Bill C-51, the Conservative government’s anti-terrorism legislation, has sparked renewed debate about Parliament’s role in overseeing Canada’s intelligence services. Opposition parties and former prime ministers have questioned why the bill does not include measures to enhance ”œparliamentary oversight of national security agencies.” Unlike other Westminster democracies, critics charge, the Canadian Parliament has no committee dedicated to scrutinizing them. In addition, the Security and Intelligence Review Committee has been deemed deficient, since it merely reviews the activities of the Canadian Security Intelligence Service, rather than providing ”œdirect oversight,” defined as involvement in ”œpolitical decision-making or the operational decision-making” of CSIS.
I agree that Parliament should have a committee that reviews Canada’s national security agencies. Members of the committee should have security clearances and be given a mandate to examine and report on the confidential and secret activities of the armed forces, Royal Canadian Mounted Police, and our intelligence services. As I noted in a 2009 study for the Institute for Research on Public Policy, increasing the quality and amount of information Parliament gets from the executive about national security affairs is a worthwhile and urgently needed reform.
However, the current debate over parliamentary oversight is losing sight of what Parliament can actually accomplish in national security affairs and of the trade-offs that we will face by creating a security-cleared committee.
Parliamentary committees are not suited to perform direct oversight of national security affairs in Westminster states. As Nicholas A. Macdonald has highlighted in the Canadian Parliamentary Review, committees in Westminster parliaments are limited to reviewing and reporting on the policies, activities, administration, and expenditures of the executive’s national security efforts. This is true for the United Kingdom, Australia, and New Zealand. None of their parliamentary committee do oversight, in terms of being involved in political and operational decisions. Interestingly, this is also what the Liberal Party of Canada has in mind for its proposed Intelligence and Security Committee. Rather than being involved in political or operational decision-making, this committee would review and report on the policies, administration, and activities of government departments involved in national security.
The reason these committees are merely review bodies is simple: in the Westminster system, ministers are legally and constitutionally responsible for policy and directing the operational activities of their departments, agencies and security forces. Parliamentary committees cannot actually do direct oversight, since they lack the constitutional responsibility to perform this function. Instead, parliamentary committees are there to help hold ministers to account for their decisions and directives. But this construct can only really work if ministers remain solely responsible for national security. Once a committee is involved in national decision-making, it becomes a party to the very affairs it is meant to be scrutinizing. While this works in the American congressional system, where power is controlled by being divided, it is out of place in the Westminster system where power is held to account by focusing responsibility on ministers. What we should be talking about, then, is parliamentary review of Canadian national security affairs.
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A second issue that should be addressed are the potentially negative effects of establishing an parliamentary intelligence and security committee. Under our existing arrangement, opposition parties openly critique and question the government about matters of national security. For example, issues such as the collection of metadata by the Communications Security Establishment Canada are publicly scrutinized by parliamentary committees and debated in question period. Once an intelligence and security committee like the one proposed by the LPC is established, however, it will be charged with reviewing these matters. Since the committee will be examining confidenital and secret information, it will do so behind closed doors. Members of the committee, including those who part of the opposition, will be unable to share any classified or secret information they have been provided with other parliamentarians, and they will not be able to speak about what they have learned in parliamentary debates or deliberations. The committee will be limited to issuing an annual report that will not include confidential or secret information. As well, the Prime Minister will be able to remove parts of the report that he or she would deem ”œinjurious to international affairs, defence or security.” In light of these provision, there is a risk that the committee will become a place where controversial issues go to disappear from public and parliamentary debates.
Indeed, we have a recent example of this type of outcome. Between 2007 and 2009, the Canadian military’s handling of Afghan detainees was a highly sensitive and controversial issue, leading to heated debates in Parliament, exposés in the media, and calls for a public inquiry. In order to find a compromise between the House of Commons’ right to see documents related to the detainees and the government’s duty to protect secret information, a committee of parliamentarians was established in 2010 to examine the documents. From then on, interest in the detainee question fell away. Even after the committee facilitated the release of four thousand documents, and a Liberal MP who served on the committee intimated that the government needed to answer for what happened, the issue was passé, politically. The committee had arguably taken the detainee question out of sight, out of mind. It is not unlikely that the same might happen when controversial files are sent to an intelligence and security committee that meets in secret and reports only once a year.
As we debate the need for a intelligence and security committee, therefore, it is worth acknowledging that it might lead to a select group of parliamentarians knowing more about Canada’s national security affairs, but the public knowing, and perhaps caring, less.