"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.


 

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

  1. I hope you're right. It can also be read the Globe-NDP way, and given the Govt's behaviour to date, that seems more likely.

    • Hard to read it the Globe-NDP way when, as Coyne points out, they changed the wording on that very point from the version the NDP was leaking.

    • And while I hope you're right, I think you're wrong, as it would be strangely redundant to already say the Panel of Arbiters will 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” and then go on, separately, to state "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."

      And from public commentary, esp. from Pierre Paquette on Radio-Canada, the argument in favour of this agreement was that by allowing the Panel to be the initial viewers and censors of those two classes of information, they were able to get some access to cabinet documents that would never otherwise come out at all for another 25 years. He did not explain or justify solicitor-client, which his discourse implicitly lumped in with cabinet docs. (Gee, bilingualism is important in matters of State, eh?)

      NB. When I said I could live with that as far as Panel pre-viewing, as I was inexact in my commentary, as I was thinking specifically of cabinet minutes, and not of that great mass of documents that are, or can be, classified as cabinet documents (briefing notes, etc.). It is only understandable that the minutes be uniquely pre-viewed by the Panel, not the whole mass.

      • PS. Given Paquette's explanation, and NDP view, strong enough to make them walk away, it does rather seem that the parties are interpreting it as Attaran does. If so, others may think it could be interpreted differently, but the agreement is as the parties interpret it.

        • I think this is the key point. Weasel words that the Liberals are using aside–like saying all documents will be "part of the process"–it does seem that while a literal reading of the language supports Coyne view, none of the parties to the agreement intended it that way.

          If they did, they would simply say "All of the documents–including national security documents, legal documents and cabinet documents–go to the panel of MPs in uncensored form; the panel of arbitors only decides in what form that information can be released publicly."

  2. The Agreement is worded extremely poorly. Given all the lawyers among MPs, it's rather embarrassing, frankly.

    Nevertheless, the language with which Mr. Coyne is concerned only comes into play when and if the Government actually appoints committee members and alternates , nominates and settles on arbiters, and ultimately actually provides "all documents". Hate to be a skeptic, but I simply cannot imagine this Government – having played stupid games for two years – will now, suddenly, roll over and play nice because they signed an "agreement". I'm predicting a reprise of last summer's Employment Insurance review group — i.e., all bluster, no substance. This is an agreement to do nothing.

    • Quite possibly. I'm just trying to assess what the agreement actually says.

  3. Andrew, I think your understanding is correct. However, the Goverment can always claim to have a different understanding and force the opposition members to appeal for a ruling. But the Government could do something sinister like that no matter what the agreement might be. It really doesn't matter how "certain" the agreement is, so such an argument is really premised on an assumption that no agreement would be acceptable because the Government simply cannot be trusted to be true to the spirit of the agreement.

    This leaves me wondering to whom one could appeal. How is the agreement being adopted? Is it something over which one could apply to court for an order forcing compliance?

  4. Sorry, I should added that I think you're right because a document is supposed to be read in such a maner that it is internally consistent. The only way to understand "all documents' as meaningful is to interpret the rest of the agreement of not contradicting that clear statement.

    • But it's not "all documents", it's "all documents from the House Order of December", so it could be consistent to clarify in the agreement that the Order didn't extend to solicitor-client or Cabinet material. And that's how it needs to be read to be consistent with the oath, where participants swear not to disclose information that would compromise "national security, national defence or international relations" but says nothing about the other two categories – suggesting that the committee members do not need to protect those confidences because the arbiters will prevent the committee from seeing them.

  5. Ye Gawds

    I've just skimmed two lines of the article and decided to take AC's word for it. Now I KNOW I've been pounded down to the ranks of the apathetic masses. Curse you, Ottawa, curse you.

  6. I tend to trust The Globe over Macleans when push comes to shove and I do believe Coyne has shoved this argument to a dubious conclusion.

