THE STANDING COMMITTEE ON RULES, PROCEDURES AND THE RIGHTS OF PARLIAMENT
EVIDENCE
OTTAWA, Tuesday, November 26, 2024
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:34 a.m. [ET] pursuant to rule 12-7(2)(a), to consider possible amendments to the Rules.
Senator Stan Kutcher (Deputy Chair) in the chair.
[English]
The Deputy Chair: I wish to welcome all of the senators, as well as the viewers across the country who are watching us on sencanada.ca. My name is Stan Kutcher, senator from Nova Scotia and Deputy Chair of the Standing Committee on Rules, Procedures and the Rights of Parliament.
Now I would ask my colleagues to please introduce themselves.
Senator Busson: Good morning. My name is Bev Busson. I’m a senator from British Columbia.
[Translation]
Senator Mégie: Marie-Françoise Mégie from Quebec.
Senator Ringuette: Pierrette Ringuette from New Brunswick.
[English]
Senator Woo: Yuen Pau Woo, British Columbia.
Senator D. M. Wells: David Wells, Newfoundland and Labrador.
Senator MacDonald: Michael MacDonald, Cape Breton, Nova Scotia.
Senator Ataullahjan: Salma Ataullahjan, Ontario.
[Translation]
Senator Gerba: Amina Gerba from Quebec.
[English]
The Deputy Chair: Thank you, everybody. Honourable senators, today we are continuing our study on the role of non‑affiliated senators. We are pleased to welcome Jonathan Malloy, Professor, Department of Political Science, Carleton University. He is very well known for his great work.
Welcome, Mr. Malloy, and thank you for accepting our invitation to appear before our committee. I invite you to make your opening statement, after which we will continue with our question-and-answer session. Please go ahead.
Jonathan Malloy, Professor, Department of Political Science, Carleton University, as an individual: Good morning, senators.
I have been asked to speak on how other Canadian jurisdictions treat non‑affiliated members. I will not be speaking with specific details on the various practices across Canadian legislatures, in part because they may be informal rather than fully codified and thus difficult to track. Instead, I want to speak broadly about why practice may vary and the underlying factors influencing approaches to non‑affiliated members.
A rudimentary but illuminating exercise is to simply search the standing orders of each legislative assembly to see how often they use the term “independent member.” I have the results here. So this is simply the use of “independent” or “independent member” in legislative standing orders, the English version in different Canadian legislatures. In Newfoundland and Labrador, it is mentioned 1 time; in Prince Edward Island’s rules, 0; Nova Scotia, 0; New Brunswick, 0; Quebec, 55; Ontario, 20, Manitoba, 31; Saskatchewan, 4; Alberta 5; British Columbia, 0; Yukon, 6; and the House of Commons 9 times mentions “independent member.” I have excluded the Northwest Territories and Nunavut assemblies, given their lack of recognized parties.
Does the data mean that independent members have more rights and privileges in Manitoba, Ontario and Quebec, given the more frequent mentions? Of course the answer is no, not necessarily. It simply indicates that these jurisdictions have either chosen or found it necessary to codify the status of independent members more than others. Legislators become non‑affiliated members for different reasons, and this often or typically affects how legislatures respond to their presence.
Looking at the House of Commons and provincial legislatures, we can identify at least four distinct categories of non‑affiliated members.
The first is elected independents, individuals elected for the first time with no previous party affiliation. These are exceptionally rare in Canada. There are three cases in the last 50 years in the House of Commons. They are also rare provincially.
The second is re-elected independents, individuals previously elected under a party affiliation but who have since been re‑elected without one. These are also rare. Jody Wilson-Raybould is the most prominent recent example in 2019, the next being Bill Casey in 2008.
The third category is formerly affiliated members, members who have left their party for voluntary or involuntary reasons but have not yet faced re-election. This is the most common type of non‑affiliated member, though the reasons for their departures vary widely. Very few of these members are re-elected and so their time as non‑affiliated members is brief.
The fourth category is members with no party recognition. These are members elected under the label of a party that does not have sufficient seats to be recognized under the legislature’s rules. In the House of Commons, the MPs from the Green Party are the chief example; the Bloc Québécois between 2011 and 2019 is another, along with various provincial examples.
Put more simply, each non‑affiliated member tends to have a different story. Some have chosen to not be affiliated; for others, the condition is involuntary. Some of the latter may be seeking an affiliation but have not been successful; some in small political parties are technically affiliated, but their affiliation lacks formal recognition.
The story behind the non-affiliated member may determine both how they are treated and what they are looking for. Members in the rest of the legislature may be more or less willing to support opportunities for non‑affiliated members and typically for instrumental rather than altruistic reasons. In some cases, there may be little sympathy or interest in assisting a non‑affiliated member, especially if they have left their party because of misconduct or controversial behaviour.
