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

JMG

You're not reading correctly. It is not that the Commons is requiring the government to release any information publicly, but that it must be released to a committee of the Commons. The documents can be examined in camera and it will be at the discretion of that committee to release pertinent information publicly. Parliamentary privilege trumps assertion of the Royal Prerogative, and this is *absolute*.
Jan

I see we're campaigning already.
http://intensedebate.com/people/danby danby

The way Mr Harper has it figured, the court of spun public opinion trumps the will of the House, and he`s perfectly willing to push all his chips into the center of the table to prove it. He won`t call the election, but he is daring the opposition to force one.
I don`t think much of his position, or of him, but it is what it is.

The way I see it, you either call his bet, or let him haul in the pot.

come again

nicely put.

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

I may disagree with the Blocs ultimate goals, but as MPs they are quite good in general. If the question of separation was ever settled, I'm sure that many of them could serve in cabinet positions and be quite competent in their roles.

I agree that there should be rules, but not dictated by the Government. Besides the motion that he was ruling on, wasn't that the plan anyway? That is why the Speaker ruled in the way that he did.

So it seems the point of contention here is trust, and who should specify the rules upon which to proceed. Lets hope the meetings go well. However, ultimately Parliament has the power in this, it's just that that hasn't been tested as much because we haven't had a minority for some time before 2004. I am confident that, if the Harper government wishes to resolve this amicably, the parties involved will come to a reasonable compromise.
wellwell

As JMG has pointed out, a reference to the Supreme Court would not stop a contempt motion from passing in the House, nor would it prevent government from falling. There is no mechanism to stop the House from exercising its own privileges while a reference is being considered by the Court.

From a political standpoint, the risks are at least as great for the government as for the opposition.
bettie

Glad to help out. Mr. Wherry does not have Mr. Harper saying, ""Mr. Speaker, we look forward to both complying with your ruling and with the legal obligations that have been established by statutes passed by this Parliament." Now does that not sound cooperative. Wherry has him replying to Ignatiff, "Mr. Speaker, you have made a ruling."

I see a difference… don't you see a difference?
Mike R

Strangely. He actually can write decent articles. When he blogs, for some reason, he prides himself on coming across as a supercilious twit. I suppose he thinks it matches his photograph.
http://intensedebate.com/people/FVerhoeven FVerhoeven

Bravo bettie!

I wonder too why sometimes direct quotations are used and at other times parts of a quotation. It gives a slight slant. The slant is very sublte, of course, but those subtle slants are the most dangerous ones: because very few people notice this slight slant by "hand", the direction of opinion gradually creeps in. It's setting a tone indeed, and the setting of tone should not be ignored so readily.
Dean

I Want A Federal Election Now! http://www.facebook.com/group.php?gid=12247860110…
wellwell

Mike R, I offered the invisible clause as a useful heuristic for you, but you perversely insist on misinterpreting the law as uncertain and conflicted. Let me state it bluntly – if a majority of the House of Commons decides to publish all of the Afghan documents unredacted on a website for all to see, it has the legal right to do so. It may decide to shield the documents from public view for reasons of national security or for other political reasons, but it is not required to do so.

Public servants, and the government itself, must follow the will of the House. and are not acting illegally when following instructions given to them by the House. The only caveat is that the House must be acting within the constitution.
Out There

Okay, thanks.

Do any of those laws mandate that members of Parliament are not authorized to receive these certain types of information? Even in secret? My guess is "no".

These laws would mandate that secret information should not be released to the general public, but no one is asking for that.
http://intensedebate.com/people/lgarvin lgarvin

I appreciate the citation… but you really ought to have read it and quoted it a little more.

This is what precedes your quotation:

Section 43 of the Anti-terrorism Act replaced sections 37 and 38 of the Canada Evidence Act by sections 36.1 to 38.16 and section 44 added a schedule to the Act, set out at Schedule 2 to the Anti-terrorism Act itself.

and this is what follows your quotation:

The superior court hearing the objection to the production of information or, in other cases, the Federal Court determines whether the objection should be upheld in whole, in part or not at all. These provisions set out rights of appeal to the provincial court of appeal or the Federal Court of Appeal, and to the Supreme Court of Canada

Meaning that – in this case – the government can object but Parliament as a whole will decide (as gottabesaid already said).
http://intensedebate.com/people/Open_Democracy Open_Democracy

Fortunately, Canada has a Governor-General that does not march, without at least thinking about things first, to the orders of the Prime Minister or I suspect Mr. Harper would already have prorogued Parliament again.

