Parliament's Rights or Parliament's Duties?

[Edward Campbell]

Here, reproduced under the Fair Dealing provisions (§29) of the Copyright Act from today’s Globe and Mail is a very slightly off topic aspect of the detainee imbroglio:

http://www.theglobeandmail.com/news/politics/mps-join-forces-to-order-release-of-afghan-records/article1396446/

size=14pt]MPs join forces to order release of Afghan records[/size]
Rare motion orders Tories to release confidential documents on detainees, a scenario that could call rights of Parliament into question

Steven Chase and John Ibbitson

Ottawa

Friday, Dec. 11, 2009

Opposition parties have set the stage for a confrontation pitting the rights of Parliament against national security concerns by forcing through an extremely rare Commons motion ordering the Harper government to release confidential records on detainees captured in Afghanistan.
The Liberals, NDP and Bloc Québécois, which together outnumber the Harper Conservatives in Parliament, passed a motion by a 145-143 vote that seeks to compel the release of thousands of uncensored documents on Afghan prisoners.

If the Conservatives ignore the order, as expected, opposition parties could vote to find the government in contempt, sparking a battle that might result in the courts being asked to weigh the limits of parliamentary privilege.

Ministers or other MPs found in contempt could be admonished and embarrassed by being compelled to appear before the Bar of the House – the floor of the Commons – to face a grilling from MPs.

But this House order-to-produce is a rarely used power and one that is in potential conflict with laws – such as those concerning privacy and national security – that Parliament itself has passed.

The Commons adjourned Thursday night and the debate will continue outside the House until it reconvenes in January.

The Tories have been on the hot seat since Nov. 18, when diplomat Richard Colvin alleged that likely all detainees captured by Canadian soldiers were tortured after being transferred to Afghan hands in 2006 and early 2007. But the Conservatives have resisted all demands to release uncensored copies of the documents on detainees.

However, the opposition is now emboldened after stunning military revelations on Wednesday that a Canadian-captured detainee was abused in June, 2006, after being handed over to the Afghans – contrary to Tory government assurances that there was no evidence prisoners were tortured.
The Harper government responded to Mr. Colvin's testimony with a series of attacks on his credibility, an onslaught that this week brought a letter of protest from former ambassadors against the diplomat's treatment.

On Thursday, the number of former ambassadors putting their names to the letter climbed to 95. The open letter castigates Ottawa for dismissing Mr. Colvin's 2006 and 2007 torture warnings as irrelevant and suspect – a move ex-ambassadors fear casts a chill over the foreign service's ability to report frankly from abroad.

“I have never seen foreign-service officers come together like this before in my life,” ex-ambassador Gar Pardy, an organizer, said of the effort.

The list, now approaching 30 per cent of all retired Canadian ambassadors, in the last day signed up ex-heads of mission such as former Liberal cabinet minister Allan Rock and James Bartleman, who once served as Ontario's lieutenant-governor.

During a debate on the opposition motion to produce documents, Defence Minister Peter MacKay warned divulging confidential records would jeopardize Canada's troops by revealing things that “could be helpful to the enemy.”

But Liberal MP Ujjal Dosanjh said opposition parties are prepared to take steps to safeguard the documents and protect the information.

“The government can't act like a dictatorship where Parliament is not supreme any more,” the Liberal MP said.

The motion the opposition parties passed says they are relying on what they call the “undisputed privileges of Parliament under Canada's constitution, including the absolute power to require the government to produce uncensored documents when requested.”

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.”

Bloc Québécois Leader Gilles Duceppe vowed to use Parliament's power to force the government to release records.

“We will push this for as long as it is possible,” he said.

But Foreign Affairs Minister Lawrence Cannon maintained the government is bound to respect those parts of the Canada Evidence Act that safeguard national security.

“That's the law, and we abide by the law,” he said.

The dispute is reflected in duelling legal opinions between Parliament, whose officers are independent of the government, and the Justice Department, over whether Parliament itself is bound by the statutes – such as the evidence act – that it passes.

The Justice Department is arguing in a letter circulated by the Tories that there are legislated limits to what can be released under privacy and security laws that politicians must respect. But Robert Walsh, Commons law clerk, has countered that MPs in parliamentary committees have the power to read uncensored documents.

Canadian courts traditionally have been wary of wading into disputes over the rights and powers of Parliament. Unless a political resolution can be found, however, they may have no choice.

Separately, the opposition plans to keep the pressure on the Tories by restarting parliamentary hearings on the Colvin affair early in January, far before the House resumes sitting. And a military watchdog agency plans to resume separate hearings into the detainee issue next March. But critics fear that a new chair the Tories plan to appoint for the Military Police Complaints Commission will not be as keen to probe the matter as was the departing head, Peter Tinsley. His tenure ends today and the Tories have declined to extend it.

