When I first wrote this entry three years ago, a friend had asked me which party would become Her Majesty’s Loyal Opposition, or Official Opposition, in the House of Assembly of Newfoundland and Labrador if the two opposition parties won precisely the same number of seats in that province’s last general election in 2011. At the time, the Liberals edged out the New Democrats by one seat in order to become the Official Opposition, and the Progressive Conservatives easily won another majority.
As of December 2014, the Legislature of Alberta now finds itself in the same situation. Since Danielle Smith and several of her colleagues have crossed the floor in an unprecedented example of crass self-interest, the remant of the Wildrose Party now has the same number of seats as the Alberta Liberals, and Raj Sherman, leader of the Alberta Liberals, has asked the Speaker to recognize his party as the new Official Opposition.
As the federal and provincial examples below show, incumbency has generally been the deciding factor — except (of course) in the Province of Alberta! But the precedents are mixed because the circumstances of each case were unique. Furthermore, this case is unprecedented and thus whatever decision that the Speaker of the Legislative Assembly of Alberta makes warrants its own distinct rationale, not a rote rendering of the stare decisis doctrine.
I wrote about Speaker Parent’s Official Opposition Ruling in the 35th Parliament in preparation for an article on the history and evolution of loyal opposition in the Westminster system. While I think that Speaker Parent made the wrong decision for the wrong reasons, he mentioned similar cases in Alberta and New Brunswick in which the Speakers of their respective legislatures had to rule on which parties assumed the role of Official Opposition in the event of ties.
“An equality of seats in the two largest opposition parties should neither deny the members of the Bloc Quebecois their position today as the official opposition nor prevent them from choosing from among their members the leader of the official opposition. Thus the Bloc Quebecois will currently retain its status as the official opposition until a further review of this status is warranted.”
This case came from the 2nd session of the 35th Parliament (elected in 1993), in which Quebeckers elected 54 MPs from the Bloc quebecois, and Westerners elected 52 MPs from the Reform Party. The Bloc quebecois became the Official Opposition — and, in this case, ironically could have been called “Her Majesty’s Loyal Opposition” even though most of those Bloc MPs were anti-monarchists and all of them wanted Quebec to secede from Canada.
By the time that the 2nd session of the 35th Parliament began in 1996, two MPs from the Bloc quebecois had resigned, which meant that the Reform Party and Bloc quebecois each had 52 MPs. In this instance, Gilbert Parent issued a Speaker’s Ruling at the request of the Reform Party and declared incumbency the decisive factor, and thus that the Bloc quebecois would retain its role as the Official Opposition. Presumably, if the Bloc had lost three members, then the Reform Party would have become the Official Opposition.
The Legislative Assembly and Executive Council Act of Saskatchewan defines the Official Opposition as such:
‘Leader of the Opposition’ means the member who is designated by the opposition caucus as its leader and who is recognized as leader of the opposition caucus by the Speaker.
Section 63 of the Legislative Assembly and Executive Council Act, shown below, prescribes how the Speaker must recognize a leader of the opposition and means that if two parties in opposition had an equal number of seats, then the two parties would somehow alternate as Official Opposition and their respective leaders would receive the same salaries:
(2) If there is an equality of membership between the two largest caucuses sitting in the Legislative Assembly in opposition to the Government: (a) the salaries provided for by sections 59 and 61 must be added together; and (b) the total derived pursuant to clause (a) must be divided equally between the respective leaders of those caucuses.
The Legislature of Saskatchewan decided to codify this arrangement in law, and thus reduce the discretion of the Speaker, because of a specific incident. Over the course of the 18th Legislature, two Liberal MLAs switched allegiance to the Conservative party, also in opposition, and the Conservatives won two by-elections. After gaining four members, the Liberals and Conservatives held an equal number of seats from 24 June 1977 to the dissolution of the legislature on 19 September 1978. The leader of the Liberal Party, Edward Malone, and the leader of the Conservative Party, Richard Collver, in effect both became the Leaders of the Official Opposition.
In 1983, the New Democrats had two seats in the assembly, and there were also two independents in the assembly. The Speaker of the Legislative Assembly of Alberta ruled on which would be recognized as Her Majesty’s Loyal Opposition.
Speaker Amerongen ruled that the assembly would recognize the New Democrats as the Official Opposition because they had won a greater share of the popular vote than the two independent MLAs. In short, he made the right decision, but for the wrong reasons. An electoral political party, even if it does not meet the minimum threshold to be recognized as a parliamentary party, should take precedence over a collection of independent MLAs. In addition, extra-parliamentary considerations like percentage of popular vote should not enter into a parliamentary decision.
“No precedent or rule has been discovered or given to me where the designation of an Office Opposition has been based on circumstances outside a parliament. However, given the need to make such a decision, it does seem advisable that if factors within these four walls do not provide a solution, one must go outside for an answer based on well-known facts.”
