Toward a unified comprehension of the Speaker's ruling - Macleans.ca
 

Toward a unified comprehension of the Speaker’s ruling

Aaron Wherry does a close reading of Peter Milliken’s ruling


 

Margaret Wente, Globe and Mail. “In a statement everyone should welcome, he affirmed that Parliament has a right to uncensored documents about Afghan detainees, so long as it can figure out a way to protect legitimate national security concerns.”

National Post editorial board. “Just as his decision Tuesday clearly lays out a government’s obligation to hold itself accountable to Parliament, it equally plainly obliges the opposition to safeguard intelligence and military secrets that, if released, would put our soldiers and diplomats at risk in any far-off missions, not just Afghanistan.”

I invite all submissions to the contrary, but by my humble reading both of our national newspapers have allowed here the substance of Mr. Milliken’s ruling to be misstated. Specifically, so far as I can tell, there is no “so long as,” there is no equally plain obligation.

Let’s go to the text.

Here, as I’ve cited before, is what the Speaker stated at page 22 of his ruling, my emphasis added.

In his March 31 intervention, the Minister of Justice quoted from the 1887 parliamentary treatise of Alpheus Todd to support the view that ―…a due regard to the interests of the State occasionally demand…that information sought for by members of the legislature should be withheld at the discretion and upon the responsibility of ministers.‖  The Minister also cited Bourinot in 1884 observing that the government may ―…feel constrained to refuse certain papers on the ground that their production would be … injurious to public interest.‖  Had he read a little further, he might have found the following statement by Bourinot at page 281: ‘But it must be remembered that under all circumstances it is for the House to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional, and the reasons very cogent, when it cannot be at once laid before the houses.’

Mr. Milliken cites a number of other sources in this regard and then states this.

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

Those looking for a “but” to this sentence have to wait for the next paragraph. Then there is this, my emphasis added.

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

In his comments on this aspect of the matter before us, the Parliamentary Secretary to the Government House Leader referred to my ruling of June 8, 2006, where I stated that national security, when asserted by a Minister, was sufficient to set aside a requirement to table documents cited in debate.  The examples cited by the Parliamentary Secretary related strictly to documents that have been cited by a Minister in the absence of any other explicit expression of interest by the House in the said documents.

Having reviewed the June 8 ruling, it is clear to the Chair that there is a difference between the practice of the House which allows a Minister, on the sole basis of his or her judgment, to refrain from tabling a cited document for reasons of confidentiality and national security, and an Order, duly adopted by the House following notice and debate, requiring the tabling of documents…

Before the House voted on the motion that became an Order to produce documents, the Ministers of Justice, National Defence and Foreign Affairs all rose in the House to explain the reasons why the documents in question should not be made available…

Under normal circumstances, reflecting on past history in the House, these assertions by the Government might well have been found to be acceptable by the House.  In the current circumstances however, the reasons given by the Government were not found to be sufficient.  The House debated the matter and voted to adopt an order for the production of documents, despite the request of the Government.

We are, by now, at page 31. There follows an extended consideration of how this information might be made available. Examples are provided, references are cited and pleas are made. But there is, to my reading, no order here. The Speaker does not say Parliament must do anything about any of this. The closest Mr. Milliken comes, so far as I can tell, is this.

In view of the grave circumstances of the current impasse, the Chair believes that the House ought to make one further effort to arrive at an interest-based solution to this thorny question.

Ought. That’s about as definitive as the Speaker gets on this particular question of national security. If an individual on trial for some crime was told by the judge that he “ought” to make some “effort” to go to jail, the individual in question would seem to have plenty of freedom to do otherwise. Indeed, here are the next two paragraphs from Mr. Milliken.

Accordingly, on analysing the evidence before it and the precedents, the Chair cannot but conclude that the Government`s failure to comply with the Order of December 10, 2009 constitutes prima facie a question of privilege.

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

In other words, if I understand correctly, if an interest-based solution is not arrived at in the next two weeks, the Speaker will make a decision as to what motion Parliament will be able to consider in response. In other words, if I understand correctly, Parliament will be allowed to proceed with whatever next steps a majority of its members agree upon. Does the Speaker hope it does not come to that? It seems so. Does he desire some sort of compromise? Yes. Does he believe a joint agreement would be most advisable? Sure.

But nowhere, so far as I can see, does he oblige the opposition to do anything. Nowhere, unless I’m mistaken, does he put a condition on the House’s right to demand documents. And this would seem to be far more than a technical point. This would seem, again, to go to the very basis of our democracy. So perhaps—not least with the Prime Minister and his government managing their own particular interpretation—everyone should settle on a clear understanding of what precisely has happened here.


 

Toward a unified comprehension of the Speaker’s ruling

  1. Those two sources aren't exactly the greatest repositories or wisdom or even understanding.

  2. "But nowhere, so far as I can see, does he oblige the opposition to do anything. Nowhere, unless I'm mistaken, does he put a condition on the House's right to demand documents. And this would seem to be far more than a technical point. This would seem, again, to go to the very basis of our democracy. "

    You are not mistaken. Everyone is crystal clear on this, even Harper. What we have here is a Prime Minister preparing the grounds for what is sure to be his refusal to comply.

