House of Commons arrives at agreement in principle on receipt, review and release of Afghan detainee documents

Last week, I posted on the considerations that Members of Parliament should keep in mind when negotiating a process for the House of Commons to receive documents that the House ordered the Government to produce on December 10, 2009, in relation to the Afghan detainee transfer question before the House’s Special Committee on the Canadian Mission in Afghanistan. See “After the Speaker’s Ruling” (May 2, 2010), which takes the form of an open letter to selected MPs. In turn, this post links to a related op.ed. published the same day by the Canadian Lawyer online; see “Parliamentary privilege after Milliken” (May 2, 2010).

Two hours ago, at 12:05 PM, May 14, 2010,  Minister of Justice Nicholson announced an agreement in principle that was reached by negotiators for all four parties on a process for receiving, reviewing and releasing documents related to Afghan detainee transfers. Brief concurring responses followed from Ralph Goodale, MP (Liberal Party), Pierre Paquette, MP (Bloc Québécois), and Libby Davies, MP (New Democratic Party).  An archived webcast can be viewed on the Parliamentary web channel,  ParlVU, HERE.  The four speeches last from 12:05 to approximately 12:18.

A two-stage process is inserted before the Special Committee on the Canadian Mission in Afghanistan (“the Special Committee”) can see any documents subject to the process:

1) An ad hoc committee of MPs (“the Committee”) composed of one MP from each party (with one alternate from each party) will have access to all documents (see, below, the first note on “all documents”) and determine whether any document is relevant and “necessary for the purpose of holding the government to account” (most notably, with respect to the Special Committee process), with that decision being “final and unreviewable”.  There is no statement about whether such decisions may be by majority or must be unanimous, although one would assume a majoritarian principle as for any matter of procedure (especially if I am correct in assuming that this is the principle for any ad hoc committee in Parliamentary processes).

2) Where the Committee determines information is both relevant and necessary, it appears from the agreement that the Committee must (not may) refer this information to a Panel of Arbiters (“composed of 3 eminent jurists”), and it will be that Panel that will decide how much and in what form information “will be made available to Members of Parliament and the public without compromising national security”.  Importantly, and relevant to the silence on majority versus unanimous decision-making at stage 1, at this second stage “any member of the Committee” may on his or her own refer a document to the Panel.  Nothing specific is said with respect to majority versus unanimous decision-making by the Panel, but one again assumes a majority vote would suffice.  The Panel’s decisions will also be “final and unreviewable,”

Note  a number of further things about this text (which is copied at the end of this post), apart from it being a copy provided unofficially to the present writer ten minutes ago.

Note first that the phrase, “Committee members will have access to documents in both redacted and unredacted form”, — apparently should read “Committee members will have access to all documents in both redacted and unredacted form.”  This observation was made by Libby Davies in her response in the House, and it appears that verbal assents could be heard from the Government side of the House — and it also appears that Minister Nicholson actually inserted the word “all” when he read the agreement in the House.  It appears the word “all” did not make it into the final text inadvertently, as the parties rushed to meet today’s deadline of 1:30 pm (which Speaker Milliken had extended from the original deadline for agreement to be reached this past Tuesday).

Note secondly  that the agreement in principle refers to a subsequent Memorandum of Understanding to be “signed by all party leaders.”  No date is given, but Minister Nicholson stated in the House that the deadline for that was May 31, 2010 — the end of this month.

Note thirdly that the “[c]omposition of the panel must be agreed upon by the government and opposition” and that the characterization is not limited to sitting judges; rather, the reference is to “jurists,” a broader notion.  Sources indicate that the plan is that one member of the Panel will be selected by the Government, one by the Opposition, and one as some form of compromise.  It would not appear there can be any check — other than good faith of all the parties — as to who counts as an “eminent jurist.”

