Posts Tagged ‘Procedure’

Faint signs of democratic awakenings

I have written a number of posts on how whipped Canadian backbench MPs are when compared to their counterparts in other parliaments. In recent weeks, it would seem that some backbenchers have maybe had enough of this situation.

One MP raised a point of privilege to argue that prevented by his party whip from delivering a statement in the House during “Statements by Members”, a 15-min period each day during which backbenchers can deliver one-minute statements on matters of international, national or local concern. As per the Standing Orders, any MP can be recognized by the Speaker to speak during this time, but, in practice, the Speaker is guided by lists provided by the respective party whips. The Member, Mr. Warawa, appealed to the Speaker that in being removed from his side’s list last Thursday, his privileges as an MP were breached.

For a detailed overview of the situation, I will refer you to this guide prepared by Aaron Wherry of Macleans. Mr. Wherry’s guide includes a multitude of links to other posts he and others have written on the issue. A number of MPs spoke up in support of Mr. Warawa’s point of privilege, and the Speaker delivered his ruling on the matter last week, which you can read in full here. The Speaker did not find that there was a prima facie case of privilege but reminded backbenchers that the Speaker is guided by the lists, not bound to them, and if they want to speak, they need to “seek the floor”, which they are free to do at any time.

For people unfamiliar with the Canadian House of Commons, it is important to understand that the issue of lists of which MPs will speak is not limited to Members’ Statements. The party whips provide lists to the Speaker for Question Period, for debates on bills – in sort – for virtually every single item of business in the House. And it isn’t simply a matter of these lists largely determining which MPs will be able to speak in the House, if they are on the list, they are often also told exactly what they will say when they do get the floor. They are given scripted questions to ask during Question Period, which means that rather than question the government and hold it to account, questions from government backbenchers are used to attack and question opposition party policy, or to give the government an opportunity to promote a policy or initiative. And sometimes, the question will manage to do both:

Mr. John Carmichael (Don Valley West, CPC): Mr. Speaker, while the NDP members continue to bend and twist Canada’s rich military history to suit their far left leanings, our government is committed to commemorating Canadian veterans and their accomplishments.

In January our government proudly marked 2013 as the year of the Korean War veteran, and today the Minister of Veterans Affairs and the Minister of National Defence made yet another great announcement. Would the Minister of Veterans Affairs please update this House on how we are continuing to recognize Canada’s great accomplishments during the Korean War?

Hon. Steven Blaney (Minister of Veterans Affairs and Minister for La Francophonie, CPC): Mr. Speaker, the member for Don Valley West is right. They were young and reckless. Along with more than 15 countries with the United Nations 60 years ago, they fought in Korea for freedom, democracy, and the rule of law against communism. Today, the Minister of National Defence and I presented a certificate of recognition to our great Canadian Korean War veterans to show our deepest gratitude and recognition for their many sacrifices. I thank our Korean War veterans. Thank you very much.

The Speaker concluded his ruling thusly:

Even so, as Speaker I cannot exercise my discretion as to which Member to recognize during Statements by Members or at any other time of the sitting day if only one Member is rising to be recognized.
As previously mentioned, due to an over-reliance on lists, more often than should be the case, even those Members on the list do not always rise to be recognized.

Were the Chair to be faced with choices of which Member to recognize at any given time, then of course the Chair would exercise its discretion. But that has not happened thus far during Statements by Members, nor for that matter, during Question Period. Until it does, the Chair is not in a position to unilaterally announce or dictate a change in our practices. If Members want to be recognized, they will have to actively demonstrate that they wish to participate. They have to rise in their places and seek the floor.

In the meantime, I will continue to be guided by the lists that are provided to me and, when and if Members are competing for the floor, will exercise my authority to recognize Members, not in a cavalier or uninformed manner but, rather, in a balanced way that respects both the will of the House and the rights of individual Members.

While this should strike most as common sense – if a Member wants to be recognized by the Chair, he or she needs to stand in their place to indicate to the Speaker that they want to speak – what is surprising (also shocking and terribly saddening) is that some MPs apparently didn’t even know that they could do this. As Laura Ryckewaert writes in “Former House Speaker Fraser calls Scheer’s ruling ‘very important,’ but another expert expects MPs won’t do much with ruling” ($):

Mr. Scheer’s ruling isn’t groundbreaking, and he has instead highlighted a pre-existing right that was forgotten over time by MPs but Mr. Warawa and Mr. Chong said they hadn’t previously realized they had the right to stand to be recognized by the Speaker during statements or questions.

Another MP, Mr. Rathgeber, told reports that he planned to take advantage of this new-found right and added that “he thought there would be a ‘transition’ as “members will have to adjust to being able to speak without having been approved, being put on a list.”"

Many might wonder how this dire state of affairs came to be. Peter Loewen explains the situation quite well in this article from the Ottawa Citizen. Mr. Loewen writes that prior to 1970, party labels did not appear on ballots, only the names of the candidates running in each constituency. The candidates were representatives of a party, but the situation wasn’t regulated and at times, there could be two candidates claiming to represent the same party. Parliament decided that reform was required and the solution adopted “was to have party leaders sign off on candidacies, officially identifying their party’s candidates.”

This solution created a new problem – the party leaders realized that this gave them enormous power over their MPs:

Since party leaders sign off on candidates, they can also refuse candidates by declining to sign their nomination papers. There is no legal mechanism for locally-selected candidates to overcome this prerogative. Sitting MPs are subject to this signature at every election. As a consequence, MPs serve not only at the pleasure of their electorate but also of their leader.

That MPs work beneath the thumbs of their leaders would be less objectionable if they had some counterweight. In other Westminster-style democracies, the counterweight is obvious: party leaders serve at the pleasure of their caucus.

In Canada, we have delegated the right to remove leaders to party members, that small class of Canadians who pay a pittance each year to carry a party’s card. From time to time, a small minority of them will trek off to a convention centre or a hockey arena to decide whether to renew their leader’s mandate.

They are accountable to no one. It should be no surprise, then, that the leaders they affirm are equally free of accountability.

The neutering of our MPs as free-thinking, independent representatives begins with their nominations and it ends with their inability to keep their leaders in check. In the meantime, the media and the punditocracy do what they can to remind MPs of their diminished role.

Since the ruling, some MPs have tried to stand and catch the Speaker’s eye to be recognized. Some have succeeded, others haven’t. A former House of Commons committee clerk, Thomas Hall, is quoted in the Ryckewaert article as saying that he doesn’t expect this to last: “If the whip wants to, he can crack down on that, he still has the power to discipline Members who disobey him.” In the same article, Professor Lori Turnbull (political science, Dalhousie University) says some MPs would consider this new-found freedom “career suicide”:

If you’re an MP and if you’re thinking, ‘Okay, I want to be on that particular committee, or I want that particular diplomatic post when I retire, or I want to say on [current Prime Minister] Harper’s good side’ or whatever it is, then you’re not going to be the guy who stands up in the House with the explicit knowledge that the Prime Minister and the party whip think you should sit down and shut up.

Still, perhaps the radical idea that MPs have the right to stand up of their own initiative and speak in the House might spark an interest in exploring other ways by which backbenchers might regain some power in the House. There is still a very long way to go before one can speak of real democratic reform, but at least it’s a step in the right direction.