    Harper has no intention to turn over the documents because he does not recognize the supremacy of Parliament, plain and simple.

    Harper will sooner see this country burnt to the ground before submitting to the Opposition on this.

    We are going to the polls.

  3. I fear you are correct. But many think this means an election will be fought on the Afghan detainee issue, when I think it will be about the Reform government's contempt for Parliament. Not that either are particularly compelling issues to the average voter.

  4. Margaret Wente? I mean… Seriously now.

  5. That's assuming the Liberals frame this one correctly but right you are. This isn't about detainees anymore. This is about whether the Prime Minister of Canada answers to Parliament, plain and simple.

    Are we still living in a democratic country or not?

    See you at the polls, Harper.

  6. Your seeming contempt for all things Conservative aside, I think had The Speaker felt the docs should be provided as asked for he would have ordered it…and there would be no two week cooling off period. I think there is more than a little substance in the assertion that there is an expectation that "the loyal opposition" be reasonable in their requests. They have always known that if the shoe were on the other foot they would be obliged to react the same way as the government is. You can not risk Canadian lives or our allies reputations and lives for domestic political gain. (cont.)

  7. I agree
    The opposition should be preparing a strategy to dislodge this tic called Stephen.

  8. I'm with you Aaron, the government seems to think that the Speaker's Ruling has imposed conditions on both parties but – by my reading – it most certainly has not. The Speaker has made his judgement – against the government – but has allowed them two weeks to settle the matter before ultimately pronouncing sentence.

    The opposition parties have their various incentives (some of them quite strong) to settle the matter but the Speaker has not imposed any obligations of his own.

  9. The Speaker is saying that the parliament has ultimate authority, once it issues an order for documents, to determine the manner in which they be made public. In other words, Members of Parliament are the ultimate arbiters of what is or is not redactable.

    All this talk of cooperation and negotiation, by the way, could be window dressing. It is hard to believe Stephen "I'll release the documents when I'm good and ready" Harper will bow to the wishes of Parliament, which, in his mind, is a socialist-infested hell-hole anyway.

  10. I just wish/hope/pray that Canadians care about this principle enough to punish Harper if he does force an election to get out of producing the documents.

    At an election, since we only have one vote, we as individuals have to prioritize the issues before us when casting our votes. For me this issue of parliamentary privilege is the most important issue. The most important issue since NAFTA in my living memory.

    Afghanistan, G8 abortion debate, national food initiative, etc. (while important) all pale in comparison. This issue is a foundational issue that dictates how this country is governed. Now and for the next 100 years.

  11. Just because you are "allowed" to do something doesn't mean it is prudent or wise. In their wedding vows many wives swear to love honor and obey their husbands, that doesn't mean they have to submit to anal sex twice a week if their spouse demands it. There is an expectation in life that partners will be reasonable. This entire bogus affair has been ginned up from the get go to satisfy egos and ambitions. It has never had anything to do with honor or commitments. it has always been a shallow exercise in catering to the lowest political denominator…the straw man of hidden agendas and booga booga fear about a man who would probably be a gracious dinner guest at your family dinner table.

  12. Catelli, it will all come down to the Liberals and how they choose to frame this issue. I can tell you that Duceppe is going to have a field day in Quebec with this one. Get ready for slogans referring to Harper as a dictator or wannabe King that must be stopped.

    Canadians don't have to understand parliamentary priviledge to get what is at stake when someone tells them that Parliament issued an order and he told them to piss off. I think Harper (who is used to idiots because that is what he surrounds himself with) honestly think that the voters are too dumb to get what is happening. He thougth the same when he prorogued Parliament last December.

    The man is in for a rude awakening.

  13. The speaker wasn't ruling on whether he "felt the docs should be provided", he was ruling on whether or not the government was obligated to comply with the order given by the House of Commons. He ruled that the government was absolutely obligated to comply with the order, no ifs, ands or buts. The speaker didn't review the docs himself, he has no idea what's in them, likely any more than you or I do. The speaker gave them two weeks to come to an agreement that all sides of the house can live with before any more drastic steps have to be taken, and he certain made his preference known that an agreement should be reached. But, ultimately, if the House wants those documents, agreement or no, they have every legal right to ask for and get them, in whatever form they wish. Wherry has the right take on the situation, and it has nothing to do with Conservative bashing. It's all very, very clear. And if there's no agreement, all sides come off looking absolutely horrible.

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

    I just don't know how you can read that any other way than what it says on its face.

  15. I feel obligated to point out that if this were a Preston-Manning-Reform government (rather than a Stephen-Harper-Reform Government) we wouldn't be having this discussion.

    Traditional Reformist thought has a very close relationship to classical federalism in form and function.

  16. Point taken… you can disagree with the opposition for wanting to see those documents. Maybe it's not prudent. But, will all respect, that wasn't the speaker's job in this instance. It was to determine if the government could withhold the documents against the wishes of a majority of the House of Commons. What scares me most isn't Stephen Harper, it's the PMs and governments who will follow him and (had the speaker ruled in his favour) being able to act without consent of the House.

  17. "that doesn't mean they have to submit to anal sex twice a week"

    Interesting metaphor, peter.

