THE STANDING COMMITTEE ON RULES, PROCEDURES AND THE RIGHTS OF PARLIAMENT
EVIDENCE
OTTAWA, Tuesday, December 3, 2024
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:35 a.m. [ET] pursuant to rule 12-7(2)(a), for consideration of possible amendments to the Rules.
Senator Denise Batters (Deputy Chair) in the chair.
[English]
The Deputy Chair: I want to welcome all of the senators, as well as the viewers across the country who are watching us on sencanada.ca or on cpac.ca.
My name is Denise Batters. I’m a senator from Saskatchewan. I’m normally deputy chair of the Standing Committee on Rules, Procedures and the Rights of Parliament. I’m just stepping in to help out my colleague the chair today.
I would like to ask my colleagues to introduce themselves.
Senator D. M. Wells: I’m David Wells from Newfoundland and Labrador.
Senator Woo: Good morning. Yuen Pau Woo, British Columbia.
Senator Black: Rob Black, Ontario.
[Translation]
Senator Saint-Germain: I am Raymonde Saint-Germain from Quebec.
Senator Gerba: I am Amina Gerba from Quebec.
[English]
Senator Yussuff: Hassan Yussuff, Ontario.
[Translation]
Senator Mégie: I am Marie-Françoise Mégie from Quebec.
[English]
Senator Busson: Welcome. I’m Bev Busson from British Columbia.
[Translation]
Senator Audette: I am Michèle Audette….
[English]
The Deputy Chair: She is from Quebec, and she is normally the chair.
Honourable senators, thank you.
Today, we will resume our study on the role of non-affiliated senators. We are pleased to welcome back to the Senate the Honourable James S. Cowan, former senator and former opposition leader for quite a number of years.
Welcome, former Senator Cowan, and thank you very much for accepting our invitation to appear before our committee today. For the record, Senator Cowan was Leader of the Opposition in the Senate for several years and he was also Leader of the Independent Liberal caucus.
I invite you to make your opening statement, after which we will open the floor to questions from our senators.
Hon. James S. Cowan, former senator, as an individual: Thank you, chair, and thank you for the invitation to appear before the committee.
It was suggested that I might speak about the role of non-affiliated senators who do not belong to any group recognized by the Senate and also about the depoliticization — if that’s a word — of the Senate as an institution. I am happy to do so based on my own experience.
As you mentioned, I was appointed to the Senate by Prime Minister Martin in March of 2005 and joined the Senate Liberal caucus, which was then part of the National Liberal caucus. In January 2007, I became Opposition Whip, and in November of 2009, Leader of the Opposition, a position I held until the election of 2015. After that, I remained Leader of the Senate Liberal caucus until I stepped down in June of 2016. I retired in the spring of 2017.
In its unanimous 2014 decision on the Reference re Senate Reform, the Supreme Court of Canada said this:
The Senate is one of Canada’s foundational political institutions. It lies at the heart of the agreements that gave birth to the Canadian federation.
It follows that the decisions made by the Senate are political decisions and that the senators who make those decisions are politicians.
By virtue of their appointment to age 75, senators are independent. There is no need for senators to be loyal to the prime minister who appointed them. Traditionally, most senators chose to join one of the established groups in the Senate — until recently, either Liberal or Conservative — but there were always those who chose to stay apart from either. In the case of my “class” in March 2005, while the majority joined the Liberal caucus, one joined the Conservative caucus, one joined a group which styled itself Progressive Conservative and two identified as independent.
Prior to the election of 2015 and the implementation of the Trudeau reforms, the Senate always had a few non-aligned or non-affiliated members. The practice was for the government and opposition leadership to make committee slots available to those senators. The longstanding practice was to reallocate committee assignments only at the beginning of a new session.
After the 2015 election, the Conservatives formed the Official Opposition. The Liberals were obviously not the government caucus. In March of 2016, the Government Representative Office was established, composed of Senators Harder, Bellemare and Mitchell.
As Mr. Trudeau began to make a large number of appointments who were discouraged from joining either of the two existing caucuses — the opposition Conservatives or the Liberals — and those new senators banded together to form the Independent Senators Group under the leadership of Senator McCoy, we obviously needed to address the committee assignments for our new colleagues. We couldn’t wait until the end of the session.
Senator Carignan, then Leader of the Opposition and I, as Leader of the Senate Liberal caucus, agreed that we would each allocate two of our seats on each committee to the ISG. That arrangement was in place at the date of my retirement in 2017. I assume the current practice is that the leadership of the recognized groups agree as to seat allocation and the non-affiliated senators are assigned to committees as before.
In the interests of time, perhaps I might stop there. I do have some other comments about the depoliticization of the Senate and our own experience which might be of interest when we were liberated from the national Liberal caucus. I would be happy to share those with the committee.
The Deputy Chair: We have time, Senator Cowan. You can continue. We have time for you to continue if you want to give us more comments now.
Mr. Cowan: If that’s the wish of the committee, I would be happy to do so.
