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.

Looking for more?

Get the best of Maclean's sent straight to your inbox. Sign up for news, commentary and analysis.