Memorandum of understanding to establish ad hoc committee

From: Leader of the Government in the House of Commons

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Memorandum of Understanding
between
The Honourable Mark Holland, Leader of the Government in the House of Commons
and
The Honourable Andrew Scheer, House Leader of the Official Opposition
and
Mr. Alain Therrien, House Leader of the Bloc Québécois
and
Mr. Peter Julian, House Leader of the New Democratic Party

  1. Recognizing that Opposition Parties in the House of Commons have expressed their desire for the production of Government documents from the Public Health Agency of Canada related to the transfer of Ebola and Henipah viruses to the Wuhan Institute of Virology in March 2019, and the subsequent revocation of security clearances for, and termination of the employment of, Dr. Xiangguo Qiu and Dr. Keding Cheng which the House ordered produced in the previous Parliament on June 2, 2021, which contain information the disclosure of which would be injurious to national security, national defence or international relations, or other public or private interests if publicly released.
  2. Notwithstanding the expiration of this order at dissolution, recognizing that the government has made a good faith proposal to share these documents in a manner that recognizes the role of the House of Commons to hold the government to account and respects the government’s  obligation to keep certain information confidential to protect Canadians.

In order to move forward on this issue, the parties agree as follows:

  1. An ad hoc committee of parliamentarians will be established external to the House of Commons and consisting of one Member of Parliament designated by the leaders of the governing party and each opposition signatory party with recognized status in the House of Commons. Each party may designate one alternate Member of Parliament who may act as a replacement of a Member of the ad hoc committee when that Member is absent; no more than one Member from each party can participate in the ad hoc committee at a given time.
  2. The ad hoc committee will have access to all documents listed in the expired House Order of 2 June 2021, pursuant to the following confidentiality measures:
    1. Access to the documents is conditional on each Member signing a confidentiality undertaking and taking an oath of confidentiality, as prescribed hereinafter;
    2. Each Member, before receiving access to documents, will obtain a security clearance at the Secret level;
    3. Access to the documents shall take place at a secure location under the control of the Government of Canada, subject to the following security conditions on access to, and handling of, classified materials:
      • Members of the ad hoc committee will be required to provide identification;
      • No staff of the Members are to be included;
      • No electronic, wireless, photographic, cellular, recording, or storage devices are permitted;
      • No materials are to be removed from the designated location;
      • No copies of materials are permitted to be made;
      • No notes are permitted to be removed from the location at any time; and
      • Any notes made by Members of the ad hoc committee may only be accessed by the author of those notes or his or her alternate and any such notes shall be destroyed six months after the completion of the review documents;
    4. The review of documents is to take place with all procedural protections normally accorded to in camera proceedings, including a ban on the publication of the proceedings and on the disclosure, directly or indirectly, of any information which is protected from disclosure; and
    5. Any Member violating the confidentiality will be immediately expelled from the ad hoc committee by the Panel of Arbiters established in paragraph 6, with no other Member of Parliament permitted to be substituted in the place of that expelled Member.
  3. In order to understand what information has been protected from disclosure for the purpose of national security, national defence and international relations and shall not be disclosed by Members, the Members will be provided access to documents in both redacted and non- redacted form.
  4. Any support required by the ad hoc committee will be provided by an ongoing group of public servants with the appropriate security clearances and subject-matter expertise. The group of public servants, from the relevant departments/agencies, will provide briefings and contextual information initially, and then as necessary, to the ad hoc committee to assist Members in carrying out their work and to understand the security implications and reasons for protecting certain information from disclosure.
  5. With respect to every document that has been redacted, the ad hoc committee will determine whether the information therein is relevant to matters of importance to the Members of Parliament, and whether the use of such information is necessary for the purpose of holding the government to account. The decisions of the ad hoc committee related to relevance shall be final and unreviewable.
  6. Where the ad hoc committee determines that information is both relevant and necessary, or upon the request of any Member of the ad hoc committee, it will refer disputed information to a Panel of Arbiters, who will determine how that relevant and necessary information will be made available to Members of Parliament and the public without compromising national security, national defence or international relations, or any other public or private interest – either by redaction or the writing of summaries or such techniques as the Panel may find appropriate, bearing in mind the basic objective of maximizing disclosure and transparency. The Panel of Arbiters should regularly consult with the Members of the ad hoc committee to better understand what information the Members believe to be relevant and the reason(s) why. The decisions of the Panel of Arbiters with respect to disclosure shall be final and unreviewable.
  7. In carrying out its activities, the ad hoc committee will ensure that it does not interfere with, or compromise, any investigation of similar matters being conducted by law enforcement or other competent authorities.
  8. The Panel of Arbiters will be composed of three eminent jurists. Composition of the Panel must be agreed upon by both Government and Opposition signatories.
  9. The ad hoc committee may produce a report at the end of the review of documents, outlining the methodology, practices and procedures used and containing any recommendations for improvements to the process of review. Should the ad hoc committee deem that circumstances warrant, it may also produce an interim report at any time before the production of a final report. Before any report is finalized, it shall be submitted to the Panel of Arbiters for decision regarding disclosure to ensure that the information in the report does not compromise national security, national defence or international relations, taking into considerations the factors outlined in paragraph 6.
  10. This Memorandum of Understanding survives a dissolution of Parliament provided that the leaders of the governing party and each opposition party with recognized status in the House of Commons following a general election sign a Memorandum in the same terms in the next Parliament.
  11. Documents, as described in the preamble of this agreement, will be tabled in the House of Commons once they have been vetted, and protected where necessary, as per the above- described process.
  12. Before receiving access to the aforementioned documents, each member (including alternates) shall take the following oath:
    I, …, swear ( or solemnly affirm) that I will be faithful and bear true loyalty to Canada and its people, whose democratic beliefs I share, whose rights and freedoms I respect and whose laws I will uphold and obey. I further swear ( or solemnly affirm) that I will not communicate or use without due authority any information obtained in confidence during the review of documentation.
  13. Before receiving access to the aforementioned documents, each Member (including alternates) shall sign the following binding undertaking of confidentiality:

