Procedure and House Affairs Committee on Oct. 3rd, 2024

[Michel Bédard]

It is the government's information. It is a clearance from the government. It is government policies, government practices and rules, that apply. For example, if we are talking about information classified top secret, the measures put in place are very stringent. You have to go to a special room, and not take a cellphone or a computer, to get access to it.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Apart from the procedures that already exist, would you not have any other suggestions to make in the event that parliamentarians got this new clearance?

[Michel Bédard]

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]

Right.

Thank you very much.

[The Chair, Liberal, Ben Carr]

Thank you, Ms. Fortier.

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

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Mr. Chair, it might seem like we consulted each other, because that sets the stage for my questions.

There have been several references to the government's process. At the last meeting, we were told about the structure of parliamentary committees. Now, you are going to tell me that it is actually controlled by the government and not by Parliament, which is essentially a multiparty collection of members, is that it? That is really the government.

[Michel Bédard]

There is often confusion regarding the nature of the National Security and Intelligence Committee of Parliamentarians. It is not a parliamentary committee, properly speaking.

Although its name suggests that it is, it is not a parliamentary committee; it is actually a statutory committee that was created by the National Security and Intelligence Committee of Parliamentarians Act. Yes, it is composed of parliamentarians, but it operates within a framework that is not parliamentary. In fact, the parliamentarians who sit on the NSICOP have to get the appropriate clearance. There is also an express exception in the act regarding parliamentary privilege, which means that members who receive information classified as secret in the course of their work on the NSICOP could not then disclose the information in the House of Commons, since there is a provision stating that parliamentary privilege cannot protect them in that case.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

This suggests to me that the bill we are considering really does highlight the dichotomy that may exist between parliamentary privilege, which is for the proceedings of Parliament, and national security. We have also heard that there were other organizations whose processes do not come under the government, but rather under the leaders' offices. Are you aware of other parliamentary institutions, maybe among the Five Eyes, whose structure does not depend on the government's process and is really based on the proper functioning of Parliament and the protection of secret information?

[Michel Bédard]

Each parliamentary institution has its own measures, its own relationship with the government, that depend on the culture, laws and practices of the state in question. I have not looked into the other states.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

This suggests to me that our committee should first review the operation of the NSICOP, in the sense that it should meet the needs arising from the privilege of knowing, the right to know, rather than instituting a security clearance about what we do with the information we have, to make sure that when we request information, we can get it, so we are able to do our work properly. If we focused more on governance and how the parliamentary committee operates at present, might that be a potential solution, rather than enacting Bill C‑377 as is?

[Michel Bédard]

I thank the member for her question.

I think this question puts an issue on the floor that is more general than what is before the committee right now, that is, the relationship between Parliament and the government when it comes to obtaining information. The bill sponsored by Mr. Ruff is about a very specific policy that would enable members to have access to the clearance process, while not guaranteeing a clearance.

If Bill C‑377 is enacted, I presume that some governance process will be established within the parties. The whips may have a role to play in selecting the members who will request clearances and determining what is done if a clearance is denied. I don't think that 338 requests would be sent to the government as soon as the bill is passed. I presume that the parties would exercise governance.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

In closing, Mr. Chair, I conclude that what we have at present on the legislative menu means that we use parliamentary privilege, by raising questions of privilege, to extract information that we actually should be given, to maintain our democracy and keep it working properly, rather than having a security clearance. For one thing, who am I to ask for information that, in my opinion, I can do nothing with? For another, what purpose is served when there is a very specific process for getting information?

In fact, if I have understood correctly, all members of the NSICOP, the National Security and Intelligence Committee of Parliamentarians, receive the information that the government is going to propose or explore. What can they do with it? Although the NSICOP is multiparty, disclosure of documents happens in our committee or in the House.

Is that correct?

[Michel Bédard]

The NSICOP's process is really parallel to any parliamentary process. There are statutory rights to obtain information, but the parliamentarians who are members of that committee are bound by their clearance and the Security of Information Act. There is also the exception relating to parliamentary privilege.

So we are still in the realm of parliament, of government, that is, parliamentary privileges do not apply. A member of the NSICOP could not rise in the House to disclose information. An exception is provided.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Thank you.

