The House and Its Members / Miscellaneous

February 27, 1996

Debates, pp. 16-20

On December 14, 1995, Ray Speaker (Lethbridge), House leader of the Reform Party, rose on a point of order to argue that the leader of the Reform Party should be recognized as the Leader of the Opposition instead of the leader of the Bloc Québécois.^[1] Although the Reform Party had only 52 seats, compared to the Bloc’s 53, Mr. Speaker maintained that other criteria should be taken into account in determining which party should be recognized as the official opposition. Because the Reform Party caucus included members from five provinces instead of just one, and because the party had received a larger percentage of the popular vote than the Bloc, Mr. Speaker submitted that his party represented a broader range of interests than the Bloc Québécois did. Mr. Speaker also noted that the leader of the Bloc Québécois had indicated that he was planning to resign his seat. After hearing interventions from other members, the Speaker promised to consider the matter and return to the House with a decision if he deemed it necessary to do so.

On January 15, 1996, Lucien Bouchard (Lac-Saint-Jean), leader of the Bloc Québécois and Leader of the Opposition, resigned his seat in the House of Commons, leaving the Bloc Québécois with the same number of seats as the Reform Party. On February 2, 1996, Parliament was prorogued, and the Second Session of the 35th Parliament began on February 27.

On February 27, 1996, immediately before the House began consideration of the Speech from the Throne, the Speaker made a statement concerning the designation of the Leader of the Opposition and the official opposition. He noted first that nothing in the rules or in legislation gave the Speaker precise powers and guidelines regarding the designation of the Leader of the Opposition. However, since the Speaker must ensure the orderly conduct of business, it was his responsibility to determine which party formed the official opposition in light of the point of order raised in the First Session and the recent equality in the number of seats held by the Bloc Québécois and the Reform Party. The Speaker said the question was whether a tie was sufficient to displace the recognized official opposition. Based on precedents from other jurisdictions, he concluded that incumbency should be the determining factor in this case and that the status quo should be maintained. Therefore, he ruled that the Bloc Québécois would retain its status as official opposition, and the leader of that party would be recognized as the Leader of the Opposition until a further review was warranted.

Decision of the Chair

The Speaker: Before we proceed to the consideration of the speech of His Excellency the Governor General of Canada, I wish to address the matter of the designation of the official opposition. Members will recall that in the last session on December 14, 1995, the honourable member for Lethbridge raised a point of order and presented arguments supporting his contention that the Reform Party should be designated the official opposition.

As honourable members are aware, the Bloc Québécois and the Reform Party are now tied with 52 seats each in the House. It is within this new context that I must address the House today. While prorogation terminates all outstanding business before the House including points of order, in this case there are mitigating circumstances that compel me to refer to arguments presented by honourable members last December.

Before doing so, I want to make a few remarks concerning the role of the Speaker in situations such as this. In some jurisdictions faced with similar questions, the laws or rules of those legislatures give the Speaker precise powers to designate the official opposition, or specify the criteria upon which the designation of official opposition is to be made. In such cases, the Speaker is left with no discretion in the matter. I would refer honourable members to the Ministerial and other Salaries Act, 1975, of the United Kingdom, and the Legislative Assembly and Executive Council Act of Saskatchewan, as examples.

Here in the House of Commons, however, there are no such rules or guidelines. On December 14 several members who contributed to the discussion contended that it was up to me as Speaker to decide this question. The honourable member for Elk Island, after raising the idea that the official opposition may be considered as a government-in-waiting, went as far as to state on page 17677 of the Debates:

I cannot emphasize strongly enough the importance of the decision you are about to make in the next six weeks. You are being called upon to decide who would form the government of Canada in the event the Liberals resigned.

If you decide Canadians are best served by a party whose stated objective, which it has demonstrated in the last two years consistently, is to break the country into two pieces, you would err greatly.

I must respectfully differ with the honourable member. Your Speaker of the House has no role to play in the selection of a government. In our system the Speaker chooses neither the government nor the government-in-waiting. That prerogative belongs to the Governor General of Canada on the advice of his Privy Council.

To put the Speaker in a position in which he would be choosing not only the official opposition but perhaps the next government based not on any objective criteria such as numbers in the House but rather on a qualitative judgment about the performance of the current official opposition party seems to me an untenable proposition. It would also be an encroachment on the royal prerogative and a violation of our long-established constitutional practices.

Unless the House wishes, either in the rules or in legislation, to give the Speaker precise powers and guidelines by which to designate the official opposition, I must state at the outset that I do not feel it is within my power to make such a decision, based on the argument advanced by the honourable member for Elk Island.

