"The committee will have access to all documents." So will it? - Macleans.ca

“The committee will have access to all documents.” So will it?


Cancel my initial reaction. I think the NDP and this Globe story have it wrong, too. The deal struck yesterday between the government and the Opposition — two of the three opposition parties, that is — providing for disclosure to members of Parliament of previously secret documents related to the transfer of Afghan detainees, strikes me, on closer reading, as acceptable, and in keeping with the Speaker’s ruling on the matter.

That is, I think it is. Parts of it are clear enough. Parts of it, not so much.

Here’s the part that’s clear. There’ll be an ad hoc committee of MPs struck, with one member plus an alternate from each of the signatory parties. They’ll have to sign a confidentiality undertaking, take an oath, get security clearance, meet in camera and so on. But, and I quote:

The ad hoc committee will have access to all documents listed in the House Order of December 10, 2009… [emphasis added]

“All documents” is pretty clear. That’s what the fight was about, that was the principle that had to be established: if Parliament demands to see documents, then Parliament gets to see them. It doesn’t have to be the whole Parliament: the government’s security concerns, everyone agrees, are legitimate, and probably couldn’t be addressed if all 308 members got a copy. But so long as MPs on all sides of the House are given access to all the documents — that is, the government does not get to decide for itself which documents it will release, to whom, and on what conditions — then I think Parliament’s demands have been met, and the Speaker’s ruling affirmed. Provided any limitations are self-imposed, Parliament remains supreme.

What happens then? The committee will look at both the redacted and unredacted versions of the documents, so it can see what was withheld. If the committee decides the redacted material is both “relevant” and “necessary,” it then sends it to a Panel of Arbiters — three eminent judges, acceptable to all parties — to decide “how that relevant and necessary information will be made available to Members of Parliament and the public without compromising national security, national defence or international relations.” Note the language: “how” and “will,” not “whether.”

So that’s pretty good. The committee of MPs gets to see all the material Parliament demanded, without exception. The rest of us see everything except the bits a panel of judges thinks are unsuitable for general viewing, or that the committee thinks is not necessary or relevant. (In fact, the committee would have to be unanimous on both counts, since the agreement also says documents can be referred to the Panel “upon the request of any Member of the ad hoc committee.”)

But does “all documents” mean all documents? Here’s where it gets a little murky. The NDP, and the Globe, seem to think the agreement carves out an exception for material covered by Cabinet confidentiality or solicitor-client privilege. Here’s the relevent section:

The Panel of Arbiters can determine, at the request of the government, that certain information should not be disclosed due to the solicitor-client privilege. The Panel of Arbiters, after consultation with the Clerk of the Privy Council, can also determine, at the request of the government, that information constituting Cabinet confidences should not be disclosed.

Should not be disclosed … to whom? That’s the key, ambiguous point. If it means “to anyone outside government, including the ad hoc committee of MPs,” then it really is an exception — a big one. But if it means disclosure “to Members of Parliament and the public,” as before, then it’s the same process that applies in cases of “national security, national defence or international relations.” That is, it’s just adding two more items to the list of criteria the Panel of Arbiters might be called upon to apply, albeit by request of the government, rather than the committee.

Maybe I’m wrong, but the latter sense seems more logical. Wherever the word “disclosed” is used elsewhere in the agreement, it’s always in that broader sense, of general release. Moreover, the Panel of Arbiters’ role is described here in almost identical terms as in the section on national security, viz:

the Panel of Arbiters shall determine how information contained in the documents may be made available to Members of Parliament and the public without compromising the solicitor-client privilege or the principle of Cabinet confidentiality. [emphasis added]

To say nothing, of course, of that word “all.” All documents to me means all documents.

Anyway, we’ll see. To be sure, there is another section of the document that notes “Cabinet confidences and information subject to solicitor-client privilege are classes of information that the Parliament of Canada has long recognized are sensitive and may require protection from disclosure.” But that’s not inconsistent with my interpretation, that these are supplemental to and on a par with national security, as issues for Parliament to take into account in deciding how broadly to exercise its right to send for “persons and papers,” rather than exceptions to that right. Again, depending on what “disclosure” means.

Indeed, an earlier draft of the document — the one the NDP had, before it walked out of the negotiations, and the one the Globe used for its first whack at the story — has rather different language. It speaks of classes of information

that the Parliament of Canada has long recognized are not necessary or appropriate for the purpose of holding the Government to account. [emphasis added]

The change in wording is surely signficant, and intended as such.

But that’s not the only point of note in the agreement. I’ll put up a separate post on the other.