Sunday, April 14, 2024

A Speaker’s brief authority


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(B)ut man, proud man!
Drest in a little brief authority;
Most ignorant of what he’s most assur’d,
His glassy essence, like an angry ape,
Plays such fantastic tricks before high heaven,
As make the angels weep
– William Shakespeare; Measure For Measure
I FIRST came across the above quotation at the top of a Gladstone Holder column in 1978 headlined ‘BRIEF AUTHORITY’.
Holder noted that the author was an Englishman, writing in the 16th Century, and speaking about us in the Caribbean in the 20th century.
Would that both pens were functioning today in the 21st Century!
The musing following last Tuesday’s events in the House of Assembly, which according to the bard, would “make the angels weep”.
Several devices
Now, there are several parliamentary devices that MPs use to trigger debate on matters of national interest – among them is the traditional congratulatory resolution moved by the Minister of Finance after the presentation of the Annual Financial Statement and Budgetary Proposals.
Another is the “Personal Explanation” (self-explanatory) but which is restrictive in that Standing Order 19 says “no controversial matter may be brought forward, nor may debate arise upon the explanation”.
Implicit in this, however, is the enormous power granted to the Speaker who alone can determine what is a “controversial matter” – and such decision is final, except, according to Standing Order 39 “upon a substantive motion made after notice” which shall not require more than two days.
Then, there is perhaps the most important – the point of privilege – which Standing Order 76 says “shall take precedence of all other public business”.
The problems, which ultimately led to the expulsion of Leader of the Opposition Mia Mottley and veteran St Andrew MP, George Payne (chairman of the Barbados Labour Party – BLP) from the Chamber, had to do with attempts by Opposition MPs to speak on a “point of privilege” but were denied by Speaker Michael Carrington.
It appeared that the issue related to the Opposition’s desire to explain their boycott of the House the previous Tuesday over the Speaker’s failure to establish a firearms policy for Parliament and to further their quest to have an incident involving Deputy Leader of the Opposition Dale Marshall and Cabinet Minister Dr David Estwick – on March 19 – referred to the Committee of Privileges for enquiry, report and recommendation.
Still baffled
Parenthetically, I am still baffled by the delay in instituting the firearms policy similar to that which is in place in several other state buildings, including Government Headquarters on Bay Street and the new Supreme Court complex. It ought to be a simple matter for the Speaker to add firearms to the posted list of prohibited items which are held in the custody of the Police detail at Parliament.
The Speaker had granted Marshall leave the previous Monday to raise the issue, as a matter of privilege, from the floor of the House, and the procedure calls for the Speaker to determine whether a prima facie case had been made out, and then rule accordingly and refer the matter to the Committee.
Following the Speaker’s refusal to allow the Opposition’s explanation for its absence, Mottley then attempted to raise, on a point of privilege, a matter relating to the embattled CLICO International Life Insurance, whose chairman Leroy Parris disclosed that it had sold over 800 policies this year although it had been prohibited by the Supervisor of Insurance from writing new business since August 2009.
Carrington denied the request, saying that having looked at the Opposition’s letter on the issue, it failed to meet the tests under Standing Order 18 relating to a motion for the adjournment on a definite matter of urgent public importance, because he was not “satisfied that the matter [was] definite, urgent, [and] of public importance . . .”.
“The matter to which you refer has been around for a long time,” he told Mottley. “The fact is that when you are talking about a matter of this kind, a so-called emergency debate, it has to do with something which is definite and urgent.”
Mottley sought, on a point or privilege, to get a clarification of that ruling, but was again denied, which led to the heated exchanges with the Speaker, involving her, Payne and former Prime Minister Owen Arthur, and the fateful outcome.
Work through these issues with me, dear reader.
First, Marshall himself was guilty not only of a lack of common courtesy, but also
was in breach of the Standing Orders in not informing the Speaker of his intended absence, for which he was justly chastised by the Speaker for being disrespectful.
Standing Order 72 says: “Any Member who is unable to attend a meeting of the House, shall acquaint the House as early as possible of his inability to attend.”
There is nothing in the Standing Orders that I have seen which says that a Speaker may not withdraw such “leave” once the offer was not taken up at the immediate next sitting of the House given the purported gravity of the allegations against Estwick.
While Marshall can rightly claim that he was under the party “whip” in its decision to boycott the sitting of the House, the phrase ‘as early as possible’ is sufficiently elastic that he could have acquainted the House of his intentions mere minutes before the scheduled start of the sitting.
For his part, it is my view that the Speaker took the wrong course when he permitted Estwick, who was seen as the person “charged” in the court of public opinion as the “offender” to make a statement in his defence when the matter had not yet been properly placed before the House through a statement from Marshall on the floor as the “complainant”.
To compound this unfortunate circumstance, the Speaker then promised to give Estwick a second chance to defend himself by allowing him to respond to Marshall’s allegations from the floor of the House rather than those the “complainant” had made in the media or in written correspondence to the Speaker seeking to have the matter referred to the Committee.
The issue which concerns me most, however, is that of how and when Members can rise and be heard on a “point of privilege”.
The Standing Orders are clear: Section 76 states:
A motion directly concerning the privileges of the House shall take precedence of all other public business.
2. Any Member desiring to raise a matter under this Standing Order, shall first obtain leave of the Speaker who shall determine whether the member is entitled to raise the matter as a question of privilege.
3. If permission is given by the Speaker under paragraph 2 of this order, the Member may raise the matter at any time before public business is commenced and move that the matter be referred to the Committee of Privileges.
4. There shall be no debate on a motion under paragraph 3 hereof, but if the Speaker decides that a prima facie case has been made out, he shall rule accordingly and refer the matter to the Committee of Privileges.
5. If during a sitting of the House, a matter suddenly arises, which appears to involve the privileges of the House and which calls for the immediate intervention of the House, the proceedings may be interrupted, save during the progress of a division, by a motion based on such matter.
Section 2, above, gives the Speaker enormous power solely to “determine whether the member is entitled to raise the matter as a question of privilege”.
And again, only the Speaker can decide if a “prima facie” case has been made out and then he can refer it to the Committee.
Section 5, in my view, goes to the heart of last Tuesday’s difficulties. It covers any exigency that might arise during the proceedings “and which calls for the immediate intervention of the House”.
It is my view that since the Speaker is the guardian of the “ancient rights and privileges” of the House, then only he can make that “immediate intervention” on behalf of Members and do so by giving “precedence” to the “point of privilege” on which any Member rises and under which he is entitled to be heard for a maximum of 15 minutes.
There is nothing in the Standing Orders to suggest that a Speaker has the right to deny a motion of privilege on any “matter [that] suddenly arises, which appears to involve the privileges of the House”.
Any such action would set the House on a collision course with its own Standing Orders.


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