‘I must respect the Act that governs my work’

by Aaron Wherry
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The Auditor General has officially replied to Jack Layton’s letter of Tuesday evening.

The Auditor General Act outlines our reporting responsibility and specifically addresses the situation of Parliament not sitting. Subsection 7(5) provides for the submission of our report to the Speaker of the House. When the House is not sitting, it requires the Speaker to table the report on any of the first 15 days on which the House is sitting after the Speaker receives it.

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Posted on:
Thursday, April 14, 2011




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Aaron Wherry
Macleans.ca administrator
Aaron Wherry covers the House of Commons and its 308 residents for Maclean’s.

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‘I must respect the Act that governs my work’

  1. Of all people the AG is the one most likely to follow the rules to the letter.

  2. Of all people the AG is the one most likely to follow the rules to the letter.

    • True, but according to the quote above, the letter actually says she's to table her report with the Speaker. After that, it says what the Speaker does. And the Speaker has said if he got all party support to release it, he could do so. And Milliken is still the Speaker until a new Speaker is chosen.

      So, I don't get the problem.

      • So she could pass it on to the speaker and then HE could break the rules and be in contempt ??

        It says he's required to release it on one of the first 15 SITTING days. Obviously the house is not sitting.

        And four house leaders can suspend HOUSE rules but they can't suspend the law (that would require an actual bill to pass the house, the senate, and be signed by the GG.)

        This is a pickle Cats !

        • Not really, because Parliament is supreme. Parliament can break the laws, if Parliament says so (this is completely different from individuals of Parliament, so we might need the vote of 308 Parliamentarians instead of just the leaders, but that is another question) As I understand it, of course.

          • Parliament as a whole can waive laws. So it would take a formal vote. But without parliament sitting, it can't make that vote.

            The only way I can think of that this situation might be resolved (and this too might not be possible/legal) is for the GG to call parliament back to sit for a day, have the report tabled, and then immediately dissolved again. Except I think if parliament sits after being dissolved, the first thing that needs to happen is a Throne Speech, isn't it?

          • I think you're right. And short of a debate on going to war or declaring bankruptcy, I have trouble imagining what sort of national emergency would compel His Excellency to pull that alarm trigger. This (the AG report whose draft is showing) certainly doesn't come close.

          • The house only controls house rules.

            When people say Parliament is supreme they mean the house AND THE SENATE. Taken together.

            (Even this is questionable, are they not constrained by the charter and by the supreme court ?)

            So was Thwim points out it would need to be parliament as a whole.

            And they can't waive laws, they can remove them from the books.

            Cats away!

        • It says he's required to release it on one of the first 15 SITTING days. Obviously the house is not sitting.

          I don't read that clause the same way you are. To me, that clause prevents the Speaker from sitting on a report he's been given for more than 15 days after Parliament is recalled. I don't see it as preventing him from releasing the report before the House sits once again.

          The 15 days simply says, as far as I know, that the Speaker must table such a Report within 15 days when Parliament is sitting. To my mind the Speaker would be wrong to wait to table a report until the 16th day of Parliament sitting, but not wrong if he released a report to the public before Parliament came back.

          • I disagree. The wording clearly gives instructions on what to do "when the house is not sitting".

            Your reading isn't supported by the wording of the law. If what you were saying was the intention it would say something like "the speaker must release the report no later than 15 days after the house resumes sitting".

            Then there might be some wiggle room. But its very clear it must on "ANY" of the first 15 sittings days.

            Ie. day 1, day 2, etc day 15

            Mice day.

          • Hm. Actually, LKO may have a point.

            It requires him to TABLE it within any of the first 15 sitting days. Naturally he cannot table it when the House is not sitting.

            It makes no restrictions at all on the report being released. Such a release would still be unofficial, and the report would not truly be "accepted" until it was tabled in parliament and they announced their agreement with it. But I think he could release it.

      • The Speaker is no longer the Speaker….that parliament no longer exists. He's an ordinary citizen now.

        He also doesn't have the report.

        So it's up to the AG….and she says no.

        • Actually, the Speaker continues to be the Speaker during the election. Kady at CBC wrote about this.

          My understanding is that the committee which considered releasing the report could have approved the release (but the CPC and NDP members voted against considering the motion at all) and if it had then been approved by Parliament, the report would have been released. If that is the case, the CPC and NDP stopped that legitimate path to release.

          • He's not even an MP anymore, none of them are, no matter what Kady wrote.

            Even the PM has very limited powers during an election.

            I think she has confused a recess with dissolving.

          • Maybe I misinterpreted her post then.

          • There are so many things wrong in that post, it's not even worth beginning….

          • Good.

          • MPs remain MPs until the new house is sworn in. Only new members are sworn in. Old ones just keep on going because they never really left.

            The PM is PM until he resigns. Before an election, during an election, and even after an election.

            Speaker, cabinet, official opposition leader, basically everyone keeps their role until they are replaced.

            Emily you're being soooo painfully uninformed I feel bad for you.

            The entire point of our system of government is that there is never a point in time when these roles are NOT occupied by someone. Good government, stability, all those concepts eh ?

            Correcting Emily is a full time job Cats !!

          • Cats belong in a box.

            E. Schrödinger

  3. True, but according to the quote above, the letter actually says she's to table her report with the Speaker. After that, it says what the Speaker does. And the Speaker has said if he got all party support to release it, he could do so. And Milliken is still the Speaker until a new Speaker is chosen.

    So, I don't get the problem.

  4. So she could pass it on to the speaker and then HE could break the rules and be in contempt ??

    It says he's required to release it on one of the first 15 SITTING days. Obviously the house is not sitting.

    And four house leaders can suspend HOUSE rules but they can't suspend the law (that would require an actual bill to pass the house, the senate, and be signed by the GG.)

    This is a pickle Cats !

  5. "(5) Each additional report of the Auditor General to the House of Commons made under subsection (1) shall be submitted to the House of Commons on the expiration of thirty days after the notice is sent pursuant to subsection (4) or any longer period that is specified in the notice and the Speaker of the House of Commons shall lay each such report before the House of Commons forthwith after receiving it or, if that House is not then sitting, on any of the first fifteen days on which that House is sitting after the Speaker receives it."

    So once the AG hands off to the Speaker, it isn't her responsibility any more. And she's well within her rights to hand off to the Speaker.

  6. "(5) Each additional report of the Auditor General to the House of Commons made under subsection (1) shall be submitted to the House of Commons on the expiration of thirty days after the notice is sent pursuant to subsection (4) or any longer period that is specified in the notice and the Speaker of the House of Commons shall lay each such report before the House of Commons forthwith after receiving it or, if that House is not then sitting, on any of the first fifteen days on which that House is sitting after the Speaker receives it."

    So once the AG hands off to the Speaker, it isn't her responsibility any more. And she's well within her rights to hand off to the Speaker.

  7. Not really, because Parliament is supreme. Parliament can break the laws, if Parliament says so (this is completely different from individuals of Parliament, so we might need the vote of 308 Parliamentarians instead of just the leaders, but that is another question) As I understand it, of course.

  8. So lets lay off the AG where her hands are clearly tied.
    However…..
    Nothing prevents her from releasing factual details from her real time investigation of the leaks.
    If she did that then Baird (and who else?) would have to resign.

  9. The Speaker is no longer the Speaker….that parliament no longer exists. He's an ordinary citizen now.

    He also doesn't have the report.

    So it's up to the AG….and she says no.

  10. Parliament as a whole can waive laws. So it would take a formal vote. But without parliament sitting, it can't make that vote.

    The only way I can think of that this situation might be resolved (and this too might not be possible/legal) is for the GG to call parliament back to sit for a day, have the report tabled, and then immediately dissolved again. Except I think if parliament sits after being dissolved, the first thing that needs to happen is a Throne Speech, isn't it?

  11. She can give it to the speaker. That's what she is saying.

  12. She can give it to the speaker. That's what she is saying.

  13. Actually, the Speaker continues to be the Speaker during the election. Kady at CBC wrote about this.

    My understanding is that the committee which considered releasing the report could have approved the release (but the CPC and NDP members voted against considering the motion at all) and if it had then been approved by Parliament, the report would have been released. If that is the case, the CPC and NDP stopped that legitimate path to release.

  14. Is there a difference between the house not sitting (for a break) and being dissolved for an election? Looking for a factual answer as I am not up on the rules.

  15. He's not even an MP anymore, none of them are, no matter what Kady wrote.

    Even the PM has very limited powers during an election.

    I think she has confused a recess with dissolving.

  16. Maybe I misinterpreted her post then.

  17. Yes, Parliament is usually in recess over the summer….and for all other holidays. It still exists, and is still subject to the last throne speech. They're just on break.

    Once Parliament has been dissolved….like now…it no longer exists, and can only meet again after an election and a throne speech by the new govt.

    • Very interesting. Emily, what would happen if the country was suddenly plunged into something devastating during an election — say an attack of some kind, or a huge weather disaster. Who would be responsible for responding?

  18. Yes, Parliament is usually in recess over the summer….and for all other holidays. It still exists, and is still subject to the last throne speech. They're just on break.

    Once Parliament has been dissolved….like now…it no longer exists, and can only meet again after an election and a throne speech by the new govt.

  19. And she can't do that until we have a new Parliament, after the election.

  20. Very interesting. Emily, what would happen if the country was suddenly plunged into something devastating during an election — say an attack of some kind, or a huge weather disaster. Who would be responsible for responding?

  21. There are so many things wrong in that post, it's not even worth beginning….

  22. In a national emergency, the PM would respond.

  24. It says he's required to release it on one of the first 15 SITTING days. Obviously the house is not sitting.

    I don't read that clause the same way you are. To me, that clause prevents the Speaker from sitting on a report he's been given for more than 15 days after Parliament is recalled. I don't see it as preventing him from releasing the report before the House sits once again.

    The 15 days simply says, as far as I know, that the Speaker must table such a Report within 15 days when Parliament is sitting. To my mind the Speaker would be wrong to wait to table a report until the 16th day of Parliament sitting, but not wrong if he released a report to the public before Parliament came back.

  25. The house only controls house rules.

    When people say Parliament is supreme they mean the house AND THE SENATE. Taken together.

    (Even this is questionable, are they not constrained by the charter and by the supreme court ?)

    So was Thwim points out it would need to be parliament as a whole.

    And they can't waive laws, they can remove them from the books.

    Cats away!

  26. I disagree. The wording clearly gives instructions on what to do "when the house is not sitting".

    Your reading isn't supported by the wording of the law. If what you were saying was the intention it would say something like "the speaker must release the report no later than 15 days after the house resumes sitting".

    Then there might be some wiggle room. But its very clear it must on "ANY" of the first 15 sittings days.

    Ie. day 1, day 2, etc day 15

    Mice day.

  27. The Speaker is still the Speaker until another Speaker is selected. It works the same way as it does for the PM. Harper is PM until he resigns or another PM is selected, and Milliken is still Speaker until another Speaker is selected.

    Contrary to popular opinion, we are not actually currently living through some sort of state of anarchy. MPs are still MPS, Prime Ministers are still Prime Ministers, Speakers are still Speakers, and dogs and cats still don't get along.

    • Go argue with the 'speaker' and the AG….they've said the same thing.

      • But a new parliament can't be called until a Governor General calls on an MP to form the government. OH NOES!!!

        • That would be after an election.

    • I agree with you about the speaker and the cabinet, but I'm not so sure about the MPs. You have piqued my curiosity; I'll have to check it out!

      • Yeah, I realized after I wrote it that MPs may be an exception.

      • Maybe this will help

        Ms. Bradley explained that normally the Clerk of the Commons writes to all officers of Parliament, including the auditor general, asking them not to submit reports or documents to the Speaker's office. The clerk tells them “we'll just send them right back to you because Parliament has dissolved, the 40th Parliament no longer exists.'”

        “The standard practice is that we always do that, and his view is that really the issue [of releasing the final report] is between the auditor general and the four political parties,” Ms. Bradley said. “His role is as a conduit to Members of Parliament, Parliament no longer exists, so even if he did have it, he has no way of getting it out.”
        http://hilltimes.com/dailyupdate/view/house_speak…

        • That last line is silly. I mean, what? The Speaker doesn't have access to a scanner and an email account? A fax machine? A photocopier and an envelope, and a stamp and a mailbox???

          "No way of getting it out", lol. Yeah, how on EARTH would the Speaker make the public aware of an AG report in 2011. It's like, impossible!!!

