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Motion on Equality of Senate Groups

 

Honourable senators, I’m pleased to be able to speak to my motion, finally, which you will recall I gave notice of before rising for our Christmas recess.

I had delayed speaking when we first returned from our break because I wanted to take the opportunity to discuss the motion with all leaders and to get their feedback.

I was further delayed by Senator Housakos’s point of order, which the Speaker has now dismissed. I am in some ways grateful for the point of order from Senator Housakos because he and others who argued in favour of not allowing me to speak have demonstrated very powerfully why this motion is needed more than ever.

In my speech today, I will not dwell on the specific wording of the motion, but rather on the underlying principle of the change we are seeking to make.

For those of you who are interested in stanza and verse, my office has sent all of you a so-called black-line version of the motion that shows how the proposed changes compare with the original version of a given rule. You have likely seen a pattern in the amendments I am proposing, and it is precisely the pattern that I would like all of us to pay the most attention to this afternoon.

I have consulted with many of you on this motion, and I’m grateful for your input. I was encouraged to be modest in the proposed changes and have taken that advice. In the course of our debate, I look forward to additional feedback from all senators and perhaps even suggestions on how we can improve the motion.

Colleagues, on the face of it, this motion is about rule changes. But a closer look at the motion will show that it is really about the equality of Senate groups. Don’t get me wrong — if we vote for the motion, there will be changes to some of our rules. But the changes proposed are not about establishing a radically new regime for the way the Senate conducts itself. Rather, they are about adjusting the rules to reflect the new reality of the Senate. Whether you are a traditionalist or a modernizer or a bit of both, this motion cannot be seen as anything more than a gentle refresh of our rules, albeit an essential one.

Let me put it to you more succinctly. We are not changing the reality of the Senate by amending the rules. We are amending the rules to reflect the reality of a changed Senate.

If you are wondering what I mean by “the new reality of the Senate,” just look around the chamber. There are 73 senators who do not sit as part of a political caucus, 3 who represent the government, and under 2 dozen who are part of a political caucus styled as the opposition. The sum of government and opposition currently is less than a quarter of the full membership of the Senate. In this context, colleagues, how can we continue with procedural rules that privilege the government and opposition that are in effect a duopoly of a chamber minority?

Let me stress that this motion is not about taking away the right of senators who wish to sit as part of a political caucus. I respect the fact that my Conservative colleagues are proud to sit as Conservatives and to act in concert with the Conservative caucus in the House of Commons. There is nothing in the proposed rule changes that will stop them from continuing to do so. Their rights are protected. But what about the rights of the other 75% of senators who sit with groups that are not part of a political caucus?

Let me provide you with a few specific examples of the proposed rule changes. The first example is on the role of whips and liaison on the time for bells. In the case of a standing vote, the current rule requires the Speaker to ask the whips of the government and the opposition if there is an agreement on the length of time the bells shall ring. If there is no agreement, the bells will ring for a default of 60 minutes.

My motion simply adds the designated representatives of recognized parties and recognized parliamentary groups to the list of persons who must be consulted by the Speaker. Adding the “whips and designated representatives of all recognized groups” to this rule conforms to the principle of the equality of Senate groups that this motion is trying to achieve. But it also serves an important practical function, especially in the current context, which is to include in the decision making on length of bells the very groups that make up the majority of the Senate. After all, the whole purpose of bells is to allow time for senators who are not in the chamber to return in time for a vote. Why should the whips of the government and the opposition alone dictate the length of bells when they account for less than a quarter of the membership?

The second example is speaking time for leaders, facilitators and spokespersons. The current rule allows for the Leader of the Government and the Leader of the Opposition, as well as the sponsor of the bill and the critic, to have longer speaking time at second and third readings. My motion extends the right of longer speaking time to all leaders and facilitators, as well as to all designated spokespersons on a bill, with the term “spokesperson” intended to include the traditional critic from the opposition as well as designated individuals from other recognized parliamentary groups.

Colleagues, we use the term “spokesperson” because it is a succinct way to refer to the representatives of all recognized parties or parliamentary groups who play that role, rather than referring to terminology that is specific to a recognized group. The opposition critic is a spokesperson, and there is nothing in this terminology that takes away from the traditional critic’s role.

For other groups that prefer the term “spokesperson,” the alternative wording does not carry with it the assumption that this person has to criticize a bill in order to be critical. In other words, colleagues, one can be critical without being a critic.

A third example is in the deferral of votes and agreement on time allocation. The current rule, 7-1(1), requires the government to consult with only one group on time allocation. In the spirit of collaboration and equality and in recognition of the new reality of the Senate, I believe — many of us believe — that all recognized parliamentary groups should be included in these discussions.

