At the time this article was written Sam
Cureatz was the member of the Ontario Legislative Assembly for Durham East.
A full-scale review of the procedural rules
of our parliamentary institutions, federal and provincial, is manifestly
necessary, to enable us to come to grips effectively with the many complex
issues that our current technical society expects to have dealt with on a daily
In March, 1982 a controversy that, whatever
the motives behind it, centred directly on the interpretation of the House of
Commons' rules for the conduct of its business brought the House to a
standstill. The opposition felt that the government's proposed Energy Security
Act 1982 did not restrict itself to energy. It was an omnibus bill which not
only amended a number of existing laws, but created several new ones. The opposition
expressed its exasperation by refusing to attend the Commons to vote on it.
In Ontario, when the Minister of Revenue
attempted to introduce legislation in connection with the May 1982 provincial
budget, a vote on first reading was requested. The official opposition left the
Chamber, and the bells range for two and a half days until their return. These
two incidents brought forcibly to the attention of the man in the street the
importance of the Speaker and of the rules of procedure. The smooth functioning
of legislative business is generally taken for granted until catastrophe
strikes. Then there is usually no time for a studied and calm review of the
particular problem, and certainly none for a general review of the rules as a
The Reason for Parliamentary Procedure
To anyone who has attended a large
contentious meeting un-regimented by rules of procedure, the necessity for such
rules becomes strikingly obvious. Issues cannot be discussed intelligently if
certain procedures for debate are not followed. Rules of procedure are
essential to preserve order and decency. Rules must not only exist, they must
also be understood and followed. Further, such rules must be applied
judiciously to each particular situation as it arises; and that is the role of
Parliamentarians. quite rightly, are
fiercely independent people both in fulfilling their party allegiances and in
their more personal role as the representative of their constituents. Understandably,
they are very sensitive to being controlled by the Speaker.
It is essential to note that although the
Speaker, before election to the chair, must be a member of the House, he need
not be a member of the party in power. Once appointed he must, while
discharging his duties, disavow any political affiliations. The Speaker must
apply the rules to all members without taint of political bias. He must be
fair, impartial and effective. He should be loathe to use the office to solve a
political deadlock, because that would involve the resolution of a substantive
political confrontation by the exercise of procedural power. The importance of
the Speaker, both federally and provincially, is a subject about which I
predict we will hear a great deal in the next few years.
Historically, in the United Kingdom,
privilege originated to protect the Commons from interference when engaged in
the King's business. Privilege was expanded later to protect the Commons from
interference by individuals as it carried on the nation's business. It is
noteworthy that privilege originated in an early period of parliamentary
development, when the independence of members and of the House from the Monarch
could not be taken for granted. Originally, privilege had a very narrow and
specific meaning in Parliament, and was intended to reinforce and safeguard the
basic rights and freedoms of members both individually and collectively.
Individual rights included freedom of speech, freedom from arrest for civil actions,
and freedom from threats and bribery attempts. The privileges of the House as a
whole also included, among other things, control over its own proceedings and
its own members. A member may assert the rights of privilege simply by
standing, obtaining the Speaker's attention, and announcing, "Point of
privilege, Mr. Speaker".
Over the years the traditional, restricted
meaning of privilege has been expanded in Canadian parliaments. Privilege is
now taken (not always correctly) to include such matters as protesting the
noise made by members crunching peanuts, correcting erroneous quotations in
newspapers, and pointing out another member's contravention of the Standing
Orders. Political scientist W. F. Dawson, who has written extensively on
procedure in the House of Commons, has observed that privilege on Parliament
Hill is recognized as a magic word which may be used to excuse the most
flagrant irrelevancies.1 In recognition of this situation, many Speakers
have tried repeatedly to draw distinctions between privilege and fraudulent
points raised under the same name."2 It is hardly surprising
that these attempts have met with strong resistance from the House. A
convenient instrument is not to be surrendered easily."3 Certainly
privilege is a convenient instrument.
To take one example, some time ago, the
current Leader of the Opposition was waiting, at the start of Question Period,
for particular ministers to arrive. Not seeing them, he asked the Speaker,
"Could we engage in some spurious points of order and privilege for a
while in order to delay and give them time to come in?"
Members seek a point of privilege with
increasing frequency precisely because the meaning of privilege is ambiguous.
Standing on a point of privilege automatically captures the attention of the
whole Parliament, not to mention the press gallery and the public galleries. in
most cases, it makes little difference whether the Speaker decides that the
issue so raised by a member is prima facie, a point of privilege. By making his
point in the chamber, the member has ensured that his remarks are noted and
become part of the official record of the House. Since points of privilege may
be raised at any time and not, as in Ottawa. restricted to after question
period, members sometimes use alleged matters of privilege to pre-empt or to
extend question period. A cynical observer might suggest that privilege is used
at times as a mechanism for halting debate, deflecting attention, and otherwise
disrupting the orderly conduct of the business of the House. If members insist
on attacking matters of concern to them but not relevant to the immediate
debate, then a specific time should be put aside during the course of House
business to allow for it.
