Speaker's Ruling – Point of Order by Senator Carignan on the Government Deputy Leader and Government Whip in the Senate

Honourable senators,

I am ready to rule of on the point of order raised by Senator Carignan, the Leader of the Opposition, on May 3. The senator questioned the role and function of Senator Bellemare as the Legislative Deputy to the Government Representative as well as that of Senator Mitchell as the Government Liaison. Neither of these positions is recognized in the Rules of the Senate. Further, he asked whether these two senators would be entitled to the additional remuneration provided for the Government Deputy Leader and the Government Whip under the Parliament of Canada Act.

The point of order gave rise to comments from several others senators, including Senator Harder, who stated that Senator Bellemare and Senator Mitchell were the Government Deputy Leader and the Government Whip respectively. He explained that they are to be styled the Legislative Deputy and the Government Liaison in accordance with the Government’s preference, in order to emphasize a non-partisan, independent approach to their functions, similar to his own as the Government Representative. After hearing the arguments I reserved my decision, although I did agree to hear additional points the following day from Senator Carignan, Senator Bellemare and Senator Fraser. Subsequently, in addition to considering the issues raised by honourable senators, I conducted my own research to better understand the issues relevant to this point of order.

Let me begin by quoting the letter I received from Senator Harder, to which he made reference during his interventions on the point of order:

The Honourable Senator Diane Bellemare will serve as the Deputy Leader of the Government in the Senate. In keeping with the non-aligned, independent model announced by the government, the position of Deputy Leader of the Government will be styled “Legislative Deputy to the Government Representative”.

Similarly, the Honourable Senator Grant Mitchell will serve as Government Whip to be styled “Government Liaison”. This reflects his role in supporting the Government’s Representative in facilitating the passing of government legislation and contributing to the effective functioning of the Senate in a non-partisan and open way.

Copies of this letter were sent to the Leader of the Opposition, the Leader of the Senate Independent Liberals, Senator Bellemare, Senator Mitchell and the Clerk.

This letter, like Senator Harder’s intervention on May 3, confirms that Senator Bellemare is the Deputy Leader of the Government, while Senator Mitchell is the Government Whip. Their remuneration is one that flows from this fact under the Parliament of Canada Act and requires no further comment.

The ways in which the incumbents of the government leadership positions are appointed have varied over time. Based on past practices, it is perfectly appropriate for the Government Representative to designate the occupants of these positions, with whom he will work extremely closely. I also note that past practices provide freedom to each leadership group to work out how it will divide the various roles for which it is responsible. The language at the start of Appendix I of the Rules makes clear that the definitions it contains are not rigidly constraining, but adaptable as circumstances and context require.

The real question at issue in this point of order is, therefore, how these senators can be styled.

In considering this issue it is helpful to take account of a range of past experiences that demonstrate that formal titles need not be rigidly binding. Some reasonable level of flexibility as to how positions are designated in practice can be accepted.

A first illustration of this is to be found in the title of the Usher of the Black Rod. For centuries, the title had been “Gentleman Usher of the Black Rod.” When the first woman was appointed to the position in the Senate in 1997, the executive changed the title to “Usher of the Senate.” Subsequently, the Senate decided, through the adoption of a report of the Rules Committee, that the position should be referred to as “Usher of the Black Rod,” which has been the title employed since then. The process of modernizing the title was started by government action, despite hundreds of years of precedent, and was characterized by a high degree of sensitivity to changing societal realities and a level of adaptability that gave a good result.

Flexibility also characterizes the designations used by many senators from outside Quebec. For that province, senators must be appointed for specific defined geographical areas. Elsewhere, senators are appointed for the entire province or territory. Despite this fact, we have a long standing-practice of allowing senators to adopt a designation indicating that they are focused on a specific area – perhaps their residence or an area of personal significance and meaning. Some of these designations can get quite specific indeed, as when our retired colleague Senator Stollery used the designation of “Bloor and Yonge.” To take some examples among current senators, Senator Munson’s commission states that when appointed he was “Of Ottawa, in the Province of Ontario,” but he has chosen the specific designation of “Ottawa/Rideau Canal” within the province. Although Senator Plett’s commission does read “of Landmark, in the Province of Manitoba,” and his designation is also “Landmark,” that is because he has made that choice. If he had not done so, he would not have a specific designation. Let me also note that senators may change these designations as they wish, a fact best illustrated by looking at Senator Cools’ case over her many years of contribution to this institution. Her commission states that she was a resident “Of the City of Toronto, in the Province of Ontario” at the time of her appointment. Her current designation is “Toronto Centre-York.” Once again, this demonstrates adaptability, within reasonable limits.
 
