Senator Yuen Pau Woo

Honourable senators, I want to thank Senator Bellemare for introducing her amendment, which gives us an opportunity to think more deeply about this long-standing rule and to think clearly about what it really means when we talk about equality of senators, independence of senators and the portability of committee seats.

Honourable colleagues, the motion that she just amended, as you know, is the outcome of a negotiated agreement on committees that the leaderships of three groups representing about 80% of senators have agreed to. I was not part of those negotiations, but I support the original motion. The provisions of the original motion were negotiated as part of what trade negotiators call a “single undertaking,” which means all parts of the motion are essential to the integrity of the deal that was reached. I will, however, speak only to one part of the original motion, which, of course, has now been excised by Senator Bellemare. I’m referring to clauses 8 and 9.

Colleagues, the issue at hand is the portability of committee seats, specifically the ability of senators who have left a group from which they derived their committee seats to then take their seats with them. It is not about whether senators have the right to have committee seats regardless of which group they belong to or whether they are affiliated with any group. The last comment we heard from Senator Bellemare is a non sequitur. We’re not debating the right of senators to sit on committees. We are debating whether they have the right to take a particular committee seat with them when they leave their group.

The argument for portability has been articulated most recently by Senator Bellemare, but also in a recent op-ed by Senator Cordy in The Hill Times. It boils down to four key points. The first is that current rules allow for portability; second, that prohibitions on portability are contrary to the modernization of the Senate; third, that such prohibitions foster caucus-like behaviour and are inimical to senatorial independence; and fourth, that it is the Senate which awards committee seats to members rather than groups. I will take each point in turn, but first let me articulate the case for the original motion and against the amendment.

The starting point in this debate, honourable senators, is to ask where a member’s committee seats come from. We are not sworn into the upper house with a committee seat attached to our names. All of us have a right to sit on committees, but nobody has the right to sit on a particular committee. This is not about Senate independence or some other high-minded principle, it is about boring math. On most committees, the number of seats available exceeds the number of senators who want to be on those committees. Every time the Senate has to reconstitute committees, as it does now at the start of the second session of the Forty-third Parliament, we have to devise a way to assign a finite number of seats to a large number of senators who want those seats. It is, quite simply, an old-fashioned allocation puzzle, not unlike assigning friends and relatives to tables at a wedding party.

The current approach to assign committee seats is a two-step process. First, we divvy up the seats by recognized groups in the Senate, and then we have each group allocate specific seats to specific members. The first step is relatively easy because it is guided by proportionality, whereby each group gets committee seats roughly commensurate with its numbers in the chamber. The second step is more complicated, and each group has its own protocol for matching seats with senators.

Now, without going into the gory details, the ISG has devised a process that seeks to give all members their preferred choices on a ranked basis while applying a set of criteria, such as seniority, expertise, diversity and so on. ISG senators were involved in the design of the protocol and they willingly take part in its application, which is part and parcel of being a member of the group. I’m sure other groups have similar processes.

Senators usually get one or more of the choices they picked, but virtually all members don’t end up getting all of their choices because of excess demand. It is important to stress here that the difference between a senator who got a seat and another who did not get a seat isn’t that the one who got the seat is more intrinsically deserving of the seat. It is simply that the agreed-upon protocol for seat allocation produced a result that was favourable to said senators, which is why the removal of that seat by a senator who subsequently leaves the group is a violation of the protocol that the senator willingly joined in order to get the seat. Let’s be very clear: The senator got the seat at the expense of a colleague. Taking the seat away from the group would be an affront to procedural fairness and an insult to colleagues who played by the group’s rules.

The underlying point here, colleagues, is that while senators have a right to sit on committees, they do not have an entitlement to any particular committee seat. Seats on particular committees can only be assigned through what is essentially a process of negotiation. For a senator to then assert his or her right to that seat in contravention of the negotiated agreement is a fallacy of logic and an abuse of procedural fairness.

What then, colleagues, do we make of the fact that the current rules allow for portability? This is central to the argument that Senator Bellemare has made and to what Senator Cordy had said in her op-ed. Senator Cordy makes a further point that portability of committee seats is essential for Senate modernization, which is an avowed objective of the Progressive Senate Group.

Well, colleagues, you cannot be for modernization and against rule changes. At the very least, a pro-modernization stance would imply that you are open to some rule changes, including the rule about portability of committee seats. Hence, the argument in favour of portability, based on the fact that it is currently in the rules, isn’t really an argument; it is simply a restatement of the status quo.

The real question is whether the status quo is still relevant and if it, in fact, is consistent with our shared objective of modernization. For starters, the original motion, stopping portability, would allow for procedural fairness. To me, that sounds very much in the spirit of Senate modernization.

Now, I can only speculate as to the thinking of senators when the portability rule was introduced many years ago. At the time, and indeed for most of the Senate’s history, there were, for all intents and purposes, only two groups in the upper house, so the question of Senate seat assignment was less complicated than we have today. There was a great deal less fluidity in the composition of the Senate compared to the last four years, and very little mobility of senators between caucuses. Hence the question of Senate seat portability was very likely a non-issue for most of the Senate’s history.

In any event, in the old world of whipped caucuses, the portability rule we’re talking about here, 12-2(3), was usually trumped by rule 12-5, which Senator Bellemare and Senator Cordy both support. Rule 12-5, you will recall from Senator Saint-Germain’s description, allows the leadership of a caucus or group to replace a senator on a committee with the stroke of a pen. A recalcitrant senator in a whipped, partisan caucus would very likely have been stripped of his or her seat long before the decision was made to leave the caucus, hence rendering moot the question of portability.

