A review by iPolitics of more than 21,000 orders-in-council published on the Privy Council’s website since 2004 found that 25 OICs adopted by the Harper government are missing. Only three OICs adopted by the previous Liberal government between 2004 and 2005 aren’t in the database.
Eight orders-in-council issued since last September are missing.
Privy Council officials confirm that the missing OICs are not published, saying they deal with areas such as national security, defence or commercially sensitive information.
The decisions are so secret that they are kept in a safe, separate from other orders-in-council — and cabinet ministers are only briefed on them in rooms without wireless devices.
Beyond the number of OICs missing from the database, Parliament and the public have been given no indication these orders exist. The Harper cabinet hasn’t indicated the nature of these decisions or the reasons for keeping them secret.
David Elder, a longtime public servant, said 25 secret orders-in-council is a cause for concern — but it’s difficult to know what to be worried about, since the government has revealed so little about the nature of the secret OICs.
“I’m not one that likes to think of conspiracy theories but this is frightening,” said Elder, who oversaw the Privy Council’s Machinery of Government section from 1996 to 2003/04 and who now works with Queen’s University’s School of Policy Studies.
Elder said he only knows of one occasion when cabinet decided to adopt an order-in-council while also ordering that it not be published. That was the decision by Joe Clark’s Progressive Conservative government in 1980 to issue Canadian passports to a group of American diplomats it planned to help smuggle out of Iran.
“I cannot recall, in all of the years that I was in machinery, in all of the years that I had contact with the orders-in-council people or with the legislation people, that there were orders that were kept secret.”
Assistant clerk of the Privy Council Jurica Capkun, who oversees the handling of orders-in-council, said “less than a dozen” OICs each year are kept secret.
“It is really rare that we do not post OICs on our website,” said Capkun. “There are only a handful per year.”
But what may have been rare under previous governments appears to have become much more common under the Harper government.
In some years — like 2008, 2009 and 2012 — no orders-in-council were withheld from publication. The number of secret OICs jumped to seven in 2010, six in 2014 and four in 2013.
Since forming a majority government in 2011, 14 orders-in-council have been held back from publication.
Orders-in-council, also known as governor-in-council decisions, are cabinet decisions that can be made without having to go to Parliament. They can cover anything from minor appointments, regulatory changes and housekeeping items to major decisions such as authorizing the signing of a treaty, weapons sales and questions of national defence or national security.
By convention, four ministers have to sign the documents for an order-in-council before it is brought to the governor general for a signature and put into effect, said Karl Salgo, a former Privy Council official who now works with the Institute on Governance.
While cabinet typically would be made aware of major decisions, there is no legal requirement for the entire cabinet to be consulted on an order-in-council or to vote on it. Privy Council officials sometimes do a ‘walk around’ to cabinet ministers to get four signatures.
Under the Statutory Instruments Act, a government can choose not to publish an order-in-council if its “publication could reasonably be expected to be injurious” to federal-provincial affairs, the conduct of international affairs, “the defence of Canada or any state allied or associated with Canada” or the “detection, prevention or suppression of subversive or hostile activities.”
Capkun said OICs containing sensitive commercial information can also be kept secret.
In at least one case, a government order-in-council is being kept secret on the grounds of national security even though one of the parties involved has made the existence of the order public. In July 2015, O-Net communications issued a press release revealing that the Canadian government had adopted an OIC to block its planned purchase of the Montreal-area company ITF Technologies, formerly known as Avensys Inc, and force it to divest its investment.
While many details of an OIC can remain obscure, certain aspects — the fact that the OIC exists, some indication of the subject, the name of the minister who proposed the action and the date it was adopted — are supposed to be published within days, unless it is specified that it must be kept it secret.
Mel Cappe, former clerk of the Privy Council, defends the use of secrecy for effective decision-making but said preventing the publication of any information about an order-in-council is very much the exception to the rule. He said the publication of orders-in-council is one of the checks Canadians have on the power of cabinet.
“These issues about publication are fundamental to the principle of open government, of democracy.”
Donald Savoie, a professor at the Université de Moncton and an expert on Canada’s federal government, said orders-in-council are supposed to be published unless there is a very good reason to keep them secret. In the absence of more information about the orders-in-council that have been adopted, he said, it’s hard to tell whether the secrecy is justified.
“A cabinet decision, you can go to war,” said Savoie. “Does it matter? Yes, it matters. Should they be made public? In my view absolutely, unless (the need for secrecy) can be clearly demonstrated.”
Conservative party spokesman Stephen Lecce directed all questions about the secret OICs to the Privy Council Office and the Prime Minister’s Office.
A spokeswoman for the PMO referred questions to Raymond Rivet, spokesperson for the Privy Council, who defended the government’s handling of the secret OIC’s.
“Public servants in PCO are responsible for administering the SIA and deciding if approved OICs should be made public,” he said, adding that the OIC’s being kept secret don’t fall under the Statutory Instruments Act.
Original Article
Source: ipolitics.ca/
Author: Elizabeth Thompson
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