‘I cannot presume to judge the quality of the responses that have been received’

by Aaron Wherry

As noted in our live coverage, Speaker Scheer ruled last night on Nathan Cullen’s question of privilege. Below, the text of that ruling. In short, I’d say it might have been a different matter if a parliamentary committee had issued an order for documents related to the information sought by Mr. Cullen. In that case, the Speaker might have been able to rule as Speaker Milliken did last year in regards to a demand for documents (the ruling that ultimately led to a finding of contempt against the Harper government).

I am now prepared to rule on the question of privilege raised on June 11 by the hon. House Leader of the Official Opposition regarding information on the impact of Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.

I thank the hon. House Leader of the Official Opposition for having raised this question, as well as the hon. Leader of the Government in the House of Commons and the hon. member for Winnipeg North for their comments.

The House Leader of the Official Opposition maintains that he was unable to secure the government’s co-operation when he attempted to obtain information on the impact of Bill C-38 by means of written questions, questions asked during question period and in committee, and requests made through the Parliamentary Budget Officer. He charged that this failure to respond to a requests for information impeded members in their ability to hold the government to account and “makes them vote blind on the actual budget”, thereby constituting a breach of members’ privileges and a contempt of the House. The House Leader of the Official Opposition also maintained that by refusing to respond to the request by the Parliamentary Budget Officer, the government had violated the Federal Accountability Act, because the reasons given by the Clerk of the Privy Council to justify the refusal were not justifiable under the law.

The government House leader argued that the opposition House leader had failed to bring this matter to the attention of the Chair at the earliest opportunity. He contended that no specific part of Bill C-38 was objected to, arguing that the information referred to by the opposition House leader was, in any event, germane, not to budget implementation bills like Bill C-38 but rather to appropriation bills that Parliament would be asked to consider.

At the outset, it is important for members to know that it is not for the Speaker to decide whether the opposition House leader is correct in stating that the government is required by law to provide the Parliamentary Budget Officer with certain types of information. This is a legal question and is not a matter for the Chair to advocate, much less enforce.

In my ruling of October 24, 2011, which is found on pages 2404 and 2405 of Debates, I reminded the House of the long-standing principle that has guided the Chair in interpreting constitutional and legal matters. At the time, I also said: “… it is important to delineate clearly between interpreting legal provisions of statutes—which is not within the purview of the Chair—and ensuring the soundness of the procedures and practices of the House when considering legislation—which, of course, is the role of the Chair.”

Thus, should members feel that the government is in breach of the Federal Accountability Act, redress for such grievances may be sought through the courts, not here in the chamber.

Echoing the ruling given by Speaker Milliken on April 27, 2010, on the question of privilege concerning the Afghan detainee documents, the opposition House leader argued that in a system of responsible government, the right of the House to hold the government to account for its actions is an indisputable privilege. In the 2010 case, however, the circumstances were quite different. There had been a House order and committee orders requiring the production of documents. So it was the responsibility of the Chair to ensure that the orders of the House were obeyed. In the case before us, there are no such orders and, in their absence, the Speaker has neither the authority nor the power to compel the production of information.

This brings us to the opposition House leader’s core argument, namely, that members are being impeded in the performance of their parliamentary duties because the government is not providing them with certain information that they need to properly consider legislation and hold the government to account. The Chair treats all matters that touch on the privileges of members with great seriousness.

In that regard, it is completely legitimate to try to obtain information through a variety of means available to parliamentarians. Speaker Parent confirmed this when he stated, on page 688 of the House of Commons Debates: “In order to fulfill their parliamentary duties, members should of course have access to the information they require.”

Members have every right to seek financial information at any time, they need not wait for it to be found in appropriation bills or any other legislative proposal. Such requests have happened before and they will doubtless happen again.

In the case before us, the opposition House leader has acknowledged that information was unsuccessfully sought through various means including written questions, questions posed during question period and questions posed in committee. I cannot presume to judge the quality of the responses that have been received.

Speaker Milliken clearly established this on December 1, 2010, on page 6677 of the House of Commons Debates: “… it is not for the Chair to decide whether an answer or response given to a question constitutes an answer to that question. It is beyond the competence of the Chair to make that kind of decision under our practice.”

Similarly, O’Brien and Bosc at page 523 points out that it is not for the Speaker to determine the quality or accuracy of the information provided by the government. This is consistent as well with a ruling given by Speaker Bosley on May 15, 1985 at page 4769 of the Debates in which he states, “I think it has been recognized many times in the House that a complaint about the actions or inactions of government Departments cannot constitute a question of parliamentary privilege.”

Furthermore, as I noted earlier, there is no House or committee order requesting the information sought by the hon. member. The Chair appreciates his frustration and I understand that he may feel aggrieved in view of his unsuccessful quest for more detailed information.

However, while the member may have a legitimate grievance, I can find no evidence that he or any other member has been impeded in the fulfillment of their parliamentary duties. Accordingly, I cannot find that there is a prima facie question of privilege in this case.

I thank hon. members for their attention.




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‘I cannot presume to judge the quality of the responses that have been received’

  1. So in other words, we would be better served in the house by a chess clock for a Speaker, since apparently the rules prohibit a speaker from using any portion of their brain to actually adjudicate the debate.

    • I’ve met Andrew Scheer. There’s just not that much brain available.

  2. What a load of crap! Basically he says that just because the government has illegally refused to give requested, relevant information to the Opposition that they need to evaluate a Bill is no grounds for preventing it from being passed.

    i.e. Breaking the law to pass a bill is not in and of itself grounds for the Speaker to prevent or delay the passage of the bill.

    Niiiice!

    To say their recourse is with the court is to say they have no recourse; by the time they can get a hearing, the bill will already be passed. I could be wrong, but I don’t think the courts would have the authority to force the repeal of a bill on these grounds – so there is no adequate recourse.

  3. I’m a helpless mannequin, unable to have any impact on anything ever. My only job is to wear a robe and appear lifelike.

    • It wouldn’t be quite as bad if he didn’t make an extra $75,000/yr, plus $4000 in car and housing allowance, for this stellar non-performance.

  4. I’ve been operating under the presumption speakers are generally acting independently much like the judiciary. but I am becoming little wary of some of the rulings I have been hearing of late.

    I’m certainly no expert – we would be well served if Macleans could round up a panel of first-class luminaries on parliamentary procedure and ask them their opinions on some of Scheer’s more newsworthy rulings.

    • Oddly, this ruling is one I feel is more likely technically correct, but not right. Which is sad, because there was certainly latitude for a ruling that was both.

  5. Try harder, guys – the subtext of “Only decisions and decisionmakers I agree with are legitimate” is becoming text.

    • Baloney. The text and subtext are the same: Decisions which allow one party in the government to hide information about what they are doing from other parties in the government are illegitimate. It has absolutely no connection to which party sits where.

    • Sniff test:

      Would it still be ok if the positions were reversed and theSpeaker was making rulings that consistently served his Liberal appointers, not the office which he pledged to serve,?

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