I contend that the Bloc Quebecois should never have taken on the role or title of “Her Majesty’s Loyal Opposition” in the 35th Parliament simply because it became the second largest party with 54 seats, compared to the Reform Party’s 52. This is not an argument against the presence of the Bloc quebecois in parliament in general (they were duly elected representatives), but a rebuke of the parliamentary injustice that allowed such a party to become Her Majesty’s Loyal Opposition during the 35th Parliament. I base this argument on interpretations of both British and Canadian sources, because the Canadian tradition developed directly from its British tradition, and on the nature of convention itself. I refuse to elevate the custom that the party with the second largest number of seats becomes the Official Opposition to a constitutional convention. Certainly, the presence of an Official Opposition is a constitutional requirement and practical necessity in order that parliament effectively hold the government to account – but the presence of such a function is distinct from the determination of which party takes on the role. I will also examine Speaker Gilbert Parent’s ruling from 1996 (the second session of the 35th Parliament) on the status of the Official Opposition and point out some bizarre inconsistencies and mistakes therein.
The Origins of Her Majesty’s Loyal Opposition
According to the Library of the House of Commons of the United Kingdom, the formal title of the Official Opposition, “Her Majesty’s Loyal Opposition”, emerged in 1826. Sir John Hobhouse remarked: “It is said to be hard on His Majesty’s Ministers to raise objections of this character but it is more hard on His Majesty’s Opposition to compel them to take this course.” The concept of Her Majesty’s Loyal Opposition, however, traces its roots back to the 18th century. Nevil Johnson explains in “Opposition in the British Political System”:
“what emerged was recognition of the right of politicians in Parliament to oppose the government, to criticize it and to seek to replace it, though as yet there was no overt questioning of the royal prerogative of actually choosing a chief minister and his colleagues. In practice, however, royal discretion was even by 1784 severely limited by the need to turn to politicians capable of organizing support in Parliament. By the early nineteenth century parliamentary politics clearly took precedence over direct involvement of the monarch in the day-to-day management of public affairs, and in 1826 there occurred the first recorded use of the term ‘His Majesty’s loyal Opposition’, a phrase that quickly caught on. But it was the Tory opposition under Sir Robert Peel which in 1841 provided the first example of a party taking power after winning an election as the ‘alternative government’.”
Johnson characterized “the British conception of opposition as the institutionalization […] of a standing alternative to the government of the day” and argued that “Her Majesty’s ‘loyal Opposition’ has been institutionalized for the modern electorate as the standing possibility of an alternative government to replace the one in power.” Crucially, this role as “alternative government”, sometimes called “government in waiting”, applies whether the Her Majesty’s Loyal Opposition forms a new government in the same parliament, without an election, or when it wins the most seats in the next election and forms government in the new parliament. Her Majesty’s Loyal Opposition can therefore be characterized as a “potential government”.
Erskine May (the British equivalent of O’Brien and Bosc) describes Her Majesty’s Loyal Opposition as “the largest minority party which is prepared, in the event of the resignation of the government, to assume office.”
The Question of Convention and the Speaker’s Ruling
The Ministers of the Crown Act, 1937 finally recognised the constitutional status of Her Majesty’s Loyal Opposition and established the principle in the British House of Commons that the Speaker would decide which party would become Her Majesty’s Loyal Opposition. The Ministerial and Other Salaries Act, 1975 codifies the position of Leader of Her Majesty’s Loyal Opposition and the Speaker’s role in determining who holds that position, where necessary: “If any doubt arises as to which is or was at any material time the party in opposition to Her Majesty’s Government having the greatest numerical strength in the House of Commons, or as to who is or was at any material time the leader in that House of such a party, the question shall be decided for the purposes of this Act by the Speaker of the House of Commons, and his decision, certified in writing under his hand, shall be final and conclusive.”
The Parliament of Canada recognized in statute the Leader of the Opposition in 1905, before the other core Commonwealth countries. However, O’Brien and Bosc offer little insight into the role of Her Majesty’s Loyal Opposition as “alternative government” or “potential government.” Instead, they define Her Majesty’s Loyal Opposition as such: “By convention, the opposition party with the largest number of seats in the House is designated as the Official Opposition (and referred to as “Her Majesty’s Opposition”), although nowhere is this set down in any Canadian rule or statute.” The footnote explains that the title Her Majesty’s Loyal Opposition “emphasize[s] the notion that an opposition is loyal to the Crown.” The Bloc quebecois certainly did not meet that requirement; they advocated for the secession of Quebec from a Commonwealth realm, and an independent Quebec would certainly have become La republique quebecoise, not another Commonwealth realm.
