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PrivilegeWatch: Who stands for parliament? The NDP and the Bloc Quebecois and special surprise guest star Derek Lee, apparently.

Well, it's official -- as reported in Orders of the Day, New Democrat defence critic Jack Harris will  indeed be rising in the House of Commons to argue that the refusal of the government to table unredacted detainee-related documents constitutes a breach of parliamentary privilege. He'll probably get going just after 10am; his statement will be followed by a quick round of debat over the motion itself, and whether a prima facie case should be found, which will likely be fairly short, with each party being given the opportunity to put forward its respective views on the matter before the speaker retires to consider his ruling. I'll keep you posted, so watch this space for updates. 

10:
01 AM
Alright, according to the speaker, Harris will have the opportunity to bring his question forward after routine business, which means we have a few minutes to go. Can you feel the subtle but unmistakable sense of excitement?

10
:06 AM
Well, it's not strictly relevant to the looming battle over parliamentary supremacy, but still interesting enough for an admittedly tangential update: It seems that the Ethics, Privacy and Access to Information committee is persisting in its efforts to force the government to, I don't know, do something about Access to Information reform, at least from the description of its just-tabled report from the chair. Probably worth checking up to see if they're still trying to get the justice minister to show up to explain his government's apparent disinterest in the issue. 

10:
11
11 AM 
Another NDP motion -- not the one we're all waiting for, but again, worth noting just for the record: a request for unanimous consent on Nortel pensioners. Denied. On to petitions! 

10:18 AM
Well, this is an unpredicted turn of events: Liberal MP Derek Lee has beaten Jack Harris to the punch on the privilege front, and is now on his feet, arguing his motion of privilege -- which may or may not be the same as the draft motion that has been the subject of so much discussion and speculation in the weeks leading up to -- well, this moment. 

Is that .. is that a spine I see before me? Most unexpected. Oh, and he just referred to the Grand Inquest of the Nation, which I am going to take as a shoutout to me and Former Colleague Coyne. I'm going to hit post. and then fill you in on his arguments. 

10
:
:22 AM 
Lee is asserting his little heart out -- the power of parliament to subpoena persons, papers and records is supreme, for the House -- and the Senate -- and its creature committees as well -- and a failure to comply can result in the House -- and the Sargent-at-Arms -- being brought in; that, he notes, is an issue for the House -- committees have the power to demand, but it is ultimately parliament to which the enforcement -- and any ensuing finding of contempt, and punishment -- falls. 
 
10:27 AM 
For a quick-ish recap of the motion that Lee had planned to bring forward when the House reconvened -- which may or may not be identical to the wording on which he eventually settled -- click here. For the full, unredacted (couldn't resist) background information, click here. 

10:31 AM 
So far, from what I can see, Lee is arguing his first two claims -- that the defence minister and the associate deputy minister of justice contemned parliament by rejecting the Law Clerk's assertion that privilege did, indeed, apply in this case. 

10:33
AM 
AM 
Okay, from what I can recall -- and as some of you know, I've spent not a little bit of time and effort reading and rereading the original -- the text of Lee's motion, which I believe -- although I admit I haven't read through both versions to make sure -- is, indeed, the same as the one he first started plotting to bring before the House even resumed after prorogation. For convenience, I'll Scribdify it and post it in my next update. 

10:40
AM 
AM 
As promised, the motion, courtesy of Lee's office: 13)DraftMotion

10:42 AM 
My apologies to all for missing much of Derek Lee's speech, as far as the liveblogging goes -- it was not in any way a slight against the content or delivery, which was classic Lee, the possibly-lone-Liberal warrior for parliamentary supremacy. He seems to have finished -- at least for the moment; he may rise again in response to the other two privilege questions if he hasn't been forcibly wrestled from his seat by panicked DonOLO deputies -- and Jack Harris has taken the floor. I wonder who will make the case for the Bloc Quebecois? Oh, I hope it's Claude Bachand. He gets so animated when he gets going about the importance of parliament.

