The road to Senate modernization: How far we’ve come and how much further we can still go
This piece by former Senator John Wallace is part of a series about the renewed Senate by former Senators.
John Wallace served as a Senator for New Brunswick for eight years. Appointed as a Conservative Senator in 2009, he chose to leave the caucus to sit as an independent in 2015 until his retirement in 2017.
As requested, I offer my following personal thoughts on how the Senate’s current modernization process may achieve its objective of creating a less partisan, more independent, accountable and transparent Parliamentary Chamber.
At the outset, I do wish to once again point out and acknowledge that this particular process of Senate modernization began as a direct result of initiatives that were undertaken in 2014, by our esteemed colleague and former Speaker of the Senate, the late Honourable Senator Pierre Claude Nolin.
Senator Nolin initiated the discussions on Senate modernization through a series of Senate Inquiries on the following topics that he introduced and spoke to in the Senate Chamber at that time:
1) Origin, History and Evolution of the Senate;
2) Senate’s Legislative Role;
3) Role in Representing the Regions of the Canadian Federation;
4) Role in Protecting Minorities;
5) Role in Parliamentary Diplomacy; and
6) Promoting and Defending Caucuses that Concern the Public Interest.
Without doubt, the numerous contributions of the late Senator Nolin for the direct betterment of the Senate of Canada, and its members, cannot be over-stated and should not be forgotten.
A Less Partisan, More Independent Senate
There is no question in my mind that the new appointment process for Senators is a major, much-needed improvement over what existed prior, in that:
- Members of the general public are able to recommend names of potential appointees for Senate appointment consideration;
- This appointment process is now based on consideration of publicly available, objective, merit-based criteria; and
- All successful applicants are required to acknowledge and confirm that they will carry out their senatorial duties and responsibilities in a truly independent, non-partisan manner.
This requirement to always act in an independent, non-partisan manner is of course, both fundamental and absolutely necessary for the proper performance of the Senate’s primary legislative role, which is as “a complementary legislative body of sober second thought,” as was confirmed by the Supreme Court of Canada in its 2014 decision in Reference re Senate Reform.
At that time, the Supreme Court also stated: “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 would canvas dispassionately the measures of the House of Commons.”
The framers of the Constitution 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. By so doing, they were clearly differentiating and distinguishing the required Constitutional roles and responsibilities of Senators, from those of elected Members of Parliament.
The importance of the Senate’s legislative role, and the manner in which it is intended to be performed by all Senators, was made entirely clear by Sir John A. MacDonald at the time of Confederation:
“There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatever were it a mere chamber for registering the decrees of the Lower House. It must be an independent House, having a free action of its own.”
“No ministry can in the future do what they have done in Canada before, they cannot with a view of carrying any measure, or of strengthening the party, attempt to overrule the independent opinion of the Upper House, by filling it with a number of its partisans and political supporters.”
Despite this intention, and requirement that Senators are to always fulfill their fundamental legislative role in a truly independent and non-partisan manner, it has not historically worked out that way. The problem, as stated at the time by Sen. Nolin in his speech to the Senate Chamber on February 4, 2014, was that in his words, “We have begun to lose sight of our responsibilities.”
In my opinion, and the opinions of many others, that failure was the direct result of the long-standing prevalence and practice of excessive political partisanship from both sides of the Senate Chamber.
When speaking of excessive political partisanship, I am not referring merely to one’s membership in a political party, but rather to those Senatorial decisions to support, reject or amend proposed legislation that are based, first and foremost, on the maximization of partisan political advantage for one’s own political party, and conversely, the political disadvantage of the other. In other words, “voting the party line.”
This is not, and cannot be the right answer for a properly functioning Canadian legislative chamber of sober second thought.
The Senate’s fundamental legislative role should always be performed on the basis of objective, merit-based public policy considerations and decision making that represents and reflects the best interests of Canadian citizens, and is not based on a predetermined, political bias that is clearly one-sided, lacks impartiality and reflects the best interests of political caucuses.
This historical practice by Senate partisans of consistently “voting the party line” and choosing, for the most part, to act as “rubber-stamp agents” of the political will and direction of their respective political caucuses, obviously lacked impartiality and seriously eroded the credibility and reputation of the Senate.
The Senate was not created with the intention that it be the “mirror image” or “rubber stamp agent” of the House of Commons, quite to the contrary.