As I did when preparing my June 16, 1994, ruling on the designation of party status for members of the New Democratic Party, I have again looked to the rulings of my predecessors for guidance in understanding my role in dealing with such unprecedented cases. In 1963, Speaker MacNaughton was asked to rule on the question of seating of opposition parties in the Chamber. At that time, he commented at length on what he perceived to be the role of the Speaker in such matters. This statement can be found at pages 385 to 388 of the Journals for September 30, 1963. I feel that much of what he said is relevant to the current circumstances and have used his words as a guide in examining the matter.

I would like to quote again certain sections of Speaker Macnaughton’s statement:

The legal rights and duties of the Speaker are to be found in the Statutes of Canada, the Standing Orders of the House, in the constitutional and parliamentary authors and finally in the customs and precedents which have become constitutional conventions.

According to Campion, the Speaker is the representative of the House itself, in its powers, proceedings and dignity and the chief characteristics attaching to the office of Speaker of the House of Commons are authority and impartiality—. It is in consequence among the duties of the Speaker to see that the Standing Orders of the House are followed in the course of its procedures and that the privileges of the House, once they have been defined and recognized, are protected.

It is also the duty of the Speaker to be impartial and removed from politics—.

Allow me to refer once more to the special traditions that surround the office of the Speaker. While he is the servant of the House he is, at the same time, its spokesman and its symbol. His value to the House and its members continues effectively only when the House assists him in every way to maintain his dignity and his impartiality—.

It seems to me that-a situation such as that now facing the House must be resolved by the House itself. It is not one where the Speaker ought by himself to take a position where any group of members might feel that their interests as a group or a party have been prejudiced. Nor should the Speaker be put in a position where he must decide, to the advantage or to the disadvantage of any group or party, matters affecting the character or existence of a party, for this surely would signify that the Speaker has taken what is almost a political decision, a decision where the question involves the rights and privileges of the House itself.

The designation of the official opposition has never been decided on the floor of the House of Commons. As Speaker, I am entrusted with the responsibility of ensuring the orderly conduct of business in the House. To do so, I must now determine, in light of the tie situation and the point of order raised, which party shall form the official opposition.

It is a cornerstone of our democratic tradition that government rests on the consent of the governed. This means that the minority accepts the right of the majority to make decisions provided that the right of the minority to be heard, to dissent, to air grievances and to promote alternative policies is respected.

The role of an opposition in our form of parliamentary government is therefore fundamental. Its leadership is equally important.

For this reason, Parliament has seen fit to acknowledge the importance of the individual holding the position of leader of the official opposition by providing this person with support and allowances similar to those granted to the Prime Minister. As well, in its procedures the House recognizes the significance of this position, despite the lack of any official definition thereof.

The position of leader of the official opposition is firmly anchored in our parliamentary system of government through practice and the implementation of various statutes and rules of procedure. The importance of the official opposition and its leader has been commented on both in Canada and in other countries with Westminster-style Parliaments for well over a century.

The question of which party would assume the role of the official opposition, however, has never been an issue in our House of Commons until now. As the honourable member for Lethbridge pointed out, perhaps it is for this reason that there has never been any definition or method of designating the official opposition or the Leader of the Opposition in either our statutes or Standing Orders.

Without written rules detailing the procedures for the selection of the official opposition, the title has traditionally been assumed by the party which held the second highest number of seats in the House of Commons. The one exception occurred after the 1921 general election when the Progressive Party won the second highest number of seats but, because of their support of the government of the day, declined to assume the role of official opposition.

In his submission, the honourable member for Lethbridge cited three precedents to support his claim that the Reform Party should be designated the official opposition. The first precedent the honourable member cited illustrated his contention that, in the case of an equality of seats, popular vote and the range of interests represented by a party should determine which party is designated the official opposition. The other two precedents, he suggested, indicated that where doubt exists in the choice of the official opposition, members of the opposition have been allowed to select their leader; the Speaker has had a role to play in this process; and parties which have not had the second highest number of seats in the legislature have become the official opposition.

While all three precedents occurred in circumstances quite different from our present situation, for the benefit of honourable members I would like to comment on each.

The first precedent referred to by the honourable member was the ruling of Speaker Amerongen in Alberta in 1983. I have reviewed this ruling and the circumstances in which it was given.

As the honourable member knows, this matter was raised at the beginning of a new legislature following a general election. The opposition was composed of two New Democrats and two independent members. Both the leader of the NDP and the then member for Little Bow, who is currently the honourable member for Lethbridge in our House, had sought recognition as leader of the official opposition. As the honourable member pointed out, the Alberta Speaker based his decision to grant official opposition status to the New Democratic Party, in part, on the popular vote received by the New Democratic Party.

However, in a ruling on the designation of the New Brunswick official opposition given by Speaker Dysart on December 16, 1994, a ruling referred to by the chief government whip, the Chair rejected the Alberta precedent based on popular vote as being unsound and as setting an undesirable precedent. I must concur with Speaker Dysart when she stated on page 3752 of Hansard of the Legislative Assembly:

Basing a decision on factors outside Parliament opens the door or invites future decisions with no basis in parliamentary precedents or practice. With the one noted exception,—

that of Alberta—

—the official opposition has been determined by the number of seats held by the party, not by their popular vote.

