Recognition of the
Leader of the Opposition, Speaker Dan Hays, February 6, 2001, the Senate
Background: On February 6, Senator St. Germain filed
a notice with the Clerk of the Senate of his intention to raise a question of
privilege. This notification came within hours of the Speaker receiving a
letter from Mr. Day, M.P., Leader of the Canadian Alliance and Leader of the
Opposition in the House of Commons, advising him that he had nominated Senator
St. Germain, the only Senate member of the party, to be the Leader of the
Opposition in the Senate.
The Ruling (Speaker Dan Hays): The breach of privilege alleged by
Senator St. Germain, as I understand it, is that he is entitled to the position
and rank of the Leader of the Opposition. A failure to recognize his claim to
this position, he argued, is a denial of precedent and tradition. It also
constitutes a breach of privilege because it prevents him from fulfilling all
of his duties.
The substance of the
presentation made by Senator St. Germain involves a complex set of issues. The
Senator began with an acknowledgement that the current situation is “so new and
unusual that it begs for resolution.” It is his contention that no Senate
precedent exists to guide this House to properly identify the Leader of the
Opposition. Senator St. Germain then made reference to rule 1 of the Rules
of the Senate that sanctions recourse to the practices of other parliaments
in all unprovided cases. Senator St. Germain then cited the British House of
Lords and the Australian Senate as sources for guiding precedents. According to
the Senator, the practice in both Parliaments would appear to be that the
political leadership in the Lower House is mirrored in the Upper House. That is
to say, there is a direct correlation in the recognized leadership of the
Official Opposition in the Upper House with that of the Lower House. Indeed,
evidence would suggest that they are almost always of the same party
affiliation, notwithstanding the relative numerical strength of party
membership in the Upper House.
Following this review of
practices in the United Kingdom and Australia, Senator St. Germain continued
with an assessment of what occurred here in the Senate in 1994. At the outset
of the 35th Parliament, the party representing the Official
Opposition in the House of Commons, the Bloc Quebecois, had no membership in
the Senate. The Opposition in the Senate was provided by the Progressive
Conservative Party. In the view of the Senator, this outcome has no real
bearing on the merits of the case he is making with respect to his alleged
question of privilege and is not relevant as a precedent.
Finally, Senator St. Germain
argued for the need to recognize, as he put it, the “changing nature of
Canada’s political landscape.” He urged the Senate to accept this reality,
whatever the outcome of the ruling in this case. He also proposed that I as
Speaker give “some strong direction regarding the resolution of this matter.”
In closing, the Senator made additional references to the statutory authority
of the Speaker of the British House of Commons to determine the Official
Opposition when the question is in dispute. He then cited the example of the
decision by Speaker Parent in the “other place” in 1996 to maintain the status
of the Bloc as the Official Opposition on the basis of incumbency in view of
the numerical equality between that party and the Reform Party. Before taking
his seat, Senator St. Germain made mention of a document that he had already
tabled explaining in greater detail the precedents he had noted in his
presentation.
By way of rebuttal, Senator
Robichaud, the Deputy Leader of the Government, contended that no prima
facie case had been made to support the allegation of a breach of privilege
by Senator St. Germain. The Deputy Leader of the Government denied the
Senator’s claim to the title of Leader of the Opposition based exclusively on
the status of the Canadian Alliance as the Official Opposition in the House of
Commons. Senator Robichaud went on to refute the notion that the failure to
recognize Senator St. Germain as Leader of the Opposition impairs his ability
to function as a Senator and is therefore a breach of parliamentary privilege.
In explaining his position,
Senator Robichaud noted that Senator St. Germain’s ability to participate in
various activities - moving motions or amendments, soliciting information in
Question Period, speaking during Senators’ Statements, and attending committee
meetings - is the same as that of any other Senator. Senator Robichaud went on
to state that Senator St. Germain enjoys the benefits of office space, a global
budget and access to parliamentary documents and a research fund just like any
other Senator.
With respect to the issue of who
recognizes the position of Leader of the Opposition as defined in rule 4(d)(i),
the Deputy Leader explained that it is the Senate itself that determines the meaning
of its own rules. After acknowledging what he described as a longstanding
practice to recognize, as the Opposition, the party of the greatest number that
is not the Government, Senator Robichaud agreed that it was perhaps time to
review the Senate’s internal organization and the manner in which parties are
recognized. The Senator concluded his intervention by suggesting that the
Standing Committee on Privileges, Standing Rules and Orders study this
question.
Senator Prud’homme then spoke to
the question of the alleged breach of privilege. He proposed that I as Speaker
take the necessary time to review this important question carefully. I want all
Honourable Senators to know that I have taken this advice seriously. I believe
that the issue raised in the question of privilege of Senator St. Germain is
very important. In the days since it was first brought up, I have reviewed
closely the arguments presented as well as the document that was tabled. I have
also studied the relevant precedents of our Parliament as well as those of
other Westminster-style Parliaments. I am now prepared to give my decision.
In making my ruling, I want to
address three inter-related issues: the question of privilege raised by Senator
St. Germain; the role of the Speaker of the Senate in deciding certain
questions; and thirdly, possible methods to determine the Leader of the
Opposition.
