Proceedings of the Special Committee on
Issue No. 17 - Evidence - April 25, 2018
OTTAWA, Wednesday, April 25, 2018
The Special Senate Committee on Senate Modernization met this day at 12:03 p.m. to consider methods to make the Senate more effective within the current constitutional framework.
Senator Stephen Greene (Chair) in the chair.
The Chair: Good afternoon, and welcome to the Special Senate Committee on Modernization. Today, we continue our consideration of methods to make the Senate more effective within the current constitutional framework. I want to welcome Senator Deacon here today, who is filling in for Senator Dean. I’m also pleased to welcome the Honourable Senator Yuen Pau Woo, Facilitator of the Independent Senators Group, as our witness today. Senator Woo is here at the invitation of the committee to address the following: Do the relevant statutes, procedural rules and administrative rules and policies of the Senate adequately reflect the new realities of the Senate?
Without further ado, Senator Woo.
Hon. Yuen Pau Woo, Facilitator, Independent Senators Group: Thank you, honourable senators, for inviting me to appear before your committee. As the chair has already set out, I have been asked to address the following question: Do the relevant statutes, procedural rules and administrative rules and policies of the Senate adequately reflect the new realities of the Senate? Let me begin by describing what I understand by the term “new realities.” Most observers would point to the appointment of non-partisan senators since 2016, through an independent appointments process, as the essence of the Senate’s new reality. While the appointment of non-partisan senators is clearly a major development in the history of the Senate, it is merely one expression of a more fundamental new reality.
That new reality, in my opinion, is the 2014 reference to the Supreme Court on the rules and responsibilities of the upper house. The clarity with which the Supreme Court has articulated the powers and responsibilities of the Senate as a complementary chamber of sober second thought and of the constitutional limitations to Senate reform should be seen by all of us as the green light to pursue modernization with boldness and confidence. This is at the heart of the new reality, and not any particular configuration of senators and senatorial groups circa 2018.
The arrival of independent, non-partisan senators is one expression of the new reality that has been charted by the Supreme Court. The addition of new groups in the Senate has seen this chamber change from its traditional binary configuration to one that has multiple poles. To be sure, senators were sitting in this chamber as non-affiliated or independent well before the new appointments process came into place, and, indeed, the Independent Senators Group predates the arrival of non-caucus-affiliated senators appointed by the current government.
What is new are the unprecedented number of senators who do not identity with a political caucus and the desire of many, indeed most, of these members to band together as a recognized group within the Senate.
Through the efforts of this committee and of the Rules Committee, the Senate has already recognized the Independent Senators Group, ISG, as a “parliamentary group.” A number of the Senate’s administrative rules have already been amended to reflect the addition of the ISG as a parliamentary group and, I should note, the independent Liberals as well as a recognized party.
However, these rule changes are incomplete, and they do not reflect the full new reality of non-caucus-affiliated parliamentary groups in the Senate.
Allow me to touch on five such areas. The first concerns procedural and logistical arrangements. Under the status quo, decisions on allocating time to a particular stage of study on bills are based on agreements by the Government Representative and the opposition leadership alone. Likewise, decisions on the length of bells to summon senators are left to the whips of the government and the opposition, with no input from the equivalent members of other groups in the Senate. Similarly, decisions on the deferral of votes exclude groups other than the government and the opposition.
It is not simply a matter of fairness and administrative coherence. As a practical matter, the group with the largest number of senators should, arguably, have a say on all logistical decisions, such as chamber operations and committee business, precisely because the greatest number of senators are affected.
The second area has to do with the unequal treatment of parliamentary groups and caucus leaders. The leaders of the independent Liberals and the Independent Senators Group are not given the same rights and privileges as the leaders of the government and the opposition.
To cite one example, only the Government Representative and the opposition leader are designated as ex officio members of committees, according to the Rules of the Senate. Likewise, only the Leader of the Government and the Leader of the Opposition are guaranteed office space closer to the Senate Chamber. The same, by the way, applies to the deputy leaders and whips of the government and the opposition.
The third area has to do with the role of critics. The appointment of critics of bills is the responsibility of the government and the opposition only, with no provision for other groups in the Senate to designate such a role to their members. While a solution may be for other groups to also designate official critics, the new reality of a less partisan Senate is that there are likely to be multiple critics of any government bill and that the designation of a single individual to perform that role may not be in keeping with this new reality.
Let me move to my next area, which is budgets for caucuses and parliamentary groups. While the allocation of budgets for individual senators’ offices is based on the strict principle of equality, the same cannot be said for the allocation of house officer and research funds for caucuses and parliamentary groups. The government and opposition have budgets that are not commensurate with their relative numbers and in amounts that appear to be arbitrary. The independent Liberals and the ISG, on the other hand, are subject to a formula that is based on the size of their membership.
In the most recent round of budget allocations for fiscal year 2018-19, both the government and the opposition received budgets that were based on previous-year allocations, plus an inflation factor, with no consideration given to changes in the size of their membership. On the other hand, budgets for the independent Liberals and the ISG were determined by the number of members at the time of consideration. As a result, the independent Liberals saw a fall in their annual budget relative to the previous year because of smaller caucus numbers. In the case of the ISG, even though there was a significant growth in membership over the previous year, our designated budget was capped at the category labelled 20 members and up.
There is a glaring inconsistency in the way that budgets are allocated amongst the groups, which is both unfair and, I believe, fiscally irresponsible. I believe all groups need to work together to come up with a budgeting process that is transparent, accountable and fair, and this process should be enshrined in our rules.
Let me move to one more area as an example of the need to adjust the rules to catch up with the new reality of our Senate. This concerns the appointment of members to the Senate Ethics Committee. The Rules of the Senate stipulates that members on the Senate Ethics Committee are determined solely by the government and the opposition. Considering that these two caucuses currently constitute a minority of the Senate, their exclusive power over this important committee is, I believe, unfair and poor governance practice.
Colleagues, let me clarify now that even though the Rules of the Senate in the areas I have just enumerated clearly does not provide for equal treatment of parliamentary groups vis-à-vis the government and opposition, there have been in the last year a number of ad hoc adjustments to the practices of the Senate to accommodate both the ISG and the independent Liberals. For example, both the leader of the independent Liberals and the facilitator of the ISG have been given ex officio status in all Senate committees, along with the leaders of the opposition and the government, who already had such status. However, Senator Day’s standing as an ex officio member on committees, as well as my own, is only good for the duration of the sessional order, whereas the standing of the Government Representative and the Leader of the Opposition is written into the Rules of the Senate.
