 CANADA The Special Senate Committee on Senate ModernizationConsideration of methods to make the Senate more effective within the current constitutional framework: Issue 5 17th Meeting, September 28, 2016 Witness: Hon. Senator Peter Harder, Government Representative in the Senate 0 The Special Senate Committee on Senate Modernization met this day at 12 p.m. to consider methods to make the Senate more effective within the current constitutional framework. 1 Senator Tom McInnis (Chair) in the chair. 2 The Chair: Honourable senators, I call this meeting of the Special Senate Committee on Senate Modernization to order. I trust you all had a wonderful summer and are quite pleased to be back. You don't sound too exuberant about it. 3 Last June the committee completed its first report, and its tabling in the Senate is imminent. We are now moving to phase two of our study and examining further topics of Senate moderation. 3-1 Over the next few weeks, we will be hearing from the leadership of the different Senate caucuses and groups. In my invitation to each of them, I asked them to reflect on the following questions: Do you believe that political party caucuses have a role and a future in the Senate? Does a modern Senate need governmental representation? Does a modern Senate need an official opposition or any opposition groups? What changes do you feel are required to our rules or practices? 3-2 To begin our series, I am pleased to introduce our witness today, the Honourable Senator Peter Harder, Government Representative in the Senate. Welcome, Senator Harder. 3-3 Senator Harder, you may begin your presentation, and I understand you do have some words you'd like to say, and then I'm sure the senators will have some questions. So please proceed. 3-4 The Honourable Peter Harder, P.C., Government Representative in the Senate: I would like to begin by thanking the members of the committee for their invitation and their dedication to Senate modernization. I salute their demonstrated openness to hear, consider and debate the merits of diverse and often forward-thinking proposals. I especially salute the work done by the honourable senators Green and Massicotte, as their tenacity and their political courage are at the root of this committee. I also want to acknowledge the work being performed by all experts and senators who are reflecting on how to modernize Canada's upper house, including the relentless efforts of the independent senators group. 4 While the work you are performing in this committee is far from being simple, the outcome of these hearings could be critical to successfully ushering a renewed and modernized Senate into the 150th anniversary of the Confederation. 4-1 Although the weight of shaping Senate modernization is a heavy one to carry, it is a duty that is shared by all senators. As I said in my maiden speech as senator, I am here to serve Canadians and to help the Senate serve Canada. It is with this sense of public duty that I appear before you today to address Senate modernization. 4-2 While I have been designated as the Government Representative in the Senate and though I have a deep interest in the modernization of the Senate, I am but one senator. The ultimate decision on the pace and shape of Senate modernization will be made with the participation of all senators and, hopefully, with the input of experts, former senators, indeed, all Canadians. 4-3 In my essay, I suggested that there'll be some form of Senate representation in the Commons. Quoting from the section headed Interaction with the Commons: n4-3
Our Constitution demands that new legislation be passed by both Houses, the Commons and the Senate, even though the passing back and forth of bills consumes time. Time may be saved by informing as much as possible members of Parliament before they deliberate an issue. This process may be further sped up by having some form of Senate representation (read: think tank representation) present during some of the ongoing discussions in Parliamentary committees and on the Commons' floor, possibly with a right to alert MPs to vital points they may have overlooked or to avoid bones of contention between the two chambers. n4-3A I am pleased to read Senator Harder's perception of his role as as "the face of the Senate to the government and the face of the government to the Senate." But I tend to believe the "messenger" should not be a member of either House. What if the still partisan conservatives form a next government? n4-3B Relevant to this point is the following paragraph lifted from the article by Kirby and Segal referenced below: "We propose two. In the first half of the 20th century, the House and Senate met 13 times in conference, where small delegations worked to resolve legislative disputes. The rules to resurrect conferences are already in place. In the event these conferences fail, the Senate's remaining responses currently are to acquiesce, to refuse a vote, or to exercise its absolute veto. The Senate must follow the 1911 lead of the British House of Lords by voluntarily limiting itself to a six-month suspensive veto." n4-3C From The Toronto Star (March 18, 2016): Harder will be "styled" as a non-partisan government "representative" who will facilitate the introduction of government legislation in the upper chamber, but he will officially be government leader in the Senate because that is what the Parliament of Canada Act and Senate rules and procedures require. "We hope it is a temporary circumstance," government House leader Dominic LeBlanc said in an interview Friday of this semantic situation. n4-3D With your permission, I'd like to the take this opportunity to speak briefly about my own views on Senate renewal and modernization, from both an immediate and a long-term perspective. The vision I have is of a more independent, transparent and accountable and less partisan upper chamber in which all senators are treated equally, along with a refocus on the traditional role of the Senate as a complement to the elected house. In a modernized Senate, government business would continue to be advanced by a leadership that is representative in character, with no formal ties to the governing party, a role that I see as the face of the Senate to the government and the face of the government to the Senate. 4-4 These principles are in sync with the Supreme Court's 1980 and 2014 reference opinions on Senate reform, in which the highest court of our country outlined the fundamental nature and role of the Senate in our federal, bicameral parliamentary system. 4-5 In 1979, the court observed: 4-6 In creating the Senate in the manner provided in the Act, it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons. 4-7 Thirty-five years later, the Supreme Court built upon these observations, opining as follows: 4-8 The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives. 4-9 In view of remarks made during the discussion following Senator Harder's presentation, I used here red for emphasis. n4-9
Correlatively, the choice of executive appointment for Senators was also intended to ensure that the Senate would be a complementary legislative body, rather than a perennial rival of the House of Commons in the legislative process. Appointed Senators would not have a popular mandate—they would not have the expectations and legitimacy that stem from popular election. This would ensure that they would confine themselves to their role as a body mainly conducting legislative review, rather than as a coequal of the House of Commons." 4-10 But to be sure, let's not overlook the Senate's other roles: its investigative role, its regional representative role, its role as protector of liguistic and other minorities. My essay stresses an expansion of the investigative role to an "investigative, anticipating, and critical problem-solving role." n4-10
Six days after this session of the modernization committee, it issued its first report on Senate modernization. That report lists how the late Senator Pierre-Claude Nolin perceived the Senate's roles: n4-10A • Legislative; • Investigative; • Representing regions; • Protecting minorities; • Parliamentary diplomacy; and • Promoting and defending public causes. n4-10B As for representing regions, I imagine Senator Nolan had the 24-24-24 formula in mind rather than what I wrote in my essay which is to "overlay" that numerical appointment formula by assigning about one third of our senators with the task to represent Canadians directly, see below (par. n4-38). n4-10C The court went on to say: 4-11 ... the Senate's fundamental nature and role is that of a complementary legislative body of sober second thought. 4-12 In a paper developed with the active encouragement of our honourable colleague Senator Joyal and submitted to this committee this past March, Professor David E. Smith adeptly encapsulated the conceptual implications of the Supreme Court's opinion. To Professor Smith, what can be said is that independence is an essential element in the Senate's performance of its complementary function in the legislative process. 4-13 The Supreme Court ruling of 2014 is free of any doubt on this score. The Senate is an independent and complementary legislative body, constitutionally equal to the House of Commons. The upper chamber is not a partisan colony of the lower. 4-14 By implementing a new non-partisan, merit-based appointment process, by choosing to designate an independent senator to act as its representative in the Senate and by encouraging all senators to exercise independent judgment in the discharge of their functions, the government has taken the lead in bringing Canada's upper house closer to the non-partisan and complementary body that the framers of Confederation had envisaged and the Supreme Court endorsed. 4-15 Merit in "merit-based appointment process" can be interpreted variously. Just what sort of merit are we looking for? I am especially looking for expertise in a wide gammut of knowledge/experiential domains and the capability to fruitfully and efficiently interact with other experts. Given the evidence of recent appointments, I doubt this is the interpretation chosen by the Independent Advisory Board on Senate Appointments. n4-15
The work this committee is performing in this unprecedented context is that of a government whose policy is precisely that it should not exercise a top-down control of the Senate and its senators. The Prime Minister has already made a significant down payment on this commitment to restore public confidence and bring an end to partisanship in the Senate. As both the leader of the third-placed Liberal Party of Canada and, subsequently, as Prime Minister of Canada, Prime Minister Trudeau has voluntarily relinquished one of the greatest levers of power of his political party and his office. The Prime Minister has displayed political courage in taking this leap of faith. 4-16 The new arms-length, merit-based appointment process presents the Senate with an historic opportunity to restore public trust and esteem in the institution. It is crucial that the Senate acknowledge this opportunity and act upon it. The government has acted to restore the public's trust in the Senate. Now, the on us is on us to continue this undertaking. 4-17 Two points:
1. I am personally disappointed with the way the Independent Advisory Board for Senate Appointmenmts has proceeded. The Board has been made aware of my essay and Brief, and, yet, I have no evidence they have given it due consideration. 2. The matter of restoring public trust needs a thorough examination. I shall touch upon this in a subsequent comment. n4-18 It saddens me to acknowledge that public opinion of the Senate is at an all-time low. Colourful qualifiers such as "widely reviled patronage house" are used not uncommonly in the national media. In a poll released by the Angus Reid Institute on May 3 this year, 64 per cent of all Canadians said that the Senate is too damaged to earn their goodwill, and 39 per cent called for the Senate to be abolished altogether. That said, 55 per cent of Canadians supported further Senate reform, and only 6 per cent supported the status quo. While the public's opinion of Canada's upper house may be disheartening to many honourable senators, some of whom have discharged their duties brilliantly in the public interest, it is essential we undertake this modernization with the effort necessary and our eyes wide open about the stakes at hand. 4-19 As I stated in my maiden speech in the Senate, the question before us is this: How can we modernize, adapt and strengthen the role of the Senate to meet the expectations of Canadians in the 21st century? 4-20 In the immediate term, this effort must begin in earnest with pragmatic adaptation to the changing identity of the Senate, equitable accommodation to the influx of independent senators, and the implementation of proportional representation in Senate committees. Canadians have made it clear that they expect the Senate to serve the public interest. This includes fairly allocating taxpayer funds and committee opportunities and allowing all senators to participate properly in the review of democratically mandated legislation. 4-21 Aside from under the overall "direction" of a the matter of proportional representation on committees, I perceive of committees composed of appropriate choices of knowledge/expertise under the "direction" of someone experienced in heading up diverse research teams: here. n4-21
In this respect, at present, although independent senators now comprise 27 per cent of the current complement, they generally have only 17 per cent of the seats on Senate committees. And independent senators each have a research budget of only $7,000, while members of the Senate Liberal caucus, for example, wield a research budget of $1,060,000, which translates into close to $60,000 for each senator. 4-22 Independent senators have limited opportunity to participate in parliamentary associations. The outcome is that independent senators remain underfunded and under-represented in Senate business. Pragmatic change toward the principle of equality of all senators has become urgent, particularly with the arrival, soon to be anticipated, of 24 new independent senators over the coming months. All senators share an interest in advancing the cause of the institution. As such, the most urgent objective from an internal affairs and public trust perspective is fulfillment of the principle that all senators are equal and, correspondingly, should have access to equal and proportional resources and opportunities to participate in Senate business. 4-23 To Canadians, these principles as about as basic as they come. My message to you, honourable senators, is that my pursuit of fair and equitable treatment of all senators will be uncompromising. I will work toward those principles until we are satisfied that they are a permanent feature of this house. 4-24 To achieve this, the Senate's legal and regulatory framework will have to be amended as soon as possible to eliminate the comparative advantages and incentives of partisan affiliation. The Parliament of Canada Act and the Senate Rules should indeed be amended to give equal and principled rights to all senators, regardless of whether or not they belong to a political caucus or a parliamentary group. By the same token, the Senate's managerial committees—the Selection Committee and the Internal Economy Committee—should be given the mandate and corresponding duty to meet the objectives of equality and proportionality. Research funds should be allocated on an equal basis to all 105 senators. 4-25 About research budgets, this is something that needs a looking into in terms of value-for-money rather than equitability n4-25
Prior to the introduction and adoption of such changes to this legal framework, I am of the view that the Senate should adopt a sessional order alleviating some of the procedural hindrances to the principle of equality, including a provision guaranteeing proportional representation of senators on committees. The Senate is a self-regulating body, and there is no principled basis for objecting to such an order. 4-26 I also want to mention that as Senate budgets are adjusted, I hope to see current staff with Senate experience given fair opportunities in any new organizational structures. Their institutional knowledge is an asset that I would not want to see lost needlessly. 4-27 The most urgent objective from the standpoint of external affairs and public trust is to implement an independent mechanism of accountability and transparency, specifically through the establishment of an independent oversight body to review Senate expenses and CIBA's interpretation and application of Senate rules and practices as they relate to Senate expenses, in keeping with the recommendations of the Auditor General's report on senators' expenses. 4-28 One should think that there will be no public trust as long as we have senators perceived as in some way tainted by scandal. Yes, I do believe in the rule of law, but I wish that senators under a cloud of not meeting common ethical standards feel they should voluntarily resign (or "encouraged" to resign) from our Senate in keeping with their writ of appointment. (Ethics differentiates between normative ethics, which relates to everyday standards of conduct, and applied ethics, the Law. (The area in-between is commonly referred to a "just this side of the Law.") n4-28
I wrote the previous paragraph on September 29, 2016. Today, September 30, the new is that a number of retired and one deceased senator owe the people of Canada a total of $500,000+ and that this sum may not be recovered because of the cost of legal redress. The question must be faced: what will be the public perception of this—what will this do to further public trust? Isn't it the lack of public trust that played a major role in the Trump phenomenon south of the 45th parallel? n4-28A The Senate Rules and the Parliament of Canada Act will have to be amended as soon as possible to create such as body. But again, before such a permanent body is created, a sessional order geared to setting a pilot or interim independent oversight body could be considered and adopted. This would go a long way to restoring public trust in this institution. It is also paramount that this committee of honourable senators study, report and proceed with recommendations that will address how an upper chamber composed of independent senators could organize and operate in the long term. 4-29 My own mantra for Senate modernization is independence, non-partisanship, transparency, accountability, complementarity and equality. The committee's recommendations should be conducive to the independence of senators from party discipline and top-down directive. They ought to be of service to the role of the Senate as the legislative body of sober second thought that proceeds to review the legislation on its merits, not on the basis of party affiliation. 4-30 These are principles and values that I believe should animate this committee and all honourable senators, as together we steer the ship of this great institution safely to shore. 4-31 I am the first to acknowledge that laying down the principles is the easy task. The challenging part is to design and implement a policy that is likely to fulfill the promise of these principles. With this in mind, if there is one feature of a renewed Senate of which I am convinced, it is that political party caucuses ought not be the paradigm for the organization of the Senate. As Professor David E. Smith has noted: 4-32 The legal basis of Senate membership has nothing to do with political parties: there are no writs of election; there is no conventional commitment to an electoral platform. 4-33 The organization of the Senate's administration and business and the corresponding rights, opportunities and responsibilities of individual senators ought not be sifted through partisan filters, but instead be party-neutral. 4-34 Just last week it was reported that the Honourable Senator Housakos observed in an interview that: 4-35 ... it's hard to operate in the British parliamentary system without clusters and caucuses. 4-36 I couldn't agree more with Senator Housakos. However, I think it both viable and desirable for the Senate to adopt an organizational framework comprised of clusters and caucuses that reflect the blueprint of an independent, non-partisan and complementary Senate in which all senators are treated equally. 4-37 Within the range of options that I have reflected upon, the regional caucus model, as an organizing principle for the Senate, is an idea that has the potential to fulfill this blueprint and, consequently, that I believe merits serious consideration by this committee and all senators. It appears to me as though a reasonably persuasive case could be made that there is a constitutional basis, an historic logic and an inherent simplicity in adopting a regional caucus model, not as a filter to the discharge of the body's legislative review, but for the purpose of the Senate's organization—that is to say, the institution's management and administration. 4-38 The regional caucus model concerns interactions of some "layer(s)" of society from various regions. It ignores the vertical structure of society, social/economic strata. It is incumbent on the Senate to be thoroughly in touch with Canadians "horizontally" as well as "vertically." My essay suggest some 38 senators serving as senators aggregationally representing/serving the entire Canadian fabric thereby distinguishing "Citizens' representatives" from "Complex problem-solvers". n4-38 I perceive those "Citizens' representatives" mostly in close contact with Canadians in their assigned domain, to be thoroughly cognizant and empathic to those people—to not come on as senators, but as fellow citizens working on matters of people's concerns. Imagine a senator spending time with the wife of an unemployed Canadian, conversing with her at her kitchen table, in her language, paying attention to her children—senators living among the people, but working with senatorial colleagues much of the time by skype and conference calls over the Internet .... Imaqine a government as close as a plumber, a doctor, a corner store—imagine the sense of government this would instill into the populace at large. This, it seems to me, is a route worth exploring, getting our feet wet on. Am I dreaming? n4-38A Specifically, regional caucuses could operate on a non-partisan and symmetrical basis for the following and other organizational and administrative issues: population of the Senate's powerful management committees or any other body that may replace these committees; the streamlining of equal opportunities and standing committees; committee travel and parliamentary diplomacy; representation at daily Scroll meetings and determination of speaking lists in the chamber; negotiating of time allocation; allocation of chamber seating arrangements and office space. 4-39 Let me be clear: The regional caucus model would not serve as the filter for the study of policy or the review of legislation, and in no way would I anticipate party-style discipline within these organizational units. To the contrary, the model is meant to provide a secure and sustainable shelter for the independence and non-partisanship of senators in the discharge of their duty to study policy and review legislation. Those tasks would fall to each independent senator bringing his or her independent judgment to bear on questions of national interest. 4-40 As a complement to such regional caucuses, I can also envision the organic formation of informal affinity groups that would coalesce around shared values, objectives, ideology and, yes, existing or former partisan affiliations. It may also be that senators, by bringing their independent judgment to bear on questions of national interest, would organically align with those informal lines for the purpose of legislative review. That would be perfectly desirable and in keeping with the political nature of this institution. 4-41 Coincidentally, former senators Michael Kirby and Hugh Segal have eloquently presented the case for regional caucuses just this week. I have been asked to provide any particular subjects that I believe this committee should review, and this is one of them. 4-42 Reference: "Take Senate reform back to basics: regional representation". "Regional caucuses should replace party ones as the basis for regulating committees, debates and questioning of government ministers," they emphasize. It is as if the feel the demise of partisan debates is creating a vacuum that needs to be filled. But as shown below, the late Senator Forsey saw, from an experiential perspective, things differently. n4-42
