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.

Last week, Conservative leader Andrew Scheer released what he termed as the "first plank" in his economic policy since becoming party leader, and it was, in a word, tepid.  A tax credit on parental EI benefits was just the kind of feel-good policy that seeks to buy the affections of the suburban ridings that the Conservatives desperately need to win back if they hope to form government in the next election, but never mind the fact that it wasn't anything that would help lower-income families or those with a stay-at-home spouse who wasn't contributing to EI in order to get those benefits.  But optics!

And it was optics that are precisely behind Scheer's decision to cast this policy into legislation by means of a private member's bill.  By putting his "signature" policy into legislation, it makes him look to the uninformed bystander that he's trying to take action on it before he's in government, and it creates an opportunity to force the government to either accept or reject it, which Scheer can then spin either way it goes that he's pushed the government to adopt his policies, or that they've rejected it because they hate families, and therefore you should vote for his party the next time around.

Add to that, a tax credit is not only the kind of economic policy that the Conservatives loved to put forward during their time in office, where the Tax Code has become so bloated with them that accountants across the nation curse their names, but it's also the kind of thing that an MP can introduce in a PMB without having their legislation be rendered non-voteable because it would require a Royal Recommendation.  It's a particular loophole in the rules of the House of Commons that Scheer is cynically exploiting, and one that MPs should close if they cared about how Parliament is supposed to function.

According to the rules, and in the norms of a Westminster system, only a government can propose legislation that requires spending, while it's the job of MPs both opposition and backbenchers on the government side to hold them to account for that spending, and who can either grant them or deny them that spending.  It's part of what keeps the system accountable if all things were equal.  But they're not.  The loophole in those rules is that MPs who aren't in the government can propose measures that will reduce the amount of tax that a government takes in.  It purports to say that they're not actually proposing new spending, but reducing revenue even though a tax credit is actually an expenditure from the treasury, a distinction that I find to be too cute by half.

The Conservative government of Stephen Harper had become so enamoured with tax credits that the Auditor General took a look at the broader category of tax expenditures (which includes credits, deferrals, deductions, and exemptions) in his Spring 2015 report, and found that the 140 different tax expenditures on the books, which could be worth tens of billions of dollars, were not adequately tracked by the Department of Finance in a manner that that supports parliamentary oversight.

"This finding matters because a properly designed tax expenditure report is critical to provide parliamentarians and Canadians with comprehensive and consolidated information on tax expenditures and what these expenditures are accomplishing," AG Michael Ferguson wrote in his report.  "In our opinion, Parliament requires comprehensive and consolidated information to effectively exercise its oversight of tax-based expenditures and understand total government spending."

Tax expenditures are excluded from the expenditure management system, and are not reviewed by parliamentarians.  He also noted that they had no way of tracking to see if all of those specialized credits, whether they're for things like mining exploration, or children's physical fitness, were actually did the job that they were supposed to do.

This particular problem surfaced during testimony of a different private members' bill earlier this parliament, Bill C-240, which sought to create a tax credit for people who took first aid training.  At second reading, the government recommended voting it down because it defeated the point of tax simplification, but Liberal backbenchers voted against the cabinet and passed it to committee.  There, expert testimony pointed out that it wasn't likely to have a very big effect on getting more people to sign up for training and recommended that the bill not be proceeded with.  The Commons later voted in favour of the recommendation, and the bill died.

Scheer's bill suffers from this same problem it's a nice sentiment, but it doesn't do much for people who actually need the credit, and it needlessly complicates the tax code in order to look like it's doing something when its effect is of limited utility.  If MPs were serious about both their desire to keep a watchful eye on the public purse, as is one of their main duties under the Westminster system, and if they were serious about things like tax simplification or even evidence-based policy, then they would amend the Standing Orders in order to close this loophole that allows them to propose these tax credits willy-nilly.

But they won't.  It's too tempting to propose more tax credits in order to make it look like they're taking an issue seriously, or to start pushing policies for when they plan to form government, like Scheer is doing here.  The concern that MPs aren't doing their actual jobs of holding government to account or guarding the public purse is a very real one, because nowadays, many MPs see themselves as being there to champion causes that are dear to them and what better way to champion a cause than to offer it a tax credit?  If we want our Parliament to get back to its proper meaning and function, then we should close this loophole, and let MPs focus on their real jobs.