Proceedings of the Standing Senate Committee on
Rules, Procedures and the Rights of Parliament
Issue 9 - Evidence
OTTAWA, Tuesday, May 29, 2007
The Standing Senate Committee on Rules, Procedures and the Rights of Parliament met this day at 9:36 a.m. to examine and report upon the current provisions of the Constitution Act, 1867 that relate to the Senate and the need and means to modernize such provisions, either by means of the appropriate amending formula in the act and/or through modifications to the Rules of the Senate.
Senator Wilbert J. Keon (Chairman) in the chair.
[English]
The Chairman: Honourable senators, we are honoured to have with us this morning our former Speaker, Senator Hays, who will report on the Special Senate Committee on Senate Reform and I believe on the Murray-Austin motion also. I am not quite sure what else; he told me informally that there will be many of his own suggestions in there, which will come from a wealth of experience.
I am delighted that I am able to be here this morning. I thought I could not be here as I was supposed be in Toronto, but I was able to extricate myself from there last night and get up here on the first flight this morning so I could hear Senator Hays. I am really looking forward to it. Please proceed.
Hon. Dan Hays, P.C., senator, Senate of Canada: Thank you, Mr. Chairman. I am doubly honoured, first, that you are able to be here and took the trouble to be here, and second, because it is the first time I have appeared as a witness before a Senate committee as a senator.
I have made available a discussion paper, which I believe everyone has. If not, there is one available in the room.
[Translation]
I will start by putting this report in context.
I have never tired of saying that Canada is a model for the international community. I have heard statesmen, diplomats, official representatives and dignitaries make the same comment. This assessment is fair, but there is one notable exception that has always intrigued me, namely the case of our Senate. Indeed, I have a hard time recommending our Upper House, which was conceived in the 19th century, as a model for other countries because I believe we must turn our attention to reforming this body as soon as possible.
Senate renewal should occur in two phases: In a more limited phase one, there would be incremental changes which in my view Parliament alone can adopt; in a broader second phase, there would be more comprehensive reforms that will involve the provinces. However, renewal will not happen overnight.
The first phase would establish fixed terms for senators in an amended Bill S-4. This would be followed by the adoption of a Senate modernization bill which would stand on its own merits, but also be a prelude to more fundamental reform.
This modernization bill would, when adopted, (i) update those sections of the Constitution Act, 1867 which are antiquated and may no longer serve any public policy purposes; (ii) reform the traditional way of appointing senators, presently based on the sole prerogative of the Prime Minister; and (iii) change the way the Speaker of the Senate is appointed.
Moreover, passage of the Murray-Austin resolution to increase Western representation in the Senate would be a helpful complement to a renewal strategy. Although largely symbolic, the adoption of the resolution would clearly demonstrate the need for compromise and fairness, as well as reflect the spirit of the original confederation compact.
On December 14, 2006, the Senate asked the Standing Committee on Rules, Procedure and Rights of Parliament to examine the current provisions of the Constitution Act, 1867 that relate to the Senate, as well as the need and means to modernize such provisions.
I moved the motion calling for this study because the Constitution contains a number of sections that use archaic language and prescribe cumbersome procedures that are clearly in need of update.
[English]
As well, that motion had a reporting date of June 21, and, Mr. Chairman, if the committee has an interest in pursuing this, it should look at the question some time before then.
Before I turn to anything, let me advise the committee that I had the benefit of a recent visit to the House of Lords as part of a Speaker's delegation, where we met with the newly elected Lord Speaker, Baroness Hayman, and had a very interesting discussion with a panel of lords: Lord Howe, a Conservative; Lord Cunningham of Felling, a Labour Lord; and Lord Tyler, a Liberal Democrat, on the current state of Lords reform. I will not get into that unless I am asked to, but I would be happy to do so. If you have read the discussion paper I prepared, you will see that I believe what is happening in the House of Lords is instructive to us in terms of how we might proceed to look at our second chamber with a view to renewal and reform.
As well, we made a visit to Leinster House, the seat of the Irish Parliament. We were briefed there on the reform of the Irish Senate, which has its roots in the 1937 constitutional change that brought back the Irish Senate after a period of unicameralism. We met with Senator Joe O'Toole, an independent senator who served on a subcommittee of their committee on procedure and privileges studying the issue of Senate reform.
I will now turn to what is before us. Section 5 of the discussion paper deals with those matters that I believe can be addressed by way of renewing and reforming the Senate by the Parliament of Canada alone. Some of them are pretty straightforward; some of them are less straightforward and undoubtedly will be controversial. Hopefully, we can get into that by way of discussion.
The order in which I will deal with these matters is the order in which they appear in the paper. I am looking at the English version on page 15 under the heading ``Updating the Constitution Act, 1867.'' The first matter touched on is the age and citizenship qualifications. It would be useful for all of us if we had reference to the provisions of the Constitution that are touched on in a draft Senate modernization bill, which is Appendix 1. I thought that would be useful in that it gives specific language that might be considered in a Senate modernization bill. Bear in mind, colleagues, that this is not a well-researched document. The draft bill is just that, but it is a suggested way of addressing it. I have had discussions on its constitutionality with the law clerk's office, and I am of a certain view that may not be shared by everyone on some of the proposed amendments, but that is something we could get into if there is time to do so — and I gather there may be.
Starting in no particular order other than the order in which they appear in the Constitution Act, 1867, on the age and qualification of senators, the qualification should be, in my opinion, simply Canadian citizenship. In 1867, there was no concept of Canadian citizenship as there is today. Some time in the post-war period, we brought into existence the Citizenship Act. I believe that is a simple matter of leaving out the archaic language and looking at the issue simply as a qualification on citizenship being sufficient to qualify on that ground.
The qualification of age is a little more complicated in the way that I deal with it. Later in the draft bill, we will see that I make a suggestion that we should follow the precedents at Westminster and have an appointments commission that would vet appointments to the Senate. That commission would be responsible for, as it is in respect of appointments to the lords, the suitability of the people appointed, whether they are appointed for political reasons or, as in the case of the House of Lords, appointed as independents by this commission.
That commission looking at the proposed name for appointment to the Senate could make a determination as to whether that person was too young or too old. That would provide flexibility that is not now in the Constitution. One has to be between the ages of 30 and 75 — a day younger, a day older and one cannot serve. It is pretty strict. I feel the whole idea of appointments by a commission — as is done with the House of Lords — is a better way of dealing with it than having these hard and fast rules of age restrictions; there are other reasons.
The next matter is property qualification. We are all familiar with the necessity to go before the clerk each Parliament and confirm we own real property — those of us who are outside Quebec — worth $4,000 and that we are otherwise suitable to hold office. I will address bankruptcy in a moment. It is slightly different in Quebec and that would require a slightly different approach, but I do not believe that that $4,000 requirement of property has any purpose any longer and those provisions of the Constitution requiring it could be amended to delete it.