    The opposition has a role to play in our system of government. It doesn't matter how many people you can find to loudly proclaim their indifferance to the rules. The rules exist to protect us all and everyone else has the right to demand that the rules are followed. If you want the rules changed then have the courage to advocate for the change you seek. But don't try ignoring the rules when they get in your way. It's guaranteed to bring you more attention than you wanted.

    Our system of government is more important than this issue and certainly more important than this current government. Stephan Harper doesn't get to pick and choose what limits to observe.

  18. I loved the reference somewhere in Speaker's Milliken's ruling – to a comparable situation some 400 years ago in England, where the players were Oliver Cromwell and King Charles (and Charles lost his head in that one) – and then I juxtaposition Patrick Carrigan's(?) brilliant cartoon on the editorial page of the Toronto Star today – where he has Milliken reading his ruling, and King Harper, in red robes with ermine trim, sitting beside him – and Milliken leans over and knocks off his crown! Brilliant! Captures it all!

  19. That how I read the ruling as well. Honestly I don't think the opposition needs to 'compromise' at all. They have been talking about national security safeguards from the beginning. They will continue to proceed with those safegaurds. It is only the government that needs to change it's thinking. They are desperately trying to change the language to make it seem as if this was a 'win win', when that was never the case.

    The Speakers two week extender is simply an out for the government, a chance to quickly remove the figurative foot from their ass. No one really wants to rule a government in contempt (even one so deserving)

  20. "What scares me most isn't Stephen Harper, it's the PMs and governments who will follow him and (had the speaker ruled in his favour) being able to act without consent of the House. "

    I sometimes feel the urge to pinch myself because I have a hard time believing that such a thing could happen in Canada.

    It's happening. There is no denying this. Harper is a dictator in the making and if Canada allows this man to stay in power, Canada gets what it deserves.

  21. "I feel obligated to point out that if this were a Preston-Manning-Reform government (rather than a Stephen-Harper-Reform Government) we wouldn't be having this discussion."

    If this is what Reformers want to cling to so that they can come to terms with what they have done to our country, so be it. Harper is a monster created by the Reform Party. That's all I know.

    Until I see a Reformer stand up for Canada and taking Harper to task over this, what will soon ensue will be laid at their doorstep.

  22. C'mon peter!

    You can have "unwritten rules" in your own home… you can't run a first world government on that basis. That's precisely the problem here; you've got a group of people with strong emotional motives and weak logical arguments trying to bully their way past a political structure which was designed to constrain that very type of bullying. Don't be bullied.

  23. If you're saying that the executive (this or any other) does not have to be accountable or answerable to House of Commons because "their word is their bond" and could not be acting in any interest other than the best interest of Canadians, then we might as well not have any opposition parties and not bother having elections. Whether or not you trust them, they all have to be held to account.

    The broader question you're asking — should the opposition have requested the information? — could be asked on the campaign trail if there's an election. But the government MUST act in accordance with an order from the house or it is in contempt.

  24. By logical extension, peter, I suppose you would argue that access to information laws are unnecessary? That the Nfld-Lab politicians who were scamming the taxpayer should have been taken at their word and no Auditor General was necessary there? That Question Period is the full measure of accountability in our land?

  25. The majority of the "rules" of our system of governance are actually "conventions" handed from generation to generation. The are intertwined with the common law and a Christian belief system of honour and duty and a sense of noblese oblige. In seance conducting Makenzie King's War Cabinet room in Centre Block there are two doors.Carved in the wood above them are two phrases…"Fear God" and "Love the King". That is the basis of the Canadian system of law. The manufactured, nilhist, post-modern idealogical swamp we find ourselves in is the usurper of our traditions, not the current government.. That is what the social conservatives are so incensed about, that is what the CPC is trying to defend, our heritage of centuries, which it seems has served us very well. Should it be cast aside on an "issue du jour"?

  26. "I think had The Speaker felt the docs should be provided as asked for he would have ordered it."

    He has no power to order it. The House does (and already had).

  27. You can be as socially conservative as you want… I'm not attacking it, nor did the speaker's decision. And I would hardly call the democratic foundations of our system of governance an issue du jour. Think of the ramifications of the government getting its way: an UNACCOUNTABLE EXECUTIVE. If you think that's good, or Christian, or that we should go back to having our monarch tell us what to do… wow.

  28. He's not a dictator.
    He's very much like George Bush and Dick Cheney: bending rules, twisting words to mask intent, punishing any and all opposition, addressing debate with belligerence, smearing, stonewalling, and spinning public opinion to hide misdeeds – all the while posing with the troops and the flag and stating that anyone who disagrees is against the values that have made this land proud……
    It has seriously screwed up the US and has divided them in a way that gives birth to lightweights like Sarah Palin and lends credence to blowhards like Rush Limbaugh.
    The politics of division sucks when pushed by the Bloc, and it sucks as practiced by Stephen Harper.

  29. I wonder if a lot of this confusion comes from thinking that this ruling says the opposition has the power to order the documents. It's the House in its entirety, which includes the government side as well. I seem to remember Norman "Phil" Spector being similarly confused.