Similarly, rule 9-10(4) provides for just the government or the opposition to have the ability to defer votes. All recognized parliamentary groups should have this ability to protect their members from losing the right to vote. It is simply a matter of scheduling. Indeed, there is something very wrong about a rule that specifically excludes groups that represent the overwhelming majority of senators in this chamber.

Honourable colleagues, you get the idea. We are not changing the procedures as such. We are, rather, expanding the rights of groups, other than the government and opposition, to be involved in these procedures. Hence my contention that this is less a motion about changing the Rules of the Senate as it is about the equality of Senate groups.

Some of you may be thinking that the very procedures and practices for which we are insisting on equality are obsolete or flawed in some way and hence should be fundamentally rewritten. In the example I gave previously on bells, the default currently is 60 minutes. Should it be 60 minutes? Should it be different from that? I don’t know the answer to that question, which is why I am not raising it as part of the motion. It may well be a good idea to revisit the fundamental design of some of our rules, but that is for a different day and a different motion.

Let me stress again that this motion before us is modest, it is incremental and it is less about changes to the rules than it is about rule changes to reflect a new reality.

There are two exceptions that I would like to bring to your attention. First, my motion envisages equal speaking time of a maximum 45 minutes for all leaders and facilitators on a bill at second and third reading as opposed to unlimited speaking time, currently, for the government and 45 minutes for everyone else. This is open for debate, but my own view, colleagues, is that however complicated an issue, if you cannot make your argument in 45 minutes, simply speaking longer isn’t going to help you. In fact, it could have the opposite effect. Colleagues, this is a chamber of debate, not a chamber of interminable speeches. There is a difference.

In any case, if we stayed with the strict principle of equality of Senate groups on this rule, we would have to give unlimited speaking time to all leaders and facilitators. I can already feel the shudders of horror across the chamber at the thought of unlimited speaking time for more senators.

The second exception is that in giving ex officio status on committees to the leaders and facilitators of all groups. We considered giving a vote on committees to all of the ex officios as a way of levelling up. We decided in the end, however, to level down by not allowing a vote from any of the leaders and facilitators. I could go either way on this question, but there are substantive as well as practical reasons for levelling down rather than levelling up. Let me explain them to you.

The first is that leaders and facilitators are not likely to be regular attendees at committee meetings and to have followed closely the witness testimony and discussions on a given bill or study at committee. The idea that they can swoop in at the end of a study just to cast a vote suggests that the vote given to them is more about power than about deliberation. In effect, it renders the votes of the actual committee members less valuable, especially when those members have done the heavy lifting on a given bill or study.

There is also a practical reason why giving votes to all ex officio members may not be a good practice. Under the old system — or I should say under the current system — where ex officio status resides with only the government and the opposition, the bonus vote on either side would cancel out, assuming no surprises. In a Senate with multiple groups and caucuses, the outcome of bonus votes would be unpredictable, and it would be subject to a kind of gamesmanship that really should not be part of the deliberative process of a well-functioning committee.

I recognize that there may be some special circumstances where an ex officio vote matters, and I’m open to further discussion on this question. But I hope I’ve made the case for why I believe levelling down makes more sense than levelling up.

Honourable colleagues, notwithstanding the exceptions I have highlighted, we can summarize my motion in the following way: Wherever there are privileges, rights and responsibilities provided in the Rules of the Senate to just the government and the opposition, those same privileges, rights and responsibilities should also be provided to all recognized parliamentary groups in the Senate. By thinking about the motion in this way, I hope you can appreciate why I’m characterizing this motion more as a motion about equality and mutual respect than about a motion to do with rules.

Colleagues, that is why I have chosen to introduce this motion, complete with specific wording for the rule changes, in the chamber rather than to offer it up as a matter for the Rules Committee to study and bring back to the chamber at some later date.

Colleagues, the equality of senators and Senate groups cannot wait any longer. Our own Modernization Committee came to this conclusion more than three years ago. In its report entitled Senate Modernization: Moving Forward that was published in October 2016, the committee identified equality as a core principle that each senator should be treated equally with respect to his or her rights and privileges as a parliamentarian, and that the Senate’s rules and practices should promote that status.

In a subsequent report, the Modernization Committee made clear that while many adjustments to the rules and procedures of the Senate have been made, more adjustments were needed to “reflect the new reality of the Senate.” The Modernization Committee concluded in its thirteenth report that:

. . . true equality among senators necessarily requires adjustments to the framework currently governing the procedures and deliberations of the Senate and that these adjustments must be considered in its modernization.

Colleagues, if there is fault in my motion, it is that I am moving it four years too late.

