Sede vacante
The Moral Panic Over Ontario’s Invocation of the Notwithstanding Clause Breaks the Rules of the House of Commons
The moral panic over the Notwithstanding Clause escaped containment in Toronto and spread to Ottawa on 2 November 2022. The federal House of Commons devoted several minutes of Question Period to the Government of Ontario’s decision to invoke the Notwithstanding Clause pre-emptively in the Keeping Students in School Act. The Premier of Ontario and the Minister of Education of Ontario do not sit as MPs in the federal House of Commons, so they therefore cannot answer questions in the House of Commons but only in the Legislative Assembly of Ontario.
Frankly, this entire line of questioning should not have happened, and Peter Milliken and Andrew Scheer would not have allowed it to happen during their tenures as Speaker of the House of Commons. The current Speaker of the House of Commons has broken decades of precedent in allowing MPs to ask questions of federal Ministers of the Crown that fall entirely outside the scope of their administrative responsibilities, wasting a good proportion of Question Period on 2 November with this over-heated rhetoric about a provincial issue.
A Line of Questioning That Should Never Have Happened
Even the notation in Hansard for 2 November 2022 obfuscates the whole debate. The House of Commons clerks categorised the inadmissible questions on a provincial government’s decision to use the Notwithstanding Clause under the heading of “Labour” – but the clerks did not mention that the questions pertained to Ontario’s labour code and not Canada’s. Ontario’s Keeping Students in School Act pertains to education, an obvious provincial jurisdiction under section 93 of the Constitution Act, 1867.
Jagmeet Singh, leader of the New Democratic Party, asked what essentially amounts to a planted question for the Prime Minister:
Mr. Speaker, Premier Ford has just attacked workers, and not just any workers, but some of the lowest-paid education workers in the classroom. He knows that he is violating their charter rights. That is why he pre-emptively used the notwithstanding clause.
I have heard the Prime Minister‘s outrage, but that is simply not good enough. We know the Conservative leader and his party are not going to stand up for workers, but will the Prime Minister say today in this chamber what he is going to do concretely to stand up for workers and protect their charter rights?[1]
Prime Minister Trudeau replied:
Mr. Speaker, using the notwithstanding clause pre-emptively to suspend workers’ rights is wrong. To invoke the notwithstanding clause in a way that denies Canadians the right to collective bargaining before that bargaining has even reached an impasse is wrong. The clause must only be used in the most exceptional of circumstances.
Like the leader of the NDP, I call on the leader of the Conservative Party of Canada, who supposedly stands for rights and freedoms, to condemn the pre-emptive use of the notwithstanding clause to suspend people’s fundamental rights and freedoms.[2]
The Speaker then intervened shortly after this exchange, but not in the way that he ought to have done. He should have stood up immediately after Singh posed his question and declared it invalid because it does not fall under the administrative responsibility of the Government of Canada. Instead, he only intervened to call for general order and quiet in the chamber before turning the floor to the Prime Minister.
Former British Speaker John Bercow would have both ruled the question inadmissible and admonished Singh in that amusingly caustic manner than only Britons can truly pull off, perhaps like:
“Orrrddaaaa! We’ll have to leave it there.
If the member wishes to question the decisions of the Government of Ontario, then perhaps he should return to his previous job as a Member of Provincial Parliament for Ontario. But while he is a Member of the House of Commons, he shall limit his questions to matters within the administrative responsibility of Ministers of the Crown of Canad”
The British House of Commons maintains the same rule that members must ask ministers questions within their administrative responsibilities. A reader just pointed out this amusing example to me where the venerable Betty Boothroyd during her tenure as Speaker of the British House of Commons gleefully ruled out of order a planted question from a Conservative backbencher John Townend who asked Prime Minister John Major to comment on the latest Labour Party Conference. As Boothroyd said:
Oooorraaaa! Orrrddaaa! I must hear the question. The Honourable Member is asking about government policy, is that right? […] No, no! The Honourable Member knows that the Prime Minister is responsible only for government policy, not for any other body’s policy. […]
Orrrdaa! Orda. The Honourable Gentlemen has been here long enough to know the rules. We’re going to pass on. If that’s the best he can do, I’m having Mr. Ashdown!