Mr. Haper does not want to fight another election he knows that he will lose (at least in a minority sense). Those in the back rooms who control the CPC will not allow him the luxury of staying on as Leader if he loses his fourth election.

http://viableopposition.blogspot.com/
http://intensedebate.com/people/Be_rad Be_rad

I think the ultimate question is whether or not the law as drafted clearly includes the right to withhold information from either house of parliament. In other words, that the law takes away a privilege.
http://intensedebate.com/people/danby danby

No, it is not a bad thing.
It does bother me though, that matters of principle will be settled by polls.
If there was polled support for this, the opposition would be demanding an election and Mr Harper would be backpedaling down some other dark alley.
There are times when you step up, show some mettle and give it all you have. If the opposition are not willing to do that, then that's what we're dealing with.
As a voter, what I see is a government that will dispute absolutely anything it does not like, and it would not surprise me one bit if this obstructs efforts to determine how the infrastructure billions were spent. Yes, I even think they'd try to undermine Sheila Fraser if they had to – just ask Peter Milliken.
Say what you want about the Liberals, but the fact they initiated the Gomery Inquiry and took their lumps – far more accountability then you will ever see out of this lot.
Andre

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.

That's what Wherry posted. Now it seems it's you who's misquoting Harper since you don't include the "as I have said" part.
http://intensedebate.com/people/RunningGag RunningGag

The question is, what assurances will the Opposition give that they will keep this information in camera?

I guess the same assurances that Government ministers must give. I'm not sure where this nonsense about Opposition ministers comes from. Just as members of the governing party, they have been elected by the citizens of Canada to represent the citizens of Canada.

Unless they are unable to pass security clearance requirements, I see no reason why Members of Parliament should be blocked because of their party affiliation.
http://intensedebate.com/people/Be_rad Be_rad

I think one of the privileges that parliament has is free speech and that this is given to witnesses appearing before committees. Here is an excerpt from their own procedure book:

Witnesses appearing before committees enjoy the same freedom of speech and protection from arrest and molestation as do Members of Parliament.[618] At the committee’s discretion, witnesses may be allowed to testify in camera when dealing with confidential matters of state or sensitive commercial or personal information.[619] Under special circumstances, witnesses have been permitted to appear anonymously or under a pseudonym.

Tampering with a witness or in any way attempting to deter a witness from giving evidence may constitute a breach of parliamentary privilege. Similarly, any interference with or threats against witnesses who have already testified may be treated as a breach of privilege by the House."

So it may be that this privilege protects thepublic servant when compelled to provide information. Any thoughts?

Link to full text is herehttp://www2.parl.gc.ca/procedure-book-livre/Document.aspx?sbdid=DC42FA65-ADAA-426C-8763-C9B4F52A1277&sbpid=A67ED1D4-3D3E-4A5D-BADA-BA619985669F&Language=E&Mode=1” target=”_blank” rel=”nofollow”>:http://www2.parl.gc.ca/procedure-book-livre/Document.aspx?sbdid=DC42FA65-ADAA-426C-8763-C9B4F52A1277&sbpid=A67ED1D4-3D3E-4A5D-BADA-BA619985669F&Language=E&Mode=1
http://intensedebate.com/people/RunningGag RunningGag

Why assume the opposite?

Because its the Government. The Government has an obligation to be transparent and accountable.

If the opposition is really concerned that Canadian soldiers, diplomats and politicians have abused Taliban prisoners then they can agree on reasonably steps to preserve those aspects of sensitive information that reasonably need to be protected.

They have. The Liberal proposal, as I understand it, suggests an in camera Parliamentary committee. The problem is that the Government seems to think that these reasonable steps include not investigating any of it.
http://intensedebate.com/people/RunningGag RunningGag

Stalin references must to be Godwin-able.
http://intensedebate.com/people/RunningGag RunningGag

Chet,

Why do you hate Canada?
Mike R

Possibly. Certainly it would apply to a civil service actually appearing before the committee. Does that protection also extend beyond the bounds of Parliament Hill? I'm not sure. Would a prosecution for release of confidential information fall within the ambit of a "threat against a witness?" An interesting point. The question remains as to how one balances, if there is a balance, between clear statutory language of laws enacted by Parliament as a whole, and the rights of members of Parliament. Perhaps a blanket statutory amendment would clarify matters.

More to the point, of course, is the obligation of members to ensure that information they do receive is, as the procedure book states, subject to the appropriate levels of protection. I expect that once those appropriate levels are agreed to, the opposition will lose interest in the subject fairly quickly, as it will no longer lend itself to the type of grandstanding and crocodile tears that this particular committee has been indulging in.
Jaruca

“Weasel words!” cried a Liberal.
mikell

we have good goverment
deport iffy iggy
Mike R

Government ministers are members of the Privy Council and, therefore. entitled to deal with confidential information (that's the Privy part). There have been instances where opposition members have been sworn in as Privy Coucillors to allow them access to such information. That is probably not necessary here, so long as the appropriate safeguards over the information can be agreed upon. 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).