    • "After dissolution, and the issue of writs for a general election, there are legally no Members of the House of Commons.
      There is no clear authority for the preceding statement; however, the Parliament of Canada Act provides in section 69:
      For the purposes of the allowances payable under sections 55 and 63, a person who, immediately before a dissolution of the House of Commons, was a member thereof shall be deemed to continue to be a member of the House until the date of the next following general election.

      The above “deeming provision” in the Parliament of Canada Act is solely for the purposes of salaries, some additional allowances and benefits, and certain other services.(30) It does not imply that a former Member retains that status until the date of the next general election. ."
      It goes on… http://www2.parl.gc.ca/content/lop/researchpublic…

      • Thanks for that Loraine! I can't actually edit my comment above to take out the part about MPs still being MPs, but correction noted.

        You've probably already seen it, or seen me post it, but I'll add here the other interesting section about the Speaker from the same Act:

        "53. On a dissolution of Parliament, every member of the Board and the Speaker and Deputy Speaker shall be deemed to remain in office as such, as if there had been no dissolution, until their replacement."

        So, while MPs are no longer MPs, not only is the Speaker still the Speaker, but the Deputy Speaker is still the Deputy Speaker.

        • Thanks for this. It seems pretty clear.

        • For salaries only. There is no parliament to be Speaker of.

          • The "for the purposes of the allowances payable" stipulation that Loraine mentions is (explicitly) applicable only to sections 55 (MP Salaries) and 63 (MP expenses). The section on the nature of the BIE, the Speaker and the Deputy Speaker in the case of dissolution (Section 53) stands on it's own with no such caveat:

            "On a dissolution of Parliament, every member of the Board and the Speaker and Deputy Speaker shall be deemed to remain in office as such, as if there had been no dissolution, until their replacement." (emphasis mine).

            ETA: The key words in the above being "as if there had been no dissolution".

          • The Speaker IS an MP

            Is this some life or death issue for you or something?

            I learned this stuff in Civics class 50 years ago, so it's not exactly news to anyone

          • Yes, he is an MP. An MP who is Speaker, just like the Prime Minister is an MP who is Prime Minister.

            The Speaker is still an MP "for salary purposes only" but he's still Speaker because he's still Speaker.

          • Mmmhmmm and Milliken is finito

          • I fully agree with LKO on the importance of the "as if there had been no dissolution". He's probably more speaker than Harper is pm at the moment.

          • Speaker of what?

          • He's probably more speaker than Harper is pm at the moment.

            That grates, especially if the written-down rules support you. Isn't there something about the preservation of Cabinet (or Privy Council) spelled out somewhere that could help us? Any parliamentarian type folk out there?

  28. The Speaker is still the Speaker until another Speaker is selected. It works the same way as it does for the PM. Harper is PM until he resigns or another PM is selected, and Milliken is still Speaker until another Speaker is selected.

    Contrary to popular opinion, we are not actually currently living through some sort of state of anarchy. MPs are still MPS, Prime Ministers are still Prime Ministers, Speakers are still Speakers, and dogs and cats still don't get along.

  29. MPs remain MPs until the new house is sworn in. Only new members are sworn in. Old ones just keep on going because they never really left.

    The PM is PM until he resigns. Before an election, during an election, and even after an election.

    Speaker, cabinet, official opposition leader, basically everyone keeps their role until they are replaced.

    Emily you're being soooo painfully uninformed I feel bad for you.

    The entire point of our system of government is that there is never a point in time when these roles are NOT occupied by someone. Good government, stability, all those concepts eh ?

    Correcting Emily is a full time job Cats !!

  30. Go argue with the 'speaker' and the AG….they've said the same thing.

  31. See, now you're giving credence to Harper's claim that there was no real contempt. I mean, if they can break the laws whenever they want, what are the opposition parties complaining about?

    [I must have entered an alternate reality; I'm arguing on the side of Cats against Jenn...]

  32. Hm. Actually, LKO may have a point.

    It requires him to TABLE it within any of the first 15 sitting days. Naturally he cannot table it when the House is not sitting.

    It makes no restrictions at all on the report being released. Such a release would still be unofficial, and the report would not truly be "accepted" until it was tabled in parliament and they announced their agreement with it. But I think he could release it.

  33. Given your argument though, if we have no Speaker, how can we have a PM?

  35. But a new parliament can't be called until a Governor General calls on an MP to form the government. OH NOES!!!

  36. That would be after an election.

  37. And yet it confirms he remains PM, confirms that the government is still the government, just with reduced power. Thus I see no evidence that the Speaker is no longer the Speaker.

  38. The wording clearly gives instructions on what to do "when the house is not sitting".

    Actually, the wording clearly gives instructions not on "what to do" when the House is not sitting, but only on when to lay the report before the House if the House is not sitting when the Speaker receives the report. Obviously the Speaker can't lay a report before the House if the House is not sitting, but that doesn't mean he needs to keep the report secret until the House is sitting again. "Laying the report before the House" is not actually synonymous with "Making the report public".

    So, yes, the Speaker must table a report he receives from the AG on one of the first 15 days that the House sits if the House is not sitting when the report is given to him (note that the act is explicitly making allowance for the Speaker to receive such a report when Parliament is not sitting). They actually don't use the wording you describe ("no later than 15 days after the house resumes") because the intent is for the report to be tabled in the House on one of the first 15 SITTING DAYS of the House, not within the first 15 calendar days after Parliament begins sitting. It could, hypothetically, take a parliament a long time to hit its 15th sitting day. It could sit for one day, and then not sit again for months on end.

    However, more importantly, the Auditor General Act says NOTHING which prevents the Speaker from releasing such a report to the public when the House is sitting, or when it's not sitting, or at any other time. If he gets it while the House is sitting he needs to lay it before the House "forthwith". If he gets it while the House isn't sitting he needs to table it in the House on one of the first 15 days that they do sit. The law doesn't require the Speaker to keep the report secret until then, and in fact, it makes no mention of what the Speaker may or may not do with the report at all, except for establishing that he must lay it before the House within a certain time frame.

    The law simply says: "the Speaker of the House of Commons shall lay each such report before the House of Commons forthwith after receiving it or, if that House is not then sitting, on any of the first fifteen days on which that House is sitting after the Speaker receives it". If the intent of that law is supposedly that the Speaker is obliged to keep reports written by our Auditor General hidden from the people of Canada if the House is not sitting, I'd like someone to point to where in the law that is made explicit. 'Cause I'm not just going to take someone's interpretation of the law as sufficient proof that the law requires the Speaker of the House of Commons to keep an Auditor General's report hidden from the citizens of Canada until Parliament is sitting. If Parliament wanted the Auditor General Act to prevent the Speaker from releasing an Auditor General's report to the citizens of Canada under certain circumstances then I'm going to insist that they should have made that explicitly clear in the statute.

  39. I agree with you about the speaker and the cabinet, but I'm not so sure about the MPs. You have piqued my curiosity; I'll have to check it out!

  40. The Speaker looks after conduct in the House.

    The House has been dissolved.

  41. sounds to me like the only way to look at the real report is after the Throne Speech and first order of business which is up to the PM – then – the report will be tabled for the spweaker – seems straight forward to me

  42. sounds to me like the only way to look at the real report is after the Throne Speech and first order of business which is up to the PM – then – the report will be tabled for the spweaker – seems straight forward to me

    • The report isn't actually tabled "for" the Speaker, it's tabled BY the Speaker, and I still see no evidence that the Speaker is under any legal obligation to withhold the report from the citizenry until after he formally lays it before the House. The AG Act simply lays out the time-line by which the Speaker must formally show the report to the House. As far as I've seen, the law doesn't say anything at all about the Speaker keeping the report secret until that time.

      • Well, if the Speaker can unilaterally decide not to allow a motion upon a finding in favour of a prima facie case of a breach of privilege when the rules pretty clearly state that this is what he was supposed to do…

        … I suppose you are right that he could decide to unilaterally make public a document when the rules pretty clearly state he is to deposit them in an in-session House of Commons.

        Not that MYL, stickler-for-this-quaint-notion-called-RULES, would agree with either folly, but why should that stop him?

    • After the Throne Speech – but before the vote on the Throne Speech, for sure

  43. Maybe this will help

    Ms. Bradley explained that normally the Clerk of the Commons writes to all officers of Parliament, including the auditor general, asking them not to submit reports or documents to the Speaker%E2%80%99s office. The clerk tells them “we%E2%80%99ll just send them right back to you because Parliament has dissolved, the 40th Parliament no longer exists.%E2%80%99”

    “The standard practice is that we always do that, and his view is that really the issue [of releasing the final report] is between the auditor general and the four political parties,” Ms. Bradley said. “His role is as a conduit to Members of Parliament, Parliament no longer exists, so even if he did have it, he has no way of getting it out.”
    http://hilltimes.com/dailyupdate/view/house_speak…

  44. Yeah, I realized after I wrote it that MPs may be an exception.

  45. Maybe this will help

    Ms. Bradley explained that normally the Clerk of the Commons writes to all officers of Parliament, including the auditor general, asking them not to submit reports or documents to the Speaker's office. The clerk tells them “we'll just send them right back to you because Parliament has dissolved, the 40th Parliament no longer exists.'”

    “The standard practice is that we always do that, and his view is that really the issue [of releasing the final report] is between the auditor general and the four political parties,” Ms. Bradley said. “His role is as a conduit to Members of Parliament, Parliament no longer exists, so even if he did have it, he has no way of getting it out.”
    http://hilltimes.com/dailyupdate/view/house_speak…

  46. "After dissolution, and the issue of writs for a general election, there are legally no Members of the House of Commons.
    There is no clear authority for the preceding statement; however, the Parliament of Canada Act provides in section 69:
    For the purposes of the allowances payable under sections 55 and 63, a person who, immediately before a dissolution of the House of Commons, was a member thereof shall be deemed to continue to be a member of the House until the date of the next following general election.

    The above “deeming provision” in the Parliament of Canada Act is solely for the purposes of salaries, some additional allowances and benefits, and certain other services.(30) It does not imply that a former Member retains that status until the date of the next general election. ."
    It goes on… http://www2.parl.gc.ca/content/lop/researchpublic…

  47. For anyone who's wondering if the Speaker is still the Speaker, I direct you to the Parliament of Canada Act, Section 53:

    "On a dissolution of Parliament, every member of the Board (of Internal Economy) and the Speaker and Deputy Speaker shall be deemed to remain in office as such, as if there had been no dissolution, until their replacement."

  48. For anyone who's wondering if the Speaker is still the Speaker, I direct you to the Parliament of Canada Act, Section 53:

    "On a dissolution of Parliament, every member of the Board (of Internal Economy) and the Speaker and Deputy Speaker shall be deemed to remain in office as such, as if there had been no dissolution, until their replacement."

    • See my reply to you above. Thses responsibilities appear to be of a limited administrative nature.

      • Wouldn't releasing a report be administrative in nature?

        • No, as I point out to LKO, I think it means exactly that _ the administrative apsects of running the institution.

          • Well, I would say that receiving a report from the AG is an "administrative aspect of running the institution", and further that the moment he gets a report he's under no obligation that I can find to keep it secret until it's laid before Parliament.

            That said, where in the Act is the Speaker limited to only "administrative" powers?

          • As above, the Parliament of Canada Act is about the administrative functioning of the House, not the parliamentary business it conducts.

            I think if he were to make the report public and not go through the prescribed route, he would be in contempt.

          • I think if he were to make the report public and not go through the prescribed route, he would be in contempt

            The Act simply says that the Report must be laid before the House in a timely manner, it does NOT establish the tabling of the Report before the House as the "prescribed manner" for making the report public.

          • The Parliament of Canada Act is about the administrative functioning of the House, not the parliamentary business it conducts.

            Again, how are you making the distinction? How is receiving a report from the AG not an administrative act? If receiving the Report from the AG is "parliamentary business" why is it EXPLICITLY allowed to happen when Parliament isn't sitting?

            To my reading, the AG giving the report to the Speaker is an administrative function. I'd argue that even tabling the report is an "administrative" function (they don't vote on the report, it just gets tabled) though I agree that one can't table the report if the House isn't sitting. My point is that this is moot. If the AG gives the Speaker the report, the Speaker can release it publicly, and I have seen nothing in the law so far that would prevent him from doing so.

  49. From the Parliament of Canada Act:

    "53. On a dissolution of Parliament, every member of the Board and the Speaker and Deputy Speaker shall be deemed to remain in office as such, as if there had been no dissolution, until their replacement". (emphasis mine)

  50. From the Parliament of Canada Act:

    "53. On a dissolution of Parliament, every member of the Board and the Speaker and Deputy Speaker shall be deemed to remain in office as such, as if there had been no dissolution, until their replacement". (emphasis mine)

    • point
      set
      match
      for the man with the funny hat

  51. The report isn't actually tabled "for" the Speaker, it's tabled BY the Speaker, and I still see no evidence that the Speaker is under any legal obligation to withhold the report from the citizenry until after he formally lays it before the House. The AG Act simply lays out the time-line by which the Speaker must formally show the report to the House. As far as I've seen, the law doesn't say anything at all about the Speaker keeping the report secret until that time.