Now, my understanding – which may be deeply flawed – is that Canadian parliamentarians do not, automatically, get any security clearance just because they are elected. (Can one of our resident lawyers confirm or deny that for me, please?)

(Parenthetically: I suspect the US has some formal mechanism to provide (nearly?) the highest clearances to some (most? all?) legislators. When Canadian MPs are sworn in to the Privy Council, as ministers, they do have clearances for some information. Hasty security clearances are done at the behest of the PCO. Note: I am pretty nearly absolutely certain that, here in Canada, the highest security ‘clearances’ (there are levels above Top Secret) are rarely shared by more than a tiny handful of people and never with politicians or senior bureaucrats who never have a “need to know.” I will guarantee that a few decades ago it was normal for the CDS (and most admirals and generals) to have no ‘need to know’ about great masses of very, very highly classified stuff. I am pretty sure they were 99.99% disinterested, too.)

But this is important because parliament has enacted laws about security – some with pretty stiff penalties. Now parliamentarians demand that the government disobey parliament’s own laws. What fun.

I hope, in a slightly perverse way, that the Conservatives ‘surrender’ and provide the uncensored documents because then one of two things could happen:

1. The senior officials or military officer who actually sends the documents can be afrrested and charged with a very serious offence – releasing classified information to people who are not allowed to receive it. The resulting court case would, eventually, I think, tell parliamentarians that being elected still makes them nobodies – unless they are ministers; or

2. I am absolutely certain, Ujal Dosanjh will be proved wrong – someone, maybe a Bloquiste, maybe a Liberal, maybe a Dipper – they are all equally irresponsible – will leak the documents and Canada’s national security and global trustworthiness will be badly damaged and once again the inherent worthlessness of parliamentarians will be proven. It may then be possible to try some (several) parliamentarians with some pretty serious crimes and, once again, let the courts deal with a key issue. In either case the rules governing parliamentary privilege will be clarified.

As a follow up: just a few minutes ago, on CBC Radio's The Current stand-in host Linden MacIntyre said to Conservative MP Laurie Hawn (Parliamentary Secretary to the MND) something like "the opposition wants the uncensored documents so we can all see what happened." The media knows, with absolute certainty that whatever is given, in confidence, to parliamentarians WILL be leaked to the media.

Now we have two interesting, albeit contradictory opinions from two qualified observers, reproduced under the Fair Dealing provisions (§29) of the Copyright Act from today’s Globe and Mail web site:

http://www.theglobeandmail.com/blogs/brian-topp/a-fundamental-test-for-stephen-harper/article1397186/

[size=14pt] A fundamental test for Stephen Harper

Brian Topp

Friday, December 11, 2009

One of the great principles of English liberty, upon which our system of government is founded, is this: no parliament may bind a future parliament.

It therefore will not do for Prime Minister Stephen Harper and his cabinet to assert that the House of Commons cannot have the documents it demanded this week, because producing them might violate some law a predecessor parliament past long ago.

Parliament is supreme in our system of government, subject to the Charter of Rights. Which is not in our constitution to protect war criminals from justice, or ministers from scrutiny. The Prime Minister and his cabinet are accountable to the House of Commons. The House demanded yesterday that its own ministers table, unexpurgated, the documentary record relating to the abuse of enemy combatants in Afghanistan who fell into our country's power.

The ministry must now do this.

Some important constitutional issues arise from the Prime Minister's conduct a year ago, as I argued in this space earlier. But there is no exceptional circumstance here. The nation is not at risk of being controlled by the separatists and the socialists today. What we have here is a straightforward test of whether or not we are governed in a system of responsible government.

And so, whether or not this issue will be "a ballot question," this is a fundamental test of the character, principles, and judgement of Prime Minister Stephen Harper and his colleagues.

In 1996, Stephen Harper and Tom Flanagan wrote an article in Next Cityentitled "Our Benign Dictatorship" (you can find a copy here). This important article rewards a careful read on many issues.

But the issue today is this: do any of Mr. Harper's principles survive?

Or has he been so corrupted by his brief time in the executive suites of Ottawa that he has become the agent for the final victory of all the faults of our national government, discussed in that article?

Is his historic role to help reform our increasingly secretive, irresponsible, and undemocratic national institutions - as he claimed? Or the exact opposite?

---

Update My equally esteemed blogging colleague Norman Spector hasentered this discussion with what I will respectfully suggest is a straw man. He reports correctly that old laws are in force until replaced by new ones. And somehow suggests this means the government can defy a direct order from Parliament to surrender documents that Parliament requires in an inquiry.
I don't think so, colleague. The government can throw up procedural roadblocks of course. But Parliament can (through the slow working of its own machinery, including its right to vary existing law) require its own ministry to surrender documents it deems appropriate. Arguably Stockwell Day and his cabinet colleagues are in contempt of Parliament today.

