Parliament of Canada Act

Bill to Amend--Second Reading--Debate Adjourned

May 6, 2021


Hon. Peter Harder
[19:04]

Honourable senators, I would like to remind colleagues that prior to the drafting of Bill S-4, comprehensive consultations were held with all leaders, their perspectives were heard and the proposed legislation before us reflects much of what was put forward. The government recognized its responsibility to consult with those who would be most affected by any changes to the act. The goal of the bill is to ensure that the Parliament of Canada Act — the legislation governing key aspects of how the Senate operates — legislatively authorizes the current landscape within the Senate. Bill S-4 would extend official recognition to the new groups that have formed. It would include a spelled-out role in the Senate governance and the parliamentary appointments process. Leaders of the groups would receive allowances commensurate with the number of seats held by their group in the Senate.

Building on these steps, changes to the Parliament of Canada Act and other acts are essential to reflect the reality of how the Senate operates today.

First, Bill S-4 would ensure that the largest group — other than the government or the opposition — would receive allowances equivalent to the opposition, and the next two largest groups would receive approximately half the allowances the opposition receives. These new allowances would begin on July 1, 2022, and will assist the recognized parties or groups to fulfill their role of providing sober second advice.

Secondly, the bill amends the Parliament of Canada Act and makes consequential amendments and related amendments to other acts that allow the leader or facilitator of all recognized parties and groups in the Senate to make membership changes to the Senate Standing Committee on Internal Economy, Budgets and Administration. As well, all leaders would need to be consulted on the appointments of the following officers or agents of Parliament: the Senate Ethics Officer, the Auditor General, the Commissioner of Lobbying, the Commissioner of Official Languages, the Public Sector Integrity Commissioner, Privacy Commissioner, Information Commissioner and Parliamentary Budget Officer.

All leaders’ input would also be required regarding the appointments of senators to the National Security and Intelligence Committee of Parliamentarians, the NSICOP. The appointments of these officers and agents are crucial to the functioning of government and, by extrapolation, the country. I should add that it has been the practice of the Prime Minister, both in the last Parliament and in this Parliament, to consult all leaders with respect to these appointments, even though it was not legally required.

Third, Bill S-4 would amend the Emergencies Act to provide that at least one senator from each group be represented on the parliamentary committee formed under the act.

Currently, the Emergencies Act requires that a parliamentary review committee of both the House and the Senate be established for the purpose of reviewing the government’s exercise of its powers following the declaration of an emergency. Under the current statute, the membership of this committee includes at least one member from each recognized party in the House of Commons and at least one senator from each party in the Senate. The formal recognition of the ISG, PSG and CSG proposed in Bill S-4 would allow each group a seat on this important review body when and if it is required.

Finally, Bill S-4 will add the titles of Government Representative in the Senate, Legislative Deputy to the Government Representative in the Senate, and Government Liaison, where appropriate, to reflect the current model of the Government Representative office.

Bill S-4 also proposes to retain leadership allowances for the government and the opposition — five positions each — and provide leadership allowances for the three other largest recognized parties or groups — four positions each.

The Senate was and is the product of our Confederation. It is a pillar of our parliamentary democracy; the upper house of our bicameral system. It plays an important role in providing legislative review, regional representation and the representation of minority voices. It is master of its own house, and as master, it has adjusted its rules to meet its changing needs. But these were Band-Aid solutions without permanence and do not provide the legal recognition of what is obviously a lasting state of affairs. The government rightfully determined that Bill S-4 should originate in the Senate. It deals with the Senate’s institutional framework and organizational processes, and should be discussed and debated here first by those most affected. Because of the long-standing convention not permitting the Senate to expend public funds, Bill S-4 contains a non-appropriation clause which would only permit the bill to be brought into force once monies have been appropriated by Parliament, which is why we are passing this bill and moving it forward to the other place, allowing the proper chamber to introduce the legislation necessary to finalize the amendments.

