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

Towards an understanding of the understanding (II)

by Aaron Wherry on Friday, June 18, 2010 12:45pm - 20 Comments

At my request, a few thoughts from Lorne Sossin on the Conservative-Liberal-Bloc memorandum of understanding.

The reference to the solicitor-client privilege and cabinet confidentiality (para. 7) potentially could be used to shield much of the material which is at the heart of the debate, but I think these are issues which cannot be ignored, and the delegation of decision-making over them outside a partisan framework to a panel of independent arbiters, guided by the overall goal of maximizing disclosure and transparency, is a fair and reasonable solution to a thorny dilemma. It also, however, puts additional pressure on the selection of the arbiters and the need for these individuals to enjoy broad credibility and trust across party lines.

Tags: Afghanistan, detainees, documents, Lorne Sossin, parliamentary privilege, privilege, torture, transfers

More by Aaron Wherry

http://intensedebate.com/people/Style Style

" I think these are issues which cannot be ignored". I'd like to hear that explained. We've given a committee of MPs access to information which could compromise national security, but we can't trust them with solicitor-client and Cabinet confidences? Why is that?

http://intensedebate.com/people/YSP YSP

I think the issue is it's a bad idea to allow parliament to trample well-established laws and precedent on solicitor-client privilege and Cabinet confidences. Eventually this issue will go away we'll still need a working legal system.

Basically, we need to respect the law, even if the government of the day doesn't seem to.

http://intensedebate.com/people/Style Style

Is there a well-established precedent for withholding these categories of documents from Parliament? Speaker Milliken didn't seem to come across any when he wrote his ruling…

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

I agree with you both. My thinking is that, after signing a confidentiality undertaking as well as an oath, four MPs (one from each party) could see the documents. I'm not concerned with the entirety of Parliament or the general public for that matter, and am fine with Arbiters deciding how to move the information forward to the wider groups.

The problem is, as I see it, that Cabinet documents and solicitor-client documents are seen by more than just the Cabinet, or just the solicitor and the PM now. So we're saying that filing clerks and typists and redacters and other bureaucrats can see this stuff but a very select few MPs can't. If I was convinced that certain documents absolutely did not have "other" eyes on them ever, I might think differently.

wascally wabbit

Aaron – frankly – this deal has sleaze – and future sleaze – written all over it.
IMO – the chance that these jurists will challenge the pre-scribed designation BY THE GOVERNMENT of documents it wishes to hide from the Opposition MPs (client-solicitor privilege; cabinet confidential and national security secret) is NIL! For them to do so, would unravel almost 150 years of precedents.
Anyway, I am frankly so disallusioned by the Liberals, I am pretty well convinced that either they are dreaming of one day soon being on the government side – and they do not wish opposition challenges for access to similar sensitive documents to be “too rigorous” – or worst – they have been in essence blackmailed by Harper that in opposition – he would turn this against their actions in the past if they pushed too hard.
http://eugeneforseyliberal.blogspot.com EugeneForseyLiberal

And I think I'm naive. Sossin. Silly boy. And ignores precedent re. MPs' right to access to ALL documents, and ignores Attaran's point re. what a canard "solicitor-client privilege" is when Govt, INCLUDING Parliament, is client. And that this is less than even Bush acceded to. Anyway, I hope he's right and all's well in this, the best of all possible worlds.

Mike R

The problem with Mr. Attaran's opinion is that he seems to think the term Parliament or, in this the Commons (since the other elements of Parliament, the Senate and the GG have not taken a position on the issue) is synonymous with government. It is not. The Commons can pass bills, and any ministry must have its confidence, but members of parliament are not members of the government. Advice given by solicitors to the government is not the same as advice being given to the Commons (which has its own legal staff). "Parliament" is never the "client", even though it may require documents to be released to it.
The current proposal recognizes that distinction and seems a sensible way to balance the competing interests at play here.

Mike T.

Some members of parliament actually are members of government, and their duties can be difficult to divide.

