Whistleblowing legislation and the Security of Information Act in conflict
With sources saying the government will table its new whistleblowing legislation in the House today, speculation about its contents will end. But some legal experts worry that conflict with existing legislation—notably the Security of Information Act (SIA)—may dramatically affect the new legislation’s efficacy. Opposition critics echo some of their concerns.
“We’ve been pushing for it for a long time - that we achieve that balance,” Conservative National Defense critic Jay Hill (Prince George-Peace River, BC) said, of competing national security and public disclosure interests. “We’re going to have a lot of expert testimony when the bill is tabled. We’re going to have to have a very wide-open debate. I hope that the government isn’t going to decide as they did with some of the legislation that gave new powers to the government following 9/11 that they all of a sudden bring down the heavy hand of closure and time allocation to limit debate. This is the type of thing as most parties have said that we want to ensure as a nation and as a parliament that we do it right—and we get it right.”
The NDP’s Defense Critic MP Bill Blaikie (Winnipeg-Transcona, Man.) was unavailable for comment and referred The Hill Times to MP Pat Martin (Winnipeg Centre, Man.).
“If we’re going to have really comprehensive broad whistleblowing protection,” Mr. Martin said, “It would have to say that if these measures are in conflict with any other clauses in other legislation, this legislation should have precedence.”
When the RCMP raided journalist Juliet O’Neill’s home and office on January 21st, she was charged under Section 4 of the SIA for allegedly revealing secrets in documents obtained from a source in a story she wrote about the Maher Arar case. Passed after 9/11, the SIA contains a narrowly defined “public interest defense”—Section 15—offering some protection to people charged under Sections 13 and 14 only of the SIA which cover disclosure of “special operational information.” Even then, Section 15 called “public interest defense” has a long list of qualifiers attached to it, including “prior disclosure to authorities necessary,” internal bodies the person must approach before going public.
Section 4 is not covered by the public interest defense.
“It would conflict and it would govern in the areas of national security rather than the whistleblowing statute,” Mr. Ruby of the Toronto firm Ruby and Edwardh told The Hill Times, of the SIA. “It will eat up the obligation to disclose unless it is carefully confined.” He suggested that unless the whistleblowing legislation includes a section stating its precedence, the threat to journalists and others disclosing information the government designates secret will continue under the SIA. Mr. Ruby has called for the SIA’s repeal.
“It’s over broad,” Mr. Ruby said. “It’s provides government with a mechanism for essentially preventing anyone from making public information that the public needs to know available under the grounds of national security.”
“Bear in mind that government thinks everything is national security these days, and you can’t let government make those decisions otherwise nothing will ever be revealed,” Mr. Ruby added.
Mr. Ruby said a body independent from government, empowered to make independent decisions in protecting “true national secrets” and “encourage whistleblowing” would be most effective.
University of Ottawa law professor Errol Mendes said making the SIA’s Section 15—“public interest disclosure”—predominate over all other SIA sections would help “fix” the problems.
Most people contacted by The Hill Times were under the impression that the parliamentary review of the SIA announced by Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness Anne McLellan (Edmonton West - Alberta) on January 28 would be of the entire SIA.
In fact the review is of section 4 only, the section Ms. O’Neill allegedly violated.
“If we’re going to take a long hard look at this now that the immediate aftermath of 9/11 is over - and cooler heads are prevailing hopefully - we should look at the entire act,” Conservative Defense critic Jay Hill said.
“To state unequivocally that no, we’re only going to look at one section—I think that that’s pretty short sighted,” Mr. Hill added.
Labour lawyer Sean McGee of the Ottawa firm Nelligan, O’Brien, Payne described Katherine Gun’s case as “as good an example as any” of powerful competing interests -security, Access to information, whistleblowing, and public interest.
While working as a translator for the British government’s intelligence and security organization, General Communications Head Quarters (GCHQ), in January 2003 Ms. Gun leaked an e-mail from a US National Security Agency official to The Observer newspaper in Britain. The e-mail requested British help in spying on “swing” delegations during the controversial UN Security Council debate about the invasion of Iraq. As well as exposing the spying, “my actions were necessary to prevent an illegal war,” Ms. Gun later told The Guardian. Last June, Ms. Gun was charged under Britain’s Official Secrets Act (OSA).
