Paul Champ, the lawyer for Official Opposition Leader Tom Mulcair, made this argument on Friday, the second day of a Federal Court hearing into a legal dispute Parliamentary Budget Officer Kevin Page is waging with the Harper government over his office's mandate.
Mulcair is a respondent in the case, as an "interested party."
Champ said it was the Gomery Inquiry that recommended the creation of a the parliamentary budget officer's position because Parliament doesn't always work the way it should due to the power of the majority. The Gomery Inquiry, called over the sponsorship scandal in the Quebec wing of the federal Liberal Party, made several recommendations about how government transparency and accountability could be achieved.
Champ mentioned Green Party Leader Elizabeth May as the kind of member of Parliament the PBO could help. May's party has just one seat — hers — and she is not entitled to sit on any parliamentary committees. But Champ said, she is entitled to detailed fiscal information from Page about the impact of budget cuts or the cost of proposed government bills.
Page, appointed as the first budget officer by the Conservative government in 2006 as part of the Federal Accountability Act, is supposed to provide fiscal analysis for MPs so they can better understand the budgets presented to them. When Mulcair asked Page to assess the impact of cuts outlined in last spring's budget, Page said he could not get any information from several large government departments about job cuts, service cuts, or changing performance indicators and targets due to budget restraints they were facing.
Page himself was not present Thursday or Friday, but his lawyer, Joseph Magnet, argued that the statute that created Page's position gives him the legal right to ask government departments for documents and data about whether savings outlined in last spring's budget are achievable.
But lawyer Steven Chaplin, who is representing Speaker of the House of Commons Andrew Scheer, said Page's position was created by Parliament, so he ought to make his complaints to the House of Commons, through the Speaker, rather than going to the courts. Or, he argued, an MP who thought Page was being stymied could also raise the issue with the House.
Chaplin warned against the court becoming involved in what he called "purely parliamentary matters."
Chaplin reached back to the 17th century and the British Bill of Rights as an authority to bolster the concept that "the proceedings of Parliament ought not to be impeached or questioned in any court."
Chaplin argued that parliamentary privilege trumps ordinary law and even, in one case, human rights acts, backing up his contention that Page's complaints should be handled by the House of Commons and the Speaker, not by a court of law.
However, Justice Harrington intervened with a question, asking whether the parliamentary budget officer position might have been set up to protect an individual MP who may be requesting information that none of the other 307 MPs want.
'What's it all about, Alfie?'
The judge also wondered why Parliament created the PBO position by statute, or law, if, as Chaplin argued, the position was to be controlled and managed by Parliament. "What's it all about, Alfie?' the judge asked jokingly at one point.
A key issue in the case so far has been whether the Federal Court even has the jurisdiction to determine whether Page can access the information he seeks, or whether, as the government argues, he is an employee of Parliament and the issue he's raising is a political question, not a legal one.
Much of Page's case is built around the fact that his position was created by a law. His lawyer argued that only the courts can interpret laws. "It's fundamental to our Constitution," Magnet said.
Robert MacKinnon, representing the attorney general, said that the government's position is that "the reference brought by the parliamentary budget officer, because of the issues raised, more properly belong in the political arena, rather than the courts. He added, in an interview, that the questions Page was asking are "hypothetical and there's no real dispute to adjudicate."
Asked to give an example of a hypothetical question that Page had asked, he said, "The extent to which the achievement of savings outlined would result in fiscal consequences in the longer term."
The judge also wondered, at one point, whether the court has evidence that the government refused to give the budget watchdog the information he sought.
Much to mull over
Justice Harrington reserved his decision Friday, saying that he had much to mull over and ponder. It's not known how long he'll take to make a decision.
A refusal of the court to get involved would mean that future parliamentary budget officers would only be able to complain to Parliament if a government department refuses to hand over information.
Friday was Page's last day as budget watchdog. He's retiring and no replacement has been named. He's been a controversial, and in many circles, a very popular figure, seen by many as a crusader and a champion of freedom of information, although some government officials and MPs have suggested he pandered to the media.
The left-leaning online democracy advocacy group Leadnow has started a petition asking the Harper government to reinstate Page, even though he has said he always promised to serve only one five-year term. Leadnow said it has collected 15,000 online signatures.
On Friday, Green Party Leader May issued a statement, saying "The non-partisan work of the parliamentary budget office has been enormously helpful to me and to the Green Party, even before I was elected as an MP.
“Parliamentarians and citizens alike have had a crash course on how easy it is for taxpayers’ dollars to be spent without explanation, and how valued public services can be cut without scrutiny.”
Mobile-friendly version of Leslie MacKinnon's liveblog from court also available.