The Speaker’s ruling on the case of Mark Warawa

No breach of privilege, but an opening for the uprising to continue

The prepared text of Andrew Scheer’s ruling on Mark Warawa’s question of privilege.

I am now prepared to rule on the question of privilege raised on March 26 by the Member for Langley (Mr. Warawa) regarding the presentation of a Member’s Statement pursuant to Standing Order 31.

I would like to thank the hon. Member for Langley for having raised this matter, as well as the hon. Chief Government Whip (Mr. O’Connor), the hon. House Leader for the Official Opposition (Mr. Cullen), the hon. House Leader for the Liberal Party (Mr. LeBlanc), and the Members for Vegreville—Wainwright (Mr. Benoit), Saanich—Gulf Islands (Ms. May), Lethbridge (Mr. Hillyer), Winnipeg South (Mr. Bruinooge), Edmonton—St. Albert (Mr. Rathgeber), Brampton West (Mr. Seeback), Kitchener Centre (Mr. Woodworth), New Brunswick Southwest (Mr. Williamson), Wellington—Halton Hills (Mr. Chong), Glengarry—Prescott—Russell (Mr. Lemieux), South Surrey—White Rock—Cloverdale (Mr. Hiebert), Medicine Hat (Mr. Payne), West Vancouver—Sunshine Coast—Sea to Sky Country (Mr. Weston), Halifax (Ms. Leslie), and Thunder Bay—Superior North (Mr. Hyer) for their comments.

In raising his question of privilege, the Member for Langley explained that, shortly before he was to rise during Statements by Members on March 20, he was notified by his party that he could no longer make his statement because, as he put it, (quote) “the topic was not approved” (unquote). In making his case, he argued that the privilege of freedom of speech is designed to allow Members to discharge their responsibility to ensure that their constituents are represented. While the Member accepted the practice of parties submitting lists of Members to the Speaker, he objected to this being managed in such a way that the equal right to speak could be removed. He stated that (quote) “If at any time that right and privilege to make an S.O. 31 on an equal basis in this House is removed, I believe I have lost my privilege of equal right that I have in this House.” (unquote) He further argued that, ultimately, it is only the Speaker who has the authority to remove a Member’s opportunity to speak and that the equal opportunity of every Member to make statements pursuant to Standing Order 31 must be guaranteed.

In his intervention, the Chief Government Whip reminded the House that all recognized parties resort to the use of speaking lists and that (quote) “the practice for many years in the House is for the Speaker to follow the guidance provided by the parties…” (unquote). He added that, since the preparation of lists is an internal affair of party caucuses, it is not something the Speaker ought to get involved in.

For his part, the Opposition House Leader suggested there exists a role for the Speaker in regulating the natural tension between Members and their parties, and the right to speak in Parliament. He went further, saying, (quote) “The issue is the need for members of Parliament to speak freely on behalf of those whom we seek to represent” (unquote) and, in support of this view, he cited House of Commons Procedure and Practice, Second Edition, which states at page 89, (quote) “by far, the most important right afforded to Members of the House is the exercise of freedom of speech in parliamentary proceedings” (unquote).

However, he also noted that, with the entrenchment of the practice whereby Whips determine which of their Members will speak and the concurrent absence of a Standing Order explicitly allowing the Speaker to intervene in that process, he questioned whether the will and support of the House would be required before the Chair could do so.

Several other Members intervened in support of the Member for Langley, while another echoed the comments of the Chief Government Whip. For his part, the Member for New Brunswick Southwest suggested that I should expand my review of this matter to include not just lists for Statements by Members, but also for Question Period.