10:48
AM 
AM 
Harris brings up that letter sent by his colleague, Paul Dewar, to Justice Minister Rob Nicholson, in which Dewar inquired whether he would, in his capacity as chief law officer of Canada, ensure that the government delivered those documents as ordered; in response, Harris notes, the minister sent a reply touting the appointment of former justice Iacobucci. As fine and upstanding a fellow as Iacobucci may be, establishing a separate, parallel process outside of parliamentary oversight does not, in his view, respect the very specific terms of the order. 

10:52
AM 
AM 
The motion, Harris reminds the speaker and the rest of us, did not call for those unredacted documents to be posted on the internet, or handed out to all and sundry on the front steps of Centre Block; the committee is willing to work with the government on a process for handling any protected material that would prevent unnecessary disclosure to non-parliamentarians. For the record, here's the text of his motion, which would see ministers called to the Bar, as is the case with Lee's proposal, and lays out a thirty day timeline for compliance with the House order: 

That the House considers the government's failure to provide the documents specified in the Order of December 10, 2009, is tantamount to contempt, and therefore orders the Minister of National Defence, the Attorney General and the Minister of Foreign Affairs to be called to the Bar of the House immediately and hear the Speaker read this order to them;

That it be an instruction to the Special Committee on Canada's Mission in Afghanistan to adopt rules and procedures for the reception and handling of the documents demanded by the House Order of December 10, 2009, in a manner that safeguards national security and other confidentiality requirements while respecting parliamentary privilege; after receiving advice from the Law Clerk and Parliamentary Counsel,

That the Special Committee report these rules and procedures to the House no later than 21 calendar days following the adoption of this order, provided that if the House is not sitting when the report of the Committee is completed, the report may be deposited with the Clerk of the House and it shall thereupon be deemed to have been presented to the House; provided that no later than 6:00 PM on the 20th calendar day following the adoption of this order, any proceedings before the Special Committee shall be interrupted, if required for the purpose of this order, and in turn every question necessary for the disposal of the report shall be put forthwith and successively without further debate or amendment; and

That, on the 30th calendar day following the adoption of this order, if the government has not provided all the documents to the Special Committee, which shall receive them on behalf of the House, in their original and uncensored form, at the next sitting of the House, the first order of business shall be the consideration of a motion, "That the Minister of National Defence, the Attorney General and the Minister of Foreign Affairs be found in contempt of the House" and that such a motion shall have priority over all other business until it is decided, in the same fashion as a motion relating to a question of privilege. 

 
10:57
AM
AM
And now, the Bloc Quebecois -- and it is that impish little arch-parliamentarian Claude Bachand after all, which makes sense since he is a permanent member of the committee trying to pry those documents out of the hands of the government in unexpurgated form. 

11:
00
00 AM 
Bachand excoriates various ministers for "flying in the face" of parliamentary privilege, which makes me momentarily picture a cloud of bats hovering outside the Peace Tower. What is the correct noun of collective for bats, by the way? I know owls have a parliament and larks have an exultation. Sorry, back to the privilege battle -- Bachand reminds the House that, in the opinion of Maignot, it is up to the House and the House alone to stand up for its powers; when ministers refuse to provide information in particularly delicate or sensitive situations, the House will acquiesce when "sufficient reason" is given to do so, but it is the will of the House that must prevail. The power to compel production is not subject to common law, and it is, again, up to the House -- not the government, or an independent counselor, no matter how respected, or the executive to decide which documents to disclose. 

11:05 AM 
This is a separate question of privilege, by the way -- and no, I don't yet have the text, but if any Bloc Quebecois staffers happen to be reading this, I'd very much like to get my hands on it, so feel free to send it along. 

11:07 AM 
Bachand closes by noting that he has been working with his colleagues in the NDP on his motion, and he, too, is prepared to table it should the speaker allow it. And now, over to -- good heavens, Deputy Government Whip Tom Lukiwski? Really? Gordon O'Connor couldn't be bothered to walk the few hundred feet that separate his office from the Chamber to make the case for the government? 

