Second reading of Bill S-4, An Act to amend the Parliament of Canada Act and to make consequential and related amendments to other Acts

By: The Hon. Peter Harder

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Women Are Persons Monument, Ottawa

Hon. Peter Harder: Honourable senators, I rise virtually today to speak to Bill S-4, An Act to amend the Parliament of Canada Act and to make consequential and related amendments to other Acts. This legislation would update the Parliament of Canada Act to better reflect the new reality here in the Senate.

It has been a little over five years since I took my seat in this chamber. In those years, the Senate has transformed itself from within in many ways. I’m not sure what the class of 2016 expected as we were sworn in on that first day. Speaking for myself, it was daunting to know that we were wading into uncharted territory.

Newly appointed senators, without the benefit of an established party behind them for support and instruction, gathered together. They had the desire to discuss issues, bounce ideas off each other, navigate the demands of the Senate and learn the rules, procedures and operations of this place, which are sometimes arcane and difficult to understand. New senators couldn’t function ably as individual silos. As more and more colleagues were appointed, coming together in support of each other and subsequently organizing themselves into like-minded groups was a natural evolution.

While we were feeling our way and doing our best to fulfill our constitutional roles we were, at the same time, putting our stamp on the institution and moving it forward. So began the journey to today.

To their credit, over these past five years all senators have recognized the changes occurring from within and acted upon them, occasionally with some reluctance but always with respect. There was a willingness amongst all senators, even those who preferred the existing two-party arrangement, to make adjustments to the strict rules and procedures of the Senate toward a more modernized approach.

The core premise that all senators are equal led to the sensible review and modification of rules to ensure committee seats for new colleagues and for the equitable treatment of all caucuses and groups in the Senate as they came into being. Bill S-4 is the anticipated legislation that is catching up to and cementing into law the practices this chamber has already instituted and processed changes that the government initiated, though they have not been required to do so in law.

I am delighted to introduce this bill on behalf of the government. It is, in my view, an important step in contributing to the commitment of making the Senate less partisan and more independent, transparent and accountable.

Since 2016, 52 senators have been appointed through the Independent Advisory Board process. There are presently 14 vacancies. The most notable outcome of this reform is that three groups without party affiliation have formed in the Senate: the Independent Senators Group, the Canadian Senators Group and the Progressive Senate Group.

As these groups were established, the Senate amended its internal rules to accommodate them and to provide them with research funding and committee assignments proportionate to their numbers. This set-up is not novel, so arguing against change using the “that’s the way it has always been done” claim holds no weight.

The other place has had multiple parties for a long time. Bill S-4 reflects a multi-group Senate and just as the other place provides for its leadership in a multi-group chamber, under this bill, so will the Senate.

The proposed legislation also fulfills a policy commitment to update the act and reflect the Senate’s new, less partisan role. This policy commitment can be found in Minister LeBlanc’s 2019 mandate letter and Minister Rodriguez’s 2019 mandate letter in which he was asked to support Minister LeBlanc in this initiative. It was also a commitment in the last election.

Amending the Parliament of Canada Act is a continuation of the commitment made by the Prime Minister when the establishment of the Independent Advisory Board on Senate Appointments was announced in December 2015. That was the first step in a process that now results in this legislative change to the Act. I would like to take a moment to congratulate Minister LeBlanc, the Government Representative Senator Gold and all leaders and facilitators — Senators Plett, Woo, Cordy and Tannas — who brought us all to this point.

Prior to the drafting of Bill S-4, comprehensive conversations and consultations were held with all leaders. Their perspectives were heard, and the proposed legislation before us reflects much of what was put forward —

The Hon. the Speaker: Excuse me, Senator Harder. My apologies, but I have to interrupt you now. It is now six o’clock and pursuant to rule 3-3(1), the orders adopted on October 27 and December 17 of 2020, I am obliged to leave the chair until seven o’clock unless there’s leave that sitting continue. If you wish the Senate to be suspended please say “suspend.”

Senator Plett: Suspend.

An Hon. Senator: Suspend.

The Hon. the Speaker: Almost. I hear a “suspend,” so Senator Harder, you will be given the balance of your time when we resume the sitting. The sitting is suspended until 7 p.m.

(The sitting of the Senate was suspended.)

(The sitting of the Senate was resumed.)

Hon. Peter Harder: Honourable senators, I would like to remind colleagues that prior to the drafting of Bill S-4, comprehensive consultations were held with all leaders, their perspectives were heard and the proposed legislation before us reflects much of what was put forward. The government recognized its responsibility to consult with those who would be most affected by any changes to the act. The goal of the bill is to ensure that the Parliament of Canada Act — the legislation governing key aspects of how the Senate operates — legislatively authorizes the current landscape within the Senate. Bill S-4 would extend official recognition to the new groups that have formed. It would include a spelled-out role in the Senate governance and the parliamentary appointments process. Leaders of the groups would receive allowances commensurate with the number of seats held by their group in the Senate.

