of course we can determine the whipped vote and whatnot, but conceptually, in my opinion, if we are to change the very nature of the upper house, we have to understand how the other house functions because we're in sync in terms of the results. 50-10

The Chair: A good question. Go ahead. 51

Ms. Russell: I believe Senator Greene said it. I think he wanted to play devil's advocate. Then I said well, maybe government and opposition are important, and he wanted to play devil's advocate to that, which is absolutely fair. That may be the principle that was applied historically, and it may be the principle that applies in the House of Commons, but it's not inconceivable that you could run a different principle, a more deliberative principle, I suppose. 52

One of the important things about bicameralism is that the two chambers should be different. There's no point in having two chambers which are the same. The challenge of bicameralism, which I referred to briefly in my opening remarks, is to find an alternative logic for representation and organization in a second chamber, which is sufficiently different from the first chamber but which nonetheless has adequate legitimacy to command public respect and to be effective. Now, that's quite challenging because, presumably, if you think you've got it right in the first chamber, and that's the right way of doing it and the second chamber will do it some other way, which will be controversial. 52-1

To play devil's advocate to you, I suppose it is conceivable that you try to find a completely different logic of organization in a non-partisan Senate. We had a conversation earlier about how the cross-benchers in the House of Lords are in some respects curiously modern and perhaps in line with recent fashion to move away from allegiance to political parties. 52-2

Another thing there's been a lot of interest in in recent years—obviously, you've had serious experiments with this in Canada—is a kind of citizens' assembly model, a more deliberative model of policy making, where you get a cross- section of citizens in who don't come with party baggage, who deliberate and decide on the basis of evidence on fairly limited topics, admittedly, historically. But you could perhaps envisage creating a Senate that operated along those lines. 52-3

It would be a major experiment, and I think that my concern would be—and again I have to say applying it to the U.K. because culture and expectations there may be different—my concern would be, if we try to implement that here, that while a citizens' assembly meets over a fairly limited period of time to deal with a limited range of topics may be quite interesting to people and seen as innovative, if that were sitting on a permanent basis and dealing with a very wide range of topics and being asked to adjudicate on quite major controversial issues of policy, that those members might come under increasing scrutiny for their political beliefs. 52-4

As I refer to in my paper on the cross-benchers, in terms of appointment, there might be more pressure. I have this quotation in the paper that there's more than one way of being independent. I quote somebody as saying that the independence of the former civil servant is not the only kind of independence that there is. You can be an independent- minded business person. You can be an independent-minded civic society activist, voluntary organization member, and so on. 52-5

I think my concern would be that there was pressure towards somehow appointing across a balance, almost recreating a political party system without political parties. You should have some right-wing independents to balance the left-wing independents. That's where it all gets very complicated. We manage to avoid those kinds of arguments, surprisingly perhaps, given how pivotal the cross-benchers have been and can be in British politics. We've largely managed to avoid those arguments by the political parties taking the heat out of the situation. If the political parties were stripped away, I think there would be an awful lot of scrutiny on the individual independent members and their personal beliefs. The fact that we don't have that is, I think, probably quite a healthy part of the system and makes it easier for those members to function effectively. 52-6

Senator Bellemare: My question is more of a comment. We have to understand that in Canada, actually, we are in transition. Why is that so? It's because there was a problem, and the problem is Canadians think—and I think we experienced it also—that the Senate has been very partisan in the past decades. In other words, partisanship as loyalty to a political party has been a priority to loyalty to the common good of Canadians. This is how the Senate is perceived. My understanding, as a senator from the interior of the Senate, is that this has a lot to do with the bipartisan nature of our Senate. Our Senate has been composed for 150 years of two political parties only. So the temptation for the government to put its hand on the second chamber is very easy to do and it's a real temptation. 53

Do you know of other countries besides Canada and the U.S. that have this kind of bipartisan second house? My hypothesis—and I would like you to comment on that—is that the more caucuses there are, the less partisan the second house is, and that it's good for the society. I leave the question at that. 53-1

Ms. Russell: I think that's very interesting, and I think I agree with you to a fair extent. 54

