“Legal obligations”

No one is asking Harper to break the law. The conflict he's complaining about exists only in his head.

Day three after the Ruling that Saved Our System of Government, and the Tories have achieved their initial objective: total strategic confusion. Is Stephen Harper now prepared to accept opposition demands that a parliamentary committee be given access to the documents in the Afghan detainees affair? Or is he digging in his heels, as unwilling to compromise as ever?

I don’t know. But a clue to the Prime Minister’s state of mind can be found in his repeated invocation of the government’s “legal obligations.” Responding to questions in the House Wednesday, Harper said, variously:

Mr. Speaker, as I have said, we look forward to both complying with your ruling and with the legal obligations that have been established by statutes passed by this Parliament.


The government has certain obligations that are established under statutes passed by this Parliament. We obviously want to proceed in a way that will respect both of those things, and of course we will be open to any reasonable suggestions to achieve those two objectives.


You have delivered a decision. Obviously, the government seeks to respect that decision. At the same time, it seeks to respect its obligations established by statute and passed by this Parliament.


The government seeks at all times to respect all of its obligations. To the extent that some of those obligations may be in conflict, there are reasonable ways to accommodate that and we are open to reasonable suggestions in that regard.


The government cannot break the law, it cannot order public servants to break the law, nor can it do anything that would unnecessarily jeopardize the safety of Canadian troops.

You can appreciate the Prime Minister’s dilemma. He is obliged to balance two competing claims: on the one hand, to comply with the Speaker’s ruling enjoining him to respect the House’s demand that he produce the documents; and on the other, to comply with his “legal obligations” not to produce them. Don’t you see? The Speaker is asking him to break the law.

What’s a Prime Minister to do? Parliament has passed legislation, notably the Canada Evidence Act, forbidding the government or its employees from disclosing certain documents. And yet here is one of the Houses of that same Parliament, the Commons, backed by its Speaker, demanding that he should disclose those same documents. What could be more reasonable than to seek some way to balance those competing demands?

Except the whole argument’s bogus. No one is asking the Prime Minister to break the law. The conflict of which he complains exists only in his head. This was a key point in the Speaker’s ruling: a law may impose a general prohibition on the release of certain documents, but unless it expressly states that the ban applies to Parliament, it doesn’t. The presumption, that is, is in favour of parliamentary privilege.

I quote from page 20 of the Speaker’s ruling, where he cites House of Commons Procedure and Practice, pp. 978-9:

No statute or practice diminishes the fullness of the power rooted in the House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records.

The same point is made in the letter from the Commons Law Clerk, Rob Walsh, to the Commons special committee on Afghanistan last December. The committee, he wrote

is at all times to be seen as carrying out its constitutional function of holding the Government to account. This is fundamental to responsible government and more particularly to the relationship between the Government and the House and its committees… The law of parliamentary privilege provides that this relationship operates unencumbered by legal constraints that might otherwise seem applicable…

This is not an exception to the law; it is the law. It does not mean the House of Commons is above the law, or that members may break the law with impunity. It means statute law does not trump the law of parliamentary privilege, which is of constitutional weight.

Moreover, Walsh argues, even if parliamentary privilege did not apply,  Crown privilege — the “long-standing legal presumption that a statute does not apply against the Crown unless this is provided expressly in the statute” — does. The Canada Evidence Act, in particular, may forbid others from releasing certain types of information, but it does not prevent the government from doing so. Quite the contrary: two provisions of the Act expressly permit government this discretion.

In other words, the whole “legal obligations” thing is a canard. It’s the same dodge the government was using from the start, when it claimed to be releasing all “legally available” information. The government is under no legal constraint not to disclose information to the committee. On the other hand, it is legally constrained to comply with the comittee’s demands for documents, as enforced by  a vote of the House on December 10.

In case there was any doubt, the issue was raised in Parliament, Walsh notes, at the time the Canada Evidence Act was drafted. The Parliamentary Secretary to the Minister of Justice responded:

It would not be the intention of the bill to alter the current status of Parliament’s subpoena powers and privileges…

Having stated this for our parliamentary record so that the intention of the House is clear, an amendment was made to the bill … yesterday for the same purpose of clarifying our intention that Parliament’s privilege to send [for] persons, papers and records not be affected by this legislation.

Indeed, the Justice department concedes as much in its reply to the Law Clerk’s letter. “Section 38 of the Canada Evidence Act has no application to parliamentary committee proceedings,” it acknowledges, appealing instead to “the values that inform legislation passed by Parliament,” and to “the parliamentary convention that injurious information should not be disclosed in a parliamentary setting.”

So if the prime minister is still invoking his “legal obligations,” it can only mean his position hasn’t changed a whit. When he speaks of the need to balance one obligation against another, it really means he intends to defy the Speaker and stonewall Parliament.

I’m with colleague Wells, then: the negotiations into which the government has lately entered are in all likelihood a diversion. The aim is to stall, and probe for divisions within and between the parties, notably the Liberals’ palpable fear of an election. The differences between government and opposition will be made to appear as if they were over questions of detail, rather than fundamental principles. So that when, inevitably, the negotiations break down, the government will sigh and claim that it went the extra mile, as it strove to balance its conflicting obligations, but was thwarted by an intransigent and unreasonable opposition.

ADDENDUM: The Speaker is not, as Norman Spector says, the Pope. He is, however, likely to be the last word on this subject, at least until the Commons itself speaks. (The Speaker can only rule on whether there is a prima facie case for a breach of privilege. It is for the House to decide whether the government is in contempt, together with whatever remedies it sees fit.)

It’s always open to the government to refer the whole matter to the Supreme Court, as Norm says, but the Court is not obliged to answer every question put to it, still less to answer as the government would wish. And there is simply no way on God’s green Earth that the Court is going to tread upon parliamentary privilege.

This is one of the holiest precepts in English constitutional law. It’s the reason they fought the Civil War. It’s one of the central demands upheld in the Bill of Rights of 1689: The courts may not intrude upon the inner workings of Parliament — any more than the King can.

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