PACP Committee Report

THE POWER TO ORDER THE PRODUCTION OF DOCUMENTS

“In the last century, the British political system operated with a group of traditional concepts that we could sum up as parliamentary sovereignty, Crown prerogative, legislative privilege, and administrative discretion.  But we are now in a situation where all such notions of privilege and discretion are under a process of constant questioning, stemming from the belief that no power can be absolute, or unreviewable, or immune from challenge in the light of rights based on notions such as fairness, natural justice, rationality and legitimate expectation – all now written into national and international legal instruments.”^[1]

INTRODUCTION

Historically, the Government of Canada has never accepted the view that the power to order the production of documents is absolute, and successive governments have taken the view that it is not always in the public interest to disclose certain classes of information.  The practices and conventions that have developed across Westminster systems of government, including in Canada, are such that the Government provides the information necessary to enable parliamentarians to conduct inquiries while at the same time respecting the Government’s legitimate need to protect information from disclosure where disclosure would not be in the public interest.

From the outset, it must be recognized that the Government of Canada does not dispute that the Houses of Parliament and their committees have the general power to send for papers and records. Rather, what is at issue is whether the power to send for papers and records is absolute, or whether the scope of that power must be balanced and circumscribed by the constitutional principles of responsible government, the separation of powers, parliamentary sovereignty, and the rule of law.  It must also be emphasized that what is at issue is not any information in the possession of the executive, but rather those limited categories of information that have been traditionally recognized as protected from disclosure by the Crown under the royal prerogative, the common law and statutes of Parliament. The traditional view of the House of Commons is that the scope of parliamentary privilege includes an unqualified right to receive any information and is limited only by the discretion of the House itself; the Government’s view is that neither the Houses of Parliament nor the committees thereof have such an unqualified right.

Furthermore, it must be borne in mind that while the House of Commons has delegated to committees the power to send for papers and records, the House of Commons has not delegated its power to enforce the production of documents. Therefore, while committees of the House of Commons can send for documents, they do not have the power to compel their production.  In the case of a refusal of the committee’s demands, the committee can accept the refusal, seek a compromise, or report the matter to the House.

It is rare for conflicts in committee over the production of government records to escalate to the level of reports to the House.  Overwhelmingly, the relationship between the Government and committees has been defined by cooperation and openness.  For their part, public servants appear before parliamentary committees voluntarily and seek to provide as much factual information as possible to parliamentarians in a manner that is consistent with their professional and legal obligations.  On the part of committee members, when public servants are appearing on behalf of their Ministers, committees normally respect the professional neutrality of public servants.  Disagreements, when they arise, have usually been resolved by committee members choosing not to pursue the matter or by a political accord between Ministers and members directly.

Just as the Houses of Parliament and their committees are unable unilaterally to assert the application of parliamentary privilege against the courts, the Government does not believe that the Houses of Parliament and their committees can unilaterally assert the application of parliamentary privilege against the Crown.

THE POWER OF PARLIAMENTARIANS TO ORDER THE PRODUCTION OF DOCUMENTS

“The Queen’s ministers are not only the rightful guardians of the prerogatives of the crown in Parliament, but it also devolves upon them to protect the liberty of the subject, and the interests of private individuals and associations, who have no direct representation therein, from the assumption by Parliament of arbitrary and unjustifiable authority.  On this principle the government have uniformly resisted all attempts, on the part of either House, to obtain, whether by their own order or through an address to the crown, any documents or information concerning the affairs of private individuals, or to sanction the appointment of committees to enquire into private and personal affairs...”^[2]

The House, in its role of holding the government to account, has the ability to conduct inquiries and such proceedings generally fall within the realm of parliamentary privilege.  Ancillary to this, the House has a general power to “send for persons, papers and records”, which it has delegated to its committees, although it is only the House itself that can enforce orders for production.  There are three important issues related to the power of committees to order the production of documents from the government:  first, the nature and scope of parliamentary privilege in this area; second, the impact of existing laws on the power to send for papers and records; and third, the status and role of public servants appearing as witnesses before committees.  Each of these issues must be addressed in light of the fundamental principles underpinning our constitutional democracy.

First, the nature and scope of parliamentary privilege must be considered in light of the separation of powers that exists between the branches of government.  The historical development of privilege and the conventions of parliamentary practice indicate that the general powers of the House to order production of documents cannot be asserted against the Crown as it could against a stranger to Parliament.  The Crown, as a constituent part of Parliament and a partner in parliamentary government, has a distinct constitutional function that must be respected by parliamentarians.

Second, the principle of parliamentary sovereignty must be respected by both the Houses of Parliament and the executive.  While both have constitutional duties and powers, a democracy governed by the rule of law requires that these powers, privileges and prerogatives be exercised in accordance with the law, including Acts of Parliament.

Third, the system of responsible government in Canada includes a framework of constitutional conventions that governs much of the relationship between the executive and legislative branches in our parliamentary system, including the role of public servants and the various means by which the Government is held to account.  The scope of parliamentary privilege must be considered within this framework.

