About this Project

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Tuesday
May132014

Parliamentary Review of Intelligence Service Activity: Assessing the Different Models

As discussed in NSL, ch. 3, the Canadian Parliament’s record on national security matters compares unfavourably with that of other Westminster democracies. (For a more recent review of the Canadian Parliament and national security matters, see Nicholas MacDonald's interesting article). The United Kingdom, Australia and New Zealand have national security parliamentary committees, although they vary in their rigour.  Moreover, many (if not most) European states also use a parliamentary review committee model.

In 2004, the Canadian government tabled a discussion paper noting this comparative experience and identifying means of enhancing the parliamentary role in national security matters. That more prominent role was endorsed in the subsequent national security policy, which proposed the creation of a “National Security Committee of Parliamentarians.” An interim committee of parliamentarians on national security also provided their views in October 2004, recommending a statutorily created committee of Parliament.

Subsequently, in 2005, the then Martin government tabled Bill C-81 in the House of Commons to establish such a “National Security Committee of Parliamentarians.” The bill went no further than first reading in the Commons before it died on the order paper at the time of the 2006 election.

Bill C-81 has since been resuscitated 5 times in subsequent Parliaments, as a Liberal private members bill.  The most recent version -- sponsored by Wayne Easter -- is Bill C-551

Meanwhile, Senator Hugh Segal recently introduced his own private members law project -- Bill S-220 -- in the Senate.

Bills C-551 and S-220 are quite similar, although they do vary in a few, sometimes significant ways.  Both would create a statutory committee of parliamentarians -- that is, an administrative body staffed by Parliamentarians, but which is not per se a parliamentary committee.  This is a distinction with a difference.  Because the committee of parliamentarians is an administrative body and not a parliamentary committee, it would not possess parliamentary privileges (including the freedom of speech and the power to compel attendance of witnesses and papers).

In both cases, members would be appointed by the executive, without any formal full parliamentary vetting.

Both would have relatively similar and reasonably broad mandates -- to "review the legislative, regulatory, policy and administrative framework for intelligence and national security in Canada, and activities of federal departments and agencies in relation to intelligence and national security."  (Bill S-220 includes no power by a relevant minister to refer a matter to the committee.)

Both require the committee to report to the Prime Minister, who is then obliged to table the report in Parliament, with redactions of information the Prime Minister regards as "injurious to national security or national defence" and, in the case of Bill C-551, "international relations".  (Bill S-220 would require that notice be given of the existence of redactions when the report is tabled in Parliament.)

Both impose secrecy obligations on members, including rendering them persons permanently bound by secrecy under the Security of Information Act.

Both include language on limiting committee access to sensitive information.  Here, however, there is an important (indeed, fundamental) difference: Bill S-220 denies committee members Cabinet confidences, but nothing else.  Moreover, S-220 gives the committee power to compel the attendance of persons and papers. Bill C-551, in comparison, gives ministers the choice to supply information, and includes a long list of considerations ministers can take into account in declining to supply the committee with information. 

In terms of omissions, neither bill authorizes the committee to report directly to Parliament, something the Australian and New Zealand committees do.  Nor is Parliament affirmatively given the power to refer matters to the committee, something that the Australian and New Zealand parliaments may do.

Put another way, the current bills seem to draw more inspiration from the UK model, as compared to its southern hemisphere counterparts. Critics have some times questioned the UK committee model. 

It is worth, therefore, considering other systems.  For instance, the New Zealand committee (Intelligence and Security Committee) is dramatically different from what is proposed in the Canadian bills.  For one thing, the committee proceedings are parliamentary proceedings and attract parliamentary privileges. (That said, there are standards governing information disclosure to the committee.  Note though that these are much more constrained and carefully codified than the equivalents in Bill C-551.)

For another thing, the committee's membership must include a member of the House of Representatives nominated by the leader of the opposition (with agreement of the Prime Minister and after consultation with the opposition parties).  All of the nominated committee members are endorsed by Parliament, which appears able to veto nominations. 

The committee also reports to Parliament directly (and publishes its reports on the internet), subject to rules on disclosure of truly sensitive information.  The committee itself applies these confidentiality rules -- there appears to be no executive government sanitation process.

Aspects of the Australian model (Parliamentary Joint Committee on Intelligence and Security) are also worth pondering.  For one thing, its governing legislation encourages multi-party representation: members are appointed by resolution of each House of the Australian Parliament, on nomination of the Prime Minister (or government leader in the senate).  Before making these nominations, the PM and the government leader must consult with the leader of the official parties in the respective hours.  And in nominating members, the Prime Minister and government leader "must have regard to the desirability of ensuring that the composition of the Committee reflects the representation of recognised political parties in the Parliament."

For another, as noted, matters may be referred to the committee by "a resolution of either House of the Parliament".  This supplements the committee's own ability to review as it sees fit.  Also as noted, the committee reports annually to Parliament, and not through the intermediary of the Prime Minister.  Moreover, the committee reports its comments and recommendations in its reviews to each house of Parliament, as well as the responsible Minister.

This is not to suggest that the Australian model is flawless. The Australian committee has no statutory basis for extracting information from the intelligence services, and there are important qualifications and limitations on it functions (eg, functions do not include reviewing intelligence gathering and assessment priorities of the services or reach activities that do not affect an "Australian person").  It is not, therefore, a model to be emulated in its entirety.

Other models are legion, as described in a detailed 2011 EU report on the subject.  Many are more impressive than what is proposed in the two Canadian bills.

To conclude, on balance I think a Canadian committee of parliamentarians focused on national security matters would be a good thing: the more eyes on this issue, and the more institutional competence in Parliament, the better.  Bill S-220 is better than Bill C-551, especially in terms of the ability actually to obtain information from the government.  That said, both bills are less ambitious than I would like -- indeed, they replicate some of the features of the UK model that critics across the pond dislike.  (Indeed, bill C-551's sweeping language allowing the government to refuse to provide information to the committee is more aggressive than the UK equivalent and is a loophole that swallows the bill).  "Ambition" would mean looking to the southern hemisphere, not to the United Kingdom.