Mr. Speaker, I want to turn to this very interesting motion put before us by the member for Toronto—Danforth. His motion reads:
That, in the opinion of this House, urgent steps must be taken to improve accountability in the Senate, and, therefore, this House call for the introduction of immediate measures to end Senators' partisan activities, including participation in Caucus meetings, and to limit Senators' travel allowances to those activities clearly and directly related to parliamentary business.
When I read the motion, I was put in mind of a very good book with which the hon. member for Toronto—Danforth will be familiar. Albert Venn Dicey's book Introduction to the Study of the Law of the Constitution in which one does not figure out what it is about until one gets to the last word of the giant title. That is a bit of what is going on here. When we actually go through this very long motion, we are really talking about, first, senators should not, according to the motion, participate in caucus meetings; and second, senators' travel allowances should be limited to activities clearly and directly related to parliamentary business.
This is a small part of a larger question relating to the whole issue of Senate reform, or potentially Senate abolition as the New Democrats would favour. I want to deal with it in that context. Let me start by dealing with the travel issue that is proposed in part of the motion. Then I will deal with the suggestion about participation in caucus meetings, which, whether it was intended or not, does have the unavoidable consequence of involving some significant institutional/constitutional questions. Perhaps that was not the intention of the member, but that is the consequence of what he has done. I think those larger implications have to be addressed intelligently before we vote on this issue.
Starting with the whole travel allowance issue, the reason it was initially suggested that I participate in this debate is the fact that I am notorious for my very limited travel. In the last decade or so, I have repeatedly been either the bottom or the second from the bottom in terms of travel expenses. I was 308 out of 308 last year and this is something that happens year after year. I did a good annual report to my constituents, by the way, in which I outlined my expenses. My travel budget in 2006-07 was substantially below the average. My travel outside the constituency was $1,100 versus an $85,000 average. In 2008 my travel outside the constituency was $5,300 versus an $83,000 average. In 2009 my travel was $5,900 versus a $107,000 average.
Of course part of the reason for that is that my riding is fairly local. Another reason is that I take care to have my staff look for the least expensive flights when I do have to travel to keep things under control that way.
I also make it a habit of trying to keep my entertainment expenses as low as possible. This year they were $0, also making me 308 out of 308 in the House of Commons. As a result Terry Milewski referred to me as the “king of the skinflints”. He also complained that the Prime Minister only spent $29, so it takes work to be the king of the skinflints with a prime minister who is as frugal as that.
One of the things I would point out is that the issue of travel expenses is really not a Senate issue. It is an issue that relates to us in our function as parliamentarians. The report that is made about me and all MPs is made in our capacity as members of Parliament and is made to the House of Commons, and as Speaker of the House of Commons, to you. Therefore, I am not sure we are in a position here to probe too deeply into the internal rules that govern the Senate in this regard.
If we were to do so, sooner or later we would probably find ourselves bumping up against this document, the Senators' Travel Policy, which was adopted by the Senate Standing Committee on Internal Economy, Budgets and Administration on May 10 of last year. It is about a 30-page document with several appendices, including forms to fill out. It explains the rules on the purposes of travel. There is a 64-point travel system, which should sound familiar to members of Parliament, in section 2.7 of this manual. This includes a variety of different subsections, including a travel expense claim form that must be filled out. A senator who is travelling has to list the purpose of his or her travel on that form.
It states at section 2.7.3 that:
Senate resources shall not be used to fund travel that is incurred to pursue the private business or personal interests of a senator or alternate.
Therefore, to some degree the rules already exist. It may well be that there is a need for change to improve them. I am fully willing to accept that, and I gather the Senate is too, because there have been several tweaks to that policy since it was adopted in May 2012. However, the rules already exist in some form or another.