Against this constitutional backdrop, the principles of modern democracy will necessarily influence the exercise of constitutional powers both by the Government and by parliamentarians.  While it is the Government’s view that an “absolute and unfettered right” to receive government documents is simply not justified to be within the scope of parliamentary privilege, the Government is committed to providing as much factual information as possible to parliamentarians and to the public so as to uphold values of openness, transparency and accountability, saving only where a specified public interest militates against disclosure.  In the same vein, the Government believes that parliamentarians should exercise the extraordinary powers and privileges with which they have been entrusted by the electorate in a matter that is guided by the principle of restraint.

1)  The Separation of Powers and the Nature and Scope of Parliamentary Privilege

“Our democratic government consists of several branches:  the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts.  It is fundamental to the working of government as a whole that all these parts play their proper role.  It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.”^[3]

As has been observed by the Supreme Court of Canada, “[t]here are few issues as important to our constitutional equilibrium as the relationship between the legislature and the other branches of the State on which the Constitution has conferred powers, namely the executive and the courts.”^[4]  The assertion of absolute powers based on claims of parliamentary privilege risks upsetting that equilibrium.

Our Constitution establishes three branches of government:

• the legislative branch, which consists, at the federal level, of the Queen, the Senate and the House of Commons;


• the executive branch, authority for which is formally vested in the Queen; and


• the judicial branch, consisting of the courts.

The “fundamental constitutional separation of powers” between the legislative, executive and judicial branches of government ensures that “each of the branches of the State is vouchsafed a measure of autonomy from the others”^[5] as it exercises its assigned constitutional function.  The separation of powers is grounded in the preamble to the Constitution Act, 1867, which provides for a “constitution similar in principle to that of the United Kingdom”; the preamble is also often cited as a source in Canada for the privileges of parliamentarians, the prerogatives and immunities of the Crown, and the judicial independence of the courts. Each of these doctrines are complementary to the others, safeguarding to each branch respectively a sphere of inherent jurisdiction to govern its own internal affairs without interference from the other branches as it exercises its unique constitutional function.  In this context, the doctrine of parliamentary privilege is one part in a larger system that facilitates effective governance in Canada by ensuring that each branch of government maintains a measure of autonomy from the others.

For example, just as the courts have recognized limits to judicial review in matters of parliamentary privilege, they have also shown deference to the decisions of the Crown in the exercise of its prerogatives and recognized the privileges and immunities that attach to the Crown as a matter of law.^[6]   Just as parliamentary privilege has excluded the use of evidence of parliamentary proceedings before the courts, despite the very broad judicial power to compel the production of relevant evidence, Crown privilege has also been used to contest the production of government documents before the courts.^[7] It follows that the Crown also has a sphere of activity protected from the interference of the Houses of Parliament. 

It is notable that other Commonwealth governments have also taken the position that the power of their respective Houses of Parliament to send for persons, papers and records is not absolute.  In the United Kingdom, for instance, a unanimous resolution of the House of Commons in 1997 recognized that “Ministers should be as open as possible with Parliament, refusing to provide information only when disclosure would not be in the public interest, which should be decided in accordance with relevant statute and the government’s Code of Practice on Access to Government Information.” ^[8]    As in Canada, this is reflective of longstanding conventions on the provision of information that have been observed in practice by successive administrations on grounds of public policy.  Similarly, in Australia, the Commonwealth government takes the view that there can be no justification for Parliament requiring an unlimited disclosure of information by the executive and the government in Australia often asserts public interest immunity to refuse to disclose information ordered by a House of Parliament.^[9]   In New Zealand, the power to send for persons, papers and records was removed from all Select Committees in 1999, aside from the Privileges Committee, in recognition of the fact that such a power has significant potential for infringing civil liberties.^[10]

Historical Origins of Parliamentary Privilege

The idea of limits or restraints on the exercise of parliamentary privilege over other branches of the government is supported by the historical origins of the doctrine.  Parliamentary privilege developed in England as a negative right, which was asserted by the House of Commons against the executive and judicial branches of government; in other words, it was a right of the House of Commons to autonomy over its own affairs and a freedom from interference by the Crown or review in the courts. 

As noted by Dicey, “The power of the Crown was in truth anterior to that of the House of Commons”^[11]  and the English House of Commons had to struggle against the plenary powers of the King for its independence during the 16^th and 17^th centuries.  The Crown consented to the passage by the Houses of Parliament of article 9 of the Bill of Rights 1689, which established the basic parliamentary privilege of free speech. ^[12]  In practical terms, this freedom provided “immunity” from prosecution by the Crown and a defence of “privilege” in the courts.  In 1704, the Commons undertook not to claim any new privileges not already established by custom and usage.  Through statute, some privileges were defined and limited.^[13]  Finally, in 1867, Canada’s Houses of Parliament inherited the parliamentary privileges of the House of Commons of the United Kingdom as those privileges existed at the time of Confederation.^[14]

As a product of this history, the respective and exclusive constitutional roles of the Crown, the House of Commons and the courts were ultimately forged through confrontation and compromise.  For there to be an absolute privilege on the part of the House of Commons over the other branches of government would permit, in the extreme, the House of Commons to order the private papers of the Queen or the personal notes of judges.  This would be inimical to the separation of powers and the historical role of the House in relation to the Crown.

