Order Paper and Notice Paper

The Order Paper and Notice Paper is the most important published document from a legislative standpoint (see the first image). Both the Senate and the House of Commons produce the Order Paper and Notice Paper daily (we are just going to focus on the House of Commons right now). You can find the Order Paper and Notice Paper for the House of Commons here. This document contains two sections; the Order Paper and the Notice Paper. The Order Paper concerns the order in which the House will hear business (all per the Standing Orders, unless otherwise ordered) and presents an outline for business which the government intends to introduce (under the headings Business of Supply, Ways and Means, Government Bills (House and Senate) and Government Business (the specific of these headings are not important yet, we will deal with that in a later post). The Notice Paper is the bulk of the document as it contains the order in which Private Members’ Business, motions, written questions and government bills are presented (basically how the House decides what is going to be debated).

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Let’s take a look at Order Paper and Notice Paper No. 3 for the 1st Session of the 42nd Parliament of Canada. From this document we see that the House of Commons will be sitting a normal Monday routine. Further on in the document under Order of the Day we see that the government intends to debate the Reply In Address to the Speech from the Throne. We also get a little piece of information in that the Standing Orders grant six days of debate on this particular piece of business. You can also see a projection for the remainder of the week regarding the debate on this business. Government Orders has an interesting notice for the opposition concerning a Supply Day (otherwise known as an Opposition Day). The Standing Orders allocate a certain number of days broken down into three periods of the year for the opposition to present motions and control the flow of business in the House of Commons (see Standing Order 81). Because parliament has not been sitting for the full period ending 10 Dec 15, the President of the Treasury Board is indicating that the opposition will have one day this period (as per the Standing Orders) and it will be on 10 Dec 15, meaning we can expect an opposition motion of some sort on that day (or whatever else the opposition would like to focus the attention of the House on for that short period of time).

Cross-posted from Consumervoter.ca.

The Problem with Trump-like Campaigns

I am loath to contribute to the pile-on commentary on the subject of Donald Trump, the US presidential campaign and the state of American politics. I am almost certain that most of you will inevitably read the title, file in under the trove of other similar headlines you have read already today on the same subject, and move on, but I also might have something here worth reading. The focus of this piece will not be Donald Trump himself— I think that the jury is out among most progressive peoples concerning the utterly regressive nature of the politics of Mr. Trump— rather I would like to focus on the nature of regressive campaigns, especially seemingly successful ones as we are currently seeing in the United States. Specifically, I want to talk about why regressive campaigns are a threat to the democratic process.

Donald Trump has put forward many classically regressive policies on his road to the US presidency. He has proposed closing the US border entirely to Muslims around the world. He has advocated the building of a wall to prevent the illegal immigration of Mexican and Latin American people into the US. He has called woman terrible names; projecting the stereotypical image of a man who simply hates women. The problem with what he says however, from the standpoint of democracy, is not the outcomes of what he is proposing, but rather the fact he is able to propose them at all. The problem with what he says is that his inherently regressive policies are nothing new to Western society. Every-single one of them has been dealt with adequately in history and has been disposed of as unsuccessful and regressive. The problem with a campaign the likes of Donald Trump is that it forces the entire electoral machine to react and address issues which have already been put to rest.

Liken the US presidential race to a meeting of a generic club or organization. A major decision is on the table, say the election of candidates to run for the head of said club or organization. A debate is happening over who would best fill the roles. Among the group there is a very loud and very annoying member. This member insists on bringing up decisions of the club which have already been made. We have all been in this sort of situation personally no doubt. The coworker who insists the agenda must move their way. An insistence that they are entitled to be heard and forceful intercessions on how things ought to be done. Eventually the meeting concludes and although decisions have been made, there is no fidelity toward an overall plan. This loud member insisting on rehashing old business has impacted the efficiency of the organization. Meet Donald Trump.

When the organization, or in this case, the entire electorate, are forced to revisit old debates that were settled decades ago, they are forced to devote time and political energy that could otherwise be spent on better things. We can take a case example from the debate on US immigration. There is most certainly a problem with illegal immigration in the US, and the support that Trump gets from Americans who are legitimately worried about illegal immigration should not be completely written off. However, that the country should ban an entire group of people or build a wall is a solution that is not even worth debating. And yet here we are. Rather than have an actual debate on the merits of real solutions (albeit not sexy soundbite-ish ones), the entire electorate is forced to listen, react and eventually suppress regressive, go-nowhere solutions. That is a problem.

The American people deserve the highest fidelity in all debates concerning issues which are impacting the most important country in the world. Given the power and influence of the US, we could say that the entire world deserves candidates in a US election that can present real solutions to these problems. The problem with regressive campaigns in the democratic process is that they force us to have to (re)debate half-baked, already-proven-broken and dangerous solutions when we ought to be debating better solutions.

Author’s Note: This editorial is the first of a new series on this blog. Opinion pieces will be posted periodically on broad political topics that impact Canada (not nessarily always Canadian, as this piece is proof). They will be relevant to current events and my hope is to fill the gaps between my regular parliamentary procedure and law longreads.

The House of Commons Calendar

On Monday, January 25th, 2016, the House of Commons will resume sitting in accordance with Standing Order 28.2(a) which provides that the House shall resume sitting following a holiday recess on the last Monday in January. The House of Commons has a unique parliamentary calendar that is driven by the Standing Orders of the House of Commons. Historically, the calendar has changed significantly since Confederation for many reasons. In the modern Canadian parliament, the parliamentary calendar is fixed and provides for periods of recess over holidays, long weekends when required and, mechanisms to increase sittings for emergency debates. The modern parliamentary calendar also compliments requirements in other Standing Orders that demand time allocation for opposition business of supply and private members’ business, perhaps most importantly, the calendar also permits the closure and re-opening of parliament at any point when required (for elections, prorogations, etc). In this post we will examine the modern parliamentary calendar for the House of Commons (author’s note: all times are in EST).

The General Parliamentary Calendar

The Calendar Stand on the Table in the House of Commons displays the sitting day of the House.
The Calendar Stand on the Table in the House of Commons displays the sitting day of the House.

