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Wednesday, April 28, 2010

Peter Milliken’s decision: a draw

The decision yesterday by the speaker of the House of Commons on whether the government must hand over, non-redacted, all documents requested by a parliamentary committee was pretty much as expected. Peter Milliken confirmed that parliament is the highest authority in the land and can compel the executive branch of government to do its lawful will.

The opposition is trumpeting this as a victory over the Conservative government, but its not much of one. After all, the Speaker also upheld the obligation of the executive to protect state secrets and other confidential information not suitable for public disclosure.

To view such sensitive information, opposition members will have to maintain confidentiality or face serious legal consequences. It is true the opposition does get to have a say in who decides the information constitutes state secretes or have other reasons to be kept confidential, and I suppose this was about all they really expected to get from this.

Peter Milliken has given the government and the opposition two weeks to come to an agreement on how the documents will be handled, or failing this, the speaker will make a further ruling on the matter. The clear inference here is that the opposition had better be reasonable and bargain in good faith with the government or they might just find themselves in contempt of parliament.

We live in a democracy, but there are special circumstances to be considered. For one thing, the documents in question relate to a war Canada is waging in Afghanistan and the reputations of our Country and our armed services are at stake. For another, our parliament contains a contingent whose very existence as a political party is to engineer the break up of our country. How can that party’s members be trusted to see any and all of Canada’s state secrets? I, for one, do not believe they can.

It does seem to me, though, that our governments over the years, Conservative and Liberal, have been excessively secretive. Their default position seems always to have been, we’ll keep information from Canadians unless there is a compelling reason to divulge it. Transparency has never been our governments’ long suit.

The current government might not be any worse in this regard, but that does not say very much for our right to know what they are doing behind closed doors. I would like to see more openness on the part of our governments—a lot more openness and transparency.

 

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© 2010 Russell G. Campbell
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14 comments — This is a moderated blog and comments will appear when approved. Please don’t resubmit if your comment doesn’t appear immediately, and please do not post material that is obscene, harassing, defamatory, or otherwise objectionable.

  1. "the Speaker also upheld the obligation of the executive to protect state secrets and other confidential information not suitable for public disclosure."

    Could you please point out to me where he said that because I think he said just the opposite when he writes: "As has been noted earlier, the procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents. No exceptions are made for any category of Government documents, even those related to national security."

    So I don't know how you can say that that actually means the opposite of what he says.

    "The clear inference here is that the opposition had better be reasonable and bargain in good faith with the government or they might just find themselves in contempt of parliament."

    I really find it hard to see how you (and with respect, you alone) come to that conclusion.

    Miliken has said that Parliament is supreme and that it can order the production of documents and that it is a matter of privilege. He said the government must produce those documents. He said the whole Iacabucci thing is a non-starter.

    And he said that the government is right to be concerned about security but that the opposition has proposed a number of ways to ensure secrecy and it has been done many times before.

    And then he says if an agreement can't be reached in two weeks then he will allow the House to vote on the question of privilege.

    No question of privilege - and therefore no contempt charge - has been raised about any member of the opposition.

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  2. I know some Tories feel the need to try to reinterpret the ruling, but even a quick reading makes it clear. The Crown in the Westminister system simply does not have the right to withhold information if Parliament demands it.

    This system has been in place for over three hundred years, and during that entire time there is a singular fact, Parliament is supreme over the Government. The bedrock of the Westminster constitution is that the Crown cannot act in defiance of Parliament, nor can it hide any of its proceedings or actions from Parliament. Parliament may decide to "look the other way", as it has often done in times of war (ie. Parliament in the UK during the Second World War certainly didn't demand operational documents, trusting that the National Government, but still there were raucous debates during key moments like the loss of Hong Kong), but such decisions are solely Parliament's to make.

