Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 23 - Evidence, March 22, 2007
OTTAWA, Thursday, March 22, 2007
The Standing Committee on Legal and Constitutional Affairs met this day at 10:45 a.m. to consider Bill S-4, to Amend the Constitution Act, 1867 (Senate tenure).
The Honourable Donald H. Oliver (Chairman) presiding.
[Translation]
The Chairman: Welcome to this meeting of the Senate Standing Committee on Legal and Constitutional Affairs. This is day two of our study of Bill S-4, to Amend the Constitution Act, 1867 (Senate tenure).
Bill S-4 contains one substantive clause that amends section 29 of the Constitution Act. The change affects Senate tenure. At present, retirement is mandatory when senators reach the age of 75 years.
The bill imposes a limit of eight years on tenure. However, Senate terms are renewable. As is now the case, the Prime Minister would continue to make Senate appointments.
[English]
Honourable senators, the committee began its work on this subject matter yesterday, and we began it with several notable advantages that should help us to proceed expeditiously. We have been able to review the expert evidence given to the special committee whose transcripts have been circulated, at my request. We have the benefit of the report of the special committee, which provides excellent background discussion and analysis relating to the reform issues raised by this bill. For those who may be interested, that report is available on the Senate website at the Special Senate Committee on Senate Reform link. Finally, we have the benefit of extensive debate in the Senate chamber on both this bill and the special committee report.
This bill has now been before the Senate for 111 possible sitting days stretching over nearly 11 months. A great deal of useful work has been done to this time. Our committee has decided to use that work rather than duplicate it, so, with the exception of a few individuals, we will rely on the evidence provided by experts before the special committee rather than hearing them again.
We have relied on that evidence and other work that has been done to narrow our scope of inquiry to two essential issues still outstanding. The first of these is the constitutionality of the bill itself. Can Parliament amend the Constitution to create Senate terms without involving the provinces of Canada? Second, are the renewable eight-year terms in Bill S-4 the best available option for the Senate?
We have focused our consideration of this bill, and we have been granted leave for extended time to hear witnesses so that we can do our work well. This should allow us to give this important bill the rigorous attention that the public requires. We will also be able to proceed efficiently and move forward in a timely way to address other major government legislation that is already before this committee.
Honourable senators, this morning we are pleased to have with us, from the University of New Brunswick, Professor John McEvoy. Dr. McEvoy is a professor of Canadian constitutional law, Aboriginal law, and private international law. He specializes in labour arbitration and human rights issues. He has argued constitutional issues in cases before the courts of appeal in both New Brunswick and Prince Edward Island and on appeal to the Supreme Court of Canada. He also appeared as an invited witness before the special joint committee on the process for amending the Constitution of Canada, called the Beaudoin-Edwards committee, in 1991.
The second member of our panel is Professor Don Desserud. Dr. Desserud is a professor of political science at the University of the New Brunswick in Saint John and is currently on sabbatical leave at Acadia University in beautiful Wolfville, Nova Scotia. His most recent publication is The Confidence Convention under the Canadian Parliamentary System, published by the Canadian Study of Parliament Group in their Parliamentary Perspectives series. His current project, entitled "Peace, Order and Effective Government,'' examines the constitutional principles governing the choice of Prime Minister under a minority House.
Gentlemen, we welcome you both to our hearing this morning. After you make your brief presentations, I will open the floor. You can be assured that honourable senators will have a number of questions to pose.
John McEvoy, Professor, University of New Brunswick, as an individual: Thank you very much. I appreciate the invitation to be here to today to share thoughts about Bill S-4.
Six preambular paragraphs introduce Bill S-4. These paragraphs identify the rationale for the bill by reference to the values of modern democracy and refer to the implementation formula provided by section 44 of the Constitution Act, 1982; that is, a constitutional amendment by Parliament alone. The fourth preambular paragraph serves to ease all doubts by observing that in 1965 Parliament modified the Constitution Act, 1867, section 29 by reducing the tenure of senators from life to 75 years. There then follows the substantive content, which is the issue today.
The principal legal issue before this committee, as the chairman has noted, is whether section 44 is indeed the appropriate constitutional amending formula. This involves consideration of the amending formula in Part V of the Constitution Act, 1982.
In well-known writings, American constitutional scholar Philip Bobbitt identifies six methods or modalities of constitutional reasoning. I pause for a moment because I did provide documents. I do not know whether members of the committee have the document I am referring to because there is a quote there and I would just jump by it.
The Chairman: If a document is not in both official languages, we do not circulate it, but some honourable senators may have seen the English version. Please proceed.
Mr. McEvoy: Rather than read the quote, I will indicate that there six methods or modalities of constitutional reasoning: historical, textual, structural, doctrinal, ethical and prudential. I intend to just touch upon those.
A textual reading of Part V of the Constitution Act, 1982 favours the Parliament-alone amending procedure of section 44 as appropriate for Bill S-4. Substantive matters pertaining to the Senate are expressed in section 42(1)(b), "the powers of the Senate and the method of selecting Senators,'' and in section 44, "the executive government of Canada or the Senate and House of Commons.'' Other references to the Senate in Part V are to the Senate's role in authorizing a resolution to amend the Constitution. Thus, a textual or literal approach finds the general power to amend the Constitution in relation to the Senate in section 44 and a specific exception in section 42(1)(b) requiring the use of the general amending formula for amendments in relation to the powers of the Senate and the method of selecting senators. Differently expressed, the logic of Part V is that all constitutional amendments in relation to the Senate are subject to the Parliament-alone amending formula of section 44, except for amendments in relation to the powers of the Senate and the method of selecting senators, which are be subject to the general amending formula. It is clear that Bill S-4 is not in relation to either of the exceptions from Parliament's exclusive authority of constitutional amendment, and a textual approach favours its implementation by Parliament alone.
As the bill itself notes, the result achieved through textual analysis is arguably supported by the fact that in 1965, acting alone, Parliament modified the tenure of senators.
A second approach is historical reasoning: the intention of the framers. The framers of Part V of the Constitution Act, 1982 were obviously aware not only of the history of constitutional amendment in Canada but had knowledge of the recent relevant Supreme Court jurisprudence, particularly in Re Authority of Parliament in relation to the Upper House and the Patriation Reference. The latter case held that, while there existed no legal requirement of provincial consent, a constitutional convention required a "substantial degree'' of provincial consent to amendments affecting the provinces' interests. The Upper House Reference held that the then federal legislative jurisdiction pursuant to section 91(1) of the Constitution Act, 1867 — added in 1949 — in relation to "amendment of the Constitution of Canada'' did not include amendments that would effect the abolition of the Senate.
Before the Supreme Court, the Attorney General of Canada had argued a literal or textual approach to the interpretation of section 91(1); that is, that "amendment of the Constitution of Canada'' meant precisely that, subject only to the five exceptions enumerated in the provision.
The Supreme Court rejected this Humpty Dumpty approach to constitutional interpretation. The court characterized the 1965 amendment and the 1975 increase in the size of the Senate as "federal housekeeping matters'' that did not require provincial consent. Amendments that would abolish the Senate were, however, inconsistent with the concept of Parliament — which, per section 17, consists of the Queen, the Senate and the House of Commons — and the conferral of exclusive federal legislative jurisdiction on that Parliament, so defined. The court also noted the statement in the preamble to the Constitution Act, 1867, that the colonies be united "with a Constitution similar in principle to that of the United Kingdom,'' a constitution with an unelected House of Lords. Textually, the court recognized that a broad interpretation of section 91(1) argued by the Attorney General was inconsistent with exclusive provincial legislative jurisdiction, per section 92(1), regarding the amendment of the provincial Constitution "notwithstanding anything in this Act.''
The court also examined the historical evidence regarding the purpose of the Senate as representing sectional or regional interests in the federal legislative process, particularly that the union would not have been possible but for the agreement of the Senate as providing equal regional representation for Ontario, Quebec and the two original Maritime provinces. The court concluded:
In our opinion, the power of the amendment given by s. 91(1) relates to the constitution of the federal government in matters of interest only to that government.
Though not specifically answering the reference question concerning the authority of Parliament alone to modify the tenure of senators, the court did state:
At some point, a reduction of the term of office might impair the functioning of the Senate in providing what Sir John A. Macdonald described as "the sober second thought in legislation.''
The imposition of compulsory retirement at the age of 75 did not change the essential character of the Senate. The significance of this historical record is that the stated intention at the time of consideration of what became the Constitution Act, 1982 — at least as expressed before the 1981 Special Joint Committee on the Constitution, co- chaired by Senator Joyal — was to maintain the status quo. During deliberations of that special joint committee on February 4, 1981, the Honourable Jake Epp introduced a motion to amend then clause 48 of the proposed Constitution Act, 1982, such that the present section 44 would read "in relation to the executive Government of Canada and the House of Commons.'' His amendment would have deleted mention of the Senate from what is now section 44. Explaining his purpose, Mr. Epp stated:
This amendment would assure that the role and scope of the Senate could not be changed simply through the House or a federal initiative.
Mr. Epp withdrew this amendment after the Minister of Justice, the Honourable Jean Chrétien, described the amendment as unnecessary given the change of the government's previous stance in relation to the Senate by withdrawing a proposal to change the role of the Senate in relation to legislation. Mr. Chrétien said:
We cannot accept this amendment because there are some internal problems which have to be resolved in the House of Commons and Senate by us.
Take for example, if we were to accept the amendment, if there were to be a change in the quorum of the Senate, we will have to consult the provinces.
So I think, now we have dropped Clause 44, I would like to say that this amendment is absolutely unnecessary and could make it extremely difficult for us to operate. I think we should be able to operate in Ottawa by Ottawa people.
I have no comment on that remark.
The day previous to this exchange, February 3, 1981, Mr. Chrétien had spoken of the next round of consultation with the provinces concerning Senate reform. He said:
I said it is a very partial change we are proposing and I do think in the next round of consultation with the provinces this question of the reform of the Upper House will come back and any reform that is reasonable will be acceptable to the Senators, this I know . . . .
We will come back to this problem in the next round of constitutional debate with the provinces.
We spent a lot of time last summer and the Senate has recognized that and if we take the old reform of the Senate, not partially but in one shot, we might have a good result. That is the gamble I am taking.
The tenor of these remarks is that section 44 was not intended to alter the status quo of the previous 91(1).
It is to be observed that the phrase "executive Government of Canada or the Senate and the House of Commons'' in section 44 has had a long shelf life. It appears in section 6 of the 1965 proposal by the Honourable Guy Favreau as "executive Government of Canada, and the Senate and House of Commons,'' subject to various exceptions, none of which touch tenure, and in the 1971 Victoria Charter as "executive Government of Canada and the Senate and House of Commons,'' though amendments regarding the powers of Senate, the residence qualification of senators and the number of Senate members to which a province is entitled were subject to the proposed general amending formula.
