THE SPECIAL SENATE COMMITTEE ON SENATE
OTTAWA, Wednesday, March 1, 2017
The Special Senate Committee on Senate Modernization met this day at 12 p.m.
for the consideration of methods to make the Senate more effective within the
current constitutional framework.
Senator Tom McInnis (Chair ) in the chair.
The Chair: Honourable senators, I call this meeting of the Special Senate
Committee on Senate Modernization to order. Today’s meeting is in public.
Before the winter adjournment, we heard from the leadership of the different
Senate caucuses and groups. In my invitation to each of them, I asked them to
reflect on the following questions: Do you believe that political party caucuses
have a role and a future in the Senate? Does a modern Senate need governmental
representation? Does a modern Senate need an official opposition or any
opposition groups? What changes do you feel are required to our rules or
We then heard from Professors Lagassé, Heard, Docherty and Hicks on the same
issues. In so doing, we gathered considerable evidence about the Senate and the
fundamental aspects of the Westminster system. Today, we are continuing this
phase of the study by looking at the essential elements of the effective
parliamentary debate and deliberation, assessing how the Senate uses debate and
deliberation in performing its institutional role within the Westminster system
and considering how else the Senate might organize and promote effective
scrutiny. As such, the committee has invited Dr. Gary Levy and Mr. Thomas Hall
to speak on these issues.
Dr. Levy will commence with some reflections in the context of what we have
been hearing so far. Gary Levy is a research fellow at the Confucius Institute
of Carleton University. He also served, from 2013 to 2015, as a fellow with the
Bell Chair in Canadian Parliamentary Democracy at Carleton University and, from
1980 to 2013, as the editor of the Canadian Parliamentary Review and has written
extensively on parliamentary democracy, Senate reform and the Westminster system
throughout his career.
Mr. Thomas Hall will follow with his thoughts on how parliamentary debate
might be differently structured in light of what this committee heard about the
Westminster system more generally. Mr. Hall served in the House of Commons as a
procedural clerk for over 24 years. Since retiring, Mr. Hall has built upon his
experience by researching and writing about many procedural issues, including an
appearance before the House of Commons Procedure and House Affairs Committee on
the subject of prorogation.
Dr. Levy, we will begin with your presentation, followed by that of Mr. Hall.
Then members of the committee will pose questions for the two of you, I’m
certain. Please proceed.
Gary Levy, Research Fellow, Carleton University, as an individual: It’s
an honour to have been invited to appear. I’ll comment on a few issues that seem
to be central to your discussions.
It’s common practice for Canadians to proclaim ourselves adherents to the
Westminster model, but there’s little agreement as to what this means. Senator
Harder has argued that the Westminster system is flexible, and I agree with
that. But it’s not infinitely flexible.
Some scholars limit the model to the 16 members of the Commonwealth that
recognize the Queen as head of state. Others argue that, for practical
comparative purposes, the model is limited to the U.K. and three of the four
original dominions: Canada, Australia and New Zealand.
Some identify responsible government and the confidence convention as
defining features. Others think it’s the existence of an impartial presiding
officer. Professor Phillip Norton, perhaps the greatest living authority on this
subject and also a member of the House of Lords, has written that the
distinctive feature of the Westminster model is the concept of Her Majesty’s
My former boss at the Library of Parliament, Philip Laundy, also an expert on
Westminster, used to say that Parliament is, above all, a vehicle for
It may be argued that this logic only applies to opposition in the House of
Commons and that, in the upper house, opposition can take many forms, including
the view expressed by some of your witnesses that all 105 members can be
independent and in opposition. I understand that argument, but I do not think
that a Parliament with a completely non-partisan upper house is still following
the Westminster model.
On this point of what a Westminster system is, I recall a conversation with
an Australian political scientist. I asked him how Australia, with all of its
unique innovations, can continue to refer to itself as following a Westminster
model. He said, "We don’t. We call it the Australian model."
I think we are headed towards a Canadian model, and the question you are
wrestling with, without much help from our government, is whether the new
Canadian model will be better suited to the modern political context than what
we have traditionally called the Westminster model.
Senator Harder has also argued that we have little to learn from the House of
Lords. Professor Smith, whom I admire greatly, used more academic language to
say essentially the same thing. There are many differences between the Lords and
the Senate and between Great Britain and Canada. But, institutionally, we are
still closest to the United Kingdom Parliament, and we should take at least two
things from their experience.
First is the appointment process. Before the last election, I wrote a paper
recommending an independent appointment process, but I never envisaged a
commission appointing all senators or ending up with a 100 per cent non-partisan
Senate. I proposed the British approach, or a version of it, whereby some
members are appointed by an independent commission but most are still appointed
by the Prime Minister.
There are many countries where the opposition party leader has input into
upper house appointments either formally, as in the Trinidad and Tobago
constitution, or informally, as in the U.K. In my view, Canada would be
well-served by following this practice.
Another thing we can learn from the U.K. concerns the relationship between
the houses. As you know, by law, the House of Lords is limited to a one-year
suspensive veto over legislation. This has only been invoked four or five times
since 1911. More important are the conventions governing the relationship
between the houses.
Many senators have stated that we have a convention in Canada whereby the
Senate ultimately defers to the House of Commons in cases of dispute. We
certainly have that practice, but it’s hardly a constitutional convention. There
have been two cases where the upper house has forced an election, in 1911 over
the naval bill and in 1988 over the free-trade agreement. A third possibility
was avoided in 1990 only by invoking section 26 of the Constitution and
appointing extra senators.
In 2008, at the time of a minority government, a frustrated Minister of
Justice told the Senate Legal and Constitutional Committee that it had taken
long enough to consider an amendment to the Criminal Code, and if it it did not
pass the bill by February 28. He said, "I do not believe I would have any choice
except to advise the Prime Minister that I believe this is a confidence measure
and I will put the matter in his hands."
So the fear of defeat or obstruction has been the main reason successive
governments have worried about the partisan composition of the upper house, and
preferred to fill it with persons who could be counted upon to support it. One
way to mitigate partisanship would be a British-style suspensive veto since it
removes the incentive for partisan opposition. We also need to look at a less
well-known British device called the Salisbury Convention. It provides that the
lords will not obstruct bills that seek to implement policies contained in an
election manifesto. It was established in 1945 when the labour government found
itself with virtually no members in the House of Lords. The convention does not
affect the lords’ ability to amend legislation.
There are at least three other conventions governing relations between the
chambers and when disputes arise. As to the meaning of these, it is the practice
to refer them to certain committees, such as the 2006 Joint Committee on
Conventions and the 2015 review by Lord Strathclyde following the defeat of a
statutory instrument relating to tax credits.
If we are going to have a largely or completely non-partisan Senate, it is
important to have clearer conventions on relations between the chambers.
Let me turn now to the four questions that you have been considering.
Virtually everyone, including the unaffiliated senators, have stated that
political party caucuses do have a role in the Senate. Yet the number of
senators belonging to a political party continues to decline. It’s theoretically
possible for any of the newly appointed senators to sit with a party caucus, but
that has not been the practice.