Note fourthly the provision for “any member of the Committee” to refer information to the Panel. This seems unnecessary in cases of a decision by the Committee itself on relevance and necessity — as those decisions automatically lead to the information going to the Panel — so this provision may possibly be intended to be a mechanism in either of two possible situations: a) where a decision has been made that a document is not relevant and necessary, and a member of the Committee is of a different view; and/or b) where, rather than prolong discussion on whether a document is relevant and necessary, a member may seek to have the Panel give its view on which parts of the document can be released to the  public — so as to have that Panel decision in place when/if a decision on relevance and necessity is made or possibly as a factor that might somehow circle back on and influence the decision on relevance and necessity.  All that said, in view of the confidentiality oath each Member must take (which would seem to extend to all documents and not simply to those that are national-security-sensitive) it is unclear what use the sole Member of the Committee may make of the Panel’s determination if the Panel determines information may be released to the public but the Committee determines the information is not relevant and necessary.  I will leave speculation on this for another time, other than to say that it might possibly be relevant as a final safeguard with respect to allowing police agencies to know about the existence of any documents that reveal apparent criminality without confidences being breached in alerting the police to this fact (see the seventh note below as well as the final sections of my “Parliamentary privilege after Milliken” opinion piece).

Note fifthly the references to both stages’ decisions being “final and unreviewable.”  One assumes this was intended to — and will be effective to — oust any application of the Canada Evidence Act, a concern I expressed in my “Parliamentary privilege after Milliken” opinion piece. In that piece, I argued that any possibility the Government might seek to argue later that the House process is subject to the CEA must be headed off at the pass.

Note sixthly that the standard to be used by the Panel is “national security” only.  Both the Canada Evidence Act and the Terms of Reference given by the Government to their lawyer Frank Iacobucci to advise on what could be made public refer to a very widely drafted troika of “international relations or national defence or national security”.  The free-standing criterion of “international relations”, in particular, is nothing short of a Mac-truck-sized loophole for Government to keep matters secret that have no business being kept from the public.  One might hope that this decision by the negotiators might lead in a future Parliament to “international relations” being dropped from the Canada Evidence Act in future, and “national defence” specifically framed as information to be kept from the public only where it also triggers a real “national security” risk.

Finally, note that, as expected, nothing explicit is said about the second issue raised in my “Parliamentary privilege after Milliken” opinion piece, namely the issue of whether a Member of the first-stage Committee who sees evidence tending to show a crime has been committed can make this matter known to the RCMP or other relevant police agency.  One assumes the continuing salience of my observations that confidential information — even at the highest reaches of government — cannot be kept from the police as part of a police investigation into a possible crime, where the police have a warrant for that information.  Where such information is also ruled by the Panel as national-security-sensitive and thus not to be revealed to MPs at large and the public, I would assume that all members of the first-stage ad hoc Committee and all members of the Panel (as eminent jurists that they will be) will know that they will have a duty to report the existence of documents tending to show criminality to the relevant police agencies — without actually revealing those documents or the specific information.  This can be done, as I outlined in my May 2 piece, without revealing national security secrets to Parliament at large or to the public.

Below, then, is the text of today’s agreement in principle:

An agreement in principle has been reached by all parties:

· Creation of an ad hoc committee of parliamentarians composed of one Member of Parliament and an alternate from each political party.

· Each member of the ad hoc committee will be required to take an oath of confidentiality, sign a confidentiality undertaking and will be required to obtain the appropriate security clearances.

· Access to documents will take place in a secure location.

· Appropriate security procedures will apply.

· Committee members will have access to documents in both redacted and unredacted form.

· Committee members will have access to government officials from appropriate departments to provide briefings and contextual information and reasons for protecting information.

· With respect to every unredacted document examined by the Committee, the Committee will determine whether the information in that document is relevant to matters of importance to Members of Parliament, particularly as it relates to the ongoing study on the transfer of Afghan detainees currently under way at the House of Commons Special Committee on the Canadian Mission in Afghanistan, and whether the use of such information is necessary for the purpose of holding the government to account. The decisions of the Committee related to the relevance shall be final and unreviewable.

· Where the Committee determines that such information is both relevant and necessary, or upon the request of any member of the Committee, it will refer the document to a Panel of Arbiters who will determine how that relevant and necessary information will be made available to Members of Parliament and the public without compromising national security – either by redaction or the writing of summaries or such techniques as the Panel find appropriate, hearing in mind the basic objectives of maximizing disclosure and transparency. The Panel of Arbiters should regularly consult with the members of the Committees to better understand what information the MPs believe to be relevant and the reason why. The decisions of the Panel of Arbiters with respect to disclosure shall be final and unreviewable.

· The Panel of Arbiters will be composed of 3 eminent jurists. Composition of the panel must be agreed upon by the government and the opposition.

All parties agree that the details of this proposal will be further outlined in a Memorandum of Understanding signed by all party leaders.

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