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Motion to Call on the Governor in Council to Appoint Clerk of the Senate Upon Recommendation of the Senate

Motion to Call on the Governor in Council to Appoint Clerk of the Senate Upon Recommendation of the Senate

Motion to Call on the Governor in Council to Appoint Clerk of the Senate Upon Recommendation of the Senate

Hon. Joseph A. Day (Leader of the Senate Liberals): 

Honourable senators, this is a motion of the Honourable Senator Housakos and seconded by the Honourable Senator Martin. In the interests of promoting autonomy and independence of the Senate, the Senate calls on the Governor-in-Council to appoint a Clerk of the Senate and Clerk of the Parliaments in accordance with the express recommendation of the Senate.

The amendment that has been proposed to this by Senator Saint-Germain is refining how the recommendation would be made. In effect, there would be a process for the Senate to make a recommendation. I support both of those motions.

I will speak briefly on why. Technically, I am speaking on Senator Saint Germain’s amendment, because that is what is currently before the chamber.

Let me begin by acknowledging that the appointment of the Clerk of the Senate and the Clerk of the Parliaments is a Governor-in-Council appointment. Section 130(b) of the Public Service Employment Act provides that:

The Governor-in-Council may appoint and fix the remuneration of . . . the Clerk of the Senate . . .

There is no requirement in the act for any consultation with anyone. The Governor-in-Council can go ahead and make that appointment.

However, as Senator Housakos has said, the government has been promoting the autonomy and independence of the Senate. In these circumstances, it would be logical for this independent and autonomous Senate to have a say in the selection of its senior administrative official.

Senator Housakos proposes that the Governor-in-Council — in other words, cabinet, or the government — appoint the Clerk of the Senate:

. . . in accordance with the express recommendation of the Senate.

What Senator Housakos is proposing as a formal process is what has occurred informally, on occasions in the past. There is actually a long history on this particular issue in the Senate.

Perhaps the best way to delve into it is by reading into the Senate record some of the letters that have been exchanged over the past while on this matter, because it helps us understand what some senators are thinking.

In his remarks, Senator Housakos referred to this same correspondence. Since the selection of the Clerk of the Senate is a matter that affects all of us in this chamber, we should be all aware of the details of what has been going on and the ideas that have been exchanged.

Last summer, we heard through the Speaker that the government was intending to establish a selection process for the new Clerk of the Senate. In response to that news, on July 27, 2017, Senators Smith, McCoy and I sent a letter to the Speaker and Senator Harder expressing our views. I will give you some of the highlights so you understand what was being proposed:

We wish to thank . . . the Speaker, for advising us that he plans to institute a competitive process for recruiting and hiring a new Clerk of the Senate. . . . Senators themselves should play a leading role in the process. . . .

. . . We therefore propose that the selection panel be comprised of the Speaker, and one senator representing each of the political caucuses, parliamentary groups and the government in the Senate.

That is the selection committee that we had proposed. We pointed out that in 1994 — and this is some of the history:

Mr. Paul Bélisle was recommended to the Prime Minister to be the new Clerk of the Senate by the Government Leader, Senator Joyce Fairbairn, with the full support of the Leader of the Opposition, Senator Lynch-Staunton. And most recently, when Charles Robert was named Clerk of the Senate by the Prime Minister, it was on the recommendation of the then Speaker, Senator Nolin, supported by the Leader of the Government, Senator Carignan, and the Leader of the Opposition, Senator Cowan.

That was the history that I referred to earlier, colleagues.

As explained in that letter, there were indeed at least those two precedents and examples where Senate leadership made a recommendation to the Prime Minister about who should be the new Clerk, and that advice was accepted and followed — first by Prime Minister Chrétien and then by Prime Minister Harper. This was well before there was any declaration by the government that it wished the Senate to be truly independent and to act independently.

On September 7, 2017, the Speaker responded to our July letter. I won’t read the entire letter from the Speaker, but he agreed that“. . . the Government should embrace an open and competitive framework for the appointment that will include consultation with the leadership.” He also correctly noted that since it was a GIC appointment, it was thus a matter “of government policy that fall[s] outside the scope of the office of the Speaker of the Senate.”

The next day, on September 8, 2017, Senator Harder responded to the three of us and our earlier letter of July 27. I will now give you some of the highlights of his letter of September 8:

As you are aware, pursuant to the Public Service Employment Act, the appointment of the Clerk is ultimately made by the Governor in Council . . . .

Then he talks about the policy, the same as the Speaker had, about this being a matter of government policy as to how to handle GIC appointments. The government is ultimately accountable and, therefore, the GIC appointment process is an important one that the government follows closely. They follow a rigorous approach to GIC appointments, one that is competitive, transparent and merit-based. We agree with all of that.

The letter continued:

In addition, although not required by statute, I would anticipate that the forthcoming selection process [for the new Clerk] will involve a component of consultation with the Senate’s leadership.