The second precedent referred to by honourable members concerns the outcome of the first post World War I general election in Great Britain. The situation was very complicated and I would like to describe the circumstances faced by the British Speaker at that time.

As the honourable member for Lethbridge noted, the government elected in December 1918 was a coalition of 383 Conservative-Unionists, 133 Coalition Liberals and 10 Coalition Labourites led by the Liberal Prime Minister David Lloyd George. The main opposition groups in descending order of seats were the Labour Party, a number of anti-coalition Liberals, and the Irish Nationalists. Members of the Sinn Fein, the largest party in opposition with 73 members, refused to take their seats at Westminster.

The anti-coalition Liberals under Herbert Asquith, had suffered a severe election defeat and Mr. Asquith himself had lost his seat. Until he could return to the House in a byelection, the Liberals chose Sir Donald Maclean, the former Deputy Speaker, as the party’s parliamentary leader.

The Labour Party, whose defection from the wartime coalition government had in part precipitated the election, increased its representation in the House, but the party’s leaders were defeated in their own seats. William Adamson, a returning member from Scotland, was selected as the Labour leader in the Commons since the majority of the Labour members were new members without parliamentary experience.

From my research, it would appear that the situation as described by the honourable member for Lethbridge was not completely accurate. In Volume II of A Speaker’s Commentaries, the memoirs of the then British Speaker James Lowther, at pages 251 and 252, he describes the situation as follows:

Before the new Parliament met I was confronted with the difficulty of having to decide which party constituted His Majesty’s opposition. The Liberals only mustered 26, whilst Labour numbered 59. The latter, therefore, claimed to have become the official opposition. I was interviewed by Mr. Adamson, who was then the chairman of the Labour Party, and strongly urged their claims. He argued that there were 59 Labour members representing a distinct and independent party, that Labour candidates had received the support of more than 2 1/4 million voters at the recent election, that the Liberals numbered only 26, and that even those 26 were only a minority of a party which was identified with and formed part of the coalition government. On the other hand, some members of the Liberal Party argued to me that their discomfiture was only temporary and that they were the real “Simon pure”, with great historical traditions behind them, which should not be lightly set aside by reason of a passing failure at the polls. It was a difficult situation. I pointed out to Mr. Adamson that my share in determining the question of the leadership of His Majesty’s opposition was a very small one, and was limited to determining who on the front opposition bench should, every Thursday, ask the formal question as to future business; that if the question of determining the official opposition was to be solved by numbers, the Sinn Fein Party, who had not then decided whether they would come to Westminster or not, outnumbered the Labour Party by a dozen or more; and that the application of a strict arithmetical rule might lead to some embarrassment and might compel me, in the event of the opposition parties becoming about equal in numbers, through the decision of by­elections, to resort to a weekly census. I therefore solved it in the usual British fashion by a compromise, in the nature of Solomon’s judgment, suggesting that the leadership should be divided between Sir Donald Maclean and Mr. Adamson. This course was adopted, and during the duration of the Parliament Sir Donald and Mr. Adamson used in alternate weeks to exercise their privilege as leader, of asking the formal questions as to the future business of the House, the only Parliamentary act which by tradition is the prerogative of the leader of His Majesty’s opposition. In the matter of initiating or winding up debates on behalf of their parties, they both took part, dividing the honours between them so far as possible.

My understanding of the events and recollections of Speaker Lowther is that there was no formal decision rendered by the Speaker. Rather, he simply offered a suggestion which the two parties accepted. The consultations which occurred took place outside the Chamber before the new Parliament met, and before Speaker Lowther was re-elected.

Nothing in the Debates indicates that Sir Donald Maclean of the anti­coalition Liberals was leader of the official opposition. In fact an examination of the Debates in the House of Commons for that session of Parliament confirms that the two party leaders did alternate in asking the Thursday business question, but in debate Mr. Adamson was given precedence over Mr. Maclean. It should also be borne in mind that in Britain the Leader of the Opposition did not receive an additional allowance until 1937.

Thus even with much less serious consequences, Speaker Lowther was reluctant to play a role in determining the Leader of the Opposition and limited his role to suggesting a compromise. This precedent in my view does not support the position of the honourable member for Lethbridge.

The third precedent cited by the honourable member concerns events which occurred in Australia during the Second World War. The situation in the House of Representatives at that time was as complex as that of Great Britain in 1918. The Australian Government at that time was a coalition of the larger United Australia Party or UAP, under Mr. Robert Menzies, and the smaller United Country Party or UCP, under the leadership of Mr. Arthur Fadden. Mr. Fadden, however, was the Prime Minister. On October 7, 1941, the coalition was defeated in the House, the government resigned and a Labour Party government was sworn in.

