National Security Legislation: Bureaucrats 2; Citizens 0

By Jack Dodds

The House of Commons and the Senate have adjourned for the summer, after making decisions on two bills related to our national security agencies: the National Security and Intelligence Committee of Parliamentarians Act (C-22) and the Preclearance Act, 2016 (C-23). The first was passed by the Senate, received royal assent and is now law. The second was passed by the Commons after minor changes in committee and has been referred to the Senate. The stories of these two bills illustrate the reality that democracy is always a work in progress.

While in opposition in 2014, Joyce Murray (MP – Vancouver-Quadra) introduced a private member’s bill to establish a Parliamentary committee to oversee Canada’s security agencies. The bill was, of course, defeated by the Conservative majority. When the Liberals came to power, the government introduced the Committee of Parliamentarians Act (C-22). It is similar, but the body that it establishes reports to the Prime Minister, not to Parliament, and its powers are severely limited. The Commons Standing Committee on Public Safety and National Security (SECU) proposed amendments that would have strengthened it, but Cabinet rejected most of them.

The Preclearance Act, 2016 originated in a 2015 agreement between the Conservative Public Safety minister and the US Homeland Security secretary with no input from Parliament. It expanded the number of sites in Canada at which US agents could clear passengers for entry into the US, and gave those agents increased powers. After the election, the Liberals committed to implementing the agreement, touting its economic benefits. The same SECU committee heard testimony that the new powers granted to US agents were excessive, but it was told that any changes to the bill would endanger the agreement. The SECU made only minor improvements. The bill has now been passed by the Commons and referred to the Senate.

Both cases illustrate the disproportionate power held by Cabinet and the bureaucrats that advise it.

In studying bill C-22, the SECU heard from 41 witnesses. Previously SECU had conducted a study of Canada’s National Security Framework, travelling coast to coast to hear from 138 witnesses (including two from CUSJ). Given this substantial effort, SECU had a detailed and balanced knowledge of the issues–However, cabinet apparently acted on the advice of the very bureaucrats whose actions would be overseen by the new body. The Liberal members of SECU were ordered to vote against their own carefully thought-out recommendations in the full House of Commons. Some must have found this humiliating.

In accepting the new powers given to US agents by the Preclearance Act, the SECU committee was told that it could not make changes to an agreement that had been reached privately between officials of the previous governments of Canada and the US. (Both governments had been defeated in subsequent elections!) Again, the elected legislators were somehow made to take back seat to Cabinet.

The NDP and Green parties have consistently supported a more balanced approach to these bills. What if Canada’s Parliament had proportional representation, with the Liberal government holding a minority of the Commons? Would the opposition parties have been able to negotiate a better result? It’s debatable, because the Conservatives in Parliament have supported the Cabinet position on these two bills.

These stories illustrate Winston Churchill’s statement “ … that democracy is the worst form of Government except all those other forms that have been tried from time to time … .“ (UK Hansard 1947-11-11.) Even though we are fortunate to live in a country where free elections are part of the system, hard work is needed to make that system deliver responsive government.

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