The Rule: MPs Must Ask Questions on the Administrative Responsibility of Ministers
House of Commons Procedure and Practice states clearly that the House of Commons holds the prime minister and ministers to account for their actions and decisions:
“While there may be other purposes and ambitions involved in Question Period, its primary purpose must be the seeking of information from the government and calling the government to account for its actions.”
Consequently, it follows that members must ask questions “within the administrative responsibility of the government or of the individual Minister addressed.” This is not complicated.
By definition, any decision that a premier or minister of a province or territory makes falls well outside the administrative responsibility of the federal prime minister or a federal minister – to the other order of government, no less. Therefore, the entire line of questioning on how the Government of Ontario decided to invoke the Notwithstanding Clause in a bill which the Parliament of Ontario enacted on 3 November does not belong in the Question Period of the House of Commons.
A Clear Chain of Well-Articulated Precedents
House of Commons Procedure and Practice, 3rd Edition also cites a series of precedents from 1996 to 2014 that reinforce this basic – and, frankly, obviously logical – principle that members must ask questions within the administrative responsibility of the prime minister and cabinet. Speakers Gilbert Parent (Liberal), Peter Milliken (Liberal), and Andrew Scheer (Conservative) all consistently upheld and reiterated this rule over the course of two decades.
On 17 March 2000, Speaker Parent ruled two questions from opposition MPs out of order in quick succession. Progressive Conservative MP John Herron asked the Minister of Industry about a resolution that the Liberal Party adopted at its recent policy convention, which Speaker Parent ruled out of order because it did not pertain to a decision made by the Minister of Industry as a Minister of the Crown.
The Speaker: I cannot find a connection here to the administrative responsibility of the government. This has to do with a convention. I see the hon. Minister of Industry rising to his feet. I judge this question to be out of order. If he wishes to answer it, he may.[3]
Parent a few minutes later then ruled out of order questions posed by Reform MP Philip Mayfair to Jane Stewart, Minister of Human Resources:
The Speaker: I listen to the preamble to the question and then I listen to the formulation of the question. If it deals with the administrative responsibilities of the government then I allow it, but I understood the question to be about the Liberal Party and, as such, I ruled it out of order. My decision stands. [4]
On D-Day in 2006, Speaker Milliken shot down Liberal MP Mark Holland for asking questions outside the administrative responsibility of ministers.
Mr. Mark Holland: Mr. Speaker, there have been allegations of both fraud and corruption and the question is very simple. When will the Prime Minister call in the RCMP to deal with these questions? Would the Prime Minister tell the House if these are common fundraising practices within the Conservative Party and its predecessors?
The Speaker: I have grave reservations about the propriety of that question. It sounded to me as though it has something to do with the hon. member’s dealings with the House of Commons. Why this would be the administrative responsibility of the government is beyond me. I may have missed it. However, if the hon. member has a supplementary question that is in order, I will hear it.
Mr. Mark Holland (Ajax—Pickering, Lib.): Mr. Speaker, reports today also stated that staff for the Calgary West MP were drawing salaries for working on a campaign for the Prime Minister.
Some hon. members: Oh, oh!
The Speaker: I think we will move on. I do not believe the dealings of hon. members with the House of Commons have anything to do with the administrative responsibility of the government. If the hon. member wants to ask a question directly without the preambles I will hear it but I have grave reservations of where this is going from what I am hearing.[5]
Finally, after another page of these exchanges, Milliken grew exasperated with these wayward MPs all around and reiterated his earlier ruling:
The Speaker: Order, please. I have already explained that questions on an hon. member’s expenses having to do with House administration are not the responsibility of the government in this House. This is quite clear, as I already said. In my opinion, the question is out of order.[6]
On 25 October 2007, Milliken ruled against Liberal MP Wayne Easter for the same reason:
Hon. Wayne Easter (Malpeque, Lib.): Mr. Speaker, when will the Prime Minister answer for the C onservative Party’s in and out financing scheme that broke the Elections Act? Three investigations and still no word from the Prime Minister.
In the riding of Malpeque, $8,000 was ill-gotten by this in and out scheme. Was my opponent, George Noble, informed by the Prime Minister’s inner circle of this scheme to abuse election spending? Malpeque constituents do not take kindly to this intentional, illegal scheme by the national Conservative Party. Will the Prime Minister at least stand in his place and apologize to Canadians for this illegal spending?