I would like to take a few minutes to speak about the concept of independence as it pertains to this institution. For anyone who might be interested, I spoke at length, as I often did, about this issue on April 20, 2016, during the debate on the Speech from the Throne and then again during my last speech in the Senate on November 15, 2016, during the debate on the reports of the Special Committee on Senate Modernization.
To me, being independent means not having to follow the lead or direction of any other person or body. It does not mean not joining with others who hold a similar position or hold similar views or values.
In 2014, when the Liberal senators were removed from the national Liberal caucus by Prime Minister Trudeau, we had some fundamental decisions to make. We could all go our separate ways, or we could join another caucus. We were caught by surprise by the decision, so we obviously had no chance to think about it in advance.
We got together and, in the end, we decided that we would stay together as the Senate Liberal caucus because of shared trust, a sense of having worked together in the past and shared views and values. We styled ourselves the “Senate Liberal caucus” although we no longer had any ties to the national Liberal caucus, which then was composed solely of members of the House of Commons. The Speaker ruled that we could retain the role of official opposition, and as its leader, I would remain Leader of the Opposition — a position I held until 2015.
During that time, our caucus met to discuss Senate business, as before. While we tried to achieve consensus on contentious issues, we never tried to compel any senator to vote in a particular way, and we often had senators voting differently. All we asked was that if a senator was going to vote differently than the consensus which had been achieved, that we would be advised in advance so that we weren’t caught by surprise. Most of the time that happened.
We periodically opened our caucus meetings to outside experts, other senators and interested members of the public. Early on, we held a session with an outside facilitator to consider how we would organize ourselves.
We quickly realized that most of us shared similar views and values about public policy issues — the importance of upholding the Charter of Rights and Freedoms, human and minority rights, and opposition to a number of measures which the Harper government had taken or proposed to take. This was the glue that held us together as we entered these uncharted waters.
I detail this history to reinforce my point that being independent does not mean that senators cannot join together in a group to pursue or defend certain goals. To do so does not make them any less independent.
There are some — senators, academics, pundits and other observers — who consider that the changes to the Senate appointment process and the establishment of the Government Representative team introduced by Prime Minister Trudeau have fundamentally changed the way our parliament functions in a positive way — a way in which the Senate ceases to be political. I am not sure I agree.
The Senate has two core functions: exercising sober second thought and then passing legislation, with or without amendment, and serving as a check on the government of the day.
To quote Mr. Trudeau, albeit before he became Prime Minister:
If the Senate serves a purpose at all, it is to act as a check on the extraordinary power of the prime minister and his office, especially in a majority government.
The value of Mr. Trudeau’s reforms, in my view, ought to be measured by whether or not they have resulted in a Senate which is carrying out those two core functions more effectively — not more efficiently, but more effectively.
As I said a few moments ago, no less an authority than the Supreme Court of Canada described the Senate as one of Canada’s foundational political institutions. Senators are politicians whose business it is to make political decisions. It is not a debating club, a council of elders or some sort of non-political think tank.
Canada has a Westminster-style, bicameral parliament. The two chambers have essentially the same powers, and legislation requires majority support in both chambers. While it is true that traditionally the unelected house defers to the elected one, that is not the law. The Salisbury principle only applies where the measure in question was part of the mandate which the government of the day received from the voters. It does not apply to every bill which is sent to it by the House of Commons.
Our parliamentary system requires that there be a government commanding the support of a majority of the members of the House of Commons. Those who do not support the government form themselves into one or more opposition parties, the largest of which is the official opposition.
Personally, I fail to see how our system can function effectively if the other house — the Senate — organizes itself in a different manner where significant numbers of senators are “lone wolves.”
Let’s fast forward a year or so until after the next election. If current polling numbers hold, there is likely to be a new government formed by a party whose leader has opposed the Trudeau reforms. That party will maintain a caucus in the Senate, the members of which will caucus with their colleagues in the House of Commons. The new Prime Minister will appoint senators as vacancies occur, the majority of whom are likely to join the government caucus.
What will become of the rest of the senators? I would predict that many of them will find some of the actions of the new government not to their liking. What to do? To me, it seems logical that they will coalesce together in one or more groups with the objective of pointing out the flaws in government legislation and proposing amendments designed to improve those measures. The largest of such groups will seek to have itself established and recognized as the official opposition.
It is often said that politics is a team sport. That expression is not meant to denigrate or trivialize political activity. It is just that, in the political arena, as in so many other areas of our daily lives, progress can only be made and objectives achieved by working together with other like-minded individuals — often involving compromises and trade-offs.
Here in the Senate, no individual senator can possibly stay on top of everything that is before the house and in committee. That is what a caucus offers — the ability to rely on caucus colleagues to share that load. One quickly learns whose opinions and recommendations align with one’s own values. Working with colleagues in that way enhances the effectiveness of a senator’s work without in any way making them less independent.
Now, politics and partisanship have acquired negative connotations but, at their core, I believe they are how democracies function. Take them away and you have authoritarianism.