The Australia and Country parties remained a coalition going into opposition. As leader of the larger of the two parties, Mr. Menzies normally would be expected to become Leader of the Opposition. However, as the outgoing Prime Minister, Mr. Fadden also had a claim to the position.

The honourable member for Lethbridge stated that the United Australia Party settled its own leadership and then in a joint meeting, presided over by the Speaker, elected the leader of the United Country Party as Leader of the Opposition.

The events, however, were far more complicated. According to Australia’s Commonwealth Parliament, 1901-1988 by G.S. Reid and Martyn Forrest, at pages 58 and 59, at a meeting of the Australia Party Mr. Menzies tried to convince his colleagues that the opposition leadership should not be left to Mr. Fadden. He also suggested the Speaker of the House, Walter Nairn, should preside over the joint meeting.

Mr. Menzies’ motion concerning the opposition leadership was soundly defeated by his party colleagues and as a result Mr. Menzies declined to seek renomination for his party’s leadership. The result of the joint meeting, convened immediately after the UAP meeting, saw the selection of Mr. Fadden as Leader of the Opposition supported by many Australia Party members. According to Reid and Forrest, press reports of the period stated that Mr. Fadden’s election was unanimous.

It should be noted that where the number of seats in the Australian House did not clearly determine which party should be the official opposition, the opposition parties took it upon themselves to meet outside the Chamber to try to resolve the difficulty.

With information obtained directly from the Australian House of Representatives, it cannot be confirmed that Speaker Nairn presided over the joint meeting. However, as Speaker Nairn was a member of the Australia Party, he would probably have been present at the meeting, as it was common practice then and still is the practice for the Australian Speaker to attend his party caucuses.

Since no records of these meetings have been published, I am unable to determine with any certainty who presided over this meeting. If Speaker Nairn had chaired the meeting he probably would have done so in a party role and not as an impartial Speaker of the House.

In the Canadian House of Commons, the election of the Speaker by secret ballot affects his or her political relationships. It places upon the Chair occupant an even greater obligation to set aside his or her parliamentary party connections while serving as the Speaker for all members of the House. Once elected, the Speaker therefore does not attend any caucus. If any group of members wished to meet outside the Chamber to deal with some matter, and indicated their wish for me to chair such a meeting, I would of course offer my services as an impartial, neutral facilitator. I am sure that no member of this House would want to see the Speaker involve himself in partisan matters.

Therefore the Australian precedent does not assist me in the matter currently before me. Having listened to the presentations by honourable members, having examined the precedents referred to by the honourable member for Lethbridge as well as others from provinces and other countries, and having taken into account our own traditions, I can find nothing which would have supported the contention of the honourable member for Lethbridge that the Speaker of the House of Commons may decide to grant official opposition status to the second numerically important party in opposition.

By convention the number of seats held by a party in the House has been the determining factor.

I would now like to address the new reality which the House faces today, and that is the issue of the equality of seats of the Bloc Québécois and the Reform Party.

At the beginning of this Parliament the Bloc Québécois, the largest minority party in the House, assumed the role of the official opposition with their leader taking up the duties of the leader of the official opposition. As a result of a byelection and the resignation of the honourable member for Lac­Saint-Jean on January 15, the Bloc Québécois and the Reform Party now have the same number of seats in the House.

Just as Speaker Dysart of New Brunswick was required to do in 1994, I must answer the following question: is the existence of a tie sufficient to overthrow or displace the recognized official opposition? From my examination of the precedents from other Canadian jurisdictions, including the most recent precedent from New Brunswick, I must conclude, just as Speaker Dysart and other Speakers have, that in the case of a tie during the course of a Parliament incumbency should be the determining factor and the status quo should therefore be maintained.

An equality of seats in the two largest opposition parties should neither deny the members of the Bloc Québécois their position today as the official opposition nor prevent them from choosing from among their members the leader of the official opposition. Thus the Bloc Québécois will currently retain its status as the official opposition until a further review of this status is warranted.

I hope it is clear to all members that in this matter the role of the Speaker is to ensure the business of the House is conducted according to the Standing Orders and our practices. It is my duty to ensure that any matter which may be legitimately brought before the House meets the procedural requirements for the form in which it is presented.

As I noted earlier, the designation of the official opposition has never been decided on the floor of the House, and the House has never put in place a procedure for the selection of the official opposition. My comments are obviously made in relation to the present context of the number of seats on the opposition side of the House and in the absence of any statutory authority or rules or guidelines for the Speaker to act on if required to intervene in determining which party should at a certain point in time become the official opposition.

I wish to thank the honourable member for Lethbridge for raising the point of order and all other members for their contributions, as well as their patience in listening to this lengthy but important statement.

P0202-e

35-2

1996-02-27