The Liberal government will be tabling a bill before this summer to create the long-awaited Parliamentary Oversight Committee to look over Canada’s national security activities. In preparation to draft the bill, Public Safety Minister, Ralph Goodale, and Liberal MP, David McGuinty, who has been named Chair of the committee and responsible for its creation, have been doing research on the structure and functioning of Parliamentary committees in other Commonwealth countries, and meeting with UK government officials and civil society about the UK model, its benefits and issues.

Here is our summary on the functioning of Parliamentary Committees in Australia, the United States, the United Kingdom and Germany, and the issues and pitfalls to avoid and some suggestions to improve them. It is also important to keep in mind that although a Parliamentary Oversight Committee would be a welcomed addition, it is not enough. As recommended by Justice O’Connor who presided the Arar Commission from 2004 to 2006, there is an urgent need to implement a strong and integrated review mechanism separate from Parliament to examine Canada’s national security activities.

Australia

The Parliamentary Joint Committee on Intelligence and Security (PJCIS)

The Parliamentary Committee was first appointed in 1988 to oversee the activities of the Australian Security Intelligence Organisation (ASIO). Following the passage of the Intelligence Services Act of 2001 (IS Act), it was replaced by the Parliamentary Joint Committee on ASIO, the Australian Secret Intelligence Service (ASIS) and the Australian Signals Directorate (ASD) (PJCAAD). Then following the passage of the Intelligence Services Legislation Amendment Bill of 2005, which implemented several recommendations from the 2004 Flood Inquiry into the Australian Intelligence Agencies, the Committee was re-established as the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and now includes the Australian Geospatial-Intelligence Organisation (AGO), the Defence Intelligence Organisation (DIO) and the Office of National Assessments (ONA) in its oversight role, in addition to ASIO, ASIS and ASD.

The Committee is tasked with conducting inquiries and reviews of legislation, potential reforms, and the administration and expenditure of the agencies, seeking regular briefings from ASIO and the Inspector-General of Intelligence and Security (IGIS), conducting site inspections, and presenting an Annual Report of its activities. The Committee can take the initiative of inquiries and reviews; it does not need a reference from a Minister or a House of the Parliament. Additionally, the PJCIS will monitor and review the performance of the Australian Federal Police (AFP)’s counter-terrorism functions. Apart from these tasks, the Committee is not authorized to initiate its own references, but may resolve to request the responsible Minister refer a particular matter to it for review.

The IS Act limits the inquiry powers of the Committee by providing that the functions of the Committee do not include:

• Reviewing intelligence gathering, assessment priorities, sources of information, other operational assistance or operational methods;
• Reviewing particular operations that have been, are being or are proposed to be undertaken by the agencies;
• Reviewing information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information;
• Reviewing an aspect of activities that does not affect an Australian person;
• Reviewing the rules of the IS Act that protect the privacy of Australians;
• Conducting inquiries into individual complaints about the activities of the agencies;
• Reviewing the content of, or conclusions reached in, assessments or reports made by DIO or ONA, or reviewing sources of information on which such assessments or reports are based.

At the dissolution of the Senate and the House of Representatives on May 9th, 2016 the Parliamentary Joint Committee on Intelligence and Security ceased to exist. Source, Source

The Parliamentary Joint Committee on Law Enforcement

Legislation enacted in 2010 established a Parliamentary Joint Committee on Law Enforcement that can review the Australian Federal Police (AFP) and also can be briefed by the Ombudsman on specific complaints. It also reviews terrorist listings, though concerns have been expressed about its difficulties gaining access to all relevant secret intelligence. The committee has engaged in two studies of its proper role in the listing process as well as counter-terrorism legislation in general. The size of this committee was expanded in 2011 legislation that also expanded the ability of the ASIO to share intelligence with law enforcement and other intelligence agencies, which is not the case for other democracies that have increased security powers as well.