Think of it as a subsidiarycompany whose conduct hasn't yet brought been subject to any legal charges, but whose conduct has made the mother company suspicious, and they want to get a sense of what's going on.

http://intensedebate.com/people/PeteTong PeteTong

What about former Ministers of Foreign Affairs or National Defense:
John Manley? Kim Campbell? David Emerson? Bill Graham? Pierre Pettigrew? Joe Clark? Barbara McDougall?
pdpd

Isn't this whole "broad credibility and trust" thing really dodgy? It sounds to me that it's begging for a John Roberts or Pamela Wallin situation – moderate and thus political gold until it turns out they are hitting the partisanship even harder than their publicly partisan peers.

In the Canadian context, where people are much less known and scrutinized than perhaps a US supreme court judge might be, it will be pretty much impossible to get a gauge on how a supposedly moderate public figure would react on an extremely narrow set of issues (for which legal training actually provides very little help). There will be really tough asymmetries of information leading up to negotiations, and picking candidates will be an absolute mess for the three parties.

I guess what I'm trying to say is that the whole thing seems destined for arbitrariness masked as principled procedure. Maybe the Liberals score two closet anti-government types. Maybe Harper pulls off another Manley report. Either way it's really bad for Canadian democracy, where this unbelievably flawed and fragile compromise is going to be held up as the way to resolve differences, when in fact it has pushed those differences as far as possible, and then resolved them by effectively saying: "hey: John Manley and Hugh Segal, both great guys, think these documents are in and those are out".

http://eugeneforseyliberal.blogspot.com EugeneForseyLiberal

Well noted. I propose David Johnston, we know he's a sound chap (unless he's about to be GG, dual duties might be a bit much, even for our tiresome peons.)

http://intensedebate.com/people/hollinm hollinm

Until the lefties can show where the Conservative government stole the G8&G20 money together with the stimulus money then they have little to complain about. The money is being spent on infrastructure across the country. The trouble is the opposition parties know that Canadians who have starved for infrastructure spending on 13 years of do nothing Liberal governments will finally get some projects done. Canadians will remember it come the next election.

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

This comment isn't like you, hollinm, in that it is very troll-like.

And it is troll-like in that it has virtually nothing to do with the subject under discussion. And since you really seem to be discussing a fine point in the G8/G20 boondoggle that I'd like to disagree with if it were the subject matter at hand, I wonder if you accidentally posted to the wrong thread?

http://intensedebate.com/people/hollinm hollinm

Jenn……I must have been having a senior moment.

However, if we were discussing the G8 and G20 summits. I would still have the same opinion.

Thanks for the heads up.

Mike T.

What would be a possible legitimate reason the government would not waive solicitor-client privilege anyway? So far we've theoretical arguments (which do carry some weight, although I come down on the other side on this matter).

If a compromise was going to be reached on this matter, a good one might have been something similar to the deemed undertakng principle (ie, anything covered by solicitor client privilege that is embarrassing but isn't connected to government screwing up the detainee issue will remain secret).

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

Yes, that the arbiters could agree with that characterization without the four selected MPs seeing the document itself, would work very well in that situation. It has occurred to me that a document might just include both something relevant on the detainee issue, and some electoral strategy or some other possibly illegal act we have yet to hear a whiff about. And we do have a principle about not incriminating yourself (which giving that info to the opposition clearly would do) so I see the Conservative point in this specific situation.

http://intensedebate.com/people/Style Style

That is very refined sarcasm. "I'm fine with a cover-up of illegal activity as long as the cover-up is effective, but if people start to suspect something, then I demand disclosure".

Wascally Wabbit

@hollinm – babbling your non sequiturs well this morning old chap!

http://intensedebate.com/people/hollinm hollinm

Wascally……..you know what I said is factual. While Iffy travels on his summer bus tour Harper is on the world stage looking prime ministerial and doing some good for the world. Your guy is only comfortable talking to kids who don't vote and to small groups of Liberals. In the meantime the members of his party are busy sticking knives in his front never mind his back.

Interesting that Ignatieff said he would not tell Chretien to stop talking about a merger. Therefore what he has done is confirmed indeed that there are merger talks going on despite all the false denials.

http://intensedebate.com/people/madeyoulook madeyoulook

HM, be fair. At this point "small groups" is pretty much all he's got. And I suspect the worst way to get Chretien to stop doing something he really wants to do would be to publicly chastise him for it.