Why a more independent Senate is working better for Canadians

Elaine McCoy, QC has been an independent senator from Alberta since 2005, and is the first senator to hold the position of facilitator (leader) for the Independent Senators Group.

Three and a half years ago, Justin Trudeau decided to ensure that Canadians “have a Parliament that works better for them.” That’s what he said in his letter to the Speaker of the Senate on Jan. 29, 2014, when he formally announced that senators were no longer members of his Liberal national parliamentary caucus.

Fast forward to Jan. 25, 2016. A brand new advisory board is created for the sole purpose of vetting applications from Canadians who want to serve as independent senators. Within weeks of that announcement, a handful of Liberal and Conservative senators abandoned their former caucuses and joined other senators who had been sitting as independents for some years. They called themselves a “working group,” and formally launched the Independent Senators Group (ISG) in June 2016 after six newly appointed senators joined them. Today, the ISG is comprised of 35 senators and, with the likelihood of the appointment of more independent senators, it will soon be the largest parliamentary group in the Senate.

The question is: do Canadians now have a Parliament that works better for them? I say yes—yes we do. And two simple statistics have emerged to prove it.

Firstly, we are amending almost four times as many government bills as ever before in the past four decades. In the current Parliament, 25 per cent of all government bills that received Royal Assent were amended in the Senate. In the previous 10 Parliaments, only 7 per cent of such bills were amended—a significant increase.

Consider, for example, the case of Bill C-6, which brought about important changes to the Citizenship Act. Senators saw that the bill failed to meet fundamental standards of natural justice. We therefore proposed an amendment to allow people to bring their case to court. Our position was later mandated by the courts, effectively highlighting the Senate’s critical role as a review body. To their credit, the House of Commons also agreed with us, and the government—which controls the House—concurred. The new law now contains provisions to ensure natural justice.

An increase in the number of amendments in the Senate emphasizes the fact that we are now more frequently examining legislation separately from the theatre of the House of Commons (and the peer pressure that national caucuses, with their preponderance of MPs, can exercise on senators every week). True “sober second thought” tends to suffer when political strategy is the paramount priority. My personal experience over the past 12 years underscores this point. How many times did I hear in committee, or in the hallways, or during the lead-up to a vote in June: “Don’t let the perfect be the enemy of the good?” Colleagues would pressure all of us, in caucus and out, to desist from putting amendments forward on the grounds that the minister would kill the bill rather than accept any changes. And most of us eventually acquiesced, especially after standing up on several amendments that were defeated by demoralizingly large majorities. Many a statute was passed that lacked the full benefit of the thoughtful insights and expertise offered by senators.

The way to measure the Senate’s effectiveness is not to tally final votes and see how many bills we defeated. Instead, we must look at the quality and quantity of amendments to see how the Senate refines and enhances legislation. These kinds of interventions represent crucial checks and balances on our parliamentary democracy. Contrary to what some pundits have suggested, the Senate is not looking to overturn the decisions of the elected chamber. We only seek to improve them.

The second statistic is illuminating, too. Many pundits—and even the government’s representatives in the Senate—are fond of claiming that senators employ delay tactics in a deliberate attempt to frustrate government legislation. In particular, they warn that without the cohesion of partisan caucuses, more independent senators will jam up the legislative process, stalling bills with protracted and unfocussed debate. They may be surprised to learn that the current Parliament has so far revealed quite a different picture.

On average in the current Parliament, government bills that have received Royal Assent have only spent around 40 per cent of their time in the Senate, compared to 60 per cent in the House of Commons. That means that the Senate is reviewing and passing legislation in a shorter time frame than the House of Commons. Some bills that have been controversial or problematic have been subject to more extensive scrutiny in the Senate but overall, bills are passing through the Upper Chamber at a relatively expeditious pace.

Again, because the House of Commons is basically controlled by the government, this statistic is encouraging. The point I’m making here is not that we’re quicker than in previous Parliaments—nobody bothered to gather that data before—but that we are clearly operating within a time frame in the Senate that is shorter than the government itself established for its own legislation in the Lower Chamber. Even with the addition of more independent senators, then, we are providing reasoned and robust reviews of government legislation without bogging down the work of Parliament or unduly slowing down the machinery of government.

So here we are in 2017, the 150th year of the Senate of Canada, and early indications are that it is, in fact, working better. The Senate, after all, was designed to be neither a rubber stamp nor a parking lot, and that’s a good thing. Canadians don’t want a perfunctory parliament that passes laws by robotic routines that take forever to finish.

Of course, we continue to look for ways to serve Canadians better in the future. There are certainly opportunities for us to make our work more efficient and transparent. I particularly like Sen. Stephen Greene’s idea of a “super scroll meeting” between all groups in the Senate. This initiative, which would change the rather ad-hoc way that the Senate’s daily business is “planned,” would move legislation through the chamber in a more timely and sensible fashion by determining Senate business collaboratively, transparently, and well ahead of time.

Whatever we do, however, the Senate should strive to be an independent house that is separate from the political arena of the House of Commons, calmly reviewing legislation in a thorough and substantive way, as Sir John A. Macdonald once imagined. Together, they make a Parliament that works better for Canadians.

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