Of course, Bill C-60, the 1978 federal constitutional amendment proposal, would have transformed the Senate into the house of the federation and altered both the selection process and the tenure of senators. Bill C-60 was presented as requiring only resolutions of both Houses of Parliament and enactment by the United Kingdom Parliament. It was this assertion of Parliament's authority to amend the Constitution without provincial consent that led, following an expression of concern by the Special Joint Committee on the Constitution 1978, to the reference to the Supreme Court, which resulted in the Upper House Reference decision and its opinion in December 1979.
Subsequent to that decision, the same phrase, "executive government of Canada and the Senate and House of Commons,'' appeared in the August 28, 1980, "Report of the Sub-Committee of Officials on Patriation and the Amending Formula'' and the September 1980 "Report of the Continuing Committee of Ministers on the Constitution to First Minister: Patriation and the Amending Formula.'' The October 1980 proposed resolution respecting the Constitution of Canada as tabled in the House of Commons included the phrase "executive Government of Canada or the Senate or House of Commons'' in its proposed section 48.
The fundamental question is whether the phrase was intended in 1981 to overcome the limitations expressed by the Supreme Court in the Upper House Reference or was intended to be interpreted consistent with that opinion. Again, the tenor of the discussion before the committee favoured the latter interpretation.
So understood, the historical approach to the interpretation of section 44 indicates that it applies to amendments in relation to the Senate which were of interest only to the federal level of government — for example, Mr. Chrétien's example of change to the Constitution Act, 1867, section 35, concerning the quorum.
Professor Peter Hogg, in his well known text Constitutional Law of Canada, expresses a similar understanding of section 44: "Section 44 replaced s. 91(1) of the Constitution Act 1867. . . . The result is that the scope of s. 44 is similar to the scope of the old s. 91(1).'' If this is correct, the critical question then becomes whether the tenure change of Bill S- 4 is a matter of interest only to the federal level of government.
I now turn to the structural approach to the interpretation. A structural approach to the amending formulas would draw inspiration from the concept of federalism itself. The role of the Senate is to provide a mechanism for regional voices in which provinces are the point of analysis. Differently stated, the Senate balances the representation by population voice of the House of Commons, which clearly favours the larger provinces, by giving voice to the smaller provinces under the umbrella of regional equality. However, the Senate is more than a regional voice; it is also a valued forum for undertaking and reporting on many social issues of national importance. Again, the critical question is whether the tenure change in Bill S-4 is a matter of interest only to the federal level of government.
The doctrinal approach has little application given the lack of judicial interpretation of section 44. So also the ethical approach has little relevance to the interpretation of the amending formula. Fundamental values such as human dignity and equality are not at play in this matter.
Finally, the prudential approach is a cost-benefit reasoning. It reflects a value judgment based on the costs to the state or individuals of a particular outcome contrasted to its benefits. A person favouring Senate reform might consider the prudential approach to justify a broad interpretation of section 44 by which Parliament alone can amend the Constitution in relation to all aspects of the Senate except its powers and the method of selection of senators. A person not favouring Senate reform might consider the costs of unilateral federal action outweighed by the negative impact on cooperative federalism and therefore conclude that the general amending formula applies.
I turn now to the unanswered question: whether the tenure change of Bill S-4 is a matter of interest only to the federal level of government. With respect for those who express a different view, and particularly those in the field of political science, in my view, an eight-year term limit is fundamentally different in character from the 1965 amendment that limited senators' tenure to age 75. Whether life or age 75, the tenure limit established a clear sunset on Senate service. By design, this tenure promoted a degree of independence and independent reflection on legislative matters of national and regional importance. An eight-year period is of a different order. The end of term is more immediate. Will it take the senator to retirement? I believe the entitlement to a pension is six years. Will it take them to some other government post? To private business? Will a senator be entitled to a second eight-year term?
The decision to alter Senate tenure to eight years, whether or not open to a second term on an individual basis, is of such importance that, in my opinion, it goes beyond a matter of interest to the federal Parliament alone. It is not an internal modification to the Senate; it is a structural change that should involve a level of provincial consent. The historical and structural approaches to constitutional interpretation support this conclusion. It is a change that should be considered along with reform of the method of selection.
I also observe that is arguable that Bill S-4 impermissibly affects the office of Governor General by altering the nature of the office to which she can summon qualified persons. If so, Bill S-4 is subject to the unanimity formula of section 41. Some, and I appreciate weak, support for this is found by analogy in the decision of the Judicial Committee of the Privy Council in Re the Initiative and Referendum Act, 1919. That appeal held invalid Manitoba legislation that provided a means for popular approval and repeal of legislative initiatives by means of a referendum, the results of which would be respected by the Lieutenant Governor in relation to the grant of Royal Assent.
Having set forth the views above, I now draw attention to an adverse element also found in the minutes of the special joint committee of the Senate and House of Commons in 1981. This occurred on February 4, 1981. Mr. Hawkes, a member of the committee, asked Mr. Chrétien:
Did somebody bring to your attention the possibility that some other part of this revision in fact threatens the current method of appointment to the Senate?
Did somebody bring to your attention the fact that the omission of this did in fact threaten in some fashion the present method of appointment? It was not in your first draft and it was not in your second draft; but we find it here today.
In response, Mr. Chrétien deferred to Roger Tassé, the then Deputy Minister of Justice, who stated:
Perhaps I can just explain that, in effect, this was an oversight. When we asked ourselves, on reviewing the text, how the mode of selection of senators could be affected or changed under this proposal, we came to the conclusion that, in effect, it could be done under Clause 48, that is by Parliament alone, the House of Commons and the Senate alone.
We thought this was not the right thing, that in effect it should be protected in the sense that it should be part of that Clause 50 which requires that a change be made to the method of appointment of Senators to be done in conjunction with Parliament and the provinces under Clause 41.
Accordingly, the historical evidence may not be as clear as I have presented it above.
In Bill S-4, the new federal government takes its first step in Senate reform. The validity of this step, in terms of implementation by Parliament alone, is not sufficiently clear in my mind that it should proceed without an authoritative determination. Just as the 1978 Special Joint Committee on the Constitution prevailed on the government to refer to the Supreme Court the question of the authority of Parliament alone to modify the upper house, I invite this committee to request of the government, acting pursuant to the Supreme Court Act, section 53, a reference to the Supreme Court "for hearing and consideration this important question of law or fact concerning the interpretation of the Constitution Acts.''
In closing, I express my appreciation to the committee.
The Chairman: Thank you very much for that thoughtful presentation.
Don Desserud, Professor, University of New Brunswick at Saint John, as an individual: Thank you for inviting me, and my apologies for not making the February 14 meeting. A snowstorm kept me in Halifax. I apologize for not having written briefs, as well, but I did not expect the second invitation.
My points are simple; I have two to make. First, I believe that this amendment does not fall under section 44 and does fall under section 42. Second, I think previous amendments, which reduced the tenure of senators by imposing the 75-year retirement age, are not directly comparable to this one, for reasons that I will outline in a moment.
The reason I argue that it falls under section 42 is quite straightforward. Section 42 says that amendments in relation to the powers and methods of appointments of senators use the general amending formula — the seven-50 rule. It does not say amendments that drastically change the powers or amendments that improve the powers; it says amendments in relation to the powers.
I also note that it uses "powers'' in the plural and not in the singular, so it is not a question of adding up all the changes and seeing whether, at the end of day, the Senate is still functioning the way it was before. It says if it is in relation to powers, it comes under the general formula. I do not see how changing the tenure of senators to fixed eight- year terms can be seen as anything but a change in the powers of the Senate.
One of the senators, I believe it was Senator Fraser, in debate made the excellent analogy to what we would think if we were changing the term of the Supreme Court justices to fixed terms; would we not consider that to be a change in the power of the Supreme Court? I would argue that that is the case and that this, therefore, speaks to that case.
I can elaborate on that but I think senators have heard those arguments already and have made them very well. I have been paying attention to the debates and am impressed by the arguments presented.
As to the appointment, I find this an even more interesting question. In several ways this changes the method of appointment, but I want to talk specifically about the reappointment part. The amendment, as it stands, takes away the retirement age and does not preclude a senator from being reappointed after an eight-year term. From listening to the context in which this amendment has been presented by Senator LeBreton, it seems clear to me that one of the goals is to some day set up an elected Senate in which these eight-year terms would be applied. In the meantime, it would be quite conceivable that a senator, at the end of an eight-year fixed term, would be reappointed for another eight-year fixed term.
Sometime in the future, if this goes through, there will be a senator — or maybe 100 senators — who will come to the end of an eight-year term and will then be up for reappointment. There is nothing in our Constitution covering reappointment of senators. It is a foreign addition to the Constitution; it is not there. There are provisions in the Constitution by which a senator can be removed from the Senate if the senator is not well; there is no provision to put him back. Reappointment is a new and different thing. I am not saying it is either a bad or good thing, but it is a new thing, which therefore affects the way in which senators are appointed. That is something I believe firmly puts this under section 42.
My second point is about the parallel that had been made to previous amendments by which the life term was changed to 75 and the suggestion that this is similar or along the same lines. I heard one witness yesterday say that this is simply a difference of degree. This is a shorter term, but it is the same process that took place back then.
I would disagree. As was pointed out by my colleague, it is a different thing, to speak about a senator who is in a fixed eight-year term than a senator who has to retire at a certain age. I would go back to the British North America (No. 2) Act, 1949 — the amendment that added section 91.1.
I would ask senators to remember what was going on then. The Second World War was over. Canada emerged as one of the major players, as a country deserving of its independence from its previous status. In 1947, the letters patent were delivered and the Governor General is now appointed by recommendation of our Prime Minister with powers that are independent, to a certain extent. The Governor General no longer has to go back to England to request permission to do certain things. This is part of a process by which Canada was given more independence.
In these constitutional changes, when the discussion concerned whether the Parliament of Canada alone could amend the Constitution of Canada, the other side of it was not whether they could do so without the provinces, but whether they could do so without the British government. They were saying, "Can Canada do it or do we still have to go to Britain?'' No, Canada can do it.
The question of provincial involvement, as we know from the history of a search for a repatriated Constitution, took a long time — until 1982 — to figure out. In the meantime, that question was ignored, put aside or postponed, but it was not resolved. It is not a question of saying yes, at one time the Parliament of Canada could change the age of retirement of a senator by itself, and therefore it can do so now with provincial consent. Back then, the question was whether it could do it without British consent. Yes, it could.
In 1982, we added another measure. We repealed section 91.1 and added an amending formula. There were four amending formulas.
I would argue that section 44 is not the simple repeat of section 91.1 from the BNA Act of 1949, but sections 42 and 44 together are. In other words, in 1982, the game changed; and the rules of the game changed as a consequence. What we were able to do in the 1960s is no longer what we can do now. Now it requires provincial involvement and, therefore, section 42. However, I am interested in the suggestion of the Governor General's powers, which I had not thought of; that might add another wrinkle, as well.