Perhaps the reason is found in a recent speech by Senator Harder where he
claimed that only 14 per cent of Canadians prefer that senators be members of a
party caucus. That may be true, but I think it’s an overreaction to a particular
period and incidents. The idea that political caucuses are somehow the root of
all evil is not a good basis for reforming our institutions.
As to whether a modern Senate needs government representation, my answer is
yes. I was disappointed when Mr. Harper removed the government leader from
cabinet in 2013 and even more disappointed when Mr. Trudeau decided to follow
that precedent in 2016, because he combined it with a sleight of hand by
creating a position of Government Representative without amending the law that
creates the office of the Leader of the Government in the Senate.
The results are odd, and in my view, an unsustainable structure whereby three
individuals, the G3, are charged with pushing the government agenda, and
everyone else is either in opposition or on their own. One of the strengths of
the Canadian system, as opposed to the American one, is the presumption of a
leadership role for the government. It’s best fulfilled by having a member of
the Senate in caucus.
My answer as to whether a modern Senate needs an official opposition is
obvious from my opening comments.
Let me conclude with some thoughts on possible changes to the rules and
practices that might work, whether you have a body of 105 non-affiliated
senators or two, three or four parties.
The key is for the Senate to focus on roles that are not being well-performed
by the House of Commons. One of these, I would say, is examination or creation
of public policy. The house is losing its capacity to do serious public policy
studies. It devotes an inordinate amount of time to unearthing scandals such as
the cost of a glass of orange juice or where people spend their holidays.
Constituency service has been prioritized, public consultation processes have
been expanded, but opportunities for debate and deliberation have been reduced.
The Senate has always done useful public policy study in its committees, and
this can be continued and expanded. However, it should be coordinated around
government priorities, rather than a free-for-all for individual hobby horses.
It’s hard to see how this can be done without effective government input and
The second area relates to constitutional amendment. We have an odd situation
in this country where all parties reject any proposals that involve
constitutional amendment, due to an unsuccessful project 25 years ago. In my
view, we drew the wrong lessons from that experience and a de facto moratorium
on constitutional change is not an intelligent way to run a country.
Even the slightest change to the Senate would require approval of the
provinces. A week ago when Senator Hays appeared, he suggested that the Senate
should be proactive in seeking input from the provinces as to whether they would
agree to a particular constitutional amendment, starting with those that affect
the Senate. Of course, such amendments could be initiated by senators, since
they are not ministers of the Crown.
My final point, what the Senate may do, is in an area I call "procedural
modernization." I’m sure Thomas is more of an expert on this than I, but the
House of Commons has done little to improve its procedures, despite a number of
problems over the last few Parliaments. I wonder if the Senate could become a
model to the lower house in certain areas. I think you’re already moving in that
For example, the recent approach to Question Period whereby one minister is
invited to the Senate and questioned without a stopwatch and other obstacles to
effective questioning that exist in the house is a good example.
Televising the Senate is under consideration, and if this new approach to
Question Period was televised, I’m convinced the House of Commons would find
itself under pressure to offer something similar instead of its present format.
You are also looking at how to discourage omnibus bills, another area where
the house has real problems. You have suggested the Senate Rules Committee
develop a process by which omnibus bills are referred to an appropriate
committee to determine whether and how they could be divided into several bills.
That’s a step forward, but the simpler solution is for the Senate Speaker to
make that determination. The concept of an elected and presumably more
influential Speaker is something you are also examining.
Thank you for the invitation.
B. Thomas Hall, as an individual: I will give you a general background
view, and then I’ll go into concrete procedural things that I would suggest you
The Westminster system is located in the House of Commons, period. The House
of Commons is the locus of responsible government and is the house of
confidence. The Westminster system does not require an upper house at all. As
you know, there are many Westminster Parliaments in the former dominions that
don’t have upper houses, and none of our provinces has an upper house, yet you
would say they are following the Westminster system.
The Westminster system involves at least two parties. You have to have a
government side and an opposition side, but what that means is the lower house
is adversarial and majoritarian. Adversarial in the sense that these two parties
conflict with each other, or the two sides oppose each other, government
proposes, the opposition criticizes, and you have to get things through. You get
things through on the basis of having a majority in the lower house. Lower
houses in the Westminster system are adversarial and majoritarian.
With regard to the upper house, what does the Westminster system require?
Only one thing: That if you have an upper house, it has to be subordinate
politically to the lower house. Otherwise, responsible government would not work
if it were not subordinate. That was the problem in Australia in 1975. They do
not follow the Westminster system in their upper house. Their upper house is
based on Washington, D.C. So they really have a split kind of Parliament — lower
house Westminster, upper house Washington, D.C. — congressional, adversarial and
majoritarian again in their upper house.
If the upper house is politically subordinate, what is the Prime Minister
doing by appointing so many non-partisans? I would argue that rather than
looking at it as he is trying to destroy the opposition or political caucuses in
the upper house, what he is really doing is changing the political culture of
the upper house. By that I mean it will become non-adversarial and non-majoritarian.
This will enable it to perform its role as a critic of what the government has
done in the lower house more easily than if you were having a duplicate of the
lower house in the upper house.
The parties that exist in the upper house right now are extensions of the
parties that we find in the lower house. That has been good in some respects and
bad in other respects. We do not need to go into that.
If, as I think, that the Prime Minister is destroying the adversarial and
majoritarian climate or culture in the upper house, what is it to be replaced
with? That’s your challenge because you have no control over who the Prime
Minister appoints, but you do have control over how you respond to those
I’m going to suggest that the political scientists have come up with a
concept that is very useful in responding to what the Prime Minister is doing.
It is creating a deliberative and consensual upper house so that all senators,
as equals, are deliberating and examining the bills that the government has sent
through the House of Commons to the upper house. That is, in a sense, everyone
performs an opposition role vis-à-vis the lower house and the government. You do
not reproduce in the upper house, or there is no need to reproduce, this
adversarial and majoritarian view that the lower house has.
How would you implement this deliberative and consensual approach? I’m not
suggesting at all that you need to get rid of all of your political parties.
That’s another matter. It’s something for the individual senators to decide
whether they want to group together as members of parties.
However, I think that the wise approach here would be to reduce the role of
parties in controlling and directing the upper house. Here I agree with former
Senators Segal and Kirby when they suggested that there be some kind of
coordinating body for the work in the Senate. I’ll give you an idea of how what
I call the "business organizing committee" would work. It’s going to replace
what the parties do now in planning how the Senate operates. The government
controls what bills it will call from the Order Paper. Let’s turn that all over
to the business organizing committee. There is no need at all for a Government
Representative in the upper house.
What you would do — and I’ll give you an example here of how it could work —
if, let’s say, a bill comes from the House of Commons. It’s brought over by
message, as it is now. The Speaker announces that the bill has been received
from the House of Commons, a government bill or a private member’s bill, and, if
it is a government bill — let’s concentrate on government bills; that’s the most
important thing right now — the table officer reads the bill, and that is the
first reading. The Speaker then announces, either immediately or later, based on
what the business organizing committee decides, which committee that bill is
going to. The bill goes to the committee. Nobody is sponsoring the bill. There’s
no motion. It’s written in your Rules that the bill, when the Speaker announces
which committee it goes to, goes to that committee. Committees are going to have
to play a much larger role in a deliberative body than they do now, and they
already play a pretty important role. The committee then is going to be charged
with going through, tearing the bill apart, examining its good parts, bad parts.
