At the time this article was written
Roderick Lewis was the Clerk of the Ontario Legislative Assembly.
The distinction between a matter of
privilege and a point of order seems to be a frequently recurring problem in
the Ontario Legislative Assembly. Members often rise on what they know to be
fictitious matters of privilege or points of order simply to gain the floor to
make a point which is neither order or privilege; to get an immediate
opportunity to answer the member who has the floor; or even to make a quip or
facetious remark. A real confusion does exist.
Again and again a member will rise on what
he alleges to be a matter of privilege if he feels that he has been insulted by
another member. if his objection is valid, that is if the remark made by the
other member is in fact a breach of the rules of order he has arisen quite
properly on a point of order, but it is certainly not privilege. The current
Standing Order 19(d) of the Ontario Legislature lists thirteen distinct actions
which have been held to be out of order in debate. This list is not all
inclusive but does set out the most glaring breaches of order such as making
allegations against another member; imputing false or unavowed motives to a
member: charging another member with uttering a deliberate falsehood; or using
abusive or insulting language of a nature likely to create disorder. The
important consideration to be noted in this respect is that a point of order
must be raised immediately. It must at once be called to Mr. Speaker's
attention so that he is in a position to rule as to whether or not there is a
breach of order and deal with it. 11 is fair to say that many technical
breaches of order slip by simply because they escape the Speaker's attention or
because no objection is taken. However, if the Speaker hears a remark that is
clearly out of order or such a remark is brought to his attention, it is, of
course, his duty as presiding officer and protector of the rights of all
members to insist on the immediate withdrawal of the offending remark.
Privilege, on the other hand, is entirely
different. It must pertain to one of those special rights which the House as a
whole and the members individually enjoy as members which other citizens do
not. Standing Order 18(a) of the Ontario Legislature contains the following
definition: "Privileges are the rights enjoyed by the House collectively
and by the Members of the House individually conferred by the Legislative
Assembly Act and other Statutes, or by practice, precedent, usage and custom.
The 19th edition of Erskine May's Parliamentary Practice defines privilege as
follows: "Parliamentary privilege is the sum of the peculiar rights
enjoyed by each House collectively as a constituent part of the High Court of
Parliament, and by members of each House individually, without which they could
not discharge their functions, and which exceed those possessed by other bodies
or individuals. Members frequently rise to take objections to statements made
in the public press which they consider to be breaches of privilege or, in some
cases more properly contempts. The proper procedure in such cases, if fully
carried out is to bring the offending article to the attention of the House and
then move to have the offender or offenders brought before the bar of the House
or a Committee thereof. In the Ontario assembly, however, for very many years
the members' only real interest is to set the record straight. Members never go
even to the extent of moving the motion and letting it lapse, as is done in
some jurisdictions.
Finally, members frequently rise on what
they consider to be matters of privilege or even points of order which may or
may not be valid and then demand that the Speaker investigate and report back
or "take the necessary action". A succession of Speakers in Ontario
have again and again pointed out to the House that the Speaker has neither the
duty nor the right to investigate anything and report back. Should the matter
raised appear to be a point of order the Speaker should rule on it and require
the offending member to withdraw the remark complained of. In the case of an
alleged matter of privilege the Speaker's sole prerogative is to determine
whether or not a prima facie case of privilege has been made out. If he decides
in the affirmative it is the House, not the Speaker, which must take the
necessary action if it sees fit. In either case, he may reserve his ruling
until there has been an opportunity to look into the authorities, but this is a
far cry from 1nvestigating and reporting back".