The Chairman: Certainly there is nothing in the Constitution that says the Prime Minister cannot reappoint. If someone is in the Senate now for five or six years, decides they want to resign and changes their mind two years later and the Prime Minister is willing, there is nothing in the Constitution that prohibits his summoning that person once again to the Senate, is there?
Mr. Desserud: I did think of that, and it would work like this. The moment the eight-year term expired, there would be a window in which that person was not a senator and therefore was starting over again as if they were part of the regular pool. I agree that that is not impossible.
However, what I am saying is that there will be a point in the last period of tenure of that senator where reappointment is the issue. It is not another appointment later on, it is reappointment; therefore, it is continual. The way around it could be to have a day off and start over again. To me, that would be splitting hairs because you are talking about a very different process by which you are deciding who should be in the Senate when you are talking about reappointment, rather than picking from the population at large. However, I take your point; that is a concern.
Senator Milne: My main question is to both of you, because you have both come down on the same side.
Mr. Chairman, when we suggested inviting these witnesses, I had no idea where they stood on anything, so this is not deliberate.
Do you see this bill as the first step in a process toward an elected Senate?
Mr. Desserud: I think it is meant to be, which raises an interesting question. Senate reform is a big topic. It raises many complex questions. If we are going to reform the Senate, if we take the assumption the Senate needs reform, we are talking about large questions about what we mean when we say democracy, accountable, partisan, et cetera.
I study 18th century constitutional theory more than I do modern constitutional theory, quite frankly. The great passion of the framers of the American Constitution and the great concern of the critics of the Walpole regime was over factionalism and partisan politics. They tried to orchestrate and organize their constitutions to prevent it. They failed miserably, but that was their intention. We still have that idea that there is a role for the Senate to play, perhaps not that it is non-partisan, but it is differently partisan or not part of the party politics of the House of Commons. Those are big issues. If we are to talk about such issues, then that is a public debate that needs doing and needs doing right. Incremental changes that start a process off and may eventually take away the passion from such debate, I suggest, are mistaken.
Yes, I think it is a first step, but if it is, that is a mistaken route to follow.
Senator Milne: If there is reform of the Senate, do you think it should be part of a comprehensive package, which would then definitely be section 42?
Mr. Desserud: Absolutely, and probably more than that. Canada has to have a concerted debate about what we want in an upper assembly. We have not had anything like that since the Triple-E proposals. We have not had a strong national dialogue or debate on what exactly we want out of our Parliament in general and what we want out of an upper assembly.
Mr. McEvoy: It is really a political science question. I would prefer not to say anything other than having quoted Mr. Chrétien before the committee.
Senator Milne: That is certainly politics. Professor Desserud, you said that reappointment is a new concept to our style of government and our Constitution. Would the prospect of reappointment affect the independence of the Senate?
Mr. Desserud: Yes, absolutely. It affects it because there will be a period of time when someone coming to the end of their tenure will be worried about their performance and whether they will then be reappointed. I do no know who will be the Prime Minister many years from now, and neither will a senator who is appointed for an eight-year term, but there will be somebody there, and they will have to think about that. Therefore, the independence I believe they have now, where they can say, "Well, you cannot affect my position here; therefore, I can make independent decisions,'' will be undermined. I suspect that electing senators will do the same thing in a different way, which is another argument, but yes, it would affect that independence.
Senator Milne: What about removing the age of mandatory retirement?
Mr. Desserud: I saw that in the discussions that have taken place and it is an interesting question. I am not 100 per cent sure that the reasons for that being there in the first place would apply today, for the reasons already explained to this committee yesterday. We live longer, and there is an ageism reflected in such things. Whether we want to get into the American model where senators can be there for a very long term is another question as well. I am a university professor, and I have to retire at age 65.
Senator Hays: There are many things we could talk about, but time is short. I will address my questions to both of you and then get your comments.
My recollection is that we have not had many references to the Supreme Court on the Senate. There was the 1979 reference reported in 1980, but I do not know of any others right on the Senate in 140 years. We will be discussing here whether this should be referred to the court before any step is taken. In my own mind, it would not be a good idea to go to the court and say, "What about an eight-year renewable term,'' and then come back and study in committee, and then go back to the court and ask, "What about 12 years or 15 years?'' You might want to comment on that, although I am not asking it as a specific question. Professor Magnet would not comment on it. He would comment only on what he had studied carefully. He refused to give a view on that, and you may do the same.
Do you consider that under section 44 the Senate has a veto? It has the full powers that it always had. If you proceed as you suggest, the Senate does not have a veto. It has a six-month period to consider something, and whether or not it finalizes its opinion does not matter, the matter will go ahead. It will be as expressed by the House of Commons alone other than the six months to decide. The Senate has a role here in protecting the interests of Parliament and the provinces, because we do have the role of regional representation. You did not mention that, but it seems relevant to me. I would like to know if you agree or whether it is totally irrelevant.
The principle roles of the Senate are as a revising body, as a body of inquiry and as a body of regional representation. To characterize this as an interest of the provinces, it falls really only under the latter category, that of regional representation. You have characterized this amendment as something of interest in the context of regional representation, whereas my instincts are that it concerns the revising role clearly, and you might give me your reasons. You just incorporated by reference Senator Fraser's reasons. She is right about what she said, but I do not know how that affects the role of regional representation. It affects it as a revising body and as a body of inquiry and its institutional memory, but one of our weakest performing areas has been regional representation. If we had Bill C-43 before us trying to be passed by Parliament alone, we would be very sensitive to a premier who might be saying to us, "Just a minute. You are representing your province. This seems to be squarely within section 42. Are you going to let that go through?'' I can see us doing that.
Those are some things on my mind. You have touched on some of them, but I am directly concerned with those. I could go on, but I will not because of the time. I ask for your comments.
Mr. McEvoy: Regarding a reference to the Supreme Court, obviously the Supreme Court would respond on the constitutional issue as to whether a point had been reached that an eight- or 12-year term would affect the structure of the Senate or the role of the Senate. Really, the question before the committee today is whether or not an eight-year term is such that it can be implemented by Parliament alone. It is a legal question that the court can answer. It is within the purview of the Supreme Court Act under its reference authority, and the fine-tuning of eight, 12, 16 years or whatever is a different question of constitutional structuring or constitutional design. I assume that the Supreme Court would be open to responding to the direction of the Governor-in-Council to respond to that one constitutional question with a legal content.
As to section 44 and the role of the Senate, to affect the suspensive veto of the Senate is to impact on Part V itself. An amendment to Part V requires unanimity. The response to that particular point would be that the role of the Senate and its importance in terms of a suspensive role in relation to legislation is protected under the amending formula itself and the unanimity part of that.
The final element is the regional representation. Regional representation, the inquiry role and the revising role are three symbiotic parts of the role of the Senate. A regional representative is not only to represent the views of that particular region in one single role, but in all of its roles. The voice of the Senate is very important, and I would disagree with the premise that one should divide the Senate into those three distinct roles. They are symbiotic.
Mr. Desserud: In reference to your question about section 42, I did think of that. My political science instincts kicked in and I wondered what the political strategy would be for a government to propose it under section 44 knowing that that was the case.
One thing that has impressed me in reading the debates of senators and watching the hearings is that you do not, so far as I have seen, engage in partisan sniping, accusing the other side of a political agenda. At least, I have not seen it thus far. I am reluctant to move there, but it did make me wonder.
I will be blunt. Is this really a question of the appearance of reform rather than reform, knowing very well that the Senate will not carry the day on this one? The government is off the hook. They have done their job and they have tried. It is a good election platform. If that is too cynical, I apologize, but that is what happens when you live in New Brunswick.
Senator Hays: You seem to understand the issue very well and you were polite and diplomatic in the way you raised it.
Perhaps it was you, Professor McEvoy, who said that this may rise to a section 41 amendment. For that to be the case, then you see this as changing the role of the Governor General in the appointment of senators. Currently, the Constitution states that the Governor General shall appoint senators as vacancies occur, which gives rise to my colleague's question as to why she is not doing that. Well, she is not doing that because we have an unwritten constitutional convention, documented in some Orders-in-Council that were circulated earlier, that this is a prerogative of the Prime Minister. Could you comment on why you think it might rise to a section 41 amendment if in fact the Governor General still carries out the actual appointment, as he or she has done since 1867?
Mr. McEvoy: Again, it is using the inspiration of the Manitoba Initiative and Referendum Act. In that process, the legislature of Manitoba wanted the popular voice of the people, so they presented a bill. They allowed people to present initiatives, which would eventually be subject to approval, or not, by the people. The Lieutenant Governor would then grant Royal Assent.
The office of Lieutenant Governor was held by the Judicial Committee of the Privy Council and the Manitoba Court of Appeal to be affected because the Lieutenant Governor was expected to follow the decision of the electorate in the popular referendum. Royal Assent is independent in the office of the Lieutenant Governor, but the constitutional convention is that the Lieutenant Governor, as with the Governor General, respects the democratic will of the legislature and grants the Royal Consent. It would be a constitutional crisis for a Lieutenant Governor to say, "No, I will not grant Royal Assent.''
Senator Hays: We have had that happen in Alberta.
Mr. McEvoy: It has happened elsewhere.
Senator Hays: They have the power to do that.
Mr. McEvoy: Yes, they do, but it is a constitutional crisis because it is contrary to the convention. Now you have the opportunity for the office of the Governor General to be affected because the office is to appoint persons to a particular office, with particular attributes, and that is now being changed. Instead of an age 75 limit, it is an appointment to an eight-year term. That small element will impact on the office of Governor General.
Senator Joyal: Mr. McEvoy, at page 3 your brief you refer to the textual interpretation of section 44, but is it not right that even a textual reading of section 44 would be subject to the preamble of the Constitution, which provides a Constitution similar in principle to the one of the U.K.? The court, in the Senate Reference, clearly referred to the essential elements of the House of Lords in terms of its nature, role and function. It seems to me that even a textual interpretation is open to an interpretation limited by the very principle of the preamble.
Mr. McEvoy: It depends. As always, you are very accurate, Senator Joyal, in going beyond the mere text. I was using the textual context solely in relation to Part V of the Constitution Act, 1982. Of course, you are referring to the preamble of the Constitution Act, 1867. One could very well look at the Constitution Act, 1982, as a complete document, obviously informed by the Constitution Act, 1867. When you look solely at Part V, because it is independent and different from the rest of the Constitution Act, 1982, you simply get that Venn diagram of the Senate and the smaller circle of the method of selection and the powers of the Senate. That is what I was referring to.