And here is the second item, the Norman Spector blog, about which NDP insider Brian Topp wrote in his Update:

http://www.theglobeandmail.com/blogs/spector-vision/political-science-101/article1397512/

Political Science 101

Norman Spector

Friday, December 11, 2009

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?

---
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.

I repeat: this is an important matter. It is Constitutional – with a very big C rather than just political. It speaks directly to both parliament’s ancient and hard won rights and parliament’s equally ancient (but too oft’ forgotten) duties.

Maybe it will help to clarify both the rights and responsibilities of our elected leaders – relative to their sovereign and towards her servants, especially to the members of her Canadian Forces.

The issue is national security. But, clearly, the media, based on past performance, expects Ujal Dosanjh et al to swear to safeguard the documents and then, almost immediately, to break their solemn oaths and leak them. The government is right to refuse the HoC’s demand – I hope.

 

[MARS]

An editorial on the topic by Ezra Levant at The National Post

IDNUMBER  200912150135
PUBLICATION:  National Post
PAGE:  A20
DATE:  2009.12.15
SECTION:  Issues & Ideas
EDITION:  National
BYLINE:  Ezra Levant
SOURCE:  National Post
WORD COUNT:  856

--------------------------------------------------------------------------------

Tell us everything

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Should any group of back-bench MPs have the right to know every secret in Canada? Not just diplomatic and military secrets about Afghanistan, but any other secrets they might be curious about, from your tax returns to your medical records? And should MPs have the power to force people to disclose those secrets, even if that would break a law?

Those are not hypothetical questions. Parliament's senior lawyer, Robert Walsh, has made those demands in a flurry of letters he sent to the government last week. Walsh was writing on behalf of Ujjal Dosanjh, the former NDP premier who now sits as a Liberal MP. Dosanjh and other opposition MPs are outraged that they cannot see confidential information about the Afghanistan war, including about detained Taliban terrorists.

Canada's laws about secrets are clear: the Security of Information Act (the successor law to the Official Secrets Act) makes it illegal for a Canadian diplomat, soldier or spy to tell a state secret, even to a curious MP.

Part of it relates to the constitutional separation of powers in a democracy: The legislative branch passes the laws, the executive branch implements them, and the judiciary clarifies them if need be. Each branch checks the power of the others.

But there's a common-sense reason, too: Not all MPs can keep a secret. Just a few weeks ago, Dosanjh himself was caught publicly broadcasting his thoughts on Twitter from his BlackBerry while in a supposedly confidential committee meeting. No state secrets were spilled, but it shows the difference between a chatty MP and a professional diplomat, soldier or CSIS agent.

Dosanjh's minor indiscretion pales next to the 2007 incident of the NDP's Dawn Black, who revealed that Canada was in secret negotiations with the United Arab Emirates to get that country to send troops to Afghanistan. Black's exposure of those sensitive discussions caused the Emirates to backpedal.

And though it's traditional to call MPs "honourable members," it's worth remembering that there is no security clearance required to sit in Parliament -- not even a criminal-record check.

There are plenty of other reasons why merely being an MP shouldn't be enough to look at every secret in the country. Take Omar Alghabra, the Saudi-born former Liberal MP who publicly called for the abolition of certain anti-terrorism laws; or Borys Wrzesnewskyj, the Liberal MP who flew to Lebanon to meet with the terrorist group Hezbollah, and called for their decriminalization in Canada.

And then there's the case of Hakim Faqiryar, a former Liberal candidate who was part of Afghanistan's mujahedeen army before he immigrated to Canada. Among other radical statements, he publicly urged Muslims around the world to rise up against "unbelievers."

The subject matter doesn't have to be as dramatic as terrorism; should Gilles Duceppes really have unfettered access to Canada's contingency plans for a separation referendum?

The opposition says yes. In their letter to the Department of Justice last Friday, they demanded that MPs should have the power to compel anyone to spill the beans about anything, even if they "are under a general statutory obligation not to disclose the information." They say that while the rest of Canadians -- let's call them the little people -- have to obey privacy laws, MPs will "determine how the provisions [of those laws] apply" and exempt themselves if they choose.

On any given afternoon, a handful of backbenchers in a committee could simply order someone to reveal a confidential battle plan, the identity of a secret intelligence agent, or the private messages of a foreign diplomat.

That's nuts.

The opposition is arguing that they're lawmakers, so they should be able to add loopholes as they see fit. And they can -- if those loopholes win a vote three times in the full House of Commons, and then three times in the full Senate. But the opposition doesn't want to go to that trouble -- they want to be able to bend the rules on the fly.

