Procedure and House Affairs Committee on Oct. 1st, 2024

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

If a member of Parliament or a senator wanted to make public the fact that they failed to pass a security clearance, good on them. I don't think it would reflect well on the government that appointed the senator or on that member's ability to get re-elected if they're trying to make the case to their riding to re-elect them even if they can't get a security clearance in this country.

[The Chair, Liberal, Ben Carr]

Ms. Mathyssen, that's all the time we have. Do you want 20 seconds to clarify, if you have a question there?

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Could we get her to clarify, please?

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

Thanks, Chair. I do think we're getting to the crux of it.

It undermines the democratic rule of law and breaches your privilege if you're denied.

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

It's a valid question that this committee can feel free to address and try to tackle as the next step, but again, my bill doesn't guarantee anything. It just allows you the right to apply, and I would actually caution against Parliament deciding or ruling that all members of Parliament and parliamentarians should automatically get access to a secret level security clearance. I would not support that. Personally, I would vote against that if that came forward.

It's a personal choice whether you want to apply or not, and again, we have a process in place, and if you think we need to change our Treasury Board rules around what is required to pass a security clearance, that's fair game, but my bill doesn't address that, and it doesn't seek to address that. It just allows you the opportunity to apply and not be denied that opportunity to apply for secret level security clearance.

[The Chair, Liberal, Ben Carr]

Okay. Thanks very much for the clarification, Ms. Mathyssen and Mr. Ruff.

Mr. Ruff, thank you very much. That was an interesting discussion, and your testimony today was valuable, so thank you.

Colleagues, we are going to suspend briefly as we turn to the second hour of testimony on this piece of legislation.

[The Chair, Liberal, Ben Carr]

Okay, colleagues, we are going to recommence for our second hour.

Joining us now are two witnesses.

Mr. Wark is a senior fellow at the Centre for International Governance Innovation.

Mr. Wark, welcome back, long time no see.

Also, Dr. Christian Leuprecht, professor, Royal Military College of Canada, is joining us by video conference.

Colleagues, we'll follow the same set of protocols we always do.

Dr. Leuprecht, I'm going to turn the floor over to you for up to five minutes, followed by Mr. Wark, who will have five minutes, and then we'll get into our round of questioning.

Colleagues, as a friendly reminder again, particularly to witnesses, please make sure that when you're not using your earpiece you have placed it down on the sticker in front of you.

With that, Dr. Leuprecht, we are going to turn the floor over to you for five minutes, sir.

[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.

[The Chair, Liberal, Ben Carr]

Thank you, Mr. Leuprecht.

I appreciate your opening remarks.

Mr. Wark, the floor is yours for up to five minutes, sir.

[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.

[The Chair, Liberal, Ben Carr]

Thanks very much, Mr. Wark.

Mr. Ruff, I imagine that you have some commentary to provide, so the floor will be yours for six minutes, sir.

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

Thanks, Chair.

My first comment in rebuttal to the testimony of Mr. Wark is that I cannot speak on behalf of NSICOP here. I can only speak as somebody who's been a member for the last couple of years, because NSICOP really takes privilege, in that we speak through our reports. The fact is that I do agree that it's very non-partisan, but part of the value of that committee, too, is that everything is done at a secret level, an in camera equivalent, so that it takes away the politicization.

Where I disagree with Mr. Wark is that NSICOP is not that accountability oversight committee. It's a review committee that he talked about. It could evolve. If our current government had decided to start that review two years ago that we need, you maybe could see an evolution of that, and then maybe my bill would not be required. However, that's not the case, and that review process has yet to occur. Again, to push back a little bit, my bill does not guarantee access to anything. It doesn't undermine anything. It just allows members to apply.

That's just my commentary. I'm not looking for a response on that right away.

Professor Leuprecht, I'd like to get you to elaborate on two aspects. One is your commentary because it's been my personal experience as well with in camera meetings and the frank feedback and testimony by our public servants, regardless of their department, whether they're from National Defence, CSIS, Public Safety or RCMP, that there is value in really getting to the crux of some of the security risks we face and allowing Parliament to address the issues and concerns it has to the government of the day.

As well, I would give the opportunity, as somebody who I think has a different opinion from Mr. Wark, to comment on Mr. Wark's remarks.

That's for you, Professor Leuprecht if you want to respond.

[Dr. Christian Leuprecht]

Okay, just to make sure that I don't jump the gun, I think that in camera discussion is a very high-value opportunity. I mean, if you look at public governance boards—I sit on two of them for the Province of Ontario, for instance—certain matters are required to be discussed in public, in particular, matters related to finance, matters of confidence, maybe matters of public discourse and any sort of money bills and the like. However, much of what parliamentary committees do, I think, ultimately could benefit from a more informed conversation, also by parliamentarians, to understand how government works and why civil servants make the decisions that they do.

My experience is that civil servants will be rather reticent in public with comments that could possibly be construed as critical of the government of the day—and so they should be in order to maintain neutrality and objectivity. I think this measure would allow committees to get a better picture.

I don't see this as a broad opportunity for parliamentarians to get access. I also think that it's a bit obfuscating the matter when we necessarily talk here about classified top secret information. I mean, a lot of what we're talking about is simply the opportunity to have access in many cases to documents that government would protect for any number of reasons, as government does in the course of practice, and to have a franker discussion.

