Beyond The Commons

Beyond The Commons

Aaron Wherry covers all the goings-on in and around Parliament Hill. Follow Aaron on Twitter: @aaronwherry

The Commons: The House always wins

by Aaron Wherry on Tuesday, April 27, 2010 7:17pm - 121 Comments

The Scene. “In his March 31 intervention, the Minister of Justice quoted from the 1887 parliamentary treatise of Alpheus Todd,” the Speaker said. “The Minister also cited Bourinot in 1884.”

This was, by these standards, riveting stuff.

“Had he read a little further,” Peter Milliken continued, “he might have found the following statement by Bourinot at page 281. ‘But it must be remembered that under all circumstances it is for the House to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional, and the reasons very cogent, when it cannot be at once laid before the houses.’”

From his seat, the Justice Minister chuckled at this reprimand. He may have by then—with a full 15 double-spaced pages left to be read—realized that the government’s case was lost.

History arrived with neither pomp, nor circumstance, nor even grace. In the 45 minutes preceding his ruling, Mr. Milliken presided over a session of Question Period that totalled 41 questions and perhaps three or four answers. There were the usual amounts of hooting and hollering and carrying on, including a wild bit of flailing and pointing and yelling from Jim Abbott on the subject of improving the health situation of mothers in the developing world.

Eventually the Speaker announced an end to the time allotted for oral questions. Some MPs took their leave, many remained, anticipating what was to follow. At precisely 3:04pm, Mr. Milliken stood in his long black robes and announced the following.

“I am now prepared to rule on the questions of privilege raised on March 18, 2010, by the honourable member for Scarborough—Rouge River, the honourable member for St. John’s East and the honourable member for Saint-Jean concerning the Order of the House of December 10, 2009, respecting the production of documents regarding Afghan detainees.”

And with those 54 words committed to the record, Mr. Milliken proceeded with the other 6,400 typed out over 38 pages now held in his hands.

He began with a simple enough review of the facts. Michael Ignatieff sat and listened with his hand over his mouth. Bob Rae reclined and listened. Defence Minister Peter MacKay appeared to be concentrating hard. Justice Minister Rob Nicholson sat turned away from the Speaker’s general direction.

“It is no exaggeration to say that it is a rare event for the Speaker to be seized of a matter as complex and as heavy with consequence as the matter before us now,” Mr. Milliken observed.

To state it simply, be that possible, the matter before us had only to do with the power and precedence of the House of Commons, the primary legislative body of our democracy, filled, as it is, with our duly elected representatives. A majority of members of the House have demanded that the government produce, wholly and unredacted, various documents related to the country’s handling of detainees seized in the process of conducting our mission in Afghanistan. The government has so far refused on a claim of national security authority and responsibility.

It is, of course, not even that simple—complicated by doubt, accusation, inconsistency and war—but ultimately there is this question of power.

The Speaker had helpfully grouped the issues before him according to theme and he went through them one by one. Stockwell Day flipped through his Kindle. Bryon Wilfert flipped through a copy of this magazine. Mr. Nicholson turned in his seat toward the Speaker and fidgeted and nodded. Some in attendance seemed interested in what the Speaker had to say. Others seemed interested in being there to say they’d been there when the Speaker said what he said.

There seemed, at first, points for each side. Halfway through, the tally might have been said to be tied. Then, the will of Parliament began to run up the score.

“Before us are issues that question the very foundations upon which our parliamentary system is built,” Mr. Milliken observed. “In a system of responsible government, the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and, in fact, obligation.”

Then came the reference to Bourinot. Then references to Maingot, Erksine, McGee and Odgers. Then this.

“It is the view of the chair,” Mr. Milliken said, “that accepting an unconditional authority of the executive to censor the information provided to Parliament would in fact jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts.”

MPs on the opposition side applauded. The Speaker continued. ”Therefore,” he said, “the chair must conclude that it is perfectly within the existing privileges of the House to order production of the documents in question.”

A cry of “yes!” came from the far end of the room.

The verdict now seemed assured, but the Speaker kept on, now venturing an attempt at peace. “It seems to me,” he said, “that the issue before us is this: is it possible to put into place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain?”

He asked for “common ground” and “trust” and “collaboration” and “accommodation.” He offered all parties two weeks to sort out a solution to this last question. He offered his services and announced himself open to suggestion. But there, in the fourth last paragraph, was the ruling.

“Accordingly,” Mr. Milliken said, “on analysing the evidence before it and the precedents, the chair cannot but conclude that the government’s failure to comply with the order of December 10, 2009 constitutes prima facie a question of privilege.”

There it was. In its own way, elegant. One hundred and twenty-three years from now, if the Speaker of the day has cause to do so, he may well refer the Justice Minister of the day to this. And that would seem the definition of history.

The Speaker was shortly thereafter done. He returned to his seat. All sides of the House rose to applaud his effort. And then, after a moment’s rest, the Speaker stood again and got on with the rest of the day’s proceedings.

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  • http://intensedebate.com/people/aliasrus aliasrus

    "Call it wishful thinking, but I'm hoping for some decorum in QP as an early second Christmas present to the voters."