They claim the doctrine of parliamentary privilege gives them that right, but that ancient privilege was designed as a shield to protect MPs from interference from other forces, such as a vindictive king. It was not intended as a sword, through which MPs could compel individuals to make forced disclosures in a political Star Chamber.

The final flourish in the opposition letter is their accusation that when the government insists military secrets be kept secret, it is making an "indirect attempt to intimidate government officials." How Orwellian: enforcing the Secrets Act is intimidation, but forcing people to divulge secrets to a group of MPs is not?

There may be room for debate about whether revealing any particular state secret would actually harm Canada. But the opposition MPs' demand is more than that: They do not believe in any secrets at all. Their letter can mean only one thing: They believe their partisan interests trump national security every time.

The opposition would turn MPs into omnipotent snoops, destroying privacy in every field from military affairs to international trade to criminal convictions.

The Parliamentary Press Gallery loves it, for obvious reasons. But the rest of us should be very scared.

- Ezra Levant blogs at www.ezralevant.com.

 

[Greymatters]

[size=10pt]  Now, my understanding – which may be deeply flawed – is that Canadian parliamentarians do not, automatically, get any security clearance just because they are elected. (Can one of our resident lawyers confirm or deny that for me, please?)

AFAIK, there is no paperwork guaranteeing an elected member a specific level of security clearance.  However, there is an expectation that once they are elected they are entitled to a specific level of clearance.  Unfortunately, once elected to a high enough position (i.e. Prime Minister) or appointed to a senior enough position (i.e. Minister in charge of a portfolio) the provision of a high security clearance required for doing the job is pretty much automatic regardless of past transgressions or security risks...

 

[Osotogari]

The problem is that there are typical politicians who are naive opportunists, and then there are people like Ujal Dosanj who are in their own category.  This is very ironic that in doing what he is doing he is providing aid to one strain of terrorist when, a few years ago, he was left for dead by another strain of terrorist after trying to expose their activities.

A few years ago I met a military policeman who used to work in the part of Ottowa that assesses security clearance applications.  He told me of an MP who wanted a staff member cleared and in good conscience, based on the criteria, could not do it.  I believe the staffer in question had family connections to a terrorist group that was illegal in every western country except Canada at the time.  Because the staffer fit the diversity image at the time, it ended up getting pushed through over his objections.

The point is that getting yourself elected, certainly in many cases by harnessing the voting power of an ethnic enclave in your riding that often blatantly provides support for terrorist groups, should not on its own right qualify a member of parliament or any other elected official a security clearance.  It certainly shouldn't if the stated objective of your party is that of the Bloc Quebecois. 

 

[dapaterson]

There are stories floating around Ottawa that the p'tit gars from Shawinigan overrode RCMP objections to put one Mr Gagliano into his Cabinet - seems the RCMP dossier on Mr G and his associates suggested a significant level of risk...

 

[Brad Sallows]

This is the worst sort of issue, in which one group can properly claim to be upholding a high ethical standard when really all they are looking for is a political advantage, and hang the cost to the country.  I regret that the only response I care to serve up to the opposition parties is "Shut the f*ck up and sit down".

 

[Rifleman62]

The National Post Editorial 16 Dec 09
http://digital.nationalpost.com/epaper/viewer.aspx

The debate concerning the alleged mistreatment of prisoners handed over by Canadian troops to local authorities in Afghanistan seems important, even noble, on the face of it. But as is often the case when moral issues turn into rabid political feuds, the moral crusaders have lost sight of the big picture: Their efforts threaten to undermine our entire military presence in Afghanistan, and thereby strengthen the Taliban, which has a record of “mistreating” Afghans on a far larger scale.
In the opposition’s relentless gotcha campaign against the government, in other words, we are witnessing a perfect example of the moral great becoming the enemy of the moral good.
Needless to say, no one in this country would approve of systematic torture in any context. So the allegations of diplomat Richard Colvin, who claimed that detainees handed over to Afghan authorities were mistreated, required close scrutiny.
In the face of Mr. Colvin’s bombshell, the government insisted, improbably, that no one was ever abused. But a subsequent revelation proved that was not the case: At least one person was manhandled (though that took place three years ago, and the unfortunate soul was rescued by Canadian troops). Other developments also suggested that the government’s case was not quite as airtight as Defence Minister Peter MacKay insisted. As a result, the three opposition parties entered a state of unseemly delirium, reinforcing the impression that their primary concern wasn’t the human beings at risk in Afghan prisons, but rather the chance to skewer Stephen Harper’s party.
On the narrow question of whether any Afghan detainees were mistreated, the opposition is probably right: In a vicious place such as Afghanistan, it would be quite shocking if some detainees who’d passed through Canadian hands had not been mistreated. And the government would be well-served to admit that rather obvious fact. But the larger issue that concerns us more is the humanitarian hypocrisy at play in the opposition ranks. Simply put: If all these Canadian opposition politicians are so outraged by a single incident of proven prisoner abuse, why are they not screaming about the expected withdrawal of Canadian troops at the end of next year — at which point thousands, and perhaps millions, of Afghans will become vulnerable to far worse abuse at the hands of the Taliban.
Jack Layton is a case in point. The NDP leader said recently that “this is not the right mission for Canada” and that we should withdraw our battlegroup by February. Yet he is also leading the charge to get to the bottom of the detainee-abuse quasi-scandal: “It’s very important that we take control of this here in Canada because if we do not, then we’re going to find that international bodies are going to start asking questions and conducting their own investigations if we don’t take hold of that responsibility here.”
It is a peculiar neurosis of the modern left that it seems more concerned with the prospect of censure by international do-gooders than it is with the prospect of a whole nation being dragged into Islamist despotism by a Taliban regime whose “mistreatment” of “detainees” in the pre-9/11 period took the form of hanging them from soccer goals, cutting off their extremities and letting them bleed to death. Perhaps those who posture on the side of angels might want to focus more on ensuring that such spectacles do not repeat themselves — rather than trying to rack up points in Question Period.

