Sen. Peter Harder on Senate Reform (Sept 19)

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(Picture L to R: Alicia Natividad, Pearson Centre; James Scongack, Bruce Power, Sen. Peter Harder; Catherine Bélanger, and Hon. Sergio Marchi)

A WORK IN PROGRESS: The changing role of the “Representative of the Government in the Senate”

Report of a Special Roundtable with Sen. Peter Harder, September 19, 2016

Our thanks to our Sponsor for the event: Bruce Power

Written by Robert Rivers

Report Purpose

The purpose of this report is to present a picture of the evolving role of the newly created Representative of the Government in the Senate as understood from a roundtable discussion hosted by the Pearson Centre with Senator Peter Harder who is the first Senator to hold the post.
Background & Historical Overview

The Canadian Senate was brought into being with the 1876 Constitution Act. Since that time it has consisted of 105 members. They are eligible to serve until age 75. The Senate is an important institution because it has equivalent power to the House of Commons and all new bills that become law can only do so once they have consent of the Senate. Although the Senate retains its traditional roles of revising legislation passed by the House of Commons and undertaking studies on subjects that are of interest to Canadians, there have been many attempts to reform the Red Chamber in the past three decades.

Participants were welcomed by Alicia Natividad, Advisory Board Member, Pearson Centre

The discussion was moderated by the Hon. Sergio Marchi, President and CEO of the Canadian Electricity Association, and former federal Citizenship and Immigration Minister who worked with Mr. Harder as Deputy Minister.

Senate Reform

Three recent attempts at senate reform occurred during the 1982 Meech Lake Accord by Prime Minister Brian Mulroney, again in the House by Prime Minister Harper and currently by Prime Minister Justin Trudeau. Changes to the structure, composition or existence of the senate requires that the Constitution be open and amended. This process entails constitutional reform that requires securing consent from 7 provinces with 50% of the population, or all ten provinces, depending on the reform.
The Senate was almost reformed under Prime Minister Mulroney in 1982 during the Meech Lake Accord. The accord first proposed abolishing the Senate but under pressure from the Premieres and Canadians amendments were proposed that would have seen senators elected with 9 year term limits. This reform failed because the accord could not achieve the consent from 7 of the 10 provinces premieres to open up the constitution.

A second attempt to reform the Senate was made by Prime Minister Steven Harper beginning 2006 when he first took office. He proposed Bill C-19 and Bill C-20 which sought to have senators elected with restricted term limits of no more than eight years. Prime Minister Harper attempted this reform unilaterally through the House of Commons instead of working with the provinces to open the Constitution. This unusual use of power by the House was challenged in the Supreme Court of Canada which ruled on April 25, 2014 that the parliament does not have the power to make such unilateral changes to the Senate. Interestingly in the 2015 election the New Democratic Party of Canada pledge to abolish the Senate if elected.

The third attempt at Senate reform emerged in 2014 by then leader of the Liberal Party of Canada Justin Trudeau. His approach was to move the Senate to be an independent chamber where members were free of their obligations to the ruling party and more to Canadians as a whole. He initiated the process by first removing the Liberal party senators from the national Liberal Party caucus in January 2014.
Since the successful election of the Liberal Party to majority government in October 2015 Prime Minister Trudeau continued to introduce reforms that directed how the senate would interact with the government. First, he introduced the Independent Advisory Board of Senate Appointments (IABSA) established January 19, 2016 to develop a short list of potential Senators following an open nomination process open to all Canadians. The Prime Minister then selects appointees from the short list provided. Senators are technically summoned to the Upper House by the Governor General on the advice of the Prime Minister. The IABSA has three permanent federal members and two members from each of the provinces and territories who are called upon to become involved in the selection process when filling a vacant seat from their region. The first group of 7 independent senators chosen through the IABSA process were named to the chamber on April 20, 2016.

This process of reforming the Senate into a more independent chamber has been met with some push back. Following the decision to remove Senators from the Federal Liberal caucus, the former members created the “Senate Liberal” Caucus which currently has 21 members. There are also 41 Conservative Senators who have made no changes to their affiliation with the national Conservative Party caucus. Since Prime Minister Trudeau has brought about these reforms a small number of Senators have chosen to leave their national party caucuses to sit as independents. This has resulted in a total of 27 Senators identifying as independent or without party affiliation.

Further efforts at reform were made by Prime Minister Trudeau by changing the role of the Leader of Government in Senate into the independent Representative of the Government in the Senate. The Leader of Government in the Senate was a position that was created in 1867. The role was traditionally to ensure that the bills that were forwarded to Senate from the House of Commons would be supported along party lines and in accordance with the wishes of the governing party. This resulted in most pieces of legislation that passed from the House to the Senate would be met with a friendly reception that was not overly critical. The Leader of the Opposition in Senate still remains and this role remains connected to the Conservative party as they are opposition to government in the House. Senator Peter Harder is the first to be appointed as the Representative of the Government in the Senate on March 18, 2016. Senator Harder was one of the first seven Senators selected through the IABSA process.