Let me begin with the question
of privilege claimed by Senator St. Germain. Rule 43(1) reminds us that “the
preservation of the privileges of the Senate is the duty of every Senator. A
violation of the privileges of any one Senator affects those of all Senators
and the ability of the Senate to carry out its functions ...” The struggle of
Parliament with the Crown for the recognition of its privileges several
centuries ago is in fact the history of the rise of parliamentary government
and democracy in Great Britain. This history is also a proud part of our
Canadian constitutional heritage. The underlying principles of privilege
established so long ago still remain important today, although the application
of these privileges continues to evolve.
According to the British
parliamentary authority, Erskine May, “Parliamentary privilege is the
sum of the peculiar rights enjoyed by each House collectively … and by Members
of each House individually, without which they could not discharge their
functions, and which exceed those possessed by other bodies or individuals.”
The foremost privileges that are exercised by the House collectively are the
power to punish for contempt and the power to regulate internal proceedings as
a body. Preeminent among the rights enjoyed by Members is freedom of speech.
Other rights enjoyed by Members individually include freedom from arrest,
hindrance or molestation. These latter privileges remain important, in the
words of Erskine May, “as a means to the effective discharge of the
collective functions of the House …”
Whether or not a Senator is
acknowledged as Leader of the Opposition does not fall within the traditional
privileges enjoyed by individual members or even the privileges exercised by
the Senate as a whole. It is, therefore, difficult for me to see how the matter
of any Senator’s recognition in the position of Leader of the Opposition could
constitute a question of privilege. This view is supported by Joseph Maingot in
his book on Parliamentary Privilege in Canada. At page 224 of the second
edition, he notes that parliamentary privilege applies to members in their
capacity as members, not in their capacity as ministers, party leaders,
parliamentary secretaries or whips. Accordingly, it is my ruling that no prima
facie case of a breach of privilege has been established in this case.
There may well be instances,
however, where the status of the Leader of the Opposition can give rise to
points of order. For example, the Rules provide that in most instances,
the Leader of the Government and the Leader of the Opposition will be granted
unlimited time for debate. An attempt to limit that right could lead to a point
of order that could be the subject of a Speaker’s ruling. It must be stressed
that the protection of these rights does not involve their recognition as
parliamentary privileges over and above the privileges accorded to all
parliamentarians. It is also necessary to point out that in such a case, as in
all matters relating to the enforcement of the Rules of the Senate, the
ruling itself could be the subject of an appeal to the Senate for confirmation
or rejection. This is because the Senate retains for itself the exclusive
authority to determine its practices even to the extent of passing judgment on
decisions of the Speaker. In this regard, the Senate is quite different from
many other parliaments including the United Kingdom and Australia, where the
decisions of the Speaker are not subject to appeal.
At this point, I am already well
into the second issue that I wished to raise in this ruling - the role of the
Speaker of the Senate. That role is, in fact, quite limited. As Speaker, I have
an obligation to enforce the Rules to the best of my ability, but the
Senate alone has the ultimate authority to determine its practices, not the
Speaker. Precedents, therefore, do not have any binding character. They would, of
course, influence the assessment of a situation by a Speaker, but they could
not bind the Senate. Under our current practices, the Senate is not constrained
by any obligation to follow precedent.
In this particular case, I have
looked closely at the precedents mentioned by Senator St. Germain which are
also explained more fully in the document that he tabled February 6. It is
Senator St. Germain’s contention that these precedents are useful and provide
guidelines that could influence the outcome in this case. The first example
that he referred to in his presentation was that of the British Parliament. The
Senator makes the case that in Westminster, the opposition leadership in the
House of Lords is determined by reference to the political composition of the
House of Commons. I think that this is a correct account of how the system
operates in the United Kingdom Parliament.
Should there be any doubt in the
United Kingdom as to which party should be recognized as the Official
Opposition based on parity, the Speaker of the House of Commons is authorized
under statute to make a final and conclusive determination. In all other
instances, however, the Speaker has no role to play. Under the same law, the Ministerial
and other Salaries Act, the Lord Chancellor is given the same authority to
determine the Official Opposition in the House of Lords, but this authority
must be exercised by way of reference back to the decision made in the House of
Commons. These provisions of the Act date back to 1937 and I am unaware of any
occasion where the Speaker or the Lord Chancellor had to resort to it; nor did
Senator St. Germain indicate that it had ever been used. In any case, it is the
view of the Senator that I as Speaker can exercise the same authority through
the provisions of rule 1. I do not accept this proposition. Moreover, my
position appears to be shared by my counterpart in the “other place”. In a
ruling that was made February 26, 1996 dealing with the status of the Bloc
Quebecois, Speaker Parent explained that “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 …” The Speaker went
on to acknowledge the status quo incumbency of the Bloc Quebecois as the
Official Opposition.
In my assessment of the position
taken by the Commons Speaker in that instance, this was not a typical ruling at
all. In character, it resembled the approach the Speaker would be expected to
take in respect of a casting vote which is to keep the question open by opting
for the status quo. The Speaker simply recognized the status quo.
Speaker Parent acknowledged that he had no authority to alter the status quo
and recognize the Reform Party as the Official Opposition. Such a decision, as
he explained, “has never been decided on the floor of the House of Commons, and
the House has never put in place a procedure for the selection of the official
opposition.”[...]