As you know, the constitution of the Senate of Canada along three equal regional divisions was the make-or-break condition of the original Confederation contract. Without it, there would be no Canada. 4-43 Indeed, George Brown, one of the influential fathers of Confederation, said in a speech given in the Legislative Assembly of the Province of Canada: 4-44 On no other condition could we have advanced a step. 4-45 Indeed, perfecting the regional role of the Senate has been at the forefront of virtually every attempt at constitutional reform in the past 40 years. 4-46 In closing, I would like to remind this committee and all senators of the words of wisdom of our late Speaker, the Honourable Pierre Claude Nolin. This was before my time, but some of you may recall that he rose in the Senate, in 2014, to present a series of inquiries pertaining to the Senate's roles and functions. He notably urged the government and opposition leaderships to give serious consideration to the merits of the formation of regional caucuses. His broader message was that senators should reflect on how the Senate can do better for Canadians. He concluded his series of inquiries with the following request: 4-47 ... I have asked you on several occasions to think carefully about the powers that have been conferred on us, about our ability to act more independently and counter the undue influence of blind partisanship, and about our responsibility to build and maintain our credibility. 4-48 Honourable Senators, I would like to make that request anew. We will mark our country's anniversary of Confederation next year in a special way, and I think it is time to seriously consider a redesign of the upper chamber to better serve Canada's interests and to meet the justifiable demands and expectations of Canadians. 4-49 I look forward to your questions. 4-50 The Chair: Thank you very much, Senator Harder. 5 We will go to our steering committee first, our deputy chair, Senator Joyal. 5-1 Senator Joyal: Thank you, Senator Harder, for your presentation. 6 I would like to focus on two issues. The first one, which is on page 2, the last paragraph, and I will quote the words and let you take the text if you want: "The work of this committee is performed in an unprecedented context"—and this is the point I want to discuss with you—"that of a government whose policy is precisely that it should not exercise a top-down partisan control over the Senate and its senators." 6-1 The document referred to is not listed among the Briefs among the MDRN committee's website. An oversight, perhaps? n6-1
I reflected upon what happened during the debate last June, and to tell you the truth—and I share this with my colleagues for the first time—I was very surprised to see, once the Minister of Health and the Minister of Justice had testified in the chamber and appeared at the Standing Senate Committee on Legal and Constitutional Affairs on the pre-study of the bill, that the minister started to speak individually to senators asking them to see her or them in their office and lobby individually the senator. To me it's the application of the principle to divide to concur. 6-2 When you have to address a group and share the arguments with the group, the group in itself can develop and share the debates on the various aspects of an issue. But when you are a new senator and you are called into the minister's office and the minister lobbies you to vote to support the legislation, if I have to maintain a caucus, even a partisan or affiliated caucus, and the choice is a one-to-one meeting with the minister, I would prefer the caucus meeting with the minister. 6-3 We have to be very clear on how we are supposed to function as an independent chamber. If you want to maintain the principle of independence, it is like a party going into the chamber of the judge to lobby the judge on an individual basis before the judge hears the case. 6-4 I don't know if you were in the government in the 1960s when some ministers spoke to the judge on some issues. I won't name the ministers, but I lived that period. Of course, the minister in question had to resign. Even the Premier of Quebec that did that had to resign as the minister he was then. 6-5 This has to be clearly established: How will we function with ministers of the Crown once a bill is tabled or once a policy issue is raised, and how the minister will relate with the senators as the institution? That is a rule we have to understand very clearly for the future, because otherwise you suddenly realize that the opinion is floating, you don't know why, but you learn after the fact that something has happened. That should stop, in my opinion. 6-6 Or, if it is the way the government wants to deal with the Senate that ministers deal individually with each senator in the context of a bill or in the context of a motion, in my opinion, that is something we have to reflect on. I would like your comments on that. 6-7 I am now (Oct. 15) inclined to believe we need a "messenger" between the Commons and the Senate, one who is not a member of either. I imagine this person would be one with legal experience and be appointed upon agreement among both Chambers. This does not ban direct contacts between mmbers o either House, but the messenger would always be in attendance. n6-7
Senator Harder: I thank you for your question. You're raising a very important point, and I don't want to be quick and glib in my answer. I do think there is a difference between judicial environment and political environment of an upper house, so I note your comments with respect to phoning a judge, and I do remember and recall the events you are discussing. We have to have and understand a common set of practice principles, which I'd be happy to discuss in terms of how ministers engage individually or collectively with senators. 7 But I would not easily want to give up the notion that ministers discuss policy issues with senators. There would most likely be utility in having a discussion in this committee or elsewhere on how the concerns you express can be addressed within the context of a political discussion, the policy discussion, and ministers ought to have a point of view and ought to advance their point of view but ought not to coerce the judgment of an individual senator. 7-1 Senator Joyal: But my point, as you understand, senators develop interests in various fields of policies, and a minister, in such a discussion, can more or less develop the attitude that if you support my bill, I'll be open to being a spokesperson to the government for the issue you are representing. 8 I won't pinpoint any issues, but that will put the senators in a position of weakness or trade. In other words, I have reserve on your bill, but since you say that you will be supportive of my private member's bill, or that you will be my spokesperson to the government on the policy issues on which I feel committed personally, I will offer you my support in exchange for your being my spokesperson with the government. 8-1 That's where you spoil the principle of independence, if you put a senator in that position. I agree with you, I don't want you to commit today to a specific approach, but that has to be recognized. If we are no longer in a partisan caucus, whereby we can air our views of bills and share that with our commonly affiliated colleagues, we should not put a senator in the position of having to trade his or her support for a bill in exchange for the support of the minister; otherwise, you totally spoil the principle of independence you spoke so eloquently on that you want enshrined in the practice of the Senate. 8-2 I think I have made my point. I have a second point on the regional caucus issues, but I know there are many senators waiting. 8-3 Senator Harder: In this discussion, it's important that it be a two-way discussion; that is to say senators have an obligation to protect their independence, and we should talk about how senators could or should not engage the executive. It's not just about how the executive engages senators. 9 Senator Tkachuk: As a supplementary to that, do you want rules to define that? 10 Senator Harder: I don't know that I would because you then get into the question of how do you adjudicate? My reaction would be that it would be good to have best practices and understood conventions around which we would develop a habit and a point of view. 11 Senator Tkachuk: That's interesting. 12 Senator McCoy: Thank you, Senator Harder. Your presentation has been very clear, and obviously you have given it a great deal of thought. Because we're in transition and we're all sort of reinventing ourselves as we go, I see on page 1 that you say you are but one senator, and yet, on the witness list, you're listed, of course, as the Government Representative in the Senate. So are you presenting these views as your own personal views, or are these in your capacity as Government Representative? 13 Senator Harder: Let me be very clear. While I've engaged the government about some of these issues, the views I express today are those that I have come to as an independent senator and, yes, as the first Government Representative in the Senate. I've been given no specific mandate to speak on these issues, nor have I sought such a mandate, nor, frankly, have the views I've expressed been dictated or vetted by the government. 14 Having said that, I formally represent a government that is committed to restoring the Senate's reputation by ushering the Senate into an era of independence and non-partisanship. Quite frankly, if the preference of the government were not for a more independent and less partisan Senate, I wouldn't be here. That is the purpose and the context in which I agreed to take the role I have. The government's commitment to this vision of a Senate, I accepted and shared without a moment's hesitation. I believe we're at a critical point in our history, and the government of the day is in alignment with the broad direction of an independent, non-partisan, transparent, effective and complementary body. This is the time for the Senate to move in this direction. 14-1 Senator Cools: Has the government said that or suddenly adopted that position? I'm just very curious. 15 Senator McCoy: Your positions are much more subtle and nuanced, but there are four questions. Did I understand you to say that political party caucuses do have a role, they have a role and a future in the Senate? The four questions are these: Do political caucuses have a role—that was number one. You said yes in the context of issues. Is that right? 16 A Nanos survey commissioned by Senator McCoy and attached as Appendix B to the MDRN committee's first report states that "only four percent of Canadians want senators to be members of party caucuses, and want them to vote along party lines." n16
