Party politics allows us to balance intelligence and accountability
By Philippe Lagassé, Associate professor and the Barton Chair at Carleton University.
Several parliamentarians may have conspired with, or been compromised by, foreign powers. According to the National Security and Intelligence Committee of Parliamentarians (NSICOP), at least one of these parliamentarians may have shared confidential information with a foreign state. In light of these allegations, the Conservative Party and media commentators have asked the government to disclose the names of these parliamentarians. Doing so comes with risks, but not naming them robs us of any accountability.
What factors weigh for and against naming names? And is there a way to balance these competing considerations?
First off, it’s important to note that members of NSICOP wouldn’t be shielded by parliamentary privilege if they disclosed the names in Parliament. The NSICOP Act limits their protection from prosecution if they disclose classified information in parliamentary proceedings. Other parliamentarians could name the names in Parliament without facing prosecution, however, thanks to the protection of parliamentary privilege. Cabinet ministers could therefore name the names. Similarly, if a backbencher who isn’t an NSICOP member learned the names, they could disclose them in parliamentary proceedings, too.
Cabinet ministers will hesitate to air the names in Parliament. Sharing classified information could undermine ongoing investigations and possibly expose intelligence sources. Indeed, naming names could hamper the ability of the intelligence services to understand what the parliamentarians in question have been up to. Likewise, if the RCMP is investigating some of these parliamentarians and considering charging them, naming them would involve messing around with law enforcement.
Explicitly naming the parliamentarians in Parliament would leave them with no legal recourse. The named parliamentarians couldn’t sue for libel. They could protest all they like, but they would have no means of clearing their names if the allegations are false. Those who are eventually charged by the RCMP might have their day in court and perhaps clear their names, but there’s no guarantee charges will ever be laid. Simply put, the named parliamentarians may not benefit from anything like due process. Rightly or wrongly, I suspect this is leading their fellow parliamentarians to demur.
How can we get around these concerns? I’d argue the answer lies with political parties.
All opposition party leaders should be appointed privy councillors if they aren’t already. They should then be briefed on the parliamentarians who may have been compromised and what they are alleged to have done. Based on this information, the party leaders could then decide what political precautions or sanctions are appropriate. The suspected parliamentarians could be taken off committees. They could be removed from the party caucus and be forced to sit as independents. They could then be barred from running under the party banner in the next election. These sanctions would be harder to manage in the Senate, given the grouping system, but we have recent examples of Senators who’ve been rendered black sheep in the upper house.
What would these steps accomplish? The suspected parliamentarians would be known to the public and marginalised within the legislature. Importantly, though, they wouldn’t be publicly accused of anything. All we would know is that they’ve been sidelined. This would effectively end the political careers of the members of Parliament (MPs) among them. They’d be forever known as the MPs who did something troubling, even if they never end up being charged with a crime.
The advantages of this approach are two-fold. Above all, it doesn’t involve disclosing details about what the intelligence services have gathered and suspect. Nor does it interfere with any criminal investigations. As well, the parliamentarians wouldn’t be openly named in Parliament. Although their reputations would still be damaged, details about what they’re suspect of having done wouldn’t be known, unless they’re subsequently charged.
That said, there would still be disadvantages. Ongoing intelligence operations could still be affected if the parliamentarians are known but not explicitly named. The parliamentarians who believe they’re innocent wouldn’t have anything resembling due process, particularly if they’re never charged with anything. And we can’t discount the possibility that the intelligence services are mistaken or unsure in some of these cases.
Still, the proposed approach would provide a measure of accountability. Nobody is owed a seat in Parliament or a successful political career. Many MPs have been pushed out of caucuses when they’ve been suspected of wrongdoing. Having party leaders briefed on the intelligence would allow them to make a judgement call. If they think the intelligence is too thin, they don’t need to act. The party leaders can look at each case on its merits.
While it isn’t perfect, we have a way to name names without naming names.
*This article was first published In Defence of Westminster