Impartiality is a prime prerequisite for occupants of the Chair in Westminster
style parliaments but there are some cases in Canada and in other Commonwealth
jurisdictions that have resulted in famous challenges to the authority
of the Speaker. The most notable of these occurred during the so-called
Pipeline Debate in the House of Commons in 1956. Centered around the
federal governments proposal to assist in the construction of a natural
gas pipeline from Alberta to Quebec, the acrimonious and disorderly debate
lasted eighteen days and produced twenty-five appeals from rulings of the
Speaker and Chair of Committee of the Whole. It resulted in the first and
only motion of censure, albeit unsuccessful, of a Speaker in the history
of the Canadian Parliament. Although appeals have been abolished in most
legislatures this article looks at other avenues open to Members when they
feel the Chair has erred in his or her interpretation of the rules or,
more seriously, rendered a decision based on partisan or personal interests.
What options are available to Members who wish to challenge the Chair,
either on a particular ruling or more generally? The rules and practices
differ somewhat from jurisdiction to jurisdiction. Generally speaking,
five possibilities exist, varying between procedurally pure, to informal
to those that might constitute a serious breach of parliamentary privilege.
For this reason, I have labeled them possibilities as opposed to options!
Criticism Outside the House;
Threat and Intimidation.
The intention is not to suggest that each of these possibilities should
or can be considered by Members, but rather to generate a discussion about
what type of challenge a Presiding Officer might face and how they, and
the House, might respond.
The ability to appeal a ruling of the Speaker ended in the House of Commons
in 1965. Similar prohibitions exist today in most Canadian jurisdictions.
By way of example, the Rules of the Legislative Assembly of the Northwest
In deciding points of privilege, order or practice, the Speaker shall state
the applicable Rule or other authority. The Speakers decision shall not
be subject to debate or appeal.1
In discussing this rule with Members, some have asked but what if the
Speakers ruling is wrong? This is obviously a difficult question for
a Clerk to answer but in attempting to explain the concept, I have sometimes
been tempted to draw an analogy, albeit limited and arguably preposterous,
to the teachings of the Catholic Church with respect to papal infallibility.
The doctrine of papal infallibility was expressly defined at the First
Vatican Council in 1870. It proposes that the Pope is preserved from error
when he solemnly promulgates, or declares, to the Church a decision on
faith or morals. It follows that anyone who deliberately dissents with
an infallible declaration is outside the Catholic Church. The doctrine
does not go so far as to conclude that the Pope is divinely inspired or
that he is exempt from sin. Rather, it establishes that when he is acting
in the official capacity as spiritual head of the Church, his teachings
and conclusions are final and binding on the Church as a whole. In addition,
in making an infallible declaration, he cannot contradict anything the
Church has taught officially and previously.
So it is, in a limited sense, with decisions of the Speaker. With few
exceptions in Canada and the Commonwealth, the prevailing parliamentary
law can be summarized by the following pronouncement of Speaker Jean-Pierre
Charbonneau in the Québec National Assembly in June of 2001:
Our parliamentary law, in its wisdom, holds that one may not impugn the
conduct of a Member unless it be by recourse to a formal procedure, to
wit a substantive motion. [
] Parliamentary law is even more stringent
when the conduct of a Presiding Officer is concerned. Not only is it forbidden
to impugn the conduct of a Presiding Officer otherwise than by means of
a substantive motion, but to do so may even place one in contempt of the
This ruling was in response to a series of points of order challenging
the impartiality of each of the deputy speakers of the House during a heated
debate on the issue of civic amalgamations in Quebec. The Presiding Officers
had initially taken the points of order under advisement. However, when
Speaker Charbonneau issued the above-noted pronouncement, he made it clear
that, henceforth, the Chair would decline to entertain any further points
of order regarding decisions of the Chair. In other words, unless a Member
is willing to give notice of and introduce a substantive motion in the
House, any dissent from a ruling of the Speaker, or a reflection on his
or her impartiality, is strictly forbidden.
There are exceptions to the rule against appeals in the Canadian context.