  52. But I think it makes a huge difference. Leaders, no matter how authoritarian they are, are nothing really. An agreement between leaders is not the consent of the house. I don't think we'll see this report before the next sitting. If Mr. Harper doesn't get a majority I would bet you ten bucks that MPs won't vote on a throne speech before they see this report. I doubt Mr. Harper will bring up this point; but if he doesn't get a majority, and if the report is damning, he'll never get the confidence vote he needs to govern and he's not winning the next election, if he dares ask for one rather than resign! Somehow I don't think we'll hear much about coalitions from now on til the vote.

  53. After the Throne Speech – but before the vote on the Throne Speech, for sure

  54. That last line is silly. I mean, what? The Speaker doesn't have access to a scanner and an email account? A fax machine? A photocopier and an envelope, and a stamp and a mailbox???

    "No way of getting it out", lol. Yeah, how on EARTH would the Speaker make the public aware of an AG report in 2011. It's like, impossible!!!

  55. Thanks for that Loraine! I can't actually edit my comment above to take out the part about MPs still being MPs, but correction noted.

    You've probably already seen it, or seen me post it, but I'll add here the other interesting section about the Speaker from the same Act:

    "53. On a dissolution of Parliament, every member of the Board and the Speaker and Deputy Speaker shall be deemed to remain in office as such, as if there had been no dissolution, until their replacement."

    So, while MPs are no longer MPs, not only is the Speaker still the Speaker, but the Deputy Speaker is still the Deputy Speaker.

  56. Thanks for this. It seems pretty clear.

  57. You may be right about when we'll end up seeing the report, but I will take issue with this:

    An agreement between leaders is not the consent of the house.

    Who says the consent of the House is required to release the report??? If the House were sitting, the report would become public the moment the Speaker laid it before the House. They don't vote in the House on whether or not to release reports from the Auditor General to the public, ever. If AG Reports were only allowed to be released with the consent of the House, then a majority government could keep any AG report they didn't like hidden from the public. I can think of several AG reports that never would have seen the light of day if the consent of the House were required before said reports were released to the public.

    • From the House fo Commons Website:

      Effect of Dissolution in the House:
      The House ceases to exist as an assembly at the time of dissolution. All Chamber activity ceases with dissolution, and all incomplete business is terminated, including government bills and Private Members' Business.
      The Government must wait until the new Parliament is in session before tabling any document that is required pursuant to an Act, resolution or Standing Order.
      The Speaker, the Deputy Speaker and the Members of the Board of Internal Economy, which governs the House, retain certain administrative responsibilities until they are replaced or re-elected following the general election.

      • Sure, but I'm not saying that the Speaker is currently capable of TABLING the document, I'm saying that he is currently capable of MAKING THE DOCUMENT PUBLIC (or, rather, would be capable of doing so the moment the AG gives it to him, which I don't think she's done yet). The AG Act lays out the time-line by which the Speaker must table an AG Report in the House once he's received it from her, but that's it. I see nothing in the law that would prevent the Speaker from scanning the Report and throwing it up on a web-page for all to see the moment she hands it to him. I'm not aware of any stipulation in the law that requires the Speaker to keep such a report confidential until it's tabled in the House of Commons, and if lawmakers intended the law to constrain the Speaker thus, they should have written that into the law.

        • If I understand this properly, the only permissable mechanism for making this publicly available is through the House. The law says it is to be tabled in the House. The House doesn't exist.

          Furthermore, again referring to their website, the House of Commons says: "The premature disclosure of committee reports and proceedings has frequently been raised as a matter of privilege". Presumably this is because the House is careful to keep to itself the right to collectively have access to information at the same time, in the accepted manner as each other.

          Obviously, this scenario was not contemplated when the law was drafted. However, how can it be left to discretion and case by case ad hoc make it up as we go? The next snafu may not be so cut and dried.

          I get your frustration, but I honestly think your understandable desire to make this public is binding you to the obvious interpretation of this.

          • If I understand this properly, the only permissible mechanism for making this publicly available is through the House.

            Where do you get that from?

            The AG Act says that the Speaker must lay any reports he gets from the AG before the House within a certain time frame (either "forthwith" if the House is sitting, or within the first 15 sitting days once the House returns if it's not sitting when the report is given to the Speaker). Other than that, where in the law is the Speaker prevented from making such a report public before he lays it before the House?

            As for the bit about leaks, the important point there is AT THE SAME TIME. The House "is careful to keep to itself the right to collectively have access to information at the same time" so that, for example, the government can't spend a month with a leaked report figuring out how to react to the report before the opposition sees it (or conversely the opposition can't spend months figuring out how to bludgeon the government with a leaked report before the government sees it). If the AG gives the Report to Milliken tomorrow and he scans it and puts it up on a public website somewhere then everyone in Canada will have access to the report at the same time.

          • LKO, normally you and I can end up on the same page after a few back and forths. I have no axe to grind in this matter, but you do. You are in a passion about this and don't want to accept any attempt at logical alternatives to what you are thinking. Ask an actual procedural expert. I'm doing my best with online resources, etc… but am not an authority.

          • I agree, Be-rad – what LKO is musing about is inviting the Speaker to step completely outside the statutory and regulatory provisions that govern matters such as these because, in his view at least, those provisions don't expressly prohibit him from doing so.

            Despite the ongoing focus on the AG and her report, the most pertinent fact, IMO, is being overlooked – the Libs could have had the AG's report in hand to make whatever political hay they wished to out of it had they merely held off on toppling the government for 10 more days – the report was scheduled to be released April 5. I think it's fair to assume that one of the reasons the Libs didn't wait was, based on their own review of whatever draft of the report they had at the time, they didn't think there was much political hay to be realized by waiting.

          • what LKO is musing about is inviting the Speaker to step completely outside the statutory and regulatory provisions that govern matters such as these because, in his view at least, those provisions don't expressly prohibit him from doing so

            However, isn't what you're musing about here inviting the Speaker to keep a report from our Auditor General hidden from the Canadian citizenry, during an election, because you're convinced that Parliament intended such reports to remain secret until tabled in the House, even though that's NOT WHAT PARLIAMENT WROTE IN THE LAW???

            I don't think it's crazy to suggest that if Parliament intends the Speaker to keep Reports from the Auditor General hidden from the people of Canada until they are tabled in the House of Commons that Parliament needs to make that explicit. I think that when transparency is not explicitly prohibited, the presumption has to be on the side of transparency, not secrecy.

          • My only "axe to grind" is that transparency should be the rule if not explicitly prohibited by statute. If Parliament intended reports from the AG to be released to the public only through the mechanism of being tabled in the House of Commons, and they therefore intended to prevent the Speaker from releasing said reports to the public in any other fashion, then the should have WRITTEN THAT DOWN.

          • You are in a passion about this and don't want to accept any attempt at logical alternatives to what you are thinking.

            I guess I'm in a bit of a passion about this, but I don't think it's crazy to suggest that keeping an Auditor Generals report hidden from the public during an election because some people are pretty sure that Parliament intended her reports to remain hidden from the public until tabled in the House (even if they didn't actually write that requirement down in any statues anywhere) is worth getting passionate about.

            Call me crazy, but when there's debate about whether or not Parliament intended to keep accountability reports secret from the public who paid for them until they can be formally tabled in the House of Commons I say the presumption should be in favour of giving the citizenry the information about their government, not in favour of keeping the information secret because technically you can't table a Report in the House if the House isn't sitting.

  58. You may be right about when we'll end up seeing the report, but I will take issue with this:

    An agreement between leaders is not the consent of the house.

    Who says the consent of the House is required to release the report??? If the House were sitting, the report would become public the moment the Speaker laid it before the House. They don't vote in the House on whether or not to release reports from the Auditor General to the public, ever. If AG Reports were only allowed to be released with the consent of the House, then a majority government could keep any AG report they didn't like hidden from the public. I can think of several AG reports that never would have seen the light of day if the consent of the House were required before said reports were released to the public.

  59. They aren't talking about a 'physical' way of getting it out.

    He doesn't have it…and he's no longer Speaker.

  60. For salaries only. There is no parliament to be Speaker of.

  61. From the House fo Commons Website:

    Effect of Dissolution in the House:
    The House ceases to exist as an assembly at the time of dissolution. All Chamber activity ceases with dissolution, and all incomplete business is terminated, including government bills and Private Members' Business.
    The Government must wait until the new Parliament is in session before tabling any document that is required pursuant to an Act, resolution or Standing Order.
    The Speaker, the Deputy Speaker and the Members of the Board of Internal Economy, which governs the House, retain certain administrative responsibilities until they are replaced or re-elected following the general election.

  62. See my reply to you above. Thses responsibilities appear to be of a limited administrative nature.

  63. It gets weirder, because I'm going to agree with Cats while rebutting you :)

    That would be Government breaking the laws, and only Parliament has that power. But Cats is right (see?) in that said power is Parliament–the House of Commons and the Senate together.

    But coming back to the reality I'm far more used to, I think Cats is wrong in that (I think!) they can waive laws for specific things (like they used to do for divorces). They don't have to cancel the law altogether.

  64. It gets weirder, because I'm going to agree with Cats while rebutting you :)

    That would be Government breaking the laws, and only Parliament has that power. But Cats is right (see?) in that said power is Parliament–the House of Commons and the Senate together.

    But coming back to the reality I'm far more used to, I think Cats is wrong in that (I think!) they can waive laws for specific things (like they used to do for divorces). They don't have to cancel the law altogether.

  65. Sure, but I'm not saying that the Speaker is currently capable of TABLING the document, I'm saying that he is currently capable of MAKING THE DOCUMENT PUBLIC (or, rather, would be capable of doing so the moment the AG gives it to him, which I don't think she's done yet). The AG Act lays out the time-line by which the Speaker must table an AG Report in the House once he's received it from her, but that's it. I see nothing in the law that would prevent the Speaker from scanning the Report and throwing it up on a web-page for all to see the moment she hands it to him. I'm not aware of any stipulation in the law that requires the Speaker to keep such a report confidential until it's tabled in the House of Commons, and if lawmakers intended the law to constrain the Speaker thus, they should have written that into the law.

  66. He doesn't have it, true, but he's TOTALLY STILL SPEAKER.

    • For salary purposes only.

    • The issue seems to be that the Speaker provides the reports to Parliament, not directly to the public. Even if he physically had it, and even though he continues to be Speaker, what authority does he have to make the report public? How should he choose which reports he's received should be made public?

      • The issue seems to be that the Speaker provides the reports to Parliament, not directly to the public.

        Tabling the report in Parliament is a means of making the report public, nothing more, nothing less. The Speaker doesn't present the report to the House and then the House votes on whether or not to release it to the public, the very INSTANT the report is laid before the House, it's public. However, I see nothing in any of the statutes to suggest that this is the one and only means through which the report may be made public, or barring the Speaker in any way, even implicitly, from making the report public in some other way.

        • No, tabling the report in Parliament is a way of transmitting the report from the AG to Parliament. Nothing in the AG Act prohibits the Speaker from releasing the report to the public, but nothing authorises him to do it either. You need to point to that authority ti make the case that he can do this. I have no idea whether it exists, but the comment from his office suggests it isn't obvious.Sent from my BlackBerry device on the Rogers Wireless Network

          • The very SECOND the Report is tabled in the House it is available to Parliament, sure, but it's also available to the public at that moment as well. Saying that the statute authorizes the Speaker to table the Report in the House of Commons but that there's nothing authorizing him to release it to the public is like saying that a statute authorizes the Speaker to broadcast the contents of some report during every commercial break of American Idol, and Hockey Night in Canada but that there's nothing in the statute that authorizes the Speaker to "release it to the public". Tabling the Report in the House IS releasing the document to the public, and to my mind, if Parliament intended this route to be the ONLY allowable mechanism for such a report to be released to the public, they should have said so. When it comes to the releasing of accountability documents to the citizens of Canada, I think that if statutes are unclear, the bias should be in favour of RELEASING accountability information to the people, not hiding it. Apparently I'm in a minority there though?

