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Reflections on the modernization of the Senate - Spotlight on 42: Changes, Challenges and Conclusions

The Canadian Study of Parliament Group

September 14, 2018


The Honourable Senator Marc Gold :

Let me begin with what the former head of the Canadian Civil Liberties Association, the late Alan Borovoy, would describe as a penetrating glimpse into the obvious.

The Senate is in a period of transition from a body organized around two political caucuses – the government and the opposition – to one where the majority of senators are not affiliated with any political party. And in this period of transition, the Senate is exhibiting the growing pains of a work in progress.

For some, the modernization project – i.e. the creation of a more independent and less partisan Senate - is the fulfilment of the Senate as it was intended to be, and would be the best expression of the constitutional mandate of the Senate.  I am of this view, and am committed to its success. For others, the attempt to create a less partisan Senate is a huge mistake, one that flies in the face of the history and traditions of the Senate as they understand them.

The plain fact is that not all senators want this project to succeed.  Some object exclusively on principled grounds, while others seem motivated more by partisan considerations.  This renders the task of effecting change in the Senate that much more complicated.

There is a clear tension between two models or visions of the Senate: one that places a premium and value on partisanship and ideological consistency within political groupings, and one that emphasizes the individual autonomy of senators to vote independently of the political platform of a given political party. This tension was evident during the past year, and will continue if not increase as we approach the federal election in 2019. Indeed, that election will determine whether the momentum to create a more independent and less partisan Senate will continue or be curtailed.

These competing visions inform debate in the Chamber, and are played out in the media.  They also will tend to inform how one evaluates the performance of the Senate during this period of transition.

So, how do we evaluate the work of the Senate during this transition phase?  The answer depends upon what criterion or criteria we apply, and to whom you ask the question.

Let me address three possible criteria – the efficiency, predictability, and effectiveness of the current Senate, and highlight some of the challenges we still confront.

Efficiency

A Senate that is organized by government and opposition caucuses, both sitting in the national caucuses of their respective political parties, is undoubtedly an efficient way to organize the business of the Senate.  When the government has a majority in both the House of Commons and the Senate, it can do what it wants and at the speed it desires.  When the opposition controls the Senate, things slow down, but in the modern era at least, government business typically gets done, except in a handful of well-known examples.

That said, I think the past year has demonstrated that the Senate can function efficiently. Where there is a willingness amongst the groups to move the debate forward, bills can and do move relatively smoothly through the legislative process. 

That said, the efficiency of the Senate could be improved by better organization and planning amongst government representatives, parliamentary groups and caucuses.  I think our recent experience with both Bill C-14, regarding medical assistance in dying, and Bill C-45, the Cannabis Act), illustrates the benefits that can flow from taking a more structured and organized approach to our deliberations and debates, and one that respects our important traditions of the equality of senators and their right to speak on debate.  Where there is political will to be efficient, there is a way – indeed, many ways! 

But let us not forget that although efficiency is an important value in any institution, it is not, and should not be, the measure of how well the Senate – a Chamber of sober second thought - is performing its role.   Other criteria must be folded into the mix.

What then of predictability?

Predictability

Critics of the current Senate cite the lack of predictability as evidence that the government’s approach is misguided.  And there is little doubt that today’s Senate is far less predictable, at least in certain respects, than the Senate of the past.

Where the government had a majority in both the House and the Chamber, it could do what it willed. And even when the government did not command a majority in the Senate, the Senate was relatively predictable.  Partisan rhetoric aside, there were clear understandings within the opposition caucus that ultimately, the government had the right to pass its legislation, especially legislation that implemented a government’s electoral promises. 

This is no longer the case.

The plain fact is that the government cannot count on members of either the ISG or the independent Liberals to vote in favour of government bills.   And when the ISG or the independent Liberals are divided on issues, as they were in the third reading debate on bill C-46, or with respect to various amendments to bill C-49 or C-45, the outcome is somewhat unpredictable.

But is this necessarily a bad thing?

If predictability means that the government gets a free pass – that the Senate simply rubber stamps government legislation – then we must ask why we would place such a value on predictability? 

The fact that the government cannot assume that the ISG senators will vote in favour of government bills, means that the government has to pay more attention to the Senate than it would otherwise.  To some degree, this is borne out by our recent experience with Bill C-29, the second budget implementation bill, and Bill S-3 regarding gender equality and the Indian Act.

There is another kind of unpredictability that is worth noting.  In a Senate organized around government and opposition, the two caucuses could make deals and trade-offs on legislation, and they could deliver the votes in the Chamber.  Given how the ISG is organized and defined, this is no longer as easy or prevalent a practice.  That said, were we to adopt some form of longer-range planning, such as we did in the case of Bill C-45, we could make our legislative agenda more predictable and our debates more coherent, and do so without fundamentally compromising our traditions of free debate.  Here again, it is simply a question of political will.

This leads me to the third criterion, that of effectiveness.

Effectiveness

By effectiveness I mean the degree to which the Senate provides reasoned and principled scrutiny of government legislation and policy, and contributes to the improvement of both legislation and public policy.  Clearly this is a criterion that is qualitative in nature, and open to interpretation.  Nevertheless, it is at the heart of the constitutional mandate of the Senate.

