A Public Policy Forum report on how to navigate a newly independent Senate by former senators Hugh Segal and Michael Kirby was released to a bit of fanfare late last week, with its key feature being the idea that the Senate be reorganized from party lines, to the regional lines by which its seats are allocated. While there was certainly some good intention behind the report, most of the suggestions are solutions in search of problems.
Much of what was contained in the report was first raised in the Senate by Liberal-turned-independent Senator Pierrette Ringuette in March 2014, and some of them were part of the modernization discussions led by Senators Green and Massicotte last year. Many of the ideas were around things like electing the Senate Speaker and reforming Question Period, but this notion about breaking up the parties and organizing on a regional basis has captured a few imaginations in a fairly bewildering way. The current antipathy toward partisan affiliation in the Senate is a problem that is making people turn to unrealistic suggestions, having diagnosed the wrong problem.
Partisanship per se has never been the problem in the Senate. Where problems have arisen, particularly in recent years, has been when the Senate was used by the PMO for its own ends rather than the purpose for what the Senate was intended. Stephen Harper's disdain for the institution meant that he largely left it alone for the first couple of years of his government (despite bullying the Liberal majority in the chamber on occasion), but it was after Harper's panic appointment of 19 new senators in the wake of the 2008 prorogation crisis where things went off the rails. One fifth of the new chamber came in being told that they were being whipped, and the majority of the Conservative senators who predated them acquiesced and went along with it.
Because the Senate has operated as this kind of duopoly of one party being in power, the other waiting to be in power next, it meant that the decisions they took tended to be more self-serving, particularly because what the current party in power did, the one that would be in power again in the future would also be able to do. This started to change a few years ago when new, tougher rules started coming in after increased scrutiny and disclosures, but with the number of unaligned senators soon to outpace the size of either partisan caucus, the duopoly is about to be broken.
Breaking that power structure is at the core of the Segal-Kirby report, but what replaces it is where the contention lies. While introducing a third quasi-caucus of independents who select their own representation when it comes to committee selection and representation on the Internal Economy Committee is largely what the Independent Working Group does appear to be pushing for, Segal and Kirby suggest that what should happen instead is that the Senate be broken into four regional caucuses (Newfoundland's region being lumped in with the Maritimes while the three territories would each choose a region to affiliate themselves with) "for administrative purposes" and that there be some kind of council of elders from each regional caucus that would choose among themselves how committee assignments are doled out and so on.
The problem with this proposal is not only the kind of insularity that it breeds, but that it actively works against the way that federalist institutions in this country have been run for 149 years. Whether it's within party caucuses, Cabinet, the Supreme Court of Canada or other national bodies, the fact that there are representatives from each region helps provide national perspective from within rather than without. While the intent of regional caucuses may simply be for administrative purposes, with issue-specific groupings proposed on an ad-hoc basis, it nevertheless has a balkanizing air that has the very real potential of becoming the overriding consideration for the Senate as a whole, with the very real possibility of starting to pit regions against each other over petty differences. It wasn't the intent of the Founding Fathers to operate a country in this way, despite what Segal and Kirby surmise in the way the Senate was devised, and doesn't address the actual problems that led to the current crisis of confidence in the chamber.
Most of the other suggestions, while well-intentioned, are also problematic. Electing the Senate Speaker would require a constitutional change as unlike the Commons Speaker, the Senate Speaker is the titular head of Parliament and has very real diplomatic and protocol responsibilities that would require him or her to have the confidence of the government of the day. Reforming Question Period to ask questions of committee chairs or of scheduling matters would deprive senators of their ability to hold the government to account by way of the Government Leader in the Senate (though they do like the recent addition of having a ministerial QP appearance, which has been a beneficial addition). The suggestion that voluntarily limiting the Senate's absolute veto power to one of a six-month suspensive veto deprives an institution built as a check on the powers of a prime minister with a majority of the seats in the Commons of a crucial tool (and just because Westminster did this a century ago has little bearing on the context of the Canadian situation given that the Lords and the Canadian Senate are vastly different institutions). The suggestion of dropping the minimum age for appointment from 30 makes no sense considering that appointments are until age 75 (with good reason). If anything, the argument should be for raising the minimum age so as to keep the temptation for making too-young appointments at bay.
The report has sparked some discussion, particularly amongst the current crop of independent senators, as the Senate Modernization Committee's report is coming due. Nevertheless, the kneejerk nature of most of the proposals, going against history and the constitution, is concerning, and needs serious reflection.
