Quote of the day

We reached the point where almost nothing was deemed beyond the personal responsibility of the Prime Minister of the day, where the party leaders were responsible for a third of all the questions asked (and often more like 50 to 60% of the total time consumed) all set against a background of noise which makes the vuvuzela trumpets of the South African World Cup appear but distant whispers by comparison. If it is scrutiny at all, then it is scrutiny by screetch which is a very strange concept to my mind. – Rt. Hon. John Bercow, Speaker of the House of Commons (UK), Speech to the Centre for Parliamentary Studies

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Opening of Parliament: Speech from the Throne (Canada)

Note: What follows is an explanation of what is the Speech from the Throne. If you are looking for an analysis of the contents of the most recent Throne Speech, this blog does not do that sort of post. There is plenty of analysis of the contents of the Throne Speech available on media websites such as the Globe and Mail, Macleans.ca, Toronto Star, etc. Please read the “About” page for more information about current blogging policy.)

(The Speech from the Throne to open the 1st session of the 41st Parliament was read on Friday, 3 June 2011 at 3:00 p.m. ET.)

Following the election of the Speaker, the next order of business for a new Parliament is the Speech from the Throne.

The Speech from the Throne is not unique to the opening of Parliament, as is the case with the election of the Speaker and the swearing in of Members. The opening of a session – whether it is the first or a subsequent session – is marked by the reading of the Speech from the Throne.

The Speech from the Throne is steeped in tradition and a very regal proceeding. The Governor General departs his or her official residence, Rideau Hall, for Parliament Hill. Whenever possible, this occurs in state – by way of a horse-drawn carriage, accompanied by four Royal Canadian Mounted Police officers, in full dress uniform. During inclement weather, the Governor General is driven in a regular car.

Upon arrival at the steps of the Centre Block of the Parliament buildings, the Governor General is invited to inspect the Canadian Armed Forces honour guard and a 21-gun salute is fired in the Governor General’s honour. After the inspection and salute, the Governor General and his or her spouse enter the Centre Block and are greeted by the Prime Minister and other government dignitaries. The assembled party then retires to the chambers of the Speaker of the Senate for final preparations. A few minutes before the Speech is to be delivered, a small processional of officials proceeds to the Senate Chamber from the chambers of the Speaker of the Senate.

Why in the Senate? The Canadian Parliament was modelled on that of the United Kingdom. Both have an upper Chamber, whose members are appointed, and a lower Chamber, the House of Commons, whose members are elected by the general population. In Canada, Senators are appointed by the Governor General on the recommendation of the Prime Minister. Since neither the Governor General nor Senators are allowed to enter the House of Commons, the Speech is given in the Senate Chamber.

An interesting side note concerning the tradition that the Crown is not allowed to enter the elected Chamber. In provincial legislatures, since there is no upper chamber, the Lieutenant Governor is allowed to enter the Chamber to read the Speech from the Throne because the House is not in session during the reading – the Mace is not on the table.

The Usher of the Black Rod of the Senate of Canada (the most senior protocol position in the Parliament of Canada) is then instructed to summon the Members of the House of Commons to hear the Speech from the Throne. He or she proceeds to the House of Commons and knocks on the door. The Sergeant-at-Arms of the House answers the door and asks the Speaker of the House for permission to let in the Usher of the Black Rod. The Speaker grants permission and the Sergeant picks up the Mace and escorts the Usher into the House. The Usher then informs the Members of the House that their presence is requested in the Senate. The Members of the House, led by the Speaker, Sergeant-at-Arms, and Usher of the Black Road, then proceed to the Senate Chamber.

At the Bar of the Senate, the newly-elected Speaker stands on a small platform, removes his or her hat and receives an acknowledgement from the Governor General, who is seated on the Throne. The Speaker addresses the Governor General by an established formula, as follows:

May it please Your Excellency,

The House of Commons has elected me their Speaker, though I am but little able to fulfil the important duties thus assigned to me. If, in the performance of those duties, I should at any time fall into error, I pray that the fault may be imputed to me, and not to the Commons, whose servant I am, and who, through me, the better to enable them to discharge their duty to their Queen (King) and Country, humbly claim all their undoubted rights and privileges, especially that they may have freedom of speech in their debates, access to Your Excellency’s person at all seasonable times, and that their proceedings may receive from Your Excellency the most favourable construction.

The Speaker of the Senate, on behalf of the Governor General, makes the traditional reply:

Mr. Speaker, I am commanded by His (Her) Excellency the Governor General to declare to you that he (she) freely confides in the duty and attachment of the House of Commons to Her Majesty’s Person and Government, and not doubting that their proceedings will be conducted with wisdom, temper and prudence, he (she) grants, and upon all occasions will recognize and allow, their constitutional privileges. I am commanded also to assure you that the Commons shall have ready access to His (Her) Excellency upon all seasonable occasions and that their proceedings, as well as your words and actions, will constantly receive from him (her) the most favourable construction.

