Speaker of the Senate, Noël A. Kinsella Interview

Interviewed by Greg Farries on Mar 13, 2008

Members of the Maple Leaf Web Forums where given the opportunity to propose questions to Speaker Kinsella. A few of those questions were included in this interview.

Greg Farries: The Speaker plays an important role in the day-to-day operations of the Senate. What do you consider the Speaker’s most vital role in the Senate? Moreover, what qualities do you feel make an effective Speaker?

Speaker Kinsella: Well, first and foremost, the responsibility of the speaker in any chamber in the Westminster Parliamentary system is to maintain order and to facilitate the smooth functioning of debate. The debate is the life and soul of Parliament. So, the Speaker’s responsibility is to ensure that the Standing Orders of the House are respected, that the debate proceeds in an orderly fashion and that the members’ privileges are protected. That is basically the function the Speakers play, whether in any of the legislative assembles in Canada or the two Houses of Parliament.

Greg Farries: When most people think of Parliament they often think of the lively debate that takes place during the House of Commons question period. Is it a similar situation in the Senate?

Speaker Kinsella: No, it would be quite different in the sense that the responses to the questions raised in the Senate come from two groups of Senators. On one hand, the Leader of the Government in the Senate responds to all questions raised concerning issues of the Government. The exception — and we’re in one of those exceptional circumstances today — is if there is another Senator who is a Minister of the Government. Today, it is Senator Michael Fortier, the Minister of Public Works who may be asked questions by the Honourable Senators. But the questions may only relate to his ministerial area of responsibility, namely, public works. Senator Marjory LeBreton, who is a member of the Government and represents the Government in the Senate, answering all questions (other than public works) in the name of the Government.

The other group of Senators who may be asked questions during Question Period are any of the Chairs of the Senate Standing Committees. They are required to answer questions and the Standing Orders provide for that.

Greg Farries: The public tends to be unaware of the Senate’s role. What would you stress is the most vital function of the Senate in Canadian politics?

Speaker Kinsella: Under our Canadian Westminster System of parliamentary democracy, the role of the Upper Chamber is fundamentally to be a house of review. Normally government legislation commences when it is presented by the Government in the House of Commons. The bill goes through the same legislative steps in the Senate, as it would in the House of Commons: first reading; second reading; which is then followed by a debate on the principle for a given bill and referral of that bill to a committee for detailed study and input. Witnesses may also be called by the committee to give expert testimony on the content of the given bill. Then it is reported back to the [Senate] Chamber with or without amendments before it goes on third reading. [After third reading] a message is sent back to the House of Commons stating the Senate has studied the bill and concurs with the bill unamended, or recommends given amendments. So fundamentally, the legislative role of the Senate is to serve as a house of review.

Theoretically, the function is that you get better legislation if you’ve got two Chambers looking at a legislative proposal, rather than one Chamber.

Greg Farries: Traditionally, a key role of the Senate is to provide sober second thought on legislation passed by the House of Commons. During its history, the Senate has acted on this role, stalling the passage of certain pieces of legislation, the most famous recent example being the 1988 US-Canada Free Trade Agreement. As Speaker, do you believe this is an appropriate role for the Senate?

Speaker Kinsella: First off, it’s important to understand the rules of procedure, which have a history in our country of over 140 years. [These rules] provide us with a good foundation as to what the parliamentary procedural opportunities are. Sometimes delay or making sure sufficient attention is drawn to a given legislative proposal — so that the public can be aware of the proposal — is a legitimate procedure used by Senators. Senators have in the past — as they have in the other Chamber if there is criticism on a bill and they want the public to be aware of the criticism — used delay as a parliamentary tactic.

The Senate’s role is to exercise its responsibilities to review legislation to make sure Parliament really knows what it is proposing to make law. The tradition in Canada for the past 140 years is, if at the end of the day, there is a disagreement [interrupted by an election] — as there was with the Liberal majority in the Senate in the case you’ve cited, where a national federal election intervened, the Conservative government was returned and the Liberal majority remained in the Senate — the Senators recognized that the Government had been re-elected and they agreed to the free trade bill. In other words, they continued to respect the constitutional convention, which states that at the end of the day, the Senate yields to the will of the House of Commons. Why? Because the House of Commons members are directly elected by the people of Canada.

