The Speaker of the House Must Be Neutral

The May 9, 2017 provincial election has resulted in seat numbers of 43 for the BC Liberals, 41 for the NDP and 3 for the Green Party. With Andrew Weaver’s Green Party agreeing to support John Horgan and the NDP, their alliance has a single seat advantage in the legislature over Christy Clark and the BC Liberals. Unless a BC Liberal MLA is successfully wooed to be an independent speaker, the NDP must appoint one of their own MLAs as the Speaker, resulting in a 43-43 tie in the Legislature.

It appears that the NDP/Green alliance is confident they can woo a BC Liberal MLA or that the Speaker can vote with the government every time on legislation. The second assumption, if true, would be mistaken.

For the House to function properly members must have confidence in the Speaker’s impartiality, so it is important that he or she not take sides in partisan debate. When there is an evenly split vote, and the Speaker casts the deciding vote, this could involve the presiding officer in taking a partisan stance. Thus the casting vote creates the danger of making the Speaker appear partisan. Certain conventions have developed to shield the Speaker from the appearance of partisanship (even though in theory the Speaker has the same freedom as other members to vote according to conscience).

“The role of the Speaker is to preside over and act as a ‘referee’ during debates and make sure the House follows established rules of behaviour and procedure. The Speaker is responsible for making sure that all MLAs are treated fairly and impartially, no matter which party they belong to. The Speaker does not take part in debates, remaining neutral, and votes only to break a tie. The Speaker is support by the Clerk of the House who is the senior permanent officer of the Legislative Assembly in BC. The Clerk of the House provides advice on parliamentary procedure to the Speaker and remains non-partisan at all times.” – Democracy & Parliament, by the Legislative Assembly of British Columbia (leg.bc.ca)

“The duties of the Speaker of the House of Commons require the balancing of the rights and interests of the majority and minority in the House to ensure that public business is transacted efficiently and that the interests of all parts of the House are advocated and protected against the use of arbitrary authority. It is in this spirit that the Speaker, as the chief servant of the House, applies the rules. The Speaker is the servant, neither of any part of the House nor of any majority in the House, but of the entire institution and serves the best interests of the House as distilled over many generations in its practices… The duty of the Speaker is to ensure that the right of Members to free speech is protected and exercised to the fullest possible extent; this is accomplished in part by ensuring that the rules and practices of the House are applied and that order and decorum are maintained.

When in the Chair, the Speaker embodies the power and authority of the office, strengthened by rule and precedent. He or she must at all times show, and be seen to show, the impartiality required to sustain the trust and goodwill of the House… Reflections on the character or actions of the Speaker – an allegation of bias, for example – could be taken by the House as breaches of privilege and punished accordingly.” – House of Commons Procedure and Practice, Second Edition, 2009

Further in the House of Commons Procedure and Practice, Section Edition, 2009:

On two occasions, newspaper editorials were found to contain libelous reflections on the Speaker and were declared by the House, in one instance, to be a contempt of its privileges ^[83] and, in the other, a gross breach of its privileges.^[84]

In 1981, a Minister complained that remarks directed to Speaker Sauvé by the Leader of the Opposition constituted an attack on the former’s authority and impartiality. The following day, the Minister tabled a motion in the House calling for the matter to be referred to the Standing Committee on Privileges and Elections. However, the Leader of the Opposition withdrew his remarks and the matter was taken no further.^[85]

In another incident occurring in 1993, a question of privilege was raised concerning disparaging remarks made by a Member about the impartiality of the Assistant Deputy Chairman of Committees of the Whole. When the Member refused to withdraw the comments, the Speaker declared that they “affect[ed] the dignity of [the] House” and were “an attack against the integrity” of an officer of the House. He ruled that prima faciethere was a case of privilege and the matter was referred forthwith to a committee. Two days later, the Member rose in the House and withdrew the remarks.^[86]

In 1996, a private Member’s motion on the Order Paper alleged that another Member and his party were guilty of a contempt of the House for attempting to rally public opinion with a view to influencing an upcoming decision of the Speaker. The motion was selected for debate in the House but was later withdrawn without having been considered.^[87]