That is where we were left. Needless to say, at this time Senators Smith, McCoy and I were more than somewhat disappointed with the response.

Although there was talk of consulting us, there was no mention of having senators on the selection committee. Often what happens is that the selection committee is created and makes a recommendation of one or a number of individuals. Then that goes to the Prime Minister. On its way there, it says, “By the way, do you have any objection to any of these names?” That is not being part of the selection process. That was the reason for our disappointment.

On September 22, the three of us wrote to Senator Harder. This is a rather extensive letter, but it does have quite a few of the points that we had been making along the way. We pointed out the Paul Bélisle appointment as the Clerk and the Charles Robert appointment were recommended to the Prime Minister by the Senate leadership and that that his letter to us contained no commitment that senators themselves would be on the selection committee.

We pointed out as well in our letter that a modern approach to a GIC appointment is what was done with the Senate Ethics Officer. The appointment of the Senate Ethics Officer, pursuant to section 20.1 of the Parliament of Canada Act, requires prior “consultation with the leader of every recognized party in the Senate.”

However, in addition to this statutory requirement for consultation there was an assurance given by Senator Jack Austin, who was Leader of the Government in 2004, that the name of any proposed candidate for the Senate Ethics Officer position would originate in the Senate. Senator Austin stated:

. . . on behalf of the government, I now make a commitment that prior to sending the Senate the name of any person to be proposed to the Senate to be a Senate ethics officer, the Leader of the Government in the Senate shall be authorized to consult informally with the leaders of every recognized party in the Senate and with other senators, and shall be authorized to submit to the Governor-in-Council the names of such persons who shall, in the opinion of the Leader of the Government in the Senate, have the favour of the leaders of every recognized party, as well as the support of the majority of the senators on the government side, and the majority of the senators on the opposition side.

That is what Senator Austin, Leader of the Government in the Senate at the time, said here in this chamber, thus recognizing the importance of senators participating in this selection process for the Clerk.

It is noteworthy that this process, with the name of the proposed candidates originating in the Senate, is essentially the process that was followed in the GIC appointments of Paul Bélisle and then Charles Robert as Clerk of the Senate, and as interim Clerk.

We also noted in our letter that, though, that ministerial undertaking — and this was a ministerial undertaking; Senator Austin was also a minister — cannot legally bind future governments. We recognized that. Senator Austin recognized that and stated:

This government believes that this undertaking has the power of being a good, workable, appropriate approach to this issue. For that reason, we believe that future governments will see fit to follow it. It is the government’s hope that, with time, it will develop into a convention.

In our letter to Senator Harder, we wrote: “We believe that when Senator Austin was speaking on behalf of the Liberal Government of Prime Minister Paul Martin, and gave his undertaking, he was laying out a thoughtful and workable formula for dealing with GIC appointments that primarily affect the Senate.”

That is an important aspect of GIC appointments that primarily affect the Senate. That is what we are talking about here. There shouldn’t be a formula — and that was the statement earlier in the letters that I read to you, of a policy on GIC appointments. There shouldn’t be a formula that is always the same because the Senate shouldn’t expect to be involved in a selection committee for a GIC appointment for something that doesn’t affect the Senate. It is that aspect I want to emphasize.

In our letter, we continued by saying: “We would appreciate knowing whether the new Liberal government sees fit to follow this approach. . .” that Senator Austin outlined or whether it was being abandoned. We didn’t know but we wanted to know, because if they were following the same process for everything then it was a concern.

The government’s policy on Governor-in-Council appointment states:

Selection committee membership is based on. . . who can bring a perspective on the needs of the organization.

That is the policy on who should be appointed to the selection committee.

We concluded our letter of September 22, 2017, as follows: “Needless to say, if the government insists on treating the Senate as an ‘organization’ for the purpose of GIC appointments, it is difficult to understand why it would wish to leave the impression that it believes that parliamentarians who actually serve in the Senate are not the individuals best placed or even qualified to bring ‘a perspective on the needs of the organization.’”

I point that out to honourable senators because last year, when the selection committee was created by the government to find a new Senate Ethics Officer, it consisted of one person from the Prime Minister’s Office, one from the Privy Council Office, one from the Senate Government Leader’s Office and one from Senate Administration. That is it. That is the selection committee that the government created following its new policy with respect to GIC appointments. There was no senator involved.

I wanted you to be aware of that. I suppose it was felt that those four individuals — none parliamentarians — would have a perspective on the needs of the organization. I find it disappointing that the government believes that bureaucrats and political staffers are all more qualified to bring a perspective on the needs of the Senate than senators themselves.

Honourable senators, I urge you to support Senator Housakos’ motion and the motion in amendment of Senator Saint-Germain.

If the government is serious about wanting a more independent Senate, it should respect the precedents established in years past — Paul Bélisle and Charles Robert. It should respect those precedents and the undertaking given by former government leader and minister, Senator Jack Austin, which recognized that independence. We should not be going backwards on this matter, colleagues.