Speaker Kinsella read off the rules and interpreted them; as noted in Hansard
Scroll up to read his ruling "The Hon. the Speaker"
It reads as follows
Honourable senators, it was clearly important under this unusual circumstance that, prior to calling for Senators' Statements, we should have engaged in discussion on this matter so we could bring some clarity.There are a couple of issues I will note, as a member of the chamber but also as Speaker. I took note of the fact that a carbon copy of this letter was sent to my colleague the distinguished Speaker of the House of Commons. I can't understand why because we are a separate house. Honourable senators, it is important for the purpose of getting on with our business to note that the Rules of the Senate, as has been indicated by several honourable senators, do provide a definition of a recognized party, which is "A caucus consisting of at least five Senators who are members of the same party political party. The party must have initially been registered under the Canada Elections Act to qualify for this status and have never fallen subsequently below five Senators. Each recognized party has a leader in the Senate."I think all the conditions of that provision have been met. We've heard from our honourable colleagues who have stated that they are a member of a party that has been duly registered under the Canada Elections Act.As to the position of the Leader of the Opposition, it is defined in our Rules as "The Senator recognized as the head of the party, other than the Government party, with the most Senators. The full title of the Opposition Leader is `Leader of the Opposition in the Senate'."As has been indicated by Senator Cowan, he has been elected by his colleagues and, therefore, meets the definition of the Leader of the Opposition in the Senate.
The important part is that which was read from the official rules themselves
"A caucus consisting of at least five Senators who are members of the same party political party. The party must have initially been registered under the Canada Elections Act to qualify for this status and have never fallen subsequently below five Senators. Each recognized party has a leader in the Senate."
You may have seen something like this on Wikipedia. That's because I added it. And that's because I called the Senate back in December 2003 to ask what the rules were regarding the new Conservative and new PC caucuses. The response was not word-for-word what is here but was very close. Lets break down this and examine what it means.
The party must have initially been registered under the Canada Elections Act to qualify for this statusThis means that upon qualifying - IE the date and time that you begin to become an official party within the Senate - that your political party must be registered. For the record, here is a list of parties that are registered: http://www.elections.ca/content.aspx?section=pol&dir=par&document=index&lang=e
So any of these parties may, today, start a Senate party... but they must also have
A caucus consisting of at least five Senators who are members of the same party political party.
Now this is important; in particular, something that's missing here. But lets examine what is here. This states that you must have 5 Senators who are all the members of the same party. That means you can not have 3 Liberals and 2 Tories starting their own Senate party.
Lastly we examine the region the PC Party failed to meet the qualification.
and have never fallen subsequently below five Senators
Having fallen below that number, the Progressive Conservatives can never again be an official party in the Senate - however - there's a catch. The catch I mentioned earlier in what's missing above.
Nothing in the Senate rules prevent 5 Liberals from forming another, non-Liberal senate caucus.
All the rules state is they must be members of a registered party.
The news has told us that "about 20" Senators are keen on remaining within the Senate Liberal caucus. Likely this number will rise, but lets presume it does not, and, the number is 20. With 32 former members this means 12 Liberals are not going to move in with the new Caucus. These 12 Liberals could form a 3rd party in the Senate if they wanted to, perhaps the "Totally Awesome Party" caucus. And so long as they never drop below 5 Senators, they can retain that status even after they all give up their Liberal memberships.
The chances of this happening are slim. However; it does allow an interesting "out" for the NDP should they ever form government.
This means that all the NDP would need to do is find 5 Liberals, or, 5 Senators who are willing to accept an NDP membership, and they could become the Government caucus. The Government caucus would, however, not be a part of the NDP caucus. This allows the NDP to both have Senators and not have Senators. Once the party has been set up in the Senate, 5 true independents could join, all 5 Liberals could quit, and so long as they retain at least 5 people (from any party or non-party) they would keep the status as the government caucus.
This could also have a knock-on effect on the House. There is some debate to change the number of committee members from 12 to 10. This could impact the number of members to qualify for official party status.
Currently that's 12. 12 members out of the 308 member house. Theoretically, we could have 25 official parties in the house at one time; but since each is required to have a committee seat, that would break the system. Under the new proposed rules, and with the larger 338 member house, we go up to 28 possible parties trying to fill 10 seats.
We've had 5 official parties in the house not that long ago. At the time, the Bloc had 30some seats. Under the new rules, all 3 of the smaller parties would qualify for only one committee seat. These 3 parties would throw off the math for the other seats, potentially turning a majority into a minority for a government.
My analysis of this is that it's the first step in trying to change the number of members needed for official party status.
In order to have 1/10th of the new parliament (338) a party would need 34 seats; which is quite the increase from the current 12. While the Liberals and NDP should be able to retain this number (especially since the NDP not only has more seats (338) to choose from, but is now competitive in both Quebec and the Atlantic, something they did not do in the 70's) the most logical rationale for the change; especially given Trudeau, Mulcair, and the 5 existing Conservative MPs in Quebec, is to ensure the Bloc does not get status back in the next election; and as a side-effect, to ensure the Greens take a long time to get up to the required numbers.
While the official proposal to raise the number of seats for official status in the House to 34 has yet to be proposed, I personally expect it to only be a matter of time.