Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 16 - Evidence - Meeting of June 14, 2017
OTTAWA, Wednesday, June 14, 2017
The Standing Senate Committee on National Security and Defence, to which was referred Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts, met this day at 10:03 a.m. to give consideration to the bill.
Senator Daniel Lang (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on National Security and Defence. My name is Daniel Lang, senator for Yukon. On my immediate left are clerks of the committee, Adam Thompson and Mireille LaForge. I would like to go around the table and ask each member to introduce themselves, starting with my favourite deputy chair.
Senator Jaffer: I'm Mobina Jaffer from British Columbia.
Senator Kenny: Colin Kenny, Ontario.
Senator Griffin: Diane Griffin, Prince Edward Island.
Senator Boniface: Gwen Boniface, Ontario.
[Translation]
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
Senator Moncion: Lucie Moncion from Ontario.
[English]
Senator Harder: Peter Harder, Ottawa.
Senator Lankin: Frances Lankin, Ontario.
[Translation]
Senator Dagenais: Jean-Guy Dagenais from Quebec.
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec. Welcome.
[English]
Senator Beyak: Lynn Beyak, Ontario. Welcome.
The Chair: Thank you, colleagues.
Today, we will be meeting three hours to continue our study of Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts. The bill was referred to this committee on May 30, and on June 5, we began our study. We have heard from 25 witnesses since the study began and have met on Wednesday, June 7, as well as on Monday, June 12.
This is our fourth day of hearings in two weeks. I would like to thank all members of the committee for their commitment to reviewing this bill and for seeking to address a number of significant concerns that have been brought forward.
Joining us in our first panel today is Mr. Charles Robert, Clerk of the Senate of Canada, and Mr. Michel Patrice, Law Clerk and Parliamentary Counsel. Gentlemen, welcome. We have invited you here to help us gain a better appreciation of the issue of privilege as it relates to parliamentarians, as the bill before us will seek to remove privilege from any member of Parliament who serves on the committee.
I would like to begin with congratulations to Mr. Robert on being nominated as Clerk of the House of Commons.
I should start out by saying that I understand that you have no written statement for the purposes of the meeting today.
Charles Robert, Clerk of the Senate and Clerk of the Parliaments, Senate of Canada: That's correct.
The Chair: You're here to answer questions we all have in respect of what parliamentarians would be giving up if they agreed to, I believe it is, clause 12 of the bill that's before us.
I would also let you know that we have one hour for this meeting, and then we have another panel that we'll be proceeding with.
First of all, as the chair, I will begin by asking one question of the clerk, if I may, and perhaps of both of you. Can you explain why parliamentary privilege is so important to the functioning of Parliament, especially for MPs and senators as they discharge their duties as parliamentarians? That way we fully understand what it is and why we have it.
Mr. Robert: We'll both share in giving an answer, but let me start off by saying that parliamentary privilege exists to provide parliamentarians with the immunities, rights and powers necessary to allow them to discharge their functions unimpeded, so that they can work effectively and efficiently without fear of being interrupted in the pursuit of their work.
The very first privilege was probably freedom from arrest and freedom from hindrance when travelling from their home base to Parliament. Freedom of speech was recognized in the late 17th century under article 9 of the Bill of Rights, and that is regarded as the most fundamental privilege that is enjoyed individually. There are also corporate privileges which the Senate exercises as a parliamentary body: control over its proceedings; less perhaps important today, the power to punish for contempt; and the power to discipline its members and those who interact with Parliament.
Those would be the privileges, what they are and why they exist.
Michel Patrice, Law Clerk and Parliamentary Counsel, Senate of Canada: Basically Mr. Robert summed it up very well. I would add that these privileges were provided in section 18 of the Constitution Act. They provided an enabling provision, meaning that the Senate and the House of Commons could give themselves the same privileges that existed in the U.K. in 1867. Parliament did so by enacting section 4 of the Parliament of Canada Act, which claimed all the privileges in the U.K.
The Chair: Colleagues, we will move right to questions.
Senator Jaffer: Thank you very much to both of you for being here. We appreciate it. We are struggling with parliamentary privilege.
I have two questions. First, is parliamentary privilege absolute? Does it exist for every situation, or is it for certain situations?
Mr. Robert: Parliamentary privilege exists to protect Parliament and its deliberations or its proceedings. As Senator Lang and I were discussing just before the committee met, a parliamentarian would have the privilege of freedom of speech while participating in an activity that is recognized as parliamentary. This committee proceeding is parliamentary, and it's protected by privilege.
However, if you repeated something that might be thought defamatory outside of this context or outside the chamber, you could be liable for a charge of slander. In fact, the privileges exist within the confines of legitimate parliamentary activity.
That's why I think in Bill C-22 they deliberately declare that you are not a committee of the Senate or the house or of Parliament. They're trying to establish that you are functioning inside a context that is not parliamentary.
Senator Jaffer: Mr. Patrice, I have a question for you that I'm struggling with. This is not a committee of Parliament; it's a committee of parliamentarians. I'm thinking it's outside of Parliament but it consists of parliamentarians. That's number one.
Number two, which is a more important thing and what most of us are concerned about, is that I can only speculate the reason parliamentary privilege does not exist is because of what information would come and, if it were shared, what the consequences could be.
Can you expand on that, and can you tell me if I am thinking properly?
Mr. Patrice: I think your assessment is correct. Obviously, and as has been pointed out by many members of this committee, this committee is not a parliamentary committee. It's a committee of parliamentarians, composed of members of each house but not functioning within the context of the proceedings of Parliament, i.e., by default, privilege does not apply because that committee would not be a committee of Parliament.
In terms of the exception or subclause 12(1), the objective is that a committee of parliamentarians would receive confidential information, classified information, and what they want to preclude is that a member of that committee of parliamentarians doesn't then go into a proceedings of Parliament, be it this committee or a chamber, to disclose that confidential information.
Senator Jaffer: Why is that important? I know why, but why can't we?
Mr. Patrice: It's because they removed that protection. If you were to then disclose confidential information obtained through that committee of parliamentarians in that proceeding, then there's no liability that is attracted, be it civil liability, defamation and so on, or even criminal responsibility or obligation.
From what I understand, members of that committee will have to take an oath to respect the confidentiality of information that, for example, would be covered by the Security of Information Act.
Mr. Robert: There's an interesting point that I would like to add to what Mr. Patrice has said. When you look at subclause 12(2), it says:
A statement made by a member or former member of the Committee before either House . . . is admissible in evidence against them in a proceeding referred to in subsection (1).
That is not unlike what happened when, in 1871 in the United Kingdom and in 1875 in Canada, we allowed witnesses appearing before committees to be sworn in. They were liable to the criminal charge of perjury. Perjury can only be determined if you use what statements they make as evidence in court to determine whether or not the perjury is valid as a charge. That was an exception to article 9 of the Bill of Rights, because article 9 says that proceedings in Parliament are not to be questioned outside of Parliament or in any court. However, with a perjury charge, you have to use the evidence of Parliament in order to prove whether or not you actually violated your oath to give true testimony to a committee. This is a parallel circumstance.
Senator Lankin: The person has already been alluded to in subclause 12(1). We're talking about classified information that people become aware of, and we're talking about the provisions of the Security of Information Act. For example, the special review bodies that exist don't have such a thing as parliamentary privilege.
Members of CSIS or the RCMP swear their oaths. If they become aware, through the work they do, of items that are classified as national security items and protected by the Security of Information Act and they publicly disclose that, they're vulnerable to the potential of a charge, and so would the members of this committee.
It means that members of the committee cannot stand up and disclose classified information. If a member of the committee stands up and suggests the minister that appeared before the committee wasn't completely truthful, this might be unparliamentary, but it doesn't mean that they would have privilege from the perspective of libel in debate there. However, what they learned in the committee, that's classified. There's a distinction.
I said in a discussion that we were just having, either someone could be hyper-partisan or stupid and disclose information, but once you've sworn an oath of secrecy and you get documents that say "classified,'' the best course of action is not to talk about it except among yourselves in that group.
That's the first thing that I take from what you said. We did hear testimony on Monday from a law professor from Lakehead University. I've seen some opinions contrary to what he said already, but I'd like you to address this.
I'll start with you, Mr. Patrice. His testimony was that because privilege is provided through provisions of the Constitution you can't, he says, pass a law that takes away rights that are given to people by the Constitution. I think I'm paraphrasing this right. Therefore, there will be, and it will be successful, a constitutional challenge to this particular provision.
That's beyond my pay grade. Can you speak to that from a legal perspective, please?
Mr. Patrice: Yes, I read the testimony of the gentleman that you're talking about. With all due respect, I think he's confusing certain issues. We're talking here about parliamentary privilege. With parliamentary privilege, as I said, the British North America Act, the 1867 Constitution Act, provided an enabling provision granting to Parliament the ability to enact privilege.
It was not an obligation. Those privileges were not conferred automatically on the federal Parliament, on both houses. It was an enabling authority. Then Parliament decided, in its wisdom at the time, to claim all the privilege that existed at the time in the U.K. It's not a constitutional amendment, as he seems to address in his testimony. That would be a question that had been addressed in the Senate reference. The carving out of a portion of the privilege that applies to the house, or to the members of the house, is not a constitutional amendment per se. It's a matter that's covered under the Constitution, but it's not a constitutional amendment.
Mr. Robert pointed you to the issue of perjury. Perjury was also a carve-out when they decided that the committees could swear witnesses under oath, which is not the norm and which was not the norm at the time, because basically before a committee every witness must tell the truth, regardless of the fact that we swore under oath or not. The consequences then become: If I lie, then I can be held in contempt of the house.
When Parliament decided to grant the committees the ability to swear witnesses under oath, then it attracted the Criminal Code sanction of perjury, which is a carve-out because, as Mr. Robert pointed out, then that particular testimony, if somebody were charged with perjury, would be used against the general, more broad principle of freedom of speech before Parliament.
With all due respect, in terms of this provision not being constitutional, it doesn't stand the test of my judicial analysis, my legal opinion.
Senator Beyak: Thank you, gentlemen. I'm going to read my question exactly because you've both answered most of it, about the perjury and the swearing in, but I want to make sure that the act is covering it properly.
Witnesses before parliamentary committees are required to tell the truth. How are committees of Parliament able to ensure that evidence is truthful, and what power do they have if someone misleads a parliamentary committee?