Building on these steps, changes to the Parliament of Canada Act and other acts are essential to reflect the reality of how the Senate operates today.

First, Bill S-4 would ensure that the largest group — other than the government or the opposition — would receive allowances equivalent to the opposition, and the next two largest groups would receive approximately half the allowances the opposition receives. These new allowances would begin on July 1, 2022, and will assist the recognized parties or groups to fulfill their role of providing sober second advice.

Secondly, the bill amends the Parliament of Canada Act and makes consequential amendments and related amendments to other acts that allow the leader or facilitator of all recognized parties and groups in the Senate to make membership changes to the Senate Standing Committee on Internal Economy, Budgets and Administration. As well, all leaders would need to be consulted on the appointments of the following officers or agents of Parliament: the Senate Ethics Officer, the Auditor General, the Commissioner of Lobbying, the Commissioner of Official Languages, the Public Sector Integrity Commissioner, Privacy Commissioner, Information Commissioner and Parliamentary Budget Officer.

All leaders’ input would also be required regarding the appointments of senators to the National Security and Intelligence Committee of Parliamentarians, the NSICOP. The appointments of these officers and agents are crucial to the functioning of government and, by extrapolation, the country. I should add that it has been the practice of the Prime Minister, both in the last Parliament and in this Parliament, to consult all leaders with respect to these appointments, even though it was not legally required.

Third, Bill S-4 would amend the Emergencies Act to provide that at least one senator from each group be represented on the parliamentary committee formed under the act.

Currently, the Emergencies Act requires that a parliamentary review committee of both the House and the Senate be established for the purpose of reviewing the government’s exercise of its powers following the declaration of an emergency. Under the current statute, the membership of this committee includes at least one member from each recognized party in the House of Commons and at least one senator from each party in the Senate. The formal recognition of the ISG, PSG and CSG proposed in Bill S-4 would allow each group a seat on this important review body when and if it is required.

Finally, Bill S-4 will add the titles of Government Representative in the Senate, Legislative Deputy to the Government Representative in the Senate, and Government Liaison, where appropriate, to reflect the current model of the Government Representative office.

Bill S-4 also proposes to retain leadership allowances for the government and the opposition — five positions each — and provide leadership allowances for the three other largest recognized parties or groups — four positions each.

The Senate was and is the product of our Confederation. It is a pillar of our parliamentary democracy; the upper house of our bicameral system. It plays an important role in providing legislative review, regional representation and the representation of minority voices. It is master of its own house, and as master, it has adjusted its rules to meet its changing needs. But these were Band-Aid solutions without permanence and do not provide the legal recognition of what is obviously a lasting state of affairs. The government rightfully determined that Bill S-4 should originate in the Senate. It deals with the Senate’s institutional framework and organizational processes, and should be discussed and debated here first by those most affected. Because of the long-standing convention not permitting the Senate to expend public funds, Bill S-4 contains a non-appropriation clause which would only permit the bill to be brought into force once monies have been appropriated by Parliament, which is why we are passing this bill and moving it forward to the other place, allowing the proper chamber to introduce the legislation necessary to finalize the amendments.

For those who might question the ability of a Senate bill to include the expenditure of funds, clause 17 of Bill S-4 outlines the appropriate mechanism:

17 (1) Subject to subsection (2), this Act comes into force on a day to be fixed by order of the Governor in Council.

(2) No order may be made under subsection (1) unless the appropriation of moneys for the purposes of this Act has been recommended by the Governor General and the moneys have been appropriated by Parliament.

On February 24, 2009, Speaker Kinsella outlined broad principles governing legislation that may have monetary implications.

It certainly is not the case that every bill having any monetary implication whatsoever automatically requires a Royal Recommendation. When dealing with such issues, the Speaker’s role is to examine the text of the bill itself . . . . Of course, the Speaker, in making this assessment, seeks to avoid interpreting constitutional issues or questions of law.

The senator raising a point of order has a responsibility to present evidence and explain to the Senate why a Royal Recommendation is required, linking it to what the text before the Senate would actually require, not optional decisions that may or may not be made at some point after a bill is passed. . . .

In situations where the analysis is ambiguous, several Senate Speakers have expressed a preference for presuming a matter to be in order unless and until the contrary position is established. This bias in favour of allowing debate, except where a matter is clearly out of order, is fundamental to maintaining the Senate’s role as a chamber of discussion and reflection.

As well, Senate Procedure in Practice explains the following at page 155:

. . . rulings have noted that a bill that would otherwise require the Royal Recommendation can proceed if it clearly provides that it does not come into effect until funds have been separately appropriated by Parliament.