Non-parliamentary bodies

The Inspector-General of Intelligence and Security (IGIS)

The Inspector-General of Intelligence and Security (IGIS), created in 1986, is an independent statutory office holder who reviews the activities of the six intelligence agencies referred to as the Australian Intelligence Community (AIC), namely ASIO, ASIS, ASD, AGO, DIO, ONA. The purpose of this review is to ensure that the agencies act legally and with propriety, comply with ministerial guidelines and directives and respect human rights. The IGIS can undertake a formal inquiry into the activities of an Australian intelligence agency in response to a complaint or a reference from a minister. It can also act independently to initiate inquiries and conducts regular inspections and monitoring of agency activities. In conducting an inquiry, the IGIS has significant powers that include requiring the attendance of witnesses, taking sworn evidence, copying and retention of documents and entry into Australian intelligence agencies’ premises. It can also conduct preliminary inquiries into matters in order to decide whether to initiate a full inquiry. Source

According to Canadian law professor Kent Roach, in The 9/11 Effect: Comparative Counter-Terrorism, the Australian approach to review has significant advantages, especially when compared to judicial review since most national security activities will be conducted in secret and not result in acts that will readily be subject to judicial review. However, we must be vigilant as much will depend on the resourcing and energies of the review bodies, and the difficulties that could still emerge, especially with respect to review of joint operations between the state and the Commonwealth. As we have seen above, and unlike in Canada, the IGIS has powers to initiate independent inquiries directly rather than via an internal intermediary and not necessarily retrospectively such as was the case for the now-abolished Canadian Inspector General of CSIS. Moreover, as a result of 2010 legislation, the IGIS now can be tasked by the Prime Minister to inquire into any intelligence or security matter relating to any federal department and agency.

This approach recognizes that under a whole-of-government approach to terrorism, there needs to be an overarching oversight mechanism. Kent Roach – and the ICLMG – are of the opinion this model is much to be preferred to the segmented approach used so far in both Canada and the United States, where various review bodies remain in agency-based silos even while agencies do not work in silos to prevent terrorism.

Justice Dennis O’Connor, who was the head of the Commission of Inquiry into the actions of Canadian officials in relation to the case of Maher Arar, concluded in 2006 that this segmentation was problematic and recommended the creation of overarching and integrated oversight and review mechanisms of national security activities. A decade later, his recommendations still haven’t been implemented.

Independent National Security Legislation Monitor (INSLM)

In 2006, the PJCIS conducted a review of terrorist-related legislation called the “Sheller Committee”. One of the review’s recommendations was the appointment of an Independent Reviewer of terrorism law in Australia, which was accepted by the Government and led to the appointment of the first Independent National Security Legislation Monitor (INSLM) in 2011.

This Monitor has a mandate to evaluate both the effectiveness of antiterrorism efforts and their compliance with human rights, which is, according to Kent Roach, the correct approach since determining the proportionality of the state’s response to terrorism requires attention to both the effectiveness and necessity of counter-terrorism actions and alternative policies.

Kent Roach highlights that the “Sheller Committee” included the IGIS, the privacy commissioner, the human rights commissioner, and the ombudsman, and that although many of the “Sheller Committee”’s recommendations have still not been implemented, and although similar watchdog agencies exist in other democracies, they have generally not acted in concert or provided forward-looking law reform advice that might decrease the number of individual grievances that they will be asked to resolve. Source

United States of America

The House Permanent Select Committee on Intelligence (HPSCI), created in 1977, and the Senate Select Committee on Intelligence (SSCI), created one year before, make up the legislative oversight of the United States intelligence community.

The HPSCI oversees routine matters such as bureaucratic budgets, confirmations, programs and legislation, and oversight of the community’s specific functions: intelligence collection, analysis and delivery, covert action and protective security. The SSCI oversees and makes continuing studies of the intelligence activities and programs of the United States Government, submits to the Senate proposals for legislation and report to the Senate concerning such intelligence activities and programs, and provides vigilant legislative oversight over the US intelligence activities to assure that such activities are in conformity with the US Constitution and laws.

Background

The unanimous 2004 report of the U.S. National Commission on Terrorist Attacks Upon the United States, commonly known as the 9/11 Commission, set the stage for a reconsideration of congressional oversight, concluding that it was “dysfunctional.” The commission proposed two distinct solutions: (1) creation of a joint committee on intelligence, modeled after the defunct Joint Committee on Atomic Energy, with authority to report legislation to each chamber; or (2) enhanced status and power for the existing select committees on intelligence, by making them standing committees and granting each one both authorization and appropriations power.