    I'd bet Jason Kenney's lone testicle that, in the case of a Conservative majority, the Conservatives would be agreeing with Speaker, unequivocally.

  30. Peter,

    This is the exact discussion I had with my two teens this week. We have institutions that were built around truth and hounour. However, truth and honour are no longer the norm. Most would find the idea ridiculous that anyone would truthfully admit to anything that was against their self interest unless there was evidence to compel them.

    Why would we need expensive trials if we just took everyone at their word? A judge could ask the accused if they were guilty. If the answer was "no", the accused would be free to go: very cheap and efficient.

    There is no reasonable expectation that an honourable member's word is more truthful than that of an accused criminal. Look at Rahim Jaffer.

  31. Not even remotely am I suggesting anything of the kind, if you feel what you have posited is logical it explains much about your posting habits. In fact, you are far from alone around here for mistaking your " recently manufactured" beliefs as unchallengeable and self evident. Ardently believing something does not make it objectively true in the classical logical meaning. As I keep pointing out to you you seem quite bright. If you lack the time to read full books, I suggest a daily visit to lewrockwell.com. Read a couple posts a day from there and just consider that there may be some merit to some of it.. It took me years (and the obligations of parent hood)to undo my six years post secondary socialist indoctrination.

  32. The Reform Party didn't create a monster out of Stephen Harper. Remember, he co-founded it with Manning.

    Besides, the Reform values also include (as distinct from their take on federalism) a social policy platform that was somewhat right of …well…Thatcher. It would sound disingenuous from a Reformer to take Harper to task on only one aspect of former Reform policy, in particular, when Harper isn't Reform (not by name, and definitely not by spending) anymore. It also sounds a little futile for the fish in the whale's belly to start whining that the whale swallowed him whole.

    Besides which, in another thread, I just quoted an article where Manning does call for decorum, integrity, et cetera which is about as good as "taking it to task" gets when you're the head of a think tank.

  33. I stand corrected

  34. An honourable member's word is supposed to be his bond. Essentially the loyal opposition is calling the executive liars, decidedly unparliamentary behavior. Whether true or not (and I support the government's position) the request is, on its face, unreasonable and unparliamentary…where is the ruling on that "unwritten" law?"

    What part did I misunderstand?

    And peter, I'm sure my avatar must have you convinced that I'm some punk kid, but I have several grown children of my own, a private business and a post graduate degree. Please stop condescending to me. I am quite comfortable in my own skin; I acknowledge and try to take into account my personal biases; and I read quite widely and well. But thanks for your concern.

  35. Can someone point me to (or provide me) a step-by-step explanation of what happens should the Govt ignore the Speaker's decision, and continue to refuse to present the documents?

    Does the House automatically vote on a Contempt of Parliament?

    What *actually* happens?

  36. " It would sound disingenuous from a Reformer to take Harper to task on only one aspect of former Reform policy, in particular, when Harper isn't Reform (not by name, and definitely not by spending) anymore."

    I'm sorry Lynn but I disagree. We are talking about the very foundational principle that this country was built on. If Preston Manning and the other Reformers want to keep quiet until we see where this thing goes, I can understand that. But if they keep quiet once Harper openly defies Miliken's upcoming ruling, history books will lump the lot of them with Harper and his caucus.

    Until the Reformers disavow him, they are with him and he with them.

  37. I checked out that website, Peter… interesting. What I don't understand is why an anti-tyranny guy like yourself would support the centralization of power in one party/man (which, if the Tories got their way, would happen). I guys the conservative ends justify the heavy-handed means.

  38. I GUESS the conservative ends justify the heavy-handed means, I should say…

  39. So, because truth and honour are out of fashion….not at my house. Think about the reasons for a cultural decay that considers the two most basic features of "civilized" behavior as passe…if you look to the ivory towers of our "learned betters" you will see the genesis of the problems…see Linda Schrock Taylor, John Taylor Gatto etc. It's not for nothing that the Fabians chose a turtle and a wolf in sheep's clothing as their symbols. Eroding truth and honour are their hallmarks…patience and hollowing out the apple while claiming to protect it are their game. Sound familiar?

  40. "We are talking about the very foundational principle that this country was built on."

    You could use that logic to say anyone who doesn't jump up and disown Stephen Harper will be grouped together with him in the history books as people who disavowed democratic institutions.

    Except, wait, we have this thing called the Charter, the spirit of which dictates that we are free to associate with whomever we choose, without fear that (for most of life's things) their actions and beliefs will not be attributed or blamed on us.

    Also: Harper left the Reform Party – and his MPship – to go run the National Citizens Coalition. Publicly, it's reported he left because he and Manning disagreed over a few things, not the least of which was the Charlottetown Accord. Just because Harper was a Reformer doesn't mean that the rest of the lot have to jump up and defend their principles. They're not to blame for creating this situation any more than cow farts are responsible for aggregate global warming.

  41. "You could use that logic to say anyone who doesn't jump up and disown Stephen Harper will be grouped together with him in the history books as people who disavowed democratic institutions."

    True. But if I'm one of the leaders of the Conservative movement, that is exactly what I would do. If Harper openly defies the next Miliken ruling, I expect Brian Mulroney, Preston Manning and Joe Clark to condemn him.

