Speaker's Ruling: Derek Lee speaks

It was Liberal MP Derek Lee who set off the chain of events resulting in today's historic ruling from Speaker Peter Milliken about Parliament being supreme  -- over  the prime minister and cabinet and government. I caught up with Lee after the ruling was over, and I've put the interview below. (Note to media colleagues, competitors -- if you want to use any of this in your stories, feel free, in the new parliamentary spirit of collaboration,  to give the Star credit ... or Tim Naumetz or Kady O'Malley who were also there....)

 

Derek Lee: It puts off for a couple of weeks the final chapter. The government and its members now know they can’t hide behind secrecy or claims of secrecy in relation to these documents and we all have collectively to put something together to protect the sensitive documents.

Q: Do you know what that would be?

A: We’ve done it before and we may end up swearing members. We may end up having documents that can be looked at or not copied or taken away.

Q: Or a Security Intelligence Review Committee type thing.

A: We’ve done it before. We don’t have to set up something permanent. Although it’s my view that we should.

Q: When have we done it before?

A: The al-Mashat inquiry, the five-year review of CSIS. All had top-secret documents made available to MPs and it worked.

Q: So what should Canadians take away from today’s ruling?

A: I would say the supremacy of their Parliament in holding their government to account has been confirmed by the Speaker. We didn’t invent anything here today. We just dusted it off, gave it a spin  and it worked; it’s going to work. And all of us in the House will be committed to making it work. We’ve got two weeks to hammer something out on the detail and I’m very happy. These opportunities to benchmark some of these powers don’t come up very often; like once every 50 or 100 years, but in a minority Parliament, things do come up like this.

Q: So was history made today?

A: Our Speakers have never been so clear as this one was today and if people aren’t sure, they just have to read his remarks again.

Q: When did you realize this was turning your way?

A: Well I always knew it was a question of privilege but at one point in talking with him, it became apparent that he was going to look back at the House to construct this mechanism, rather than turning to me to move a motion. It’s hard for one MP to kind of bring it all together with one motion. I don’t have the whole department of Justice behind me. So he’s looked back to the House. He’s said this is a matter of huge significance; you have an obligation essentially to our electors to make it work. If it doesn’t, he’ll come back to the House and we will then move a motion that does the job.

Q: Which one moves the motion

A: I got up first, so he will probably turn to me. … In the end, this is so significant and the proof is here today because he didn’t follow the standard procedure, any motion that does go forward will have his thumbprint on it. But he isn’t going to turn to anybody until he sees some consensus in the motion. And that’s exactly what I would do.

The precedent here today is the clear, unequivocal, benchmarked statement of authority of the House to send for papers and records and it is absolute. And he says the House has never acted to curtail its powers. It was always absolute and it still is. So that’s the rule, that’s the law.

The government members took it quite well. It maybe wasn’t a cold shower, I don’t know. I mean, I wrote a book on this, it wasn’t new to me. But to some of them, to hear that said, it would be a bit of a cold shower.

Q: Were you one of the ones applauding?

A: At the end? Oh, I was happy with it. You know why I was happy? Because he didn’t have to turn to me. I had a motion ready, but the route that he took is the one that I had speculated on and I am ready to work with that too.

Q: Technically now we have a case of contempt, right?

A: “Incipient contempt” – certainly we have a contempt in motion if it continues. But they’re actually continuing with this little striptease of releasing documents every once in a while. But the House said forthwith so that compliance would involve both an initiative by the government and an initiative by the House on our end to protect those documents that were sensitive or in need of protection. Both have to get done.

Q: And where does this put the Iaccobucci part of all this?

A: I’d like to see him be an adviser, collaborator in the mechanism. He’s not dumb. He has experience. He’s probably looked at 5,000 or 10,000 documents by now. Let’s not waste his efforts. But the Speaker actually made the point that his role was not collaborative..

Q:  That the government was his “client.”

A: Right. I spoke to (Justice Minister) Rob Nicholson about this in the early days on this. I said don’t do it. He actually asked me if a mechanism like that would work and I said to him only if the person you bring in is approved by Parliament to do work for us. Will that work. He obviously didn’t pay attention to that. 

