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Opening the Black Box of ‘National Security’

Fasken
Reading Time 6 minute read

Capital Perspectives - Ottawa Newsletter

Andrew House has lived and breathed the legal side of public affairs for almost 18 years. From working as a criminal lawyer with Nova Scotia Legal Aid, to helping shape legislation as Chief of Staff for Canada's Minister of Public Safety and Emergency Preparedness, Andrew has seen from all sides how the law impacts individuals and organizations.

He has held such diverse job titles as director of communications, director of policy, and director of operations for various federal ministers. He has been a principal with public policy consultancy Earnscliffe Strategy Group, and of course been engaged in private practice.        

No matter how far his career path may have taken him from hanging his shingle out as a practicing lawyer, Andrew has always felt "a draw back to the fundamentals of the profession."

When the opportunity arose earlier this year to join the Fasken Ottawa team, he decided to take it.

Q: What do you bring to the table for Fasken clients?

Andrew: In a firm with such a large number of legal professionals, the thing I bring that is somewhat unique is a perspective on what is not contained in the black letter law. I'm referring to the near endless number of factors, forces and pressures that influence government actors as they make decisions.

These are things you may never learn from studying the law or even practicing it for a number of years. Government decision-makers wouldn't cite these as best practices or even be proud of them – they're just facts of life inside the federal or the provincial systems, as the case may be.

Q: What do you consider to be the big issues facing corporate Canada as it relates to Fasken's Government Relations group?

Andrew: I would focus on the lack of predictability that corporate clients often face when dealing with government. I come back to the distinction between what is written on a website, or found in a statute and what really happens as government actors make their decisions.

It's our job to ensure the client has the best opportunity to understand how decisions will actually be made so they can most effectively intervene or become part of that process.

Q: I understand you have some concerns about how the federal government exercises its national security review powers as mandated under the Investment Canada Act.

Andrew: The national security review process provides the best example of an area of law that is so opaque that clients approaching these issues in good faith and seeking to do the right thing per the statute can find themselves tripped up by things that are unknown to them or are in fact almost unknowable by anyone outside of government. The process is regularly described as being a "black box." Very few get to see inside.

That's unfortunate, considering that laws are created so individual and corporate citizens can conduct themselves in accordance with the law. When something is not evident in the law, there is a lack of transparency which creates uncertainty. And uncertainty, when coupled with investment decisions, breeds a reluctance to invest. This creates problems for Canadian business that want to market themselves for sale, and for the Government of Canada because it ends up discouraging the foreign direct investment that is necessary to grow the economy.

National security, which is not a well-defined concept in Canadian law, is a hard thing to pin down. It means different things to different people, You can find yourself in a national security scenario because of surprising factors – and that creates uncertainty.

You shouldn't be surprised if the government takes interest in your company if it makes technology with military applications, but we also see national security concerns raised in what are not usually considered sensitive areas – for example, the construction industry.

Q: Can you further explain your concerns about who such reviews truly serve and protect?

Andrew: Sometimes, national security reviews are used to make political points about the direction of the country rather than evaluate the merits of a particular proposed transaction. That is really problematic for the participants in that transaction and proves the old adage that just about everything is political. This potential for misuse lies with the fact that "national security" remains so poorly understood and defined.

Q: What specific reforms you would like to see of the Investment Canada Act and the mechanism for national security reviews?

Andrew: I would like to see government speak a little more clearly on areas of concern that, while they are relatively well known in the security community and those who observe it, haven't been well articulated to the business community. This would give companies more clarity on how to conduct themselves in the marketplace or to avoid transactions that would draw that heavier degree of scrutiny, or even the rejection of a deal.

There could be a better up-front consultative mechanism that engages more people. So if you are considering a sale of a Canadian business, there would be a more formalized and low-risk way to talk about it with public officials. And the government could ensure it telegraphed more clearly its concerns to the Canadian business and the foreign investor – at early stages. Expectations would then be better managed and disappointments would be fewer.

Admittedly, it's a two-way street – the business community could pay closer attention when the government says it has concerns with a particular technology or application. But businesses are busy succeeding in the business world. They are not, on a daily basis, paying attention to what the Government of Canada and its officials quietly lay awake at night worrying about.

The government has an opportunity and, arguably, an obligation, to better educate the business community, while the business community has an obligation to their stakeholders to be better educated when they come to the table, to bring the right players and to ensure that discussions are meaningful. What bothers me most is when discussions don't occur at all. That strikes me as unfair to all concerned, and not supportive of a positive investment climate.

Q: Who is Andrew House when he isn't dealing with government relations matters?

Andrew: Primarily, a father. My wife and I have an 11-month-old at home. My life is completely different now than it was during my time in government when I was on call at all hours. Now I'm on call in different ways and it's been a whole new and rewarding experience. That's how I invest most of my non-work hours, out of necessity and a desire to be a good dad.

Q: What do you do to unwind and recharge the batteries?

Andrew: Anything I can do to get away from screens, large or small. In the winter, it's cross-country skiing in the Gatineaus. In summer, it's kayaking Ottawa's amazing waterways. As a homeowner, I also love the minutiae of working around the house with my hands – it's a great way to get my head out of the office and out of the political issues of the day. Occasionally, I even fix something.