I make these comments not out of any sense of nostalgia or aversion to change but because I believe in the Senate and know what a critical contribution it has and can make to the proper functioning of our parliamentary democracy.
I hope these remarks have been helpful, and I look forward to the discussion.
The Deputy Chair: Thank you very much. We will now move to questions.
Senator D. M. Wells: Thank you — I can’t call you “Mr. Cowan.” I’m going to call you “Senator Cowan” because that’s how I know you. Thank you for thoughtful remarks. I recall very well your final speech in the Senate. It had an impact on me, and I reference it a number of times and regularly and suggest oftentimes colleagues go and review those notes.
I have a couple of questions. You talked about the benefits of being part of a caucus. We’re talking about non-affiliated senators now. What would you say are the greatest benefits of being a member of a Senate caucus and a national caucus?
Mr. Cowan: Thank you, Senator Wells. It is good to see you again.
I think the benefits of being in a caucus — let’s talk about the Senate caucus first — are that, generally speaking, you are with people who look at things the same way you do. You share values. You trust one another. You can rely on others. You can share the load.
There is a huge volume of work that comes through here, and as I said, nobody can possibly be on top of all of it. There’s the ability to say, “I trust David Wells’s views on these areas, and he may think I have some value in another area,” and we learn to rely on one another, to listen, in my experience, and to be able to say, “I think I know where I stand on this.” Then, when you hear other people talk about it in a caucus where the discussion is open and people respect confidentiality generally, you change your views. You modify your views, and say, “Well, I hadn’t really thought of it that way, and that’s a good point.” That’s how you achieve consensus. I think that makes your work more valuable and makes you more effective.
With respect to the other part of your question about a national caucus composed of MPs and senators, I had that experience from 2005 till 2014 and lost it after that for the last few years that I was there. What I found was that, first of all, the senators brought a longer-term perspective to the national caucus discussions than sometimes MPs had themselves. Many senators had been there longer and had seen this movie before so they had that perspective. As far as the work was concerned, the fact that early on you were able to become acquainted with a particular piece of legislation or a move of some type and follow it through the procedures in the House, and then you were well aware of the arguments pro and con by the time it got to the Senate, I think that made for more effective debate in the Senate. In my day, the Conservatives were doing exactly the same thing.
I think there is a misconception that it meant that senators automatically worked in lockstep with their colleagues in the House of Commons. That was not my experience. Occasionally, there were strong suggestions as to how they would like to have it dealt with in the Senate but, most of the time, it was simply a question of educating based upon those discussions. Then when we didn’t have that after 2014, you were hearing about things for the first time when it hit the Senate floor. I think that was less effective.
Senator D. M. Wells: Thank you.
With the change of government after the Chrétien-Martin years, there was a majority of Liberals in the Senate, yet the Harper agenda passed — not without debate, but the government priorities did pass. Could you talk about that dynamic, about ceding your authority with the majority and the recognition of the government’s agenda and the will of the population?
Mr. Cowan: I mentioned the Salisbury principle, and that was very much in our mind at the time.
I remember particularly the accountability bill. Senator Day was leading the charge on our side. We had a long debate and came up with 100 different amendments and discussed that with the government. The government said, “We’ll give you these few, but if you insist on more, then maybe we’ll have another election.” Because of our association with our colleagues on the other side, we knew that the political price would be paid by them and not by us if we pushed too far. I think that there was a kind of moderating and modifying influence which prevented us in the Senate from going full on against a government which had just been elected with a clear mandate.
We did draw a distinction on a number of occasions: “That’s part of the mandate, so we’ll give you that, but this was never mentioned during the campaign so we are not going to cave on that.” Those were the discussions that Senator Carignan and I would have, and he would produce the things he wanted. I’d do the same from our side. We would have discussions, and that’s the way the thing worked.
It was in the back of our minds. There was never any suggestion that you can’t do that because it is going to hurt us on the House side, but it was in the back of our minds.
The Deputy Chair: Thank you. I appreciate that.
Senator Busson: It is wonderful to meet you.
You talked about movies. This is like us being part two of a movie and you being part one. It’s a thrill to get your perspective.
You made some interesting comments around how you feel the Senate should work as an independent group with reference to non-affiliated members. You said politics is a team sport, and in another part, you said no one should be surprised.
Of course, in the Senate, as it works through the rules, unanimous consent is needed for leave in the Senate. Can you talk about that right of senators vis-à-vis non-affiliated senators and how that power can affect their presence and their bargaining power within the Senate dynamic?
Mr. Cowan: Every senator has the same rights. I was going to say privileges, but I think there is a difference between a right and a privilege. They have the same status.
I think the Senate has evolved. We were traditionally two groups, now three or four groups, and that’s likely to continue. There are some who choose, for their own reasons, to stay outside of that structure. I understand from reviewing the evidence that you have had and talking to others that some of these non-aligned senators are not happy about that, and they feel that they don’t have the same rights and privileges. As an example, they complain or reference the right to speak, speaking time, or questions. I think one senator spoke about having to go around begging for the right to ask a question.