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The real problem is MP irrelevancy

Recently, Canada’s federal Official Opposition proposed measures for improving decorum in the House of Commons. These measures would require changes to the Standing Orders in order to increase the Speaker’s authority to discipline unruly MPs:

who use harassment, threats, personal attacks, or extreme misrepresentation of facts or position in the House, particularly regarding Statements by Members and Oral Questions, including:

i.  Revoking questions during Oral Questions from parties whose Members have been disruptive
ii. Issuing a warning to Members for a first offense
iii. Suspending Members from the service of the House for one sitting day for a second offense; five days for a third offense; and twenty days for a fourth offense
iv. Suspending Members’ sessional allowance for the duration of their suspension from the service of the House

Reaction has been varied. Sun Media’s David Akin pointed out that new rules aren’t required – if MPs want to stop this sort of behaviour, they can simply stop it. He also suggests that if the rules governing broadcasting of House proceedings were relaxed to allow reaction shots, that too might lead MPs to think twice about behaving boorishly:

The rules require that whenever the Speaker stands, the cameras may only show him. When he is not standing, the cameras may only show the MP who is speaking.

If TV networks – Sun News Network, CPAC, CTV, CBC, etc. – were able to control the cameras, we would certainly zoom in on sleeping MPs, on MPs giving others the finger, and so on.

Knowing that their hijinks would be beamed into the nation’s living rooms would surely be the best corrective.

I am not convinced that reaction shots would change much. The cameras in UK House of Commons do not stay focused on the Member who has the floor, and this does not stop other MPs from gesturing, making faces at, or heckling their counterparts on the opposite side. Akin is closer to the mark when he ends his column with:

But more unworkable and impossible-to-enforce rules?

Newsflash: They won’t work.

The problem isn’t really not enough rules, but that over the years (decades) the rules have been changed in ways that increasingly weaken the opposition and empower the government side – essentially rendering backbenchers – and the legislature – largely irrelevant. And I refer not only to the Standing Orders of the House of Commons, but also Canada’s Elections Act, as Aaron Wherry of Macleans explains in this post. The real problem in the Canadian House of Commons is that backbenchers are not free to ask questions of interest to them, they are given scripted questions by their party Whips. Ditto for most of the highly partisan Members’ Statements – I am certain most MPs would prefer to use their Member’s Statement as intended – to speak of something of interest to them and their constituents. Instead, they are given prepared, highly partisan statements by their party leadership.

What would be needed, more than new penalties the Speaker could impose on disruptive Members, would be rule changes to strengthen the Opposition, and to ease the control party leaders have over their MPs. A lot, maybe most, of the heckling and boorishness occurs because MPs other than those on the front bench are frustrated.

While the clip from the UK’s Prime Minister’s Questions in the above link might not show it, overall, the UK House of Commons is far more respectful and decorous than its Canadian counterpart. And the  main reason for that, I believe, is because backbenchers in the UK have far more freedom than do their Canadian counterparts. Part of that is due to sheer numbers – there are 650 MPs in the UK House of Commons – the Conservative party alone has almost as many MPs as does the entire Canadian House of Commons – and so it is simply impossible for the whips to exert the same level of control over backbenchers that Canadian party whips do. As well, MPs have more control over their party leader. For example, in the UK Conservative Party, a vote of confidence in the party leader can be triggered by 15% of the party’s MPs. This means that if 46 sitting Conservative MPs write letters indicating they are unhappy with Prime Minister David Cameron as their party leader, a confidence vote is held. If Cameron were to lose that vote, he would have to resign as party leader. He would not be permitted to run again for the post of party leader either. The Liberal Democrats require that a majority of sitting MPs pass a motion of no confidence in the leader to trigger a leadership contest, but the defeated leader is allowed to stand again. Labour has no such non-confidence provisions.

The UK House of Commons has also embarked on a series of reforms in recent years which have served to strengthen the House vis à vis the executive. I have blogged extensively about many of these (see, for example, my “Fixing Ottawa” series, first post here). Governing parties in the UK do not expect that bills that they put forward will go through un-amended – or that they will even pass, which is not the case here in Canada. Because the opposition parties in the UK know that they will most likely be able to amend any government bill, there is less need to resort to tactics to try to stymie Government business in the House.

I know some will argue that if a party “wins” an election, then it has a mandate to govern and to get its legislation through the House. This argument would have more weight if our electoral system actually reflected how people voted. I don’t know how anyone can argue that a party elected to majority government with less than 40% of the popular vote (and often dismal voter turnout) has a real “mandate” to push through any piece of legislation virtually unopposed. And no piece of legislation is ever perfect – amendments should be welcomed, not defeated at every turn.

The problems in the Canadian House of Commons are mostly due to the excessive control parties have over their Members, and to years of changes to the Standing Orders which have only served to strengthen the Executive at the expense of the legislature. Fining an MP for being disruptive during Question Period won’t change anything. The problems go much deeper than that.

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On closure and time allocation

As O’Brien and Bosc explain in House of Commons Procedure and Practice (2nd ed.), one of the fundamental principles of parliamentary procedure is that debate in the House of Commons must lead to a decision within a reasonable period of time. While the political parties in the House may disagree on what a ‘reasonable period’ might be, they would all agree that eventually, debate must end and the House must decide a matter.

Over the years, changes to the Standing Orders have been made to expedite the business of the House. Chief among these was the introduction of time limits on speeches by Members. In the Canadian House of Commons, in most debates, MPs may speak once, for a maximum of 20 minutes. There are some exceptions to that rule, for example, the Prime Minister and Leader of the Opposition have unlimited speaking time. If debate extends beyond a certain number of hours, Members’ speaking time is reduced to 10 minutes. This differs from the UK House of Commons, where there are no time limits on how long MPs may speak. However, at the outset of certain debates, the Speaker may impose a time limit on speeches due to the great number of MPs who have indicated they wish to participate in the debate.

However, there are times when, despite the existing limits on debate, the Government believes there is a need to cut short the debate. Certain rules exist which allow the Government to do just that. This is called “curtailing debate” and the means by which this is usually done are via closure and time allocation.

Closure

Closure is a procedural device which is used to bring debate on a question to an end by a majority decision of the House even if not all the MPs who wish to speak on the matter have had the chance to do so. The Closure rule was adopted in the Canadian House of Commons in 1913, during a filibuster by opposition parties. It has already been introduced in the UK House of Commons much earlier, in 1881, and in the Australian House of Representatives in 1905. In those days, in Ottawa, there were no time limits on how long Members could speak on a question, and opposition parties had managed to significantly delay the passage of government legislation, with some debates on bills stretching out over two years. Since its introduction in 1913, closure has been used over 60 times in the Canadian House of Commons.

Closure is a motion “That debate not be further adjourned”. It provides the government with a procedure to require that the question be put at the end of the sitting in which a motion of closure is adopted. Closure may be applied to any debatable matter, including bills and motions.

Prior to moving a motion for closure, an oral notice of intention to do so must have been given by a Minister at a previous sitting of the House. Debate on the item that is the subject of the notice must have begun before notice of closure may be given. No obligation exists to proceed with moving the closure motion even if notice has been given.

After notice has been given, the closure motion may be moved during a subsequent sitting. It must be moved by a Minister immediately before the House resumes debate on the item. While the closure motion is not debatable or amendable, a 30-minute question period is permitted, during which Members may ask questions of the Minister responsible for the closured item. At the end of this period, the Speaker immediately puts the question on the closure motion.

