Some Reflections on What Makes the Senate Independent

One of the many stirring responses to the U.S. travel ban came from a familiar, strong voice. Newly appointed Canadian Senator Ratna Omidvar published an op-ed in the Globe and Mail calling on Canada to lead a global response to the refugee crisis, including immediately opening the door for all those caught in the US ban to be welcomed in Canada. This position stands in stark contrast to Liberal Government policy and it is not clear if Ratna Omidvar is writing as the long-standing activist for the protection of refugees she has been (and she remains a visiting professor at Ryerson’s Global Diversity Exchange), or as the Senator for Ontario that she has now become.

This kind of independent voice in the Senate is heartening – and clearly can be linked to Prime Minister’s Trudeau’s efforts to stimulate independence among Senators – both by dissolving the Liberal Senate caucus (making all formerly Liberal Senators independent) and by instituting a new merit-based appointment process. So, what will a “modern and independent” Senate look like – and how will it differ from the partisan model it is replacing? In this post, I offer some reflections drawn from comparisons with independence as it is understood in other parts of our political and legal system, and drawn from the Senate’s own history.

While the country’s attention in the past has been focused on the integrity and ethics oversight of Senators, or on the divisive political and legal debates about Senate Reform (or abolition), too little attention has been paid to what the Senate actually is intended to be. With his first slate of Senate nominations, the Prime Minister stated in October 2016,
“It is a privilege to be putting forward the names of nine new senators to the Governor General who have been selected using a new merit-based and open process. It is part of our ongoing efforts to make the Senate more modern and independent and ensure that its members have the depth of knowledge and experience to best serve Canadians.”

Prime Minister Trudeau’s statement builds on his decision in opposition to expel Liberal Senators from the Liberal caucus in January 2014 as a matter of principle. Currently 44 of the 105 Senators are non-affiliated.
Some (mostly partisan) observers have been skeptical As J. Tasker reported, “Independent Senators under fire as top Tory calls appointment process ‘con job’: Trudeau’s new non-affiliated senators now form a plurality in 105-seat chamber” Conservative Senators viewed these initiatives simply as partisanship by another name. Leo Housakos’ remarks reflected this camp: “[They] pretend they’re somehow reforming the Senate of Canada, when they know they’re not reforming anything, except naming a bunch of senators who are Liberal-minded, and they’ve asked them to be non-affiliated.” Bob Runciman, another Conservative Senator, added – “Even though they’re being called Independents, they’re really in the closet Liberals,” he said.

Other observers have highlighted the potential for incoherence and drift implicit in removing party discipline from a group of strong and idiosyncratic personalities. University of Ottawa Law Professor (and a former Liberal Chief of Staff) Adam Dodek has argued the removal of partisan stripes may strip the Senate of its relevance in our political system: [see “Maybe Purging Parties from the Senate isn’t such a Hot Idea” (Dec. 30, 2015); and “The Political Firewalking of Senate Reform” – (Feb 2016) Policy Magazine.

To some extent, these objections are empirical rather than existential. They will be proven true or not true based on the actions and accomplishments of the Senate as it moves toward a majority of independent members (and the potential for cognitive dissonance with a boisterous group of Tory Senators in the mix during this interim period, which may last decades, should not be underestimated).
For these purposes, I am more interested in what independence is intended to look like, not what might occur if it does not live up to these expectations. The aspiration of an independent Senate, by definition, must rise above the partisanship that appropriately defines the House of Commons, and by which our democratic process expresses its will. The Senate, however, is not like the judiciary in having a constitutionally mandated separation from politics or political motivations. Nor does the Senate derive a particular policy mandate from a statute like a regulatory body, or have the powers to investigate wrongdoing that might be afforded a public inquiry.  Therefore, the independence of the Senate will not look like, or have the same purposes as the independence of courts, regulators or inquiries.

Rather, the Senate’s independence must be understood within (rather than apart from) the structures and dynamics of politics. The famous or infamous reference to the Senate as a body of “sober, second thought” captured this goal of testing partisan initiatives against a different set of values. The Senate was to be a place of debate and politics, but one characterized by less exuberance, and more consideration and deliberation.