There is an analogous situation in the case of independent Liberal and ISG members on the Senate Ethics Committee. In other words, they have been accommodated, so we do in fact have an ISG member on that committee, even though the rules do not strictly allow for that on an ongoing basis.
Let me put it differently, which is to say that the new reality of the Senate, which this committee is coming to grips with, already recognizes the equal standing of groups other than the government and the opposition. In practice, it already recognizes the equal standing of groups other than the government and the opposition. Therefore, it is high time that Senate rules are adjusted to catch up with current practices that more accurately reflect the new realities.
Honourable colleagues, at the root of the unequal treatment of parliamentary groups vis-à-vis the government and the opposition is the lack of due recognition given to those groups in the Parliament of Canada Act. As it stands, the act only recognizes the presence of a government body and an opposition in the Senate, with attendant recognition for the leadership teams of those two groups and no more. A complete revision of the rules and procedures to take into account the new realities of the Senate will have to include amendments to the Parliament of Canada Act and not just the Rules of the Senate. However, the fact that revisions to the act are not directly or exclusively within the control of the Senate should not be a reason for us to delay changes to the Senate rules that already perpetuate unequal treatment of parliamentary groups and which are very much within our control to change.
In the context of our modernization project, what I’m calling for is a revision of our rules and practices on the grounds of fairness and equality. In some cases, the rules should be changed to afford the same status to non-affiliated groups that the government and the opposition already enjoy, in other words, levelling up, if you will.
But in other cases, the rules could be changed to remove a unique privilege that is afforded to the government and opposition because that privilege is no longer in keeping with the new realities.
I just want to be clear that our appeal is for fairness and equality, not necessarily for exactly the same things that the government and the opposition and attendant leaderships already receive.
In either case, whether we level up or level down—and there’s no pejorative meaning to either—we should be guided by the principles of fairness and equality.
Thank you again for the opportunity to offer my thoughts. I look forward to your questions.
The Chair: Thank you very much. I would like to turn to Senator Joyal, a member of steering and a long-time member of our committee.
Senator Joyal: Thank you, Mr. Chair, and welcome, Senator Woo. I don’t dispute the principle you establish of fairness and equality, but I will apply it to one of the examples you have given, which is the Conflict of Interest Committee, and I have a personal vested interest in it. I have been a member of that committee since the beginning, and I am still serving on it.
Presently, the composition of the committee is two independents, that is, two senators from the Independent Senators Group, Senator Wetston and Senator Sinclair; two from the official opposition, Senator Andreychuk and Senator Patterson; and then myself.
Do you think that composition, on the basis of the principle, is fair and the equality is sound, in your opinion? Or do you think the present arrangement could be reflected in the rules, or do you have criticism of the composition as it stands now?
I won’t make any comment on the fact you state it’s unfair and poor governance practice. I think that is not a judgment on those who serve on that committee.
Senator Woo: Not at all.
Senator Joyal: I would have appreciated you making that additional comment, because I felt a little uncomfortable when a colleague criticized so freely other colleagues who have served on that committee for a long time. Believe me, it’s not a role I would suggest anyone would envisage to play lightly because we’re called to judge our colleagues, and as you know, when you do that, you do it with all the fairness and, as you say, the equality we want to serve with in this institution. It’s so linked to the integrity of the institution that I think we have to approach that committee with a certain kind of, to use a legal term, deference. So I close my parenthesis. I would have appreciated that. That being said, I prefer to say it publicly rather than to ruminate over it in the back.
But I come back to my question: Do you feel the composition as it stands now would be the one that you would suggest we reflect in our rules, or do you have another arrangement to propose?
Senator Woo: Thank you, Senator Joyal, for your question. I do very much respect and admire but do not wish upon myself the work of the Senate Ethics Committee, which is crucial to our proper functioning and very difficult.
I want to be very clear about what I said previously on the question of fairness and equality and my assessment that the current approach is unfair. I was not referring at all to the current composition of the membership and certainly not to the work of the Senate Ethics Committee, but to the way in which the Rules of the Senate stipulates how members are appointed.
The rules give the privilege of naming members to the Senate Ethics Committee solely to the government and the opposition. It is the wisdom and to the credit of our leadership that they recognized the presence of two other groups, which created a situation where the composition now includes an independent Liberal and two ISG members. That is a practice that I very much endorse.
My point is simply that the rules have to catch up to the practice. If I can try to be doubly clear, my comments on the lack of fairness apply specifically to the way the rules are written and not to the practice.
That gets to the second part of your question on the particular configuration of membership in that committee, the two, one and two. That configuration is just before my time. Presumably, it is based on the idea of proportionality. That’s certainly a principle that can be applied, but that’s not my main focus for today’s testimony. My main focus is on reconciling the Rules of the Senate with the new realities. Having reconciled the rules — for example, if the rules were amended to allow for a way to appoint members that more accurately reflects the wishes of the Senate as a whole — then the secondary question is the distribution of membership among members. Frankly, I’m open-minded on that question.
Senator Joyal: Would you be satisfied if the rules were amended to reflect the present composition of the committee?
Senator Woo: That would then entrench the formula that was used circa late 2016, early 2017. If that formula was based on proportionality, it would assume the proportions remain in place for the years ahead.
No, I would not want to bake proportionality into the rules. I would rather rewrite the rules in a way that reflects that the Senate as a whole, or a large majority of the Senate, has a way to express who they want on this crucial committee. Who is eventually selected, then, is a secondary question.
All I’m trying to say here is that if we were to cement the current proportions into that committee in the rules, that would almost certainly be out of skew within a short period of time when the composition of the Senate as a whole changes.
Senator Joyal: Thank you.
Senator Frum: As you know, the way we have amended the rules now, a recognized group can be a caucus of nine. So one of the problems, I think, that we have here — and you just said it — is we don’t want to entrench formulas that reflect the reality in April 2018, which may not be the reality in April 2019 or April 2020. All we know is what we know right now. In theory, however, we could have a situation where we have 11 groups because that’s what the rules allow.
That’s when I have difficulty understanding what you would envision as rule changes, for example on the ex officio change. Every single group could have ex officio members? Is that a possibility?
