Ever since the Auditor General issued his report on the Senate expenses, we have been waiting to see what kind of oversight mechanism the Senate would implement that would provide a better handle on the expenses of the Upper Chamber.  While Michael Ferguson was horrified by the fact that senators were making their own rules, and that senators were judging other senators, there was a complete disconnect with the realities of just how a parliamentary democracy operates.

Enter Senator Peter Harder, the Government Leader in the Senate err, "government representative," who wrote in Policy Options on Friday that he was all for the AG's recommendation of a completely external oversight committee to oversee those expenses, and if there were to be any senators that were part of that committee, that they should be in the minority.

Unlike Ferguson, Harder was able to mouth the words about retaining the Senate's ability to be self-governing, which on the surface seemed like a good thing.  But Harder then provided a number of examples to prove his point that demonstrated a clear lack of understanding about just how this works.

To begin with, Harder cites the Senate Ethics Officer as an example of independent oversight, whose judgment senators most recently were willing to listen to when it came to the findings of misconduct related to now-former Senator Don Meredith.  The hole in Harder's logic?  The Senate Ethics Officer is an officer of parliament and not an external body.  She reports to Parliament, and indeed to the Senate itself.  Indeed, the AG himself is also an officer of parliament, which is one of those process-related reasons why many Senators and MPs didn't want him to be the one auditing the Senate (or the House of Commons for that matter), because Parliament is his boss.  For them, they would have preferred an external organization doing the auditing where the lines of accountability were much clearer and more defined.

To bolster his case, Harder pointed to both the Independent Parliamentary Standards Authority that has been set up to oversee the UK's House of Commons, and the Australian Parliamentary Expenses Authority as examples of similar external oversight bodies in other Westminster democracies.  The problem, of course, is that things don't necessarily port well, even between Westminster parliaments, in large part because we each have different constitutional frameworks.  While both the UK and Australia have created a statutory authority as a solution to different perceived problems in their countries the UK most especially after the expenses scandal in 2009, a scandal which dwarfs what improprieties were found in the Canadian Senate (and a reminder that much of the Auditor General's report here was problematic and based on personal value judgments that would not have withstood the legal scrutiny of a court of law).

Add to that, there has been a definite shift in the UK to start moving "beyond" a system of responsible government, as evidenced by their Fixed Term Elections Act and the ways in which they are now voting on foreign policy as divorced from confidence votes things which have created no end of governance problems in their country that Canada should steer very clear of if we value our system of government.

While Harder may chide Canadian parliamentarians as apparently not being willing to adopt "modern governance practices," while also noting that he would want any independent oversight here to be done on the cheap (because that's a recipe for a good governance), he utterly ignores the key issue, which is maintaining parliamentary privilege.

"Senators must acknowledge that it is inappropriate for them to stand in ultimate judgment of their peers without a reasonable degree of transparency and independent oversight," Harder wrote, and he's half-right that this is an issue that requires transparency, but the degree of independence of the oversight is part of the problem.  Parliamentary privilege protects the Senate's ability to be self-governing, and that's part of a separation of powers issue that keeps the courts out of the legislature's domain and vice-versa.  A truly independent oversight body blurs that separation, and the protection of those privileges is what allows Parliament and most especially the Senate to discipline its own.  If we want the Senate to be able to punish its bad apples, then we need to ensure that its ability to do so isn't compromised by chipping away at those privileges with more "independent oversight."

Harder, of course, tries to be clever about this too, by proposing a compromise that the independent oversight body would not have binding authority over the Senate, but rather just recommend that the Senate vote on its findings.  But if that's the case, then why bother going through the charade of creating an independent body that is otherwise toothless?

If the Senate is looking for a model that allows a both a degree of needed oversight with an external view, but which won't compromise parliamentary privilege, then I would suggest that they return to the suggestion that Senator Elaine McCoy has been making since the beginning of the Senate expenses imbroglio, which is to look to the House of Lords' audit body.  McCoy's suggestion is that it be comprised of three senators, plus an external auditor and a former judge to arbitrate any disputes that arise.  Why the three Senators out of five are important is because it keeps it within the fold of the Senate and its privileges, while still keeping an external eye on the issues at hand, and wouldn't require the kinds of compromises that Harder doesn't seem to have fully thought through.

