On March 20, 2003 Senator
Donald Oliver tabled Bill S-16 whose purpose is to change the method of
selection of the Speaker of the Senate. At present, the Speaker as
mandated by Section 34 of the Constitution Act, 1867, is appointed by the
Governor General, on the Prime Minister’s recommendation. Under the Bill
Section 34 would be repealed and replaced with a provision dictating that the
Senate elect one of its members to be Speaker and another to be Deputy Speaker.
The Bill provides for a voting procedure similar to that in place in the House
of Commons, by secret ballot, and provides that the elected speaker may not
vote except on occasions where the votes in the Senate on a particular matter
are actually tied. This article outlines some arguments in favour of these
I was summoned to the Senate on September 7, 1990, by Prime
Minister Brian Mulroney. My first few months were filled with conflicting views
on this institution. I appreciated the power possessed by the Senate and its
role in policy formulation, but I was overwhelmed by feelings that changes were
urgently needed to make it more relevant and accountable.
To this end, I recently led a
two day discussion of the Conservative Caucus on Senate reform. We reached a
number of relevant conclusions including committee realignment and
recommendations that more government Bills should be introduced in the Senate.
However, one overarching theme in our discussions was that the Senate
should (in order to play its proper role in the Confederation of offering
“sober, second thought” on legislation) be as independent as possible from
government interference and control.
One aspect of the Senate that
symbolizes this control is the procedure for appointment of the Speaker. I have
been impressed with the results obtained by the House of Commons since it moved
to selection of its Speaker by secret ballot, and suggested that this was a
change which should be brought to the Senate.
It is my belief that the
Senate will gain in independence and dignity with the election of its Speaker
by secret ballot. For that reason I introduced a Private Members’ Bill to amend
the Constitution in relation to the method of selection of Speaker of the
As I pointed out when I spoke
in support of this Bill on second reading, its presentation is not a reflection
in any way on the incumbent Speaker or any past Speaker. It is my hope
that this change will improve the image and effectiveness of the Office, while
still maintaining the traditions that have been with us since Confederation.1
An elected Speaker should be able to exercise the
independence needed in a mature legislative chamber. Election, by secret
ballot, should reinforce the notion that the Speaker is not the servant of the
Prime Minister, of the government, or of the opposition – but the Speaker
serves the Senate. Election also places considerable responsibility on
the shoulders of Senators and distributes responsibility for the functioning of
the Senate among all member of the Upper House.
Historical Development of the Speakership
The Speakership is an office
of great antiquity almost as old as Parliament itself. Speakers
originally were chosen by their colleagues to be spokespersons in presenting grievances
and petitions to the King. This practice seems to date from 1376.
Over many years in Great
Britain the position evolved gradually acquiring the function of presiding
official. However, it was not until 1728 that Arthur Onslow began to
reshape the Speakership – moving away from partisanship and to a more impartial
arbiter of proceedings and debate in the Commons. He severed his
political associations, renounced the lucrative office of treasurer of the Navy
which had come to be regarded as a perquisite of the Speakership. He set
the pattern as a non-partisan – being able to decide questions of procedure
impartially, above the political fray.
In Canada during the early
years after Confederation, the Speaker of the House of Commons was definitely regarded
as a partisan. However, as time went on the impartiality of the office became
more firmly established despite identification of the Speaker with the
governing political party. On only two occasions was the Speaker from a party
other than that of the Prime Minister. Speaker Lemieux under Prime Minister
Meighen in 1926 was a Liberal, and Speaker Jerome under Prime Minister Clark in
1979, was also a Liberal, while in both cases the Prime Minister was from the
The practice for selection of
the Speaker in the House of Commons, prior to the 1985 changes, was for the
Prime Minister to nominate after consultation with the Leader of the
Opposition. The nomination was usually seconded by the Leader of the
Opposition and then endorsed unanimously by the House. But it was a
hollow procedure in that the House had no choice and there was no debate.
One of the important steps in
the evolution of the Speakership was the abolition of appeals of Speaker
rulings. It meant, thereafter, a Speaker could rule on a procedural
controversy according to the strict merits of the case. This move
strengthened the impartiality and independence of the Speaker.
Throughout the 1960s and
1970s, there was a movement to establish a permanent Speaker for the Commons.
One suggestion was to do this by setting aside a special constituency –
Parliament Hill in which only the Speaker would run. This was advanced to
attempt to ensure continuity in the office and to elevate the non-partisan role
of the Speaker.
In the 1980s, the movement for
significant reform gathered steam especially in light of a unanimous Procedure
Committee report in 1982 which declared “the Speaker” belongs to the House, not
to government or the Opposition”. The Committee went on to express a
desire to see the independent nature of the office enhanced, in part, by
removing the nomination process from the control of the Prime Minister.