In practice, I simply see this as an opportunity to empower Parliament. I also think the conversation about NSICOP obfuscates the matter, in the sense that we all know that NSICOP is a committee of parliamentarians; it is not a parliamentary committee. Rather, what this bill would allow is, I would say, to re-emancipate parliamentary committees, given that the ability of committees and Parliament in general of holding the government to account—not just with this government, as this is a longer tradition in Canada—has atrophied. Everybody's familiar with the centralization of power in the Prime Minister's Office. NSICOP effectively does the same thing because it reports to the executive, and so this re-establishes some balance with Parliament.

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

In only 45 seconds, do you want to give Mr. Wark the opportunity to provide any additional feedback?

I just want to again re-emphasize, as a member of NSICOP, that we are a committee of parliamentarians, not a committee of Parliament. Unless the committee evolves, we're not in that role to provide that oversight. We're there to review, and we do fulfill a very important role. However, I can guarantee you that for the amount of work that we could tackle, we don't even touch it. It needs to be tackled by other committees of Parliament.

[The Chair, Liberal, Ben Carr]

Very briefly, we'll go to Mr. Wark.

[Dr. Wesley Wark]

Sure.

Thank you, Mr. Ruff.

I'm glad that you've appreciated your time on NSICOP. I was involved in the drafting of the legislation and have been involved with the committee in various ways since its establishment in late 2017. I'm very familiar with it.

You can make a distinction between a committee of Parliament and a parliamentary committee, but in fact, the Canadian NSICOP version was based on the U.K. Intelligence and Security Committee, which now calls itself a committee of parliamentarians. There's very little difference. The legislation could be amended in that respect if that distinction matters.

I would just say with regard to my colleague, Dr. Leuprecht, that he and I have known each other for a long time. I think we would have a fundamental disagreement on whether your bill, Mr. Ruff, would be the next step past NSICOP or, in my view, fatally undermine it. I think there's a clear distinction there.

Thank you.

[The Chair, Liberal, Ben Carr]

Thanks very much, Mr. Ruff.

Ms. Romanado, the floor is yours for six minutes.

[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. Christian Leuprecht]

It's a good question.

I suppose that one of the inferences you draw is the possibility that materials that the United States shared with Canada could somehow end up being intentionally or inadvertently disclosed by this process. I would say, given the number of leaks that come out of Congress, that Canada probably has much more to worry about, in that some of its information might possibly inadvertently or deliberately be disclosed.

If anything, I think it will provide more informed parliamentarians who will be able to contribute to a more informed conversation around key issues of the day with our most important and strategic ally.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

My next question is for Dr. Wark.

Obviously, I think that the question of national security, the question of intelligence— which we've been talking a lot about this over the last couple of years with respect to foreign interference—has an educational piece that is really important for parliamentarians and all of those who support us understanding a little bit more about what is intelligence, what is information, what is evidence and so on and so forth.

I think that by going through the process of receiving one's clearance and of understanding what foreign interference looks like, it would help parliamentarians identify possible breaches, possible risks, so that we're working in lockstep with the intelligence community. We've heard, quite frankly, that the intelligence community doesn't understand what we do and we don't understand what they do.

One of the other questions is that if we were to do this, I would assume then that all of the staff members who support us in what we do, whether it be on committee or not, might also necessarily have to go through security clearance. I say this because obviously with the handling of documents, whether it be access to the documents or not, it's not as if I could forward an email and say, “Please print this and put it in my day file”. Because they don't have the necessary clearance, what would be some of the ramifications or unintended consequences of our doing this and thus expanding the scope of who actually has to get the access?

[Dr. Wesley Wark]

I would say two things.

First of all, to reiterate—and I'm happy to expand on this if it's of interest to the committee—having a security clearance at whatever level and having access to classified information is not a holy grail. It does not provide you with the kind of broad-based knowledge that I think all parliamentarians should have and need to have about national security and intelligence issues. There is a vast amount of information in the public domain available to parliamentarians and Canadians that is, I suspect, little studied, including past reports from NSICOP, NSIRA, the intelligence commissioner's office and their predecessors, and all the other kinds of public documents that are put out.

I would argue that understanding that public domain information is going to be far more valuable than having access to bits and pieces of classified intelligence from the security and intelligence community. I base that, in part, on my own experience of what is available. It's wonderful to have a top secret clearance. It's exciting. You get access to special information. Secret clearance is less valuable. Everybody has a secret clearance in the government, but it's not a holy grail.

[A voice]

Except for parliamentarians.

[Dr. Wesley Wark]

Yes, except parliamentarians. It's not a holy grail, though. There's lots of stuff to study on behalf of parliamentarians.

The other thing, in terms of consequences, is this would open up a considerable set of challenges. It's important for members of this committee to understand that security vetting is done by CSIS. CSIS security vetting results in a recommendation, usually to a deputy head or deputy minister. That recommendation is just that: it's a recommendation only. It would be up to whomever would be responsible for approving the security clearances or denials for parliamentarians to make a judgment. How would that process work? I'm not entirely clear on how it would work favourably.

Frankly, members, I would also be very concerned about the rigour of CSIS security clearances in that process, because they would be faced with the challenge of, on the basis of some ambiguous information about loyalty, trustworthiness and background, whether they really want to get into the grip of denying a security clearance to an elected member of Parliament. I would really be concerned about the impact on CSIS security clearance culture, which is already challenged enough.

Thank you.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

I'm good.

Thank you.

[The Chair, Liberal, Ben Carr]

Thank you, Mrs. Romanado.

Ms. Gaudreau, please go ahead. You have six minutes.