Senator Harder: Let me answer. I think that if there are senators in the model I've described, in which the organization of the Senate is based on equal regional divisions, anticipate affinity groups of various sorts emerging, which, as I said, could, in fact, reflect partisan experience or affinity or not. There would be other groupings potentially as well. My point is that it's not a win-lose, 100 per cent one way or the other with respect to partisan institutions. 17 Senator McCoy: Okay. So the answer is yes, then; they could have a role and a future in the Senate. 18 Then, does the modern Senate need governmental representation? I'm taking that you said yes to that. 18-1 Senator Harder: Yes, absolutely. 19 Senator McCoy: What did you say? I'm sorry; I didn't sort it through fast enough in my head. Do you believe that a modern Senate needs an official opposition or any opposition groups? 20 Senator Harder: Let me take both questions, if I could, separately. 21 Senator McCoy: Yes. 22 Senator Harder: I do believe that in an institution of an upper chamber it is important that there be a linkage between the upper chamber and the government, and that is the role of the Government Representative. I believe that my task is not to be affiliated with a particular party or caucus or partisan identification but to advance the government's legislative agenda and, as I've said on the floor several times, on occasion, to represent back to the government the views of the Senate. 23 But I would like to, if I could, just enumerate the specific responsibilities I see the Government Representative having to undertake: first, identifying Senate sponsors for government bills and working collaboratively with them and their staff to move the legislation forward in a timely fashion; second, planning a legislative schedule that reflects the government's priorities, including time-sensitive bills, such as those in response to court deadlines; third, working with ministers' offices to provide senators with information they need to thoroughly and efficiently review government legislation; next, working with ministers' offices to arrange their participation in Senate Question Period; working with the house leader to coordinate and manage the influx of government legislation; attending cabinet meetings where appropriate, notably to discuss the legislative agenda as well as government business in the Senate; monitoring Senate committees and keeping track of the progress of government legislation; getting to know other senators and relaying their feelings on legislation and other government items to cabinet ministers and their offices; acting as a diplomatic agent between the Senate, the government and the lower house, which includes ensuring a smooth, productive and effective dialogue between the chambers in cases of disagreement over legislation; and working and reflecting on initiatives that would improve the processes of Parliament and the dialogue between the two houses, which may include consideration of pre-study, joint committees and other such instruments. 23-1 I do believe that this role is essential in the Senate as it exists today and the Senate as it would exist in a modernized Senate, which I've described. It is essential. 23-2 Senator Tkachuk: What about the question on official opposition? He didn't answer that. 24 Senator Harder: I said I would answer them separately. I'm happy to get to that one now. 25 Senator Tkachuk: Oh, okay. 26 Senator Harder: Okay? On bated breath there. 27 Senator McCoy: I just wanted to say that I think Bill C-14, in our debate in June, was a fairly eloquent expression of the cooperation of all people in this room and in that chamber. It illustrates many of the things you just described. Let me now stop and invite you. 28 Senator Harder: Let me respond to the question with respect to opposition. I want to be clear and elaborate because I obviously anticipated this question as it was asked of me, and it is important that it be captured in its fullness. 29 In my view, in a more independent, complementary and less partisan Senate, there will no longer be an organized and disciplined government caucus, and, correspondingly, there should no longer be an organized official opposition caucus. One of the most fundamental of the changes that are currently taking place in the Senate is that the traditional Westminster model of an organized and disciplined government caucus versus an organized and disciplined opposition caucus, a dynamic that is largely predicated on partisanship, will disappear. By this year's end, independent senators will comprise a plurality of members in the Senate, and, by the end of 2018, it has been projected that a majority of the Senate will be comprised of independent senators. I'm willing to concede that this is an approach that has not been part of the Senate's history. Conservatives and Liberals have been a constant feature of the Senate since its creation. I freely admit that, since Confederation, the Senate of Canada has functioned with government and opposition representative roles and that most legislative chambers modelled on the Westminster tradition have an organized government and opposition structure. I would add, however, that this may very well be one of the basic reasons there have been calls for Senate reform. As the Supreme Court observed in its 2014 reference: 29-1 Although the product of consensus, the Senate rapidly attracted criticism and reform proposals. Some felt that it failed to provide "sober second thought" and reflected the same partisan spirit as the House of Commons. Others criticized it for failing to provide meaningful representation of the interests of the provinces as originally intended, and contended that it lacked democratic legitimacy. 29-2 It is only by encouraging non-partisan independence that the purpose of an appointed Senate can be properly justified. Only in this way can the talents and experience of each and every senator be fully applied to the consideration or proposal before the Senate. As I mentioned, again, in my maiden speech, partisanship has a way of restricting a senator's independence by imposing the obligation of party loyalty. This is actually inconsistent with a rather fundamental purpose behind the creation of an independent appointed—rather than elected—Senate, as outlined in the Supreme Court's referenced opinions, both in 1980 and in the reference opinion of 2014, which I quoted at length, and I won't do so again. 29-3 But I do want to reference, again, the excellent paper, Senator Joyal, by Professor Smith in your book, where he says: 29-4 What can be said is that independence is an essential element in the Senate's performance of its complementary function in the legislative process.... The upper chamber is not a partisan colony of the lower. 29-5 So, we are not a confidence chamber. The official opposition in the Senate does not form a government-in-waiting and cannot defeat the government. Reproducing a government-versus-opposition dynamic in the Senate, when it serves no confidence purpose, is detrimental to independence, non-partisanship and complementarity. The traditional adverse model has actually hindered the discharge of the Senate's role in our constitutional framework as a complementary, thoroughly independent and less partisan legislative body of sober second thought. 29-6 I would be happy to go on. 29-7 Senator McCoy: Thank you. I will conclude my questions by thanking you for the courtesy of extending the independent senators group their name in your presentation with all three capital letters in English. Thank you, sir. 30 Senator Pratte: Senator Harder, thank you for this presentation. I applaud and I share your pursuit for fair and equitable treatment of all senators. I want to say a word about your long-term vision. I agree with practically all you said in your presentation, but I have concerns about the idea of regional caucuses as an organizing principle for the long-term vision of the Senate. 31 I understand that you see this as a purely pragmatic instrument that would not play a major role, except, maybe, as a purely administrative tool. But I fear that making it the organizing principle would give them power—because they would have power, and they would be able to distribute perks, really, because office allocation and membership on committees is power. With time, I fear those regional caucuses would become powerful instruments, and much more powerful than the informal caucuses that could develop on the side on an ideological basis. They would also be subject to powerful pressures by provincial governments and regional lobbies of all sorts, who would expect that regional caucuses would vote on bills on a basis of regional solidarity. 31-1 I think that in the long term those regional caucuses could become quite powerful and, I think, possibly hurtful for the country. 31-2 Senator Harder: As I mentioned in my statement, I believe that a regional caucus approach—a four-division approach—merits serious consideration. You raise a series of issues that I would like to respond to, but I do so in a spirit of engagement that is not just for today. I do think that the points you raise are worthy of reflection and conversation and adaptation as we seek the best model. In that spirit, let me comment. 32 At this point it is well to remind ourselves of what is found by a Nanos survey commissioned by Senator McCoy and attached as Appendix B to the MDRN committee's first report: n32
"According to Canadians, representing the issues of all Canadians was the most important element (90% scored it a four or above, followed to giving voice to Canada's regions (81% scored it at four or above)." n32A There has to be an organizing principle for what you call power, and I call the responsibilities of self-organizing. It seems to me that section 22 is clear about four divisions. It reflects the origin of the chamber itself, and the risks that you describe, I think, can be mitigated and are probably overstated. Why? First of all, yes, the appointment process that the Prime Minister has instituted is based on provincial divisions, if I can put it that way, in terms of the appointment committee, and the Prime Minister has invited premiers to make recommendations of two members of the five-member panel. But at the end of the day, the national interest is being adjudicated by a Prime Minister in making appointments to the Senate. So I don't believe that we will have a hyper-partisan or hyper-regionalism, if I can put it that way, or a hyper-partisan region, in the appointments process. 32-1 To clarify, section 22 is a section of the Constitution Act, 1867. It can be found here. The weighting is political, not representational. n32-1
Secondly, I believe the quality of people who will be attracted to a national institution are most likely not to be people of extreme regional exclusionary views of the country. They will be pan-Canadian. The legislative process itself is designed for a Canadian accommodation. But there is an important dimension in the public policy debate of regional difference in a country as diverse as Canada, and that ought to be acknowledged, and, indeed, the mechanism that I've described would legitimize that. 32-2 The only issue on which I can think of one region voting in a particular way in the public policy issues of the last 30 years might have been the NDP, and it might have saved the Liberal Party a long, long demise in Western Canada. 32-3 So, I'm not as concerned as you are, but I'm happy to engage on it. My question to engage you back would be, if not regional, then what? 32-4 Senator Pratte: I could answer, but it would take a long while. I think there are alternative scenarios that may look, to people today, radical but that are not as radical as a regional caucus solution. 33 I suspect that Senator Pratte's answer would be very relevant, representing, as he does, a Quebec riding. n33
