National Security and Intelligence Committee of Parliamentarians

The National Security and Intelligence Committee of Parliamentarians (NSICOP) is a proposed Parliament of Canada committee appointed to oversee Canada's national security and intelligence activities. The multi-partisan committee – which would include representatives from the House of Commons and the Senate – would have a broad government-wide mandate and special access to highly classified information.^[1] The new body would also perform strategic and systemic reviews of the legislative, regulatory, policy, expenditure and administrative frameworks under which national security activities are conducted.^[2] Bill C-22, the National Security and Intelligence Committee of Parliamentarians Act was tabled by the Government on June 16, 2016.^[3]

Status

Bill C-22, the National Security and Intelligence Committee of Parliamentarians Act was tabled by the Government on June 16, 2016.^[3] Bill C-22 received second reading on October 4, 2016 and has been referred to a committee in the House of Commons.^[3]

Context

Canada is the only member of “Five Eyes” without a permanent mechanism for parliamentarians to review national security activities.^[4] Parliamentary scrutiny of intelligence functions has been raised as an issue with every evolution of the intelligence community since the MacDonald Commission in 1979 "Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police".^[5] Since that time, the landscape has shifted considerably both domestically and internationally.^[6] Since the events of September 11, 2001, there has been a substantial expansion in the breadth and intensity of Canada’s counter-terrorism efforts.^[7] The Special Senate Committee on Anti-terrorism concluded, “Canada now lags significantly behind its allies on the issue of parliamentary oversight as the only country that lacks a parliamentary committee with substantial powers of review over matters of national security.”

In 2004, the Interim Committee of Parliamentarians on National Security was established to recommend a national security oversight mechanism. The committee’s report, which was unanimously supported by the all-party membership, outlined the structure for a committee of parliamentarians. The committee found that "closer parliamentary scrutiny will better assure Canadians that a proper balance is being maintained between respect for their rights and freedoms, and the protection of national security."^[7] The committee recommended that "to allow more effective parliamentary scrutiny of the intelligence community, Parliament will require that some of its number have complete access to such classified information as they consider appropriate."^[7] The committee report recognized that "confidence between the intelligence community and the committee will be essential to the success of parliamentary scrutiny of intelligence functions"^[7] The committee also insisted that, "committee leadership positions should be elected by a secret ballot of its members to enhance the reality, and perception, of committee independence."^[7]

Bill C-22

Mandate

NSICOP would have a broad government-wide mandate to scrutinize any national security matter. The NSICOP would be empowered to perform reviews of national security and intelligence activities including ongoing operations, and strategic and systemic reviews of the legislative, regulatory, policy, expenditure and administrative frameworks under which these activities are conducted. It would also conduct reviews of matters referred by a minister.^[4] The Committee would provide oversight to at least 17 federal agencies involved in security issues, such as: Canadian Security Intelligence Service (CSIS), Communications Security Establishment (CSE), Royal Canadian Mounted Police (RCMP), Global Affairs Canada (GAC), Canada Border Services Agency (CBSA), Finance Canada, Justice Canada, Canadian Air Transport Security Authority (CATSA), and Financial Transactions and Reports Analysis Centre of Canada (FINTRAC).^[8]

Composition

Under Bill C-22, NSICOP would be a statutory committee of parliamentarians appointed by and administratively housed within the executive branch. This proposed structure is designed to give the committee a high-degree of independence and access to classified government information, while providing for necessary controls on the use and disclosure of this information.^[4]

The committee would consist of nine members – two from the Senate and seven from the House of Commons (with a maximum of four members from the House of Commons from the governing party) – that would be appointed by the Governor in Council on the recommendation of the prime minister.^[4]

Committee members would be required to obtain a security clearance and swear an oath of secrecy before assuming their position on the committee, and would need to maintain the confidentiality of information they receive for the rest of their lives.^[4] Any breach will open the door to criminal prosecution and Members would not be able to claim parliamentary immunity if they disclosed classified information.^[4]

In addition to establishing the NSICOP, Bill C-22 also establishes a new dedicated secretariat with an executive director, with the rank of a departmental deputy minister, to ensure that the committee will have the necessary support and resources to conduct its reviews.^[4]

Criticism

Critics have argued that C-22 contains serious flaws, such as too much governmental control over the committee’s membership (particularly its chair), too little access to secret information, and vetting of reports.^[2]

Chair appointed by the prime minister

Bill C-22 proposes that the chair be appointed directly by the prime minister.^[9] Previous National Security Committee recommendations, such as the 2004 Interim Committee of Parliamentarians on National Security insisted that, "committee leadership positions should be elected by a secret ballot of its members to enhance the reality, and perception, of committee independence."^[7] Moreover, the Liberal Party's own 2013 Bill C-551 An Act to establish the National Security Committee of Parliamentarians did not allow for the Prime Minister to appoint the Committee Chair.^[10] In 2013, after public criticism of the UK's Intelligence and Security Committee of Parliament, the British government significantly overhauled its committee, strengthening its powers and its independence.^[2] The committee emerged with an independently elected chair, operational oversight powers and a shift in appointment power from the prime minister to Parliament.^[2] The Conservatives say they won’t vote for Bill C-22 unless the government lets the committee pick its own chair.^[11]

Access to information

The 2004 of the Interim Committee of Parliamentarians on National Security recommended granting complete access to information. Exceptions allowing ministers to limit access to information under Bill C-22, however, have been called "disturbingly wide".^[12] Under Bill C-22, the government will be able to constrain certain investigations as ministers will have the right to refuse to provide information that “would be injurious to national security.” Clause 8(b) of Bill C-22 would allow any Cabinet minister to bury an investigation into his or her own department by claiming that the committee›s confidential inquiry would be damaging to Canada’s national security.^[2] Opposition parties have argued that Clause 8(b) allows the Government abuse to cover up sloppy management, or a scandal within a department.^[2] While ministers would have to offer a rationale for the decision, but the committee would not have the ability to appeal the matter.^[13] The committee would be able to monitor the work of the Canadian Security Intelligence Service, but would be prevented from looking at continuing RCMP criminal investigations or delve into “ongoing defence intelligence activities supporting military operations.”^[13] Mr. Goodale has also said the committee will not receive public complaints about national-security operations.^[13]

Vetting of reports

While composed of parliamentarians, the new committee would report to the prime minister, unlike traditional parliamentary committees.^[13] The new committee’s annual and special reports would be vetted by the government before they are released, which stands to constrain the body’s ability to raise red flags with the public.^[13]

See also

• Royal Commission of Inquiry into Certain Activities of the RCMP
• 2011 EU study of comparative parliamentary oversight bodies
• UK Intelligence and Security Committee (website)
• Australian Parliamentary Joint Committee on Intelligence and Security (website)
• New Zealand Intelligence and Security Committee (legislation)
• 2004 Martin government discussion paper on a Canadian national security committee of parliamentarians
• 2004 report of the interim committee of parliament
• Martin government bill (C-81) (died on order paper)
• Hugh Segal private member's bill (S-220) (died on order paper)
• Joyce Murray private member's bill (C-660) (defeated on second reading)
• Trudeau government bill C-22

References