Wednesday, April 28, 2010

History of Parliamentary democracy: the Milliken ruling

Speaker Peter Milliken ruled yesterday that, if the Commons insists, the government is obliged to deliver to it the unedited documents on Afghan prisoners that Parliament had requested. The full text of the document, clear, precise, and brief, is available here, (courtesy of Katy O'Malley's blog at and it’s worth reading. (It may be on the Parliament of Canada website, but I can't find it there.)

This is not of itself a groundbreaking document. Most of what Speaker Milliken says about the authority of Parliament and the obligation of the government to respect it is a recitation of grade-five civics truisms about how parliamentary democracy works and must work.

At least, it should be. Only the extraordinary defiance of the Harper regime, its anti-constitutional effort to place itself beyond accountability to Parliament, required the Speaker to reaffirm constitutional bedrock. “In a system of responsible government, the fundamental right of the House of Commons to hold the Government to account for its actions is an indisputable privilege and, in fact, an obligation…. [I]t is the source of our parliamentary system from which other processes and principles necessarily flow.”

The Speaker also makes clear that, for all the bluntness of his declarations, he is no arbitrary authority. “Ultimately it is the House which decides whether a breach of privilege or a contempt has been committed.” The Speaker's ruling only binds if he is supported by the House that elected him.

Indeed, the Speaker’s statement consistently affirms the authority the House has, when and if it chooses, to fulfill its responsibilities. “[I]n instances where a Minister refuses to provide documents that are requested, it is clear that it is still ultimately up to the House to determine whether grounds exist to withhold documents.”

"It is up to the House." Among those tarnished by comparison with Speaker Milliken, I think, are the many constitutional lawyers and political scientists who have suggested the solution to this impasse (indeed, to all political questions, it sometimes seems) should be court-centred rather than parliament-centred. (I’m thinking of Patrick Monahan and C.E.S. Francks in particular – you can find them all over the Globe and Mail today.) The intellectual current, encouraged by far too many scholars, that would have all important decisions referred to unelected judges, not to legislatures, has contributed to the Commons’ tendency to deference and timidity and encouraged the government’s belief it can defy parliament. Speaker Milliken nicely demolishes the government’s latest attempt to use the judicial trick, namely its “referral” of the problem to the arbitration of retired judge Frank Iaccobucci. “Mr. Iaccobucci reports to the Minister of Justice; his client is the government,” Milliken observes.

Speaker Milliken’s statement of Parliament's powers ought to be routine and banal. There’s a good chance of more fireworks, however. This government does not like to be told its duty in any situation, and it is entirely likely that ministers, confident that they could withhold the documents from Parliament, have been lying about the Afghan prisoner issue.

The Speaker has informed the government of its obligation to respect the will of Parliament, but there is every chance the government will prefer defiance. The Speaker has informed the House of its powers, but who knows if the house will steel itself to use them? Speaker Milliken advocates a compromise, but he is very clear that this is not a negotiation; it is for the House to set the terms of the compromise. It can yield as much or as little as it chooses or dares.

So the issue may not be settled; indeed, it may be just about to get serious. Members of Parliament, long trained to have no political views beyond deference to leadership, might back down. The government might win an election and renew its defiance with a new mandate. But at least we have a clear and unequivocal statement of the powers of Parliament, and of the vital importance of having parliamentarians who understand their right and duty to wield those powers. That cannot be bad.

Update, May 2: Jordan Kerr, history undergraduate at Carleton reports:
Great article on the speakers ruling and if you're still interested I found the ruling on Hansard - Today in the House- Debates (Hansard)-Apr 27. - Oral Questions - Privilege. Though I'm sure Katie O,Malley got it right:)
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