In 1985, the Special Committee
on Reform of the House of Commons chaired by James McGrath recommended:
The Speaker belongs to the
House, not to the Government or the Opposition. Although the servant of
the House, the Speaker is expected to show leadership in promoting and
safeguarding the interests of the House and its members. Decisions of the chair
may not be appealed except by way of a substantive motion. The Speaker
thus enjoys the full trust and confidence of the House without which no
incumbent would be able to discharge the onerous duties. Thanks to the
successive Speakers who have occupied the Chair of the House of Commons, the
Canadian speakership has developed a tradition of impartiality and devotion to
duty of which we can all be proud.
This Report was adopted and
the Commons Rules were changed to provide for a secret ballot. I believe
it can be safely concluded that these changes to the Speakership of the House
of Commons have fundamentally changed the nature of the office.
The Speaker of the Senate
The office of Speaker of the
Senate was modelled on the British office of the Lord Chancellor – who is
Speaker ex-officio of the House of Lords. With the real appointing power
in the hands of the Prime Minister, the Speaker or at least the office of the
Speaker, is a partisan one.2
After Confederation, the
Speaker of the Senate would only intervene in debate when called upon by a
Senator. However, reforms introduced in 1906, elevated the Senate Speaker
to the same role as the Speaker of the House. The new, 1906, Rule which
is still found in the Senate Rules of Order states: “The Speaker shall
preserve order and decorum, and shall decide points of order, subject to an
appeal to the Senate.”
The effect of this Rule and
further Rule changes in 1991, as well as the influence of the changing role of
the Speaker in the House of Commons has resulted in a Senate Speaker who rarely
speaks in debate and again only rarely votes on a Bill or motion before the
Unfortunately, while we may
try to make the argument that the role has become less partisan – the Speaker
usually only exercises the right to vote when the vote is acknowledged
beforehand to be quite close.
Other Jurisdictions with
Other Commonwealth countries
have adopted the practice of electing the Speaker of their legislature.
For example, the Australian Senate has been electing its speaker by
secret ballot since 1901. The Speaker receives a three-year mandate through a
secret ballot of all Senators. In 1937, Australia’s lower house, the House
Representatives began electing its Speaker. Other legislatures in Canada have
also determined that their Speakers should be selected by secret ballot.
Ontario did so in 1990; Saskatchewan in 1991; Alberta in 1993; with British
Columbia and New Brunswick following in 1994. Quebec was the most recent
jurisdiction to provide in its rules for a secret ballot if there is more than
one candidate for the Speakership.
The Senate may wish to
have its Speaker chair the Standing Committee on Internal Economy, Budgets and
Administration. This would, of course, enhance the administrative
responsibilities of the Speaker.
It is my position that the
Senate should join with these other legislatures and move forward in electing
its own Speaker by secret ballot. An additional reform which would compliment
the election of a Speaker would be the removal of the ability to appeal a
Speaker’s ruling to the whole Senate. Removal of this Rule would enhance
the authority and credibility of the Speaker – freeing the Speaker to deal
solely with the merits of the arguments before him or her, rather than being
concerned with partisan politics. My proposal for an elected Speaker
removes the Speaker’s right to participate in debate and to vote, other than to
break a tie vote. This, again, is in keeping with the theory of an elected,
In the future, the Senate may
wish to consider modelling the administrative role of the Senate Speaker on
that of the Speaker of the House of Commons. In the House, the Speaker plays a
major role as Chair of the Board of Internal Economy.
While Bill S-16 is an amendment
to the Constitution of Canada, I believe it is an amendment which rightly falls
within the purview of Section 44 of the Constitution Act, 1982 – being
an amendment that need only be passed by Parliament alone to be effective.
Bill S-16 is an amendment relating exclusively to the executive
government of Canada, or the Senate and the House of Commons and is, therefore,
within the scope of Section 44.
Some may argue that any change
to the Senate is a change which affects the provinces especially if it seems to
affect the powers of the Senate. I believe the better view is based on
the 1979 Supreme Court Decision in the reference relating to the Upper House.
This is a change which does “change the essential character of the Senate. The
change suggested by Bill S-16 does not, in my opinion, go to the root of the
Confederation bargain that established the Senate as a counter-weight to the
House of Commons.
The changes to the method of
selection of the Speaker of the Senate contained in Bill S-16, if implemented,
will have a profound effect on the Speakership and the Senate itself. It
will enhance the Speaker’s independence, neutrality, credibility and respect.
As the sponsor of Bill S-16, I am convinced that this is a natural first step
in bringing fundamental reform to the Senate of Canada.
1. Before Confederation the Legislative
Council, predecessor the Senate, had the power to select its own Speaker.
In 1868 a resolution for an elected Speaker was introduced in the Senate
by Senator Letelier de St. Just. Many other Senators favoured the motion
but there was a consensus that it would be premature to change the 1867
Constitution until it had bee tested over a number of years. See Senate Debates,
May 6, 1868, pp. 248-254.
2. See W.F. Dawson, “The Speaker of the
Senate of Canada”, The Table, vol 38 (1969) pp. 20-32.