Sober Second Thinking
I stand here, colleagues, not as a constitutional lawyer or scholar, not as a procedural expert, nor have I been a member of the Modernization Committee, which has spent considerable time on this topic. I am just a senator who has been a member of the chamber for nine years now, appointed on the recommendation of Prime Minister Harper. I was not named to the Senate under the new method of appointment that Senator Harder so carefully describes as merit-based, as he distinguishes senators appointed under the current government from those of us who have been here for a while.
I believe that my colleagues in the Conservative caucus and those in the independent Liberal caucus have merit too, but I won’t belabour that point.
Senator Harder’s proposal of sober second thinking was motivated by his concern that legislation is not moving quickly enough in the Senate, and he lays much of the blame for that at the feet of the opposition. He argues for a more businesslike approach to the legislative agenda in the Senate, while other recently appointed senators believe things would go more smoothly if we do away with the opposition altogether. Senator Harder’s more limited reform may well be within our Westminster parliamentary tradition, while others are suggesting something that runs counter to the basic principles of Westminster.
Colleagues, I have a lot of time for Senator Harder. I disagree with him on many things, but I believe he is a dedicated public servant trying to make the best out of a difficult situation. But he is missing an essential fact. It is not supposed to be easy to get legislation through the Senate. That’s the point.
When I was appointed, the Conservative government did not command a majority in this chamber yet still managed to pass legislation. The senators who comprised the majority, the Liberal opposition, were no shrinking violets, let me tell you. Senators Cowan, Tardif, Furey and Fraser, just to name a few, were formidable parliamentarians. They knew their files, and they knew how to use the rules to their advantage. They didn’t make it easy for the government, but we Conservatives understood their role, their rights and their privileges as the Official Opposition. We knew, as the government caucus, that we had to be disciplined to ensure that government legislation proceeded. How times have changed.
Now, we have moved from Senator Harder complaining about the opposition to Senator Gold, in his speech of February 13, suggesting there may be no need of an opposition at all. It’s not hard to see where this is going, but they are blaming the opposition for a problem created by Prime Minister Trudeau. It escapes me why an opposition caucus of 30-some members, in a chamber of 105, should be blamed for the government failing to properly organize itself to move legislation through the Senate.
For most of Canada’s 150 years, there has been a Leader of the Government in the Senate who led a caucus. The current government has moved away from that, for whatever reason, and established a three-person team to represent the government in the Senate.
Gary Levy, the longtime editor of the Canadian Parliamentary Review, who is now a research fellow at Carleton University, appearing before the Modernization Committee a year ago, described this as “a very odd and in my view unsustainable structure.”
How did we get to this position of a fundamental change in the appointment system and the structure of the Senate? Through a unilateral announcement by the Prime Minister, which may help to explain why it hasn’t exactly gone very smoothly.
I’d like to quote Professor Andrew Heard, of Simon Fraser University, in his testimony before the Modernization Committee on December 14, 2016:
. . . I think this was an appalling example of how not to conduct public policy. My colleagues who examine the public policy process would say the first thing you do is consult stakeholders.
This was a proposal developed without any effective input, even from the leader’s own caucus members. An open cheque is being left to be written by the whole Senate to try and sort out the consequences. I think that’s very problematic.
I do sympathize with Senator Harder, but I do not believe the opposition should be blamed for a mess that is entirely the creation of the Prime Minister.
I’d like to turn to Senator Gold’s suggestion that there is no sound basis for even having an official opposition in the Senate.
If there is a need for government representation in the Senate — and I believe most experts accept that premise — it follows that an opposition is also necessary. There is a reason that an official opposition is a foundational characteristic of the Westminster system, a system developed over centuries and used in democracies around the world.
Lord Norton, perhaps the greatest living expert on Westminster democracy, wrote on his blog earlier this year:
Two of the principal functions of the House [of Lords] are legislative scrutiny and calling the government to account.
He told our own Modernization Committee last year that the opposition provides “structured scrutiny.”
There’s always someone on the opposition’s front bench there to put questions and ensure that bills are thoroughly scrutinized.
We know that the Prime Minister and cabinet have extraordinary power. The government has significant resources and expertise to pursue its agenda. The legislation that comes before this chamber is exceedingly complex.
Senator Joyal, who I believe knows as much about this place as anyone, has spoken at length at the Modernization Committee about the power the government has and the need for a countervailing capacity to oppose. In my view, proposing that this essential function of opposition can be carried out by 102 freelancers is fanciful at best. The idea of an official opposition is closely linked to the question of partisan caucuses in the Senate.
If we consider the last two years in this chamber as a case study, it is apparent that we have lost something valuable as membership in partisan caucuses has declined. Party caucuses impose discipline on members. They provide support in policy analysis and establish the conditions for a coherent approach to organizing the legislative agenda of the Senate Chamber.
Belonging to a political caucus provides an important form of accountability. If you misbehave or don’t do your job, you’re letting down the entire team. You are answerable to your whip and to your leader.
What have we seen in this chamber since the move away from partisan caucuses, aside from the fact that the Independent senators vote with the government on almost all of the big things, 90 per cent of the time? We’ve gone from an orderly, civil exchange of ideas and debate, structured by the government-versus-opposition dynamic, to a free-for-all.
Recently, when there was an apparent agreement to refer a bill to committee following speeches from both the ISG and the Conservative side, an ISG senator popped up and took the adjournment. Senators come and go at committee meetings, accountable to no one.
Late last year, we Conservatives on the National Finance Committee had the opportunity to amend the second Budget Implementation Act. Why? Because there were a lot of empty chairs on the other side of the table. In the end, we did not amend the bill, choosing not to embarrass the government. That is just one example of the risks of proceeding down the path the Prime Minister has taken.
When I arrived here in 2009, I found the Senate a bit overwhelming. The rules and practices were confusing. Over time, I realized there are sound reasons, developed over many decades, for the way this place works.
Is there room for improvement? Obviously.
Many of the changes adopted recently to encourage greater equality between senators and to make the Senate more accessible and transparent to the public are positive steps forward. But that doesn’t mean it’s wise to toss out the basic architecture of the Senate.
This institution has served Canada through two world wars, through the Great Depression and through all manner of challenges. There have been many bumps along the road, most notably the expense scandal in the early part of this decade, a scandal that led directly to Justin Trudeau, then the leader of the third party, distancing himself from the Senate by removing senators from the Liberal caucus. That, however, was a scandal caused by spending, not by partisanship. If anything, the partisan connection led to greater accountability, resulting in consequences for an entire government.
As Professor Levy told the Modernization Committee in March 2017:
The idea that political caucuses are somehow the root of all evil is not a good basis for reforming our institutions.
I couldn’t agree more. The arguments for reform are based on the faulty premise that the Senate is broken. It’s not. The government is there to propose, and we are here to oppose, using all the procedures and resources at our disposal. It is a system based on centuries of parliamentary tradition. We should not forget that Parliament is, at its essence, a vehicle for opposition. It can be frustrating; it can test your patience; but in the end it works.