Chapter 3 of the Standing Orders provides provisions for the formation of the House of Commons calendar. The current calendar provides for a House of Commons that meets “…on Mondays at 11:00 a.m., on Tuesdays, Thursdays and Fridays at 10:00 a.m. and on Wednesdays at 2:00 p.m…” (24.1). The Speaker shall also adjourn the House of Commons at 6:30 p.m. everyday except Friday, when the House shall adjourn at 2:30 p.m. (24.2).

The Standing Orders also provide for “statutory” holidays for members. Namely, “New Year’s Day, Good Friday, the day fixed for the celebration of the birthday of the Sovereign, St. John the Baptist Day, Dominion Day, Labour Day, Thanksgiving Day, Remembrance Day and Christmas Day” (28.1). The House of Commons also extends long weekends on to certain holidays, “[w]hen St. John the Baptist Day and Dominion Day fall on a Tuesday, the House shall not meet the preceding day [Monday]; when those days fall on a Thursday, the House shall not meet the following day [Friday]” (28.1).

Between holiday periods there are extended recesses placed upon the House through the Standing Orders. For this reason, the House of Commons has been in recess since December 2015 until Monday. Standing Order 28.2(a,b) detail this provision through a chart as follows:

A: B:
The Friday preceding Thanksgiving Day. The second Monday following that Friday.
The Friday preceding Remembrance Day. The second Monday following that Friday.
The second Friday preceding Christmas Day. The last Monday in January.
The Friday preceding the week marking the mid-way point between the Monday following Easter Monday and June 23. The second Monday following that Friday or, if that Monday is the day fixed for the celebration of the birthday of the Sovereign, on the Tuesday following that Monday.
June 23 or the Friday preceding if June 23 falls on a Saturday, a Sunday or a Monday. The second Monday following Labour Day.

The House of Commons has an extended recess for two weeks following Thanksgiving, two weeks following Remembrance Day, two weeks (or a little more) following Easter and nearly two and a half months from the end of June (summer recess). These recesses are important for several reasons beyond simply time away from the Chamber for members. Indeed, these are merely the days in which the House of Commons as whole is not sitting, it does not provide that committees not longer meet or function during these periods, or that MPs are not busy within their own offices (particularly back in their home ridings). It is also important to note here, that although the Senate does sit along a similar timeline, it is free to meet on its own accord (within the confines of the parliament as a whole, of course). The Senate often does conduct business outside of the typical cycle of the House of Commons for many reasons.

Provisions for Certain Business

There are a host of Standing Orders that provide for moments where the attention of the House must be drawn to business selected by the opposition and private members. There arises a need for the parliamentary calendar to balance the requirements of these provisions against the cycle of the calendar (allowing for extended periods of recess, or a break in parliament). Specifically for business of supply (otherwise known as opposition days), the Standing Orders break the calendar in the three parts: “[i]n any calendar year, seven sitting days shall be allotted to the Business of Supply for the period ending not later than December 10 [period 1]; seven additional days shall be allotted to the Business of Supply in the period ending not later than March 26 [period 2]; and eight additional days shall be allotted to the Business of Supply in the period ending not later than June 23 [period 3]” (81.10(a)).

The Calendar still reads Wed Jun 13 when it was Thurs Jun 14, the House sat over midnight, but the sitting day remain the same.
The Calendar still reads Wed Jun 13 when it was Thurs Jun 14, the House sat over midnight, but the sitting day remain the same.

From these periods, the parliamentary calendar can be further broken into a ratio allotment of days. For example, when parliament resumed in early December, a single supply day was given to the opposition prior to the House rising for the holidays because the ratio of time from the resumption of parliament to the Dec 10 end of the allotment period would translate into a singe day. Had parliament been resumed earlier, suppose start of November, the opposition would have been given another “opposition day.” The Standing Orders provide that these days are allotted by the Government House Leader who, in turn, works with the Speaker and other House Leaders to draft the legislative calendar for the House of Commons (more on that in another post).

Impact on Business

When the House of Commons rises each day into the evening or at the start of an extended recession period, there is no impact on business within the House of Commons. Bills remains at the their various stages and motions do not change in the order from when the House of Commons last sat. However, committees may still meet outside of the sitting days of the actual House of Commons chamber to debate legislation, so there is some movement within the legislative cycle. This is in contrast to when parliament is prorogued or when parliament comes to an end (for an election, for example). In those instances business does change, and in the most extreme, ceases to exist entirely without Royal Assent. The impact on the House rising for an extend period of time is akin to a person leaving their office for a long holiday. Work cannot be officially processed, but you might think about a project while in vacation or answer emails related to minor work items. Parliament, as a whole, would operate in the same fashion during these extended periods of recess for the House of Commons. It is ironic that the importance of the House of Commons as the central democratic institution within parliament, becomes clear when it is in recess.

The individual calendar of the MP however is quite different. Periods when parliament are in session are busy times for everyone involved in the parliamentary process, but periods where the House of Commons itself stands in a recess, are often the most challenging times for MPs. These are periods where an MP may find time to rest, but more often than not are pulled toward riding issues that require their attention (what isn’t being currently used up by parliament). The summer recess for example is known as the “BBQ circuit” among the Canadian Press Corp because of how active politicians become across the country developing their message and meeting directly with Canadians.

Photo credit: Parliamentary pages prepare the House of Commons, Thursday, October 10, 2013 in Ottawa. Ottawa Citizen.

http://i.cbc.ca/1.2680839.1403188673!/cpImage/httpImage/image.jpg_gen/derivatives/16x9_620/commons-20140603.jpg

The Speaker of the House of Commons

The historical origins of the office of the Speaker of the House of Commons go back almost 600 years. The importance of the office is highlighted in the opening of the relevant chapter in the House of Common Procedure and Practice 2nd Ed, “no other office or position is more closely linked to the history of the House of Commons than that of the Speaker.” The Speaker in Canada exists as a result of its development within the United Kingdom, however the roles and functions of the Speaker today in Canada are markedly different than the United Kingdom. As well, as the result of reforms in the 1960s, the office of the Speaker has taken on more authority within the House of Commons and its proceedings. In this post, we will explore the powers of the Speaker of the House of Commons and briefly highlight how they have developed over time since 1867.