Senator Woo: It’s certainly a possibility, but not one I would advocate. That’s why I suggested at the end of my presentation that some solutions have to do with levelling up, that is, providing the same privileges to all the groups that are recognized — and in your hypothetical scenario, all 11 parliamentary groups have ex officio status — or levelling down and getting rid of ex officio status.
I would point out that the sessional order that puts me as an ex officio member together with Senator Day in effect gets rid of ex officio without saying it gets rid of ex officio because it removes the power to vote, not only from the Leader of the Government and the opposition, but from the two other leaders or facilitators as well. That’s why I think we have to fast-forward to the future and think about the new reality in abstract from the current configuration.
What is the Senate of the future? What do we want the Senate of the future to look like, and what is the best design to suit those purposes? In this particular case, I am more inclined to get rid of ex officio than to appoint ex officio for all caucuses.
Senator Frum: One of the first points you raised was about the ISG having influence on the length of the bells or being appointed critics of bills. Let me speak to the length of the bells. That speaks to how you don’t have an official whip who is recognized as a whip. A lot of the roles you were describing that you’re left out of, such as assigning offices, et cetera, are duties that fall within the whip’s prerogative. I don’t know why I would have a problem with you having a whip, but I think it would speak against one of the principles that I think your group believes in, namely, that you act in the absence of a whip and that you are not whipped. How do those two things coexist?
Senator Woo: Thank you for that question. There’s no contradiction whatsoever. The ISG believe that’s our first responsibility here — all of you believe that, I know, but that’s how we think of our duties here — namely, to be legislators, which means to be in the chamber as much as possible. When there’s a vote, be there for the vote. There will always be conflicts with committees and travel and so on, but it’s important for us to have a say on when votes are held because we want to make sure that our members are able to be there for the vote — not how they vote, which is what you’re thinking of, perhaps, when you say “whip.” What we think of when we say “whip” or “liaison” is to make sure we choose a time for a vote when the vast majority of our members can be present. That’s the first duty of what we do. With due respect, we need that as much as the political caucuses need it. There’s no contradiction in my mind.
Senator Lankin: I wanted to come to your point number 3 with respect to caucus or group budgets. I note that you’re looking for some work to be done collaboratively on a formula and that you didn’t prejudge what that formula would produce, which I’m glad about. However, I think straight proportionality is not the way to go about structuring these budgets. By the way, I would like to improve the quality of what we get centrally from the Library of Parliament, et cetera. I know there is always work to be done based on people’s interests, or political caucus interests, or whatever, but I would like to improve the base quality. If we’re talking about our research capacity within groups, there’s only so much that we should budget for research capacity. Every group should have that. Just because there are more senators doesn’t mean there would be a need for more research on a particular bill, whereas if someone is providing some support that is coordination, or whatever support, the number of members of your group could be quite relevant. Some portions of this might be based on proportionality, but I think others are duty or content based.
I would make that observation and say that I agree with the need for that kind of discussion. I know Senator Wells, Senator Tannas and I have talked about this a couple of times in the past, namely, about whether straight proportionality makes sense. I don’t think it does. I think in that case — and respecting that there is a particular role in the research opposition members have in our current constellation and configuration — it is important for us to move the yardstick forward without people feeling that we’re taking away their capacity to mount a partisan, political analysis of something. I welcome that analysis because it’s part of the diversity of opinions. I offer that to you and welcome any comments you have on that.
With respect to the points that Senator Joyal raised on the Ethics Committee, I well understood you to be talking about the unfairness of the rules, not the current sessional order. But I think that is a case where we might look, in the shorter term, to rules around, say, proportionality, which would produce roughly what we have and might change in the future. One of the bigger questions is to see how this unfolds in the future. I think Senator Frum has spoken to this today and at other times. We don’t know what we don’t know about where we will end up. I have been here for two years now. Some things have been kind of baked into how we operate. Let’s fix those things. In the future, if we ended up with 11 groups, I don’t think we would want an ethics committee with 11 people on it, right? So we might come to a different understanding about what the needs are, and, if we had to address it by a sessional order, to be followed by rule changes, we can do that when we know. But I would hope that that is no longer a reason not to, as you have put it, Senator Woo, catch the rules up to at least what we’re doing now. So I think there’s room to move on this that is still respectful of the concerns that are raised but that acknowledges that there is a fairly different reality today.
Senator Woo: You’ve said it very well. Your comments about the budget allocation process very much reflect my thinking.
When we were negotiating budgets for the various groups with Internal Economy, just a few months ago, the ISG could well have argued for a budget proportionate to its numbers, using, say, the Conservatives as a baseline. That would have given us a budget of close to $2 million, but we didn’t need $2 million. Clinging to a principle that is expedient for the sake of expediency or for the sake of getting more money is not a good practice. So what we did instead was to carry out the zero-base budgeting exercise. We basically decided, “What do we need?” We added up the sums, added a little bit of a contingency, and we came up with $1.2 million, roughly. That’s what we asked for. You will know that $1.2 million is less than what the government gets and less than what the Conservatives get. I don’t begrudge the fact that we get less on a proportionate basis because I’m not arguing for proportionality on budgets. But I do think that something is wrong with the budgeting process when we use one formula for getting to our budget, and I don’t really understand what the other formulas are for either the government or the opposition.
The other obvious reason why proportionality cannot ultimately be the rule for allocating budgets is because the government, with three individuals, would be grossly underserved if it were given a budget proportionate to three individuals, and our group, even five months ago, would have had more money than we needed. Imagine if, six months from now, we were at 50 or whatever the number might be. We would command more than half the budget of the Senate research expenses. That doesn’t make any sense at all.
I really do think we need to, in this case, level down or re-examine the entire budgeting process, recognizing some of the things that Senator Lankin said. There are central functions in the Senate, the Library of Parliament in particular, that should serve all groups. All groups, regardless of their size, have some basic tasks that they need to perform. Whether you’re 30 or whether you’re 11, you need a core group of support staff and so on. We have to provide for that.
On top of that, there has to be a different formula. Proportionality might be part of it, but it cannot be the sole formula. I’m glad you connected your thoughts to the question on the Senate Ethics Committee as well because proportionality was very much the rule that we used in deciding committee seats in the last negotiations and likely will be, and should be, the rule for the foreseeable future, when we have a small number of groups with quite different visions of where the Senate should go. But, over the longer term, proportionality may not be the most appropriate formula when we have five, six, seven different groups.