I don’t see how that’s necessary. The Speaker has a role to play in this institution. If I was a non-aligned senator and I wanted to ask a question, I wouldn’t go begging of the leaders of the groups. I would go to the Senate Speaker and say, “I would like to ask a question.” Certainly, the Speakers who were in that position when I was here would accommodate that.
I think of former senator Lowell Murray as a good example. Former senator Marcel Prud’homme and former senator Elaine McCoy are other ones. They were independent and not part of any group ad that point. They didn’t come begging to get a speaking slot or ask a question. They spoke to the Speaker, and the Speaker would recognize them. Now, if they tried to abuse that, then the Speaker would, quite properly, not recognize them, as they would with anybody else.
I assume today what happens is the groups prepare a list of questioners and provide that to the Speaker in advance, but the Speaker is not bound by that. The Speaker has a role to respect the rights of all senators. If you have an individual senator who feels that his or her privileges are being abused, you have the right to raise a question of privilege, and I think, as I recall, that takes priority over everything else, and it’s debated and the Speaker rules. If you don’t like the Speaker’s ruling, you appeal the Speaker’s ruling, and the Senate decides. And that’s the same for everybody.
You may not have the same access to information as an individual, non-aligned senator, and that gets back to perhaps the discussion we had with Senator Wells. In a group, a representative comes back and tells the group what’s going on, what’s been discussed and what’s been decided. An individual senator doesn’t have that right, so it’s harder for that individual probably to get information, but that information is available. I’m not sure what the acronym is, but there’s a Senate operations secretariat that provides a report on discussions at scroll and that sort of thing. A person can go there and say, “Look, I don’t go to scroll, so tell me what happened at scroll.” It’s not confidential.
I don’t know whether that answers your question, but I think that when you are part of a group, there are certain advantages, and that’s why you join groups. But if you choose not to join a group, well, you can’t complain and say, “Well, I don’t want to join that group or this group, but I still want the advantages of belonging to the group.” That’s a non sequitur, it seems to me.
Senator Busson: Thank you very much.
The Deputy Chair: Thank you, Senator Cowan.
One thing that I’m wanting to ask you about is, as you were speaking about before, the important contributions that senators can make in a national caucus as sort of that longer-term view for MPs who are generally there for a much shorter time. I was just wanting to hear a little bit more. I certainly know with the Conservative caucus that I feel like I receive different benefits from sitting in that national caucus. You get to see considerably more detail about bills from a much earlier stage while they’re dealing with them in the House of Commons and that sort of thing. Can you tell us a little bit more about the types of things that national Liberal caucus would discuss? You were there for quite some time in that last several months of when they were still government and also for a number of years when they were in an opposition party status. Can you tell us a little bit more about what types of things you as a senator benefited from sitting in that room?
Mr. Cowan: Thank you for your question.
Well, you raise that point about hearing it at an earlier stage. The national caucus, and I suspect the Conservative caucus is the same, is more concentrated and more focused on the work of the House of Commons. Often, colleagues in the House of Commons don’t pay enough attention to the Senate. In government, I think we’ve seen it over the past few years, and I think it was probably the case before during the Harper years that the government needed to be reminded that it’s not enough to just get this bill through the House of Commons and you need to have a strategy for dealing with the Senate. Often, at least in my experience, there wasn’t such a strategy, so the senators were able to say, “Well, look, if you want this bill to get through the Senate, there’s going to have to be some modification here. These are the people you need to talk to.” I think that that was educational from their point of view as well as educational from the Senate point of view. As we know, it is a bicameral system and getting it through one place is not enough.
My sense, as an outsider looking at it over the past few years, is that often pieces of legislation have arrived in the Senate without any idea about how they’re actually going to get from here to there. I’m sure that Senators Harder and Gold have done their level best to make that point, but it’s hard because there isn’t that critical mass of senators speaking to their colleagues in the House of Commons and speaking to ministers. I’ve spoken to ministers who say, “Well, I come to the Senate, and I know it has to get through the Senate, but I don’t have any allies there. I don’t have a group that I can rely on. I have a list of senators and their contact numbers, but I’m the minister. I don’t have time to have 35 or 40 individual audiences with individual senators. I need to be able to deal with groups.”
I’m sure your experience was the same as mine. There’s a mutual benefit in that ability to say, “Here is what needs to be done, here is what needs to be considered, and here are the steps that need to be taken to ensure that it will get a fair shake when it gets to the Senate.” If you simply throw it over here, this is a unique institution, and I think that most of us don’t understand how all the rules work here, and if you’re on the other side looking in, it must be bewildering.
The Deputy Chair: Thank you. Yes, I know, and having the experience to sit along with the ministers and provide your views to them, both at the mic and in individual conversations every single week, and also have the ear of the Prime Minister every time you may have an issue that’s important to your region, that’s also a very important part. By the way, I have always quoted your speeches many times, as Senator Wells referenced, in debate and interviews, and they stand the test of time really.
