Parliament: 1 / Government: 0

In a precedent-setting decision this afternoon, House of Commons Speaker Peter Milliken ruled that the government could be compelled to disclose to Parliament uncensored copies of documents relating to the transfer of Afghan detainees to risk of torture, and reaffirmed the powers of Parliament as a check on government conduct. [Update: The full text of the Speaker's decision is now available online (PDF).]

Image: Globe and Mail

The federal government has more or less resisted full and complete document disclosure whenever it’s been asked for information about Canada’s conduct with respect to transferring detainees to risk of torture by Afghan officials, whether the requests came from the Military Police Complaints Commission or the House of Commons.

As you may recall, late last year, the opposition parties joined to pass a motion demanding that the government release all relevant documents in their unredacted form.  The federal government refused to comply with this (non-binding) motion, claiming that documents were being withheld for national security reasons.

The opposition parties subsequently asked the Speaker to rule on the issue of parliamentary privilege with respect to the order for production of documents — that is, whether the House has supreme power over the Prime Minister in this regard.  The opposition also called for several government ministers to be held in contempt of Parliament for, inter alia, intimidating witnesses.

In his 45-minute address, the Speaker covered off several issues, including whether comments from Peter MacKay and a letter issued to the Parliamentary law clerk constituted witness intimidation (no on both), but the main attraction this afternoon was the ruling on Parliament’s authority to seek unredacted documents, in the face of executive claims of national security privilege.

According to the Speaker, the ability of Parliament to request documents is fundamental to its proper functioning, and is an “absolute power” that is — on its surface — without restriction, even in the face of statutory limitations. Precedent and authority, according to the Speaker, show that Parliament has a right to access any category of documents, including those relating to national security. Only Parliament itself can limit its power to seek such information, and it is not up to the government to unilaterally withhold documents requested by Parliament. It is therefore ultimately up to Parliament to decide for itself whether there are grounds for withholding the production of documents, and whether the reasons provided by government for withholding are sufficiently compelling.

As for the government’s argument that permitting Parliament unrestricted access to materials somehow violates the separation of powers, the Speaker very emphatically stated that accepting the unconditional authority of the executive would destroy the very notion of separation of powers:

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.

Accordingly, the Speaker concluded that the House has a right to seek the documents requested.  (This ruling was met with applause on the opposition side of the Chamber.)

The Speaker went on to note that Parliament has responsibilities to ensure that confidentiality and secrecy are maintained in appropriate circumstances, and pointed to longstanding practice whereby the House has accepted that not all documents demanded ought to be made available if the government provided sufficiently compelling arguments.  He spent some more time reviewing the impasse between Parliament and the government over document disclosure, and rather interestingly suggested that the national security privilege review presently being conducted by Frank Iacobucci may not resolve these difficulties, given that Mr. Iacobucci ultimately reports to his client, the Department of Justice, and that Parliament has no role in the review he’s undertaking.

Ultimately, the Speaker concluded that he believed that it was possible to put in place a mechanism for document disclosure which would provided Parliament with the unredacted information it needs to perform its democratic duty to hold the government to account, without compromising national security interests.  He criticized those who would say that MPs cannot be trusted with the sensitive information contained in these materials, suggesting that such comments fly in the face of the trust Canadians have placed in their elected representatives.  The Speaker called Parliament the “grand inquest” of the nation, and reiterated the primacy of Parliament’s ability to access complete and accurate information to perform its duty — holding the government to account.

The Speaker gave the House two weeks to work with government to devise a system of disclosure that gives Parliament the information it needs, while taking into consideration the government’s concerns.  Nonetheless, he found that the government’s failure to comply with Parliament’s order for documents to constitutes a prima facie breach of privilege, and if there’s no resolution in two weeks’ time, he’ll return to make a further ruling of breach.

A pretty good day for Parliament.  Now we wait and see how far it’s willing to accommodate the government’s claim of national security privilege over all and sundry.

Update: The full text of the Speaker’s decision is now available online (PDF).