I'm asking because the committee proposed in Bill C-22 does not have any powers as a parliamentary committee would have to ensure that it receives truthful testimony. I'm concerned by that. Can you clarify?
Mr. Robert: This is where there's a bit of confusion because this is not a parliamentary committee; it's a committee of parliamentarians. You don't have recourse to the powers that are available to you as if it were a parliamentary committee. You cannot charge for contempt. I didn't see in the bill that there were any sort of powers you have for swearing in or anything of that sort because in fact this is a committee that belongs to the executive. It functions within whatever parameters the executive decides are appropriate or suitable for the work that you are charged with doing.
From that point of view, I think, Senator Beyak, the normal approach that you would take if you were a parliamentary committee doesn't seem to apply.
Senator Beyak: Does that concern you at all? It's a little concerning to me. How do we know if our witnesses are telling the truth?
Mr. Patrice: From what I can see in terms of how that committee would function in its mandate and its role, I understand that committee would, for example, hear from officials involved in the security field from various departments and have the minister and all of that.
Being kind of an executive body, one would assume that they would tell the truth because then, if they would not, they would have the normal sanction within their own departments and all of that normal employer-employee relationship. I definitely also sense that there's no power to send for persons or to subpoena power. There's definitely an obligation on the relevant department to comply with the request of the committee.
The Chair: Colleagues, just so we know, I'm going with the members that are the designated members of the committee first for questions, and those who are here that are not the members of the committee will be able to ask questions at the end because I want to get everybody in.
[Translation]
Senator Dagenais: Thank you to both of our witnesses. My first question is for Mr. Patrice. You said that Bill C-22 did not give the committee authority to summon witnesses. Could you give us a sense of how important that privilege is, as well as some examples? Are there committees that have the power to summon witnesses, or would this be the first?
Mr. Patrice: That's an excellent question, Senator. The power to summon witnesses to appear will depend on the role the committee carves out for itself and the way it operates. To be frank, it's speculation as to whether the committee will want to hear from witnesses outside the government security apparatus or whether it will receive information from the people it plans to hear from in the normal course of its activities, such as departmental or police representatives. We also know that it will have functional relationships with other oversight committees.
I do not see the need to grant the committee the power to summon witnesses. That would be necessary if the committee wished to hear from what I would call recalcitrant witnesses, people outside the Canadian security apparatus within the committee's purview. Parliamentary committees with that power rarely need to use it, but it could indeed be necessary from time to time.
Mr. Robert: That power has been used to compel witnesses to appear. The last time — and perhaps the only time in Canadian parliamentary history — that a witness was imprisoned for refusing to testify was in 1913, when R.C. Miller refused to testify before the House of Commons.
Senator Saint-Germain: I want to come back to the matter of a parliamentary committee as opposed to a committee of parliamentarians. You did a very good job explaining the issue around privilege in the national security context. Is there not another justification for making it a committee of parliamentarians? I am referring to parliamentary procedure, which requires a parliamentary committee to report to Parliament. Therefore, even a joint committee made up of members from both houses of Parliament would have an obligation to report to each house. That doesn't seem compatible with the idea of reporting to a designated minister in a national security context. Do you not think procedure comes into play here?
Mr. Patrice: The two models are completely different in terms of the committee's makeup and role. I noticed that the bill requires the committee to submit a report to the Prime Minister, who must eventually lay that report before the House.
Senator Saint-Germain: In other words, a parliamentary committee would not be compatible with the purpose of the bill.
Mr. Patrice: Precisely. If the committee were a parliamentary committee, its report would not go to the Prime Minister first. Under the bill, the report will eventually be laid before Parliament but will first be submitted to the Prime Minister.
Mr. Robert: If I understand correctly, the purpose of the bill is to establish the conditions for parliamentarians to study national security matters without jeopardizing national security or risking inappropriate disclosure.
Senator Saint-Germain: Thank you.
Senator Boisvenu: Welcome to the committee, gentlemen. I am going to pick up on the privilege that the bill does not extend to parliamentarians. That privilege is granted in the United Kingdom and New Zealand. Have you made a list of countries that adhere to the Westminster system — therefore, those with a comparable parliamentary system — and that have established a similar committee, to ascertain whether they opted not to grant or revoked that privilege?
Mr. Robert: Not necessarily in this context. When I studied parliamentary privilege, I learned that, in the German Parliament, the Bundestag, members are prohibited from making defamatory statements. Even as parliamentarians, they are not protected, not even within the parliamentary precinct. That was a deliberate decision they made to show that all parliamentarians have to respect citizens and their rights. As you can see, then, the culture can vary from country to country.
Senator Boisvenu: Do any Commonwealth countries with parliamentary systems similar to ours have a model in place like the one we are about to adopt through this measure? That's not meant to be a trick question.
Mr. Patrice: I must confess I haven't done a comparative analysis of other jurisdictions. I believe a note on the subject was prepared by the Library of Parliament and handed out. I'll just take a quick look.
Senator Boisvenu: Removing these privileges from the bill is, nevertheless, fairly rare, when you look at other jurisdictions.
Mr. Patrice: The committee in the United Kingdom with a similar role does not seem to enjoy parliamentary privilege.
Senator Boisvenu: Not in the beginning, but it was restored.
Mr. Robert: That was a choice. It does not mean that, initially, it was unacceptable, illegal or unconstitutional. It had more to do with having the right to express that privilege as you saw fit.
Senator Boisvenu: Thank you.
[English]
Senator White: Thanks to the witnesses for being here.
Ultimately, you're telling us the reality is that it's not necessary to have a long discussion on parliamentary privilege; it's not a committee in the same form as Parliament has anyway.
If I may, when I look at the United Kingdom model, the minister responsible to decide whether the committee can hear certain evidence that may result in a prosecution or under investigation, is the Prime Minister. In this case, the model doesn't actually state that. It states that a minister will determine.
Because it's a committee of the executive, as you said, in other words, the Prime Minister's committee, wouldn't it be better if the Prime Minister were the one to make those decisions directly rather than as in the U.K. model, if that's the one we're modelling it after? Doesn't that make more sense? Realistically, we could end up with two or three ministers using different tests to determine whether we do or do not see or hear evidence.
Mr. Robert: I'll use the rationale that Senator Lankin used: That's not in my pay grade.
Senator White: Based on your new employment.
Mr. Robert: That's right. It's a conflict of interest.
Mr. Patrice: Again, from my analysis and my review of the bill, I am going to say it's more a process choice that they make. Basically, I see that clauses 14 and 16 of the bill provide exceptions, so it's the minister, who knows the information, who knows the issue, who should make the call.
The model you are proposing is that the minister would then report to the Prime Minister, saying this information should not be disclosed because there's an ongoing investigation, for example, and it would be injurious to the investigation.
What happens in this process is, basically, the minister makes a call. The committee then has the ability to make a report to the Prime Minister. The committee then has the ability to report to the Prime Minister, saying that Minister X is refusing to give us this information and we need it in the pursuance of this mandate. Then, obviously, it becomes an issue for the Prime Minister to address whether that information could be disclosed.
Senator Kenny: Welcome, gentlemen. Am I correct in taking it that this clause is here in the bill really so that the government can take action against members of the committee itself? There isn't anything similar for the cabinet that might be in a similar situation.
I'd like you to comment on that. Then I'd like to hear a broader statement from you relating to the general consequences for members of this committee. Really, it seems like a preparation for doing something that's not parliamentary at all. We might as well not be. We could be any group that the Prime Minister chose, and that's not a bad way to think of us.
Mr. Robert: There are some elements of the question that are a bit difficult for me to answer. I think the purpose for removing your immunity is a way to demonstrate how important this government regards national security. This is a committee of parliamentarians, because it's a way to create a structure whereby parliamentarians can become informed about national security matters of a highly sensitive nature, while minimizing the risk of making that information public and creating liabilities if you should choose to run that risk.
That is why I think they've deliberately carved out the idea that even though you are a parliamentarian in this activity, you will have no privilege protection.
Senator Kenny: Neither does a cabinet minister, then.
Mr. Patrice: Cabinet ministers are also subjected to the Security of Information Act by way of their oath. Obviously, they also have a certain liability if they disclose confidential information that they obtain.
In that sense, that would not be that different. You're right, the way clause 12 is done, it would allow action to be taken against a member of that committee who discloses information. We were talking on the criminal side, for example, section 126 of the Criminal Code and the failure to comply with an Act of Parliament. There's the Security of Information Act, and also there is the civil liability aspect.
I tried to find a scenario in terms of civil liability and an example came to mind. If you hear there is a suspicion that Mr. X is a known terrorist and you disclose that, then that would be slander and a defamation claim if it's not true. Yes, it removes the protection and it definitely limits your ability to go from the forum of that committee to transpose the same information that you obtain in this forum or in the Senate Chamber.
The Chair: Colleagues, would you bear with me? I think it is important to follow up on this because that is the essence of the question that's being put on the request in this legislation to give up the privilege of a member of Parliament for the purpose of serving on this committee.
The way I understand it is: if I'm the minister responsible and I go into the House of Commons and discuss the question of public security, I still have all my protections as per the question of privilege in the House of Commons. Yet, if I'm a member of the committee with access to the same information that the minister has, and I go into the House of Commons or into the Senate to discuss a question of public security, I am at risk of being charged for anything I say in the Senate or in the House of Commons as a member of Parliament.
Is that not correct?
Mr. Patrice: That's correct.
The Chair: Following that, the question to you as officers of the Senate is: Are we not, as senators, if we are designated and requested to serve in that committee, putting ourselves in a vulnerable position from the point of view of possible legal consequences that could come from a slip of what was not deemed to be important information but turns out to be important information? Could that put the senator or the member of Parliament in a situation where they face legal action?
Do you want to comment on that?
Mr. Robert: I suspect there is a risk, but I think it would also depend in some measure on the degree of the slip.
The Chair: What I don't quite understand is why the minister has his privileges and the other members of the house and the Senate don't have the same privileges they are asking them to give up. You have been entrusted with certain responsibilities.
Mr. Patrice: I understand that.
The Chair: That's the only place you would have it, in the House of Commons or in the Senate itself.
Mr. Patrice: And in committee. I understand the parallel or the analogy you make and the different potential consequences in terms of a member of that committee and a minister. The consequences for the minister, obviously, could be removal from cabinet, for example. It's not the same.
A minister is also at risk of having a slip, but you're right, the consequences are not exactly the same. The minister, when he accepted the responsibility of a minister, swore a particular oath. A minister is also challenged from time to time in his dual role as a member of parliament, a parliamentarian, and as a minister and member of the executive. That's the nature of the system and the way it's done, but you're right, there are different consequences.
