On the Order:

Resuming debate on the inquiry of the Honourable Senator Wallin, calling the attention of the Senate to the proposal put forward by Senator Harder, titled “Sober Second Thinking”, which reviews the Senate’s performance since the appointment of independent senators, and recommends the creation of a Senate business committee.

Hon. Marc Gold: The publication of Senator Harder’s paper Sober Second Thinking was welcomed by many, including myself, who saw it as a constructive contribution to the debate about the modernization of the Senate. But not everyone agreed.

Some worried that his proposal for a business committee would turn the Senate into a politburo that would destroy the opposition. It’s true that it was said.

Other critics struck a less apocalyptic tone, nonetheless seeing his proposal as part of a government plan to marginalize if not indeed to eliminate the opposition.

[Translation]

Honourable senators, the role of the opposition has dominated debate in the Senate since my arrival here more than a year ago. This issue is debated by committees, in the halls, in this chamber and in the media. I find some speeches on this issue to be exceedingly partisan. However, that said, there is an important principle at stake.

Many senators have argued that the unique role of the opposition is part of our history and our tradition, and that it is an integral part of the Westminster system of parliamentary democracy. Consequently, any attempt to diminish the role of the opposition is considered an attack on the very nature of the Senate.

This is an important argument that must be taken seriously, which in turn requires that it be subject to critical analysis. That kind of analysis reveals arguments in support of the opposition’s special role to be much less convincing than they appear at first blush.

(1900)

[English]

So, let’s turn to the arguments. The first argument is one of history and tradition. It goes something like this.

I love having the call and response; the musician in me likes that.

The Fathers of Confederation, it is argued, intended the Senate to be a partisan institution defined along adversarial lines. The argument often begins by invoking resolution 12 from the Quebec Conference in 1864. It goes on to note that the first group of senators appointed in 1867 reflected the party representation in the House of Commons and concludes with the fact that from the very first session of the very first Parliament, there has been a leader of both the government and the opposition in the Senate.

Now this argument, however, has not gone unchallenged. In response, it is argued that the Rules of the Senate did not explicitly acknowledge the roles of government or opposition leader until 1968, and that the special privileges accorded to both government and opposition were only embodied in our rules in 1991. Far from being deeply rooted in our history, the special role of the opposition is a relatively recent development — or so it is argued.

[Translation]

Honourable senators, these two arguments are, for the most part, legitimate. However, like most arguments based on history, they are selective and incomplete. It is true that the Rules of the Senate did not officially recognize the government and the opposition until about a century after Confederation, but changes to the Rules of the Senate reflected a practice that had been in place in the Senate for some time. That is only half the story though, because, shortly after Confederation, senators began to challenge the organization of the Senate along government and opposition lines. Some still challenge it to this day.

[English]

For example, in 1906, Senator William Perley, a Conservative from Saskatchewan, stated that “when we divide this Chamber into government and opposition we assume a position that is not worthy of the Senate.” The same point was made eight years later by Conservative Senator John Waterhouse Daniel from New Brunswick.

Interestingly, one of the strongest critics of the idea of an opposition in the Senate was Liberal Senator Raoul Dandurand who, during his long career in this chamber, served as Speaker, government leader and opposition leader.

Moving ahead in time, consider the words of former senator and twice leader of the Conservative Party of Canada, Arthur Meighen, written in 1937, who said:

The Senate is worthless if it becomes merely another Commons divided along party lines and indulging in party debates such as are familiar in the Lower Chamber session after session ... Members of the Second Chambers must get away, lift their minds far from those hard-drawn lines of the party, or they cannot serve their country.

Closer to our time, consider the remarks of Senator Grattan O’Leary in a speech marking the opening of a new session of Parliament, when he stated:

I am convinced that you will not get in the Senate the spirit which the Founding Fathers hoped for it, as long as we have a Government side and an Opposition side.

In a similar vein, in a speech about Senate reform in 1973, Albertan Senator Ernest Manning stressed that “the Senate should be an entirely non-partisan body. The concept of a Senate comprised of a government party and an official opposition should be abandoned.”

[Translation]

I could go on, but I don’t want to belabour the point. As I see it, an impartial interpretation of our history shows that the roles of government and opposition in the Senate have always been in dispute. The practice survived and was incorporated into the Rules of the Senate simply because the Liberal Party and the Conservative Party controlled Senate appointments and the organization of the Senate, but this reflects power and politics rather than principle. The fact is that the historical argument based on tradition is not as solid as its proponents claim.

The second argument is also based on history and tradition, but is supported by the very nature of the Westminster system, which the Parliament of Canada is modelled after. That argument is this. All of the Westminster-style legislatures have recognized opposition parties. It is in their DNA. Any attempt to remove the opposition from the Senate would compromise its Westminster roots and create a legislative body that is radically different from what it was intended to be.