          • You seem to have found a lack of clarity where others see none. I suspect if we looked through the Compendium of Parliamentary Practice we too would see things more clearly. The Parliament of Canada Act does not seem to be the appropriate reference for understanding the Speaker's authority. The AG reports to Parliament, not to the public, and the Speaker transmits her report to Parliament, not to the public. Parliament could, I suppose, keep the tabled report from being made public. It certainly has the discretion to decide how the report is made publicly available. Sent from my BlackBerry device on the Rogers Wireless Network

          • "Parliament could, I suppose, keep the tabled report from being made public".

            How does one keep a tabled report from being made public? Once the report is tabled it is part of the public record by definition, is it not? Keeping the document from being made public would require it to NOT be tabled in the House of Commons. Documents tabled in the House of Commons are part of the public record. The whole reason reports like this are tabled in the House of Commons is to make them a part of the public record. Tabling the report in the House isn't something that is done before the report is made public, it is the mechanism through which the report is made public.

            To my mind, saying that a report can be kept from the public after it has been tabled is like saying that a television show can be kept off the airwaves after it's already been aired. A tabled report is public. I'm pretty sure keeping a tabled report from becoming public would require a flux capacitor and a DeLorean.

          • The Afghan detainee documents? Isn't a category of those being provided to Parliament without becoming public?

          • No. None of those documents has been tabled in the House of Commons.

            Some of those documents are being provided to a small group of Parliamentarians who are basically going over them in private and deciding whether or not the rest of their colleagues should be allowed to see them. More importantly NONE of those Afghhan detainee documents has been tabled in the House of Commons. If they had been, you and I would be able to look up those documents online. Tabling documents in the House makes them public. It's why we insist that government accountability reports be tabled in the House.

            What's going on with the Afghan detainee documents is a process to determine whether or not it's appropriate for these documents to become public. For now, they're secret from everyone who's not a part of the group of MPs who are currently doing that work. Were they laid before the House of Commons they'd then become public.

            Tabling a document in the House is the parliamentary equivalent of entering something into evidence in a court of law. Once it's tabled, everyone can see it. In fact, making documents public is arguably one of the reasons documents are required to be laid before the House at all.

          • Okay, but what prevented Parliament from having the AG release her reports directly to the public instead? And the fact that Parliamentarians are reviewing documents that may not be made public doesn't help your argument that Parliament is below the public on the org chart of democracy…also, courts have sealed evidence, publication bans and in camera sessions, so entering something into evidence isn't the same as revealing it publicly. I imagine there's a way to release the report while Parliament is dissolved, same as there should be for the detainee documents, but I'll be surprised if it turns out to be the Speaker deciding to publish it.

          • Okay, but what prevented Parliament from having the AG release her reports directly to the public instead?

            I'd say tradition mostly. Laying reports before the House of Commons is just the traditional way of releasing documents to the public. It goes back to pre-internet and mass communication days I'm afraid, when the best way to ensure that all Parliamentarians had access to documents like these AT THE SAME TIME (such that no party had the advantage of seeing "public" documents weeks before other Parliamentarians from other parties did) in an era when there were no telephones, or T.V., or internet, was to table those documents in the House of Commons as soon as the House was in session.

            Also, the public is clearly above Parliament on the org chart imho, but that doesn't mean that every individual member of the public should have unfettered access to secret national security documents. To my mind, those two points are entirely separate.

          • The AG reports to Parliament, not to the public, and the Speaker transmits her report to Parliament, not to the public.

            This is only true in the most narrow sense, imho. The public is ABOVE Parliament on the org. chart, not below. Saying that the AG reports to Parliament and not the public is like saying that that a sergeant reports to his platoon leader, not his Company's commanding General. Guess what happens if the sergeant's Lieutenant say X and the commanding General of his Company says Y?

            As for the Speaker transmitting the Report to Parliament, but not the public, again what do you think the tabling of a Report before the House of Commons means? Laying the Report before the House MAKES IT A PUBLIC DOCUMENT. The stipulation that the Speaker lay the Report before the House of Commons isn't some procedure that happens BEFORE the document is made public, it is the mechanism through which the report is made public. The House doesn't take the tabled report and then decide on whether or not to make it public, the act of tabling the Report in the House is what makes the Report public. The INSTANT the Report is tabled, it's public.

          • Wasn't there this same problem with a PBO report last election? That didn't seem very complicated to solve.Sent from my BlackBerry device on the Rogers Wireless Network

  67. He doesn't have it, true, but he's TOTALLY STILL SPEAKER.

  68. The "for the purposes of the allowances payable" stipulation that Loraine mentions is (explicitly) applicable only to sections 55 (MP Salaries) and 63 (MP expenses). The section on the nature of the BIE, the Speaker and the Deputy Speaker in the case of dissolution (Section 53) stands on it's own with no such caveat:

    "On a dissolution of Parliament, every member of the Board and the Speaker and Deputy Speaker shall be deemed to remain in office as such, as if there had been no dissolution, until their replacement." (emphasis mine).

    ETA: The key words in the above being "as if there had been no dissolution".

  69. It seems to me that "as if there had been no dissolution" is pretty clear.

  70. Well..now we really ARE in the realm of the absurd. Let me get this straight:

    The party in government before this election was dissolved due to a House of Parliament vote of no confidence after a review of the Speaker's finding a prima facie case of Contempt of Parliament because of a lack of transparency, before a condemning report from the AG could be released. Harper & co dismiss that findingand vote of no confidence as unbelievable.
    Now, however Parliamentary procedures permit said government to campaign for re-election before an electorate who has not seen the AG's report which might confirm those contempt charges.

    So, contempt and deception is rewarded by the rigidity of the very institution which found Harper & co in contempt. So how's our democracy workin' for you now, Steveo?

    me, I'm not so happy.

  71. Well..now we really ARE in the realm of the absurd. Let me get this straight:

    The party in government before this election was dissolved due to a House of Parliament vote of no confidence after a review of the Speaker's finding a prima facie case of Contempt of Parliament because of a lack of transparency, before a condemning report from the AG could be released. Harper & co dismiss that findingand vote of no confidence as unbelievable.
    Now, however Parliamentary procedures permit said government to campaign for re-election before an electorate who has not seen the AG's report which might confirm those contempt charges.

    So, contempt and deception is rewarded by the rigidity of the very institution which found Harper & co in contempt. So how's our democracy workin' for you now, Steveo?

    me, I'm not so happy.

    • Was there a good reason that the opposition couldn't wait for this report to be tabled before voting non confidence ?

          • Why was the budget a good reason they couldn't wait? If they didn't want to defeat the government on the budget, they could have abstained from voting against it on first reading, waited till the AG report was released April 5 and brought their "contempt" motion immediately thereafter.

          • I believe many analysts at the time figured the parties didn't want to be seen voting down the budget, so this contempt stuff was a more juicy steak to bite into instead.

            In fact, the Liberals love so much of the not-yet-passed budget that even the CBC had to diss Ignatieff's team for dishonestly entering "zero" in the cost columns of some of their Red-Book-2011 promises that were identical to the proposed Flaherty budget provisions.

          • Abstaining would not have been voting down the budget – the budget would have passed first reading without any support from any opposition party that the CPC could then have used for some kind of electoral advantage and their steak would have been made even juicier with the AG report tabled prior to their contempt motion.

      • Because
        1. They don't get to choose opposition days.
        2. When the house finds a government in contempt, how on earth can you let it continue to sit beyond your first opportunity to remove it?

        • I usually don't follow politics that close but try to get more involved around elections. When I ask a question it is because I really don't know or understand. I have been around long enough to vote for both the Liberals & the Conservatives. I believe that the Contempt ruling looks as bad on the Opposition as the Government because it comes across more as desperate. A lot of people are pissed about the spending on the G8/G20 but chalk it up to the ‘they are all the same'. If the Opposition had waited for this report and it brought new allegations to light, it could have changed that.
          But I am cynical enough to wonder if the Opposition new that the leaked draft would be more damaging than the actual report & are playing us knowing there is no way the AG report will be released before the house is sitting.
          Either way I do appreciate when someone responds to my questions & coments here.

          • "But I am cynical enough to wonder if the Opposition new that the leaked draft would be more damaging than the actual report & are playing us knowing there is no way the AG report will be released before the house is sitting. "

            Not just cynical but wise. It is essentially never the case that a final auditor report is worse than a first draft, simply because the purpose of the draft is to present preliminary findings to the audit subject so that subject can provide further information and representations on those findings. As often as not, that further information results in resolution of many of the preliminary findings and they do not appear in the final report. There is far more political hay to be made by demanding the AG release her report, knowing she won't, than from the actual final report itself.

  72. For salary purposes only.

  73. The Speaker IS an MP

    Is this some life or death issue for you or something?

    I learned this stuff in Civics class 50 years ago, so it's not exactly news to anyone

  74. If I understand this properly, the only permissable mechanism for making this publicly available is through the House. The law says it is to be tabled in the House. The House doesn't exist.

    Furthermore, again referring to their website, the House of Commons says: "The premature disclosure of committee reports and proceedings has frequently been raised as a matter of privilege". Presumably this is because the House is careful to keep to itself the right to collectively have access to information at the same time, in the accepted manner as each other.

    Obviously, this scenario was not contemplated when the law was drafted. However, how can it be left to discretion and case by case ad hoc make it up as we go? The next snafu may not be so cut and dried.

    I get your frustration, but I honestly think your understandable desire to make this public is binding you to the obvious interpretation of this.

  75. Wouldn't releasing a report be administrative in nature?

  76. Absolutely clear, but in the context of the law, as I have just read it thanks to your link, it is in their capacity as Board members that the law is speaking, not their role as presiding officers of a non-existent House.

    • OK, but the only references in the entire Parliament of Canada Act to the Speaker's role after dissolution are references to the Speaker still being the Speaker. Is there something else in the Act that limits the Speaker's powers while Parliament is dissolved? Where in the Act is the Speaker limited during dissolution to only exercising "powers of a limited administrative nature"?

      The Speaker is the Speaker, and the AG is meant to give her Reports to the Speaker (though she has not done so yet). I disagree with the argument that the AG can't give the Report to the Speaker because he's not currently the Speaker because my understanding is that he is still the Speaker. If that's so, if he had the report, I see nothing in the law preventing the Speaker from making the Report public before it is laid before the House.

      • The Act you cite ourself is specifically about the Board of Internal Economy. It doesn't deal with the parliamentary business of the House but the administrative business of the House. The AG Act talks about giving the report to the Speaker so he can give it to the House. The House doesn't exist for parliamentary business. I'm sorry, LKO, but wishes don't make fishes.

      • "I see nothing in the law preventing the Speaker from making the Report public before it is laid before the House."

        There's also nothing in the law preventing him from wallpapering his bathroom with it or making paper airplanes out of it. The question isn't whether the Speaker can or cannot release it otherwise than in accordance with the AG Act – it's WHY would he release it otherwise than in accordance with the AG Act, and against the express wishes of the AG herself? Because four former MPs who happen to be leading political parties in an election campaign ask him to? Because, notwithstanding his office demands non-partisanship, he secretly wishes to thrust himself right in the middle of a heated election campaign?

        • WHY would he release it otherwise than in accordance with the AG Act, and against the express wishes of the AG herself?

          Well, transparency for one. And the whole "citizens are at the top of the org. chart in democracies, not the bottom" thing.

          That said, it's true, if the AG really doesn't want the report released yet, she can just not give it to the Speaker. However, I don't think I've seen any suggestion anywhere that releasing the report would go against her "express wishes". She's never said that she doesn't WANT to release the report, she simply feels that she isn't ALLOWED to release the report. In one sense I agree that SHE can't release the report, as statue indicates that she is required to give it to the Speaker. Once the Speaker has it though, I haven't yet seen anything in the law that would prevent HIM from releasing it.

          • Well, she didn't appear to pleased with the release of the early drafts of her report – she has now commenced an investigation into how that happened. She also wrote the response to Layton telling him she isn't inclined to release the report just because he et al say so. Not sure what more she has to do to make her wishes express.

            At the risk of inviting all manner of flaming about parliamentary contempt, both the AG and the Speaker are accountable to one entity and one entity only – parliament. It is not surprising neither appear prepared to act ultra vires the legislative protocols for the release of a AG report at the insistence of some person or persons who are not parliament. The fact that (in your opinion, at least) they could is utterly irrelevant.

            I'm curious – what do you think is in the final report that will be so damning to Harper's government? G20/G8 spending was an issue in this campaign essentially from the get go and the allegations the CPC spent money on things that ostensibly appear to have little or no connection to the summit meetings themselves is beyond serious contention. The primary objective of an audit is to vouch financial figures and, in the context of the G20/G8, to vouch that the monies the government spent on the summit were actually spent. What an auditor typically does NOT do is express an opinion on the merits of a particular expenditure (although, as per the first draft leak, it is within her purview to comment on whether expenditures were incurred for the purposes for which the government received its mandate).