The SIA and OSA contain similar provisions - both contain gag statutes, for example.
Last month the British government dropped Ms. Gun’s prosecution. Critics allege politics was the reason —Ms. Gun’s defense team requested a copy of the Attorney General Lord Goldsmith’s advice to the government on the invasion’s legality. There is intense British media and public interest in that advice.
“If the law sets up something that says… you have to be a whistleblower in private which is what sometimes some people advocate, there are going to be individuals who say this is not serving the public interest and I have a duty, a citizenship duty to some extent, to disclose this in public—and there will be this kind of fight,” Mr. McGee said. The “clearest and widest possibility of public disclosure” consistent with the other interests would avoid similar cases in the future, he said.
But Mr. Mendes said despite his “sympathy” for Ms. Gun, every Western liberal democracy has a version of the OSA. As an international lawyer, Mr. Mendes added that despite his “acute” interest in Lord Goldsmith’s advice to the British cabinet, terrorist threats make protecting secrets vital to national security.
“There are some very substantial doctrines which for very good reasons could be argued against disclosure such as the solicitor-client privilege,” Mr. Mendes added. “If Goldsmith is regarded as a solicitor and cabinet is regarded as a client” then Mr. Mendes said he would argue very strongly for maintaining secrecy even though he’d “love to see the document.”
Lawyer David Yazbeck, with the Ottawa firm Raven, Allen, Cameron, Ballantyne & Yazbeck, represents several prominent whistleblowers including RCMP Corporal Robert Read and Bob Stenhouse.
Mr. Yazbeck said the whistleblowing legislation would have to “exclude application of the SIA or modify it so that people are not subject to inappropriate or abusive claims of violations of the SIA.”
Describing “panic” as influencing politics post 9/11, Mr. Yazbeck said finding the right balance between security and public disclosure is critical.
“I think it’s essential to the operation of a democracy,” Mr. Yazbeck said, “That people be allowed—if they have information like that—to speak freely.”
Published in The Hill Times, March 22, 2004
“We’ve been pushing for it for a long time - that we achieve that balance,” Conservative National Defense critic Jay Hill (Prince George-Peace River, BC) said, of competing national security and public disclosure interests. “We’re going to have a lot of expert testimony when the bill is tabled. We’re going to have to have a very wide-open debate. I hope that the government isn’t going to decide as they did with some of the legislation that gave new powers to the government following 9/11 that they all of a sudden bring down the heavy hand of closure and time allocation to limit debate. This is the type of thing as most parties have said that we want to ensure as a nation and as a parliament that we do it right—and we get it right.”
The NDP’s Defense Critic MP Bill Blaikie (Winnipeg-Transcona, Man.) was unavailable for comment and referred The Hill Times to MP Pat Martin (Winnipeg Centre, Man.).
“If we’re going to have really comprehensive broad whistleblowing protection,” Mr. Martin said, “It would have to say that if these measures are in conflict with any other clauses in other legislation, this legislation should have precedence.”
When the RCMP raided journalist Juliet O’Neill’s home and office on January 21st, she was charged under Section 4 of the SIA for allegedly revealing secrets in documents obtained from a source in a story she wrote about the Maher Arar case. Passed after 9/11, the SIA contains a narrowly defined “public interest defense”—Section 15—offering some protection to people charged under Sections 13 and 14 only of the SIA which cover disclosure of “special operational information.” Even then, Section 15 called “public interest defense” has a long list of qualifiers attached to it, including “prior disclosure to authorities necessary,” internal bodies the person must approach before going public.
Section 4 is not covered by the public interest defense.
“It would conflict and it would govern in the areas of national security rather than the whistleblowing statute,” Mr. Ruby of the Toronto firm Ruby and Edwardh told The Hill Times, of the SIA. “It will eat up the obligation to disclose unless it is carefully confined.” He suggested that unless the whistleblowing legislation includes a section stating its precedence, the threat to journalists and others disclosing information the government designates secret will continue under the SIA. Mr. Ruby has called for the SIA’s repeal.