The matter is not quite so simple in Quebec because the provision for qualification does involve property, and I do not believe that can be changed without the agreement of Quebec — something that might be pursued under a section 43 amendment, but only if Quebec were willing to do so. We will get into that in a moment. That would then have to remain a requirement of a Quebec senator that he or she had $4,000 worth of property in a particular constituency from which he or she is appointed or are resident in that constituency. It is interesting that it is only in Quebec where one does not have to have $4,000 worth of property, provided one lives in the constituency. As we well know, however, the constituencies are not drawn in a modern way and do not cover the whole province.
That gives me a reason to comment in passing on Senator Watt's concern generally on the issue of constituencies in Quebec. That might have some relevance in the second phase. If we were to have constituencies, Quebec, with 24 senators, might well be interested in having its constituencies include the whole province. If it did, then the area that Senator Watt represents, Nunavik, would be ideally suited to ensure that someone from that region would be in the Canadian Senate and serve to represent that community, as he has done — not by operation of the Constitution, but by virtue of the fact that he was chosen to do that.
The next item I will touch on is resolving deadlock or disputes. This is dealt with in our Constitution only in a rather awkward way, namely, in giving a prime minister the ability to ask the Governor General to appoint either four or eight additional senators. It has been used once. It is not realistically a very useful provision in dealing with disputes between the Houses. I have not researched it. I am aware of the one example of the provision being used, because I was here as many of us were. However, I am told that there were attempts to use it at an earlier time and the Queen, who must make these appointments, was advised by the Parliament at Westminster not to accede to the Prime Minister's request to appoint additional senators because it would not have served the purpose of the section, which was to break a deadlock or serve to deal with a disagreement between the two Houses.
I would not suggest taking that out because that might affect the office the Queen. We should include in that section a provision that would require the use of a conference procedure in the event that the Senate or the House of Commons decides they cannot accept an amendment from the other place.
They could accept it, and often we have legislation going back and forth several times, but on very important matters it may well be that one or the other of the Houses would want to insist on their position, which means refusing an amendment from the other place. In that case, you will see in the draft bill a suggestion has been made in the situation where the Senate insists — I believe it would apply equally if the House of Commons insists — that there would be a procedure within certain time frames for the two Houses to put forward a group of people to have an interparliamentary conference. It would have a time frame within which to make a suggested compromise position known to the two Houses, which would be voted on. I suggest, in this draft, that in the event a deadlock persisted, then the constitutional provision is that the government — because it would be a government bill — would be able to introduce the bill again.
It is not a perfect solution, but it would help the Senate in being more comfortable in insisting on amendments. That has been the case in the lords. They have constrained their power considerably, together with changing the House from a primarily hereditary body to — except for a representative group — an appointed body. As we heard in this committee from Meg Russell, that has given the lords more confidence and has seen it introducing many more amendments, defeating many more bills.
In this case, if we had a better dispute resolution mechanism that was required to be used between two Houses, there is a high degree of likelihood that the Senate would feel more comfortable insisting on and proposing more amendments.
The next item in order then would be a suggestion on the retirement age. The same comment applies for mandatory retirement at age 75 for new senators as would apply for the requirement that the senators be age 30 or older. If we had an appointments commission they would be vetting the appointment and would make a decision as to whether the individual being proposed for membership in the Senate was too young or too old or, for other reasons, might not be suitable.
That would be a better way to deal with the end of a senator's term. I am assuming that — and perhaps naively — there is some likelihood of a term limit for Canadian senators. If there is, I cannot imagine it being renewable. It would be non-renewable, probably for a term of 10 to 15 years, and it would apply only to those.
Now, if there is no modernization bill that has an appointments commission, I fully understand the sentiment then that those age limits be retained. In terms of what I am proposing here in this rather expansive view of how we modernize our procedures, it would not be necessary.
The next matter brings us to section 31, which is a good example of archaic language and a section of the Constitution that needs to be updated. Section 31(1) deals with a senator's place being vacated for failure to attend. It is quite simple: If two consecutive sessions pass without the senator attending, the senator's place is vacated.
The Senate itself should be given constitutional authority to develop a more modern rule. The amendment of the Constitution is not the place to have the detail, but rather the Senate itself should be charged with that responsibility. It should create a rule that sets a very high standard. Senators who do not attend, for whatever reason, are taking a place in Parliament that is there for the purpose of doing the work of the Senate, and that should be taken into consideration. That would be a good modernization of our procedure.
To be cautious, the draft modernization bill here assumes they would be dealt with on a case-by-case basis. It would probably be better to deal with it by having a general rule so as to ensure that that rule is not arbitrarily developed or used. The suggestion is made that it would require an extraordinary majority of senators to put it in place, namely, 60 per cent.
There is another provision of the Constitution that says all matters are dealt with by majority. If it was made clear in section 31 of the Constitution that such a rule would require a 60 per cent majority, then that would be a way of dealing with that. Maybe others who might pursue this would disagree with what I am suggesting, but that is what I am suggesting, why I am suggesting it and its rationale.
Section 31(2) of the Constitution, as I read it, is anomalous. One can be a dual citizen at the time one becomes a senator; one cannot, however, become a dual citizen once one is in the Senate. That is not a good provision. One can be a member of the House of Commons and be a dual citizen. I do not see why the Senate should be any different than the House of Commons.
The next provision at section 31(3) is bankruptcy. Bankruptcy is clear and should remain, but the language about insolvency and being a public defaulter is archaic and confusing.
As lawyers, we know the definition of insolvency is generally failing to meet your obligations as they come due. It could be used for a mischievous reason to say so-and-so is insolvent or a public defaulter, which is even harder to define, whereas bankruptcy is clear. That is a condition of a senator either having made a voluntary assignment or having been petitioned into bankruptcy. I would leave that, but I would take out the other language. It is difficult to interpret, and I do not know that it does any good; we would be better off without it in there.
The next one in section 31(4) is a difficult one, dealing with felonies and infamous crimes. Felonies can easily be translated into modern language by simply using ``an indictable offence.'' If you are proceeding by way of indictment, it is a serious offence, the standard of proof is higher and a senator convicted of an indictable offence — and treason would be included in that — should be left in and should be a reason for the seat to be vacated.
Someone mentioned impaired driving to me. Impaired driving can be proceeded by summary conviction or by way of indictment. A chief justice of Quebec resigned having pled guilty to that. Whether it falls under felony or infamous crime, I do not know, but that does not bother me; I am just using that as an example of a discussion I have had.
The term ``infamous crime'' is difficult to modernize, but I would suggest that we do continue to include in that provision, if we were to come forward with a modernization bill, a senator who has been found to have violated the public trust.
This might perhaps be an area of municipal responsibility where someone is barred from serving as a municipal officer. It would look strange to me if a person could not serve on a city council or be the mayor of a community, but they could still be a senator. That would be worth looking at.