Greg Farries: Another key role of the Senate has been to investigate social and political issues facing the country. This role often overlaps with public inquiries, the most recent example being investigations in the future of public health care in Canada, which were undertaken by both the Senate and a Royal Commission. What advantages are there to having the Senate investigate public issues, as opposed to holding a full-blown public inquiry?

Speaker Kinsella: The record certainly demonstrates that public policy inquires or studies that the various Senate committees undertake are, in fact, first-class pieces of work. The example you have given, the Senate Standing Committee on Social Affairs, Science and Technology did do a study from a policy development point-of-view of the health system in Canada. And that study was occurring while there was a Royal Commission underway on the same topic. At the end of the day, the Senate Committee report was adopted by the Senate; it ended up being the foundation upon which the Government of Canada went forward in improving the public health care system. Obviously, there was some overlap [with the Royal Commission’s report on Health Care], but there were some differences. The Government found that the Senate study was a more appropriate way, and it wanted to base its policies on what the Senators came up with.

That is not surprising when considering on that particular committee, as we find on other committees, the honourable members who sat on that committee were extraordinarily gifted men and women. For example, the chair of that committee was former Senator Michael Kirby, who has had years of experience in public policy: he was Deputy Clerk of the Privy Council. The Vice-Chairman of the committee was Doctor Wilbert Keon, one of Canada’s pre-eminent cardiology surgeons, a former director of the Ottawa Heart Institute. There were a number of other members of that committee that were highly qualified. This is the advantage of having Senators who come from vast professional backgrounds and experience.

When one looks at the composition of the Senate, it’s very impressive to see some of the skill sets that are present, skill sets that are then brought to bear on these policy studies undertaken by the Senate.

Greg Farries: Do you agree with limiting the terms Senators may serve? [This question was submitted by forum member Capricorn.]

Speaker Kinsella: Let me add to that question in this way: my analysis of the Canadian system of governance proceeds from the standpoint of how well has the practice of freedom been in Canada. If you look over the past 140 years, freedom has had, in my opinion, a fairly grand success in Canada. Yes, along that way there have been some bumps and unfortunate things, and perhaps not always a smooth road. I think, for example, of the incidents like Komagata Maru, the internment of Japanese Canadians, the Chinese head tax, and others incidents like these. By and large, looking at Canada today, I cannot find any other country around the world where freedom, democracy and democratic values are as rich as they are in Canada. I say to my students, if you can find that place, let me know where it is.

Therefore, I come to the conclusion that there has got to be a few things right about the Canadian system of governance, based upon our experience of freedom during the past 140 years. Now, with that backdrop, can our institutions, all of our institutions, be improved? As you know, Parliament, under our Constitution, is composed of three constituent elements: the Crown, the House of Commons, and the Senate. Can each of these institutions be improved? No doubt. Any organization can be improved. But I do believe that the fundamental model of these three constituent elements of Parliament is valuable, and that there are lots of things right about it. To answer your specific question of the bill [on limiting terms introduced by the Government] that is in Parliament, that bill — and looking at the issue of terms — speaks to one of the three big questions about reform. The first is accountability. The second issue is the selection process: as we all know, on July 1, 1867 Canada came into existence with this particular model of governance. On July 2, 1867 the debate on Senate reform began and has been going on for the past 140 years. Very often the focus has been on the selection process.
We also have a proposed constitutional resolution brought forward by Senator Murray and Senator Austin dealing with the issue of representation; in particular, what is perceived as the under-representation of British Columbia and Western Canada. That is the third big question around Senate reform.

What pleases me is that for the first time in our history we have three big questions on the order paper for debate in Parliament. We have had, on term limits, witnesses appearing before the committee examining the issue of term limits and a fair amount of debate. We’ve never had that before, and the present Parliament is certainly engaged in this issue.

Greg Farries: In terms of Senate reform, with all these different proposals floating around, in your opinion, what reforms could be implemented to improve the effectiveness of the Senate?

Speaker Kinsella: I think the Senate is very effective as a second chamber on an operational basis. I think, as all institutions, it could be improved if we are able to come up with a model for improving the selection process and term process, as well as dealing with regional representation issue. If one reflects upon the representation side of things — the representational model that is used for selecting members of the House of Commons — how brilliant and wise the Fathers of Confederation were back in 1867. In the House of Commons today, there are 308 members and from the province of Ontario alone, there are some 106 members; one third of the members of the House of Commons come from one province alone. That means a third of the political power is concentrated in one province. The wisdom of Fathers of Confederation was to use the Upper Chamber as a balance to the House of Commons.

