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“Process for recommendation – Clerk of the Senate and Clerk of the Parliaments”: Report of the Standing Committee on Internal Economy, Budgets and Administration

“Process for recommendation – Clerk of the Senate and Clerk of the Parliaments”: Report of the Standing Committee on Internal Economy, Budgets and Administration

“Process for recommendation – Clerk of the Senate and Clerk of the Parliaments”: Report of the Standing Committee on Internal Economy, Budgets and Administration

Hon. Joseph A. Day (Leader of the Senate Liberals): Honourable colleagues, I would like to say a few words in relation to this particular matter. There is a bit of a history here that I will go into on this, but it has been dealing with how we can modernize, change and become more independent as a chamber.

I’ll explain how we have been working in that regard on this particular matter. I looked at the Order Paper, and it doesn’t actually give you the report. What I’m going to be debating and asking you to consider my comments on is the thirty-eighth report of Internal Economy. The report is not reproduced, so permit me to give you a précis of what I’m asking you to consider. The report says:

On December 6, 2018, the Senate authorized your committee to recommend “a process by which the Senate could submit to the Governor-in-Council its recommendation on the nomination of a person or list of persons with the skills and capacities required for the position of Clerk of the Senate and Clerk of the Parliaments”.

Your committee notes that the Clerk of the Senate and Clerk of the Parliaments is appointed by the Governor-in-Council under the provisions of the Public Service Employment Act.

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So that’s not lost. They didn’t do this without taking that into consideration.

Your committee recommends as follows —

This is Internal Economy recommending to the Senate Chamber —

1.That the search process for the Clerk of the Senate and Clerk of the Parliaments be led by the Subcommittee on Agenda —

That’s the Steering Committee of Internal —

— in collaboration with the Speaker of the Senate;

2.That the Steering Committee and the Speaker be supported by an executive search firm throughout the process, leading to the interview of a short list of candidates; and

3.That the recommendation of one (or a list of) candidate(s) be made by the Steering Committee and the Speaker to the Governor-in-Council for the official appointment to take place.

That is what Internal Economy is asking you to consider. I’m pleased to support that particular report, and I hope that you will.

To help explain my support, I would like to refer to a speech I delivered in this chamber in December of last year. At that time, I was speaking to Senator Saint-Germain’s amendment to the motion of Senator Housakos on this matter. The motion of Senator Housakos called on the government to appoint a new Clerk of the Senate “in accordance with the express recommendation of the Senate.”

Senator Housakos originally gave notice of this motion in April 2018, a little over a year ago. However, as I explained in my remarks in December, there was a long history underlying his motion. I would like to briefly remind everyone of that history, if for no other reason than it helps to explain what we’re trying to achieve, but it also points out that there has been a lot of ongoing work trying to modernize the Senate and to bring our processes and procedures more up to date as we move ahead.

In the summer of 2017, when we heard through His Honour that the government was intending to establish a selection process for a new Clerk of the Senate, Senators Smith, McCoy and I wrote to the Speaker and to the government leader.

In our letter of July 27, 2017, we described the informal consultations that took place between the government and senators on at least two occasions when a new Clerk was being appointed by the Governor-in-Council — by cabinet. Strictly speaking, this is a GIC appointment that is totally within the hands of the government. We understand that. Cabinet’s authority over this appointment is contained in the Public Service Employment Act. There is no requirement in the act for consultation with anyone. The government can go ahead and do what the government feels is right. Nevertheless, as we described in our letter, both Prime Ministers Chrétien and Harper, in their time, appointed Clerks who had originally been recommended by senators themselves, through their leadership teams.

In our letter, the three of us proposed that, for the selection of a new Clerk, the government establish a panel made up of the Speaker, “and one senator representing each of the political caucuses, parliamentary groups and the Government Representative in the Senate.”

Regrettably, our suggestion was not accepted.

On September 8, 2017, Senator Harder wrote back to us but made no mention of having senators represented on any selection panel or committee. Instead, he stated his government had a GIC appointment process in place for various tribunals, boards, commissioners, Crown corporations, and for agents and officers of Parliament. He then suggested that we share the Senate Clerk competition “with Canadians who might be interested in this opportunity and encourage them to apply.”

That was our recommended participation in all of this.

On September 22, 2017, Senators Smith, McCoy and I wrote back to Senator Harder, explaining that we were “disappointed” that his letter “contained no commitment that senators themselves would be on the Selection Committee.”

We ended our letter by noting that the government’s official policy on GIC appointments states — and this is in the policy, which is available for anyone to read — “Selection Committee membership is based on . . . who can bring a perspective on the needs of the organization.” That is what the GIC policy states.

So we wrote back:

. . . if the government insists on treating the Senate of Canada as an “organization” for the purposes 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.”