Mr. Cowan: I might add just one other point, and that is the regional representation you mentioned. In my day, and I guess in every day, there has not been a lot of Liberal representation from Western Canada. Many times, the only voices in national caucus representing Western Canada were Liberal senators, and suddenly that was not there. That perspective is important. I don’t think we ever considered ourselves, nor do you, as speaking for the government of Nova Scotia or British Columbia, but we come from those areas and we see these issues through that perspective or through that lens. Being able to articulate those views to colleagues who don’t have that experience or that perspective is important.
Senator Ataullahjan: It is good to see you again, Senator Cowan.
Mr. Cowan: It is good to see you.
Senator Ataullahjan: I learned from your wisdom. We had many conversations when I was one of the new senators. I’d come to you sometimes for advice.
Something that you just said really resonated with me. You said senators are politicians. Nowadays, we have that perception that we’re not politicians. Would you like to speak to that? You said, “The Senate is a political place.”
Mr. Cowan: Well, I go back to that quote from the opening words of the Senate reform reference where it is one of Canada’s foundational political institutions. We know from looking at the Confederation debate that without the Senate, without the Senate being constituted on a regional basis the way it was, there wouldn’t be Canada. People can say that doesn’t matter, but it does. That’s why we are who we are. Clearly, the Senate has evolved over the years. It’s continued to evolve in the last few years, and it will evolve in the future, but I don’t think we should ever lose sight of the importance of that compact — if that is the right term — that was made back then.
As I said, for a reason which I don’t share, the words “politics” and “politicians” have a bad smell about them, and people don’t like to be — they think there is something bad about politics. Well, politics is about life. If you think about the kinds of things that need to be done in our society to make it better, they’re done by politicians. That’s why you do what you do and why I did what I did, because I really felt that it was important to be at the table and to be actually doing these things rather than sitting on the sidelines and complaining about how others were handling these affairs. Most problems in our society require a political solution, and the people who contribute to those solutions are politicians. I firmly believe that politics is a very important part, and I think public service is critically important.
There are always a few bad people, but in my experience, I have met more good people in politics on all sides and at all levels than I did in law or in business or at university. Most people are in this business for the right reasons. They may approach the issues differently than you or I would, but they are in it for the right reason, and I think their contribution should be celebrated rather than denigrated. I think we should wear the badge of politics and politician with honour.
[Translation]
Senator Saint-Germain: I’m going to speak in French, Senator Cowan.
First, I am very glad to hear from you. Your remarks were really quite impressive. I’m sorry I was sworn in the week after you gave your last speech in the Senate.
You referred to the word “political,” but you didn’t mention the word “partisan.” As I see it, there is a big difference between the complementary role of the Senate, a political institution that, hopefully, is non-partisan or less partisan, and the role of the House of Commons, the elected chamber.
I’ll provide a counterbalance to what you said about ministers appearing before the Senate and saying that they don’t have a caucus they can rely on, which is true. I have also heard ministers say that attending Question Period in the Senate was interesting because issues that were not addressed in the House of Commons were discussed in the Senate. That’s the first part of my question, so I’d like to hear your comments on that.
There is another facet to my question. In the real world, I can see that MPs and senators work together quite well when it comes to finding senators to sponsor MPs’ bills or MPs to sponsor senators’ bills. Obviously, the government is able to find sponsors for its bills, but you raised a fundamental point. I don’t think we have yet developed that relationship between a government, no matter its political stripe, and independent senators.
I would like to hear your thoughts on the value added of a less partisan Senate, especially given your experience as a member of a national caucus, when you clearly had to vote with your caucus. What do you think is the value added in having the counterbalance of a non-partisan Senate, which does make a difference, after all?
[English]
Mr. Cowan: Well, I can only think of two occasions. During the time that I was leader — and I was leader under Mr. Dion, Mr. Ignatieff, Mr. Rae and Mr. Trudeau for a while — there were only two occasions in all of that time when the leader’s office purported to issue a directive to the Senate Liberals. I can say — without disclosing either what those were or any confidence — that on both occasions, that move backfired, and had they not done that, the Liberal senators would have voted a certain way, not because they were told do that but because that’s where they generally stood. When they were told, “Well, look, we expect you to do this,” you could see that the support went. There is a myth, I think, that in the old days, if a senator was a part of a national caucus, you were required to vote a certain way. That didn’t happen, except on those two occasions when it didn’t work.
I think the reason is because on most occasions, we would have supported taking the same view as our colleagues in the Liberal caucus, the House of Commons, because we shared those values; we were Liberals. I think Senator Batters would probably say it is the same reason in the Conservatives.
I don’t think that is a bad thing. We have an adversarial political system, so you have people who support the government and people who take an opposite view. I don’t know that that’s partisanship in a bad sense. I think it is just the way things are. It is the way people take a view on a particular issue. My sense would be that that’s what will happen after the next election if there is a change of government — this election or the next one. People will align themselves in those ways. I don’t think partisanship is bad. Taken to the extreme, as we have seen, perhaps, south of the border, it is bad. There is no question about that. I think parliamentarians are generally more respectful of one another, are more tolerant of one another and really do try to understand the viewpoint of one another.