A member who has left their party on a matter of principle will likely find their former party uninterested in assisting them, while other parties may be more helpful but only as it advances their own interests.
Non-affiliated members themselves may also vary in their goals as legislators and what they seek. In some cases, the non‑affiliated member may be actively seeking to join another party. A greater or lower number of independent members may also influence rules and practices and any desire to change them, as will the standings of the different parties in the legislature, especially in minority situations where the votes of non‑affiliated members may be valuable. Also, non‑affiliated members themselves may or may not cooperate with and learn from each other to advance their interests.
All of the above changes over time and, since the majority of non‑affiliated members do not survive re-election, there may be little continuity or institutionalization of rules and practices for them. Instead, rules may be developed or adjusted for the context of the moment.
Finally, it is also important to distinguish between different supports that non‑affiliated members might seek. Number one is opportunities to participate. Perhaps the most important focus is on opportunities for members to participate in legislative proceedings and committees. Typically, legislatures have constructed ad hoc accommodations here that are proportionally similar to the typical opportunities for a backbench affiliated member. These may or may not be formally codified.
It is also important to recognize broader differences in legislative practices. For example, the standing orders of some assemblies give more or less formal prominence to parties, and it may be necessary to add specific provisions for non‑affiliated members. Others may not be so specific, leaving more flexibility. Often, discretion is left with the Speaker, at least formally, though in reality the parties may need to give consent.
Number two is resources. While non‑affiliated members enjoy the same personal office and staff resources as affiliated members, they lack access to whatever caucus resources are available to affiliate members, including the resources of the party leader, house leader and whips’ offices. This is often a point of contention but is less easy to resolve.
Number three and finally, though, are mentorship and community. Less tangible but sometimes very important for non‑affiliated members is a sense of mentorship and community. Mentorship may be particularly important for members elected with no previous party affiliation. We know the most important mentoring and learning happens through political parties, and this puts non‑affiliated newcomers at a disadvantage. However, as noted, such individuals are particularly rare.
Nevertheless, non-affiliated members are likely to feel a lack of community and support among their legislative peers. In some cases, this is deliberate, especially if the member has been involved in misconduct or controversial behaviour. Alternatively, if the member has left their party over policy issues, they may feel ostracism among their former party peers and may or may not receive collegial support from members of other parties, as I said earlier, usually for instrumental rather than altruistic reasons. Ultimately, this third category, membership and community, may be the most important.
In conclusion, whatever the formal rules of a legislature may say, the accommodation of non‑affiliated members is and always will be more ad hoc according to circumstances, and the most important reason is that most non‑affiliated members are not re‑elected and so there is little continuity. The Senate, of course, poses a different context given that senators are appointed, and thus non‑affiliated senators can still have long careers ahead of them. However, the general principle should and usually is to offer opportunities to participate in proceedings proportionally similar to an affiliated backbench member. However, calculating this may be difficult, and it ultimately depends on the goodwill of other parties and usually the Speaker.
The greater challenges in those second and third categories are resources and a sense of community, and there are few easy solutions to those. Thank you very much.
The Deputy Chair: Thank you very much for your statement, Mr. Malloy, and I apologize for mispronouncing your name at the beginning. We will now proceed to questions.
Senator Woo: Thank you, Dr. Malloy, for doing extensive research on different legislatures across the country and how they deal with non‑affiliated members. By the end of your presentation, you hit the nail on the head because we’re very different from all of those institutions, and I’m not sure how relevant all of those examples are.
You know this very well, and I am rambling a bit because I am trying to get you to tease out some other ideas for us. You have already pointed out that the other legislatures have elected members. They all entered their legislatures through an electoral process, and those who enter as non‑affiliated or independent often don’t get re-elected.
In our case, it’s not just that we’re appointed. It is also that the intent of the current Senate process is to have independent senators. All of us, since 2016, were appointed as independent senators. There is, as you know, a distinction between not just independent and partisan but independent, partisan and non‑affiliated. So non‑affiliated is not tantamount to being independent. And the non‑affiliateds consciously decide to not be part of a partisan political group or a group of, let’s say, like-minded senators who go under a particular name that does not typically correspond to a political party.
So this is really valuable insight, but I just don’t know how valuable the information is. Maybe I will ask you a different kind of question. If we understand non‑affiliated members as individuals who choose not to be part of an organized system, party or non-party, what are the principles behind how a parliament should accommodate them that are consistent with the Constitution, Westminster parliamentary practice and what parliaments are supposed to accomplish? It is a difficult question, but I would appreciate your reflection.
Mr. Malloy: That’s fine, senator, and I certainly appreciate that some of the things I talked about aren’t necessarily directly relevant to the Senate’s condition. I want to speak to what I was assigned, but, also, more importantly, I want to emphasize the human element behind all of this, as you have to, as well. In the case of other legislative assemblies, there are all kinds of different reasons why people become non‑affiliated or independent.