Senator Joyal: The second approach is the historical one that you have expanded upon quite convincingly. I was a witness to the answers provided by the Honourable Jake Epp, who was a very active member on the Progressive Conservative side of the committee, and I submit to you that other actors of the period have expressed views. You have quoted Mr. Roger Tassé, the then Minister of Justice, but there was also Mr. Barry Strayer, who is now a half-retired judge of the Federal Court. He published a book entitled The Canadian Constitution and the Courts. At page 329 of the third edition, he wrote:
The Supreme Court, however, construed Parliament's amendment power over the Senate to be limited to what it called "housekeeping'' matters but not to include changes that would alter the "fundamental features'' of the Senate.
Barry Strayer, one the key architects in drafting the text at that time, comes to the same conclusion that you have outlined regarding the statement made by Mr. Chrétien.
I can tell you that before former Senator Harry Hays and I opened each meeting at 9:30, we had a meeting at eight o'clock to review with the Minister of Justice and his associate the various points of discussion of the morning. We wanted to know exactly where we were going. There is no doubt that the answers given by the actors when the debate took place were the result of that internal discussion, of which there are no minutes. It flows from what comes in public.
What comes in public has been stated by Mr. James Ross Hurley. You certainly know the name. He was a former constitutional expert with the Privy Council. He published a book in 1996 entitled Amending Canada's Constitution. At page 82, there is a chapter entitled "The Retirement Age of Senators.'' He was one of the actors as well. He wrote:
It would probably be constitutional for Parliament to further reduce the retirement age to 70 by a federal statute. However, there is a possibility the courts might find that an attempt to reduce dramatically the retirement age to, say, 55 might constitute a change to an essential character and be beyond the unilateral power of Parliament.
In other words, the reflections of two of the other actors of the day bear in the same direction as the quotes that you yourself have brought to our attention this morning in reviving the memory of those morning debates when we were discussing section 44.
Mr. McEvoy: I am pleased to have returned that memory to you, and doubtless an affidavit from you as to your discussions would be very helpful to the Supreme Court.
However, one of the problems of Canadian constitutional law is to know who the framers are. Obviously, Mr. Strayer is one — a very significant individual in terms of the presentations to your committee. Mr. Tassé is one, and also Mr. Chrétien, speaking on behalf of the government. Are the framers actually the premiers, in their subsequent discussions? What was their understanding?
The framers really are a fictional idea and they encompass many people, but the court will look at the general tendencies. What was understood at that time? Was it understood that the Senate amendment in section 44 was intended to reflect the Upper House Reference or not? There is no clear answer in my mind, because I find Mr. Chrétien and Mr. Tassé saying contrary things; but I appreciate very much your reference to other key actors who are saying exactly what Mr. Chrétien said.
Senator Joyal: Mr. Desserud, you make a very subtle point. Section 42 says, and I insist on the words: "An amendment to the Constitution of Canada in relation to . . . the powers of the Senate and the method of selecting Senators.'' Therefore, it is an amendment that has a relationship.
If I may quote again, Mr. Hurley, in the same chapter, states the following:
An attempt to replace the fixed age for retirement with a fixed mandate of, let us say, ten years might constitute a change in the method of selecting senators.
I wrestled with that idea too. I thought it was an argument when I prepared my notes to try to understand the bill. How can you expand on the concept that at a point in time, changing the tenure affects the method of selection?
Mr. Desserud: It does not have to change it dramatically, drastically or catastrophically; it just has to affect it. In fact, section 42 does not even say "change,'' as you pointed out. It says "in relation''; there has to be a connection of some sort.
As a consequence, it could take the principle and make it a different structure that brought forward the same effect and it would still be in relation to that method. I do not think you have to show that the eight-year term makes a senator a worse senator or a better senator than the current system in order to say that it does change how that senator operates in his or her capacity in the Senate. Nor are the criteria going into choosing that senator, whether it affects the purpose of the Senate or the effectiveness of it, as important as the fact that it does have a connection to that procedure. I think that is all that section 42 asks us consider. It is saying that we do not always know what the consequences will be; we do not know what the effect will be of having eight-year terms.
Senator Andreychuk: I rather like Senator Hays' question: What about pith and substance?
Putting together what Senator Joyal said with Senator Hays' comment, I am struggling with the fact that there is not one model of senator. As I recall, the previous reference said that if everyone were reduced to a one-year term, the Senate would be dramatically changed.
Certainly, going from life terms to 75 years was a dramatic change for the Senate. We were left with people between the ages of 30 and 75. Leaving aside that maybe eight years is too short, and not picking a figure but simply considering a fixed term — a reasonable fixed term where someone can function and do their job — I do not understand how it changes the fundamental character of the Senate.
In fact, now prime ministers can recommend people at the age of 74.5. Conceivably, they could also in the next 10 appointments bring in everyone at age 30. That would more dramatically change the Senate than bringing in into eight- year terms or 12- or 15-year terms. Setting aside the issue of renewal and reappointment, because I think that is a separate issue, if we were all here for 15 years, would the Senate change much? It seems reasonable that it would not, that more fundamental changes can come by putting in all young people at age 30 or putting everyone in at age 74, which is the entitlement of the Prime Minister today.
Therefore, this bill, which is effectively the tenure, is within what is happening now. It just brings a little more order to it — more reasonableness, more fairness than exists now — but it is not really changing what we are doing or how we will do it.
I am trying to understand this from a common sense point of view, not a legal one. Then I would put it in the legal context.
Mr. McEvoy: There are two points on the pith and substance question. With great respect for those who take a different view, it seems to me that to look solely at real or imagined effects on a particular office is to straitjacket any constitutional reform always toward a unanimity rule, or the general amending formula. That cannot be the intention; that is why you have the difference.
The pith and substance approach to federalism is that the bill has to be in relation to a particular constitutional subject matter — classed as subject under sections 91 and 92 — and the effects are irrelevant. It has to be the true pith and substance. I would imagine the court would take the same approach here.
However, I disagree with the view that a person appointed at 74.5 years of age will have the same approach to their responsibilities as someone who is age 50. The person who is 50 years old can see that they will be there for 25 years. That person can say, " I have a commitment to this place; and I will undertake my responsibilities, as all senators do, in relation to revision of legislation. I have these goals in social matters.''
Someone who is age 74 or 72 will likely say, "Perhaps I do not have the time to undertake these efforts. I have a short term; I have to do what I can.'' They will not have that same commitment and, as well, they will not get a pension. They will not have that entitlement. They will be have to be someone who has the means to disrupt their life to come to Ottawa to serve the people of Canada responsibly. That is of a different order; it is not the same.
Senator Andreychuk: That is not what I am getting at. I am saying that today what you described could happen. The 74-year-old person can come in knowing they have one year, and someone else can come in at age 50. That range is there for the way the Senate operates, and yet we all have the same rules. I value the 74-year-old appointee as much as the 50-year-old one and I respect the Prime Minister's right to do that.
I know sometimes there are internal effects of doing that, but I believe those are contemplated and are part of our culture. I am saying all of that happens and all these people approach their jobs differently. We always say how unique we are; you do your job differently than I do and we try not to comment on each other's variances.
This bill, by putting in a term, is still within that flux; it is not adding to it or deleting from it, it is simply within that. It has some value within that to bring some ability for the whole Senate to continue to function on the three essential points they are entitled to.
Mr. McEvoy: There is a difference between practice and law. Certainly, it is open to the Prime Minister to appoint people who are 74.5 to the Senate and to always do so; that could be the constitutional convention and that would then inform how the Constitution is interpreted. However, the Constitution itself in law, as well as the legal interpretation, is much different. To change to an eight-year term is significantly different and of significance to the provinces in terms of the functioning of the Senate.
Senator Andreychuk: With respect to region, how would a person who comes in for eight years affect the province differently than someone who comes in on the existing formula? They accept the oath of office to do the job and live within the rules and procedures.
Mr. Desserud: They could do a better job, and doing a better job still means that the relationship has been affected. That is my point.
Senator Andreychuk: Are you saying we would be better off?
Mr. Desserud: Yes, you could be.
I am intrigued by your description of the unique mix of the Senate. That is an interesting question as well because it might be a fundamental characteristic of the Senate that it has a unique mix. Maybe that unique mix is good for the Senate, and maybe the unique mix is not good for the Senate, but it is a characteristic of the Senate that would probably be changed under this amendment. It would probably be less of a mix than we have now.
These are interesting questions about the extent to which this change will be positive or negative. My question is how we make this change, if we make it, and what kind of discussion we will have about it.
My point is that I do not think you should do it under section 44, rather under section 42, because that brings in the people that the Constitution states have a say in this, which happens to be seven of the provinces.
Senator Andreychuk: I know we do not have time for another question, but I put this out rhetorically: What then would be under section 44?
The Chairman: Our witnesses from London are ready for us. Before I say thank you, I want to put one question to Professor McEvoy, if I may.
Your brief set out six approaches to interpretation, and it was excellent. The textual approach favours the constitutionality of Bill S-4 where others, such as the historical approach, do not.
My question is a legal one. How would the court go about weighing these two approaches? Which would they favour? Which legal principles apply?
Mr. McEvoy: The Supreme Court has answered that question and I think have provided good direction in the Upper House Reference. It used a structural approach and historical understanding.
The Chairman: Thank you. Professors, you have been excellent. I regret we do not have more time for you because a number of senators did not have a chance to ask any questions at all. Your testimony has been provocative, informative and very useful. For that we thank you very much.
I would now like to extend a warm welcome to our guests from overseas. Welcome to the Standing Senate Committee on Legal and Constitutional Affairs. This committee has had the benefit of the work completed by the Special Senate Committee on Senate Reform, extensive debate in the Senate chamber and now the initiatives that have been introduced in the British Parliament. I join honourable senators on this committee in welcoming our special guests from the United Kingdom, who will hopefully enlighten us with their perspectives on the historic changes being proposed.
I would like to inform our friends in London that we have present today Senator Hays, Senator Carstairs, Senator Milne, who is the vice-chairman of this committee, Senator Bryden, Senator Joyal, Senator Rivest, Senator Andreychuk, Senator Di Nino and Senator Fraser.
For our second panel this morning, I am pleased to welcome Dr. Meg Russell, who heads up the Constitution Unit at University College London. Dr. Russell has written a book and various papers on bicameralism in different countries, including the Canadian Senate, to inform debate on Lords reform. She was also a consultant to the Royal Commission on House of Lords reform in 1999, and she worked for Robin Cook when he was leader in the House of Commons and responsible for policy on Lords and Commons reform.
Also with us today is Dr. Gerard Horgan, who is currently a visiting professor at the International Study Centre for Queen's University in the United Kingdom. He specializes in Canadian politics and comparative politics with an emphasis on comparative federalism, British devolution and parliamentary government.
Meg Russell, Senior Research Fellow, University College London, as an individual: Thank you. I am very flattered to be invited to give evidence to the committee, and I hope what I say will be useful to you.
To open, I was intending to talk briefly about three things. I was planning on telling you a bit about me, but it seems you know quite a lot already. Then I was intending to say a few words about the state of the British reform debate and then a little bit about how the House of Lords has already been changed by the reform that took place in 1999, which I think may be useful to Canadian debates.
