Speaker Makes Decision on Official Opposition

Following is the text of a letter sent by Nova Scotia Speaker Murray Scott to the leaders of the Liberal and New Democratic parties today.

In the general election on July 27, 1999, a majority Progressive Conservative government was elected along with 11 Liberals and 11 New Democrats. The leader of the Progressive Conservatives has become the premier. Who is to become the leader of the Opposition? Traditionally in Nova Scotia, the Speaker has recognized as the leader of the Opposition the leader of the opposition party having the most seats in the House of Assembly. There are no precedents in Nova Scotia respecting the recognition of a leader of the opposition when two opposition parties have equal numbers.

Briefs have been submitted to me on behalf of the two opposition parties by their house leaders.

The title "His Majesty's Opposition" was first used in debate on April 10, 1826, by John Cam Hobhouse (later Lord Broughton) in the British House of Commons. "The prevalence (on the whole) of the two-party system has usually obviated any uncertainty as to which party has the right to be called the Official Opposition'; it is the largest minority party which is prepared, in the event of the resignation of the Government, to assume office: Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 21st edition (1989). In 1937, the United Kingdom gave statutory recognition to the leader of the Opposition through the grant of a salary for the position.

In Canada in the House of Commons, the "political party which has the right to be called the Official Opposition' is the largest minority group which is prepared, in the event of the resignation of the government, to assume office. The importance of the Opposition in the system of parliamentary government has long received practical recognition in the procedure of Parliament. Canada was the first Commonwealth country to provide statutory recognition to the office through the grant of a salary to the Leader of the Opposition": Beauchesne's Rules & Forms of the House of Commons of Canada, 6th edition (1989).

In Nova Scotia, James William Johnston was recognized as the first leader of the Opposition in 1848 with the beginning of responsible government: The Legislative Assembly of Nova Scotia, 1758-1983, Shirley B. Elliott (1984). Statutory recognition of the leader of the Opposition was given in 1954 through the grant of a salary. Although there has been more than one opposition on and off since party affiliations were first used in Nova Scotia in the first half of the last century, statutory recognition of an opposition leader other than the leader of the official Opposition was only given in 1974 through the grant of a salary to the "leader of a recognized party".

At present in Nova Scotia, there are references to the Leader of the Opposition or the Leader of the Official Opposition in the Auditor General Act, the Elections Act, the House of Assembly Act, the Members' Retiring Allowances Act and the Public Service Act. There are references to the "Opposition House Leader", the "Official Opposition" and the "House Leader of the Official Opposition" in the Rules and Forms of Procedure of the House of Assembly. There are references to "the leader of a recognized party" or "a recognized party" in the Elections Act, the House of Assembly Act, the Income Tax Act, the Members and Public Employees Disclosure Act, the Members' Retiring Allowances Act and the Public Service Act and references to "the leader of a recognized party" and "each recognized party" in the Rules and Forms of Procedure.

There is no statutory provision or rule of the House of Assembly specifying how the leader of the Opposition is to be determined; however, the precedents are clear that it is the decision of the Speaker to determine whom he or she will recognize as the leader of the Opposition: decision of the Speaker of the House of Commons of Canada, February 27, 1996. Some may argue that a distinction should be made between the recognition of the leader of the Opposition and the recognition of the official Opposition. Historically at least, it may be argued that the leader of the Opposition was not only the leader of the official Opposition but the leader of all Her Majesty's Loyal Opposition, regardless of party. It is only in more recent time that a formal role has been permitted for the leader of a "third party".

Although there are no precedents in Nova Scotia respecting the recognition of a leader of the Opposition when two opposition parties have equal numbers, there are precedents elsewhere in Canada.

In a general election in 1909 in British Columbia, the Conservatives obtained a majority and two Socialists and two Liberals (or more precisely, a Liberal and a Labour-Liberal) were elected. At the opening of the first session, the Labour-Liberal seconded the nomination of the speaker on behalf of the opposition but no leader of the Opposition was recognized at this time. One of the Socialists indicated that the Socialists did not believe in leadership. A year later, the Liberal was recognized as the leader of the Opposition.

From 1926 to 1940 in Alberta (three assemblies), no leader of the Opposition was officially recognized even though one opposition party had more members (by at least two) of the legislative assembly than any other opposition party. By a resolution of the assembly and subsequently by statute, the allowance for the leader of the Opposition was divided between all the opposition parties or groups.

