Government Operations Committee on May 2nd, 2017

[Christopher McLeod]

I guess one way to do that is to make it clear to the CITT that it has the authority. As a statutory body, the CITT can be adjusted; we can make it clear that it has the authority. A separate process can even be set up within the CITT to look at whether the national security exception is legitimate.

Going that route, if the CITT clearly has the ability to look at whether or not the NSE was legitimately invoked, then I feel the marketplace will take care of the rest. Just because the national security exception is invoked doesn't mean you're going to have an unfair process. You're going to have a fair process. If bidders have the opportunity to challenge it, people are going to be a lot more careful when they do it.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Thank you.

We now go to Mr. Drouin for five minutes.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Thanks to the witnesses for being here. I'm going to go on to some of what my colleagues touched on. When we talk about the NSE, we've heard complaints that it was overused, and we've seen with the CITT that there were some comments made.

Mr. Grammond, you've touched on the policy. I'd like to ask all of you three if you know, from your experience in other jurisdictions—let's say in the United States, where we know that they use the national security exception—whether there is a policy to justify the NSE in the United States or other jurisdictions?

[James Cox]

I am generally aware it's the same as in Canada. I'm in the other half of the camp. I have confidence in the people and the government, who are working all these issues and have decided that a particular one is an issue of security. There are all kinds of processes in the government, and particularly in the American one. It's a maze of steps, hurdles, and hoops they have to go through. There are a bunch of processes and explanations, as well as internal scrutiny.

In terms of Australia and the U.K., which have governments akin to ours, there is very active involvement of Parliament and committees of Parliament. Even in Canada, we have a number of committees in Parliament that, in my view, are capable of addressing a question as it's coming up. It depends on the committee and the specific issue at hand, but you all have the capability to do that.

On top of that, we have any kind of an external review, which our panellists have spoken about. The tools are in place, and I have always been a fan of using the tools and regulations that you have, and not attempting to add to them.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Mr. Grammond, do you have anything to add?

[Prof. Sébastien Grammond]

Once again, I want to emphasize that there has to be some external control. That’s my opinion. Internal controls are desirable to prevent external control from becoming necessary, but the threat of external control is extremely important for disciplining the public service. In fact, if this possibility is always present, people discipline themselves. That's what I have sort of seen. There was no control over tenders in Quebec during the 1990s.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

External control can also come from another internal agency. The Department of National Defence, for example, has to work with Public Services and Procurement Canada.

[Prof. Sébastien Grammond]

In my opinion, no.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

We're talking about a third party. A company that does business with National Defence may consider the procurement criteria to be too specific to a particular company and may notify Public Services and Procurement Canada. We routinely hear about cases like that. They have been in the media on a number of occasions. The relations between National Defence and Public Services and Procurement Canada are not necessarily the best. Some people from National Defence tell us they particularly hate Public Services and Procurement Canada.

In the case of Shared Services Canada, for example, procurement is done internally. Companies therefore have no choice but to contact Shared Services Canada. However, we feel that they do not trust Shared Services Canada when it comes to certain procurement files. We have seen this in the media.

[Prof. Sébastien Grammond]

From the perspective of the public or of companies, a department is not a third party to another department. I don't agree with that. I think we need an independent body. That’s usually the courts. It is possible for other types of truly independent bodies to play that role. I think there are all sorts of options. At any rate, I am of the opinion that internal control in the government, although essential, is not sufficient.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Absolutely. I completely agree with you.

However, I think if we end up going to court, it’s already too late. The courts are a last resort, in my opinion. As you mentioned, it is important that this service exists, but we also need to ensure that internal controls are applied.

[The Vice-Chair, Liberal, Yasmin Ratansi]

Sorry, Mr. Drouin, you can ask again in the next round.

Mr. Clarke, you have five minutes.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Thank you, Madam Chair.

In cases where recourse to the national security exception is sought, Public Services and Procurement Canada states that: it is the responsibility of the director general of procurement, in collaboration with the client, to prepare a letter to the assistant deputy minister of procurement, Public Services and Procurement Canada, for approval of the use of the exception. The letter must be signed by the deputy commissioner in charge and must specify the nature of the acquisition and the reasons for the request.

It seems to me that a first step would be to allow a group or committee of parliamentarians to have access to the letter to determine whether the exception actually makes sense in major cases such as biological warfare, terrorist acts, industrial espionage crimes, and so on.

Politically, we should also ensure that some of the reasons given by a government for making an acquisition without a call for tenders are actually legitimate.

Don’t you think it would be appropriate for this committee to have access to the letter signed by the assistant deputy minister?

[Prof. Sébastien Grammond]

I would have to study the process more. Generally speaking, I think it is good that public service processes are under the control of Parliament. That includes a committee like yours. Clearly, this possibility raises concerns about confidentiality. We keep coming back to that.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

As far as we are concerned, things are confidential.

[Prof. Sébastien Grammond]

I think the concern is similar to the one we have about the control and oversight of intelligence agencies. Special measures are taken to ensure that some control is applied. As you are probably aware, discussions have taken place on this issue. Special measures will have to be taken to have a smaller group of MPs. In the case of CSIS, I think it is a sort of a wise persons' committee or a commissioner.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Who makes up this wise persons' committee?

[Prof. Sébastien Grammond]

I think it is made up of former parliamentarians and former judges, in some cases. So they are people with very high security clearance. They can have access to the information and know exactly why the exception was—

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

If memory serves, private individuals were on this committee a few years ago.

[Prof. Sébastien Grammond]

I said there were some controversies. You have a good memory.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

I just remembered that.

[Prof. Sébastien Grammond]

Those are the sorts of things. Could a committee of MPs do that? No doubt, but you see the kinds of concerns that this raises.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

That would increase the confidence that Mr. Ayoub talked about, which is fundamental.

[Prof. Sébastien Grammond]

Yes, confidence is important, and it stems from the fact that independent controls are in place.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Without going so far as to check whether the national security exception used in a particular case is actually legitimate, we, as parliamentarians, are currently having trouble accessing information, such as the acquisition of the 18 Super Hornet fighter jets. The Liberal government claims there is a capability gap.

I personally have made a request a number of times. The government contracts legislation requires the Minister of Public Services and Procurement to request that the Department of National Defence send a letter confirming that the exception invoked to avoid a call for tenders is legitimate. I am not talking about the national security exception in this case.