Senator Maltais: My question is about a technical point, Senator Woo. Is your document available for the members?
Senator Woo: It will be in the proceedings, but if you would like it to be made available differently, my office is happy to do that in both official languages.
The Chair: We have a copy in English right now, but we do not have one in French. We will get it translated and distributed.
Senator Maltais: Actually, the first rule of the Senate is that, since we are a bilingual country, the documents must be in both official languages. For us francophones, this is unacceptable.
Senator Woo: Of course.
Senator Maltais: If I produced documents in French only, you would be the first to criticize.
That said, when the Prime Minister decided to set aside Liberal senators and make them independent senators, he set an extraordinary precedent. When Mr. Trudeau became Prime Minister, he said that he would appoint his senators, the representative, his deputy, his whip and his leader. Good for him, but he forgot that, by appointing independent senators, he was placing you in a difficult situation. I don’t like using the expression “non-partisan” because it isn’t true. If you spend a few days in the House of Commons, you will see that non-partisanship doesn’t exist. There are 40 or so independent senators now. You didn’t receive the necessary training when you arrived. Now, you are asking us to change our Rules so that you are exactly like political parties. So, if you are independent, you don’t need that. However, if you’re not independent, you do.
I totally agree with you on one point. What does the government whip do? Is he just ringing bells? He can’t impose anything on the leader or his deputy
As for the rest, you’re asking us to change the ules so that you can become a political party, eventually. I don’t see the reason. I think the number is sufficient, but you have to give yourself an identity, and you don’t have one right now. By the time you do have an identity, I think you will be the ones to impose the rules, since you’ll be in the majority.
I understand that the current situation is difficult for you, and we can see it with the new senators. I have a lot of sympathy for them, and I work a lot with new senators on committees, because they can’t know everything from the start, and that’s normal. I’m giving them the chance.
As a group, you have two choices: either you remain independent, so you don’t need rules, or you group together under one identity, and you call the shots.
That’s it, Mr. Chair.
Senator Woo: Thank you, Senator Maltais, and let me first of all say that you’re quite right about the way you have been very helpful to new senators. I’m a member of the Standing Senate Committee on Agriculture and Forestry, which you used to chair, and we now have an independent ISG member chairing it. I know you have been very supportive to her, helping her learn the ropes and manage the meetings and plan our hearings and so on. I know she appreciates it very much, and I appreciate it very much.
I’m not going to address, unless you feel a very strong need for me to do so, the questions that have to do with the G3. I cannot speak for them, and it wouldn’t be appropriate for me to guess what Senator Mitchell’s thinking or motivations are or what the role of the G3 is vis-à-vis the Independent Senators Group, for the simple reason that I don’t report to them and don’t coordinate with them, short of what they do with the rest of us in terms of introducing government bills and so on.
What I will say, though, on your question of the conditions under which we can and should amend the Rules of the Senate, you have given us two or three conditions. One is that, first of all, we get the sufficient training so that we’re good enough to understand what is going on, and then we can propose amendments. The second one you talked about was to amend it under the Constitution. The third point you made was that you can amend the rules after you have got a new identity and you form the majority, if I summarize accurately.
On the first point about becoming better senators, it’s a continuous learning process. If I may say, Senator McInnis came to me just before the meeting started and I told him how much I’m still learning. He said you know you keep learning 10 years after you have arrived even. I think that’s true. I make no claims to be very knowledgeable of the Senate.
But what I’m presenting to you, I hope you will take on the merits of my presentation and the merits of the case. Even if I am a rookie senator who frequently flouts the rules because of my ignorance, if my case makes sense, if it’s consistent with what your goals are in the Modernization Committee, and it’s allowable and desirable from the point of view of the Senate of the future, and it reflects the new realities, then I think the case deserves to be studied.
Secondly, the issue about changing the rules under the Constitution — absolutely not. Nothing I have said requires any constitutional change. As you well know, this committee was struck specifically to look at only the rule changes and modifications that can be done absent a constitutional change, so that sets the parameters of your work and of my presentation.
The third one is the most important. I think there is a lot of truth, Senator Maltais, in your argument that when you become the majority, if and when you become the majority, just use your numbers to push the rules through. Perhaps that can happen. But my group has repeatedly said to me, that’s not what we want to see. That can be what happens, but it’s not what we want to see because we will still have to work with a very significant number of senators who may resent the fact that we simply use our numbers to push through changes.
I may be idealistic here, but I’m appealing to all of us to think about the Senate not circa 2018 when there are 43 independent senators, but 2019, 2020, 2021 when the new realities we already live in become even more congealed and more real, more manifested in how we do things. I am totally convinced that the current rules do not accommodate that new reality of two or three years down the road.
If we rely on the strength of the majority parliamentary group to push through the changes, the new reality will be damaged, I think, because of ill will and the fact that majoritarian rule is the antithesis of what we do in the Senate. We were created because we push against majority rule. If we did that, I think it would be an unfortunate development, but having said that, the rules do need changing, and all of us need to find the best way to get to those changes.
Senator McInnis: Well, it certainly is a new reality, and I think the basis on which this committee was founded was premised on fairness and equality. When the Senate approved the Modernization report recommendation number 7 bringing about groups, it also provided a mechanism and suggested that these groups be funded. I take it that they would be funded in a fair and equal way.
Now you have come up with a formula based on need, and I want to move on to something else, but I just want to be clear. You would like that revisited, the way that government and the opposition are funded?
Senator Woo: I would like the way in which the entire Senate budget for caucuses and parliamentary groups is allocated, which includes, of course, government and opposition.
Senator McInnis: Yes, exactly. Now this is something I know that everyone is just sitting on the edge of their seats waiting for. They want to mention this. How do you feel about a recognized opposition in the Senate?
Senator Woo: Senator McInnis, I believe that the Senate is a place for opposition to legislation that is misconceived, that has gross unintended consequences, that is clearly in violation of the Constitution, that unfairly treats minorities, broadly speaking. As a result, I believe there will always be coalitions of senators who oppose in that manner. You only have to look at the last 6 to 12 months of our deliberations to see that there indeed are coalitions of senators at any given time on any given bill that oppose bills, government legislation, on the grounds that I have stated. Not on the grounds that they are the Liberals or not on the grounds that they are the Conservatives, or not on the ground that we don’t like this particular leader or that particular leader. That’s how I think about opposition.