As I said, the basic principle is relatively common-sense: that the members should have relatively similar rights, regardless of whether they are party-affiliated, to participate in legislative proceedings, committees, et cetera. The principle should be, to use party terminology, that whatever rights the ordinary member of a party or a group has, a non‑affiliated member should have similar rights to that — not the same rights as a party leader, group leader or whatever the terminology is there, but it should be proportional to whatever any other member enjoys. But, as you know, calculating that in practice can be challenging, and a particular attention is whether it’s codified in rules or left up to the discretion of other actors, whether it is the Speaker or party leaders.
That’s the real crux of the problem. When you look at the remarks of non‑affiliated senators from this chamber or legislated members of other chambers, they often express resentment that they are really depending on others — the Speaker, party leaders, goodwill and so on — which I respect. On the other hand, it may also be the flexibility that is needed to treat them in an appropriate and just way. If one tries to simply write it down in rules, et cetera, the context evolves, and the rules may not deliver what is actually needed.
The question is the principle. The principle is that they should be treated like any other member. But the instrument for doing that may actually involve not writing things down so much as relying on the discretion of others. But it does rely on goodwill, and that’s a problem.
Senator Woo: It sounds like the core principle is proportionality. Each senator should have his or her share of time, if we can put it that way, or share of seats and so on. But proportionality is easier to manage when it’s allocated to groups rather than individuals, right? That’s partly why in the Senate, even independent senators who don’t want to be part of parties organize themselves into groups.
In that way, proportionality can be finessed within the group, if you know what I mean, whereas if you are trying to deal with proportionality for each individual senator, it is almost impossible to manage.
Would you agree that if we strive for proportionality for all senators, whether through a group allocation process or an individual allocation process, we will have met the essential requirement for treating senators fairly?
Mr. Malloy: In principle, I would agree with that. One wants to strive for proportionality, as I said, equivalent to roughly the rights that any other ordinary member — if I may use that term — enjoys, but getting to that is challenging.
I will also pick up on a point you mentioned. Even within groups and parties, it can be very difficult to finesse this. That can be overlooked a bit. It’s not as if this all works properly within parties and groups. You led a group and know that very well. That can be overlooked also. It is not as if independent or non‑affiliated members are left out but everything else works perfectly. That’s not necessarily the case.
Senator Ataullahjan: Good morning and thank you for being here, Mr. Malloy. Do you feel that non‑affiliated senators should be better accommodated? What do we need to change?
Mr. Malloy: Well, I want to be careful and say that I have a rough idea of what the current state of things is in this chamber and the new rules here about that. I’m not sure whether anything needs to change at this point. As I said, it is more a principle of how much can be codified and written down and how much must rely on the discretion of the Speaker, group leaders or other members there. That’s ultimately up to the chamber to decide. As I said, you could write things down or perhaps try to codify a few more specific rights and privileges for non‑affiliated members, but that may not really change things that much.
I can’t give a direct answer to your question. It is more about whether there is comfort with the current state of affairs across the Senate. Is there discomfort among either non‑affiliated members or affiliated members with the current state of affairs? Maybe that is the question.
[Translation]
Senator Mégie: Thank you for being with us, Mr. Malloy. I see that your study focused a great deal on non‑affiliated elected officials. Do you think there are aspects of the role of non‑affiliated senators that would also require a study, like the one you did for elected officials? In addition, I’d like to know if we can determine the growing role that non‑affiliated senators might play in the context of broader Senate reform.
[English]
Mr. Malloy: Thank you, senator. First, I would say I’m an academic. There is always room for another study and more research there.
The question gets to larger issues about the changes in the Senate over the last eight years and the independent appointment of members. The Senate, as everyone here in this room knows very well, has changed a great deal over the last eight years. Part of it has been the rise of non‑affiliated senators who were, of course, independent — I think that was the correct term — senators before 2016, who chose not to affiliate with a political party. But that’s a somewhat different situation than what we have here today.
I will go back to say what I said earlier in my study: that each non‑affiliated or independent member tends to have their own story behind them with respect to why they became non‑affiliated. That often has to be incorporated in what they are looking for, how they can be satisfied, if it is possible to satisfy them and the role that they wish to play in the chamber. Some individuals — I’m speaking broadly about non‑affiliated senators but also independent MLAs and MPs — may be non‑affiliated but really want to play an active role in the chamber. Others may not want to play much of a role. They may not be very proactive there. So their aspirations and the extent to which they are going to use the rules, rights and privileges given to them will vary quite a bit. Each person has their own story, and it is hard to generalize what their overall effect might be.
[Translation]
Senator Mégie: Thank you.
Senator Gerba: Thank you to our guest for being here. You suggest that non‑affiliated members should benefit from the same proportional processes. However, in the system that exists in the Senate of Canada, non‑affiliated members are not mentioned in the Rules of the Senate. This means that, logically, there shouldn’t even be non‑affiliated members in the Senate of Canada. The reality is that there are. We have non‑affiliated members.