With respect to me, I do not think I need to add much, except to correct you. I do not actually head up the Constitution Unit. It is headed by Professor Robert Hazell, and I would not want to take away his glory.
Since ceasing to work for Robin Cook in 2003, I have actually been studying the House of Lords as it is now, and I have a few words to say about that. I will start by saying a few things about where we are in Britain in terms of the reform debate. I am not sure how familiar you will be with that. I will be very brief.
The Labour Party came to power in 1997 on a manifesto commitment to reform the House of Lords, which was at the time dominated by hereditary peers, along with life peers. A reform went through in 1999 that removed the vast majority of the hereditary peers, leaving a chamber largely made up of life peers. A second stage of reform was promised following the removal of the hereditary peers. By now we have four government white papers and a Royal commission. Two joint parliamentary committees have reported on the subject, as has a House of Commons committee. There have been reports from eminent parliamentarians from all parties and others from all sorts of outside groups, and despite all of that we have seen no action yet.
You may also know that we have had votes twice in the House of Commons and the House of Lords on a range of options for the composition of a reformed chamber. It is clear that, with all of this activity, reform in the U.K. is proving very difficult to agree upon. I am happy to talk about some of the reasons for that and the issues of contention.
You probably also know that, despite the fact that in 2003 the House of Commons rejected every proposal in front of it for different composition possibilities, only a couple of weeks ago the House of Commons voted by a fairly large majority in favour of an all-elected house to replace the House of Lords and also supported the option of an 80 per cent elected, 20 per cent appointed house. The House of Lords subsequently rejected all elected options and proposed an all-appointed house.
It looks like reform may be about to happen on the surface in Britain, given the results of the votes in the House of Commons, but there is rather more to the House of Commons votes than meets the eye, and I am happy to explain why. I still personally think that the most likely thing to happen is no further change in the short to medium term.
I do follow reform debates closely. I am interested in prospects for further reform, but I have become increasingly interested in the reform that already happened to the house in 1999 and the impact that that is having on its behaviour. In 1999, the vast majority of hereditary peers were removed from the chamber, and since that time the House of Lords has become significantly more assertive in its dealings with government. The government has by now, since 1999, been defeated in the House of Lords more than 350 times. Many of these defeats have been on quite significant matters and many have gone on to be accepted by the government.
We have surveyed members of the House of Lords, and indeed the House of Commons, and have found that, since the 1999 reform, 80 per cent of peers say that they believe the chamber is more legitimate than it was, and three quarters of Labour, that is government, MPs in the House of Commons agree with them.
Public attitudes to the chamber also seem to be changing. Two out of three people in a public opinion poll survey we ran believed that it was justified for the House of Lords to block government policy if it was unpopular. It seems that the House of Lords reform in 1999 has had some important results.
Why does the chamber consider itself more legitimate? Obviously the removal of the hereditary peers, who were seen as anachronistic, having inherited their places in Parliament, is part of it, but more important is the change in party balance that resulted from the removal of those members. The hereditary peers were overwhelmingly Conservative. Their removal leaves a chamber that is far more politically balanced than before. Where no party has an overall majority, the balance of power is held by the centre party and independent members. Members are, therefore, able to claim that they are more representative. In party balance, they are in fact more representative than members of the House of Commons, if you relate the balance in the chamber to general election votes. They therefore believe that it is legitimate to challenge some of the conventions of restraint that have previously governed the relationship between the House of Commons and the House of Lords.
Recent developments in Britain demonstrate that the general assumption that unelected chambers are weak and unpopular and that elected chambers are more likely to be strong and have public support is questionable. It is possible to strengthen an unelected house without introducing elections.
I conclude from changes in the U.K. that more important than whether elected or appointed is the issue of party balance in terms of how strong the chamber will feel and how legitimate. That may have resonance in Canada from the period 1984 to 1990 when the government had no majority in the Senate.
In terms of debate on future reform in the U.K., there are other issues aside from the elected versus appointed issue. We have become rather stuck on that issue, but there are other important issues such as the length of terms that members should serve and whether those terms are renewable, which is central to your inquiry. I will be happy to speak about those aspects inasmuch as they relate to the U.K. debate.
Gerard Horgan, Professor, International Study Centre, Herstmonceux Castle, as an individual: I would like to thank you for the invitation to appear here. I hope you will find my remarks helpful. I expect the invitation to appear before you is related to the brief I presented to the Special Committee on Senate Reform that considered Bill S-4 last autumn. I provided your committee clerk with a minimally revised copy of that document. However, it will require translation, so it may not be immediately available to you; thus, in my initial remarks, I will summarize the contents of that brief.
There are two other areas I wish to touch on, both related to developments that have occurred since I filed my brief last September. First, I would like to make a few remarks related to the latest white paper on House of Lords reform here in the U.K., which was released only in February 2007. Second, we now have the benefit of the Canadian government's thinking on consultative elections for the Senate, as embodied in Bill C-43. As the absence of this information caused much comment by both witnesses and committee members last autumn, it seems to me appropriate that we should now use the advantage we have and think a bit about how Senate tenure relates to the contents of Bill C-43.
The thrust of my written brief is that I support the principle of Bill S-4 as the first step in an incremental process of Senate reform. However, relying on some comparative data, I suggest that the tenure of senators would be better set at approximately three parliamentary terms, or close to 12 years, rather than the eight years set out by Bill S-4.
I refer to the cases of the two countries to which Canada is most often compared, rightly or wrongly: the U.K. and the United States. In the U.K. case, I refer primarily to the Royal Commission on Reform of the House of Lords, or the Wakeham commission, which reported in 2000. The commission's aspirations for the membership of the House of Lords in many instances paralleled those expressed for the Canadian Senate. For instance, the commission took the view that long tenure would "encourage members to be independent-minded and take a long-term view; discourage the politically ambitious from seeking a place in the second chamber; contribute to a less partisan style of debate; and allow members time to absorb the distinctive ethos of the second chamber and to learn how to contribute most effectively to its proceedings.''
Given those aspirations, and having taken into account the possible disadvantages of long tenure, the commission concluded that members should serve for the equivalent of three electoral cycles, a term of 12 to 15 years. In addition, the commission noted that it did consider a term based on two electoral cycles but that it "concluded that terms of this length would be too short for the purposes of creating the kind of second chamber which we envisage.''
I then prefaced my remarks on the United States by setting out two models of representation, that of the delegate and that of the trustee. I noted that the United States' system of representation adheres more closely, both culturally and institutionally, to the delegate model, and that adherence to that model is compatible with relatively short legislative terms. However, even given the commitment to that model of representation, the founding fathers of the United States found it prudent to establish a second, more deliberative chamber with a term of office three times that of the lower chamber.
The system of representation institutionalized in both the U.K. and Canada adheres more closely to the trustee model. While party discipline has impaired the operation of this model of representation in the Commons in both countries, the upper chambers of each are at least somewhat less susceptible to this influence. Thus, in political terms, it would be entirely appropriate to argue that the maintenance of a significantly longer tenure for the Senate than for the Commons is at the very least consistent with the preservation of "a Constitution similar in Principle to that of the United Kingdom.''
The second area I would like to touch on is the most recent white paper on Lords reform released last month. An earlier white paper in 2001 had cast doubts on the three electoral cycle term. However, in the most recent white paper, the three electoral cycle term has been endorsed by the U.K. government. While the paper provides a series of options for the percentage of Lords to be elected, "All of the options discussed here are predicated on the idea that elections will be staggered, specifically, that a third of the elected element will be replaced at an election, and will sit for a term of three elections. This is to help ensure that the principle of continuity is not lost.''
Indeed, the option now proposed by the U.K. government is that members of the Lords, whether elected or appointed, should sit for 15 years, which is the equivalent of three electoral cycles of the European Parliament, with one third of the upper house being replaced every five years. This 15-year term would be non-renewable.
The third area I would like to turn to briefly is the possible interaction of the content of Bill C-43 with that of Bill S- 4. As I understand the language of Bill C-43, the number of Senate seats to be filled at any consultative election is unspecified. The bill merely states that the Governor-in-Council will specify "the number of places in the Senate in respect of which electors are to be consulted.'' This, then, leaves open the possibility of staggered elections in the Canadian case as well. That is, one of the objections to a senatorial term longer than two electoral cycles may be that this would leave too long a gap between Senate elections in a particular province. However, this legislation appears to leave open the possibility of selecting only a portion of a province's contingent of senators at any given consultative election so that voters would be selecting some of the provinces' senators at, for instance, each federal general election.
In summary, then, first, the principled argument for, at minimum, a three-to-one ratio of Lords to Commons terms was made by the Wakeham commission. Second, although the last word on Lords reform is a long way from being written, the force of the argument for a term of significant length for the U.K. upper chamber has been sufficient to gain government support for a 15-year term. Third, given the possibility of selecting only a portion of provincial senatorial contingents at each consultative election, one of the possible objections to a significant term for senators is obviated.
To close, I would just say that what I have hoped to do with my submissions and remarks is to provide honourable senators with evidence that there are reasoned arguments in favour of significantly longer terms for upper chambers. However, and I say this not out of a motivation to flatter but because I believe it is true, on these issues, you, senators, are the true experts. If I as a researcher wanted to know how long it takes a new member to understand the ethos of the Senate, I would come and ask you. In the case of this legislation, it is as important that you look to your own experience as it is that you hear from people like me.
The Chairman: Thank you very much for an excellent paper.
Senator Milne: Ms. Russell, I am interested in the fact that you agree with me that reform of the House of Lords will probably not happen too quickly. You spoke about terms and you would like to say something about them, so I am asking you to give us your opinion on the length of tenure.
Ms. Russell: Regarding the recommendations of the various groups in the U.K, there is not a great deal to add to what Professor Horgan has said. We have had several reports supporting longer terms. We are in a rather different position from you. You have already moved away from life tenure and toward retirement at age 75. We have not got that far. For us, any move to less than life is quite a significant one.
In terms of maintaining the ethos and the independence and much of what people value about the House of Lords, many people have argued that long term lengths are important. As Professor Horgan has said, the royal commission recommended 15 years. The government has also recently recommended 15 years. Other groups have recommended 12 to 15 years. For us it is difficult, because we do not have fixed terms for the House of Commons. If you link House of Lords elections to House of Commons elections, the terms would not be fixed, and they would be more like 12 years on average, but there has been a great deal of support for long terms.
Having said that, I would say that this element of the package has not really been scrutinized closely by the public and by M.P.s because we have got rather stuck on this single question of how many elected and how many appointed. If we get to the point of having a bill introduced, which is possible in the next year or so, people will then start to focus on the detail and the questions of length of term, size of constituencies, type of electoral system, et cetera, but it has not been scrutinized yet.
