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.

It's becoming a bit of a trite comeback on social media, whenever certain Conservative senators express their displeasure at some Liberal policy or other, to remind them that they only promised to serve eight years.  "It will be a shame losing your thoughtful contributions in the Senate when you resign as promised this August," Rob Silver tweeted to Senator Linda Frum the other day over an issue they were sniping at one another about.

When the Hill Times ran a story about the eight-year promise a few weeks ago, a number of those Conservative senators insisted that this promise was apocryphal at best, or a media fabrication being used to attack them at worst (never mind that other Conservative senators acknowledged that they made such a promise and some of them still insisted that they may yet live up to it).  Others still said that while they may have made the promise at the time, it was with the understanding that Stephen Harper was going to legislate term limits something that he attempted to do on a number of occasions but was blocked, and the whole notion was shot down entirely by the Supreme Court of Canada in their Senate reference decision that stated that it wasn't something that Parliament could do on its own, but rather that it would require the constitutional amending formula of seven provinces representing more than fifty percent of the population.  With those legislated term limits no longer on the table, those senators no longer feel bound by that promise because it places them on an un-level playing field with other appointees, or so the logic goes.

The romance with term limits in the Senate is one that hasn't really gone away, and it seems to be predicated on a number of different things.  For one, there are prime ministers who have made very young appointments to the Senate, and when you think that there are still a couple of senators still sitting, for better or worse, that were appointed by Pierre Trudeau in the early 1980s, it sets a few people's sensibilities on edge.  For others, it's a stepping stone toward the dream of an elected Senate, where you have term limits that are either renewable or not (there is no uniformity on how they want an elected upper chamber to operate), which means that the debate around term limits seems to be predicated on this distinction.

During the Harper era, a variety of proposals were put forward that suggested terms that were in the eight-to-ten-year range, but non-renewable (at least at first), which is partly where the promise stemmed from.  Part of the problem with those term limits and far more with eight-year limits, but still as much with ten-year limits is that a prime minister with back-to-back majorities can essentially turn over the entire population of the chamber, which is hugely problematic when it comes to having the chamber serving an accountability function, or its ultimate function of being a check on a prime minister with a majority government.  While twelve-year terms are probably the bare minimum that would be acceptable from that particular perspective, it ignores some of the other reasons why we have a chamber that operates with its tenure appointments.

When the Senate was first created, appointments were for life, which was changed to age 75 in 1965, owing in part to longer life-spans than in 1867.  Age 75 is also the mandatory retirement age for judges and other senior positions, so it's consistent in that regard.  Why this length of tenure to a mandatory retirement age is important is because it's part of creating the chamber's institutional independence.  The Senate needs the ability to speak truth to power, and to stand up to prime ministers with majorities in the House of Commons, which is why it's virtually impossible to fire a senator without their first having been convicted for a major criminal offence, or as we saw recently with the Don Meredith imbroglio, a major ethical breach that the rest of the Senate agrees was heinous enough to warrant declaring their seat vacant.  In such a case, it's also an important distinction that it's the Senate itself that vacates the seat by means of internal discipline rather than the Prime Minister and cabinet giving the order, because doing so would mean the check on their power is worthless.

Where the mandatory retirement age becomes important is because the security of tenure is another way to keep Senators from feeling pressure to bow to the will of the government.  A senator know knows there are term limits would be far more likely to try and curry favour with the government to either try to get re-appointed, if terms were made renewable, or the more likely scenario, of trying to curry favour in order to get another appointment once their term is up, be it to a diplomatic posting, or to head an administrative tribunal, or any number of other Governor-in-Council appointments that the PM and cabinet do have a say over.  And that's why age 75 is a magic number because any of those other posts tend to be ruled out by that point as well.  Which isn't to say that we haven't seen examples of sitting senators lobbying for other appointments, because we absolutely have (though in the examples I'm aware of, they never did get the posts they lobbied for), but the incentive is no longer there to make it something relatively necessary.

When it comes to any promises of eight-year terms that any of these senators may have made to Stephen Harper upon appointment, we should consider them null and void for the very reason that such a promise was unconstitutional.  Stephen Harper's reform plans may have seemed high-minded at the time, but were in practice a continued assault on the independence of the upper chamber, along with his mass appointments and the brandishing of the whip to those new senators.  Any insistence on holding senators to those promised limits is tacit endorsement of that assault, regardless of how you feel about those senators. 