I think the Senate has a variable geometry of opposition that will vary from bill to bill, and we should encourage that because the Senate’s role, as we all know, is to review legislation that has come from the house, to offer our sober second thought within the constitutional framework, recognizing the elected chamber, and at times to propose amendments that will improve bills. I strongly support that vision of opposition in the Senate.
Senator McInnis: Okay. Are you satisfied currently with the system of operating and administrating and running the Senate? Currently, we have leaders meet and put together the schedule, and there has been some suggestion that perhaps a different mechanism should be put in place, a different team approach to managing the business of the Senate. Have you thought about that? You have heard about it, I’m sure. But have you given any thought to what mechanism you would put in place?
Senator Woo: Thank you for that question. It goes a little beyond the scope of this presentation, so I don’t want to delve too deeply except to say that the evolution of the new realities where there could be more recognized parliamentary groups will force changes to the usual channels, as I think they call it, including possibly the leaders meeting. But we’re not there yet. This committee is particularly sensitive, I know, to not pushing changes before the time is ready for those changes. I would not advocate that either. But it’s not difficult for us to imagine a not too distant future where the organization of our work, the Order Paper, the decisions around when different bills come up for votes and different parts of the reading, is decided in a way other than the two or three or four leaders that represent the two or three or four groups here.
This is why I very much endorse and support the discussion that has been started. I don’t necessarily endorse the conclusions, but I endorse the discussion that has been started by our colleagues, for example, Senator Harder with his sober second thinking inquiry on the Order Paper. Senator Gold has published a few papers. Colleagues in the opposition have floated some ideas.
I think we should encourage more discussion about how the new Senate should evolve rather than stifle the discussion reflexively by saying the status quo works, or one particular model works, because we’re no longer in Kansas, ladies and gentlemen.
Senator McInnis: Thank you very much for that. Whatever we do, it should be envisaging down the road. We shouldn’t be here every other year making changes. There will always be changes, but we should try to put in place a system that works, more for the long term than the short term.
Senator Woo: As a general proposition I agree with that. But I have made very clear in my presentation that there are some here and now issues that need to be resolved because the practice has already changed, and it’s not appropriate that the rules have not caught up to the practice. Likewise, the practice, which is based on fairness and equality, has to be driven across the range of Senate Administrative Rules and finance rules and other conventions even that govern this place so that we at least have the consistency of those principles across the way we work.
Senator McInnis: Thank you very much.
Senator Bellemare: Thank you for all your very relevant comments. There are two things I would like to add to the principles that should guide changes in rules and practices.
I agree that we need to be guided by justice and equity. It’s fundamental. However, in the Senate, justice and fairness come in two ways. There is justice and fairness in the operation of the groups, and there is justice and fairness for each of the senators.
We shouldn’t lose sight of this, because the dual composition that prevailed at the time, where there were only two groups, was for independent senators who numbered only three or four, depending on the period. Independent senators were not treated as fairly as might have been desired. For example, they had to be part of a group to sit on a committee. Remember Senator Wallace’s battle when he became independent.
Since then, the rules have been changed to allow unaffiliated senators, senators completely alone, to be considered in the committee selection process, but this change hasn’t been taken into account when it comes to the sessional order. We may have forgotten, I don’t know. Anyway, every time you change a rule, you have to ask yourself whether it is fair for groups and also for individuals.
The other thing I wanted to talk about is the budgets. As an economist, you too have had training in this area. We know very well that there are always fixed costs and variable costs. In the case of fixed costs, it is the principle of fixed expenses for groups, regardless of size. Variable expenses must also be taken into account, which are sometimes subject to diminishing returns. Therefore, for large groups, from a certain threshold, proportionality can be quite marginal.
In other words, I am giving you everything for the upcoming debates.
Senator Woo: Thank you for your question.
You make some very good points. I have thought quite a lot about the distinction you make between, on the one hand, fairness and equality amongst groups and between groups and then fair conditions and equality of individual senators.
It’s very important that any changes in the rules that favour the former, that is to say, fairness and equality between and amongst groups, do not overly penalize or discriminate against equality of senators. That is why I pointed out in my presentation that the treatment of individual senators, in terms of their office budgets, appears to me to be strictly on the basis of equality and fairness. Everybody gets exactly the same. That’s a really important principle.
But it doesn’t extend to committee memberships, as you have pointed out. That is why when the ISG was in negotiations with the Conservatives and the Liberals about committee seats, we explicitly said that the ISG takes responsibility for non-affiliated, independent senators. There are not that many, but we felt that there had to be an allocation for them so that they could sit on a committee. It’s only fair, even though they are not part of our group.
That didn’t actually work out in the negotiations, unfortunately, but that’s a glaring example of how fighting for your group interest is going to leave unintended consequences. It’s a classic problem that the Senate deals with all the time. You fight for the three or four interest groups, and the fourth group that is not organized is punished or disadvantaged. So we have to keep that in mind.
The reality we live now is that we are organized into groups. I personally think there is a logic and a rationale for the Senate to be organized into groups for a variety of logistical, administrative and substantive reasons, and so it’s reasonable for the Senate to privilege groups in some way. Hence, we have this formula, right, where if you’re in a group, you get a research budget and a house office. I think there is a logic to it. It’s all about balancing. I agree with you that we need to be careful not to go too far in excluding non-affiliated members.
On your point of fixed costs and variable costs, I think I said earlier, and I want to reiterate again, that when I talk about a new budgeting process, I’m not arguing for the ISG to be given proportionately the fund that other caucuses get. I’m not arguing for the Conservative and government budgets to be gutted. I’m arguing for a more rational process that recognizes that there are fixed costs for all caucuses. There are special costs for the government. All of us recognize that the Senate can only function if there is a channel for the government to introduce bills and to get bills through the various stages, and so on. Special resources are required.
We can have a sensible discussion about all of that.
Senator Wells: Thank you, Senator Woo, for appearing. You mentioned a couple of the changes that you would like to see under the Parliament of Canada Act that would reflect the wishes of your leadership or your group and perhaps others. Have you considered actual legislation to effect this? That’s how we change legislation. That’s my first question, and maybe you would like to address that.