There are individuals who have lost the public trust and have done so through a process, which respects justice, that we would expect anywhere. This aspect already exists, so it is just a matter of modernizing the language.
The next item brings us to section 32 of the Constitution, for which I have proposed a new subsection. It is time we looked at that. I believe Parliament could do this.
We now have a provision that where a vacancy exists in the House of Commons, there is an obligation to hold a by- election to fill that vacancy within 180 days. The same rule should apply when a vacancy occurs in the Senate. The Prime Minister of the day should be obliged to put a name forward within 180 days of the Governor General being advised of the vacancy. This section is pretty straightforward.
I must deal with the appointments commission and the procedures of non-government supporters to the Senate. However, with respect to the issue of the Speaker, I have been Speaker. I am aware, through Senator Molgat's views on this — also a former Speaker — who, when he co-chaired a joint committee, brought forward a report stating that the Speaker should be the choice of the Senate and not, as in the 20th or 21st centuries, the choice of the Prime Minister. This is a good idea.
I believe the best way to achieve that is by the Senate adopting a procedure to make known their choice of Speaker. Hopefully, the Prime Minister, as has been the case in the House of Lords, would accept the choice and that would be the end of it.
We could formally amend the Constitution dealing with the Prime Minister's prerogative. Some of the suggestions made earlier to adopt a procedure as used for the House of Commons Speaker — I believe it is section 34 — would not work because it would affect the role of the Governor General. All of these things must be done at the prime ministerial level so that the Prime Minister is the person, as has always been the case, making the nomination to the Governor General.
However, I do not see anything that would prevent a requirement, as is the case with the British Prime Minister, that he or she respects a certain process that precedes the nomination to the Queen in the case of the British Prime Minister and to the Governor General in the case of the Canadian Prime Minister.
The last item deals with the oath of allegiance. It has been controversial in both Houses and with the public service. I feel it is time to include an oath to Canada as well as one to the Queen. Changing it more than that would be difficult, because it may affect the office of the Queen, and that is difficult to deal with.
On page 19 of my text, you will see a heading ``A New Way of Selecting Senators.'' That basically looks at the Westminster model, which I believe has evolved since 1911, but in terms of powers, since 1949. However, for this purpose primarily, I refer to the period since 1958-59 when the constitutional practice was changed to allow the appointment of life peers.
With the appointment of life peers, the practice of the Prime Minister not only appointing from his or her party follows from that, but also the practice of consulting first with the Leader of the Opposition under certain circumstances and then later with a third party. In the case of government since then, that would either be the Conservative Party or Labour Party and the Liberal Democrats.
Then even later, the Prime Minister conveys to Her Majesty the names from the appointments commission, which is not statutory. It is proposed that it become statutory. That is a means where the good and the great, or people's peers — there is a quarrel over which it is — can be put forward to the commission, and people who think someone or themselves should be considered for appointment to the second chamber can have an opportunity to be considered.
From its coming into force in 1999 — although I do not know the exact date — until May of 2006, that commission named 36 life peers through the Prime Minister. They are very qualified people who, I am told, have made an important contribution.
At the same time, the Prime Minister of the day has succeeded for the first time in the history of the United Kingdom in causing the second chamber to have a larger number of Labour peers than Conservative peers.
For 1,000 years or more, the House of Lords was dominated by the Conservative Party, and in the last few years that has changed. However, because of the appointments commission, the traditions of that House and because of its remarkable difference from our House — we are a federation and they are not, they do not have a fixed number of members and we do — there is no way that anyone will have a majority of members in that House, nor do they want that. It is stated as an objective and accepted by the government of the day in its most recent white paper, which was published in February of this year, which is the document I have here.
By the way, the Irish Senate document is a very good one, and I will make it available through the clerk.
They accept that there will never be a majority of any one party, and so the value of independence of the House of Lords is such that that will most likely be its future, even though the further reforms that occur result in elected lords. Either wholly or partially, a hybrid body will likely take place.
I have a quick comment on the meeting we had with the lords. It is very contentious as to what should happen there. However, having listened to them, it seems to me highly unlikely that there will be anything other than at least a partially elected lords, and quite likely a wholly elected lords, within a 10-year period.
The manifestoes of the three major parties — most likely all parties — in their next election, as it has been in the last three elections, will contain a decision the parties will make with regard to what they would like to see happen to the lords. It seems increasingly likely that they will be elected.
As you know, the Commons voted for 100 per cent elected body, and the lords responded by voting for 100 per cent appointed body. We must remember that the House prevails. It has only happened six times since 1911 and the beginnings of the Parliament Act.
The House does have that power, and sometimes the power is taken into consideration and you do not necessarily have to use it to be influential in driving a result. That is not the case in Canada. We have a different process, and the provinces would have to agree.
I will end with a comment on the provinces. They are wonderful places. I come from one that has had an all- consuming interest in Senate reform, which probably reflects why I am sitting here now.
However, I do not know that they individually know much about the Senate or what it does.
Sometimes I feel that way about the federal government. The Senate is there, but sometimes I feel they really do not understand our procedures, what good we do, why we do it and what our traditions are.
To conclude, the strongest motivation that I would share with you for pursuing this particular initiative is that if the Senate is to change — and my belief is that it will — then it would be very well for the Senate to embrace the challenge itself, particularly in those areas where Parliament alone can make the changes, and they are considerable. In the end, a Senate where senators serve a shorter term, where senators are vetted by an appointments commission and a prime minister's power is subject to that, and a prime minister is obliged to make appointments to the opposition after having made sufficient appointments to ensure that his or her party has a secure majority of government members will bring the Senate closer to the expression of the people in the last election, thereby increase the democratic foundation of the Senate and make it more comfortable in using its power.
The Chairman: Thank you very much, Senator Hays. I have always wondered why there was not some sort of commission of selection. Freedom is not anarchy, and too much in the way of elections can lead to almost a state of anarchy. It is very interesting that many other segments of society have functioned very well for generations by using the selection process rather than the election process.
Senator Smith: Senator Hays, you have made quite a serious and considered submission, and it will help encourage serious debate on an important issue.
I always like to deal with fundamentals. One thing has always nagged me a bit, and I would like your reaction to it. The point is a philosophical one. Let us say we do go the full way toward an elected Senate — I know the optimum you describe has a few independent ones appointed, but let us say most are elected. You have backed into the U.S. system of checks and balances. The whole premise of the parliamentary system is that the government that is in place is in place because it can get legislation through. If they are not able to get legislation through, then we have an election or, depending on the circumstances, someone else is asked to form a government. The U.S. system is not based on that at all. You have Congress, the House of Representatives and the Senate and the President, and there are many checks and balances. Personally, I have a bit of a preference for the parliamentary system over the U.S. system. I feel it is valid to ask, if we go down this road, are we saying that we believe the U.S. checks and balances systems work better? As night follows day, once we have a Senate with that mandate from the electorate, it will start defying the other place, and you are then into the checks and balances. At the end of the day, do you prefer that model over the traditional parliamentary system?