When the Dominion of Canada was created in 1867 the British North America Act clearly defined the existence, election and function of the Speaker of the House of Commons. By 1867, most constitutional issues related to the office had been resolved in the UK, and thus the Canadian Speaker has never been subjected to the same degree of constitutional development as their UK counterpart (House of Commons Procedure and Practice 2nd Ed). However, that does not mean that the interpretation of the function of the office as defined in the constitution and the practice of enforcement of these functions has not changed over time, specifically through changes within the Standing Orders of the House of Commons.

Regarding the election and partisanship of the Speaker, the House of Commons Procedure and Practice 2nd Ed states:

The Speaker has almost always been elected from among the Members of the governing party, and although the Speaker eschews partisan political activity, he or she does not make a complete break. When running for re-election, incumbent Speakers are usually careful to avoid partisan statements that might prejudice their perceived impartiality in the future. Only one Speaker has chosen to sever himself from all party affiliations and to present himself as an independent candidate in general elections. Speaker Lamoureux (1966‑74) resigned from the Liberal Party and, as an independent candidate, ran and won in the general elections of 1968 and 1972. In 1968, the Liberal Party and the Progressive Conservative Party refrained from nominating candidates to oppose him; the New Democratic Party had already nominated a candidate prior to his decision to run as an independent.

The roles and functions of the Speaker of the House of Commons can be broadly broken into two categories; ceremonial and administration. In their ceremonial role, the Speaker is the representative of all of the House of Commons and is their official spokesperson. This role is evident during the opening of parliament when the Speaker speaks in the Senate of Canada to the Governor-General on behalf of the entire elected assembly. In their administrative roles, the Speaker is the chair of the House committee that oversees the spending and function of parliament, its employees and services. The Speaker also chairs all sessions of parliament sometimes with the exception of Committees of the Whole.

One of the most important aspects of the Speakers’ role in the House of Commons is the enforcement of the rules including the Standing Orders. This role has changed over time within the House, with the Speaker having varying degrees of power to punish members who were ruled out of line and the ability to rule on breaches to the rules in the regular conduct of House business. We can explore how both functions have changed over time.

The Speaker of the House of Commons has not always had final say on whether a point of order was ruled out of line. Prior to changes made to the Standing Orders of the House of Commons in 1965, the House of Commons could overrule the ruling of the Speaker. Up until the turn of the 20th century, overruling the Speaker was rarely done by the House of Commons, however with the employment of a more active opposition in the House, it became common practice for members to follow-up a ruling from the Speaker with a motion seeking support/taking issue from the entire House of Commons. The most striking of these occurred during the infamous “pipeline” debate in the spring of 1956. The House of Commons overruled the Speaker on a judgement concerning the nature of debate on a pipeline project which lead to widespread dissension among Members of Parliament. In 1965 changes were made the Standing Orders and a “no-appeal” clause was entered into the section dealing with the powers of the Speaker regarding rulings in the House of Commons. MPs now have no other recourse in parliament but the Chair of the Speaker and the Speakers’ ruling remains final.

The Speaker has a range of powers at their disposal to deal with unruly Members in the House of Commons. The first of these powers remain in the fact that the Speaker chairs each sitting of the House. This means that at any time the Speaker can rise in their chair and end debate. Now, there are specific reasons for why the Chair would rise (it would not be in line with their duty to progress debate for the Speaker to hinder debate by needlessly rising in their chair). You see this happen often during the most watched portion of proceedings in the House of Commons, Oral Questions. The Speaker often cuts cheering/heckling short by rising in their chair and calling “Order, order” to get members to be silent and carry on with Oral Questions. This intervention is a common occurrence through-out each proceeding of the House. It is also used to move the House from one proceeding to another in Routine Business. For example, the House has a specific time for shifting from debate to Members’ Statements and then into Oral Question. During most days, Members’ Statements starts at 2 pm and lasts for 15 minutes. Regardless of where debate is at 2 pm, the Speaker rises in their chair and shifts the attention of the House to Members’ Statements. As each statement is read until 2:15 pm, the Chair will keep the focus of the House on the statements being read and then will rise in their chair and shift the attention of the House to Question Period. If you have ever watched a clip of Oral Questions from the start, you might have seen this portion when the Speaker rises and states, “Oral Questions, the Honourable Leader of the Opposition…” (for example).

The Speaker also has a very specific power in naming a Member of Parliament. Naming is an old mechanism dating back to the early days of the UK parliament, when the Chair would call by name a person in the assembly who was acting out of line. The act of naming is in stark contrast to parliamentary decorum which dictates that a member is referred to in the House by their riding or position. Naming a member is a lot like a parent using a child’s full name when they are in trouble. The Speaker gets the attention of the Member and of the entire House by calling the member’s name and specifically stating that they have been named. The Speaker may provide a reason, or may not, and the member must leave the chamber of the remainder of the sitting. Because the House of Commons is broken along partisan lines, it is not uncommon for the House Leader of the party for the respective member to rise on a point of order at an appropriate time following the naming incident to put forward a plan to deal with the member in question. This could be the tabling of a written apology or the proposal for a set number of days for suspension. It might also be a request for the Speaker to rule on the matter which may have disagreement among other Members on how to move forward. For most points of order, members of the House from all sides have a say to influence the judgement of the Speaker. At the end of the day, it is a very adult way of punishing and dealing with one another.

In their ceremonial role, the Speaker represents the House of Commons as a whole in an unpartisan fashion. For this reason, it is the Speaker who official receives guests of parliament such as foreign heads of state/government, president and secretaries of important international bodies (such as the UN and NATO), official parliamentary delegations from other nations and distinguished Canadians. This is also why it is the Speaker who introduces any dignitaries who are present in the House of Commons (typically just before Oral Questions begins because this is when most people are watching the House of Commons).