Parliamentary Procedure and Practice

While parliamentary privilege in Canada is rooted in the British experience, our history has been much less confrontational, with each branch of government generally acknowledging and respecting the traditional sphere of activity of the other, consistent with the separation of powers.  For instance, in 1873, the Governor General wrote to the British Foreign Secretary regarding an Act of the Canadian Parliament that authorized the examination of committee witnesses under oath.  The Governor General wished to support the ability of Parliament to define the Houses’ powers “providing these powers were constitutional in themselves, and did not infringe the prerogatives of the Crown.”^[15]

In the early days of Confederation, limits on the production of government documents by parliamentary committees were well established in parliamentary practice and can inform the parliamentary rules of today. The power of committees delegated with the general “power to send for persons, papers and records” has always been subject to inherent limits due to the status of committees in relation to the House, as well as the relationship between the House and the Crown within the constitutional structure.  For instance, papers and records must be relevant to the order of reference of the committee, as well as within the legislative jurisdiction of Parliament.  Further, a committee cannot enforce its own orders for documents, but must seek an order from the House to compel production.  Lastly, as observed by Beauchesne: “A committee cannot require an officer of a department of the Government to produce any paper which, according to the rules and practice of the House, it is not usual for the House itself to insist upon being laid before it.”^[16]

Writing in the late 19^th century, shortly after Canada inherited parliamentary privilege from the United Kingdom, Erskine May provided more detail on this limitation:

[C]ommittees with the “power to send for persons, papers, and records” have no power to send for any papers which, if required by the house itself, would be sought by address.  In such cases the chairman may either move an address in the house, or communicate with the Secretary of State to whose department the papers relate, who will lay them before Parliament if he thinks proper, by command of her Majesty.  The papers, when received, will then be referred to the committee by the house.  Nor is a committee at liberty to send for any papers which, according to the rules and practice of the house, it is not usual for the house itself to order.^[17]

According to the former Clerk of the House of Commons in the United Kingdom, “this provision severely limits the formal powers of a committee.” ^[18]  This also recognizes that, “a distinction must be drawn…between private persons on the one hand and government and state institutions including their representatives, namely Ministers, civil servants and officials of the institution, on the other” when considering the scope of committee powers and privileges.^[19]

Bourinot observes that, in providing returns to orders as well as to addresses,  the right of the House to obtain information from the Government on matters of public concern is still subject to limits:^[20] “Whilst members have every facility afforded them to obtain all the information they require on matters of public concern, occasions may arise when the government will feel constrained to refuse certain papers on the ground that their production would be inconvenient or injurious to the public interest.”  As Alpheus Todd, former librarian of Parliament, explained, this is rooted in the recognition of a “royal prerogative of administration” and governed by conventions of responsible government:

Considerations of public policy, and a due regard to the interests of the state, occasionally demand that information sought for by members of the legislature should be withheld, at the discretion and upon the general responsibility of ministers.  This principle is systematically recognised in all parliamentary transactions; were it otherwise, it would be impossible to carry on the government with safety and honour...

Unless prepared to assert their want of confidence in the minister who is answerable for the department concerned, or in the government generally, the House should not embarrass the ministry by insisting on the production of documents which they feel it their duty to refuse.^[21]

Speaker Beaudoin underscored this point in 1957 when he observed that “[n]o matter how ample its powers may be, there are certain documents to which the house is not entitled, and that is those a cabinet minister refuses to produce on his own responsibility.”^[22]  Bourinot provides the following examples that have been recognized as protected from disclosure:^[23]

• “[a] document, of which it is proposed to order a copy, must be official in its character and not a mere private letter or paper”;


• documents where “it would be wholly without precedent to produce them”;


• “as a rule, the opinions of the law officers of the crown are held to be ‘private communications’ when given for the guidance of ministers and may be properly refused by the government”;


• “asking for reports from officers, addressed to particular departments of the executive government, has also been considered most objectionable”; and


• “[c]ertain papers have been refused in the Canadian Commons on the ground that the ‘governor-general, acting as an executive officer of the imperial government, reserves to himself the right of withholding from Parliament any documents, the publication of which might, in his judgment, be prejudicial to the public service.’”