When a motion for closure is adopted, debate resumes on the now-closured business, subject to the restrictions imposed by the closure rule. Any Private Members’ Business scheduled during that sitting day is still taken up at its regular time. All questions necessary to dispose of the closured business are put no later than 8:00 p.m.

Time Allocation

Time allocation, like closure, came about following a filibuster by the opposition during the Pipeline Debate in 1956. During that debate, closure was the only rule the government could use to advance its legislation but it was becoming clear that it was rather inflexible and inadequate. Consequently the House and its committees began deliberations on better ways to allot time for the consideration of specific pieces of legislation and planning of the session’s work, which the closure rule could not do. However, it wasn’t until 1969, after a debate which lasted 12 hours and that was, ironically, curtailed by a motion of closure, that a report recommending time allocation measures was adopted. The rule has evolved over the years, with the current version adopted in 2001.

The time allocation rule, which is used much more frequently than closure, allows for specific lengths of time to be set aside for the consideration of one or more stages of a public bill. Although the rule permits the government to negotiate with opposition parties towards the adoption of a timetable, it can also be used by the government to impose strict limits on the time for debate.

The rule is divided into three distinct sections with specific conditions applying depending on the degree of support among the recognized parties in the House of Commons. As explained in House of Commons Procedure and Practice:

1. All Parties Agree: The first section of the rule envisages agreement among the representatives of all the recognized parties in the House to allocate time to the proceedings at any or all stages of a public bill. No notice is required. In proposing the motion, a Minister first states that such an agreement has been reached and then sets out the terms of the agreement, specifying the number of days or hours of debate to be allocated. The Speaker then puts the question to the House, which is decided without debate or amendment.

2. Majority of Parties Agree: The second section of the rule envisages agreement among a majority of the representatives of the recognized parties in the House. In these circumstances, the government must be a party to any agreement reached. The motion may not cover more than one stage of the legislative process. It may, however, apply both to report stage and third reading, if it is consistent with the rule requiring a separate day for debate at third reading when a bill has been debated or amended at report stage. Again, no notice is required, and it is not necessary for debate on the stage or stages specified in the time allocation to have begun. Prior to moving the motion, the Minister states that a majority of party representatives have agreed to a proposed allocation of time. The motion specifies how many days or hours are to be allocated.

3. No Agreement: The third section of the rule permits the government to propose an allocation of time unilaterally. In this case, an oral notice of intention to move the motion is required. The motion can only propose the allocation of time for one stage of the legislative process, that being the stage then under consideration. However, the motion can cover both report stage and third reading, provided it is consistent with the rule which requires a separate day for third reading when a bill has been debated or amended at report stage. The amount of time allocated for any stage may not be less than one sitting day.

The wording of a motion for time allocation must be specific as to the terms of the allocation of time. In most cases, time is allocated in terms of sitting days or hours. When there is no agreement between the parties, the amount of time allocated may not be less than one day. The motion can propose only the allocation of time for one stage of the legislative process, that being the stage then under consideration, with the exception of report stage and third reading, which can be covered in one motion. A motion for time allocation must be moved by a Minister in the House, and is neither debatable nor amendable. However, there is a 30-minute period set aside for Members to ask questions of the Minister responsible for the bill in question.

After the adoption of a motion for time allocation, debate at the stage or stages of the bill in question then becomes subject to the time limits imposed by the motion. The day on which the time allocation motion is adopted may be counted as one sitting day for that purpose, provided the motion is moved and adopted at the beginning of Government Orders and the bill is taken up immediately. At the expiry of the time allocated for a given stage, any proceedings before the House are interrupted, and the Chair puts every question necessary for the disposal of the bill at that stage. (source: Compendium of Procedure Online)

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Keyword Post: Answers to Questions on Election Outcomes

Following the recent election in the Canadian province of Ontario, I can see that there are a lot of people searching for very basic information about how our system of government works. While I have detailed posts answering most of these questions on this blog, I will provide shorter, basic answers to some of the most common questions to which people want answers.

1. What happens in a minority government / what does a minority government mean / how does a minority government happen?

A minority government simply means that the party or parties forming the government do not have a majority of the seats in the legislature. In the case of Ontario, there are 107 seats in the provincial assembly, therefore to have a majority government, a party (or parties) needs to have at least 54 seat. If the party, or parties, which forms the government have fewer than 54, we call this a minority government – it could be a single party minority government, or a coalition minority government. The Liberal Party won 53 seats in the 6 October election, more than any one of the other two parties (PC 37, NDP 17), but less than the two other parties combined, who have a majority between them (54 seats), therefore Ontario now has a single party minority government.

As for what happens during a minority government, the party forming the government must work more closely with the other parties in order to ensure that the government survives.  Therefore, it will tailor legislation to appeal to at least one of the other parties, in order to get that party to vote to support the legislation in the House. Minority governments can be very effective if they work closely with the other parties, but if there is little cooperation, then the government can be unstable, constantly at risk of being defeated on a confidence matter or vote. The more cooperation there is between the parties, the better the chances are that the government will last more than a few months and the more productive the legislature will be. For more detailed information about government formation and various forms of government, please read this post and this post.

2. How many votes does a third party need to get?

It isn’t a question of how many votes a party needs, it is a matter of how many seats a party wins. In the Ontario legislature, a party must win at least 8 seats to be recognized as a party. If fewer than 8 MPPs are elected from a certain party, they will be considered “Independent Members”. This has consequences because additional funds are available to political parties represented in the House, but not Independents. Committee chairs are allocated to recognized parties, but not to Independents. Political parties are allocated a certain amount of debate time and questions during Oral Questions, but Independents can only participate in debates and in Oral Questions if the Speaker chooses to recognize them.

Therefore, a party needs to win at least 8 seats to be a recognized party in the legislative assembly. However, party representation in the Legislature is not limited to only three parties. For many many years now, there have been only three parties represented in the Legislative Assembly, but there used to be more than three, and in the future, if the Greens (or some other party) become more popular and get members elected, there will be more than three parties again.

In the Canadian House of Commons, a party must win 12 seats to be recognized as a party. That is why Elizabeth May, leader of and the only member of the Green party in the House of Commons is considered an Independent. The Bloc Quebecois won only 4 seats in the 2011 election, and thus is no longer a recognized party. Its four members are considered Independents. Some jurisdictions don’t have any minimum seat requirements for a  party to be recognized in the House.

3. Could the Progressive Conservatives and NDP form a coalition?

Yes. It’s probably not very likely given that ideologically, they aren’t very close, but there is certainly nothing stopping the two parties from working together, even forming a coalition. However, even if they announced that they had formed a coalition, which would command a majority of the seats in the legislature, they would not automatically become the government. As the incumbent party, the Liberals have the right form the government first. If they Liberal minority government were defeated on a confidence vote, then the Lieutenant Governor could ask a PC-NDP coalition to form a new government. Again, see this post on government formation for more information.

4. How many votes are needed to win a seat in the provincial (or federal) election?

One more than the candidate who finishes second.

Because Ontario (and every other jurisdiction in Canada) uses Single Member Plurality (more commonly known as First-Past-the-Post) to elect members, a candidate only has to receive a simple majority of the votes cast, which could be as few as one single vote more than the person in second place. They don’t need to get 50% of the votes cast, just more than the next person.