This is what section 17 in this bill provides.

Honourable senators, Bill S-4 is a respectful piece of legislation. It provides for equal treatment of leadership and reinforces the equity afforded to all groups in terms of consultation, something currently in practice but not cemented in law. It also recognizes the nomenclature that groups have chosen to use. As the chamber has evolved over these past few years, Bill S-4 can be considered an evolutionary piece of legislation. It need not be revolutionary to meet our needs.

It has taken two parliaments for changes to the Parliament of Canada Act to come forward and legislate many of the changes we ourselves have instituted. Bill S-4 is a reflection of the accommodations we have already made. The government is not mandating changes with this legislation. Rather, it is a permissive bill, not prescriptive, which is exactly how we get most things done in this chamber.

For Bill S-4 to be before us today required an alignment between the government representative and the minister. I can attest to that fact personally. For the Prime Minister to allow an embargoed copy of the bill to be forwarded to all groups so that members might reflect on its contents indicates the commitment of establishing the permanence of a multi-group, less partisan process by those at the highest levels.

Honourable colleagues, I ask that Bill S-4 be dealt with expeditiously. The Senate demand for such legislation began several years ago. It is in the interest of all senators to move this bill forward so it can be sent to the other place as soon as possible. We mustn’t waste this opportunity.

Some may argue that Bill S-4 does not go far enough. I would disagree. It respectfully reflects the Senate as it exists today. As it stands, there are group leaders and facilitators who have little or no status when it comes to providing input or advice into government appointments, who do not have the legislative authority to make membership changes on the Senate’s most powerful committee and who must rely on the benevolence of “recognized” colleagues to fund and manage their groups and research staff without leadership allowances. This needs to change and, with this bill, it will.

Bill S-4 is not by any means the end of Senate reform and modernization. It is, however, the legislating of changes we ourselves have developed and put into practice. It reflects the Senate as it is today, not as you might wish it to be tomorrow. We aren’t going anywhere, and we will have the opportunity to move even further down the modernization road with the Parliament of Canada Act no longer being a barrier to institutional reform.

I commend this bill for your consideration. Thank you.

The Hon. the Speaker: Senator Harder, would you take a question?

Senator Harder: Certainly.

The Hon. the Speaker: Senator Batters, do you wish to ask a question?

Hon. Denise Batters: I do.

Senator Harder, we meet again. From my review of Bill S-4, it appears that there are no additional powers being granted to the opposition or to the Leader of the Opposition in this bill, as compared to the current version of the Parliament of Canada Act.

Instead, in my review of it, Bill S-4 includes, in these several references to the opposition, the granting of the same powers to three additional undefined parliamentary groups. As such, Bill S-4 seems to dilute these key powers of the opposition and its important historical role. This makes the opposition merely one of several groups in the Senate.

Senator Harder, are there any references to or powers of the opposition which are now in Bill S-4 but which are not in the current Parliament of Canada Act?

Senator Harder: Thank you for your question, senator. You make me almost nostalgic for the Question Period of my time as Government Representative. Let me say that the bill is intended to reflect the changes to this chamber. This bill does not change the role and function of the opposition, so, therefore, there are no changes to that role either in circumscribing its role and abilities and competencies. In respect of the appointment of parliamentary officers, it reflects the practice of this government both in the last Parliament and this.

Senator Batters: Senator Harder, one of the main features of Bill S-4, as you described it, is the entrenching of brand new nomenclature in the Parliament of Canada Act. We have had terms like “Leader of the Government” and “Leader of the Opposition” and “whip” in the Senate and in many other parliamentary systems and jurisdictions for decades and sometimes for centuries.

But what are basically brand new, historically speaking, are terms in Bill S-4 like “facilitator” and “liaison” and “Government Representative,” et cetera. Those terms were really only first used by some in the Senate a few years ago, since the Trudeau government has been in power.

Senator Harder, I note that none of those brand new terms are even defined in Bill S-4. As such, if this bill passes, the Parliament of Canada Act would not include definitions for those words. Under Bill S-4, people holding those undefined position names will receive significant amounts of taxpayer dollars on an ongoing basis.

Senator Harder, why aren’t those particular terms defined? What do you think the government should do to fix that?

Senator Harder: Thank you for your question, senator. I believe that the government ought not to interfere in the practices of the Senate in any way. This bill is permissive in allowing the nomenclature that is preferred by various groups to be used. It doesn’t force those changes; it makes them permissive. I think you will find, senator, that the practices and experience of the last two parliaments will be reflected on an ongoing basis, and we all know what those roles are; and, frankly, the Parliament of Canada Act has not defined what the roles of previous nomenclature have been.

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