            Are you anticipating the final AG report will reveal the government cannot vouch its G8/G20 expenditures? If so, I'll save you some sleepless nights as you wait – the government will be able to vouch every single dime it spent on the G8/G20 summit. The issue has always been and will remain whether the government spent its G8/G20 budget properly and I highly doubt anything in the AG report will add anything more to that issue than is already in the public realm.

  77. Absolutely clear, but in the context of the law, as I have just read it thanks to your link, it is in their capacity as Board members that the law is speaking, not their role as presiding officers of a non-existent House.

  78. No, as I point out to LKO, I think it means exactly that _ the administrative apsects of running the institution.

  79. OK, but the only references in the entire Parliament of Canada Act to the Speaker's role after dissolution are references to the Speaker still being the Speaker. Is there something else in the Act that limits the Speaker's powers while Parliament is dissolved? Where in the Act is the Speaker limited during dissolution to only exercising "powers of a limited administrative nature"?

    The Speaker is the Speaker, and the AG is meant to give her Reports to the Speaker (though she has not done so yet). I disagree with the argument that the AG can't give the Report to the Speaker because he's not currently the Speaker because my understanding is that he is still the Speaker. If that's so, if he had the report, I see nothing in the law preventing the Speaker from making the Report public before it is laid before the House.

  80. Well, I would say that receiving a report from the AG is an "administrative aspect of running the institution", and further that the moment he gets a report he's under no obligation that I can find to keep it secret until it's laid before Parliament.

    That said, where in the Act is the Speaker limited to only "administrative" powers?

  81. Yes, he is an MP. An MP who is Speaker, just like the Prime Minister is an MP who is Prime Minister.

    The Speaker is still an MP "for salary purposes only" but he's still Speaker because he's still Speaker.

  82. Mmmhmmm and Milliken is finito

  83. If I understand this properly, the only permissible mechanism for making this publicly available is through the House.

    Where do you get that from?

    The AG Act says that the Speaker must lay any reports he gets from the AG before the House within a certain time frame (either "forthwith" if the House is sitting, or within the first 15 sitting days once the House returns if it's not sitting when the report is given to the Speaker). Other than that, where in the law is the Speaker prevented from making such a report public before he lays it before the House?

    As for the bit about leaks, the important point there is AT THE SAME TIME. The House "is careful to keep to itself the right to collectively have access to information at the same time" so that, for example, the government can't spend a month with a leaked report figuring out how to react to the report before the opposition sees it (or conversely the opposition can't spend months figuring out how to bludgeon the government with a leaked report before the government sees it). If the AG gives the Report to Milliken tomorrow and he scans it and puts it up on a public website somewhere then everyone in Canada will have access to the report at the same time.

  84. I fully agree with LKO on the importance of the "as if there had been no dissolution". He's probably more speaker than Harper is pm at the moment.

  85. The issue seems to be that the Speaker provides the reports to Parliament, not directly to the public. Even if he physically had it, and even though he continues to be Speaker, what authority does he have to make the report public? How should he choose which reports he's received should be made public?

  87. Was there a good reason that the opposition couldn't wait for this report to be tabled before voting non confidence ?

  88. Was there a good reason that the opposition couldn%E2%80%99t wait for this report to be tabled before voting non confidence ?

  89. Well, if the Speaker can unilaterally decide not to allow a motion upon a finding in favour of a prima facie case of a breach of privilege when the rules pretty clearly state that this is what he was supposed to do…

    … I suppose you are right that he could decide to unilaterally make public a document when the rules pretty clearly state he is to deposit them in an in-session House of Commons.

    Not that MYL, stickler-for-this-quaint-notion-called-RULES, would agree with either folly, but why should that stop him?

  90. The Act you cite ourself is specifically about the Board of Internal Economy. It doesn't deal with the parliamentary business of the House but the administrative business of the House. The AG Act talks about giving the report to the Speaker so he can give it to the House. The House doesn't exist for parliamentary business. I'm sorry, LKO, but wishes don't make fishes.

  91. As above, the Parliament of Canada Act is about the administrative functioning of the House, not the parliamentary business it conducts.

    I think if he were to make the report public and not go through the prescribed route, he would be in contempt.

  92. LKO, normally you and I can end up on the same page after a few back and forths. I have no axe to grind in this matter, but you do. You are in a passion about this and don't want to accept any attempt at logical alternatives to what you are thinking. Ask an actual procedural expert. I'm doing my best with online resources, etc… but am not an authority.

  95. The Act you cite yourself is specifically about the Board of Internal Economy.

    The Act I'm citing is the Parliament of Canada Act. It has a section on the BIE, sure, but it's the Parliament of Canada Act.

    [The Act] doesn't deal with the parliamentary business of the House but the administrative business of the House.

    First, I'm pretty sure that's wrong, or at least imprecise.

    Second, even if you're right, what part of the statutes has you convinced that the act of the Speaker receiving a report from the AG is "parliamentary business" and not "administrative business"? Where in the Parliament of Canada Act are those two terms defined? Where in the Parliament of Canada Act is the Speaker restricted to only doing "administrative" business but not "parliamentary" business during dissolution? Where is there any reference in the Act (or any Act) to the Speaker's responsibilities and/or powers and/or status being diluted by the dissolution of Parliament?

    The AG Act talks about giving the report to the Speaker so he can give it to the House.

    The AG Act talks about the AG giving the report to the Speaker. Then, it talks about the Speaker laying the act before the House, either right away, or soon after the House reconvenes if the Speaker receives such a report while the House is not sitting. So, the AG needs to give the Report to the Speaker, and the Speaker must lay it before the House in a timely manner. That he must table the report in the House is certainly a requirement, but I see NOTHING in the statute that says he must ONLY table it in the House, nor establishing that this is the only means by which the Report can be made public. Requiring that a document be tabled in the House in a timely manner, and requiring that a document can only be released to the public through the mechanism of tabling it in the House are TWO SEPARATE AND DISTINCT REQUIREMENTS. I can clearly see in the statute that the Speaker must table the report in the House. I need you to show me the section that explains that this tabling of the report in the House is the one and only mechanism through which the document can be made public.

    The House doesn't exist for parliamentary business.

    There I'm not sure what you mean. (ETA: Ah, on reflection I guess you mean that the House doesn't exist RIGHT NOW for the purpose of carrying out "parliamentary business". My initial reaction is "so what?" I don't want the Speaker to table any report he's given (he can't right now anyway, since the House isn't sitting) I just want him to release the report to EVERYBODY. Can you show me where in the law the Speaker taking receipt of a report from the AG is defined as "parliamentary business", or where it says that an AG report can only be divulged to the public through the tabling of the report in the House of Commons?)

  96. I agree, Be-rad – what LKO is musing about is inviting the Speaker to step completely outside the statutory and regulatory provisions that govern matters such as these because, in his view at least, those provisions don't expressly prohibit him from doing so.

    Despite the ongoing focus on the AG and her report, the most pertinent fact, IMO, is being overlooked – the Libs could have had the AG's report in hand to make whatever political hay they wished to out of it had they merely held off on toppling the government for 10 more days – the report was scheduled to be released April 5. I think it's fair to assume that one of the reasons the Libs didn't wait was, based on their own review of whatever draft of the report they had at the time, they didn't think there was much political hay to be realized by waiting.

  97. "I see nothing in the law preventing the Speaker from making the Report public before it is laid before the House."

    There's also nothing in the law preventing him from wallpapering his bathroom with it or making paper airplanes out of it. The question isn't whether the Speaker can or cannot release it otherwise than in accordance with the AG Act – it's WHY would he release it otherwise than in accordance with the AG Act, and against the express wishes of the AG herself? Because four former MPs who happen to be leading political parties in an election campaign ask him to? Because, notwithstanding his office demands non-partisanship, he secretly wishes to thrust himself right in the middle of a heated election campaign?

  98. I think if he were to make the report public and not go through the prescribed route, he would be in contempt

    The Act simply says that the Report must be laid before the House in a timely manner, it does NOT establish the tabling of the Report before the House as the "prescribed manner" for making the report public.

  99. Why was the budget a good reason they couldn't wait? If they didn't want to defeat the government on the budget, they could have abstained from voting against it on first reading, waited till the AG report was released April 5 and brought their "contempt" motion immediately thereafter.

  100. The Parliament of Canada Act is about the administrative functioning of the House, not the parliamentary business it conducts.

    Again, how are you making the distinction? How is receiving a report from the AG not an administrative act? If receiving the Report from the AG is "parliamentary business" why is it EXPLICITLY allowed to happen when Parliament isn't sitting?

    To my reading, the AG giving the report to the Speaker is an administrative function. I'd argue that even tabling the report is an "administrative" function (they don't vote on the report, it just gets tabled) though I agree that one can't table the report if the House isn't sitting. My point is that this is moot. If the AG gives the Speaker the report, the Speaker can release it publicly, and I have seen nothing in the law so far that would prevent him from doing so.

  101. what LKO is musing about is inviting the Speaker to step completely outside the statutory and regulatory provisions that govern matters such as these because, in his view at least, those provisions don't expressly prohibit him from doing so

    However, isn't what you're musing about here inviting the Speaker to keep a report from our Auditor General hidden from the Canadian citizenry, during an election, because you're convinced that Parliament intended such reports to remain secret until tabled in the House, even though that's NOT WHAT PARLIAMENT WROTE IN THE LAW???

    I don't think it's crazy to suggest that if Parliament intends the Speaker to keep Reports from the Auditor General hidden from the people of Canada until they are tabled in the House of Commons that Parliament needs to make that explicit. I think that when transparency is not explicitly prohibited, the presumption has to be on the side of transparency, not secrecy.

  102. My only "axe to grind" is that transparency should be the rule if not explicitly prohibited by statute. If Parliament intended reports from the AG to be released to the public only through the mechanism of being tabled in the House of Commons, and they therefore intended to prevent the Speaker from releasing said reports to the public in any other fashion, then the should have WRITTEN THAT DOWN.

  103. The issue seems to be that the Speaker provides the reports to Parliament, not directly to the public.

    Tabling the report in Parliament is a means of making the report public, nothing more, nothing less. The Speaker doesn't present the report to the House and then the House votes on whether or not to release it to the public, the very INSTANT the report is laid before the House, it's public. However, I see nothing in any of the statutes to suggest that this is the one and only means through which the report may be made public, or barring the Speaker in any way, even implicitly, from making the report public in some other way.

  104. I believe many analysts at the time figured the parties didn't want to be seen voting down the budget, so this contempt stuff was a more juicy steak to bite into instead.

    In fact, the Liberals love so much of the not-yet-passed budget that even the CBC had to diss Ignatieff's team for dishonestly entering "zero" in the cost columns of some of their Red-Book-2011 promises that were identical to the proposed Flaherty budget provisions.

  105. WHY would he release it otherwise than in accordance with the AG Act, and against the express wishes of the AG herself?

    Well, transparency for one. And the whole "citizens are at the top of the org. chart in democracies, not the bottom" thing.

    That said, it's true, if the AG really doesn't want the report released yet, she can just not give it to the Speaker. However, I don't think I've seen any suggestion anywhere that releasing the report would go against her "express wishes". She's never said that she doesn't WANT to release the report, she simply feels that she isn't ALLOWED to release the report. In one sense I agree that SHE can't release the report, as statue indicates that she is required to give it to the Speaker. Once the Speaker has it though, I haven't yet seen anything in the law that would prevent HIM from releasing it.

  106. You are in a passion about this and don't want to accept any attempt at logical alternatives to what you are thinking.

    I guess I'm in a bit of a passion about this, but I don't think it's crazy to suggest that keeping an Auditor Generals report hidden from the public during an election because some people are pretty sure that Parliament intended her reports to remain hidden from the public until tabled in the House (even if they didn't actually write that requirement down in any statues anywhere) is worth getting passionate about.

    Call me crazy, but when there's debate about whether or not Parliament intended to keep accountability reports secret from the public who paid for them until they can be formally tabled in the House of Commons I say the presumption should be in favour of giving the citizenry the information about their government, not in favour of keeping the information secret because technically you can't table a Report in the House if the House isn't sitting.

  107. point
    set
    match
    for the man with the funny hat

  108. No, tabling the report in Parliament is a way of transmitting the report from the AG to Parliament. Nothing in the AG Act prohibits the Speaker from releasing the report to the public, but nothing authorises him to do it either. You need to point to that authority ti make the case that he can do this. I have no idea whether it exists, but the comment from his office suggests it isn't obvious.Sent from my BlackBerry device on the Rogers Wireless Network

  109. Because
    1. They don't get to choose opposition days.
    2. When the house finds a government in contempt, how on earth can you let it continue to sit beyond your first opportunity to remove it?