For those who might question the ability of a Senate bill to include the expenditure of funds, clause 17 of Bill S-4 outlines the appropriate mechanism:

17 (1) Subject to subsection (2), this Act comes into force on a day to be fixed by order of the Governor in Council.

(2) No order may be made under subsection (1) unless the appropriation of moneys for the purposes of this Act has been recommended by the Governor General and the moneys have been appropriated by Parliament.

On February 24, 2009, Speaker Kinsella outlined broad principles governing legislation that may have monetary implications.

It certainly is not the case that every bill having any monetary implication whatsoever automatically requires a Royal Recommendation. When dealing with such issues, the Speaker’s role is to examine the text of the bill itself . . . . Of course, the Speaker, in making this assessment, seeks to avoid interpreting constitutional issues or questions of law.

The senator raising a point of order has a responsibility to present evidence and explain to the Senate why a Royal Recommendation is required, linking it to what the text before the Senate would actually require, not optional decisions that may or may not be made at some point after a bill is passed. . . .

In situations where the analysis is ambiguous, several Senate Speakers have expressed a preference for presuming a matter to be in order unless and until the contrary position is established. This bias in favour of allowing debate, except where a matter is clearly out of order, is fundamental to maintaining the Senate’s role as a chamber of discussion and reflection.

As well, Senate Procedure in Practice explains the following at page 155:

. . . rulings have noted that a bill that would otherwise require the Royal Recommendation can proceed if it clearly provides that it does not come into effect until funds have been separately appropriated by Parliament.

This is what section 17 in this bill provides.

Honourable senators, Bill S-4 is a respectful piece of legislation. It provides for equal treatment of leadership and reinforces the equity afforded to all groups in terms of consultation, something currently in practice but not cemented in law. It also recognizes the nomenclature that groups have chosen to use. As the chamber has evolved over these past few years, Bill S-4 can be considered an evolutionary piece of legislation. It need not be revolutionary to meet our needs.

It has taken two parliaments for changes to the Parliament of Canada Act to come forward and legislate many of the changes we ourselves have instituted. Bill S-4 is a reflection of the accommodations we have already made. The government is not mandating changes with this legislation. Rather, it is a permissive bill, not prescriptive, which is exactly how we get most things done in this chamber.

For Bill S-4 to be before us today required an alignment between the government representative and the minister. I can attest to that fact personally. For the Prime Minister to allow an embargoed copy of the bill to be forwarded to all groups so that members might reflect on its contents indicates the commitment of establishing the permanence of a multi-group, less partisan process by those at the highest levels.

Honourable colleagues, I ask that Bill S-4 be dealt with expeditiously. The Senate demand for such legislation began several years ago. It is in the interest of all senators to move this bill forward so it can be sent to the other place as soon as possible. We mustn’t waste this opportunity.

Some may argue that Bill S-4 does not go far enough. I would disagree. It respectfully reflects the Senate as it exists today. As it stands, there are group leaders and facilitators who have little or no status when it comes to providing input or advice into government appointments, who do not have the legislative authority to make membership changes on the Senate’s most powerful committee and who must rely on the benevolence of “recognized” colleagues to fund and manage their groups and research staff without leadership allowances. This needs to change and, with this bill, it will.

Bill S-4 is not by any means the end of Senate reform and modernization. It is, however, the legislating of changes we ourselves have developed and put into practice. It reflects the Senate as it is today, not as you might wish it to be tomorrow. We aren’t going anywhere, and we will have the opportunity to move even further down the modernization road with the Parliament of Canada Act no longer being a barrier to institutional reform.

I commend this bill for your consideration. Thank you.

The Hon. the Speaker
[19:15]

Senator Harder, would you take a question?

Senator Harder
[19:16]

Certainly.

The Hon. the Speaker
[19:16]

Senator Batters, do you wish to ask a question?

Hon. Denise Batters
[19:16]

I do.

Senator Harder, we meet again. From my review of Bill S-4, it appears that there are no additional powers being granted to the opposition or to the Leader of the Opposition in this bill, as compared to the current version of the Parliament of Canada Act.