In addition to the broad duties outlined in this post, House of Commons Procedure and Practice 2nd Ed establishes the following specific duties of the Speaker:

Opening the sitting: It is the Speaker’s responsibility to open the sittings of the House once it has been determined that a quorum is present. When opening a sitting, the Speaker takes the Chair, calls the House to order, reads prayers, directs that the doors to the public galleries be opened, and then calls the first item of business. If, as sometimes happens, the Speaker is absent at the opening of a sitting, the House is so informed by the Clerk and the Deputy Speaker (or one of the other Chair Occupants) takes the Chair.

Reading motions, putting questions, announcing results of votes: Before debate begins on a matter, the Speaker proposes the question by reading the motion on which the House is to decide. When no Member rises to be recognized in debate, the Speaker asks if the House is “ready for the question”, thus ascertaining whether or not the debate has concluded. When debate on a question is closed, it is the Speaker’s responsibility to put the question, that is, to put the matter to the House for a decision, and afterwards to announce the result to the House.

Recognizing Members to speak in the House: No Member may speak in the House until called upon or recognized by the Speaker; any Member so recognized may speak during debate, questions and comments periods, Question Period, and other proceedings of the House. Various conventions and informal arrangements exist to encourage the participation of all parties in debate; nevertheless, the decision as to who may speak is ultimately the Speaker’s.

Deciding questions of order and questions of privilege: In presiding over the deliberations of the House, the Speaker is responsible for deciding questions of order and questions of privilege, and for ensuring that the rules and practices of the House are respected. The Speaker rules on questions of order and questions of privilege as they occur and not in anticipation. A question of order may be brought to the Speaker’s attention by a Member, or the Speaker may intervene when he or she observes an irregularity. In ruling on questions of order and questions of privilege, the Speaker cites the Standing Order or other applicable authority. At times, the Speaker may be called upon to deal with situations not provided for in the Standing Orders of the House; in such cases, the rules give authority to the Speaker to consider parliamentary tradition in jurisdictions outside the House of Commons of Canada “so far as they may be applicable”.

Decisions on motions: The Standing Orders confer on the Speaker certain responsibilities in connection with motions coming before the House for consideration. The Speaker has the responsibility to act, in the event that he or she judges a motion to be “contrary to the rules and privileges of Parliament”. In such a case, it is the Speaker’s responsibility to inform the House at the earliest opportunity, before the question is put, and to refer to the applicable rule or authority. This is to be distinguished from the Speaker’s general power to rule authoritatively on matters of procedure. While the Speaker is guardian of the rules and privileges of the House, he or she is its servant as well; the Members of the House retain collective control of their actions. Thus, if the Speaker were to inform the House that a proposed motion, though correct as to its form, runs counter to established parliamentary principles, customs or privileges, the House would then be in a position to take a decision on the matter, with the benefit of the information provided and the authorities cited by the Speaker. This rule was first adopted after Confederation and has never been invoked by the Speaker, although there have been attempts to persuade the Chair to invoke it.

Other rules of the House give the Speaker the power to select which report stage amendments will be considered by the House, and to group these for purposes of debate and division. In addition, in the event that notice of more than one opposition motion is given when a Supply day has been designated, the Speaker is responsible for selecting the one which will have precedence for consideration by the House.

Conduct of Private Members’ Business: It is the overall responsibility of the Speaker to make all the necessary arrangements to ensure the orderly conduct of the hour of each sitting day devoted to Private Members’ Business. This includes ensuring that the House has 24 hours’ notice of the item to be considered in each sitting, seeing to the arrangement of exchanges when a sponsoring Member is unable to be present when his or her item is scheduled for consideration, and refusing a notice of an item of Private Members’ Business which is deemed to be substantially the same as another.

Private bills: When private bills are to be brought before Parliament, persons wishing to act as parliamentary agents (i.e., employed in promoting or opposing a private bill) must be granted authority to do so by the Speaker. The Speaker also has the power to issue a temporary or absolute prohibition on an individual acting as a parliamentary agent, in cases where he or she has failed to act in accordance with parliamentary rules and practice.

Tabling of documents: Statutory provisions, as well as rules of the House, require the Speaker to receive and table certain reports and documents in the House. When the Speaker tables a document, he or she may do so during the sitting; alternatively, the document may be deposited with the Clerk of the House. In either case, the tabling is noted in the Journals and the item tabled is deemed permanently referred to the appropriate standing committee. The specific documents tabled by the Speaker are as follows:

  • As Chair of the Board of Internal Economy (the body responsible for all financial and administrative matters affecting the House of Commons) the Speaker is responsible for tabling reports of the Board’s proceedings. The reports consist of minutes of the Board’s meetings, which are tabled as they are approved by the Board. The Speaker is also responsible for tabling the annual reports of the Board’s decisions respecting the budgets of parliamentary committees. In addition, the Parliament of Canada Act requires the Speaker to table any by‑laws made by the Board within 30 days of their making; typically, these are deposited with the Clerk.
  • The Speaker is required after consultation with the House Leaders to table annually, before September 30, a calendar of sitting and non‑sitting weeks for the following year.
  • Statutory requirements exist whereby designated officers of Parliament and the Canadian Human Rights Commission transmit their annual reports and any special or investigatory reports to the Speaker, who then tables them in the House.
  • In the decennial process to readjust electoral boundaries, reports of the provincial and territorial electoral boundaries commissions are transmitted by the Chief Electoral Officer to the Speaker, who tables them when the House is sitting.
  • When election results are contested or appealed under the Canada Elections Act, reports of court decisions are made to the Speaker, who then informs the House.

Emergency debates: When a Member has made a request to move the adjournment of the House in order to debate a matter requiring urgent consideration (an emergency debate), the Speaker is responsible for deciding whether or not the request will be granted. When the Speaker has granted an application for an emergency debate, the rules provide for it to take place the same day, but the Speaker may also exercise a discretionary power to defer the debate to a specific time on the next sitting day. An emergency debate ends at the times specified in the Standing Orders, but again, the Speaker has discretion to declare the motion carried and to adjourn the House to the next sitting day if, in his or her opinion, debate has concluded before those times. Once it is underway, an emergency debate takes precedence over all other business; in the event of conflict or incompatibility with regard to other rules or other business of the House, the Speaker has complete discretion in reconciling the difficulty.