Senators under the new scheme promoted by Prime Minister Trudeau will both need to be develop more of their own set of public commitments, and develop new collaborative skills and capacity outside formal party structures. With this everything-old-is-new-again vibe, some have suggested looking back to the Confederation Debates on the original vision for the Senate (and that’s not a bad source to canvass). From those debates, this passage from John A. MacDonald, in particular, resonates:
“There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatever were it a mere chamber for registering the decrees of the Lower House. It must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch, but it will never set itself in opposition against the deliberate and understood wishes of the people”
While this provides an invaluable foundation, the originating vision for the Senate will not provide a full template for a modern, inclusive 21st Century independent Senate. At the same time, the other source material involving the assessment criteria for the new Independent Advisory Board for Senate Appointments – which is a product of this very transformation – also may be a necessary but not sufficient source of insight. That process envisions knowledge requirements, “personal qualities” and qualifications, which provide hints of the modern vision for independence. The qualifications, for example, include:

“An individual must demonstrate one of the following criteria:
· a high level of experience, developed over many years, in the legislative process and public service at the federal or provincial/territorial level; and/or,
· a lengthy and recognized record of service to one’s community, which could include one’s Indigenous, ethnic or linguistic community; and/or,
· recognized leadership and an outstanding record of achievement in the nominee’s profession or chosen field of expertise.”
Senators, in other words, are intended to be generalists rather than specialists, community leaders rather than lone wolves, and public minded rather than focused on their own personal priorities. Senators, in other words, are meant to be “givers” and people who have demonstrated the ability to earn credibility, and bring together supporters. The criteria employed by the advisory committee value traits like being a good listener, a successful collaborator, adaptive, and principled.
So, the question is whether a framework begins to emerge from this look at the past and the present for a vision of an independent Senate for the future? In addressing that question, some different functional dynamics of independence for the Senate as a whole stand out – below, I point to five possibilities (not in order of importance and not to suggest these are unconnected to one another, or exhaustive):

1) – sometimes, the Senate needs to function as an independent institution of investigation – for example, holding hearings/inquiries on allegations of Government wrongdoing – and in fact this role for the Senate in the past has been compromised by partisanship (lots of examples, but the hearings around the Sponsorship Affair prior to the announcement of the public inquiry might be one recent example).

2) – sometimes, the Senate needs to function as an independent institution of review – here I am thinking of the Senate’s role in studying legislation, scrutinizing government spending proposals (the estimates) and to inquire into problem areas of concern in the coherence and effectiveness of proposed legislation or policy.

3) – sometimes, the Senate needs to function as an independent institution of accountability – here I am thinking of the roles of Senate committees in relation to government activitiy, or accountability of the House of Commons itself, so that if the House of Commons is acting recklessly or in the face of evidence, or out of hyper-partisanship, the Senate is one of the venues in which this conduct can be questioned and explored.

4) – sometimes, the Senate needs to function as an independent institution to explore and evaluate reform (in social, economic and legal or other sphere of Canadian life) as took place under Senator Kirby in relation to health care in 2002). This dimension of independence is also a proxy for the ability to listen and learn, evolve and be reflective.

5) – sometimes, the Senate needs to function as an independent institution of minority representation – the historical rational of minority representation in a decentralized country requires an independent lens through which to view the impact of legislation in different areas of the country, irrespective of a particular party’s electoral success in one part of the country or another. This originating notion now extends to the mandate for social inclusion included in the merit criteria for the current Senate appointments, and is intended to include voices from underrepresented or marginalized voices as part of the investigation, review and accountability functions set out above.

These institutional dynamics of independence with the political system suggest the kind of independence issues which will arise for each Senator. In all of these independent activities, a key question arises as to whom a Senator is answerable and to whom she or he owes obligations – including to conduct themselves with integrity (and for further clarity, this means more than simply following the letter of the rules!), to advance the public interest, and to uphold the rule of law and democratic ideals that define Canada’s political system. These obligations speak to why an independent Senate needs to be a more transparent – which provides a critical pathway to accountability for an appointed rather than elected body. Transparency, in turn, is linked to credibility. Ultimately, the acid test for independence is not just how Senators will act, but rather how their actions will be perceived.

In this sense, independence can be understood as a set of commitments each Senator must make when applying to join the Senate, and a set of standards by which the Senate as a whole needs to be evaluated in relation to its record – independence takes life not in rhetoric but in the lived experience of Senators and how the Senate is perceived by those with whom interacts or for whom it was established. Independence, in other words, is a claim that must be honoured in the breach, and will be tested every time the Senate must consider articulating its own voice, rather than echoing the voices of any particular party in the House of Commons or a provincial legislature. While the proof, as always, is in the pudding, this metaphor only works when we agree on what pudding is meant to be!