Instead, in my review of it, Bill S-4 includes, in these several references to the opposition, the granting of the same powers to three additional undefined parliamentary groups. As such, Bill S-4 seems to dilute these key powers of the opposition and its important historical role. This makes the opposition merely one of several groups in the Senate.

Senator Harder, are there any references to or powers of the opposition which are now in Bill S-4 but which are not in the current Parliament of Canada Act?

Senator Harder
[19:17]

Thank you for your question, senator. You make me almost nostalgic for the Question Period of my time as Government Representative. Let me say that the bill is intended to reflect the changes to this chamber. This bill does not change the role and function of the opposition, so, therefore, there are no changes to that role either in circumscribing its role and abilities and competencies. In respect of the appointment of parliamentary officers, it reflects the practice of this government both in the last Parliament and this.

Senator Batters
[19:17]

Senator Harder, one of the main features of Bill S-4, as you described it, is the entrenching of brand new nomenclature in the Parliament of Canada Act. We have had terms like “Leader of the Government” and “Leader of the Opposition” and “whip” in the Senate and in many other parliamentary systems and jurisdictions for decades and sometimes for centuries.

But what are basically brand new, historically speaking, are terms in Bill S-4 like “facilitator” and “liaison” and “Government Representative,” et cetera. Those terms were really only first used by some in the Senate a few years ago, since the Trudeau government has been in power.

Senator Harder, I note that none of those brand new terms are even defined in Bill S-4. As such, if this bill passes, the Parliament of Canada Act would not include definitions for those words. Under Bill S-4, people holding those undefined position names will receive significant amounts of taxpayer dollars on an ongoing basis.

Senator Harder, why aren’t those particular terms defined? What do you think the government should do to fix that?

Senator Harder
[19:19]

Thank you for your question, senator. I believe that the government ought not to interfere in the practices of the Senate in any way. This bill is permissive in allowing the nomenclature that is preferred by various groups to be used. It doesn’t force those changes; it makes them permissive. I think you will find, senator, that the practices and experience of the last two parliaments will be reflected on an ongoing basis, and we all know what those roles are; and, frankly, the Parliament of Canada Act has not defined what the roles of previous nomenclature have been.

Hon. Yuen Pau Woo
[19:20]

Honourable senators, I wasn’t expecting to come up next but I’m happy to jump in and start by thanking Senator Harder for sponsoring this bill. I thank the Government Representative’s office for initiating it, the other leaders for what I expect will be their thoughtful deliberation and, I hope, support and also, of course, Minister LeBlanc for taking the initiative on the government’s part.

In the spirit in which Senator Harder has articulated, I want to join him and other speakers tonight at the earliest opportunity to voice my support for this bill and the support of the ISG. I’m speaking extemporaneously in part because I feel it is necessary to send that very signal that Senator Harder has exhorted us to send, and it is a signal of our support and the urgency that we see for this bill to move through this chamber quickly so that it can go to the House for adoption.

I want to pick up on Senator Harder’s comment that this bill represents evolution, not revolution. Yet, colleagues, of course, changes in the Senate have always happened through evolution rather than revolution and that is something that we should be proud of. We have not been an institution that turns everything we do upside down because of a new fashion or a fad or the fancy of a number of senators. But we’ve always tried to be forward-looking and progressive, if you will, while respecting the traditions and history of this institution.

This iteration of evolution in the Senate may well go down as one of the more significant Senate reforms in our long history.

I say that because, to echo Senator Harder, Bill S-4 is additive; it is not subtractive. It is permissive; it is not prescriptive. It enshrines what we already know to be the reality of the Senate insofar as there are groups that are non-affiliated, other than the government and the opposition. In many ways, Bill S-4 simply catches up with the new reality of the Senate.

To the extent that it isn’t simply echoing what already happens in this institution, it is permitting what should be happening in this chamber, but which can only be made possible through statute. I make this point because there are other things which the Senate can do by itself through amending its own rules, but the very items that we see in this bill today are only the things that government can do through the Parliament of Canada Act and has now presented to us in the form of Bill S-4.

