The issue explained: Can Speaker Bush help PACT form a stable government?

With Wayne Panton’s PACT team of independents and the Progressives’ alliance locked at 9-9, McKeeva Bush has effectively become the kingmaker.

Panton announced a deal yesterday to put Bush back in the Speaker’s chair to help his team form a government.

The Progressives immediately dismissed it as a “ruse”, saying the numbers still don’t add up.

The PACT team, with Bush on board, would have a 10-9 advantage. But the Constitution dictates that the Speaker can only vote in certain circumstances – usually to break a tie – and it was initially uncertain whether the arrangement proposed by Panton would be considered a ‘majority government’.

There still appeared to be some lack of clarity around the matter Tuesday night and it has now emerged that Irma Arch will be drafted in as an outside Speaker to help ensure a “smooth transition” for Panton’s government.

We spoke to a number of legal experts and former politicians, and analysed the Constitution and parliamentary procedures in an effort to bring some clarity to the situation and the role of the Speaker in the vote.

How is the Speaker chosen?

The first order of business for Parliament when it convenes is for the 19 members to vote on a Speaker and Deputy Speaker. This takes precedence over ‘any other business’, according to the Constitution.

In theory the 19 members could have gone to Parliament, and Bush, along with Panton’s PACT group – currently a team of nine – could vote to put him back in the Speaker’s chair.

That was the initial plan. It now seems that Arch will be the choice for Speaker – at least for the first session of Parliament and until other legal issues are clarified.

It is not clear who presides over the meeting and the vote for the Speaker. The Constitutional Commission in an information leaflet, published late Tuesday afternoon, points out that the Constitution is “silent” both on this matter and on what happens in the event that there is no majority support for an appointment of speaker.

In previous swearing-in sessions, the Parliament’s clerk has called for nominations for the Speaker’s position and then calls for members to vote. If there is only one nomination, the process is closed and the clerk declares that nominee as the house’s Speaker.

Does the Speaker have to be an elected representative?

No, the Speaker can come from among the 19 parliamentarians or can be drafted in from outside. The only requirement is that they be eligible to run for election in Cayman and that they have the backing of 10 or more members to take the seat.

A previous iteration of Panton’s coalition had involved putting Alric Lindsay, who ran unsuccessfully in George Town South, in the Speaker’s chair. Arch is also not elected.

Can the Speaker vote on the election of premier?

From the direct wording of the Constitution, the Speaker can vote to break a tie. There does not appear to be any legal limitation on that power and, on a plain reading of the words, it seems that Bush could have used his decisive vote to secure Panton’s election as premier.

The document states, “The speaker or other member presiding shall not vote unless on any question the votes are equally divided, in which case he or she shall have and exercise a casting vote.”

Of the experts that we spoke to, opinion was split on whether this would be a viable option. Most believed that the Speaker could use his casting vote from the chair to help elect a premier.

The Constitutional Commission did not issue guidance on this in its leaflet, noting that it was a matter for future consideration. It did however refer to a series of previous position papers it had produced, including a 2014 document, where this precise issue was highlighted as an area requiring review.

At the time, the commission noted the wording was ambiguous because it is not clear whether the Speaker (if he or she is an elected member) should be counted in any vote for premier. It recommended at that time that the wording be amended to “make it clear that the speaker is counted”.

So the position of the Constitutional Commission, at least in 2014, was that the Speaker’s vote should count, but that the document itself was not clear on the matter.

In the absence of total clarity, Panton’s team appears to have opted to put Arch in the chair, at least for the first session.

Is the Speaker’s right to vote disputed?

The Progressives issued a statement Monday suggesting that the Speaker could not cast the deciding vote for premier or help pass new laws.

Citing parliamentary convention throughout the Commonwealth, party leader Roy McTaggart said the Speaker’s vote could only be used to “preserve the status quo” and not to pass legislation or to elect Panton as premier.

The group has indicated it is taking legal advice and has suggested the arrangement proposed by the independent group would lead to a “hung Parliament” – with no majority on the floor of the House.

What does it mean to preserve the status quo?

The custom throughout the many countries in the Commonwealth that follow the Westminster system of government established in the UK, anticipates that the Speaker will cast his deciding vote rarely and only then to “preserve the status quo”.