Mr. Robert: To build on what Mr. Patrice is saying, the minister is entitled, by virtue of his function as minister, to access to that information. Your entitlement to that information is dependent entirely, as a parliamentarian, on your membership in that committee. They are not identical.
Senator Kenny: One is chosen by the cabinet. The Prime Minister chooses his cabinet and he chooses this committee.
Mr. Robert: I don't see them as identical.
[Translation]
Senator Moncion: That makes me wonder why anyone would want to be on the committee, since they are not afforded any real protection. In any case, my question isn't about that.
It has to do with the power to summon witnesses, which is akin to an order to appear, and it comes up a lot. My question is this. We see it as an issue, but the House of Commons does not. Perhaps I'm mistaken or I don't have all the information, but why does it not seem to be an issue for this committee, since it wasn't included in the bill?
Mr. Robert: In the House, information-sharing goes on with officials, people in the government. They are really the ones in possession of this sensitive information related to national security. I imagine that most of them will be summoned by the minister to appear before the committee. Therefore, it's not the same issue that could conceivably arise involving members of the public, who aren't really bound by a minister or committee's requests. I don't think the power is something to be insisted on, because I can't foresee a situation in which it would be necessary.
Mr. Patrice: To repeat what Mr. Robert said, I would point out that, aside from the exceptions in clauses 14 and 16, the bill already requires public servants and members of the executive to cooperate.
Senator Moncion: Would the people called to appear before the committee be ministers or department officials?
Mr. Patrice: They would be public servants, police force members and so forth. That is how I understand the committee would work.
Senator Moncion: Very well. Thank you.
[English]
Senator Griffin: Can you explain how parliamentary privilege is important for the protection of witnesses and, in this case, what type of legislative amendments would need to be introduced to afford a similar level of protection for witnesses?
Mr. Robert: If we're talking about witnesses who appear before parliamentary committees, they're given the protection of privilege so that they can be truthful. Unlike the United States, they don't have a Fifth Amendment plea to hold back information that might be incriminating.
Committees of Parliament want to possess the truth. They want the full knowledge in order for them to properly function and carry out their work. The protection of privilege is afforded to witnesses so they would have no fear, just as any parliamentarian would have no fear, to speak plainly.
Senator Griffin: In this case, is there anything that can be done? If it's not to be a parliamentary committee, is there any other amendment we can put in that would afford a similar protection to the witnesses?
Mr. Patrice: It's a question of whether or not those witnesses need protection. That is the issue at the end of the day.
A parliamentary committee goes into an investigation, calls members from the public, and can call a whistle-blower or receive from different stakeholders and all of that. I'm not sure but I don't see that the same relationship is happening in terms of the functioning of that committee.
Civil servants, officials, ministers, members of the RCMP and members are going there, following, essentially, orders from their boss. I don't see that they would need that protection. The same as we here. Although we're protected by parliamentary privilege, I don't feel that I need that protection from my boss, the Senate and senators.
Senator Cools: I'd like to thank the witnesses for joining us today. I would perhaps begin by urging this committee to study this bill long and hard. It is far more complicated and dangerous than anything that we believe.
They have chosen in the bill to call this collection of members a committee. The bill is called An Act to establish the National Security and Intelligence Committee of Parliamentarians but, as we know, a committee is a delegated authority. This Senate committee right now is a delegated authority from the Senate.
In the instance of this committee, since the committee is a delegated authority, what is the parent body that is delegating its authority to this committee? That question is not answered anywhere here, and I thought you would be up to the challenge.
Mr. Patrice: I would say it's a statutorily established body.
Senator Cools: It is, but a committee is still from a parent body. It doesn't change the structure of a committee. A board of directors can constitute committees.
Mr. Patrice: I would say it's a statutorily created body which provides for governance in terms of, for example, reporting to the Prime Minister. I would say that it's not, as you say, in terms of a board and shareholders. It's a governance scheme in terms of what the executive decided to create: establish a committee by statute to play a certain role and that committee would then report to the Prime Minister to simplify in terms of the process and in terms of the achievement of its mandate.
Senator Lankin: I wonder if you could comment on the powers under clause 20 provided to the committee. This is the power to determine its own procedure to be followed in the exercise of any of its powers, including appearances.
There's a sense that regulatory powers might flow from this as well. At least one of the witnesses talked to us about that. What powers over the procedure that the committee utilizes does this section accord to the committee?
Mr. Patrice: This is more like typical drafting in the way that typical legislation is made.
Basically, clause 20 generally provides that the committee may set up its own procedure, but carves out or leaves out the possibility to make regulations. There's also provision in this act that will apply to its functioning, but in terms of the ability to make regulation on its procedure.
Senator Lankin: Could any of that regulation be, for example, swearing in?
Mr. Robert: Actually, it's not unlike the control parliamentary bodies have over how they conduct their affairs. This in fact is saying, yes, you will have that power and you can decide among yourselves how you want to do things.
I'll leave to Mr. Patrice the issue about regulation, but if you wanted to have procedures for having rounds of witnesses and each member will have 10 minutes, that's the kind of procedure that would sort of determine how you would want to conduct your affairs.
Mr. Patrice: It's a very good analogy made by Mr. Robert. Basically, we all know that committees of the Senate are masters of their own proceedings, but it's always subject to the Senate or a decision of the Senate. It's kind of the same nature. That means that unless regulations are made, the committee will set up all its own procedures. Then there is regulatory power by the Governor-in-Council, which again is typical of acts of Parliament.
Senator Kenny: I want to go back to the question of subpoenas. I have great respect for both Mr. Patrice and Mr. Robert, but there's a whole lot of experience that committees have where they don't have cooperative government witnesses and the instruction from the boss is: "Tell them as little as you possibly can.'' Your assumption that people will want to rush to this committee and have a heart-to-heart chat with members of the committee seems to be a bit of a stretch. Likewise, the assumption that the committee might not want to have non-bureaucrats come and appear before it is also a likely thing.
The beauty of having a subpoena is having a subpoena, not that you have to use it much. It is just if you have it, people treat the committee differently. I wonder if you have considered the hostility that may well exist in the public service to cooperate which we see from time to time.
Mr. Robert: I'll answer the question and leave the hard stuff all to Mr. Patrice.
In the context that we are of this law, you're creating a committee that is basically an agent of the executive. If it has subpoena powers, it's going to be applied how?
You're suggesting that civil servants are not cooperating and you want to have subpoena powers, but this is a committee of the executive and you're dealing with members of the executive. For me, it's a hard fit.
Senator Kenny: Mr. Robert, we ask the questions; you give us the answers. We've heard, for example, from SIRC, that talked about having terribly long waits to get certain people they wanted as witnesses. They didn't have a whole lot of cooperation.
The Chair: I should say this on the record. We had experience with the individual in charge of one particular agency and requested him to appear a number of times. For a number of times we were told there were reasons he or she couldn't appear.
Eventually, we said: "You're going to have to appear or else we're going to have to call you here before us.'' He came before us.
The question of the subpoena has to be asked. At least you have the authority, if called upon.
There are other issues out there, for example, in the public security domain, such as Air India which is still under investigation. There may be a requirement by that body for someone to come forward to give some evidence. I don't know. The point I am making is that there are areas other than just the civil service, possibly.
Mr. Patrice: Both to the chair and Senator Kenny's comments, in terms of using the example of parliamentary committees and having to deal with witnesses, I know during my career I've been involved in issuing subpoenas on behalf of a committee to call witnesses. It's a bit of a different model from the one entertained here, which is a committee of the executive, essentially.
Obviously, there is some information or context that we are missing in terms of the role of that committee, whether it's going to go outside the realm of the family of public servants and security agencies. We don't have the context to determine whether subpoena power would be required or the cooperation that SIRC is receiving from those different agencies, but definitely the model is a bit different from the SIRC model.
Senator Lankin: The purpose of the bill and the title of the bill are to establish a committee of parliamentarians. We're having a lot of talk about should it be something else or whatever, but this is a policy decision that has been put in front of us as a committee of parliamentarians. We're talking about the mechanics of how that will work, not the mechanics of whatever.
I know that my issues of scope don't go well in the Senate, but prospectively in the House of Commons — no, I can't ask you that.
I'm trying to root us in a conversation of what is before us as opposed to what we might like in the future. I don't know. Do we take anything in terms of direction and policy intended when we look at the title of the bill?
Mr. Robert: Yes, I think you can. You're creating an entity, a receptacle for receiving information of national security importance and significance. You're trying to make it a permanent body. You're establishing a secretariat to support it. You have an executive director. It's meant to be a serious operation, but those who are entitled to receive this information, to benefit from the existence of the secretariat, are identified in this statute as a collection of parliamentarians.
As we said earlier, and I think it's point that has to be insisted on, this is a creature of the executive. It has statutory existence. It is meant to provide a channel of communication regarding national security issues to parliamentarians, but in the exercise of receiving that information, you are under certain constraints which are intended to maintain national security.
The Chair: Colleagues, we're coming to our conclusion. I want to go back to the question of privilege, again, and what a member of Parliament would be relinquishing if they were to go on this committee.
We have been told on record that the ultimate authority of parliamentarians on that committee, if they see something going awry and they do not agree with some areas of public security, is the House of Commons or the Senate, also called the "bully pulpit,'' to be able to try to redirect the government in certain areas.
The question I have is: If I were on that committee, or any member here were on that committee, without having parliamentary privilege and being able to express freely my thoughts about generally what was going on, I would think that each member would be somewhat inhibited from expressing their views because they wouldn't be too sure whether or not they would be putting themselves in a vulnerable position to be charged for some alleged comments that were made in the course of using the House of Commons as the bully pulpit. That's my question.
Mr. Patrice: It's an interesting question. Obviously, if you were a member of both this committee and that committee, sometimes you would be facing challenging situations because of the information you've gained through one forum and the information that you are gaining through this forum. There is no doubt about that.
Again, you will have to make choices and decisions on whether you want to put yourself under that committee, whether you're an appropriate person to go on that committee of parliamentarians, and whether you want to have all the freedom of acting in this forum.
Senator White: For clarity, we have heads of agencies appearing before this committee who cannot speak to things every single day. I haven't seen in five years one of them finding themselves in real, serious jeopardy as a result. They do this every day.