It is in this context that it is very curious that Senators Bellemare and Cordy would defend rule 12-5 at the same time as advocating for portability. Insofar as they are for senators keeping their seats permanently, by far the bigger threat is rule 12-5 than 12-2(3), because the former, rule 12-5, can be used at any time during a senator’s membership in a group or caucus. While the intent of rule 12-5 is to make temporary changes, there is nothing preventing a temporary change from becoming a permanent one.

We’re not debating rule 12-5 here, but there is a glaring inconsistency in any argument that relies on rule 12-5 as a reason to keep rule 12-2(3).

This raises the third of the arguments put forward in favour of portability, which is that the original motion encourages caucus-like behaviour. An assertion is not a fact. Respect for and adherence to an agreed-upon procedure to allocate scarce committee seats is not the same as being whipped. Procedural fairness is about decency; it is not about the arbitrary powers of group leaders.

Proponents of portability would like us to think that the issue is one of senatorial independence. This is a red herring. It is an issue of independence only in the sense that a senator wants to be liberated from any responsibility he or she may have to the group from which the seat was obtained. In effect, to do as they please in the belief that they have an absolute right to that particular seat on the committee, regardless of how the seat was obtained. Never mind that other senators were deprived of that very seat because they, too, followed the agreed-upon protocol for seat assignment.

Now, colleagues, I understand that nobody likes to have something taken away from them that was previously in their possession. To use a technical term, that “sucks,” but how much it “sucks” should depend on your entitlement to the item in the first place. If you were bequeathed a treasure and the treasure was expropriated by decree, it should “suck” a lot. But if you received this item at the expense of someone else because you were the lucky beneficiary of a negotiated process, it shouldn’t “suck” very much, especially not if you willingly participated in the process along with other members of the group and then chose to leave that group.

Senator Cordy has given yet another argument that Senator Bellemare did not raise, so I will only attribute this to Senator Cordy, and it is that the Senate ultimately assigns committee seats rather than groups. She is referring, of course, to the fact that it is the report of the Selection Committee that details the allocation of seats to members that is then voted upon by the Senate as a whole.

I believe her point is that any need to respect a group process for assigning seats is nullified by the fact that the Senate as a whole makes the final decision on who sits on what committee. But this is a deflection, because the Senate as a whole played zero role in brokering the allocation of seats or in coming up with the precise configuration of committee memberships. That painstaking work took place at the group level, and it involved a process of negotiation based on internal protocols that were agreed upon by the respective memberships.

The fact that the Senate blesses the work of the groups does not take away the obligation and responsibility for procedural fairness at the group level.

I will say, though, that Senator Cordy’s invocation of the Senate’s role in blessing committee seat negotiations raises an interesting point: there may be a different way of organizing the Senate seat assignment process so that there can be portability. Indeed, if senators were assigned their seats through an all-Senate process rather than by group negotiations, a case could be made that seats belong to individual senators, at least for the duration of the session.

In that scenario — this is where the entire Senate comes to a decision on how seats are allocated — there would be no violation of the seat-assignment process if senators choose to change groups and, therefore, portability would not be a problem. But just think about the scenario I painted, and good luck to anyone trying to come up with a Senate-wide system of assigning committee seats by individual member.

Now, colleagues, it may well be that Senator Cordy and other senators in favour of portability are fundamentally against the process of committee assignment via caucuses and groups, and maybe they would like to see a Senate-wide selection process. This is a respectable position, but it is not the one we are currently debating. As it stands, advocates of portability want to have it both ways: allocation of seats by group as well as portability. From the perspective of procedural integrity, this position is not coherent.

Before I sum up, I want to talk about math again because it has come up a number of times and Senator Tannas brought it up as well. Senator Bellemare gave us the hypothetical situation of the 20 plus 2 and the 20 minus 2, creating a situation where you go up 10% and you go down 10%. Her case is that that changes the fundamental proportionality on a given committee.

Let’s work through the math. In a realistic situation, it’s not just two groups. It’s three or four, as we know. All you have to do is imagine a third group with 10 members. The 10-member group stays unchanged. We’re talking about 50 members in total. The first group of 20 goes up 2, and the second group of 20 goes down 2 to 18. The proportionality numbers in that scenario for a committee of 9 or 12 do not change even with the movement of 2 members from one group to another. Take my word for it. You can do the math yourself.

The fact is, a simple change of numbers within a group does not translate in the same way and with the same power to a small committee of 9 or 12 or 15. Again, do the math yourselves.

This argument that somehow proportionality is violated because one or two members leave is not sustained. Again, don’t take my word for it. Do the math.

Colleagues, to sum up, much as some would like to make this motion a debate about Senate independence and senatorial autonomy, the less-glamorous reality is that committee seat assignment is a routine allocation puzzle that has to be solved through negotiations. Negotiations only work if the parties subject themselves to the rules of the negotiated agreement and respect both the outcomes and the procedures that led to those outcomes. If there is a principle at stake in this motion, it is that of procedural fairness. Senators do not have a divine right to a given committee seat. They receive the seat on a particular committee by willingly participating in a group process that resulted in a favourable outcome for them, but at the expense of other senators. If they leave that group, the seat should not go with them. That is the intent of the original motion, and that is why I do not support the amendment. I hope you will vote against it, and I hope we can quickly go to the main motion and vote for it so that we can quickly form our committees and get on with the work of the upper house.