Another example of this capacity to adjust is found in our practices surrounding political affiliations. Senators have, within limits, been allowed to determine their own affiliation. This practice has been accepted, as it does not have a direct impact on proceedings. For example, our colleague Senator McCoy initially adopted the designation “Progressive Conservative,” when appointed, although that was no longer a recognized party in the Senate, before becoming “Independent Progressive Conservative,” and now using the designation “Independent.” Although details of practices relating to political affiliation have evolved over time, the basic principle remains that the Senate has shown a level of flexibility to accommodate senators’ reasonable wishes. This can be particularly important at times that the political landscape is evolving at a pace that exceeds the institution’s capacity to make formal changes. A level of accommodation is required to take account of this fact.

Let me also note the history of the position of Speaker pro tempore. The Constitution Act, 1867, does not provide for a deputy speaker of the Senate, unlike the situation in the House of Commons. To accommodate occasional absences of the Speaker, Parliament in 1894 passed legislation enabling the Senate to select a senator to preside when the Speaker was absent. To remove doubts about the validity of this law, the British Parliament then passed a statute in 1895. Almost one hundred years later, in 1982, when the possibility of establishing a Deputy Speaker was under consideration, the Legal and Constitutional Affairs Committee determined that the proper creation of the office would require legislation, which it did not think should be pursued at that time. While the committee acknowledged that it was beyond the authority of the Senate itself to formally establish the office of deputy speaker, it determined that the Senate could create a sessional position of a senator to replace the Speaker. This was the basis of the position of Speaker pro tempore, who takes the chair when the Speaker is absent. This idea was accepted by the Senate, and it was only later incorporated into law. Once again, a flexible approach was adopted to deal with an issue in a creative way that has served us very well.

These examples from the Senate show how a reasonable and adaptable approach can be acceptable, and can serve the institution well. If we look outside our house, I would remind honourable senators that, for a number of years after 1993, the Reform Party in the House of Commons used the term “caucus coordinator” rather than whip. As one of these coordinators, Mr. Chuck Strahl, explained in September 19, 2001, “[t]his was an attempt to try to describe the role given to that position, which is to co-ordinate the activities of the group.” He went on to state that “[t]he standing orders are completely silent on the term caucus co-ordinator. It does not exist in the Parliament of Canada Act as far as the extra salary to a caucus co-ordinator. It does not exist that the caucus co-ordinator meets with other caucus co-ordinators. It talks about whips because it is the tradition of the House to call them whips.” The House of Commons functioned during this period with a term being used that was not in its Standing Orders.

Stepping outside the parliamentary realm, honourable senators will know that, despite the fact that particular statutes make provision for specific ministerial offices, there has always been some level of flexibility as to how the individual occupying a particular post will be designated in practice. I refer, for example, to the appointment of the Honourable Anne McLellan as Solicitor General in 2003 styled as Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness. Her designation as Minister of Public Safety and Emergency Preparedness instead of Solicitor General came in advance of Parliament deciding to abolish the office of the Solicitor General and to the establishment of the position of Minister of Public Safety and Emergency Preparedness. More recently, the current Minister of Indian Affairs and Northern Development is styled Minister of Indigenous and Northern Affairs. Once again reasonable adaptations to formal provisions are allowed in practice.

Taken together, these examples indicate that formal requirements need not always be rigidly binding. There can, within reason, be a level of adaptability that takes account of specific circumstances. Indeed the Senate has shown such flexibility in the past, and continues to do so. We have benefited from this.

In the days since this point of order was raised, Senator Harder has been addressed as both the Government Leader and the Government Representative. Under either title, no one was in any doubt who senators were speaking to. They were speaking to Senator Harder. I expect that the same will apply to Senator Bellemare in her capacity as Legislative Deputy to the Government Representative, formally the Deputy Leader of the Government in the Senate, and Senator Mitchell as Government Liaison or Government Whip. Proceedings have not been indecorous or disorderly. The examples outlined above show that flexibility on such points can be reasonably understood as being in keeping with our parliamentary tradition and practice. As such, I am satisfied that the use of titles other than those formally established under the Rules, is, within reasonable limits, acceptable.

This leads to the conclusion that there is no point of order. That being said, I do recognize that there is a risk of such a reasonable approach being carried to an extreme. As such, it might be desirable for the Standing Committee on Rules, Procedures and the Rights of Parliament to review the entire issue and recommend more detailed guidelines and practices to the Senate