FAQs about Government representation in a changing Senate
Find out more about how the GRO operates in a renewed Senate.
The Government Representative Office (GRO) in the Senate was established in 2016 in the wake of the current Government’s policy to appoint independent Senators to the Upper House. Given that the GRO is a relatively new entity, Canadians may be curious about how it operates.
The GRO’s primary responsibility is to work to ensure that the Government’s legislative agenda is reviewed by the Senate in a timely manner. Its three-person team also advocates for a renewed Senate that is less partisan, more independent, accountable and transparent, and a complementary chamber to the House of Commons. The scope of the changes to the Senate and many obvious and not-so-obvious questions arise regularly. Below are some questions and answers about the GRO’s role and Senate renewal.
Why are the members of the GRO listed as non-affiliated rather than as members of a party?
The governing party’s caucus in the House of Commons does not caucus with Senators, a decision that was made to reduce partisanship and increase independence in the Senate.
In January 2014, Prime Minister Justin Trudeau, then leader of the Liberal party in opposition, announced that Liberal Senators would no longer sit in the national Liberal caucus with elected Liberal MPs. The goal was to create a Senate that could more independently provide sober second thought in conducting its legislative review. This decision paved the way for the Prime Minister’s December 2015 decision to establish a new, nonpartisan, merit-based process to advise him on the appointment of independent Senators.
In the spring of 2016, the non-affiliated Government Representative Office was established in the Senate with two main roles: to shepherd government legislation through the Upper Chamber and to champion modernization in the changing institution. This is a departure from previous Senate practice under which the Government Leader in the Senate was part of the same national caucus as the Government.
Is the Government Representative in the Senate part of the cabinet?
Traditionally, the Government Leader in the Senate has also held the role of Cabinet Minister. The current Government Representative in the Senate is not a Minister, but attends cabinet meetings as appropriate to discuss the legislative agenda and update the Government on Senate renewal. The Government Representative in the Senate is a sworn member of the Privy Council.
Given that the GRO has only three members, how does the Office make sure that the Government’s legislation gets passed?
The GRO is responsible for shepherding government legislation through the chamber by helping to manage the timing for debate, seeking sponsors for government legislation, and conveying information about Government bills, policies and decisions. However, the GRO cannot and does not compel Senators to vote in favour of Government bills. Traditionally, the governing party appoints a whip to ensure that the appropriate number of members are on hand to pass legislation. Rather than a whip, the GRO has created the job of Government Liaison, who, among his or her other duties, works with the leadership of groups and parties in the Senate to organize the business of the Senate, including the timing of votes.
Can the GRO discipline Senators for unethical behavior?
The Senate has a modern and robust Ethics and Conflict of Interest Code that sets out standards of conduct for Senators. The Senate Ethics Officer is responsible for interpreting the code, and can lead inquiries into potential breaches. In cases of breaches, the Senate’s Standing Committee on Ethics and Conflict of Interest for Senators can make recommendations for sanctions, disciplinary actions or remedial measures. The Senate as a whole can debate those recommendations before ultimately voting on them.
How does the GRO follow through on its role to renew the Senate?
The GRO cannot compel the Senate to make changes to modernize the Upper Chamber, but rather seeks to foster change from within. All Senators can propose, study and decide on institutional changes.
Members of the GRO do, however, play a strong supporting role by offering ideas, delivering speeches, taking part in panels, producing policy papers and working to educate Canadians on the Government’s approach to Senate renewal.
Some advocates of democratic reform argue that Senators should be elected by Canadians. What is the rationale for appointing Senators rather than electing them?
Basically, the Senate is appointed and not elected because its role is to complement the work of the House of Commons. As the Supreme Court has stated, under the Constitution, the Senate is our bicameral Parliament’s complementary body of sober second thought. This role is a function of its appointed nature.
The Senate’s complementary function to the House of Commons has many expressions, some of which depend entirely upon the appointment model.
First and foremost, the Senate is meant to engage in the legislative process in a fashion that is removed from the pressures of the electoral cycle and the partisan politics of the day. Because Senators were appointed for a long tenure, it was expected that they would not place the interests and fate of political parties at the heart of their deliberations.
Another feature of complementarity is the ability to retain institutional knowledge and experience in parliamentary institutions — to be the “corporate memory.” While the House of Commons is characterized by high turnover rates at each election, it can be useful, in the legislative process, to have the input of parliamentarians who have monitored particular policies for the time of many governments.
The Senate was also created as a vehicle to provide a complementary form of representation for minority and sectional interests that have historically been underrepresented (and in some cases unrepresented) in the House of Commons. For example, through appointment, it has been possible for Prime Ministers to provide representation in the Parliament of Canada to groups that — while numerous — have otherwise been too spread out over different ridings to be able to land a seat in the House of Commons. It is by virtue of the appointive principle that it has been possible to provide a direct voice in Parliament for Indigenous, ethnic, religious and linguistic groups that have been underrepresented in the House of Commons, and to provide a greater gender balance than in the House of Commons.
Further, and perhaps most important of all, complementarity entails a practice of reasonable deference to the elected House of Commons. The Fathers of Confederation feared that an elected Senate would become a rival to the House of Commons, assert equal control over financial legislation and generate gridlock between the two chambers of Parliament. As the Supreme Court stated in 2014, “the choice of executive appointment for Senators was also intended to ensure that the Senate would be a complementary legislative body, rather than a perennial rival of the House of Commons in the legislative process.” The Court further detailed that the Fathers of Confederation believed that because appointed Senators would not have the legitimacy that stems from popular election, “this would ensure that they would confine themselves to their role as a body mainly conducting legislative review, rather than as a coequal of the House of Commons.”