    Frankly, I think that every Premier should stand up and take Harper to task. Every newspaper in this country should write editorials crucifying him for defying the will of the House. Every constitutional scholar worth his salt should stand and scream bloody murder over this.

    You are absolutely right. Anyone who doesn't jump up and disown Stephen Harper will be grouped together with him in the history books as people who disavowed democratic institutions.

  42. Brilliant indeed.

  43. Barring an acceptable compromise to all parties the PM will likely take a trip to Rideau Hall and we'll be voting again in mid to late May ot early June. That's not anything inside, just a strong hunch. It is a well know truth about Prime Minister Harper that he is unlikely to take a knife to gun fight. Given the appalling record of the Liberals since Chretien (and even then) I predict the undecides will decide and we will have a Conservtive majority, probably for a couple of terms. Many will hold their nose as they vote Conservative, but support the party they will. I suspect the Liberal and NDP polling is showing similar trends, none of them good for Iggy or the ailing Jack. So the question for the opposition will be kinda Dirty Harryesque, is the PM out of bullets, or not?

  44. There are many people who are indeed honourable in their actions and there is nothing wrong with working to instill truth and honour as cultural norms. Until that unlikely goal is accomplished, it is foolish to rely on an honourable member's word. The "honourable" title is bestowed, unearned, and very often undeserved. Parliament, developed in your earlier age of truth and honour, was made to be supreme and have as its central duty the obligation to hold the government to account. Even then there was recognition that not everyone is honourable and oversight is required. That was long before your examples of cultural decay had taken any effect.

  45. He might allow a motion for contempt. He might allow a motion to change the Order. He’s asked the opposition to approach him. So as I said earlier this is a grace period where the opposition has to show their strength. The Order cannot rest, it can stand (contempt) or change. The speaker invited suggestions for how the Order should change. It’s clear he won’t make a contempt order before giving the parties to the Order an opportunity to reconcile.

  46. Sure we're going to the polls, just not any time soon and not on this issue.

    I want the detainee truth to be told. If the worst occurred, then Canadians have a right to know what happened and how was responsible so we can make damn sure it never happens again.

    However, there is no way the current parliamentary kerfuffle will force an election. That's simply because the Libs are in such a weak position they cannot believe they would be anything but slaughtered in a near term vote. In addition, while I believe Harper would sooner throw his mother under a truck than release the docs., the Cons' polls are not a pretty sight either. Jack Layton's cancer makes three miserable party leaders.

    The Libs will accept a weak compromise (read: useless committee from which no truth will ever emerge) and /or Harper will stall until fall and then pull the plug (assuming he sees a bump in the polls over the summer).

    Do not change your vacation plans, no election before fall and , then, not on this issue.

  47. And my reading presumes that Harper is not budging. I don’t see how you could read into this ruling that the opposition has nothing to do. They have an order in their favour, that has been partially complied with, but a finding of contempt needs more than that. I leave it to Wherry say what the basis of a finding of contempt in this case should be.

    • I really don't see how one could conclude that the Government has in any way complied with the Order. Since the Order was not complied with, the relevant ministers are in contempt of Parliament. It's pretty clear cut, to me.

  48. In principle, I agree that our voices should be raised in protest if Harper doesn't comply with the order. But what you're suggesting is some sort of McCarthyism-Salem-Witch-Hunting in the name of democracy.

    One, the "you must be guilty if you don't yell out in protest" is most definitely not what democracy is about. And two, how is that any different than the Conservatives implying, "if you don't agree with me, you must hate the troops"? How does it make us – the defenders of democracy and our democratic institutions – any better than those who are directly or tacitly destroying them?

  49. While Harper is clearly at the core of the weakening of our parliamentary democracy, the opposition parties and their leaders have to be tarred with the same brush.

    Iggy and Jack started this for what they claimed were principles: against torture, for accountability, for honesty with the Canadian people, etc. I t remains to be seen if they are actually willing to walk their talk. So far I don't see it from either of them.

  50. The worst part is that here we see mainstream media either following preposterous Conservative fabrications or being just too dumb to figure it out themselves.

    I wonder how much Harper is counting on this if he decides to try to call an election before he can be forced to do the right thing.

  51. "The man is in for a rude awakening."

    I hope you are right.

    But I don't you are.

  52. The ideal is rarely reflected in the day to day ie…when you are up to your ass in alligators, it''s easy to forget your original intention was to drain the swamp. Joe Clark and Preston are two recent examples of "principled" leaders faring poorly in the Commons. I suspect the PM's hard ball pragmatism and courage to go the distance are somewhat based on his failed forebearers. That said as a rational adult who knows there will be a government, which party comes closest to "my" ideal? As a wise political person said to me recently, "the worst day in power is far better than the best day in opposition." That widely held attitude in Ottawa explains much, especially for a party that has considered itself the natural governing party for most of the last 50 years and still finds itself without any issues of real substance after four years in the wilderness and is riven with internal dissention and me firsters and a large shortage of cash.

  53. Lynn, you are going off the deep end.

    It is perfectly reasonable to expect the leaders of this country, the 4th estate and the scholars to speak out in outrage over what can only be described as a frontal assault on Canada's hard earned democracy.