I believe that long terms of office would be important for maintaining the elements of the ethos of the House of Lords that are respected in the U.K. Certainly, when I was working for government, the white paper produced in 2001 floated the possibility of as little as a five-year term or maybe a 10-year term. My advice at the time, based on what I had seen from other countries and of the House of Lords, was very much against the shorter end of those options.
Senator Milne: I always say that I serve for a term of either life or 75 years, whichever comes first.
Professor Horgan, you spoke of perhaps coming to the Canadian Senate and asking us how long we should be serving. Ever since I came here, I have always supported a term of 15 years. It takes five years to learn the ethos and how this Senate of ours works; then five years to really contribute; and five years to be the collective memory of the Senate. I agree with the 15-year term that was proposed in the House of Commons by the Wakeham commission and that was defeated in the House of Lords.
Mr. Horgan: I was quite serious about that. The research seems to indicate that people believe that it takes a considerable amount of time to get integrated into such an institution. That is why I raise that point. I am hesitant to give my own recommendation. It is just that I wanted to show that there were other institutions that were looking at this same question and that had similar concerns.
Ms. Russell: Perhaps I could add that in terms of overseas experience, two things potentially are important here — the terms of office and whether the chamber is renewed in part or all at once. Overseas experience is very supportive of renewal in part; half at a time or a third at a time is common internationally. This is important because it does maintain a continuity of membership. The chamber is never entirely dissolved. It is never made up of a completely new group of members who do not have, as you say, an institutional memory. It would be a great shame to lose that institutional memory in the House of Lords in Great Britain. That has been highly appreciated.
Senator Milne: Dr. Russell, this bill is silent on renewal of terms. There is a great deal of concern here about whether the terms should be renewed and whether or not the independence of senators would be affected, whether they would spend the first four years of their eight-year term saying "Thank you'' to the Prime Minister and the next four years saying "Please reappoint me.''
Ms. Russell: I would be concerned about that. I would not just be concerned about whether they want to say thank you to the Prime Minister, but it depends how your appointment process works. If you move to election, that is different. They will have to say thank you to someone, either the Prime Minister, the leader of their own party, their constituents, or someone else.
The current proposal in the U.K. is for 15-year terms with no possibility of re-election or reappointment. The Wakeham commission recommended 15-year terms where there could be reappointment but not re-election. That report was based on there being an independent appointments commission, ending Prime Ministerial patronage completely and having a more trusted system that could make its judgments not in a partisan way. We have swung back and forth on the issue of renewability, and there have been other proposals that terms should be renewable; the question of non-renewability is controversial amongst MPs.
I do not know whether this has been considered in the Canadian debate, but both the Wakeham report and the current government white paper propose that once you have left the upper house, you should not be permitted to stand for the House of Commons. This is also considered to be quite important for maintaining independence, because we do not want to get into a situation where, like Ireland, people come into the Senate and use it as a training ground to become MPs. That is, they have their eyes on the next prize. We do not want that to happen in the U.K. These proposals have been that people should have to wait for a period of five or 10 years before being allowed to run to the House of Commons.
Senator Milne: I do not want to take too much time, Mr. Chairman, so I will cede to the next questioner.
The Chairman: This is a videoconference. We have less than 40 minutes and six senators to ask questions. I would ask both the senators and the witnesses to keep that in mind.
Senator Di Nino: My supplementary question concerns the comment that you made about a training ground to be an elected member of the House. What about vice versa? Do you think that those who have been elected to and have served in the House Commons should be candidates for the Senate?
Ms. Russell: It is extremely common in Britain for people to make the transition from the House of Commons to the House of Lords. Some people can be critical of that, but it does ensure that there are many experienced and well- respected politicians in our upper house. As you know, we have a tradition of appointing former Prime Ministers, former Chancellors of the Exchequer, foreign secretaries, and so on. That adds to the respect that people have for the House of Lords, despite the fact that it is not elected.
Senator Andreychuk: Perhaps my questions are for Ms. Russell, but certainly for both of you, if possible.
It seems to me that the debate in the United Kingdom was around the hereditary aspect, life peerage and finding a way out of that system. That must have been a seismic shift, at least from the people I have talked to in the U.K. Life seemed to be a lot better, so I understand why the reform is stalled there. You can have a total package of reforms that is so significant that it is hard to digest, both for the public and for the institutions; or you can do it incrementally, so that you know what the effects are.
Was the debate about the incremental approach a way of doing it or was it an attempt by the government to put in a whole package, but they could not succeed with that so they took what they thought was palatable?
Ms. Russell: We do have a tradition of incremental reform here. Life peerages were introduced in 1958. It used to be a wholly hereditary house, with a few exceptions because we have bishops and some other strange things. The Life Peerages Act was passed and the House of Lords became dominated by the life peers. The 1999 act has removed most of the hereditary peers and now it is almost overwhelmingly a life house.
There were concerns in 1999, when the government said they would introduce two-stage reforms starting with the removal of the hereditariness aspect, that the Labour government would remove them and not go along with further reform. They were interested in removing the Conservative majority. The Conservatives were critical of them for that and tried to tie them into a two-stage reform. They tried to say that the whole package needed to be done at once and that there was a danger that if we got the first stage, the second stage would never happen. That has proved to be correct, but at the same time the expectation that the House would be more malleable as a result of reform has proved to be absolutely wrong. By removing a large number of opposition members, the House has gained confidence and strength to challenge the government. In a sense, it is the government that wants to move things on because it is frustrated by being blocked by the House of Lords. It is a complex situation.
Mr. Horgan: I will add to that on incrementalism. You mentioned academics who talk about this or those who appeared before the special committee. In an ideal world, the vast majority would like a comprehensive, methodical, systematic entire package. However, we all know that is not possible. The advantage of what is being done with the incremental reform, as I see it, is that it is introducing instability into the system. Right now we have what most people would think of as a stable but suboptimal system. The introduction of these incremental reforms will perhaps cause instability and drive the process forward.
Ms. Russell: I have become a supporter of instrumentalism. You say the 1999 reform has been important. I say that too, but most people in Britain have not realized that yet. We have not fully recognized the consequences of that reform. It might be wise to tread in small steps rather than going for major reform, in order to see the benefits of the reform that has happened and move on gradually from there. That is one way of ensuring that we maintain continuity, which people think is important.
Senator Andreychuk: Ms. Russell, you have talked about the balance and you have explained legitimacy. Is it legitimacy in the eyes of the public or in the people's will in the legislative arm?
Ms. Russell: Legitimacy is a contested concept. There is a whole academic literature on what it means. Some people think it is possible to have some kind of objective measure of legitimacy; others believe that effectively what matters is perceived legitimacy, that is, how legitimate people think something is. This is a debate with respect to dictatorial regimes, and so on. If people think it is legitimate can it be legitimate if, on objective measures, it seems to be questionable? I think perceived legitimacy is important. That is all you can learn, in any case, from asking people questions in surveys. I would not claim necessarily that the House of Lords is more legitimate, but members of the House of Lords think it is more legitimate, members of the House of Commons think it is more legitimate and members of the public think it is more legitimate. Maybe it is more legitimate, but to say it is more legitimate is a bold statement.
Senator Hays: Thank you for your willingness to assist us. My question is primarily to Ms. Russell, but hopefully Professor Horgan will have a comment. It touches on incremental reform and where to start. It has not been mentioned, but the incremental reform of 1911 and 1949 in the Parliament Act seems to have set the stage for a more assertive House of Lords. I do not know whether you agree, but as you all know, the Canadian Senate has the same powers as the House of Lords prior to 1911. It is difficult sometimes to know how to use that power. If we had a proper deadlock-breaking mechanism, which yours may not be but at least you have, it would encourage more assertiveness. Do you think that is the case with the House of Lords?
Ms. Russell: You are quite right that the 1911 and 1949 acts are important, too. Having been advised to keep my answers brief, I chose to go back only to 1958. I am not a great historian of the early part of the 20th century, but I think that you may well be right that there are some perversities here. By taking away formal power, you can give de facto power. By taking away formal opposition, you can give de facto strength to the people who remain, even though the opposition looks less strong.
In Britain, we have been focusing on compositional issues. Initially the government tried to keep away from questions of powers. I think that when it is difficult to agree on composition, if you start to get into arguments about the powers of the chamber as well, you multiply the difficulty facing those who want reform.
We have had discussions, and there has been a joint committee of the two Houses looking at the conventions governing the relationship between the House of Commons and the House of Lords, and looking at whether the House of Lords really is pushing the boundaries of what is acceptable in the bicameral system by seeking to use the powers that it has.
The resolution of that committee was that introducing election would be likely to push the boundaries even further. The government, despite that recommendation, has sought to stick with the powers the House of Lords has now because it appreciates that if it tries to put together a package that includes powers as well as composition, it will be virtually impossible to agree.
I am not sure if that answers your question. I am straying a little.
Senator Hays: It was very helpful. Do you have a comment, Dr. Horgan?
Mr. Horgan: I would go back to what I said with regard to Bill C-43 as well. The idea is that we cannot predict entirely what the effects will be, but, again, if we believe that the present situation needs to be changed then we have to be willing, perhaps, to take some risks and see what happens. If it creates problems, instability and public outcry for more serious changes, then maybe that is not such a bad thing.
Senator Hays: While the discussion here is not fully evolved, most seem to believe that an elected second chamber should not reflect too closely the first chamber, the lower house, and the idea is that we should follow the Australian model of a single transferable vote type of proportional representation, which would require multi-member constituencies. What is the status of that issue in the U.K.?
Ms. Russell: There has been pretty much consensus that if we have election to a reformed House of Lords, it should be based on some kind of proportional electoral system using large constituencies, probably the regions that we use for elections to the European Parliament, which really are quite large. For example, Scotland and Wales are each one region for those elections.
There is a great deal of concern that if we move to elections the two Houses should not become too similar, and obviously, like you, we still use a majoritarian system for the House of Commons and so a proportional system seems the obvious choice. I think people increasingly appreciate the value of having a second chamber in which no party can easily have a majority, in which you have to build a wider coalition of support to get things through and where you do not face the danger of having one party in government in the lower house and an opposing party in a majority in the upper house, which would be likely to lead to some kind of gridlock.
However, we do have concerns here. One of the concerns with the proposal for introducing elections is that people might actually think that a proportionally elected house is more legitimate than a majoritarian house, that is that the upper house could be seen as more legitimate than the House of Commons. I do not personally believe that that needs to be the case, and I think that the Australian example is quite a good system actually, but there is much concern about that in debates in the U.K. That is one thing slowing up the moves to election.
Senator Di Nino: I have two quick questions to both our guests, if they wish to comment. Specifically on the 15-year term, one of the concerns that has been expressed is that a 15-year term could very well interrupt one's career, making it difficult to begin anew afterwards. Could that mean that some capable candidates would not consider public service if there were 15-year terms?