According to Speaker Denison’s Rule – a principle established in the UK in the 19th century and adopted throughout the territories – any proactive decision should be approved by the majority.

If that convention is followed, the Speaker would only use his casting vote in favour of existing circumstances. He would have to vote against amendments to bills and motions of no confidence, for example.

It is not clear how this would apply to the election of a new premier in a new Parliament, however. It is also not clear that this principle and tradition – though common practice throughout the Westminster system – is a legal requirement. It is potentially open to Bush to dispense with custom and use his casting vote as he sees fit.

How would that work in practice?

The words of the Constitution permit the Speaker to have a casting vote.

With a 9-9 tie in terms of the allegiances right now on the floor of the legislature, Panton’s government (if it is confirmed with Bush as speaker) would only be able to pass legislation with support of the Opposition (which in this situation would be the Progressives and their partners) or with the deciding vote of Bush.

One lawyer we spoke to questioned whether this situation would be approved by the governor, given the potential for the Speaker to have the casting vote on almost every piece of legislation, including the national budget.

They suggested Cabinet is supposed to be the ‘decision-making body’ for the country and this would devolve some – perhaps a significant amount – of that responsibility to the Speaker.

If the Progressives and their partners held a hard line, it would be impossible to pass any legislation without Bush’s say-so.

If he is now aligned with the PACT, however, there would be nothing to stop Bush (pending the resolution to some of the other legal question marks that have been raised) from voting with the government.

So is Bush still going to be Speaker?

There was no suggestion from Panton or Bush on Tuesday night that there had been any change to the long-term plan to make him Speaker. Putting Arch in the chair was presented as a temporary measure, apparently to secure a smooth transition while the legal questions raised by the Progressives are sorted out.

Bush could be voted as Deputy Speaker. That way he could ascend to the role if Arch resigned.

Are there other complications?

One other issue is that the House requires a quorum of 10 members plus the Speaker for any business to proceed.

According to the Constitution, “a majority of the elected members of parliament in addition to the person presiding (the Speaker)” should be present for House business to proceed. A member of the Opposition would need to show up to raise this as an objection, however.

It seems that it would be open to the Progressives alliance to vacate the House as a tactic to prevent a quorum from being achieved. This would be an extreme and likely unpopular tactic, according to the experts we consulted, but it is something that could be a potential tool to frustrate the PACT-Bush alliance.

This was one of the reason’s cited by Panton for bringing in Arch as Speaker on Wednesday. A long-term resolution to the issue has not yet been identified.

So will Panton’s new coalition be approved?

Yes, it appears so. The governor released a statement Tuesday afternoon, saying Panton had submitted a revised letter of support for his appointment as premier along with the signatures of 10 elected members.

The governor has issued a proclamation calling a meeting of Parliament for 3pm Wednesday for the MPs to be sworn in and Panton to be elected as premier.

What are the alternatives?

Once his election as premier is confirmed, it is open to Panton to seek to tempt some of the Progressives members or their alliance partners to his side in an effort to build a larger majority, so they are less reliant on the deciding vote of the Speaker to get anything done.

That process is likely to be an ongoing one.

The clearest alternative for Panton and PACT, if it proves difficult to get legislation passed with Bush as Speaker or efforts to do so are derailed by a legal challenge, would be to offer him a Cabinet position and go back to a version of Plan A, with an outside Speaker, potentially Arch or Alric Lindsay, in the chair.

That would give them a 10-9 majority in Parliament and the ability to pass legislation, without any legal doubt, albeit with the need for all 10 members of the team, including Bush, to be present and on the same page.

There are understood to be some doubts about this arrangement, given that Panton and Bush, though they have found common ground over the past six days, campaigned on different platforms, with different ideas.

Is there a possibility of another election?

That remains an outside bet. Panton, if he gets confirmed as premier on the basis of Bush’s support tomorrow, could choose to call a snap election in short order if he is unable to get legislation passed. That would likely be a last resort, however.

This is typically done through a request to the governor, who must issue a proclamation for new elections.

  • This article has been amended to reflect the fact that Governor Martyn Roper reviewed Panton’s letters of support and called a meeting of Parliament for 3pm Wednesday as well as the announcement of Irma Arch as the likely Speaker for that session.

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