Hon. Jane Cordy: Honourable senators, I would like to repeat one of the comments that Senator Mercer made in his speech, and that is that section 12-2(3) of the Rules allows for a more independent Senate. Remember that, because that’s what we’re trying to take away with this report.

Honourable senators, if you have not done so yet, I strongly encourage you to read Senator Mercer’s dissenting opinion included in the report of the Selection Committee. This report lays out the long-standing history of committee portability as a principle of independence since the very beginning of the Senate.

Colleagues, I would like to express how disappointed I am that this issue has come up again, flying in the face of our progress in making the Senate more independent and more equitable. Many of you will know that the last time the notion of portability was brought forward, members of the Progressive Senate Group spoke against that sessional motion. I did at that time as well.

Our colleague Senator Bellemare attempted to amend it. Her amendment proposed a compromise that would have helped to reinforce the equality of all senators, regardless of their affiliation, by only requiring a senator who changes affiliation to vacate a committee chair or deputy chair position, thus maintaining the negotiated committee chair balances.

Honourable senators, the Senate is made up of individuals who have come to this place from across the country to serve Canadians. We do not serve our respective groups. We work within our groups, but we do not serve our respective groups. If anything, honourable senators, groups should serve their members and be a platform for each of us to excel, supported by other like-minded senators.

Senator Bellemare’s amendment at the time was a reasonable compromise, and I am disappointed that we find ourselves here yet again in 2021.

Colleagues, at the Selection Committee meeting last week, we heard a number of arguments against the portability of committee seats, none of which I considered persuasive. Proportionality was the justification that was brought up most often. Let me ask you a question. If a senator were to leave a group and join another, would that not mean the group left behind would be entitled to fewer committee seats than before? And wouldn’t it also mean that the group with increasing membership would be entitled to more committee seats? I would argue that portability is, at the very least, more consistent with the principle of true proportionality, even if the numbers are not as precise as a complete overhaul of all committee allocations.

Like everyone here, I believe proportionality should be taken into account when populating the committees at the beginning of a session. Ultimately, proportionality is only valid on the day the committees are populated. We all know the composition of the Senate can change at any time, just as we all know senators retire and new senators are appointed throughout each parliamentary session. Currently, there are 13 vacancies and four more senators who will reach the mandatory retirement age of 75 before we rise in June. Proportionality holds true when committees are populated, but the balance can quickly change.

The reality of how the composition of this place can change during a session was never more evident than the Forty-second Parliament, which was one continuous four-year session. No one knows what the future will bring.

Even Senator Woo has acknowledged the ever-changing nature of the Senate. In an appearance before the Special Senate Committee on Senate Modernization on April 25, 2018, Senator Woo was asked about the issue of proportionality and the membership of the Standing Senate Committee on Ethics and Conflict of Interest for Senators. He said:

All I’m trying to say here is that if we were to cement the current proportions into that committee in the rules, that would almost certainly be out of skew within a short period of time when the composition of the Senate as a whole changes.

As he said, proportionality quickly becomes out of date. But we do not routinely readjust the committee memberships to reflect those changes, nor do we change or circumvent the Senate Rules to accommodate them.

Another argument brought forward against committee seat portability has been that it is somehow contradictory to the Westminster system. However, as Senator Mercer detailed in his dissenting opinion within this report, the suggestion that committee seats belong to groups is, in fact, a break with practice in other Westminster-style legislatures.

Canada’s House of Commons protects members’ ownership of their committee seats in its Standing Orders. The House of Lords in the United Kingdom, which is the model for the Senate of Canada, and the Australian Senate also appoint committee members for at least the duration of a parliamentary session. Indeed, in the case of the House of Lords, committee seats are, in practice, effectively permanent.

Some have suggested that our old way of doing things is a product of the bicameral system when we only had two parties, the government and the opposition. I would point out that the House of Lords manages to uphold committee portability within its reality of six groups with 25 or more members. The Australian Senate has three groups of nine or more members and does the same. We all know that our own House of Commons accommodates four recognized political parties.