You will recall that is the wording in the GIC appointment. And again, this was on September 22, 2017.

Another Senate-related GIC appointment occurred late that same year. In December 2017, the government announced the nomination of a new Senate Ethics Officer. A selection committee had been created by the government to assess the candidates and make a recommendation to the government for this GIC appointment. It is sounding good so far.

But as I described in my remarks last December, that committee consisted of one person from the Prime Minister’s Office, one from the Privy Council Office, one from Senate Administration, and one from the Senate government leader’s office. That was the recommendation committee.

There were no senators on this selection committee. As I said in my earlier speech, I find it disappointing that the government believes, with all due respect, that bureaucrats and political staffers are all more qualified to bring a perspective on the needs of the Senate than senators themselves.

Colleagues, I am pleased that the report we now have before us for the selection of a new permanent Senate Clerk proposes a much different approach. Instead of bureaucrats and political staffers, senators themselves would take the lead in recommending to the government a name or names of qualified individuals — and I say “in recommending”; not making the appointment but recommending.

I want to thank Senator Housakos for introducing his motion, whereby the Senate would make an express recommendation to the Governor-in-Council, to cabinet, about a new Senate Clerk.

I also want to thank Senator Saint-Germain for her amendment, instructing Internal Economy to establish a process for nominating a person or list of persons for this position.

The proposal now before us from Internal Economy looks a lot like what Senators Smith, McCoy and I proposed to Senator Harder more than a year and a half ago, in our letter of July 27, 2017.

To remind everyone, at that time we recommended that the government create a selection panel made up of the Speaker and “one senator representing each of the political caucuses, parliamentary groups and the Government Representative in the Senate.” That was our recommendation at that time.

The steering committee of Internal Economy consists of one senator from each of the Senate’s three caucuses and groups — Senators Marwah, Batters and Munson.

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The report also calls for the steering committee to work with the Speaker of the Senate. The only substantive difference between what we recommended two years ago and what is now being recommended after careful consideration by Internal Economy is that the government leader does not have a role.

I reflected on this difference and wondered if that was a fundamental flaw in the recommendation. I concluded that perhaps this outcome from Internal Economy better reflects how a truly independent Senate should function.

Senator Harder represents the government. If the Senate is truly independent, it might appear at least awkward to some people if the government, through Senator Harder, played a leading role in determining what recommendation it would receive concerning the new Senate clerk. In other words, it would be making a recommendation to itself.

The Speaker, on the other hand, even though he or she is a partisan appointment, is expected to act in the interest of the Senate as a whole. That is his or her role, to maintain a balance and to serve all of the interests impartially.

Furthermore, the three members of the steering committee of Internal Economy, which would be expected to reflect the views of their respective caucuses and groups, would be serving on that committee.

Last week, Senator Harder said he was going to seek a legal opinion because, in his view, the committee’s report “raises serious legal issues.” I am not clear what legal issues, serious or otherwise, Senator Harder is referring to.

The report before us simply establishes a process for senators, through our Committee on Internal Economy, to make a recommendation or provide a suggestion to the government about the appointment of a new clerk. I do not believe that it is illegal for an individual or organization, even the Senate, to provide suggestions, advice and recommendations to the government about any matter whatsoever. You can draw a parallel between the new process for Senate appointments and this particular recommendation. Even if a committee is established to give good thought to who would be appropriate and then to make recommendations to the government, it’s still the government that decides from the names being submitted whether to make the appointment.

The Governor-in-Council has the exclusive authority under the Public Service Employment Act to appoint the Clerk of the Senate. As I have said, there is no requirement in the act for any consultation with anyone before the appointment is made. However, likewise, there is no prohibition in the act to prevent anyone from making whatever suggestions they might wish to make about the exercise of that power.

The Senate, through its Committee on Internal Economy, and Speaker would make a recommendation to the government about the appointment of the new clerk. The government would be absolutely free to either accept or reject that advice, just as it accepts or rejects the advice from countless Canadians on countless matters throughout the year.

But as it decided whether to accept the Senate’s and the senators’ advice, the government would at least know that the recommendation had originated from the careful reflection of senators themselves, from people who were in the best position, in the words of the government, in their GIC appointment guidelines to “bring a perspective on the needs of the organization ”

Colleagues, to conclude, I strongly support this report from our Committee on Internal Economy, Budgets and Administration. In my view, it proposes an effective and reasonable way for an ever more independent Senate to play a meaningful role in the selection of its most senior administrative official.

I want to commend all members of our Committee on Internal Economy for the work they did in bringing this report forward. I urge each of you to consider Senator Housakos’ and Senator Saint-Germain’s motion and bring it forward for consideration at your earliest opportunity so we can proceed with this matter.

Some Hon. Senators: Hear, hear.