On Monday, Independent Senator Elaine McCoy wrote an op-ed for Macleans.ca which stated that the Senate has shown remarkable improvement since its move toward greater independence, and to prove her case, she offered two metrics the increased number of amendments being proffered, and the timeliness by which legislation is passing through the Upper Chamber. While I have the greatest of respect for McCoy, I have to question whether her analysis is actually on a solid footing, or if this is a case of correlation instead of causation.
When it comes to the changes that have been seen in the Senate since the number of independent senators have started climbing, I'm not entirely sure that it's the fact that these senators are independent that is what's responsible for the improvements so much as it's the change at the top and by the top, I mean who's sitting in the PMO. It's difficult to deny that when Stephen Harper was in charge of things, he treated the Senate with a great deal of disdain, and made very deliberate choices that impacted its operations in a very negative way. From the very start, he pledged not to make any appointments unless they had been "elected" in a provincial process (barring his appointment of Michael Fortier, whom he offered an immediate cabinet position for reasons of regional balance), and since only Alberta was running its own sham of a senate "election" process, Harper only appointed Alberta senators in the hopes of pressuring other provinces to begin their own.
That of course changed in 2008 with the prorogation crisis, and Harper suddenly felt a need to appoint a swath of new senators before a possible coalition government could do it for him, and when that mass appointment was made, it was done in such a manner that those senators were told that they were to be whipped something that should not have been the case given the institutional independence that the Senate enjoys. And after the scandals involving senators Duffy, Wallin and Brazeau (and to a lesser extent Harb), and the Supreme Court's reference decision that kyboshed Harper's reform agenda, Harper petulantly decided not to make any more appointments, which started the clock on another slow-moving crisis in the operations of the Chamber.
When Justin Trudeau came to power, he had already disassociated himself from the existing Liberal senators, and planned to appoint senators on an independent basis. While that was all well and good, he could also be accused of a sort of benign neglect versus Harper's active disdain. He certainly has made it clear that he's more open to the Senate doing its job (unless it becomes a bit too inconvenient, such as pushing back against money bills), and that's where I think the differences that McCoy has highlighted have really stemmed from.
Whereas Harper employed his whip to keep his Conservative senators in line in defeating any amendments to bills that he pushed through the system, it didn't mean that bills got through unscathed, and in many cases, they had "observations" attached to them clues for the courts as to what to look for when it comes to any challenges to legislation (and there have been many a court challenge to those bills), which acted in the place of amendments that weren't able to get through because of the votes. Trudeau, with his public willingness to entertain amendments, has emboldened senators to make improvements to bills and send them back to the Commons. That the Senate is functionally more independent has had little to do with that change. Likewise, with timelines, if there is less resistance to amendments, it means that there is less time spent fighting them in the Senate, and bills can pass through the system more quickly.
The signals sent from the PMO, combined with the actors put into place as Government Leader in the Senate (or "government representative," as the current Leader is styling himself), have a great deal of influence on how the Chamber operates, which I think that McCoy is overlooking. The last three people to occupy that position Marjory LeBreton, Claude Carignan, and Peter Harder have all tried to subvert the Senate and its norms in their own particular ways LeBreton and Carignan with the whip-hand that never should have applied to the Senate, and Harder with his attempt to break the Westminster character of the Chamber in order to co-opt the independents to his own purposes. Simply not having senators in the national caucus rooms has its upsides and downsides, and having MPs try to cajole senators into passing bills so as not to make the perfect the enemy of the good something McCoy pointed to has been replaced by having cabinet ministers directly lobby senators whose favour they are trying to seek, offering to support their own pet causes in exchange for their support or votes on government bills. I'm not sure that this system is any better or worse than before, or that the influence that senators could have in the caucus room, especially when it comes to their function as parliament's institutional memory, is a better trade-off.
While yes, the cohort of independent senators has had a positive effect in terms of breaking the power duopoly that used to plague the Senate, it merely hastened some of the changes that have been started over the past several years, predating even the changes stemming from the Auditor General's report. That we have a new group of thoughtful individuals who are not simply people who have strong associations with the parties brings some fresh blood and insight into the deliberations and debates, but we shouldn't attribute all of the positive changes to their addition or to Trudeau's benign neglect. In fact, we should be cautious that steering a course for too much independence and too much separation from the political arena could set us on a course for technocracy and a diminution of the Westminster roles in Parliament, and that could have a greater destructive effect than the positive changes we've seen to date.
