Wednesday, April 28, 2010

The Milliken ruling: now what?

While talking heads opine, progressives express profound relief, and some (although by no means all) right-wing commentators howl and prevaricate, perhaps we should now look ahead a couple of weeks.

But first: what did the Speaker of the House actually rule, just to correct the little spinning tops out there?

Here's the transcript.

In a nutshell, of course, the Speaker upheld the supremacy of Parliament. The right of Parliament to compel the production of documents is, he said, by law and tradition, absolute:

It is the view of the Chair that accepting an unconditional authority of the executive to censor the information provided to Parliament would in fact jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts. Furthermore, it risks diminishing the inherent privileges of the House and its Members, which have been earned and must be safeguarded.

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. Therefore, the Chair must conclude that it is perfectly within the existing privileges of the House to order production of the documents in question. Bearing in mind that the fundamental role of Parliament is to hold the Government to account, as the servant of the House, and the protector of its privileges, I cannot agree with the Government’s interpretation that ordering these documents transgresses the separation of powers, and interferes with the spheres of activity of the executive branch. [emphases added].


It's with respect to the next part of his ruling--dealing with what he calls "accommodation and trust"--that confusion and misconstrual have already set in.

The Speaker did not rule that the parties must agree on a mechanism or procedure in the next two weeks that balances the government's expressed concern over national security against the ancient right of Parliament to hold its Executive accountable. The latter, as he noted, is absolute, and Parliament need make no concessions at all if it doesn't choose to. Rather, Milliken expressed the fervent desire that they might do so:

[I]s 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.

And he went on to note that Parliament has had "an unbroken record of some 140 years of collaboration and accommodation in cases of this kind."

If the parties do not agree, he will be back in a fortnight to deal with the privilege issue once again--and he left no doubt whatsoever about the manner in which he would address it.

Too many people talked off the top of their heads immediately after the Speaker had ruled. Jack Layton spoke of swearing Opposition members into the Privy Council to protect confidentiality and security, but Liberal Senator Colin Kenny rightly pointed out that this would be a grave error. The effect of such a measure would simply be to extend the government's veil of secrecy. Opposition members wouldn't even be able to discuss the contents of the documents in their own caucuses, let alone make the public aware of anything they might contain.

More worrying were the comments of political science professor emeritus Ned Franks, an acknowledged expert on Parliament who taught both Peter Milliken and Justice Minister Rob Nicholson when they were students at Queen's. One contradicts Franks at one's peril, so let me put my difficulties with his initial comments in the form of questions. (His op-ed piece in today's Globe & Mail is somewhat toned down.)

Franks put forth several scenarios if the parties could not come to any agreement. One was a reference of the matter by the government to the Supreme Court of Canada. But how can Parliamentary supremacy, a doctrine to which the SCC has deferred in countless judgements, suddenly become a matter for the courts to shape and constrain?

Given its reluctance to interfere with the executive in Khadr, on what basis would the SCC assume the right to interfere with the legislature? (In his op-ed today, Franks himself says it's likely the court would simply toss the matter back.)

But even if this were simply a play for more time, on what authority could Stephen Harper remove the matter from the House, which is now well seized of it, and refer it to the Supreme Court?

Franks also suggested that, if the parties were intransigent, the Speaker might, depending on the circumstances, find the Opposition in contempt, rather than the government. That's not in his op-ed, and I think for good reason. Given that the Opposition parties comprise a majority in the House, isn't it a little odd to contemplate Parliament, in effect, being found in contempt of itself?

Even more worrying (or comical, if you have a dark sense of humour) is what Franks thinks might happen if no deal were to be reached and the House were to find "the appropriate ministers" in contempt. He envisages their confinement in a hotel, from whence Harper quickly springs them by--proroguing Parliament!

So, since we're all blue-skying today, let me make my own predictions.

First, at less than 30% in the polls, Harper isn't likely to make this a matter of confidence, forcing a dissolution of Parliament and then facing the electorate. For all his government's dubious rhetoric about supporting our troops, that matter would be completely overshadowed by his bizarre mistreatment of Parliament.

Readers will recall that Harper's second prorogation, which the pundits assured us was far too abstract a matter to be of any interest to ordinary Canadians, quickly became both widely grasped and strongly opposed by the public. I'm not certain that most Canadians were aware of quite what was at stake when the Speaker ruled, but the hustings would be a great school for raising civic awareness. Harper would pay a considerable price if he were to force an election.

Secondly, Harper will not allow the matter to proceed to the contempt stage. That way utter disaster lies, for him and for his party. If Canadians aren't too clear as yet on the concept of responsible government, they know very well what the imprisonment of ministers of the Crown means,
and whether it's in the Chateau Laurier or Millhaven is immaterial. As for prorogation, the phrase "three strikes and you're out" quickly comes to mind.

Thirdly, as noted, I cannot see upon what authority Harper could pluck this matter from Parliament and put everything on hold until such time as a reference to the SCC is dealt with. The Opposition wouldn't stand for that obvious delaying tactic, which, in the current context, would seem to be a further breach of Parliamentary privilege.

Finally, then, I think it highly likely that the parties will reach an agreement in the next few days. It is certainly in the interests of both the Liberals and the Conservatives to do so, given their current standings in the polls.

But much depends upon what is contained in the documents. Given what has leaked out already, it seems highly likely that the government has gone to the wall to keep the material confidential, not in the interests of national security, but of its own. We're at end-game, no mistake, and the best course of action for the government at this point is to hand the papers over, agree to suitable arrangements to maintain secrecy where genuine national security issues exist--if they do--and, when new revelations emerge as they assuredly will, try to brazen it out, or deflect. (Adscam!)

Yesterday was, not to put too fine a point on it, a terrible day for the Conservatives. The Prime Minister wasn't even in the House for the ruling: he knew what was coming, and photos of uncontrollable, white-faced anger would not be helpful to his cause. The tipping-point has, at long last, been reached. No matter which of the various scenarios actually unfolds, most of us would agree, I suspect, that this will not end well for Stephen Harper and the government he leads.

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