They can call any witnesses they want, ministers, members of opposition from the
lower house, anybody. But they assign that bill to one of their own members to
report it back to the house.
Usually, in the European context, that’s called a rapporteur. The rapporteur
brings the bill back to the house and announces what the committee has found,
the positive points, the negative points of the bill, everything that they found
about the bill, explains the report from the committee. Then there’s a brief
debate or a long debate. Other members may ask questions about the bill. They
may express their opinions because they have read the bill on their own or
followed the committee and maybe even attended some of its meetings.
At the end of that debate, the bill is given second reading, or not, by a
vote in the house. If it passes second reading, the next thing on the schedule
is the amendments proposed by the committee. At this time, it’s on the floor of
the Senate. We’re at the amendment stage on the floor of the Senate. Any member
can propose an amendment at that time. Once the amendments have been dealt with,
it doesn’t go back to committee; the Senate gives the bill third reading or not.
One of the things that the committee may do that I’m proposing is that, if it
finds that the bill is irredeemable or has very serious flaws, in its report,
the rapporteur will say, "The committee has examined this, and the majority of
us find that the bill is defective in certain respects." A message could be
proposed by that committee to be sent to the House of Commons to tell the House
of Commons what they found was really wrong in that bill. It’s given them great
pause; they can’t amend it in a way that would be satisfactory. This would give
the House of Commons a chance to rethink that bill and see if they want to
proceed with it. If they respond to the committee’s message that they insist
that they want to proceed with that bill, then the Senate has a choice. If it
violates the Charter or the Constitution, if it’s a serious defect in the bill
that would harm a particular industry, let’s say the potash industry in
Saskatchewan, the tax changes are going to decimate that industry, then if the
Senate can’t amend the bill, it may be fully entitled to say, "We will not
proceed with this bill," and so report to the lower house.
Your powers to veto a bill are important, to be held in reserve. Don’t think
that anyone should ever say to you, "Get rid of those powers." They are like the
Governor General’s reserve powers; they are for emergencies, very serious
matters that can’t be remedied through an amendment and that the government
refuses to back down on. So keep them in reserve. Don’t use them casually, but
they are important.
So once the amendments go to the lower house and are sent back to the Senate,
it’s just like your procedures now. The biggest change here is sending a bill to
committee before you give it second reading, and that’s so that the committee
can deal with the bill and take it apart and tell the senators what they thought
of the bill rather than having somebody on the floor of the Senate who is a
minister or government house leader or somebody who’s standing in, pretending to
be the sponsor and telling you about the bill for second reading. You don’t need
that. It’s not that productive. It’s based on the false adversarial and
majoritarian model of the House of Commons.
What will come out of this, I would think, is that the Senate will be a very
strong critic of all of the government’s measures. The government is going to
have to up its game. I don’t know if the Prime Minister has realized the full
implications of creating a fully deliberative Senate. It will be a good thing.
It can be very powerful.
I’ll just add one more thing about the Speaker’s role. The Speaker is the
only person who has to be appointed by the government. I agree with Professor
Hicks. I think you can use the Speaker as the conduit. For example, if the
government wants to introduce a bill in the Senate, rather than finding someone
to sponsor it, they could send the bill to the Speaker, and the Speaker could
announce that he has received a bill from the government.
It follows the same procedure as if it had come from the House of Commons. It
goes to committee. It’s torn apart by the committee. It’s examined thoroughly.
Then the report goes on the floor of the Senate. The senators decide what to do
with the bill. Same process.
You don’t need to have a Government Representative in the Senate. One of the
reasons I dislike having the Government Representative in the Senate, I will
confess, is all senators have to be equal. You all have to be free to criticize
the bill or support a bill or half support it and half oppose it. Every vote is
a free vote and no senator should be deprived of that.
If you want to meet in caucuses, still do it. Have all the caucuses you want,
but the running of the Senate has to be taken out of the hands of political
That’s where the business organizing committee comes in. I would suggest your
procedures are a little old-fashioned and cumbersome. Rather than going through
your Order Paper every single day, things are on the Order Paper, the business
organizing committee, in conjunction with suggestions made by senators, and in
communication with the committees — where is the bill at, when do you think
you’ll be reporting it — can schedule when the second reading debate will take
place. The bill goes to committee after it’s introduced in the Senate. The
committee says they’re ready to report next week, and the business organizing
committee can schedule the debate.
When it doesn’t have any government bills, that’s the perfect time to
schedule your private members’ bills. You don’t have to do both every day. You
can set aside a day that will be second reading debate on bill such-and-such.
This day is going to be — we have finished second reading debate, it has been
approved — we will deal with the amendments to it and give it third reading.
It’s the business organizing committee that decides that, not parties. There
may be party members on the business organizing committee. In fact, I would hope
there would be as long as you have some political parties in the Senate, as well
as independents. It should be a mixture so that you can discuss and make sure
everyone is fairly treated in committee and on the floor of the Senate.
There has been a question about whether or not you would have regional
caucuses. Don’t have regional caucuses in the sense of political caucuses. What
you might want to do, however, because the territorial divisions in the
Constitution have been neglected from the very beginning, this leads some people
to feel as if, well, maybe we, in this particular region of the country, aren’t
really represented well in Parliament. We don’t have enough seats or something.
The Senate is designed specifically to counteract that, that you do have
representation from each of the four divisions of the country. That’s a nice
I’m going to read you something that the new Supreme Court justice said, if I
Justice Malcolm Rowe is quoted by a newspaper when he was appointed a Supreme
Court justice from Newfoundland and Labrador, and some of you may remember there
was a question of whether or not the Prime Minister was going to follow the
convention of appointing somebody from the Atlantic area. I congratulate the
Conservative Party for insisting that that convention be followed. That played a
role in helping to make a good decision.
Justice Malcolm Rowe said the following:
It’s important to have no blind spots, in terms of the whole country. All the
members of the Supreme Court of Canada must speak for the country. If you’re
from Quebec, you must be mindful of British Columbia. If you’re from the
Prairies, you must be mindful of the North. . . .[This] is a common undertaking,
but to do so effectively, it helps to have voices from across the country to
give a sense of the wholeness of the country and its components.
Professor Watts at Queen’s University says there are two aspects to a
federation. First is the constitutional division of powers. We have that in our
The second is that all parts of the country have to see themselves in the
shared institutions. The Senate can play a big, big role here because they will
be able to say and show, if you do certain things, that Quebec is guaranteed,
practically always, a quarter of the seats in that upper house. The least
populous provinces are guaranteed a quarter. Unfortunately, with Newfoundland
that’s a little over a quarter because Newfoundland came in late to the picture.
This is a powerful symbolism to the country, and that’s all that the regional
representation should be. I would suggest that you consider the possibility of
sitting as regions in the Senate, just so that this is visually shown to people,
but that’s up to you. It also does away with the problem of assigning seats, by
the way, because if you had regional seats you could put the older senators in
the front, newer senators in the back, and no quarrels about where you’re going
to be sitting in the Senate. It would be automatic, but that’s another matter.
