An odd by-blow of the F-35 fighter-jet controversy illustrates why the courts should not usually be resorted to in order to uphold the political principles of the unwritten constitution. In this instance, an injunction action by the House of Commons against the Auditor-General of Canada would hardly be likely to cast any additional light on military-procurement practices. Excessive punctiliousness can be a mere distraction.
In June, Michael Ferguson, the Auditor-General, received an access-to-information request, from someone who has not been identified, asking for the Auditor-General e-mail correspondence with the Commons public accounts committee in connection with his appearance at the committee concerning the F-35 project. The requester may have taken that route because the committee had dealt with the F-35 mostly in camera.
Apparently as a courtesy, the Auditor-General let the committee know. But the committee mounted its high horse, saying that compliance with the request would be a breach of parliamentary privilege, Parliament not being a mere government department subject to that procedure. But Mr. Ferguson did not agree to refuse to answer the request.
Then, on Friday, the House of Commons legal staff commenced an injunction lawsuit in the Federal Court, to restrain Mr. Ferguson from releasing his own correspondence.
Little or nothing in all this suggests that the government and the Conservative members of the committee were trying to cover up anything. In fact, on Tuesday, the Prime Minister’s communications director, Andrew MacDougall, said that the committee should not have invoked parliamentary privilege and that the Conservatives would support a motion not to invoke privilege in this instance.
The Office of the Auditor-General does report to Parliament, but under the Access to Information Act, it is included among “other government institutions” that are subject to access requests. Correspondence is inherently two-sided, and the Auditor-General is entitled to disclose his correspondence. Parliamentary privilege is a precious thing, but if it is overstretched and overstrained, Parliament undermines itself.