public affairs analysis briefs

Analysis: Speaker’s Ruling – Afghan Detainee Documents

April 28, 2010 | public affairs

Background

On December 10th 2009 the House of Commons voted on a motion to compel the government to produce certain documents concerning the treatment of prisoners captured by Canadians Forces operating in Afghanistan and turned over to Afghan authorities. Since that time, the Government has steadfastly refused to produce the un-redacted documents and, in fact, has set up a parallel process whereby the Minister of Justice (Hon. Rob Nicholson, PC, MP (CPC - Niagara Falls, ON) has asked retired Supreme Court Justice Frank Iacobucci to sort the documents and determine what can be turned over to Parliament and what must be retained for reasons of national security. With tens of thousands of documents involved, that could take months if not years.

On March 18th 2010 a Point of Privilege was raised in the House of Commons. The Opposition outlined the government's steps to date and argued that they were inadequate in addressing the motion that had been adopted by the House in December. As a result, the mover (Derek Lee, MP (Lib-Scarborough-Rouge River, ON) believed that the Government was in contempt of Parliament and he asked the Speaker (Hon. Peter Milliken, PC, MP (Lib-Kingston and the Islands, ON)) to rule on whether or not that was the case.

After much deliberation and anticipation on Parliament Hill, the Speaker delivered his ruling on April 27th 2010.

The Ruling

Essentially, the Speaker’s ruling was divided into several parts, some procedural, some substantive. While the government won its points on most of the lesser issues, on the much more far-reaching question of the government’s ability to ignore the will of the House, the government was clearly the loser. Speaker Milliken argued clearly and decisively that the rights of Parliament are supreme and that those rights are fundamental cornerstones of Canada’s democracy. The Speaker put a very fine point on it when he said that Government must allow the House to fulfill its “undoubted role as the —grand inquest of the nation and its need for complete and accurate information in order to fulfill its duty of holding the Government to account.”

At the end of his lengthy ruling, the Speaker gave notice that both the Government and the Opposition had two weeks to settle this matter amicably or “the Chair will return to make a statement on the motion that will be allowed in the circumstances.” In other words, if the two sides fail to reach a reasonable accommodation, the Speaker will allow a motion of contempt to be brought against the government. This motion might very well be the trigger for a spring election.

Analysis

While the Speaker’s ruling is fascinating for Parliamentary process geeks, it could have significant real-world impacts as well. The fight being played out on the floor of the Canadian House of Commons is, essentially, the same as the one that lead to the English Civil War in the 1600s. At that time, a group of Parliamentarians asserted that the King had no right to levy taxes or spend from the Treasury without the consent of Parliament. In the penultimate moment of the showdown, King Charles I entered the House of Commons under armed escort and uninvited demanding the House surrender a number of its Members to him for trial on charges of treason and sedition. The Speaker – who until this time had largely been seen as the King’s man in Parliament and not the other way round – got down on his knees in front of the King and uttered the words that have been the rallying cry of Parliament ever since: “May it please your Majesty, I have neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here.”

In a real way, the ruling from Speaker Milliken is a modern expression of the same sentiment: Parliament is the supreme decider in Canadian democracy because its members are the elected representatives of the people. While the Prime Minister and his cabinet are generally drawn from Parliament’s members, their legitimacy is rooted in the fact that have command the confidence of the House of Commons – i.e., on anything that matters, the PM can summon 50% of the votes plus one.

Like the coalition crisis of late 2008/early 2009, the issue of whether any Canadian government has the right to govern without that confidence may be the trigger for an election, should the two sides be unable to resolve their differences before the Speaker’s two-week timeline expires. Because if the House of Commons finds the government in contempt of Parliament, it would be pretty difficult for any Prime Minister to continue governing, let alone any Governor General to allow him to do so.

The other striking similarity to those previous Parliamentary dust ups is that the decision on whether or not to pull the trigger for an election rests with the three Opposition Leaders: all three must agree to and vote for the motion. Whether they all agree that an election is in their best interests at the moment will be the topic of heated internal debate and rampant public speculation for the next two weeks.

One difference between this stand-off and others that have marked the last six years of minority government in Canada is that the Prime Minister may not be able to go to the well again with the Governor General. After requesting prorogations twice since the election in 2008 – ostensibly to avoid the wrath of the Commons in both cases – Her Excellency may not be inclined to grant the request a third time. That too would trigger an election campaign.

What it means for GCI clients

Minority governments are, by their nature, unstable. Prime Minister Harper has now managed to govern for four straight years despite an almost endless string of threats by Opposition Leaders and, ultimately, one election that he called of his own volition. But like the man said, when did Noah build the ark? Before the rain.

If an election is coming, or even an extended period of posturing, sabre-rattling and phony war tactics before a real campaign breaks out - something that was becoming more and more likely for Fall 2010 even before this latest piece of political high drama - then organizations with business in front of government would be well-advised to move it through the system as quickly as possible.

That's where GCI Group comes in. With a balanced team of government relations professionals, GCI is able to speak to your issues on all sides of this fractious Parliament and across the senior ranks of the Public Service. In both Houses of Parliament, in all Parties and with officials that matter, GCI can help ensure you and your issues get the hearing they deserve.

For more information, please contact one of our Public Affairs experts directly, including our newest member of the team, Lynne Hamilton, another one of Canada's Top 100 Lobbyists.