It’s entirely up to the Senate, if they think that symbolism is important.
What I would suggest is if you do form a business organizing committee, you
do have representation from all territorial divisions and the North on that
business organizing committee, just so that no area, no group of senators is
going to be neglected in working out committee assignments.
You notice there I talked about committee assignments. The Committee of
Selection should be swallowed up by this business organizing committee, because
it will be very important to coordinate committees with what is going to happen
in the chamber; so you need one large committee to do that as a governing body.
You have three governing documents. I have probably gone on too long. You
have three governing documents. I’m proposing that you have three governing
The Chair: Very helpful. Thank you very much.
Senator Joyal: Thank you Mr. Levy and Mr. Hall for your creative
thinking. I was trying to follow your line within all the changes that would
have to be introduced in the procedure of debate in the Senate, if we were to
follow your suggestion.
One fact that is inescapable is that you have a Government Representative in
the Senate, that is, somebody who has the responsibility to move the government
legislation. Somebody has to be there to be able to reach a result, which is for
the Senate, as the Constitution provides, to give advice and consent to
legislation, and the government has a fair expectation that its legislative
program will be acted upon. That is, Parliament will finally pronounce on it.
The role of the Government Representative is essentially to make sure that
the government legislation receives due consideration in the Senate. We have
seen that, since we have had Senator Harder, the government is going to an
individual senator of his choice to have that senator briefed by the department,
to meet the higher officer of the department and to receive an explanation and
an understanding of very complex legislation. There is very little legislation
that reaches the chamber that is not complex, by all of its implication. I don’t
need to give examples. Be it on drugs, be it on the issue of health, on
Aboriginal issues and so forth, the implications are multiple. Senators
individually, and I certainly will not pretend otherwise, are not omniscient. We
don’t know everything to an expert level. Fortunately. Our head would explode.
By identifying a senator and that senator receiving a briefing from the
department, he or she has the whole background of the department to help him or
her to support the bill.
I do not see how we could have an effective debate in the chamber if there is
not a countervailing capacity to go, at length, to the government proposal and
study it in as much depth as the government has the capacity. Otherwise, you
give to the government the overall access to all of the government’s resources,
and you leave all the other senators on their own to be able to challenge the
government presentation of the bill.
I think that there is an imbalance there that is, in my opinion, not
conducive to a thorough debate and study of the legislation, hence of
opposition, that is, another group of senators who have access also to research,
who could also commission their own research and be, to a point, at par in
making sure that there is a minimum of capacity in the group of senators who
think that they should oppose that bill for x, y, z, reasons and want to improve
the bill through amendments or want to defeat the bill, to see the bill
defeated, or to see the bill stayed for additional initiatives being taken by
So it seems to me that the very common sense of the rapport, the force,
between the capacity of the administration to stand behind a senator to
understand and defend a bill calls for, on the other side, a similar, comparable
capacity. As Professor Levy has said, government is about opposition. As I
always say myself, Parliament is as strong as its opposition is able to
challenge the government because that is the essential role of democracy, the
multiple expressions of views in relation to a bill. So I don’t see how we could
reach an as effective capacity to challenge the government on its legislative
proposals if we don’t manage to have some sort of an opposition ingrained in the
system. That is that, structurally, it exists.
It could be the official opposition of the House of Commons or the party that
has the majority of seats. We can discuss that. But I don’t think we can get rid
of the formal idea of balancing the government apparatus behind the legislation
versus individual senators, and we don’t know who could have an interest in that
bill and would be ready to invest himself or herself as much as the government
can support the bill with all the resources of the administration behind that
I tell you, I’m not sure that we can part with that very structural
definition of how we manage the two groups, the opposition versus those who
support the bill. We can decide to organize the opposition on each bill.
Senators could say, "On that bill, I’m opposed to it," from the beginning. But,
we would not get rid, as I say, of the idea that the opposition has to be
structured and not to come along when we study a bill and finally discover that
we might have something against that bill. I do not really see how, with the
pace of legislation, the number of days we sit, the number of issues there are
to cover, there is another mechanism that could be as effective as that one.
Mr. Hall: What you described perfectly is the House of Commons. You have
that in the House of Commons. You have the adversarial situation with government
and opposition. That’s all being done in the House of Commons.
So is the Senate supposed to be a mini House of Commons, duplicating exactly
what the House of Commons does? I don’t think that that’s the best way to
achieve how the Supreme Court has described the upper house. It has described it
as a revising house, a house of sober second thought, a house that is not a
rival of the lower house, a house that complements the lower house. Actually,
the process I have described was intended to give you a way of answering the
very serious questions you have raised in previous meetings, namely, how does
the work gets done if you don’t have parties running it?
My answer to that is that it gets done in two ways — the business organizing
committee, to coordinate the work on the floor of the Senate, and with the
committees themselves. If a bill goes to a committee, they need to designate a
rapporteur right away. That rapporteur is in charge of meeting with the
government, meeting with public servants, saying, "Okay, the committee needs to
hear from so-and-so and so-and-so." That rapporteur is basically in charge of
the bill. Not defending it, not opposing it but finding out about it and being
able to tell the committee about it and making sure they hear the appropriate
witnesses and also, when the committee reports to the Senate, telling the Senate
about the committee’s report.
If a bill is very big, you may want to have it divided up in the committee
and have more than one rapporteur because some bills are just too complicated to
have one rapporteur. It is the rapporteur who plays that role.
I’ll just say one thing about moving motions. There are two ways that
business gets done on the floor of a legislative body, through motions that are
adopted and become orders, or through the Rules, which is why the House of
Commons calls their rules Standing Orders because they are orders of what can be
done. So you don’t need to move a motion to get something done if it’s written
into your Rules that this is what happens.
So, if a bill comes in, the Senate Rules should say that the bill is
announced by the Speaker, given first reading by the table officer and sent to
the appropriate committee designated by the Speaker or designated by the
business organizing committee.
The Chair: Not to cut you off, but you can see the clock on the wall. I
really have a big list here, and I’d like to try to terminate by 1:30 because I
wanted an in camera meeting.
Mr. Levy, would you like to respond quickly?
Mr. Levy: Well, Thomas made a number of excellent points, as did Senator
Joyal. I’m not sure I can respond to all of them in a short period of time. I
just noted that Meg Russell was one of your witnesses from the upper house. She
noted that there is not a single example of an upper chamber that is purely
non-partisan. I think that alone would give me pause for thought.
Thomas also mentioned trying to create a consensual political culture, but
the legislatures reflect our political culture in the country. I’m not sure we
have a consensual political culture. The two legislatures that have non-partisan
assemblies, Nunavut and the NWT, maybe do have a consensual culture. So I’m not
convinced that having the house represent our adversarial culture and the Senate
— a consensual approach — would necessarily work.
Mr. Hall: Can I intervene? He said he is not sure there is another body
that has the kind of situation that I have described. There is no other upper
house in the world that is exactly like our Senate that exists now.
Senator McCoy: I will be as brief as I can. I know there are quite a few
people wanting to ask questions. First of all, how would this business
organizing committee be established?
Mr. Hall: I think it should be elected from the floor of the Senate.
Senator McCoy: We’d have all senators in a secret ballot or something?