Consequently, in order for the Canadian general public to have confidence that the Senate will always function as was intended, that is as “a thoroughly independent body” that will “canvas dispassionately the measures of the House of Commons.” I remain strongly of the view that:
- All future appointments to the Senate, regardless of the political party in power at the time, should continue to be made on the basis of an open, publicly transparent selection process that is based on objective, merit-based criteria;
- Since the overriding objective of all political parties and their respective political caucuses is to gain and retain political power, and to make decisions and take actions that support the attainment of that objective, I believe that no Senators should be members of or participate in the meetings of the political caucuses of any national political party. The senatorial conflicts of interest that arise from a failure to do so are obvious to those of us who have been members of a national political caucus; and
- The current practice of having Senators who are members of the Independent Senators Group sponsor Government bills in the Senate, should be discontinued. The role and expectation of a sponsoring Senator is that they must act as the agent for the government in getting the bill passed. From considerable first-hand, past experience, I am well aware that doing so requires a sponsoring Senator’s direct involvement in the government’s strategic policy and political considerations that are relevant to the bill in question. In those circumstances, I believe the sponsoring Independent Senator is clearly in both a real and publicly perceived conflict of interest that prevents them from acting, and being seen as acting, in “a thoroughly independent” manner.
I believe that this conflict of interest would be entirely eliminated if all Government bills were sponsored in the Senate by any one of the following:
- Government Representative in the Senate;
- Legislative Deputy to the Government Representative;
- Government Liason in the Senate; or
- The responsible Minister, Deputy Minister or Parliamentary Secretary, as is presently the case with Government bills when they are presented to the appropriate Senate Committee for review, study and report.
A More Accountable Senate
The Senate of Canada is a self-governing body in which Senators establish the rules that apply to themselves (this includes of course, Senators’ expenses), with authority to make final decisions on how and when those rules are actually applied. The ultimate authority on Senators’ expenses is the Senate Committee on Internal Economy, Budgets and Administration (CIBA) and as has been consistently stated and acted upon by Senators over the years, and particularly so by those in positions of leadership within CIBA: “We are masters of our own House.” That refrain may have been appropriate and publicly acceptable 150 years ago, but not in this current day and age.
Those of us who were members of the Senate at the time, vividly remember the exhaustive audits of all Senators’ offices that were conducted by the Auditor General, and the result of which was the “Report of the Auditor General of Canada to the Senate of Canada” in June 2015. To say that was somewhat less than a stellar experience for the Senate institution, and its individual Senators, would be a gross understatement. The total public expense incurred for this Senate audit was in the $24-million range and the Auditor General identified 30 Senators, including leaders of the Conservative and Liberal Senate caucuses, who had submitted claims for expenses that were found by the Auditor General not to be for allowable “parliamentary expenses, and consequently the Auditor General required these amounts to be repaid.
The reputation and credibility of the Senate, and the public’s opinion of the Senate took what could be only described as a severe hit.\
There were some positives, however, that arose from the Auditor General’s audits, and particularly so those that can be found within the “Findings” and “Recommendations” sections of his report.
In this regard, I would draw your attention to the following “Findings” that are identified in Paragraphs 42 and 43 and the consequential “Recommendations” identified in Paragraphs 51, 52 and 53:
- “A structure in which individuals set the rules that apply to themselves, and have the authority to make final decisions about how those rules are applied, may give rise to a perceived lack of objectivity, as individuals may be viewed as looking after their own interests.”
- “Senators who sit on the Internal Economy Committee also make expense claims as individual Senators. Because the decisions they make may apply to their own expense claims, the Senators who sit on the Committee may perceived as unable to make independent and impartial decisions.”
Oversight of Senators’ expenses:
- “The Senate of Canada should review the mandate and structure of the Standing Senate Committee on Internal Economy, Budgets and Administration, as well as the reporting relationship of the internal auditor, with the objective of creating independent oversight of Senators expenses.”
- “The oversight of Senators’ expenses should be performed by a body (the “oversight body”), the majority of whose membership, including its chair, is independent of the Senate. The members of this oversight body should be selected so that their collective skills, knowledge, and experience enable the oversight body to carry out its duties thoroughly and efficiently.”
- “The mandate of the oversight body should include:
- a role of contributing to the development and interpretation of rules, policies, and guidelines that apply to the expenses of Senators;
- the authority to review expenses incurred by individual Senators and all relevant documentation;
- the authority to make final decisions on whether those expenses comply with the rules, policies, and guidelines, and whether amounts should be repaid by Senators; and
- the exclusive authority to hire and terminate the Senate’s internal auditor, and to approve the terms of reference and mandate of the internal auditor.”