Mr. Horgan: There is legitimate concern about that. However, I would not expect to see people entering into the Senate early in their careers; we would still probably expect people to be entering the Senate later in their careers. As well, in relation to what Ms. Russell was saying earlier about the movement between Commons and Senate, perhaps we could see senior provincial politicians who saw the Senate as a move later in their career. I would not see that as a major difficulty from my point of view.
Ms. Russell: When considering that people are prepared to stand for the House of Commons — I can only speak for our country, but your country is similar — on the basis of a four-year or five-year term, they take their risks. Many in fact end up serving more like 15 or 20 or more years, because many of the constituencies are relatively safe for the two main parties in this country.
This question is linked to the issue of renewability or non-renewability. If you say 15 years and no more, then that is more of an obstacle than if you say 15 years and perhaps another 15 years after that. However, spells of 15 years very soon add up to quite a long time.
Senator Di Nino: Regarding an election through proportional representation, a concern I have heard expressed is the lack of democracy in the preparation of lists by parties in choosing those who would be designated as the members under the proportional representation system. First, what is the practice in those jurisdictions at which you have looked? Second, what is your opinion generally?
Mr. Horgan: I will start off with Australia. They use a single transferable vote system, which is what is proposed in Bill C-43. The single transferable vote system in particular is not a proportional representation list system, so a voter can choose to cross parties even on one ballot. The main parties are still choosing who is on the ballot, but you do not have to choose an entire list as set by a party. That is a particular advantage of the single transferable vote, which is that it allows people to choose perhaps a major party for their first preference and go for minor parties for subsequent preferences on the ballot.
Ms. Russell: Professor Horgan is quite right. We have had a lot of debate about different kinds of list systems here and there is much opposition to the idea of closed lists as they are generally known, where the parties decide the order and the electorate has no say over that. The government's most recent white paper suggests that there would be some kind of preference option for the voter, maybe just to upset a little bit the ordering set by the parties through what is generally called semi-open lists.
Yes, it is widely noted in the academic literature on electoral systems that parties gain much control over selection in list systems, but then parties gain a lot of control over selection when parties are putting people up for appointments to the House of Lords, so we have patronage of one kind that maybe we replace with patronage of another kind. In fact, the discussion here is about trying to move away from patronage, but it is hard to see list systems as being worse than what we have now.
Senator Joyal: Ms. Russell, I want to reiterate to you how much I appreciated your contribution to the seminar that the Constitution Unit of University College London organized in 2000 after the publication of the Wakeham report and your intervention at that time, especially your continuous interest in publication, which are very useful for us to understand the evolution.
My first question would be in relation to the object of your interest in those days, which is the evaluation of the changes brought, mainly from the removal of the hereditary peer to the life peer. One of the key elements to the legitimacy that has been improved for a part, according to your own evaluation, would certainly be credited to the fact that there is now an appointments commission. You did not expand on that in your presentation, but it seems to me that it is a key factor.
If you remove the right of birth to sit in the House of Lords by a patronage appointment, people would probably have maintained a cynical perception of the new life peers, but the fact that there was an appointments commission, that it could be statutory and there would be criteria for the appointments, would certainly enhance the legitimacy if, in my opinion, the working of the appointments commission working were improved. Could you give us an evaluation of, first, the importance of the appointments commission and, second, the criteria and operation of it that could bring additional legitimacy to an appointed house?
Ms. Russell: First, thank you for the remarks about my work. It is very nice to see that my work reaches as far as Canada and is read by such eminent audiences. That is satisfying.
With respect to the appointments commission, you are right. An appointments commission was established in 2000, at the same time that the royal commission reported just after the hereditary peers had been removed from the chamber. The appointments commission has two functions. The first is to pick the independent members who sit in the house. Previously, the Prime Minister picked the independent members.
For those who are not familiar with the House of Lords, it is a very large chamber, about 700 members, some 200 Labour, 200 Conservative, and around 200 independent members, which is unique in parliamentary chambers worldwide. We then have the members of the minor parties, et cetera, to make up the other 100. The Prime Minister gave up his right to pick the independent members and gave that to the commission. The Prime Minister still continues to appoint the political members, although they have to be passed to the appointments commission for its approval on the basis of propriety, in terms of whether there is anything improper happening with people being offered peerages.
In fact, we are in the middle of a long-running argument here about cash for peerages, because it is known that people were recommended for peerages who had made major donations to the parties, and the appointments commission raised questions about some of those individuals.
The next obvious incremental reform for the U.K., and some people argue for this, would be for the political appointments also to be handed over to the independent appointments commission. The Wakeham commission argued that all appointments should be made by an appointments commission. The government's white paper has recently suggested that if there are political appointees still in the chamber, then they should be chosen by the appointments commission. With respect to criteria, the appointments commission would be looking to ensure that there was gender balance, a fair ethnic balance, a fair balance of people from different parts of the country, and maybe looking a bit at the expertise of members. For example, have we too many lawyers or not enough people who come from rural areas? They would look at those questions.
This has rather unfortunately gone off the agenda now because we had this vote in the House of Commons for an all-elected house, which I think is unlikely to lead to action, but which makes it difficult to introduce changes to strengthen the appointment process when the House of Commons has spoken and said it wants election. This would be a natural next step, and I think you are quite right to flag that it is not just appointments, it is the kind of appointment you have that is very important and the level of trust that people have in that process.
Senator Joyal: As you say, I think that the appointment commission was an important step in the right direction, as much as I can judge, because it removes the secrecy of appointments and makes them public, which calls upon the input of the public. It calls upon the input of the political parties as well, of course. I do not think they should be barred from putting forward candidates, but least there are criteria, and there is someone who has a value judgment to make on the overall composition of the chamber. That is an important element if you are to create a chamber that has the capacity to exercise the review of legislation, because when you exercise the review of legislation, you do not have the same approach or same point of view, as Professor Horgan said, as if you were a delegate there to represent the views of someone that gives you a short-term mandate. I think it is in the right direction, but do you see any kind of capacity in Britain in the years to come to improve the status of the commission?
Ms. Russell: As I say, it has been made difficult by recent decisions. You are right that the appointments commission process is more open than the old process. The appointments commission has actually advertised, and this was a big thing in the U.K. when it happened the first time, for people to apply to be members of the House of Lords and then the commission sifted through the CVs. It was much more like the appointment to a job in the sort of standard way, but it is sort of anomalous that they can only appoint people who are independent. If you are a member of a political party and you would like to sit in the House of Lords, you still have to go the patronage route through the leader of your party.
The next obvious step would be to remove that patronage route and put the political appointments in one way or another through the commission. The Wakeham commission proposed that the appointments commission should have all the responsibility for choosing the political appointees. The parties were not happy with that because they say, "If you are going in to represent us, we ought to have some say over who you are.'' Maybe a centre ground can be found. The recent white paper suggests that long lists of names be put up by the parties and then the appointments commission can choose from the names put forward by the parties. That would probably be a sensible next step.
Senator Joyal: Professor Horgan, thank you for your brief. It brings objective criteria in determining the length of tenure. Yet, is there not another element that should be taken into consideration when you determine the length of tenure, which is in fact the method of appointment? I think that the method of appointment has a direct bearing on the determination of the tenure of a person for a position. It is not covered in your paper, but would you be kind enough to expand on that aspect of the determination of what is a proper tenure?
Mr. Horgan: I am not entirely sure that it makes much difference. As Professor Russell said, in the case of the U.K., the latest white paper says that whether someone goes into the House of Lords via appointment or via election, it will still be a 15-year term. I am not sure that I see that there needs to be a great distinction made as to how you do it. The bigger question is whether the term is renewable or not.
Senator Joyal: The other aspect would be about the function of the house. I would be tempted to conclude that there is a relationship between the function of a body and the tenure of its members, and therein lies an important element of balance, as you said, with which one has to come to terms. Would you comment on that?
Mr. Horgan: Absolutely. That is what I was pointing to in my initial remarks when I said it would be great if we could do this in a systematic way. Going the route of the Wakeham commission, which looks at all of the individual issues involved in coming to a global view, would be the best way to go. However, if we think that legislative review and, in the Canadian case, regional representation will generally be the functions, then we can move forward in this incremental way assuming that those will be the functions and knowing that we do not want to lose the good work that the Senate now does on those. We can be careful in that way, rather than going the way we would like to go, which is to sort the functions and everything out and then come to a decision on tenure at the end of that process.
Senator Joyal: Maybe Ms. Russell would be in a position to answer this question. Since there have been life appointments in the House of Lords, have you been able to determine the average length of service of a life peer in the House to give an idea of the length of time that an average Lord would serve on the basis of a life appointment?
Ms. Russell: That is a very good question, and I am afraid I do not have those figures with me. They would certainly be available. I imagine that your clerk could get them directly from the House of Lords information office, or I would be happy to help with that.
The average age in the House of Lords is about 68 years. One of the curious things about the House of Lords is that not only have we not moved, as you have, to a retirement age, but a member actually cannot retire even if he wants to. The House of Lords, therefore, is not as big as it looks on paper, because many of the members are inactive; some are not well and do not attend at all.
Our current white paper also contains the rather modest suggestion that people should be allowed to retire if they wish. I think that is another small incremental step that would be welcomed by members of House of Lords as well as by the public.
Senator Fraser: My first question is primarily to Dr. Russell but of course I would be interested if Professor Horgan has a comment.
We were all very interested in your remarks about how, since 1999, the House of Lords has become more assertive and has been much more active in defeating various government proposals. I am assuming here that "defeating'' includes "amending,'' sending back to the House of Commons for further consideration.
Ms. Russell: Yes. Defeats are on amendments to government bills on the whole, yes.
Senator Fraser: Have you determined how those defeats break down along party lines? We heard some interesting testimony that senators in the Canadian Senate tend to be a bit more independent in their voting than members of the House of Commons do. I know party discipline is not as strict in the House of Commons in London as it is in the House of Commons here, except on the very greatest confidence occasion. However, have you done any work to determine whether members of party caucuses in the new version of the House of Lords are any more independent than their colleagues in the House of Commons or than the House of Lords used to be, or is it the influence of the independents who are making the difference?
Ms. Russell: It is very difficult to make those kinds of comparisons and I will explain why. You are quite right that party discipline or cohesion, in any case, is much tougher in the Canadian House of Commons than in our House of Commons. Our House of Commons has become quite rebellious in recent years with many big rebellions amongst government backbenchers.
Curiously, in terms of how people vote, there is no more cross-voting in the House of Lords than in the House of Commons. They are pretty much equally cohesive. If anything, the House of Lords is a little bit more cohesive. The big difference comes, firstly, in the presence of independent members who, on occasion, can swing the outcome of votes, although they tend to vote a lot less than party members because they don't have the support of a party. They are not told which way to vote and do not have as much information on which to base their decisions.