    If we don't speak out against something like this, when should we be expected to do so? Let the record show that the vast majority of dictators around the world came to power through the electoral process. They became dictators because the majority looked the other way and let it happen.

    Don't think that this couldn't happen in Canada. It's happening.

    Harper prorogued Parliament TWICE in one year. He has all but shut down access to information. He is now DEFYING the House of Commons.

    What the hell else do you need to see that something must be done to stop him?

  54. "it will all come down to the Liberals and how they choose to frame this issue"

    Geez, you could have said something to inspire confidence!

    ;)

  55. did you just type "the ailing Jack?!?"

  56. No surprise here. We had to put up with the same bullshit the first and second time he prorogued Parliament. It's disgusting.

  57. No surprise here. We had to put up with the same bullsh!t the first and second time Harper prorogued Parliament. Why should we expect the same reporter to do any different this time around?

  58. In this case, the disputed "grey area" exists in between the powers of the executive and the powers of the legislative

  59. If you want the rules changed then have the courage to advocate for the change you seek. But don't try ignoring the rules when they get in your way.

    Being reasonable and ethical is not a rule, it is a choice. An honourable member's word is supposed to be his bond. Essentially the loyal opposition is calling the executive liars, decidedly unparliamentary behavior. Whether true or not (and I support the government's position) the request is, on its face, unreasonable and unparliamentary…where is the ruling on that "unwritten" law?

  60. I am not going off the deep end. Your earlier posts suggested that every single public figure, and many private citizens, are responsible for Harper's actions, and if they don't disown him, they are responsible for the downfall of democracy. Which is nutso. Put blame where blame is due – squarely on the people who do wrong.

    We are agreed that prominent figures who disagree should speak up, and defend with vigor that which is held dear in this country.

  61. "Your earlier posts suggested that every single public figure, and many private citizens, are responsible for Harper's actions, and if they don't disown him, they are responsible for the downfall of democracy. Which is nutso."

    No. I said the Reform Party will share responsibility for what Harper has already done and is about to do if they don't denounce his actions.

    "We are agreed that prominent figures who disagree should speak up, and defend with vigor that which is held dear in this country."

    Oh so you did read what I actually stated.

  62. "He's not a dictator."

    Just because Harper wears a suit as opposed to military fatigues doesn't mean that he can't be labelled a dictator. If Harper refused to comply with the order, a dictator is exactly what he will have become.

  63. Then the ends — furthering the conservative agenda — do justify the means — ignoring two thirds of the democratically elected MPs in the House of Commons. Sorry, as someone who doesn't want to see his democracy eroded by this PM or any other, I can't agree with you.

  64. Aaron, you're right that the correct interpretation of Milliken's ruling is of crucial importance for our democracy – and you "understand correctly" that there are no legal fetters on the powers of the House to require the production of documents, save for the provisions of the constitution itself. Our national media has let us down again.

    To quote (perhaps obscurely) the Gormenghast trilogy, Harper is a Steerpike in our midst.

  65. Aaron, you are correct. The Speaker is not obliging the opposition to do anything. He has clearly stated that, if there is no agreement and the government continues to refuse to comply with the House order, painful consequences will be privileged and therefore take over business before the House.

    But he has most certainly almost begged all parties to avoid "pulling the pin on this grenade," as I phrased it in your "The-ruling" post. To wit:

    … is it possible to put into place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain? In other words, is it possible for the two sides, working together in the best interest of the Canadians they serve, to devise a means where both their concerns are met? Surely that is not too much to hope for. [paragraph break removed]

  66. To paraphrase Peter Milliken, perhaps had she read just a little further:

    "The Chair must conclude that it is within the powers of the House of Commons to ask for the documents sought in the December 10 order it adopted. Now, it seems to me, that the issue before us is this: is it possible to put into place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain?"

    Clearly – and I emphasize clearly – the Chair sees the need for compromise. While parliamentary privilege remains wholly intact, Milliken suggest that there is a possible compromise whereby privilege and the need for classified documents to remain classified where they touch on national security. He hinted at this earlier in his ruling, where he suggests parliamentarians review the Legislative Council Practices of New South Wales, Australia, specifically page 481 and the use of an independent legal arbiter.

    Milliken reaffirmed the right of privilege but has made clear references to national security issues and possible methods to compromise. At no point should his ruling be thought of as precedent to release classified material to the public. In fact, he is clear that parliamentarians may have the right to demand documents but the government has the right to refuse for legitimate reasons. Moreover, it is up to the House to decide whether those reasons are legitimate through a proper motion and vote.

  67. When the speaker writes "…the issue before us is this…." he's being exact and clear that he understands there is a need for both access to the documents AND security…he mentioned this at several points in his ruling…if you were paying attention…

    There's no twisting or misunderstanding going on at all..By the way, Milliken NEVER used the words "Parliament is supreme"… in fact the supremacy of parliament was never in question, only questions of parliamentary privilege insofar as it relates to national security. Had this been an issue of parliamentary supremacy the government would not have waited on his ruling, merely called an election. But just so we're clear, there's no question in my mind that the Opposition has an absolute right to see any documents it orders the government to produce but this is not the same as making those documents public.

