Evidence of meeting #126 for Procedure and House Affairs in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was information.
A video is available from Parliament.
Law Clerk and Parliamentary Counsel, House of Commons
Once they have the clearance, it would be on a case-by-case basis. The government would decide whether or not there's a need to know.
Liberal
Ryan Turnbull Liberal Whitby, ON
Here's my point, though. Yes, we're using up a lot of resources to do security clearances for individuals who might turn out not to have a need to know information for which they've applied for security clearance. Because we're reversing the onus and we're saying members of Parliament can decide for themselves whether they need to access that information, now a lot more resources would be used to do security clearance and screening for them, when they may turn out not to have a need to know the information for which they've applied to get access.
Is that not correct?
Law Clerk and Parliamentary Counsel, House of Commons
I know that the committee has officials from the government in the second hour. Those questions may be more appropriate for the government.
I will also say, and I alluded to this earlier, that should this bill be adopted, my assumption is that there will be some kind of governance established within each caucus, so that not all members will necessarily apply to receive a clearance.
Liberal
Ryan Turnbull Liberal Whitby, ON
Okay.
My other line of questioning is related to the immunity that you mentioned—that members of Parliament have immunity from criminal and civil prosecution, I guess. If a member of Parliament were to go through this process, gain access to information and then decide to read it into the record in the House of Commons, as happened in the United States with the Panama papers, what would be the legal repercussions? I think you've already said that there would be none, right?
Law Clerk and Parliamentary Counsel, House of Commons
Parliamentary privilege will protect the members if they disclose information as part of proceedings. There will be no legal consequences. Parliamentary privilege will not, however, protect any members if they disclose information outside of proceedings.
There will also be political considerations. If this bill is adopted and the members start disclosing classified information in the chamber, I suspect that the government will just stop sharing any information with members of Parliament.
Liberal
Law Clerk and Parliamentary Counsel, House of Commons
That's for the government; we're speculating here.
Liberal
Ryan Turnbull Liberal Whitby, ON
Yes, we're speculating, for sure, but in contemplating the repercussions of a bill like this, which changes the process, I think we should be speculating on what the risk to national security might be if members of Parliament use their privilege and immunities in the House of Commons, after gaining access to classified information, to reveal that information and disclose it publicly.
I wouldn't suggest that any member here would do that, but it has happened in other jurisdictions. I think it's a risk we should take quite seriously. Do you not agree?
Law Clerk and Parliamentary Counsel, House of Commons
I agree that if members have access to classified information, and then there's a forum in which they can disclose that information with immunity, that's certainly something that the government will take into consideration when assessing the need-to-know principle.
We had examples in the past of two panels where classified information was made available to members of Parliament. To my knowledge, there was no leaking of this information.
Liberal
The Chair Liberal Ben Carr
Thank you, Mr. Turnbull.
Ms. Gaudreau, the floor is yours for two and a half minutes.
Bloc
Marie-Hélène Gaudreau Bloc Laurentides—Labelle, QC
This is a very interesting discussion, Mr. Chair!
Earlier, we talked about the United Kingdom. There were precedents, and so on. I am trying to be constructive, given all the answers we have received to our questions.
We know that the RCMP, the Royal Canadian Mounted Police, and CSIS, the Canadian Security Intelligence Service, have the authority to give a security clearance. I have a concern on that point, because they have to grant a clearance, and they also collect the information we are asking for.
In the United Kingdom, there is an independent agency that is completely neutral and offers information on a case-by-case basis to the appropriate recipient. It is not offered to everyone interested in a clearance and wanting to get top secret information.
Is that a solution that could be considered in our case?
October 3rd, 2024 / 11:40 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
This is a subject that goes well beyond the legislative initiative that is before the committee right now. The proposal is very specific about allowing members to request a clearance, while that is a much broader question of public policy, which raises the question of the all-inclusive approach to protecting information and clearances.
Law Clerk and Parliamentary Counsel, House of Commons
The committee is going to move in that direction, but that is not what is under consideration today.
Bloc
Marie-Hélène Gaudreau Bloc Laurentides—Labelle, QC
My concern is national security. When we say we can get access to secret information, there may be a leak and consequences. As was said earlier, we are speculating, but it calls for a high degree of vigilance.
Later, I will be asking the question of our witnesses from CSIS, the Canadian Security Intelligence Service.
Thank you, Mr. Chair.
Liberal
The Chair Liberal Ben Carr
Excuse me.
Have you finished?
Evidently, you have. Thank you. From time to time I get caught up in discussions with the clerk.
Ms. Mathyssen, the floor is yours for two and a half minutes.
NDP
Lindsay Mathyssen NDP London—Fanshawe, ON
Thank you, Mr. Chair.
As a continuation of the discussion, United States senators have similar protections to our parliamentary privileges. There was a case in which a senator received information and was told he couldn't publish it, but he found a back-way—through a subcommittee, because he was the chair—to publish that information. That ended up actually going through the federal courts. It went to the Supreme Court, and it ruled to uphold his privilege—his “parliamentary privilege” or whatever the American equivalent is. As the legal expert on this and all things legislation, have you or your office done a study or similar consideration of just how, if such a thing were to happen in a Canadian context, it would be applied here?
Law Clerk and Parliamentary Counsel, House of Commons
In the context of Bill C-377 there is a “saving clause” for parliamentary privilege, and parliamentary privilege is not affected, so the intent of the bill—
NDP
Law Clerk and Parliamentary Counsel, House of Commons
No. If members gain access to more classified information, there's no exception to privilege in the same way that is created for the NSICOP members. NSICOP members cannot disclose information to the chamber and committees, because they will be subject to the Security of Information Act. Here the information that will be provided is not subject to the same exception, so a member could disclose the information to the chamber and committees.
That said, and I think this is relevant to the example that the sponsor of the bill refers to when talking about the bill, we have certain recent examples—for example, specific briefings at which there might be foreign interference and there's a need to disclose classified information. I don't believe that this is the type of information that the member will then disclose to the chamber if it's very personal about the member. Again, there's always the need-to-know test or principle that is applicable, so it's the government, ultimately, that decides what information it is comfortable sharing with any specific member.
NDP
Lindsay Mathyssen NDP London—Fanshawe, ON
We heard at the last committee that this would undermine NSICOP. Is there any belief that this legislation would undermine NSICOP, from your perspective?
Law Clerk and Parliamentary Counsel, House of Commons
I think those are two different subjects. NSICOP has a very specific mandate, and the bill, if passed, will allow certain members to have the secret clearance accreditation. If committees were to undertake more studies in relation to national security and to exercise their right to send for records and papers, that will be a parliamentary order, a parliamentary decision. It has nothing to do with the clearances the members of the committee may have.
Liberal
The Chair Liberal Ben Carr
Thank you very much, Ms. Mathyssen.
Colleagues, that brings us to the end of the first round.
Ms. Romanado, do you have something you want to add?