In choosing the appointive model for Canada’s Upper House, the Fathers drew upon their own experience with the Legislative Council of the Province of Canada, the precursor to the Senate. In 1856, the Legislative Council was transformed from an appointed to an elected body. This was done despite the objection of some prominent politicians of the era, such as George Brown, who feared that an elected Legislative Council would rival the Legislative Assembly and tread upon its dominion over money bills. Confederation provided an opportunity to return to the relative safety of an appointed Upper House that worked as a complement to the elected Lower House. The Fathers took it.
Could the Senate be transformed into an elected chamber?
While the division into two chambers has endured since Confederation, over time, various Governments have proposed converting the Senate into an elected body. In 2014, the Supreme Court of Canada responded to a reference question on Senate reform posed by the federal Government at the time. The Court held that the federal Government could not unilaterally impose reforms on the Senate that would alter the basic structure of the Constitution, including creating consultative elections. The Court found that transforming the Senate into an elected body would change the Canadian Constitution’s basic architecture, which established a bicameral Parliament with an Upper House that would serve as a complementary (and therefore different) chamber of sober second thought. In the words of Canada’s top court:
Introducing a process of consultative elections for the nomination of Senators would change our Constitution’s architecture, by endowing Senators with a popular mandate which is inconsistent with the Senate’s role as a complementary legislative chamber of sober second thought.
Therefore, the Court said, such a change would require the express consent of seven provinces representing more than 50 per cent of the population.
Finally, it is important to note that the way nominations are put forward to fill vacancies in the Senate has vastly changed in the last few years, as part of a modernization plan meant to emphasize the complementary role of the Senate. You can see the new nomination guidelines here.
As the Senate continues to work on renewal, what is the role of the Speaker of the Senate?
Both the Senate and the House of Commons have a Speaker to preside over debates and proceedings in their respective chambers, but each role is distinct. While the Speaker of the House of Commons is elected by Members of Parliament, the Speaker of the Senate is recommended to the Governor General by the Prime Minister. As for the Speakers’ own voting powers: the Speaker of the House can vote only in the case of a tie. The Speaker of the Senate can vote on all matters before the Senate but must be the first to vote. The Speaker of the Senate cannot break a tie vote. In the case of a tie vote in the Senate, the bill or motion is defeated.
Some observers have argued that a more independent Senate could defeat Government legislation. How often does the Senate defeat Government bills?
The Senate rarely defeats Government legislation after it has been adopted in the House of Commons, but while this is nearly unprecedented, it does have the power to do so. In the past 50 years, the Senate has voted to defeat outright three pieces of Government legislation. The most recent example was Bill C-28, legislation concerning the redevelopment and operation of two terminals at Pearson International Airport in Toronto. At the time, the federal Government was in a court battle over the cancellation of Pearson International Airport contracts, and a large number of Senators deemed it unacceptable that the bill would limit the right of the litigants affected by the cancellation to seek damages in court. On June 19, 1996, the Senate rejected Bill C-28 at third reading in a vote of 48-48.
What happens when the House of Commons and the Senate disagree on a bill?
Bills are proposed laws. Amendments — or proposed changes — to bills are a common occurrence in our bicameral system, and a constant feature of the Senate’s activity over the course of our history. They may occur in either the House or the Senate, and Senate amendments may or may not be accepted by the House. In the event that the House disagrees with proposed amendments, it will send a message back to the Senate, and sometimes detail the reasons why amendments are opposed.
It is very rare for the Senate to insist on amendments to Government legislation that have been rejected by the House of Commons. Since 1960, only six bills involved a decision by the Senate to insist on some or all of its amendments once the House had rejected them. That equates to roughly one bill per decade. Therefore, in most cases, it is conventional for the Senate to defer to the elected will. However, the Senate does have the option to insist on its version of a bill or make further proposed amendments within the scope of the disagreement, and return the bill to the House.
In the extremely rare eventuality that the two chambers continue to disagree, conferences between the two chambers have been used to sort out the differences. This mechanism has fallen into disuse. The last such conference took place in July 1947, after the House declined Senate amendments to legislation that proposed to amend the Criminal Code.
Issues involving equality and fairness are increasingly significant elements of public discourse. How does the Senate protect equality rights and represent Canadians from minority communities and regions?
A fundamental principle of the Senate is to represent various sectional and minority interests. When the Senate was founded in 1867, women and Indigenous people were not allowed to vote, and they faced discrimination along with Francophones, new Canadians and other groups. In 2014, the Supreme Court of Canada acknowledged the Senate’s historical role in representing minorities:
“Over time, the Senate also came to represent various groups that were under-represented in the House of Commons. It served as a forum for ethnic, gender, religious, linguistic, and Aboriginal groups that did not always have a meaningful opportunity to present their views through the popular democratic process.”
As of September 2017, 44 per cent of Senators are women. The Senate is made up of a diverse group of people — including visible minorities, Indigenous people and immigrants — from various professional backgrounds — including former judges, teachers, journalists, police officers, scientists and mayors.
The Senate’s seats are distributed by region, rather than by population as in the House, giving less populous regions like Atlantic Canada a greater voice in Parliament.
French, English and Inuktitut may be spoken in the Senate chamber, and permission may be granted to use other languages.