In your opinion, should groups and parties be allowed to integrate non‑affiliated senators as related members or administrative members? This is a practice followed by the French senate, for example.
[English]
Mr. Malloy: I don’t necessarily think that’s the case or that it should be. Just because there’s no mention of non‑affiliated members in the rules doesn’t mean, first, that they don’t exist. They certainly do exist. I will return to what I mentioned earlier with the standing orders in different assemblies. I notice that the Nova Scotia standing orders have no mention of independent members. The Newfoundland and Labrador standing orders have one mention, but both those assemblies have independent members who have been re-elected. Newfoundland and Labrador, I believe, has two members who have been re-elected a number of times as independents. Nova Scotia — which has an election today, of course — has an independent member who was re-elected in 2021. So these people very must exist in those assemblies even if the rules don’t really mention them or say much about them. The assemblies, to my understanding, have figured out ways to accommodate them at least somewhat.
This gets to the fact that the rules need to reflect the actual makeup of the legislative chamber. Every senator has been appointed to the Senate of Canada. Some have chosen to not be affiliated. The rules need to at least somewhat reflect that as opposed to saying, “You can’t be non‑affiliated because the rules don’t mention your category.” The rules need to be shaped to some extent to accommodate the nature of the actual people in the chamber. So it could be that other assemblies, such as in France, have other ways of doing that here. But in the end, we have to respect a person’s choice not to be affiliated and to figure out how we can give them proportional rights and privileges that are appropriate for them as a member of this chamber.
[Translation]
Senator Gerba: In that case, does this mean that the Speaker should play this role? Apparently, groups still have privileges in the Senate in the current context. This is one way of attracting non‑affiliated members or new members who are appointed to this chamber. So, if we were to change things, we’d have to carry out a study, as my colleague suggests, or else the Speaker would have to give herself privileges in order to grant proportional privileges to non‑affiliated members. Is that what you’re suggesting too?
[English]
Mr. Malloy: I’m suggesting, as an option, that resting power and discretion in the Speaker is certainly a solution. It may not be the optimal solution, because it does depend on the goodwill of the Speaker. It puts a burden on the Speaker. In practice, a Speaker will likely still want to consult to some degree with other party groups, other senators and other chambers, which is generally how it happens in provincial assemblies. Even if the rules say nothing and it is up to the Speaker’s discretion, we know that at least in some cases, the Speaker does work informally with the house leaders of the parties or other appropriate individuals.
I wouldn’t necessarily say to simply rest it all in the Speaker and let the Speaker figure it out. That is probably not a good long-term solution.
I think there should be at least some attempt to codify things in the rules. I’m also not saying that it should be the other extreme: that we should write everything down in the rules as opposed to giving it all to the Speaker. Surely there is a middle ground somewhere.
[Translation]
Senator Gerba: Thank you.
[English]
Senator D. M. Wells: Thank you, Dr. Malloy. I wanted to go back to the conversation you were having with Senator Woo regarding the core principles of the Senate, the discussion about proportionality being a core principle and your comment that we should strive for proportionality. I don’t know what that means. I don’t know if the Senate should strive for proportionality. It’s a function of the Senate and how we organize many of our practices and functions, like attendance on committee. We do that based on proportionality. However, I don’t know if it’s something we strive for. I think it’s something we do based on that principle.
I would say the core principle of the Senate is the Westminster system, on which it was founded, which is the government and an opposition and how we organize within the chamber. I wanted to get your comment on that — that obviously a core principle is the Westminster system. It was founded upon that. It’s in the Constitution.
Can you talk a bit about the structure that has arisen since 2015 around that core principle, the one of government and opposition, which we still have? Despite all the discussions about a new independent Senate, we still have a government and an opposition. I suspect after the next election and the ones after that on into the future, there will still be a government and an opposition. It’s how we organize.
When two teams take to the ice in hockey, it’s how they organize. One wears one colour and the other wears another colour and there’s not independence on the rink. That’s how these things are organized. Can you talk a little bit about that?
Mr. Malloy: Sure. I think it’s maybe useful to reflect back on what I was saying about the provincial assemblies and the House of Commons. They do operate very much on a government/opposition principle. As you pointed out, there are different conceptions of the Senate today in its state. I think this is still applicable. The idea of proportionality is that, in the end, in any chamber, every member should be at least nominally equal. Obviously, there are leaders and there are different proportions there, and there are different sides, et cetera, but again, they are all members of the chamber, members of the Senate, members of the legislative assembly, et cetera. The ways in which they participate certainly do vary by government or opposition. Quite often, if one is a backbencher with no particular responsibilities, one often has more rights in the opposition because the parties are smaller than a government backbencher. There are all these different permutations and combinations here.