My time is up, but I will have more questions later.

[The Chair, Liberal, Ben Carr]

Thank you, Ms. Gaudreau.

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

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

I appreciate your coming today.

Just to continue that conversation around privilege, you just mentioned that there's almost a forfeiture of parliamentary privilege when those members become members of NSICOP. I think that has more to do with having a higher level of security clearance than what we're talking about with this bill. However, it's specifically not in this bill, that forfeiture of privilege. Do you see any problems with that? If a member were to breach that and were to release documents, with that classification or whatever, what are the ramifications? Certainly they're still protected by privilege, so what are the ramifications of that?

[Michel Bédard]

First, you're correct that in the legislative proposal, there's no exception that is created for parliamentary privilege. If a member of Parliament were to receive classified information and then disclose that information in parliamentary proceedings, there could be no prosecution under the Security of Information Act. That parliamentary privilege would protect the member, and this has been established. There are precedents in the U.K., and it's the state of the law as it stands.

That's why, for the NSICOP committee, there is a quid pro quo in that they make available more information to some members of Parliament, provided that they essentially forfeit their parliamentary privilege and that they go through the screening process and get the proper clearance.

It's a policy decision, ultimately. There is always the need-to-know principle that is applicable, so that it's the government that will decide what information it will share with members of Parliament.

If this bill is adopted, there is information that is disclosed as part of parliamentary proceedings. Regardless of the clearance that some members of Parliament have, the government could decide to simply stop sharing any classified information with members of Parliament.

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

Whether that breach was done unintentionally or intentionally, this doesn't really change what the government can allow or not. This doesn't change any of that. It doesn't have any furtherance in terms of the transparency that this bill is trying to accomplish.

[Michel Bédard]

There have been some precedents. There might be scenarios where, as part of a parliamentary function, there is a need to share classified government information. In those cases, the members of Parliament receiving the information would have to go through the process before receiving the information.

If there are, within each caucus, certain members who already have security clearances—because of their particular position, because of their role on specific committees, or maybe because they're more subject to foreign interference—and if there's a need to know, the government could share this information with those members without having them go through the process again, because they will already have received their security clearances.

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

It would be incumbent upon the members themselves whether or not they choose to get that security clearance or not, would it? Is there a possibility...?

I'm thinking about a situation. We discussed this a bit at the last committee. I'm on the national defence committee. One would assume that I might need a further clearance if I'm allowed. However, if I've chosen not to do that, does that automatically impede the rest of the committee? That could certainly create difficulties within the parties in deciding who sits on those committees. Is there a consideration of that in terms of how committees continue to function and who gets to sub in at committees? What are the rights of parliamentarians to sit in, even though they're not sitting members of that committee? If they want to sit in without a clearance, and there's a discussion, do they have the right to sit in? How does that work?

[Michel Bédard]

It's really about the government; it's not about committees. When a committee is requesting information from the government, whether its members have clearance or a level of clearance is no longer relevant. The committee and the House of Commons are entitled to documents that they request.

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

As a member, and in terms of the privilege I have, a lot of the parliamentary privilege I have expands to the operations of my office. Staff are covered under that to some degree in terms of the business they do under my name and my office. In terms of this clearance, is there a potential expansion on that with regard to the staff?

Again, it's different, and I understand that in terms of NSICOP there's a higher clearance level. However, it has exempt staff as part of its operations.

Would this apply to our staff, or would we have to go through all of those applications for our staff? How would that all work?

[Michel Bédard]

The bill is very specific to members of Parliament and does not include members' staff. If this bill were to go through and eventually you were to receive top secret information, for example, you wouldn't be allowed to share it with your staff.

[The Chair, Liberal, Ben Carr]

Thank you very much, Ms. Mathyssen.

Mr. Cooper, the floor is yours for five minutes.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you very much, Mr. Chair.

Mr. Bédard, you referenced two precedents in which members of Parliament who were appointed to special committees were granted security clearances, the first being with respect to the Afghan detainee documents and the second and more recent example being the national security breach at the Winnipeg lab.

In both instances, is it correct that members did not waive privilege upon being granted those security clearances?