Hon. Pierre J. Dalphond: Honourable senators, in my short 15 minutes, I’ll try to remain focused as I try to respond to the leaders of the two largest groups, Senator Woo and Senator Housakos, and to answer the questions raised by Senator Tannas on Tuesday.

A week ago, the Senate adopted, without debate and with the unanimous agreement of all those attending, the First Report of the Committee of Selection, appointing senators to the various committees of the Senate. This was a critical step in organizing our committees, with many now up and running.

In doing so, we acted in compliance with Chapter 12 of our Rules, which states that the mandate of the Committee of Selection is to propose names of senators to populate committees, and that the Senate is the appointing authority.

This follows the practice of the House of Commons, both chambers of Westminster and the Australian Parliament. Moreover, all the authorities commenting on the Westminster model recognize that a chamber can amend the proposal of a selection committee. In other words, in the Westminster model, it is the chamber itself, and not the political parties or groups, that appoints members to various committees.

No doubt, groups are important in the pre-nomination phase leading to the report of our Selection Committee, to identify interest and expertise of senators and ensure a maximum of seats are filled on committees, including those that might be less sought after. But it should be up to the Selection Committee to make sure the ultimate result is a composition of each committee that is representative of Canadians and the society we live in.

These internal processes, which vary from one group to another, cannot be conflated with the Selection Committee’s function and its proposals and the subsequent decision of the Senate to appoint. This is obvious when we consider that non-affiliated senators, who are equal to any other senators, have the right to serve on committees, not just group members, as recognized in 2017 with the adoption of the Third Report of the Special Committee on Senate Modernization, a month before the ISG was recognized as a group.

Thus, to protect this right, non-affiliated senators are entitled, under rule 12-1, unanimously adopted in 2017, to one representative on the Selection Committee to ensure that its report will include the names of non-affiliated senators as of right. Unfortunately, this rule was not complied with recently, since both Senators Brazeau and McPhedran were not proposed to fill any of the 193 seats described in the First Report of the Committee of Selection. This hardly looks to me as a recognition that all senators are equal, including non-affiliated, in the appointing process. I hope this situation will be corrected soon, not by begging to existing groups to get some leftovers, but to be given as of right when they participate in the Selection Committee work, in order to allocate to even two non-affiliated senators. That represents 4 seats out of 193. We are far from that if we look at Senator Brazeau and Senator McPhedran.

Despite this flaw, the report was adopted last week by this chamber. Then, and only then, the committees were constituted.

The takeaway of the process is that the Senate itself, and not the groups, makes appointments to committees.

Moreover, in all Westminster parliaments, appointments to standing committees are made at least for the duration of a session when not for the duration of a Parliament. As we have heard earlier this week, the Senate has applied this principle since 1867 and incorporated it formally in its rules in 1969. But why is that so? The answer flows from the role of the committees summarized as follows in the preface of Senate Procedure in Practice:

Committees have always been a significant feature of the Senate. It is in committees that the talents and experience of senators are applied to great advantage. Their professional background and skills, together with the knowledge that senators acquire during their tenure in Parliament, provide a firm base for their engagement in committees. The solid work of committees is also enhanced through the stability and continuity of membership. Senators have an opportunity to gain an in depth understanding of complex issues studied over the years.

That is from the book written here in the Senate.

Now, some leaders are proposing that we accept, as we did without debate in March 2020 and again in a limited debate in October 2020, to dismiss this principle of continuity. This principle is even more important today than it was before, since it ensures greater individual independence in senators’ choice of affiliation in a chamber where there are now more groups and, thus, the possibility of greater mobility.

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Seriously, colleagues, does anyone think that if a senator changes groups or becomes non-affiliated, he or she is no longer worthy of the trust of the Senate that has appointed him or her on a committee or that by changing a group a senator suddenly changes their views and perspectives on a matter?

We might then ask why is there an attempt to change this rule of continuity? Some say it is to preserve the proportional allocation of seats. Senator Bellemare and others have shown on Tuesday the flaws in this argument. The answer lies somewhere else.

The rule change seems to preserve, or even increase, the power of groups and their leaders. It was said clearly tonight that seats belong to groups. This runs counter to various attempts to enhance the individual freedom of MPs and members of upper houses in the Westminster model.