The Chair: You will have ample opportunity in future meetings to expound on that. 34 I would caution that it's now 12:50 and we'd like to break by 1:45, if that's possible. We'd like to tighten it up just a bit. 34-1 Senator Tannes: Thanks for being here. I also agree with much of what you've spoken about. I have a couple of things, though, that I do want to ask about. I would say that I think that the majority of the committee members worked on a report with regard to a number of the things that you talk about, and while we may have different mechanisms that we're proposing, I think we're all headed in the same direction. I look forward to having discussions once we get this report tabled, which I hope is imminent, meaning today. 35 Senator Cools: Present it. 36 Senator Tannes: I will say there are a couple of things I wanted to ask you about. I don't understand the idea that we would have a Government Representative and a chief salesman for the legislation without somebody whose job it is to get up and coordinate the folks that are going to poke holes in what's being proposed. The idea of sober second thought, I would think, would involve a debate and something that would be organized. 37 I've been hearing more and more and more that we can somehow get by without an opposition, and I know it may seem a little bit of a conflict because I'm in the opposition, but it's a little bit of a conflict because you're in the government. But to me it just doesn't make sense. To use a sports analogy, it's like saying we're going to have a hockey game, and we're going to ask everybody to mill around on the ice, we'll throw the puck in the middle and a hockey game will form up. It doesn't work that way. To me, there has to be somebody that will organize sides in some way so that we can have a good debate. I wonder how you see that. 37-1 It's not just on legislation; it's on all the aspects we need to check ourselves on. I don't understand, other than proposing and opposing as the root of all evil. I don't think it is. But that seems to be what's happening. I'm surprised that you would not support some kind of a formal mechanism and office to counter you as chief salesman. 37-2 Senator Harder: If we achieve an independent body that is non-partisan, equal, representative, proportional on committees, accountable, transparent, all these things, I do believe on any piece of legislation there will be diverse and contrary views defined, and there will be coalitions for and against, formed on an ad hoc basis. I just don't think you need to have a partisan determination of predefined positioning on government legislation in a body like ours. 38 If I am the chief salesperson, I'm not doing a very good job, and I prefer to think I am. So I don't see myself in a salesperson role; I'm a representative role. It's a dual representative role. It's not the traditional Leader of the Government in the Senate. 38-1 We have some conversation to be had. I understand your perspectives and respect them. We have to work through what is ultimately the best assurance that debate in an independent Senate is vigorous, hospitable to difference and able to reconcile and legitimize difference and even amendments and improvements to legislation that aren't predetermined by a partisan lens. That's my point. 38-2 Senator Tannes: I look forward to that debate. Thank you. 39 Senator Eggleton: Thank you for a very comprehensive, thorough presentation. I agree with much of it. I particularly agree that all senators, as you've said here, are equal and correspondingly should have access to equal and proportional resources and opportunities to participate in Senate business. 40 I think you'll find that the report that will come out from this committee will address a number of these issues and hopefully satisfy an indication of the direction we're heading in, although it's evolving as the Senate evolves in terms of its membership composition. 40-1 Where I have a lot of concern and disagreement is in this concept of the regional caucuses. 40-2 The regional representation was a key part of the bargain in Confederation. That has to do with the appointment process, not the organizational, structural process. In the appointment process, it is important to have people who live in the different provinces and have an understanding of the issues of those different provinces and can bring them to bear, and I think that happens here now. What I think is paramount is the national legislation, and most of the legislation here is in the national interest perspective. I have concern about that. 40-3 I won't go into them today, but there are other models for how you can organize. In fact, some of the answers I hope will be provided when this report from this committee comes out. 40-4 Where do you see we're headed, ultimately? It would be good if the government had a view on this, if you're expressing their view, but I suspect a lot of it might be your personal view. In the current direction we're heading, if the direction continues through more than one government, we could see a Senate that had 105 independent people. It would look very familiar to me because it would look like city council. By the way, city councils can work. Don't laugh. I was a member of one for 22 years. 40-5 The other model is the one that is in the House of Lords, which also has merit. They have appointments every year from the different political parties. They also have an independent appointment process that leads to cross-benchers. They have a determination that there should be no majority in the Senate, so there is no majority position there amongst those different groupings. They also have a situation where, after six months, if there's a disagreement between the two houses, the House of Lords would— 40-6 Senator Harder: Suspend. 41 Senator Tkachuk: There's 800 of them. 42 Senator Eggleton: Well, there's 800. Don't worry about that. We don't need 800. The principles could still be the same. 43 What's your vision as to where this is headed? Is it city council or the House of Lords? 43-1 Senator Harder: Let me simply give you my view, because obviously the government hasn't formed a view on this. I think a sustainable, independent Senate will have to have some symmetry of relationships between partisan caucuses of one chamber with caucuses in the Senate. I would argue that the separation of the Liberal caucus from the national caucus was a huge step in the independence of the Senate, if not felt at the time, but certainly on reflection, and we'll see whether that is paralleled in other partisan affiliations. 44 In respect of the House of Lords, I don't think we have a lot to learn from the House of Lords, in the following sense: Senator Tkachuk rightly mentioned there are 880, I think— 44-1 Senator Tkachuk: It's unlimited. 45 Senator Harder: I was just there. The count I was given was 880, with the ones that were just made. Anyway, let's say you get 600 that are what I would say available. There are some significant differences. The cross-benchers are pegged at about 20 per cent, and you can add a maximum of— is it four a year? And the average has been about two. You're correct that there has not been a majority for any party for a long time. 46 It works with a great deal of deference to the government, mostly, not just because of the suspensive veto. There are 20 ministers in the House of Lords. There's not one in the Senate of Canada. The relationship is inherently more partisan in that sense, with a smaller cross-bench group. 46-1 House of Lords members, as you will know, don't all vote on every issue. They vote on the issue on which they have some expertise. I don't think you could have 105 senators where somebody said, "You know, I'm into music, and I'll vote on all the cultural bills, but I won't vote on anything else." We have to develop our own culture of independence in the Senate of Canada, and I don't think we've got much to learn from the House of Lords, in my view. 46-2 We probably will not be a city council because we are—the city council is actually the governing body. We are a complementary body of another chamber, so the symmetry there isn't entirely appropriate either. 46-3 The reason I am suggesting we seriously consider the regional basis of divisions is that it does have a constitutional basis in section 22, and it does provide a forum in which equality and administration of ourselves could be done. I'm not hostile to other models, as long as they meet the criteria of sustainable independence and proportionality that doesn't inadvertently revert to some overtly partisan position. This is a conversation we all have to have. 46-4 Finally, you referenced your report, and I welcome and look forward to it. I hope that not just this committee but the full Senate acts with expedition in dealing with the intent, because we will have failed the independent senators and the Canadian public if we've got a nice report from the committee that moves a long way on some of the equality and proportionality aspects, and we say in the Senate, "This is for further study and let's debate it, and maybe in 2018 we'll have a motion." 46-5 Senator Massicotte: Thank you, Senator Harder, for your presentation. I think it is very good. In fact, you'll see that we approved many of your comments—the spirit of them, in any case. I'll make a brief comment about regional caucuses, but my question is otherwise. I share the opinion of my confreres; I have difficulty with regional caucuses, but the idea does come from the origin of our Constitution and the whole purpose. At that point in time, it was very valid, that regional emphasis. The provinces didn't have much power; it was a very central government, a very federal government in the sense of centralization. Things are much changed. The premiers have significant power. They are very vocal. They are very well organized. I don't think they need more protection. I think the Senate would be more useful to bridge those differences in the national interest. I think the future leads us there. Anyway, I'm always interested in that discussion. 47 But let me talk to you about a bit of what we experienced before we left here in June or in July. We had very good debates. We had differences of opinion with the House of Commons, and, as you referred to in your presentation, you talked about the Supreme Court. We are a complementary chamber; we are not there to compete. We sort of had this discussion, when we saw differences, to say, "Where does this lead?" I wouldn't mind knowing your opinion and the government's opinion. Let's say we have a difference of opinion as to what the right approach is. We make amendments to the bill because, otherwise, nobody knows what our real thoughts are. We propose amendments and send it back to the House of Commons, and let's say they agree with some and disagree with others, which was one case. 47-1 On what condition do we need to be satisfied to say, "Sorry, we really don't agree?" I presume that, if it is constitutional, I think you would agree that we simply can't accept it, or, if it is oppressive to a minority in a significant way, we simply can't accept it. At what point and on what condition do we hold our nose or not hold our nose and let the bill through in spite of our sincere, contrary opinion? 47-2 Senator Harder: It is a really good question, and it is alluded to with Senator Eggleton's comment about the House of Lords and suspensive veto. 48 In June, you'll recall I said that this will work better in practice than in theory, and I would like to, at least at this point, avoid a theoretical response. But I would suggest the following principles, at least, will guide the practice because I think that, getting into a constitutional restraint of the adjustment of the Senate's power, maybe a sessional order and inherent practice would be the way of doing it. 48-1 Political accountability flows through the other chamber, and the people of Canada will render their judgment on the direction of legislation through the behaviour and record of the government in the other chamber. I think that the Senate has every right, as the Prime Minister has said and as others have said, to improve, amend and otherwise deal with legislation and to form a view, and we have sent several bills back. The government made determinations with respect to some amendments and not accepting others, insisting on the original, and the Senate, in its wisdom, said, "We've made our point," essentially—I'm paraphrasing—and accepted the message that was sent. 48-2 I perceive the Commons as the body that tries to provide Canadians with what the heart desires; the Senate as their guardian. n48-2