    The House of Commons adopted a now expired Order, on 2 June 2021, for the production of Government documents from the Public Health Agency of Canada related to the transfer of Ebola and Henipah viruses to the Wuhan Institute of Virology in March 2019, and the subsequent revocation of security clearances for, and termination of the employment of, Dr. Xiangguo Qiu and Dr. Keding Cheng, which contain information the disclosure of which would be injurious to national security, national defence or international relations if publicly released.

    While Members of the House of Commons need to obtain information that is necessary to hold the Government to account, such disclosure must be balanced by the Government’s obligations to protect information, including information that would be injurious to national security, national defence or international relations if publicly released.

    In recognition of the above concerns, I,_____________________ therefore undertake as follows:

    1. I will take the prescribed oath before obtaining access to any confidential information, which is defined as information that the Government of Canada has identified as being protected from disclosure and that the Panel of Arbiters has not determined can be disclosed without compromising national security, national defence or international relations.
    2. I will obtain a security clearance at the Secret level before obtaining access to the information described in paragraph 1.
    3. I will treat all information described in paragraph 1 as strictly classified.
    4. I will not use or communicate, directly or indirectly, any of the information described in paragraph 1, including in parliamentary proceedings, to any other individuals, including to other Members of Parliament or to my staff.
    5. I will take best efforts to ensure that there is no inadvertent disclosure of the information described in paragraph 1.
    6. I will not remove any of the documents that include information described in paragraph 1 from a secure Government of Canada facility.
    7. I will not make any copies of the information described in paragraph 1; any notes will not be removed from the secure Government of Canada facility and will be destroyed six months following the completion of the review of documents.
    8. I understand that this undertaking is a continuing obligation, which survives the dissolution of this Parliament.

    Date: ___________________            Signature: __________________________________

    Memorandum of Understanding signed at Ottawa, Ontario, October ____, 2022

    For the Government of Canada

    _________________________ 
    Mark Holland

    For the Opposition in the House of Commons

    _________________________ 
    Andrew Scheer

    _________________________ 
    Alain Therrien

    _________________________ 
    Peter Julian

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