Senator Woo: I’m not really up on how the Parliament of Canada Act can and will be changed. I think it has to originate from the government, even though it would only be credible if we had substantial input into the drafting of the changes. There has to be a process whereby the government has to signal its intention and desire to amend the Parliament of Canada Act and then a process whereby all of us work on what those changes would be. Until we receive that signal, it’s a little premature for me to work on specific wording.
Senator Wells: Okay. Given that there is nothing concrete now to change the Parliament of Canada Act, the Senate’s system — and I think we have a good system in place that has worked for a long time — allows, as you called it in your opening statement, ad hoc changes. We’ve made those ad hoc changes, but those are part of the system under which we work. So it would appear that the part of the system works that allows that consultation and changes, whether it’s sessional or continuing beyond. The ones that continue beyond — we’ll call those conventions. They’re not written into the Rules of the Senate, but they’re the practices we undertake that allow us to operate effectively. That system is well in place now that allows for sessional or beyond.
I just wanted to make a comment on that. It’s not a bad system we have — and we’ve seen significant changes over the last two years — because it allows us to adapt to those significant changes and the will of the place. I wanted to make that comment.
I’ll form the following into a question at the end of it, but when we consider the changes we have to make, as Senator McInnis correctly said, we have to consider the consequences. All the things we consider we hope are intended, but of course, there are the unintended, which you don’t see coming. It’s reasonable to assume that there will be a couple of outcomes of the next election, which is next year. It’s reasonable to assume the current government will continue, and our system and structure will continue. It’s a reasonable assumption that could happen. It’s also a reasonable assumption that the Conservatives could form government.
How do you see things structured with respect to government, opposition, other players and other groups under that assumption, which is that it’s reasonable that the Conservatives form a government in Canada, and the Conservatives in the Senate would be the government — the GRO under the current nomenclature? How would you see the structure with official opposition under the Rules? I assume the Senate Liberals would be the official opposition. How would you see it play out under that reasonable possibility?
Senator Woo: Thank you, Senator Wells, for your two very good questions.
First, on the ad hoc changes, the implication in your question is that we have already done what we can, we’ve gone as far as we can, and it seems to be working well, so we don’t need to do much more. I disagree with that.
Senator Wells: That’s not what I said. I said that this is what we have done to accommodate under the system that currently seems to work. I’m not saying I don’t advocate for change, either, but I’m saying accommodations have been made.
Senator Woo: Then I support you wholeheartedly in saying that the ad hoc changes have been all in the right direction, but they’re incomplete. That’s kind of a summary of what I’m saying here. The practice has run ahead of the ad hoc changes. I’m basically arguing for the ad hoc changes to be codified to catch up with the system that is working now and that has accommodated the Independent Senators Group. There are quite a number of changes we can do without touching the Parliament of Canada Act. We cannot let the Parliament of Canada Act be an excuse or reason to delay work on our own Rules that are very much in our control.
I won’t speculate too much on post-election models, but I will say this: The reality of our multipolar Senate, with a significant number, perhaps even a majority, of senators who identify as non-partisan — i.e., either independent Liberals or members of the Independent Senators Group — is here to stay for the foreseeable future because of the tenure of appointment. We need to adapt to that reality, whether the Liberals or the Conservatives win. Of course, the appointment style will be different, I understand. Mr. Scheer has expressed a certain preference for the old model, but the reality of a multipolar Senate will still be with us, and we will have to change the rules and our practices to accommodate that.
Senator Wells: After all those changes are done, what does it look like? I understand we have to consider those changes, but my question was, what is the consequence, and will that work?
Senator Woo: The consequence would be to allow —
Senator Wells: Would you see the ISG as the official opposition in that circumstance?
Senator Woo: The ISG has not even remotely had that discussion, so I’m not in a position to answer that question. The ISG will exist, and its members will constitute a significant number within the Senate, but whether we are in a world where partisan appointments resume or we stay with the independent appointment process, the reality is that 40 or 50 independent senators organized as a group has to be factored into the way we operate. That won’t go away.
Senator Wells: I absolutely agree with you. We’re projecting ourselves, so we can consider these consequences that we might have to face. Would you consider a reasonable outcome to be for that largest group that is not the government to be the official opposition?
Senator Woo: I can throw a different hypothetical. Maybe there is no group — this is purely a hypothetical — among the non-Conservatives that deems itself to be an official opposition in the way you are describing it.
Senator Wells: In a conventional way.
Senator Woo: That’s a scenario that could well play out and that would in turn require other kinds of adjustments in the Senate.
I want to go back to what I think is the fundamental new reality. I said it at the beginning of my presentation: the Supreme Court ruling, which points us in the direction of a Senate that is much more focused on its role vis-à-vis the house and its ability to take a longer-term, less partisan view — if we think that is, at heart, what the new reality is about. I think that new reality can persist even with a change in government and the restoration of partisan appointments because there will be many senators who subscribe to that view.
Senator Wells: Thank you.
Senator Verner: Thank you, Senator Woo, for your presentation. First, I have some comments before going further. I believe that linking the identity of an independent senator to an obligation to be part of a political party is simplistic and doesn’t reflect the current reality. I don’t agree with the comments of my colleague who urged you to find an identity before coming to request anything. I believe that linking power to a majority or an official opposition is to defeat modernization. I think there will be many ways to see the power and the opposition when we get there.
You said, quite rightly, that it was very difficult to predict the future. It may be that the Liberals will still be in power or it may be the Conservatives, but you are quite right to say that the fact remains that a very significant number of independent senators have come together and have currently been granted some rights, including the right to organize. Now, let’s move from words to action. We must continue to recognize that the largest group is the Independent Senators Group. You can’t just give one bicycle wheel; you have to give both wheels from the moment you have granted that group recognition.
For the purposes of the discussion, we talked about budget allocation. I sit on the Standing Senate Committee on Internal Economy, Budgets and Administration, and I found it pathetic that you had to come, not to beg but to ask for what you had been granted by right by a majority of senators in the Senate. There is a resistance to change that doesn’t fit the mandate of the Modernization Committee. I’m sorry, but modernization isn’t living in the past. It must be recognized that there is an important group here, and from the moment that we have already granted recognition to this group — and there will be others, I’m sure — we must try to provide a sufficiently flexible formula, not to foresee the unforeseeable, but certainly to live in a democratic way in justice and in all fairness
You have proposed a number of things in your text. I imagine you have an ideal timeframe, and I would like you to tell me about it.