We examined somewhat and discussed what is happening in the Senate in the case of certain senators. We were discussing whether or not the rules were simply violated, and perhaps even egregiously, but not whether there is an absence of a rule that effectively states that senators' travel allowances be limited to, as the motion states, “those activities clearly and directly related to parliamentary business.” I think the rules already contain a version of that requirement, so I am not sure we are crossing some great divide in what we do here.
However, these are Senate rules. They pertain to the Senate and were adopted by the Senate. I suppose we can give them advice on what to do, but in the strictest sense it is beyond our jurisdiction. That is something I wanted to draw attention to.
I want to talk a bit about the broader issue of Senate reform. The reason I want to do this is because there are two substantive parts to the motion, the travel allowances part and, as it states here, a part that proposes to end the participation of senators in caucus meetings. Here we are moving into something else, which is a very substantial constitutional question of whether Senators should be non-partisan or outside of the partisan structure and, if so, how we enforce that, if we can enforce it.
Let me dwell on that a bit. The debate that has occurred in many countries that have senates is that an upper house in a federal system tends to be a senate that is seen in some respect as being a states' house, a cantons' house, a house of the Länders, to use the German term, or a provinces' house. In Canada we discussed that as a possibility, but it was not fully the model adopted here. It was the model that was adopted fully, overtly, and deliberately in both the United States in the 1780s and in Australia when it adopted its Constitution in 1901. Although that model was tied down with a large number of formal rules designed to prevent partisanship from creeping in, in both cases they became partisan houses.
This is particularly striking in the case of the Australian Senate, where the structure of the ballot for Senate elections is effectively a party list ballot. That has the effect of making the upper house more partisan, if anything, and less a voice of independent reasoning and thought than the lower house is. That was not the intention in either the Australian Senate or the American Senate, but a history of those Senates suggests that it is very difficult to reconcile having an upper house in which members are independent with restrictions on how they use that independence so as to ensure they merely represent some other set of interests. They merely represent geographical or provincial interests, religious or sectarian interests, or whatever the interests are that the founders seek to entrench in the constitution.
In the end, senators tend, just like people in this House, to resolve themselves into partisan groupings, and if individuals fail to do so, the tendency is that they are replaced by people who are more partisan. That seems to happen regardless of the type of system.
The system for appointments that we adopted in 1867 seems to have been adopted with the intention of ending the partisanship we had prior, in the elected upper house of the Province of Canada. We did not succeed.
My sense is that if we vote for an elected upper house, we probably also would not succeed in preventing people from becoming partisan representatives to some degree. That is the nature of the way electoral politics works, unless we want to adopt something really radical, such as abolishing the Senate and replacing it with some kind of referendum, which they have done to some degree in Switzerland, for example. Unless we try to do something that is really a radical departure, I suspect that we will not get away from some level of partisanship.
Now we are left with the question of how we actually go around enforcing something like this. In the case of participation in caucus meetings, does it mean we simply cannot go into the caucus meeting when it occurs? Caucuses are not creatures of the House of Commons; they are meetings that occur outside the House of Commons and are entirely conventional in their nature. How exactly would we enforce this ostensible expression of the will of the House of Commons? I do not think we could. I suppose one could design some kind of law, an actual statute, but I suspect that we would run into a fundamental problem of freedom of association. Freedom of association means we get to choose who goes into our caucuses, and each of the different parties does so. I do not see how one overcomes that fundamental constitutional flaw with this particular suggestion, so it fails at that level as well as at the level of utility. I cannot determine what public good is being achieved by doing that.
The fact is that some level of coordination between the upper and lower houses is of value. We all know from watching it that the upper house is very much not controlled by the lower house. Some people think that is a good thing and perhaps some think it is a bad thing, but it is a statement of reality.
Let me turn now to pointing out the fundamental problem that exists when we are talking about Senate reform, including the suggestions made by my colleague from Toronto—Danforth.
The problem is that the Senate is dysfunctional in several ways at several levels, and it is unclear which kind of constitutional formula or amending formula is required to make which change. The changes that are the most important are perhaps not the ones that are the easiest or the hardest to make. There is almost a random relationship between different aspects of the Senate and the amending formula that has been used.