For example, in the 6 October 2011 Ontario election, in the riding of St. Paul’s, the final results were:

Hoskins, Liberal – 25,052 votes, or 58.4%
McGirr, PC – 8971 votes, or 20.9%
Hynes, NDP -  7121 votes, or 16.6%

In this case, the Liberal candidate won decisively, receiving a majority of the votes cast (58.4%), well ahead of the candidate in 2nd place. However, in other ridings, the results were much closer, for example, in Kitchener Centre:

Milloy, Liberal – 15,392 votes, or 39.2%
MacDonald, PC – 15,069 votes, or 38.4%
Dearlove, NDP – 7382 votes, or 18.8%

In this case, the winner did not get over 50% of the votes cast, but that doesn’t matter. He did get more votes than the candidate who finished second (323), and that is all that is required. Even if the margin of victory had been only one vote, he still would have won the seat. Please see this post for more information on how FPTP works (or doesn’t work).

5. How many votes does it take for a majority government in Canada/in a province?

Again, it isn’t a question of votes, but how many seats a party wins. That will vary by legislature. In the federal House of Commons, there are currently 308 seats, therefore a party (or coalition of parties) needs 155 seats for a majority (308 / 2 + 1). The numbers will be different for each provincial legislature since they all have different numbers of seats. Simply take the total number of seats in the legislature, divide by two and add one. That is how many seats are required for a majority in that province. (If you don’t know how many seats there are in the legislature in question, simply Google for that legislature – i.e. “legislative assembly of Saskatchewan”. The information will be available on the Assembly’s website.)

6. What happens when less then 50% of the population vote in a Canadian election?

Nothing. In the first place, not everyone is eligible to vote in an election. There are certain conditions which must be met to be eligible to vote (for example, you must be at least 18 years old, you must be a Canadian citizen, etc.), therefore the number of eligible voters will always be lower than the total population of the country or province (in the case of a provincial election). However, voting is not mandatory and there is no minimum turnout required to validate elections in Canada, therefore as long as some people turn out to vote and Members get elected, the election will be valid. Of course, ideally, every one who is eligible to vote should do so.

7. What happens if a party wins but their leader doesn’t win a seat?

If a party wins sufficient seats in an election to allow it to form the government, but the party leader doesn’t win his or her seat, that party still forms the government. The party will name an interim leader from among its elected members, and the actual leader will attempt to get elected to the House as quickly as possible. This will usually happen via a by-election. The party may convince one of its members from a very safe riding to resign their seat. A by-election will be called to fill the vacancy, and the party leader will run in that by-election. Usually they will win, but if they were to lose, then it would be expected that they would probably resign as party leader. The party would then hold a leadership convention to choose a new leader. All of this would have no impact on the party’s right to form the government, however. You might want to read this post on how the Prime Minister is chosen for more information.

8. What happens if a minority government is defeated?

If a government is defeated because it has lost the confidence of the House (and this could happen to a majority government as well, though it isn’t very likely), normally the defeated Prime Minister or Premier will suggest to the Governor General (or Lieutenant Governor in a province) one of two things: to ask the leader of another party if they can form a government that might command the confidence of the House, or to dissolve parliament and call a new election. What the Governor General or Lieutenant Governor will decide to do might depend on when in the life of the parliament the government loses the confidence of the House. If the government’s defeat occurs very early on in the life of the new parliament (i.e. very soon after a general election), the GG or LG might be more inclined to see if another party or group of parties can form a new government. If this is possible, than that party (or group of parties if they have formed a coalition or reached some sort of agreement) will form the government without an election being necessary. However, if no other party or group of parties is able to form a government which will command the confidence of the House, then the Governor General or Lieutenant Governor will dissolve parliament and call for a new election. The greater the distance between the last election and the defeat of the government, however, the more likely it is that the GG or LG will dissolve parliament and call for a new election.

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What’s what in Parliament: The Standing Orders

The Standing Orders are the written rules under which a Parliament conducts its business. They regulate the way Members behave, Bills are processed and debates are organised. The continuing or “standing” nature of rules means that they do not lapse at the end of a session or a Parliament; they remain in effect until the House itself decides to suspend, change or repeal them. In some instances, however, provisional or temporary Standing Orders may be adopted by a legislature and last only until the end of a sesssion or a parliament.

The Standing Orders typically provide a detailed description of the legislative process, the election and role of the Speaker, the parliamentary calender, how committees will be organized and function, etc. However, not all rules observed in the House are found in the Standing Orders. Much of parliamentary procedure is not written into the Standing Orders but exist as the custom and practice of Parliament. Some stem from Speaker’s rulings in the legislative chamber, other procedures are followed because that’s the way things have been done in the past, so a precedent has been set. These will vary from one legislative body to another. For example, in the UK House of Commons, the practice that Bills are ‘read’ three times in both Houses is not in the Standing Orders, but it is in the Canadian House of Commons Standing Orders (SO 71). Another example, in the Canadian House of Commons, Members must not use props, displays or exhibits during debate, and any Member who does so will be ruled out of order by the Speaker. However, there is no rule in the Standing Orders of the House of Commons forbidding the use of props; this is simply a long-standing parliamentary convention.

Similarly, there may be rules in place which simply aren’t followed at all any more, or else actual practice followed in the House may differ from what is stipulated in the rules.

Other aspects of how business transpires in a Parliament are governed by the country’s constitution, as well as certain Acts. Some of these constitutional provisions may be adopted as formal rules in the Standing Orders. Using Canada again as an example, we learn in House of Commons Procedure and Practice (2nd ed.) that:

Sections of the Constitution Act, 1867 which can be traced back to the Constitutional Act, 1791 stipulate that all questions arising in the House are to be decided by a simple majority, with the Speaker having a casting vote in the case of a tie, and that all Members must take a prescribed oath before being allowed to take their seat in the House. Those sections of the Constitution Act, 1867 which can be traced back to the Union Act, 1840 stipulate that on first assembling, the House must elect a Speaker, that it must also proceed to elect another Speaker in the case of a vacancy in that office due to death, resignation or some other cause, that the Speaker shall preside at all meetings of the House, that the quorum of the House shall be 20 Members, and that all requests for the raising or spending of money must originate in the House of Commons and must be recommended to the House by the Governor General.

The Parliament of Canada Act also contains many important provisions which are of procedural significance. Examples of these include: the power of the House and its committees to administer oaths to witnesses appearing either at the Bar of the House or before a committee; procedures to be followed when Members resign or when seats are otherwise vacated; conflict of interest rules applicable to Members; a Deputy Speaker’s ability to act in the Speaker’s absence, etc.

The Standing Orders belong to the legislative body they govern, and that legislative body is free to amend or repeal any rule, and create new ones. In some instances, this is done by an all-party parliamentary committee which will review existing rules and put forward recommendations to improve how the House conducts its business. In other instances, the government of the day will propose changes to the rules which will then be debated in House and often reviewed by a committee. Sometimes the Speaker, in a ruling on a matter which may not be explicitly covered by the Standing Orders, may refer the matter to a committee for consideration, which may result in changes to the Standing Orders.