With a provision?
Mr. Hall: You have to decide whether you want secret ballot or open. It
should be that all senators decide who is going to be coordinating their
Senator McCoy: And with some provision that there must be at least one
person from each division. We might go a little broader because the North is not
really a division. So we might want to have a northern voice there as well.
Senator Joyal, as always, there is a practicality that drives you, as well as
some deeply-held beliefs. But the practicality is having as many resources to
propose, as there might be to examine, the proposal. I’m going to say "examine"
the proposal as opposed to "oppose" the proposal.
I think I would like to see us moving toward a position where we are
examining each and every proposition that comes before us. I want to make the
point that as things stand at the moment, we have had members of ISG who have
sponsored bills, and who have said in briefing us, "I have to tell you, when the
government came to brief me and the civil servants were briefing me, they did
not give me all of the information. They did not answer all of my questions. I
needed to go and find out the answers to those questions myself."
I recently asked for a briefing note from G3 on one of their bills, and what
I got was talking points that would have been worthy of somebody from the PMO
five years ago. This is not what I consider helpful. It’s not the organizing
committee. At this point it would be, it seems to me, giving sufficient money to
each committee so that they have the resources behind them, and they can go out
and muster all of that research and examine resources to properly examine a
proposition. You are saying yes?
Mr. Hall: Yes, I would agree with that. In fact, money that is now spent
on caucuses, I think, should be redirected to committees so that work, the
information that your secretariats put together, is shared by all senators, so
then you really have a central secretariat sharing information, gathering
information, both for committees and for individual senators. Then you know
everybody has as much information as possible, rather than some information for
this political party, and other information is for that political party, and
this information is collected by the Independent Senators Group. Let’s pool our
resources, and maybe we would even save a little money along the side.
Senator McCoy: Okay. Thank you. I won’t pursue it because there are so
Senator McIntyre: Thank you for your presentations, which I found rather
I have noted the specific recommendations of your own that you wish the
Senate to consider, and I thank you for same.
In October of last year, this committee filed a report on Senate
modernization. It contains 21 recommendations. Bearing that in mind, and turning
to this committee’s mandate more generally, do you have any comments on the
recommendations this committee has already issued?
Mr. Hall: No, I think you suggested Question Period maybe twice a week. I
would have thought maybe once a week might be sufficient, except exceptionally
for twice. I think your idea of calling ministers and officers of Parliament is
a great one. You might even extend that to others.
One of the things I observed when I was on assignment in Quebec City is that
they had a process — I don’t know if they still do — that on certain Fridays of
the sitting, a particular committee would sit in the chamber and grill the
minister that reports to that committee. Basically, that’s what you’re doing now
on the floor of the Senate. I thought it was a very productive exercise when I
was in Quebec City. I’m glad to see the Senate has adopted that on its own. I
think that’s a great innovation.
The chair finds I talk too much, but if I might suggest, there are two other
things I think the Senate could do that would increase your role. You serve a
very long period of time. And the members of Parliament don’t. You develop an
expertise and knowledge. Senator Joyal said you don’t know everything, but you
learn a fantastic amount in the time that you serve in the Senate.
Members of Parliament rarely get that opportunity. Their focuses — I say that
from working in the House of Commons for so long — are on the constituents, on
the party and on this, that and the other thing. They don’t even stay in the
same committee all the time. The whip is constantly replacing them.
I would suggest that you consider doing what they don’t do, which is
scrutinizing government administration more carefully, rather than just calling
ministers. I think the senators could do a great job coordinating with the
Auditor General, and looking at the administration in more detail than the
members of Parliament do. They don’t do a particularly good job at that.
The other thing is — this is along the same line — that you have a joint
committee that looks at delegated legislation, which is statutory instruments.
Take that away as a joint committee and make it just a Senate operation. I think
the senators would do a better job, frankly. That’s a lot of work, and it’s
productive work, because government regulations are ignored by the House of
Commons, except the few MPs that sit on this joint committee. It’s rare that
they take a big interest in it, I think. Derek Lee was probably the last one
that did. Those are two suggestions.
Mr. Levy: Basically, I liked all the recommendations in your report. I
mentioned the question of omnibus bills. I had a slight difference on that as I
thought maybe the Speaker was the one who would decide that.
In any event, I think that’s so important because I basically lost any faith
in the House of Commons being able to deal with omnibus legislation. In the last
Parliament, we had an omnibus budget bill that changed the process whereby
people are appointed to the Supreme Court until the court finally declared it
was invalid. If the House of Commons cannot stop an omnibus bill like that, then
I think someone else, such as the Senate, has to step up and do it. If you were
to divide a bill or two, I think they would get the message very quickly.
I don’t think there was a recommendation about the use of time. That is
something that might bear looking into. It’s more an issue for the House of
Commons, but I think there is room for a business committee with a specific rule
on how you use your time on different bills. The U.K. has moved in that
direction in the House of Commons. I wish our House of Commons would follow, but
I think there’s a better way to come up with how you divide up your time. That
might be something to look into in the future.
The Chair: That part is coming.
Senator Eggleton: Thank you very much to the both of you for coming and
for your ideas. You’ve given us some good ideas, both of you. I particularly
want to single out what you said, Mr. Hall, about what the essence of the
Westminster system is and it’s the lower house. It’s the adversarial system,
it’s the confidence structure, it’s the executive within the framework of the
lower house. The upper houses in the Westminster system are all different. We’re
different. U.K. is different. They’re all different, and they can be in fact
moulded to what each country wants in terms of an upper house, so I think we
have a Westminster system but we have a differently designed upper house.
I want to talk about partisanship. This gets a lot of play. The appointments
are coming for people to be less partisan and more independent. Partisanship is
generally — I think most of the public as well — associated with the traditional
political parties. In fact, part of our rules or legislation, I can’t remember
which one it is, says in order to be a party caucus we have to be a member of a
political party that’s registered with Elections Canada. Well, there’s only the
Conservatives, the NDP, the Liberals and maybe a few others, but it’s the
traditional political parties.
Why couldn’t we have separate partisan groupings here? People who would form
on the basis of their common beliefs, their values; certain people are
like-minded in many ways, and maybe they form a group. You could consider that
partisan, but it’s not part of the political party structure.
In fact, being part of the traditional political party structure is a problem
in terms of the intention of the Fathers of Confederation. They said they wanted
an independent house. Well, I can tell you as someone who has sat in a caucus
for many years, both as a senator at one point in time and also as a member of
the house, you’re not very independent as part of a member of that national
caucus. It’s all hyped and geared towards a team approach constantly. So I think
that flies in the face of independence.
If you’re saying that there’s nothing wrong with being partisan and if we’re
going to follow the Fathers of Confederation in terms of independence — and, of
course, that’s what the Supreme Court also indicated — then why don’t we just
have separate partisan groupings based on common values and beliefs? What do you
think of that?
Can I mention one other thing? In this connection, the whole idea of ensuring
that there’s critical comment and critical examination of legislation, I would
suggest to you doesn’t require a political party structure. It doesn’t really
require a partisan grouping structure because — and I’ve said this to my
colleagues before — the sixth-largest government in this country does not have a
political party structure. It’s bigger than half the provinces. It’s the City
Council of Toronto. I can tell you that while it doesn’t have a political party
structure, when I was Mayor of Toronto I had no shortage of critics, no shortage
of people that said, "There’s one mayor and the rest of them think they could do
a better job."