I don't disagree. Ultimately, the question is that people will have to decide if they can do that and, if they can't, don't sit on the committee.
Mr. Patrice: Exactly.
The Chair: Colleagues, I would like to thank our witnesses for appearing. The next witness will be by video conference.
Joining us on our second panel of the day, by video conference from the United Kingdom, is Sir Malcolm Rifkind, Former Chairman of the Intelligence and Security Committee of the British Parliament. Sir Malcolm has served as a member of Parliament and as a minister under Prime Minister Margaret Thatcher and Prime Minister John Major.
Welcome to the committee, Sir Malcolm. We understand you have an opening statement and we ask that you not speak too fast because we are doing translation here. Please proceed.
The Rt. Hon. Sir Malcolm Rifkind, KCMG, P.C., Q.C., Former Chairman of the Intelligence and Security Committee of Parliament (U.K.): Thank you very much, indeed. It's a great privilege to be invited to appear before the Senate committee of the Canadian Parliament. I will make a relatively short introductory statement so there's a maximum time for your colleagues to put questions to me.
I chaired the Intelligence and Security Committee of the United Kingdom from 2010 to 2015, a total of five years. I have a bit of background, first of all. Until the 1990s, our intelligence agencies had no parliamentary oversight at all and, indeed even more than that, did not operate under any act of Parliament. They came under ministerial, executive responsibility.
In the 1990s, for various reasons, it was decided to change that system and to create acts of Parliament which regulated our intelligence agencies. As part of that act, in about 1995, for the first time the Intelligence and Security Committee was created. It was created by an act of Parliament, but under that act of Parliament all its members were members of either the British House of Commons or the House of Lords. They were all appointed by the prime minister and, in the case of the opposition members, after consultation with the leaders of the opposition parties.
I was the minister of defence at that time, so I was involved in some of the preparatory work for that committee. The intelligence agencies in the United Kingdom were extremely nervous. Not only were they being subject to an act of Parliament, which they did not mind, but for the first time parliamentarians would have the ability to cross-examine them, to interrogate them, and to have access to some of their material. In the interests of getting their cooperation and making it smooth, to start off with the original bill, the original act, was relatively modest in the powers that it gave to the committee.
For example, the committee was entitled to request information from our intelligence agencies but not require it. Although the agencies always responded, of course, it was up to them what they chose to show. They were under no obligation to show everything. They made their own judgment as to what they thought was appropriate. That led to some considerable growing difficulties over the years.
The responsibilities in the act for the Intelligence and Security Committee were pretty modest. It was to deal with the policy, the finance and the resources of the intelligence agencies. Operations, which is one subject the public and Parliament tend to be most interested in, was not even mentioned. It was not given as a power.
In reality, over the years that followed, even without any change of the statute, the powers of the committee expanded. The main reason for that was that various governments found it useful if there were some major issue involving our intelligence agencies, either a failure of intelligence, or something equally important; a terrorist incident, or something of that kind, to be able to say, "We have invited the Intelligence and Security Committee to investigate this matter and we will give them full support.''
Let me bring the committee right up to 2012, that is, five years ago, when the committee that I chaired we took over. We did a root and branch review and came to the judgment that radical increase of powers was required. I had a preliminary discussion with David Cameron, the new prime minister, who said the government in principle was agreed to modernizing the powers of the committee and making it a committee with proper teeth, as it were.
Obviously I'm summarizing, but the main differences approved by Parliament in the Justice and Security Act of 2013 were, first of all, that the committee has the power to require the intelligence agencies to provide information from their files for the benefit of the committee's inquiries. The word "require'' is not limited in any way. The intelligence agencies cannot refuse to provide any information that the committee requires. If it felt that our requirements were unreasonable, the only appeal they have is to the prime minister, and, of course, prime ministers would be very reluctant to agree with the intelligence agencies against a committee because the prime minister would have to defend that decision.
There's no evidence so far of any prime minister choosing to act in that way, or indeed of the intelligence agencies appealing to the prime minister because they know that the whole purpose of the act is that the Intelligence and Security Committee should have full access to the information needed for their inquiries.
The second major change was that operations are now specifically dealt with in the statute, so that the Intelligence and Security Committee, the ISC, has full power to examine intelligence operations by MI6, by MI5, by GCHQ, and so forth. The only limit on that, and we ourselves agreed with this, was that our examination and our powers, so far as operations are concerned, should be retrospective. We have not asked for nor claimed at any stage that we should have the power to investigate an operation that is currently taking place, because we believe that most of these operations are so difficult anyway that the last thing the national interest requires is the agencies being supervised as they are carrying them out.
We are conscious of the fact that if you limit your powers to retrospective operations, there might be a temptation for the intelligence agencies to have operations which spanned several years and therefore, in practice, were able to block investigation during that period. Therefore, both the act itself and a memorandum of understanding that we agreed with the government while the act was being approved by Parliament, actually provide for the proper test that will be made as to whether the question of retrospection is being met in substance, without the agencies being able to wriggle around that unreasonably.
Another main change was that when the committee was first formed it was undoubtedly a committee of parliamentarians, but essentially it was not a committee of Parliament because the prime minister had all the relevant power as to the personnel of the committee. Our reports were reports we made to the prime minister. Only after the prime minister had examined it and his colleagues had examined was the report published. That has now changed.
The prime minister still recommends the members of the Intelligence and Security Committee, but they have to win the approval of Parliament for these recommendations. If Parliament either rejects an individual or all the individuals, the prime minister has to go back to the drawing board and bring forward new suggested persons. So far as reports are concerned, they are now submitted jointly to Parliament and to the prime minister rather than just to the prime minister in the first instance. There are a number of other detailed reforms of that kind.
I should mention one other major change which is not in our acts of Parliament but in practice is now working and has been agreed with the intelligence agencies. We took the view that if we now had the power to require the intelligence agencies to supply all the information we needed, we had to be absolutely certain, if we said that in our public report, that we really had had access to all.
What happens now is when we are carrying out an investigation, the intelligence agencies will look through all their files. They will send us all the information. The test they would use is exactly the information they would send if it was an order of the court, of the judges they were responding to. In addition, they have agreed that our staff now have the right to go into MI6, to MI5 and to GCHQ and actually examine the files and examine, in particular, any files which may in some way have relevance to our investigation but which the agencies thought were either duplicating material they had sent us or not of any significance to justify wasting our time with them.
Occasionally we have found documents, not in a sinister way, that give added corroboration or added evidence which we might not otherwise have had. This has proved a very useful power. When you think about it, it is remarkable that the parliamentarians on the committee actually have the right, both themselves and through their staff, to go into the agencies and investigate all that they do.
If I may make one final comment with regard to these introductory remarks, I'm not an expert but I've read the general details of the kind of committee you are considering. It is described in the document I've seen that its function would be to monitor and oversee the operations of every government department and agency with national security responsibilities.
That sounds actually rather different from the remit of the Intelligence and Security Committee in the United Kingdom. Our remit is essentially intelligence and the intelligence agencies. We only go beyond the intelligence agencies when there is some intelligence dimension as regards either government departments or other activity of that kind.
For example, our Ministry of Defence has its own defence intelligence remit partly to help the military, but actually some of our best intelligence analysts in the United Kingdom happen to be in defence intelligence, and we monitor their activities. We have oversight of defence intelligence but not of the rest of the Ministry of Defence.
Likewise, if we take evidence from the Foreign Secretary, who has the statutory responsibility for MI6 and GCHQ, or from the Home Secretary, who has responsibility for MI5, we do not extend our questioning, our cross-examination and our recommendations beyond the intelligence dimension itself. Of course, inevitably you sometimes have to include questions which have a national security dimension to them, but our Parliament has a joint committee on national security, a joint committee of the House of Commons and the House of Lords which has the primary purpose of looking at national security questions. The fundamental difference between the two committees is that the joint committee is a normal parliamentary committee and, like all parliamentary committees in Britain, they do not have access to classified information. They are never given any classified or secret information.
In the case of the ISC, it is almost exactly the other way around. We have complete access to top-secret material. Therefore, if there's ever a need for parliamentary scrutiny of any material, including sometimes police matters which involve secret intelligence, then we have the power to take evidence and to make recommendations on that.
The Chair: Thank you very much, sir. We'll start with Senator Dagenais.
[Translation]
Senator Dagenais: Thank you, Mr. Rifkind. The Canadian government said it modelled the measure in Bill C-22 on the British mechanism. The way the bill is written means that the Prime Minister has already chosen the chair of the future committee without any consultation and even before the members of the committee have been appointed. How would you say your model, which has evolved over time, is more democratic and credible?
[English]
Mr. Rifkind: Up to the time of my own appointment, and including my own appointment, it was exactly the same as you have just described. I was appointed by David Cameron, as the chairman of the then Intelligence and Security Committee, and only thereafter were the members of the committee then considered.
Under the arrangements we now have since our Justice and Security Act, substantial change has been made. As I mentioned earlier, the prime minister recommends all the members of the committee. If they are approved by Parliament, when they first meet, they choose from among themselves who is to be the chairman. The chairman can come from the government side or the opposition side. Normally, one might expect it to come from whoever has the majority of members on the committee, but that does not automatically follow.
[Translation]
Senator Dagenais: Thank you very much. I would like to hear your take on the procedure to be followed by the committee in preparing its report. Pursuant to the bill, the Prime Minister consults with the chair of the committee, whom he has appointed, on the content of the report. Under your model, the Prime Minister must consult with the entire committee, not the chair. What difference does that make?
[English]
Mr. Rifkind: Perhaps I can best answer your question by saying very briefly what the procedure is.
When we prepare and are satisfied with our draft report, and only when we are satisfied, does it go to the Prime Minister's Office. The reason it goes is not for his approval. I mentioned earlier that when our report is published, it is published simultaneously for Parliament and the prime minister, but it goes to his office in order that we can discuss their views as to what parts of the report will need to be redacted, in other words, will not appear in the public version.
We don't go immediately to the prime minister. In practice, we first send our draft report to the intelligence agencies themselves for their view as to what ought to be redacted. They sometimes come back with rather wide-ranging redactions they require, many of which we may refuse to acknowledge. They cannot decide; they can only recommend. We either accept some of their recommendations or reject them.
Once that process is complete, then we send our report. The prime minister cannot amend our report; he cannot make any changes at all to it. All he does have the power to do is to indicate that certain words, sentences or paragraphs cannot be in the public version because that would damage national security.