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United Kingdom House of Commons Standing Orders – Public Business, Private Business
United Kingdom House of Lords Standing Orders – Public Business, Private Business, Authoritative Guide
Canadian House of Commons Standing Orders
Canadian Senate Standing Orders
Australian House of Representatives Standing Orders
Australian Senate Standing Orders
New Zealand Parliament Standing Orders

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Speaker Bercow and accusations of bias

British House of Commons Speaker John Bercow annoys many MPs. There have been a rash of articles over the course of the past year hinting at behind-the-scenes plots to get rid of him. Having regularly livestreamed proceedings from the UK House of Commons, I find it difficult to assess why there is such animosity towards Speaker Bercow.

Reasons oft-advanced is that he is arrogant and overbearing, and that he hates the Conservative Party. It is this last point that raises some eyebrows. Bercow was a member of the Conservatives, until he became Speaker of course. Like all MPs elected Speaker in the UK, once elected to the post, Bercow resigned his party membership in order to maintain the highest degree of impartiality. And is perhaps because he does strive to be impartial that some Conservative MPs think he now “hates” the party.

Recently, the Daily Mail ran an article claiming that Bercow reprimands Conservative MPs twice as often as the does Labour MPs. This conclusion is based on figures compiled by Rob Wilson, the parliamentary private secretary to Culture Secretary Jeremy Hunt, who counted the number of times Mr Bercow shouted “order” at MPs since the general election in May 2010. He found that Conservative members were admonished 257 times compared with 109 times for Labour MPs. The article quotes Mr. Wilson saying: “Those MPs who have suggested bias in the Speaker’s handling of the Commons would feel vindicated by these figures.”

Of course, there was no suggestion anywhere that perhaps, just perhaps, Conservative MPs were called to order more often because it was deserved.

Conservative backbench MP Douglas Carswell addressed some of the complaints made against Speaker Bercow earlier this year. He dismissed the claims that Bercow was biased:

Bercow’s biased, complain others. If by that you mean he shows favour to one side of the Commons chamber or party, that is demonstrably not true. If anything he can be tediously even handed.

What bias Bercow does undoubtedly have is one which favours backbenchers against the frontbenches - and in support of the legislature over the executive.

Under Bercow, even tiddly little backbenchers like me can force ministers to come before the Commons and answer urgent questions. It makes their life difficult – and keeps them on their toes.

Commentators have observed the way in which this Parliament is more rebellious than others. One of the key reasons for this is the way the Speaker calls amendments. Under previous Speakers amendments tabled by backbenchers that the government might have found inconvenient would almost never get called. Now, there is every chance that they will.

I suspect that is precisely why part of the Tory hierarchy has taken against Mr B. It is because the legislature is slowly getting off its knees, no longer lying prostrate before the executive, that some inside the government remember fondly the days when Whips anointed Speakers – and Speakers behaved accordingly.

This is the impression I have from watching proceedings in the House of Commons. If Bercow is biased, as Carswell notes, it is towards the legislature at the expense of the executive. He is helped in that role by some of the new procedures that were voted on by the House in the dying days of the previous Parliament, such as the creation of a Backbench Business Committee, new rules for electing committee chairs and choosing committee membership, etc., which have also strengthened the legislature vis à vis the executive. But Bercow has also appeared more willing to make use of existing rules, such as Urgent Questions. His predecessor, Speaker Martin, allowed only two urgent questions during his last year as Speaker; Bercow has granted over 60 in the first year of this new Parliament.

If the legislature is being strengthened at the expense of the executive, it is natural that the party forming the executive would perceive that as bias against them. Once in power, a party develops a sense of entitlement; having that undercut doesn’t always sit very well.

This is not meant to downplay many of the other criticisms levelled at both Speaker Bercow, and in particular, his very out-spoken wife. However, the charges of “hating” the Conservatives, and bias in the Chamber are, I believe, undeserved. The rules have changed, voted on and adopted by the House itself, and Speaker Bercow is simply applying those rules. Perhaps some MPs belonging to one of the parties forming the government believe they are entitled to more of a free ride in the House. Speaker Bercow disagrees.

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On Members’ attire

Robert Flello (Stoke-on-Trent South) (Lab): I pay tribute to all the public sector workers we rely on time and time again, and in particular those in Staffordshire. Over many months, I have had letters from serving police officers concerned about the Winsor report and the knock-on effect on morale, and about A19 and losing senior officers. Now they are concerned about the fact that having been called on at our time of need—out on the streets, putting themselves in the firing line—they are having their leave cancelled and having to give up holidays due to overtime requirements. It was an hour and a half before we heard the words “Her Majesty’s inspectorate of constabulary”, and we have heard nothing about Mayor Boris Johnson’s view about policing cuts. Will the Prime Minister finally get to his feet and address the loss of 16,000 jobs?

The Prime Minister: I do not know whether we need an inquiry into safety in the House, Mr Speaker, but someone seems to have stolen the hon. Gentleman’s jacket.

I accept that we are asking police officers to do a difficult job and, yes, we are asking them to undergo a pay freeze, as other public sector workers are doing, but we are giving them the backing they want by cutting paperwork and enabling them to get out on the street and do the job they want to do.

Mr Speaker: I am grateful for the Prime Minister’s concern, but I assure the House that nothing disorderly has happened. The hon. Member for Stoke-on-Trent South (Robert Flello) was perfectly in order. He was focusing not on sartorial matters but on violence, and he was perfectly in order. We will leave it at that. I ask the House to try to rise to the level of events. (Source: House of Commons Hansard, 11 August 2011)

This exchange took place during Prime Minister David Cameron’s ministerial statement on the civil unrest which had occurred in the United Kingdom earlier in the week. The fact that a Labour MP appeared in the House of Commons sans jacket caused somewhat of a stir. Despite the overall seriousness of the subject being debated, ConservativeHome still felt it noteworthy to blog about Mr. Flello’s perceived lack of disrespect for House rules.

The blog post’s author, Matthew Barrett, cites Erkine May, the “bible” of Parliamentary procedure:

This seems to be very much the opinion of Mr Speaker Bercow. Erskine May specifically says:

“The Speaker has also stated that it is the custom for gentlemen members to wear jackets and ties.”

It appears that Mr. Barrett doesn’t have the most current edition of Erskine May, which was published this year. In the 24th edition, it states:

It remains the custom for gentlemen Members to wear jackets and ties, but the Speaker has not enforced the practice in all circumstances. (p. 451)

Examples cited of Speakers not enforcing this practice pre-date Speaker Bercow, and so contrary to comments made by readers and Mr. Barrett’s insinuation, this isn’t simply the opinion of Speaker Bercow, who has been criticized by some for shunning the Speaker’s traditional garb and wig. Here is one such example from 1989:

Mr. Jeremy Hanley (Richmond and Barnes) :On a point of order, Mr. Deputy Speaker. I clearly heard you call the hon. Member for Coventry, South-East (Mr. Nellist). It is the third time in the past half hour that you have called him. We are in danger of a precedent being set as not only is he not wearing a jacket when you have called him, but he has his shirt sleeves rolled up. Will you please ask him to withdraw from the Chamber until he is properly dressed, or not call him again?

Mr. Deputy Speaker : I know that Mr. Speaker has dealt with this matter on a number of occasions. He has requested normal dress in the Chamber, but he has never said that it is an absolute condition for an hon. Member being called. He has merely deprecated abnormal dress. I call Mr. Nellist.