Both the Senate of Canada and the Legislative Assembly of Manitoba allow
Members to appeal rulings of the Speaker to their respective Houses. These
challenges are to be decided forthwith and without debate. In Alberta,
a Member may ask the Speaker to explain the reasons for his or her ruling
but may not subsequently challenge or appeal it unless by way of substantive
motion. In the United Kingdom, a Member may use a point of order to request
the Speaker to reconsider a matter, although such requests are seldom entertained.
Prohibitions on appeals to the rulings of the Speaker do not necessarily
apply to those occupying other chairs. This is likely a reflection of the
lower standard of impartiality imposed on deputy speakers and the chairs
of committees. In Committee of the Whole, for example, it is generally
accepted that decisions of the Chair may be appealed to the House. Practices
differ as to whether appeals require majority support to proceed or simply
the support of a single Member. The question normally put by the Speaker
to the House once such an appeal is reported is Shall the decision of
the Chair be sustained? The question is typically non-debatable and,
once concluded, the House is resolved back into Committee of the Whole
to continue its business.
In standing, select and special committees of the House, the general rule
is that any matters arising of a procedural nature should be settled within
the committee itself. Any appeal to the Speaker or the House, if permitted,
would normally be made by way of a report of the committee to the House.
In New Brunswick, a recent rules amendment allows any two members of a
standing or select committee to appeal the ruling of the Chair to the Speaker
who may render a decision even when the House is not sitting.
The prohibition against appealing a ruling of the Speaker in most jurisdictions
does not mean that they are above reproach. The Speaker is no different
from other Members of the House in that his or her conduct may be questioned
by way of a substantive motion. Marleau and Montpetit define substantive
motion as follows:
Independent proposals which are complete by themselves, not incidental
to or dependent on any proceeding before the House. They are used to elicit
an opinion or action of the House. They are amendable and must be drafted
in such a way as to enable the House to express agreement or disagreement
with what is proposed. Such motions normally require written notice before
they can be moved in the House.3
The principle that the conduct of the Chair may only be challenged by way
of substantive motion has the distinct advantage of preventing the disruption
of debate with frivolous appeals. As the following comment by former Speaker
of the House of Commons Lambert indicates, such appeals are often motivated
by matters having nothing to do with parliamentary procedure:
One of the chief difficulties with the business of Parliament over the
past ten years has been the somewhat indiscriminate use of appeals against
Speakers rulings, not on points of jurisprudence or points of procedure,
but for political effect.4
What types of substantive motions, then, are within the realm of possibility?
The Rules of the NWT Legislative Assembly make specific reference to a
motion to revoke the appointment of the Speaker, Deputy Speaker or a Deputy
Chair of the Committee of the Whole. Such a motion is one of the few instances
that our rules expressly prohibit any waiving of the usual 48-hour notice
period, even with unanimous consent. Our Rules further stipulate that
such a motion must be decided without debate.
The only example of a provincial or territorial Speaker having resigned
as a result of a substantive motion occurred in 1875, in the House of Assembly
of Nova Scotia. The resignation of Speaker John Barnhill Dickie was secured
following a successful motion that a new Speaker be elected. The Speaker
of the day subsequently tendered his resignation and a new Speaker was
selected. While there have been other motions of censure levied against
Speakers, none have been successful.
As mentioned earlier, the Pipeline Debate in the House of Commons in 1956
witnessed an unprecedented motion of censure of then Speaker Beaudoin.
While the motion was soundly defeated Mr. Speaker, following a subsequent
question of privilege regarding his impartiality, offered his resignation
before the House to take effect at the pleasure of the House. No motion
to accept the resignation was ever made and Speaker Beaudoin remained in
office for the balance of the Parliament.
It is debatable whether a substantive motion that succeeds in reversing
a decision of the Speaker on a purely procedural matter would constitute
an expression of non-confidence, if carried. Much would rest on the precise
wording of the motion, the composition of the House, the seriousness of
the issue and the gut feel of the Speaker. During the Filmon minority
government in Manitoba in 1988, a number of successful appeals were made
of the rulings of then Speaker Rocan but these did not result in his resignation.
Similarly, a successful motion of dissent of the Speaker of the Australian
Capital Territory on a ruling that the word furphy was unparliamentary
did not induce Mr. Speaker to fall upon his sword.