 

[Dennis Ruhl]

I can't believe the courts could have any jurisdiction unless a law was passed by both the House of Commons and the Senate and signed by the GG.  I believe it would be up to the House of Commons to enforce its own rules by whatever methods were available. They do have the option of bringing down the government any time they wish which may be the only course of action that would work.

 

[Greymatters]

A few years ago I met a military policeman who used to work in the part of Ottowa that assesses security clearance applications.  He told me of an MP who wanted a staff member cleared and in good conscience, based on the criteria, could not do it.  I believe the staffer in question had family connections to a terrorist group that was illegal in every western country except Canada at the time.  Because the staffer fit the diversity image at the time, it ended up getting pushed through over his objections.

I heard this same story as well, but there weren't any facts provided to support if it was based on a real incident...

 

[Edward Campbell]

I don't want to start another new thread and I think this is related enough, so ...

This, reproducer under the Fair Dealing provisions (§29) of the Copyright Act from today’s Ottawa Citizen, is news of a proposal I fully endorse:

http://www.ottawacitizen.com/news/Rein+amoral+political+aides+with+code+conduct+government+urged/2568225/story.html

Code of conduct sought for ‘amoral’ political aides
Ministerial staffers should not be allowed to give orders to public servants: experts

BY KATHRYN MAY, THE OTTAWA CITIZEN

FEBRUARY 16, 2010

OTTAWA — Some of Canada’s most-respected public policy experts say it is time to rein in the hundreds of assistants to cabinet ministers who roam Parliament Hill with no training and no accountability to anyone but their political bosses.

Among the suggestions for these aides are education in how government works and a code of conduct that forbids them from giving orders to bureaucrats and makes ministers responsible for their staff’s actions.

A political aide to a former Public Works minister who blocked the release of a sensitive report under the Access to Information Act prompted the outrage and resurrected calls for a code of conduct.

“A code would help dispel the image of political staff as amoral political warriors and put exempt staff on an equal footing with the public service,” said Thomas Axworthy in a study for the Centre for the Study of Democracy.

Axworthy, who was a principal secretary to Pierre Trudeau, argues the incident is symptomatic of an accountability crisis that’s crippling the federal government, despite the passage of the Harper government’s much trumpeted Federal Accountability Act more than three years ago.

In his report on the sponsorship scandal, Justice John Gomery singled out ministerial aides for scrutiny and said their roles should be clarified in a code and the jobs professionalized. Gomery’s proposals were never implemented. In late 2008, there were more than 600 ministerial aides working for the Prime Minister’s Office, ministers and secretaries of state.

“It’s time to define the role of exempt staff and impose some prescription on what they do and how they do it,” said Donald Savoie, the University of Moncton professor who headed Gomery’s research team.

“Government has become too complex, especially with access to information. We need to get a handle on them so they aren’t loose cannons flying around issuing orders without someone living with the consequences. It’s not the public service’s fault. I think they are the victims.”

In the recent incident, bureaucrats were set to release a report on the performance of the government’s real estate portfolio to the Canadian Press when Sebastien Togneri, an aide to then Public Works Minister Christian Paradis, e-mailed public servants asking them to block the release. The department eventually turned over a redacted version of the report, nearly three months after the legal deadline to do so.

What has surprised experts is that Paradis didn’t reprimand, fire or sanction Togneri for meddling in the bureaucracy’s job. Nor did Paradis himself take responsibility and offer to resign. In fact, the minister distanced himself from his aide’s actions, claiming he knew nothing about it, and then lauded him as an employee with “exemplary parliamentary skills” that he wanted to keep in his new job at Natural Resources.