This government is attempting to ask the Supreme Court to assign an amending formula to each of the different proposed changes that either are being proposed by the government, such as elections to the Senate, or that could be proposed by the government, such as the abolition of the Senate, because it is very unclear what rules apply.
One of the questions that has to be resolved, for example, if we try to move to an arrangement with elected senators, is the term of office for those elected senators, unless we make a term election for life, which I do not think anybody supports. At what point does the term become too short to allow the senator to be independent? Something we are told has a constitutional weight is the independence of senators, the assumption being that a senator elected for a one-year term would be unable to be fully independent.
The Supreme Court is being asked the following question:
In relation to each of the following proposed limits on the tenure of Senators, is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act, 1982,
—which is another way of saying “under a certain section of the amending formula that lets the Parliament of Canada act unilaterally”—
to make amendments to section 29 of the Constitution Act, 1867, providing for
a. a fixed term of nine years for Senators [...];
b. a fixed term of ten years or more for Senators;
c. a fixed term of eight years or less for Senators;
Then it goes on to give
d. a fixed term of the life of two or three Parliaments for Senators;
as an alternative.
Further on it speaks of a renewable term for Senators, as opposed to a non-renewable term, and then:
(f) limits to the terms for Senators appointed after October 14, 2008 [...];
That refers, of course, to senators appointed by the present government or under the term of the present government.
The final one is:
g. retrospective limits to the terms for Senators appointed before October 14, 2008.
The reason for asking all of these questions is that in the past the Supreme Court indicated that a term that is too short or too limited is problematic in terms of the independence of senators, but it never specified what it meant by that statement. It said to ask it a specific question and it would give the answer.
The assumption then was to make the Supreme Court a proposal, try to enact a piece of legislation, and see what happened. However, when that was tried by the current government in 2006, the opposition said that if it did that, it would have constitutional issues because it would be unclear whether senators who have been elected to fixed terms are really elected to those fixed terms or if the terms could be extended in practice because the government would be unable to limit them. The government says it is electing senators for a term of x years, but within that term the senators could plausibly say they refuse to retire at the end of the term as they had to be appointed for a longer period, because it is unconstitutional to change the law to limit their terms to the length given.
That is the reason for this kind of question. We are simply listing all the different possible considerations that need to be taken into account so that there is no legal or constitutional limbo. That is just on the issue of Senate terms.
There were also questions—and I mentioned there were many dysfunctions in the Senate—relating to how consultations take place, questions on whether the kind of advisory elections proposed by the government would be constitutional, and questions on the abolition of the property qualification. Senators have to own or lease property worth about $4,000 within the province that they represent; can that be abolished unilaterally, or do we need to get the consent of seven provinces and half the population? Could we abolish the Senate? Of course we could abolish the Senate with the consent of all provinces—nobody questions that—but could we do so with the 7/50 formula or unilaterally, just through parliamentary action? That has to be established.
In the question asking the Supreme Court about that, there are three separate subquestions to deal with the different possible ways of abolishing the Senate. Those subquestions are there to make sure that we do not start down some constitutional road and then realize that we have in fact acted in a manner that, in the judgment of the Supreme Court, is unconstitutional.
Those are some of the issues that relate to the Senate. They are important issues and I think reflect the spirit that the hon. member for Toronto—Danforth was trying to get at in putting forward this motion. However, I have to say that despite his good intentions, I think he missed the mark. He has a proposal here that is outside of our jurisdiction; he is addressing major points in a roundabout way, which is unwise on something as complex as this; finally, if taken too seriously, it might potentially put us in a position where we would be violating the freedom of association protection in the Charter of Rights and Freedoms. That is to say nothing of the fact that I think all of this would actually be unenforceable in the end.
Those are some pretty significant objections, and some reasons that members should probably vote against this motion.
