Afghan detainee docs: Crown privilege rules

On March 31st Minister of Justice Rob Nicholson presented, in lengthy, well-reasoned and well-documented, remarks the government's case in the Commons for its right, indeed duty, not to produce all documents as demanded in a House motion. Our major media outlets, shamefully, disgracefully, typically, totally failed to report the minister's action. The one exception I can find, the Globe and Mail, almost completely ignored the substance of the minister's case. Truly an awful performance all around. Politics and government are more than games; but one would be hard pressed to know that if one relied on those media (congratulations to David Akin of Canwest News for putting the remarks up at his blog).

Here are excerpts from what Mr Nicholson said, with the guts of the argument (towards the end) first for emphasis and clarity:

...

It is true that the House of Commons has significant powers and privileges that are necessary to support its independence and autonomy.

However, the Crown and the executive branch is also entrusted with powers and privileges, as well as responsibilities, for protecting the public interest, implementing the laws of Canada and defending the security of the nation.

In particular, as the Government of Canada has an obligation to protect certain information for reasons of national security, national defence, and foreign relations. Crown privilege, as part of the common law, recognizes that the Government has a duty to protect these and other public interests.

While the Member opposite may wish to invoke the idea of parliamentary supremacy to support his point, it must be remembered that the Crown is as much a constituent part of Parliament as is the House of Commons and the Senate. These parts together can act to define the powers of each through statute but the House alone cannot make law nor extend the scope of its privileges [emphasis added]...

Other important points:

...

The central issue before you [the Speaker] is whether parliamentary privilege gives the House an absolute and unqualified right to order the production of documents and to receive the documents, and whether any expression of views that it might not constitute a contempt of the House...

...while one might argue that in theory the House has absolute powers, Canadian and other commonwealth examples demonstrate that this has not been recognized in practice.

For example, Speaker Beaudoin observed in 1957 that “[n]o matter how ample its powers may be, there are certain documents to which the house is not entitled, and that is those a cabinet minister refuses to produce on his own responsibility.”

Similarly, in the United Kingdom, a Resolution on Ministerial Accountability was adopted unanimously by the House of Commons in March 1997, which acknowledged that Ministers may withhold information in accordance with access to information rules, reflecting the long-standing practice in that House...

Odgers’ Australian Senate Practice also states that while the Senate undoubtedly possesses a power to send for papers and records, “it is acknowledged that there is some information held by government which ought not to be disclosed. This principle is the basis of a postulated immunity from disclosure which was formerly known as crown privilege or executive privilege and is now usually known as public interest immunity [emphasis added]. While the Senate has not conceded that claims of public interest immunity by the executive are anything more than claims, and not established prerogatives, it has usually not sought to enforce demands for evidence or documents against a ministerial refusal to provide them but has adopted other remedies.”

In 1990, a Canadian Special Committee on the Review of the Canadian Security Intelligence Service Act and the Security Offences Act stated that “matters of national security are by convention the prerogative of the Crown, not Parliament. This perspective has been enhanced by the view that intelligence agencies need a high level of secrecy to be effective and that making Parliament knowledgeable about such matters may not only politicize affairs, but may actually endanger the state by weakening the effectiveness of its defences...

...on page 14 of Prime Minister Chrétien’s guide, published in June 2002, it stated:

“Officials have a duty and specific legal responsibility to hold in confidence information that may have come into their possession in the course of their duties. Therefore, when appearing before parliamentary committees, they are bound by these legal obligations, as well as an obligation to the Minister and to the government, not to disclose information that is confidential for reasons of national security or privacy, or because it consists of advice to Ministers.”

Prime Minister Martin’s guide, published in 2004, contains a virtually identical statement at page 20.And that same statement is made on page 18 of the current guide, Accountable Government.

This has never been challenged by the House of Commons...

...on December 10, 2009, a majority of this House voted in favour of the public disclosure of a very large number of documents that contain sensitive and confidential information. It did so despite repeated warnings from the government that disclosure of this information would harm Canada’s national security, international relations and national defence...

I would ask you, Mr. Speaker, and all members of the House, to recognize the obligations of the Government to protect our national interests, consistent with the traditions and practices of this place. Joseph Maingot recognizes this in his text on parliamentary privilege where he states: “By convention, a parliamentary committee will respect Crown privilege when invoked, at least in relation to matters of national and public security.”

It is worth noting that a 1999 report from a UK Joint Committee on Parliamentary Privilege sought to define examples of what would appropriately be considered contempt of the House. In relation to an order to produce papers, it stated that “without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee” could be considered contempt. I would emphasize the expression “without reasonable excuse”. As the Government has valid claims under Crown privilege to protect the public interest, I would submit that the Government has a “reasonable excuse” in this matter...

But our media can't handle a serious argument. Idjits. And making more and more of us that too.

By the way, let's have the Commons demand the CF's detailed plans for forthcoming operations at Kandahar.

Update: An acute observer has brought it to my attention that in fact CP's Joan Bryden did write a serious piece on the government's case. As my correspondent put it: "Which makes the fact that papers did not report it more egregious."