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C.E.S. Franks

There was a middle ground - and the Speaker found it Add to ...

The parliamentary system means government in Parliament and with Parliament, but not by Parliament. The Crown, as represented by the cabinet and prime minister, governs, but only retains its right to govern as long as it is supported by Parliament. It has taken many centuries for parliamentary government to reach its present form. It is still evolving as Canada, the Canadian government, and Parliament itself are forced to cope with changing demands, circumstances and stresses. Minority parliaments, with which Canada seems to be blessed (or cursed), increase the stresses and opportunities for confrontations between government and Parliament.

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.

Reaching a satisfactory compromise will demand that both sides moderate the pur et dur rigidity of their claims. Perhaps even more difficult, it will require that each side recognizes the merits of the other side's position. The Harper government has not proven itself to be very good at moderation and compromise. But Speaker Milliken is right. That's the route to go. This is how parliamentary government has evolved, and how it will continue to do so.

If the government chooses to ignore the required instruction to seek a compromise solution, the House might find the appropriate ministers in contempt of Parliament. Contempt of Parliament is an enduring legacy of Parliament's origins as the "High Court of Parliament." Impressive though contempt of Parliament sounds in theory, it means little in practice. The House can put persons into confinement if they are found in contempt, but that does not mean they go to jail. More likely, they would be installed in a hotel, and kept there until Parliament decides otherwise, or the session ends. The last time this happened in Canada was in 1913. If Parliament finds Prime Minister Stephen Harper's ministers in contempt, he could end their confinement in short order by proroguing the session.

Alternatively, the government could ignore Parliament and refer the matter to the Supreme Court of Canada. Quite likely the Supreme Court would conclude that it's not the court's role to moderate spats between government and Parliament, and instruct both sides to go back and sort it out.

Whatever accommodation is or is not reached, Parliament and the public should appreciate three cautions.

First, in the past, parliamentary committees have proven to be leaky sieves, and have not always respected confidentiality. Second, once members have received confidential information, it constrains their ability to discuss the matter in public, or even, for that matter, in the privacy of caucus. Confidential means keeping their mouths shut in public and in private. Members might chafe under this sort of restriction. Third, Parliament will still have no means for ensuring that the government has been forthright and shown the members or committee everything. The government might still keep some things to itself. A parliamentary committee is not a good instrument for checking this sort of lack of candour. 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.

C.E.S. Franks is professor emeritus of political studies at Queen's University and author of The Parliament of Canada .

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