For those of you who think this motion is short-circuiting the process of rule changes, I say it is the opposite. The reluctance to fully recognize the new reality of a more independent Senate has short-circuited the just and proper recognition of parliamentary groups other than the government and opposition. On this matter, honourable colleagues, we are not ahead of ourselves; we are way behind.

Let me now take a few minutes to anticipate what I think will be some of the key arguments that might be raised against the motion and refute each one of them. You have already heard the most extreme of arguments against this motion by way of Senator Housakos’ point of order, which has just been dismissed by the Speaker. There is no need to dwell on the Speaker’s ruling, because it is clear, unequivocal and speaks for itself. I want to go further though in refuting the canard that Senator Housakos and some of his colleagues have propagated.

The falsehood is that changing the rules of the Senate to accommodate the reality of groups other than the government and the opposition is against the law. That is the essence of Senator Housakos’s point of order. If that were the case, though, the rule changes the Senate has already approved, such as the recognition of and funding for parliamentary groups other than the government and the opposition, are ultra vires. Senator Housakos, in fact, began his diatribe by referring to the allowances in our rules that the Senate has made in recent years to accommodate the growing number of non-affiliated senators. He was party to those changes. If he is now of the view that previous rule changes violate the Constitution, he is welcome to appeal to the Supreme Court. But wait a minute: Wasn’t it the Supreme Court that issued the landmark reference stating that the Senate was designed to be a non-partisan chamber in the first place? To quote from the 2014 reference:

In creating the Senate in the manner provided in the Act, it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons.

The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives.

It is clear that Senator Housakos has a preference for a Senate that is organized along partisan government and opposition lines, contrary to the Supreme Court reference, and that is his right. But let’s not get carried away with wild and reckless talk about breaking the law, violating the Constitution and undermining parliamentary democracy.

There is, however, one point on which I agree with Senator Housakos. It is that the Parliament of Canada Act needs to be amended to reflect the new reality of multiple groups in the Senate. Parliament of Canada Act amendments are needed as a companion to the rule changes I am proposing, not as a prerequisite. The fact of the matter is that rule changes are within the authority of the Senate itself but the Parliament of Canada Act isn’t. That is why we need to do what we can do on our own to adjust the Rules, and the government needs to do what only it can do in amending the Parliament of Canada Act.

This government made the promise of amendments to the Parliament of Canada Act part of its platform and included it in the Throne Speech. When the matter comes before us, I look forward to Senator Housakos’s support.

A second line of argument against my motion is that while an independent Senate may not be against the law or violate the Constitution, it is simply wrong-headed. This is a softer version of the extreme argument that Senator Housakos put forward in his point of order. It is that the so-called experiment of an independent Senate will eventually be reversed or that it will collapse on its own weight; ergo, we should not make any changes in the meantime.

Colleagues, I heard this argument a lot during the Forty-second Parliament, and I still hear it from time to time. I can appreciate the underlying sentiment, because it reflects a preference for the old way of doing things and a belief that the new approach is inferior. I don’t share that preference, but I respect that others might feel differently. Some of our Conservative and formerly independent Liberal colleagues said to me during the last Parliament that we should not change the Rules until after the results of the next election to see if a new government might revert to a partisan Senate. Well, that election has come and gone, and just a few weeks ago, we welcomed two more senators appointed as non-affiliated members of this chamber, with surely more to come in the weeks and months ahead.

Honourable colleagues, we may be in a historic building, representing the glory days of locomotive travel, but this is 2020, and the train has left the station. To argue that we should continue to wait to make rule changes because the train might come back is, at best, sentimental.

There is a third argument that might be raised against my motion, and it is that the system is working fine as it is. It will be said that, in practice, other groups such as the CSG, the ISG and their respective leadership, are already consulted on some issues or that they have been given rights similar to those of the government and the opposition on an ad hoc basis. We heard a version of this argument on the Thursday before the Christmas recess when Senator Martin spoke about my motion, and she uttered it again in support of the point of order of Senator Housakos. Referring to the fact that the chamber had just given leave unanimously for me to move an unrelated motion on a change to the membership of CIBA, she said:

. . . we did give leave and it was actually adopted, because we understood what was happening, it actually demonstrates the flexibility of our current Rules which, in the previous Parliament and in this Parliament, will stretch for all of us as a chamber, if we give leave, we can make these changes and adjustments.

She added:

. . . our current Rules have allowed these changes to happen and I think the Rules do serve us very well.

I have no doubt that Senator Martin uttered these candid remarks in all sincerity and perhaps even as a statement of generosity, but let’s be very clear: When she says we have flexibility in our Rules to grant leave, she means she and her colleagues in the Conservative caucus have the flexibility to grant us leave — when they feel like it. When she says, “I think the rules serve us very well,” she’s absolutely correct. But the “us” refers to the government and the opposition who currently have the power to, from time to time, grant privileges to other recognized groups by giving leave — if we ask nicely.