The Speaker: I could not hear the first part of the question the hon. member asked. I am not sure that the question concerns the administrative responsibility of the government but, as I say, I could not hear the first part. In the circumstances, we will move on.[7]
Wayne Easter protested Milliken’s intervention in the debates later that same day, but Milliken refused to back down.
Hon. Wayne Easter (Malpeque, Lib.): Mr. Speaker, I rise on a point of order. I do believe you erred in not allowing the question. The question went directly to the issue of ensuring that Canadian laws are abided by and I believe there is no more important law than having prime ministerial assurances that the very spending requirements in an election are in fact met.
Over the past number of days there have been questions by many members in this House about the in and out scheme of the Conservative Party. We have not had a response from the Prime Minister to that question. It goes right to the heart of democracy itself. I believe you should have allowed the question.
The Speaker: I am more than happy to review the question that was asked, but from what the hon. member just said, it sounded to me very questionable whether the question was in order if it dealt with the election expenditures of a party. It has to deal with the administrative responsibility of the government. The government is not responsible for administering the rules relating to election expenses; Elections Canada is. It is an independent agency that does not report to the House through the government. It reports to the House through the Speaker. It is difficult for the hon. member to ask questions about Elections Canada to the government, unless it is government policy as coming.[8]
As with Parent’s ruling with respect to a question on the Liberal Party’s policy convention in 2000, Milliken argued that Easter’s questions about expenses by the Conservative Party in an election did not pertain to a Minister’s administrative responsibilities as a Minister of the Crown. Milliken also protected and reinforced the independence of Elections Canada, a non-partisan agency which reports to him, the Speaker, and not through a Minister. Ministers are only responsible for legislation which Elections Canada administers, like the Canada Elections Act and the Electoral Boundaries Readjustment Act.
On 17 November 2010, Speaker Milliken quickly intervened to slap down Steven Blaney, a Conservative MP and then the Minister of Public Saftey, for his unwarranted personal attack on a Bloc MP.
Mr. Steven Blaney (Lévis—Bellechasse, CPC): Mr. Speaker, when the Bloc member for Marc-Aurèle-Fortin was Quebec’s justice minister, he used his own Law 86 to force police to report illegal activities. Apparently this principle did not apply to him for 17 years. His irresponsible and reckless behaviour clearly makes him unfit to carry out his duties as justice critic.
Now that the Bloc leader has returned from his European vacation on a salary paid by Canadian taxpayers, will he force the member to resign immediately, and can the Parliamentary Secretary to the Minister of Public Works and Government Services and to the Minister of National Revenue tell us what our government is doing to fight corruption?
The Speaker: The question is unacceptable. This does not concern the government’s roles or responsibilities.[9]
On 29 November 2011, Andrew Scheer ruled the planted question of Conservative MP John Williamson out of order because he had asked a Minister to comment on the conduct of another MP.
Mr. John Williamson (New Brunswick Southwest, CPC): Mr. Speaker, Canadians gave our government a strong mandate to end the wasteful and ineffective long gun registry once and for all. That is exactly what we are going to do. However, today the members from Western Arctic and Skeena—Bulkley Valley caved to pressure from their big city elite union bosses and showed up at the public safety committee to attempt to gut our legislation. Could the Minister of Public Safety please comment on the action of these two members of Parliament?
The Speaker: I am afraid that question has nothing to do with the administration of government. We will go on to the hon. member for Vancouver Quadra.[10]
Finally, on 28 January 2014, Speaker Scheer delivered a comprehensive and magisterial ruling on the conduct of Question Period and why MPs must only ask questions that pertain to the administrative responsibility of Ministers. It takes up four pages in Hansard, so I shall only quote from the most salient paragraphs.
