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Trudeau's Reform Plan Has Paved The Way For An Independent Senate

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When we last left the subject of Senate reform, it was mid-June and the Senate had passed after much discussion the government's Bill C-14, the medically assisted dying bill. There was thorough study of this bill in the Senate and the version sent back to the House of Commons was much amended, substituting wording from the Supreme Court of Canada decision in the Carter case for the more restrictive version contained in the government's bill.

The government, while accepting a couple of what could be referred to as important but housekeeping-related amendments from the Senate, insisted on its original wording and sent the bill back, where it was passed by a Senate that did not insist on its amendments. What was remarkable about the deliberations in the Senate was that opinions advanced across party lines and the independent Senators, newly appointed and otherwise, offered differing opinions on various clauses.

Picking up on the theme of an independent Senate, in the last 10 days there have been two studies that build on this notion of independence. The Public Policy Forum released a study by two retired Senators, Michael Kirby and Hugh Segal, entitled "A House Undivided: Making Senate Independence Work," and Conservative Senator Stephen Greene with Christopher Reed's jointly authored a paper entitled "The Senate's Brave New Reality" (which the Senator intends to table in the Senate). It will be remembered that Senator Greene, along with Senator Paul Massicotte, convened a three-day conference attended by over 40 Senators last fall on modernization of the Senate.

Trudeau, by only appointing independent and non-partisan Senators, has blurred the line between government and opposition.

The two papers are in fact quite complementary. Kirby and Segal deal predominantly with changes that need to be made to the Senate Rules and Standing Orders to facilitate the operation of an independent Senate as well as means by which disputes with the Commons may be resolved. Greene and Reed deal with what could be termed the big picture of Senate reform -- how it moves the Senate away from the Westminster Parliamentary system, concluding there will soon be no clear delineation between government and opposition.

The Kirby-Segal paper recommends a number of practical steps that, if adopted, would contribute positively to the functioning of this new independent Senate. The Rules of the Senate need to be completely revised to accommodate the participation of independent Senators in both the Chamber and committee. The Senate should be organized around regional caucuses, and I would add that seating in the Chamber be organized by region.

To further reinforce independence, the Speaker should be chosen by secret ballot and chairs of standing committees be selected by the committee membership. Question period is to be organized around three purposes: "questioning of committee chairs; questioning of the Government Representative in the Senate on plans for government legislation; and the new weekly practice of weekly questioning of invited government ministers, as designated by the Senate."

The authors are concerned about the independent Senate becoming a rival to the House of Commons, and so they recommend that conferences be held between the two Houses in case of deadlock with equal numbers from both the Senate and House. Also there should be a legislated limitation of the Senate's absolute veto so that it becomes a six-month suspensive veto. A suspensive veto is not a new idea, as it was contained in most of the Senate reform committee reports in the 1980s and early 1990s.

The authors' concern regarding a deadlock is probably well-placed. However, the joint conference proposal probably has more legs than the adoption of a suspensive veto. Hard to see a group of newly minted, independent Senators limiting their own power -- at least in the short term.

Senator Greene and Christopher Reed discuss the evolution of change in the Senate from the early Harper years through to the present all in the context of the demise of the Westminster system in the Senate and then predict what this means for the future. They note that removal of the position of government leader in the Senate from cabinet by Harper in effect denied the Senate a role in questioning the government, "breaking a link between the government and the Senate."

justin trudeau senate
Canada's Prime Minister Justin Trudeau waits for the start of the Speech from the Throne as his wife Sophie looks on in the Senate chamber on Parliament Hill. (Photo: REUTERS/Fred Chartrand/Pool)

At the time in 2014, Liberal Senators were expelled from the national parliamentary caucus by Justin Trudeau. They make the point that government and opposition caucuses are integral for the effective functioning of the Westminster system. Next came the decision of the Supreme Court of Canada on the Senate Reference case and the fact that the court adopted the framers of the constitution vision of an independent Senate.

Trudeau, by only appointing independent and non-partisan Senators, has blurred the line between government and opposition. Even the Government Representative in the Senate does not identify with the governing party. The authors state categorically that "the death of the Westminster system in the Senate of Canada is not to be mourned; it should be celebrated for the revolution it begins." They say that "only the Senate will remain to give apolitical and non-partisan study to legislation." They also recognize the important regional and representation of minorities role that the Senate fulfills.

Looking to the future, Greene and Reed are on much the same page as Kirby and Segal, proposing that caucuses will not disappear; rather, there will be groupings of like-minded people and, of course, this could include regional caucuses. They are more optimistic than Kirby and Segal, believing that while there is potential for legislative paralysis, it is unlikely to happen. Greene and Reed believe fundamentally that partisan leanings must be put aside and that will result in improved legislation and good public policy.

The next stage in Senate reform will come with the release of the report of the Special Senate Committee on Senate Modernization next week, and with the appointment of 20 independent Senators shortly.

Senate reform would seem to be securely set on an independent track, but it will be interesting to see if the days of partisanship return upon the appearance of an issue which divides the country; only time and events will tell.

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