I remember one of the last things I did when I was here was to be involved in the discussion on medical assistance in dying, and I think that was a highlight of my time in the Senate. There were people who held very strong views, but it was very respectful, and it was at a much higher level than took place in the House of Commons. Part of that is because of the way we get here, and we have that independence that we’ve talked about. We’re not running for election, so we don’t have to appeal to the base to get to continue on. We can rise above that.
I don’t think partisanship — as long as it’s not taken to the extreme — is a bad thing. I think it is the way the system functions.
The Deputy Chair: Thank you. I appreciate that.
[Translation]
Senator Mégie: In managing and shaping the daily business of the chamber, the leaders of the various groups meet with the Leader of the Government and make decisions about the direction of proceedings. Non-affiliated senators are not represented, however.
During your time in the Senate, was there a formal way of keeping non-affiliated senators abreast of what was going to happen so that they could participate in debate? If so, how could we do the same thing, if there was a particular interest?
[English]
Mr. Cowan: Thank you, senator.
To my recollection, there was no formal procedure for advising non-affiliated or non-aligned senators of what took place in scroll. I did take the opportunity to speak to Len Kuchar, who was my chief of staff and attended those meetings, and said, “How did this happen?” His answer was that those non-affiliated senators would often come and see him and say, “Well, can you tell me what is going on?”
I did read the transcript of the evidence at one of your committee hearings and I did ask the clerk about what the acronym stood for, but there is a sort of secretariat that does advise non-aligned senators, non-affiliated senators, about this kind of thing. If a non-affiliated senator wanted to know what was going on at scroll, they could go and ask somebody and get that information. I can’t imagine that today, any more than it was in my day — what goes on at scroll is simply facilitating, and it is not secret. There would be no reason not to make that information available. But if everybody had the right to go to scroll, then there would be no reason to have scroll meetings. If there were sufficient numbers of non-affiliated senators and if they were able to agree among themselves that certain senators would represent them, then perhaps they could ask to be included in scroll meetings.
I think that the term “non-affiliated,” as I understand it, would include folks such as the Speaker and the government representatives, and then you have others who, for one reason or another — and probably not for the same reason — choose not to belong to a group. Whether they could get together and agree that you or I would be the appropriate representative, I don’t know.
My answer is that I don’t remember that there was a formal procedure, and when I asked about it, I found that Senator Cools was very active as an independent senator in those days, and she would often be in Mr. Kuchar’s office asking for information about what was going on, and he was quite happy to provide it. I don’t know how you would formalize that unless you said every senator has the right to go to scroll. That doesn’t seem to me to be a practical solution.
[Translation]
Senator Mégie: This question is based on your personal experience as a former senator. Do you see a way to ensure that things run more smoothly and collegially among senators? Do you think it would be helpful to find a way to formalize those ties, or will the status quo always be effective?
[English]
Mr. Cowan: My impression, let me put it that way, is that the rules of the Senate are pretty complex now. They’re expansive and extensive. I doubt the wisdom of adding to the volume of rules. It seems to me that what we would be looking for is a way in which senators could work together better, more effectively and more collegially, but not be ruled together.
I think there’s always a danger. If you put something in a rule, it’s hard to change that rule, and there are always unintended consequences, so I would caution against putting something like that — I mean, it’s hard to codify behaviour, and that is what we’re really talking about. How do we interact with one another? We’re trying to make sure that senators are respectful of one another and that they are understanding of the needs and wishes of their colleagues, but that’s a two-way street. Occasionally, you will have somebody in any group, and the Senate is no exception, who is unreasonable and is difficult to get along with. Any institution and group can handle that — a certain amount of that — but if you get too many people who are only interested in or find it difficult to look beyond themselves, it is disruptive. I would be hesitant to try to rule interpersonal behaviour. I think that’s a dangerous road to go down.
[Translation]
Senator Mégie: Thank you.
[English]
The Deputy Chair: We’ll try to stick to the time a little more strictly. I respect our colleagues’ time, so we’ll try and keep it to five-minute exchanges.
[Translation]
Senator Gerba: Thank you to the former senator, whom I didn’t have the privilege of knowing. Today, we are talking about non-affiliated senators in the context of an independent Senate. You brought up a situation all of us here today are interested in, the future of that independent Senate after the probable change in government. I would like to know one thing: what practices do other parliaments have in relation to non-affiliated or independent members? You said it was likely that the opposition would be made up of a number of groups. How would an opposition of senators not affiliated with a political party work?
[English]
Mr. Cowan: The role is what they make it. When senators started to be appointed under the new process back in 2016, they arrived here and were independent. For a period of time, they were just that, and they didn’t associate with one another in any way. Then Senator McCoy brought them together, or they brought themselves together under Senator McCoy’s chairmanship. I’m not sure what the term was. Facilitator? Chairperson. Then they began to organize in what was essentially a caucus.