I think you’re quite right that in the Senate, which certainly does have a government and opposition, there is still a principle that each member is equal. I’m not saying proportionality is easy to accomplish, but proportionality is done in other ways, such as seats on committees, et cetera, for party groups. There needs to be a way to try to understand how we can give each individual senator, including non‑affiliated ones, opportunities to participate. I suggested the principle is simply we look at the backbench — if I may use that phrase in the Senate — ordinary members of party groups or parties, whether the government or opposition, and what is typical. How often do they have opportunities to speak in the chamber to present bills, et cetera? I agree that it varies quite a bit, but trying to figure out as close as one can what the typical allocation would be would be an appropriate thing to try to strive for.
Committees, of course, are more difficult. As we know, committee places are distributed according to the proportions of the groups, and that certainly is a tension for non‑affiliated senators. What is their place on committees? I believe there have been some ad hoc solutions.
I’m not claiming that proportionality is easy, simple or does not have a lot of complex dimensions. To me, it’s the base of any legislative chamber that each person is a member of that chamber and should have rights and privileges as much as possible. One should strive to try to give them similar rights and privileges, regardless of whether they are affiliated or non‑affiliated.
Senator D. M. Wells: Thank you for that. When we read academics’ writings in the media — because I frankly haven’t read too much, and that’s on me, of academics that are published in the media on the topic of the Westminster system or Canadian Parliament or the Senate. With respect to what I do read in the media, I think many times, “Oh, that’s quaint, and it’s very theoretical.” But I also sit in the chamber, where I see things happen every day, which is not theoretical but actual. I see even now among colleagues a struggle for — “struggle” may be too strong a word, but maybe it’s not too strong a word — a battle. Who’s going to be the Leader of the Opposition? How will that be formed after the next election? It will fall outside the norms of the Westminster system where obviously the Conservatives are the official opposition. We’re a party affiliated with a party in the House of Commons — and the only party in the Senate that’s affiliated with a party in the House of Commons — so it’s easy. There was an invention called the Government Representative Officer, or GRO, which was also a function that was needed, but that was absent because there were no large-L Liberal senators.
I wonder about the theory and what will happen after the next election if there’s a change in government. How do you see that playing out? Many times, when we say “independent Senate,” we use air quotes — I do — because most votes go along —
Senator Ringuette: Can we have a real question here?
Senator D. M. Wells: What I’d like to get your opinion on is the actual function in the Senate, if you follow it, and the theoretical function, which I know you follow as part of your job.
Sorry for offending you, Senator Ringuette.
Mr. Malloy: That’s a broad question. I’m certainly well aware of different conceptions of the Senate and conceptions after the next election when there is likely to be a change to the party in power. It’s a hard question to answer. It’s a speculative question. I’m not going to try to speculate here. I will go back to what I said earlier: There needs to be some attempt to try to find the right middle ground between codifying in rules — saying, “Here’s exactly the rights and privileges of non‑affiliated members” — and giving discretion to the Speaker or other leaders to muddle through with options centred there.
I agree. I don’t want to push the theory too much because I’m well aware it’s a very complicated practice. I simply urge again that a basic principle is one should strive for proportionality with the rights of individual members and what they can do, recognizing it is very difficult in practice and that there needs to often be a middle ground and some common sense. There are different conceptions of the role of the Senate, the role of members and the reasons why people are affiliated there, so I will close by saying I agree that I don’t have all the answers.
Senator D. M. Wells: Thank you.
Senator Ringuette: I guess I will start with a statement, which is the following: I was part of the New Brunswick legislature in 1987, when we had 58 Liberals and no opposition. That did not remove the fact that every one of these 58 elected members in a Westminster system did the job that they promised to on behalf of New Brunswickers. There are precedents, and it was quite an intense baptism for my political life.
That being said, and going back to the question that we asked you to appear upon, we have a daily Order Paper that now — well, since 2016 — every senator has access to. When we were in a partisan situation, only the leader and the deputy leader had access to what would be happening, and the rest of us in this partisan Senate had to follow orders. It was so trivial and childish in regard to acting like mature adults.
When I look at the Order Paper we have, there are only two items that have time restrictions. Those are Senators’ Statements — we have a maximum of six statements per day — and Question Period, with a maximum of 30 minutes per day. In all other items on the Order Paper, any senator at any time can enter debate and put forward amendments on bills, private members’ bills or inquiries on issues.
It comes back to Senator Woo saying that the core principle needs to be proportionality because we have Senators’ Statements and Question Period, and everyone is fighting for these time slots. So far, with what I’ve witnessed, I find that non‑affiliated senators who want to participate in Senators’ Statements or Question Period put their names ahead and there is relative proportionality, considering that for any given time slot, there are 95 to 100 senators in the place. Where else should we try to focus energy if there are additional items for non‑affiliated senators that we should be looking at?