Anyway, Lukiwski starts by questioning why it took so long for this particular privilege question to be raised in the House -- after all, the order was passed in December, and it's now  mid-March. Hmm. Remind me again, what was the status of this parliament between December 30th and March 2nd? I -- can't quite remember. 

11
11:10 AM 
Okay, Lukiwski's main quibble with the various arguments in favour of finding prima facie questions of privilege was that the order, as passed, was made with no provision for privacy or security, which, in his view, means that if the government had complied with it, that material would now be in the public domain. Well, no; clearly, that  could have been worked out through subsequent negotiations between the government and committee, but Lukiwski is stretching it out as far as he can; the security of the military, and the country itself, could have been at risk. Except -- no, it really doesn't. An order doesn't mean the government has 24 hours to drop a box full of documents outside the Commons front door; it means that it has to produce the material, but the specifics as far as delivery and post-production handling would be up to the parties involved. 

Now he's reading Rob Nicholson's statement on the Iacobucci announcement. 

11:15 AM 
The government is taking "unprecedented measures" to review the material, Lukiwski assures the House -- they're doing everything possible to comply with the order, and the minister has kept members "well informed" of their efforts. He's willing to respond in "greater detail" to the specific arguments made by the three MPs in question at "a later date." 

11:16
AM 
AM 
Hey, look, it's Bob Rae! I wonder if he's here to push Derek Lee under the bus. I guess we'll see. Hmm, he does give Lee a shout out for his "outstanding leadership" on this issue throughout the years. He takes issue with the contention that the House was demanding the documents be released publicly in their entirety. He thinks there is a misunderstanding on that very point by the government, although he's sure it is one driven by good, if misguided faith, and not a deliberate attempt to mislead. He notes that this is, in fact, a "pretty important question," and he endorses Lee's remarks on the letter from the justice department, which could indeed have a "chilling effect" on a potential witness. 

11:21
AM 
AM 
Bloc Whip Pierre Paquette notes that the reason why there was a delay between the return of parliament and the moving of these privilege motions was related to the similar delay between the announcement of Iacobucci's appointment and the release of the terms of reference. Did I not say that the failure to put the latter former immediately pushed pause on the privilege claim? Did I? Oh, I'm feeling smug. Meanwhile, Lukiwski has what is, admittedly, a lame argument -- the opposition members didn't actually propose a means by which national security would be protected in the original order, and more time is needed. More time! Less time! It's all about the timing, isn't it? Anyway, I'll give him credit for making the best of it; this appears to have taken the government by surprise - I suspect they were expecting the Liberals to huddle under their desks throughout the debate over the NDP and Bloc Quebecois motions, and the sudden appearance of Derek Lee on their television screens threw them somewhat for a loop. (Us too, to be honest.) 

11:27
AM 
AM 
Okay, that's it for the interventions -- there was another Liberal speaking in indirect, but clear endorsement of Lee's motion, and the speaker is up now. He won't rule right away -- possibly not even today, in fact -- but he pretty much dismisses Lukiwski's question on time; he was the one who asked Lee to hold off until the Iacobucci terms had been made public, so there's no question of timeliness in this case. He thanks everyone for their representations, which will help him enormously in his considerations, which will begin after he hears from the responsible ministers. No, I'm not sure when that will take place -- after Question Period would be my guess, but we'll see. I'm going to take a break from the running commentary for the moment, but as soon as we find out more about how this next bit of business is going to unfold. I'll update you. 

In the meantime, feel free to relive the high points of debate in the comments!
 
11:59 AM
 
The Bloc has forwarded to us the text of their motion, tabled in the House. It's essentially a French version of the NDP (Harris) motion. Although Bachand's raised a separate question of privilege per se, it appears the Bloc is seconding the NDP's take on the matter.


For all the latest developments, head over to the afternoon edition of PrivilegeWatch. 







Tags: blackberry jungle, derek lee, jack harris, most important debate of the last few decades, parliamentary supremacy, privilegewatch, who shall be master?