O’Brien and Bosc suggest that the aforesaid convention that the largest opposition party becomes Her Majesty’s Loyal Opposition would only come into doubt in the event of a tie: “Should an equality of seats among the largest opposition parties occur, the Speaker may be called upon to decide which party should be designated as the Official Opposition. In 1996, when a tie occurred between the two largest opposition parties during the course of a Parliament, Speaker Parent ruled that incumbency was the determining factor and that the status quo should be maintained.”
They refer to the Speaker’s Ruling on the Official Opposition of Tuesday, 27 February 1996. At the outset of the second session of the 35th Parliament, the Bloc’s representation had fallen from 54 seats to 52; the Reform Party of Canada and the Bloc quebecois thus had the same number of seats. Speaker Gilbert Parent made his ruling by responding to the Reform Party’s submission on other parliamentary precedents. But the Reform Party’s approach presents numerous problems, because the idea of a secessionist party as Her Majesty’s Loyal Opposition is unprecedented in Westminster parliamentarism, which explains why the Reform Party grasped at such bizarre instances of Speaker’s inventions. O’Brien and Bosc say that “by convention, the opposition party with the largest number of seats in the House is designated as the Official Opposition.” The argument for a case without precedent should therefore have examined the underlying principles of the convention and explained why they needed to amend the convention. More fundamentally, why does this convention exist? What presumptions underpin this convention? I established in the earlier sections of this analysis that the convention that the largest opposition party becomes Her Majesty’s Loyal Opposition presumes that this party is a “potential government” or a “government in waiting.” The Bloc clearly did not meet this requirement. The British conventions, which Canada largely inherited, also presume the loyalty to the country of the second largest party in parliament! The British simply would never have questioned this basic presumption, because it is a mathematical impossibility that Sein Fein, or the Scottish or Welsh nationalists, would win the second largest number of seats. Indeed, even in Canada prior to the political fragmentation and realignment of the 1990s and 2000s, a secessionist or nationalist party would not become the second largest formation in parliament. The Bloc achieved this status by electoral flute and idiosyncrasy, fuelled by powerful vote splitting on the right between the Reform Party of Canada and the Progressive Conservative Party of Canada. All conventions derive their normative justification from underlying principles, so the Reformers should have asked not, “What are the precedents?” but rather, “What are the reasons for these convention, and how does the Bloc’s status of Her Majesty’s Loyal Opposition call the current convention into question?”
While the Reformers framed their approach incorrectly, Speaker Gilbert Parent made several blatantly false claims in his ruling that undermine his authority as Speaker. Parent’s most absurd claim shows that he fundamentally did not understand Canada’s constitution:
“I must respectfully differ with the hon. member. Your Speaker of the House has no role to play in the selection of a government. In our system the Speaker chooses neither the government nor the government in waiting. That prerogative belongs to the Governor General of Canada on the advice of his privy council. To put the Speaker in a position in which he would be choosing not only the official opposition but perhaps the next government based not on any objective criteria such as numbers in the House but rather on a qualitative judgment about the performance of the current official opposition party seems to me an untenable proposition. It would also be an encroachment on the royal prerogative and a violation of our long established constitutional practices [emphasis added].”