The main purpose of question period is undoubtedly the opportunity it provides to the legislative branch to seek information from the executive and to hold the government to account. This opportunity is particularly important for the opposition parties. We all recognize that the opposition has the right and, indeed the duty, to question the conduct of the government, and every effort must be made in the enforcement of our rules to safeguard that right. But the government can only be held to account for matters that fall within its administrative responsibilities. […]
But the Speaker must adhere to the longstanding principle that question period is intended to hold the government to account. I have to look at whether the matter concerns a government department, or a minister who is exercising ministerial functions, as a minister of the Crown, and not just as a political figure or as a member of a political party. The Speaker must ask whether the question was actually touching upon those types of government responsibilities, or whether it was about elections or party finances or some other subject unrelated to the actual administrative responsibilities of the government. […]
In conclusion, I will continue to rule questions out of order that do not establish a direct link to the administrative responsibilities of the government. In the same sense, so-called hybrid questions will also continue to risk being ruled out of order when this link is not quickly demonstrated. Members should take care when formulating their questions and establish this link as soon as possible in posing their questions to ensure that the Chair does not rule what may be a legitimate question out of order.[11]
Conclusion
Falling standards of decorum and debate have afflicted both the British and Canadian Houses of Commons over the last couple of years, perhaps reflecting a post-pandemic malaise. I noted in January 2022 that the new Speaker of the British House of Commons, Sir Lindsay Hoyle, has consistently refused to enforce the rule that members must only address the Speaker and therefore can only refer, in the third person, to other members of the House of Commons. Anytime an MP says “you,” he talks to the Speaker, not a member opposite. He also allows MPs to utter the vocative and the imperative (implied second-person constructions) unchecked in every Prime Minister’s Questions.
And here in Canada, the Speaker allowed the Commons to get caught up in rows from a provincial legislature and refuses to enforce the well-established, thoroughly logical, and necessary rule that MPs can only ask questions that pertain to the administrative responsibilities of the prime minister and cabinet.
Perhaps an MP could raise a point of order with the Speaker and point out that the exchange over the Government of Ontario’s decision to invoke the Notwithstanding Clause should never have occurred in the House of Commons. If the Speaker ruled in any way over than acknowledging that the debate was out of order, then he would defenestrate decades of good precedents.
Similar Posts:
- The Notwithstanding Clause Strikes Again! (November 2022)
- Orrrrrrddaaaaa! Speaking in the Second Person (January 2022)
- Lawyers Despise the Notwithstanding Clause – Which Shows Why It is Good (September 2018)
- Some Parts of the Constitution Are More Constitutional Than Others (September 2018)
Notes
[1] Jagmeet Singh, “Oral Questions,” in House of Commons Debates, 44th Parliament, 1st Session, volume 151, no. 123, Wednesday, 2 November 2022, at page 9209.
[2] Justin Trudeau (Prime Minister), “Oral Questions,” in House of Commons Debates, 44th Parliament, 1st Session, volume 151, no. 123, Wednesday, 2 November 2022, at page 9209.
[3] Gilbert Parent (Speaker), “Liberal Party of Canada,” in House of Commons Debates, 36th Parliament, 2nd Session, volume 136, no. 066, Friday, 17 March 2000, at page 4824.
[4] Gilbert Parent (Speaker), “Point of Order,” in House of Commons Debates, 36th Parliament, 2nd Session, volume 136, no. 066, Friday, 17 March 2000, at page 4825.
[5] Peter Milliken (Speaker), “Member for Calgary West,” in House of Commons Debates, 39th Parliament, 1st Session, volume 141, number 034, Tuesday, 6 June 2006, at page 2021.
[6] Peter Milliken (Speaker), “Member for Calgary West,” in House of Commons Debates, 39th Parliament, 1st Session, volume 141, number 034, Tuesday, 6 June 2006, at page 2022.
[7] Peter Milliken (Speaker), “Elections Canada,” in House of Commons Debates, 39th Parliament, 1st Session, volume 142, number 005, Monday, 22 October 2007, at page 205.
[8] Peter Milliken (Speaker), “Point of Order: Oral Questions,” in House of Commons Debates, 39th Parliament, 1st Session, volume 142, number 005, Monday, 22 October 2007, at page 209.
[9] Peter Milliken (Speaker), “Member for Marc-Aurele-Fortin,” in House of Commons Debates, 40th Parliament, 3rd Session, volume 145, number 098, Wednesday, 17 November 2010, at page 6063.
[10] Andrew Scheer (Speaker), “Firearms Registry,” in House of Commons Debates, 41st Parliament, 1st Session, volume 146, number 056, Tuesday, 29 November 2011, at page 3741.
[11] Andrew Scheer (Speaker), “Oral Questions – Speaker’s Ruling,” in House of Commons Debates, 41st Parliament, 2nd Session, volume 147, number 036, Tuesday, 28 January 2014, at pages 2203, 2205.
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