    This idea that somehow in our system there's this escape clause that allows a government a way out when Parliament comes knocking is a fiction. There is not a single constitutional expert in the Westminster system who has taken such a position. The law, the constitutional framework is clear; since the Bill of Rights 1689 Parliament is supreme over the Crown, and that includes Ministers of the Crown. They cannot deprive Parliament of whatever it demands of them, and to do so is indeed to violate the Rights and Privileges of Parliament that were won with so much blood and instability in the 17th century.

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  3. Well let us talk about today,s politicians and forget governments of the past.I would not let one opposition member see 1 page of these secret--top secret papers.They just cannot be trusted.And today,s Conservatives have given us no reason not to trust them.personally i would jail half the opposition members and turf the Block back across the border where they belong.

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  4. I don't see it as the government being secretive as much as cautious, especially since they have a media machine with clear bias against them.

    Had they not kept their lips so stiff all this time they would of only left themselves open to needless gaffes as they have in some cases. Which the then get jumped all over for anyway.

    I've come to learn it is better that they speak only when they are sure of their situation then try to explain themselves while whatever is happening is still playing out.

    In an age of instant sound bites, even the most honest of gaffes can be used against them later to smear their creditability same goes for the opposition but their not the ones in positions of real responsibility so they can afford the distraction.

    They may appear more secretive to some but its in an effort to remain honest and accurate while avoiding needless conjecture or getting caught up in semantics.

    Openness and transparency is overrated in this regard since the truth more often than not eventually plays out or becomes realized and explained over time.

    Having too much openness leaves no time for the for to clear and the dust to settle since we all live in a world of various shades of gray and nothing is always so black & white to require us more access than we really need. Especially since that access will also be granted to others who will abuse it not only for their own gain but to our country's loss.

    I think the speaker is being fair and reasonable. I would take it a step further than legal action if the confidentiality agreement is abused or violated. A leak to the media is an eventual leak to our enemies abroad I wouldn't doubt that they too aim to exploit this affair, not just the opposition parties for their petty attempts at "political gains".

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  5. What's your point, Anon? Who's arguing otherwise?

    The dispute is over how to handle state secrets and Peter Milliken has agreed that the government should not simply hand over sensitive documents, but should work out a process with the opposition.

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  6. Ted,

    I watched and listened carefully to the Speaker when he delivered his decision. And stand by what I wrote.

    The National Post's editorial this AM seems to be saying much the same thing.

    http://www.nationalpost.com/opinion/story.html?id=2963358

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  7. Russ:

    Well, certainly, everyone is entitled to their opinion, but how do you jive your opinion with what Miliken actually said, as quoted verbatim up above in which he states there are "no exceptions" to the requirement to disclose what Parliament says it has to disclose.

    All he said about security is that it is reasonable for the government to hold back but that doesn't really matter if Parliament insists. He then said it is his hope that the government will consider some of the proposals the opposition have made to ensure secrecy, as has been done many times in our past, and all the parties need to dial down the rhetoric and find a compromise as we have for 140 years on such matters.

    As for the NP editorial, I was not surprised that they tried to paint this as a little less than a complete loss for Harper and a little less than a complete victory for the opposition and democracy. But I was impressed that they recognized that the decision was pretty much bang on.

    I was also very much impressed that they directly scolded the Conservatives to live up to Parliamentary democracy: "the Tories worry opposition members might vote to release documents the government didn't want released. Too bad. Get a majority. That's how Parliament works.

    Tory MPs and bloggers have also said the risk that opposition parties might appoint indiscreet MPs to the oversight committee is too great. These MPs might release documents that compromise our national security. To be sure, there are MPs with unsavoury sympathies, but this is hardly an insurmountable problem."

    Yesterday was a very good day for Canadian democracy.

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  8. Bertie: such a good democrat you are. Such fine citizen you would make in a 1930s Germany.

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  9. Ted, I agree with your last sentence.

    As to the rest, Liberals have won so little these days I can see where you need to pump Milliken's decision for all it's worth.