The thing which really makes a difference in the House of Lords is absenteeism. For the reason I just gave Senator Joyal, it is very difficult to determine whether someone is purposefully absenting themselves from a vote or simply not present. Some are too elderly to attend and others, because members of the House of Lords are not paid a salary, have jobs or other important voluntary interests outside the house and do not attend all the time.
However, there is a culture in the house that if you do not agree with your party line, you should explain this to your whip and your whip will encourage you not to come, rather than to vote against the party. In most cases people take that route, so the voting numbers can vary a great deal from one vote to another. Although the house has over 700 members, a large vote in the House of Lords is only about 450 members. I think there is quite a lot of independence in the sense of people being persuaded by arguments that maybe they should not come in and vote their party's line. However, it is difficult if not impossible to measure the extent to which that goes on.
I am sorry. That is a rather complex answer, but it is a complex place.
Senator Fraser: Indeed, that is appropriate and very interesting. Professor Horgan did you have thoughts on that?
Mr. Horgan: No, if your time is short. I think Professor Russell has covered it.
Senator Fraser: Dr. Russell, you said that the Prime Minister retains the power to appoint the party members. However, there is a system in Britain, which we do not have, allowing for some kind of formalized appointment of members of the opposition, as well, to the House of Lords. Can you give a very quick explanation of how that works?
Ms. Russell: We have a soft convention. It would certainly be considered quite unacceptable in this country for a Prime Minister only to make appointments from his or her own party. Conventionally, the other parties do get appointments too. The Prime Minister does not himself choose the representatives of the other parties; the other party leaders recommend them to him. Still, we do not have a firm set of guidelines or firm convention of what the share between the parties ought to be and this would be another obvious next step.
The suggestion in the white paper, and by the Wakeham commission and others, is that the appointments commission should act to a statutory set of guidelines that there should be balance between the parties related to the previous general election vote shares. At the moment, the Prime Minister has lost some patronage powers but still continues to choose how many appointments are made, when they are made and what the share between the parties is. It is only convention that requires that members of opposition parties are appointed. The Prime Minister could break that convention at his own risk; it would be very unpopular. Nonetheless, it is only a convention.
Senator Bryden: We have talked a bit about using an incremental approach in getting reform of the House of Lords, and certainly that is the approach being taken in relation to the Senate. We have just gone through a period of about 20 years when "constitutional amendment'' was a bad word on the Hill. After the Meech Lake Accord, after the Charlottetown Agreement, and with the coming of the Conservative government, the first indication that there was an interest in Senate reform, other than what was being said on the hustings, was the presentation of Bill S-4. That was referred to as a first step. A few months later that was presented in the Senate.
Then Bill C-43 was presented in the House of Commons, which really was trying to get to an elected Senate, or something similar, through the back door if not by the front door. I assume that was the second step.
This approach has been criticized for not having a framework. What is the government, or what are we, trying to accomplish? What is the purpose? What is the pith and substance of the approach we are taking here? I raise that because I notice you have been very active with commissions, royal commissions, committees and joint committees for the last 10 years. In the last white paper, in February, the government set out seven principles to which any reform must adhere. I do not need to read them; you know the primacy of the House of Commons and so on. Was that helpful or will that be helpful in attempting to further reform your upper house? There are some principles, some guidelines, as to where we are going — not where we may end up necessarily — and some of the things we should or should not do and things we should keep in mind.
Ms. Russell: It certainly does seem a helpful idea to set out principles, but I would urge you not to be fooled by the level of activity in the U.K. into thinking that anything will happen. We had a lot of consultation and several papers and we are not any nearer to the next stage of reform than we were eight years ago.
In a sense, discussion or debate is a good thing and we should have this out in the open. Most of the government papers have been issued on a consultative basis and the royal commission took a lot of evidence and so on. However, it is clear that the more we discuss it the more we do not agree. There are fundamentally opposed views.
The argument in the U.K. is between majoritarians and pluralists, those who believe the House of Commons should get its way and those who believe in stronger checks and balances. Those who believe in stronger checks and balances have tended to support an elected house on a proportional basis. Those who support the more conventional British approach of majoritarianism have tended to want a weak, appointed upper house or even abolition of the upper house.
Most in the Labour Party are in favour of reform, but if you ask which reform, they are pulling in opposite directions. More discussion does not necessarily get to the agreement you want. The principles have to be very broad in order to reach agreement. The devil is in the detail of the implementation of the reform.
Mr. Horgan: I do not want to appear to support everything that the government is proposing. Ideally, yes, having these principles set out beforehand would be best. We have had a lot of discussion over the years on Senate reform, but it often does not capture the public's attention because there is not a belief that anything will actually happen. Perhaps trying this alternative route of forging ahead with something even though they do not know what the consequences will be would create, for good or ill, public debate. At that point maybe we could come up with principles because we would have the public engaged. We have done so much study at the academic level which does not fit into the public debate because people do not believe anything will happen.
Senator Bryden: We had a witness last night whose basic position was that you keep doing this until you destabilize the system you have. Is that your position?
Mr. Horgan: Yes, I am afraid it is. I want to be clear that I am a very strong supporter of the Senate. I believe even the present Senate does excellent work, but we all know what the difficulties are in the public perception in Canada. We need somehow to start creating some instability so that we get some real discussion about change.
Ms. Russell: The history in the U.K. has been that big packages of reform have always failed. Small incremental changes have been able to get through from time to time, but only when a position becomes so intolerable that even a small reform is conceded. Life peerages had been discussed for at least 50 or probably 75 years before they were introduced in 1958. The removal of the hereditary peers had been debated throughout the 20th century until it was introduced in 1999. The pressure has had to build up before even the smallest reform is made, before we can agree that this one thing needs to change. As you can see, we have had little success in recent years with big packages. The incremental approach seems to be a sensible one, but you have to really want the incremental change.
Senator Bryden: I want to follow up on the system of checks and balances. In our country, as probably in others, more and more power is centered in the Prime Minister's office and it is not kept in check by the House of Commons. The futures of the members of the House of Commons depend on pleasing the Prime Minister and the Prime Minister's office. It has been argued that the Senate as it now exists with our tenure to 75 years of age is the only real check and balance, if we exercise the authority that we have. We do it from time to time and maybe we will do it more frequently. We have all the powers of the House of Commons to amend legislation, reject legislation and veto legislation.
If you put the ability to appoint people for eight-year terms into the hands of the Prime Minister, in one series of majority governments that Prime Minister could appoint the entire Senate. Then where are the checks and balances? Are we really trying to create instability? Alternately, is this the radical approach that people seem to think has to be great? What if we make it worse, which clearly some people believe will happen?
Mr. Horgan: This is why I have argued not in support of eight-year terms but in support of a longer term. I do absolutely fear what you have just said. On the balance of whether we take this risk or we accept that we continue to talk about this and not do anything. I am willing to take the risk, but I am very concerned for exactly what you have said about this length of this eight-year term.
Ms. Russell: I would support what Professor Horgan said before. Eight years seems a relatively short time. The issues of renewability and whether it is done in parts or as one block are absolutely critical. I honestly cannot see us really accepting a reform in the U.K. that would give the Prime Minister the power to have one set of the members of the House of Lords swept away and completely replaced with another set. On the other hand, if you have a fifteen-year term rather than an eight-year term and the requirement that the renewal is in parts, that is entirely different.
You are having a debate a bit like the debate we are having about election and appointments, where we are trying to take in principle decisions about elected or appointed. I have come to the point where I believe elected or appointed is not the biggest question. The bigger questions are how elected, how appointed, for what term, using which boundaries, et cetera. It is hard to agree in principle without knowing what comes next.
The Chairman: Ms. Russell when you were giving your introductory remarks you said it is possible to strengthen appointed bodies without election. Could you briefly tell us what you had in mind for how you could do that?
Ms. Russell: My remark was backward-looking, for a start. We have strengthened our appointed body by removing an element of Prime Ministerial patronage. First we removed the people who inherited their seats. Then we removed an element of Prime Ministerial patronage and have created a chamber where there is no majority by one party. The chamber mores closely reflects the balance of votes cast in a general election than it did previously. Looking forward, I think we could further strengthen an appointed house by removing any element of suspicion about how politically appointed people get there by giving more control to the independent appointments commission and by setting down in statute what the share of seats between the parties should be, so that the "no over-all control'' position cannot be overturned by a future Prime Minister. We have both seen a strengthening already and could see that more in the future. Some elements of how to do that would be of interest to the Canadian situation.
The Chairman: Thank you for that very much.
We are almost out of time and I will let Senator Hays, who was the co-chairman of the special committee on Bill S-4, have the last question.
Before I do, I want you to know that Baroness Deech, Lord Taylor and Lord Howe will be doing a video conference with us next week on the House of Lords. I also want you to know that the average daily attendance in the House of Lords, according to the website, is 403 lords per day; there are 185 members of the current lords who are former MPs; there are 141 female members of the House of Lords; and the average age is 68 years. I also noted that the House of Lords usually sits until 10 p.m.
Ms. Russell: You would find that the attendance among the ex-MPs is much higher. There is the house as it exists on paper and then there is the active house. The proportion of ex-MPs among the active house would be much higher, because those people are socialized in attending Parliament. They recognize the importance of it and most of them continue quite actively once they reach the House of Lords.
Senator Hays: I have a quick follow-up and a question. The lords have been vigorously engaged in the reform process. The Senate of Canada, at an earlier time, was also engaged. I think of my predecessor, Speaker Gil Molgat, and his interest in reform. He was another Western Canadian in pursuit of reform.
Do you have any comment on how to encourage the Senate to engage in the issue as the lords have engaged in it? I also would like a clarification: Can the House of Commons prevail over the House of Lords in terms of the final disposition of what it is they are now having a difference on, which is whether it is elected or appointed?
Ms. Russell: Yes, the House of Commons can override the House of Lords on any bill introduced into the House of Commons under the terms of the 1911 and 1949 Parliament acts, but they are used extremely rarely. I think it has been four times since 1949, if I remember rightly. Usually, disputes are resolved in a more amicable way through negotiation and an agreement on some kind of compromise.
In terms of involving the House of Lords, this is difficult. The House of Lords has been quite actively engaged in the debate here, but there is always a danger that people see the House of Lords seeking to defend the status quo as being self-interest. There can be an element of self-interest, but it is also a fact that the people who serve in the house and work in the house know the house best. Many people on the outside, and even people in the House of Commons, do not actually understand the way that the House of Lords works as well as they could. Therefore, it is quite difficult for the House of Lords to defend itself without being seen to be acting in a self-interested way.
One thing we have done is to have a couple of joint committees bringing members of the House of Commons and the House of Lords together. The royal commission also included members of both Houses. That way, you get to pool the expertise and perhaps convince each other of the case. That aids understanding a bit in our situation.
The Chairman: Dr. Horgan and Dr. Russell, I know I speak for all members of the committee when I say that your presentations have been excellent and your testimony will help us in our deliberations. Thank you very much.
The committee adjourned.