[English]

Honourable senators, this is a simple and powerful argument, and it’s one with strong rhetorical appeal. But if I may speak plainly, it is dead wrong.

Honourable senators, as leading academics have pointed out, it is simply incorrect to assert that there is a fixed set of attributes that define the Westminster system. Indeed, if there is anything that characterizes the various parliaments that trace their origins to Westminster, it is the extent of their diversity, especially with respect to the role and function of second chambers. More to the point, if there is an essential element that characterizes the Westminster system, it is the notion of responsible government whereby the executive is responsible to the legislative branch. And in a system of responsible government, the opposition plays a critical role, but it is a role that belongs in the House of Commons and not in the Senate. The fact is that the invocation of the Westminster system adds nothing to the argument about the role of the opposition in the Senate. In my humble opinion, it should be dropped from our vocabulary when we speak about this important issue.

If the arguments from history, tradition and the Westminster system are considerably weaker than their proponents claim, what are we left with?

[Translation]

Some argued that the opposition is necessary to hold the government to account, but for the reasons that I gave in my speech about partisanship during the debate on the Modernization Committee’s report, I do not believe that that argument holds up. It does, however, raise the following related argument: As a chamber of sober second thought, the Senate must conduct a rigorous critical review of all government bills. From that perspective, the opposition plays a critical role in ensuring that different points of view are considered and debated. After all, the Senate is a place of debate and, by definition, a debate involves conflicting opinions. As one senator pointed out, the role of the opposition is to oppose. In the absence of an opposition, debates would have no clear structure. What is more, all members of a committee could share the same opinion and thus fail to seriously consider any different or dissenting views.

I believe that that is the best argument in favour of the role of the opposition, but how solid is that argument?

[English]

Much depends on what the alternatives are. If that’s the only way to structure critical debate, the argument is pretty strong. But if it can be demonstrated that there is another way to organize the work of the Senate, one that guarantees sustained and critical review of government legislation, then this argument loses much of its force. Now, as I have suggested on another occasion, there is another way. So let me take a few minutes to outline it here.

The key is to imagine a set of standing rules that would provide a structured road map for the passage of a bill through the Senate and that would guarantee that all relevant perspectives be brought to bear upon our debates, our deliberations and our decisions. These rules would be administered by a committee of senators drawn from all parliamentary caucuses and groups, a committee not unlike that suggested by Senator Harder in his paper, or by Thomas Hall in his testimony before the Modernization Committee, or, if we may return to history for a moment, to Senator Raoul Dandurand who, writing in his memoirs some many decades ago, promoted the idea of a Senate management committee to oversee the legislative work of the Senate.

For example, we could develop rules to structure the way in which Senate debate is organized from the introduction of a bill through its various stages. Such rules might contemplate the appointment of one or more critics of a bill, to ensure that a diversity of perspectives are represented. Or other rules might empower the Senate committee that I spoke about to organize debate on a particular bill in a more structured manner, such as we did with Bill C-14 on medical assistance in dying.

(1910)

Now, regarding the committee stage, rules could be introduced to ensure that bills benefit from critical scrutiny. For example, a rule might provide that a committee must consider the interests of all relevant stakeholders and must seek a balance between proponents and critics of a bill when witness lists are being developed. A rule might also require that a bill be subjected to the appropriate impact analysis so that the constitutional obligations of the Senate in relation to the regions, to minorities and to the Constitution itself be embedded in our practices. Rules could also be developed to ensure that once a committee submits its report to the Senate, the bill proceeds to third reading without unreasonable delay.

Note that this is just the bare outline of an alternative approach, one that would need to be developed in greater detail. Nevertheless, it does illustrate at least one way in which the work of the Senate could be structured to ensure critical scrutiny and debate without relying upon a special role for the opposition.

So where does this leave us? Some of you may detect in this an argument for doing away with the opposition in the Senate, but let me be clear. I’m not arguing for that here, nor would I necessarily support it if the issue came before us for decision. The truth is that I’m struggling with this issue, and I remain somewhat agnostic on this point.

What I do support, however, is that we take a critical look at the special powers and privileges that our current rules and practices accord to the opposition in the Senate. In a Senate where all senators are supposed to be equal, these special powers and privileges seem to be anomalous, to say the least. They should be subjected, at the least, to a principled and critical review.

Honourable senators, I have attempted to show that neither our history, our constitutional traditions nor the Westminster system itself require that we maintain a special role for the opposition in the Senate. More importantly, there are alternative ways to organize the work of the Senate to ensure that we fulfil our constitutional role as a legislative body, independent of and complementary to the House of Commons.

So if we are to maintain a privileged role for the opposition in the Senate, honourable senators, it must be supported by arguments far stronger than those that have been advanced to date.