Senator Hays: I did not get much into the comments I made about the second phase. I remind everyone that my own view on the second phase is that that is not something that can be done easily. We know that from experience.
Senator Smith: That was to be my next question.
Senator Hays: Then I will not answer it now. That is something that has to be preceded by a process, so I will leave it at that.
No, I do not believe we want to have the American-style Senate, never mind the congressional system with checks and balances. That, of course, is the Triple-E model, if I understand it correctly. As you know from this paper, that is not something that I feel Canadians want, nor would it serve us well given the way we have evolved. It has been the genius of Canada that we have been able to accommodate differences, starting with Lower Canada and Quebec, within our structure through a federal structure recognizing those differences. After 100 years or so, even that must be looked at and modernized, which I am suggesting here and which the Murray-Austin motion triggers consideration of as well. I am not suggesting here a movement toward an American-style checks and balances system. I just suggested it as a model for discussion purposes. I am not wedded to it. The process that would precede any development of a proposal or alternative proposal is as important as the proposals, because we need provincial and public support.
In my suggested elected Senate, the powers would have to be respectful of what has evolved in Canada, which is that the provinces have, in a zero sum game, carved out for themselves quite a bit of the job of representing the provinces. As you know, I prefer that as the base unit rather than regions. They are not likely to agree to give up all of that power, nor is the House of Commons. When we get into this area, they have the whip hand. We only have 180-day suspensive veto. We should play a role, but the role we play should be cognizant of where we are today. We can improve that if we take the modernization approach that I am suggesting, in my opinion. However, we have to retain some of the practices where the House of Commons is the primary decision maker at the federal level and where the provinces have a continuing role in representing the provinces at the federal level through the various means that have evolved to date and that have existed since 1867.
That would make an elected Senate in Canada very different than the one in the U.S. The U.S. Senate has taken onto itself exactly the same powers, and more, than has the House of Representatives. I do not see an elected Canadian Senate having that much power. I do not see it having any more power than it has now and maybe even less over money bills and that area where we are currently constrained and where the Lords are even more constrained than we are. That would distinguish it from the U.S. Senate.
I would think that the deadlock-breaking mechanism, which in the U.S. Senate is a conference procedure, is one that would ultimately be resolved with a joint sitting or in some way would respect this prime role that the House of Commons has had.
We must be careful, because a Senate without power, as suggested by Sir John A. Macdonald in a quotation in my paper, is not worth having. We must have considerable power, but I do not see an elected Canadian Senate having the same power or the same role in governance that the U.S. Senate has. Those are some of the reasons.
Senator Smith: When you have two elected bodies with checks and balances, it is inevitable.
You have characterized the incremental approach well. Progress can be made on some of these issues that do not fall into the constitutional category. However, for the sake of clearing the air, the odds on having the consensus to take the lid off the constitutional box at the moment are pretty remote. I have been in and out of here for over 40 years. One of the two wildest nights that I ever remember was the vote on the flag in the fall of 1964. There was nothing else like it. People have now got over it; most of them love the flag, as I do, but that night there was much liquid refreshment; it was 3 a.m., and it was wild.
Senator Joyal will remember the vote in 1981, where some people were standing in front of the Speaker and shaking their fists on the vote on repatriation and the Charter, and that was with a strong, solid majority. In recent weeks — and I will not lay all the blame on any one party because everyone must share the blame — the attitude in the other chamber is about as partisan and nasty as I have seen it in many years. I say that with regret because my Canada hat is always more important to me than my party hat. I am just wondering if you think that in the foreseeable future there will be a mood among people that would make the decisions to take the lid off the constitutional box because of the atmosphere in particular in the other place and in some of the provinces at the moment. Remember what happened with respect to Meech Lake. I sense that the mood right now is a lot rougher than it was when that occurred.
Senator Hays: You are quite right; there is no appetite in any party for this. The government of the day has been very cautious. It is putting together a package of reforms, but it is not doing it in a very open way, with a little here, a little there. The official opposition, of which you and I are members, has held the view since 1993 that anything in the way of reform of the Senate should come from the provinces or should be avoided in terms of the federal government taking an initiative.
That is true. It is also true that when these matters do come forward, they can be very contentious and cause dangerous feelings to arise in terms of what our federation represents. At least, I sense that from my province when we have done this in the past. That is why I feel what I am suggesting is a good alternative to waiting for a time when they would be prepared to take the lid off the box, because they have to take it off, and because there is a critical problem that has arisen and that critical problem cannot be put aside. We then must deal with it in a crisis — either a manufactured crisis or a genuine crisis because of some economic circumstances or a conflict not involving Canada.
It would be timely — and the United Kingdom is a good example of this — to start a process at a time when no one is angry at another person. Assume that it is a three-year project, minimum, so it may take six years. The House of Lords have been at it almost 100 years, and they make profound changes every 10, 15, 20 years. Since the current government took office, the lords have been making them at a much faster rate. They have also devolved powers. They have done it in a considered way and while there are partisan problems. They have done it in a considered way that has brought people from all parties together. That is the approach we should try to bring about in Canada. Not a confrontational approach characterized by an attitude of, ``I am mad, and I must have my way or I am out of here,'' but, rather, that this is an issue deserving of our thoughtful consideration at this time; what can we do to address it? If we cannot do anything, we have not lost much, but if we can, we have addressed a long-standing grievance that exists in some regions.
Senator Smith: The House of Lords has the luxury of not having to deal with provinces.
Thank you very much. I agree. I see the focus on the incremental approach for now. Your paper is very good.
Senator Fraser: Indeed, there is an enormous amount of food for thought in this paper. I stand in awe.
If we were to elect the Speaker, should we not specify the term for which the Speaker is elected? If we elect the Speaker, what implications would that have for the powers of the Speaker? For example, I have heard it suggested that the rulings of an elected Speaker could not be overturned by a majority vote of the Senate. I am not asking for a 20- minute dissertation.
Senator Hays: This document has the modernization bill suggestion and does not say anything about that in much detail, but rather that the Senate would decide what it would want. That is where it should be. The Senate should develop the answers and include in its rules the answers to those questions.
I have not commented on it, but I will. The Speaker of the Senate should serve for a Parliament, as does the Speaker of the House. I served for two Parliaments. Speaker Milliken has served for three; he had to be elected and I did not. It was at the discretion of the Prime Minister. That is perhaps not a sophisticated answer.
What should the role of the Speaker be? If the Speaker is the choice of the senators, it will follow that the Speaker will have a more robust role in leading the house, to manage the Senate in general.
Would that mean that he would chair the Internal Economy Committee? Would we develop a Board of Internal Economy committee? Those are all matters that it would be a mistake to move to too quickly. That would evolve. I know the senators, and I feel we could develop a very good structure.