“It’s over broad,” Mr. Ruby said. “It’s provides government with a mechanism for essentially preventing anyone from making public information that the public needs to know available under the grounds of national security.”
“Bear in mind that government thinks everything is national security these days, and you can’t let government make those decisions otherwise nothing will ever be revealed,” Mr. Ruby added.
Mr. Ruby said a body independent from government, empowered to make independent decisions in protecting “true national secrets” and “encourage whistleblowing” would be most effective.
University of Ottawa law professor Errol Mendes said making the SIA’s Section 15—“public interest disclosure”—predominate over all other SIA sections would help “fix” the problems.
Most people contacted by The Hill Times were under the impression that the parliamentary review of the SIA announced by Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness Anne McLellan (Edmonton West - Alberta) on January 28 would be of the entire SIA.
In fact the review is of section 4 only, the section Ms. O’Neill allegedly violated.
“If we’re going to take a long hard look at this now that the immediate aftermath of 9/11 is over - and cooler heads are prevailing hopefully - we should look at the entire act,” Conservative Defense critic Jay Hill said.
“To state unequivocally that no, we’re only going to look at one section—I think that that’s pretty short sighted,” Mr. Hill added.
Labour lawyer Sean McGee of the Ottawa firm Nelligan, O’Brien, Payne described Katherine Gun’s case as “as good an example as any” of powerful competing interests -security, Access to information, whistleblowing, and public interest.
While working as a translator for the British government’s intelligence and security organization, General Communications Head Quarters (GCHQ), in January 2003 Ms. Gun leaked an e-mail from a US National Security Agency official to The Observer newspaper in Britain. The e-mail requested British help in spying on “swing” delegations during the controversial UN Security Council debate about the invasion of Iraq. As well as exposing the spying, “my actions were necessary to prevent an illegal war,” Ms. Gun later told The Guardian. Last June, Ms. Gun was charged under Britain’s Official Secrets Act (OSA).
The SIA and OSA contain similar provisions - both contain gag statutes, for example.
Last month the British government dropped Ms. Gun’s prosecution. Critics allege politics was the reason —Ms. Gun’s defense team requested a copy of the Attorney General Lord Goldsmith’s advice to the government on the invasion’s legality. There is intense British media and public interest in that advice.
“If the law sets up something that says… you have to be a whistleblower in private which is what sometimes some people advocate, there are going to be individuals who say this is not serving the public interest and I have a duty, a citizenship duty to some extent, to disclose this in public—and there will be this kind of fight,” Mr. McGee said. The “clearest and widest possibility of public disclosure” consistent with the other interests would avoid similar cases in the future, he said.
But Mr. Mendes said despite his “sympathy” for Ms. Gun, every Western liberal democracy has a version of the OSA. As an international lawyer, Mr. Mendes added that despite his “acute” interest in Lord Goldsmith’s advice to the British cabinet, terrorist threats make protecting secrets vital to national security.
“There are some very substantial doctrines which for very good reasons could be argued against disclosure such as the solicitor-client privilege,” Mr. Mendes added. “If Goldsmith is regarded as a solicitor and cabinet is regarded as a client” then Mr. Mendes said he would argue very strongly for maintaining secrecy even though he’d “love to see the document.”
Lawyer David Yazbeck, with the Ottawa firm Raven, Allen, Cameron, Ballantyne & Yazbeck, represents several prominent whistleblowers including RCMP Corporal Robert Read and Bob Stenhouse.
Mr. Yazbeck said the whistleblowing legislation would have to “exclude application of the SIA or modify it so that people are not subject to inappropriate or abusive claims of violations of the SIA.”
Describing “panic” as influencing politics post 9/11, Mr. Yazbeck said finding the right balance between security and public disclosure is critical.
“I think it’s essential to the operation of a democracy,” Mr. Yazbeck said, “That people be allowed—if they have information like that—to speak freely.”
Published in The Hill Times, March 22, 2004