“No minister should be able to offload and say that is my staff who did that so you can’t blame me,” said Axworthy.

Some say the issue is further complicated by a growing trend in the Harper government of ministerial staffers whose first loyalty is to the PMO rather than their ministers. In Canada’s system, ministers are responsible and accountable for the actions of their staff. Political staffers aren’t supposed to direct the public service — unless ordered by the minister.

Gomery drove that home when he concluded former prime minister Jean Chrétien bore responsibility for the sponsorship scandal because his chief of staff meddled with the bureaucracy.

Officials in the Prime Minister Harper’s office, realizing the seriousness of Togneri’s actions, directed that political staffers should not interfere with access to information requests. Canada’s Information Commissioner has also been called in to investigate.

“I’ll give the prime minister credit for that,” said Savoie. “But ministers can’t escape the reality that they are responsible and accountable for their staff. The public service should never be in a position where respecting an act of Parliament should require them to show an undue level of courage.”

Liane Benoit, who prepared a study on political staffers for the Gomery commission, said the incident sets a new precedent in the growing “plausible deniability” that ministers have used to duck responsibility over the past 20 years.

She finds it worrisome that aides are fired or resign for political embarrassment, such as the loss of a briefing book and tape recording that cost now Labour Minister Lisa Raitt’s press secretary her job, but there is no sanction when aides overstep their authority and give directions to bureaucrats who are carrying out a law.

“What’s so astounding is that the minister is defending the staffer while acknowledging an error was made and that’s a scary precedent,” said Benoit. “These staffers wield tremendous power in the name of ministers and giving instructions to bureaucrats is not supposed to happen.”

The relationship has always been uneasy.

Political aides see public servants as plodding and obstructionist. The Harper government has also never made a secret of its distrust of the bureaucracy and politicians rely on loyal staffers to keep an eye on the public service.

Bureaucrats see aides as too aggressive, partisan and in a job that exceeds their judgment, experience and training. A recent Centre for the Study of Democracy survey of public servants who graduated from Queen’s University’s public administration program found 60 per cent of them felt they don’t have the training to deal with the demands of hyper-partisans; 53 per cent felt political staffers weren’t capable or had enough training for their jobs and 51 per cent said their organizations are not free from political interference.

Ministers hire staff under the Public Service Employment Act and manage their offices by Treasury Board rules, but aides are “exempt” from normal hiring rules for public servants. They have no job security and are subject to the Conflict of Interest and Lobbying Acts.

“We have nothing more than an ad hoc system of someone, who worked in the riding or was a friend of friend, is suddenly brought into a minister’s office after a campaign.”

Axworthy also said political staffers are “assistants,” not decision-makers, so lofty titles like chief of staff should be scrapped because they imply an “executive authority” they don’t — and shouldn’t — possess.

© Copyright (c) The Ottawa Citizen

In my last military job – as the director of a small, specialized staff branch in Ottawa, and in my brief ‘second career’ – as manager of a national, technical advisory board, I had dealings with these creatures – in DND and in other departments. They may see/have seen us (broadly ‘us’ includes the military and the public service) as “plodding and obstructionist” and ‘we’ (broadly, again) may/did see them as “aggressive, partisan and in a job that exceeds their judgment, experience and training.” The difference in perception was that, at the end of any process, I was accountable – all the way up (and down) the chain - for every decision/judgment I made, while the ministerial aid had a ‘free ride’ and could not be called to account. All we could, and often did, do was to tell them to take a flying leap and come back with their boss if they didn’t like the guidance. Only once, after giving such forceful guidance to a young, barely pubescent, aid did I get a call from the minister’s chief of staff telling me that the direction was, indeed from the minister’s office and it was important – in fact, as I told the chief of staff, it (the direction) was something we did, routinely, anyway and I objected to being reminded of my duty by a snotty nosed kid. The chief of staff and I had a friendly drink after whatever activity involving the minister was, successfully, completed. (It wasn’t the MND, by the way, even though I was still serving.)

I do not object to the term ‘chief of staff.’ Ministers have political staffs and one person is the chief so it’s fair to call her/him that. I object to the minister’s chief of staff or subordinate staffers getting involved in files that are being worked on below assistant deputy minister (three star) level except to provide information – which may include the minister’s desires. I would, always, factor all relevant information into my appreciation of the situation and, given the option, I always preferred to recommend what a minister wanted to hear. I preferred that route but it wasn’t always open to me and I always answered for my judgment calls, recommendations and decisions, especially those that annoyed a minister.

As a senior 'servant' I never objected to answering to a minister and taking my lashes when awarded (and they sometimes were), but I refused to take orders from unelected, unqualified staffers who, usually, did not really understand their minister's 'wants' and needs.'