Senator Fraser: The second point is on the matter of dispute resolution. I tried to jot down a summary of how your system would work. If we are insisting on our amendment, there is to be a conference within 20 sitting days, followed by a conference committee report within 10 sitting days, that report to be voted upon by the two Houses of Parliament within 20 sitting days. I am confused about whether the report would go back to a conference, the joint sitting of the two Houses or would be voted upon by each house separately; but I believe you are talking about having it voted upon by each house separately. That would mean that we would retain our veto ultimately, except that there would have been an organized chance to try to reach some kind of agreement. Is that what we are talking about?
Senator Hays: Exactly. We could go further, but we should not try to go further than that. That is why I have suggested it in that form. After all, the House of Commons has to agree to this. I do not believe they will agree to give up any power, and at some point we may have to agree to give up some of our power. We should do it with great care and make sure we do not, as someone has said, commit suicide.
Senator Andreychuk: Thank you, Senator Hays, for putting all your thoughts into a paper. I have heard you from time to time on all these topics, and I appreciate your wisdom and your years of experience here. I do not want to think about the day that you will not be here, but we will wait for another time to talk about that.
You mentioned a couple of points; attendance was one of them, and about missing two terms. You recall the infamous case we had of a non-attending senator. The debate at that time was concerning, ``My code is my honour; my honour is my code.'' We kept going back and forth on that, saying that I take an oath to do my duty, to do my job, to the best of my ability. Perhaps some peer advice is acceptable, but I conduct my own self in the chamber. Others said ``No, if we are to have the actions of one senator affect all the other senators, we need a method of coordinating and peer evaluation.'' I recall the struggles on that and the speeches on the Senate. Some of those senators who absolutely and adamantly did not want to put restrictions on senators are still here. What makes you believe that we would get anywhere, informally, in this incremental approach?
Senator Hays: I believe the Senate would move on it because we are a public body, and we do our business in public. If the Constitution gave the Senate the responsibility of developing a requirement to participate in the Senate's business through attendance and as a competent person — because mental disability might be a grounds for the place being vacated; one must be careful with that — and if we, as a public body, one of the two Houses, did nothing or if we made a set of rules that were other than the highest standard in terms of what is expected of people who serve their country in the Senate, then we would find it intolerable. We have overseeing us — and we should never forget this — the people we serve. The people we serve have an expectation. I am fully satisfied that we are all aware of that, and that we would meet that expectation. I will not be saying that much longer, because I will not be here, but I will say it today.
Senator Andreychuk: You have the benefit of the video conference in the Standing Senate Committee on Legal and Constitutional Affairs on Bill S-4 when we heard from representatives from the House of Lords. They went through the processes you have stated. The sticking point has been that their process has led to the same problem: patronage and the issues that Prime Minister Blair has run into in the inquiries. Before that, I was prone to saying that some sort of arm's-length appointments process would be helpful. Since that testimony, I have started to reflect as to whether we would still run into the same pitfalls. That leads me back to this: Are we not better off elected?
I do not recall which one of our senators put the question to the House of Lords about legitimacy, but with 100 per cent of the House of Commons voting for an elected Senate and the House of Lords not, the question of legitimacy took on a different flavour in the discussion. It was not that we are legitimate or not legitimate; it is the perception of legitimacy that became the problem for the House of Lords and continues to be, as it is with us. I feel we are struggling with that.
Senator Hays: I made a comment, and I hope no one feels that I have gone further than I should in making it, that when I have represented Canada here or somewhere else — and we often do this, and most countries have constitutions that are after World War II — I honestly would not recommend an identical structure to ours, because it is deeply rooted in the 19th century. Ours was the first democracy to adopt the Westminster-style model of government ever. About 30 years later, when Australia became independent in 1901, they went directly to an elected Senate with equal numbers.
We have been served well by our Senate. I hope I say that in a fulsome way in my comments. We have done a great job. We have evolved and functionally adapted on the property requirement to represent minorities and so on. Those are all aspects that have given us credibility. Had we not done that, we would not be here, in my opinion.
What do we do now in terms of your question? You say people still do not regard us well, because the Senate is thought of as a patronage body. The lords are a good example; there is this famous peers for loans scandal. I am not happy with our laws as they relate to political contributions, but I am not happy with theirs, either. They take your breath away. Millions of pounds are contributed one person to one party, and that person can even be in the government.
That was something that the appointments commission is credited with highlighting. That is something that adds credibility to the lords and would add credibility to the Senate, if an appointments commission were to be properly developed. They have three political members, one from each of the three principal parties, and three other members in the Prime Minister's Appointments Commission. We have some committees similar to that under conflict of interest, but they have a political group and an independent group. They have done a good job and a credible one in putting some names forward, as well as vetting names. If we did something similar in Canada, that would reinforce the democratic foundation and legitimacy of the Canadian Senate, because it would not be the Prime Minister alone.
I am often asked the following questions: How do you get to be a senator? What are the criteria? What do you have to do to become a senator? I am sure someone has asked you that question. If we had a criterion under our system with regard to the legitimate interests of a prime minister in having a majority in the Senate, I do not believe we could go where the House of Lords has gone — to being a totally independent body — at least not in one step. No prime minister will agree to that anyway. Let the prime minister have his or her majority. That is a little awkward, but it stops there. Mackenzie King appointed 103 senators, I believe three of whom were not Liberals. Why does one have to have all the senators from one's party? I suppose it is useful; it is comfortable. It could have something to do with patronage, but we should set in place rules that would short-circuit that. That would mean that the majority would change more quickly and that the Senate would reflect, sooner than it sometimes does, what happened in the last election, and not go on and on and still respect what it is.
In the proposal under the Wakeham commission, the Prime Minister's appointments will also be vetted by the appointments commission. If the appointments commission has credibility and all the names go through that appointments commission and if we have a process that brings change in the Senate more quickly based on elections, and it is more independent process, recognizing it is a partisan body that must function with government and opposition would increase the credibility of the Senate and address the point you have raised, namely, the issue that it is a bunch of hacks.
Senator Andreychuk: On the question of dual citizenship, I do not feel it is fair that if one already has dual citizenship one can keep it, but one cannot gain it after.
Do you believe there are some positions within a sovereign state where the office-holder should have only one citizenship; the citizenship of the country, for example, the Chief of the Defence Staff of the Armed Forces, the Governor General or the Prime Minister?
I do not have a problem with dual citizenship per se, but when a person swears allegiance and says he or she will give his or her full energies to that country, can he or she do it twice or three times?
Senator Hays: The world has changed since the mid-19th century, and continues to change. I do not know how many millions of Canadians are dual citizens. If we accept that for Canadians, then I do not see why people who hold high office should be treated differently. That is just my own personal view. I cannot rationalize it. I cannot think why a person holding a certain office is not entitled to the same rights and privileges as other Canadians.