The claiming of privileges by the Speaker on behalf of the House occurs only at the opening of a Parliament, and is not repeated in the event a Speaker is elected during the course of a Parliament. This claiming of privileges, like many parliamentary ceremonies, has its origins in constitutional history when the Commons were fighting for their privileges in the face of royal tyranny in Britain: the first record there of such a claim dates from 1554. After the claiming of privilege, the session is formally opened by the reading of the Speech from the Throne.

Traditionally, in Canada, the Governor General reads the Speech from the Throne (at the provincial level, this is done by the Lieutenant Governor). However, it can also be read by the Monarch (as occurred in 1957 and 1977), or by the Administrator, the Chief Justice of Canada. This occurs only in the event of the death, incapacity, removal or absence from the country of the Governor General.

Traditionally, the Speech from the Throne reveals the reasons for summoning Parliament. It begins with an assessment of social and economic conditions in the country. It then declares the Government’s goals and intentions, and outlines its policies and legislative agenda. This agenda is presented in the most general of ways. The point of the Speech from the Throne is to focus on intents, not specifics. The details will be presented in the form of legislation tabled in the House during the session.

The Throne Speech is a key or confidence question; should the government lose the vote following the conclusion of the debate on the motion on the Address in Reply to the Speech from the Throne, the government would be defeated. In Canada, at the federal level at least, no government has ever been defeated on its Throne Speech.* The reasoning is simply that the content of the speech does not present any concrete proposals; therefore, it would be premature to defeat a government on an outline of its intentions. After hearing the Speech, the Speaker and Members return to the House. If the session is the first of a new Parliament, the newly-elected Speaker will have made the traditional statement claiming for the House all its “undoubted rights and privileges”. This is reported by the Speaker to the House on returning from the Senate. The business for the day’s sitting then proceeds.

_____________
*I know of one provincial government which was defeated on the Throne Speech, and that was the minority Progressive Conservative government in Ontario in 1985. The Opposition parties successfully passed an amendment to the Throne Speech, which meant the Government had lost the confidence of the House.

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Quote of the day

No Government can be long secure without a formidable Opposition. – Benjamin Disraeli, former British PM

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Opening of Parliament: Electing the Speaker (Canada)

The 41st Parliament of Canada will open on Thursday, 2 June 2011.

The opening of a Parliament is also the opening of the first session of that Parliament. Two procedures distinguish it from the opening of subsequent sessions. These are the taking and subscribing of the oath of allegiance by Members and the election of a Speaker. The general practice is for Members to be sworn in prior to opening day, after the Clerk has received the certificates of election returns from the Chief Electoral Officer.

The first real order of business is the election of the Speaker.

The Constitution Act, 1867 requires that a Speaker be elected at the beginning of a Parliament and at any other time when a vacancy occurs. While the Constitution requires that the Speaker be elected by the House of Commons, traditionally this amounted to the rubber-stamp approval of a Member nominated by the Prime Minister. In 1986, however, the Standing Orders were changed and now the Speaker is elected by secret ballot.

At the first sitting of a new Parliament, the Members of Parliament (MPs) assembled in the House are summoned to the Senate Chamber. There they are are informed that the business of the new Parliament may not officially commence, nor the Throne Speech be read, until the House of Commons has elected a Speaker.

The Members then return to the House and immediately proceed to elect a Speaker by secret ballot.

Candidates

All MPs except for Cabinet ministers and party leaders are eligible to run for the Speakership. Any MP who does not wish to put his or her name forward must issue a letter withdrawing from the ballot by the day before the vote. All MPs who do not remove their name from the ballot as of 6pm the day before the election are listed as candidates on the ballot.

Prior to the election, the Members who are candidates may make introductory speeches of no more than five minutes. Following the speeches, the House suspends its proceedings for one hour before the election is held.

Conduct of the Election

The election is presided over by the “Dean of the House”, the Member with the longest unbroken record of service in the House who is not a Cabinet Minister, party Leader, House Leader or Whip.

The election is conducted by secret ballot using voting booths placed on the Table in front of the Speaker’s chair. During the election, no debate is allowed, no motion is accepted and no question of privilege may be raised.

When the first ballot is completed and counted, the bells are rung and the Members are called to hear the results. All candidates who receive less than 5% of the vote are removed from the ballot. If no candidate received less than 5% of the vote then the MP with the fewest votes drops off. This continues, with a one hour break between ballots, until one candidate receives more than 50% of the vote.

The winner is escorted to the Speaker’s chair by the Prime Minister and Leader of the Official Opposition. The newly elected Speaker, by tradition, feigns reluctance as he or she is “dragged” to the chair in a practice dating from the days when British Speakers risked execution if the news they reported to the King was displeasing.

The Speaker takes the Chair, thanks the Members for electing him or her and then adjourns the House until the next day.

There were eight MPs entered in the race for Speaker: Denise Savoie, Andrew Scheer, Lee Richardson, Ed Holder, Barry Devolin, Merv Tweed, Bruce Stanton and Dean Allison. Of those, only Savoie was from the Opposition benches. Andrew Scheer was elected Speaker on the 6th ballot. At 32, he is the youngest Speaker in House of Commons’ history.