I think that was the Senate working at its best, making a point and moving on. There has been talk of mechanisms such as conference, mechanisms such as dealing with suspensive veto. I think we should have some experience here and not necessarily run first to theoretical and legislative solutions. The final point I'd make is that you say, "Well, if it's constitutional, we clearly would." The problem is that, on a lot of things, there are differing constitutional opinions. It sounds really good when we say we're going to be defending the Constitution, but if there are differences, I'm not certain that we will be certain where there is constitutional difference. I agree with you with respect to minorities, but my reflection is on previous behaviour. The Senate did nothing in the face of the Japanese internment or various other ways in which minority rights have been trampled. Let's wrap ourselves up in some good practice before we congratulate ourselves on being defenders of minority rights. I tend to be more pragmatic and hope that we exercise appropriate deference to an elected chamber at the same time as being clear about how we feel collectively about bills that come before us. 48-3 Senator Massicotte: If I were to summarize in my words what I think I heard, it is that, with rare exceptions, when the House of Commons refuses our amendments, we should hold our nose and pass it? 49 Senator Harder: I wouldn't necessarily say it as eloquently as that, but I think that there is a principle here. It's not holding our nose as much as deferring to political accountability. 50 Senator Massicotte: Same answer. Thank you. 51 Senator Tkachuk: My view is that one person's independence is another person's partisanship. I agree with you that we should be more independent, but at the same time I totally disagree with you as to the fact that we should not have an official opposition nor organize ourselves into political parties. 52 What you stated in the beginning is exactly what we do now. In other words, we have a Conservative caucus. When the next Parliament rolls around, the numbers will be different, and appointments to committees will be different. Chairs will be distributed differently. We've done that all the time. The fact is we have never had third parties in the Senate. There were just two of us. Now we've got, obviously, an independent caucus that calls themselves a caucus and organizes themselves as a caucus. So they are obviously going to be part of the equation and part of the redistribution. I had never heard from any senator in the place that they would not be part of the distribution or that they wouldn't be going on trips or that they wouldn't be part of the parliamentary associations. All they have to do is join and apply. But, if you don't have an opposition, who makes all the decisions? Who decides what the numbers are for committees? Who decides who goes on the trips? Who decides all that? 52-1 Senator Harder: I would assume, senator, that should the Senate adopt the structure that I've described, there would be discussion and accommodation amongst the organized groups to determine the proportionality and the individuals, but it would not be done on the basis of partisanship. It would be done on the basis, in my model, of regional organizational structures. 53 The other point I'd make is that you say that, in the next Parliament, you're willing to accommodate. I would think that's a little slow for the reality that by the next Parliament, as you've described it, by my calculation there would be 60 per cent independents. Surely we can do better than that, in the short term, in terms of recognizing proportionality and equality. 53-1 Senator Tkachuk: That has happened. When the Conservatives got more appointments even though we didn't have a majority, the Liberals and Conservatives got together. They had a discussion. They redistributed some of the committees. They redistributed the numbers. That has been going on forever. There wasn't an impasse as far as the numbers were concerned. When there were more Conservatives, the Liberals saw the writing on the wall. We had discussions, and the committees were changed. I don't get what the problem is with the independents. 54 Senator Harder: The wall I see, senator, is that if we agree on the notion of proportionality—and I hear you saying that—we should make those adjustments, and we should make them sooner rather than later as an embrace of the direction in which the Senate definitely is going. Regarding the percentages that I referenced in my comments, the 17 per cent is before we get 24 new ones. 55 I think it would not be a felicitous story of Senate reform were we, several months from now, having representation that reflected the complete distortion of proportional allocation of seats on committees. And I hope that this body, as representative of all views in the Senate, can be the accelerator of such an impetus because I think it would stand us all in good stead to demonstrate—to bend over backwards in anticipation of different representation than presently or historically has existed. 55-1 Senator Tkachuk: Is it your wish to bring in legislation to ban the Conservative and the Liberal caucuses in the Senate? 56 Senator Harder: Absolutely not. I thought I was being nuanced. I was asked for my view. 57 Senator Tkachuk: You said you wanted—I'm asking if you want to get rid of official opposition. How do you want to do that? 58 Senator Harder: First of all, I didn't say we have to get rid of official opposition. 59 Senator Tkachuk: You did. 60 Senator Harder: I was asked my view as to whether, in the model I described, there is a requirement for an official opposition, and I gave my answer. Whether or not there is an official opposition is not for me to determine. It's for the collective of the Senate to determine and indeed, perhaps, even the leader of the Her Majesty's Loyal Opposition in the other chamber. So I am just one senator giving you my view. 61 The Chair: Look, if I may, it will be an interesting discussion, all of you, and it will be at a future date. Senator Greene followed by Senator Wells. 62 Senator Greene: Thank you very much. Well done. Those are my two words. I particularly liked your eloquent defence and promotion of the concept of equality. That, to me, is the heart and maybe should be the organizing principle. 63 I have never been in favour, or a fan, of regional caucuses, quite honestly, and there are two reasons for this. One was mentioned by Senator Pratte, and I agree with his views on that. The other is that the Senate is a national institution, a federal one, and most of us, I think, tend to vote along the lines of what is best in the national interest, and I think that that's key. I think we have to do that and we have to keep doing that, and I do worry that if regional caucuses are created and expand their role, some of us, anyway, will stop doing that, and I think that's wrong. 63-1 However, you have moved me down the road toward accepting regional caucuses because you have said that they could be used only for administrative purposes. There are dangers in that, though; they could become a different creature over time. Maybe they won't, maybe they will, but if you're looking for a way to organize or administer, another vehicle could be an expanded role of the speaker. I think we ought to give some consideration to that idea. 63-2 Senator Harder: Let me respond to both aspects. 64 Senator, thank you for your comments. In my maiden speech I first raised the possibility of, perhaps, regional caucuses or other affinity groups. I have come to the position I articulated, which I thought we should consider—I have not said it must be—because I believe it is easy-to-understand, constitutional-based, equal in allocation of membership—with the exception of the North and we can talk about that—and that for administrative purposes and for ensuring equality and proportionality, it would be a device of giving no advantage to any one affinity group. But I do expect and would hope that there are ways in which senators organize across regional boundaries on policy issues. As I say, they might be permanent and they might be ad hoc, but that's where the cut and thrust of Senate legislative and other work will take place. 64-1 I've come to viewing it as the best alternative and the best option to preserve the notion and sustainability of equality over the longer term. 64-2 You asked, quite rightly, about the Speaker, and I didn't reference my views on the Speaker, but I share your implied instinct. I think that the Speaker ought to be specifically mandated to reflect the independence and equality of senators and to, in various ways, chair or lead our self-administration in that regard. That probably means we need to go to the notion of an elected Speaker so that whoever she or he is has the legitimacy to act in this fashion on behalf of the institution. That's another subject and one we need to reflect on further, but you're raising a very important point. 64-3 Senator Wells: Thank you, Senator Harder, for appearing and giving us your views and thoughts. In some ways I think we have within our report a lot of solutions that are looking for problems. I think that a lot of the very good things that have happened in the Senate in recent years, and I have only been here in recent years, including our excellent debate on Bill C-14 and the independence of views that were presented, were not drawn down party lines at all. I think the debates we had under the previous Parliament were vigorous, and I know that in my case I consider myself a very independent senator; no one hands me my principles. I'm an independent senator affiliated with the Conservative Party. 65 I think that all those things have happened under the current evolving paradigm that the Senate has enjoyed for almost 150 years. So I wanted to make that comment. 65-1 Second, the Senate, as you know, can be used as a check on the superior powers of the executive, which essentially control the House of Commons because they are granted those powers by the individual members of the house. Without the Senate, or with the Senate as a group of 105 individuals, or perhaps 104 individuals with one representative, I know if I were Prime Minister I would be delighted at having one less thing to oppose me or to oppose my powers. 