Another argument brought up during the Committee of Selection meeting was to whom do senators “owe their committee seats.” The answer, colleagues, is simple: The Senate. We owe our committee seats to the Senate of Canada.

Everyone who was present on Thursday voted to adopt without amendment the Committee of Selection’s first report to populate committees. Without that vote, our committees would not be currently undertaking their organizational meetings or preparing to study upcoming legislation. Whether by voice or standing vote, whether we engage in debate or not, each and every one of us, honourable senators, plays a role in determining how this place deals with every item that comes before us.

When we debated the sessional motion in the fall of 2020, I was surprised by Senator Woo’s implication that we could ignore the Senate’s role in considering and adopting the Selection Committee’s report because:

. . . the Senate as a whole played zero role in brokering the allocation of seats or in coming up with the precise configuration of committee memberships. . . .

That statement belies a fundamental misunderstanding of the way this place conducts business. Using this logic, one could also argue that the Senate as a whole doesn’t play a role in amendments to legislation made by committees or in adopting a comprehensive report that a committee presents. However, we all know that this is not our approach in the Senate. We debate all of these things. Each and every senator has the right to vote on each and every item that is called. Each and every senator from all sides in the Senate, from every seat in the Senate that’s occupied, considers their choice when making it. Each of us chooses to allow leave on motions, chooses to call the question, chooses how to vote, all of it with an understanding of the item before us, to the best of our abilities.

We are not rubber stamps. No outcome is ever guaranteed. If that were the case, we would not be debating the report from the Selection Committee here today.

To suggest for one moment that what we do here, particularly the process of voting, does not matter to the outcome should be offensive to all of us because we each take our responsibilities seriously, and because, in the end, it is the Senate that appoints senators to serve on committees, not leaders or groups. The groups are simply administrative tools, a way of managing the complexities of populating almost 20 committees with 105 senators. The two ideas, of negotiations and of the Senate’s final vote, can and should easily coexist.

And, honourable senators, they do.

Colleagues, if we are to continue on the road to modernizing the Senate, and if we adhere to the ideal that all senators are independent and equal, we should do so with a view to the future. We are trying to make this place less partisan and to make room for people outside of the government and opposition sides. Some of our current rules, like rule 12-2(3), are already in place specifically to protect the rights of individual senators. Despite the suggestion at committee and in this chamber today, just because a rule is old does not mean that it conflicts with true reform.

Indeed, if you would like to read the fourth report of the Special Committee on the Rules of the Senate, tabled in November 1968 — a long time ago — and led to the principle of committee seats being for the duration of a Parliament — yes, not a session but a Parliament — being formalized for the first time in our rules, I encourage you to do so. That report speaks at length about the independence of senators, including criticism of the appointments process at the time. It includes a suggestion that no senators outside of government and official leadership positions participate in their respective national caucuses.

Honourable senators, I have been asking myself about the motivation behind this motion. Is it really only about proportionality? I’m not convinced it is, by the arguments presented. Or is it solely about preventing senators from being more independent? I truly believe that passing this motion is an erosion of our independence as individual senators. This flies in the face of everything that many of us have been trying to achieve as we move away from the centralized power structure of the partisan political party influences of the past. This motion is a step backwards toward those old ideals of leaderships maintaining control over their members through the threat of losing committee seats if a member makes a personal decision to leave a group that is no longer the best fit for them.

This is not a principle that I can or will support. I do not believe that groups own committee seats; individual senators do.

As Senator Dalphond and I stated in a recent article in The Hill Times, “A more independent Senate should uphold the historical independence of committee members and its committees.”

Honourable senators, for these reasons, I cannot support this report. Thank you.

Hon. Terry M. Mercer: Honourable senators, I would like to begin by acknowledging that I am joining you from the ancestral and unceded territory of the Mi’kmaq people.