The Canadian House of Commons has a similar tradition. As we learn from House of Commons Procedure and Practice (2nd ed.), p. 603-4:

While the Standing Orders prescribe no dress code for Members participating in debate, Speakers have ruled that all Members desiring to be recognized at any point during the proceedings of the House must be wearing contemporary business attire. Current practice requires that male Members wear jackets, shirts and ties. Clerical collars have been allowed, although ascots and turtlenecks have been ruled inappropriate for male Members participating in debate. The Chair has even stated that wearing a kilt is permissible on certain occasions (for example, Robert Burns Day). Members of the House who are in the armed forces have been permitted to wear their uniforms in the House. Although there is no notation to this effect in the Journals or in the Debates, a newly-elected Member introduced in the House in 2005 wore traditional Métis dress (including a white hooded anorak bearing an embroidered seal emblem) on that occasion without objection from the Chair.

In certain circumstances, usually for medical reasons, the Chair has allowed a relaxation of the dress standards allowing, for example, a Member whose arm was in a cast to wear a sweater in the House instead of a jacket.

Interesting to note that Members who are in the armed forces can wear their uniform in the Canadian House of Commons, but Erskine May states that “the wearing of military insignia or uniform inside the Chamber is not in accordance with the long-established custom of the House.”

New Zealand and Australia also have specific guidelines governing proper attire for their elected representatives. In the Australian House of Representatives, while the standard of dress is left to the individual judgement of each Member, the ultimate discretion rests with the Speaker. In 1983, the Speaker explained that his rule in the application of this discretion was “neatness, cleanliness and decency.” In 1999, another Speaker noted that Members traditionally chose to dress in a manner similar to that generally accepted in business and professional circles. It was generally accepted that the standards should involve “good trousers, a jacket, collar and tie for men and a similar standard of formality for women” but that he would not apply these standards rigidly. For example, should the air conditioning fail, it would be acceptable for male Members to remove their jackets. Clothing with slogans, however is not generally allowed (House of Representatives Practice, p. 157).

In New Zealand, while there are no fashion codes prescribed, the Speaker normally takes issue with any Member not dressed in appropriate business attire. However, the Speaker regularly polls male Members regarding their attitude to wearing a jacket and tie in Chamber. (Parliamentary Practice in New Zealand, p. 125)

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Recalling Parliament

Most parliaments follow a parliamentary calendar, which provides a fixed timetable of sittings and adjournments for a full calendar year. Once a session begins, the calendar alternates sitting periods with adjournments at set points throughout the year.

A sitting is simply a meeting of the legislature in question during a session. While the legislature’s Standing Orders will normally provide times and days for sittings of the House, it should be noted that a sitting is not synonymous with a calendar day. Some sittings are very brief, some last for more than a day, and sometimes, there can be two sittings in a single calendar day. A sitting ends with an adjournment, either as per a Standing Order which indicates that the legislature adjourns at a specific time each day, or pursuant to a motion to adjourn. An adjournment covers the period of time between the end of one sitting and the start of the next, therefore it can last a few hours, overnight, over a weekend, a week, or even longer. The power to adjourn rests with the House, unlike prorogation and dissolution, which are prerogative acts of the Crown.

Most legislatures will have at least two extended periods of adjournment during the course of a parliamentary calendar year. These typically occur in the winter (or summer if one is in Australia or New Zealand), usually coinciding with the Christmas and New Year period, when the House will adjourn some time in December and resume sitting in January or February (or later); and during the summer (or winter for those south of the equator), with the House adjourning in June or July until September or October (or later). You can see the Canadian House of Commons parliamentary calendar here. If you view the calendar for 2011, you will note that the House resumed sitting on January 31 (after adjourning on December 16, 2010). The Canadian House of Commons normally alternates between sitting  five days a week for three consecutive weeks, then adjourning for one week to allow MPs to return to their constituencies. The UK House of Commons normally sits four days a week (Monday to Thursday and sometimes on Friday if there are Private Members’ bills to consider), and MPs return to their constituencies every Friday. Because Canada is a much larger country than is the United Kingdom, it isn’t realistic for most MPs to return to their constituencies every weekend, hence the week-long constituency breaks every three weeks.

The Australian House of Representatives parliamentary calendar for 2011 can be viewed here and the New Zealand Parliament’s here. The UK Parliament has no definitive timetable for a parliamentary session, but you can view the provisional recess dates for 2010-2012 here.

Parliamentary calendars can be altered by the will of the House or the Crown. The Canadian House of Commons’ 2011 calendar was interrupted by a general election. The minority government was defeated on a confidence vote on March 25, 2011. Parliament was dissolved the next day by the Governor General, and a general election held on May 2, 2011. The new Parliament met for the first time on June 2, 2011, and sat until June 26 before adjourning for the summer recess.

Similarly, the UK House of Commons was scheduled to adjourn for the summer recess on July 19, but was recalled for an extra day (July 20) to address the phone hacking scandal. The House of Commons has been recalled again to sit on August 11 to address the outbreaks of rioting that began on August 6.

Recalling Parliament is initiated by the Government making a request in writing to the Speaker, setting out reasons why it is in the public interest to recall the House. The Speaker will consult with the Government, and if satisfied that the public interest would be served by recalling the House, he or she does just that. Ultimately, it is the Speaker’s decision whether or not to recall Parliament. The BBC has prepared a timeline of the 14 recalls of Parliament that have occurred over the past 30 years.

The first motion granting the Speaker the power to recall Parliament was adopted in Canada in 1940:

In 1940, however, given the uncertainty of the wartime situation, it was deemed advisable to adjourn rather than to prorogue in order to enable the House to reconvene quickly if necessary. The House adopted a motion to adjourn which empowered the Speaker to recall the House if, after consultation with the government, it was concluded that it was in the public interest to do so. Similar motions were adopted in subsequent sessions and became routine when the House adjourned for an extended period of time.

The first recall under these circumstances occurred in 1944 when the government wished to apprise the House of the situation arising from the resignation of the Minister of National Defence. Several other recalls took place before 1982, at which time the practice was codified by the adoption of a Standing Order worded similarly to the adjournment motions used before 1982. (House of Commons Procedure and Practice, 2nd ed.)

There have been 12 recalls of Parliament in Canada since 1944.

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Perceptions of parliamentary procedure: is the grass really greener?

Last week’s appearance by Rupert and James Murdoch before the UK House of Commons Select Committee on Culture Media and Sport (which you can view here if you missed it) as well as Prime Minister David Cameron’s ministerial statement in the House of Commons the following day (viewable here) received global media attention. Many Canadian journalists who normally report on proceedings in the Canadian House of Commons seemed enthralled by the often small, yet significant differences in how the UK and Canadian Houses of Commons function – the very same differences which I have been writing about here for over a year now.

CBC reporter Kady O’Malley, who regularly liveblogs proceedings on Parliament Hill in Ottawa, has since written two posts outlining some of the differences which she observed and, for the most part, would like to see adopted in Canada (first post on committee procedure, second post on procedure in the House of Commons). One highly respected political commentator, Andrew Coyne, national editor of Macleans Magazine, tweeted on July 20 “Everyone should be watching the UK phone-hacking debate, if only to see what a real parliament looks like”.

O’Malley’s post on committee procedure ignores one very important difference between Canadian and UK House of Commons committees: the majority of Select Committee Chairs are now elected by their fellow MPs. This applies to departmental committees and the Environmental Audit, Political and Constitutional Reform, Procedure, Public Administration and Public Accounts committees. Canadian committee chairs are elected by that committee’s members. Similarly, committee members in the UK are elected by their respective caucuses, while members of Canadian committees are appointed by their party whips. I have discussed this in detail in this post, and so I won’t repeat myself here, but it should be fairly obvious to most why having elected chairs and committee members would make for a more responsive and less partisan committee.