Senator Tkachuk: It’s such a well-run city. It’s a great city.
Senator Eggleton: It’s as well run as any government in this country.
Mr. Levy: What you’re saying and what Thomas was saying is perfectly
possible in theory, but I think we have to deal with some reality. We also have
to say that the Senate now I think is functioning quite well, but it’s also in a
very particular time. It’s the start of a new Parliament and you have a
situation where there’s no permanent leader of either of the main opposition
parties in the House of Commons. So it’s a rather unusual period.
As we get closer to the election, as those parties have leaders, things are
going to get more partisan in the House of Commons, especially as you get closer
to the election. This is going to spill over into the Senate. I’ve lived long
enough and seen enough to know that is going to happen.
You have an opposition established in the Senate that is going to oppose, and
we don’t have conventions as they do in the House of Lords that say government
business should be dealt with in about 60 days. So you could have obstruction
and a lot of delay. Then the non-partisan senators, the unaffiliated senators,
are going to have to make a decision. Are they going to support the government
on vote after vote and get its legislation through or are they not? And if they
do, then the question will arise as to why are they really not part of the
government caucus since they’re helping to get their legislation through? I
think that whole spectacle tends to erode the credibility of the institution in
a way that wouldn’t if they were in a party. I think that’s the road we’re
I do agree, as you said and as Thomas said, that there are other ways that
could work in theory, but I don’t see it working in reality.
Senator Tkachuk: I have a couple of questions for Mr. Hall. Thank you
both. Nice to see you again, Mr. Levy.
We’ve discussed this question of non-partisanship and partisanship quite a
bit in this committee. Do political parties make you a partisan or are they a
vehicle for people with certain beliefs to go into? When you talk about
partisanship, what are you talking about — people’s belief systems? If I joined
a political party that makes me a partisan and before joining it I’m not a
partisan, even though I’m a Conservative?
Mr. Hall: I’ve only used the expression "non-partisan" in the context of
the appointments that the Prime Minister is making. My understanding is that
means they’re not members of any political parties and they’re not appointed to
sit in the Senate as a member of a party.
Senator Tkachuk: Does that make them non-partisan? My view, so it’s
obviously a partisan view, is that they’re all left of centre, so what’s the
difference? Why wouldn’t they join the Liberal Party and say what they are, or
NDP or the communists, for all I know?
Mr. Hall: He may be appointing people who are left of centre because
there are already a number of Conservatives here.
Senator Tkachuk: Exactly. So we are going to have a partisan Senate
because that is what we are. We are partisan. We have all those people being
appointed by the present Prime Minister who aren’t Conservative. I know they’re
Mr. Hall: The majority of Canadians do not belong to any political party,
and I think the fact that he’s appointing people who don’t belong to a political
party is an opportunity to recognize that the majority of Canadians aren’t in
this adversarial position. It’s not like the United States where everybody is
divided between Republican and Democrat, even down to school boards and
municipal bodies. It’s incredible down there. But here that doesn’t exist.
Senator Tkachuk: But is that a good thing or a bad thing? I’m saying that
on city council in Saskatoon we don’t have political parties, but I know who’s
left and who’s right and everybody in the city knows who’s left and who’s right.
The only difference is they don’t spend the money to buy a membership and get
involved in the process.
My view is that when you talk about non-partisanship and the media talks
about non-partisanship, they’re talking about a situation that does not exist.
Everybody has a brain in their head and everybody is a partisan. Therefore, if
you’re saying you want a non-partisan Senate, I’ll tell you how you get one. You
put in a left-winger and you put in a right-winger. You put in a left-winger and
make sure they’re equal and then you’ll have discussion on the bill and we’ll
have a non-partisan Senate, otherwise it doesn’t work. There is no such thing as
a non-partisan Senate.
Mr. Hall: That’s one interpretation.
Senator Tkachuk: That’s the only interpretation. If you have 80 per cent
of the Senate that are left-wingers, then the Senate is left wing. There’s no
discussion of views. It’s only one view. Watch the vote in the next few years
and see what happens in the Senate. It will all be the same.
Mr. Hall: I’m glad you made that point, because here’s where I disagree
with Professor Levy. Don’t look at your votes to decide whether a person is
voting for the government. The Senate should pass most government legislation,
not vote against it. You’re not supposed to be a rival of the House of Commons.
If you were a rival of the House of Commons, then you would be defeating
bills from the House of Commons. It should be rare that you defeat a bill. It
should be more frequent that you suggest an amendment to the bill, but the rest
of the time you should examine the legislation and see if it’s acceptable. If
there’s nothing wrong with it, and you can’t suggest any amendments, then pass
it. That doesn’t mean you’re in favour of the government; that means you’re
doing the Senate’s work.
The Senate’s work was to scrutinize the bill, and once you’ve scrutinized it,
pass it or suggest amendments to it. It’s not voting for the government. You
shouldn’t be voting against bills.
Senator Tkachuk: I would suggest, sir, that is our culture. Our culture
in the Senate, or at least the Senate that I’ve been part of, we’re very careful
about defeating a government bill. As an opposition member, it has only happened
once. That’s it.
Do you know that in June of last year, the budget was passed in committee
with the Conservatives being in the majority? The Conservatives were in the
majority. Everyone else had gone home. We were the only people in town, and we
passed the budget because there was no one looking after our business.
That is our culture, sir. That is the way the Senate operates now.
Historically, if you do your work, and you look at how the Senate operates, that
is how we operate. We take that very seriously, because we know that people went
to war to have a House of Commons that was elected and independent to the King.
It’s important to us, and we understand that.
Mr. Hall: It’s also part of the Senate’s history that Brian Mulroney,
when he formed government, had his bills blocked in the Senate. That is also
part of the history —
Senator Tkachuk: I’m talking about Conservative culture, not Liberal
The Chair: Time is of the essence. Please.
Mr. Hall: My point is that there have been terrible abuses in the past.
Senator Tkachuk: I agree.
Mr. Hall: And if we get rid of that culture, perhaps we won’t have the
abuses of the future.
Senator Dean: Thanks to our expert witnesses for terrific presentations.
Given that this is the last question, this is probably the time for me to admit
that I have a degree in sociology.
Mr. Hall, I like the concept of a deliberative Senate. You said two things
that are really important. One is the importance of reducing the degree to which
parties control and direct the upper house. You also made the point that every
vote should be a free vote. This is consistent with where the Supreme Court went
on its reference decision in 2014 in talking about a more independent and less
partisan Senate. It’s consistent with where the Prime Minister has taken us and
is going with appointments.
Regardless of design and mechanisms, whether there’s an organizing committee
or caucuses, whether there’s something called an official opposition or an
unofficial opposition, should there be a principle, as we go forward, that in
this more deliberative enterprise that senators, in adopting positions and in
their voting, should be free of influence, coercion, sanctions and any other
influence that might persuade them away from their intellectual and natural
inclinations, having heard the evidence on a particular issue? Regardless of
where we go on design, is that a principle that goes to the heart of a more
deliberative, independent and less partisan Senate?
