The Power of Perspectives

The Canadian Bar Association

CBA/ABC National

Oversight without access to information

November 29 2016 29 November 2016

Do you need a mechanism to rein in the watchers watching the watchers?

Bill C-22, currently making its way through Parliament, seems to put a few too many constraints on a proposed Parliamentary committee that would provide oversight of all national security activity, suggests a CBA submission.

In its 2015 submission on the previous government’s Bill C-51, the CBA recommended the creation of a Parliamentary committee “with access to secret information.” But it will not recommend passage of Bill C-22 without important amendments first being made.

Bill C-22 contains a number of mechanisms that would actually prevent the committee from carrying out its mandate – by limiting its access to the information it needs, for example, or calling its independence into question. Essentially, the submission suggests, these proscriptions imply a lack of trust in the MPs and Senators who would sit on the committee.

 “Without trust in the members to act responsibly in the national interest, there is little point in forming a Committee,” the submission says. “If there is trust in the members of the Committee, there is no need for unnecessary restrictions that undermine its work and role...”

The CBA’s greatest concern lies with section 16, which would allow Ministers and departments to refuse to provide information on vague national security grounds – an exemption that seems “unnecessary and illogical” because the MPs and Senators that a Minister might prevent from seeing any particular information “have the same lawful authority to see that information as the Minister him or herself.”

The Association’s concerns with this section are severe enough that it would oppose passage of the bill if it is not removed, the submission says.

“Put simply, section 16 would gut the proposed law and preclude the Parliamentary Committee from achieving its objective. It would create a broad and largely standardless ‘out clause’ for Ministers to exempt themselves from the Committee’s disclosure regime.”

The submission underlines the point that one of the primary reasons for establishing a Parliamentary oversight committee is to reassure Canadians that their government is operating in a transparent and accountable manner.

“While Canadians cannot know the information their government decides must be kept secret, their elected representatives, properly trained and security-vetted, should be able to know it on their behalf.”

Other important if less pressing concerns with the proposed legislation include:

  • Lack of a definition for “national security”

  • Ministers would have control over what the Committee studies. “Any group tasked with the review or supervision of Canada’s national security apparatus should be viewed as independent of Government.”
  • The legislation doesn’t clearly set out the purpose of the Committee
  • The potential for politicization in the proposed composition of the Committee
  • The lack of recourse for the Committee if Ministers decline to share information
  • The Prime Minister or Governor in Council would name the committee chair, “a further unnecessary encroachment” on its work
  • The required security clearance of members would be in the hands of the agencies that it would have under review, which gives those agencies power to block an appointment that might be problematic for them
  • To be effective, the Committee must have the power to compel witnesses and order the production of documents
  • The Committee should be required to make annual public reports
  • The Governor in Council should not be able to make regulations significantly affecting the Committee. “The executive branch that is under review by the Committee should not be able to curtail the Committee’s work without going to Parliament.”

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