Challenging the chair.

• Author: Mercer, Tim
• Position: In Canada

Impartiality is a prime prerequisite for occupants of the Chair in Westminster style parliaments but there are some cases in Canada and in other Commonwealth jurisdictions that have resulted infamous challenges to the authority of the Speaker. The most notable of these occurred during the so-called "Pipeline Debate" in the House of Commons in 1956. Centered around the federal government's proposal to assist in the construction of a natural gas pipeline from Alberta to Quebec, the acrimonious and disorderly debate lasted eighteen days and produced twenty-five appeals from rulings of the Speaker and Chair of Committee of the Whole. It resulted in the first and only motion of censure, albeit unsuccessful, of a Speaker in the history of the Canadian Parliament. Although appeals have been abolished in most legislatures this article looks at other avenues open to Members when they feel the Chair has erred in his or her interpretation of the rules or, more seriously, rendered a decision based on partisan or personal interests.

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What options are available to Members who wish to challenge the Chair, either on a particular ruling or more generally? The rules and practices differ somewhat from jurisdiction to jurisdiction. Generally speaking, five possibilities exist, varying between procedurally pure, to informal to those that might constitute a serious breach of parliamentary privilege. For this reason, I have labeled them 'possibilities' as opposed to 'options'! They are:

* Formal Appeal;

* Substantive Motion;

* Criticism Outside the House;

* Disobedience;

* Threat and Intimidation.

The intention is not to suggest that each of these possibilities should or can be considered by Members, but rather to generate a discussion about what type of challenge a Presiding Officer might face and how they, and the House, might respond.

Formal Appeal

The ability to appeal a ruling of the Speaker ended in the House of Commons in 1965. Similar prohibitions exist today in most Canadian jurisdictions. By way of example, the Rules of the Legislative Assembly of the Northwest Territories state:

In deciding points of privilege, order or practice, the Speaker shall state the applicable Rule or other authority. The Speaker's decision shall not be subject to debate or appeal. (1) In discussing this rule with Members, some have asked "but what if the Speaker's ruling is wrong?" This is obviously a difficult question for a Clerk to answer but in attempting to explain the concept, I have sometimes been tempted to draw an analogy, albeit limited and arguably preposterous, to the teachings of the Catholic Church with respect to papal infallibility.

The doctrine of papal infallibility was expressly defined at the First Vatican Council in 1870. It proposes that the Pope is preserved from error when he solemnly promulgates, or declares, to the Church a decision on faith or morals. It follows that anyone who deliberately dissents with an infallible declaration is outside the Catholic Church. The doctrine does not go so far as to conclude that the Pope is divinely inspired or that he is exempt from sin. Rather, it establishes that when he is acting in the official capacity as spiritual head of the Church, his teachings and conclusions are final and binding on the Church as a whole. In addition, in making an infallible declaration, he cannot contradict anything the Church has taught officially and previously.

So it is, in a limited sense, with decisions of the Speaker. With few exceptions in Canada and the Commonwealth, the prevailing parliamentary law can be summarized by the following pronouncement of Speaker Jean-Pierre Charbonneau in the Quebec National Assembly in June of 2001:

Our parliamentary law, in its wisdom, holds that one may not impugn the conduct of a Member unless it be by recourse to a formal procedure, to wit a substantive motion. [...] Parliamentary law is even more stringent when the conduct of a Presiding Officer is concerned. Not only is it forbidden to impugn the conduct of a Presiding Officer otherwise than by means of a substantive motion, but to do so may even place one in contempt of the Assembly. (2) This ruling was in response to a series of points of order challenging the impartiality of each of the deputy speakers of the House during a heated debate on the issue of civic...