Recall of the House: When the House stands adjourned during a session, the Speaker has the power to recall the House to meet prior to the date on which it is scheduled to reconvene. The request to recall the House is always initiated by a Minister (usually the Government House Leader), and the Speaker has no authority to consider such a request from any other Member. In these circumstances (or while Parliament stands prorogued, or prior to the first session of a new Parliament), upon receipt of a written request from the government, the Speaker will cause to be published a Special Order Paper which informs the House of any measure the government wishes the House to consider immediately. A notice for recall of the House is not usually withdrawn; but on one occasion, after receiving a request from all the recognized parties in the House, the Speaker issued a formal statement cancelling an earlier notice for recall.

Parliamentary publications: The official publications of the House of Commons are published under the authority of the Speaker. These include, among others, the Journals, the Debates, the Order Paper and Notice Paper, the Standing Orders of the House of Commons, bills and the minutes and reports of House of Commons committees.

Chairs of legislative committees: The Speaker also has responsibilities with regard to Chairs of legislative committees. It is the Speaker’s duty at the start of each session, and thereafter as necessary, to select Members to form a Panel of Chairs. The Speaker exercises a certain amount of discretion in the choice of Members; the rules specify only that a proportionate number of Members be appointed from the government and opposition parties and that the other Presiding Officers of the House be on the Panel ex officio. Whenever the House decides to proceed with the appointment of a legislative committee, it is the Speaker’s responsibility to select from the Panel of Chairs a Member to chair that committee.

Take-note debates: The Speaker may, further to the adoption of a motion proposed by a Minister of the Crown, preside over a take-note debate conducted in a Committee of the Whole.

The function of the Speaker is the most important in the House of Commons and all of parliament. The paramount role of the Speaker in each parliament and each session is captured well in the words spoken by the Speaker to each monarch since the early days of parliament:

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 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.

Photo credit: House of Commons Speaker Andrew Scheer who was speak from 2011 – 2015. Canadian Press via Huffington Post.

Oath of Allegiance: An Historical Perspective

The Oath of Allegiance in Canada has a colourful history. Tracing its origins from the United Kingdom, the young British colonies that would eventually become Canada inherited deep European religious and social tensions that were reflected within the statutory oath of the particular time. In this post we will briefly explore the British roots of the oath of alligiance in Canada and we will trace the historical development of the modern oath.

A Snapshot of the Times: The Victorian Era British Oath

The first British North American colony to gain an elected assembly in what would become Canada was Nova Scotia. This historical body met for the first time in 1758 and, as a result of the fact that a Canadian law had not yet diverged from British statutory and common law, members swore the same oathes of office as MPs of the British parliament in London, England. At that time there were three oaths required of members who had gained elected office; “the oath of allegiance to the King, the oath of supremacy denouncing Catholicism and papal authority, and the oath of abjuration, repudiating all rights of James II and his descendants to the English Throne” (House of Commons Procedure and Practice 2nd Ed, 2009). Naturally, these oaths prevented Catholics and Jews from seeking elected office in the legislative assemblies of the British colonies. The cause of existence of each oath lay in a paranoid monarchy attempting to galvanize the Church of England against Papal authority. To some extent, these fears came with European settlers into the New World (even dipping toward modern times, for example the Kennedy campaign had to address his Catholic faith) but it is safe to conclude that the importance of personal religious faith was low to most British North American settlers. However, the English statutory requirement for the oaths remained and hence their introduction in immature legislative assemblies of British North America.

Prior to the establishment of elected legislative assemblies in North America, London passed the Popish Recusants Act of 1605 which established a new oath of allegiance establishing the spiritual authority of the English Crown. It read:

I, A.B., do truly and sincerely acknowledge, that our sovereign lord, King James, is lawful and rightful King and that the pope neither of himself nor by any authority of Church or See of Rome, or by any other means with any other, has any power to depose the king etc, or to authorize any foreign prince to invade him, or to give licence to any to bear arms, raise tumults, etc. Also I do swear that notwithstanding any sentence of excommunication or deprivation I will bear allegiance and true faith to his Majesty. And I do further swear that I do from my heart abhor, detest, and abjure, as impious and heretical this damnable doctrine and position,–that princes which be excommunicated by the pope may be deposed or murdered by their subjects or by any other whatsoever. And I do believe that the pope has no power to absolve me from this oath. I do swear according to the plain and common sense, and understanding of the same words. (King James VI and I and the Reunion of Christendom, 2000)

In addition to the oath of allegiance, elected members were required to swear the oath of supremacy (preventing Catholics from seeking office):

I, A. B., do utterly testify and declare in my conscience that the Queen’s Highness is the only supreme governor of this realm, and of all other her Highness’s dominions and countries, as well in all spiritual or ecclesiastical things or causes, as temporal, and that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority ecclesiastical or spiritual within this realm; and therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities and authorities, and do promise that from henceforth I shall bear faith and true allegiance to the Queen’s Highness, her heirs and lawful successors, and to my power shall assist and defend all jurisdictions, pre-eminences, privileges and authorities granted or belonging to the Queen’s Highness, her heirs or successors, or united or annexed to the imperial crown of this realm. So help me God, and by the contents of this Book [the Bible]. (Life in Elizabethan England)

A third, and final, oath was required, the oath of abjuration (preventing Jews from seeking office):

I ..; Do abjure and renounce the Pope’s Supremacy and Authority over the Catholic Church in General, and over my self in Particular; And I do believe that there is not any Transubstantiation in the Sacrament of the Lords Supper, or in the Elements of Bread and Wine after Consecration thereof, by any Person whatsoever; And I do also believe, that there is not any Purgatory, Or that the consecrated Host, Crucifixes, or Images, ought to be worshipped, or that any worship is due unto any of them; And I also believe that Salvation cannot be Merited by Works, and all Doctrines in affirmation of the said Points; I do abjure and renounce, without any Equivocation, Mental Reservation, or secret Evasion whatsoever, taking the words by me spoken, according to the common and usual meaning of them. So help me God. (British History Online)