In 1937 in British Columbia, eight members of the Progressive Conservative Party and seven members of the CCF (Co-operative Commonwealth Federation) were elected in a general election. A Progressive Conservative was recognized as the leader of the Opposition. Upon the death of this leader, the two parties had the same number of members and the Progressive Conservatives continued to be recognized as the official Opposition. (When a byelection in 1940 changed the standings giving the CCF one more member than the Progressive Conservatives, the Progressive Conservatives continued as the official Opposition.)

In 1948 in Alberta, two members of the CCF, two Liberals and two independents were elected in a general election. The Speaker announced that he would not recognize an official Opposition. In the fourth session, the allowance for the leader of the Opposition was shared by the CCF and Liberal leaders. In the fifth session, the Liberal leader was recognized as the leader of the Opposition but continued to share the allowance with the CCF leader.

In 1959 in Alberta, four opposition members, each with a different affiliation, were elected in a general election. None of them were formally recognized as the leader of the Opposition but, by statute, the leader's allowance was divided among the four of them.

In 1977 in Saskatchewan as a result of defections and byelections, the Liberals and the Progressive Conservatives were tied. By the Saskatchewan Legislative Assembly Act, there was no "Leader of the Opposition" and, by that statute, the moneys available to the leader of the Opposition were divided equally between the Liberals and the Progressive Conservatives.

In 1983 in Alberta following a general election, there were two members of the NDP (New Democratic Party) and two independents. Immediately before the election, one of the independents was the leader of the Opposition and both independents were part of a three-member caucus. The Alberta Speaker recognized the leader of the NDP as the leader of the Opposition based in part on the popular vote and in part on party status. (When in 1984 the leader of the Opposition died, the NDP continued to be recognized as the official Opposition.)

In 1994 in New Brunswick, the 1983 Alberta precedent, in so far as it was based on popular vote, was rejected. The Confederation of Regions Party had been recognized as the official Opposition following the most recent general election. As a result of defections and byelections, the Confederation of Regions Party and the Progressive Conservative Party became tied. The Confederation of Regions Party retained its status as the official Opposition.

In late 1995 in the House of Commons, the Reform Party achieved the same number of seats as the Bloc Quebecois which was the official Opposition following the most recent general election. Again, the 1983 Alberta precedent, in so far as it was based on popular vote, was rejected. The Speaker ruled (in early 1996) that the Bloc Quebecois would remain as the official Opposition on the basis of incumbency.

Following a general election in 1996 in the Yukon, the official Opposition immediately before the election became the government. The former government and a third party were tied following the election. The former government was recognized as the official Opposition.

The foregoing do not purport to be all the Canadian precedents but, I believe, include the most relevant ones.

Incumbency appears to be an important principle. (In 1920 in Manitoba, the incumbent Progressive Conservative Party retained official Opposition status even though it was not the largest opposition party.) But what is meant by incumbency?

Before the recent general election, the Liberals formed the government and the New Democrats were the official Opposition. Like now, both held the same number of seats in the House of Assembly. Following the principle of incumbency as set out in the 1996 Yukon decision, the leader of the Liberals as the former premier could be the leader of the Opposition but, also following the principle of incumbency, the leader of the New Democrats could continue as the leader of the Opposition following a general election. Although the Yukon decision favoured the former government party, the choice was between the former government party and a third party, not between the former government party and the former official Opposition. The Yukon decision is not very helpful in the present situation.

Generally, the principle of incumbency has been applied between elections when there has been a change in party standings, not following a general election. To do so, ignores to a degree the results of the election. In my opinion, the former status of the Liberals as the government or the former status of the New Democrats as the official Opposition should not be used in determining who should now be recognized as the official Opposition. Nor, in my opinion, is experience as a government or as the opposition a valid consideration as is argued, respectively, on behalf of the two opposition parties.

In our parliamentary system, the party with the majority of members forms the government -- not the party with the highest popular vote. All members of the House of Assembly are equal regardless of whether elected by one vote or a landslide. In my opinion, popular vote should not be used to determine the official Opposition as is argued on behalf of the New Democrats. If popular vote is a valid consideration, why not consider other election factors such as who came second in the most electoral districts? In 1994 New Brunswick decision, the Speaker, in rejecting consideration of popular vote, stated that "Basing a decision on factors outside Parliament opens the door or invites future decisions with no basis in parliamentary precedents or practice". In 1995 the Speaker of the House of Commons concurred.