Two parties can hire one person… It’s like a mediation. If one of the parties loses confidence, you back off both, so it’s tricky, but Iaccobucci could do it. And now that we’re there, this will succeed.

Q: Do you think there’s enough trust in this Parliament for them to have their act together in two weeks?

A: I think the trust has to exist between the people on that committee, so you’ve got 10 or 20 people involved. That should be sufficient. We’ll overcome this distrust in the House and God forbid that the Prime Minister wouldn’t be onside. Will he take this as a loss or an insult? He wasn’t there…

Q: Do you take anything from the fact that the Prime Minister wasn’t there in the House?

A: He was one of the few leaders to leave. I saw him leave. He’s Prime Minister and he may have other responsibilities. I’ll give him the benefit of the doubt. I was disappointed he didn’t stick around for some of it. And if he has good attitude as Prime Minister, the resolution will be pretty easy, because the House has done this before, successfully.

Comments

[Joseph K. Mayer]

Hello Susan,
Thanks for posting this. I had the opportunity to interact with Derek Lee very briefly while working on Paul Martin's "Democratic Reform" speech in 2003 and was very impressed by the depth and breadth of his knowledge. He is a national treasure; in this superficial, cynical age, we are indeed fortunate that people like Derek are still actively engaged in Parliament. He makes a tremendous, vital contribution.
Yours,
Joe

[Riley]

The scary thing is that we have a justice minister who even claims that the government doesn't have to listen to parliament and that it alone has the right to determine what it will show the opposition. That someone in the position of justice minister would be so misinformed -- or worse, deliberately disingenuous -- is the travesty here. What does Nicholson have to hide? I guess we'll find out now. Does he need to get ready to rent an ampartment in The Hague?

[Michael Behiels]

A great day for Canada's Parliamentary democracy and for the Canadian People.
Hats off to Peter Milliken for a very thorough and hard-nosed ruling on the privileges of our elected MPs. His ruling will go down in the history books for future students of Canada's constitutional system to contemplate and learn about how Canadian MPs saved our democratic institutions from am overly powerful executive branch in the hands of one 'radical' PM Harper.
The absent Prime Minister speaks volumes - Harper hates to be reprimanded for anything that he does or does not do. He was and remains an angry man who has nothing but disdain for Canada's Parliamentary democracy and the liberal and conservative traditions that our institutions represent.
Must I remind readers that Harper, during the election of 2006, begged Canadians to elect him Prime Minister because Parliament and the courts would keep him and his executive in check. Well, thank heavens for the sake of all Canadians, Parliament has kept his autocratic tendencies in check!

[Frib]

Well, now hopefully all MPs who get to see the documents will keep their trap shut and not try to boast that they know something and leak info to the press to get votes. That was one of the problems all along.

[Paul]

Interesting that Lee doesn't seem to have read Milliken's ruling. Milliken never said Parliament was Supreme, only that it could compel documents subject to certain limits.

As Milliken himself cites, "A parliamentary committee cannot waive a legal duty imposed on Government officials. To argue to the contrary would be inimical to the principles of the rule of law and parliamentary sovereignty. A parliamentary committee is subordinate, not superior, to the legislative will of Parliament as expressed in its enactments."

Then, Milliken proceeds to do exactly that: argue that the laws passed by Parliament to protect national secrets can be so simply overcome. And that is all the Government has ever claimed: that it is enforcing the laws regarding protection of national secrets.

[MJH]

The sworn MPs who evetually get to read unredacted documents will not be able to discuss ANY of the content no matter how innocuous it may be. This will be an enormous millstone around their necks as they will not be able to do anything with what they learn.

[Ron Santana]

WHAT ABOUT KARZAI GOVERNMENT'S CONSENT? There is no winner or loser as the documents may turn out to be of little interest if the Karzai government and the Taliban reach an agreement. The Afghan government has a stake in the decision and the Canadian Parliament should not come into conflict with the Afghan government. There ought to be a joint declaration by both Parliaments permitting the release of documents that is relevant to Afghanistan’s national security as well.

After all, Canadians are in Afghanistan to strengthen the Karzai government, not to weaken it.

