The Conservatives' position on the Senate has not always been crystal clear. It was not to appoint any senators until the Senate withers and dies by pure attrition. Or, it was to have what they call a triple-E Senate, for equal, elected, and effective. Or it was to appoint elected senators, at least until they stopped liking the results of the elections. Or it really was to not have senators or a Senate. Or, it was to appoint partisan hacks in a hurry when the government was suddenly in danger of falling, and then deal with the consequences, of which there have been many, and not all of them have made the news.
I am sure that all of my hon. colleagues in this room are careful to only claim per diems when they are eligible to do so, for example, and that nobody here claims for lunch on sitting Tuesdays or Thursdays in recognition of the wide and delicious assortment of sandwiches we have here.
As a staffer attending the Standing Joint Committee on the Library of Parliament's first meeting of the second session of the 41st Parliament, I was surprised to hear one of these highly qualified Conservative senators from the class of 2008 state on the routine motion to order lunch, much like ours is moved, and I will quote directly from Hansard:
Please don't move it yet. With the AG moving in on us, if you and I had lunch, we could not claim a per diem for today.
The reason not to claim a per diem was because there was a looming audit by the Auditor General, not because it is the right thing to do.
Forgive me for thinking that the Conservatives do not have a great deal of credibility on any question relating to Senate appointments. Liberals, too, have not batted a thousand on Senate appointments. There is no perfection in the system as it has existed.
The system before us, the reason that Monsieur Jutras and Madame Labelle are here, is intended to begin the difficult task of fixing several problems that have cropped up in the Senate's past within the confines of the Constitution, a structure for which I have the utmost respect.
These boundaries were explained to us in black and white only a year ago by the Supreme Court, in a reference that we are no doubt all familiar with. This reads, in part:
The Senate is one of Canada’s foundational political institutions. It lies at the heart of the agreements that gave birth to the Canadian federation.
The problems are simple. The system of the prime minister picking a senator out of the clear blue sky, or red sky, depending on the flavour of the government of the day—orange skies never seem to be in the forecast—is not a particularly good system. We get some phenomenal senators, and we get some special cases. The terror of having any more senators claiming expenses to which they were not entitled or otherwise causing embarrassment to the last prime minister meant that senators simply stopped being appointed, so back to the attrition plan they went.
The Prime Minister that we have, seeing that the Senate's value exists only as an independent and non-partisan body, ejected Liberal senators from the Liberal caucus, telling them to get on with the independence on which the relevance of their jobs depends. I can attest to the effectiveness of this on a personal level. In spite of my years on the Hill, I barely know the names of the senators, have met few of them, and couldn't tell you what province or party most of them are from without doing a bit of research. It is a separation that I value.
However, this leads us to several structural problems. The Senate is a legislative body much like this one. I serve for the moment on two committees, as do most of my colleagues here, as well as on the executive of two sub-caucuses and an interparliamentary group.
The Senate is much the same. The sheer volume of work to do requires senators. The last senator standing would be a very busy person indeed, serving on every standing committee, having impressive monologues on every bill brought forward, getting deep into philosophical discussions with the bathroom mirror and so forth, except for the lack of any quorum, the lack of anyone to second bills, and a Speaker to even recognize them.
It is simply a matter of necessity to have senators within the confines of the Constitution as it exists. While the NDP wants to abolish the Senate, the Supreme Court was clear that the abolition of the Senate requires the unanimous consent of the Senate, the House of Commons, and the legislative assemblies of all Canadian provinces. The Conservatives' occasional wish for an elected Senate too requires constitutional amendments. Again, I cite the Supreme Court reference, which reads:
The implementation of consultative elections and senatorial term limits requires consent of the Senate, the House of Commons, and the legislative assemblies of at least seven provinces representing, in the aggregate, half of the population of all the provinces.
Even term limits crash into the constitutional amendment brick wall. A change in the duration of senatorial terms would amend the Constitution of Canada by requiring modifications to the text of section 29 of the Constitution Act, 1867.
In the face of all of these constitutional requirements, the Conservative government was faced with total paralysis, choosing instead to leave seats vacant, close their eyes, stick out their collective tongues, and block their ears, shouting “nah, nah, nah”, rather than looking for plausible, realistic, and constitutional solutions.
I got my first start in politics at a rather young age, when the previous federal and provincial leaders thought that reopening the Constitution was a good idea. I don't think it is a great stretch to say that the constitutional wrangling of the 1990s did our national unity a whole lot of good. I don't wish for the reopening of the Constitution on anyone. It is a particularly heinous kind of curse, and is not something that should ever be taken lightly.
We must therefore work within the confines of the Constitution. It requires us to have a Senate. It requires senators to be appointed by Her Majesty's representative here in Canada on the advice of our Prime Minister. It is, however, silent on where the Prime Minister takes his advice on the matter. That is an issue the Independent Advisory Board for Senate Appointments, struck by order in council and subject to Standing Order 111, seeks to resolve.
The Prime Minister is still responsible for the final choice, much as with Supreme Court justices. But having a highly qualified advisory panel offer educated suggestions without a partisan lens can only serve to improve the quality of our sober second thinkers. This is different from electing senators, as this Supreme Court ruling makes clear:
Introducing a process of consultative elections for the nomination of Senators would change our Constitution’s architecture, by endowing Senators with a popular mandate which is inconsistent with the Senate’s fundamental nature and role as a complementary legislative chamber of sober second thought.
Sober second thought, in my mind, does not refer to the lack of imbibed alcohol. If that was a qualification, we would have our second debating chamber made up of me and a handful of other MPs who prefer not to drink. No, sober second thought refers to the lack of private or personal interest for the legislator. A senator who needs to please a political party or think about his re-election or what he will do in a post-Senate career loses that independence from personal interest. Aan elected or term-limited senator cannot meet the intent of sober second thought.
Other reforms, such as exploring whether senators should be allowed to continue working as anything other than senators, potentially clouding the sobriety of their independence, are plausible but outside of the scope of this particular debate.
If we get into the weeds with the members of the advisory board about who they do or do not consider an acceptable senator, we prejudice the very process they are charged with following. If we tell senator applicants what to do in their CVs to appeal to particular board members, we compromise the very independence of the advice.
They have their own mandate, given to them by the government, which gives clear instructions. Beyond that, it is their judgment, and we should not invite subjective judgment into their debates, or air their internal deliberations for the public to see. As with any hiring process, those not selected deserve the respect of not having their rejection on the public record.
All advisory board members will have to draw their own conclusions and do their own thinking as they consider who to suggest as our next senators to the Prime Minister. The Prime Minister will then have to fulfill his constitutionally mandated role of making the final decision.
Standing Order 111 exists for a reason. When we call an order in council appointment here, it is to discuss whether the person is qualified and competent to exercise the duties to which he or she has been named. If we wish to inquire more deeply into those issues, we can call a minister. And we have done exactly that. She will be here in just two days. I, for one, will be voting no on Mr. Reid's motion to recall these members.