Could I be convinced that there is an elite class of people — governors general, prime ministers and chiefs of the Defence Staff — who must never have held a citizenship in another country? If they held it once, they are under as much of a cloud as if they continue to hold it, perhaps — I have trouble with that.
Senator Andreychuk: If they hold it once, it is a question that they swear an oath at one point and swear allegiance to conduct themselves within that office for the period of time they hold that office — in my opinion almost exclusively as a priority — and it matters not to me that they have dual citizenship for other purposes.
Senator Hays: In my example, it is someone who acquires citizenship by marriage: They have not sworn an oath; they are entitled to it. Your argument goes to whether any Canadian should have dual citizenship.
Senator Andreychuk: Canadians holding particular offices.
Senator Hays: Why holding office? Everyone is potentially an office-holder. Just because someone has sworn allegiance to the Democratic People's Republic of Korea on one day and renounce it the next day, what is different about one day as opposed to the other? I do not see any difference. Your argument is if Canadians should generally have the right to hold dual citizenship. There was a time when I said they should not, but I have changed my mind. I am told there are half a million Canadians who live on the south shore of California who have dual citizenship, and I do not have a problem with that. I do not have a problem with it at all; that is my answer.
Senator Andreychuk: I make a distinction between dual citizenship and holding it when I do not particularly have a responsibility for the country. I have a responsibility to act as an appropriate and responsible citizen, but I am not handling any special duties. You make no distinction on that.
Senator Hays: No. I may be wrong, but I do not.
Senator Banks: There are some countries that do not permit people to renounce their citizenship.
Senator Andreychuk: Yes, I know.
Senator Banks: I would like members to know that the Alberta caucus — of which I have the honour to be the chair — has had the great advantage of having followed the process, at least to some degree, in which Senator Hays has been involved in arriving at this proposal on paper. Certainly, as a matter of principle — and in many of the cases specifically — the Alberta caucus is unanimously in favour of this proposal.
Senator McCoy: Senator Banks, I am from Alberta, and I have never been invited nor attended this Alberta caucus. Could you clarify, please?
Senator Banks: The Alberta Liberal caucus.
Senator McCoy: Thank you.
Senator Banks: You would be most welcome as a member.
Senator McCoy: Thank you so much, but I am sitting as a Progressive Conservative, and therefore as an independent senator.
Senator Banks: Agreed. That is much welcomed by everyone. You are quite correct to make the distinction. The Alberta Liberal caucus is in favour in principle of this entire proposal and, in most respects, in its specifics, mainly because of the wisdom in having split the goal into two and doing things first, which Parliament can do by itself, according to section 44 of the Constitution, as Senator Hays has pointed out.
The wisdom of that lies not entirely but largely in that, rather than Parliament making these changes on its own, if they originate from the Senate, as Senator Hays has pointed out, senators probably know more about how the Senate has worked, does work and can work than others. If the Senate initiates these moves it makes less likely tinkering around the edges of these matters, which are addressed by persons who do not understand as well as senators do what the Senate has done, does and might do.
Senator Hays, you have mentioned that the Senate might give up some powers — as it has in the past — and that the deadlock-breaking mechanism that you propose would have, in the end, a bias toward the House of Commons. If the Senate is legitimized in phase 2 of your proposal by becoming elected, what is the rationale for it giving up power?
Senator Hays: We do not want a U.S.-style system. To have an elected Senate with its current powers would take us there, because we do not have a congressional structure. That is one reason.
The other reason is we would never get it through. To have this become part of the Canadian Constitution, we have to satisfy several tests. We have to satisfy the regional veto, Bill C-110; we have to satisfy the requirements under section 38 of the Charter, seven out of 10 with 50; we might even have to satisfy what happened in connection with Charlottetown, a national referendum. It is almost impossible to change the Canadian Constitution.
Developing a support from the stakeholders — provinces, the House of Commons and federal government — in this second phase would be very challenging, and the Senate would not be doing this. The Senate would hopefully inspire this on the part of a cross-party group that would support it — as is the case in the U.K. — and the government and opposition parties would find enough interest in it that they would look at this.
That refers to Senator Smith's point about why we would ever talk about the Constitution. We talk about it because it is out of date and we need to fix it. I do not believe we could get it through.
Those are two reasons: We do not want to go to the U.S. system; and we must get agreements from parties who would not agree under any circumstances to the Senate continuing to have as much power as it has now.
How much less power should it have? That is not something to which I have a good answer. That is part of the negotiation. I observed in the Charlottetown process that when one goes into a negotiation with a non-negotiable item, one loses. Everything should be on the table. That was the case in 1864, the Quebec conference, and into Charlottetown and before, and it should be again. The minute we go in, as Alberta did, with a non-negotiable Triple-E only in name — and the name part of it was an equal number from each province — we end up with a bad result. Therefore, we must leave it open in terms of how much power the Senate would end up with. It must be significant, otherwise we will be irrelevant.
Senator Banks: If you refer to the Triple-E model, assuming that the equal part is simply not doable, because I believe it is not, and you have the elected part, which is possible, does the giving up of power mitigate against the argument for the effective part? Why would anyone stand for office in an institution that loses off the bat in definition by virtue of the Constitution?
Senator Hays: No one would, so the challenge is to have sufficient power that you do not lose off the bat.
The House of Lords has ultimately given up all of its power. It is an example of a legislative body that is well thought of by those it serves — not all but most. It amends dozens of bills, improves them, plays a strong revising role and it defeats bills and forces the House of Commons to pass them again. Since it gave up its power, there have only been six occasions on which it has been overridden in 100 years. That is not very often.
I do not feel it is fair to say that a legislative body with less power than the Senate has now would be ineffective. It could be effective with something less than it has presently.
Senator Di Nino: I will first applaud Senator Hays and extend my very good wishes at this time, unlike all other times over the years that this kind of initiative has been started. Maybe this time it will go somewhere, because I am in total agreement that if the Senate does not do this for itself, if it ever gets done, it will not get done the proper way.
I want to make a couple of comments on the number of Canadians who have dual citizenship. I believe the number is something short of 3 million people, which is a huge number. That is an issue that could take us the whole meeting, so I will leave that alone.
I also get very defensive particularly when Europeans talk about legitimacy. My immediate response to them — and it may be helpful because all of us have confronted this issue from time to time — is to ask them, how legitimate is the process of being appointed to a list by a political body in the system that most of Europe has in some form or another, which is proportional representation? I feel that is much less democratic, certainly no more democratic, than the appointment process we go through in this country. That issue arose, and I was a little concerned. It arises often, particularly in the European Parliament. I suggest to you that you will find a different reaction when you tell them that.