65-2 Could you comment on that? I think it's necessary to look beyond what we are discussing now, and what we've discussed over the last year or two at the Modernization Committee, and what is in our close view, which is the appointment of more independent or non-affiliated senators. We have to look at what the Senate has done very well over the last 150 years and our structure and what we will be able to do in the future. 65-3 Senator Harder: I take note of your first statement, and I have no comment to make on that, as it is absolutely your opinion. 66 I would have thought that history has told us that historically prime ministers were happiest when they had a majority in the Senate that did their bidding in a regular and predictable fashion. The path we are going down is not without risk to a prime minister and executive. But it is the best way to revitalize an institution that has a meaningful role in the legislative process, and I would compliment Prime Minister Trudeau for the initiative that he has taken both, as I have said in my comments, in providing an arms-length independent nomination process in collaboration, where provinces have desired to collaborate in those nominations, and to have removed his party caucus from the national caucus, by underscoring the institutional independence of our chamber versus the other chamber, by appointing a representative, not a leader, who is independent in origin, not partisan, and is supportive of and has not reacted in any hostile fashion to improvements of legislation or improvements that the Senate viewed as improvements of legislation that we sent back to the House of Commons. 66-1 That is a different paradigm than the historic paradigm and one that I welcome and I think independent-minded senators should welcome. 66-2 Senator Wells: On the question of regional caucuses, because that's where most senators have weighed in who have asked questions, the founding of the Senate was based on the equality of the regions. Atlantic Canada now has 30 Senate spots; so that would be an obvious inequality for Quebec, Ontario and the West. 67 If there was a regional caucus structure, you would have horse trading. When you have horse trading, when you want someone from Alberta who is not necessarily engaged on your Atlantic issue, you can get their vote by trading a principle. The essence of the Senate is that we have principles and we are not to be swayed by the politics of the day, and that would be a damaging occurrence for the Senate if we were to be presented with a paradigm where we were offered to trade our principles based on a vote. 67-1 Senator Harder: I hope there is no horse trading going on today. 68 Senator Wells: It's an interesting point because when you have two parties at the table discussing, like in a court, a prosecution and a defence, or a government and an opposition, everyone knows their positions. When you have 105, nobody knows their positions. 69 Senator Harder: I thought you were all independent. 70 Senator Wells: Absolutely, but you have your principles, and I align my principles but I don't sell my principles. Thanks. 71 Senator Lankin: I would say with respect to the question that Senator Tkachuk asked about what is the problem with the independents and there is the opportunity to evolve the formula as numbers change, in the process that independent senators went through in putting our names forward for committees where we all agreed in advance so that there were not competing numbers, I have been waiting to go on a committee and have been denied the opportunity because there are two independents there. Two is the maximum that the two political partisan caucuses have allowed us to have on committees, which is under-representative of our numbers on a proportional basis. There is a problem, and if it can be easily fixed, I'm not sure why it's taking the time it is. I would hope we could move to fix that. I appreciate that that's a possibility. 72 With respect to some of the things I have heard about, the independence and the role of partisan political caucuses, and this is a comment as well, I do believe it is possible to have a partisan affiliation or an ideological affiliation to a partisan base and behave as an independent. I spent some years as a partisan politician. I have spent more years operating in a non-partisan world in a number of organizations and places. But I think that's different than a caucus structure with whips and consequences for voting different from the caucus position. 72-1 I've seen that at play here before I arrived and since. I believe there have been senators who at different times have found themselves at odds with their own caucus and will take an independent position. That has happened, but I don't believe that all votes that have taken place have been where individual senators have aligned themselves with a caucus position, Senator Wells, because of their principles being aligned. I think there have been times where people have been asked, told and directed and have complied outside of how they would have liked to vote. Some people have withstood that pressure, and others at other times, for what can be very good reasons. I'm not denigrating. I'm just saying that has happened. I welcome discussion about an organizational basis for the Senate that is not based on a hierarchy of privilege, authority, resources and power to partisan-based caucus. I believe partisan-based caucuses and other affinity caucuses should continue, but it's about the allocation of power and resources. 72-2 That leads to discussion of an alternative, which we've heard over the years, and more recently in the public policy forum, and in your presentation today, Senator Harder, about divisional groupings. My first reaction when I heard that was discomfort, and it's for all the reasons people have said. There are really good reasons for us to be discomforted, and that might not mean it's the wrong solution. There has to be careful thought about the checks and balances put in place. 72-3 Senator Massicotte talked about the evolution of our country from those times, and it might be convenient as an organizing basis because of the history; but as Senator Massicotte said, the power of provinces, regions, it's a different time. I struggle because I've heard people say there could be multiple affinity groups, but if the resources follow the senator as opposed to caucus, maybe you can only be officially a member of one but you can go to the others, but if you change, then the resources get moved around. 72-4 All of that we have to discuss and work out. It feels chaotic, but sometimes good things can come out of chaos. 72-5 In your paper, you said you have considered other alternatives, and these are the ones you have come to. Other than partisan political caucuses and the divisional-based affiliations, what are the alternatives you've looked at, and why did you rule those out as options? 72-6 Senator Harder: Well, the other alternatives would be coexisting with partisan caucuses, a paradigm of independent caucus, self-declared independents, or people who would identify themselves as a free trade caucus or a social— 73 Senator Cools: There are so many of them. 74 Senator Harder: You could have any number, as long as obviously the rules provided for a minimum number, and as you say, you can't on Monday be on this caucus and Tuesday that caucus and Thursday that caucus. So there would have to be some rules of the game, some procedural stuff. 75 My concern about that is they would not have natural proportionality, and they could risk sustaining a partisan approach to the governance. Remember, I'm not talking about legislative; I'm talking about governance. That would be not felicitous to the institution's desire to have a representative and independent approach to self-government. 75-1 We should have those conversations. Mine is simply a suggestion that we take serious consideration of this model, and hopefully we can have, as our objective, a common objective of equality of senators, of proportionality of whatever that grouping system becomes and a degree of experimentation. The beauty is that we have an opportunity, given the circumstances that I've described, to refashion this institution. 75-2 Senator Tkachuk: Who protects the minority? 76 Senator Harder: Is that a question? 77 Senator Tkachuk: Who protects the minority? 78 Senator Harder: I'm looking to the chair. 79 The Chair: Just a minute. Hold it. Take it easy. Everyone has had an opportunity. Now we have a questioner, please. 80 Senator Lankin: Maybe because I'm an independent it's okay for a member of a political caucus to interrupt and take my questioning time. I promise not to do that to you. I just want to say that this discussion of these various options needs to take place in some organized fashion for us as a group, and it's not going to happen in two-hour bits around this table. It's taking very long for us to move forward. Having been afforded the opportunity by this committee to read the first report, I see progress, but I see very slow progress. I think that's a matter of all of the things that are on our table to do. 81 So I would ask, between the thinking you're doing in outside groups and this committee, please, find a way to convene the conversation about what these alternatives might be, including the status quo, and move people's knowledge and comfort level with different models ahead so that, at some point, we can take a decision. 81-1 Senator Cools: I'd like to welcome Senator Harder to this meeting, and I hope that your next one will not be as hard as this one for you. 82 Senator Harder: It will be harder. 83 Senator Cools: Your name is Harder. 84 I'm interested in a few things. You cited George Brown, and I'm a great fan of George Brown. Your quotation was partially, "On no other condition could we have advanced a step." 84-1 But that condition, it seems to me—and I have a copy of the quote because I did an op-ed, some years ago, on this very matter—what George Brown was referring to is the agreement that they came to to allow Quebec to have an equal number of senators. That was the equality that he's talking about, the equality of numbers of members in the Senate. The rest of the quote says, "Our Lower Canada friends have agreed to give us representation by population in the Lower House, on the express condition that they shall have equality in the Upper House." This is the old British mind and the old French Canadian mind operating. "On no other condition could we have advanced a step." So he's not talking there about everything in the world. They had reached a stage in the discussions where this was it, or everything was over. You know that they were in danger of being attacked by the U.S., so they scrubbed up their faces and went back to the table and got to agreement. So I think we should understand that that's what that means. 84-2 Contemporaneously, everybody is using the term "independent" to mean non-partisan or non-affiliated with a party, but, in constitutional terms, when you talk about senators' independence or judges' independence, judicial independence, you are not speaking about non-partisanship. The issue is always freedom from executive or Crown. We used to say Crown control. Independence means freedom to think without being put out of caucus because you did something that upset the leader; let's be quite frank. 