The Senate
Motion to Affect Committee Membership--Debate
October 28, 2020
Pursuant to notice of October 27, 2020, moved:
That, for the remainder of the session, and notwithstanding any provision of the Rules, usual practice or previous order:
1.the Standing Committee on National Security and Defence be composed of twelve senators, other than the ex officio members;
2.the Committee of Selection; the Standing Committee on Rules, Procedures and the Rights of Parliament; and the Standing Committee on Internal Economy, Budgets and Administration be empowered to elect up to three deputy chairs;
3.all other committees, except the Standing Committee on Ethics and Conflict of Interest for Senators and the joint committees, be empowered to elect up to two deputy chairs;
4.if a committee has elected more than one deputy chair:
(a)the reference to the deputy chair in rule 12-18(2)(b)(ii) be understood as referring to all deputy chairs of the committee acting together;
(b)the reference to the deputy chair in rule 12-23(6) be understood as referring to any deputy chair of the committee acting alone; and
(c)any reference to the deputy chair of a committee in any policy or guideline adopted by the Standing Committee on Internal Economy, Budgets and Administration be understood as referring to all deputy chairs acting together, until the Standing Committee on Internal Economy, Budgets and Administration decides otherwise;
5.the Committee of Selection be a standing committee;
6.the Committee of Selection have power to make recommendations to the Senate on issues relating to meetings of either the Senate or committees by videoconference or teleconference, to the coordination of such meetings and to measures that would facilitate or enhance their operations;
7.if a Senate committee establishes a Subcommittee on Agenda and Procedure, any two members of the subcommittee be authorized to direct the clerk of the committee to convene a meeting of the committee for the purposes of considering a draft agenda by sending a signed letter to the clerk, upon receipt of which the clerk of the committee shall convene a meeting of the committee at the committee’s next meeting time, during a week that the Senate sits, according to the agreed upon schedule for committee meetings that is more than 24 hours after the receipt of the letter;
8.except in the case of the Standing Committee on Ethics and Conflict of Interest for Senators:
(a)except as provided in sub-paragraph (b), if a senator ceases to be a member of a particular recognized party or recognized parliamentary group for any reason, he or she simultaneously cease to be a member of any committee of which he or she is then a member, with the resulting vacancy to be filled by the leader or facilitator of the party or group to which the senator had belonged, following the processes established in rule 12-5;
(b)if a senator ceases to be a member of a recognized party or recognized parliamentary group because that party or group ceases to exist, he or she remain a member of any committee of which he or she was a member, subject to the provisions of sub-paragraph (c), but cease to be chair or deputy chair of any committee on which he or she held such a position, and cease to be a member of any Subcommittee on Agenda and Procedure of which he or she was a member; and
(c)if a non-affiliated senator becomes a member of a recognized party or recognized parliamentary group, he or she thereby cease to be a member of any committee of which he or she is then a member, with the resulting vacancy to be filled either by order of the Senate or the adoption by the Senate of a report of the Committee of Selection; and
9.any changes to the membership of a committee pursuant to paragraph 8 of this order be recorded in the Journals of the Senate.
She said: Honourable senators, I have the privilege today to delve deeper into the motion I tabled yesterday. This motion deals with the sessional order and should finally make it possible for all of us, regardless of which group we are in, to sit on the various committees. This motion would also give each group a representative on the steering committee of each standing committee.
I want to talk about the basic principles of this agreement. The first principle has to do with proportionality. Today, in 2020, there are five groups represented in the Senate. There is obviously the Government Representative’s group with three senators, the opposition, and three other groups that are now recognized.
We cannot forget the four senators, excluding the Speaker of the Senate and the Government Representative, who are non-affiliated senators. It is important to ensure that each of these groups and these non-affiliated senators are represented and that they be allowed to sit on the various committees.
We have used the principle of proportionality to determine how many seats each of these groups and caucuses should have, which can then be redistributed to their members, based on the criteria of each of these groups.
The second principle is equality. It is important to ensure that all of the groups could be represented on the steering committees of each committee and that they would also be well represented on the Senate’s governance committees.
I want to give a concrete example of a senator who, in my estimation, has been treated unfairly: Senator Munson. He has been a member of the CIBA steering committee for several months now. He never received any compensation for this. Because I’m familiar with the work of his colleagues on the steering committee, I know that he’s worked at least as hard as they have. There’s an inequity there that this sessional order proposes to correct by ensuring that each member of the four groups represented on the governance committees — namely the Standing Committee on Internal Economy, Budgets and Administration, the Standing Committee on Rules, Procedures and the Rights of Parliament and the Selection Committee — can have one seat with an additional allowance.
The principle of reasonableness applies, however. If we create such a position for a fourth paid member, since we already have three members on steering committees, this could be considered excessive. That is why we proposed, given the impact of proportionality, that the two groups with the fewest senators be allowed to occupy, in rotation, the various third paid positions on the steering committees. Accordingly, a majority of the members of each of these groups could occupy a position on the steering committees and receive an allowance for their work.