The incremental process, frankly, is the only way to go. I agree with you on that. My opinion is that we have a prime minister who is quite serious about democratic reform, which includes reform in some areas of the Senate. I believe he fully understands the difficulties, as you have, of constitutional reform, et cetera. He has thrown down the gauntlet for discussion and action, so this is a very good initiative on your part. It could go a long way toward the reformation of our institution. However, I suggest that reformation at some point in time should also deal with the reformation of Parliament as a whole.
I am applauding you in the sense of suggesting that the incremental way is the first step toward a long journey that needs to be taken. Over the years, the focus has not continued on that aspect, particularly since you will be leaving us, as others have expressed with some regret on all of our parts, at least most of our parts.
Is it wise at this time to be talking about the details? The details, in my opinion, are what will derail this process. I would ask if you agree with me or if you feel we should be talking about the principle. If we get stuck in the details, this will end up in the dustbin once again. I invite your comments on that.
Senator Hays: In Bill S-4, the Prime Minister in suggesting limited terms for senators has brought forward a very interesting proposal. You know my position on it, so I will not bore you. I have stated it already.
Bill C-43, Bill C-16 and Bill C-56 are also interesting. I do not think Bill C-43 will work. It is clearly a matter under section 42 of the Charter, even though it is drafted in a way that does not involve election.
I brought the Conservative Party platform with me. I do not intend to get into it.
That is why I have two phases. The aspects that Parliament itself can deal with are aspects we should encourage the government to proceed with or proceed with on the initiative of the Senate through perhaps this committee, another or, ideally, making it a cross-party initiative. That is unlikely at the moment, but who knows what the future might hold.
We could deal with it in detail. That is why in the first phase the terms of what causes a senator's seat to be vacated and what the qualifications are included in the appointments process. I cannot see Canadians saying that they would feel less comfortable with the appointments process where a prime minister appoints people into the Senate, for whatever his or her reasons, behind closed doors and without talking to anyone for the most part — in rare examples including during Meech Lake and perhaps with the announcement of Prime Minister Harper with regard to Burt Brown. However, over the last 140 years, not many prime ministers have opened the door and proclaimed, this is how I am appointing senators, this is why, this is who and so on. Replacing that process for one that involves the verification or corroboration of qualifications for an appointments commission, a method of some independence, being appointed through that means and the Prime Minister's appointments going through a vetting process, I frankly do not see Canadians opposing that.
They may think that process is not enough, and they may want an elected Senate now, but that is not easy to do. There I agree with you. By changing to an elected Senate now, we do the very thing that I believe you and I are concerned about, and that is why it must be preceded by a credible process. I suggest a royal commission, as the Wakeham commission did for the British white papers. Conduct joint studies of Parliament and engage the provinces before you come up with a proposal or more likely alternative proposals, and try to do it in an uncharged political environment.
Senator McCoy: My congratulations to Senator Hays for a very thoughtful paper. I am pleased to see that the motion you brought in December of last year has now come full circle to the committee and that we have the benefit of your thoughts encapsulated in this paper, at least as it relates to the Constitution, although you did not address yourself to the Rules of the Senate, which is the other half of the reference.
It strikes me that there is an elephant in the room. In the discussions I have observed or in which I have participated, we keep coming back to the point that the independence of the Senate and of individual senators is either assumed or wanted. Around and around this discussion goes, and different solutions are provided to what is seen as a problem, and yet the problem — independence — has not been fully put on the table, in my view. If we were independent, why would we need to address the problem, so there must be a problem? It strikes me that the problem of independence is the one that we should first explore. What would you take as evidence of independence? What would be the indicia of title, for example? What two or three things would indicate that there is or is not independence in the Senate of Canada?
Senator Hays: I do not know that I would take the position that there is not independence. The Senate has demonstrated over and over again that it has played out the role originally envisaged for it of sober second thought. It functions as a parliamentary body, with government opposition and whips, and it has carried out that sober-second- thought process in that political environment.
As someone who was responsible for the Clarity Act, I can tell you that there was much independence demonstrated not only by senators who were not of the government party but also by those who were of the government party. It was a useful, important and commendable exercise of independence on the part of the Senate.
In the end, governments have a legitimate interest in getting legislation through both Houses of Parliament. The Senate, as I have described it in the paper, carries out this role of revising, advising on policy and bringing a regional point of view. Those are all things that are done with independence. My view on Bill C-56 or on Murray-Austin will be different from the view of someone from, for example, New Brunswick. That represents independence on both sides of that issue. Our problem now is ideally to resolve in some way where that matter should end up. It will not be easy. There is much independence. Maybe I misunderstand your point.
Senator McCoy: I asked what number of things you take to indicate that there is in fact independence, not expression of view. I have observed in my time here a full and free expression of opinion from all sides of the chamber. I have not observed, for example, a full and free expression of vote. I believe the statistics are that only one out of seven senators votes against their party affiliation 15 per cent of the time. That is not, in my books, indicia of independence. I am pushing you on that point because I feel that this is a subject that has not been openly discussed yet. Little mutters across the table occurring now indicate that it is perhaps one that is an uncomfortable subject, but it might be one that could be put on the table.
Senator Hays: I am comfortable with it. To use your language, the push back is that the degree to which the Senate takes upon itself the role of the executive branch of government, as the U.S. Senate does, is something that it should think carefully about. You find yourself in a legislative body where there is a government of the day, today a minority government that has a mandate, and you have to make a decision as to how much of that mandate you can second- guess and stand in the way of as an appointed legislator. That has a bearing on how independent you can be. It does not in the House of Commons, and from day one the House of Commons was the place of confidence. The Senate, if it refused to pass any bills, could become a confidence chamber, but should it? Did the Fathers of Confederation envisage that the senators would use their power in that way? As a matter of public record from the debates that took place, they believed, as was the case with the House of Lords, that it would respect the popular will of the people, which was most manifest in the House of Commons.
It is an interesting argument back and forth, and one that is dealt with every day in the Senate. We see it being dealt with now in terms of the use of the Senate's powers for one or other purpose. Are they political? Are they an expression of an independent opinion? They are a mix, and that is Canadian politics.
Senator McCoy: I thank you, Senator Hays, and thank you for your long and distinguished service on behalf of the province I represent.
Senator Hays: Thank you for your favourable comment on your blog, and my compliments on your blog.
[Translation]
Senator Losier-Cool: Thank you, Senator Hays, for your report, for your availability and for everything you have done.
My main question concerns the representational role of the Senate. We have repeatedly witnessed speeches in the chamber conveying senators' concerns about how this representation will reflect the situation of francophones in minority settings, of Aboriginals and of women. Perhaps the independent appointment commission could examine this matter.
Do you have any suggestions to ensure representation by these groups?
Senator Hays: As we know, the Senate has evolved in such a way that Canadians in a minority setting can increasingly be assured of being well represented in our chamber.