Subject to public policy considerations, the existence of various parliamentary procedures for sharing information reflects the special nature of the relationship between the executive and legislative bodies and acknowledges the privileged status of the Houses to request and receive information on matters of public concern from the executive.  For instance, the procedure for motions for papers has been made more accessible for members over time. The provision of certain information from the executive branch to the Houses of Parliament has also been supplemented by specific statutory duties, such as the laying of annual reports or other returns before Parliament or procedures for orders in council, which traditionally could only be requested by address.  Since Confederation, the Crown has also been entitled to lay papers before Parliament by command and over time the government has taken a position of greater openness to the disclosure of information.  However, there is little to suggest that the general principle of Crown discretion to exempt certain information in the public interest has changed over time or that the rubric of parliamentary privilege could have been extended to abrogate this privilege.  In fact, the practice and convention of the House would support the opposite conclusion.

Parliamentary Precedents

Even those who assert an unlimited power of the House to send for papers and persons as a matter of theory tend to note that this power is not exercised against the executive in practice when information is withheld for public interest reasons.  As Joseph Maingot has stated, “By convention, a parliamentary committee will respect Crown privilege when invoked, at least in relation to matters of national and public security.”^[24]  At times, the Government has agreed to share sensitive information with parliamentarians, generally on conditions of confidentiality, by exercising a discretion to waive its privilege in the interests of cooperation rather than as an acknowledgement of parliamentary privilege.  As a result, there are few, if any, conclusive precedents that support the view of absolute powers on the part of the Houses of Parliament or its committees to compel the production of Government documents.

One of the few Canadian examples of a dispute between a parliamentary committee and the Government over the production of papers being resolved on the parliamentary record occurred in 1991.  The House of Commons Justice and Solicitor General Committee sought the disclosure of two reports from the Solicitor General.  The position of the committee was that its absolute privilege entitled it to order production of the reports whereas the Solicitor General and the government took the contrary position.  The Government also took the position that the Privacy Act imposed a statutory obligation on public officials not to disclose the information to the committee without an order of the House.  In the end, the House order for the disclosure to the committee reflected the government’s view by citing the Privacy Act.

Appearing before the Committee on Privileges and Elections, to whom the matter was referred for study, the then Solicitor General, the Honourable Pierre Cadieux, made the following remarks:

No one who knows this institution would pretend that before these acts [i.e. the Access to Information and Privacy Acts] came along information was freely distributed by governments.  The reverse was the case, regardless of who the government was, by the way.  Nor could anyone accurately suggest that committees were routinely given information they requested. They were not, and there were frequent complaints about the breadth of ministerial discretion and the stinginess of governments with information... The Access to Information Act and the Privacy Act were therefore specific limitations on the government’s previously almost unhindered right to withhold information.  But they restricted that previous right; they did not eliminate it.  It is not the case, as some seem to suggest, that if information is not sought through the procedures set out in the Access to Information Act or the Privacy Act, then the government is totally naked and must release information if a committee or other body requests it.  We are simply in a situation that existed before the House passed these two statutes.^[25]

The exclusion of certain categories of information from release has been more readily conceded by members of the House than other classes of information.  In particular, information relating to national defence or security has often been acknowledged as non-compellable in light not only of the public interest and privilege of the Crown but also the Crown’s fundamental responsibility for defence of the realm.  For example, in 1969, Prime Minister Trudeau made the following remarks in the House in his Statement on Security:

There will of course always be matters which governments must keep privy to themselves in order that the public interest may be best served, even in the freest and most open of societies.  As the commissioners [of the Royal Commission on Security] have stated...: “the duty of the state to protect its secrets from espionage, its information from unauthorized disclosure, its institutions from subversion and its policies from clandestine influence is indisputable.”^[26]

In reply, the Honourable Robert Stanfield, then Leader of the Opposition, noted:  “The fact is that on matters relating to our national security, Parliament has always accepted some considerable limit on its right to demand information and full disclosure by the government... I am sure that members of parliament accept the necessity that much of the security operation is conducted outside our purview.”^[27]

Similarly, in 1990, a special committee of the House of Commons observed as follows:

Parliament has played a minor role in monitoring and reviewing the activities of Canada’s security and intelligence community...This lack of involvement has developed for a variety of reasons. Perhaps of greatest importance has been the perception that matters of national security are by convention the prerogative of the Crown, not Parliament.  This perspective has been enhanced by the view that intelligence agencies need a high level of secrecy to be effective and that making Parliament knowledgeable about such matters may not only politicize affairs, but may actually endanger the state by weakening the effectiveness of its defences.^[28]

More recently, in 2004, the Government of Canada stated that: “It was established that sensitive information about security ought not to be disclosed to Parliament and that questions about such matters were limited.  This general approach was somewhat attenuated by the occasional practice of offering security briefings to opposition leaders in exceptional circumstances.” ^[29]

Governments have shared information where it was in the public interest to do so, such as by offering security briefings.  However, such decisions were made at the discretion of the Crown pursuant to its own prerogative authority rather than in recognition of a privilege of the House to receive such information.  C.E.S. Franks has described this distinction as follows:

In dealing with matters that must legitimately be kept secret for reasons of state, there is a dilemma in establishing a system of control.  At some point secrecy must end and publicity begin, and at this juncture there must inevitably be a gap in knowledge and power ‘to send for persons, papers and records’ between the controllers and the controlled.  If Parliament shares the secret knowledge, then the press and public must accept Parliament’s viewpoint on trust; if Parliament is not privy to the secrets, then Parliament must accept some other person’s conclusions on trust.  There is little evidence in Canada that either Parliament or the public would accept Parliament as part of the inner circle of control, privy to the secrets of state.^[30]

While the discretionary exercise of Crown privilege was traditionally very broad, it has been attenuated over time by governments in the interests of greater transparency.  In 1973, prior to the passage of the Access to Information Act or the Privacy Act, the Government sought to bring greater clarity to the grounds on which the Government could refuse information when responding to notices of motions for the production of papers by tabling guidelines in the House of Commons (“the 1973 Guidelines”).  The President of the Privy Council at the time, the Honourable Allan MacEachen, outlined the key issue in disclosure of government documents:

We believe that Members of Parliament require factual information about the operations of government in order that they may carry out their parliamentary duties...We are also aware that the desire to make available as much information as possible must be balanced against effective public administration, protection of the security of the state and rights to privacy.^[31]

The Parliamentary Secretary to the President of the Privy Council, the Honourable John Reid, elaborated on the impact of the guidelines:

 [T]he changes and guidelines the President of the Privy Council (Mr. MacEachen) has introduced to the House of Commons are most significant.  They take the position of the government of Canada from that of being secretive, releasing documents only at its own whim, to the position that it accepts the principle that documents ought to be and should be released, exempting only those that fall into a limited sort of exemption.^[32]

While signalling a shift in approach from discretionary to principled disclosure, the 1973 Guidelines acknowledged the general policy and practice that some categories of information can be withheld from disclosure and should not be provided to the House or its committees.  These categories include, among others, Cabinet papers, legal opinions, internal departmental memoranda, papers detrimental to security or relations with other governments, papers regarding ongoing negotiations, and information  excluded by statute.  

It is not a coincidence that the categories of information protected by the 1973 Guidelines are also in line with the examples given by Bourinot in 1884, the boundaries of Crown privilege as a rule of evidence before the courts, the categories of protected information passed by Parliament in statutes such as the Access to Information Act, the Privacy Act, the Canada Evidence Act and the Security of Information Act, and the approaches of other Commonwealth governments.  As observed by Todd, royal prerogatives are “held in trust for the benefit of the whole nation”^[33] and it has always been recognized by governments that there is a duty as well as a privilege to protect the confidentiality of certain information for reasons of state, even where respecting that duty may not be in the tactical or political interests of the governing party.

2)  Parliamentary Sovereignty and the Rule of Law

“The supremacy of parliament, the foundation on which the claim is made to rest, appears to me completely to overturn it, because the House of Commons is not the parliament, but only a co-ordinate and component part of the parliament.  That sovereign power can make and unmake the laws; but the concurrence of the three legislative estates is necessary; the resolution of any one of them cannot alter the law, or place any one beyond its control.”^[34]

“I believe that privilege is limited in its application and has never been interpreted as giving an absolute right to Members to receive documents… Before the Access to Information Act and the Privacy Act were passed, the government did not normally reveal certain types of information.  In passing those two acts Parliament placed important qualifications on the right to withhold or reveal information at will, but clearly did not intend to totally remove the ability to exercise responsible judgment in the interest of privacy or of personal or institutional security.”^[35]

The foregoing discussion on Crown prerogatives and powers in relation to parliamentary privilege does not, however, imply that the Crown today can withhold any information from anyone at its absolute discretion.  Each of the branches of government, including the Crown, can be restrained in the exercise of their powers by virtue of the constitutional principles of parliamentary sovereignty and the rule of law. 

The privileges of the Houses of Parliament and the Crown are similar in this respect in that, while all three bodies exercise constitutional functions and possess certain powers, the definition of those powers can generally be accomplished by an Act of Parliament – that is, a law passed with the consent of both Houses and the Crown acting together.  In other words, while parliamentary privilege has “constitutional status”, its scope and limits may be made subject to Acts of Parliament, as well as conventions regarding its exercise.  Conversely, none of these bodies is empowered to extend unilaterally its powers beyond the bounds of its original jurisdiction since neither the Crown nor a House of Parliament alone can make the law.  Finally, neither is permitted to be its own judge in determining the existence and scope of its powers.  As observed by a former clerk of the House of Commons, the courts have a role to play in jurisdictional review of parliamentary privilege:

[I]t is clear that in recent years courts in the United Kingdom have been increasingly resistant to the notion of an unconfined power in any body to determine the limits of its own jurisdiction. Neither House of Parliament can lay claim to any assistance from the principle of Parliamentary Sovereignty, since neither the Commons nor the Lords alone is the sovereign legislative body.  So although the Commons have by resolution attempted to insist upon their sole jurisdiction in matters of privilege, the claim is not one that in the last resort can be defended.[^36]

The principles of parliamentary sovereignty and the rule of law have two important consequences for the power of committees to send for government documents:  first, due to substantive legal rules that have been placed on the Government regarding the collection, use and disclosure of information; and second, due to the legal duty that is placed on the executive branch to obey, execute and implement the law pursuant to the Constitution.

