“Sober Second Thinking” Proposal

16 May 2017

Honourable senators, “Progress is impossible without change,” said George Bernard Shaw, “and those who cannot change their minds cannot change anything.” Or, as our former colleagues, Senators Hugh Segal and Michael Kirby, wrote recently, “A new play is unfolding in the upper chamber and it is not unnatural that many actors are struggling to learn their new roles.” It is to risk understatement.

The Senate is changing, and with more changes in store, as the independent senators will soon form the largest group. We need to find new ways to manage the Senate’s business that allow for full deliberation and debate and, finally, decision. Yet two things will remain the same — our role as a chamber of sober second thought and our responsibility to examine, debate, amend, pass or even reject the elected government’s legislative agenda.

So I am proposing an inquiry debate on the Government Representative’s reform proposal because we need to deliberate, debate and finally decide on these matters, and we need to do it sooner rather than later.

In his paper “Sober Second Thinking,” Senator Harder has raised concerns about the slow progress of major government legislation, and about the meaning of “sober second thought” in the new Senate. Does it have the same meaning as it did 150 years ago, when the Senate was created?

I would argue, essentially yes, it does. I don’t want to delve too deeply into the history, but the Fathers of Confederation — and, sadly, we know there were no mothers — gave thorough consideration to the role of the upper house. As it has been noted by the historians, six days of the 14-day Quebec Conference were devoted to a discussion of the role of the upper house in Confederation. Over the previous decades, the colonial political leadership had fought hard to secure “responsible government” and the rights and powers of an elected House of Commons. But they also recognized the value of a “second look,” a chance to reconsider and revise laws passed by the house. Hence, the Senate was created as a counterbalance to the elected house. As George Brown said during the Confederation debates:

The desire was to render the Upper House a thoroughly independent body — one that would be in the best position to canvass dispassionately the measures of this House, and stand up for the public interests in opposition to hasty or partisan legislation.

I just wanted to add, I was reading just this morning an article by Senator Segal again. He noted — and this kind of struck me — that more than 92 per cent of Canadians have never held a party membership and the Senate should be here to speak for them, too.

A thoroughly independent body — doesn’t that sound familiar these days? From the beginning, the fathers favoured an appointed Senate, so that it would not have the democratic legitimacy to block the program of the elected government. This was also recognized by our Westminster antecedent, the House of Lords, which has, by convention, agreed to pass government legislation in a timely manner.

Today we have inherited these rights and responsibilities. But with no government caucus to sponsor and manage the legislative agenda in the Senate, we need to develop a new approach, a formula to ensure adequate “sober second thought” debate and timely consideration of legislation.

We have an important and useful precedent to consider: Bill C-14, the government’s right to die bill passed last year. Planning, debating and amending that legislation, albeit under pressure from a Supreme Court deadline, demonstrated the value of focused debate in this chamber. The Senate approved seven amendments to the government’s bill, some of which the elected house accepted. As Senators Segal and Kirby wrote about Bill C-14:

Again, that is the Senate striking an historical balance: seeking improvements to a hurried and controversial bill and ultimately accepting its place as a complementary chamber of sober second thought and not a rival to the House of Commons.

Senator Harder has proposed several alternatives for managing the Senate’s timetable — including “time allocation,” the blunt and somewhat tainted instrument currently used to limit debate and force votes.

In some foreign jurisdictions, the upper chamber faces “time limits” under which a government bill is “deemed” to have been passed, if it has not been voted on by a specific date.

While Canada’s Senate, unlike the House of Lords, still has a notional “absolute veto” over legislation, in our deliberations about new rules for an independent Senate, we may want to consider legislating a “suspensive veto” that could delay but not kill government bills. With proper safeguards, this could ensure sufficient “sober second thought” debate, while forcing the Senate to deal with legislation in a reasonable time frame.

Then there’s “time management,” which is what the Government Representative is suggesting with his Senate “business committee” proposal. This suggestion has merit, though we need to proceed carefully to ensure the rights and prerogatives of individual senators to be heard, and the rights of new Senate groupings to have proportional representation on all committees. We don’t want to create a committee that becomes a new version of the “usual channels.”

I believe better planning and scheduling, and grouping debates on bills over several consecutive days, as we did actually with Bill C-14, can provide a more effective “sober second thought” and more timely consideration of legislation. Instead of a desultory debate, with one-off speeches over a period of months, which has become the norm here recently, we can have a more focused, relevant debate and exchange of ideas. Let’s take important bills and wrestle with them here in the chamber at second and again at third reading — the prior debate to raise the issues for committee consideration; the latter to ensure that we have not missed anything, even in committee.

It’s not just the management of the legislative timetable that needs urgent review and reform. At the same time, we will need to move quickly to change the organizational and procedural rules that have long favoured partisanship, making the Senate an “echo chamber” of the house.

As the Supreme Court reminded us in the 2014 Senate reference, this is a perversion of the original intent, in which

The framers sought to endow the Senate with independence from the electoral process . . ., in order to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives.

This includes resolving the issues of proportionality on committees, which are still controlled by partisans of previous governments.

While the Senate is going through a difficult transition, it is also an exciting time, and we have the opportunity to reform this institution and return it to its original role, providing the sober second thought — debating, deliberating and deciding on legislation — as a complement to our colleagues in the house.

While the Senate modernization group may want to take up the Government Representative’s proposal, we may also want to debate this in Committee of the Whole, here in the chamber. We may also want to consider a separate planning committee to manage our agenda and the important business of the chamber.

This is precisely why I have proposed this inquiry as we chart the procedural way ahead. We should look at having some new committee, some new form in place for the next session of Parliament. I look forward to our colleagues engaging in this discussion as we re-shape and recast our procedures and processes and along the way restore the Senate to its original purpose.

I’ll leave you, again, with a couple of quotes as we ponder all this. As Andy Warhol once said, “They always say that time changes things, but you actually have to change them yourself.” I think that’s where we find ourselves. I’ll remind you of the words of former U.S. President Barack Obama: “We are the ones we have been waiting for. We are the change we seek.”