Thankfully, the frequency of these types of motions is on the decline.
All Speakers, and particularly those who preside over non-party or minority
government assemblies, should be aware of the rules and conventions in
their own jurisdictions and give some thought, if only for academic reasons,
to the standards they would apply in the event of a successful substantive
motion vis a vis their conduct or impartiality.
Criticism Outside the House
A third possibility whereby the conduct of Presiding Officers could be
challenged involves criticism outside the House. Again, I use the word
possibility as opposed to option, as any reflection on the character
or actions of the Speaker, other than by way of substantive motion, could
and has frequently been interpreted by the House as a breach of privilege.
While criticisms of Presiding Officers by members of the public or the
media have been considered breaches of privilege, they are for the most
part ignored and not responded to in the House. A notable exception occurred
in the House of Commons on December 22, 1976 when a motion was adopted
declaring an editorial published in the Globe and Mail, which criticized
the impartiality of then Speaker Jerome, to be a gross libel on Mr. Speaker
and a gross breach of the privileges of this House.
Public criticisms of the Speaker by a sitting Member of the House are a
more serious matter. In the Saskatchewan Legislature, four questions of
privilege were raised between 1977 and 1985 regarding comments made by
Members to the media that impugned the impartiality of the Speaker. In
each case, a prima facie breach of privilege was found to have occurred
and the offending Members were disciplined. In other instances, such breaches
have been resolved by way of a retraction of the comments by the Member
in the House.
While public criticism of the Speaker or other Presiding Officer outside
the House may result in disciplinary action, criticism of a more private
nature may be more palatable and common. I would venture to say that every
Speaker has been on the receiving end of private criticism with respect
to their duties in the Chair. So long as the tone of such criticism is
characterized by discretion and respect and void of any form of threat
or intimidation, it may be not only tolerated, but even welcomed and encouraged.
In the Northwest Territories, the absence of political parties provides
a forum for the discussion of the conduct of any Member in the Caucus.
These meetings are private affairs, chaired by a Regular Member and attended
by all Members and the Clerk of the House. These meetings have, on occasion,
been used to express concern with the conduct of sitting Speakers inside
the House and out. In each of these cases, the tone has been respectful
and constructive and the details have not ventured outside the walls of
the Caucus meeting room.
The distinction between public and private criticism is that the former
not only brings disrepute to the Chair and its occupant, but also to the
institutions they represent. While the standard of impartiality for Deputy
Speakers and other Presiding Officers is not as high as it is for the Speaker,
the consequences of challenging the actions and integrity of these officers,
other than by way of substantive motion, should be equally serious.
Closely linked to the three previous possibilities, outright disobedience
of the Chair is a fourth eventuality that must be considered. For the
most part, a ruling of the Presiding Officer is initiated by a point of
order or a question of privilege having been raised in the House or Committee.
Conversely, a Presiding Officer may, on occasion, feel the need to intervene
on his or her own initiative to address an individual Member or the House
collectively. Examples include repetitious debate, arguments not relevant
to the subject matter at hand or the use of unparliamentary language.
In such cases the Presiding Officer may call the offending Member to order
and, after requesting that they discontinue the conduct in question, return
the floor to them. In the case of unparliamentary language, the Presiding
Officer may request an unequivocal withdrawal of the offensive word or
phrase. In each of these cases, the Member called to order could, at his
or her peril, choose to ignore the direction of the Chair or refuse to
withdraw the offending remark, as the case may be.
A number of responses to such disobedience are available to the Presiding
Officer. The Chair may choose not to recognize the Member called to order
for a period of time. If the disobedience is not a deliberate attempt
to create disorder in the House, but rather the result of inexperience,
exuberance or a lack of familiarity with the Rules, this technique may
prove an effective way to set matters to right. The Chair may also elect
to warn the Member, either in private or in the House, that continuation
of the behavior may result in a further and more serious intervention.
The most serious disciplinary measure available to the Speaker is to name
a Member who disregards the authority of the Chair or abuses the Rules
by persistently and willfully obstructing the business of the Assembly.