There's a question about how you define "partisan'' and whether "partisan'' is the same thing as "oppositional.'' I think you can have a quite partisan system where you have a multitude of parties, but that does require you to have parties building coalitions with each other, which, perhaps, takes the heat out of the partisanship to some extent—partisanship, but of a different kind. 54-1

I think it's quite difficult to run a second chamber, and I'm grateful that we don't have that system here, where either the government party is in control or the opposition party is in control, because neither of those is a particularly healthy situation. 54-2

I've indicated the many benefits that we have from the presence of cross-benchers. One of the benefits is that they ensure that neither government nor opposition has control. We also have a third party, and other minor parties that are doing that. That's the case likewise in the Australian Senate where, since the 1980s, it has normally been the case that neither the government nor the opposition has the majority in the house. Balance of power is held by minor parties and independents. That's seen as quite a healthy thing. 54-3

That's one reason why, without wishing to pretend to be an expert in Canadian politics, I see it as a positive development that you're going to have a group of independents in the Senate, and I think your politics are in some respects quite similar to ours in that you're also running a first-past-the-post system and you've got two dominant parties, et cetera. That's why I think the kinds of models we're looking at here, regulating how seats are shared between the parties in the upper house to ensure that no party will have a majority could be quite an interesting model, and where the balance of power being held by minor parties and independent members is an interesting and positive model. But once you push that to the independent members having all of the seats, I think you may get into difficulties that we don't face here, and that would worry me if we introduced the system here. 54-4

So I agree with you about getting rid of the government opposition polarity, but I think there are many other ways of doing it. 54-5

Senator Massicotte: A quick question, if you don't mind, just to make sure I understand your system: The cross- benchers participate in the committees and all organizations by way of proportion relative to their number, out of principle. Is that also the case relative to funding? Do they get, let's say, the same funding as the political parties relative to organization and research? 55

Ms. Russell: I missed the very beginning of that, the cross-benchers— 56

Senator Massicotte: Do they get the same funding relative to their research needs, relative to their organizational needs, as, say, Lords from the political parties? 57

Ms. Russell: No, they don't. I said that there is some funding available for opposition parties in both chambers and it's a relatively recent development. I think it's in my paper and it's certainly in my book. I'd need to go back and check, or you could have one of your clerks check when the cross-benchers began to get some of that funding. It's relatively recently. It continues to be at a much lower level than for the political parties. I don't think there's any particular logic for that. The Labour Party and the Conservative Party have over 200 members in the House of Lords. The cross-benchers have 178 members. The Liberal Democrats have about 100 or 110 members. So they have fewer than the cross-benchers, but they nonetheless get substantially more funds than the cross-benchers. I'm not suggesting, necessarily, that that's a good model. I don't think that's particularly well justified, particularly given that the political parties, of course, have organizations outside Parliament. They have organizations in the House of Commons, and they have organizations outside Parliament upon which they can rely for research and so on. In addition, they have a collective line. So each individual arguably doesn't need personal support in deciding how to cast their vote because they're subject to the whip. So the cross-benchers are substantially disadvantaged in funding terms in the British Parliament. Interestingly, there isn't a great deal of public fuss about that, but I don't think it's a particularly well- justified system. 58

Senator Massicotte: Can they participate in the caucus meetings with the House of Commons political party? Do they attend the weekly meeting of, say, the House of Commons Liberal Democrats, for instance? 59

Ms. Russell: The political parties between the two houses meet together, but the cross-benchers are completely separate from that. 60

Senator Massicotte: The Lords affiliated with a political party do attend the caucuses? 61

Ms. Russell: The different parties operate in slightly different ways. I think all three of the main parties have separate organizations in the two chambers. In the Labour Party, their members of the House of Lords can attend the House of Commons meeting in a non-voting capacity. In the Conservative Party, I think they keep them completely separate. The parties are organized slightly differently, but there are quite close links between the caucuses in the two chambers within a party. Then the cross-benchers clearly have no House of Commons equivalent and no interconnection with the parties. 62

