The Speaker’s Ruling on Afghan Detainee Documents: The Last Hurrah for Parliamentary Privilenge? Heather MacIvor* In the wake of Milliken’s ruling, the cabi- On 3 January 1642 the Commons sat, and net was unusually meek. There were no partisan claimed a breach of privilege which, deliber- denunciations of the speaker (who happens to ately or not, incited the king to attempt force. be a Liberal MP), and no trumped-up charges On 4 January [King Charles I] entered the of unconstitutional chicanery. Instead, justice Chamber, leaving the door open so that mem- minister Rob Nicholson announced that the bers could see the troops “making much of government would immediately begin talks their pistols.” ... He asked the Speaker if the with the three opposition parties. They reached five [rebel MPs] were present. Lenthall, on his an agreement in principle on May 14. The final knees, spoke. “May it please Your Majesty, I accord was signed a month later by only three have neither eyes to see, nor tongue to speak in this place, but as the House is pleased to direct of the party leaders, and approved by Speaker me, whose servant I am here; and I humbly beg Milliken despite substantial concessions by two 3 Your Majesty’s pardon that I cannot give any of the opposition parties. other answer than this to what Your Majesty is pleased to demand of me.”1 It is possible that the government accepted the April 27 ruling because there is no appeal On April 27, 2010, the speaker of the Canadian from the speaker’s ruling on a prima facie ques- House of Commons ruled on a question of par- tion of privilege.4 However, the most likely ex- liamentary privilege. Although most such rul- planation is simply that Milliken’s decision was ings pass unnoticed outside Parliament Hill, unassailably correct. He did what speakers in Peter Milliken’s address to the House attracted the British tradition are supposed to do: he vin- intense interest. He declared that the govern- dicated the collective privilege of Parliament ment of Prime Minister had against an exaggerated assertion of Crown pre- committed a prima facie breach of privilege by rogative. Having done so, he invited the execu- withholding documents pertaining to the han- tive and legislative branches to strike a balance dling of Afghan prisoners by Canadian soldiers between these two fundamental constitutional and officials from the Special Committee on principles. Milliken’s speech to the House lacked the Canadian Mission in Afghanistan. He also the drama of the confrontation between Speak- scolded both sides for refusing to cooperate, and er Lenthall and King Charles I, for which – giv- told them to work out a solution to the impasse. en the bloody events of the 1640s – we should If they failed to do so within two weeks, he be grateful.5 Then again, subsequent develop- would ask the House to decide whether the ex- ments suggest that Canada’s current MPs might ecutive branch was in .2 benefit from the bellicose spirit of their British A majority vote in favour could have brought predecessors. Nonetheless, Milliken’s ruling re- down the Harper government. mains important because it offers a distinctively Canadian answer to two longstanding political

Constitutional Forum constitutionnel 129 questions. First, should the legislative branch diers or civilians had known in advance that hold the upper hand over the executive branch, their detainees were at risk. Any such prior or vice versa? Second, does Crown prerogative knowledge would raise doubts about Canada’s trump the powers of Parliament just because compliance with international law. national security is invoked? Before consider- ing the practical impact of the ruling, I will Most of the officials who appeared before briefly outline the controversy at issue and the the committee refused to provide essential in- two contending constitutional principles which formation about