There are also a couple of other inaccuracies in O’Malley’s post on committee procedure. UK select committees do allow witnesses to make opening statements or general comments. Some witnesses decline to do so, but others take advantage of the offer. To her credit, Kady notes:

The following observations were inspired by what I saw when I was liveblogging the Home Affairs and Culture Select committees on Tuesday; as we are so often reminded, committees are, of course, masters of their own respective destinies, which means it is distinctly possible that other select committees operate on slightly – or even substantially – different rules.

O’Malley also writes that there aren’t time limits for questions and answers, nor on the length of time witnesses are expected to stick around to answer. Again, this isn’t entirely true. Each committee hearing has a set duration, for example, from 10:00 a.m. to 11:30. The committee may well decide to go on longer, or to cut proceedings short. Some witnesses do have to leave at a certain time because of other commitments, and so the committee knows it has only a half hour, or an hour, etc., with that specific witness. It is true, however, that unlike the Canadian House of Commons committees I have watched, the UK committees don’t have time limits for questions and answers.

While Kady O’Malley highlighted some key differences (based on having observed one committee hearing), a recent piece on the BBC website questions if MPs are really up to the task of questioning witnesses, stating that “[T]here had been criticism of earlier hearings for not asking sharp enough questions, or following up lines of enquiry.” One MP defended MP inquiries this way:

“We are asking questions as non-experts, as representatives of the public.

“You can’t prepare those questions in advance because you can’t always anticipate the way that the discussion will go.”

The comment by UK MP Nicola Blackwood that MPs are asking questions “as non-experts” also reminds me of former Prime Minister John Major’s recent calls for reforms to increase the number of MPs with expertise in specific areas, which I discussed in this post.

This is a legitimate criticism of parliamentary committees. For example, there has been much criticism of one MP on the Culture, Media and Sports committee, Louise Mensch, for making some comments during the July 20 hearing accusing former News of the World Editor Piers Morgan of phone hacking because he had supposedly admitted to this in his autobiography. This led to a fierce row between Morgan and Mensch, who refused to repeat the allegations outside of Parliament, where she would no longer be protected by parliamentary privilege. Here in Canada, other committee investigative hearings have been less than stellar. In 2007, the Canadian House of Commons Committee on Access to Information, Privacy and Ethics conducted an investigation into the Mulroney Airbus settlement. The questioning of former Prime Minister Brian Mulroney by MPs appeared often amateurish and boorish, and Mulroney’s legal counsel, Guy Pratte, described committee hearings as “damaging”:

“At a parliamentary committee there are absolutely no rules. Zero rules. At least at inquiry commissions some rules of fairness apply. Parliamentary immunity means things are said that never would be said if MPs were subject to defamatory libel.”

He remembers New Democrat MP Pat Martin saying to Mulroney: “I won’t call you a liar, but I don’t want anyone here to think that I believe you.” Pratte says, “That sort of thing would never be tolerated in a court of law. Never, never, never!” Mulroney fumed at the insult and his son Ben, the television host, had to be restrained in the audience. “Parliamentary committees play with peoples’ reputations sometimes in a very dangerous and damaging way,” says Pratte. “I understand they have work to do, and it is a political forum. I suppose there is a political advantage to be gained from getting a big headline the next morning.

“I’ve said it many times in the Mulroney affair. It should resemble an ordinary court.” Pratte says. “We should at least try to respect the basic principles of fairness. I wanted to present myself in politics several times, but my experience as much with Mr. Pelletier as Mr. Mulroney left me discouraged by the performance of certain, but not all, MPs and the lack of concern with which they threw out any sort of accusation.”

Kady O’Malley’s second post looked at differences between the UK and Canadian House of Commons in general. On Twitter on July 21, many Canadian journalists were enthralled by the ministerial statement delivered by David Cameron on the phone hacking scandal and the questions and debate which followed. I have also explored the vast differences between Canadian and UK ministerial statements, O’Malley, for some reason, did not comment on that at all. While UK ministerial statements are always far more productive affairs than their Canadian counterparts, this one was quite noteworthy: Cameron took 136 questions from MPs during his statement.

It was interesting to see the many comments from Canadians on Twitter, some of whom lamenting that Canada doesn’t have a Prime Minister’s Questions (not that there was a PMQs on 20 July). It reminded me that only days earlier, the Independent had run an article celebrating the 50th anniversary of PMQs. The sub-headline of that article reads: “No other parliament has anything like Prime Minister’s Questions.” Quite a few readers took exception to that and rattled off a series of countries that they said had PMQs: Finland, Japan, Hong Kong, Australia, Canada, to name a few. It was clear to me that people were confusing a general oral question period where all ministers, including the PM, take questions, which is what both Canada and Australia have, with a questions session where only the PM and no other ministers takes questions. It made me wonder if the Canadian journalists on Twitter, who were expressing such enthusiasm for PMQs, were aware of the UK House of Commons’ other daily questions – the department-specific oral questions, which I’ve written about in detail here. I don’t know if they’d be as impressed by those since they are such staid affairs when compared to PMQs. They should be, however, since again, they are far more productive than the Canadian version of Question Period for both getting information from the government and holding it to account.

Regular readers of this blog will know that I personally believe that the UK House of Commons functions far better than its Canadian counterpart, but as we all well know, the grass usually does look greener on the other side of the fence – or in this case, ocean. At least one very prominent figure in the UK believes there is still room for further reforms at Westminster.

House of Commons Speaker John Bercow spoke to the Guardian and stated that while “MPs and peers have “rediscovered their collective balls” over the phone-hacking affair”, more could be done to strengthen Parliament. First on his list is finding a way to allow Parliament to compel witnesses to appear before committees.

Parliamentary committees (both in the UK and Canada and other jurisdictions) have the power to request witnesses to give evidence to them via an informal invitation issued by the committee clerk or the committee chair. They can also draw on their formal powers to summon witnesses via a Speaker’s warrant. That power is unqualified, “except to the extent that if conflicts with the privileges of the Crown and of Members of the House of Lords, or with the rights of Members of the House of Commons.” (Erskine May, 24th edition, p. 820). Should a witness fail to comply with such a warrant, however, they will be found in contempt of Parliament. In theory, the House of Commons has the power to send for persons whose conduct has been brought before the House on a matter of privilege by an order for their attendance. In practice, however, as Bercow notes, this isn’t really an enforceable power:

“If the Murdochs had refused the warrant to attend, we would have been in an extremely awkward situation. I don’t think there is much we could have done. There has been a complete ambiguity, a lack of clarity, an uncertainty about what our powers are.”

Bercow says select committees should have enforceable powers to compel witnesses in British jurisdiction to attend, and not, as at present, “depend on a toxic blend of bad publicity and the entirely implausible threat of imprisonment.

“I don’t think frankly it should be the Speaker on behalf of the house imprisoning a witness. We have got a creche in the parliamentary estate, but not so far as I know a cell.”