There is no easy solution to this particular problem. How do we guarantee that minorities such as Aboriginals, francophones and, of course, women — who while not a minority group, are certainly under-represented in Parliament — continue to be well represented in the Senate? My suggestion would be to strike a commission that would ensure, through appointments or some other process, that minorities continue to be given serious consideration.
The Prime Minister would go along with this model where a commission would propose the names of individuals for appointment.
[English]
I do not know whether I am helping or not. The other way, and I have touched on it already, there is Senator Watt's concern that if we had constituencies — and this would come maybe with an elected Senate — such as Nunavik being a constituency in Quebec, then he would feel comfortable that that would be represented by someone from a minority within that province, in whole or in part, I do not know.
[Translation]
Senator Losier-Cool: Based on your analysis, should this independent commission be appointed by the Prime Minister?
Senator Hays: That is how things are now done at Westminster. Lord Wakeham's royal commission is recommending a more independent commission with additional responsibilities.
[English]
In my suggestion, we walk before we run. I suggest it would be a prime ministerial commission. I hope that the House of Lords' example of three political members and three other members would be a good precedent and that the Prime Minister would respect their independent advice. If a Prime Minister did not do that, it would be similar to the answer to Senator Andreychuk earlier: People would be watching and if the prime minister were manipulating what is to be an independent appointments commission, he or she would pay a high political price for that.
Senator Losier-Cool: My people are used to watching and have for years.
Senator Joyal: Thank you, Senator Hays, for, I would be tempted to say, your political will. I should preface my question with the following comment: It is sad in a way that you are leaving at this point in time, having had the experience you have had in the Senate for more than 23 years, having accumulated the experience, wisdom and capacity to see higher than the lines of the mountain where this institution should evolve. I am concerned, once you have given your testimony, about where matters go from there. That will be essentially my question, but before I elaborate on it, I cannot but concur with the suggested approach that your paper proposed. When I was reading it, I was reminded of my own personal writing in 2003. Allow me to quote myself, as I did before with the support of Honourable Senators Bank, Losier-Cool, Fraser and Hays in 2003, from the book that we published on the Canadian Senate, Protecting Canadian Democracy. I will read the last paragraph of the introduction:
This book contends that the same dynamic — that of constitutional evolution without formal amendments to the Constitution — can be applied to the improvement of the functioning of the Canadian Senate. To be successful, however, it is necessary to reflect on the origin, record and current function of the Senate within Parliament, as well as on the institutional principles and the political context in which it operates.
It refers to the fact that in the British system there are ways to get institutions involved. There is what we call the political convention, which adapts to the circumstances, and I referred to that; and section 44 of the Constitution allows for Parliament to make some changes; and generally there are changes that can be brought about by the usual amendments to the Rules of the Senate, as Senator McCoy has mentioned earlier.
It seems to me that your approach is one that makes sense, but I have the perception — I might be wrong, and that is why I would like your comment — that if the government of the day has decided to take an approach, and I am referring to Bill C-43, that proposes election, which you said is an issue fraught with challenges considering we are changing the method of selection of senators in substance, then we may be caught in a position where finally we have gone to get too much and we will not get enough of what is within reach.
Since you are leaving now, what do you suggest to those of us who remain here that we should be doing with the proposal you have put forward? As I say, on the substance of it, I concur with the process that you propose, but on the practical aspect of it, once you have left the Senate at the end of next month, what do we do with your proposal? How do we treat it as a committee, because we are seized with it at this committee? What do you suggest to us?
Senator Hays: That is a very good question and a good way to touch on it at the end of this session. Thank you for your compliments, and mine to you, and to all those who have done good work over the years on Senate reform. Your book on the Senate is an important piece of work. I have drawn on it heavily in the discussion paper, as have so many others. That is how we make progress. It will not happen in a flash; it will take time. That was a process that occurred a while back. We go back to the Molgat-MacGuigan committee and so on. All those things have a contribution to make, and their whole will hopefully result in good reform to our Parliament and in particular to our Senate.
Where do we go from here? I note that the reporting date for the committee is June 21. It is not likely that this committee will be able to do much with this proposal between now and then. It could be the Legal Committee, but this committee on aspects that are not controversial, and some of what I have proposed is not controversial. This committee could undertake the task of suggesting a Senate modernization bill on at least the non-controversial matters, and either suggest it be put forward as a government bill or that it be put forward, ideally, if the committee could agree, moved and seconded by the government and opposition side or the other way around.
On the controversial matters, it is the same process, only more difficult. The appointments process obviously is something that the Prime Minister or future prime ministers will be sensitive about, because it will constrain them, so they need to be convinced, but there are good arguments to be made. We have the example of Westminster. There could be some very good work of this committee.
Neither this committee nor the Senate alone will have much to do with the second phase, which is a process that would precede developing a model for an elected Senate. That should follow a Wakeham commission type of process with all its benefits of these white papers and joint studies.
The Beaudoin-Dobbie committee was not a bad process. It produced a really good report. My view is that if it had been left with the Beaudoin-Dobbie committee and its members, we would have come up with something that would have had a greater likelihood of becoming the law of Canada than that which the premiers ended up with. They had political agendas and non-negotiable items — equal number from each province, et cetera — that made it difficult and allowed for distortions and a bigger problem to develop.
Certainly, the Senate could put forward a modernization bill, as an approach to the more difficult issues, and make recommendations on them. The second phase must be a government initiative. Hopefully, the kind of discussion that is in the book you have edited, in this paper and in so many things that have preceded both at the federal and provincial level would be a reason for the federal government of the day to proceed with an initiative. First, it will have to be in party platforms — and I would hope to see that happen with the next election.
Senator Joyal: I understand that you are suggesting we extend the date of reporting and that the Rules Committee or the Legal Committee create a subcommittee that could receive the mandate to continue the discussion and study of your proposal and the other proposal that you suggest in order to come forward with a report. That report could conclude specific recommendations on amendments and changes that are within the capacity either of the Senate on its own or the Parliament of Canada.
Senator Hays: I like that suggestion, Senator Joyal. Of course, from earlier days, you and I have worked on this together at times. You are the first senator who comes to my mind when I think of those who have a special interest in this issue. You need to gather together a group, looking ahead to July, that would take it on. We could do good work. Remember, always, that this place will come up with better suggestions on change than will the Privy Council Office or its provincial equivalents. We will do a better job of ensuring that the good work of this place continues than will bureaucrats, who are asked by an executive branch of government to develop a reform package.
The Chairman: That is an appropriate comment to conclude today's meeting. Senator Hays, we are indebted to you. We appreciate your committing such clear and concise thoughts to paper and presenting them before the committee this morning. We wish you the very best.
Senator Hays: Thank you. It has been a privilege to come before the committee. Your patience, understanding, good questions and continuing interest are appreciated. We, as Canadians, all have a vested interest in the best possible Parliament imaginable to represent us here at the centre of our country. I thank you all.
The committee adjourned.