[LL]

Today was a historic day.
Canadian democracy won over autocracy.

[Jesus]

Holy Tag!!!

Obviously, I am not God. He would choose the New York Times to post reader comments in, presumably. Since this is only the Toronto Star;) the highest authority that I can claim to have, as far as I know, is the authority of Jesus -- which, under the Star's charter, is not necessarily a crime for a reader like me to claim, says me. And since no one who believes in Jesus should object to me identifying myself as him (given that we are all called to be like him), you can call me Jesus. Besides which, there are no winners in the game I am about to play unless I actually DO what Jesus would do. That is, not just say (or sing) I already "do, do, do," what Jesus would do. Or, "ya, ya, ya," when I get aRound to doing what Jesus would do.

The point here is that the circumference of a circle can be said to be equal to the sum of Matthew 18:20, which says, "For where two or three come together in my name, there I am with them." -- Holy Tag: http://thestar.blogs.com/davidolive/2010/03/happy-pi-day.html -- ouch, thanks 'a lot' D. Crock;) -- http://en.wikipedia.org/wiki/Chai_(symbol) -- End of Round One. God is "IT".

Round Two: Liberal MP Derek Lee -- see above blog post -- makes House of Commons Speaker Peter Milliken "IT" -- see above blog post -- Milliken rules not to deny Jesus (like the last Peter M did) -- End of Round Two. God is "IT," once again. Thanks, Susan.

Round Three: Father Turk is the name of the friendliest priest in the Roman Catholic Church parish that I was raised in. One of my sisters and I liked Father Turk so much that we used to attend 7:00 Mass every morning just to see him. I have no idea if he is still alive, but if he has passed away then he must be in Heaven with God. I say that because Father Turk is probably the one who started this game of "Holy Tag" with me by touching me only on my forehead, every Ash Wednesday. And since I did not believe that I was allowed to touch priests, I never did get him back. May God Bless Father Turk, anyway. End of round three.

Here is the theme song for Holy Tag, recorded by God, herself, Aretha Franklin;) Thanks, Aretha! http://listen.grooveshark.com/#/s/Who+s+Zoomin+Who/1Ze1uq

[Wascally Wabbit]

Thank you Susan.
What no-one asks Derek Lee is whether he took the initative without the explicit OK of his leader - who appears to have reservations about taking on PM Harper at this time...
Now it's not just PM Harper who is painted into a corner!

[Gabby in QC]

The transcript of the ruling is available at Macleans here: http://www2.macleans.ca/2010/04/27/the-ruling/

Milliken examined 4 issues in his decision:

1. The Right of the House to Order the Production of Documents

His ruling:
“... 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.”
But Milliken advises a compromise be found in order to safeguard the government’s legitimate concerns re: national security.

So it’s not an absolute win for the opposition.

Ned Franks (see Globe & Mail column) thinks the Iacobucci solution is a good one, calling on him to mediate between the government & the opposition.

Franks: “Assisting Parliament and the government in their efforts to reach a mutually satisfactory compromise might well be the most useful role that former Supreme Court judge Frank Iacobucci – who is currently reviewing the documents for security concerns – can perform at this point.”

2. Intimidation of Witnesses

Derek Lee contends “witnesses were intimidated by answers given in Question Period by the Minister of National Defence and that a letter written by an official from the Department of Justice was contemptuous of the House in setting out for potential witnesses a false basis for refusing to answer questions in a committee of this House.”

But the Speaker concluded: “As things stand, there does not appear to the Chair to be sufficient evidence for me to conclude that this letter constitutes a direct attempt to prevent or influence the testimony of any witness before a committee.

For these reasons I cannot find that there is a prima facie question of contempt on this point.”
So, a loss for the opposition on this point.

3. The Form of the December 10 Order of the House

The government argued that “the Order of December 10 was fatally flawed in that it seeks documents that he claims can only be obtained by way of an Address to the Governor General. …

I have considered the arguments put forward, and for the reasons stated above, the Chair concludes that it was procedurally acceptable for the House to use an Order and not an Address to require the production of these documents.”
So, a loss for the government on this point.