The Deputy Speaker

In addition to the Speaker, a Deputy Speaker, also known as the Chair of Committees of the Whole or “Chair of Committees”, is elected at the beginning of each parliament to act in place of the Speaker when the latter is unavailable. Under the Standing Orders, the Speaker, after consulting with each of the party leaders, nominates a candidate for Deputy Speaker to the House, which then votes on that nomination. The Deputy Speaker presides over daily sessions of the House when the Speaker is not in the chair. The Deputy Speaker also chairs the House when it sits as a Committee of the Whole. Other presiding officers, the Deputy Chair of Committees and the Assistant Deputy Chair of Committees, are chosen each session to occupy the chair when the Speaker and Deputy Speaker are not available. The Deputy speaker and the other presiding officers are members of the Panel of Chairs, and can therefore be selected by the Speaker to chair legislative committees. Like the Speaker, the Deputy Speaker has a role in administering the House.

See this post for an overview of the role of the Speaker. For anyone interested in watching the election of the Speaker, it will be broadcast on CPAC in Canada (check your local listings), and livestreamed on the CPAC website (possibly subject to regional restrictions -viewers outside of Canada might be unable to view this feed). Proceedings of the House of Commons are also available for viewing online on ParlVu.

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Who’s Who in Parliament: House Leaders

In Westminster-style parliamentary systems, the party (or parties) forming the government name a House Leader (the title may vary somewhat from jurisdiction to jurisdiction). While their titles may vary, their duties are essentially the same: to oversee the organization and conduct of business in the legislative body.

Canada

In Canada, each political party with representation in the House of Commons has a party House Leader who is a front bench Member of Parliament (MP) and familiar with parliamentary procedure. The House Leader is in charge of the party’s day-to-day business in the House of Commons, and usually conducts negotiations with the House Leaders of other parties on the conduct of debates, including negotiating certain “rules” such as how much time should be allotted for questions and answers during Question Period (in the previous Parliament, it was 35 seconds for each). They will also try to seek agreement on how certain bills will proceed through the House, and other matters dealing with the organization and conduct of parliamentary business. They also argue Points of Order before the Speaker of the House.

The House Leader is not the same as the party leader. The Government House Leader is a senior Cabinet minister who navigates the government’s business in the House. For Opposition parties, the party House Leader is often the party leader’s senior deputy. This system is replicated in the various provincial legislatures. The position of House Leader is especially important during periods of minority government where no one party has control of the House and bills can only be passed with the agreement of multiple parties.

From 1867 until WWII, the Prime Minister usually organized the business of the House himself, with the whips being his contacts in the other parties. Prime Minister Mackenzie King did so until October 1944, when his busy schedule forced him to delegate those duties. In July 1946, King openly recognized the position of Government House Leader. In 1968, it became a full-time position. It was common practice at that time for the Government House Leader to hold the title of President of the Privy Council. Since 1988, the Government House Leader is usually a Minister of State.

Each opposition party also names a House Leader. The position of Opposition House Leader evolved gradually in the 1950s: an opposition M.P. – usually, but not always, the same – would question the Government House Leader regarding the planned business of the House for the coming week. The title became official in 1963.

The function of Opposition House Leader did not fully emerge until the late 1950s, when the Liberals came to Opposition. In the years preceding the 23rd Parliament, when the Conservatives were in Opposition, their most frequent spokesmen as to the business of the House schedule were Donald M. Fleming and Howard C. Green, or the party leader himself.

The current House Leaders in the 41st Parliament are: Government House Leader – Peter van Loan (Conservative), Opposition House Leader – Nathan Cullen (NDP), Liberal Party House Leader – Dominic LeBlanc.

The United Kingdom

The Leader of the House of Commons is a member of the Cabinet of the United Kingdom who is responsible for arranging government business in the House of Commons. Although at one time the position was usually held by the Prime Minister, in recent years, the post has usually been combined with that of Lord President of the Council (i.e., of the Privy Council); from 2003 it has been combined instead with the office of Lord Privy Seal.

Unlike in Canada, however, the opposition parties in the UK House of Commons do not name a party House Leader. Instead, it is the party whips who negotiate with the Leader of the House of Commons. Together, they are responsible for organising the government business and providing time for non-government business to be put before the House, and announces the next week’s schedule in the Business Statement each Thursday. The House of Commons devotes approximately three quarters of its time to Government business, such as bills introduced by the government and ministerial statements.

When there is no Deputy Prime Minister, or the Deputy Prime Minister is unavailable, the Leader of the House may stand in for an absent Prime Minister at Prime Minister’s Questions. Currently in the UK, the Leader of the House is a Conservative MP, The Rt Hon Andrew Lansley, while the Deputy Leader is a Liberal Democrat, Tom Brake.

The Commons Chief Whip for Labour is the Rt Hon Rosie Winterton.

Australia

The office of Leader of the House in the House of Representatives of the Parliament of Australia exists in order for the management of government business, involving such matters as:

  • the order in which Government issues are to be dealt with
  • which Government members will speak
  • tactical matters in reaction to impediments to such management
  • negotiation with the Opposition’s counterpart (the Manager of Opposition Business) about the order in which bills are to be debated, and
  • time allotted for debate.

As the Parliament is bicameral, the Leader of the House must also be aware of developments in the Senate, for example, in order to anticipate whether a bill may be returned to the House with amendments.