Mr. Hall: Yes, I would agree. I should mention that the idea of making
this a more deliberative body is not mine; I stole it. It is a British
professor, Professor John Parkinson, who has written a nice paper on
deliberative democracy and how it could be adapted to the House of Lords and
that it would serve as a complement to the House of Lords. Deliberative
democracy is another way of doing democracy where you’re not voting. That’s the
political scientist's term. Gary probably knows more about it than I do.
Basically it’s the idea that rather than having a majoritarian system, you’ve
listened to debates in the House of Commons; you know what the government and
opposition parties are going to say. Who wins? Whichever one has the most seats.
That’s the majoritarian. So it’s adversarial and majoritarian.
In the Senate you should be discussing the evidence. What does the evidence
tell us? We’ve heard from so and so, and we do bring our own personal views.
Senator Tkachuk is quite right about that, and that’s good because you want a
mixture in the Senate. You don’t want everyone with the same view. That would be
a rubber stamp. You want the argument to take place in the committee and to
bring those facts to the floor of the Senate, but you’re free to judge them and
react to them all together, as senators, without any party line or party rules.
You’re not looking at any partisan advantage, but judging it on the way you
understand it should be done.
Senator Mercer: Senator Tkachuk, you almost had me agreeing with you 100
per cent until your last comment, because he makes a good point.
I have a bunch of things I would like to say, but I’m going to stick to the
one that I’ve been before the committee with before. Mr. Levy, in your opening
comments you made reference to the election of the Speaker of the Senate, but
you didn’t give an opinion. I’d like to hear your opinion. Obviously, Mr. Hall,
if you care to comment as well.
Mr. Levy: I’ve changed my view on the role of the Speaker. I didn’t used
to think it would be a good idea to have him elected, but given that you’re
rethinking the whole idea of the Senate, it is time to also look at the
speakership. I think an elected Speaker would be desirable for all the other
things that have to be done. You need a strong Speaker.
In your proceedings I heard at least three people and they all had different
views as to what type of amendment formula would be required. I have my view,
but I’m not a lawyer, so I’ll defer to them. There’s also a non-legal way to do
it, which has been mentioned. It’s a good idea whose time has come.
Like I said, I used to think that, as Thomas mentioned, the Speaker, someone
who is appointed by the government, might be — in fact, I think in his
presentation he was almost suggesting that that person could be the government
representative. That would be another approach.
As we know, in the U.S., the Speaker is the head of the political people, but
I don’t think we want to go in that direction. I think we want to stick with an
impartial and powerful Speaker, and therefore, I think he should be elected.
Senator Dupuis: Thank you to our two witnesses for helping us reflect on
what the Senate committee has called the modernization of the Senate, that is,
the expectation of major changes in the way Senate appointments are made and in
the very essence and operation of the Senate.
Just as being a member of a political party does not discredit anyone in the
Senate, not being a member of a party does not discredit them either. In recent
months, we have heard disparaging remarks about the new independent senators,
and the fact that they are not members of a political party seems to be the
Here is my question for you, Mr. Hall. You talked about opposition and I am
sensitive to Senator Joyal’s arguments about the need for the Senate to play a
critical role in examining the bills referred to it by the House of Commons. The
first of my two questions is the following. Is it mentioned anywhere that the
opposition to or criticism of bills must necessarily come from the official
opposition, that is, from the party that is the official opposition in the House
of Commons? Is it possible for the role of the opposition, as a critic of the
bills put forward by the government, to be played other than by the party that
is the official opposition in the House of Commons? In the current context, what
would prevent the NDP from playing the role of official opposition in the
Mr. Hall: I completely agree with what you are saying. There is no reason
that a single party has to play the role of official opposition. It is not a
play, where one character has to oppose a certain bill and another character has
to defend that bill. It is up to each senator to decide if they wish to oppose
or support a bill. You must all play that role of critic by examining the bills
from the House of Commons. This role is not exclusive to a group of senators
designated as part of the official opposition.
That is how it works in the House of Commons right now, but the same model
does not have to be reproduced in the Senate. You are free to criticize bills
put forward by the government.
Senator Dupuis: Mr. Hall, in the process you have conceptualized and are
presenting to us today, have you considered the possibility that the role a
minister plays in defending a bill in the Senate could be played before all
senators, so that everyone has the opportunity to understand the details of a
bill, instead of it being referred to a committee? If I understand your process
correctly, this would take place at a committee meeting. Have you imagined
another scenario where this discussion with the minister might take place in the
Senate chamber instead?
Mr. Hall: Yes. If we include that idea in what I have already proposed,
we could do that in the Senate. Once the committee report is tabled, senators
could ask to hear from the minister.
Senator Forest: In my opinion, it is clear that you decided to create the
Committee on Modernization before the much talked-about period during which the
large cohort of independent senators was appointed. It was stated at the time
that it was necessary to reflect on updating the Senate in order to bring it
into line with Canada’s current values and reality. That was to be done in a
context in which Canadians’ trust in the institution may have been shaken.
To pick up on Senator Tkachuk’s very astute observation, I would say that
being partisan means having values and beliefs that guide our decisions. I hope
we are all partisan in the Senate because, without values or convictions, I
wonder what we would base on our decisions on. What threatens the operation of
our venerable institution is partisanship, but having values does not make you
I have two quick questions for you, Mr. Hall. When examining an institution,
we have to look at its essential mission. There are a number of documents and
opinions, in particular the Supreme Court reference in 2014, which stated that
the Senate exists to provide a second, non-partisan review, to represent the
interests of the regions, minorities and underrepresented groups and to
strengthen our laws in order to reflect those realities. Looking at the genetic
make-up of the institution, I think non-partisanship is a very important
As to Question Period and the way it works now, what is its purpose? Is it to
inform the Senate about the bills under consideration or is to highlight or
accentuate the fact that promises have been broken?
What is our objective as an institution? What added value does Question
Period provide for our mission of improving the bills under consideration? In
terms of "questioning", it is the manifestation of partisanship that is not
healthy for the institution. That is my personal opinion, and perhaps you will
convince me otherwise.
In our discussions about Question Period, Senator McCoy said it is not easy
to get information. I recognize the important work that is done in committee,
but we cannot serve on every committee.
I spend all my time in committee. I do not know why I have an office because
I am always in committee. Apart from that, as to the other matters that are
addressed by other committees, could Question Period not serve to at least
inform all senators?
Although I am an independent, I would never be forced to vote a specific way.
I am not here for that. I want to make up my mind based on my knowledge, my
values and my convictions. I want to make a decision that is in the best
interests of those I hope to represent, not by being elected, but based on my
experience and reality.
As to Question Period, I think we should give some thought to making it more
relevant and effective for all members of the Senate.
Moving on to my second question, we have made many changes to the way debates
proceed. In the past, the government leader in the Senate was in the chamber.
Now there is a team representing the government. I agree with Senator Joyal: the
government’s legislative agenda needs to be coordinated with the priorities of
all members of the Senate, either through private bills or through committee
work. Could there not be a model, such as the one of the government
representatives, whereby representatives of the Senate, with a fairly small
team, could work with all senators, whether by group, affinity, caucus or
otherwise, for the purpose of coordinating our work for greater effectiveness?