When I say that this bill is additive and not subtractive, that it is permissive but not prescriptive, what I mean to say is that it is respectful both of the current reality of the Senate but also respectful of Senate traditions and practices.

Insofar as some of you have a particular view of what further Senate reform right mean, this bill is agnostic. It allows for different directions and permutations for which the Senate can further evolve. It doesn’t lock us into a particular part, but it recognizes the present reality and it institutes a measure of equality and fairness, given the recognition and given the reality of multiple groups in this chamber.

Colleagues, I hope I can set the example of speaking quickly on this subject and encouraging everyone to move this bill along swiftly so that we can send it to the House — it started here — but not just that we send it to the House; rather, that we send it with a clear message that it has the strong support of this chamber. It was born, bred and cultivated in this chamber and sent with love to our colleagues in the House of Commons, and they know that they are receiving a bill that we support fully and on which we seek their support as well so that we can truly be the modern, complementary chamber of sober second thought in the Parliament of Canada. Thank you.

Hon. Jane Cordy
[19:26]

Honourable senators, I am pleased to join in the debate today in support of Bill S-4, which would make changes to the Parliament of Canada Act. I believe this bill better reflects the current situation here in the Senate of Canada. I would like to thank Senator Harder, who provided an excellent overview of the legislation at hand.

Senator Harder, you have not lost your touch for answering questions.

I would also like to thank Minister LeBlanc for bringing forward this bill and for having conversations with every leader before the bill was tabled.

Honourable senators, some of these changes have been on the Senate’s radar for a long time; 20 years, in fact. In 2001, the Rules Committee, chaired by former Senator Jack Austin, recommended that the Senate amend its rules to account for the existence of recognized parties other than the government and opposition. This change was made in 2002 so that the recognized parties included those that were registered under the Canada Elections Act and that had a minimum of five members, which, as we know, has increased to nine members.

The Rules Committee at the time also recommended that the Parliament of Canada Act be amended to reflect the change by providing for additional allowances for the leader, deputy leader and whip of all recognized parties, as is the case in the House of Commons.

As we all know, this recommendation by the Rules Committee was never implemented by any subsequent government. In that absence, the Senate did everything within its own authority to ensure the equality of parties and groups. The first time the 2001 rule change was applied was in 2015 with the former Independent Senate Liberals, neither government nor opposition after the election, but who were nevertheless recognized as a third party under our rules.

Shortly thereafter, the House Leader of the Government in the House of Commons reached out to our former colleague, Senator Jim Cowan, to offer that should any changes be required to the Parliament of Canada Act, he would be pleased to work with him as minister responsible for the act.

In response, Senator Cowan called the minister’s attention to the 2001 Rules Committee report and its not-yet-implemented recommendation. In the meantime, the Senate Rules continued to evolve. They were further expanded in 2017 to include other recognized parliamentary groups and conferred upon those groups the same procedural rights as the caucuses of recognized parties.

As I said, the numerous changes we have made within our institution have not resulted in changes to the act itself, which have been a long time coming. When the Senate Modernization Committee began its study on the equal treatment of parliamentary groups, the Senate law clerk and parliamentary counsel provided a briefing note dated May 15, 2018, on the amendments required to various acts of Parliament for recognized parliamentary groups to have the same statutory rights as recognized parties. This briefing note can be found as appendix B in the committee’s 2018 report entitled: Reflecting the New Reality of the Senate. I know that former Senator Joseph Day brought this briefing note to the government’s attention twice in the years since. The note is an excellent piece of work and provided a comprehensive starting point for the changes required.

Indeed, much of what is included in this briefing note has been replicated in the bill before us today. The bill amends the Parliament of Canada Act to ensure that senators who occupy certain leadership positions receive an additional allowance in the same way that members of the House of Commons occupying leadership positions receive an additional allowance. The bill also amends the act regarding membership changes for the Senate Committee on Internal Economy, Budgets and Administration.