He would tend to, first of all, come back to us because we always prefer to take responsibility ourselves for these redactions. Normally, it is a process of agreement. Indeed, I cannot remember hardly a single occasion when the prime minister took a final decision on redactions that we ourselves were not persuaded were sensible; but he does have the power, if we didn't reach agreement, to come to that final decision.
Originally, when the report was published, we used to unilaterally or simply leave empty spaces for the redacted material, which sometimes would be quite embarrassing because it would be half the report, if it were a sufficiently sensitive issue. We now use asterisks, basically indicating a certain portion of the material has been removed from the public version.
Senator Lankin: Thank you very much, Sir Rifkind, for joining us. It is important for us to hear the experience you've had.
I may start by saying I had the honour of meeting you and a number of members of your committee. I can't remember whether it was 2011 or 2012 when you made a visit here. I was a member of the Security Intelligence Review Committee at that time. You visited with us and we talked about your then committee of parliamentarians. You spoke to us about the catchphrase that people were using: "We're going to walk before we run; we're going to build experience.''
You also told us that fairly quickly you began to have access to and/or exercise powers of the committee that were beyond what the original mandate had set out, and that was with the support of the agencies and the prime minister.
I wonder if you could recount that for us, and in this context: Some people are commenting that the government here shouldn't have started with the committee of parliamentarians. They should learn from the U.K. and go straight to a parliamentary committee. That's not the mandate we have before us in this legislation.
Could you talk about that evolution for me, please?
Mr. Rifkind: Yes, I do indeed remember our meeting, senator, with you and your colleagues. I'm glad to hear that it was of use to you.
I should make it clear we are not, even now, a committee of Parliament in the normal sense that phrase implies because we are still a committee created by statute. We changed our name. It was previously the Intelligence and Security Committee. We are now the Intelligence and Security Committee of Parliament, but we are not a select committee. In various ways we are very different, even now, to a normal committee of Parliament.
First of all, the membership of many of our select committees is now elected by the house itself, by the members of Parliament, and not appointed by the prime minister. That has now become relatively unusual. Of course, 95 per cent of our sessions are held in private and without anyone being able to be in attendance apart from our witnesses and our own staff.
There are a number of other ways. I heard some of your earlier discussions on the question of parliamentary privilege. As we are not a committee of Parliament, we do not ourselves have parliamentary privilege. There are reasons I can explain as to why we are quite relaxed about that, but I can come back to that.
What happened in terms of the evolution of the committee to which you referred in your question came about for several reasons. First of all, in substance as well as in name, our committee, ever since it was formed, has been genuinely bipartisan, unlike, for example, the United States Senate committee or house committee, where you often get Republicans and Democrats voting in different ways. I can say with certainty there has not been a single political vote in our committee since it was formed in 1995 on party lines. Individual MPs might disagree with the majority, but it has never been a party division.
Why is that? There are a number of reasons. The first is the obvious one. It is because we are sitting in private and our proceedings are not reported. You're not going to get any particular political advantage in terms of the media on that day or on subsequent days.
In addition, the people normally invited to serve on the committee are relatively senior parliamentarians. Some have been ministers and no longer have any ministerial ambitions. They also tend to be people who, it's judged, know how to handle intelligence material.
These factors have led to the intelligence agencies having more confidence in not just sharing facts with us. Some of the most important intelligence we get from the intelligence chiefs who appear before us is not just the information that appears in their documents but their judgments as to the success or failure of an intelligence operation. When I say "intelligence operation,'' I don't just mean they are part of the intelligence operation. For example, there was a discussion during the period when Iran was developing nuclear weapons, or were perceived to be developing nuclear weapons. They would give us their perception as to how successful or otherwise the international attempts to restrict that were turning out to be.
One final point, which may be of importance to your committee, is that one of the reasons we developed a very constructive relationship with the intelligence agencies is that I made it clear from the very beginning, and my colleagues agreed with me, that we should not just sit privately but sit publicly. The purpose of our committee was twofold. First of all, yes, it was to examine the intelligence agencies and if they had done something stupid, wrong or improper, to say so publicly, if we could. It would embarrass them, but that was our function. We also had a second purpose, which also proved very important. If the intelligence agencies were being subject to unfair attacks in the media or in Parliament, and they were unable because they're intelligence agencies to openly and publicly defend themselves, in theory, the government could defend them, but they were employed by the government and therefore the government would not be seen as an independent arbiter. We were the only people who could actually examine the real facts of whatever the allegation was and come to a judgment as to whether that criticism was justified or not.
That happened when, during the Snowden affair, GCHQ, you may recall, were accused in The Guardian newspaper and elsewhere of having asked the United States to get intelligence on various people in the United Kingdom that the GCHQ would not have been entitled to get. That was a very serious allegation. We immediately investigated. We got access to all the information, and the information we got enabled us to conclude that the allegations were completely false. That's a solid example. Because that has happened, not often but once or twice, the intelligence agencies don't see us as an ally. They know we will thump them if they have done something wrong, but they also find it very encouraging and a great relief that there's some body of parliamentarians that can actually examine what they would perceive to be unfair allegations against them.
The Chair: Colleagues, we have 30 minutes left, and we have seven members who have questions. Please be brief. I would ask our witness if he could be brief, as well, in imparting all that information.
Senator Beyak: Thank you, Sir Malcolm, for your very helpful and knowledgeable insights. You'll improve our committee greatly with what you've told us today.
I think you've already addressed my biggest concern, because you are mostly in camera and your witnesses and your whistle-blowers are protected. There's nothing in our legislation that does that. There's no parliamentary protection for witnesses or anyone who wishes to disclose confidential information to the committee. In fact, the committee as proposed cannot call for papers or summon witnesses.
How important do you think it is that such a committee have the power to protect witnesses and those whistle- blowers who seek to disclose information to the committee? I do think have you answered it.
Mr. Rifkind: I've answered part of that. Of course, because we are dealing purely with our intelligence people, not on the wider national security issue, virtually in the whole five years I chaired the committee I cannot recall our witnesses either not being from the intelligence agencies or government ministers responsible for those agencies. We didn't need to invite people from the wider public.
On the question of parliamentary privilege, we didn't look at that. At one stage we thought it might be useful to get parliamentary privilege. At the end of the day, we decided not to pursue that because we were advised by the lawyers that parliamentary privilege could only be created by Parliament itself and if we tried to put that in the act of Parliament, then that might give the courts jurisdiction over Parliament. In the United Kingdom, and I'm not sure if the same is true in Canada, the sovereignty of Parliament is such that the courts cannot inquire into the way Parliament reaches its decisions and on matters of parliamentary privilege.
We didn't feel we needed it. Over all the years we operated it had never been there before and had not caused any difficulties, the fact that we did not have it.
Senator Enverga: Thank you, Sir Malcolm, for being here. Your wisdom and experience are very valuable to us.
Why is it advantageous to have cross-party consensus in the establishment of this committee? The legislation proposed by the government has caused opposition parties in the House of Commons to vote against the bill. These parties prepared a parliamentary committee but are being told that they need training wheels and cannot have such a committee.
Looking at the United Kingdom, and from your vast parliamentary experience, can you please tell us why it is important for us to have a cross-party consensus on this bill, including how the chair is elected?
Mr. Rifkind: It's important for several reasons. First of all, I think most members of Parliament and the general public would say that if you're dealing with our national security and our intelligence agencies, all members of Parliament, all political parties in our Parliament, believe in national security and believe in having proper intelligence agencies that are able to protect the public. Therefore, you start from the position where it should not be partisan. There is no benefit in an automatic partisan approach.
It's not just that. It's also a practical question. When the intelligence agencies regularly come to give us hours of evidence several times a year, it makes it a much more mature exchange if they think that members of the committee are not simply listening to what they say in order to have a political points scoring in subsequent discussions.
The third point is, of course, the reputation of the committee itself. If our reports, when published, had a majority from one party making recommendations with which the minority either didn't agree or didn't agree in part, that would weaken the effectiveness of the report itself. It makes it easier for those who don't like our recommendations to dismiss it as simply a partisan position.
What I'm saying, I know in theory, could apply to all select committees and parliamentary committees. In reality, the business of Parliament is to argue out in public different points of view. It would be very worrying if committees always reached consensus and didn't have differences of view.
As a personal opinion, when you're dealing with national intelligence and the role of intelligence agencies, you win more than you lose by a bipartisan approach for the reasons I've indicated.
Senator Enverga: Could you tell us, please, your opinion on how the chair should be selected?
Mr. Rifkind: Yes. Originally, we had one or two people arguing that if we were reforming the committee, why should we not allow members of Parliament to vote for whichever of their colleagues wanted to serve on the committee? That's how most of our committees are chosen. The government is not involved at all.
We ourselves came to the view, I think to the government's relief, that would be unwise and potentially dangerous. Let me explain why. When you are dealing with people who are to have access to the nation's most secret information, you have to be satisfied not just that they are loyal and wouldn't be traitors, and, of course, we would assume all members of Parliament would be loyal, but, equally important, whether they are people who know how to handle secret information.
The problem is that members of Parliament spend the rest of their time speaking to the press. That's their job. Part of being a parliamentarian is communicating your views through journalists, through the newspapers and through television. If you're going to be those members of Parliament who in addition to all the other information they have, have also read dozens of top-secret documents which, if in any way are disclosed even unintentionally or without any maligned interests to journalists, could do serious damage to the national interest, then that would be damaging to the national interest. Unfortunately, it means also that the chiefs of intelligence, when they come to give their evidence, have to bear that risk in mind. If they believe even one member of the committee is immature or likes speaking to journalists and showing off how much he or she knows, then they won't give you the benefit of their honest opinions, the intelligence chiefs.
It wasn't in our own committee but I know in one important select committee of the House of Commons, because one member of that committee was known to like to show off to journalists what he had learnt in confidence in the committee, when people came to give evidence to that committee they shared nothing that was not already public information because they couldn't take the risk.
To conclude, very briefly, that is why we judged that the prime minister had to make the initial recommendation but, unlike in the past, shouldn't have the last word. If Parliament didn't like the people he was recommending, he would have to go back and find others that he felt met the right criteria.
Senator Moncion: Good morning, sir. I'd like to know the governance structure of your committee and the type of information that you find in your bylaws.
Mr. Rifkind: When you say "governance structure,'' in what sense do you mean?
Senator Moncion: Within your committee.
Mr. Rifkind: How my committee operates?
Senator Moncion: Yes, and if you defined it in your regulations.
