Reaction and perspective

Canwest rounds up the reviews of Mr. Milliken’s ruling. Ned Franks and Errol Mendes columnize their thoughts.

From the House, I would note (as I did) that when the Speaker was done, he was applauded by all sides of the chamber.

Reaction and perspective

  1. Ned Franks seemed to be out quickly yesterday with commentary and now an op-ed. As a former prof to Milliken, and an expert on Parliament, what are the odds he wasn't involved, in some aspect, in the preparation of the ruling – even if just a sounding board? Not a tremendously important point. Just wondering.

    How do I think Harper will propose to resolve the impasse? Blue ribbon committee with Pierre Poilivre, Diane Finley, Marlene Jennings…

  2. Franks said Nicholson was also his student.

  3. "From the House, I would note (as I did) that when the Speaker was done, he was applauded by all sides of the chamber."

    You say that like it's a good thing. I don't have any huge problem with the Speaker's ruling, but this arbitrary even handedness is positively corrosive.

    The Conservatives have been making an argument–that an act of parliament somehow overrides an explicit constitutional power of parliament–that elementary school students know doesn't make any sense (i.e. the Constitution is highest law of the land). Bending over backwards to act evenhandedly–regardless of the merits of each side's argument–just allows those who are willing to be intellectually dishonest look like they're being reasonable.

  4. "From the House, I would note (as I did) that when the Speaker was done, he was applauded by all sides of the chamber."

    You say that like it's a good thing. I don't have any huge problem with the Speaker's ruling, but this arbitrary even handedness is positively corrosive.

    The Conservatives have been making an argument–that an act of parliament somehow overrides an explicit constitutional power of parliament–that elementary school students know doesn't make any sense (i.e. the Constitution is highest law of the land). Bending over backwards to act evenhandedly–regardless of the merits of each side's argument–just allows those who are willing to be intellectually dishonest look like they're being reasonable.

  5. As Kady O'Malley pointed out yesterday, Milliken has a tendency to rule only when absolutely necessary, and exhibits a strong preference for members of the house to resolve issues betwixt themselves, rather than relying on Papa Speaker to issue a fiat from above. His ruling was hardly arbitrary.

    It's Milliken's interpretation of democracy, and one way to attempt to have government work through collaboration and cooperation rather than becoming entirely adversarial. There are pros and cons to this approach, but on the whole, and for this issue, I think it's an entirely appropriate view to take.

    As a country, we look incredibly weak and stupid if we must find our own government in contempt of the House on an issue where, as Milliken and other MPs have said, there are other, reasonable, possible solutions. So, as is rather Canadian, we issue a wake-up call: play by the rules, or face the consequences. Harper now has a concrete deadline to work it out or have his ministers found in contempt.

  6. As a country, we look incredibly weak and stupid if we must find our own government in contempt of the House on an issue where, as Milliken and other MPs have said, there are other, reasonable, possible solutions.

    I don't have a problem with the ruling, and I think it was appropriate, but I'd just point out that, to my mind, we look equally weak and stupid as a country if we let our own government be in contempt of Parliament for five months when there are other reasonable possible solutions. I don't mind myself, but I can see why some people are upset that after five months of the government flipping Parliament the bird, when we finally get around to acknowledging the fact that our own government is openly showing contempt for the majority of our elected representatives, we give them two more weeks to try to stop being contemptuous. To my mind though, the two weeks isn't actually that big of a deal. It's the five preceding months that really gets to me. I get that we could look silly if our Parliament has to call the executive to task for ignoring them, but how do we look if we just let our executive ignore the majority of Parliament consequence-free? Again, I think the ruling's just fine, but if we do get to a point where we have to choose between "looking weak and stupid" and "looking like we're not a representative democracy anymore", I know which I'd prefer.

  7. You should probably keep your facts straight.

    Nobody has been found in contempt of anything yet, let alone for five months. Even in two weeks when the speaker's ruling comes it will be a prima facia case of breach of privilege, not an absolute declaration.

    If the gov't loses a full vote in the house that the speaker calls to remedy the breach and the gov't refuses to comply with that THEN they are in contempt of parliament and steps can be taken.

  8. I agree, but (1) the government had to be given time to comply with the initial order of December 10th, (2) the privilege motions and subsequent responses had to be debated in the house of commons (and things tend to happen slowly when debate is required, for scheduling reasons etc) and (3) I wonder how much time it took Milliken and his aides to go through all the bog that is the procedural books and draft that ruling.

    Listening to it, he was citing stuff that I never even knew existed, from pages deep within procedure books. I've seen less-well-researched and -argued theses that took longer to prepare.

    That it took us five months to get to this point is a function of not only the actions of government, but the very institutions and conventions that we were trying to defend…so do we change the institutions and conventions so that we are more equipped to respond quickly to such situations? Or, do we look at this situation for what it is – something that should be an anomaly, rather than the rule, in democratic politics? (In other words, what's the real problem here – the government, or the form of parliament.)