Information Laws

The legal, societal, and political context has changed considerably since the development of the doctrine of parliamentary privilege. In particular, with regard to the disclosure of information, public expectations and democratic standards now require much greater openness on the part of the government, as reflected in 1973 by the tabling of government guidelines on disclosure.  Greater demands for openness and accountability from state actors have also led to important legal developments. 

Through the passage of Acts of Parliament, very little governmental discretion in this area is now exercised unconstrained by statutory duties and obligations.  For instance, the Access to Information Act established the principle that necessary exceptions to the public’s general right of access to government information should be limited and specific.  Moreover, the Privacy Act established in law the right of individuals to have access to their personal information and to impose on the government a duty to protect that information from unauthorized collection, use or disclosure.  Similarly, the Canada Evidence Act structured the grounds and procedures for claiming certain Crown privileges before the courts and other bodies.

In this way, Parliament imposed new rules on government regarding its management and disclosure of information in order to limit a pre-existing discretion. The consequences of these legislative changes were well-explained by the Honourable Pierre Cadieux when he appeared before the Committee on Privileges and Elections in 1991 to object to the disclosure of certain documents to a parliamentary committee that contained personal information protected by the Privacy Act:

These two statutes [- the Access to Information Act and the Privacy Act -] did not invent the government power to control information.  They imposed limitations on a power that already existed and was considered to be far too broad… The Access to Information Act codified the principles to be applied by government in withholding information, principles which had traditionally been accepted by the House as appropriate… Broadly speaking, the Privacy Act imposed two obligations. It removed the right of a government to determine whether a wide range of material related to the privacy of individuals could be released and, instead, imposed an obligation to protect personal information.  It also extended the right to individuals to ask for the files that the government held on them individually…^[37]

In 1991, the Privacy Commissioner believed that the purpose and spirit of the Privacy Act was to exclude parliamentarians from having any more general a right of access than is provided in the Act.^[38]

The Act does define certain exceptions where personal information may be released pursuant to the statute including where it is “for the purpose of complying with a[n]...order made by a ...body with jurisdiction to compel the production of information.”  It is widely believed that the House of Commons, rather than its committees, is such a body and could therefore receive personal information protected under the Privacy Act under the terms of that Act.  Notably, the 1991 dispute over protected reports was resolved by a resolution of the House that ordered the production of the reports in camera “having regard to paragraph 8(2)(c) of the Privacy Act” and included a ban on disclosing “any information contained in the said reports which may be protected from disclosure under either the Access to Information Act or the Privacy Act.”^[39] In other circumstances, the Government has disclosed information directly to parliamentary committees where it was justified within the terms of the public interest exception of the Act.^[40]

Duty to Respect and Abide by the Law

As a corollary to the duty to respect the rule of law, which is incumbent on all constitutional actors, the executive branch is bound by a particular duty to respect legal obligations imposed on it by virtue of its constitutional function to execute and implement Acts of Parliament.  Parliamentary privilege has been at times described as an exemption from the ordinary law, reflecting, for example, that speech in parliamentary proceedings is protected from legal consequences or that laws of general application, such as liquor licensing laws, cannot be enforced within Parliament.  However, it is the Government’s view that a distinction must be made between the use of privilege to protect voluntary disclosure on the one hand (e.g. to protect the testimony of a whistleblower) and the invocation of privilege to compel disclosure in disregard of duties imposed by law.

Notably, in 1784, a dispute arose between the House of Lords and the House of Commons in England when the Commons issued a mandate to the Treasury to suspend the payment of certain bills until the Commons should further direct.  In response, the Lords passed the following resolution:  “That an attempt, in any one branch of the Legislature, to suspend the execution of the law, by separately assuming to itself the direction of a discretionary power, which, by an Act of Parliament, is vested in any body of men to be exercised as they shall deem expedient, is unconstitutional.”  This principle was subsequently cited with approval by the courts.^[41]

The same principle was recognized in a 1939 report from a UK Select Committee on the Official Secrets Act.  The committee was charged with studying the application of the Act – which was very sweeping in the types of information it defined as official secrets – to parliamentarians and parliamentary proceedings.  The report recommended that Members not be prosecuted for violations of the Act in the course of their parliamentary duties, consistent with the freedom of speech of Members, but it rejected the idea that such protected information could be received from a person holding an office under the Crown as of right or as a matter of privilege.  At paragraph 17 of the report it states:

It would be highly dangerous to give any colour to the view that the mere fact of election to the House of Commons creates a general duty towards the person elected on the part of the depositaries of official secrets to disclose those secrets without authorization.  And in the case of such matters as, for example, the proceedings of the Cabinet, the provisions of the forthcoming Budget, the disposition of the Fleet on mobilization, the formula of a new gas, or the specifications of a new submarine, the circumstances that would justify disclosure [based on the public interest exception in the Act] must be so exceptional as to be almost unthinkable.