Although the work of the Leader is always in a parliamentary context, the office is not in the control of the House of Representatives in the way that the Speaker is, for example. The Leader of the House is appointed by the Prime Minister and it is always an additional office held by a Minister, never by a backbencher.

The office was instituted in 1951 by Robert Menzies. Due to the greater demands placed on the office, the Leader of the House is paid more than a regular Member of Parliament.

The current Leader of the House is Anthony Albanese of the Labor Party and the current Manager of Opposition Business is Christopher Pyne of the Liberal Party.

New Zealand

The Leader of the House is the Minister appointed by the Prime Minister to manage Government business in the House.

The Leader of the House:

  • moves motions for the Government that relate to House and committee procedure
  • determines the order of Government business in the House
  • has primary responsibility for the Government’s lawmaking programme.

The current Leader of the  House is Gerry Brownlee, from the National Party.

The Opposition names a Shadow Leader of the House. That post is currently held by Labour’s Trevor Mallard.

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Quotes of the day

Since I skipped yesterday, you get two quotes today:

“Don’t worry about the polls, but if you do, don’t admit it.” - Former First Lady Rosalynn Carter

“Aha, militaristic metaphor! Fortune is armed and aggressive. Clearly, Hamlet is a potential terrorist. And indeed he was. Or tried rather ineffectually to be. But the writer who conjured him up? Probably not.” - Michael Rosen, “Shakespeare: the metaphorical terrorist“, The Guardian, 30 May 2011

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On secession

The May 5 elections for the Scottish Parliament returned a majority Scottish Nationalist Party government. Party leader Alex Salmond quickly announced that a referendum on Scotland’s independence from the United Kingdom would be held during the SNP’s term in office, and recently clarified that it would be held in 2015.

For a Canadian, this immediately brings to mind the province of Quebec’s repeated attempts to gain independence. To date, two referendums have been held, one in 1980, the most recent in 1995. Both were defeated, though the last one was extremely close, with the No side winning 50.58% to the Yes side’s 49.42%.

Following the second referendum, the Government of Canada initiated a reference to the Supreme Court of Canada to answer the legality of a unilateral declaration of independence from a Canadian province. The Government submitted the request for an advisory opinion on the following three specific questions:

  1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
  2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?
  3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

The court addressed the three questions in order (click here for full ruling). First, they stated that under the Canadian Constitution (and with Quebec being a party to it since its inception), unilateral secession was not legal. However, should a referendum decide in favour of independence, the rest of Canada “would have no basis to deny the right of the government of Quebec to pursue secession.” Negotiations would have to follow to define the terms under which Quebec would gain independence, should it maintain that goal.

The answer to the second question, which concerned Quebec’s right under international law to secede, gave the opinion that the international law on secession was not applicable to the situation of Quebec. The court pointed out that international law “does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their ‘parent’ state.”

The Supreme Court of Canada’s opinion stated that the right of a people to self determination was expected to be exercised within the framework of existing states, by negotiation, for example. Such a right could only be exercised unilaterally under certain circumstances, under current international law. The court held that:

The various international documents that support the existence of a people’s right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state’s territorial integrity or the stability of relations between sovereign states.

and that

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

The court stated in its opinion that under international law, the right to secede was meant for peoples under a colonial rule or foreign occupation. Otherwise, so long as a people has the meaningful exercise of its right to self-determination within an existing nation state, there is no right to secede unilaterally.

The Supreme Court further stated that: Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole.

As for the third question, since the court saw no conflict between Canadian law and International law on the question (neither would allow Quebec to secede unilaterally), it considered it unnecessary to answer the question.

Following the ruling by the Supreme Court of Canada, the Canadian Government passed the Clarity Act, which became law in June 2000. While usually attributed to Liberal cabinet minister Stéphane Dion, then Minister for Intergovernmental Affairs, it shared much in common with a private member’s bill (C-341- An Act to establish the terms and conditions that must apply to a referendum relating to the separation of Quebec from Canada before it may be recognized as a proper expression of the will of the people of Quebec) that had been introduced four years earlier (1996) by Reform Party leader Preston Manning and drafted by Calgary MP Stephen Harper (who is now Prime Minister of Canada).

The Clarity Act gives effect to the requirement for clarity set out by the Supreme Court of Canada in the Quebec Succession Reference. It is the interpretation of the Supreme Court, in its opinion, that the federal government give “political actors” the responsibility of returning the right to determine, what, among other things, constitutes a question and a clear majority after a referendum that one province or territory initiates with a view to succession from Canada.

The key points of the legislation included the following:

  • Giving the House of Commons the power to decide whether a proposed referendum question was considered clear before the public vote;
  • Specifically stating that any question not solely referring to secession was to be considered unclear;
  • Giving the House of Commons the power to determine whether or not a clear majority has expressed itself in any referendum, implying that some sort of supermajority is required for success;
  • Stating that all provinces and the First Nations were to be part of the negotiations;
  • Allowing the House of Commons to override a referendum decision if it felt the referendum violated any of the tenets of the Clarity Act;
  • The secession of a province of Canada would require an amendment to the Constitution of Canada.