Mr. Malloy: Thank you for first reminding us of the 1987 New Brunswick situation. It’s different than here, but it reflects that our Westminster system can adapt to some unexpected outcomes or unexpected proportions and so on.
Senator Ringuette: I was a witness — and a participant too.
Mr. Malloy: To your point, I would say an advantage of this chamber is that it — this is both before and after 2016 — does definitely have a more collegial atmosphere than the House of Commons and provincial assemblies. I think people would agree with that both before and after 2016. So there is perhaps a bit more collegiality in terms of sharing, if I can put it that way, and respecting each other. In the House of Commons and provincial assemblies, it is more of a zero-sum game between the parties; it tends to be more competitive. The Senate, I think, already has more collegial sharing. Maybe “sharing” is not quite the best word, but there are some advantages there.
I think it’s illustrative. It may be that the current rules are satisfactory and that they give enough discretion for non‑affiliated senators. My understanding is not all non‑affiliated senators feel that way, but it may be that the Senate has the appropriate regime now that has a balance between codified rules and discretion, either with the Speaker or simply with other senators.
Again, I’m not arguing for change in the current status quo. I’m also not saying the current status quo is perfect. It’s opening it up to senators as a whole to decide whether this is satisfactory and respects all senators as reasonably as it can. Does it strive for a principle of proportionality as much as it can? Of course, that’s very complicated.
As you said, the current situation may be the best there is, but certainly I’m glad the study is being done to see if there are other options or better or worse ways of doing it.
Senator Ringuette: Thank you.
Senator Busson: Thank you, Professor Malloy, for being here. This discussion is incredibly interesting. As they say, the devil is in the details in these kinds of situations.
In the Senate at the moment I think — the number changes depending on the day — there are 12 unaffiliated senators in the Senate, which apparently is very rare in these kinds of parliamentary situations, to have that many. As you said, people are appointed for life, so this is not a time when people are going to move out and do whatever.
I’m sort of thinking to myself how interesting it is that there is this number, because that number is a tipping point number to become a group or to become part of an affiliated group. Three of the senators who are non‑affiliated talked about some of the things they found to be irritants to their functionality in the Senate. Two of them were talking about being part of a unanimous consent vote within the Senate, and the other’s point was around whether in certain circumstances that may arise, much like Senator Ringuette was talking about, they could act collectively and somehow garner the kinds of rights and privileges that a collective or group would have. Could we perhaps have your comments around those issues?
Mr. Malloy: Theoretically, if non-affiliated members could all band together — in a sense, be affiliated non-affiliates, even though that’s contradictory — yes, perhaps there could be more. I would say again that each non‑affiliated member tends to have a different story. As you mentioned, with the current non‑affiliated senators in the chamber — of course, with the Government Representative Office, some fairly newly appointed senators will perhaps be joining a group, and some have been part of a group and have left — each one has their own story. Theoretically, if non‑affiliated members all worked together collectively, as I said in my remarks, whether they work together at all really varies because they’ve chosen to be non‑affiliated and may not choose to be part of a non‑affiliated club, so to speak. If they worked together, you could think of various combinations of forming a group or being more united in what they ask for. I think if you look at the experience of other assemblies, that’s not really the case.
It isn’t really a tipping point. It’s more whether there are enough members with a common story and a common interest in working together as non-affiliates, which is quite rare. I would also say in the case of other assemblies, of course, there are the cases of small parties. When we look at who’s independent in an assembly or in the House of Commons, in some cases, they are actually part of a party — it’s just too small of an affiliation — but they obviously work well together, even though there are only two or three members.
Getting back to your question, theoretically, if there is a large enough group of non‑affiliated senators, they could work together collectively for change, but I don’t think there are many examples of that because, by definition, they have their different stories of why they’re non‑affiliated in the first place, and they tend not to seek direct affiliation with their other non‑affiliated colleagues.
Senator Busson: Thank you very much. If I might continue with a follow-up, again, we’re delving into the hypothetical, but it came to mind, if we get to a number of 12 or 14 members who are non‑affiliated, is there perhaps conversation that might exist around them becoming a group administratively so they could put their work together to garner some extra rights with respect to administrative functions?
Mr. Malloy: That could certainly be a solution, if you declared, “We have 12 individuals here and they could be a group,” but my sense is that you can’t just declare 12 individuals be part of a group; the 12 individuals have to decide to be part of a group and decide how to work together. My guess is that would be challenging. It might be neat and tidy in the first place, but I’m not sure it would solve any problems; it could well create new one.
Senator Busson: Thank you so much.
Senator Batters: Thank you very much, Professor Malloy, for being here today and helping us with this issue. You were just speaking about what I think you termed “the non‑affiliated affiliated” and how that seems to be a bit of an unusual term. Well, that’s sort of what we have with the government right now.
