Alex Ruff Conservative
Introduced as a private member’s bill. (These don’t often become law.)
Report stage (House), as of Dec. 9, 2024
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This is from the published bill.
This enactment amends the Parliament of Canada Act to specify that a member of the Senate or the House of Commons who applies for a secret security clearance from the Government of Canada is, for the purposes of the consideration of their application, deemed to need access to the information in respect of which the application is made.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
It would still be the government's processes and parameters that would apply. You have to understand that Bill C‑377 is not an exercise of the privilege of parliamentarians in the House of Commons. It is really about access to information that belongs to the government.
Mona Fortier Liberal Ottawa—Vanier, ON
In your opinion, if Bill C‑377 were enacted, what organization would be responsible for doing the security checks of members and holding the authorizations?
Mona Fortier Liberal Ottawa—Vanier, ON
In your opinion, are there already processes or mechanisms that would allow parliamentarians to get the same level of access as what is proposed in Bill C‑377?
Bill C‑377 would mean that members who so request would be able to follow the process provided to get a security clearance. There is a clear saving provision in the bill, to avoid weakening the privileges.
The purpose of the bill is neither to claim nor to create new privileges. It would therefore not allow members to get more rights to access information, but it would allow them to get the necessary security clearance for accessing the information the government might disclose to them. It would still be the government that made these decisions, because it is still information that belongs to the government.
Mona Fortier Liberal Ottawa—Vanier, ON
Does Bill C‑377 as it now stands have an impact on those privileges?
Mona Fortier Liberal Ottawa—Vanier, ON
Thank you, Mr. Chair.
Thank you for being here today, Mr. Bédard.
I think, thanks to your expertise, we are finally able to understand your interpretation of Bill C‑377 and the repercussions it will have if it is passed as it stands.
My questions will relate to your expertise and experience. If you have any suggestions to make to clarify anything for members of the committee, we are always prepared to consider them.
My first question relates to parliamentary privilege.
What can you tell us about the relationship between this privilege and the right to information?
Do parliamentarians have an inherent right to information?
Michel Bédard Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chair, members of the committee, thank you for your invitation to appear today regarding Bill C‑377, An Act to amend the Parliament of Canada Act (need to know), which has been referred to the committee after second reading in the House.
As you said, Mr. Chair, I am joined today by Marie‑Sophie Gauthier, senior legal counsel and acting team leader in my office.
We hope our testimony today will assist the committee in its consideration of this legislative initiative.
My office provides legal services and legislative drafting services to the House of Commons, its committees, members of Parliament, the Board of Internal Economy and the House administration. Our legislative drafting services include the drafting of private members’ bills, such as Bill C-377, and motions and amendments at committee and report stages. Our legislative drafting services are provided confidentially to members of Parliament, and the information I will provide today to the committee will factor in these expectations with regard to my office.
Bill C-377 proposes to amend the Parliament of Canada Act so that members of Parliament and senators who apply for a security clearance from the Government of Canada are, for the purposes of the consideration of their application, deemed to need access to the information in respect for which the application is made.
Access to information of the Government of Canada that is either protected or classified is a two-step process. First, there must be a need or justification to initiate the security screening process, which will result in the individual receiving a reliability status for protected information or a security clearance for classified information. Such a need or justification is traditionally identified by a government department or agency.
Second, there is the need-to-know principle, which restricts access to sensitive information to those whose duties and functions necessitate access to the information. A person is not entitled to access information classified at a certain level merely because they have the appropriate level of classification or clearance. They need to know the information as part of their functions, regardless of their clearance. I note that the unauthorized releasing of classified information may lead to legal consequences such as prosecution under the Security of Information Act.
A distinction must be made between access to protected or classified information on a need-to-know basis by individuals holding the appropriate level of clearance and the House of Commons parliamentary privilege to send for persons and records.
This power, generally exercised by committees, supports the role of the House as the grand inquest of the nation and is essential to the proper exercise of the House’s right to institute and conduct inquiries.
The power to send for persons and records would be unaffected by Bill C‑377. Moreover, new proposed subsection 13.1(2) of the Parliament of Canada Act would make this unambiguously clear by stating that the proposal is not to be construed as a way of “limiting in any way the powers, privileges, rights and immunities of the Senate or the House of Commons or their members.”
The privilege of freedom of speech would also be untouched by Bill C‑377 and members speaking in the House and committees would continue to benefit from a criminal and civil immunity for their words spoken as part of parliamentary proceedings.
That said, this immunity does not apply outside of parliamentary proceedings and members would be, as any other citizens, amenable before courts of law for words spoken or communication outside the House and committees.
This concludes our opening remarks. We would be happy to answer questions.
The Chair Liberal Ben Carr
Good morning colleagues.
Good morning, everyone.
I hope you had a lovely few days in the Outaouais.
Welcome to meeting number 126 of the Standing Committee on Procedure and House Affairs.
Today we are continuing our consideration of Bill C‑377, An Act to amend the Parliament of Canada Act (need to know).
I just have a friendly reminder for witnesses and colleagues. Please make sure that your earpiece, when not in use, is placed on the sticker in front of you to protect the safety and well-being of our translators, who work so hard on our behalf.