  110. I usually don't follow politics that close but try to get more involved around elections. When I ask a question it is because I really don't know or understand. I have been around long enough to vote for both the Liberals & the Conservatives. I believe that the Contempt ruling looks as bad on the Opposition as the Government because it comes across more as desperate. A lot of people are pissed about the spending on the G8/G20 but chalk it up to the ‘they are all the same'. If the Opposition had waited for this report and it brought new allegations to light, it could have changed that.
    But I am cynical enough to wonder if the Opposition new that the leaked draft would be more damaging than the actual report & are playing us knowing there is no way the AG report will be released before the house is sitting.
    Either way I do appreciate when someone responds to my questions & coments here.

  111. I usually don%E2%80%99t follow politics that close but try to get more involved around elections. When I ask a question it is because I really don%E2%80%99t know or understand. I have been around long enough to vote for both the Liberals & the Conservatives. I believe that the Contempt ruling looks as bad on the Opposition as the Government because it comes across more as desperate. A lot of people are pissed about the spending on the G8/G20 but chalk it up to the ‘they are all the same%E2%80%99. If the Opposition had waited for this report and it brought new allegations to light, it could have changed that.
    But I am cynical enough to wonder if the Opposition new that the leaked draft would be more damaging than the actual report & are playing us knowing there is no way the AG report will be released before the house is sitting.
    Either way I do appreciate when someone responds to my questions & coments here.

  112. LKO:

    We have so many separate threads going on this post I thought it would be easier to sart a new one.

    You have forced me to read way too much law. I'm not paid to do this and I'm not happy.

    The Parliament of Canada Act: the section you rely upon is called "Board of Internal Economy" As I pointed out earlier, section 53 confers upon the Speaker certain powers in context of the Board only, during dissolution. In section 52.2 and.3, the ambit of the Board amounts to contracts, financial and administrative matters.

    AG Act: the Act specifically says in 7.3 that the report "*shall* be submitted to the House of Commons". My understanding is that SHALL is non-negotiable. May is wishy washy. Shall is categorical.

  113. LKO:

    We have so many separate threads going on this post I thought it would be easier to sart a new one.

    You have forced me to read way too much law. I'm not paid to do this and I'm not happy.

    The Parliament of Canada Act: the section you rely upon is called "Board of Internal Economy" As I pointed out earlier, section 53 confers upon the Speaker certain powers in context of the Board only, during dissolution. In section 52.2 and.3, the ambit of the Board amounts to contracts, financial and administrative matters.

    AG Act: the Act specifically says in 7.3 that the report "*shall* be submitted to the House of Commons". My understanding is that SHALL is non-negotiable. May is wishy washy. Shall is categorical.

    • House Procedure: Their online book on procedure says this about the Speaker: "On the other hand, when there are no rules to fall back on, the Speaker must proceed very cautiously indeed. The most the Chair can do is to lay the matter before the House which can then itself create a new precedent." Since this is an exceptional case, wouldn't it be extraordinary for the Speaker to do soemthing that cannot be sanctioned by the House, since it currently does not exist?

      Now lay off :) This is more research than I have done in a long time and I'm old and grumpy.

      • Oh, and I will repeat the other quote from the Hosue fo Commons website on the effect of dissolution: "The Government must wait until the new Parliament is in session before tabling any document that is required pursuant to an Act, resolution or Standing Order."

        • I still stand by everything I said earlier. The statutes say that the Speaker must table AG reports before the House by a certain deadline after receiving them. It doesn't say he needs to keep them secret from the public until doing so. It doesn't say that tabling the Report in the House is the only means available to him to make such reports public. The AG has to give her reports to the Speaker, and the Speaker has to table them so they become public, full stop.

          It's not me who is "reading in" more to the statute than is there, it's you. You're reading in either a stipulation that AG reports must be kept secret until being laid before the House, or a stipulation that the Speaker must ONLY table such reports before the House and is barred from releasing them to the public in any other way, shape, or form.

          To my mind, if Parliament wants the Speaker to keep GOVERNMENT ACCOUNTABILITY reports hidden from the PEOPLE OF CANADA, under any circumstances, then Parliament needs to make such stipulations EXPLICIT. Saying "The Speaker must table the document before the House" is NOT saying "The Speaker must "ONLY" table the document before the House" nor is it saying "The Speaker must keep the document confidential until it is tabled before the House". All I'm saying is that if Parliament intends to keep documents pertaining to the accountability of our government secret from us (their bosses, and the people who pay for the reports) they need to write that down CLEARLY in our laws, and if they don't, then the bias on the part of our officials should be in favour of RELEASING information to the public, not keeping it hidden.

          • Perhaps you are right. We are, however, a country that functions largely in the tradition of common law. it would be extraordinary to ignore traditional understandings and practices without following a considered, deliberate course of action. I honestly feel that if I am right, it would be inappropriate to leave this up to novel interpretations in the heat of battle.

          • I see your point, and neither of us are, admittedly, legal scholars, so who knows which one of us is right!

            That said, on that last point though, it all depends upon what is considered a "novel interpretation". I say the bias should be in favour of transparency and openness if there is any doubt in the law, and to my mind the "novel interpretation" would be the interpretation that says "even though Parliament never wrote in our laws that the Speaker needs to keep this information hidden from the public, we nonetheless interpret the statute as saying that the Speaker is obliged to keep this information secret from the public". To my mind THAT would be a novel interpretation of the law as written.

          • I think, in effect, what the law says is "When you are not sitting, wait until you are; then submit it." It contemplates no other course of action.

        • "The Government must wait until the new Parliament is in session before tabling any document that is required pursuant to an Act, resolution or Standing Order."

          Yes, the government must wait until the new Parliament is in session before tabling any document. Throwing said document up on a public website somewhere is another kettle of fish all together.

    • Nice collection of research. Well done.

      But I am pretty sure LKO did not force you to do anything you weren't willing to do already. LKO, the stage hypnotist!

      • Good point MYL, it was my inability to survive on charm and off the cuff remarks that forced me to dig deeper into the matter. Despite LKO's use of capitals above, I don't think he is technically correct, based on my reading. I may sympathize with his frustration and desire to have the information public, but I do not believe there is a mechanism to do so that wouldn't be improper according to statute and the House of Commons' own rules and practices.

  114. House Procedure: Their online book on procedure says this about the Speaker: "On the other hand, when there are no rules to fall back on, the Speaker must proceed very cautiously indeed. The most the Chair can do is to lay the matter before the House which can then itself create a new precedent." Since this is an exceptional case, wouldn't it be extraordinary for the Speaker to do soemthing that cannot be sanctioned by the House, since it currently does not exist?

    Now lay off :) This is more research than I have done in a long time and I'm old and grumpy.

  115. Oh, and I will repeat the other quote from the Hosue fo Commons website on the effect of dissolution: "The Government must wait until the new Parliament is in session before tabling any document that is required pursuant to an Act, resolution or Standing Order."

  116. Well, she didn't appear to pleased with the release of the early drafts of her report – she has now commenced an investigation into how that happened. She also wrote the response to Layton telling him she isn't inclined to release the report just because he et al say so. Not sure what more she has to do to make her wishes express.

    At the risk of inviting all manner of flaming about parliamentary contempt, both the AG and the Speaker are accountable to one entity and one entity only – parliament. It is not surprising neither appear prepared to act ultra vires the legislative protocols for the release of a AG report at the insistence of some person or persons who are not parliament. The fact that (in your opinion, at least) they could is utterly irrelevant.

    I'm curious – what do you think is in the final report that will be so damning to Harper's government? G20/G8 spending was an issue in this campaign essentially from the get go and the allegations the CPC spent money on things that ostensibly appear to have little or no connection to the summit meetings themselves is beyond serious contention. The primary objective of an audit is to vouch financial figures and, in the context of the G20/G8, to vouch that the monies the government spent on the summit were actually spent. What an auditor typically does NOT do is express an opinion on the merits of a particular expenditure (although, as per the first draft leak, it is within her purview to comment on whether expenditures were incurred for the purposes for which the government received its mandate).

    Are you anticipating the final AG report will reveal the government cannot vouch its G8/G20 expenditures? If so, I'll save you some sleepless nights as you wait – the government will be able to vouch every single dime it spent on the G8/G20 summit. The issue has always been and will remain whether the government spent its G8/G20 budget properly and I highly doubt anything in the AG report will add anything more to that issue than is already in the public realm.

  117. Abstaining would not have been voting down the budget – the budget would have passed first reading without any support from any opposition party that the CPC could then have used for some kind of electoral advantage and their steak would have been made even juicier with the AG report tabled prior to their contempt motion.

  118. "But I am cynical enough to wonder if the Opposition new that the leaked draft would be more damaging than the actual report & are playing us knowing there is no way the AG report will be released before the house is sitting. "

    Not just cynical but wise. It is essentially never the case that a final auditor report is worse than a first draft, simply because the purpose of the draft is to present preliminary findings to the audit subject so that subject can provide further information and representations on those findings. As often as not, that further information results in resolution of many of the preliminary findings and they do not appear in the final report. There is far more political hay to be made by demanding the AG release her report, knowing she won't, than from the actual final report itself.

  119. Nice collection of research. Well done.

    But I am pretty sure LKO did not force you to do anything you weren't willing to do already. LKO, the stage hypnotist!

  120. I think you're right. And short of a debate on going to war or declaring bankruptcy, I have trouble imagining what sort of national emergency would compel His Excellency to pull that alarm trigger. This (the AG report whose draft is showing) certainly doesn't come close.

  121. He's probably more speaker than Harper is pm at the moment.

    That grates, especially if the written-down rules support you. Isn't there something about the preservation of Cabinet (or Privy Council) spelled out somewhere that could help us? Any parliamentarian type folk out there?

  122. Well, she didn't appear to pleased with the release of the early drafts of her report – she has now commenced an investigation into how that happened.

    Sure, but releasing incomplete and possibly inaccurate early DRAFTS of a report is entirely different from releasing the completed report.


    I'm curious – what do you think is in the final report that will be so damning to Harper's government?

    I don't think there's anything more damning in the Report than what has already been released in the earlier drafts. In fact, my understanding is that the Report itself is LESS damning than the drafts released thus far, which is why Prime Minister Harper wants the Report released. I'm not passionate about this because I want the Conservatives hurt, I'm passionate about this because it's about releasing an Auditor General's Report to the pubic, and I think that when there's a question of whether or not reports touching on the accountability of our government should be released to the public, they should be released to the public, especially when every political leader in the country thinks that it should be released, and there's no clear indication in any statute, anywhere, that that Parliament meant such reports to be kept secret from the public until getting formally tabled before the House.

    both the AG and the Speaker are accountable to one entity and one entity only – parliament.

    Sure, and Parliament has never indicated, in any statute (so far as I have seen) that they intended reports from the AG to be kept secret from the public until tabled in the House. You're right that I'm saying that the Report can be released by the Speaker simply because Parliament never said it couldn't, but that's no minor point. If Parliament wants GOVERNMENT ACCOUNTABILITY reports to be kept secret from the PEOPLE OF CANADA until formally tabled in the House of Commons they need to say so EXPLICITLY. I don't think it's appropriate for anyone to "read in" to a statute an intention on the part of Parliament to keep Auditor Generals' reports secret from the Canadian citizenry until they're formally laid before the House if the statute doesn't actually include that stipulation in writing, and I don't think that's some radical position to take.

  123. The very SECOND the Report is tabled in the House it is available to Parliament, sure, but it's also available to the public at that moment as well. Saying that the statute authorizes the Speaker to table the Report in the House of Commons but that there's nothing authorizing him to release it to the public is like saying that a statute authorizes the Speaker to broadcast the contents of some report during every commercial break of American Idol, and Hockey Night in Canada but that there's nothing in the statute that authorizes the Speaker to "release it to the public". Tabling the Report in the House IS releasing the document to the public, and to my mind, if Parliament intended this route to be the ONLY allowable mechanism for such a report to be released to the public, they should have said so. When it comes to the releasing of accountability documents to the citizens of Canada, I think that if statutes are unclear, the bias should be in favour of RELEASING accountability information to the people, not hiding it. Apparently I'm in a minority there though?

  124. I still stand by everything I said earlier. The statutes say that the Speaker must table AG reports before the House by a certain deadline after receiving them. It doesn't say he needs to keep them secret from the public until doing so. It doesn't say that tabling the Report in the House is the only means available to him to make such reports public. The AG has to give her reports to the Speaker, and the Speaker has to table them so they become public, full stop.