Right now, when the government leader or the government deputy leader or the Government Whip, what they call the liaison, the screen lists their role with the government. But then, right under that, the Senate puts on the screen “non‑affiliated.” To me, isn’t that about as affiliated as you could get, being affiliated with the Government of Canada and having all those types of roles and responsibilities and titles and everything like that. Right now, though, they’re being termed “non‑affiliated.”
Mr. Malloy: I agree that it’s a bit odd because, as you said, they are listed as non‑affiliated, but they do represent the Government of Canada. There are others in this room who, if asked, would have a better understanding of the history of why those terms were chosen. They represent the Government of Canada. They don’t necessarily represent the Liberal Party of Canada. That gets into various historical distinctions there.
I’ll simply agree with you that it’s a bit odd. There’s a lot behind it, but I agree; it is a bit odd.
Senator Batters: Just to make a point on something that Senator Ringuette was earlier speaking about, what she referred to as the Order Paper that’s sent out. What she was referring to, just so it’s clear to everyone, is the scroll notes that are kind of the preview of what will happen on the Order Paper for that day. There’s a scroll meeting that happens every day. The leadership of different groups goes to those meetings and then kind of maps it out for everyone and sends out what could happen.
Of course, the great thing about the Senate is that anyone can get up to speak about any topic on the Order Paper on any day. So you’re projecting what might happen, but things can always occur from that later.
When Senator Ringuette was making the comment about the previous, as she termed it, partisan system, only the leader and the deputy leader got those notes; no one else did. I’m not sure how that worked in her group, but in our group, our leadership always has and continues to pass that information along to us later on in the day. I’m not sure if perhaps other groups didn’t do that before.
My other question to you, Professor Malloy, is regarding the potential role of dealing with non‑affiliated senators for the Speaker. Senator Gerba asked you earlier about the Senate Speaker having a role in ensuring non‑affiliated senators receive a certain amount of time to complete some of these different duties in the chamber and that sort of thing.
To me, that scenario almost sounded a bit like the Senate Speaker would be akin to the leader of non‑affiliated senators, which would certainly not be appropriate. You were expressing you didn’t think it was appropriate to put our Speaker in that kind of role, and I echo that.
One more distinction I would point out regarding this is that, unlike in the House of Commons, the Speaker of the Senate is not elected by its members. The Speaker of the Senate is appointed by the government, actually, and holds quite a high diplomatic standing and represents the government at important diplomatic meetings. Here, the Speaker is one among equals, not sort of the boss of the whole place.
Given that distinction between the Speaker of the Senate and the Speaker of the House of Commons, do you think that maybe amplifies the difference between the two roles?
Mr. Malloy: It could amplify it. As you pointed out, the speakerships are not identical by any means. Regardless, we do see this in some provincial assemblies. It’s clear that discretion is being left to the Speaker, in our classic Westminster approach is to leaving it to unwritten conventions and things. If we’re not quite sure how to deal with something or how to codify it, we’ll have a human dimension and leave it to the Speaker.
That’s appropriate up to a point, but we should not leave everything in the hands of one office, of one person, because it then becomes, as you said, a burden and responsibility. They essentially become the protector of the non‑affiliated members. I’m not sure that’s a job that a Speaker wants to have. They could easily be criticized from different sides for that.
It’s sometimes appropriate to give discretion to the Speaker. I think it’s an appropriate Westminster convention, but it should not be overused. This would apply for the House Speaker as well as the Senate Speaker. We should not overuse that office. We should not use it as a dumping ground for things that we cannot decide what to do with, saying, “Well, let the Speaker figure it out.” I don’t think that’s a good practice.
Senator Batters: Traditionally, the Speaker of the Senate has been someone who tries to find consensus. That’s generally been how their role has been seen. Given the significant ties the Senate Speaker has to the Government of Canada, do you think that amplifies the fact that non‑affiliated senators shouldn’t rely on them, nor should the Senate Speaker be determined to be the protector of the non‑affiliated senators because, at times, that role could clash with their ties to the Government of Canada?
Mr. Malloy: I’ll respond to that in a roundabout way. That simply illustrates the difficult position of the Speaker of the Senate, as you said, in terms of their possible or implied ties to the government. Adding a new job for them only increases the weight on the Speaker there. Your point illustrates that there’s already a lot of expectations of the Speaker and different understandings of the Speaker’s role. Making them the protector of the non-affiliates would increase the weight of that job.
The Deputy Chair: I have Senator Woo on for a second round. If you wish to be considered for a second round, please let us know. Before we get to Senator Woo, I have two short questions to ask — and they are questions.
I want to clarify what I heard; I think I heard this correctly. Mr. Malloy, you said that a non‑affiliated senator should have relatively similar rights to those of an ordinary member. You didn’t use the phrase “exactly the same rights.” Would you help us understand the difference between the two?