    Government opponents, the Opposition and the media have used no end of rhetoric and hyperbole to define this as "constitutional crisis" or that threat to parliamentary supremacy…all of which made good copy but was never very true…As Milliken said himself, this situation is a product of the times..a minority government and distrust on both aisles of the House.

  68. Funny how Aaron Wherny takes the G&M and the NP to task for their assessment but not his colleague Andrew Coyne, who wrote just yesterday,

    "The Speaker has given the two sides two weeks to come up with some “mechanism” to safeguard national security concerns in a way that meets Parliament's demands for oversight, failing which he would authorize a motion to find the government in contempt. But if there were any prospect of that, it seems likely the government would have already agreed to it."

    There may be no "so long as" or "equally..obliges" but there is a "in a way"…

  69. Yes, except it's not at all grey. Parliament trumps the government. Every time. It's the entire basis of responsible government. People have, literally, lost their heads to prove this point.

  70. "But, ultimately, if the House wants those documents, agreement or no, they have every legal right to ask for and get them, IN WHATEVER FORM THEY WISH "

    You are very naive in thinking so.

    Peter is right. There is indeed a grey area which rules to a certain extent., No matter how hard one tries to cover evertyhing completely within rules, it will never happen, because it is impossible to happen. That's why rules are constantly challenged, sometimes revised for updates.

    Of course, the government has been ordered to produce on the Order, but not by discarding its governmental responsibility completely. The overal tone of the Speaker's ruling is clearly looking for solutions on both sides.

  71. The only reason why the government is the government is because it governs with the consent of the House of Commons. When a majority of the House of Commons votes for something, then that's what counts. There's no grey. Now, the speaker advised the government and the rest of the House of Commons to come up with a solution that is agreeable to a majority of the House of Commons. BUT, there are NO GROUNDS for the government to do something AGAINST a majority of the House of Commons. As I said before, if the government could act as it wished without being accountable to the House, that's no way to run a democracy. It's not a democracy. You can disagree with the motives of the opposition, you can hope they withdraw their request, but they CAN make the request and the request has the full backing of the law. The speaker is clear, and Wherry is clear. There's NO GREY.

  72. The government DEFINITELY doesn't have the "right to refuse".

    From the ruling, quoting Bourinot, "…there are frequent cases in which the ministers refuse information, especially at some delicate stage of an investigation or negotiation; and in such instances the house will always acquiesce when sufficient reasons are given for the refusal…But it must be remembered that under all circumstances, it is for the House to consider whether the reasons given for refusing the information are sufficient.

    What part of "under all circumstances it is for the House to consider whether the reasons given for refusing the information are sufficient" isn't clear?

    Also, how can you simultaneously tell wellwell that Parliamentary supremacy was never in question, AND maintain that the government has the right to refuse an order from Parliament? Are you defining "supremacy" differently than the rest of us?

  73. Yes, but it's "in a way" that meets PARLIAMENT's demands, not the government's. As Wherry points out, the Speaker's ruling puts the burden solely on the government to satisfy PARLIAMENT's demands, not the other way around, and Coyne was also quite clear that the ruling leaves the power entirely in the hands of Parliament.

    From Coyne: "… let there be no mistake: this was not a compromise. It was balanced, it was judicious, it was fair to all sides, but it was unequivocal: Parliament's right “to send for persons, papers and records,” Speaker Peter Milliken ruled, is absolute and unconditional. There are no limits on it, and the government has no constitutional option other than to comply with Parliament's will in such a matter, as expressed in the resolution passed by the Commons on Dec. 10. To accept the contrary notion, that the government may decide by and for itself which documents Parliament may see, and which it may not, “would completely undermine the role of parliamentarians in holding the government to account.” (emphasis added).

    Wherry didn't take Coyne to account for his article because Coyne's article is largely making the exact same point as Wherry's is. You'd have to ask Coyne, but it seems to me having read what he's written on the subject that he'd be in near perfect agreement with Wherry's assertions above.

  74. I & my husband attended an anti-prorogue rally and truly feel there will be much greater numbers attending rallies across Canada if Harper tries to pull a fast one. MHO, for what it's worth.

  75. You two have confirmed the squirming feeling in my gut! I desperately want the conservatives to lose the election, but the Liberals seem totally unable to frame any kind of meaningful response to anything at the moment. I have this horrible feeling that Harper would win again – please God let it be another minority – smaller than now! If Bob Rae was the leader, I think I'd have more confidence that they could frame the debate properly – focusing on the conservative's rejection of the role of parliament – but I know he is hated in Ontario (I've never quite understood why – look what happened when the Unions rejected him … Mike Harris! Enough said.) Harper MUST go. Please. Take him away.

  76. But cow farts DO cause global warming.

  77. You are correct, it is the House that issued the order.

  78. I should clarify that , in a narrow sense, the government has the right to refuse for legitimate reasons. However (and this is ESSENTIAL) it falls to PARLIAMENT, not the government, to determine what is reasonable. As was already mentioned "under all circumstances, it is for the House to consider whether the reasons given for refusing the information are sufficient".