The Canadian Model: Nova Scotia and the Oaths of Office

When the first legislative assembly met, it had conducted business in similar fashion to that of the Mother Parliament, and thus the three oaths of office were a requirement in order for elected members to take their seats. The result was that Catholics and Jews who were unwilling to take the public oath (and most were) did not take their elected seats or otherwise did not bother with standing for election. At any rate, until 1789 Catholics and Jews were not permitted to vote in the British colonies and “Catholics were not permitted to sit in the Assembly without first taking the declaration against transubstantiation; Jews were also barred from sitting in the Assembly because of the oath of abjuration” (House of Commons Procedure and Practice 2nd Ed, 2009). All of the British colonies at one point had a policy which prevented Catholics and Jews from seeking officer and/or voting in the legislative assembly as a result of the oaths of office.

It was not until the capture of Quebec City that the British Crown began to review the requirement for the oaths of office and offered a concession to the Catholic majority in the former French colony. In 1774, “the Quebec Act provided, among other matters, that Roman Catholics no longer had to take the oath of supremacy, substituting an oath of allegiance, should they wish to assume public office. The oath of abjuration still prevented Jews from assuming public office” (House of Commons Procedure and Practice 2nd Ed, 2009).

In 1832, Lower Canada passed a law which gave Jews the same rights and privileges as other citizens, the first jurisdiction in the British Empire to do so. When the United Province of Canada was established, the provisions of the Constitutional Act, 1791 regarding the oath of allegiance were carried over into the Union Act, 1840. At Confederation, the requirement for members of the Senate, House of Commons and provincial legislative assemblies to swear an oath of allegiance was included in the Constitution Act, 1867. (House of Commons Procedure and Practice 2nd Ed, 2009)

The Modern Era: Canadian House of Commons

Regardless of the colourful past of the oaths of office in Canada which were inherited from our European parents, the Canadian House of Commons never had a discriminatory oath for Catholics or Jews. By 1867, and the passage of the British North America Act which established the Dominion of Canada among Upper Canada, Lower Canada and a handful of maritime colonies, the English parliament had departed from the practice of barring Catholics from office in North America. The legislative assemblies in turn broke down restrictions placed on people of the Jewish faith. A year after Confederation, the British parliament passed Promissory Oaths Act, 1868 which established a simple oath, void of references to religious faith. The oath read as follows:

I, (Insert full name), do swear that I will well and truly serve Her Majesty Queen Victoria in the office of (Insert office of). So help me God. (Promissory Oaths Act, 1868)

Conclusion: Why Have an Oath?

It would seem odd that we even have an oath of office given the struggle for human rights when looking in the past. But the reason for the oath is simple and it is contained within a clause of the Magna Carta:

Once the terms had been finalised on 19 June, the rebels again swore allegiance to King John. The later Bill of Rights (1689) included the Oath of Allegiance to the crown, which was required by Magna Carta to be taken by all crown servants and members of the judiciary. (British Library)

PMO - Justin Trudeau

The Summoning of the Canadian Parliament

Members elected to form a new parliament following an election must meet within one year of the dissolution of the previous parliament. In the case of the recent election, parliament would have had to have met by 2 Aug 16. The Canadian Parliament is summoned by the Governor-General of Canada on the recommendation of the Prime Minister. The summons itself does not just occur following an election, it also happens following prorogation of parliament, however the mechanism remains the same with the Governor-General issuing the proclamation on the recommendation of the Prime Minister.

The 42nd Parliament of Canada was summoned by Governor-General David Johnston 13 Nov 15 for members retuned from the 42nd General Election to “appear in person, on Thursday, the third day of December, 2015, at one in the afternoon, at Our City of Ottawa, for the DISPATCH OF BUSINESS, to treat, do, act and conclude on those things that Our Parliament of Canada may, by the Grace of God, ordain” (Canada Gazette, 2015). This proclamation was issued on recommendation provided by Justin Trudeau who commands a Liberal majority in the House of Commons. Trudeau was summoned to form government on 20 October 2015 after the Governor-General had met with outgoing Prime Minister Stephen Harper who “signalled his intention to resign as prime minister” (Rideau Hall Press Release, 2015). On 4 November 2015, the Governor-General swore Justin Trudeau and his 30 person cabinet into office and the 29th Canadian Ministry had been formed.

Members who won seats in the House of Commons meanwhile take the Oath or Solemn Affirmation of Alliance and register on the Test Roll. Following an election, returns are made from the Chief Electoral Officer to the Clerk of the House of Commons that officially recognize a person as having won a certain electoral district in Canada. The notice is published in the Canada Gazette, an example of which can be found here. After notice is given, the members make the oath and sign the Test Roll before the Clerk at a time pre-arranged between the member and office of the Clerk or during a ceremony held prior to the opening of parliament (House of Commons Procedure and Practice 2nd Ed, 2009). The Clerk of the House of Commons issues the Oath or Solemn Affirmation of Allegiance and members sign the Test Roll at the Table of the House of Commons. From this point on, members are permitted to rise and speak in the House of Commons and cast a vote in questions put before it. Every member returned to the House in the previous election takes the oath and signs the Test Roll for each parliament formed following an election (House of Commons Compendium of Procedure, 2015). Thus, each Test Roll is unique to each Canadian Parliament.