Mr. Malloy: The difference is that it’s difficult to decide what is exactly the same because, as I said in my conversation with Senator Wells, there are different permutations of combinations here. We will never get to “exactly the same” there, but we should strive toward that, so that’s why I say “generally the same.”
The Deputy Chair: Thank you for that. That’s what I thought you meant, but I just wanted to make sure. The second issue has been, again, from some of the points that you made. I want to make sure I understand them correctly. I know this isn’t what you said, but it’s my paraphrase of a bunch of discussions, so help me out with this.
The rights of an unaffiliated senator could be accommodated without necessarily being codified in the rules.
Mr. Malloy: That is an option, yes.
The Deputy Chair: It is an option. Okay. I just wanted to make sure I understood both of those things. Thank you so much.
Now we’ll go to the second round.
Senator Woo: To pick up on the last comment, it sounds like we’re pretty close to a procedure where we accommodate non‑affiliated senators by the principle of proportionality, ensuring that their individual rights are upheld and looking to the Speaker from time to time to correct any egregious, unfair practices toward them.
My question is about the constitution of recognized parliamentary groups. Currently, the rule is that a minimum of nine senators is needed. There is no optimal number, but do you have a view on what range of numbers we should be thinking about as the minimum for the creation of a recognized parliamentary group, given that, as you know, the size of the Senate is a maximum of 105 under ordinary circumstances?
Mr. Malloy: I don’t have a particular view. It’s up to the chamber to decide. I think, with common sense, we would look at different legislative assemblies. There is usually a proportion of some sort. In other assemblies, about 6 to 12 members is often the common practice.
Senator Woo: The overall size changes things.
Mr. Malloy: The House of Commons, of course, is much bigger, but the number is not much larger there. There may be a certain point where you have a large enough group of people who feel they can organize in some way. They can organize themselves to have leadership and distribute responsibilities.
To your other question, if you had a group of, say, three or four people, you can recognize them and so on, but those three or four people must agree on how to distribute things there.
There is no optimal size, but if you look at the fact that both assemblies do have a number — and it may not be nine but often it’s in that rough category — that suggests that they found that it is an appropriate number.
Senator Batters: Thank you. I apologize that I was a little late today, waiting for a cab forever in the rain, so I may have missed a little bit of this.
Certainly, previously, a very important foundational principle of the Senate was equality of senators as opposed to what has now become more of a push to have equality of groups. This is a little bit unusual given that it is independent senators pushing equality of groups rather than the foundational principle of equality of individual senators.
Where that’s most commonly seen in the Senate is that, yes, we’ve been mentioning the differences when it comes to Senators’ Statements, that it is in that short period of time of the day, or in Senate Question Period, again, a relatively short period of time in the day when the groups kind of dominate those parts right now. But for every other item that’s on the Order Paper, for every bill that is being debated, every inquiry, every motion, every individual senator has the same right to get up and give a speech for the same length of time. Aside from the leadership groups getting certain increased times to speak, every individual senator can get up and have the same length of time to speak, rather unlike in the House of Commons, where they are given a very low spot in the ordering of that sort of thing. In the Senate, individual senators, no matter if they’re in a group, are non‑affiliated senators and so on, they have that ability.
Would you say that’s quite an advantage, as compared to a place like the House of Commons? We heard from them that they would potentially be number 49 on the list of members of Parliament who would be able to speak on a particular matter.
Mr. Malloy: I would say, as I said earlier, that it’s widely agreed upon that the Senate, both before and after 2016, has been a more collegial place than the House and the provincial assemblies. Senators have, generally, been less rigid in how rules and things are distributed. That certainly makes it easier to respond to non‑affiliated members with a more pragmatic approach, as you say and as Senator Ringuette has said. Any senator can speak on this, and there’s more flexibility, whereas in the House and provincial assemblies, everything is much more rigidly distributed and zero sum.
I think the Senate has a number of advantages in that regard, being able to accommodate non‑affiliated members in a way that is appropriate and is just. The current approach may well be the correct one. It may be that no changes are needed. Even if there are non‑affiliated senators who feel otherwise, this may be the best approach there.
It is in part because the Senate is already a fairly collegial place. Senators have shown that, even when there are disagreements and different perspectives on the chamber, that they are able to pragmatically solve and approach things and to deal with the business of the Senate. It could well be that there are a number of advantages here again, and perhaps no changes are needed.
Senator Batters: Just so you are aware, that foundational principle of equality of senators existed long before 2015 or 2016. I don’t think you were implying otherwise. It was a collegial place before 2015, and I’m sure it will be after 2024.
Mr. Malloy: That is definitely my overall point, yes.
The Deputy Chair: Thank you, colleagues. There being no other questions noted here, I would like to thank you, Mr. Malloy, for your testimony today and your valuable contribution to our study.
Colleagues, we have reached the end of our agenda. We will conclude our meeting.
(The committee adjourned.)