It is tempting to focus on quantifiable measures when seeking to evaluate the effectiveness of the Senate.  For example, much tends to be made of the number of times the current Senate has amended government bills. As is well known, the Senate has proposed amendments to approximately 25% of the bills before it, a dramatically larger percentage than was the case in previous Senates. That the current Senate is asserting its independence from the House of Commons is beyond question.  But we should not confuse assertiveness with effectiveness. I will return to this a bit later in my remarks.

In my view, the current Senate has been very effective in critically reviewing government legislation and policy, as was illustrated in our deliberations on Bill C-45.

First, the Bill received extensive scrutiny in the Chamber and the committee. More to the point, the quality of our review was enhanced significantly by the way in which the deliberation and debate was structured and organized, both in committee and in third-reading debate.  I would like to see the Senate continue to experiment with organizing its work in a more structured and coherent manner.  This can be accomplished without compromising the independence and equality of senators.

Second, the effectiveness of the Senate was illustrated by the way in which the issues raised by the indigenous communities played out in the legislative process.  The structured way in which we studied the Bill in committee brought issues to the fore that would otherwise have been ignored.  Moreover, the increasing independence – and yes, assertiveness – of the Senate meant that government could not readily dismiss concerns about the Bill’s impact on our indigenous communities. Time will tell how meaningful the government’s response will be.  But there is no doubt that the current Senate proved effective in discharging its constitutional role.

For my part, the overarching question is whether or not the current Senate is fulfilling its constitutional mandate - adding value to the legislative process by providing principled, reasoned, critical scrutiny of government legislation and policy.  I believe that it is, and that the modernization project is putting the Senate on a promising track to better serve Canadians.  But the project is fragile, and not without its challenges. Let me briefly mention three.

Challenges

First, there is a risk that the increasingly assertive Senate will undermine both its effectiveness and its credibility if it continues the trend towards proposing large numbers of amendments to government bills.  Bills can always be improved, and it is a legitimate role for the Senate to propose amendments in appropriate circumstances.  But what is and is not an appropriate circumstance is a matter of some debate, within the ISG at least, and no clear consensus has yet emerged.  We should not assume that our appointment as non-affiliated senators bestowed on us what Andrew Coyne derisively termed the mandate of virtue.

If too many senators consider it appropriate to propose and support amendments to government legislation whenever they believe that the legislation could be improved, without regard to any criteria other than their personal policy preferences, it is inevitable that many of these will be rejected by the House of Commons.  And when the Senate tends not to insist on its amendments, there is a real risk that the Senate will lose its credibility.  It is akin to the story of the boy who cried wolf.  This is a particular challenge for the ISG, and one that has been exploited skillfully by some members of the opposition caucus.

And this leads me to the second challenge, and that is the persistence of hyper-partisan gamesmanship in the Senate.

In my opinion, this hyper-partisanship undermines the image and credibility of the Senate.  Here I agree with Dale Smith – no fan of the modernization project or my views on it – when he advises some of the Conservative senators to “[t]one down the partisan gamesmanship and apocalyptic rhetoric.”

More importantly, this hyper-partisanship makes it far too easy to dismiss all resistance to the modernization project as simply partisan posturing.  Indeed, it alienates those of us who are working hard to find the right balance between continuity and change – who are trying seriously to figure out how to modernize the Senate while remaining faithful to its core traditions, principles, and constitutional mandate. 

And this leads me to the third challenge, that of modernizing the Senate in its rules and practices to better reflect the changing dynamic within the Chamber and to better serve Canadians.

There is no question but that the rules of the Senate and, indeed, the Parliament of Canada Act itself, need to be adjusted to reflect the changes in the composition of the Senate.  Our current legal and regulatory framework simply does not respect the equality and independence of all senators.  Non-affiliated senators will soon be in the majority in the Senate.  That gives us considerable power to effect change in the rules.  But how should we proceed?  And how far should we go?

I am on record as being critical of many of the arguments for the status quo invoked in the name of the Westminster model, and I am also on record as being agnostic – not opposed but agnostic - about the necessity for an official opposition in the Senate.  Indeed, I believe that there are several ways to redesign the work of the Senate to ensure sustained and critical scrutiny of government legislation and policy, and these should be explored seriously so that we can properly secure the independence and equality of all senators and parliamentary groups. 

But as the desk Sergeant on Hill Street Blues used to say – and here I date myself – “let’s be careful out there”. There is embedded wisdom in our traditions that may not always be obvious to the coldly rational eye, and we ought to be humble when we approach fundamental institutional change.  The challenge for those who do aspire to build a more independent and less partisan Senate, is to proceed carefully and cautiously, and not to get sucked into an “us versus them” dynamic with those who are resisting change.  And here, the hyper-partisanship of some of our colleagues in the Senate simply gets in the way of a calm, dare I say, sober, reflection on this fundamentally important matter.

I conclude where I began.

I support the project of a more independent and less partisan Senate. I believe that the accommodations we have made to the presence of non-affiliated senators have enhanced the quality of our work. I believe that the Senate continues to provide effective and quality critical scrutiny of government legislation and policy. I believe that some of the changes that we have experimented with, notably in the case of Bill C-45, represent positive steps to increase the quality and effectiveness of the work of the Senate. And I believe that this is consistent with – indeed is the fulfilment of – the traditions, heritage, and mandate of the Senate as an independent legislative body that is complementary to the elected House of Commons.

But it is a work in progress, and a somewhat fragile one at that!