The text of the oath read as follows:

“I, (Member’s name), do swear, that I will be faithful and bear true Allegiance to Her Majesty Queen Elizabeth the Second” (House of Commons Procedure and Practice 2nd Ed, 2009)

With an alternative for members who do not wish to swear an oath:

“I, (Member’s name), do solemnly, sincerely, and truly declare and affirm that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second” (House of Commons Procedure and Practice 2nd Ed, 2009)

Members who were appointed by the Governor-General on the recommendation of the Prime Minister to become members of the 29th Canadian Ministry and Privy Counsellors took an additional oath at Rideau Hall in the presence of the Governor-General. That oath reads as follows:

I, __________, do solemnly and sincerely swear (declare) that I shall be a true and faithful servant to Her Majesty Queen Elizabeth the Second, as a member of Her Majesty’s Privy Council for Canada. I will in all things to be treated, debated and resolved in Privy Council, faithfully, honestly and truly declare my mind and my opinion. I shall keep secret all matters committed and revealed to me in this capacity, or that shall be secretly treated of in Council. Generally, in all things I shall do as a faithful and true servant ought to do for Her Majesty. So help me God. (Rideau Hall Swearing-in Ceremony Fact Sheet, 2015)

Additionally, Privy Counsellors and members of Trudeau’s cabinet who are not officially appointed Privy Counsellors (for example, Secretaries of State who assist certain Ministers) take the Oath of Office which reads:

I, _________, do solemnly and sincerely promise and swear (declare) that I will truly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as… So help me God. (Rideau Hall Swearing-in Ceremony Fact Sheet, 2015)

Members who do not wish to swear an oath may replace “swear” with “declare” and the phrase “so help me God” is removed.

The opening of the 42nd Parliament of Canada will immediately follow the summons which will include a Speech from the Throne delivered by Governor-General David Johnston in the Senate Chamber. We will explore that process in a later post.

Image: Prime Minister Justin Trudeau signing the Register after taking the Oath of Office. With Governor-General David Johnston. Source.

Post-election, What Happens Now?

The results of 42nd Canadian General Election. Liberal candidates from across the country were elected to 184 seats in the House of Commons, earning a majority government under the leadership of Prime Minister in-waiting Justin Trudeau. The Conservative Party of Canada saw candidates elected in 99 ridings and will form the Official Opposition in the 42nd Parliament of Canada. Trudeau will (within the next two weeks) appoint the 29th Canadian Ministry from among his 184-strong caucus. The NDP was reduced to third party status with 44 seats and the Bloc next in line with 10 seats. Green Party leader Elizabeth May held her Saanich–Gulf Islands riding on Vancouver Island. But the results of this election are probably not news to you. The question is what happens now that the election has finished and we have a new majority government in Canada?

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Canada election results 2011/15. BBC News.

First let’s understand what has happened in parliament as a result of the election. Most importantly, the 41st Parliament of Canada has given way to the 42nd Parliament. This is the largest parliament in Canadian history with 338 seats distributed evenly across ridings roughly equally representing over 35-million electors. The direct result of casting a ballot on 19 Oct 15 was the formation of this parliament. This is why you were not handed a ballot with the name Justin Trudeau, Thomas Mulcair, Stephen Harper or Elizabeth May on it (unless you lived in their particular riding of course).

As a result of the formation of the 42nd Parliament of Canada, a new ministry is now required. Through responsible government, the Governor-General is compelled to appoint persons who have been duly elected into parliament to form the Canadian Ministry and who gets appointed to lead it depends on who can command the confidence of the House of Commons. Once a new parliament is formed, convention dictates that the Governor-General assess parliament to determine the potential requirement for new ministry (or the continuance of the current) and designates a Prime Minister, if required. Justin Trudeau is currently technically the Prime Minister in-waiting because he has not been designated by the Governor-General (that I know of as of this being posted), but that is a really technical detail; Justin Trudeau will lead the next ministry and will become Prime Minister with a majority government. During this entire period, the current Prime Minister has not been relieved of his responsibility as the leader of the country. Stephen Harper at the time of this publication is (was) still Prime Minister of Canada and leader of the 28th Canadian Ministry. Justin Trudeau has indicated that he will appoint a new cabinet in two weeks which will start with a swearing-in ceremony at Rideau Hall overseen by the Governor-General of Canada. This will be the official start of the 29th Canadian Ministry under Justin Trudeau.

This all might seem very technical but there are some implications for our country. Suppose, for example, that something tragic happened in the country, no doubt Stephen Harper would be legally permitted to issue orders if required. He might listen to input from Trudeau, as the Prime Minister designate, but whether there is an exact requirement is legally dubious. On the flip side, suppose for some reason Justin Trudeau was unable to fulfill his duties as an MP and thus as Prime Minister (for example, a major illness suddenly discovered). A new person could be appointed by the Liberal caucus and eventually elected by the party membership to take his place. This could happen at any time during the ministry as well, however it would start a new ministry (and Trudeau would be required to resign). But these are topics for other posts, the important thing is that the Prime Minister from a legal standpoint is just the person who can marshal command of the House of Commons (all major federal parties have developed internal mechanisms for how this person is elected and legitimized within the party and parliament through convention).

Now, we may not know to what extant Harper may still exercise power as out-going Prime Minister but we do know that Trudeau and his soon-to-be ministry are moving in on parliament. In the coming two weeks Harper will move his office out of the Langevin Block (home of the PMO and Privy Council) and Justin Trudeau will move in. There are already indications that public servants at the Privy Council (the bureaucratic arm of the PMO) have begun to comb through the Liberal platform to present options on how to implement their promises. In short order, briefing material will be created for each soon-to-be-appointed minister that will include a letter from the leader explaining his vision for their portfolio and sometimes a letter from the Clerk of the Privy Council of Canada. Most of this material has most likely already begun to be put together by civil servants across the country.

Trudeau himself will be busy combing through his caucus to build a representative government. Cabinet-making in Canada has always been a particular art. All of the way back to the United Province of Canada when cabinet required an absolute balance between French and English (often with two leaders speaking different policy agendas). In modern political times the cabinet must still be balanced with representation from Quebec, but also from Eastern Canada (where the Liberals preformed very strongly), Central Canada and Western Canada. The cabinet will also have to include a proportional number of woman and aboriginals reflecting the values of Canadians. The Liberal government will need new-Canadians and people of all perspectives in order to build a cabinet which is representative of the people. And we also cannot forgot competency, which is required of every minister in order to quarterback the leaders’ vision for the government and implementation of policy within their respective departments.

So the short answer to the question of what is happening post-election is that Harper remains Prime Minister until the new ministry is sworn-in and the Liberals, in particular Justin Trudeau, are extremely busy.

