Unlike the partisan and relatively docile “old” Senate of the past, the “new” Senate is becoming a political force to be reckoned with in the national policy process. The government, the bureaucracy, interest groups and other policy actors must anticipate and be prepared to accommodate the divergent perspectives represented in an upper house that can no longer be relied upon to follow the will of the government and/or automatically defer to the House of Commons.
The transition to a more independent and less partisan Senate has been underway since 2014 when Justin Trudeau, then the new leader of the third-place party in the House of Commons, removed his senators from the national parliamentary caucus, which meant they were no longer subject to party discipline.
An even more important contribution to Senate independence was the 2016 decision by Trudeau to create an application and advisory process for the appointment of senators. As of April 2018, there were 34 appointments under the new procedure. As a result, the largest Senate contingent, with 41 members, became the Independent Senators Group (ISG), which will become a majority in the Senate in the near future.
A final change that contributed to Senate independence was the replacement of the former position of Government Leader in the Senate with a new official called the Government Representative. The change was more than symbolic. Before 2011, the Government Leader served in the cabinet, and his/her ministerial status provided leverage with cabinet colleagues who wanted their legislation expedited in the Senate.
The Government Representative, currently Peter Harder, is responsible for ensuring that the planning, coordinating and decision-making needed to advance the government’s parliamentary agenda takes place. He is also expected to play a leadership role in the Senate modernization process, which has been underway for several years.
The Government Representative must perform these roles with limited formal authority and few sources of political influence. There is no longer a contingent of government senators who have participated in a parliamentary caucus where concurrence in government plans for legislation is obtained. The Government Representative can no longer rely upon the disciplining of “rogue” senators by the party whip.
Historically, the rules of the Senate existed to regulate the competition between the dominant Liberal and Conservative groupings and to uphold the rights of individual senators. The changed composition and unpredictable dynamics within the Senate required that new rules be written, a process that is already underway.
The rules still allow all senators to speak on any matter with the potential to delay important government business. There are time allocation rules, but their use is controversial. The rules allow for timetables for the completion of government business to be set without the agreement of the Government Representative. Finally, the government and the Commons still control the flow of bills coming to the upper house, and there are pressures for speedy passage when deadlines and parliamentary breaks are looming.
In summary, the top-down direction and control that existed in the old Senate has been replaced by shared power and the need for negotiations among several different groups of senators. The negotiations can be over the substance of bills, as well as over the procedures for how individual bills are handled through the stages in the Senate legislative process. To be effective, the Government Representative must be skilled at acknowledging and understanding different perspectives, and at bargaining to find a basis for compromise and cooperation.
The top-down direction and control that existed in the old Senate has been replaced by shared power and the need for negotiations among several different groups of senators.
Recognizing this new reality, in March 2017 the Government Representative released a discussion paper titled “Sober Second Thinking: How the Senate Deliberates and Decides.” In the paper, Senator Peter Harder reviews and rejects several options for structuring Senate business and eventually comes down in favour of a business committee to plan the Senate agenda and to negotiate a timetable for all stages in the consideration of individual bills. Senator Harder identifies some options for how the business committee might be constituted and operate, but he presents these as starting points for discussion, not as final proposals.
Harder’s paper expresses the hope that reliance upon a business committee to organize Senate deliberations would reduce political gamesmanship, as well as the need to use time allocation. Hopefully over time it would, together with other changes, lead to a more constructive and collaborative culture in the Senate.
The backlash against Harder’s proposal from inside and outside the Senate chamber was not surprising, except for its intensity. Conservative senators, and even some independent Liberal senators, claimed that, in combination with the earlier Trudeau reforms, Harder’s proposals would destroy our Westminster model of parliamentary government by removing the adversarial component and diminishing the role of an organized opposition within the upper house.
These criticisms deserve to be taken seriously, but they are not persuasive, for several reasons.
First, there is not just one Westminster model of cabinet–parliamentary government. This was made clear in the themed 2016 issue of the journal Governance that revealed there is considerable institutional variety among the countries usually assumed to operate under the Westminster system. Most obviously, not all Westminster democracies operate an upper house.
Second, one of the presumed virtues of the Westminster system is its flexibility to adapt to different and changing circumstances in various national settings. The concept of a business committee is not alien to the Westminster tradition. It was adopted in the House of Representatives in New Zealand after that country adopted in 1996 a mixed-member proportional electoral system, which led to a multiparty parliament and to coalition governments.
Third, historically, parliaments in the Westminster tradition have operated mainly on an adversarial government-versus-opposition basis, with competitive and disciplined parties providing the motivation and energy that drive the parliamentary process. However, when the same parties dominate the House of Commons and the Senate, and when strong partisanship prevails in both houses, the Senate’s willingness and capacity to serve as a complementary body in the parliamentary process is weakened.
Finally, critics rightly insist that a legitimate and effective opposition is central to a healthy parliamentary democracy. They argue that the disappearance of an Official Opposition, recognized in the rules and provided with money/staff, will weaken the Senate’s role in providing sober second thought and holding the government accountable. The proposed business committee, they say, will allow the Government Representative to stage-manage the parliamentary process.
These fears are exaggerated. There may no longer be a partisan group in the Senate labelled the Official Opposition. However, partisanship is not the only basis on which opposition can arise. The ISG claims it is not a parliamentary party that takes collective policy positions. Soon to become a majority, ISG senators will be free to engage in “spontaneous opposition,” able to criticize government bills based on shared backgrounds such as regional, ideological and policy interests.
Legislatures cannot operate in a “state of nature,” like an ongoing free-for-all. There have to be structures and procedures for planning and executing agendas. In most legislatures, structures and practices tend to develop in an incremental manner that reflects negotiations among the different parliamentary groupings. In the absence of organized, competitive, disciplined and cohesive parties, the new Senate needs another basis for organizing its affairs.
An all-grouping business committee is a constructive proposal to fulfill this purpose. As with all changes to the structures and rules of Parliament, the devil is in the details. Agreement on those details should be found so that the business committee can be tried on an informal, experimental basis. Over time, precedents for handling different types of legislation may emerge. Good-faith bargaining and principled accommodations would hopefully produce greater trust among the various party and nonparty groups. A culture of constructive engagement with real issues, rather than theatrical gamesmanship, may gradually develop.
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