Parliamentary Privilege / Rights of the House

The right to order the production of documents: access to information from the government

March 27, 2018

Debates, pp. 18134–5

On March 2, 2018, Erin O’Toole (Durham) rose on a question of privilege regarding the information provided to members of the press concerning the Prime Minister’s travel to India. Mr. O’Toole argued that Ralph Goodale (Minister of Public Safety) had acknowledged that the Prime Minister’s national security adviser had shared information with members of the press regarding the Prime Minister’s trip to India that he would not, in turn, disclose to members of Parliament, citing reasons of confidentiality and security. He contended that the rights of the House and of its individual members to access information superseded such claims of confidentiality and that therefore access to that information had to be made possible. He further argued that the national security adviser should appear before the Standing Committee on Public Safety and National Security to ensure members’ access to the required information in order to fulfill their parliamentary obligations. Mr. O’Toole therefore urged the Speaker to order that the information be made available to members of Parliament. In the days that followed, Mr. O’Toole made other interventions on the matter.^[1] On March 20, 2018, Kevin Lamoureux (Parliamentary Secretary to the Leader of the Government in the House of Commons) responded by arguing that there was no order of the House requiring the production of information and that the actions or inactions of a government department are not matters of privilege.^[2] The Speaker took the matter under advisement.

Resolution

On March 27, 2018, the Speaker delivered his ruling. He acknowledged the importance of the right of members to access current and accurate information, particularly in view of their responsibility to hold the government to account. However, the Speaker stated that, as the House had not ordered the government to produce the information, there existed no obligation for it to do so and that the same reasoning applied to the proceedings of the Standing Committee on Public Safety and National Security. The Speaker further explained that the right of the House to compel information does not extend to its individual members. Therefore, the Speaker did not have the power to require the government to provide information to the House. Consequently, the Speaker was unable to conclude that there had been a prima facie breach of privilege.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on March 2, 2018, by the member for Durham concerning the information provided to members of the press in a media briefing.

I would like to thank the hon. member for Durham for having raised this matter, as well as the Parliamentary Secretary to the Leader of the Government in the House of Commons, the member for Berthier—Maskinongé, and the member for Joliette for their comments.

The member for Durham put forward that the Minister of Public Safety had acknowledged that the Prime Minister’s national security adviser provided members of the press with information that he was unwilling to share at the same time with members of Parliament, for reasons of confidentiality and security. The member argued that even if such reasoning were justified, such claims of confidentiality could not override the individual and collective rights of members to access that information, and, as such, accommodations to make the information available must be made.

The parliamentary secretary disagreed, arguing that, since there was no order of the House to divulge to members the sensitive information requested, the privileges of the member and the House could not have been interfered with and the Speaker has no authority to compel the government to release it. Furthermore, he contended that, as matters of privilege necessarily involve a proceeding of Parliament and do not pertain to the actions or inactions of a government department, this was simply a matter of debate.

On February 7, 2013, at page 13,868 of the Debates, my predecessor stated, in a ruling, “access to accurate and timely information is an essential cornerstone of our parliamentary system”. There is not only great truth but also great power in these few words, for they represent a right that is integral to the health of our democracy. They also explain, to some extent, why members take seriously the need to defend their right to access timely and accurate information in order to fulfill their parliamentary duties, particularly their role of holding the government to account.

In raising this issue, the member for Durham looked to a ruling by Speaker Milliken on April 27, 2010, for justification for his argument that the right of members to be provided with any and all information is absolute. However, a close reading of that ruling reveals that while it touched on the broader issue of access to information, the core issue was the right of the House to order the production of documents, confidential or not.

Bourinot’s Parliamentary Procedure and Practice in the Dominion of Canada, First Edition, states at page 281:

…it must be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public questions is undoubted …

Thus, should the House, by way of a formal motion, order the information from the government, it will be under an obligation to produce it.

However, what is equally true is that this absolute right of the House does not de facto extend to individual members’ requests for information. This distinction is crucial to a clear understanding of the limits and obligations with respect to members’ access to information and very much informs the merits of this case. Since the House has not ordered the government to produce the information in question, the government is currently under no formal obligation to provide it to the House. The same logic applies to the proceedings of the Standing Committee on Public Safety and National Security. Moreover, it means that I, as Speaker, do not have the authority to require the government to provide that information to the House.

Given this, and having examined the facts, the Chair is unable to conclude that members were impeded in the discharge of their parliamentary functions. Accordingly, I cannot find a prima facie question of privilege in this case.

I thank all hon. members for their attention.