Deal Not Enough = Respects Parliament in Theory, Not in Practice = Bad Deal

While the original, apparently clear, deal was in final negotiation, I had this exchange:

EugeneForseyLiberal 5 weeks ago:
Parliament can call whomever it wants to advise it, SIRC, Ministry officials, Iaocobucci if so moved. But Parliament, Parliamentarians, must have the last word on what documents are made public, and how (summaries, etc.). Given good faith and political costs of unwise disclosure, perceived or real, the real risk is Parliamentarians are too cowardly, rather than too courageous. But that's their job, their OBLIGATION, as Milliken reminded them.

So however the committee is composed and run, when there is deadlock, those papers should be put aside until the end, when they call in the Speaker to break any deadlocks: he is also a Parliamentarian, but would be an independent outsider to the committee, his position as Speaker representing the trust all parties have in him as independent arbiter of Parliament as he was voted into his position by all parties. He would bring a fresh pair of eyes, trust, position, reputation and as the deciding vote in case of a deadlock, as a fellow Parliamentarian, Parliament's privileges would remain protected. Furthermore, as a Kingston descendant of Loyalists, naturally small-c conservative, a red tory really, his instincts and judgment are beyond reproach, even too conservative for my tastes.

But it's unlikely there would be many, if any conflicts, if all proceed with good faith. And it would be an odd bunch of MPs who decided to release documents despite the consensus advice of officials, including SIRC folk, who are used to call horse manure on government claims of necessary secrecy. These MPs, and Milliken, given the stakes, are not an odd bunch. They are very serious, and if anything, overly cautious and conservative, understandably, if sometimes wrongly, so.

Andrew Coyne 5 weeks ago:
Although Parliament may, in its wisdom, choose to delegate that authority. There is nothing wrong with MPs agreeing to let an impartial arbiter, eg Iacobucci, decide which docs to make public, as long as it is their decision to do so. They could even leave it to Iacobucci to decide which documents to show them, if they so chose, though I think that would be inadvisable.

EugeneForseyLiberal 5 weeks ago:
In theory, correct. However, if benchmarking, as Lee says, then question of precedent: if MPs/Parliament unwilling to trust in themselves and their own judgment on this, now, then when? And having once delegated authority, what are odds, given Canadian politics and society, that will not become the established norm? Next conflict, we'll skip straight to the delegation of authority to a sound chap, away from scrutiny, since "that's what we did last time, etc.". Finally, incoherent for parliamentarians to fight for Parliament's prerogatives, right to summon and see all papers & witnesses, etc., and then, having reaffirmed said rights, immediately delegate others to actually exercise them on Parliament's behalf. Parliamentarism in theory, but not in practice. Dangerous. That way leads to further Potemkin democracy, further Iacobucci gambits, in future.

Andrew Coyne 4 weeks ago:
Agreed on every count. Hence "inadvisable."

Understanding how difficult the situation was, we were more understanding than many of Parliament's similarly fervent defenders in my reaction to the apparent initial deal:

This is good news. No-one should demean it. Assuming good faith, which is all one can do, all the information will be out. How, whether in full, in full with redactions irrelevant to torture, or in summaries, will be be decided by three member panel, which will be agreed by Opposition and Govt. Each side nominates one member, and the two members pick a third? I'll be curious as to how the choice is made.

I would have preferred, ideally, to keep all decisions in MPs hands. But this keeps essential decisions in MPs hands: disclosure or non-disclosure of information. Panel is about the form, the MPs are about the function. Parliament has the power, reaffirmed.

Any further Govt hijinks, claiming delays in finding documents, etc., will just provoke an election over this. If the Cons didn't want an election over this now, and they didn't - make no mistake, from the PMO's point of view (though not Con caucus), this is a complete surrender - then one wouldn't expect they'd want one later. CAPP & CAPP protests scared them, believe me.

The Cons can read about UK news as well as anyone. They see it percolating in Canada. All it takes is Liberal and NDP MPs to form a plurality in the House, as in 2006, and the Cons are done. Building your anti-coalition campaign on anti-separatist basis cuts both ways: and if the coalition commands a plurality in the House without Bloc support? Then Cons are done. And they know it. Better be good boys, for a while.

As I observed the behaviour of the parties, my thinking evolved and feeling pessimistic, I admitted Detainee Doc Deal Critics Probably Right, EFL Probably Wrong.

