Beyond The Commons

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

Categories: Beyond The Commons, Capital Read

The Commons: Never mind the fine print

by Aaron Wherry on Wednesday, April 28, 2010 6:09pm - 117 Comments

The Scene. “Mr. Speaker, I hope I speak for everyone in this House when I salute your historic decision made yesterday.”

At least four Conservatives clapped at this submission from the Liberal leader. Michael Ignatieff paused to let the Speaker receive the House’s thanks and then continued.

“I would like to ask the Prime Minister if he will fully comply with your ruling yesterday,” he said, “and will he now work with us in good faith to do what we first proposed five months ago, that is respect the authority of Parliament, deliver the documents, and provide Canadians with the truth that they deserve?”

Confronted with the ramifications of a Speaker’s ruling as to the very foundation of Canadian democracy, the Prime Minister stood and shrugged.

“Mr. Speaker, you have made a ruling,” he observed. “At the same time, as you know and I think was recognized, the fact is that the government has certain obligations that are established under statutes passed by this Parliament. We obviously want to proceed in a way that will respect both of those things, and of course we will be open to any reasonable suggestions to achieve those two objectives.”

A day after the Attorney General of Canada had to be lightly, but soundly, corrected on his understanding of the law of the land, the Prime Minister seemed here to arguably misunderstand Peter Milliken’s verdict.

For sure, the ruling was long and nuanced and rife with arcane reference. And no doubt, the Prime Minister does not generally see much use in nuance. (Perhaps he worries about seeming elitist.) But here, apparently, Mr. Ignatieff felt it necessary to enlighten his counterpart.

“Mr. Speaker, I still did not hear a clear answer to the question as to whether the government will comply with your ruling,” the Liberal said.

Conservatives across the way grumbled.

“My question is now about his understanding of that ruling,” Mr. Ignatieff continued. “Does the Prime Minister now understand that the ultimate decision to invoke national security to prevent the disclosure of documents rests with this House, with the elected representatives of the people, and not with the government?”

Over again to the Prime Minister. “Mr. Speaker, as I have said, we look forward to both complying with your ruling and with the legal obligations that have been established by statutes passed by this Parliament,” he said.

“Weasel words!” cried a Liberal.

“The fact of the matter is the government cannot break the law,” Mr. Harper continued, “it cannot order public servants to break the law, nor can it do anything that would unnecessarily jeopardize the safety of Canadian troops.”

Right. Except that Parliament would seem to be the law, that which determines what can and cannot be disclosed, that which is ultimately responsible for determining what would and would not jeopardize the safety of Canadian troops. As Mr. Milliken pointed out to the Justice Minister just the other day, quoting Bourinot in 1884, “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.”

If the Prime Minister wishes to debate this point with Mr. Bourinot, Beechwood Cemetery is a short eight-minute drive from Parliament Hill.

In the meantime, Mr. Harper had to deal with Gilles Duceppe, who presented an omnibus complaint that managed to reference document disclosure, access to abortion for women in the developing world, Rahim Jaffer, transparency, ideology and democratic accountability.

Mr. Harper stood and, taking one of these issues in isolation, countered that his government’s position on the health of mothers was in keeping with the expressed position of Parliament. Mind you, if the expressed will of the House were the Prime Minister’s standard, we’d presently be in the midst of a public inquiry into this country’s handling of Afghan detainees.

Mr. Duceppe’s voice only grew louder and his face only redder in response.

Shortly thereafter it was Jack Layton’s turn to test the Prime Minister’s constitutional understanding. The NDP leader first ventured that the Prime Minister was accountable to Parliament. The Prime Minister seemed to agree, though with use of the word “confidence.”

“Mr. Speaker, the Prime Minister’s interpretation of your ruling, exemplified here today in the House, is wrong,” Mr. Layton ventured with his second opportunity, next citing some of the Speaker’s carefully chosen words. “Is the Prime Minister saying to us today that he is going to use other laws of Parliament in order to hide the truth that you have said has to be brought forward?”

Once more to Mr. Harper. “Mr. Speaker, I said no such thing,” he said. “You have delivered a decision. Obviously, the government seeks to respect that decision. At the same time, it seeks to respect its obligations established by statute and passed by this Parliament. That is the position of the government. The leader of the NDP talks about confidence. Of course, the government’s position always depends on the confidence of the House.”

Now Mr. Layton was quite upset, wondering if the Prime Minister was threatening an election. The Prime Minister insisted he was not.

“The government seeks at all times to respect all of its obligations,” Mr. Harper continued. “To the extent that some of those obligations may be in conflict, there are reasonable ways to accommodate that and we are open to reasonable suggestions in that regard.”

If you can ignore how we have arrived at such a willingness to compromise, this might be considered an achievement of some sort.

The Stats. Helena Guergis, 10 questions. Afghanistan, eight questions. Maternal health, six questions. Securities regulation, government appointments, infrastructure, workplace safety and prisons, two questions each. The arctic, employment, political financing, health care, Omar Khadr and forestry, one question each.

John Baird, 10 answers. Stephen Harper, eight answers. Jim Abbott, six answers. Vic Toews, three answers. Jim Flaherty, Rob Nicholson, Diane Finley and Lisa Raitt, two answers each. Peter MacKay, Jean-Pierre Blackburn, Steven Fletcher, Leona Aglukkaq, Lawrence Cannon and Denis Lebel, one answer each.