Image of Trudeau from CBC News. Election 2015/2011 results from BBC News.

Three Commonly Heard (But Incorrect) Election Phrases

Last night Peter Mansbridge wrapped up one-on-one interviews with each major party leader in the current federal election on CBC. To each leader he put forward a frank question: what do you think of the phrase, ‘the leader with the most seats forms government.’ I am not going to go into detail regarding what each leader said on the topic (for that you should go to this post for great analysis of what the leaders are saying). What the question did trigger, however, was the realization that there are a number of misconceptions about how our parliamentary system works especially regarding how a government is formed post-election. These misconceptions seem to fester more than usual around election time. I’ve written three phrases here that I have heard said a number of times by Canadians when speaking about elections and the formation of government specifically.

Number One. I am going to vote for so-and-so-party-leader.

Unless you live in the ridings of Calgary Southwest, Outremont, Papineau or Saanich–Gulf Islands you are not going to be voting for the leader of any federal party which held seats in the last parliament during this election. For the vast majority of Canadians who will vote on Oct 19, the names listed on their own ballot will be people who we have never seen or heard of on the nightly news (save for the election night coverage). They are candidates who are seeking election within your riding (electoral district) which is based on geography and population. In essence, as mentioned in this post, there are 338 elections taking place during this federal general election. This fact is more obvious in U.K. election night coverage where each riding collection officer announces the winner for each riding separately, which emphasizes the fact that individual elections for candidates take place across the country. This is much different than the U.S. model where the President (Executive) is elected through a national electoral college and separate from members of the legislature. In Canada (and other Westminster parliamentary countries), we elect candidates who are summoned to Ottawa by the Governor-General after the election. That is it. We do not elect our Prime Minister, we do not elect any members of government for that matter. We simply elect the person who we want to have summoned to Ottawa when parliament is opened. Our work in the process is done and our democratic will has been satisfied through a democratic election of our candidate.

Now, the typical response to this goes something like this: I know that I elect the candidate but once elected they are whipped into following what the leader wants so essentially I am voting for the leader. But this is not entirely correct. You have elected a person in parliament who is charged with representing your riding in the House of Commons. While there may be whips and mechanisms for controlling members within parliament, they have the legal right to cast a ballot in their own choosing and no authority can remove that right. However, the topic of the whip in parliament is meant for an entire post (or series of posts) on its own, therefore what is important is just to remember that nothing aside from party created mechanisms prevent your member from breaking ranks.

There is something to be said about creating a de facto proxy vote system in Canada. First, elections are meant to legitimize the presence of an individual in the House of Commons. If we are just electing the leader of a party or the branded party itself, we are throwing out 334ish people who are paid and have a legal right to sit and act in parliament. And, as is pointed out here, when you proxy vote, you have no control over the other 337 results and on top of that you are working within a system which is designed to facilitate the election of 338 ridings into one parliament. I would therefore make no sense to attempt to vote within your own riding for a strategic outcome overall. This is where misconception concerning our electoral system begin to creep in as well (but more on that in future posts).

Number Two. The leader of the party with the most seats in the House of Commons forms government.

The leader of the party with the most seats in the House of Commons does not get to form government, the convention is simply not that simple. Suppose this election results in a hung parliament (where no single party gains the plurality of seats), it would probably surprise you to learn that the incumbent government (i.e. the Harper government) gets the so-called first crack at seeking the confidence of the House of Commons. This is called the incumbency principle and it is important for two reasons. First of all, it permits a continued chain of governance in Canada and secondly it promotes stability. It is a clear mechanism for a hung parliament to display confidence in the government or, if no confidence can be obtained, for the process to form the next government to begin. If the incumbent government cannot obtain the confidence of the House, than the Governor-General may invite another member to form the government provided they can carry the confidence of the House. This can go several ways. The party with the largest number of seats in the House of Commons may be asked to form government, a coalition may be formed between parties in which a leader approaches the Governor-General to form government or the Governor-General drops the writs and a new election is called (very unlikely). It is important to move even further away from the idea that the leader of the party with the most seats in the House of Commons forms government when we talk about coalitions. It would be perfectly democratic for a group of small parties to form a coalition and carry the confidence of the House within a single member. This coalition could be loosely based or it could include a formal agreement. But what is important is that it is (a) democratic and (b) normal within a Westminster system when in a hung parliament situation. Ideally, first-past-the-post is designed to produce clear parliaments, but it is also a system designed for two major parties and not three.

Number Three. This election is about who will be the next Prime Minister of Canada.

As mentioned before, this election is not about who will be the next Prime Minister of Canada. This election is about who will be your representative in the House of Commons and parliament. From this election a parliament will be formed, and from that parliament, a government will be formed but this election is not about who will form government. This might seem like a trite technicality but in fact it is essential to gain the fullest understanding of our political system, specifically including why we have the first-past-the-post system in Canada. Those are topics for other post, but for now just understanding that we are not electing the Prime Minister of Canada and Canadians, during a general election, play no role in the formation of government. We are electing the House of Commons, the democratic and highest organ of parliament.

Conclusion

I think that Canadians as a whole have a lot more to learn about their own government structure and constitutional system. It is a shame, in my personal opinion, when the leaders of the three major federal parties appear to not understand how the systems works. But there is also something which is key to keep in mind when we speak about constitutional conventions. While they are accepted practises regarding constitutionally mandates requirements, they are not enforceable in courts and by definition can change when a new approach is adopted or favours shift to no longer follow the convention. This has happened with numerous constitutional conventions in the past, and it seems that as they die, there are some people left wishing that a certain convention remained or that another existed in its place. A convention can be seen as a constitutional norm, and it is important in my opinion that these conventions exists as they are because they strengthen the institution of parliament by ensuring that it can be fluid enough to remain relevant through-out time. This can, to some degree, work to prevent institutional decay over time, which is important especially in our most sacred political body. All of that to say, if the convention where to change it certainly would not be outside of the realm of the possible, but there could be some follow-on consequences, and that is a topic for another post as well.