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  10. I'm not trying to do any pumping, Russ.

    I am just really curious how you can say:

    "Speaker also upheld the obligation of the executive to protect state secrets and other confidential information not suitable for public disclosure."

    ... when what he actually said was:

    "As has been noted earlier, the procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents. No exceptions are made for any category of Government documents, even those related to national security."

    The two comments are diametrical opposites.

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  11. I was only half-serious about my pumping comment. But you do keep quoting stuff I acknowledge. In my post I wrote:

    Peter Milliken confirmed that parliament is the highest authority in the land and can compel the executive branch of government to do its lawful will.

    Enough already!

    As to the sentence of mine you are curious about, here is my justification (emphasis is mine):

    From the Speaker's ruling:

    "But what of the House’s responsibility regarding the manner in which this right can or ought to be exercised? The authorities cited earlier all make reference to the long-standing practice whereby the House has accepted that not all documents demanded ought to be made available in cases where the Government asserts that this is impossible or inappropriate for reasons of national security, national defence or international relations."

    And this,

    "Now, it seems to me, 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? In other words, is it possible for the two sides, working together in the best interest of the Canadians they serve, to devise a means where both their concerns are met?

    "Surely that is not too much to hope for."


    And this,

    "The House has long understood the role of the Government as ―defender of the realm‖ and its heavy responsibilities in matters of security, national defence and international relations."

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  12. Exactly.


    "The House has accepted", "The House has long understood", i.e. it is up to the House to decide what is to be delivered and what is not, it is not up to government to make that determination. There is no obligation; the House chooses and there are "no exceptions".

    The House gets what the House wants. And in 140 years, the House has always generally acted reasonably on this so, Mr. Harper, please consider some of the protective measures the opposition has already suggested and work with them. As for you opposition, dial down the rhetoric and continue working for a solution.

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  13. Ted, you insist on repeating something I've readily acknowledged. It seems you like argument for its own sake.

    If it were all so cut and dry as you insist, and insist and insist, why did the Speaker say in his penultimate paragraph,

    "I will allow House Leaders, Ministers and party critics time to suggest some way of resolving the impasse for it seems to me we would fail the institution if no resolution can be found. However, if, in two weeks’ time, the matter is still not resolved, the Chair will return to make a statement on the motion that will be allowed in the circumstances."

    A constitutional law professor who was one of Milliken's teachers seems to believe the opposition also has an obligation of good faith when trying to come to an arrangement with the government and might themselves be held to account by the speaker. We'll see how this plays out.

    Well, in any event, that's all I have to say on the subject. I'm moving on.

    Thanks for your thoughtful comments.

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  14. It's pretty clear that Miliken is saying that Harper's refusal to comply with the order is a matter of privilege and he will allow the House to vote on that and find the government in contempt if, in two weeks, an agreement is not found on the process for releasing the documents.

    It is like a suspended sentence. The verdict is rendered but the punishment suspended; however, if you don't comply with the terms of the suspension, the full force of the punishment will be enforced.

    The House has raised a matter of privilege based on the Conservatives' conduct. The House has not raised a matter of privilege based on the conduct of the opposition parties. So there is no question of privilge agaisnt the opposition parties on which the Speaker could rule.

    There is most certainly a request even a demand that they continue to try to work with the government. And if they showed no good faith, then it is open for the Speaker to continue to suspend his ruling, give them more time with more direction... I suppose.

    But:
    1. Miliken in no way upheld that there is an "obligation of the executive" that trumps or equals the power of the House to demand unredacted documents. He said the opposite. What he wants is for the opposition to not exercise its power to do so, yet, and give the government one more chance.

    2. Miliken cannot, on his own whim, find anyone in contempt. He needs a motion from someone about someone else. He would then get to determine if it was prima facie a question of privilege and, then only if he thought it was prima facie a question of privilege, he would let the the House vote on the matter, but it would the House that decides in the end.

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