    It's not me who is "reading in" more to the statute than is there, it's you. You're reading in either a stipulation that AG reports must be kept secret until being laid before the House, or a stipulation that the Speaker must ONLY table such reports before the House and is barred from releasing them to the public in any other way, shape, or form.

    To my mind, if Parliament wants the Speaker to keep GOVERNMENT ACCOUNTABILITY reports hidden from the PEOPLE OF CANADA, under any circumstances, then Parliament needs to make such stipulations EXPLICIT. Saying "The Speaker must table the document before the House" is NOT saying "The Speaker must "ONLY" table the document before the House" nor is it saying "The Speaker must keep the document confidential until it is tabled before the House". All I'm saying is that if Parliament intends to keep documents pertaining to the accountability of our government secret from us (their bosses, and the people who pay for the reports) they need to write that down CLEARLY in our laws, and if they don't, then the bias on the part of our officials should be in favour of RELEASING information to the public, not keeping it hidden.

  125. You seem to have found a lack of clarity where others see none. I suspect if we looked through the Compendium of Parliamentary Practice we too would see things more clearly. The Parliament of Canada Act does not seem to be the appropriate reference for understanding the Speaker's authority. The AG reports to Parliament, not to the public, and the Speaker transmits her report to Parliament, not to the public. Parliament could, I suppose, keep the tabled report from being made public. It certainly has the discretion to decide how the report is made publicly available. Sent from my BlackBerry device on the Rogers Wireless Network

  126. Wasn't there this same problem with a PBO report last election? That didn't seem very complicated to solve.Sent from my BlackBerry device on the Rogers Wireless Network

  127. Good point MYL, it was my inability to survive on charm and off the cuff remarks that forced me to dig deeper into the matter. Despite LKO's use of capitals above, I don't think he is technically correct, based on my reading. I may sympathize with his frustration and desire to have the information public, but I do not believe there is a mechanism to do so that wouldn't be improper according to statute and the House of Commons' own rules and practices.

  128. Perhaps you are right. We are, however, a country that functions largely in the tradition of common law. it would be extraordinary to ignore traditional understandings and practices without following a considered, deliberate course of action. I honestly feel that if I am right, it would be inappropriate to leave this up to novel interpretations in the heat of battle.

  129. I see your point, and neither of us are, admittedly, legal scholars, so who knows which one of us is right!

    That said, on that last point though, it all depends upon what is considered a "novel interpretation". I say the bias should be in favour of transparency and openness if there is any doubt in the law, and to my mind the "novel interpretation" would be the interpretation that says "even though Parliament never wrote in our laws that the Speaker needs to keep this information hidden from the public, we nonetheless interpret the statute as saying that the Speaker is obliged to keep this information secret from the public". To my mind THAT would be a novel interpretation of the law as written.

  130. "Parliament could, I suppose, keep the tabled report from being made public".

    How does one keep a tabled report from being made public? Once the report is tabled it is part of the public record by definition, is it not? Keeping the document from being made public would require it to NOT be tabled in the House of Commons. Documents tabled in the House of Commons are part of the public record. The whole reason reports like this are tabled in the House of Commons is to make them a part of the public record. Tabling the report in the House isn't something that is done before the report is made public, it is the mechanism through which the report is made public.

    To my mind, saying that a report can be kept from the public after it has been tabled is like saying that a television show can be kept off the airwaves after it's already been aired. A tabled report is public. I'm pretty sure keeping a tabled report from becoming public would require a flux capacitor and a DeLorean.

  131. The AG reports to Parliament, not to the public, and the Speaker transmits her report to Parliament, not to the public.

    This is only true in the most narrow sense, imho. The public is ABOVE Parliament on the org. chart, not below. Saying that the AG reports to Parliament and not the public is like saying that that a sergeant reports to his platoon leader, not his Company's commanding General. Guess what happens if the sergeant's Lieutenant say X and the commanding General of his Company says Y?

    As for the Speaker transmitting the Report to Parliament, but not the public, again what do you think the tabling of a Report before the House of Commons means? Laying the Report before the House MAKES IT A PUBLIC DOCUMENT. The stipulation that the Speaker lay the Report before the House of Commons isn't some procedure that happens BEFORE the document is made public, it is the mechanism through which the report is made public. The House doesn't take the tabled report and then decide on whether or not to make it public, the act of tabling the Report in the House is what makes the Report public. The INSTANT the Report is tabled, it's public.

  132. The Afghan detainee documents? Isn't a category of those being provided to Parliament without becoming public?

  133. No. None of those documents has been tabled in the House of Commons.

    Some of those documents are being provided to a small group of Parliamentarians who are basically going over them in private and deciding whether or not the rest of their colleagues should be allowed to see them. More importantly NONE of those Afghhan detainee documents has been tabled in the House of Commons. If they had been, you and I would be able to look up those documents online. Tabling documents in the House makes them public. It's why we insist that government accountability reports be tabled in the House.

    What's going on with the Afghan detainee documents is a process to determine whether or not it's appropriate for these documents to become public. For now, they're secret from everyone who's not a part of the group of MPs who are currently doing that work. Were they laid before the House of Commons they'd then become public.

    Tabling a document in the House is the parliamentary equivalent of entering something into evidence in a court of law. Once it's tabled, everyone can see it. In fact, making documents public is arguably one of the reasons documents are required to be laid before the House at all.

  134. Okay, but what prevented Parliament from having the AG release her reports directly to the public instead? And the fact that Parliamentarians are reviewing documents that may not be made public doesn't help your argument that Parliament is below the public on the org chart of democracy…also, courts have sealed evidence, publication bans and in camera sessions, so entering something into evidence isn't the same as revealing it publicly. I imagine there's a way to release the report while Parliament is dissolved, same as there should be for the detainee documents, but I'll be surprised if it turns out to be the Speaker deciding to publish it.

  135. I think, in effect, what the law says is "When you are not sitting, wait until you are; then submit it." It contemplates no other course of action.

  136. Okay, but what prevented Parliament from having the AG release her reports directly to the public instead?

    I'd say tradition mostly. Laying reports before the House of Commons is just the traditional way of releasing documents to the public. It goes back to pre-internet and mass communication days I'm afraid, when the best way to ensure that all Parliamentarians had access to documents like these AT THE SAME TIME (such that no party had the advantage of seeing "public" documents weeks before other Parliamentarians from other parties did) in an era when there were no telephones, or T.V., or internet, was to table those documents in the House of Commons as soon as the House was in session.

    Also, the public is clearly above Parliament on the org chart imho, but that doesn't mean that every individual member of the public should have unfettered access to secret national security documents. To my mind, those two points are entirely separate.

  137. See, and I think it just says "If the House isn't sitting when you get the report, you're obliged to lay it before them as quickly as possible once they're sitting again". The spirit of the law, as I read it, is "release AG reports in a timely manner once you have them", not "keep AG reports received while the House is not sitting secret until the House is sitting again"

    Perhaps the AG Act "contemplates no other course of action" beyond tabling the report in the House, but it also does not preclude any other course of action either; and I think that when it comes to the releasing of government accountability reports to the people of Canada, that if Parliament wants to prevent such reports from being released to the people except when the House is sitting they need to be EXPLICIT that said reports must be kept hidden from the public until tabled in the House of Commons. To my mind, people are reading a stipulation in the AG Act which was intended to lead to the prompt releasing of reports to the public in a manner which, in this case, would delay the prompt release of an AG report to the public.

    I read "the Speaker of the House of Commons shall lay each such report before the House of Commons forthwith after receiving it or, if that House is not then sitting, on any of the first fifteen days on which that House is sitting after the Speaker receives it" to mean "Don't dilly-dally in releasing these reports. Either table them the moment you get them, or table them as soon as you can once the House is sitting again." To my mind, the bias in the language of the statute is in favour of the rapid release of these reports to the public, and I'm, frankly, surprised to see people pointing to the same language and arguing that it's somehow clear that Parliament intended these reports to be kept hidden from the public unless the House is sitting. If Parliament had intended government accountability reports to be kept secret unless the House of Commons is sitting, I think they needed to make that explicit in the statute, rather than presuming that everyone who reads "The speaker shall…lay each such report before the House of Commons on any of the first fifteen days on which that House is sitting after the Speaker receives it," will read that to mean, "The speaker shall…ONLY lay each such report before the House of Commons on any of the first fifteen days on which that House is sitting after the Speaker receives it, and otherwise shall keep said reports secret until that time".

  138. From Kady O'Malley: "given that all four parties have demanded/requested that she do so?

    Simple: Because as an officer of parliament, the auditor general reports to parliament, and at the moment, we don't have one of those, what with the government having fallen eighteen days ago, thus plunging us into an election that, despite what some talking points you might have heard, was, in fact, necessary as the government of the day no longer held the confidence of the House of Commons."

    From AGO, as quoted on CBC site:
    "We will not release or comment on our audit report on the G8 Legacy Infrastructure Fund. Under the Auditor General Act, we can only present reports when Parliament is sitting. The Office of the Audit General of Canada remains the custodian of its reports until they are presented to the Speaker of the House of Commons for tabling."

    So your point appears to be moot – the Speaker is not in possession of the report because the AG doesn't believe he has a right to it until Parliament is reconstituted.

    • That's the point I don't get though. Where in the Act does it say that the AGO "can only present reports when Parliament is sitting"??? I don't see that anywhere. If someone can point me to that I'd really like to see it.

      All the Act says is that the Auditor General must submit her reports to the Speaker, and that the Speaker must then table them in the House. Where's the part that says she can't give reports to the Speaker when Parliament isn't sitting??? The only mention in the Act regarding Parliament not sitting explicitly lays out when the Speaker is to table any reports in the House that he receives while Parliament is not sitting. (Heck, while we're on the subject, where in the Act does it suggest that the AG can't put a report up on her website before giving it to the Speaker? Or at least at the same time?). A statute that says that an official must do X, Y and Z does not automatically preclude said officer from doing A, B and C, and if Parliament wants to exclude someone from doing A, B or C, they need to WRITE THAT DOWN IN THE LAW.

      How can someone possibly read a statute that explicitly tells the Speaker when to table a report that he receives when Parliament is not sitting as indicating somehow that the Speaker cannot receive reports while Parliament is not sitting???

      I happen to think the Speaker is still the Speaker even when Parliament is dissolved, but at least the "I can't give the report to the Speaker because there is no Speaker" line of argument has some consistency with the AG Act if one believes that the Speaker is no longer the Speaker (which, again, I don't). However, the notion that the AGO can "only present reports when Parliament is sitting" is undermined slightly by the fact that the AG Act itself gives explicit instructions to the Speaker as to when he is to table reports that are presented to him WHILE PARLIAMENT IS NOT SITTING. If the intent of the Act is for the AG to only give the Speaker her reports while Parliament is sitting, why does the Act explicitly stipulate the actions that the Speaker must take when he receives reports while Parliament is not sitting?

      • If I understand House of Commons practice properly, it's that it has many prescribed ways of doing things that are not expicitly written down, but which are very clearly understood. That would be simialr to how our Constitution functions: nowhere in it is the concept of responsible government or ministerial responsibility written down, but we have accepted certain practices and conventions for them to work.

        What you are arguing would be reasonable as propositions for the Speaker to make to the House, if it existed, to deal with this scenario. Problem is, part of this scenario is that we are in the midst of an election and the House doesn't exist. Go back to the quote is used to underline how careful the Speaker should be in deviating from normal practice. And normal practice is that these documents are tabled in the House, and no other way.

        • If I understand House of Commons practice properly, it's that it has many prescribed ways of doing things that are not explicitly written down, but which are very clearly understood.

          Sure, but the AG Act IS written down, and it explicitly fails to mention either that the AG is required to keep reports secret until they're tabled in the House, or that the Speaker is.

          Plus, to my mind one of those unwritten conventions is "tabling a report in the House of Commons is simply the means by which a report is made public, nothing more, nothing less". To my mind the notion that in 2011 we have to wait until Parliament resumes to make this report public, when we could scan it and have it on a website for all to see in minutes is just silly. It's a throwback to the days when one had to wait until all of our MPs were in one place so that they could all receive such reports at the same time, because there was no internet, nor television, nor telephones. It's inane to wait for Parliament to be reconstituted, imho, can't POSSIBLY be what Parliament intended in their wording of the Act, and, most importantly, is NOT TECHNICALLY REQUIRED BY THE WORDING OF THE ACT.