Although Congress adopted none of these 9/11 Commission proposals, the legislature has pursued other options to its intelligence oversight structure and capabilities. The House and Senate, for instance, have each altered the relationships between the intelligence committee and the appropriations committee. Other changes were incorporated in the 2010 Intelligence Authorization Act. These changes include: clarifying the audit authority of the Government Accountability Office (GAO) over the intelligence community; changing the intelligence community reporting and notification requirements; increasing the coordinative capabilities and reporting of relevant inspectors general (IGs); and adding a new IG covering the entire intelligence community as well as other IGs in four Defense Department entities. These changes were not without controversy and inter-branch conflict.

Despite these changes, several reports released in 2011 and 2012 by outside groups—the Bipartisan Policy Center’s National Security Preparedness Group, Commission on Weapons of Mass Destruction, and Council on Foreign Relations—still concluded that the American oversight of intelligence remained “dysfunctional” and “counterproductive.”

Issues and potential solutions

The authors of Congressional Oversight of Intelligence: Current Structure and Alternatives point out how congressional oversight of intelligence meets obstacles that are not usually present in other subject and policy areas, such as the high degree and pervasiveness of secrecy surrounding intelligence policy, information, activities, operations, resources, and personnel; the perceived limited appeal of overseeing intelligence and making intelligence policy, including authorizing the budget, since these efforts remain largely hidden; and the low or non-existent incentives for Members to serve on these committees.

Other limitations by executive orders can restrict the availability of information among Members of Congress, even though they are not required to hold security clearances to be eligible for access. The impacts and implications of secrecy are extensive and burdensome. The 9/11 Commission stated that: “Secrecy stifles oversight, accountability, and information sharing.”

Prospects to overcome these hurdles include:

1. Heightening the appeal of serving on the intelligence panel;
2. Enhancing the expertise and knowledge of Members (both on and off the panels);
3. Reinforcing the shared responsibilities between an Intelligence Committee, on the one hand, and panels with overlapping memberships, on the other;
4. Expanding the contacts and coordination between the intelligence authorizers and appropriators;
5. Changing the relationship between the two chambers on intelligence matters, through, for instance, a joint committee or increased contacts between the existing committees; and
6. Developing new connections between Congress and the executive that could contribute to more effective oversight.

Other options, such as increasing the use, capacity and authority of Congressional support agencies – Congressional Budget Office, Congressional Research Service, and Government Accountability Office (GAO) – were also suggested by the authors. Source

United Kingdom

Structure, functioning and reforms

The Intelligence and Security Committee (ISC) was first established by the Intelligence Services Act of 1994 as a statutory committee appointed by and reporting to the Prime Minister. It is a joint committee of Parliamentarians comprising nine members from both Houses but is and always has been dominated by members of the House of Commons.

The Members have access to highly classified material in carrying out their duties. The Committee generally meets in secret, although it does conduct some public hearings for the purpose of taking evidence on issues within its remit. It sets its own agenda, subject to the Prime Minister having the ability to restrict operational matters that it can review, and also carries out investigations at the request of the government.

The function of the ISC is to examine or otherwise oversee the expenditure, administration, policy and operations of the UK’s three main intelligence and security agencies (MI5, MI6 and GCHQ), and examines the intelligence-related work of several ministries and offices of the government.

It is not clear how the Committee sees itself. Its last Chairman, Sir Malcolm Rifkind, was reported in a Telegraph newspaper article in January 2015 as having said that “one of the ISC’s most important roles is to try to reassure the public that the spies are not out of control, as Snowden claimed”. This raises a significant question as to the way the Committee understands its remit, as well as its distance from the agencies it is meant to scrutinize.

In response to heavy criticisms of the ISC’s ability to carry out effective and independent oversight of the intelligence agencies and other bodies (made by civil society, Parliamentarians and the ISC itself), the Government introduced reforms to the ISC in the Justice and Security Act of 2013. This act reconstituted the ISC as a parliamentary committee – the ISC is now a statutory committee of Parliament, although not a select committee, appointed by and reporting to Parliament. It is required to make an annual report to Parliament on the discharge of its functions and it can make any other reports as it considers appropriate concerning any aspects of its functions.

Issues

According to Amnesty International UK, Demos, JUSTICE, Liberty, Open Rights Group, Privacy International, and Rights Watch (UK), the ISC still has several limitations.

First, the Prime Minister nominates ISC members, and Parliament is only able to approve or reject these nominations. Members are therefore often too closely aligned with government and too close to those it is charged with scrutinizing, which has the potential to damage public confidence in its independence and the reliability of its reports.