I wish to begin by reminding the House of the role of the Chair in determining matters of privilege. O’Brien-Bosc, at page 141, states:

(quote) “Great importance is attached to matters involving privilege. … The function of the Speaker is limited to deciding whether the matter is of such a character as to entitle the Member who has raised the question to move a motion which will have priority over Orders of the Day; that is, in the Speaker’s opinion, there is a prima facie question of privilege. If there is, the House must take the matter into immediate consideration. Ultimately, it is the House which decides whether a breach of privilege or
a contempt has been committed.” (unquote)

I also wish to address what seems to be a widespread misconception about the role of the Speaker in matters of this kind. Several Members have used sports analogies to describe me as a referee or league convenor. Perhaps there are elements of a referee role for the Speaker, but with one important difference: there is no league that appoints the Speaker to enforce rules from on high, in a vacuum. Instead, here in the House of Commons, the Members elect a Speaker from among the membership to apply rules they themselves have devised and can amend. Thus it is only with the active participation of the Members themselves that the Speaker, who requires the support and goodwill of the House in order to carry out the duties of the office, can apply the rules. As is stated in O’Brien and Bosc at page 307:

(quote) “Despite the considerable authority of the office, the Speaker may exercise only those powers conferred upon him or her by the House, within the limits established by the House itself.” (unquote).

In making their arguments in this case, several Members have correctly pointed out the fundamental importance of freedom of speech for Members as they carry out their duties. House of Commons Procedure and Practice, Second Edition, at page 89 refers to the freedom of speech of Members as:

(quote) “[…] a fundamental right without which they would be hampered in the performance of their duties. It permits them to speak in the House without inhibition, to refer to any matter or express any opinion as they see fit, to say what they feel needs to be said in the furtherance of the national interest and the aspirations of their constituents.” (unquote)

The Speaker’s role in safeguarding this very privilege is set out in O’Brien and Bosc, at page 308:

(quote) “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”. (unquote)

This last citation is particularly important, since it highlights a key reality, namely that there are inherent limits to the privilege of freedom of speech. Aside from the well-known prohibitions on unparliamentary language, the need to refer to other Members by title, the rules on repetition and relevance, the sub judice constraints and other limitations designed to ensure that discourse is conducted in a civil and courteous manner, the biggest limitation of all is the availability of time.

I need not remind the House that each and every sitting day, a vast majority of Members are not able to make a statement pursuant to Standing Order 31 as there simply is not enough time available. It is likely for this reason that the Standing Order states that Members “may” – not shall – be recognized to make statements. Hence, while many Members in this instance have spoken of the right to speak, the Member for Langley acknowledged this inherent limitation and spoke more precisely of the equal right to speak. It is this qualifier of rights – equity – that carries great significance and to which the Chair must pay close attention.

Put another way, the Chair is being asked by the Member for Langley whether the practice of Whips providing the Speaker with the names of Members who are to be recognised to speak during Statements by Members represents an unjust limitation on his freedom to speak, to the extent that such opportunities are not afforded to him on an equitable basis.

There is no denying that close collaboration has developed over time between the Chair and party Whips to find ways to use the time of the House as efficiently as possible, and to ensure that all parties are treated equitably in apportioning speaking time. In some cases – the timing of recorded divisions comes to mind – the Standing Orders enshrine a specific role for the Whips. In other cases, there is no Standing Order, but rather a body of practice that the House follows and that evolves over time. A reading of the history of Members’ Statements at pages 420 to 422 in O’Brien and Bosc tells us that our practice in that regard has had to adjust and respond to changing circumstances on more than one occasion, with each practice enduring only so long as it matched its era and the will of the House. By 1982, it had settled into what we know it to be today; that is, the order and number of slots to be allotted to Members of different political affiliations are agreed upon by the parties at the beginning of a Parliament and adjusted from time to time, as necessary. Then, at each sitting, the names of Members who are to fill the designated speaking slots are provided to the Speaker by the Whips of the different recognized parties and by the independent Members. Even if not enshrined in the Standing Orders, generally the House has been well served by this collaboration and the lists have helped the Chair to preside over this portion of each sitting day in an orderly fashion.