 

[Edward Campbell]

And here, reproduced under the Fair Dealing provisions (§29) of the Copyright Act from the Globe and Mail web site, is another example:

http://www.theglobeandmail.com/blogs/bureau-blog/top-adviser-leaves-bev-odas-office/article1470147/

Top adviser leaves Bev Oda's office

February 16, 2010

Steven Chase

A Conservative political adviser caught up in the fracas between the Harper government and aid groups has left his job at CIDA minister Bev Oda’s office.

Keith Fountain, who served as policy director for Ms. Oda, the Minister of International Co-operation, no longer works for her, a spokesman said today.

“He moved on,” Jean-Luc Benoit, Ms. Oda’s director of communications, said of Mr. Fountain.
Aid groups have alleged recently that the Conservative administration is casting a chill over advocacy they undertake, saying they’re getting hints that Ottawa dislikes the stands they take on issues or their criticism of government policy.

Last week, an official with a mainstream non-governmental group fingered Mr. Fountain as a example of what they are worried about.

The official, who did not want to be identified out of concern it might jeopardize their group’s funding, told The Globe and Mail last week that the senior Conservative aide had warned them against such activities.

According to the NGO official, Mr. Fountain gave them a verbal warning that the organization’s policy positions were under scrutiny: “Be careful about your advocacy.”

But today Ms. Oda’s office denied Mr. Fountain’s departure had anything to do with The Globe and Mail article or the allegation.

“Let’s kill that rumour right now,” Mr. Benoit said.

He nevertheless refused to explain why Mr. Fountain left Ms. Oda’s office. “We don’t discuss staffing issues publicly.”

Fears among NGOs have been amplified by the government’s move to reject a $7-million funding request from Kairos, an aid organization backed by a coalition of churches.

Immigration Minister Jason Kenney said publicly that Kairos was de-funded because it supported a boycott campaign against Israel. (Kairos insists it doesn’t support a boycott.) The government later backtracked and said the agency’s funding was turned down because it did not fall in line with CIDA’s new areas of focus.

I had some experience of this sort, too, when I managed that advisory board which represented, mostly, the private sector and a few national and local government agencies. Ministerial aids let me know that their ministers ‘wanted’ a technical result that matched the minister’s political wishes. I always responded that I offered the considered advice of the national technical experts – my job being to consolidate it into one coherent document which aimed to advise officials, not the minister, per se. Officials, directors general, assistant deputy minister and deputies, I reminded aides, were able to accept or reject our recommendations but ‘we’ were not about to ‘situate the appreciation’ for anyone. There were, always, millions, sometimes billions of dollars at stake when these recommendations for government standards and regulations were made. Our experts answered to a higher power: shareholders. I never ‘lost’ a discussion with any ministerial aid in that job – not even when I said, once, “F__k off! Rude message follows!”

 

[Edward Campbell]

Sorry to monopolize this page, but: Here, reproduced under the Fair Dealing provisions (§29) of the Copyright Act from today’s Globe and Mail web site, is more:

http://www.theglobeandmail.com/blogs/bureau-blog/political-staff-know-rules-of-engagement-pmo-says/article1470886/

Political staff know rules of engagement, PMO says

Jane Taber

Wednesday, February 17th 2010

1. No one is running amok? Stephen Harper’s office is fighting back against allegations that its political staffers are roaming Parliament Hill unfettered, bossing bureaucrats around and lacking ethics.

The PMO defence of staffers is contained in an internal memo, “Rules for political staff members,” issued by the Prime Minister’s Office to Tory MPs and supporters yesterday.
It comes after a report in the Ottawa Citizen accusing the usually young and inexperienced assistants to cabinet ministers of bossing around public servants for partisan purposes.

“An article in the Ottawa Citizen incorrectly states that our Government lacks ethical rules for political staff members,” the memo says. “In fact, we were the first to legislate ethical rules for the political staff members, through the Conflict of Interest Act.”

The Citizen story canvasses some of Canada's most-respected public policy experts who say “it is time to rein in the hundreds of assistants to cabinet ministers who roam Parliament Hill with no training and no accountability to anyone but their political bosses.”

It adds: “Among the suggestions for these aides are education in how government works and a code of conduct that forbids them from giving orders to bureaucrats and makes ministers responsible for their staff's actions.”

But Harper strategists are having none of that, arguing the report also “claims, falsely,” that there are no rules governing the conduct of these political staffers.

The PMO memo says a condition of employment requires political staff to comply with a rule saying they “do not have the authority to give direction to public servants.” Political staffers can “ask for information or transmit the Minister’s instructions, normally through the deputy minister.”