Parent implicitly acknowledged Her Majesty’s Loyal Opposition as the “government in waiting” – but the rest of his statement betrays his fundamental (and dangerous) misunderstanding of Canada’s constitution. He suggested that the Governor General chooses both Her Majesty’s Government and Her Majesty’s Loyal Opposition, but in reality, the Governor General only appoints a government that can likely command the confidence of a majority of the House of Commons. The Governor General plays no constitutional role whatever in the determination of which party becomes Her Majesty’s Loyal Opposition! Parent must not have read the Ministers of the Crown Act, 1937 or the Ministerial and other Salaries Act, 1975, both of which decree that the Speaker of the British House of Commons must act as an arbiter and make the final decision on which party becomes Her Majesty’s Opposition if necessary. That British legislation did not bind the Parliament of Canada, but it does offer an instructive and logical framework that all Westminster parliaments should follow. The designation of Official Opposition therefore either occurs automatically after the election, or the Speaker makes a ruling; the Governor General simply never intervenes into parliamentary affairs by designating Her Majesty’s Opposition. It would therefore not be “an encroachment on royal prerogative”, because the royal prerogative does not apply. If a government fell (highly unlikely in a majority parliament), then the Governor General may call upon the Leader of Her Majesty’s Loyal Opposition in order to access whether he can form a government in the same parliament. But in that instance, the Governor General would exercise the royal prerogative to appoint a new government, not the opposition. The Governor General, as a politically neutral figure and representative of the Crown, cannot intervene in partisan minutia without violating that principle of neutrality and impartiality; therefore, the Governor General’s selection of the Official Opposition would violate both current practice and the constitutional principles of responsible government. Parent’s false interpretation would also imply a direct relationship between the Governor General (or British sovereign) and the Leader of Her Majesty’s Loyal Opposition, when in fact, the Prime Minister acts as the Queen’s or Governor General’s primary constitutional adviser; no one else can fulfill this function. Furthermore, the Reformers did not ask to replace the Bloc as Official Opposition because of “a qualitative judgement about the performance of [the Bloc]”; they made the request because the Bloc never met the requirements of “Her Majesty’s Loyal Opposition.” This criticism strikes at the heart of the Bloc’s ethos and purpose, not its performance in the House of Commons. Gilbert Parent knew not of what he spoke, with respect to “long established constitutional practices.”
The Reform Party of Canada Should Have Become Her Majesty’s Loyal Opposition
Those who inherently disagree with my interpretation will probably argue something to the effect, “the Reform Party could not have formed the government in 1993”, or “the Reform Party was not a national party in 1993.” Johnson and others described Her Majesty’s Loyal Opposition as an “alternate government” or a “potential government”, and that the electorate would determine whether to replace incumbent government or not in the next election. (This reasoning presumes majority parliaments, which made sense in 1997 in the United Kingdom and conformed to the practice of post-War Britain). A “potential” government does not mean that this party automatically becomes government upon the next election: the phrase merely recognizes that of all the parties available, Her Majesty’s Loyal Opposition could most probably form the next government, if the incumbent government can no longer command the confidence of the House. The Bloc quebecois fielded candidates in only one province and therefore could never possibly have formed government; since the party sought above all (at least in the 35th Parliament) the secession of Quebec from the Canadian federation, it also could never have morally formed government. The Reform Party of Canada ran candidates across the country and returned elected MPs from five provinces in 1993. That the Reform Party did not succeed in returning MPs from every province does not disqualify it from “potential government”. In the 35th Parliament, the Reform Party of Canada met the criteria for “potential government” better than of the other three opposition parties – the Bloc quebecois, the rump of the Progressive Conservatives, and the New Democrats – and at the time was best poised to form the next government.
The Progressive Party won the second largest number of seats in the 14th Parliament but, as a protest party, refused to act as Her Majesty’s Loyal Opposition. If all other conventional and institutional checks failed, Bouchard should have demonstrated the same moral consistency as the Progressives by refusing to take on a role that the Bloc could not fulfill. Perhaps he took on the role in order to make a mockery of the system and demonstrate its inefficacy and failures to Quebeckers, for the sheer irony. If so, he certainly succeeded in making a mockery of Her Majesty’s Loyal Opposition by repudiating the principle of loyalty. Johnson described the British Parliament after the election of 1997 and Labour’s landslide victory, but it aptly describes the Canadian opposition from the 35th Parliament onward: “Understandably some of the doubts about the traditional practice of opposition are expressed most vigorously by the smaller minority parties which oppose, but do not aspire to be the official opposition, or like the Liberal Democrats are perennially unable to realize their dream of becoming the official opposition and, therefore, a potential government.” This means that official opposition normally acts as a prerequisite to forming a government.
I attribute the lack of critical thinking on determining the official opposition to a misplaced political correctness which dictates that any criticism of the Bloc quebecois attacks its legitimacy as a party in parliament (when in this case, the issue arises over its status as Official Opposition, not its standing in parliament), or attacks Quebeckers writ large; it also speaks to the fear of re-evaluating conventions, or perhaps a widespread misunderstanding of the purpose of convention. In light of the inherently flawed and incorrect Speaker’s ruling of 1996 and the British method, the parliament should amend the Parliament of Canada Act by codifying the principle that the Speaker shall be called upon to determine which party becomes Her Majesty’s Loyal Opposition when necessary, as in the British Parliament. More fundamentally, however, we must always check the convention against the principle that it represents and from which it is derived. When the convention no longer matches the principle (in this case, loyalty), the convention must be re-evaluated and modified. To pretend otherwise is to betray the principles of Westminster parliamentarism.