Mr. Rifkind: The only thing that is written down is that there's a chairman who is chosen by the other members of the committee. When that chairman is chosen, he or she remains the chairman for the rest of that Parliament until the next general election. The committee is automatically dissolved at a general election and has to be reconstituted.
In practice, when I was chairman, I was from the Conservative Party and my de facto deputy chairman, although not formally declared as such, was a senior Labour member, senior opposition member on the committee, just because it worked well and it made more sense to do it that way.
We have a clerk and a staff, as you would expect, but that is really the only governance aspects. I should also say that the offices we operated from were owned by the government. That was necessary because they had to be given all the proper security advice and security structures to make sure the very secret files that we kept in our office could not be penetrated by some hostile elements. That was a pretty expensive operation, but although they were provided by the government and the offices did not come under our budget, in practice we had control over what happened in them.
Senator Moncion: I want to bring it further. Do you have specific rules that you work under, or is it somewhat not a free-for-all but a framework within which you work? You could have free agents where people start going after information that they're not supposed to. Do you have just a set of rules that you work under?
Mr. Rifkind: Not so much a formal set of rules, but I hope I can answer your question in another slightly different way. We decide our own agenda. The government cannot instruct us to carry out any tasks. They can ask us, invite us to, but we decide that.
For example, on one occasion when we were already carrying out one inquiry and the government wanted us to do another, we said, "Only if you provide the resources so that we can employ additional staff because otherwise the quality of our work will suffer.''
The way in which the committee operates on a day-to-day basis is essentially the chairman working closely with the clerk and consulting the other members, but when we take evidence, the procedure from what I can see is very similar to your own procedure. The chairman invites all his colleagues to ask the questions that they think appropriate of the witnesses appearing before them.
Senator Moncion: Thank you.
Senator Harder: Thank you very much. I would like your comment on the relationship between the committee and the support staff and how they, in the early going especially, contributed to developing the culture you described that made the agencies and the parliamentarians more comfortable with the committee's work itself?
Mr. Rifkind: The staff are absolutely crucial because in a sense they are the keepers of the history of the committee as well as the documentation. MPs, as we all know, come and go. Some last for a long time; some are more transitory. It's quite important that the inherited wisdom of the committee, insofar as there is an inherited wisdom, is passed on to the next generation of that committee.
There's usually an attempt by the prime minister, supported by Parliament, to ensure there is some continuity in the membership, if that is practical. You want at least three or four of the members to have served in the previous Parliament. The chairman is either someone who has served as a member of the committee or may have been a minister. When I was foreign minister, foreign secretary, I had ministerial responsibility for MI6 and GCHQ, so I had handled intelligence issues from the ministerial point of view. I had now become a gamekeeper but the experience, to some degree, was there. We were fortunate in our own case that the lady who is the clerk to the committee has actually been in that role for about 10 or 12 years and has a lot of knowledge of precedents and so forth that might be appropriate.
Another thing I should say is that we didn't have it in the past, but we now have the power to go outside for specialist advice. For example, when we were doing an inquiry into GCHQ, and that involved quite a lot of detailed scientific and technical knowledge on cyber matters, which we as parliamentarians had a general knowledge but not a specialist knowledge, we had available in the room someone with security clearance who was able to advise us on the technical and scientific significance of some of the evidence we were being given with regard to cyber-related intelligence issues.
Senator Harder: Thank you.
Senator Jaffer: Thank you very much. I've had the pleasure to meet you a number of times, both in England and here when you met with our committee. I want to thank you. The government keeps telling us we need to go slowly, to have training wheels and to walk before we run. However, you've been there to help us through this process for many years, so I thank you.
I have two questions of you. One is on the concept that when this committee is formed the first thing we need to do is build trust between the intelligence community and ourselves. You said in your answers that if somebody speaks outside then the intelligence committee loses trust. It would be useful if you would share with us how you went about building this trust and how you ensure it's there all the time.
They may not like what you say, but they know you're fair and there is a trust relationship.
Mr. Rifkind: Thank you. I wouldn't want to try and make recommendations as to the pace of change that you use, whether you go slowly or whether you go fast.
Senator Jaffer: No, I was just reflecting. I'm asking about the trust issue.
Mr. Rifkind: I'm familiar with that. The point I wanted to make, though, was something you all want to bear in mind. While you don't want to go too fast for the initial committee, if you ever wanted to reform or improve it, you have to wait for an opportunity for new legislation. Sometimes you have to wait a long time for intelligence-related legislation because there are not many votes in it and governments have other priorities.
Our initial committee was formed by 1995, and we lived with some of the defects or some of the timidity of the structures that were set up at the very beginning for the first 17 years before we were able to reform in the way that we now have.
It's for you to decide what you wish to start with, but it's important to have a dialogue with the intelligence chiefs in particular, so that they are aware that you have no desire to be a threat to them, that it is part of a democratic structure, that they should be part of the oversight, and that you can be trusted in the handling of intelligence as individuals and collectively as a committee. I mentioned earlier being bipartisan is certainly a huge asset in winning that support.
Some people may ask: "Why do you have to go through all this? These intelligence chiefs, they are just officials. They have a duty to answer your questions and submit to your oversight.'' Yes, that is indeed constitutionally true, but there is an inevitable human nature involved. If people feel they are under threat then they will limit the information they share, the judgments that they share. They shouldn't be able to limit the facts they provide, but their judgments as to whether something went right or wrong will be influenced by whether they feel at the end of the day you're going to be fair. They know they'll be criticized.
I remember once when we had an investigation of something that had gone wrong with one of our intelligence agencies. We produced our draft report and showed it to the intelligence agency in question. The head of that intelligence agency said to me privately, "Your criticisms of what we did on this occasion are entirely fair, but you're making it appear that we're a complete bunch of useless amateurs who never get anything right.'' There was an anxiety as to not just whether our criticism was valid but whether we had got it in proper perspective across the whole spectrum of their activities.
At the end of the day, we decide what goes in our report, but if one is able to present a report in a way that doesn't seem vindictive, that doesn't seem to be enjoying punishing whomever you are investigating just for the sake of doing it, then they are grownups who will know the criticism may be justified, and the whole success of oversight is that much more likely to be achieved.
Senator Jaffer: I've heard members of Parliament of the House of Commons and senators speak about the workload for an individual. As you said, as is true for the House of Lords, we too don't run for elections but our colleagues in the other place do. If you're a senator and you're a member of that committee, the workload is tremendous.
How do members of your committee deal with it? How many hours a month or a week do you meet? It is a heavy workload to try and do both, be a parliamentarian and a member of that committee.
Mr. Rifkind: It is a heavy workload. As a workload, it is not perhaps any heavier than a major parliamentary committee. If you're a chairman or a member of one of the other major parliamentary committees, they may feel the workload is not that different.
However, there is a very fundamental additional problem that perhaps your question did not cover. Normally, if we as members of Parliament have a heavy workload, we take some of it home with us. We read it in the evening when we're at home after we've had dinner. We work perhaps until eleven o'clock at night and so forth.
Because the material we're dealing with for our investigations is all top-secret information, none of it, literally none of it, can be taken out of the offices of the Intelligence and Security Committee. The building that we work in is not far from Parliament, but it is a few hundred yards away.
Therefore, the real burden is that members of the committee have had to identify specific times of the day or specific days when you can physically be in the building not to do the taking of evidence, just to read the briefs, read the material. Otherwise, you will not be properly informed.
That is where I think the workload is significantly different from that of any other members of a parliamentary committee.
Senator Jaffer: I should know the answer to this, and I apologize. What is the makeup? Are you a joint committee with the members of the house or are you two separate committees?
Mr. Rifkind: No, we don't call ourselves a joint committee. In practice we are a committee of the House of Commons and the House of Lords. Traditionally, for obvious reasons, because our House of Lords is not elected, and I would have to check the precise number, six or seven members of the committee are always from the House of Commons and only one or two, at most, of the members are from the House of Lords. We had two at one stage, and sometimes there has been one. There would never be more than two. The actual party representation reflects the current party representation in the House of Commons.
The Chair: I'd like to follow up on a couple of questions, if I could, Sir Malcolm.
The first question goes back to the question of privilege. You spoke to it a bit earlier. If I understand correctly, you are a committee of the house but you are a committee by statute.
Mr. Rifkind: Not quite. We're not a committee of the house because Parliament is jealous about all its committees. It determines their standing orders. It determines whether they are created and so forth.
We are a creature of Parliament. We are created by an act of Parliament. Therefore, the parliamentary legal experts say that we are a very different creature to any other committee and do not automatically, for example, have privilege.
That could only be conceded if Parliament itself chose to give it to us. It does not automatically follow that they would because we are determined in all other respects by other rules and other procedures.
The Chair: I would like to pursue this further because the question of privilege has been raised a number of times.
The bill before us is recommending clearly that if you become a member of this committee you are relinquishing the privileges you have as a member of Parliament for the purposes of Parliament.
That's contrary to what you're saying. With your bill, you would have to go and ask if you could have privilege.
Mr. Rifkind: We're all members of Parliament. Therefore, for any work we do in the House of Commons or the House of Lords we have the same privilege as any other member of Parliament. Any statements we make outside, if we're doing it in a way that arises out of our position as members of Parliament, we are no different to any other members of Parliament.
What I was saying, though, is that the committee as a committee, or its report as a report, is not covered by privilege. In practice, that has never been even a marginal problem for us.
The Chair: To clarify this, then, I take it that you as a member of Parliament on your security committee maintain your privilege like the minister does in the House of Commons in respect to the public debate. Am I correct in that?
Mr. Rifkind: Broadly, yes. For example, when our reports are being debated in the House of Commons, as they often are, I as chairman of the committee, obviously, would be making a speech about matters. Anything I say in the chamber of the House of Commons, including ISC business, I have benefited from exactly the same privilege as any other member of Parliament and any other member of any committee.
Although we don't think it makes much difference, what is not covered by privilege, strictly speaking, is when we publish a report or when we do something collectively as a committee. The committee itself doesn't attract privilege. Nor do our reports. What we ourselves say in the House of Commons or in some forum of that kind has neither more nor less privilege than any other member of Parliament.
The Chair: Senator Lankin, do you want to pursue this?
Senator Lankin: I have a follow-up question. I think the distinction we've made is that for debating reports and those sorts of things, privilege would apply, but for any classified information that you receive by virtue of being a member of this committee, if you stood up and you revealed it, I don't know what your legislative provisions are for security of information. If you revealed classified information, are you protected by parliamentary privilege?