Although the Quebec government rejected the Clarity Act and countered with the Fundamental Rights Act, which claims exclusive provincial jurisdiction over the process surrounding a future referendum on Quebec secession, the federal government’s insistence on clarity seems to have paid off, at least according to Constitutional expert Sujit Choudrey. In Referendum? What Referendum? Choudrey argues that:

notwithstanding the clash between the Clarity Act and Bill 99, the Secession Reference and the Clarity Act appear to have changed the terms of the debate within Quebec. Indeed, in many respects, the federal government appears to have gained the upper hand.

Choudrey reaches this conclusion based on an analysis of recent events in Quebec. For example, in 2004, former Parti Québécois leader Jacques Parizeau proposed in an op-ed piece in La Presse, that the PQ “view an election victory as a direct mandate to pursue sovereignty without the need for a referendum”:

Public opinion polls consistently show that a clear question on independence would not garner majority support. Moreover, if the House of Commons determined the question to be unclear, support for a yes vote could drop, because a federal challenge to the question would launch a debate in the midst of the referendum campaign “over legitimacy, constitutionality and the meaning of a law.” Faced with the choice between a losing question and an illegitimate and unconstitutional one, Parizeau proposed dumping the idea of a referendum entirely. The very fact that he made this proposal acknowledged that the Clarity Act had fundamentally changed the terrain on which the next referendum would be fought. The reason it had this effect is that while Quebec’s political elites are willing to secede in defiance of the Canadian constitution, the citizens of Quebec themselves are firmly committed to the rule of law.

Parizeau’s proposal was sharply criticized by both federalists and sovereigntists in Quebec and ultimately rejected. In 2005, the PQ’s election platform outlined its policy for achieving independence. This include setting:

the threshold for victory at 50 percent plus one, to be followed by an immediate unilateral declaration of independence. No attempt would be made to negotiate a constitutional amendment with Canada. An independent Quebec would immediately adopt laws to ensure legal continuity, to create a supreme court and to ensure that all taxes paid within the province would be collected by the Quebec government. Quebec would then signal its intention to negotiate an agreement with Canada allowing for the free movement of persons, goods, services and capital, would commence negotiations to accede to international treaties to which Canada is a party and would take steps to secure international recognition and admission to the United Nations.

This policy too was sharply criticized. A former leadership candidate, Louis Bernard, “rejected the notion of a unilateral declaration of independence. Such a declaration would simply have no effect, he argued, because the federal government would continue to operate in the province.” In May 2006, a group of prominent sovereigntists published in Le Devoir “Le Manifeste pour une approche realiste de la souveraineté” (Manifesto for a realistic approach to sovereignty):

The heart of the manifesto’s argument is that the PQ platform’s failure to comply with the Secession Reference would be fatal to Quebec’s attempts to secure international recognition as an independent state. A universal declaration of independence that did not follow a referendum on a clear question on secession, with a yes vote by more than a slim majority, followed by good faith negotiations with Canada, would enable Canada to argue internationally that a unilateral declaration by Quebec should not be recognized.

All this to say that increasingly, there is acceptance in Quebec of the need for a clear question, a yes vote by more than a slim majority, and negotiations with Canada in order to achieve independence for the province.

Recently, however, the issue has resurfaced in the news, not because of a Quebec politician or party, but because the official party position of Canada’s new Official Opposition party, the New Democratic Party, as outlined in their “Sherbrooke Declaration”, states that “the NDP would recognize a majority decision (50% + 1) of the Quebec people.” When asked to clarify his party’s position, party leader Jack Layton replied:

“The Supreme Court decision says you need a clear majority and our Sherbrooke Declaration put a number to what a clear majority means,” Layton said. “Fifty per cent plus one, that’s been our policy for a long time and it remains so.”

There has been much written about this in the past few days. Some defended the NDP position, such as this post. Unfortunately, I read most of these blog posts via an aggregator site, and don’t recall which bloggers wrote what, which is why I am not linking to them. I simply can’t find the posts again. Some of the arguments raised were rather questionable, however. More than a few, including the one linked to above, referred to the example of the province of Newfoundland, which joined Confederation after a referendum vote in favour of 52%:

In 1948, Newfoundland had two referendums on whether or not to join Canada. After not getting the desired result in the first referendum, Joey Smallwood and company ran another one and 52.3% decided to join Canada. This is not a whopping majority and is a rather slim margin, being decided by less than 7 000 votes.

Therefore, a majority of less than 5% is enough to join Canada. But does meet the threshold of a “clear majority”? Who knows! It does meet the NDP criteria as it is above 50%. As for the other parties, there is a lack of…um…clarity.

The first problem here is the claim (which is perhaps being made sarcastically, it’s difficult to tell) that Newfoundland kept having referendums until the desired outcome was achieved. This isn’t the case. There were indeed two referendums. The first, however, had three options: a continuation of Commission Government (essentially government by the UK), responsible government (independence), or Confederation with Canada. The first option was roundly rejected, receiving only 14% support, but the other two options both failed to get over 50% support, with the responsible government option slightly more popular than Confederation (44% to 41%). That is why a second referendum was held, with the two most popular options offered, and Confederation won with 52% of the vote.