With us today, we have two witnesses: Michel Bédard, law clerk and parliamentary counsel; and Marie-Sophie Gauthier, senior legal counsel and team leader of legal services.
Welcome.
Mr. Bédard, I'm not sure if you intend to split your time or if you'll be speaking on your own. However, we'll give you the five minutes to use, and then we'll go into our regular line of questioning. Once we hit the hour, we will suspend briefly in order to transition over to our second hour.
It looks like we're ready to go.
Mr. Bédard, the floor is yours.
Marie-Hélène Gaudreau Bloc Laurentides—Labelle, QC
Mr. Chair, although I have a lot to say on this topic, I will stick to the matter before us today.
What we're trying to get is the relevant information that will help ensure our national security. I've noticed that, over the past six years, obstruction has taken place. As you said, it's partisan obstruction. On one hand, there is an attempt to hide information, possibly out of fear of shedding light on a situation, and on the other, there is Bill C‑377, which is an attempt to know everything.
I heard you say that the current organization needs more teeth. The executive branch puts out a report, which I didn't even know about. That means there's a lot of information available to us, as parliamentarians.
In the current situation, even if a bill like this one is passed, there will be changes. The roles will change. The goal is to regain the confidence of our democratic society.
I'd like to hear your thoughts on that before deciding whether or not to support the bill.
Marie-Hélène Gaudreau Bloc Laurentides—Labelle, QC
When I said that Bill C‑377 was useless, according to you, I was referring to the fact that you called it “useless”. What you really meant was unnecessary. You rephrased it clearly. No retaliation, please.
As I understand it, the government has repeatedly tried to protect information, parliamentarians want to know the information, and there is a committee of parliamentarians—which you helped set up—but it doesn't have sufficient analysis powers.
That is why you think Bill C‑377 is certainly not necessary if we focus on the information that's already available.
Do I have that right?
Marie-Hélène Gaudreau Bloc Laurentides—Labelle, QC
Thank you, Mr. Chair.
Mr. Wark, I want to follow up on your last comment.
As you just mentioned, a significant gap exists between members of Parliament and the intelligence agencies when it comes to access to information. In fact, we've been studying the culture of intelligence for months, and it's clear that there is almost no such culture.
Could Bill C‑377—which is useless given what you said at the outset—help bring the two sides closer and improve the culture of intelligence?
Sherry Romanado Liberal Longueuil—Charles-LeMoyne, QC
Thank you very much, Mr. Chair, and, through you, I'd like to welcome the witnesses back to PROC.
My first round of questions will be for Dr. Leuprecht.
I understand that you have expertise in Canada-U.S. relations, continental security and NORAD. How would the adoption of Bill C-377 impact our largest partner in terms of defence south of the border? Would there be any impact in terms of that relationship?
Dr. Wesley Wark Senior Fellow, Centre for International Governance Innovation, As an Individual
Thank you, Mr. Chair.
I have just two quick comments to begin. First of all, I'm a big fan of private members' bills and have contributed to two of them in the past, both on oversight issues. Like Mr. Ruff, I have also held secret, top secret, top secret code word clearance, and I would say in that regard that security clearances are not a holy grail to understanding national security intelligence issues and threats.
Bill C-377 would establish an unprecedented power for Canadian parliamentarians, on their own initiative, to apply for a secret security clearance in order to access classified information. This power has no equivalent among the parliamentarians of our Five Eyes partners—those that are Westminster-style democracies. The parliaments of the U.K., Australia and New Zealand all share a responsibility with that of Canada to hold the government to account as a core duty. In their cases, this responsibility, when it comes to matters pertaining to national security and intelligence that involve access to classified intelligence briefings and records, is given to special committees of review and oversight. In the U.K. case it is the Intelligence and Security Committee, in Australia it's the Parliamentary Joint Committee on Intelligence and Security, and in New Zealand it's the Intelligence and Security Committee. All of these have unique features, but in the case of New Zealand the committee includes the prime minister and the leader of the opposition.
In Canada the National Security and Intelligence Committee of Parliamentarians is the body, established by Parliament in 2017, to undertake reviews of national security and intelligence issues. NSICOP has significant access to classified material, with some restrictions: cabinet confidences, ongoing investigations that may lead to criminal prosecutions and solicitor-client privilege, as examples. Its members must obtain top secret security clearances and relinquish the protection of parliamentary privilege should they divulge, in an unauthorized manner, classified information. NSICOP has been publishing reports for the past six years, most recently its report on foreign interference. It has, in my view, performed an important public service and issued many significant studies. I encourage all members of this committee to support NSICOP and to pay attention to its studies: Use them to hold the government to account.
NSICOP is not mentioned in Bill C-377. The effort to establish NSICOP took many years to accomplish—decades, in fact—and to undermine it now, which I think this bill would do, would be a serious mistake. The legislation was opposed by the Conservative Party at the time of its passage, but an earlier iteration dating back to a study undertaken in 2004 actually had all-party backing.