Tags: afghan detainee docs, Afghanistan, detainees, documents, Gilles Duceppe, Helena Guergis, house of commons, Jack Layton, Michael Ignatieff, Parliament, peter milliken, Rob Nicholson, Stephen Harper, The Commons, torture, transfers

More by Aaron Wherry

http://intensedebate.com/people/Thwim Thwim

Except there's no legal precedent which says anything otherwise either, and giving it the "reasonable person" test falls invariably on the side you argue against.

Or in other words, stop playing the pedant and be reasonable.
http://intensedebate.com/people/RunningGag RunningGag

But members of parliament do not, by their status simply as MPs, acquire any specific security clearance or assumption they can keep a secret(Fred Rose was, after all an MP).

I intentionally separated the final sentence in my previous post so that readers wouldn't miss that I said:

Unless they are unable to pass security clearance requirements,

Before I said:

I see no reason why Members of Parliament should be blocked because of their party affiliation.
Mike R

That is an interesting point, but I'm not aware of any precedent of statutory interpretation that deals with the issue. In any case, no one, now, questions the right of the Commons or Senate to enforce their own privileges. The issue (which may only be theoretical if the government and opposition behave reasonably) is whether the exercise of a privilege by the Commons would absolve anyone not a member of that body from the effects of breaching legislation enacted by Parliament as a whole. It may be, as some here have suggested, that there is an underlying exemption to all such legislation that would be read into them. I'm just not aware that any court anywhere has stated that to be the case.
Mike R

The first part of your statement is correct. The Commons committee could choose to demand any documents it wants and publish them if it wishes – no matter what the consequences. That is the effect of the Speaker's ruling and he is, I think, correct in his position.

The second part of your statement, that anyone complying with those demands is not acting illegally is simply an assertion on your part. As I've said, there is no legal precedent of which I am aware that supports that conclusion. It requires a reading into legislation of some form of exemption from the clear terms of legislation passed by Parliament. Such a "reading in" has not, I think, been considered by any court in this country. I'd be interested in any precedent you could point to that had, in fact, reached the same conclusion you have asserted.

I'm not saying, by the way, that you are necessarily wrong. It may be that is what the law is. I'm just saying the point is by no means settled.
Mike R

No, they shouldn't be blocked by reason of their party standing. An MP, for these purposes, is an MP. So long as reasonable steps are taken to ensure the secrecy of information that by its nature must remain secret, any MP who is willing ot abide by those measures should be entitled to see the information.
Mike R

"Being reasonable" would, to most people, including the Speaker, mean agreeing on a framework by which members of parliament can see the information they need, but ensuring their are processes in place to protect the privacy and security of individuals who may be named in the documents, and the security of the nation as a whole.

I take it we are agreed there is no legal precedent to deal with the conflicting issues of Parliamentary privilege versus the plain language of statutes passed by Parliament itself. It seems most responsible people in Ottawa have now agreed to avoid further legal bickering and return to the substance of the issue.
Mike R

Well. so far. managing it better than any other member of the G-8.
wellwell

No, you're backsliding – you agreed above that Parliament's right to the documents is unconditional, and that taking into account national security is a matter of choice, not obligation. But it is 'reasonable' to interpret the law such that civil servants and members of the government who follow the House's order cannot be prosecuted or sued later for doing that.

At this point, though, it is obvious that you don't care about the law or the authorities – you simply want to cavil because you support the government.
http://intensedebate.com/people/aliasrus Incognito

Sorry, I forgot to state that I don't see the relevance of the Blocs ultimate goals as to whether they will hold discretion or not. Canadian Forces also include soldiers from Quebec. They would have to be ultimately completely idiotic to compromise soldiers that they would consider to part of Quebec.
http://intensedebate.com/people/Thwim Thwim

That is, unless Harper's in opposition. Then they want elections immediately.
Mike R

I'm not disputing the quality of many Bloc MPs, although by nature of their party's platform their loyalty in general is suspect. My reference to them not being the "Loyal Opposition" is simply a factual matter that they held that title from 1993 to 1997, and were then displaced by the Reform Party in that role. It is not a title that attaches to all opposition parties, only that of the Leader of Her Majesty's Loyal Opposition.
http://intensedebate.com/people/Thwim Thwim

Really? How? What are they doing?

Are you to partisan to acknowledge that what this government is doing on the economy is precisely nothing? The stimulus package was forced on them by the opposition, not the government. The interest rate environment we find ourselves in that has allowed us to recover well was the position of Mark Carney, not the government.

The strength of our banking institutions is due to a more risk adverse position in our banks, as well as actions taken by the Liberals several years ago in preventing large bank mergers. The only thing our government has done to "manage" our economy that they can truly claim as their own is cancelling a change they themselves put in place when they saw how it blew up in the US.
Michel Boucher

"So far the Conservatives have not done better. "

I would say they have done much worse. The only thing the Liberals did was carry out a plan to keep Québec in Canada and spent money on it, very little of which was abused. The bulk of the money was spent on legitimate programs (within the definition of the project). The uproar that ensued was akin to a man, after having sex with a beautiful woman, complains when he realizes he has to pay for it.

The Conservatives on the other hand have perverted the process of Parliament by obfuscating/proroguing on any issue they felt threatened them, refused to accept any form of criticism, and they think they are right to do that. Moreover, they have allowed/enabled/permitted/acquiesced to/ordered (pick your favourite) criminal acts by the military when gauged by the law of the land and international instruments to which we are signators.

Say what you will, the Liberals were choir boys compared to these jamokes.