Mr. Speaker, today we are discussing Bill C-22, an act to establish the National Security and Intelligence Committee of Parliamentarians.
We do not support this bill because it is ineffective in its current form. The Prime Minister has all the authority. He chooses the members and the information the committee can have and present to the House of Commons. Having parliamentarians review the actions of the government when it comes to security and intelligence is very important, but this bill does not give us a realistic chance to do that.
This legislation demonstrates another Liberal smoke and mirrors show, another deviation from an election commitment.
I want to go through and in fairly precise detail talk about the mechanisms that this law would create.
I was in the House to listen to the government House leader's presentation. With great respect to the work she is doing, the reality is that many of the things she said, and I pointed one of them out in questions and comments, simply did not accord with the text of the legislation.
It is not sufficient for the minister to reassure us of the government's good intentions, or to somehow interpret what the government is trying to do, or wants to do or wants the legislation to mean. What is important is the substantive text of Bill C-22. If we think through the actual process in place, the mechanisms that the bill would provide, there is not any kind of seriousness in terms of parliamentary review or oversight being proposed.
I want to remind members of a commitment the government made during the election, and I found this on the Liberal Party website. It said that it would create an all-party committee to monitor and oversee the operations of every government department and agency with national security responsibility. Clearly, all-party was mentioned as well as providing meaningful review of past and oversight of present operations. This clearly was the commitment that was in place.
The House passed private members' bills that were proposed by members within the government. The parliamentary secretary who just spoke proposed Bill C-622 and the member for Malpeque previously proposed Bill C-551. It is interesting to look at what was being said by that party when in opposition in terms of structure and mechanism and what this would do, what those private members' bills proposed to do, and the slight of hand variations that were not even being acknowledged in the speeches but are present in Bill C-22. These are the major concerns we have.
Let us just go through it. I am going to talk about the limitations with respect to the appointment process as well as the provision of information, and then finally about the limitations in terms of the reporting process.
In terms of the existing appointment process, unlike Bill C-622 that was proposed previously by the now parliamentary secretary, this bill would provide for not only the appointment of the chair by the Prime Minister, but also the appointment of every member of the committee. It does say that not all of the members can come from the government, but the three members of the House of Commons who are not members of the governing party could be anyone who the Prime Minister chooses.
These could theoretically be independents recently departed from the government caucus. I do not know if that is likely but that is possible. There is nothing in this legislation to suggest that the official opposition would necessarily be represented. There is nothing to suggest that the committee structure should be reflective in some sense of the composition of the House or similar to some degree with what exists in parliamentary committees. This would be a committee where the Prime Minister could, at will, choose seven members of Parliament who he thought should be on that committee and then also two members of the other place.
There is a requirement for consultation with the leaders of parties from which members are appointed if that party has recognized status in the House of Commons. There is no requirement for consultation with the leadership of Senate caucuses or with the leadership of a party in the context of appointments in the Senate. There is no requirement for consultation in the case of members being appointed who are not from recognized parties. Perhaps more importantly, there is no requirement that the consultation actually be meaningful.
The legislation does not say that the leader of another party has to agree. What would be much more sensible, I would argue, if this process were more serious, would be to have the leaders of the different parties put forward names of those within their parties, as is normal practice, and the committee would then select its own chair. However, there is not a meaningful requirement for the engagement of other parties. It is totally and completely up to the Prime Minister as to who gets appointed.
I want to draw the attention of members to subclause 4(3) of the legislation, subtitled “Not a committee of Parliament”. The committee would not be a committee of either House of Parliament or of both Houses. That is a distinction we need to appreciate. The legislation says very specifically that this would not be a parliamentary committee. It would be a committee that happens to include parliamentarians but parliamentarians who are appointed by the Prime Minister and who effectively report directly to him, which I will talk about.
It is interesting, as well, that the way the committee would operate is different from what those of us who participate in parliamentary committees are used to. I will just read a couple of other sections of the bill. These are important to read into the record, as people earlier in the debate were saying things about the bill that just do not reflect the substance of what we are seeing in the bill. Clause 18 states:
Meetings of the Committee are to be held in private if any information that a department is taking measures to protect is likely to be disclosed during the course of the meeting or if the Chair considers it to be otherwise necessary.
Therefore, it would not be up to the will of the committee to determine whether they move in camera, as is the normal practice. It would be solely at the discretion of the chair.
The voting rules would be different as well. The bill states:
The Chair may vote at meetings of the Committee and, in the case of an equality of votes, also has a deciding vote.
This is again different from the normal procedure. Effectively, the chair would always vote, as I understand this section, and in the case of a tie, the chair would vote again. This is a situation where although the government would have only four members from the House, and potentially two appointed members from its own side from the Senate, the chair would effectively have two votes. He or she—but we know who it is going to be; it is going to be a he—would have the ability to vote twice. That is unusual. That is a pretty substantial deviation from the way the process normally operates.
These are limitations in terms of appointments. It is very clear that the government has designed an appointment procedure that gives all the control over who sits on the committee, and by extension, over aspects of its deliberations, directly to the person who happens to be the Prime Minister. Clearly, it would not be a parliamentary committee. It would be a committee made up of some parliamentarians but would not at all be a parliamentary committee.
We go on to the issue of the provision of information in the bill. What information is to be provided, and how would that information then be considered and synthesized by the committee? Again, there are substantial limitations in terms of the work of the committee.
I attended the technical briefing last night, and we were told by the Minister of Public Safety that the goal is to include, as much as possible, both retrospective review and oversight of current operations.
Yet if we look at clause 14 of the legislation, which deals with exceptions, the exceptions would effectively include any possible scrutiny of ongoing operations. I draw the attention of members to clause 14:
(b) information respecting ongoing defence intelligence activities supporting military operations, including the nature and content of plans in support of those military operations;...
