Amid a legal battle over whether the government has to release documents that could contain national security concerns to the House of Commons, some argue a more formal solution to how Parliamentarians can access sensitive documents may be needed, sparking debate over the National Security and Intelligence Committee of Parliamentarians' future. While opposition parties have argued against sending ordered documents—possibly containing national security concerns—to the National Security and Intelligence Committee of Parliamentarians (NSICOP), the Liberal government has said it is the appropriate body to look over such records. Though populated by Parliamentarians, the NSICOP is not a committee of Parliament. The debate has taken centre stage after the House of Commons passed a motion in June ordering the Public Health Agency of Canada (PHAC) to handover documents related to the firing of two scientists at the National Microbiology Lab in Winnipeg. Failure to deliver those documents led to a House reprimand for PHAC president Iain Stewart and a Federal Court application filed by the government to stop the release of the records. NDP MP Jack Harris (St. John's East, N.L.), who sits on the Canada-China Relations Committee as well as the House foreign affairs and public safety committees, said there needs to be a “full recognition” of the constitutional rights of Parliamentarians, as was embodied in the decision of then-House Speaker Peter Milliken in 2010. Mr. Milliken previously ruled that the House has the right to order unredacted documents from the government amid a request by the opposition to gain access to documents related to the Afghan detainee scandal. NDP MP Jack Harris says the current situation regarding parliamentary access to documents that may contain national security details is a 'live issue.' The Hill Times file photograph “This government clearly has indicated that it doesn't believe in that decision. That's the fundamental problem here. We've seen this in various committees during this Parliament,” Mr. Harris said, noting, for example, that unredacted documents regarding arms export permits weren't released as requested by the Foreign Affairs Committee in 2020. He said MPs were treated the same as members of the public who request documents through the Access to Information Act despite the parliamentary privilege that MPs have. Mr. Harris said the situation remains a “live issue.” “A solution is going to be found,” he said, but added that it doesn't lie in the NSICOP. “NSICOP itself has its own flaws. It's not as robust as the British system, which it was supposedly modelled after. It reports to the prime minister and not to Parliament, and there are significant constraints on their ability to do their work,” he said. Conservative House Leader Gérard Deltell (Louis-Saint-Laurent, Que.) said in June that Prime Minister Justin Trudeau (Papineau, Que.) is the “owner” of the NSICOP, adding that he is unable to speak with Conservative MPs on the body about what is discussed. He said Mr. Trudeau has the veto on “each and every aspect of debate” and “each and every aspect of the recommendations” and “each and every fact.” Conservative Leader Erin O'Toole (Durham, Ont.) said he was pulling Conservative members from the committee in mid-June. But, as of Aug. 10, Conservative MPs continued to be listed as members of the committee on the House of Commons' website. The Bloc Québécois also objected to the documents being sent to the NSICOP in June as the committee didn't have a Bloc member. But since then, Mr. Trudeau has appointed Bloc MP Stéphane Bergeron (Montarville, Que.) to it. Mr. Harris said a solution to the stalemate has to be reached by Parliamentarians with the government showing “leadership.” “If weren't satisfied with what was contained in the original motion from the committee, they should have vigorously pursued alternatives instead of facing a showdown, which they ultimately did,” said Mr. Harris, adding he doesn't think the Federal Court will rule on the application. “I think the Federal Court will say this is a matter for Parliament, and not for the court.” Carleton University professor Stephanie Carvin, a former national security analyst with the federal government, said the NSICOP is the proper mechanism for Parliamentarians to look at documents that may contain national security information. “There's been a lot of misinformation that NSICOP is somehow controlled by the prime minister—that's not accurate,” she said. “If the prime minister tampered with a for political reasons ... there would be serious legal consequences.” “The idea that this is somehow a prime ministerial controlled body or institution is wrong and misleading, but unfortunately has become the dominant public narrative,” Prof. Carvin said. She said she is “disappointed” that the NSICOP has become the “scapegoat” for the current problems of Parliament. “It's really unfair. It's a good institution. It provides a good and important role,” she said, adding that before the NSICOP was created, Canada was one of the only countries not to have parliamentary oversight of its national security community. “In trashing it, I worry that we are going to lose it,” she said, adding that the Intelligence and Security Committee of Parliament (ISC), the body favoured by the opposition, has its own problems. She said she is “hopeful” that the NSICOP can survive the current controversy. Prof. Carvin said before this fight over parliamentary privilege, the Special Committee on Canada-China Relations was doing “good work” and asking “really important fundamental questions” about Canada's engagement with China. Conservative Leader Erin O'Toole announced in June that his party was pulling its members from NSICOP. The Hill Times photograph by Sam Garcia “Now, it has turned into a fight about parliamentary privilege going back to King Charles, and that's not what Canada needs right now,” she said. National security expert Wesley Wark, a professor at the University of Ottawa, said the NSICOP has done “excellent work.” “It is only because, in my view, the Conservative Party and other opposition parties want to