The Speaker also rejected incumbency as the deciding factor: “However, no precedent shows that incumbency or continuity has been the deciding factor, or any real factor at all, in recognizing an opposition leader.” In 1983, it was true that no Canadian precedent hinged upon incumbency. But the Speakers of the Legislative Assemblies of New Brunswick and Yukon and of the House of Commons have since ruled that the incumbent party in Official Opposition would retain its status if party standings change in the life of a parliament and produce a tie.
In December 1994, Speaker Dysart had to issue a ruling in New Brunswick after the Confederation of Regions Party had lost members and tied with the Conservative Party at 6 members each mid-way through the life of the parliament, similar to the circumstances under which Speaker Parent made his ruling in the 35th Parliament.
“Speaker Dysart noted that an organized group of MPs or MLAs (i.e. a party) will receive the nod over a loose collection of independents of the same number. Party status counts because it implies an ability to fulfill the expected role of the official opposition.”
Like Parent, Dysart ruled in favour of the Confederation of Regions Party because of its incumbency. In addition, Dysart adopted the reasoning that should have compelled Speaker Amerongen to rule in favour of the New Democrats in 1983: that a political party should take precedence over a collection of unorganized independents.
The Speaker of the Yukon Legislative Assembly had to make a similar ruling on December 9, 1996, but unlike the Canadian and New Brunswick cases, he had to issue his decision directly when the new legislature first sat rather than mid-way through its lifespan.
The Yukon Party and the Liberal Party each won 3 seats in the general election, and the Speaker could not, in this case, rely on incumbency within the life of this same legislature. However, the Speaker did base his rationale on a principle related to incumbency:
“The Chair, then, has determined to make a decision in this matter which reflects the spirit and intent of the House of Commons’ reliance on incumbency as a deciding factor. It is the Chair’s judgment that that spirit and intent is best satisfied by selecting an opposition party caucus which formed the government prior to an election to be the Official Opposition over an opposition party caucus that was a third party in the House prior to the election. That means that the Yukon Party Caucus will be the Official Opposition and that the Member for Porter Creek North will be the Leader of the Official Opposition.”
Conclusion: Alberta in 2014
The ruling from Yukon has no bearing on the current situation in Alberta, because the current iteration of the Alberta Liberals has never formed Government in Alberta, and the previous iteration of the Liberal Party has not formed Government in Alberta since 1921. In other words, the Speaker of the Legislative Assembly of Alberta could not rule on which party shall be recognized as the Official Opposition based on which party had last formed government because neither the Alberta Liberals nor the Wildrose Party have ever formed government in Alberta. In addition, this tie in number of seats between two opposition parties came about during the life of the parliament and not at its beginning.
The previous Speaker’s ruling from Alberta provides a poor precedent for this case as well because it springs from a faulty rationale that the percentage of the popular vote that a party earned should somehow determine whether or not the assembly would recognize it as the Official Opposition if it were tied in standing with another opposition party. Under Speaker Amerongen’s logic from 1983, the Wildrose Party would retain its status as Official Opposition simply because it won a higher percentage of the popular vote in the last general provincial election in 2012.
Under Speaker Parent’s and Speaker Dysart’s rationale, the Wildrose Party would retain its status as the Official Opposition based purely on incumbency and inertia.
But in this instance, Speaker Gene Zwozdesky faces a political situation unprecedented in Canadian history – perhaps even in the history of all the Commonwealth Realms. The Wildrose Party and the Alberta Liberals find themselves tied in number of seats not because of some fluke of by-election victories or deaths of sitting MLAs, but because the Leader of the Opposition, along with several of her colleagues, decided to abdicate her duty, cross the floor, and join the government caucus and cabinet. In a situation without precedent, we should base our decisions not on the stare decisis doctrine but on basic constitutional principles. The Official Opposition is supposed to act as an alternative government and hold the government to account. Smith decided that she could no longer perform the first duty, but she could – and should – have continued to uphold the second. If she could not have upheld the second, then she should simply have resigned as Leader of the Wildrose Party and perhaps even as an MLA. All governments require a legitimate and able opposition to keep them honest and force them to provide an account of their decisions to parliament and to the people. Alberta in particular needs an effective political opposition because this jurisdiction functions as a one-party state – and as in all one-party states, the Government Party and the State become one and the same, and the potential for boundless corruption springs forth.
The leader of the Alberta Liberals, Raj Sherman, has petitioned the Speaker of the Legislative Assembly of Alberta to recognize his party as the Official Opposition now that the Alberta Liberals have the same number of MLAs of the remnant of the Wildrose Party.
Given that Smith has implored the remnant of Wildrose to cross the floor and join the Alberta PCs and the Prentice Government, it is possible that the Alberta Liberals will soon form the largest bloc in opposition anyway. But even if the party standings remain stable, the Alberta Liberals merit the duty more than the Wildrose remnant.
Frankly, Sherman deserves this distinction, and the Speaker should rule in his favour. Danielle Smith has all but destroyed the Wildrose Party as a credible alternative government and has stated in no uncertain terms that she no longer wanted to hold the Government to account – instead, she wanted to join the Prentice Government and will soon collect her coveted seat in his cabinet.