I appreciate that, Mr. Chair.
I'll begin on this point by Speaker Beaudoin, in 1957. Mr. Nicholson said, as follows:
For example, Speaker Beaudoin observed in 1957 that: No matter how ample its powers may be, there are certain documents to which the house is not entitled, and that is those a cabinet minister refuses to produce on his own responsibility.
Similarly in the United Kingdom, a resolution on ministerial accountability was adopted unanimously by the House of Commons in March 1997, which acknowledged that ministers may withhold information in accordance with access to information rules reflecting the long-standing practice in that House.
The second problem with the allegation relates to the minimal role that the Speaker is empowered to perform in relation to question period. As O'Brien and Bosc state at page 510:
The Speaker ensures that replies adhere to the dictates of order, decorum and parliamentary language. The Speaker, however, is not responsible for the quality or content of replies to questions. In most instances, where a point of order or a question of privilege has been raised in regard to a response to an oral question, the Speaker has ruled that the matter is a disagreement among Members over the facts surrounding the issue. As such, these matters are more a question of debate and do not constitute a breach of the rules or of privilege.
Still from Mr. Nicholson: “While I respect our Law Clerk, his views are opinions, not the law”—not the law, Mr. Chair—“it is not a breach of privilege for a law officer of the Crown to hold a different view. To suggest that a legal adviser who has a different opinion from our Law Clerk, from the member of Scarborough—Rouge River, or even of the House as a whole, is somehow in contempt of the House, would be an abuse of our parliamentary privileges.”
Officials also have a duty and a specific legal responsibility to hold in confidence information that may have come into their possession in the course of their duties. Therefore, when appearing before parliamentary committees they are bound by these legal obligations, as well as an obligation to the minister and to the government, not to disclose information that is confidential for reasons of national security or privacy or because it consists of advice to ministers.
This has never been challenged by the House of Commons. In 1991, the government issued “Notes on the Responsibilities of Public Servants in Relation to Parliamentary Committees”. This document, which has not been rescinded or altered under successive governments, states:
Public servants have a general duty, as well as a specific legal responsibility, to hold in confidence the information that may come into their possession in the course of their duties. This duty and responsibility are exercised within the framework of the law, including in particular any obligations of the Government to disclose information to the public under the Access to Information Act or to protect it from disclosure under other statutes such as the Privacy Act.
To argue to the contrary would be inimical to the principles of the rule of law and parliamentary sovereignty. A parliamentary committee is subordinate, not superior to, the legislative will of Parliament, as expressed in its enactments. There should be nothing controversial in that statement. It simply means that where the Parliament of Canada has, by statute, enacted the duty of confidentiality and imposed it on government officials, or where the law of solicitor-client privilege imposes a similar duty of confidentiality on lawyers not to disclose the legal advice given to their clients, or when some other legal duty, such as Crown privilege, is at stake, the proper attitude of government officials cannot be that they are instantly relieved of their legal duties when they are called to appear before a parliamentary committee.
In order for there to be a valid question of privilege, there must be evidence that the House and its members have been impeded in carrying out their parliamentary duties. I would argue that, to the contrary, the government has made attempts to facilitate the—