Senator Woo: Thank you, Senator Verner, for your very important question.
I especially appreciate you clarifying the point about independent senators’ identity, which does not have to be wrapped up in a political or partisan affiliation. For my purposes, my identity as an independent senator is that of someone who is independent but wants to work towards the further modernization of this Senate, along with many of my colleagues and along with many of you.
On the question of a timeline, I would say as soon as possible, because these are not hypothetical situations I’m putting out. The practice has already changed. It’s about walking the talk.
In the sessional orders, we have already made a number of changes that kind of recognize my role and Senator Day’s role. Senator Verner is right. It’s a little demeaning that I have to go back every three or four months to ask for the same thing, as if this is the largesse of the Senate to allow the biggest group in the chamber to have, say, ex officio status or any of the other privileges. I’m asking for these changes to be made not just for the sake of fairness and equality but for the efficiency of the Senate.
When I talked about the role of the ISG in having a say on bells or committee travel and other things that the government and opposition technically now have exclusive sway over, I’m talking about a pragmatic need to deal with the movement of the largest group of senators in the chamber. If you don’t have someone who can speak to that issue, then the chamber will not function smoothly. Thank you, again, for your question.
Senator Lankin: There are a couple of things that have been raised that I wanted to comment on, and I have a question as well.
With respect to the questions Senator Wells asked around the Parliament of Canada Act and the drafting of the legislation, I think the process you’re asking for, when we give consideration to that, is the right one, where we should do this together.
But I don’t think it’s a matter of waiting for the government to signal that they’re going to make the changes. If we feel that changes A, B and C are fundamental to be able to accomplish the reform agenda and answer all of these questions, we should collectively work on the wording and go to the government. It makes no sense to ask them to wade into something we’re then going to fight about. Why would they do that? I’d tell us to figure it out ourselves. I think there’s a way we could move forward on that.
Senator Wells, with respect to the question you asked on the ad hoc changes and the sessional orders, which has worked to a certain degree on some issues, I have a fundamental problem with relying only on that. That will always be a feature we can come to if other sensitivities arise in the future that we need to address outside of immediate rule changes.
I’ll give you an example. Senator Woo, you lived through this with the sessional order negotiations.
One of the things was that the first time the independent senators were able to put forward names for a certain number of spots on committees, we organized and we had invited all independent senators to come, whether they were members of the ISG or not, and we had a democratic process, which we think was fair, to try to honour wishes and negotiate among senators where there were too many, but it included everyone.
The second time around, that didn’t happen because, Senator Wells, one of your colleagues, who said openly at a committee meeting that if he had known that ISG was making room and Senator Bellemare and Senator Mitchell could come and be appointed to a committee, he wouldn’t have allowed that. And quite frankly, it wasn’t allowed in the second round of negotiations, and you have to make these trade-offs sometimes.
I don’t know that that’s a reasonable trade-off to have made. I’m going to say it disenfranchises individual rights of independent senators on the notion of one person; I might be wrong on that. But it was a strong reaction from one person that seems to have carried the day.
Each time those sessional orders have to be negotiated, there’s leverage in negotiations. Quite frankly, to get to an end point you will often give up something. When we want to put in practice what we are already living, I just don’t think we should have to renegotiate every aspect of that every time and open it up to those trade-offs. There will be always be new trade-offs to be considered.
With respect to the opposition, Senator Woo, you were very careful not to answer the question put to you by Senator McInnis about whether you agreed with official opposition; I think you used those words. Someday I would like us to clarify this —
Senator McInnis: Recognized opposition.
Senator Lankin: Recognized opposition, okay. People are using “official” now, and I was told over and over again when I first got here that official opposition is in the House of Commons and it’s just opposition here. I think those words mean something in the nature of the tension and dispute, and we should figure out what they mean.
This is my personal challenge back to you in thinking this through. This is not an ISG issue, because we haven’t grappled with it. I think there is room for a Liberal caucus or a Conservative caucus. If we reform the Senate enough, the NDP might even end up with some people here so that they would want to be a caucus. I’m an independent, by the way. I have been for a long time and still am, but there are these possibilities for the future.
Let’s remember the world in the other place was a duality for a long, long time, and it no longer is and the world hasn’t come to an end. That could happen here. I think the question is whether you’re afforded any special rights, resources or anything else as a result of being a member of a politically inclined caucus that is the opposition or the government in the other place. A case needs to be made if there were to be special resources or requirements. It’s the harmonizing up or down that Senator Woo talked about.
Senator McInnis, I was interested when you asked about the potential for a management committee, as I think it’s been referred to. I hope we put that on the agenda soon because I think that’s really important.
I won’t delve into that today because it’s not in force, but I understand from talking to people about the television modernization of the Senate and the chamber in the new place, which came through this committee as well, one of the things that will be possible and probable is that they will bundle together all the speeches made on a bill, say C-45, and be able to play them. Wouldn’t that be amazing? Except that we can’t have that kind of debate in the chamber itself, where over the course of a few days we hear lots of points of view.
I wonder if, as we consider the changes to the rules, we could have these discussions about whether there are ways to accommodate the opposition. Instead of fighting about whether there should be an opposition, what are the ways to accommodate getting the variety of views on the table? Because our work will only be better if we have a diversity of views. Is there a way of doing that that focuses in on the question of what special rights, resources or whatever a group needs or does not need to do their job effectively?
Senator Woo: Thank you, Senator Lankin. On the Parliament of Canada Act, let me, for the record, say that I hope it is changed as soon as possible to accommodate our new reality. It would be terrific if this committee gave the recommendation and the Rules Committee took up the challenge of drafting possible amendments that we believe should be put in place. However, the Parliament of Canada Act is, I believe, a Royal Prerogative and therefore has to start with the government, but some pressure would be very helpful.
The view I articulated about the need and the intrinsic quality of opposition of the Senate as a set of coalitions of the willing, if you will, of variable geometry, of opposition on different bills in the manner I described — thoroughness, attention to minorities, constitutional validity — all of the measures that we typically use, I think that answers your question. If that is the opposition we have in the Senate, then we need a different way of organizing ourselves because the coalitions are fluid. But we want the coalitions to be able to express the opposition in ways that the rest of us can follow in a systematic and intelligible manner, not to mention the public, who will be watching on television.