We have a responsibility to Canadians. We are not here to delay files, but
rather to move them forward. Some coordination is needed. How could our work be
more effectively coordinated? The proceedings of the Senate will be televised
soon. We have to think about how we could be more effective.
Mr. Levy: You raise so many questions about partisanship. In terms of my
presentation, I want to be clear that I don’t think the members should be part
of a national caucus. I wouldn’t go that far. I don’t think there should be
whipped votes. I don’t think there are whipped votes now in any party.
I have a slight disagreement with Senator Tkachuk in that I don’t think
absolutely everybody belongs to one of the two or three parties. There is room
for some independence. Some people are just not happy and don’t fit in parties.
There should be room for them, as there is in the UK with a small number of
independents. I’ll leave it there.
Senator Lankin: I have a couple of comments and a question. There is much
more that I hope we have an opportunity just to discuss these ideas with each
other and explore them. The partisan/partisanship question is a really
interesting one in getting to the root of those words, what they mean and what
people actually object to or don’t. We could spend time on that at another
The Chair: Behind closed doors.
Senator Lankin: Yes.
For the record, I want to say to Senator Tkachuk that if you were referring
to last June and the vote on the budget that you’re incorrect to say that it was
only Conservatives here and everyone else had gone. I know from myself and some
of our colleague that we were here. We were not at that point in time allowed to
vote, because the Conservative caucus had not agreed to a motion to allow us to
be members of committees and vote on committees, but we were here. That’s just
to correct the record on that.
Senator Tkachuk: You’re not correct but —
Senator Lankin: I do note the scenario you talked about, Mr. Levy, where
you could have an opposition party voting against government legislation and all
the independents might feel compelled to vote for a government piece of
legislation, because of the role of the Senate in terms of when we should be
voting against and what we’re looking for in terms of constitutional compliance
and other things.
That’s quite right; in fact, that has happened. When Senator Tkachuk says
that the culture of this place has been, for example, the Conservatives in
opposition to raise issues but vote for a government piece of legislation or a
budget to maintain that convention of what our role is, I would say that was up
until the time that there were enough independents that they didn’t feel
compelled to do that anymore and now regularly vote against, and leave the
independents in the situation of determining what our job in the Senate is and
when we should vote for and against, and then point to those votes as being
evidence of lack of independence. To me, that’s an element of partisanship
versus the role of partisan values being brought up and explored in debate.
The issue of how we get information and research, and explore and examine
bills from a critical base of evidence is a really crucial one. Any kind of
change that allows us to do this job in a thorough way and explore all sides of
an issue, without it being vested in a research bureau within caucuses, per se,
is a critical one for us.
Forgive me if I’ve mentioned this before, but a number of years ago, I had
the opportunity to bring an assistant deputy minister from the U.K. over for a
special project with us. He told me at the time that he worked in the Whitehall
Research Bureau for the opposition. I don’t know what it was called. But it was
a parliamentary-funded office that provided deep opposition research for all
opposition parties. I think the caucuses had their own particular top-up on
I wonder if you’re aware of that. I don’t know if still exists. If I haven’t
asked before: Is there any way we could look into finding out what was that was
and if it was deemed a successful model? If it doesn’t exist, maybe it was
deemed unsuccessful. I’d like for us just to learn from that experience.
Is that a potential way to be able to provide, beyond the kind of research
that the Library of Parliament does, with a critical eye of examining
legislation the kind of information that all senators would need?
Mr. Hall: I’m not familiar with that particular setup. However, I would
say that I don’t think it should be within the government, but I do think you’re
going to need a more robust kind of research. It’s not just research but also
ensuring that everybody has the information they need so there is a
communication and a flow there, so that all senators can be aware of what is
As the senator said, you may want to have during your Question Period chances
for committees to inform the body of senators what they are doing and the
progress of the work. That’s not a bad idea at all.
But yes, you should have a more robust system than the library might be able
to provide you with at this time.
Mr. Levy: Briefly on that, it also applies not just for legislation but
for some of your public policy studies. If you’re going to do serious work on
public policy, you may need to hire on a short-term basis — a year or 18 months
— someone who is a real expert in that area. That would go a long way to
improving the level of the public policy work the committees can do. So I’d
encourage you to do that.
Senator Tkachuk: It should be clear that senators do have a large budget
to hire people outside, so if a person wants to do their own research, there is
lots of money available in senators’ budgets.
Senator Frum: Mr. Hall, I take it from your response to Senator Tkachuk
that you anticipate, as do I, that in three years’ time at the end of this
Parliament when we look at the voting record of the independent senators who are
appointed by Prime Minister Trudeau that we’ll see in almost every case that
they will have voted in support of government legislation. Your point was that’s
as it should be. That is correct. And that’s fine.
But when you look at my voting record, when I was on the government side, I
had the same voting record. One of the reasons we’re here at this table and have
this committee is because when the Conservatives voted in support of government
legislation, we were told this was toxic, poisonous partisanship, and that we
were applying a "rubber stamp," a phrase you used earlier. But you’re also
saying that when you look at the voting record in future, the independent
senators will have had an identical voting record, but in that case it’s not
meaningful because that’s as it should be.
So I don’t understand the difference between the Conservative rubber stamp
and the independent senators voting for the government, as it should be. Can you
explain the difference?
Mr. Hall: I never said the Conservatives were giving a rubber stamp. I’m
not responsible for those accusations at all.
The real test is not how you finally vote for a piece of legislation. The
real test is amendments. Did you propose amendments that were needed, or did you
just let the thing slide through? Not every piece of legislation requires
amendment either, but did you give it a good look and decide whether or not it
needed an amendment? So that’s really the test. Did you really examine the
I know the Conservative senators did some good work. What usually happened —
and this is an important point, because it happens in the House of Commons as
well — is that the examination of the bills occurs in your caucuses. What this
is going to do, if we proceed this way, is that the examination of the bills
will be more transparent, out in the open, and you’re going to hear everybody
voice their opinions. The tendency, by examining the bills in the caucus, is
that the caucus finally comes to a conclusion, and everyone is a team player, or
Senator Frum: I appreciate that answer. That’s a good answer, a fair
answer. I suppose an even higher test of independence would be if independent
senators were supportive of amendments that came from caucuses not their own.
Would that not be the ultimate test of independence?
Mr. Hall: Yes, it should.
Senator Dupuis: And vice versa.
Senator Frum: We don’t claim to be independent.
Senator Lankin: So that’s an option.
Senator Frum: I’m a partisan. I don’t deny it. I’m proud of it.
Mr. Hall: This is one of the differences that —
Senator Forest: Take Bill C-29 as an example.
Mr. Hall: This is one of the differences with the House of Commons. The
government rarely accepts opposition amendments whereas here you don’t have that
restriction. You can accept or reject an amendment from anybody, and that’s how
it should be in the Senate.
The Chair: Gentlemen, thank you very much. As you can see, we have a
lively discussion and out of all of this, hopefully it will get some resolve. I
believe we will. Thank you very much for coming.
Could we go in camera for just a minute or two?
(The committee continued in camera.)