  9. You should probably keep your tone constructive.

    LKO is talking about the Government showing contempt for the House, not about a formal ruling of contempt.

  10. This isn't a matter of finding an accommodation. It's a matter of following the rules. No one is asking the Speaker to "issue a fiat from above"–in fact, he has no power to do so; only to find a prima facia breach of privilege which he has.

    And I have no problem with him giving both sides two weeks to work out the problem out among themselves. But the implication that both sides are at fault and that a compromise needs to be worked out IS arbitrary even handedness. The opposition has the right to whatever documents they want, they have no obligation to compromise as the law is clear in this matter and it is up to MPs to enforce their open will via contempt if necessary. Pretending this is an argument with two reasonable sides is not helpful–it just creates the appearence that there is a legitimate legal dispute where none exists.

  11. Just want to clarify, I have no problem with the two weeks either.

  12. "The opposition has the right to whatever documents they want, they have no obligation to compromise as the law is clear in this matter and it is up to MPs to enforce their open will via contempt if necessary."

    No, the house has the right to request documents. And, the type of request has to account for the type of document and its intended use. That much was outlined in Milliken's ruling.

    His even-handedness was intended to address the amount of rhetoric that was used in the house to supplement what were legitimate (though as he pointed out, sometimes misguided) arguments from both sides of the house. The opposition had accused the government of intimidation of witnesses; Milliken saw no prima facie case to support that accusation. The government had argued that the order was not appropriate given the nature of the documents requested, and that national security precluded the release of unredacted documents. The speaker disagreed, and commented that the government's lack of faith in opposition MPs was somewhat less than savoury. I don't find such even-handedness arbitrary, rather, tailored to the arguments presented before him.

  13. The ruling already finds prima facia breach of privilege. The Speaker just gave two weeks to before he will entertain a motion for contempt.

  14. "No, the house has the right to request documents."

    Technical parliament has the right to order the production of documents (not request) and that power–as a matter of consitutional convention–can be exercised by either House. I was referring more informally to the fact the opposition represent the majority in the House and are the ones–in this case–demanding the docuements.

    "And, the type of request has to account for the type of document and its intended use. That much was outlined in Milliken's ruling… The opposition had accused the government of intimidation of witnesses; Milliken saw no prima facie case to support that accusation."

    I have no problem with either of those parts of the ruling. I have a problem with the Speaker trying to appear even handed by acting as if there are two legitimate sides to the central issue at hand (whether the government has the right to withhold these specific documents). He could simply ruled on the question at hand–in much the way that he did–without implying that there is somehow equivalence between the two sides. There isn't. One side is excerise its constitutionally garaunteed powers and the other is trying to frustrate that.

  15. Rob Nicholson needs to start worrying about his obligation to be accountable to parliament rather than a continuing self serving over-adherence to subordinate legislation.

    Maybe he and his legal advisors, especially the one who wrote that fatuous letter about the Offical Secrets Act superseding parliamentary privilege can take some refresher courses on the respective consitutional roles of parliament and government. And what the heck, why not take that Prefontaine guy currently in charge of obstructing the MPCC with them?

  16. Oh, they're definitely in contempt. It's just taken months to take any official steps to do a single sweet thing about it.

  17. Technical parliament has the right to order the production of documents

    Agreed, wrong word choice on my part.

    He could simply ruled on the question at hand–in much the way that he did–without implying that there is somehow equivalence between the two sides

    From my understanding of parliamentary procedure, no, that's not the case. He has to go through the chronology of events pertaining to the matter at hand, and address all of the motions and pertinent arguments to the matter at hand. It's required that a ruling address the full slate of issues pertaining to the order and the assertion of privilege, not just the ones that he …for lack of a better phrase…agrees with.

    Yes, this gives an impression that the government's arguments have more standing than they actually do. However, to listen to the speaker's ruling was to understand that more often than not, he rejected the government's arguments in favour of an interpretation toward the strength of parliament. And that, I'd suppose, is what counts.

  18. I posit that it may be time to really consider separating the office of the Minister of Justice and the Office of the Attorney General.

  19. Or alternatively, separating Rob Nicholson from the office of the Minister of Justice and the Office of the Attorney General.

  20. I didn't say his ruling was arbitrary, I said his even handedness was. To quote just one section of the ruling where this even handedness on display:

    "Finding common ground will be difficult. There have been assertions that colleagues in the House are not sufficiently trustworthy to be given confidential information, even with appropriate security safeguards in place…"

    "The issue of trust goes in the other direction as well. Some suggestions have been made that the Government has self- serving and ulterior motives for the redactions in the documents tabled. Here too, such remarks are singularly unhelpful to the aim of finding a workable accommodation and ultimately identifying mechanisms that will satisfy all actors in this matter."

  21. As much as the government deserves a stronger rebuke, referring the matter of preserving the sensitivity of documents back to MPs actually bolsters parliamentary privilege.

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