Now, there are four different caucuses, so the Senate has moved from having two groups to four groups, and that seems to me to be a perfectly logical evolution. I don’t think the role of the non-aligned senators has changed. When I looked at it, when you took out the Speaker and the government representative, there is not a large number of people. I think I used the term in my remarks about lone wolves. You can consider them lone wolves, but it is not 20. An institution of this size can function perfectly well if you have two, three, four or five people who are non-aligned or not affiliated with any group. That is fine. But if you had 25 or 30 people who chose to take that route, I think it would make the functioning of the Senate more difficult and, again, going back to what I consider to be those core values, less effective.
I think the way that you look at the work that you do is to ask: How could we make our work more effective? How can we as an institution and as individuals be more effective? I think my answer would be: What I think has evolved over the last few years is that people have formed groups of people. I guess every group probably operates differently. Some may focus more attention on trying to achieve a common position on legislation. Others may focus on other kinds of activities in the Senate.
We don’t know how it is going to turn out, but I have every confidence that it will work in a Canadian way. We will manage. But I think it is unlikely that a future Senate under a different government, which is going to appoint senators who support that government — I think it is unlikely that that will happen without an opposition forming. It doesn’t have to be a Liberal opposition or a Conservative opposition or a New Democratic opposition, but it is an opposition of people who by and large don’t like the direction the government is going.
One of our core roles is to hold the government to account. It is not a confidence chamber, but there is a role to hold the government to account. Senator Yussuff and I, back in the day when he was in charge of the union, we dealt with Bill C-377. Other senators will remember that. That was a private member’s bill in the House of Commons which was an amendment to the Income Tax Act. That was the way it was presented. It went through the House of Commons. Nobody paid much attention to it. It came here. Then the union movement and provincial governments began to look at it carefully. The Senate began to look at it carefully and realized that, at its core, it was a matter dealing with labour relations. There was the Senate taking on a role which had been overlooked by the House of Commons, and it did, I think, a lot of good work.
Senator Yussuff: I’m not going to follow up by talking about Bill C-377, but Senator Cowan, it’s good to see you here. Thank you very much for your wisdom and experience and sharing with us this morning.
My first question is more mundane. In the chamber, there is this fine line — we don’t talk about it, but I think it is substantive — between rights and privileges. What is the difference, from your perspective, between rights and privileges? They are not the same thing. We always talk about we have rights. Within the context of how this place operates is also the opportunity to exercise privilege. Sometimes people get confused about what these two things are. Perhaps you can address that, because it is a political institution.
Mr. Cowan: I would add one other word to the discussion, which is “responsibility.” I think that if you have rights and privileges, then you have responsibilities as well. We shouldn’t insist on exercising our rights and privileges and ignore our responsibilities.
It seems to me senators have the same rights to budgets, to offices and to all kinds of supports. Everybody has the same. Privileges? I think everybody has basically the same privileges. But if you are a member of a group, you have access to information and resources, and not just financial resources but human resources, ideas and things like that, which you don’t have if you choose to be non-aligned in some way. I would consider that a privilege. It is a privilege to belong to a group of people who share your general approach to public policy, and you gain a lot by benefiting from the views of others in your group.
The other part of it is that you have a responsibility to say, “Well, this isn’t about me. I’m a senator, but the whole place doesn’t revolve around me, and it shouldn’t revolve around me. I have to respect others as well. Just because I feel strongly about this particular position doesn’t mean that there is something wrong with people who don’t agree with me.” It is a lot easier said than done, but we have to learn that people who disagree with us are not our enemies. They may be our adversaries. You and I might disagree on this issue today but maybe tomorrow we will find an issue we agree on. That’s how you get stuff done. That’s the good part of politics, to be able to work with others and modify your views as necessary. You are not going to get everything you want all the time. That’s the responsibility part of it that is just as important as the rights. If we just insist, “I have a right to do this. I have a right to speak on everything,” well, that’s not right. You have to modify your rights with those responsibilities.
That’s a long, rambling answer, but I think the responsibility part is often overlooked.
Senator Yussuff: Let me ask a question which you touched on, but maybe more in depth. The role of the opposition in the Senate, even now under a new government since 2015, has been pretty well a tradition. As such, the largest group in the Senate right now is not the opposition. Recognizing the future, should the government change, the Speaker has the latitude in determining the ultimate question of who becomes the opposition. You never had to deal with this, but this will be a question we will face in the Senate in the near future. What are your thoughts on how this decision is formulated, and what guides it?
Mr. Cowan: I remember that morning when I had been out West and took the red-eye back from the West, from a conference, to appear on the Hill and be told that we were no longer part of the national caucus. Then the leader and his staff left, and we had that discussion that I spoke about.