  7. Though Jason Cherniak is a lawyer – and I am not – I have read and interpreted enough legislation over the years to know that they are typical constructed to bury the exceptions within the body of the document.
    That said – the version of Section 7 of the MoU that I read on CBC.CA yesterday clearly inbues in the government the right to ask the adjudicators to rule on documents which it, i.e. the government deems to be client-solicitor privileged or cabinet documents – and the implication to me (and no doubt the NDP negotiators) is that this will happen BEFORE the committee of MPs sees them.
    That being the case, I believe Mr. Harper has driven a bus through the overarching Right of Parliament – which means to me that the Official Opposition and the Bloc threw up their hands and surrendered democracy – because the evidence of 1) pre-knowledge and 2) intent to breach the Geneva Convention would be most likely contained in the very documents that Mr. Harper will so designate!

    • Yup, that's the way I read it too. Remember, none of this is happening without context. This is the Harper government we are talking about. They will use every loophole available to them to avoid turning over documents.

  8. Interesting. The link posted on CBC.CA last evening around 5:30pm – and which I looked at then – now has another document (or version of same document) showing under Scripd!
    Scripd is not behaving this morning – but I had a glimpse of an MoU where the numbering schema was changed from standard numeric to Roman – and the section 7 which I referred to in the document last night appears to be moved up onto page 2 of the text as – I think- Section IV – which communicates to me that the exceptions have now increased in importance in the document.
    More later!

    • If you think the number of the clause has any meaning as far as the importance of the clause is concerned, then you're barking up the wrong tree.

  9. Layton got it right, Coyne has it wrong. Harper has managed to build himself an escape hatch.

    This whole bit about solicitor/client privilege is a joke anyway. That relationship is between the government and their lawyers. Since the government represents us, including opposition MPs, we have every right to know what they discussed. The only exception should be for matters of CURRENT national security. Anything beyond that is Harper hiding the truth.

    • Wherry explains it all.

  10. Excellent articles by Mr.Coyn.I have just one question:what good is it,if a few members of the House see these important document but cannot disclose any of the contents,thus making it impossible for Parliament to act on any of them? Is it just another,totally inconsequential,exercise to blind the voter with some "Action"?
    Without publication of the essence of these documents this committee is just wasting time and money.

  11. Andrew,

    While your interpretation of the agreement, on its face is a reasonable one, and despite my generally conservative inclinations, I think the interpretation advanced by the Globe and the NDP is probably correct. And I say that for three reasons.

    First, if the purpose of section 7 of the MOU is to protect solicitor-client and cabinet privilege, that section only makes sense in a situation where the committee only has access to redacted privileged documents. After all, the committee members are neither members of cabinet nor part of the government. If they are provided with access to information that is subject to solicitor-client or cabinet privilege, arguably that privilege will have been waived at that point, rendering section 7 meaningless.

    (cont)

    (Cont..)

  12. continued from above…
    Second, while you are quite correct that section 1 of the MOU provides that the committee will be provided with access to all documents, section 3 provides that such documents will be provided in redacted and unredacted form. Now, one way of interpreting this is that the committee will be provided with duplicate sets of documents, redacted and unredacted version, which would be consistent with your interpretation. But one could also interpret this as saying that the committee may be provided with one set of documents which may be either redacted or unredacted, in which case, committee members would have to apply to the Panel of Arbitrators to have the redacted documents disclosed to them. I think the latter interpretation is the better one.
    cont..

  13. continued from above

    Finally, I note that section 7 provides that the Panel of Arbitrators can determine whether the information contained in redacted documents over which the government assets privilege can be disclosed to Members of Parliament. Since section 1 provides that the members of the committee are Members of Parliament, they would appear to be included in the subset of people to whom redacted information can be released under section 7.

    Either way, it's a sloppily drafted agreement (although that may be intentional, it's not uncommon to agree to uncertain language in an agreement just to get a deal done and take the chance that the details can be worked out alter).