Senator Stewart Olsen: I will try to be brief. I listened to your presentation with great interest because I’m not sure how this can work because there’s one pot of money, and we can’t go back to the taxpayers and say, “We want more money so our special interests will be accommodated,” in my opinion.
But the other thing that I’m a bit concerned about is that, in your presentation, I heard nothing about one of the basic premises and one of the basic tenets of the Senate, and that is that we represent our regions. We come from our regions. We represent our regions. We represent the people of Canada. I represent the people of New Brunswick.
When the Prime Minister set his new appointment panel, I’m not sure they considered that. If you invite a lot of single-issue people to come before you in the Senate, do you not believe that it’s incumbent on you, as the leader of the ISG, to perhaps begin to educate people that it is not a single-issue place. It is not an activist place. It is a place where you come before us and you consider legislation, committee work, through the eyes of the people you represent.
It works with parties. That approach works with parties because there’s a balance. I regret that the NDP don’t take part as much. I’m not sure how it works with the ISG, but I think perhaps — would you agree — that’s something you should look at.
Senator Woo: I’ll answer very quickly. I think our group, in fact, does feel like it represents its regions, and the record is clear that particular members of the ISG have been very strong representatives of their region. If, in fact, representing one’s region is a vector for our duties and responsibilities, it very strongly reinforces my idea that opposition in the Senate is a set of shifting coalitions. Sometimes they are regionally based. Sometimes they are issue-based. Sometimes they are based on political philosophy. That’s for the better of the Senate.
On the one pot of money, you’re absolutely right. That’s why the ISG did not ask for a budget proportional to the Conservatives’. We would have blown the budget. We would have asked for $500,000 more than what we currently get. But it’s entirely possible to work within a pot of funds and distribute them among all of the groups in a rational way that is both fair and equitable.
Senator Stewart Olsen: If I can just clarify, then, you would like to take the pot of money and redistribute it? I’m not sure how you want to do that. I think that’s my —
Senator Woo: That has to be discussed. “Redistribute” sounds like a terrible thing, but that’s what we do every year when we review the budget.
Senator Stewart Olsen: Thank you, senator.
Senator Deacon: Thank you. I’ve been trying to look this afternoon through the lens you talk about, equality and fairness and rule changes, and see how it impacts our finite resources. I’m going to speed things up dramatically here. I feel that the question I wanted to direct to you has been somewhat balanced between Senator Lankin and Senator Wells, so I will pass on a formal question. I feel like it has been addressed.
Senator Frum: All this talk of elections makes me want to ask you this: Are you intending to vote in the 2019 election?
Senator Woo: I have voted in previous elections, and, yes, I am intending to vote.
Senator Frum: Really? Okay, that was not the answer I was expecting. You think it’s appropriate for individuals who represent themselves to the Canadian public as non-partisan to make a partisan choice in the election?
Senator Woo: It’s the duty and responsibility of all Canadian citizens to exercise their franchise, and I am entirely comfortable voting for the Conservative Party, for example, and opposing Conservative Party legislation that may come to the chamber.
Senator Joyal: I listened to you very carefully, senator, and there’s something I want to submit to your reflection. By having a Senate composed of 105 independents, don’t you realize that you atomize the capacity of each individual senator to appoint, where that senator becomes more vulnerable to government representation through a one-to-one discussion with a minister of the Crown or with a deputy minister or anybody of influence in the government, especially when you have just been recently appointed and you feel you’re indebted to somebody, somewhere? When you sit in opposition in the chamber, the system provides, to a point, that the capacity to express different views and to challenge the government on the merit of its position is at least made better protected. You can still meet the minister. You can still meet higher civil servants or a Crown agency, president or CEO, but at least the group offers you some kind of buffer, if I can use that non-parliamentary expression. If you have only individual persons who act under their beliefs, honestly, and with all their experience and dedication — and nobody would question that — you don’t put that person on the same exact footing in relation to the might of the government.
It seems to me that there is merit in reflecting on that while we are, as you say, adjusting the structure of the institution because it seems to me that we will, in our will to make the institution more independent, in fact, in the end, make it more vulnerable to government. So I think there is an element there of reflection. I want to submit that to you today.
Senator Woo: If I may answer quickly, I will reflect on this. What I’m offering now is only a preliminary off-the-top-of-my-head response, but your supposition is based on two very important assumptions. The first is that a chamber of 105 senators will be atomized into 105 individual senators. I think a much more likely scenario is that there will be multiple groups — I don’t know how many — that will organize themselves, like the ISG, the Conservatives, the Liberals and maybe an NDP caucus. They will provide that group solidarity and mutual support that you speak of.
The second supposition is that organizing along political lines somehow provides more of a buffer than organizing along other lines, say like an ISG. I can tell you, from my experience at the ISG, that ISG senators have no problem pushing back against the government. They feel that they are supported by their colleagues — not all at any given time, but different coalitions of our colleagues — and receive the succour, advice, moral support and substance in order to oppose the government in the way I described earlier in this testimony.
The Chair: Thank you very much. This concludes our session for today. I wish to offer congratulations and thanks to Senator Woo and all the questioners for a wonderful performance.
Before we leave, the clerk has a point of information.
Blair Armitage, Clerk of the Committee: The chair asked me to point out that the steering committee directed me to speak to the Law Clerk about putting a briefing note together on the subject of the Parliament of Canada Act and where there may be gaps. That will be circulated, when it’s ready, as a background briefing note for the committee.
The Chair: Final point from Senator Massicotte?
Senator Massicotte: Senator Joyal is more aware of this, but about two years ago — probably a year and a half after the Liberals won the election — I had a discussion with the minister responsible for parliamentary institutions regarding an amendment to the Parliament of Canada Act. They were in favour of cooperating with us to amend the Parliament of Canada Act in conjunction with the speakership and the issue of wages, but they received a legal opinion saying that it wasn’t so simple to do that. It’s not only for that chamber and our chamber to agree. It was the thought of the legal experts that possibly it may even need provincial implication. That was the legal opinion they got, so they backed off. We all want the solution, but it’s not handily available. It’s not an issue of cooperation between us and the House of Commons, who are in favour of making amendments. It’s not a slam dunk.
The Chair: We will await the paper from the clerk.
Senator Mockler: When can we expect that, chair?
Mr. Armitage: It’s not certain just yet.
The Chair: It will be during the life of this committee; that’s all I can promise. Thank you very much.
(The committee adjourned.)