Second, the ISC may only examine such matters if the Prime Minister is satisfied that the matter is not part of any ongoing intelligence or security operation and is of significant national interest. No definition is provided as to what that exactly means and no oversight mechanism exists.

Third, the Secretary of State retains the ability to veto information from being passed to the ISC from Government bodies and agencies.

Fourth, the Prime Minister retains the ability to control onward disclosure from the ISC to Parliament without any appropriate limitations or safeguards.

Fifth, the ISC has limited investigative capacity and resources: an independent investigator was appointed in 1999 but the contract was terminated in 2004 and the position was never replaced, and the ISC funding is subjected to executive discretion.

Finally the ISC has issues of credibility. It has done little to engage with Parliament and there has been a strong argument that the existence of the ISC allowed Government to deny parliamentary access to intelligence information.

In 2013, the ISC held its first ever unclassified open evidence session with the heads of MI5, GCHQ and SIS. However, it did not engender much confidence in the ISC as the questioning was meek, and it was subsequently revealed in the press that as a condition of their appearance, the agency heads were provided with all questions in advance – leading to a scripted session.

And following the Snowden revelations, the Investigatory Powers Tribunal (IPT), which hears legal challenges to the activities of the UK intelligence services, found that the sharing of information collected by the NSA to have been unlawful. However, the ISC had done its own investigation into this revelation before the IPT ruling and had not signalled any illegal intelligence activities to the government. After the IPT ruling, the ISC published another report which was notable for being riddled with redactions and failing to take a critical view of certain practices, such as the UK’s lack of judicial authorisation for warrants.

Suggested solutions

The group of UK human rights NGOs have pointed out that the ISC needs the ability to fully and competently investigate the operational case for the intelligence agencies’ powers, which may include examining threat modeling by agencies, their technical capabilities, and asking basic value for money questions. All of these factors are important for understanding whether surveillance techniques are proportionate. They therefore suggested that it may be appropriate to involve non-Parliamentarians in looking at some of these questions in detail. The ISC should have access to technical advice that is independent of the security agencies in order to properly scrutinize their claims. The NGOs also stated that the ISC should be fully staffed by individuals with appropriate legal and technical expertise, and staffing should ideally be managed by Parliament. Access to truly independent advice and support is crucial to the actual and apparent independence and effectiveness of any oversight body. Source

Non-parliamentary bodies

The UK approach also involves two separate intelligence commissioners, one that focuses on interception of communications and one that examines other matters. According to Law professor Kent Roach, although each commissioner has jurisdiction over the three foreign, domestic, and signal intelligence services in the UK, it is not clear if these commissioners have adequate power to deal with the manner in which intelligence is used in other parts of government or if they have exercised their functions in a particularly vigorous manner. Source

Germany

The group of UK NGOs offered this summary of the German Parliamentary oversight model as a basis for comparison with the UK model.

In 1978, the Federal Intelligence Activity (Parliamentary Scrutiny) Act established the Parliamentary Control Commission (renamed the Parliamentary Control Panel in 1999). In 2009, the Parliamentary Control Panel was enshrined in the Constitution. The Panel oversees the activities of the German intelligence services, specifically the Federal Office for the Protection of the Constitution, the Military Counterintelligence Service and the Federal Intelligence Service.

The members of the Panel are elected by majority vote from among the Members of the Bundestag at the start of each electoral term. Chairmanship of the Panel alternates annually between a representative from the majority and a representative from the opposition.

The federal government is obligated under the Federal Intelligence Activity Act to disclose to the Panel certain information, including about the general activity of the intelligence services. Pursuant to other legislation, the federal government is subject to additional notification requirements such as, for example, information related to the surveillance of postal and telecommunications traffic.

The Panel can require the federal government and intelligence services to turn over files, interview its members and staff of other public authorities and visit the intelligence services. The federal government may refuse to provide information if necessary for purposes of acquiring intelligence, if it would infringe the rights of third parties or relates to an area of responsibility devolved exclusively to the executive. Where the federal government exercises the right to withhold information, it must explain its reason for doing so to the Panel.

The Panel may also, after consulting the federal government, appoint an expert to investigate a particular issue. The Panel reports regularly to the Bundestag and its reports are publicly accessible. Source

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