This principle of fairness with reasonableness seemed important to us. I now want to talk about non-affiliated senators because that topic is just as important. They must not be left behind. That is why this agreement provided for consulting the four non-affiliated senators about their interests with respect to committees so that they are able to have a seat. Personally, I believe that we in the Independent Senators Group offered seats to two senators who are members of the G3. I believe we managed to reach a very good agreement.
I would now like to talk about how every angle and aspect of this agreement respects the rules. Respecting the rules is extremely important to us.
Regarding paragraphs 8 and 9 of the motion, allow me to offer a reflection on the argument that we are not following the Rules. The Senate has, for many years now, treated committee seats as belonging to caucuses or groups. This is not a new proposal. It is consistent with sessional orders adopted unanimously in the past. Some recent examples include December 7, 2016; November 7, 2017; November 20, 2018; and April 11, 2020. So, in 2016, we had three recognized groups. Now we have five including the Government Representative.
In all of these cases, the Senate unanimously set aside rule 12-2(3). I note that then leave was not denied. That is absolutely fair and reasonable. Colleagues, there is nothing extraordinary or inappropriate about the terms of this motion, which reflects an agreement among the facilitators and leaders of three out of four groups in the Senate. We are continuing along the lines of agreements that have facilitated the work of the Senate for the past several years. The current agreement is aimed at further promoting fairness and equality among the groups. Hence, this motion is made in the spirit of that respect for equality of groups.
For a group to lose its entire membership on a committee if a senator decides to change groups would be unfair to all senators of that group. The practical result of a small group no longer having a seat on a committee, no longer having representation on a committee, departs from the fairness principle. Additionally, the departing senator would certainly create an unfair situation for his colleagues. Neither is it an appropriate, logical nor fair approach to allow such a situation to be possible in the chamber.
We have consistently advocated and supported the inclusion of all groups. That would put a group at risk in this way, this portability-of-the-seats option.
I also want to talk to you about the importance of properly interpreting the Rules of the Senate. An act or regulation is read in its entirety, not clause by clause.
I refer to rule 12-2(3), which begins with the words “Except as otherwise provided.”
Except as otherwise provided, once the report is adopted by the Senate, Senators appointed to the standing committees and the standing joint committees shall serve for the duration of the session.
Rule 12-5 is an exception since it raises the possibility of replacing a member of a committee and defines the appropriate procedure. Rule 12-5 reads, and I quote:
Changes in the membership of a committee, except for the ex officio members and members of the Standing Committee on Ethics and Conflict of Interest for Senators, may be made by notice filed with the Clerk, who shall have the notice recorded in the Journals of the Senate. The notice shall be signed by:
(a) the Leader of the Government or a designate for a change of government members;
(b) the Leader of the Opposition or a designate for a change of opposition members; or
(c) the leader or facilitator of any other recognized party or recognized parliamentary group, or a designate, for a change of members of that party or group.
Furthermore, Senate Procedure in Practice, which is the authority on this matter that was written by our parliamentary experts — whom I would like to thank for their excellent work — deals with the possibility of making changes to the composition of committees in chapter 9, at page 177, where it states:
Once senators are appointed to committees, rule 12-2(3) provides that their membership continues for the duration of the session. Notwithstanding this, membership changes can be made during the course of a session, except in the case of the Ethics and Conflict of Interest Committee, by the . . . leader . . . .
I named them earlier.
It then adds:
Membership changes are not time-limited. They result in the permanent removal and replacement of a senator from the membership of a committee. The senator removed in this way is no longer a member of the committee unless another notice is submitted reinstating the senator’s membership on the committee. Once replaced, the senator loses all privileges of membership, including the right to vote, to move a motion in committee and to be counted as part of quorum.
Rule 12-2(3) notwithstanding, current practice in the Senate as per a number of sessional orders requires senators who change their affiliation to give up their committee seats. In my view, this is a matter of equity, respect for negotiations among groups in the Senate, and upholding proportionality.
Now that we have five recognized groups in the Senate, I think we also need more clarity around the responsibility undertaken by a caucus or group. If a caucus or group admits one or more senators, it must offer them committee membership. I think that is extremely important. It is even more important to make sure that senators who join a group leave it up to that group, which may have brought in one or more new members on the basis of proportionality, to decide who is going to represent it on the steering committee. To do otherwise would result in obvious inequity. A group or caucus could end up with two members on the steering committee of a standing committee, leaving another group or caucus with no representation on the steering committee. It think that is obvious.
In my opinion, when it comes to leaving a group or joining a new group, the senator who makes that perfectly legitimate decision must act with honesty and integrity, as must all senators.