Clearly, the assistant to former Public Works minister Christian Paradis who blocked the release of a key document under the Access to Information Act didn’t know about that rule. Rather, he just went ahead himself, emailing bureaucrats telling them to "unrelease" the sensitive report on government real estate.

It is this incident that is provoking the outrage among public-policy experts.

The PMO memo comes as relations are turning sour between the government and its public servants. The Globe is reporting today that bureaucrats are preparing for a battle with the Conservatives over their pensions.

There have also been concerns over the treatment of senior diplomat Richard Colvin who is the principal witness at the special committee investigating the Afghan detainee controversy.

Here is the key bit: ‘political staff “do not have the authority to give direction to public servants.” [They] “ask for information or transmit the Minister’s instructions, normally through the deputy minister.”’ In the proper order of things the political chief of staff deals with the DM, who can fight back – bypassing the minister if (s)he feels it necessary and going, with the Clerk, directly to the PM to have ministerial direction amended or cancelled. That’s why most political chiefs of staff use their access and power sparingly and why some, but not too many, I think, low level staffers get frustrated and want to impose political direction lower down in the bureaucracy, at director general and director level. The younger, lower level political staff are, often, highly partisan true believers who do see the ‘service’ as either too conservative or too Liberal.

(In my, personal, experience, much (but not most) of the ‘service’ is liberal and, about equally, Bloc, Conservative, Green, Liberal, New Democrat or <gasp> Inependant, which might also mean disinterested.)

 

[Kirkhill]

This deserves a bump and Andrew Coyne seems as likely a bumper as any. I seldom read him but occasionally...

Perhaps it’s time to get serious. The election of a new Speaker could be the occasion, if the House chose, for a renewal of Parliament’s place at the heart of our democracy. The Speaker could take the lead – to restore order to the House, by restoring its agency.

Take Question Period. Part of what makes QP such stale offal is the sense that the whole thing has been scripted in advance. Individual MPs may be asking the questions, but only in the sense that a ventriloquist’s dummy appears to move its mouth. It is the party brass that dictate the words.

And what ensures this MP will ask that question when told? Because the Speaker is obliged, when calling upon the next questioner, to consult a list drawn up for him by – you guessed it – the party brass. Obliged? Well, no. That is not how it is done in the United Kingdom, for example. There, it is the Speaker who decides who asks the next question, based simply on who “catches his eye.” A Canadian Speaker could assert the same prerogative, just as he could assert the right to decide who gets to make members’ statements.

In the same spirit the Speaker could be given the power, as he has in the U.K., to decide when debate has gone on long enough, rather than leaving this to the unilateral (and hardly disinterested) discretion of the government. The House, rather than the government, could assume the power to decide such matters as when to prorogue, and when to dissolve itself. Party caucuses could decide to elect their own committee representatives, rather than leaving this, too, to the party brass.

All these and more are within the power of MPs to bring about, if only they could summon the will to do so. Can anyone doubt that if they did, decorum would improve – that if MPs had adult responsibilities, they would begin to behave like adults?

That’s what really ails the Commons: the lack of decorum is merely a symptom. In this regard, it is of less interest to know how the new Speaker intends to referee between the House’s warring parties, than how he will represent the House as a whole in its dealings with the executive.

That’s why he’s called the Speaker. It was to the king that early Speakers “spoke” – most memorably on the occasion of Charles I’s historically ill-advised visit. “May it please Your Majesty, I have neither eyes to see, nor tongue to speak in this place, but as the House is pleased to direct me,” Speaker William Lenthall replied, to the king’s demand to know the whereabouts of some particularly impertinent MPs.

Opinion: Parliament’s problem isn’t a lack of decorum. It’s the House’s lack of power

A new Speaker of the House of Commons isn’t likely to cure Parliament’s biggest problem, of which incivility is only a symptom: its impotence in representing constituents or holding government to account

www.theglobeandmail.com

 

[Kirkhill]

If you take that as history writes it, the Prime Minister, the King's mouthpiece, serves at the pleasure of the Speaker. He has the power to eject the Prime Minister and call a vote on whether or not that Member of Parliament still enjoys the confidence of the House and even whether or not he will retain his parliamentary privileges and be allowed to continue sitting in the House.

For examples recently look to David Cameron, Theresa May, Boris Johnson, Liz Truss and Rishi Sunak 2016-2023.
The UK changed horses 5 times in the time that we have had one PM.
They have had two elections (2017 and 2019)
We have had three (2015, 2019 and 2021)

 

[lenaitch]

The basis of much of the Speaker's authority is the the Standing Orders of the House of Commons. Those rules are written (and rewritten) by the inmates themselves. Beyond that, so much of the parliamentary process is based on 'practice and convention'.

 

[rmc_wannabe]

Hopefully the new speaker is read in on their roles and responsibilities, mainly the bit about remaining neutral...