4. Accommodation and Trust

“... concerns the issue of accommodation and trust which a number of Members on both sides of the House have raised. …

There have been assertions that colleagues in the House are not sufficiently trustworthy to be given confidential information, even with appropriate security safeguards in place. …

The issue of trust goes in the other direction as well. Some suggestions have been made that the Government has self-serving and ulterior motives for the redactions in the documents tabled. Here too, such remarks are singularly unhelpful …”
So, both the government and the opposition at fault here, so a draw.

The opposition and their allies may believe they scored a victory, but IMO the Speaker's ruling is a call for compromise from both sides, since the right of the House to ask for documents must be balanced against the government's concerns about national security.

[Frank Docherty]

If our PM can turn a blind eye to it and walk away, so can our troops??? ( http://www.thestar.com/news/canada/article/801610--soldier-in-afghan-slaying-was-calm-as-he-admitted-firing-shots-witness )

[Gabby in QC]

May I inquire about another comment I posted just before the one published here at 5:26?

[Don't hate]

Gabby in QC...your thorough analysis left out an important point - we already have a solution to these so-called national security concerns. It's called the Military Police Complaints Commission. The MPCC has a mandate to investigate these allegations, as well as the security clearance to do so.

Why has our PM denied the Commission access to the documents? Does the MPCC also constitute a threat to national security?

[Gabby in QC]

Posted by: Don't hate | April 29, 2010 at 12:18 PM:
"Why has our PM denied the Commission access to the documents?"
Correct me if I’m wrong, but a large number of redacted documents have been released both to opposition MPs and to the various committees dealing with the detainee issue.
I imagine this is why the government has denied access to SOME documents or parts of documents:
http://www.justice.gc.ca/eng/dept-min/pub/fps-sfp/fpd/ch37.html
37 PROTECTING CONFIDENTIAL INFORMATION UNDER THE CANADA EVIDENCE ACT
37.1 Introduction
The Supreme Court of Canada has observed that "all government must maintain some degree of security and confidentiality in order to function”. This need for confidentiality can arise in many different ways, and can involve information coming to or prepared by government. …
37.2 Statutory Framework
Section 37 of the Canada Evidence Act (the C.E.A.) sets out when objections can be made to the disclosure of certain information. Section 37 states:
37. (1) A Minister of the Crown in right of Canada or other person interested may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest. …”

[Gabby in QC]

I may have a naive idea of what a professor’s role should be, but it makes me wonder if Mr. Biehels’ kind of categorical statements here at 07:19 PM (I assume the commenter here and the U of Ottawa prof. are one and the same) promote the kind of critical thinking one would expect in university classrooms.
Those who, like Michael Biehels, are crowing that with the Speaker’s ruling “Canadian MPs saved our democratic institutions from am overly powerful executive branch in the hands of one 'radical' PM Harper” perhaps they should read the entire ruling before engaging in such crowing.
Mr. Biehels might benefit from reading another professor’s take on the Milliken decision here:
http://www.theglobeandmail.com/news/opinions/there-was-a-middle-ground-and-the-speaker-found-it/article1548859/

Ned Franks is not a Harper fan like I am, but IMO he calls Milliken’s decision correctly.
Ned Franks says:
“… Speaker Peter Milliken’s ruling yesterday on the question of parliamentary privilege relating to the release of documents on Afghan detainees deals with one aspect of this centuries old, never-ending contest between Parliament and government. It addresses Parliament’s balancing the right to know – its right to call for persons and papers – with the Crown’s right to keep some matters of state confidential.

To listen to either side in this dispute, these rights are absolute and unconditional: Parliament claims it must be given anything it asks for; the government claims it can withhold any information it chooses not to disclose. Many commentators similarly made the Speaker’s decision into a choice between black and white: Speaker Milliken had to rule in favour of the government, or in favour of Parliament. There was no middle ground.

But Speaker Milliken made very clear in his ruling that this is not an either/or issue. There is a third option, of moderating the stark opposition of the claims of the two sides and finding a middle road that balances the conflicting rights and principles. Parliament and government should be able to do this in a process of consultation and mutual accommodation. Speaker Milliken has given them two weeks to do so. …”

[Gabby in QC]

Thank you.