Detainee documents: another procedure guru weighs in

Kady's on assignment for a couple of days, so it falls to me to hold down the fort for all you process-and-procedure watchers out there.

This week's Hill Times has a useful summary of what prorogation means for the attempt to compel the government to produce unredacted documents about the handling of Afghan detainees by the Canadian Forces. It's written by former House of Commons procedural clerk B.Thomas Hall, and it's behind a subscription wall online (boo!), but you may want to pay for it or pick up a print copy if you're interested in this topic.

Kady's touched on some of this before, but to review the highlights:

• House Standing Order 49 provides that "prorogation of the House shall not have the effect of nullifying an Order or Address of the House for returns of papers." In other words, the government's still on the hook to produce them.
• Hall sides with House of Commons Law Clerk Rob Walsh's interpretation (Walsh's legal opinion as well as the Justice Department's response, and Walsh's counter-response to this response, are all part of our Afghan detainee document archive)  that the power of a Parliamentary body to order the production of any papers it deems appropriate is a "constitutionally protected privilege, which trumps any ordinary statute that the government lawyers have referenced or could reference."
• Hall does not see this as a matter for the courts to settle -- at least, not yet. He thinks this debate needs to stay in Parliament's court as a debate between MPs and Ministers: "If public servants wish to continue to claim that they are not responsible to Parliament and that only ministers are, then they must stop making the government's arguments against the opposition in place of their ministers."
• In Hall's opinion, since the minister with custody of the documents did not produce them in time, he is "open to any MP to raise a question of privilege charging the responsible minister with contempt of the House as soon as the next session begins." Hall explores what Parliament's options are as far as punishment of said minister, and concludes by suggesting that should the minister challenge this punishment, "this parliamentary question could become a legal one."