    As Andrew Coyne put it: "…let there be no mistake: this was not a compromise. It was balanced, it was judicious, it was fair to all sides, but it was unequivocal: Parliament's right “to send for persons, papers and records,” Speaker Peter Milliken ruled, is absolute and unconditional. There are no limits on it, and the government has no constitutional option other than to comply with Parliament's will in such a matter, as expressed in the resolution passed by the Commons on Dec. 10. To accept the contrary notion, that the government may decide by and for itself which documents Parliament may see, and which it may not, “would completely undermine the role of parliamentarians in holding the government to account.” (emphasis added)

  79. Agreed. If there is no consensus arrangement, the original order still stands. The Speaker found a "prima facie" case for contempt. Someone would bring a motion in parliament regarding the government's contempt of the House. The House would vote, and if the vote passes, then the government is found to be in contempt. What happens from that point, and who does what, I don't know. Has that ever happened before? I guess not. There is talk of ministers going to jail. Who decides that? I do think, though, that something needs to shake this country up to force us all to take this seriously. This is not partisan politics of the usual kind. This is the very bedrock foundation of our society. If Parliament is NOT supreme any more, then we are back to pre Magna Carta and King John.

  80. In the most narrow of senses, you could say that indeed the government CAN decide "by and for itself" which documents Parliament may see. It just has to then live, as ruled by the Speaker, with the risk of being submitted to a contempt motion on a point of privilege, as punishment for that decision. Which, I recognize unequivocally, awards supremacy correctly to Parliament.

  81. The Speaker's ruling had one intention and one demand….

    The Government must produce the documents in a timely fashion for parliament's perusal.

    Nothing more, nothing less.

    Any attempt to add any condition is not only irrational but should be considered as being based solely on self interest.

    End of story. Shut up and produce the uncensored documents.

  82. Of course, my comment about the national media does not include Macleans!

  83. No, Milliken is helpfully suggesting ways to avoid a constitutional showdown. He is not saying that the government has the right to refuse to release the documents. You have twisted, or at least misunderstood, Milliken's ruling. Parliament is supreme in this matter, and Harper must do as he's told as a matter of law.

  84. Yes, except that the contempt motion isn't so much the "punishment" as the PRELUDE to the punishment for being in contempt (Cabinet Ministers being barred from the House, indefinite periods in jail until the government is no longer in contempt… not that I think any of that is remotely plausible).

    Of course, executives used to take Parliament's punishment for disobeying their orders a lot more seriously when it involved Parliament raising an army, destroying the executive's opposing forces, and separating key people from their heads.

  85. Actually the two points are subtly different. Wherry, by my reading, insists that the government must turn over documents wholesale to the Opposition. He emphasizes Milliken's unquestionable support for parliamentary privilege. Coyne still sees the connection to national security and classified material.

    I can see Wherry's point but only if I were to Milliken's intention to find a solution to the impasse. Like a Supreme Court ruling, it's not just the ruling but the reasoning that matter. In short, there's more here than meets the eye.

    If Wherry's take is accurate then there is no reason for Milliken to include a two week cooling off period or to admonishing both sides of the House to find a solution to the problem. Moreover, the Opposition would have no interest in meeting with the government to define a "mechanism" of releasing the documents; they would simply set a date that is consistent with their demand of "forthwith". Meeting's only makes sense in light of national security concerns, which may or may not be legitimate. (The House said they were not satisfied that national security concerns were legitimate on Dec 10 but the House would've vetoed blueberry pancakes if the government had proposed it as menu choice for the House cafeteria on Dec 10).

    Again, I fully agree with Milliken's ruling. It was very good and will no doubt be quoted by other parliamentary democracies based on the Westminster model for years to come. What I disagree with is Wherry's assertion that there Milliken's ruling lacked nuance insofar as national security is concerned. Clearly, imho, Milliken has suggested to both sides a possible framework and given them time with which to work out a deal but only if MPs have the wherewithal.

  86. "The government DEFINITELY doesn't have the "right to refuse"."

    I fully agree with you.

    At no point did I write that the government COULD refuse nor did I write that the government has any right to refuse an order from Parliament. You've simply created a straw man argument without basis in fact.

  87. You said in your first post that "the government has the right to refuse for legitimate reasons." A "right" would imply that the government can refuse, or else it isn't a right.

  88. Richard, I have to say that it is better for the Liberals that Ignatieff be the leader at this time. Had it been Rae, they would have imploded by now for the simple fact that Ignatieff and his supporters would have done everything in their power to sabotage Rae at every turn like he did Dion.

    Unfortunately for us, the Libs are headed by Iggy and this is what we have to work with. I keep hoping that the Libs will put their ego in check and recognize that they need to partner with the NDP in the next election but I doubt it.

    I can only hope that Iggy will surprise us all and get it together on the campaign trail. If he's anything like he was during his leadership bid, the would-be dictator will remain in power.

    God help us all if he manages to get a majority.

  89. You're the one who isn't paying attention when you say that "the government has the right to refuse for legitimate reasons." It does not, if you mean that the government is the final arbiter of what is legitimate. Parliament is the final arbiter – which is to say that the government must do as it's told. I stand by my assertion that you have twisted the meaning of Milliken's ruling.