Ultimately, if one is looking to impose external oversight over our parliament, then we might as well declare that our 169 years of responsible government is a failure and hand power back over to the Queen, because it means that we ultimately can't be trusted to govern ourselves.  Otherwise, let's keep Parliament self-governing and demand better mechanisms for transparency that will drive accountability, which can be done without surrendering parliamentary privilege.

As Parliament is set to return next week, there is a state of flux with the group of independent senators as their nascent organisation prepares to undergo yet more change.  There will soon be a change of leadership for the Independent Senators Group as much as one can call it that which could have lasting repercussions for the whole movement towards Senate modernization.

A new name has been put forward for the role of "facilitator," being BC Senator Yuen Pau Woo, with Senator Raymonde Saint-Germain putting her name forward as deputy facilitator.  Former Liberal-turned-independent Senator Larry Campbell was first to declare his intention to run for the facilitator position after Senator Elaine McCoy said that she wasn't going to be running again for the job that she's held since the ISG was first formed as a "working group" looking to organize the new independent senators in order to ensure that their logistics and so on were taken care of without a caucus whip to handle that role (and ensuring that the government's senate team didn't co-opt them all out of the gate).

And it should be stressed that yes, logistical and procedural support is really the point of the ISG, before anyone asks why independent senators require any kind of leadership.  It's about working within the power structures of the Senate, and in my personal opinion, it should be trying to keep those structures within the Westminster model as closely as possible as I can only foresee disaster if we wound up with a chamber of 105 complete independents.

To that end, Senator McCoy has been spending her remaining time as facilitator in ensuring that there is a "Secretariat" in place in lieu of a caucus support system, with the goal that those staffers within said secretariat are working for the benefit of all members of the ISG as opposed to being for the benefit of the facilitator.  The kinds of support that they're supposed to offer range from getting information on current legislation from external sources, or legal analysis, and ensuring that it gets distributed to members of the ISG.  It's about helping with procedural matters, because procedure is very important in any parliamentary body but especially so in the Senate, where the rules have been set up in such a way as to give a great deal of power and latitude to individual senators so that they have the right to speak to every single piece of business on the Order Paper, and that they are not hidebound to caucus organization.  While caucuses are important in many ways, the Senate rules ensure that they alone don't determine how much power a senator has to speak and to which issues.

To that end, it's important that there be some procedural experts that the ISG members can draw upon (as there are only so many skilled staffers to go around), and the secretariat is ensuring that they have those supports in place.  Part of that means keeping track of what has been going on in the Chamber at all times, particularly when there are late night sittings, and translating what those procedural manoeuvres mean for the ISG members and their staff.

Coordination is another function that the ISG's secretariat is expected to play, not only with the logistical needs of independent senators around things like allocation of offices and parking, and coordinating the selection of senators to sit on committees since there isn't a whip's office to take care of those issues.  Most people don't appreciate the fact that in the Senate, a whip's role is less about counting votes than it is about ensuring that these sorts of issues get taken care of.  (As for the job of ensuring that any substitutions on committees for absent senators takes place, I'm not sure if this is something the secretariat plans to take care of, or if that is deemed the responsibility of the absent senator).

And then there is the business of the "scroll."  This is the term given to the Order Paper and the plans for how each day's sitting plans to play out, from which bills they plan to debate, and which senators plan to speak to them, so that each of the caucuses can plan effectively.  This is also where negotiation tends to happen between groups to come up with plans as to which bills they plan to prioritize and get through, and there has traditionally been some give-and-take that happens here.  That's been a bit more of a fraught consideration over the past couple of years with the arrival of Senator Peter Harder as the Leader of the Government in the Senate err, I mean "Government representative," and where some of the breakdowns occurred with certain bills that took longer to get through than was probably necessary, as there were times when Harder didn't feel the need to negotiate, and other times where his deputy, Senator Diane Bellemare, would force an issue and undo some of the cooperation that had been building around certain bills.  And this again is one of the places where the ISG will play a role, in ensuring that its members have that coordination in terms of planning who is looking to debate which bills and when.

The ISG is planning a summit on the 25^th, where they will hold their elections for the facilitator positions, as well as looking to identify their priorities for the fall sitting.  It's likely where we'll get a better sense of where they plan to move as a group, whether that group is cohesive or not (and yes, this is a very real issue as the new rules are also soon to come into effect where any group of nine senators will be able to form their own caucus groups, which could splinter the ISG as it is set to become the largest caucus in the chamber), and just how much the new direction of the ISG will respect the Westminster character of the institution or not.