However, to this day, there is debate in Newfoundland over that result. There were rumours that the independence option actually won, but the ballot totals were reversed (see the film “Secret Nation”), or that there was a concerted conspiracy before the vote to ensure that the Confederation option would win (see the upcoming book by Greg Malone). Conspiracy theories aside, there were some in the rest of Canada who believed that the 52% result wasn’t a decisive enough verdict endorsing Confederation:

The result, while giving a slight edge to Confederation, contains no clear mandate for union with Canada. The island is sharply divided and the size of opposition to union makes it extremely doubtful if any attempt should be made to decide the question without further clarification of public opinion. The next step is difficult to foresee and there are no guide posts available. The one clear decision arising out of the two referendums is that Newfoundland does not desire to continue commission government.

My point here is simply to illustrate that even a slightly more decisive result than 50% +1 still engenders a lot of controversy.

Other bloggers (or people commenting on blogs) point to Kosovo as case in point for proof that if the Canadian government were to refuse to recognize a 50%+1 result, it would be going against international law. However, the Kosovo example doesn’t really hold water. Leaving aside the obvious that the messy situation in the Balkans cannot be compared to how Quebec has been treated in Confederation, Kosovo did not hold a referendum, it unilaterally declared itself independent from Serbia.

On July 22, 2010, the International Court of Justice delivered an advisory opinion concerning the unilateral declaration of independence by Kosovo. The court had to decide if the declaration did not violate general international law. The court concluded that the unilateral declaration of independence conformed to international law.

The unique situation of Kosovo was not discussed nor presented as a reason for the exclusion of Serbian laws (internal law) to analyse the matter. The court stated that only general international law applies to the situation of a unilateral declaration of independence. The court also stated that a referendum was not required.

However, the ICJ’s opinion did not directly relate to Reference re Secession of Quebec, because the former only addresses the ability to issue a declaration (no declaration of independence of Quebec has ever been issued, in any case); whereas the Supreme Court’s opinion on Reference re Secession concerns the ability to actually effect secession.

A better, and far more relevant example would be the case of Montenegro, which voted for independence from Serbia in May 2006. At the insistence of the European Union, led by France, the majority threshold was raised from 50% plus one to 55%, and the question had to be clear. Failure to achieve that result would mean that the EU would not recognize Montenegro’s independence.  The EU was following recommendations from the Venice Commission, the Council of Europe’s advisory body on constitutional issues. The Venice Commission based its recommendations largely on the Supreme Court of Canada’s ruling and Canada’s Clarity Act. Please also see this document for background on how the Montenegro referendum process evolved.

As Choudrey concludes:

The question of whether Montenegro is a precedent for a future Quebec referendum was a major issue in Quebec last spring. The logical conclusion was that France and the European Union would expect the same of Quebec. Since the PQ has always hoped that France would take the lead in recognizing an independent Quebec, the Montenegro precedent has caused a lot of concern. Every Quebec political party was quick to affirm that for Quebec, the rule is 50 percent plus one. Pauline Marois and Gilles Duceppe went one step further, penning editorials arguing that the Venice Commission did not actually require a 55 percent threshold and calling for referendum rules to be set by Montenegro alone, as Quebec had already done.

But the Montenegro precedent would almost certainly shape the international response to a unilateral declaration of independence by Quebec, as the manifesto acknowledged. Even here, the influence of the Secession Reference and the Clarity Act can be seen, because they were relied on by the Venice Commission in support of its decision. So if the Secession Reference and the Clarity Act are good enough for Montenegro, they will likely be good enough for Quebec.

While there might not be agreement on whether a “clear majority” is 55% or 60% or something even higher, one thing is certain. A clear majority should not be a result that could easily be overturned in a judicial recount.

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Who’s who in Parliament: the Speaker

The term Speaker is a title often given to the presiding officer (chair) of a deliberative assembly, especially a legislative body. The Speaker’s official role is to moderate debate, make rulings on procedure, announce the results of votes, and the like. The Speaker decides who may speak and has the powers to discipline members who break the procedures of the house. The Speaker often also represents the body in person, as the voice of the body in ceremonial and some other situations.

In most Westminster-style chambers, the Speaker does not have a deliberative vote, but only a tiebreaker, called the casting vote. The Speaker is also expected to remove him or herself from politics, and remain as neutral as possible. This is in sharp contrast to the United States, where in the House of Representatives and in state legislatures and local government councils, the speaker is usually selected by the members of the majority party and functions as a leader of that party. Thus, though speakers are supposed to be fair, they use procedural rulings to advance the agenda of their own party. Ceremonially, the speaker represents the whole house, but politically is the legislative voice of the party in power.

Speakers in Westminster-style chambers traditionally have three main areas of responsibility: presiding officer of the legislative body, administrative duties, and ceremonial. While these roles and duties will vary in each jurisdiction, they can generally be summarised as follows.