Don’t forget, colleagues, that the word “leave” is a pleasant euphemism for “permission.” When recognized Senate groups, other than the government and opposition, ask for leave to do something that only the government and opposition can do, we are asking for permission. The fact that we have to do so is precisely why I believe, contrary to Senator Martin, that the current rules do not serve us well.

The argument that the system ain’t broke because it has flexibility amounts essentially to advocating for a dual-class structure in the Senate where groups which already have codified rights will deign to offer some of those rights to excluded groups as a kind of noblesse oblige.

As a chamber that prides itself on the upholding of Charter rights and the defence of discriminated groups, the idea that an established class can sprinkle rights and benefits on the others on a discretionary basis without entrenching those rights is reactionary in the extreme. I cannot see anyone in this chamber tolerating such an argument if it were made about a certain ethnic group or region or other class of citizens in Canada.

Colleagues, whether or not you like the reality of a new, more independent, less partisan Senate, it is a new reality that has broad public support. A national opinion poll conducted in 2019 found that 77% of Canadians want to carry on with the new appointment process. Furthermore, 81% of Canadians describe the fact that “New Senators are not active in a political party and sit as independent members in the Senate” as a good change, while only 5% think the move towards independence is negative.

For those of you who want the train to return to the station — that is to say, a return to the old ways of appointing senators — you have the support of just 3% of Canadians.

To conclude, let me address a red herring that has been making the rounds. It is that this motion “gets rid” of the opposition in the Senate. First of all, let me say that as an independent senator, as with all independent senators who, by definition, are not part the government, the right to oppose government legislation is intrinsic to our jobs and central to our identity. We guard this right as jealously as other senators who see themselves as members of the opposition by virtue of their membership in a political party that is not currently in government.

The difference is this: Partisan senators will switch from opposition to government if there is a change in government which favours their party. From this perspective, independent senators have as big a stake in preserving the idea of an opposition as senators who are in opposition only when their party is in opposition.

Now, the red herring that we’re trying to get rid of the opposition likely stems from a superficial reading of the motion where, as you will see from the black-line version I have circulated, references to the word “opposition” in the original rule have been replaced with words such as “representatives of a recognized party and recognized parliamentary groups”, in recognition of the multi-group reality of the new Senate.

To use another example, we have replaced the words “Leader of the Government and Leader of the Opposition” with the alternative wording “all the leaders and facilitators”. As another example, instead of “critic for the opposition”, “critic for the ISG”, “critic for the CSG”, and so on, we have chosen the more economical wording, which is “the spokesperson on a bill from each recognized party and recognized parliamentary group”.

Colleagues, the motivation for our choice of wording — which, by the way, was taken on the advice of the Chamber Operations and Procedure Office — was good drafting practice, and we have been advised that this wording in no way whatsoever eliminates the opposition.

In any case, any reasonable reading of the proposed wording would not lead to the conclusion that this motion does away with the idea of an opposition in the Senate.

It is tantamount to saying that if the public health officer declares, “You should wash your hands before meals,” as opposed to saying, “You should wash your hands before breakfast, lunch and dinner,” she is doing away with breakfast. Breakfast can look after itself very nicely, thank you very much. And if a group of breakfast enthusiasts in Canada were to protest that the most succinct version of a statement on good hygiene was threatening to do away with your favourite meal of the day, we would all have a good chuckle and forget about it. I hope we can do the same with the mistaken idea that this motion seeks to eliminate the opposition.

If you need yet more assurance, I suggest you turn to pages 123 and 135 of the Rules of the Senate, and pages 5-4 through 5-6 of the Senate Administrative Rules, where there are references to “opposition” that remain untouched by this motion.

Colleagues, to sum up, this is a motion about the equality of Senate groups. It seeks to update our rules in a modest way to reflect the new reality of the upper house. It is a motion whose time has come and which is now needed urgently because of the overwhelming presence of senators in this chamber who are not part of the government and who do not belong to a partisan political caucus.

To vote for this motion is, fundamentally, to show respect for how our institution has evolved in recent years and, more importantly, to show respect for the majority of senators who are currently treated as second-class citizens simply because they sit as independents.

If you are inclined to vote against this motion, ask yourself: Do you believe in the equality of senators and Senate groups? If not, what makes one Senate group more equal than others?

I look forward to more debate on this motion, to suggestions and improvements, and to a vote sooner rather than later on this important piece of unfinished business in the continued modernization of our upper house.