          • I get what you're saying, no need to shout. Especially when you are simply wrong. My deference to you on this has been one of politesse, not doubt.

            AGA: "the Speaker of the House of Commons shall lay each such report before the House of Commons forthwith after receiving it or, if that House is not then sitting, on any of the first fifteen days on which that House is sitting after the Speaker receives it."

            There is no other interpretation possible than that 1) the House of Commons has to be sitting, and 2) that the Speaker has to wait until it is sitting to *lay each such report before [it]".

            Lastly, it certainly can be what Parliament intended. AG reports are always contentious. Do you honestly believe that whichever majority party was in power at the time the act was written wanted to contend with a report during an election? This is not the first time an AG report has affected the timing of an election. That can only be because it is generally understood it would have the effect of delaying such a report.

          • There is no other interpretation possible than that 1) the House of Commons has to be sitting, and 2) that the Speaker has to wait until it is sitting to *lay each such report before [it]".

            Yes, the House of Commons has to be sitting for the report to be tabled. I don't care about the report being tabled. The Speaker can table the report as stipulated in the act when the House is re-constituted. If he had the report right now though, he could also throw it up on his website right now, and I still challenge anyone to point to something in our laws that says he couldn't do that, because I haven't seen that yet. The House has to be sitting for the report to be laid before it, I agree. Now, where does it indicate that laying the report before the House of Commons is the only thing anyone is allowed to do with the report? Again, "You must do X" is not "You must only do X and nothing else". It just isn't.

            Also, apologies for the "shouting". I'm not really shouting, it's just easier and faster to use all caps for emphasis than it is to throw in HTML tags.

          • I believe it is the unwritten "laws" of how parliamentary bodies function that are in effect here. Tabling is the one acceptable way for documents of this sort to be conveyed from their author to the Members of Parliament. Any other method is outside the usual and accepted procedures and, as such, woudl require the careful approach suggested by the quote I used earlier about such cases.

            Your desired outcome may have normative values in favour of it, but is quite beyond the capacity of the actors involved to effect, in my humble opinion, until such time as the procedures have been considered, changed and adopted by the House.

          • Also, I suppose that you're right that your interpretation could be what Parliament intended, however, generally when there's disagreement between what our laws actually say, and what we think Parliament intended them to say, we're still ruled by what our laws actually say. It's like the veiled voting thing. Parliament may have INTENDED that voters in veils have their faces checked to verify their identity, but as the law they wrote does not actually require a voter to show photo id (i.e. the thing you'd check their face against) then regardless of Parliament's intent the law does not require voters in veils to have their faces checked to verify their identity.

            I really firmly believe that if Parliament intended government accountability reports to be kept from the public during elections, that's the sort of thing they need to lay out specifically and explicitly. There are certainly stipulations to legislation that I could see a court "reading in" to a statute that doesn't clearly express the intent of Parliament, but I just can't see a judge "reading in" a requirement to keep government accountability documents secret during an election that's not explicitly there in the law.

          • Actually, it is my understanding that courts do regularly review debates of legislation to improve their understanding of what was intended. However, I will not state that with certainty as I am not a lawyer and it is just something I recall hearing at some time in the past.

    • I should add that I do agree that the point is moot if the AG refuses to give the report to the Speaker, I just disagree with the logic the AGO is using in their refusal to give the report to the Speaker.

  139. From Kady O'Malley: "given that all four parties have demanded/requested that she do so?

    Simple: Because as an officer of parliament, the auditor general reports to parliament, and at the moment, we don't have one of those, what with the government having fallen eighteen days ago, thus plunging us into an election that, despite what some talking points you might have heard, was, in fact, necessary as the government of the day no longer held the confidence of the House of Commons."

    From AGO, as quoted on CBC site:
    "We will not release or comment on our audit report on the G8 Legacy Infrastructure Fund. Under the Auditor General Act, we can only present reports when Parliament is sitting. The Office of the Audit General of Canada remains the custodian of its reports until they are presented to the Speaker of the House of Commons for tabling."

    So your point appears to be moot – the Speaker is not in possession of the report because the AG doesn't believe he has a right to it until Parliament is reconstituted.

  140. That's the point I don't get though. Where in the Act does it say that the AGO "can only present reports when Parliament is sitting"??? I don't see that anywhere. If someone can point me to that I'd really like to see it.

    All the Act says is that the Auditor General must submit her reports to the Speaker, and that the Speaker must then table them in the House. Where's the part that says she can't give reports to the Speaker when Parliament isn't sitting??? The only mention in the Act regarding Parliament not sitting explicitly lays out when the Speaker is to table any reports in the House that he receives while Parliament is not sitting. (Heck, while we're on the subject, where in the Act does it suggest that the AG can't put a report up on her website before giving it to the Speaker? Or at least at the same time?). A statute that says that an official must do X, Y and Z does not automatically preclude said officer from doing A, B and C, and if Parliament wants to exclude someone from doing A, B or C, they need to WRITE THAT DOWN IN THE LAW.

    How can someone possibly read a statute that explicitly tells the Speaker when to table a report that he receives when Parliament is not sitting as indicating somehow that the Speaker cannot receive reports while Parliament is not sitting???

    I happen to think the Speaker is still the Speaker even when Parliament is dissolved, but at least the "I can't give the report to the Speaker because there is no Speaker" line of argument has some consistency with the AG Act if one believes that the Speaker is no longer the Speaker (which, again, I don't). However, the notion that the AGO can "only present reports when Parliament is sitting" is undermined slightly by the fact that the AG Act itself gives explicit instructions to the Speaker as to when he is to table reports that are presented to him WHILE PARLIAMENT IS NOT SITTING. If the intent of the Act is for the AG to only give the Speaker her reports while Parliament is sitting, why does the Act explicitly stipulate the actions that the Speaker must take when he receives reports while Parliament is not sitting?

  141. I should add that I do agree that the point is moot if the AG refuses to give the report to the Speaker, I just disagree with the logic the AGO is using in their refusal to give the report to the Speaker.

  142. "The Government must wait until the new Parliament is in session before tabling any document that is required pursuant to an Act, resolution or Standing Order."

    Yes, the government must wait until the new Parliament is in session before tabling any document. Throwing said document up on a public website somewhere is another kettle of fish all together.

  143. If I understand House of Commons practice properly, it's that it has many prescribed ways of doing things that are not expicitly written down, but which are very clearly understood. That would be simialr to how our Constitution functions: nowhere in it is the concept of responsible government or ministerial responsibility written down, but we have accepted certain practices and conventions for them to work.

    What you are arguing would be reasonable as propositions for the Speaker to make to the House, if it existed, to deal with this scenario. Problem is, part of this scenario is that we are in the midst of an election and the House doesn't exist. Go back to the quote is used to underline how careful the Speaker should be in deviating from normal practice. And normal practice is that these documents are tabled in the House, and no other way.

  144. If I understand House of Commons practice properly, it's that it has many prescribed ways of doing things that are not explicitly written down, but which are very clearly understood.

    Sure, but the AG Act IS written down, and it explicitly fails to mention either that the AG is required to keep reports secret until they're tabled in the House, or that the Speaker is.

    Plus, to my mind one of those unwritten conventions is "tabling a report in the House of Commons is simply the means by which a report is made public, nothing more, nothing less". To my mind the notion that in 2011 we have to wait until Parliament resumes to make this report public, when we could scan it and have it on a website for all to see in minutes is just silly. It's a throwback to the days when one had to wait until all of our MPs were in one place so that they could all receive such reports at the same time, because there was no internet, nor television, nor telephones. It's inane to wait for Parliament to be reconstituted, imho, can't POSSIBLY be what Parliament intended in their wording of the Act, and, most importantly, is NOT TECHNICALLY REQUIRED BY THE WORDING OF THE ACT.

  145. I get what you're saying, no need to shout. Especially when you are simply wrong. My deference to you on this has been one of politesse, not doubt.

    AGA: "the Speaker of the House of Commons shall lay each such report before the House of Commons forthwith after receiving it or, if that House is not then sitting, on any of the first fifteen days on which that House is sitting after the Speaker receives it."

    There is no other interpretation possible than that 1) the House of Commons has to be sitting, and 2) that the Speaker has to wait until it is sitting to *lay each such report before [it]".

    Lastly, it certainly can be what Parliament intended. AG reports are always contentious. Do you honestly believe that whichever majority party was in power at the time the act was written wanted to contend with a report during an election? This is not the first time an AG report has affected the timing of an election. That can only be because it is generally understood it would have the effect of delaying such a report.

  146. There is no other interpretation possible than that 1) the House of Commons has to be sitting, and 2) that the Speaker has to wait until it is sitting to *lay each such report before [it]".

    Yes, the House of Commons has to be sitting for the report to be tabled. I don't care about the report being tabled. The Speaker can table the report as stipulated in the act when the House is re-constituted. If he had the report right now though, he could also throw it up on his website right now, and I still challenge anyone to point to something in our laws that says he couldn't do that, because I haven't seen that yet. The House has to be sitting for the report to be laid before it, I agree. Now, where does it indicate that laying the report before the House of Commons is the only thing anyone is allowed to do with the report? Again, "You must do X" is not "You must only do X and nothing else". It just isn't.

    Also, apologies for the "shouting". I'm not really shouting, it's just easier and faster to use all caps for emphasis than it is to throw in HTML tags.

  147. Also, I suppose that you're right that your interpretation could be what Parliament intended, however, generally when there's disagreement between what our laws actually say, and what we think Parliament intended them to say, we're still ruled by what our laws actually say. It's like the veiled voting thing. Parliament may have INTENDED that voters in veils have their faces checked to verify their identity, but as the law they wrote does not actually require a voter to show photo id (i.e. the thing you'd check their face against) then regardless of Parliament's intent the law does not require voters in veils to have their faces checked to verify their identity.

    I really firmly believe that if Parliament intended government accountability reports to be kept from the public during elections, that's the sort of thing they need to lay out specifically and explicitly. There are certainly stipulations to legislation that I could see a court "reading in" to a statute that doesn't clearly express the intent of Parliament, but I just can't see a judge "reading in" a requirement to keep government accountability documents secret during an election that's not explicitly there in the law.

  148. I believe it is the unwritten "laws" of how parliamentary bodies function that are in effect here. Tabling is the one acceptable way for documents of this sort to be conveyed from their author to the Members of Parliament. Any other method is outside the usual and accepted procedures and, as such, woudl require the careful approach suggested by the quote I used earlier about such cases.

    Your desired outcome may have normative values in favour of it, but is quite beyond the capacity of the actors involved to effect, in my humble opinion, until such time as the procedures have been considered, changed and adopted by the House.

  149. Actually, it is my understanding that courts do regularly review debates of legislation to improve their understanding of what was intended. However, I will not state that with certainty as I am not a lawyer and it is just something I recall hearing at some time in the past.

  150. You're right, the courts do sometimes (not sure about "regularly" but that's beside the point) review debates of legislation to improve their understanding of what was intended. I'd make a couple of points on that.

    First, I'd be surprised to read that someone actually said in one of the debates "One of our intentions here is to make sure that reports from the Auditor General are kept secret during elections", or some such.

    Second, I think generally the courts "read in" to statutes more when it's unclear if a passage means X, or Y. In this case however, one would need to interpret not whether the wording means one thing or another, but that the wording means both what it says and also something that it doesn't say. Take, for example, a law about the content of orange juice. In comparison to the AG example, it's not a case of determining whether the word "orange" is referring to the colour, or the fruit, it's the equivalent of seeing the word orange and "reading in" that when the legislation refers to "oranges" what it really means is oranges, or "any other fruit of any kind".

    As I said, I can see a judge "reading things in" to a statute based on information form the debates. I just can't see a judge reading a clause stating that a report must be laid before the House as also meaning that said report must be kept hidden from the public until being tabled in the House. To my mind, that's like a same-sex marriage statute that says a man can marry another man being interpreted to mean not only that a man who wishes to marry may marry another man, but also that he can ONLY marry another man. Or, to go back to my veiled voting example, it would be like a judge requiring all voters who show up at the polls wearing a veil to show photo ID (because that's clearly required to fulfill the intentions of some MPs as stated during the debates) despite the fact that the law does not require voters to show photo ID. Parliament may have intended to force veil-wearing women (and only veil-wearing women) to show photo ID at the polls, but if Parliament didn't write that into the law, no judge is going to fix that mistake for them by creating a separate class of voters who are required to show photo ID despite the fact that the law as written does not require them to show photo ID. Similarly, I just can't see a judge ruling that AG reports must be kept hidden from the public until laid before the House of Commons despite the fact that the law as written does not require said reports to remain hidden from the public until laid before the House of Commons.