Senator Joyal, as you might expect, for those who know him, had his rule book with him. He pulled that out and said, “What do we do now?” As you can imagine, people were all over the place about what we were going to do. People were not going to accept the decision or they were going to do this and everything. In the end, he said — I don’t remember the rule particularly — the opposition, in the rules as they then stood, and I don’t know whether they have been changed, but the opposition is composed of at least I think it was 10 members of a recognized political party. We had to determine whether at least 10 of us in this group held membership in the Liberal Party of Canada. And we did, so we did that. I then went down and spoke to Speaker Kinsella and explained the situation to him and what had happened and what Senator Joyal said. He looked and said, “Yes, I agree.”
When we got in that afternoon and I rose to make a statement, my good friend Senator Carignan was not above having a little bit of sport at my expense. He said, “Who are these people and where do they stand?” He was saying, “You are not part of a caucus. Therefore, you can’t be the opposition.” Speaker Kinsella ruled that we met the criteria under the rules.
Now, I don’t know whether that rule has changed now so that if the Conservatives were to become the government and the Liberals were to be the opposition, whether a certain number of senators would have to be members of the Liberal Party of Canada to be the opposition. I don’t know whether that is the rule now, but that was certainly the rule then.
Before that, before my time, there had been some discussion about the Reform Party. Some senators said that because the Reform had more than the Conservatives, they wanted to be the opposition. The answer was, no, the Conservatives are the opposition, even though they are not the opposition in the House.
The Deputy Chair: Thank you.
I think what you are actually thinking about is the Parliament of Canada Act definition. I think the largest number of senators affiliated with a political party in the House of Commons is how the opposition is actually defined. I remember that day when a number of Liberal senators were standing up — I remember Senator Terry Mercer — “Here is my Liberal Party card.” That’s how it went. History.
Senator Woo: It is nice to have you back at the Senate, Senator Cowan.
To pick up on Senator Yussuff’s question, the rule has not changed. It doesn’t talk about being affiliated with a party in the House; it just talks about being affiliated with a political party. It would seem to me that your experience has created the precedent for the largest group that is not, as a group, affiliated to a party to be the opposition. I think that bridge has now been crossed, and thank you for crossing that bridge for us.
The point of this set of hearings is really about non-affiliated senators. There are really only a few of them. I want to ask you about your experience with non-affiliated senators before the expulsion of Liberal senators from the caucus. You know —
Mr. Cowan: We call it our “Liberation Day.”
Senator Woo: The good old days of the duopoly.
How were committee seats assigned to those non-affiliated individuals? There were former senators Anne Cools and Nancy Ruth. Did they get committee seats, and if so, how did that happen?
Mr. Cowan: Yes, they did. The way it was done in my day was that the leaders agreed. I think there were three or four of them, and it was that one leader looked after these two and the other looked after an equal number remaining. We asked what committees they wanted to serve on. As I recall, everybody wanted to be on Foreign Affairs or something, and that didn’t always work, but certainly they were all offered committee seats. That’s the way it worked.
Senator Woo: So they got seats but not necessarily the seats they wanted; is that fair to say?
Mr. Cowan: Yes, that would be fair, but that’s the same as any other time for everyone else. Certainly in our caucus, we invited people to list their top three choices. Most of the time, we were able to accommodate people, but not always.
Senator Woo: Thank you.
Mr. Cowan: It was always a balance, as you would know from your own experience, and not an easy balance. But I don’t recall that it was really difficult to do.
Senator MacDonald: It is great to see you, Jim.
Mr. Cowan: It is good to see you.
Senator MacDonald: I was asking about you a few weeks ago as to how you were doing, and you are obviously doing great.
Both Senator Yussuff and Senator Woo have touched upon what I was going to ask you. Let us say there is an election and the government changes and we flip the roles in the institutions. I’ll ask you this question instead: If there were an election that changed the leadership of the country and changed the leadership of the Liberal Party, and if a number of senators wanted to reform the Liberal caucus in the Senate and were given access back to the Liberal caucus, how would we determine the role of the opposition in the Senate if they didn’t have as many members as the other caucuses but were associated with the Official Opposition in the House?
Mr. Cowan: Senator Batters spoke about it being in the Parliament of Canada Act, and I expect that is exactly right. You had the wording, Senator Batters.
The Deputy Chair: I’m looking for it.
Mr. Cowan: Where is Senator Serge Joyal when you need him?
I don’t know how that would work out. I have no idea whether a future Liberal Party or one under a different leader would take a different view of the relationship between the Senate and the House. I would hope that would be the case, but I have no way of knowing if it would be. I can’t answer your question, Senator MacDonald. I think it would be governed by that rule.
Senator MacDonald: There are still some unknowns.
Mr. Cowan: Normally, it would be the largest group that would form the opposition, but clearly the opposition now is —
Senator MacDonald: Is non-aligned.
Mr. Cowan: The opposition in the Senate is not the largest group.
Senator MacDonald: Yes. Thank you.
The Deputy Chair: Thank you, Senator Cowan, for your testimony today and your very comprehensive answers to our questions and your contribution to our study. We appreciate you coming all the way in person today.
Colleagues, we have reached the end of our agenda.
(The committee adjourned.)