It's becoming a bit of a trite comeback on social media, whenever certain Conservative senators express their displeasure at some Liberal policy or other, to remind them that they only promised to serve eight years.  "It will be a shame losing your thoughtful contributions in the Senate when you resign as promised this August," Rob Silver tweeted to Senator Linda Frum the other day over an issue they were sniping at one another about.

When the Hill Times ran a story about the eight-year promise a few weeks ago, a number of those Conservative senators insisted that this promise was apocryphal at best, or a media fabrication being used to attack them at worst (never mind that other Conservative senators acknowledged that they made such a promise and some of them still insisted that they may yet live up to it).  Others still said that while they may have made the promise at the time, it was with the understanding that Stephen Harper was going to legislate term limits something that he attempted to do on a number of occasions but was blocked, and the whole notion was shot down entirely by the Supreme Court of Canada in their Senate reference decision that stated that it wasn't something that Parliament could do on its own, but rather that it would require the constitutional amending formula of seven provinces representing more than fifty percent of the population.  With those legislated term limits no longer on the table, those senators no longer feel bound by that promise because it places them on an un-level playing field with other appointees, or so the logic goes.

The romance with term limits in the Senate is one that hasn't really gone away, and it seems to be predicated on a number of different things.  For one, there are prime ministers who have made very young appointments to the Senate, and when you think that there are still a couple of senators still sitting, for better or worse, that were appointed by Pierre Trudeau in the early 1980s, it sets a few people's sensibilities on edge.  For others, it's a stepping stone toward the dream of an elected Senate, where you have term limits that are either renewable or not (there is no uniformity on how they want an elected upper chamber to operate), which means that the debate around term limits seems to be predicated on this distinction.

During the Harper era, a variety of proposals were put forward that suggested terms that were in the eight-to-ten-year range, but non-renewable (at least at first), which is partly where the promise stemmed from.  Part of the problem with those term limits and far more with eight-year limits, but still as much with ten-year limits is that a prime minister with back-to-back majorities can essentially turn over the entire population of the chamber, which is hugely problematic when it comes to having the chamber serving an accountability function, or its ultimate function of being a check on a prime minister with a majority government.  While twelve-year terms are probably the bare minimum that would be acceptable from that particular perspective, it ignores some of the other reasons why we have a chamber that operates with its tenure appointments.

When the Senate was first created, appointments were for life, which was changed to age 75 in 1965, owing in part to longer life-spans than in 1867.  Age 75 is also the mandatory retirement age for judges and other senior positions, so it's consistent in that regard.  Why this length of tenure to a mandatory retirement age is important is because it's part of creating the chamber's institutional independence.  The Senate needs the ability to speak truth to power, and to stand up to prime ministers with majorities in the House of Commons, which is why it's virtually impossible to fire a senator without their first having been convicted for a major criminal offence, or as we saw recently with the Don Meredith imbroglio, a major ethical breach that the rest of the Senate agrees was heinous enough to warrant declaring their seat vacant.  In such a case, it's also an important distinction that it's the Senate itself that vacates the seat by means of internal discipline rather than the Prime Minister and cabinet giving the order, because doing so would mean the check on their power is worthless.

Where the mandatory retirement age becomes important is because the security of tenure is another way to keep Senators from feeling pressure to bow to the will of the government.  A senator know knows there are term limits would be far more likely to try and curry favour with the government to either try to get re-appointed, if terms were made renewable, or the more likely scenario, of trying to curry favour in order to get another appointment once their term is up, be it to a diplomatic posting, or to head an administrative tribunal, or any number of other Governor-in-Council appointments that the PM and cabinet do have a say over.  And that's why age 75 is a magic number because any of those other posts tend to be ruled out by that point as well.  Which isn't to say that we haven't seen examples of sitting senators lobbying for other appointments, because we absolutely have (though in the examples I'm aware of, they never did get the posts they lobbied for), but the incentive is no longer there to make it something relatively necessary.

When it comes to any promises of eight-year terms that any of these senators may have made to Stephen Harper upon appointment, we should consider them null and void for the very reason that such a promise was unconstitutional.  Stephen Harper's reform plans may have seemed high-minded at the time, but were in practice a continued assault on the independence of the upper chamber, along with his mass appointments and the brandishing of the whip to those new senators.  Any insistence on holding senators to those promised limits is tacit endorsement of that assault, regardless of how you feel about those senators.