But does this mean that the Chair has ceded its authority to decide which Members are to be recognized? To answer this question, it is perhaps useful to review the history of the lists, which were first used for Question Period in the 1970s. At page 61 in his memoir Mr. Speaker, in which he describes his time in the Chair, Speaker Jerome explains that he was comfortable using a party’s suggested lists (quote) “so long as it didn’t unfairly squeeze out their backbench.” (unquote)

In a June 19, 1991, ruling found at page 2072 of the Debates, Speaker Fraser was even more categorical about the authority of the Chair. In response to a Member who asked if the Chair was bound to follow a set list in recognizing Members, he said:

(quote) “I appreciate the honourable Member’s intervention and my answer is yes, there is a list. I am not bound by it. I can ignore that list and intervene to allow private Members, wherever they are, not only to ask questions but also to ask supplementals. That is a right which remains with the Chair and I do not think it has ever been seriously challenged. I would remind all honourable Members that it is a right which the Chair has had almost since: “The memory of man runneth not to the contrary”.” (unquote)

The authority the Speaker has in this regard is likewise described in House of Commons Procedure and Practice, Second Edition, at page 318, which states:

(quote) “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.” (unquote)

It further states on page 595 that:

(quote) “Although the Whips of the various parties each provide the Chair with a list of Members wishing to speak, the Chair is not bound by these.” (unquote)

Similarly, Beauchesne’s Parliamentary Rules and Forms, Sixth Edition, on page 137, states that (quote) “…the Speaker is the final authority on the order of speaking.” (unquote)

I myself have seen fit from time to time to deviate from the lists, usually in an effort to preserve order and decorum during Statements by Members and Question Period.

Accordingly, the Chair has to conclude, based on this review of our procedural authorities and other references, that its authority to decide who is recognized to speak is indisputable and has not been trumped by the use of lists, as some Members seemed to suggest.

I might add as an aside that the use of lists in general has inadvertently created an ongoing problem for the Chair: in some cases, Members do not stand to be recognized because they are on a list and thus think they will automatically be recognized when their “turn” comes around. As Acting Speaker Bob Kilger put it in a statement found at page 3925 of the Debates on May 5, 1994:

(quote) “We speak about or refer to these unofficial lists that we have, which are somewhat helpful at times, but in the end members seeking the floor of course are those who will be recognized by the Chair.” (unquote)

Thus, the need to “catch the Speaker’s eye”, as it is called, continues to underpin the Chair’s authority in this respect.

Members are free, for instance, to seek the floor under “questions and comments” at any time to make their views known. They are also free at any time to seek the floor to intervene in debate itself on a bill or motion before the House. Ultimately, it is up to each individual Member to decide how frequently he or she wishes to seek the floor, knowing that being recognized by the Speaker is not always a guaranteed proposition.

The right to seek the floor at any time is the right of each individual Member of Parliament and is not dependent on any other Member of Parliament.

Now, on the narrow question of whether the removal of the Member for Langley from his party’s lineup for Statements by Members on March 20th constitutes a prima facie matter of privilege, the Chair cannot conclude that there is a prima facie finding of privilege. No evidence has been presented to me that the Member has been systematically prevented from seeking the floor. The Chair has found that the Member for Langley has been active under several rubrics since the beginning of this Parliament. He has made statements under Statements by Members on a variety of subjects; he has presented petitions; he has made speeches and has risen on questions and comments under Government Orders; he has made speeches under Private Members’ Business and he has risen in Question Period.

As I said earlier, he has remained free to seek the floor at any time, like all other Members.

However, on the broader question of the equitable distribution of Statements by Members, a review of the statistics reveals that the Member may well have a legitimate concern. This goes to the unquestionable duty of the Speaker to act as the guardian of the rights and privileges of Members and of the House as an institution. This includes ensuring that, over time, no Member wishing to speak is unfairly prevented from doing so.

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

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

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

I would like to thank all honourable Members for their attention during this rather lengthy ruling.

Looking for more?

Get the Best of Maclean's sent straight to your inbox. Sign up for news, commentary and analysis.