What is, or should be obvious to all, is that in this current day and age the Senate’s refrain that “we are masters of our own House” rings extremely hollow, is totally insensitive and out of step with reasonable public opinion and expectations regarding the spending of taxpayer dollars and furthermore, is indicative of a lack of full appreciation and understanding of the need for significantly increased public accountability in this regard by the Senate as a founding institution of our Canadian Parliament.
This need for increased public accountability could not have been made clearer by the Auditor General within the findings and recommendations of his report. The report clearly calls for the creation of an “independent oversight body,” the majority of whose members, including its chair, is independent of the Senate.
My understanding is that the Senate has not implemented this particular recommendation. That is the wrong conclusion. Without that change occurring, plays directly into the negative perception of those of the general public who regard the Senate as a self-protecting club of privileged elites, that above all else and at considerable public expense, looks after its own interests. The Senate should not be tone deaf to what led up to the audit by the Auditor General, the public’s reaction and legitimate concerns that were clearly expressed at that time. Now is not the time for half-way measures in attempting to adequately address these issues.
Similar to the basis of the findings and recommendations of the Auditor General that highlighted a lack of process for independent review and oversight within the Senate, as we all well recall, a number of Senators were suspended from the Senate without pay in 2013. At the time it was argued in the Chamber by a number Senators, including those who were the subject of the suspension motions, that this suspension process was entirely improper, in that it was without due legal process and application of the Canadian rule of law and principles of natural justice, including the rights and protections that are afforded to all Canadians under the constitutional Charter of Rights and Freedoms. These arguments were not accepted by the Conservative led majority of Senators in the Chamber, rather it was stated by some of the proponents of these suspensions at the time that the Senate was “a Charter-free zone.”
To this day, the Senate continues to take the position that with the self-protection of “parliamentary privilege,” it has the exclusive right to discipline its members and invoke administrative penalties, including the withholding of pay, without the possibility of judicial review by our Canadian courts and the application of relevant Canadian law, including the rights and protections provided for under Charter of Rights and Freedoms.
The Senate’s position on this issue is entirely contrary to, and violates the basic principles of Canadian justice that require the fair and equal treatment of all Canadian citizens. Those basic principles continue to be the basis of the democratic system of this country in which each of us live.
It is inconceivable, to me at least, that in this current day and age, a situation like this could be allowed to continue to exist within, of all places, one of our own founding Parliamentary institutions.
1) The Senate take all steps necessary to rectify this inequitable, unjust application and consequence of the use of “parliamentary privilege,” by amending and limiting the circumstances in which it should apply. The Charter of Rights and Freedoms and the Canadian rule of law must, without exception, be available to and applied for the benefit of all Canadian citizens, and the Senate of Canada should be held accountable to that end; and
2) The Senate adopt the recommendations of the Auditor General with respect to the establishment of an independent oversight body, the majority of whose membership should be independent from the Senate.
A More Transparent Senate
As we are all well aware, Senate committees regularly conduct and produce excellent, high quality studies and reports, covering a broad range of topics that are highly relevant and of great interest to many Canadian citizens, organizations and businesses. In recent years, the Senate has made the work of committees more publicly accessible, however I believe there is still more that needs to be done.
In order to improve the effectiveness and relevance of the Senate for the benefit of the general public, and in doing so enhance transparency within the institution, I believe additional improvements should be implemented that would significantly increase the public’s awareness of, accessibility to, and potential use of all of the information, findings and conclusions that are contained within each these Senate Committee reports and studies.
To accomplish this, I would recommend that all of the contents contained within each of these reports and studies be made electronically available to the general public, in Google-like fashion, by being able to reference and access all desired information by topic/subject matter, key words and phrases and statutory sectional references, as well as report/study names, committee names, names of participating Senators and witnesses, etc. In this way, the investigative work of the Senate could become a far more valuable resource and research reference tool for the use and benefit of all Canadians, including members of the media.
In conclusion, I do hope that these thoughts I have expressed will be of some use and benefit to Senate members in their present and future deliberations on Senate modernization.
The Senate of Canada continues to remain very much in my thoughts.
*The views expressed in this piece do not necessarily reflect the views of the Government Representative Office in the Senate.