The Role of the Representative of Government in the Senate

The remainder of this report outlines the role of the Representative of the Government in the Senate and is based on information provided during a roundtable with Senator Harder hosted by the Pearson institute on September 19, 2016 in Ottawa. The efforts for independent representation in the Senate are still a work in progress according to Senator Harder and there is much more work ahead to achieve this goal. Senator Harder shared how he operates in this new role.
Relationship with Government & the Prime Minister
According to Senator Harder, Prime Minister Trudeau has been steadfast in his commitment to creating an independent Senate. For Senator Harder the role of the Representative contains four pillars, independent, non-partisan, complimentary and transparent as outlined below (Figure 1).
Figure 1 Pillars of the Representative of Government in the Senate

Independent

The independent nature of the position is emphasised by the Prime Minister’s designation of Senator Harder to be independent from the House of Commons, Executive Branches and the Prime Minister’s Office. At the same time, as an independent member of the Senate the Government Representative in the Senate continues to works with government on behalf of the Senate, is a member of Privy Council, and discusses bills yet to be presented by ministers. He notes that he is both the Government’s representative in the Senate as well as the Senate’s representative to the Government. The Representative does not participate in any Senate caucus. The position still works to represent the government and advance government legislation but with increased acceptability that good ideas can come from any Senator regardless of party affiliations. He attends cabinet meetings from time to time to discuss issues of passage of legislation in the Senate.

The Representative still responds to questions in the Senate on behalf of the Government and refers them to ministers where appropriate. Further, efforts have been made to shorten the time period for written responses to questions which under the previous position could take over 600 days. Ministers are also now invited to a special question period, one at a time. Senator Harder has also extended an invitation for provincial premiers to meet with the senators from each province when they are in Ottawa. This is the first effort to build independent rapport between elected provincial representatives and Senators.

Non-Partisan

Senator Harder suggested it would take time to become completely non-partisan when the Senate has been partisan since it’s inception 149 years ago. Since the Conservatives are still the majority this means that they currently chair most committees.
Regardless of the current situation he stated that, “the days of partisan caucuses are numbered” and there is a need to organize in a way that is not partisan based. A concern is the remaining caucus system which is governed by the traditional rules where twelve members or more can become a recognized caucus. The members who choose to participate in the caucus system continue to earn privileged resources, not available to independent senators such a caucus research budget.

Complimentary

The Senate has the same legal power as the House. This means that there is an important complimentary role for the Senate when working with the House.
Another means is to build upon the Senate’s ability to undertake studies on subjects of significant interest or for future legislation that has not yet passed the House. Also, he noted that the Senate can be the place where the unpopular but important future policy issues can be studied.
The recent Medical Assistance in Dying Bill, C-14, has demonstrated that a bill can be passed to the Senate and recommendations provided to the House for further consideration. Senator Harder admitted that not all suggestions will be accepted but this process demonstrates the Senate can enrich legislation in a complimentary fashion. Senators can also compliment the work being proposed by the government to provide insight from members who are not pressured by partisanship and electoral pressures.

Transparent

Transparency may seem difficult because the Senate has been partisan for most of its existence. Partisanship makes it is tough for others to see the processes that are being used to make decisions such as amendments to legislation or choosing committee membership. The work of the Representative is to try and persuade fellow Senators to view bills through a policy lens instead of a partisan one to ensure transparency is maintained.

The Future Role of the Senate

Senator Harder outlined the advantages to a Senate is that there is an institutional memory that lasts longer than the election cycles in the House of Commons. The political accountability of the members in the House of Commons drives how the members approach legislation mandates and how these mandates are implemented. The Senate can work differently because the more independent it becomes there will be greater opportunity to define how the Senate interacts with the House. Further restoration of regional representation will also be possible as independence is gained.
There were two areas of legislation important to Canadians identified by Senator Harder where the Senate could take a leading role. The first is ensuring that policies for the aging population are ready to be addressed by the government. This entails the Senate conducting intensive studies on how to the federal government can supports a rapidly aging population. The second area could be to help Canadians understand the complex but necessary role globalization has had on our economy throughout history up to now. According to Senator Harder Canada has been a small trading nation since before Confederation and the Senate can help Canadians understand the positive impacts our activities as a trading nation have had on their everyday lives.

Summary

The nature of the changes to the Senate with the creation of the Representative of the Government in the Senate are complex. This makes communicating the influence this position has had on the Senate thus far and the future direction sometimes difficult to communicate to the general public. Senator Harder identified that the Senate is a “work in progress” and there are plenty of opportunities to building into an effective chamber that operates as independent, non-partisan, transparent and complimentary to the other forms of government.

References used for this report

Richard Foot. “Senate” In The Canadian Encyclopedia. Historica Canada, 1985–. Article published February 7, 2006. http://www.thecanadianencyclopedia.ca/en/article/senate/.
Government of Canada. Independent Advisory Board for the Senate. https://www.canada.ca/en/campaign/independent-advisory-board-for-senate-appointments/members.html.
Government of Canada. Constitution Acts, 1876 to 1982 -The Senate. http://laws-lois.justice.gc.ca/eng/const/page-2.html#h-5

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