Senator Massicotte: Last question: You mentioned that many of the Lords have full-time jobs elsewhere or are very engaged in public or private practice. How about conflict of interest? How do you deal with that issue? I know there's the issue of transparency all the time, but how do you deal with that conflict of interest issue? Some people in our country say senators should not have any exterior employment or serious engagement. How do you respond to that and how do you deal with that? 63

Ms. Russell: That's more of an issue in our House of Commons than in the House of Lords. It's not without controversy, I would say, but it is broadly accepted that the House of Lords is not a full-time chamber, that members are not expected to contribute full time, and, in fact, that the chamber benefits from people bringing up-to-date professional expertise. Because members are not paid a salary, unlike in the House of Commons, they cannot be expected to leave their professions and dedicate themselves full time to political work. 64

It operates through declarations; if you're speaking on something where you have an interest, you declare an interest. As you say, the watchword is transparency. It's not stopping people doing things. 64-1

Senator Massicotte: Last question, if I could: On the compensation issue, I thought it was per attendance, but you're saying there's no competition at all for the Lords, per se? 65

Ms. Russell: I'm sorry. Could you repeat? 66

Senator Massicotte: Relative to compensation for the Lords, there is no compensation whatsoever, or is it based upon attendance? 67

Ms. Russell: Compensation, financial compensation? 68

Senator Massicotte: Yes. 69

Ms. Russell: There's a daily allowance, which is payable. One of your colleagues mentioned that there's no register kept of attendance in the chamber, I think, if I understood correctly, as a passing remark. In fact, there is a register of attendance, and one of the key reasons for that is because, if you attend, you're entitled to claim the daily allowance. But you only get the daily allowance for the days you attend. 70

Senator Massicotte: How much is that? 71

Ms. Russell: Recently, it was £300 a day. I think it's probably still £300 a day. It might have been slightly increased. It would be around that. 72

Senator Joyal: Professor Russell, I would like to quote in answer to our colleague Senator Massicotte in relation to the amount of money that is allocated to the various groups in the Lords. At page 37 of your documents, you mentioned that, in the 2006-2007 session, the cross-benchers got £39,125, while, in note 16, you gave the money received by the Liberal Democrats as £217,982 and the Conservatives as £430,177. In other words, there's a large discrepancy, if I understand from those figures, at least in 2006-07 because that dates back at least seven years, more than that, almost nine years. There were large discrepancies among the fund allocated, even though, in terms of rough numbers, they seem to be more or less at par. In terms of, as you say, participation, that might be another issue. But, at least from the basis of it, there is at least 10 times for the Tories and at least 5 times for the Liberal Democrats the funding of the various groups. 73

Ms. Russell: There's a very major discrepancy. As I say, I wouldn't particularly encourage you to take the U.K. as a model in that regard. As you can see, the House of Lords is made up of a series of historical accidents. There are quite a lot of things that, if you were starting with a blank piece of paper, you wouldn't design the way they are, and I wouldn't design that system the way it is. I find that rather unjust, personally. I think that the needs of cross-benchers are, if anything, higher than the needs of the political parties because they have no other organization to fall back upon. Aside from their own professional interests and so on outside of the house, they have no other research base. Well, we have the very excellent officials who serve the entire house. So the people working at the parliamentary library and so on will serve everybody equally, but it does seem to me rather unjust that the cross-benchers don't have more funding. 74

The Chair: Before I go to the final two questioners, did I understand you to say the "cross-bencher caucus?'' 75

Senator Joyal: "Cross-bencher group," the cross-bencher group, per sé. 76

The Chair: But they meet on a regular basis. 77

Senator Joyal: Yes, the one that meets each week under the convenor. It's under the convenor that that money is allocated, of course. 78

The Chair: Absolutely. 79

Senator Frum: Professor Russell, I apologize. It's very rude because I missed most of your presentation, and so I probably shouldn't be asking a question because I'm going to ask something you've already answered. But I want to pick up on the thread that I did hear. Just to use your analogy of the blank piece of paper, did I understand, from what I have heard that, if you were going to design a second chamber with a blank piece of paper, a second chamber filled entirely with non-aligned, unaffiliated, independent members is not an ideal? 80