    Unfortunately until MPs have an incentive to work together such will be reality. There simply is no real reason to answer questions in Question Period as each side is trying to score political points in front of the cameras. As much as Milliken would like to see that happen, he simply does not hold such power.

    However, if our electoral system were changed say to stv or any other preferential and proportional system, such an incentive would be there as MPs would have to treat all voters well in order to receive their second or third preferences as well as having to work with other parties once they get elected in order to get anything accomplished.

  • http://intensedebate.com/people/Gaunilon Gaunilon

    I'm concerned about that too, but respecting the system is more important than making the right decision in this case. However I do think that the Liberals should be politically destroyed if this decision leads to an important op being compromised or innocent lives lost. That would require the media sticking to the story even if there is no hope of further embarrassing the CPC though….good luck.

  • JACKTHEWHACK

    You obviously have a problem with our democracy. Because once again, as a Harperite, you have completely dismissed the law of the land, as reinforced by the Speaker of The House. Only Harperities believe they can make it up as they go along to suit themselves. That's not Canada. Let's see now. What's the next smear campaign by Harper thugs? Will it be the CBC? The Speaker of the House is part of a Liberal conspiracy, a coup d'etat, an overthrow of the Justice Department, an affront to our soldiers in uniform…your CONSERVATIVE CULTURE OF DECEIT AND CONTEMPT…is wholly event and was highlighted when King Harper was absent at the Speaker's ruling…your glorious leader "cut and run." Coward.

  • Amateur Hour

    Sorry, but Derek Lee and even Iggy himself have outlined possible solutions to concerns over secrecy and privacy — citing the CSIS review, SIRC, etc. you may have missed it as it was overshadowed by Mr. Harper's shuttering of Parliament.

  • Jan

    Context is everything.

  • Jan

    I guess you've missed the committee meetings.

  • Ren

    I'm surprised that nobody has brought up the fact that by being elected into the House, all members are eligible to hold government office and therefore should be permitted to view government documents. The only thing that has prevented this parliament from viewing the documents is the fact that a lot of them are not in the same party. Besides, the aiding and abetting of a crime committed in the name of any ideology or on the behalf of any country is just as much a crime.

  • http://intensedebate.com/people/Jenn_ Jenn_

    That's one way to look at it. The other way is that spin really is powerful, and the cynicism and mistrust of politicians is at an all-time high. Or to put it another way, the only Canadian who puts his full trust into whatever any politician says, at face value and in spite of evidence to the contrary, has been drinking the kool-aid.

  • Mike T.

    This may be the weakest arguments ever.

  • http://intensedebate.com/people/FVerhoeven FVerhoeven

    It's sad, really. Why can't you read my posts before you answer to them. The answer you give here does not in any way answer to my post.

  • Matlock

    I read your post. You want to know when an "official request" was made. Answer: March 18. The speaker cited himself in his ruling that the member for Toronto Centre (Bob Rae) proposed during debate in the House on Mar 18 the following:

    ―What we believe can be done is not beyond the ability of the House. It is done in many other parliaments. Indeed, there are circumstances under which it has even been done in this House. It is perfectly possible for unredacted documents to be seen by Members of Parliament who have been sworn in for the purpose of looking at those documents.

    That is a proposal to have members sworn in to view the unredacted documents in camera, made in the House of Commons. Looking at Hansard, Tom Lukiwski, in response, dismissed this proposal on the technicality that Mr. Rae did not propose this on Dec 10.

    There you go. A request to the government in the House of Commons. Seems rather official to me. What more do you want? A notarized letter?

  • http://intensedebate.com/people/FVerhoeven FVerhoeven

    Look, there is no official compromise which has been made and voted on by all parties. You can spin it all you like but its not going to change the facts.

    Within my posts I have been talking about proof of an official compromise and it hasn't happened so far. That's why the speaker gave the stern suggestion to come up with one.

    BTW, I don't mind admitting when I'm wrong. I know I am not wrong in this case. Casual suggestions, undefined as such, is not the same as official accomodations made.

  • http://intensedebate.com/people/FVerhoeven FVerhoeven

    Yes, that is a proposal, one out of many, but it's not one agreed upon by the majority of the house. Milliken is calling for one.

    Don't think we're out of the woods yet, because any attempt at coming to a meaningful agreement on how to view the detainee documents may indeed lead to further complications. It's not quite as simple as some make it out to be.

  • Matlock

    I don't think for a second we're out of the woods either, though in addition to Mr. Rae's proposal, the Speaker cited other concrete examples of starting points that both parties can build upon in negotiations.

    I'm just responding to what you said,

    "The Official Request by the Opposite members of the House did never submit such request."

    Hansard shows this to be factually incorrect, and I wanted to set that straight. Though no compromise has yet been reached, an official request by an opposition member was indeed made.

  • Dean
  • http://www.matthewproman.com/images/mathew_home.swf Matthew Smith

    Is 2 weeks too long for that?

  • burlivespipe

    FV soiled himself again. You should try wearing your tinfoil on the other end next time.

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