Members of Parliament may feel that there are aspects of the original legislation that established NSICOP that need review and amendment. You would not be alone in this. In the original statute, at section 34, the legislation called for a comprehensive review of the act by Parliament after five years. That review should have begun in 2022. It has not yet started, which is a serious failure of a statutory obligation and a missed opportunity by Parliament.
I believe Bill C-377 is wholly unnecessary, given the existence of NSICOP as the parliamentary entity designed to exercise accountability, in a non-partisan matter, on behalf of both the House of Commons and Senate. Even if you do not share that view, I point out the following—and there has been, of course, some discussion in the previous hour about that. In my reading, Bill C-377 does not establish any real need-to-know principle, leaving this to individual parliamentarians' discretion. Application for a secret clearance is not restricted to members of committees dealing with national security and intelligence issues. Even if it were, it would result in clear duplication with NSICOP and undermine, I believe, the purpose of NSICOP. Bill C-377 would open up security clearance processes for all parliamentarians in a way that I think is hard to justify and extremely problematic. It would have impacts on security clearance processes conducted by CSIS, potentially undermining their rigour, and leaves unanswered—as we discovered in your first hour of discussion—the question of what would happen should an applicant be denied a clearance. In my view, Bill C-377 would fatally undermine NSICOP and parliamentarians' ability to hold the government to account on important matters of national security and intelligence, and it demonstrates no real need...case. It would also heighten, potentially, the risk of unauthorized disclosure of classified information. A better alternative would be to have a system—and I stress “system”—in place whereby party leaders have clearances and can receive classified information, as NSICOP itself suggested.
Finally, I encourage parliamentarians to push, instead, in a different direction on a genuine declassification strategy, which I think would be a great benefit to all parliamentarians and members of the Canadian public, in terms of better informing Canadians about national security issues.
Thank you.
Dr. Christian Leuprecht Professor, Royal Military College of Canada, As an Individual
Thank you, Mr. Chair, for inviting me to take part in today's meeting.
I'll be giving my presentation in English, but feel free to ask questions in the official language of your choice.
I appear before you as a professor with subject matter expertise. I recently co-authored a book entitled Intelligence as Democratic Statecraft: Accountability and Governance of Civil-Intelligence Relations across the Five Eyes Security Community. It was published by Oxford University Press, which is among the world's most reputable scholarly publishers. I'm also a student of constitutional democracy, having co-edited Essential Readings in Canadian Constitutional Politics. Both areas of expertise are relevant to this bill.
The basic constitutional convention that informs Westminster parliamentary democracy is responsible government—that government, through parliament, is responsible to the people. The subsidiary principle is ministerial responsibility—that ministers are accountable for their departments and agencies.
In recent years, the role of parliament and its ability to hold government to account has been greatly diminished, this at a time when the size of the bureaucracy is up 45% since 2015 and government spending is at an all-time high.
As Donald Savoie documents in his most recent book, the civil service is atrophying and is becoming less effective. That's in part because ministers seem to take little responsibility for what happens in their departments. Instead, they seemingly prefer to blame civil servants. In response, civil servants have become highly risk-averse, yet parliament is hampered in its role of holding the government to account because the civil service reports to the political executive.
By giving parliamentarians the opportunity to apply for a secret security clearance, the bill takes a small step to bolster parliamentary supremacy and restore some balance to the relationship between parliament and the political executive. Access to documents that would otherwise be protected and the ability for civil servants to testify frankly before committee on protected material in camera improves the ability of parliament to hold government to account. The change is not to be taken lightly. It also changes the very character of the Westminster tradition of open parliament.
In 2015, this government came to power on a promise of open and transparent government. In the NSICOP, the government moved swiftly to empower security and intelligence reviews by parliamentarians. Allowing MPs and senators to apply for secret clearance is a logical next step in empowering parliament to hold government to account.
Can parliamentarians be trusted with protected, even classified, information? My book shows that indeed they can. Members of cabinet and the NSICOP are already entrusted with privileged information. Instances of intentional or inadvertent disclosure of privileged information by parliamentarians in any western democracy are far and few between. That's because they know that, as legitimately elected representatives of the people, they bear special responsibility. Access to sensitive and protected material at in camera meetings also reduces incentives for grandstanding at committee.
By contrast, political staffers leak information strategically all the time. Just last week, we had an apparent leak by a department to The Globe and Mail. Given the way that the government has instrumentalized secrecy provisions for partisan purposes—in the case of the national microbiology laboratory, for instance—and as we're learning from the Hogue commission, possibly in the selective treatment of national security intelligence, if political staffers get access to sensitive and protected material, then so should parliamentarians.
Bill C-377 conforms with the principles of who needs to know and what they need to know because parliamentary committees would ultimately put forward the case to the government of the day which material members should be able to access and for what purpose, and party leaders will be accountable for the MPs they appoint to committees.
The government may beat back calls for selectively clearing parliamentarians, arguing that parliament isn't up to the task, that the proposal is somehow American, that it doesn't work elsewhere, or even that they should all be left in the hands of judges. Does that sound familiar? Well, those were the Conservative Harper government's objections to bestowing on parliamentarians precisely the powers of review that the Liberal government subsequently gave them in the NSICOP.
Thank you for this opportunity and your interest in this issue.
