Procedure and House Affairs committee  Yes, it is.

Procedure and House Affairs committee  Who has that power? Well, no one, specifically, because as soon as the Clerk of the Privy Council determines that this or that document is confidential, it's all over from a judicial standpoint, given what is provided for under section 39 of the Canada Evidence Act. However, as far as parliamentary affairs are concerned, it's completely different: it is up to you to decide.

Procedure and House Affairs committee  Twenty years.

Procedure and House Affairs committee  I agree.

Procedure and House Affairs committee  The principle, I believe, is that the government has the choice of disclosing or not disclosing the documents. Even if it is a Cabinet confidence, the government can decide that it will or will not disclose documents to Parliament. In this case, the government elected to disclose some documents, but not others.

Procedure and House Affairs committee  That question deals with parliamentary relations—in this case, between the government and the Opposition parties. That is really a political issue. It is up to the government to decide whether it should seek a solution with the agreement of the House of Commons. The government sometimes decides not to seek a solution with the Opposition parties, and in other cases, it does decide to do it.

Procedure and House Affairs committee  Yes, but according to the Speaker, the government complied without actually explaining why it had not released all the documents and why some of them had not been provided. The Speaker indicated that an explanation had to be provided to the House of Commons, to members of Parliament.

Procedure and House Affairs committee  I think one of your witnesses later today, Mr. Cappe, might be able to answer this question better than I can. I'm not aware, historically, of anyone being prosecuted or subject to a penalty for breach of that oath. I would think the usual consequence is removal from cabinet for breach of that confidentiality.

Procedure and House Affairs committee  Historically, going back to when the king or queen was an active player in government, I understand historians would say that when the king announced a decision, it would be unbecoming and unseemly for there to be any evidence of dissent or divided opinion among the king's advisers, and it would undermine his authority for there to be made known that there was a division of opinion because then he would have chosen one side over the other.

Procedure and House Affairs committee  It is difficult, obviously. You can't say you can't tell someone what it is or you get into that situation we laugh about: “I can tell you what it is, but then I'm going to have to shoot you.” There's a trust element, and the legislation, in section 39, makes it clear that Parliament is saying that if the Clerk of the Privy Council so certifies, that's the end of the matter and the court cannot examine it.

Procedure and House Affairs committee  That's a very valid and important consideration. There is always, obviously, the national interest. I'm sure every member of this committee is cognizant of the national interest in the context of national security or national defence issues. Outside of that, what the national interest is for withholding information or disclosing it, as the case may be, may be the subject of considerable debate.

Procedure and House Affairs committee  Any questions coming before a committee where the government is in a minority and where the questions come from the opposition parties are more likely to prevail, obviously, when there's a minority government. These questions are likely not to prevail when there's a majority government.

Procedure and House Affairs committee  Mr. Chair, that's for the judgment of the committee to make, and it's not something on which I should exercise any judgment or venture any opinion. That would be presumptuous upon the task of the committee, in my view, respectfully.

Procedure and House Affairs committee  The obvious difference is, of course, before the legislation arrives, the House may never ask for that information. So when the legislation arrives, that's the occasion on which the House seeks the information, and it's understandable, I suppose, that it would do so and expect to receive the information from the government.

Procedure and House Affairs committee  First of all, I would never disagree with the Speaker's ruling, of course, but those are observations of fact by the Speaker, and I think they're correct that that is the case.