Under the current act, only the government and opposition can make membership changes to CIBA when it is operating under its intercessional authority during prorogation and dissolution. For the progressives and all other parliamentary groups in this chamber, this could have been a significant issue when Parliament prorogued last summer. I am pleased to see this particular change.

We know as well that Bill S-4 provides for consultation with the leader of every recognized party prior to the appointment of officers of Parliament as well as the appointments to the National Security and Intelligence Committee of Parliamentarians. Notwithstanding the current acts, the government has in fact carried out consultations like this in recent years. I am pleased that they will now enshrine in legislation what they have done in practice so far.

As I said, the Senate has already done what is within its power to ensure the equality of recognized parliamentary groups and parties. I believe that this bill takes us further in reflecting our current situation without taking away the existing rights or designations currently found in our statutes.

During his appearance before the Modernization Committee on November 21, 2018, Senator Day advocated for a “levelling up” of the powers of leaders and facilitators in the same way that the Law Clerk’s briefing note envisioned, that additional rights be given to the leaders of parliamentary groups and parties without any changes to the existing rights of the leaders of the government or the opposition. This approach, duplicated in this bill, ensures equality and fairness for all.

Honourable senators, the Senate has been evolving in its practices and procedures for a very long time, and I have no doubt that this evolution will continue long after we have all left this place. New senators, new governments, new configurations will all play a role in where the Senate goes next. Bill S-4 is a good step, and one I am pleased to support. I hope that Bill S-4 will pass quickly and be sent to the House of Commons. Thank you, meegwetch.

Hon. Donald Neil Plett (Leader of the Opposition)
[19:33]

Honourable senators, I was hoping that I would be able to simply rise today and say, “me too.” That would probably have been the best way to move this bill forward because, in fact, our Conservative caucus and I agree with many, if not most, of the parts of this bill.

However, I need to take some time to reflect on a few of the statements that Senator Harder made in his myth that this chamber has become less partisan. I’m not sure if he and I have been in the same chamber. I thought we had been. Certainly I don’t see this chamber quite in the same way he does as far as the partisanship is concerned. Nevertheless, I think we are all able to have some disagreements and still get along.

This bill we have before us, in fact, is, as Senator Harder, Senator Woo and Senator Cordy have all said, the result of consensus building among the various groups and the parties. I’m proud to have been part of that.

I think the bill before us today impacts one of the fundamental principles of the Senate: the ability to arrive at a consensus among various groups and parties. That is what I spoke about earlier today in the not-so-pleasant speech I made.

After a period of consultation, we have worked out an acceptable agreement that reflects the current reality. I may not agree with Senator Harder about the partisanship, but I do agree that we have a current reality, while recognizing the historical importance of the roles of the government and the opposition.

Colleagues, the Senate will adjourn for two weeks. It’s not a hiatus, as we will be working on committees and so forth, but we won’t be here for the next two weeks and the bill won’t be going anywhere during that time. With that in mind, I’m going to commit to speaking on the first day back, May 25. Certainly, we in our caucus will not, in any way, try to impede the progress of this bill. I commit to doing whatever I can to move the bill forward. With that, colleagues, I will adjourn for the balance of my time. Thank you.

The Hon. the Speaker
[19:36]

It is moved by the Honourable Senator Plett, seconded by the Honourable Senator Batters that further debate be adjourned until the next sitting of the Senate.

If you are opposed to the motion, please say “no.”

[19:36]

No.

The Hon. the Speaker
[19:36]

I hear a “no.”

I am going to ask again. If you are opposed to the motion to adjourn the debate, please say “no.”

[19:36]

No.

The Hon. the Speaker
[19:36]

I hear a “no.”

Those in favour of the motion who are sitting in the chamber now will please say “yea.”

The Hon. the Speaker
[19:36]

Those opposed to the motion sitting in the chamber will please say “nay.”

The Hon. the Speaker
[19:37]

In my opinion the yeas have it.

The debate is adjourned.