Over the weekend, I was on a panel at the Manning Centre networking conference in Ottawa on the Senate, where the question was asked how independent the institution is and how independent it should be.  It's a question that everyone is grappling with as institutional change is underway, and it's one that we should be discussing as further reforms to the way in which the Upper Chamber operates are being contemplated by its membership.

To start with, the question of how independent is the institution?  Well, given the fact that the government currently has little sway over how its agenda is getting through in a timely manner, it's far more independent than it has been for the past several years.  It's certainly more unpredictable, which is part of the changing nature of its independence.  And certainly, part of that level of independence and unpredictability is because the current prime minister has given space for the Senate to flex its muscles, and by signalling a willingness to entertain some amendments to legislation (but not all to the point that the government may have overplayed their hands a little when it comes to their dismissing proposed amendments to the budget implementation bill) the Senate has responded in kind.

The point was made by my co-panellist, Conservative Senator Denise Batters, that the new Independent senators have voted with the government some 95 percent of the time, which in her estimation makes their independence suspect.  This is one of those statistics that I did and will continue to refute that in the calculation of many senators, the final votes are not what is to be measured (because the defeat of legislation that was passed by the House of Commons should be a rare occurrence and used done in rare circumstances), but rather it's the quality of the interventions leading up to those votes.  Senate debate is far more substantial than we see in the Commons.  Even in the days of a far more partisan Senate, it was still the case to see far more thoughtful and engaging questions, particularly at committee.  Because of this, it's often the records of Senate debates and committee testimony that the courts will turn to when they are trying to decide on what Parliament intended when it comes to trying to interpret legislation and creating jurisprudence.  And as time goes on, and those new Independent senators get a better sense of their place in the way things work, I'm sure we'll see the votes start to diverge a little more often, but again, we should retain the caution that the Senate shouldn't be in the business of defeating legislation on a regular basis.

While my other co-panellist, former Mulroney speechwriter and current publisher of Policy Magazine, L. Ian Macdonald, made the point that because of the Supreme Court of Canada's decision in the reference case on Senate Reform, we won't get the kind of Triple-E Senate (Elected, Equal, and Effective) Senate that reformers like Preston Manning had hoped for without a constitutional amendment that nobody wants to contemplate, he did talk about how the process for the medical assistance in dying bill was a shining moment for the "new" Senate, and what he would like to see more of going forward.  And I did make the point that this particular piece of legislation was unique because it was both a particularly moral issue, and one that crossed party lines an issue that touched the lives of all senators regardless of their political affiliations, and that gave them a different perspective that came through in those particular, unique deliberations.

A question from the audience came as to what kind of Senate each of us would like to see if we had the power to enact it, and this is a question that I have given some thought to, particularly in my book The Unbroken Machine, but also in what I've been writing in this space for the past few years.  And if I had my druthers, I would say that the Senate should largely remain as it is, but with some of the actions of the current prime minister unwound a little.  I do believe that we should have both a Liberal and Conservative presence in the Senate, as well as a healthy contingent of crossbench Independent senators who will keep the balance of power in check so that neither party is tempted to excuse the sins of the other because they would be in power next if they were not currently.

But I do think that it needs to be reiterated that Justin Trudeau's decision to evict his senators from his caucus did both his party and Parliament as a whole a great disservice in his zeal to jumpstart reform.  Because senators are the institutional memory of Parliament, his excising that needed perspective from his caucus weakened his own party (and strengthened his own centralizing power grab as party leader).  It robbed his caucus of regional perspectives where the party is not well represented by MPs, and it created the situation where ministers have to lobby individual senators for votes, where favours are traded in secret rather than in a caucus room where they are witnessed by the rest of the members.  And where the Liberal senators were before the expulsion was that they attended caucus but were not whipped by them an ideal situation that should be the norm (and indeed, should have been practiced by the Conservatives, who were regarded as more backbenchers for the PMO to try and push around when they were in power).  Institutional independence was there, but the interplay between the chambers was stronger and more transparent.

And why I think this particular vision needs to be reiterated is because there is a growing swell within the Independent Senators Group to reform the rules in order to excise the government and opposition dynamic while using the cover provided by Government Leader in the Senate err, "government representative" Senator Peter Harder, that there is enough versatility in the Westminster system to make this change without actually acknowledging the local contexts of those variations on the system.  And because the Conservatives in the Senate have been using a great deal of procedural gamesmanship to stall and delay certain bills, it's pushing these Independents toward that position that I think is untenable for the system going forward.  The coming year, as more appointments fill the Senate ranks and the Independents get closer to a true majority in the Chamber, will have the potential to see a great deal of damage to the institution, which is why we should have more discussions about the future vision of the Upper Chamber.