I sort of agree with Bercow that there probably needs to be a better way to compel witnesses to attend when summoned to appear before a parliamentary committee. Currently, the most likely outcome of a witness’s refusal to appear before a committee will be for that person to be found in contempt of Parliament. They may be called before the Bar of the House to be reprimanded by the Speaker or asked to apologize, but again, there is no way to compel them to do so:

The problem is that the sanctions – involving fine or imprisonment – to enforce any punishment are constitutionally somewhat rusty. Vernon Bogdanor, the former professor of government at Oxford University, has suggested they may have fallen into “desuetude” [disuse]. The House of Commons is not believed to have fined anybody since 1666 and has not “committed anyone to custody”, apart from temporarily detaining them, since the 19th century.

The last time the Commons attempted to reprimand anyone at the bar of the house was in 1957 when the Sunday Express editor John Junor was criticised after offending MPs by publishing an editorial accusing them of abusing their petrol allowances. “Such a sanction would now appear high-handed,” the recent standard and privileges committee report acknowledged.

Another MP, Adrian Bailey, who chairs the Business, Innovation and Skills Select Committee, has called for new laws to be introduced to force witnesses to appear before select committees. In the US, a federal act makes contempt of Congress a misdemeanor “punishable by a fine of not more than $1,000 nor less than $100 and imprisonment.., for not less than one month nor more than twelve months.” Perhaps something along these lines would be what Bailey and Bercow have in mind.

Bercow also would like to see witnesses before committees examined under oath “as a matter of course”. Committees do have the power to administer oaths to witnesses, however, more often than not, they aren’t. This too has ramifications. If a witness was not sworn in before testifying, and then found to have provided false evidence or misled the committee, the worse that will happen is that they may be found in contempt. However, again according to Erskine May (p. 824), “[B]y the Perjury Act 1911, s 1, where evidence is given upon oath, the giving of false evidence is punishable as perjury. The power of either House to punish for false evidence is not, however, superseded by this Act.” Meaning that it would still be up to the house to administer any punishment – the range of which are similar to those available for anyone deemed to be guilty of contempt. And again from Erskine May:

it should be borne in mind that in 1978, the House of Commons resolved to exercise its penal jurisdiction as sparingly as possible, and only when satisfied that it was essential to do so. Thus many acts which might be considered to be contempts are either overlooked by the House or resolved  informally.  (p. 251)

And while Canadian journalists and political watchers were so enthralled by PMQs, that item of business remains a source of great frustration and embarrassment for Bercow:

“I cannot think of any business that would put its worst product in the shop window and in some respects it’s our worst product. I think the level of heckling, the extent of catcalling, the sheer decibel level, are not conducive to reasoned debate.”

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Who’s Who in Parliament: the Sergeant-at-Arms

The Sergeant-at-Arms (or Serjeant-at-Arms) performs a dual role in the House of Commons, ceremonial and administrative.

An article in “The Table”, the journal of Society of Clerks-at-the-Table in Commonwealth Parliaments, notes that in England people who were permanently retained by the Sovereign to perform certain services became known as Sergeants. It suggests that Sergeants-at-Arms were originally the King’s bodyguard.

The Sergeant-at-Arms was a personal attendant upon the King, especially charged with arresting those suspected of treason. Richard I had 24 with him on the Crusades. They were formed into a 20-strong Corps of Sergeants-at-Arms by King Edward I in 1278, as a mounted close escort. In 1399 King Richard II limited the corps to 30 Sergeants, and King Charles II had 16. The number was reduced to 8 in 1685 and gradually declined thereafter.

Around 1415, the British House of Commons received its first Sergeant-at-Arms. From that time onwards the sergeant has been a royal appointment, the sergeant being one of the Sovereign’s Sergeants-at-Arms.

There are several theories to account for the introduction of the Sergeant-at-Arms into Parliament, and later, the House of Commons. Some are presented below.

One theory holds that the assignment of a Sergeant-at-Arms to attend upon the Commons Speaker was a scheme by the King in 1415 to extend his power over Parliament. However, it is debatable if this was the true reason. In the early 15th century, the House of Commons was still quite subservient and certainly did not command enough power to warrant such a move by the King. More likely, the introduction of a Serjeant-at-Arms came at the request of the House of Commons itself in order to enforce parliamentary privilege. By virtue of the King’s insignia on his mace, the Serjeant-at-Arms was empowered to exercise royal authority over ordinary citizens through the instructions of the Speaker. When Parliament was not sitting, he returned to duty in the Royal Household.

The article in The Table proposes that since Parliament met where the King lived (the Palace at Westminster), it was only natural that he should have seconded two Sergeants-at-Arms to attend upon the Houses. A pamphlet written about 1322 suggests that the function of the first parliamentary Sergeant-at-Arms was that of a door-keeper.

Another theory, one advanced by I.T.P. Hughes, a former British Sergeant-at-Arms, proposes the Sergeant-at-Arms was appointed to protect the Speaker. The demands placed on the Speaker by his master, the Commons, often conflicted with the demands placed on the Speaker by the King, who had appointed him. Violent disagreement was often the result. Richard II, therefore, appointed a Sergeant-at-Arms to attend upon the Speaker about 1391.

The position of Sergeant-at-Arms was obviously introduced during a critical stage in the evolution of Parliament. The House of Lords and the House of Commons were both trying to consolidate their powers at a time of great confusion over roles, authority and privilege, which explains why there is disagreement surrounding the Sergeant-at-Arms’ precise date and purpose of introduction.

Original Role of the Sergeant-at-Arms in Parliament

As mentioned above, the Sergeant-at-Arms was essentially a door-keeper, meaning that he was the Commons’ Usher, Keeper of the Doors, and Housekeeper. As the public became more aware of the activities of Parliament and began to attend sittings, someone was needed to maintain order.

The maintenance of law and order, and the execution of warrants were among the earliest functions of the Sergeant-at-Arms. In the 16th century, however, saw a shift in the authority of the position. Until then, it had come from the Sovereign, through the Speaker. Henry VIII now delegated the wielding of the Sergeant’s authority to the House of Commons.

Because he attended the Speaker, he was involved in all ceremonial functions connected with that office.

By the 17th century, the Sergeant’s department was fairly well established and consisted of the Vote Office (which was primarily concerned with the distribution of the journals of the day to Members), the Deputy Housekeeper, two door-keepers, four messengers and various watchmen and firelighters.

Role of the Sergeant-at-Arms today

The office of Sergeant-at-Arms continues to serve legislatures across the Commonwealth that adhere to British tradition. A sense of the position’s medieval origins persists, particularly in its ceremonial role in parliamentary proceedings. Over time and in many jurisdictions, maintaining order in the Chamber and housekeeping duties have evolved into responsibility for security beyond the walls of the Chamber and property management functions.

The Sergeant-at-Arms’ ceremonial duties involves carrying the House of Commons mace during the Speaker’s procession. This is when the Speaker and his staff walk to the House of Commons chamber before each sitting. The Sergeant-at-Arms occupies a desk at the Bar of the House when the House is sitting. In accordance with the Standing Orders, the Sergeant-at-Arms preserves order in the galleries, lobbies, and corridors and is responsible for taking into custody strangers who misbehave in the galleries. Under the direction of the Speaker, the Sergeant-at-Arms is also the Chief Security Officer responsible for the overall security within the Parliamentary precinct.

(Sources: House of Commons Procedure and Practice, 2nd Edition, The Table, Office of the Speaker, Legislative Assembly of Saskatchewan website, Legislative Assembly of Ontario website, Wikipedia, Parliament of Australia House of Representatives website, UK Parliament website)

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