As a member of the Selection Committee, I rise today to offer some commentary on where we are now in the Senate as it pertains to committees. We adopted the first report of Selection which provides the list of senators nominated to serve on committees. The Senate, by adopting the report, has appointed senators to the committees.

The next step is in dispute. My comments here may be repetitive from the committee’s second report, but I feel it is important to reiterate the arguments for all here in the Senate.

Generally speaking, the practice that “senators appointed to the standing committees and the standing joint committees shall serve for the duration of the session” has existed since Confederation. This is indeed rule 12-2(3), “Term of appointment of members of committees.”

We have followed this rule up until previous sessional orders that were adopted during the first and second sessions of the Forty-third Parliament. These orders introduced the same provisions we are considering in this second report — provisions that:

. . . . preserve the number of committee seats agreed to for each recognized party or recognized parliamentary group, after members were named, even if a senator’s affiliation changed for any reason.

I, and many other senators, have said before: a senator is a senator is a senator. Once a senator has a committee seat, it is their seat. If they decide to change groups, they should be able to keep their seat. This is how our rules work, and this is what we should follow.

However, this report allows us to subvert this rule again. If it is the will of the Senate to continue to do this, why are we not studying these changes in the Rules Committee? Isn’t that the job of the Rules Committee?

The second report of Selection states that:

If a senator ceases to be a member of a particular recognized party or recognized parliamentary group for any reason, he or she simultaneously ceases to be a member of any committee of which he or she is then a member, with the resulting vacancy to be filled by the leader or facilitator of the party or group to which the senator had belonged . . .

I do not agree with these changes which is why, honourable senators, the second report contains a dissenting opinion, and I will review that in short here now.

Whether a senator changes their group affiliation, or a non-affiliated senator joins a group, the Rule ensures the independence of each senator to conduct their committee work, entrusted to them by the Senate itself.

The population of committees is based on negotiations amongst the groups and respects proportionality, but the Senate is the ultimate arbiter of committee seats.

The recent sessional orders have infringed on the independence of individual senators by setting aside rule 12-2(3). Placing the authority over committee seats directly with the leadership of parliamentary groups and political parties, as this report does, is a continuation of that misguided practice.

It continues to be my view, and that of others, that the allocation of committee seats to parliamentary groups and political parties is a step backward in Senate modernization, and removing committee portability entrenches the authority of group and party leadership. That doesn’t sound like reform or independence to me.

For some historical context on the existence of our rule, it should be noted, honourable senators, that other Westminster parliaments have similar rules and practices. The United Kingdom’s House of Lords complies with its Standing Order 63, established in 1975, which states:

The orders of appointment of the following committees, and any of their sub-committees, shall remain in force and effect, notwithstanding the prorogation of Parliament, until such time as the House or committee makes further orders of appointment in the next succeeding session.

In the Australian Senate, members of standing committees are appointed at the beginning of each Parliament. Membership may only be changed by motion which discharges the former member and appoints a new one.

In the other place, Standing Order 114(1) also ensures that members appointed to a standing committee remain members throughout the Parliament. So then why is the Senate of Canada becoming a stand-alone body that is subverting similar rules?

Some of my honourable colleagues continue to argue that this is a proportionality problem. If we do the math, as was done with the negotiations, senators are recommended to the committees based on proportionality. If a senator leaves a group and joins another, does not that group’s proportionality of the total go up? That’s the math. Therefore, the move, with the senator keeping the seat, ultimately continues to respect the principle of proportionality.

Think about that, honourable colleagues.

Lastly, the dissenting opinion concludes:

. . . if the goal is a Senate made up of more independent senators, it is contrary to that goal to remove the right of individual senators to be appointed to committees for the duration of the session, regardless of affiliation. By removing that right and placing committee seats solely in the hands of facilitators, leaders, whips and liaisons, we would be undermining individual independence and limiting the freedom of affiliation of us all.

I challenge all senators to take control of their own destiny and vote against this report. This is your chance, perhaps your only chance, to exercise your independence. Thank you, honourable senators.