However, there was a last push by many, and it seemed there had been an ever-so-slightly acceptable deal struck, in theory, though I agree with the NDP, in practice, given past CPC behaviour, it may prove otherwise, but at the end of the day, all honourable parliamentarians can do is play things straight and react as necessary. One could short-circuit the process and vote contempt and/or non-confidence right away, to provoke an election, which any who have read EFL will know, is not something this blog opposes, to put it mildly. But to do so would in a sense also make a mockery of parliament as the parties would have not acted in good faith, Opposition included, and the whole thing was just a pretext. Though, as previously noted, "Of course Eaves is completely right, it should never have had to come to this." But even though we all know this is a bad faith government, it IS the government, and one must either try to deal with it, honourably, knowing full well they probably won't reciprocate, or defeat it. But if one always skips straight to the defeating bit, we'll be in constant elections, which is fine by EFL, but perhaps not by many. So on balance, though in real terms there is a good chance the NDP's evaluation of how things would evolve in reality might well prove accurate, I was willing to give this last, late deal the benefit of the doubt, while waiting for the details.

I felt that if it was decent, then all parties would have played their parts, the NDP hard line allowing it to push the Bloc into a position as the honest broker which forced the LPC to push the CPC harder than they might otherwise, and get a minimally sufficient deal. Historically, pre-Layton, this was typically the NDP's productive position, and all the battles it lost allowed it to win all the wars it won. Though they never got (sufficient?) credit in their view, so since Layton they have gone the other way and almost always been willing to sell out all supposed principle to win battles, but, of course, inevitably, lose the wars (national daycare, Kelowna Accord, Afghan War vote in 2007, etc.), at least from the point of view of a principled social democrat - I know the NDP's unionists and wackos can see things differently. So all in all, from initial reports, I thought this might be a minimally decent deal.

But the deal in the Globe story is a bit less than initial reports. And that bit is significant to me. I was musing on this as I waited to judge the thing, and my judgment on the two outstanding points was and is exactly the same as Drapeau's:

Michel Drapeau, a retired Forces colonel and a professor of military law, said he thinks it’s important to keep secret memos for cabinet and deliberations by ministers in order to protect the power to give “unvarnished advice” to government.

But he said he thinks the panel of MPs should be allowed to see legal advice from government lawyers. The George W. Bush adminstration, he noted, waived the solicitor-client privilege to allow the release of controversial memos that advised what maltreatment was legally acceptable.

I quite agree. While technically within Parliament's prerogative, requiring that MPs from opposing parties can read through recent cabinet documents, usually secret for 25 years, could affect the political game so substantially, and probably unfairly, that one can live with approved independent third parties being the ones to review and disclose their information. But that solicitor-client privilege thing is a complete canard. All Attaran's points are well taken, but given this government, and the state of play, and a sense of fairness, the last sticking point for me is the claim of solicitor-client privilege keeping documents from MPs' eyes. Cabinet documents, one can understand - is it right that opponents should, through their research, also gain access to information about internal workings and dynamics of the governing party? They have the right, but it seems unfair, and third parties are acceptable. But claims of solicitor-client privilege are BS.

This deal, if we are extremely generous with regards to delays, obfuscation and probable continued bad faith, as we have been and remain, given reality, technically upholds Parliament's rights, just. Just.

But in EFL's judgment, we go back to the initial exchange with Coyne, and conclude with it, to explain why in our view it is a bad deal, bad enough that unless that solicitor-client aspect was modified to allow MPs access to those documents (as opposed to cabinet documents), Parliament should refuse it and vote contempt, were this indeed the Cons' last offer. It may be all fake anyway, and given delays and Fall election nothing will ever be seen, but that doesn't change the fact that it exists and should be done right, without creating a negative precedent. Indeed, given the material obstacles to its real accomplishment, all the more reason to fight that the deal, theoretically, be OK. But this deal, as it stands, is not OK. It should be improved to include solicitor-client documents, or the Opposition should vote contempt. May 10, 2010:

Coyne:
Although Parliament may, in its wisdom, choose to delegate that authority (...) though I think that would be inadvisable.

EugeneForseyLiberal:
In theory, correct. However, if benchmarking, as Lee says, then question of precedent: if MPs/Parliament unwilling to trust in themselves and their own judgment on this, now, then when? And having once delegated authority, what are odds, given Canadian politics and society, that will not become the established norm? Next conflict, we'll skip straight to the delegation of authority to a sound chap, away from scrutiny, since "that's what we did last time, etc.". Finally, incoherent for parliamentarians to fight for Parliament's prerogatives, right to summon and see all papers & witnesses, etc., and then, having reaffirmed said rights, immediately delegate others to actually exercise them on Parliament's behalf. Parliamentarism in theory, but not in practice. Dangerous. That way leads to further Potemkin democracy, further Iacobucci gambits, in future.

Andrew Coyne:
Agreed on every count. Hence "inadvisable."

PS. The final memorandum of understanding. See IV.7. As stated, Panel reviews cabinet confidences? OK. But Solicitor-client thing is BS. Not good enough.

PPS. When I said I could live with Panel pre-viewing regarding cabinet confidences, I was inexact in my commentary, as I was thinking specifically of cabinet minutes, and not of that great mass of documents that are, or can be, classified as cabinet documents (briefing notes, etc.). It is only understandable that the minutes be uniquely pre-viewed by the Panel, not the whole mass.