(e)information relating directly to an ongoing investigation carried out by a law enforcement agency that may lead to a prosecution;
Effectively then, it would be anything related to investigations that may hypothetically lead to prosecutions or anything related to military operations. I do not dispute the value of some exclusions, although these are people who are going to go through the process of getting security clearances. They are going to be approved for the purpose of doing these kinds of reviews. It is interesting that right at the outset, these exclusions would effectively seem to exclude most of the kinds of information that might be related to ongoing operations. Those exclusions would happen right at the outset.
That is not all. It is not just those automatic exclusions. In clause 16 we have sort of a discretionary exclusion for the minister involved that is extremely broad. It says:
(1) The appropriate Minister for a department may refuse to provide information to which the Committee would, but for this section, otherwise be entitled to have access and that is under the control of that department, but only if he or she is of the opinion that (a) the information constitutes special operational information, as defined in subsection 8(1) of the Security of Information Act; and (b) provision of the information would be injurious to national security.
Again, in the official opposition, we understand the importance of the sensitivity of this information, but this would be a matter of the opinion of the minister; this would not a matter of saying that in the opinion of experts there is a risk to national security. This would purely be a subjective determination by the minister saying that we do not want to give this information to this committee, because in the view of the minister, it is injurious to national security, but we do not actually have to justify that belief in any objective sense.
The legislation is clear that the committee would not have a mechanism, for instance, to challenge the exclusion in court.
The committee, already appointed by the Prime Minister, dominated by members of the government, where the chair, appointed by the Prime Minister, would effectively have two votes, could still be refused information solely on the basis of the opinion of the minister without any kind of review of that determination by the minister.
We talked about the limitations and exclusions in terms of appointments. It is clear that there are substantive limitations and exclusions in terms of the information an already secretive committee would receive itself privately.
Let us go on to the limitations in terms of reporting. Who would the committee report to? The Prime Minister would be appointing it, and the Prime Minister could determine that it would not receive information. Who should the committee report to? Well, let us keep it in the family. The committee would report to the Prime Minister. That is right. This committee of parliamentarians would not report to the House; it would report directly to the Prime Minister. Of course, the Prime Minister would then provide that information back to the House within a certain number of days. I believe it is within 90 days, but the Prime Minister would have total unfettered discretion in limiting what he tabled. I am going to read again from the legislation itself, subclause 21(5):
If, after consulting the Chair of the Committee, the Prime Minister is of the opinion that information in an annual or special report is information the disclosure of which would be injurious to national security, national defence or international relations or is information that is protected by litigation privilege or solicitor-client privilege or, in civil law, by immunity from disclosure or the professional secrecy of advocates and notaries, the Prime Minister may direct the Committee to submit to the Prime Minister a revised version of the annual or special report that does not contain that information.
I am sorry, it was not 90 days. The timeline between the Prime Minister receiving this and when he would be obliged to table it would be 45 days.
In terms of this section, it is very clear that, first of all, the Prime Minister would have full and complete discretion in terms of what is and is not tabled. He could go back to the committee and require it to make these kinds of changes before it was tabled. However, it is also clear from this section that he would not even need to invoke national security or national defence, because the section includes, as well, a reference to international relations.
In other words, if the Prime Minister believed that something in this report, which would then be tabled in the House, might have a negative impact on the reputation of the government and therefore would have some implications for our international relations, then on that basis, not even on the asserted basis of security, the Prime Minister could then go back to the committee and say that it needed to exclude that information.
What options would the committee have? Of course, in a normal situation, where we were not dealing with secrets, there would be an opportunity to publicly raise some objection. However, the committee could not do that. There would be no ability for the committee to then draw the attention of the public to this information in some other way, and quite appropriately, in this context.
However, we have to ask what is actually going on here. What is the effective check on the power of the government? Surely that is what is behind the very notion of parliamentary oversight, that there would be some opportunity for parliamentarians to meaningfully check the activities of the intelligence agencies that are accountable to the government.
However, there is no such check. The Prime Minister would fully dominate the appointment process. The Prime Minister and the cabinet would fully dominate the question of what information would flow to the committee, and the Prime Minister would be directly and fully in control of what information was or was not tabled in the House. This clearly is not in any sense a meaningful mechanism of scrutiny, at least as the bill presently stands. It is not a meaningful mechanism for checking the exercise of power by the government.
It is also worth looking at some of the differences between the legislation before us and the other private member's bills we have heard. Again, a few of them I have mentioned. Some of these other proposals refer to an all-party committee and not just to other members being chosen by the government. They also refer to the election of a chair by members.
Also, the legislation before us provides for significant remuneration not just for the chair of this committee but for all the members of the committee. That is a difference from what was promised in the past. The stipend available for the chair, and again the chair position has already been promised to someone, is substantially higher than the normal stipend for committee chairs.
We see these deviations, but we do not see a meaningful check in place.
I would very quickly mention that there are alternative models. The government has referred to our Five Eyes allies. It is worth underlining, for example, the British model, which does involve a parliamentary committee. It is not just a committee that happens to be made up of parliamentarians but is an actual parliamentary committee that reports to Parliament and is, of course, bound by all the same laws this committee would be bound by in terms of respect for secret information. However, it is ultimately accountable to the law and to Parliament, not to providing a report exclusively to a prime minister.
We also have a Canadian law that, frankly, has worked very well. The government has to explain how this addition would interact with our existing, highly effective Canadian model. It is not a parliamentary oversight model. It is a model of genuinely expert, independent oversight.
We have an intelligence review committee that is actually chaired by a former parliamentarian and has the expertise and the ability to provide an effective check, which this legislation just would not. Unfortunately, this is smoke and mirrors, not a substantive check on the power of the government.