Thank you, Chair.
I'm happy to join in this debate on the motion by Ms. Zann and the amendment by Mr. Genuis.
First of all, I suppose I'm a little disappointed that we didn't get to ask more questions about the nature of the documents and what other documents there were that were already made public—or whether these were made public already—so we would know a little bit more about the nature of what else is there, but I guess we're already into this particular debate now.
I will say this. I believe that Mr. Waugh either misrepresented or misapprehends—and I say this with great respect—the ruling of Speaker Milliken. I say this from some experience, because I was on the Afghanistan committee that requested these documents under parliamentary procedure. The request was turned down and the matter went to the House. There was a lengthy debate in the House, which I participated in. The ruling was very clear that the House of Commons and the committees were entitled to these documents. Whatever documents were available, the committees were entitled to them, and if the committees couldn't get them, the House would be able to make an order.
The only distinction was one that we've provided for here: Speaker Milliken said that he would delay making an order until the parties in the House had an opportunity to determine the measures they might wish to take to protect the public interest with respect to the release of the documents, because these were matters of international relations that involved potential breaches of the Geneva Convention and very serious matters of breaches of international law.
What happened was that a committee was formed—I was a part of the committee—to determine what the nature of the mechanisms would be. The committee, in the majority—and I wasn't a part of the majority—decided on a particular route to go and presented it in a report to the Speaker. The Parliament in majority—it was a minority government—supported a particular method of dealing with the documents, and the Speaker said that he would then implement it.
In our wisdom, or lack thereof—depending on what ultimate ruling might be made—we have provided for that in our consideration of the request for the documents. We knew we were entitled to the documents. We had advice from Mr. Dufresne as to what the rules are. We went through the process and got proper legal advice from the parliamentary counsel. That advice was consistent with the ruling of Speaker Milliken, which was a very seminal ruling, and in fact is probably the leading case on that subject in the Westminister parliamentary democracies.
We provided for that in paragraph (b) of our ruling, saying that the law clerk shall “discuss with the committee, in an in camera meeting, information contained” in the documents and look at the ones that “in his opinion, might reasonably be expected to compromise national security or reveal details of an ongoing investigation”, etc., so that the committee then may determine how to maintain the public interest in keeping the matters private.
That was the step that happened after the Speaker said that Parliament was entitled to these documents. We have taken that step.
If Mr. Waugh decided that he wanted to engage in a discussion with the committee as to what measures we proposed and whether he was satisfied with them, that would have been a different matter. What Mr. Waugh was essentially saying was, “No, you don't have those powers. You're not entitled to these documents.” That's not what the ruling said.
We really don't have much choice at this point but to find out whether or not the ruling of Speaker Milliken is going to continue to be upheld. This ruling in fact laid the groundwork for allowing committees to do their work in Parliament and follow the convention that.... This convention wasn't invented by the House of the Parliament of Canada. It's been used in other legislatures and parliaments elsewhere in the world to ensure that Parliament has its rights to access these documents but that Parliament will undertake to find ways of ensuring the public interest is protected.
That's what's before us now, and I think Ms. Zann's motion was quite in order. I haven't seen the written amendment, so before we would even vote on it or choose the wording or decide whether to amend it, I think we should all have a copy of it so we can look at it ourselves.
I think it is incumbent upon us not to let this matter drop and say, “Thank you very much, Mr. Roy; we'll accept your argument”, because we don't agree with that argument. Unless Mr. Dufresne tells us that we're going down the wrong road here, I think we must proceed to obtain the opinion of the Speaker of the House for starters, and the House itself, to be able to determine what documents we are going to receive.
It is a fundamental constitutional principle that has been clearly stated by Mr. Dufresne, and if the government or the civil servants in this case—I don't know who's making the decision or whether they're making the decision themselves or on instructions from someone else—decide that this is going to be an impasse, then we have no other choice, no other course of action open to us, except to proceed. There may be further discussions about the best way of protecting the public interest, but that's a discussion that's taken on the basis that we are entitled, as members of Parliament, under the parliamentary privilege rules, to have access to these documents.
If we could have a copy of the documents and have a further opportunity to discuss whether this is the exact.... As Mr. Oliphant says, there may be another route to go, other than the specifics of this motion, but I think the general thrust of the amendment should be followed, and we should move further than we've gone so far.