The voters in British Columbia did their work, now legislators must do theirs

This op-ed was originally published in the Vancouver Sun on June 19, 2017

BC’s stunningly close election result has pulled an arcane debate about parliamentary precedent into the public eye, and the whole country is watching for what will happen next. British Columbians are anxious about whether an NDP government will even have a chance to prove it can work, or whether a deadlock will create uncertainty, or worse, another election. For all the hand-wringing and hair-splitting, the answer is simpler than many pundit think – yes, the NDP government can govern, and parliamentary rules and conventions enable a way forward.

The legislature must elect a Speaker right away. That position comes with a range of responsibilities: to preserve order and civility within the legislature and be its ceremonial representative, to referee points of procedure, and—when the other 86 members divide equally—to break ties by casting the 87th vote.

While they are under no obligation to do so, I have suggested elsewhere that the Liberals should allow one of their own to stand as Speaker, given the needs of this important moment and the choice that British Columbians have made at the polls. If the BC Liberals refuse, en masse, to offer any candidates, however, a Speaker will have to be elected from the NDP or Greens. Since the Speaker doesn’t vote unless there is a tie, this would appear to trim the razor-thin NDP-Green majority from a one vote margin to nothing.

In theory, every vote along party lines would end in a tie—43 to 43—forcing the Speaker to cast the tie-breaking vote. Something that is so rare that it has occurred just twice in BC history, a few times in our federal parliament (and fewer than 50 times in British parliamentary history) could become routine in Victoria. Would such an outcome shatter centuries of convention? Or would it show that the legislature can still work, even when narrowly divided?

BC’s Constitution Act and legislative rules give the Speaker their tie-breaking duty, but no constraints on how they do it. According to the leading authority on parliamentary procedure, Erskine May, there are no hard and fast rules on which way a Speaker must vote: “In the performance of this duty to give a casting vote, the Speaker is at liberty to vote like any other Member, according to his conscience, without assigning a reason.”

Since ties are so rare, Speakers have cast that vote carefully and a few patterns have emerged. When a tie arises at some early step of a bill’s journey into law, for example, the Speaker tends to vote for further discussion by advancing the bill to the next stage, rather than killing it. If the legislature can’t decide on a proposed amendment, the Speaker leaves the bill as it is. But if a deadlock emerges at the final stage of a bill, when no more discussion is possible, the procedural rulebook of the BC Legislature acknowledges that the Speaker is faced with a “difficult dilemma.” Knowing the fate of the bill is in their hands, Speakers have often voted to maintain the status quo.

Some have claimed there is a rule barring modern day Speakers from using their tie-breaking vote to pass a new law. But no such rule exists. To the extent a tradition emerged around preserving the status quo, its origins date to the 1860s in the British House of Commons, where the Speaker refused to single-handedly resolve two sensitive questions of religious policy. Rather, he voted according to his conscience. Resolving the fate of major policy initiatives, where the position of the majority parties has been clear, is an entirely different context. A Speaker must continue to be free to vote her or his conscience but should in no way be limited to legislative options which preserve the status quo.

Parliamentary conventions form out of practice – and reflect a principled pragmatism. They are not written in stone and should not be treated as if they were. Conventions guide the daily work of lawmaking, but only those which continue to adapt to changing circumstances remain relevant. They are not tailored for every situation, nor should they become roadblocks to the will of the legislature.

In my view, the real challenge for the next Speaker of the BC Legislature will be maintaining the necessary impartiality to umpire a fractious legislature, while at the same time playing a more visible tie-breaking role in contentious legislation. This is a tall order, but politics in Canada always have been about the art of the possible.

The people of British Columbia have created this unique legislature. About 60 per cent of British Columbians elected MLAs who have created a NDP-Green alliance of 44 MLAs that is poised to form government. Now, it deserves a chance to work. When ties arise—whether rarely or frequently—the Speaker has a constitutional duty to break them and should be free to do so according to her or his conscience. At the end of the day, a Speaker’s duty is not to a party but rather to serve British Columbians.