As Justin Trudeau's grand project of a more independent Senate rolls along, the nature of that independence has never really been defined.  For a body of Parliament that already had institutional independence, a move by the prime minister to further take partisanship from the equation whether in the hopes of distancing himself from any of the Senate's actions on an ongoing basis, or in a sincere but naïve hope that 105 loose fish will always do the right thing was a gamble that is already proving to be a headache, and one that won't go away.  But for these new Independent senators who have been thrust into this new role with little in the way of mentoring, and not a lot of group cohesion to guide them as to what they should be doing, it's been an interesting sociological project to observe.

In recent weeks, we've seen the Government Leader in the Senate err, "government representative," Senator Peter Harder, openly muse about how he perceives the role of the institution and what he feels its constitutional function should be, and with his various proposals around the "Salisbury Convention," or insisting that the Chamber should not be a rubber stamp while at the same time enumerating all of the ways in which it should be just that.  This has all happened in the wake of his inability to do his own job of negotiating timelines or counting votes, which taints the exercise more than a little bit.

I recently acquired a letter that Independent Senators Group's "Liaison" (the administrative equivalent of a caucus whip, but without the actual whipping of votes) wrote to his caucus colleagues regarding his reflections on the constitutional role of Independent senators.  Within the letter, some of what I read was not surprising at all, but what did strike me was the depth of the trepidation that he and one assumes other Independent senators feels around the votes they cast, and how government bills are handled.  Given the drama over C-45 a few weeks ago, one has to wonder if these senators aren't feeling an added bit of pressure over it.

In particular, Gold writes that if government bills are defeated because Independent senators can't muster enough votes to support them, the critics of the prime minister's new appointment process will conclude that his experiment has failed.

"This would have the effect of delegitimizing the modernization project of creating a more effective, independent, and less partisan Senate," Gold writes.  "Indeed, it would delegitimize the institution of the Senate itself, already vulnerable to the criticism that it is an unelected, antidemocratic institution."

And while he's right that it would cause a stir particularly if they fail to pass a bill without sufficient cause or explanation as to why the bill deserved to be defeated I'm not sure that it would be so catastrophic, particularly if it failed by way of a simple screw-up with the counting of votes.  It would, however, demonstrate that there continue to be organization challenges within the institution, and that in turn would invite a tighter grip by those charged with ensuring that bills are passed, meaning it would likely mean more powers being given to Senator Harder (though one could point out that it would also be his failure because it would really show that he hasn't been doing the job required of him, which involves negotiation and indeed, counting votes).  And they would likely get a pass if it happened once but only once.

While Gold's letter goes on to espouse some of the points that Harder pointed to in his position paper, particularly around the Salisbury Convention, Gold makes the point that independence doesn't mean that senators should vote based on personal values or policy preferences, nor be given free rein to campion their own causes no matter how virtuous they find them.  And while he insists that there are no hard and fast rules, I'm not clear by what criteria these senators should be debating or voting that absent the kinds of enumerated values of whether a bill infringes on individual or minority rights, or disproportionately compromises the rights of regions or other levels of government, that it means that bills should be passed without question.

Gold's second point echoes Harder's point about senators not substituting their judgment for that of the courts when it comes to constitutional issues that are not black and white, which again, I am a bit troubled by given how many credible and experienced lawyers there are in the Senate's ranks.

"Where the government's choices are reasonable and based upon credible evidence, where its constitutional position is supported by impartial and distinguished academic analysis, and where the government received an electoral mandate to enact the bill in question, the Senate ought to defer to the policy decisions of the elected House of Commons," writes Gold.

I have a bit of an issue with this because we went through ten years of a government that would push the constitutional boundaries of criminal justice bills in particular, content to push them when they got an analysis that they had a ten or fifteen percent chance of being found constitutional, and no doubt, they could produce some academics who would give them the analysis on that very issue, while also proclaiming that they were part of electoral promises to get tough on crime.  These bills were nevertheless struck down repeatedly by the courts many indeed are still being challenged and probably should have faced much more pushback in the Senate than they did.  And yet here we are today.

So while I take some issue with these points of Gold's, I am more struck by the absences in the letter than what he had to say.  In particular, there was nothing about the Senate's or indeed Parliament's role when it comes to holding government to account, which I will stress is the very existential function of the institution.  Likewise, there was nothing about the need to provide a challenge function to these bills, whether or not they are part of the government's electoral platform (which is a metric that is even dicier if we were in a minority parliament).  In that respect, I found the letter to be an exercise in very narrow introspection, looking only at one aspect of their role rather than how it fits into the greater parliamentary whole.  And while he did outline the nervousness that these senators are feeling around ensuring that government bills get passed so that they don't feel they've caused a constitutional crisis, I think that simply justifying passing bills for the sake of passing them starts to diminish the purpose of the Senate, or the fact that they have the powers they do for a reason.  It's not a debating society, and I hope that the ISG can get their heads around that notion sooner than later.