As the final days of the 42ndParliament countdown to dissolution, the Leader of the Government in the Senate – err, “government representative,” Senator Peter Harder, released a “progress report” titled Toward an Independent Senate. In it, Harder touted all of the supposedly great things that this newly “independent” Senate was accomplishing for Canadians, like amending bills and reducing partisanship because the majority of senators were no longer whipped by the main parties. And to be sure, there was a lot of back-patting for the great and inventive ways that Harder and his office had to use in order to shepherd government bills through the Chamber without a government caucus to rely upon. The problem with this report? That it’s one giant smouldering garbage fire.
Harder has long suffered from a few conceptual problems of what the Senate is and represents, and has been compounded by an overreading of what was meant by “independence” of the institution in the Supreme Court of Canada’s 2014 reference on reforming the Upper Chamber. His praise that the new organization of the Senate, where there is no effective government caucus, has “allowed the Senate to remain free from inappropriate executive influence,” is dubious at best. There is and always has been a role for the executive in the Senate by way of the Government Leader’s office, which was a conduit by which the Senate’s concerns could be made to Cabinet, and by which the Senate could get accountability from Cabinet. Obliterating that model didn’t help Parliament in the slightest.
Harder’s arrogance about the quality of the appointees under the new system is felt when he praises the variety of backgrounds that new Senators come from, which includes “former judges and police commissioners, educators and authors, public servants and human rights advocates, as well as banking executives, an art curator and a Paralympic athlete.” This very same diversity was present in the “bad old days” as well, and the Senate was more diverse in all other respects – gender, linguistic, ethno-cultural – than the House of Commons because it was easier to make these kinds of appointments than it was for them to get elected owing to some of the structural discrimination that exists within the country. But you would never know it based on Harder’s back-patting.
Harder puts forward the false notion that “a principal legislative role of the [Government Representative Office] is to find sponsors for Government bills based on their expertise and support of the policy.” This is not only wrong, but it’s harmful to his own notion about an “independent” Senate. Having Independents sponsor government bills co-opts them, and makes them de facto government members, while ensuring there is no proper accountability to Cabinet. He also makes the bizarre claim that the GRO’s role is to not only represent the government’s views, but the Senate’s views to the government – all while insisting that he is still “non-affiliated.” In other words, half-pregnant.
Harder touts that the increase in lobbying of senators reflects how much more in touch they are with the community, and that it’s a great thing that they could bring forward those ideas to debates – without acknowledging that it’s because the lobbying community has realized that a more empowered Senate creates more uncertainty and they need to try and convince more people of their cases. It’s a mere change in strategy – not that the Senate is connecting with Canadians better.
Harder further goes on to take credit for changes in the transparency of the Senate, and the various rules changes that long predated him when it comes to the new Ethics code, the proactive disclosures, and even the decision to televise proceedings (which they delayed to the move because of infrastructure limitations in the original Chamber in the Centre Block). And yet Harder uses all of it to demonstrate how great things are in the “new” Senate despite the fact that it was all measures that were taken in the “bad old days.”
And then come the recommendations, which are brain-melting in their own particular ways. To start with, he again makes the call for recognition of the Salisbury Convention in the Canadian Senate, which is both wrong, ahistorical, and contrary to the constitution. He calls for the creation of a business committee – which is ironic, considering that in another part of the report he praised the fact that they didn’t use time allocation (because he doesn’t have the votes to pull it off), but a business committee is time allocation. And it’s about time allocating all Senate business, while letting himself off the hook for managing timelines of government bills, or from negotiating with the other caucuses in the Senate. He also laments that the audit committee was not fully implemented, which was in part because he had been pushing for a fully external committee that is objectionable for the simple fact that the Senate is a self-governing Parliamentary institution and not a government department.
He demands change to the Parliament of Canada Act to get rid of the Government/Opposition dynamic which is at the core of the Westminster system (and no you can’t claim that the territorial assemblies of Nunavut and the Northwest Territories as justification). He also proposes that the independent appointment process be cemented in legislation, which is essentially an attempt to bind the government’s constitutional prerogatives, inviting constitutional challenges, but it’s also useless – a future government could simply repeal that legislation and carry on with the appointment powers under the constitution.
Finally, Harder demands that there be changes to the rules to prevent delays to private members’ bills – which is again, objectionable because it means time allocating them, and that’s especially bad both because it gives said bills more deference than they are owed in Parliament, and because we lived through a decade where the Conservatives used these bills to push government business with less scrutiny and to play mischief with the opposition when it comes to free votes. Changing the rules to allow for these bills to be speeded through invites further abuse.
Nothing in the report is too surprising, but the praise being heaped upon it by the Independent Senators Group is disheartening because it means that they’re still not learning the right lessons about their own jobs. Harder is a bad actor, and this report proves it – and he needs to be called out before he causes further damage to the institution.
Photo Credit: The Canadian Club
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