Therefore, while a parliamentary committee may be of the view that an Act, such as the Privacy Act or the Security of Information Act, does not apply to it, government officials appearing before the committee continue to be bound by their legal obligations, even if parliamentary privilege would protect them from legal consequences for breaching those obligations. The legal duty is clear on the face of the Privacy Act and is reiterated by section 76 of the Act, which states that “This Act is binding on Her Majesty in right of Canada.” The duty on government officials to respect the law also forms part of the executive’s superior obligations to the rule of law and the sovereignty of Parliament, as well as the responsibility of government to Parliament and the people for the lawful exercise of its powers.  This is not a duty that the House alone, much less a committee, can override.

3)  Responsible Government and Ministerial Accountability

“Papers are frequently provided for Select Committees by civil servants in an informal manner at the request of the committee.  It is however, in my view, doubtful whether a committee has any power to order a civil servant to produce papers since they are not in civil servants’ custody. All State papers are held and all correspondence that emanates from Departments is constitutionally conducted in the name of the Crown and, in my view, all such papers and correspondence must be considered to be in the custody of Ministers of the Crown, without whose authority they cannot be released.  It would seem probable, therefore, that the remedy for failure to produce papers lies against Ministers rather than the officials who work under them.  Here again, this position would appear to accord with the constitutional accountability of Ministers to the House.”^[42]

The third constitutional principle raised by an assertion of an absolute power to order documents is the principle of responsible government, which requires that the government be responsible to the House of Commons for the exercise of executive power.  The framework of responsible government establishes particular avenues of responsibility, largely through convention, that govern the interaction between the executive and the House of Commons.  This includes the requirement that the government resign or request a dissolution if it has lost the confidence of the House of Commons, as well as the conventions of collective and individual ministerial accountability.

The Conventions of Responsible Government

Collective ministerial responsibility, or Cabinet solidarity, allows ministers to be frank in private but requires them to support the Government in public. As a group, Ministers are accountable in Parliament for the Government's actions.   The personal responsibility of each member of Cabinet is referred to as individual ministerial responsibility. It normally includes responsibility for a department. In this context, Ministers receive confidential advice from the public service, make important decisions and are held accountable for these decisions in Parliament. 

The constitutional responsibility of Ministers assures that the House may focus responsibility for the conduct of the Government on those of its members who hold ministerial office and who must personally answer in Parliament for their actions and the actions of their departmental officials.  In other words, it is Ministers and not public servants who are responsible to answer and account to the House.  Answerability is achieved not through the provision of every piece of information that the House may desire but through sufficient explanation, justification and responsible departmental oversight in order to sustain the confidence of the chamber. 

As part of the executive branch, public servants are accountable to their Ministers and not directly to Parliament and, as a matter of convention, public servants are anonymous actors who have no identity in Parliament but through their Ministers.  Indeed, the impartiality and loyalty of the public service to the government in office has been recognized as an essential prerequisite to responsible government. 

The principles of responsible government have four important consequences for parliamentary committees seeking the disclosure of documents from public servants.  First, it follows that parliamentary committees cannot have any more power over public servants than they would over their Ministers to order disclosure of information. As C.E.S. Franks has explained:

Ministers are under no more obligation to give detailed answers to a committee than they are to the House in question period. They can choose not to answer questions in committee.  When civil servants appear as witnesses, they speak on behalf of the minister and are limited, in answering, to what the ministers permit them to say.^[43]

Second, consistent with the separation of powers and the convention of collective ministerial responsibility, in no circumstances would it be appropriate to request documents relating to Cabinet deliberations or decisions.  This principle may extend with equal force to the confidential advice of public servants in support of the general responsibility of ministers.  Even though governments today openly share factual and background information included with ministerial advice, a June 30, 1943, ruling of Speaker Glen held as follows:

It is a mistake to believe that as long as a paper deals with a public question, parliament has a right to see it.  Memoranda, letters or drafts submitted to a minister by his officer in the preparation of a government measure or ministerial statements, though they deal with public matters, are not in the category of official documents which ministers are bound to lay before the house.^[44]

Third, consistent with the conventions of ministerial responsibility and public service loyalty, public servants should not be pressed to produce information or documents without ministerial permission or legislative authority and disputes over the disclosure of information should be directed at Ministers rather than officials. 