In 1998, a Member raised a question of privilege, alleging that statements attributed to other Members in a newspaper article (concerning an upcoming ruling of the Chair) constituted an attempt to intimidate the Speaker and the House itself. The Speaker found a prima facie case and the matter was referred to a committee, which investigated and concluded that the statements attributed to the Members “were not intended to be contemptuous of the House of Commons or the Speaker” and that “they did not bring into question the integrity of the House of Commons and its servant, the Speaker”.^[88]

In order to protect the impartiality of the office, the Speaker abstains from all partisan political activity (for example, by not attending caucus meetings), does not participate in debate ^[89] and votes only in the event of an equality of voices, normally referred to as the “casting vote” of the Chair.^[90] Since 1979, the Speaker, unlike all other Members, has not been assigned a desk in the Chamber; this is a further indication that it has become an established practice that the Speaker has no role whatsoever in debate, whether in the House or in a Committee of the Whole.^[91]

“First, the constitutional convention of bureaucratic neutrality operates to ensure that public servants owe a primary obligation to the Crown (and, by extension, to the people of Canada) and not to the party which happens to control the government of the day; and second, the rule of law ensures that decision-making is animated only by proper purposes, good faith and relevant criteria set out by law. Together… these principles represent a constitutional norm of bureaucratic independence. This norm suggests a requisite spectrum of separation between bureaucratic and political decision-making. In some areas, this separation will be near absolute, as in the case of criminal justice decision-making involving courts or prosecutors. In other cases, such as policy-making spheres, where political direction may be decisive, the separation may be subtle.

…

Kenneth Kernaghan has outlined the content of the Convention in an oft-cited list of six key principles:

Politics and policy are separated from administration; thus, politicians make policy decisions and public servants execute these decisions;
Public servants are appointed and promoted on the basis of merit rather than of party affiliation or contributions;
Public servants do not engage in partisan political activities;
Public servants do not express publicly their personal views on government policies or administration;
Public servants provide forthright and objective advice to their political masters in private and in confidence; in return, political executives protect the anonymity of public servants by publicly accepting responsibility for departmental decisions; and
Public servants execute policy decisions loyally, irrespective of the philosophy and programs of the party in power and regardless of their personal opinions; as a result, public servants enjoy security of tenure during good behaviour and satisfactory performance.

…

The constitutional convention of a politically neutral public service is part of what is sometimes referred to in the public administration literature as the ‘iron triangle’ of conventions consisting of political neutrality, ministerial responsibility and public service anonymity. The fact that these duties are not part of the written Constitution does not detract from their centrality to Canada’s constitutional system. Put differently, a non-partisan public service is as important as ministerial responsibility to Canada’s constitutional order.” – (Defining Boundaries: The Constitutional Argument for Bureaucratic Independence and its Implication for the Accountability of the Public Service, by Lorne Sossin, CISPAA, Vol 2, p. 29-32)[1]

“In OPSEU v Ontario (A.G.), the Supreme Court appeared to recognize the aspirational quality of political neutrality as a convention rather than its empirical foundation in political practices of the time. The Court cited with approval the following passage by MacKinnon ACJO, writing for the Ontario Court of Appeal:

Clearly there was a convention of political neutrality of Crown servants at the time of Confederation and the reasoning in support of such convention has been consistent throughout the subsequent years. Whether it was honoured fully at that time in practice is irrelevant. The consideration is, as stated earlier, not as to the social desirability of the legislation but rather the fact that historically there was such a convention existing in 1867. It is difficult to take exception to Mr. Justice Labrosse’s conclusion that: “Public confidence in the civil service requires its political neutrality and impartial service to whichever political party is in power” (p.173 OR, p. 328 DLR). The impugned provisions seem to do no more than reflect the existing convention.”[2] – (Defining Boundaries: The Constitutional Argument for Bureaucratic Independence and its Implication for the Accountability of the Public Service, by Lorne Sossin, CISPAA, Vol 2, p. 34)