All members of the House of Assembly are equal regardless of what area of the Nova Scotia they represent. In my opinion, the areas represented by the members should not be taken into consideration as is argued on behalf of the Liberals.

To select the official Opposition by lot would be an easy solution to a difficult problem but would be unprecedented and, in my opinion, not appropriate.

Is it mandatory that the Speaker recognize an official Opposition or a leader of the official Opposition? Doing so will give one of two opposition parties with the same number of members financial and other advantages. Not doing so will keep both parties on equal footing.

Not having a leader of the Opposition would also raise issues, although not necessarily insurmountable problems.

First, it is the practice of the Speaker to recognize the leader of the Opposition or a member of the "official opposition" first in reply to the Speech from the Throne, the budget address and ministerial statements and in question period.

Second, by paragraph 60(3) of the Rules and Forms of Procedure of the House of Assembly, the chairman of the Public Accounts Committee is chosen by the Opposition House Leader from among members of the Committee as are members of the official Opposition.

Third, by paragraph 62D(1) of the Rules, the "House Leader of the Official Opposition, or his or her designate, in consultation with the Minister leading the House at the time, shall determine which five Ministers of Government's Estimates are considered by the Committee of the Whole on Supply and the order in which they are to be considered".

Fourth, by subsection 3(4) of the Auditor General Act, upon "the written advice of the President of the Executive Council and the Leader of the Official Opposition, the Governor in Council may, at any time the Legislature is not in session, suspend the Auditor General for cause". (It has been the practice of the government since 1975, with the exception of two months in 1980, to have the House of Assembly continuously in session except when dissolved for an election. By subsection 3(1) of the Auditor General Act, the Auditor General "shall be removed by the Governor in Council on the passing by the House of Assembly of a resolution carried by a vote of two thirds of the members of the House of Assembly voting thereon requiring the Governor in Council so to do".)

Fifth, by Sections 42 and 43 of the House of Assembly Act, the leader of the Opposition is entitled to a larger salary and to more staff than the leader of a recognized party.

Obviously, the foregoing practices, rules and laws are based upon there being a leader of the Opposition. Although there are rules of our House of Assembly and laws of Nova Scotia pertaining to this House that are based upon there being a leader of the Opposition, there is no rule of this House or law of this province requiring the Speaker to recognize a leader of the Opposition. In my opinion, a leader of the Opposition is desirable but not necessary.

Under the present circumstances of equality between the two opposition parties, I do not think that I should favour one party or leader over the other and thus it is my decision that, at this time, I will not recognize either of the leaders of the opposition parties as the leader of the Opposition nor will I recognize either of the opposition parties as the official Opposition. I will endeavour, to the best of my ability, to treat both opposition parties equally and fairly.

If at a future date, one of the opposition parties has more members of the House of Assembly than the other, I will reconsider the matter at that time.

It is my intention to alternate on a daily basis my recognition in the House of Assembly of one of the opposition leaders or his party ahead of the other and to start I will select one of the opposition parties. As soon as possible, I will convene a meeting of the Committee on Assembly Matters to discuss the chairmanship of the Public Accounts Committee and the selection by the opposition of the estimates to be considered by the Committee of the Whole on Supply and a meeting of the Legislature Internal Economy Board to discuss the staffing and other financial support of the opposition leaders' offices. I will soon be appointing a commission of inquiry pursuant to Section 45 of the House of Assembly Act and I will, in particular, refer to it the issue of the opposition leaders' pay where there is no leader of the Opposition.

Consideration should be given by the House of Assembly to providing guidance to the Speaker by way of statute or the rules for the resolution of the issues I have raised. If there is always to be a leader of the Opposition and an official Opposition, acceptable criteria could be provided to assist the Speaker in difficult circumstances like the present ones. Alternatively, the financial and procedural issues should be resolved.

In any event, I request that all members and parties work together to ensure that the process works so that the business of Nova Scotians is dealt with in the most efficient and effective manner.

I would like to thank both opposition parties, the clerks of the House of Assembly and the chief legislative counsel for their assistance in resolving this difficult matter.

Signed,

Murray Scott Speaker, House of Assembly