Mr. Rifkind: In no way we are, no. On the contrary, we are in the same position as any other citizen. We have an Official Secrets Act that covers all official secrets. As members of the Intelligence and Security Committee, we have no more protection than any member of the public or any other member of Parliament.
If we were to disclose that information in a way that breached the Official Secrets Act, quite properly we could be prosecuted. We would never dream of asking for any privilege that would have changed that provision.
The Chair: I'll just pursue this because it's an important issue.
The way I understand it, if a member of Parliament is on the committee and has the privilege, like you say, in the British House of Commons, then you will have privilege unless you divulge something that was classified information.
Mr. Rifkind: They are two separate matters, if I may put it this way. If you were in the House of Commons speaking in a debate and you attacked some member of the public's integrity or honesty, they cannot sue you for defamation because you can plead parliamentary privilege.
When I was chairman of the Intelligence and Security Committee, if I was speaking in Parliament in a debate and attacked someone's integrity, then I would have exactly the same privilege as any other member of Parliament.
The reports of select committees of Parliament themselves are protected by privilege. The actual reports, when published, cannot be used as a basis for any action in the courts.
We do not have parliamentary privilege as regards our reports because we are not a committee of Parliament in the sense that the other committees are. In practice, our reports do not enter into the business of the kinds of issues that result in defamation actions or issues of that kind. In addition, our own lawyers go through all our draft reports with a fine-tooth comb and with these sorts of matters in mind.
Remember also, we take evidence in actual proceedings that are all held in private. There is no public transcripts of that evidence.
The Chair: We've come to the end of our time. I want to thank Sir Malcolm for taking the time and spending it with us. It certainly has been helpful.
On behalf of all members, I would like to say thank you for appearing before us. I'm sure what you have said will have an effect on what decisions we take here.
Mr. Rifkind: Thank you very much. I've enjoyed being with you.
The Chair: Joining us as our third panel is Mr. Anil Kapoor, a lawyer who has served as a special advocate on survey certificate matters. He was previously appointed counsel to the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 and has served on the Prime Minister's Advisory Council on National Security. Presently, Mr. Kapoor is a member of the board of the Canadian Civil Liberties Association.
As this is not your first appearance before the committee, I'd like to welcome you back to the committee, Mr. Kapoor. We understand you have an opening statement. Could you please begin.
Anil Kapoor, Barrister, Kapoor Barristers, as an individual: Yes, briefly, if I can, having looked at this legislation as it presently stands, I'm struck by the following deficiencies and afraid that this may be a missed opportunity.
What we want to accomplish, I think, by way of this committee of parliamentarians is to have a unified and integrated review of the national security enforcement landscape. What I mean by that is a review body that has the power to look at all aspects of our national security mandates and is able to have unfettered access to the content of the various agencies, content which they rely upon in the execution of their mandates.
What strikes me in this legislation as problematic is the ability of the relevant minister to deny this proposed committee access to information that would be injurious to national security.
We can all agree that the committee, as it's structured and in its mandate, is not meant to meddle into ongoing investigation. When a matter has concluded and there's an opportunity for Parliament, the committee, and ultimately the citizenry, to have some input into how the national security establishment is doing its work, that can only happen if this committee is given access to all the materials, regardless of whether a particular minister thinks it would be injurious to national security.
That's what I mean when I say you ought to have unfettered access. Sadly, in this bill it seems as if that is not the choice being made by Parliament. This is no more apparent than in subclause 16(3) wherein if the minister is of the view that the information the committee seeks would be injurious to national security, you're meant to forward the minister's decision and reasons to the relevant dedicated review body. In the case of the RCMP, it's the civilian review body. In the case of CSE, it's the commissioner. In the case of CSIS, it's SIRC.
What you will be immediately struck by is that the decision of the minister frustrates the committee's ability to engage in a unified, integrated approach. Instead, the preference is for the minister to decide if it's subject to national security privilege, as we reference it in section 38 litigation. What happens then? We're back to the same old siloed review, where SIRC doesn't have access to the RCMP information and likewise across the suite of national security agencies.
In my respectful view, that is not what we should be doing. We should be having this committee of parliamentarians properly top-secret cleared and able to access that kind of information.
There should also be the ability to have a private or confidential report to the Prime Minister, rather than have what's called a special report, which would ultimately be also tabled in Parliament. Effective review sometimes requires confidence and the ability to advise the Prime Minister in confidence. If the need is that it must all be made public, that will seriously limit the scope of content the committee can gain access to and report on.
Finally, although it's not necessarily mentioned in this legislation, it would be the subject of regulation and appropriation. The committee needs to be properly staffed and properly funded, and I'm happy to address you what kind of architecture could properly support this committee.
Those are my opening comments. I'm happy to assist you in any way that I can. Thank you.
The Chair: Thank you very much. We'll start with questions.
Senator Jaffer: Thank you, Mr. Kapoor, for making yourself available. I'm sure you've been following these hearings carefully.
One of the things I'd like you to address is the issue of triple lock, clauses 8, 14 and 16, and the ongoing investigations. Do you think this would hamper the parliamentary committee?
Mr. Kapoor: I will deal with the ongoing investigation point first. It's appropriate that the committee not review ongoing investigations. Our agencies will be in the middle of an operation. They're making their decisions in real time. They need to execute on their mandate. From my experience, generally, they do a pretty good job. They should be allowed to exercise their operations as they need to exercise them.
The committee can really bring value-added by reviewing operations that have been concluded from the perspective of effectiveness, efficiency and mandates across the national security establishment and in terms of lessons learned that the committee can assist with. The committee should look at matters that have concluded, not matters that are ongoing.
I am of the view, as I said in my statement to commence this testimony, the committee should have unfettered access. It strikes me as passing strange that the committee would not be able to review the entirety of the closed information that CSIS has in its possession when it's germane to understanding the operation that's under review. The fact that this legislation places a premium on privileging that information makes me feel like this committee will just not have the tools necessary to dig in on these issues.
Senator Jaffer: You are very familiar with these matters, so let me push you a bit more on the ongoing operations.
I'm from British Columbia, so you can understand why I ask you this question. I've heard from some people in British Columbia that Air India is still an ongoing operation. When will there be an overview of how everything was handled and how things were dealt with?
There is this issue of who was killed and why it has taken so long, but I won't go into all of that — that's another day's conversation — except to say that there is this angst about how long is an ongoing operation. Air India is still an ongoing operation.
Mr. Kapoor: To your point, that is a problem. The problem is the extent to which it's self-defining by the agency. One fix for that is to understand whether it's an active operation or a dormant operation.
We had an entire Royal Commission on Air India. We had access to all the closed information on Air India. We saw everything unredacted, and it still remains an open RCMP file. It will always be an open RCMP file until the RCMP secure convictions against people who they think are responsible.
The key is whether it's an active operation or a dormant operation.
Senator Jaffer: Did you have subpoena powers?
Mr. Kapoor: The committee should have the power to subpoena members of the various agencies and compel them to testify, yes.
Senator Jaffer: Did you?
Mr. Kapoor: We did. At the royal commission, we did have the power to subpoena witnesses. Most of the time, we did not need to resort to that because witnesses and their counsel voluntarily came forward but, if we needed to, we could have.
[Translation]
Senator Dagenais: I'd like to thank our witness. I have two questions. First, as someone who took part in the study done by the House of Commons committee on this, you are quite familiar with the bill. Some amendments were adopted after the study, but others that strike me as important were rejected. Given your experience, what are the two or three most important amendments the Senate could make to improve the bill?
[English]
Mr. Kapoor: This is about unfettered access. I would amend clause 16 to prevent the minister from excluding information that in their view would be injurious to national security from review by the committee of parliamentarians. I would then correspondingly amend the reporting provisions to allow for a confidential or classified report to the Prime Minister. In that way, the agencies can have some comfort that the information will remain in a closed setting that is not only within the committee of parliamentarians but in a closed, classified report to the Prime Minister.
That would also do away with the Prime Minister's receiving a special report, then vetting it with the agencies and the agencies saying, "Well, the committee went off the reservation, so to speak, and included all this top-secret or classified information,'' or "it may jeopardize national security'', in which case the Prime Minister then goes back to the committee and says, "Give me a revised report.'' That's a bit cumbersome and really frustrates integrated, unified review.
Those would be the two amendments. I would amend clause 16 to deprive the minister of the ability to exclude information injurious to national security, and I would permit the committee to provide a classified report as well as a public report on any matter that it reviews.
Senator Kenny: I have a supplementary question. Sir, have you just told us that you feel we could do away with most of clause 16 and most of clause 14, if the committee adopted a review approach and did not have an oversight element to it?
Mr. Kapoor: There is a debate about review versus oversight, as you know, Senator Kenny. I look at it this way: You have a concluded investigation and a committee wants to investigate or determine the efficacy of our responses. Let's pick the shooting on Parliament Hill. That operation is concluded. The committee may want to investigate that to determine whether our responses were appropriate. Did our agencies know? Could it have been prevented? Those sorts of things would require the agency to be able to gain access to classified information. I'm saying the committee should be able to get access to that. That's a concluded operation that the committee should be able to review.
In my experience, the agencies are not shy to claim national security privilege. What I fear is that if they get a sense the information may, in their view, compromise their understanding of injurious to national security, the committee will not get access to the content. That's what concerns me. These will be security-cleared members of Parliament. Surely they should be able to get access to it.
Senator Kenny: The point I'm trying to get at is the likelihood of oversight being useful seems to be rather small. You commented that people in the middle of an operation will want to stay focused on that and that the idea of parliamentarians having to share responsibility for an operation seems ludicrous.
What if you withdrew back to simply having a review committee looking at things after the fact? I thought you handled the point about Air India rather well, because Mr. Major's inquiry was pretty complete.
Mr. Kapoor: Yes.
Senator Kenny: I'm really asking if the bill wouldn't end up with a more effective committee, without having cabinet ministers coming in and saying, "Not today, fellows. We don't want you looking at it.'' It would stop that, which would add to the credibility of the committee. Frankly, if Parliament decided it's going to be reviewed, it appears that you could do without ministers saying, "You can't hear this because it's injurious to national security.'' Yet, it would be a more effective committee.
I'm putting words in your mouth, but I'm wondering if this is what you've been saying to us.
Mr. Kapoor: Yes, that is my view. My view is that this committee should have unfettered access to the content. Ministers should not be able to preclude or frustrate that access. The one exception is, as you pointed out, ongoing operations.