Presiding over the conduct of business in the legislative body

The Speaker guides the legislative chamber through its deliberations by calling the items on the daily agenda, reading aloud the text of the motions before the House, recognizing Members who wish to participate in debate and putting the question to the House for decision. If a Member feels that a subject requires urgent attention, the Speaker may be asked to schedule an emergency debate. During consideration of bills, the Speaker is responsible for determining the procedural acceptability of amendments proposed by Members. During oral questions, when the Government is held to account for its policies and conduct, the Speaker ensures that it is conducted in a civil manner and that Members have a chance to participate.

The Speaker is empowered to rule motions brought before the House to be contrary to the rules and privileges of Parliament and hence “out of order”. Members may also raise a point of order or a question of privilege for the Speaker’s consideration. Upon the Government’s request, the Speaker also has the power to recall the House when it is not otherwise scheduled to sit.

The Speaker has full authority to make sure MPs follow the rules of the House during debates. This can include:

  • directing an MP to withdraw remarks if, for example, they use abusive language
  • suspending the sitting of the House due to serious disorder
  • suspending MPs who are deliberately disobedient – known as naming
  • asking MPs to be quiet so Members can be heard

Administrative duties

In Westminster-style parliamentary systems, the control and administration of the parliamentary precincts is vested in the Speaker on behalf of the House, whether Parliament is in session or not. While the specifics will vary in each jurisdiction, in general, the Speaker may be  deemed the “responsible Minister” for a number of offices of state which report to the legislative body (examples could be the Auditor General, Ombudsman, Privacy Commissioners, etc.). He or she also oversees the finances of the legislative body. Each jurisdiction has various Acts that outline the specific administrative duties and responsibilities of the Speaker.

Ceremonial duties

As representative of the legislative body, the Speaker has a number of traditional, ceremonial or diplomatic duties.  The Speaker is the spokesperson for the House in its dealings with upper chambers (as the case may be) such as the House of Lords or the Senate, the Crown and other bodies outside Parliament.

In the UK

The Speaker of the House of Commons in the United Kingdom is perhaps the most impartial. The Speaker is elected by Members of the House of Commons by secret ballot, and an absolute majority is required. Elections by secret ballot for the position of Speaker are a recent thing, with the first Speaker elected this way occurring in June 2009. Speakers must be politically impartial. Therefore, on election the new Speaker must resign from their political party and remain separate from political issues even in retirement. However, the Speaker will deal with their constituents’ problems like a normal MP.

Speakers still stand in general elections. They are generally unopposed by the major political parties, who will not field a candidate in the Speaker’s constituency – this includes the original party they were a member of. During a general election, Speakers do not campaign on any political issues but simply stand as ‘the Speaker seeking re-election’. In a new Parliament, one of the first orders of business is to re-establish the Speaker if he or she plans to continue in the role or to elect a new Speaker. If the Speaker indicates they wish to continue in the role, the question that he or she do take the Chair of this House as Speaker is moved by a Member and the question put. If the House is in agreement, the Speaker resumes his or her duties. If the motion is negatived, then an election for a new Speaker will proceed.

The advantage of the UK system is that it enhances independence by removing the Speaker from party politics and election concerns.

In Canada

In the Canadian parliament, which is also based on the Westminster system, the Speaker of the House operates under similar rules. He or she is elected by the Members of the House in a secret ballot, does not participate in debates and casts only a deciding vote if there is a tie. While the Speaker is required to perform his or her office impartially, he or she does not resign from his or her party membership upon taking office, as is done in the United Kingdom.

In the  1968 general election, Speaker Lucien Lamoureux decided to follow the custom of the Speaker of the British House of Commons and ran as an independent. Both the Liberal Party and the Progressive Conservative Party agreed not to run candidates against him. The New Democratic Party, however, declined to withdraw their candidate. Lamoureux was re-elected and continued to serve as Speaker. However, in the 1972 election, the opposition parties did not come to an agreement and ran candidates against him. Lamoureux was again returned but future Speakers would not repeat his attempt to run as an independent.

In Australia

The Speaker of the House of Representatives in the Federal Parliament of Australia is held by a Member of the house who is elected to Parliament in the usual way. At the beginning of each term of office of the Parliament the first item of business is the election of the Speaker. Once elected, the Speaker is expected to detach him or herself from government activity, and to run the the House impartially. Like other members, the Speaker will usually be a member of a political party but after his or her appointment, the Speaker does not take part in the debates of the Parliament or vote. If the votes for or against a motion are tied, the Speaker, however, holds a casting vote. Because the Speaker does not vote in ordinary divisions of the House means that the political party to which she or he belongs, loses a vote on the floor in daily sittings.

Traditionally, the party which forms Government supplies the Speaker, but the problems associated with this arrangement were illustrated in the formation of the first Parliament after the 2010 Federal election. Neither the Coalition nor the Labor Party had a majority, but Labor gained sufficient numbers to form Government after receiving the support of the Greens and two independent members in the lower house. This minority government has two more votes in the lower House than the opposition.

Before government was formed, both major parties had agreed that the Speaker would be “paired”, that is, that because the vote of the speaker cannot be cast on behalf of his or her party, one member from the opposing party would refrain from voting. However, after Labor formed government, the Liberal party argued that this pairing arrangement would be unconstitutional. After some delay, Labor member Harry Jenkins was voted Speaker of the House, and Liberal member Peter Slipper the deputy Speaker. Commentators have pointed out that in a close vote on the floor of the house, the Speaker would be able to force a pairing arrangement by temporarily excusing himself from the Chair, forcing the deputy Speaker to step in and so lose his vote.