pursue some kind of scandal angle to this story that they are unprepared to allow the National Security and Intelligence Committee of Parliamentarians to pursue an investigation, which they are fully capable of doing,” Prof. Wark said. “They are the body that should be pursuing this investigation.” But, he said, an offer to send the documents to NSICOP should have been made sooner by the government. “Parliament has shot itself in the foot,” he said, “and they have badly undermined their own creation, which was designed exactly to meet these kind of circumstances so there would be a security-cleared group of Parliamentarians—MPs and Senators—who pursue investigation in a non-partisan manner and who can protect secrets.” Prof. Wark said unlike the NSICOP, no parliamentary committee has MPs with security clearances that is also backed by a professional secretariat that has intelligence training and is capable of investigating these issues. “Never has, never will,” he said. He said that the NSICOP has been “deeply compromised” by the Conservatives announcing the withdrawal of their members. But Prof. Wark suggested there might be some “breathing space” for the committee if an election is called, because the committee would be dissolved and have to be reconstituted in a new Parliament, as per the act that created it. “It is hard for me to see how Erin O'Toole can backtrack from his comments that the committee is not legitimate,” he said. “I would be very sorry if, because of this political scandal mongering, it was not able to continue its work in future. That would be a real shame and frankly an embarrassment for Canada with its allies,” he added. Should more MPs get security clearances? One possible solution could be for MPs on select committees to receive national security clearances, which could allow them to gain increased access to briefings and documents that could help with parliamentary studies. Before the debate over the release of PHAC documents, Conservative MP James Bezan (Selkirk-Interlake-Eastman, Man.) forwarded the idea in January 2020 of having members of the House Defence Committee receive security clearances. “We could actually empower and provide top secret-level clearance to the national defence committee so that they could make better-informed decisions and help provide concrete feedback to the government on things like procurement, on things like national intelligence, on things like how we integrate and operate with our (Five Eyes) partners,” Mr. Bezan told iPolitics at the time. Prof. Carvin said there is no reason why Parliamentarians couldn't get security clearances. “I think it would be good for Parliamentarians to have. There would be some risks to it, which of course is the politicization of intelligence—something, by-and-large, we have been able to avoid,” she said. One issue, however, is that Parliamentarians don't usually have an intelligence background, which would mean that they would have to have some intelligence educational training. She said it would be beneficial to have both the NSICOP operating, as well as a committee of the House with members given security clearances. Prof. Wark said there will always be a concern that members of the House or Senate will leak national security information, which has to be “guarded against at all costs.” However, Mr. Harris argued that providing more MPs with national security clearance wouldn't be a solution, and would lead to added problems by creating two tiers of MPs, those with security clearance and those without. email@example.com The Hill Times The brewing battle between the House and the government May 10: As part of its ongoing study, the Special House Committee on Canada-China Relations passes a motion ordering the production of unredacted documents from the Public Health Agency of Canada (PHAC) related to the firing of two scientists at Winnipeg's National Microbiology Lab. At the same meeting, a Justice Department lawyer told the committee that the power to send for records is “not absolute.” June 2: After the government refused to turn over the documents, Conservative MP Michael Chong forwards an opposition motion in the House to have the documents subpoenaed. With the support of all the opposition parties, the motion is passed. June 4: PHAC informs the House it gave the documents to the NSICOP, which the Liberal government has said is the appropriate body to look at information that may contain national security concerns. June 7: Conservative House Leader Gérard Deltell raises a question of privilege after the parliamentary law clerk notified the House that the government did not handover the ordered documents. June 16: House Speaker Anthony Rota rules the government breached parliamentary privilege by not turning over the documents. He agreed with the arguments of the opposition that the NSICOP is not a committee of Parliament. June 17: Conservative Leader Erin O'Toole tells the House he has withdrawn the Conservative members from NSICOP, saying it is being used as a “political tool by the prime minister to cover up the Winnipeg lab incident.” (Conservative MPs are still listed as members of the committee, according to the House of Commons website.) June 21: PHAC President Iain Stewart is called before the bar and reprimanded in the House by Mr. Rota for not turning over the documents. Mr. Stewart was ordered to bring the documents to the House, but he did not do so. June 23: The government submits a federal court application, which names Mr. Rota, to block the release of the documents. July 22: In a court filing, Mr. Rota argues the House has the power to order production of the records it believes are necessary to conduct its business. “Under our system of democratic government, the House has unfettered discretion and authority in exercising this power,” he maintains. Aug. 5: A case management conference is held to address Mr. Rota's motion to strike the case. The court has ordered the motion record to be filed by Aug. 13 and the government's response by Sept. 3. Hearings on the motion will be held on Sept. 16 and 17. Another case management conference is also scheduled for Sept. 8.