The Casting Vote and Confidence Matters

Normally, the Speaker in most Westminster-style parliaments does not participate in debate or vote. However, in the rare instances of a tied division result, the Speaker (except in New Zealand) is called upon to give what is called the casting vote to break the tie.

Understandably, for the Speaker to command the trust and respect of the legislature, it is very important that the Speaker’s impartiality not be called into question. For this reason, there are three principles that guide the Speaker in the matter of casting votes. They are:

  1. That the Speaker should always vote for further discussion, where this is possible;
  2. That, where no further discussion is possible, decisions should not be taken except by a majority; and
  3. That a casting vote on an amendment to a bill should leave the bill in its existing form.

Let’s look at how these principles play out in actual practice.

The first principle, that the Speaker should always vote for further discussion, where this is possible, is fairly straightforward. A typical example would be a vote on the motion for second reading of a bill. If that vote results in a tie, the Speaker would vote in favour of the motion. Why? Because that sends the bill to committee for further study – in other words, more discussion. It provides an opportunity for the bill to possibly be amended in such a way as to win over some of those who voted against it at second reading. And even if the bill is not amended, there will still be more debate at third reading.

The next principle is that where no further discussion is possible, decisions should not be taken except by a majority. An example of this would be a vote on the motion for third reading of a bill. If that vote results in a tie, then the Speaker would vote against the motion. This is because there is no further opportunity for debate after third reading. If a majority of MPs cannot agree that the bill should receive third reading, then the Speaker should leave it to the future judgment of the House to decide what change (if any) to the law should be made, rather than take responsibility for changing said law because of his or her vote.

The logic behind the last principle is similar to that of the second. If an amendment to a bill (or motion) has been proposed, and the vote on said amendment results in a tie, the Speaker would vote against the amendment for largely the same reason he or she would vote against a bill at third reading. If a majority of MPs cannot agree that the bill (or motion) should be amended, the status quo is preferable and the bill should remain in its existing form rather than be amended by the single vote of the Speaker.

In the aftermath of the hung parliament result of the May 2017 general election in the province of British Columbia, creating a situation wherein the Speaker may be faced with tied votes, many columnists and pundits have explained the casting vote by saying that the Speaker always votes with the government and preserves the status quo. This is patently false. If the three principles are applied properly, in some instances, the casting vote will be in favour of the government (e.g. in favour of a motion for second reading of a government bill), in others, it won’t (e.g. against third reading of a motion for third reading of a government bill). Even in the case of the casting vote on an amendment to a bill, in some instances this will not favour the government if it’s an amendment proposed by the government that is before the House.

Where things get trickier is the issue of the casting vote on matters of confidence. This has been the focus of much of the debate surrounding BC’s hung parliament. If there is a tie vote on a confidence matter, for example, the motion for an Address to the Speech from the Throne, how does the Speaker vote? Again, many pundits, those who insist the Speaker always votes with the government, assume the Speaker would vote in favour of the Throne Speech, thus leaving the minority government in power. This is a misreading of how the casting vote works.

It is important to understand two critical points before going further. First, Speakers do not involve themselves in constitutional/legal/political matters. Speakers can only rule on procedural questions. Confidence is not a procedural matter; it is constitutional/legal, and yes, at times, purely political, therefore it is not up to the Speaker to determine if something before the House invokes confidence, nor what the constitutional/legal/political outcomes of such a motion might be.

Secondly, the casting vote principles are not framed in terms of confidence.

There are three types of confidence motions.  The first is the explicit want of confidence motion, that is, a very clear motion stating that the government has lost the confidence of the House. The second is the implicit confidence motion. This is a motion that is traditionally considered to be a matter of confidence, e.g.  the Address in Reply to the Speech from the Throne, the Budget, and other related money bills (e.g. Supply, Estimates, Budget implementation bills, etc.). These are at times a bit less clear-cut. Lastly, there are designated confidence motions, which are any bill or motion that the government designates to be a matter of confidence.

The general consensus that I have seen online is that in matters of confidence, the Speaker should always side with the government. This runs contrary to the casting vote principles, which, as stated previously, exist to protect the Speaker’s impartiality. The problem is, there aren’t a lot of examples of casting votes on matters of confidence, and the few that do exist are often bad ones because they do not follow the casting vote principles.

Motion for an Address to the Speech from the Throne

The motion for an Address to the Speech from the Throne is considered an implicit confidence motion because it deals with the government’s proposed program for governance. If the motion is successfully amended or defeated that is generally considered a loss of confidence. There are two examples from Australia, one in 1913 and one in 1914, where the vote on an amendment to the motion for an Address resulted in a tie. In both instances, the Speaker voted against the amendment. This was not the Speaker voting in favour of the government, but simply respecting the 3rd principle of the casting vote: that a casting vote on an amendment to a bill (or motion) should leave the bill or motion in its existing form. In both of those cases, the actual motion for an Address passed with a majority. These are examples of the proper application of the casting vote principles.

In Saskatchewan in 2004, at the start of a new parliament, the vote on the motion for an Address to the Speech from the Throne ended in a tie. In this instance, the Speaker voted for the motion. He explained his vote by saying that lack of confidence should be the decision of a clear majority and that it wasn’t up to the Speaker alone to overturn the outcome of an election. This decision is problematic.

Firstly, since governments are not elected, how would the Speaker’s “no” vote on the motion for an Address have overturned the election outcome? The parliament that had been elected would still exist. In fact, that would be the status quo that would be preserved – the parliament itself. The Speaker cannot confer confidence on a government that the House itself was unwilling to give by a majority vote. Second, as stated earlier, Speakers are not to involve themselves in constitutional/legal/political matters. The Speaker had no way of knowing what might happen following a “no” vote on the motion for an Address. He or she does not know what will transpire between the Governor General/Lieutenant Governor and the First minister after he or she gives the casting vote. Related to that, while the motion for an Address is generally considered a confidence matter, the Speaker cannot know for certain that it is. In this case, it would have been far better for the Speaker if he applied a more transparent application of the casting vote principles rather than base his vote on what he thought the vote might cause to happen. He should have voted no, based on the second principle, that it was something that should be decided by a majority, and no majority had emerged in favour.

Explicit want of confidence motion

In contrast, if the Opposition moved an explicit want of confidence motion (along the lines of “This House no longer has confidence in the Government”) in a government that had previously tested and won the confidence of the House, and the vote on that motion resulted in a tie, the Speaker should vote against the motion. This would be the application of principles 1 and 2. First, the Speaker should vote for further discussion, and there would be other opportunities for confidence in the government to be tested; second, the decision should only be taken by a majority, and in this instance, there was no majority in favour of the want of confidence. Therefore, the Speaker would be preserving the status quo, which in this case would be that the government did have the confidence of the House since the House itself was unable to decide that it didn’t.

Budget/Supply motions

In the event of a tie on any second reading motion of a budget or supply bill, the Speaker would vote in favour, which is the application of the first principle – to allow for further debate. On a tied vote on any amendment to said motions, the Speaker would vote against the amendment (even if it were a government amendment), and in the event of a tie at third reading, the Speaker should vote against, as he or she would on any other piece of legislation. The fact that money bills are typically considered confidence matters is not the Speaker’s concern.

As demonstrated, there is no convention that the Speaker votes with the government, and there is no convention surrounding the casting vote and confidence matters. A Speaker confronted with such a situation must not concern him or herself with the confidence aspect as that is out of his or her jurisdiction. Speakers should apply the three principles of the casting vote as transparently as possible, not vote based on what they think the possible outcome of said vote might be. At times, the application of the three principles will support the government, and at other times, it will not.

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