A review mechanism, as you've described, is precisely what we want. It will matter what the committee reports. Why? It is because the committee will report publicly. Also, I'll say this much: The committee is made up of parliamentarians. They're politicians, on one level. They have to answer to their constituencies on another level. They're a member of a parliamentary party on another level. There will be, by definition, an openness and a public dialogue to these reports that come out from this committee, and there ought to be.
I believe you just heard from Mr. Rifkind, a colleague in the U.K. Robust debate that happens there. That can happen here, too, and this committee can foster that.
What I find frustrating, working in this area and teaching this at law school, is how little even people who are interested in this really know about what goes on in the intelligence community. Frankly, this committee can do a lot of public education, and people will be less distrustful. It's not always a bad news story. There are some successful operations and work that goes on well.
I agree with you that there should not be this ability of the minister to frustrate access to content, but I say there must be a corresponding amendment to allow for a classified report to the Prime Minister.
[Translation]
Senator Dagenais: As I told you before, Mr. Kapoor, the British Parliament opted to grant protection to witnesses who appear before the oversight committee, whereas Bill C-22 does not. How important do you think that protection is, and what effect does it have on a witness when they know they are protected against libel suits, for example? If I were appearing as a witness, I would definitely want to be afforded that protection.
[English]
Mr. Kapoor: Yes, I think there are two components here. I want to make a distinction now between civilians who may be working for these agencies, or what we would typically call "sources.'' Those folks, in my view, should not be compellable before this committee.
However, for members of the agencies who may have operational roles and for whom anonymity is important, I see no reason why they cannot be anonymized in the public expression of the testimony before that committee. The committee should have an open proceeding and a secure proceeding or a closed proceeding. Then in the secure or closed proceeding, sensitive witnesses can be heard from. Human sources could also be heard from, if the human source agreed and consented and wished to.
That's a more thorny issue and a bit more complicated, particularly if we look at section 18(1) of the CSIS Act. If operational personnel of these various agencies are in sensitive deployments, I see absolutely no reason why they should not be protected. They ought to be as a quid pro quo for receiving their information.
[Translation]
Senator Boisvenu: First of all, I would like to thank the witnesses for joining us today.
What worries me about this bill is the independence of the process for appointing the members, chair and even staff of the committee. It is all well and good to say that it is a committee of parliamentarians and not a parliamentary committee, but the risk of its becoming a committee of partisan parliamentarians remains. The appointment powers are largely in the hands of a single person: the Prime Minister. Should the appointment process not be more independent? Should the bill not give the committee a lot more responsibility, as opposed to concentrating all the power in the hands of the Prime Minister?
Furthermore, should the Prime Minister be in control of which senators are appointed to the committee? Would it not make more sense for the Senate, itself, to appoint its own representatives to the committee?
[English]
Mr. Kapoor: The architecture of the appointment process has to be structured to yield appointments that will result in independence and non-partisanship. National security is a non-partisan issue. What I mean by that is people may disagree on the balance that should be struck between, on the one hand, powers for the national security establishment versus constitutional rights protection. I expect that across our political parties you'll find a wide variety of views that won't break down simply by party discipline or party line. We want to yield people who will not be partisan or view this as a partisan process.
Whether that means the best process is for the Senate itself to appoint its members, that has an allure to me because it's the plurality of the senators that will be selecting their membership. Whether it's appropriate for the Prime Minister to do it or some analogue to what you propose by way of the Senate, I really can't comment on it, other than to say I would want whatever architecture to be structured in a way that yields independently minded people and people who are prepared not to follow necessarily whatever their party line might be.
I should add that it's hard to conceive of a particular review of a particular national security operation that would animate partisan questions. It would be hard to say, on the one hand, if there was some problem or some intelligence failing, that Conservatives would feel one way, Liberals would feel another and the NDP would feel a third, or something like that. These issues, by definition, aren't amenable to partisanship, but what they really need is independence. They need independently minded people who are not afraid to put it to the national security establishment and to ask the tough questions.
That's really where I think we should be going.
[Translation]
Senator Boisvenu: I am going to ask you a question that will no doubt be tough to answer. By giving one person in a government organization the bulk of power over the appointment of the committee chair, staff and parliamentarians, does it not increase the likelihood of partisanship versus following a democratic process?
[English]
Mr. Kapoor: I think, as a matter of principle, if one person is deciding everything, then it's highly idiosyncratic and it turns on whoever that person is. If you have a plurality of voices, there's a chance to diffuse that idiosyncratic approach to appointments.
The only thing I would caution against is nothing will ever get decided if you have too many voices. You need to have that sweet spot. I don't know if it's five or six but, whatever the number, you need to have that spot where you can actually accomplish something. You can't have everybody chiming in.
Senator Beyak: Thank you, Mr. Kapoor, for your comments and your knowledge on this issue.
There are two schools of thought that I'm dealing with among the people who are talking to me. One is: Why has the government rushed it at this late date? They've been working on it for months and now we're on a really tight time line to do it right.
The other side is just do it and review it in a year or two, not in the 17 years that our previous witness said.
My concern is the reporting mechanisms. There's no protection for whistle-blowers. We're not doing that portion of the bill properly. Could you comment?
Mr. Kapoor: I am not a fan of rushed legislation by any stretch. Once it passes, as you all know, it is very hard to change. Just look at any piece of legislation, it's very hard to go back and retool it. I think the time should be taken to get it right as much as you can the first time.
To your point about protection for whistle-blowers or anonymous witnesses, I really don't like using the term "whistle-blowers,'' but I think the committee would be enriched by the ability to hear from people who require anonymity and some sort of protection to be able to deliver their content to the committee.
I'll get to staffing, but the committee of parliamentarians should be savvy enough to determine when someone is blowing smoke, so to speak, or where there's really fire. We have to trust the committee of parliamentarians to do it and we have to give them the architecture to do it.
In this circumstance I'm concerned that we're creating a committee but we're not giving them anything they can actually do in a concrete and effective way, right from protecting national security information, not having a confidential report, not having adequate protections for anonymous witnesses, and on and on. I'm not a fan of rushing it. I appreciate there's a legislative timetable and I appreciate campaign promises that have to be met, but it's better to meet them properly than meet them improperly.
Senator Lankin: What stops the proposed committee, within its own procedures that it sets under clause 20, from offering a person anonymity? These are not necessarily and most often will not be public hearings and hearing of witnesses in public.
Mr. Kapoor: Certainly clause 20 could form a legislative basis to offer anonymity. The beauty of having a particular provision is its publicity. The publicity of the promise of anonymity actually has some sort of public impact. People will realize that. When there's going to be a review, and someone wants to come forward and makes an application to speak to this committee, they can do so anonymously.
I don't think that clause 20 would be a bar to the committee doing it. I favour an express reference to it, but clause 20 can do it. I just need the committee to do it.
The Chair: Colleagues, I'd like to go back to the question of privilege. It has been part of the conversation.
Sir Malcolm from the United Kingdom explained to us that they didn't have privilege for the purposes of their committee work outside the House of Commons, but their privilege as a member of Parliament remained the same as before they were appointed to the committee for the purposes of how I understood privilege.
Do you have any comments on that?
Mr. Kapoor: The better approach, and only in this limited way, is what the Americans do. The senators in that Senate committee are clear. Those senators have closed, confidential hearings where they get access to classified information. They prepare an open report or, if necessary, a classified report.
That model, to my way of thinking, is much better than relying upon the sorts of privileges that exist in the United Kingdom because it creates a roadmap or a line of protection of information, so that the agencies have confidence that whatever this committee gets on the classified side will be classified.
An analogue is like the Federal Court. The Federal Court, in security certificate cases, receives open information and classified information. There's a whole process where that classified information is maintained. I do not see why that cannot be the case for the committee of parliamentarians. If they can be top-secret cleared, they should be entitled to the information.
Senator Lankin: That is in fact what I understand the intent to be. To clarify my understanding of what we heard from the U.K., it was very clear. They have an Official Secrets Act which is approximately akin to the Security of Information Act in Canada. If they were to receive classified information as members of that committee of parliamentarians and were then to breach that secrecy, they would not be covered by any kind of parliamentary privilege.
The same thing that you're saying goes here. Obviously, these will be closed hearings when dealing with matters of classified information. The committee will establish itself that way because there is no privilege protection, and I would argue nor should there be.
I take that from your comments as well with respect to classified information.
Mr. Kapoor: Correct. It would be governed by the Security of Information Act. If any parliamentarian on this committee breaches that statute, they will presumably be charged and hopefully they will come to my office and retain me to defend them.
The Chair: Could I follow up on this to get it clarified?
Senator Lankin: Your address, please.
The Chair: If you breach the securities act and you release, in one manner or another, classified information, being a member of this committee, that's far different from a member being in the House of Commons or in the Senate, with their normal privileges, to discuss and debate the issue of public security.
Maybe I have this wrong. I'm trying to understand it. Why are we removing privilege in the bill? In the U.K. my understanding is that they never removed privilege, but they also didn't give privilege for the purpose of their committees. The members all retain the normal privilege for the course of their work duties.
My question is: Why are we removing privilege, the way I understand it, for the House of Commons versus the committee? That's my question.
Mr. Kapoor: I gather you're referencing clause 12 of the bill, which goes to removing privilege. As I read clause 12, I thought that provision is meant to remove a possible defence that a parliamentarian may have. If a parliamentarian goes into the house or the Senate and reveals classified information, information that they learned in a closed setting, they should still be subject to prosecution under the Security of Information Act. They could not defend the case on the basis of a claim of parliamentary privilege.
That's what I understood clause 12 to be. If I'm correct in that understanding, I think that is sound policy. You don't want parliamentarians going into the house or the Senate and revealing classified information, not that any of them would do so, in my view. I don't expect that at all.
I think the legislator included this provision to just round it out in the case that someone goes rogue and says something. They cannot raise parliamentary privilege as a defence.
That's what I understood this provision to be.
The Chair: Colleagues, as there are no other questions, I want to thank the witness for spending the time with us. We certainly appreciate it.
I would like to excuse the witness, and I would ask that we suspend for 10 minutes to give everybody a break and then I would like to go in camera to discuss the next direction of how we're going to handle the bill.
Thank you very much, Mr. Kapoor. You're excused. I'm sure we'll see you again.
Mr. Kapoor: Thank you very much.
(The committee continued in camera.)