In practice, two factors complicate the
Speaker's role in determining what constitutes a prima facie point of
privilege. First, there is the wide divergence that we have already noted
between the original parliamentary meaning of privilege and the conventional or
operational use of privilege in the House on a day-to-day basis. Second, points
of privilege are not as carefully defined as they might be in the Ontario
Standing Orders. This lack of definition in turn leads to confusion between
points of privilege and points of order. For example, allegations and charges
against another member are points of order. Section 19(d)(8) of the Standing
Orders provides that a member shall be called to order by the Speaker if he
makes allegations against another member. In the event of the Speaker's
inaction, the offended member is entitled to stand up on the floor of the House
and shout to the Speaker (to gain attention) that he has a point of order in
that another member has made allegations against him. However, members
routinely raise such issues as points of privilege.' As a result, the Speaker
frequently has an awkward choice. He must decide whether to allow the member to
continue or to call him to order because he is technically not abiding by the
Member X On a point of privilege, Mr.
Speaker. I want to emphasize the gravity of a situation that confronts me. The
Honourable member Y has stated that I lied and misled the House in the speech
that I gave yesterday in these chambers and I request that the member withdraw
Under the Standing Orders of the Ontario
Legislature Member X should have stood up and got the Speaker's attention on
the following basis.
Member X On a point of order Mr. Speaker,
Section 19(d)(8) of our Standing Orders, states that a member should be called
to order where he "makes allegations against another member." The
Honourable member Y has stated that I lied to and misled the House. As a
result, I would ask you to call member Y to order and ask him to withdraw those
Anyone who regularly observes question
period in the Ontario Legislature knows that both the member asking a question
and the minister answering frequently take advantage of the occasion by
speaking at unnecessarily great length.
Some questions and answers, of course,
require a rather detailed preamble. But lengthy questions and lengthy answers
have seemingly become the norm. This defeats the purpose of the exercise.
Question Period is supposed to be a time of day when private members make
specific enquiries of members of the Executive Council, to which Council
members can respond in an informative manner.
The Speaker is hard put for a solution. His
role is not only to keep question period orderly, but to attempt to allow all
members an opportunity, within time restraints, to ask questions. The Standing
Orders are vague on the issue of time for questions and responses. The
vagueness suggests. however, that the presiding officer is given some
discretion in calling a member to order because he is using up too much time.
Another possibility would be, in the case of a minister, to add extra time to
the question period because of a lengthy response. But should the Speaker
lengthen the question period because a private member has taken up too much
time in asking a question? The logical outcome of this procedure is clearly
unsatisfactory. To be fair and consistent, the Speaker must call any member to
order if, in his opinion, too much time is being used in asking or answering a
question. Recently, Mr. Speaker Turner announced to the House that, in order to
encourage more questions, he would no longer allow members to ask multiple-part
questions (or ministers to answer them).
The Speaker's discretion should not apply to
situations in which one member states that another member is misleading, or
lying to the assembly. His guidelines on this issue state that a member may be
expelled from the assembly for the remaining part of the day. There is no clear
authority as to when that member may return, except that a motion may be made
to expel the member for up to two weeks. When one member states that another
member is lying, the rules should be clear beyond a doubt. Lying is contempt of
the House; and the member adjudged to be lying should be expelled from the
assembly until he is willing to retract his statement.
When the rules no longer reflect the
realities of the House, it is time to consider changing them. After some
discussion with colleagues in all three political parties the following general
consensus emerged. Questions of procedure relating to privilege are technical
and anything that can be done to improve the understanding of problems of
privilege is worth considering through the Procedural Affairs Committee which
reviews the rules of the Ontario Legislature.
Possibly all that is required is a clear
definition of points of privilege in the Standing Orders. Some provinces, such
as New Brunswick, indicate that incorrect statements in the press can be raised
as a point of privilege. Manitoba, by contrast, defines privilege both in terms
of what is and what is not a legitimate point. (Appendix D of their Standing
A further improvement of the use of
privilege, might be made by distinguishing points of traditional privilege
(meaning points of privilege so urgent as to require the immediate attention of
the House) from points of privilege (which could be confined to a specific
timeslot for consideration by the House). Where members seek the Speaker's attention
on a point of privilege in order, for example, to correct misquotes in a
newspaper, the matter could be allocated to a fifteen minute time slot
immediately after statements by ministers and before oral questions. The
European Parliament of the Common Market recognizes the legitimacy of personal
statements and confines them to three minutes at the end of debate on a
specific issue. The new, experimental rules in the House of Commons, making
provision for 90 seconds statements by members before Question Period and for
comment and rebuttal after speeches are also worth looking at.
The Legislature might also consider clearly
separating points of privilege and points of order, not only by definition, but
by a separate listing in the Standing Orders. Perhaps the format of the
Standing Orders could be revamped by adopting a loose leaf, hard covered
binder, such as is currently used by other provincial jurisdictions. The binder
could be tabbed for easier reference by all members, and amendments on sections
would simply require the reprinting of several pages, and not the whole
booklet. Finally, an attractive and functionally bound format would add dignity
and presence to the Rules of the House.
Many other aspects of our rules and
procedures need to be re-evaluated. I might mention in particular the need for
a parliamentary calendar and the possibility of eliminating night sittings.
I hope the Procedural Affairs Committee of
the Ontario Legislature can take up these questions at a future date, and give
some thoughtful consideration to both the wide and narrow issues involved. The
framing of effective rules involves striking a satisfactory balance between the
need for disciplined proceedings and the right to full and wide-ranging debate
in our democratically-elected Parliaments.
1. W.F. Dawson, Procedure in the Canadian
House of Commons, (Toronto: University of Toronto Press, 1962), p. 54.
4. Roderick Lewis, A Note on Privilege and
Order in Ontario, Canadian Parliamentary Review, Vol. 5 (Winter,
1982-83), p. 11.