In New Zealand

The Speaker in New Zealand does not sever all links with a political party, as does the Speaker of the UK House of Commons. Nor is the Speaker guaranteed any continuity of office over more than one Parliament. There is no tradition of re-electing the member who served as Speaker in the preceding Parliament even if the Government changes following a general election as there is, for instance, in the United Kingdom. With two exceptions, throughout the course of the twentieth century all Speakers came from the governing, or a governing, party. The member who is elected Speaker does not thereby become a non-party member of Parliament. However, the Speaker does not play a politically partisan role and exercises restraint in the speeches or comments he or she makes outside the House.

Whether the Speaker attends weekly party caucus meetings held while the House is sitting is a matter for the Speaker to decide. Practice has differed between Speakers of different parties and between Speakers of the same party. Speakers from the National party have generally not attended caucus. On the other hand, Labour Speakers until recent years did attend caucus. However, since 1984 most Labour Speakers have not attended caucus during sitting weeks.

The Speaker’s vote is included in any party vote cast and the Speaker votes in a personal vote, though without going into the lobbies personally – the Speaker’s vote is communicated to the teller from the Speaker’s chair. As its presiding officer, the Speaker never participates in debate in the House. When the Speaker has charge of a local or private bill, another member moves the stages of the bill on the Speaker’s behalf. The Speaker may speak and vote in a committee of the whole House. Nowadays the right to speak in committee is usually exercised only when changes to the Standing Orders are under consideration or the Speaker is answering questions on the estimates of an office for which the Speaker is responsible. The Speaker may, and indeed often does, serve on select committees, such as the Officers of Parliament Committee and the Standing Orders Committee, but it would not be in keeping with the position for the Speaker to serve on a committee considering a party-politically contentious matter. Where the Speaker does chair a committee written questions relating to matters for which the Speaker has responsibility in that capacity, may be lodged.

(Sources: Office and Role of Speaker (UK), The Election of a Speaker (UK), The Speaker – House of Commons Canada, The Roles of the Speaker of the House of Representative and the President of the Senate (AUS), Parliamentary Practice in New Zealand: Chapter 4)

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Keyword Post: MPs Indemnities, salaries and allowances

This is another post in response to recent keyword search activity on this blog. The information contained herein is very easily accessible here, on the Parliament of Canada website, which should always be your first stop when trying to find anything having to do with the Parliament of Canada, MPs, Senators, etc. (See this post for more useful resources you might want to bookmark for future reference). If you are looking for information about the salaries and allowances for UK MPs, please consult this fact sheet from the UK Parliament website.

The salaries and allowances of Canadian Members of Parliament (MPs) are adjusted on April 1 each year. Increases to the salaries of MPs are based on an index of base-wage increases from major settlements of private-sector bargaining units maintained by the federal Department of Human Resources Development.  In accordance with the Expenditure Restraint Act of 2010, the sessional allowance and additional salaries are frozen at the 2009-2010 levels until the end of fiscal year 2012-2013.

The base salary for every single MP elected to the House of Commons is currently CAD$157,731.00.

MPs who have extra responsibilities, such as the Prime Minister, Speaker, Leader of the Opposition, Cabinet Ministers, Ministers of State, Leaders of other parties, parliamentary secretaries, party house leaders, etc., receive additional compensation. The Prime Minister, Speaker of the House of Commons, Leader of the Opposition and Cabinet Ministers also get a car allowance which is currently set at $2,122.00.

The following is a chart of the additional compensation and total salaries for some parliamentary functions. Please consult the link posted above for a complete list of current MPs Indemnities and Allowances. All figures quoted in Canadian dollars.

Title Additional Salary Total Salary*
Prime Minister $157,731 $315,462
Speaker $  75,516 $233,247
Leader of the Opposition $  75,516 $233,247
Cabinet Minister $  75,516 $233,247
Minister of State $  56,637 $214,368
Leaders of Other Parties $  53,694 $211,425
Deputy Speaker $ 40,679 $198,410
Government Whip $  28,420 $186,151
Opposition Whip $  28,420 $186,151
Other Party Whips $  11,165 $168,896
Parliamentary Secretaries $  15,834 $173,565
Chair of Standing Committee $  11,165 $168,896
Caucus Chair – Government $  11,165 $168,896
Caucus Chair – Opposition $  11,165 $168,896
Caucus Chairs – Other Parties $    5,684 $163,415

*Does not include the car allowance for those entitled to one.

Shadow critics do not receive any additional compensation above the base MP salary. The only opposition members who receive additional compensation are the Leader of the Official Opposition, the leaders of other parties, the Opposition whip and other party whips, Opposition and other party deputy whips, Opposition and other party caucus chairs, Opposition and other party House leaders as well as the Deputy House leaders. There are other positions which may be held by opposition members which receive an additional indemnity, such committee chairs, deputy chairs, etc. Again, please consult the official list on the Parliament of Canada website.

 

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