The three Maritime provinces were created as a division, and were given 24 senators. Upper Canada and Lower Canada each had 24, so that you had some degree of equality. In today’s terms, the inequality that many of people perceive is that Western Canada, that is, west of the Ontario border, was created as one division and only given 24 senators. That principal of balance and fettering the awesome power of the House of Commons — which centres power in one province — brings the wisdom of having representation in the Senate as a counter balance. Indeed Confederation would never have occurred (in the opinion of some authors) had the Senate not been part of the system proposed.

Greg Farries: Do you think there are any reforms that would ensure that Senators not only represent the geographic diversity of Canada, but also the cultural and ethnical diversity?

Speaker Kinsella: That’s a very interesting question. In some parts of the world where they have bicameral systems, they make a special effort to have a percentage of members coming from different ethnic or national groupings. I see that working in some countries, and I’ve seen it not work so well in other countries. In some countries that started off with a bicameral system where the selection process was the same in each chamber, they ran into the difficulty of their parliaments becoming paralyzed because the lower and the upper house made the same claim to electoral legitimacy. In some incidences they abolished one of the two houses and then ended up with a unicameral system. I think all of this is about the history and local experience of a country and its peoples. As I said, that is why I believe that we have to be very, very prudent and understand what the real test is. In my opinion, the real test of the effectiveness of governance is how well does freedom prevail in that particular country.

Greg Farries: Is it possible to enact these types of Senate reforms within the existing framework, or do we need to crack open the Constitution?

Speaker Kinsella: I believe there is an opportunity here. That is why I am very supportive of the current Prime Minister and I’ve congratulated him on being the first Prime Minister to at least get those three big questions on the order papers of Parliament. Which model, at the end of the day, would be accepted, and which model would be achieved through an amendment to the Parliament of Canada Act as opposed to an amendment to the constitution? That is a technical issue.
The issue of the Senator-selection process in the Government’s bill is a very interesting one. It is very respectful of the current constitution; it is advisory, so that the purgatives of the Prime Minster remain. I like the indirect election model for the Upper House, whereby the Prime Minister would nominate a person for a province where there is a vacancy, and it would be tested by the legislature of that particular province.

Greg Farries: What is the reception of the other Senators to these proposals?

Speaker Kinsella: I think every Senator you speak with will engage in a good discussion on Senate reform. Some of them have done a fair amount of writing and reading in the area. I think all Senators have a strong opinion on this subject.

Greg Farries: I think you might agree there are some misconceptions about the Senate. The general public may not have a keen understanding of the Senate or what exactly it accomplishes; hence they may respond that it needs to be reformed or perhaps abolished. However, what you’re saying in this interview is that it is effective. What can the Senate do to improve the public’s perception of the Senate?

Speaker Kinsella: As Canadians, we are bombarded with what we learn about governance from our neighbours to the South and their particular system. And because the terminology is similar, many people would be of the view that the House of Representatives is similar to the House of Commons and that the US Senate is the same as the Canadian Senate. But that is a congressional system, which is radically different from our parliamentary system. There would be very few students, even at the universities in Canada, who would understand this distinction. We need to take the time to first understand our system of governance and, from my point of view, see what we’ve achieved with this system. [We should also] recognize that any modifications we make to the Senate should mean that the burden of proof is on those proposing the modifications and the practice of freedom will be enjoyed as much or more under the modified system.

Greg Farries: Do you think the Senate will be reformed in your lifetime or perhaps during your tenure as Speaker? [This question was submitted by forum member, August1991.]

Speaker Kinsella Yes, I am very hopeful that we are going to be successful in bringing about some positive modifications not only to the Senate but also the House of Commons. No doubt at some point in time Canadians will be reflecting upon what modifications are meaningful in terms of a third element of Parliament, the Crown.

Greg Farries: That’s great to hear, I certainly hope that this interview helps people understand the Senate a bit more.

Speaker Kinsella: Thanks you very much for calling,

Greg Farries: Thanks and goodbye.