Prior to naming, the Speaker may, at his or her discretion, request the
Member to retract the offensive words and/or apologize to the House. Any
attempt to debate the Speaker on such an intervention, or an outright refusal
to comply, may elicit a warning that the Member will be named should he
or she refrain from immediately correcting the matter.
The authority to name a Member rests only with the Speaker or a Deputy
Speaker acting in his or her stead. In Committee of the Whole, disobedience
of the Chair is reported to the Speaker who will consider the matter as
if it had occurred in the Assembly. In the event that the Speaker is absent
from the House on a particular day, the Deputy Speaker would refrain from
serving as Chair of Committee of the Whole so as to avoid the spectacle
of ruling on a matter that she brought to her own attention.
Once a Member has been named, the Speaker has the authority to order his
or her withdrawal from the Chamber for the remainder of the sitting day
and may order the Sergeant-at-Arms to take the necessary steps to remove
a Member who refuses to comply. A motion without notice may be moved by
any Member to increase the length of the suspension and shall be decided
without amendment or debate.
In the Northwest Territories, standing and special committees have the
authority to expel Members for up to three days for improper conduct.
Such a decision must be taken by a majority of the committee as opposed
to the Chair. Committees also retain the ability to report incidences
of disobedience to the Speaker or House for consideration by way of report.
Finally, disobedience of the Chair that results in the disruption of the
proceedings of the Assembly or one of its committees may be considered
a breach of privilege and dealt with accordingly.
Threat or Intimidation
Challenges to the authority of the Speaker or other Presiding Officers
have, on occasion, crossed the boundary between criticism and entered the
far more serious realm of threat or intimidation. As discussed, any challenge
or criticism of the Chair, other than by way of substantive motion, is
a serious matter. Attempts to influence the conduct of the Chair, or any
Member for that matter, by way of threat or intimidation constitute perhaps
the most serious attack on the independence of the Chair and the integrity
of the House.
Thankfully, incidences of threat or intimidation of the Chair are becoming
increasingly rare in Canada. Unfortunately, this trend is not universal.
In November of 2004, the Speaker and other Members of the Anambra Legislative
Assembly in Nigeria were held at gunpoint in their Assembly, which was
subsequently destroyed, for refusing to cede to threats and bribes from
an armed group of thugs to impeach the state Governor unconstitutionally.
The fundamental tenet of the impartiality and independence of the Chair
in our system of parliamentary democracy should never be taken for granted.
As the following excerpt from François Côté's earlier paper on The Impartiality
of the Chair demonstrates, my earlier analogy of parliamentary tradition
and law of the doctrine of papal infallibility is mortally limited.
It is nonetheless true, however, that the Chair is not infallible. Whatever
errors may occasionally be committed, it is of the utmost importance for
the integrity of the institution that the Chair continue to be treated
with deference and that its impartiality not be called into question at
every turn. As our Speaker said in his ruling of June 12, 2001, such
are the rules of the parliamentary game that we must all acknowledge that
it is the Speaker who is to have the final word; otherwise nothing is possible.5
Although I have focused on ways to challenge a Speaker I think it is important
to end by emphasizing that such challenges have been rare and will likely
continue to be rare in the future. There is, I believe, a sacred contract
between Presiding Officers and the Assemblies they serve. In return for
the Speakers impartiality and silence on important matters of public policy,
Members, individually and collectively, must offer their respect and deference,
if not to the incumbent, then to the Office he or she holds. A breach
of the terms of this contract by either party threatens the integrity of
the institutions they have each sworn to serve.
1. See Rules of the Legislative Assembly of the NWT section 12(2).
2. François Côté, The Impartiality of the Chair, paper presented at the
19th Canadian Presiding Officers Conference, St. John's, Newfoundland and
Labrador, January 25, 2002, p. 9.
3. Robert Marleau and Camille Montpetit , House of Commons Procedure and
Practice, p. 450.
4. House of Commons Debates, June 8, 196, p. 2140.
5. See François Côté, The Impartiality of the Chair, paper presented
at the 19th Canadian Presiding Officers Conference, St. Johns, Newfoundland
and Labrador, January 25, 2002, p. 12.