A 2009 report of the United Kingdom House of Commons Reform Committee recommended continuing appointments for the duration of Parliament and added “the desirability of removing the influence of party whips from the process . . .” in selecting members of committees. That report also explored options to further democratize the process of committee appointments with greater transparency.

The proposal before us is even more unfortunate in this place since it runs against the whole concept of a more independent Senate made up of senators free to determine their opinion on issues and bills, free to vote accordingly and free to affiliate, or not, without fear of reprisals.

In fact, this new concept of portability and the group owning the seats appears to have arisen after Senator Richards became a non-affiliated senator in 2018. Senator Richards then retained his seat on the National Security and Defence Committee, where close votes were expected in connection with Bill C-71. If the principle of appointment for the whole session then had been discarded, as is now proposed, dynamics would have been different on that committee.

In other words, substantive committee outcomes may be the factor in this initiative to discard the principle of appointment for the duration of the session.

In a question to Senator Cordy on Tuesday night, Senator Tannas touched directly on that point. Referring to rule 12-5 to which Senator Woo referred abundantly tonight, on replacement on committees, he said:

But nobody has mentioned rule 12-5, which basically says that the leaders, on a signature, can remove any member of any committee and appoint somebody else. So what we’re really talking about is, up until one minute before the person resigns, the leader could remove their seat. It is only in the moment after they have resigned that they can keep their seat or that the leader can’t take it back. The group can’t take it back.

As said in reply by Senator Cordy, if rule 12-5 can be read as meaning that, the time has come to ask the Rules Committee, not Selection, to review this matter.

I also have difficulty with the suggestions that the rules protecting seats for the session are not important because of a broadly drafted rule on replacements. In my view, a proper interpretation is to the contrary. The rule on the duration of appointments is the principle and the rule on replacement is the exception.

That rule on replacement has been in place since 1983. Its proper purpose is to make temporary substitutions, as Speaker Noël A. Kinsella explained in 2007:

Allowing changes in membership during the course of a session provides a convenient way to co-ordinate caucus work. If, for example, a senator is obliged to be away from a meeting for other responsibilities or if a senator who is not a regular member of a committee has particular expertise in a matter under consideration, rule [12-5] provides a way to accommodate these circumstances.

In 2009, a Rules Committee report confirmed that, in practice, today’s rule 12-5 is used for temporary replacements in the following manner:

The senator who is unable to attend the business of a committee for a meeting or period of time is replaced by another senator. Then, when the original committee member is able to resume attendance at meetings, he or she replaces that replacing senator — thus restoring the original membership of the committee.

On this point, in the other place, the House of Commons, permanent changes to standing committees can only be carried out by decision of the House of Commons as was shown when MP Leona Alleslev crossed the floor from the Liberals to become a Conservative. Motions from the equivalent of our Selection Committee have to be passed in the House of Commons, and a motion is needed by the House of Commons to adopt that report.

This is also the case in the Australian Senate and the U.K. House of Commons. As for the Standing Orders of the House of Lords, they are silent on the removal of committee. A replacement must be the subject of a motion adopted by the House of Lords.

Perhaps it is no surprise then when we previously voted on suspending rule 12-2(3) on October 28 last year, our former Speaker, Senator Housakos, voted to uphold the Westminster practice of duration of appointments.

No doubt, the broad rule 12-5 has been used for party discipline in the past. However, it is strange to see this aspect of the rule invoked in the current Senate, at least in groups that state that their members are free to vote as they wish, that the group will not take action to direct certain results and when there is no longer a whip. In other words, one could expect that the leadership of these groups will not use rule 12-5 for forced reassignment of senators, especially to ensure a result such as no amendment in committee.

Today’s decision is an important one for the direction of Senate reform because, honourable colleagues, it proposes regressive changes.

Last year, our former colleague, Murray Sinclair, reminded us of his aspirational vision of this chamber as “Canada’s council of elders.” He said:

We can move towards a culture and institutional structure that we can envision more as a circle of independent individuals, and away from hierarchical factions . . . .

In conclusion, I believe that to adopt the report will be a disservice to individual independence, to the committees, to the Senate and to the reform that we are striving to achieve for those that believe in this reform.

I respectfully urge you, senators, to vote against this report.

Thank you, meegwetch.

(On motion of Senator White, for Senator Tannas, debate adjourned.)