A detailed discussion of the effect of the convention of neutrality is found in the Supreme Court’s judgment in Fraser v Public Service Staff Relations Board, [1985] 2 SCR 455. Fraser worked at Revenue Canada but publicly criticized the government’s policies. He was sanctioned for his conduct and challenged the sanction noting that public should be free to criticize the government if they disagree with their policies or practices. The Supreme Court held that “[A] public servant is required to exercise a degree of restraint in his or her actions relating to criticism of government policy, in order to ensure that the public service is perceived as impartial and effective in fulfilling its duties.” The Judge stated that the public service is characterized and built around values such as “knowledge… fairness.. and integrity” and emphasized that is duty of loyalty was to the Government of Canada, not to any political party that might enjoy power at the time. The Judge also stated that the “tradition” in the Canadian public service “emphasizes the characteristics of impartiality, neutrality, fairness and integrity.” Sossin writes in CISPAA Vol 2, p. 36 that “The Court in Fraser affirmed that a public servant’s duty of loyalty to the Crown, and through the Crown to the public interest, must in some circumstances be a higher obligation than the duty of loyalty owed to the government of the day.”

“Departmental objectives are policies flowing from government commitments, objectives that require a non-partisan, or neutral, public service for their implementation. Non-partisan in this sense means that the public service cannot frustrate the objectives of an elected Government by taking sides against it. This means nothing more than the fact that the public service cannot have an ideological agenda of its own, an agenda that might be at odds with that of the governing party. While the Supreme Court took the opportunity to address other aspects of the idea of public service in Fraser v. Canada (Public Service Staff Relations Board), this concept of neutrality was at the heart of the case… Public servants are non-partisan… because they are required to be loyal to the institutions of Government rather than to the party in power. This… neutrality is partially captured by the phrase ‘speaking truth to power,’ but it would find fuller expression in the idea of reminding those in power of the existence of the law” (Ministerial Responsibility and the Financial Administration Act: The Constitutional Obligation to Account for Government Spending, by Stan Corbett, CISPAA, Vol 3, p. 266 – 267)[3].

In Canada (Parliamentary Budget Officer) v Canada (Leader of the Opposition), 2013 FC 402, [2014] 4 FCR 297, the Court dismissed an application regarding a reference by the applicant to the Federal Court under subjection 18.3(1) of the Federal Courts Act pertaining to certain questions involving the mandate and jurisdiction of the Parliamentary Budget Officer. The applicant wanted the Court to determine whether he had jurisdiction to perform the analyses requested of him, and he therefore referred the questions of law and jurisdiction to the Court. One respondent submitted that the Court had no jurisdiction to answer the questions because Parliament has reserved the answer to itself by way of parliamentary privilege or in virtue of the language of the Parliament of Canada Act. It was also argued that the questions should not be answered since there was no justiciable dispute. The participants asserted privilege.

At para. 17:

The Speakers, who took the lead in the aspect of the case, assert privilege on a number of grounds. They say:

… they, as neutral parties, do not take any position on the merits of Mr. Page’s questions, i.e. the scope of the mandate of the Parliamentary Budget Officer.

The Court found that neither on the basis of parliamentary privilege nor on the principles of statutory interpretation has Parliament reserved for itself the right to answer the applicant’s questions. That task fell upon the Court.

In Gauthier v Canada (Speaker of the House of Commons), 2006 FC 570, [2006] FCJ No. 731 at para. 13

“Section 17 of the Constitution Act, 1867 provides for one Parliament of Canada consisting of the Queen, the Senate and the House of Commons. As noted in Canada (House of Commons) v Vaid, [2005] 1 SCR 667, there must be an equilibrium amongst the Legislature, the Executive and the Courts with each vouchsafed appropriate autonomy from the others.”

The Canadian Parliamentary Review, Vol 26, No. 4, 2003 states:

The legal basis of the casting vote is found in section 49 of the Constitution Act (BNA Act), 1867. It states: “Questions arising in the House of Commons shall be decided by a Majority of Voices other than that of the Speaker, and when the Voices are equal, but not otherwise, the Speaker shall have a Vote.” The words “but not otherwise” mean that in no other circumstance is the Speaker permitted to vote.

Standing Order 9 of the House of Commons provides that “The Speaker shall not take part in any debate before the House. In case of an equality of voices, the Speaker gives a casting vote, and any reasons stated are entered in the Journals.”

[1] https://www.cbc.ca/news2/background/groupaction/v2fullreport/CISPAA_Vol2_2.pdf

[2] https://www.cbc.ca/news2/background/groupaction/v2fullreport/CISPAA_Vol2_2.pdf

[3] https://www.cbc.ca/news2/background/groupaction/v2fullreport/CISPAA_Vol3_5.pdf