Fourth, while one of the functions of the House is to hold the Government to account, the principle of responsible government does not empower the House of Commons with absolute privileges that it can exercise over the executive.  Rather, there are long-standing and fundamental mechanisms within the Westminster parliamentary system by which the House of Commons demands answerability, accountability, and responsibility by the Government and its ministers.  These mechanisms include the need for the Government to maintain the continued confidence of the House, the need for the House’s consent in passing the Government’s legislative agenda, and the need to obtain the House’s authority for supply.  In other words, the House has considerable powers related to its constitutional function of holding the government to account, but that function must be exercised within the framework of responsible government, which does not extend so far as to attribute either parliamentary committees or the House itself with an absolute power to order documents.

Modern Accountability Mechanisms

In addition to traditional accountability mechanisms under responsible government, the standards of modern democracy have supplemented the capacity of parliamentarians and the public to hold the government to account.  These changes, however, have occurred as a matter of policy or law rather than an extension of parliamentary privilege.

For example, developments in the parliamentary sphere have had positive effects on the openness, transparency and accountability of government.  As noted above, the procedure for motions for the production of papers has become less cumbersome and more accessible, in line with a greater openness and recognition of Private Members’ Business overall.  In addition, as has been observed by Joseph Maingot, “we have come, in about twenty years or so from the time when a matter would not be sent to a committee unless there was an agreement about when it would be reported back to the House, to a time when committees have more or less carte blanche regarding what subjects they may undertake within their particular sphere of activity.”^[45]  Furthermore, committees (as well as members) are better funded and have more research capabilities and resources at their disposal. 

Of particular note is the advent of officers of Parliament, such as the Auditor General, the Information Commissioner, the Privacy Commissioner, the Commissioner of Official Languages, and the Conflict of Interest Commissioner, who operate independently and assist parliamentarians in holding the government to account for its administration of public affairs.  These agents, by statutory authority, often have significant powers and broad access to government information.^[46]  The 1991 issue between the Solicitor General and the Justice Committee provides an interesting example; the Privacy Commissioner in that case had reviewed the reports at issue and was able to confirm for committee members that the information was appropriately withheld.  The Commissioner noted: 

Parliament decided when it passed the Privacy Act that Parliament would have its own officer to make sure that government ministers respected the Privacy Act. If a parliamentary committee is concerned about that, come to me. That is what I am here for.^[47]

Moreover, departments and agencies have significant reporting obligations pursuant to statute and government policy, which furthers the interests of openness, transparency, and a full accounting to Parliament.  Similarly, access to information laws have set important benchmarks for defining protected information, bringing greater predictability and certainty to an area previously governed by broad discretion.  In Canada, while not applying directly to information requests from parliamentarians, the Access to Information Act has significant value in measuring standards for disclosure, just as freedom of information laws in other countries have done the same. 

Other governments have outlined benchmarks for the state regarding the obligation to be open with the House and how far it extends.  In the United Kingdom, the Resolution on Ministerial Accountability was adopted unanimously by the House of Commons in March 1997.  This Resolution provides that “Ministers should be as open as possible with Parliament, refusing to provide information only when disclosure would not be in the public interest,” which questions are now decided in accordance with the exemptions provided by the Freedom of Information Act 2000.  The UK also has Guidelines on Departmental Evidence and Response to Select Committees reflecting these same principles, which were first tabled in Parliament in 1978.  In the same vein, Australia and New Zealand have adopted guidelines[^48] for government witnesses appearing before parliamentary committees that are mainly drawn from the Freedom of Information Act 1982 (Australia) and the Official Information Act 1982 (New Zealand).  In none of these cases are the Acts applied directly, but the statutes provide guidance in defining the grounds for withholding information in the public interest. 

Interestingly, the Houses of Parliament have also undergone a similar evolution towards transparency and publicity over time.  While the privileges of the House have traditionally entitled it to the utmost secrecy and strictest control over the publication of its proceedings, openness is now the prevailing standard so that constituents can be informed of the work of their representatives.  Nevertheless, it is also recognized in parliamentary proceedings that, at times, confidentiality is required in the public interest and must be respected.  While heightened standards and expectations for transparency do not extend the scope of the powers of the House of Commons to demand government documents by virtue of parliamentary privilege, they have provided important additional tools to parliamentarians for prescribing rules for the exercise of governmental power and for holding the government to account.

CONCLUSION

The foregoing discussion of constitutional principles and parliamentary practice has set out a deeper context for understanding the scope and application of parliamentary privilege.  Based on constitutional principles, claims of parliamentary privilege should not be used to upset the balance of power and responsibilities between the branches of government, to override the will of Parliament or to subvert the established conventions or practices by which the Government is held to account.  While it is the Government’s view that parliamentary privilege does not include an absolute power to order the production of protected information, it is also the Government’s view that these matters are best resolved within the precincts of Parliament, consistent with our parliamentary and political traditions.  Despite our difference in opinion on historical parliamentary practice, the Government is confident that all parliamentarians can and should work together to ensure that the parliamentary process functions in the best way possible for the people it serves.