84-3 I think, somehow or other, we keep getting lost in the use of the term "independent." I don't know what to do about that. But my concern is that the Senate, right now, is in a fractured state. Senators are fractured. They're fractured into so many groups. I have a suspicion that before time passes, before this process is completed, if it is a process, we will see more groups come out, more caucuses or groups or whatever you want, come out because right now we are in a place of no man's land or no woman's land, and it is not entirely clear what the next steps are. I'm very supportive of you, as you know, and as I said to you, I was born a Liberal. I was born in British Whigery and British Liberalism, so I have a lot of sympathy. I have more than a small interest in seeing Mr. Trudeau do well and succeed, but, at the same time, I just cannot see us change this, change that rule, change this one, change all of this, change here, there and everywhere. When you start to talk about changes that will require constitutional amendment, like the change to the Senate Speaker, remember that the Senate Speaker, in the Constitution, doesn't represent the senators. He represents the King or the Queen in the Constitution. In the House of Commons, their Speaker represents the house and the people. We have to be clear on some of these things. 84-4 I don't see any smart government that is going to want to open up the Constitution in the near future, that would want to go there in the near future. In my career, I've seen a couple of constitutional failures. 84-5 I'm just wondering if perhaps we shouldn't seek to confine ourselves to more plausible and more feasible changes, and one of which has already disappeared, which was the fearsome leaders, of the opposition or the government. I think people are quietly letting go of that, and I don't think we will ever see again another oppressive leader as we have seen in the past. I tell you, by God, I saw some oppressive ones. 84-6 I just want to say that we should set some limits to our imagination and to our time use on this. What is quite clear to me is that a new kind of thinking has to be applied, and I don't think we will be able to do it by saying, "Let's try this; let's try that. Maybe we can do this." I think we have to appoint a group of us to dig deep and to identify for senators, in terms that they can understand, the profound principles that are involved and which ones are changed and which ones, quite frankly, are permanent and necessary features to even call ourselves a senate or a parliament. I hope I've been helpful. 84-7 The Chair: Could you respond quickly? 85 Senator Harder: I'll respond quickly. 86 Senator Cools: You don't have to respond to everything; it's okay. 87 Senator Harder: Just on two points, though. I would posit that the changes that we should pursue are all non-constitutional. You raised, properly, the caveat with respect to the Speaker, but there is a way around that with creative imagination, just as there has been a way around an independent, arm's-length advisory process to the Prime Minister's prerogative to recommend appointments to the Senate to the Governor General. So, yes, no constitutional, required changes should be on the agenda. That's a conversation that we don't have enough time for. 88 The other comment I'd make is to take you up on the word "independent" because I think you're right in saying that we use it a lot and that we should have some clarity around it. I think it's multi-faceted. We are an independent chamber from the House of Commons. 88-1 Senator Cools: That's constitutional independence, right? 89 Senator Harder: Yes. 90 Senator Cools: Good, okay. 91 Senator Harder: What we ought to regain is our independence from the executive. That too is an independence. There's an independence in how we choose to self-organize, appellation. Do you identify in a partisan sense or not? I guess those who don't identify in a partisan sense have been rather uncreative in thinking of how they should describe themselves; they're using the word independent. I see nothing wrong with that, and I would respect senators utilizing, in a group, the nomenclature that they would prefer. It doesn't suggest for a moment that others don't act independently, as you've described yourselves. But to use "non-affiliated" without consultation was a foolish exercise in frustration. It's defining a group by what they are not, and that's not, I think, the spirit of modernization and reform that this table should be about. So I share your issues around "independence," and we should be clear about what we mean on that. I think that there are some very valuable principles that we should be sharing. 92 Senator Cools: This notion of using regional caucuses as the modus operandi or as the entrance to everything else doesn't work either, because caucuses are secret societies. Formally, they have no existence. 93 Senator Harder: Let's say regional divisions. That's what the Constitution says. 94 Senator Cools: Everybody has been saying regional caucuses. But the Constitution doesn't say regional divisions. It says divisions. It just plain says divisions. There are hundreds of regions. 95 Senator Eggleton: You have regional caucuses in your paper. 96 Senator Cools: He said regional caucuses, but caucuses are secret societies intended to be that way. 97 Senator Harder: I wouldn't know. I'm not a member of one. 98 Senator Cools: It's a serious thing. 99 Senator Tardif: At this stage of the meeting, I will make a comment, as my questions have been asked by other senators and you have answered them, Senator Harder. 100 I would just say that I share the concerns expressed by a number of my colleagues over regional caucuses as an administrative and organizational principle, as you proposed in your presentation. 100-1 It is difficult for me to see how those caucuses could operate and how they could not harm the country's national interest. Several of my colleagues have raised the issue of provincial powers and the fact that they may harm the national interest. We make decisions on a number of matters, and we do so in the national interest of Canadians. 100-2 That said, I am completely open to us having further discussions on the principle of regional caucuses or regional divisions and, of course, on many other models this committee should consider. As for the independence and equity concepts and principles you promote, I fully support them. 100-3 Senator Joyal: It seems to me that one of the issues we have to address and canvass is the following, and I will put it into extremes: One would be that we would have 105 independent persons, totally independent, and each one would determine for himself or herself what is his or her position on a bill. Then, we would have another extreme, which would be that everyone has to belong to a party, and the party has a whip and a leader, and that leader gives the cue for how you will vote, and this is it. Mr. Chrétien was that. I speak of the old days that you have known very well. Mr. Chrétien said, in caucus, each bill, on a vote, is a question of confidence, and if you are in the caucus you support the bill. That was his position. 101 I strongly disagree with that position. I think it's not because I share the views of a group that seems to be leaning in one direction ideologically and that I'm ready to close my head and turn my brain off and say that everything the group does is perfect. 101-1 The key question is the independence of mind. That's what you have to say, and not the fact that you share with like-minded persons an ideological bent in relation to being more on the NDP's side, less on the Tories' side or more on the Liberals' side. If like-minded people group together to share the role and the responsibilities of debating—because that's what we are—we have to debate. That's the essence of our life here. If we debate, that means there will be a pro and a con. If we share the same views, we'll adjourn the house quickly on any bill. But if we are to debate, it means that somebody will have the job to oppose and show the weaknesses of the bill. It's easier done when it's like-minded people who share a common approach and can share their reflection in relation to a bill and say that, in that bill, I see three points or three weaknesses, and I think we should hammer in that direction. 101-2 It seems to me that we have to find a medium term whereby like-minded people are recognized as groups or as caucuses in relation to policy issues, because we're a political debating chamber. On the other hand, we have to maintain the independence of mind of the person and, as I said in my first question, not to submit or open that independence of mind to some kind of wheeling and dealing. Because there, we destroy what we have tried to achieve at the first stance. But not to oppose in principle, as being inimical to independence, the fact that like-minded senators group themselves and approach, in common, the study of bills and determine if on that bill there will be one, two or three points. At the end of it everyone is free to vote the way they want to vote, and so be it. 101-3 It seems to me that there is a way to reconcile, as I said, the bad experiences that we have had with the previous systems, whoever the leader is. I don't hammer on Mr. Chrétien more than Mr. Harper, or any other leader. The fact that like-minded people should be invited to group together and study bills in common, take positions and go into the rink to score points and pass the puck. That's the way we can live in the house in full respect of equality, and all that. I don't dispute that at all; I'm for that 100 per cent. 101-4 But the key issue is how we are going to organize the debate. That's why I rescinded the regional aspect. Not because of administrative issues but very soon, as some have said, you will have people asking to meet that regional caucus because it's a group of fishermen. And the Quebec people will say, "On the change to the electoral act, you have to vote as a group against the other bill." I don't see that it's going to be a nightmare. 101-5 Believe me, I have lived a national issue for 40 years of my life, and I have seen what it would have been to divide this house on a regional basis, whereby Quebec would have to be a bloc to always vote against the rest of Canada. That would be totally contrary to the nature of this country and where the regional tensions are so strong. You've talked about the NDP; I could talk about Quebec as strongly as the NDP. We have had two referendums to separate this province from the rest of Canada. 101-6 To come back to your point, the key is how we will recognize that like-minded people who share policy approaches can have their access to oppose and study the bill. 101-7 Senator Harder: Senator, I very much agree with you that we have to be a chamber of difference. I just don't believe that the definition of difference should be defined by the partisan basis of another chamber, which it is today. 102 Senator Tkachuk: According to the elections act, you can be a communist— 103 Senator Harder: My point is we have to absolutely protect the assurance that there is a debate of different views. I'm suggesting that that organizational structure for the contestation of views could be separated from how we organized ourselves. 104 The Chair: If I may, that will be the ongoing debate. If I could just make a comment, please. The committee, to be candid, has accomplished a great deal in three and a half months, from March through to the middle of June. Next Tuesday we will present to the Senate 21 recommendations, many of which hopefully will resolve some of the issues that were here today, and go to the Senate to be presented and debated. Pat yourselves on the back. 105 As chair, I like to hear the discussion and debate. It's exhausting, but you need to have an open and frank discussion. In that regard, Senator Harder, we thank you for coming. It was a spirited discussion, well-thought-out on your part and on the part of many of the committee members. It was very helpful. 105-1 (The committee adjourned.) 106
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