Determining the official opposition in New Brunswick and the House of Commons.

• Author: Stewart Hyson

Normally the question of who forms the official opposition does not arise because the party winning the second largest number of seats automatically assumes the role. The solution is less clear when opposition parties are tied or are of nearly equal standing. Since 1994 there have been two cases, one in Ottawa and one in New Brunswick where the Speaker was called upon to settle a dispute over who should be the official opposition. This article looks at the two rulings.

Deciding the official opposition is not an issue that can fully be grasped in isolation. No matter how interesting or bizarre the facts of each individual case may be, they all stem from the broader, underlying issue of recognizing political parties in a parliamentary forum.

The gist of the matter, of parliamentary government given our focus, is that the Westminster model developed long before the advent of political parties. This contributed to the tradition and myth of the MP as an individual representative, which was especially apparent prior to the mid-1960s in terms of parliamentary rules and procedures. According to John Courtney, this "non-existence" of parties rested on three ideas:

(a) a view of representation that was inherently individualistic; (b) a belief that the collective wisdom of individual members was to be preferred to the necessarily narrower and more particular points of view of political parties; and (c) a notion that a greater loyalty was owed to Parliament than to any political party. (1)

It would be impossible in a short article to examine the whole subject of party recognition. So we will zero-in on the specific issue of deciding the official opposition.

In originally recognizing the position of the Leader of the Opposition, "it was not the Opposition party, but the Leader, who was being recognized," (2) The formal recognition of parties in the early 1960s thus constituted a major change. The Opposition Leader has since been formally viewed in his/her capacity as leader of the main opposition party in the House. This reality is reflected in both parliamentary practices as well as in the provision of funding, services and facilities made available to opposition parties.

It is in this context, therefore, that deciding the opposition party when parties are tied takes on critical importance. Moreover, in most jurisdictions, there are no Standing Orders or statutes to cover the situation should it arise. (3) Speakers, for the most part, are called upon to settle the matter.

Political Background to the Two Rulings

The genesis of the New Brunswick ruling was the 1991 general election when the Confederation of Regions party (CoR) won 8 seats to become the official opposition. The Conservatives won 3 seats and the NDP 1 seat. Over the next three years, CoR was racked by internal leadership squabbles and two of its MLAs left to sit as independents. Meanwhile, the Conservatives won three successive by-elections. Consequently, by December 1994, the CoR and Conservative parties were of equal standing in the legislature with 6 MLAs each. At that time, the Conservative leader, Dennis Cochrane, raised a point of order requesting Speaker Shirley Dysart to rule on the question of official opposition status. (4)

The New Brunswick Speaker followed what could be called standard practice. After hearing the opinions of the Leader of the Opposition, Conservative party leader, and Liberal Government House Leader, Speaker Dysart then consulted authoritative written sources, examined parliamentary precedence elsewhere in Canada, and considered the arguments that had been presented in the Assembly.

She declined to receive any supplemental briefs in private to preserve the impartiality of the process and made the decision-making criteria part of the public record. Just the same, a lot can be said for allowing legislators the opportunity to supplement their verbal comments with formal briefs - as long as the briefs are also made part of the public record. A written brief allows the opportunity to present arguments that are better...