I see that my esteemed blogging colleague Brian Topp is arguing that the government cannot deny the opposition parties access to documents because one parliament cannot bind a future parliament.
Pish.
With great respect to Brian, he misconstrues both the nature of Canadian government and the issue that is raised by the current controversy.
In Canada, a law duly enacted by one parliament continues to apply until and unless it is amended by a subsequent parliament. In the current controversy, MPs are claiming that the law does not apply to them because of parliamentary privilege.
In my days in government, I can recall MPs taking the position that non-smoking regulations in federal buildings did not apply on Parliament Hill - a position that provoked considerable mirth in Ottawa. Today, they are on more solid political ground in demanding access to unredacted documents regarding the transfer of detainees. However, before they insist that the Canada Evidence Act and the Privacy Act do not apply to them, they would be wise to heed a warning in today's Globe:
"Ned Franks, a constitutional expert and professor emeritus at Queen's University, warned that Parliament might lose out if the dispute ever reaches the courts because judges could rule that MPs have to respect secrecy laws. He said he'd like to see 'one side or the other back down' instead of the Tories being forced into a corner.
'My guess is the government will say no and then you get into something that the House of Commons has really tried to avoid for many, many years - that somebody might want to refer this to the courts,' Prof. Franks said. 'And then courts would be ruling on parliamentary privilege.'"
Personally, I'm still hoping that the Conservative government will put the whole matter of detainee transfers and the allegations of torture before a judicial inquiry. But if it refuses, and MPs insist, I have no doubt that the Supreme Court would make short shrift of the argument that the Canada Evidence Act does not apply to MPs. Besides, not to put too fine a legal point on this, do Jack Layton and Michael Ignatieff really want to make the argument that secrecy provisions and national security laws do not apply to Gilles Duceppe and members of his caucus?
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Update I'm pleased to see that Brian Topp is no longer invoking the principle that parliament cannot bind a successor parliament - which, frankly, is irrelevant to the current discussion. And that he accepts that duly enacted laws continue to apply until they are amended or replaced. Or, I should add now that we have this agreement, until and unless they are struck down by the courts.
As currently drafted, both the Privacy Act and the Canada Evidence Act apply to MPs as they do to all other Canadians.
If MPs want to argue that they are above the law because of parliamentary privilege, the government would be within its rights to refer the matter to the Supreme Court of Canada, and the Court would be obliged to hear the matter. As Professor Franks suggests, however, the opposition parties may wish to consider the risk of testing the scope of parliamentary privilege in court.
In the meantime, having been burned badly about a year ago and with Canadian soldiers in harm's way, the Liberals and NDP should consider very carefully the politics of arguing that Gilles Duceppe and his caucus are above secrecy provisions and national security laws.