Parliamentary privilege after Milliken – What process should emerge from the Speaker’s ruling?
By Craig Scott
House of Commons Speaker Peter Milliken handed down a clear, measured, and compactly reasoned ruling last Tuesday, a ruling which, on occasion, artfully employed both pointed understatement and carefully crafted elisions.
The primary question before the Speaker was of course whether the government had breached parliamentary privilege by failure to comply with the House of Commons’ Dec. 10, 2009, order that the government must produce uncensored copies of documents in a list of categories.
The House was, and is, seeking documents relevant to Canada’s policy and practice of transferring detainees to Afghanistan authorities and to concerns of Canadian involvement in incidents or even a pattern of torture notably by Afghanistan’s National Directorate of Security.
The Speaker structured his ruling to deal first with two witness intimidation allegations, on which he found for the government — albeit without precluding a different view if further information came to light that would situate the impugned conduct in a wider context.
He found in favour of the House of Commons by holding that, on a matter of form, an order to the government was proper (and an address to the Governor General not required).
On the key matter of substance, the government’s refusal to abide by the House’s order for production of unredacted documents “constitutes prima facie a question of privilege.” In an earlier portion of the ruling, he outlined why the Speaker’s role is to make such a prima facie determination, but that, once that is done, it is for the House itself to determine whether there has been a breach of privilege and, if so, also a contempt of Parliament.
The Speaker framed his findings of Parliament’s right to compel document production around a combination of long-standing doctrinal opinion and parliamentary practice, and drawing on background values of parliamentary democracy. As to the latter, he noted: “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.”
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