The Supreme Court may have to curb the House of Commons.
Last week, at a meeting of the standing committee on procedure and House affairs, MP Pat Martin stated in regard to documents requested of the government: "If it's the will of Parliament to know something, we have a right to know it." And, for good measure, the NDP MP for Winnipeg Centre went on to say that MPs have the right to disclose these documents "even if it isn't in the best interests of the country."
What was most shocking about this for someone who's spent most of his career in the public service is that Mr. Martin was right.
In regard to documents related to Afghan detainees, for example, the Speaker of the House ruled that the power of the Commons or of its standing committees to compel the production of documents and records is "general" and "absolute" and "has no a priori limitation." And before the committee last week, the House's Law Clerk and Parliamentary Counsel, Rob Walsh, bluntly said that the notion of cabinet confidence does not truly exist in the Canada: "This information [requested by MPs] whether it ever is or is not covered by cabinet confidence, is information of a kind, as the Speaker indicates in his ruling, that the House is entitled to receive."
Happily, this was not the situation when I worked for two provincial governments and in Ottawa. In fact, at the same committee last week, former colleague Mel Cappe, who served as Clerk of the Privy Council under Jean Chrétien, reaffirmed the need to preserve cabinet secrecy while agreeing that MPs needed information to hold the government accountable: "I want the committee to understand that I'm a big defender of cabinet confidences, and I think that it is necessary for good government to have candour in cabinet exchanges."
Mr. Cappe went on to argue that the principle of cabinet confidence had been recognized by Parliament. As one example, he cited the Access to Information Act, which exempts confidential documents of the Privy Council. Mr. Cappe was right, of course, but his point was beside the point, since this act and others in which the principle is affirmed do not apply to MPs.
In his testimony last week, Mr. Walsh said it's always open to the government to refuse a request for documents. But, in this case, "it takes its chances with the House, because the House may not be happy with that, and it's up to the House to decide what it's going to do about that." As we've just seen, that right can be very cold comfort.
The House Speaker, Peter Milliken, has acknowledged in his decisions that the right of parliamentarians to documents may be curbed by means of a specific statute. That should be a priority of the next Parliament. But in a minority government situation, especially if a similar Parliament is returned after the next election, this may not be possible. In that case, the government of the day should refer the matter to the Supreme Court of Canada - a court that ruled in 1992 in the case of Thomson v. Canada:
"Although some governments are more open than others, it nonetheless remains true that all governments must maintain some degree of security and confidentiality in order to function. The most open democracy still requires a high degree of security and confidentiality with regard to many matters including, for example, the defence of the realm or trade negotiations. The degree of security required will vary with the position and role of the government employee. The higher the position, the greater will be the access to sensitive information, and the greater the need for security."