I will conclude by emphasizing the importance of ensuring that this motion now becomes a reality. Five bills are expected in the coming weeks and possibly even the coming week. One of them must be passed before the December 18 deadline and that is the bill on medical assistance in dying, a very complex and extremely important bill. It is up to us to ensure that these bills can be examined intelligently, to ensure that the Senate committees can give them an expert and attentive second look. I think it is our duty and responsibility to adopt, as soon as possible, this sessional order, which will enable us to do our work carefully and prevent us from just quickly rubber-stamping these bills, something that I personally could not bring myself to do.
Honourable senators, I’ll speak mostly in French. However, I would like to summarize my arguments, which I will propose to you. First, I want this motion that the committee resume. That is for sure. I don’t want to delay any work. And all of you also know the modernization of the Senate is dear to me, and especially my Conservative colleagues, who were my colleagues and still are, know that I walk the talk also.
In this motion I would like to introduce an amendment, and I think it is a reasonable one. My amendment is based on the argument that dispositions 8 and 9 of the motion contradict the zest of rule 12-2(3), where it says that:
Except as otherwise provided, once the report is adopted by the Senate, Senators appointed to the standing committees and the standing joint committees shall serve for the duration of the session.
This rule has been there for a long time, but we don’t know how long. I asked the clerks and they said it has always been there. It has always been respected, except in the Forty-second Parliament, where we had the arrival of new senators. We had sessional orders. And at that time I was in the GRO, so I didn’t want to do anything that would be dangerous to the committee formation. Now I’m an independent senator so I can say what I really think about these dispositions and why they should be removed from the sessional order that we have.
It is a dangerous idea to have those dispositions because they ruptured the delicate balance between the influence of a group and a caucus on a senator and their own liberty to do things as they see fit. It was there when we had a duopoly, and I think many of you don’t know — but now you do — that I have been with the Conservative caucus and I left the Conservative caucus when I had —
Order! Order!
When I left the Conservative caucus, I kept my seats on committees, except for one committee. After a while, a senator in the Conservative caucus wanted to take that seat and he did, through rule 12-5. But otherwise, I sat on the Finance Committee and on the Banking Committee until the end of the session.
In my opinion, paragraphs 8 and 9 are very dangerous because they contradict the fundamental principles of the reform that seeks to establish a less partisan, more independent and more transparent Senate. In fact, paragraphs 8 and 9, which require a senator to abandon their seat if they change party membership, contradict the principle of plurality, which is very important in the Senate to prevent a majority rule that we are attempting to overcome in this chamber, as compared to the other place. I will explain this a little later.
The second principle that contradicts these paragraphs is that of proportionality between groups, for reasons which I will also explain, and the principle of the equality of senators, so that all senators can exercise their constitutional mandate with the same tools and the same participation in committees.
Let me start with the principle of plurality. Paragraphs 8 and 9 eliminate the fluidity of movement between groups. As we know, the plurality of the groups is a major element that must be considered to make the Senate less partisan and more independent.
As honourable senators may know, every senate in the world, with the exception of the United States Senate and, in the past, the Senate of Canada, is made up of several groups so that no one group can count on a majority of the votes. The reason is obvious. A senate has a duty of sober second thought and must prevent the other chamber from using its majority to force the passage of legislation that may, in some way, have an impact on minority groups or on certain regions. If the Senate wants to apply sober second thought, if it wants to be truly objective and impartial and counter majority rule, it can’t have a majority itself. No group can have a majority.
The principle of plurality, then, is eminently important, and this fluidity must be respected.
In addition, the proportionality principle, which exists in all senates around the world with respect to the composition of groups, hinges on the portability of committee seats so that it can be upheld throughout a session.
Here’s a very simple example. Suppose there’s a group made up of 20 senators. It loses two senators, or 10% of its members. Let’s say those two senators join another group made up of 20 senators. That group now has 22 senators, having increased its membership by 10%. If the existing rule were properly applied, the group now made up of 18 senators would be able to claim approximately 22% of the seats, and the other group, made up of 22 senators, would be entitled to the same number of committee seats as if it had 18 members.
If the session is very long, that means that if each of those senators belonged to two committees, the group that loses members would have four committee seats to distribute among its 18 senators. Some would join three or even four committees. The committee that gets two senators in a group that now has 22 senators, each member of which sits on two committees, would have to give one seat to the two new members. The senators in question would therefore sit on one committee. Some of them will have that opportunity.
If we want to ensure that the rule on proportionality is always followed, then the committee seats must be portable. That is how we can ensure equality among senators in the performance of their duties. If committee seats are portable and we assign a senator a task at the beginning of the session and they carry out that same task throughout the session, the workload will be fair for all senators under the rule on proportionality. Whether a senator stays or goes, they must transfer their committee seats, otherwise it will create an imbalance in the number of committee seats per group and the rule of proportionality will no longer be respected nor will equality among senators.
A senator who decides to leave a group does not plan to do so, I can tell you that. It is something that can happen in a senator’s life. It happens regularly when the sessions are long. If a session lasts a really long time, like the last time, the imbalance between the principles of proportionality and equality will continue.
There are some other little things that bother me about this motion, but paragraphs 8 and 9 are the ones that I find the most troubling.