Ms. Russell: I've been trying to be cautious in terms of giving you too much advice as to what you should do there, but I would be very cautious about designing one that way for this country, I would say. 81

Senator Frum: Can I ask you then, again, in the blank piece of paper, blue sky situation: The reason I'm late, in fact, is that I wanted to ask a question of our new Liberal government leader, who also has a so-called independent political affiliation, and I was trying to understand from him how he is able to be the Liberal government leader and also an independent member. I'm still having difficulty with that question. But you do need government representation and you do need oppositional representation. Then you have room for independence. 82

In the ideal composition of a second chamber, how much room should be made for each of those factions? 82-1

Ms. Russell: I don't think there is any such thing as an ideal second chamber, because every second chamber has to be tailored to the local circumstances. 83

Senator Frum: Fair. 84

Ms. Russell: One the things I said in my opening remarks is that, although I know a fair bit about Canadian politics, I'm not going to preach to Canadian political experts about how Canadian politics should work. So you need to design an institution that suits your politics at the moment. 85

In terms of the Leader of the Government or the Government Representative, I haven't quite worked out what the person is called under this new arrangement. 85-1

Senator Frum: Neither has he. 86

Ms. Russell: This is another example, perhaps, of where you have to decide how innovative you want to be. If you're really going to design something new, you will have to come up with some new rules and expectations. Maybe there are options for having government ministers from the Commons come and present things in the Senate. Maybe you don't need a government house leader in a new arrangement, where you have to find a new logic. 87

But I think those are things for you to work out, because I'm too far away to say what's going to suit your time and place. 87-1

Senator Frum: I will go back and read the transcript. Just in terms of understanding it, why wouldn't you want a chamber entirely full of independents? 88

Ms. Russell: I might frustrate your colleagues if I start going into that at length, because we've had some quite lengthy exchanges. 89

Senator Frum: You're quite right, and I apologize to them, as well. It's not fair to join late. I apologize. 90

The Chair: We want everyone to exhaust their questions. 91

Senator McIntyre: One final quick question. As I understand it, the House of Lords Appointments Commission has the responsibility for picking most new cross-benchers, and they also define the meaning of independence. According to Stevenson Peers, ". . . you can be both an independent and a party member if you can demonstrate that you have views that are different than the party's on various issues.'' 92

Does that mean that independence is a state of mind? 92-1

Ms. Russell: I think you're quoting from my paper there, but I don't remember whose quotation that was. Obviously, it's a few years old now. 93

I don't know how important this is to you in your situation, which is rather different, but in terms of having full understanding of what's going on in the U.K. system, it's necessary to draw a distinction between the rules of the Appointments Commission and the rules of the cross-benchers, because they are two separate organizations. 93-1

The cross-benchers define who is allowed into the membership. The House of Lords Appointments Commission defines who they are prepared to accept as an independent appointee to the Prime Minister, but the Prime Minister can appoint other people to the chamber who have not been recommended by the House of Lords Appointments Commission, including as independents. And there are people who are in the chamber who have been there since before the House of Lords Appointments Commission existed. 93-2

So there's the potential to have a definition of independent at the moment that you're appointed, and there is a definition of independent to serve in the cross-bench group, but they don't have to be the same. And of course, people change; people change their opinions and behaviour. 93-3

I think it's fair to say we haven't yet had anyone appointed by the House of Lords Appointments Commission as an independent member who has gone to the cross-benches and then defected to one of the political parties. But once you're appointed, you're appointed; therefore, there would be nothing to prevent that from happening. People's political views can develop and change. 93-4

I'm not sure if that's an adequate answer to your question. The House of Lords is a complicated place. 93-5

Senator McIntyre: My quote was coming from Stevenson Peers. 94

The Chair: Thank you very much, Professor Russell, for your wonderful contribution to our committee. 95

Ms. Russell: I hope it was useful. We have a somewhat peculiar chamber here. 96

The Chair: It was very useful. 97

Honourable senators, we are meeting tomorrow at our usual time at noon to hear from representatives from the University of Ottawa Symposium on Senate Reform. The week after, we will be hearing from Lord Hope, Convenor of the Crossbench Peers. 97-1

(The committee adjourned.) 98

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