Report of the Interim Committee of Parliamentarians on National Security

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Report of the Interim Committee of Parliamentarians on National Security

This report is structured so as to illustrate the outcomes we would seek from legislation establishing a Parliamentary Intelligence Committee. It also provides a short rationale where appropriate and contains five appendices with additional background and contextual information.

Preamble

The legislation establishing the Parliamentary Intelligence Committee should have as its goal to assure parliamentarians and, by extension, all Canadians that the intelligence community is:

  1. effectively serving Canada and Canadian interests; while
  2. respecting the Canadian Charter of Rights and Freedoms; and, is
  3. fiscally responsible, properly organized and managed.

Mandate

The committee will have the authority to scrutinize the intelligence community in pursuance of the above goals. The intelligence community includes all present and future departments, agencies and review bodies, civilian and military, involved in the collection, analysis, and dissemination of intelligence, for the purpose of Canada's national security.

Given the highly inter-related system of departments and agencies within the intelligence community, effective scrutiny requires a broad mandate that is inclusive of the entire intelligence community.

This committee will, inter alia, require the authority to:

  1. make inquiries;
  2. review the priorities, capabilities, assets, and products of the Canadian intelligence community;
  3. review organizational and strategic changes within the intelligence community, including the review of the appointment of senior officials in conformity with the practice of other committees of Parliament;
  4. on its own initiative, or pursuant to a request from a Minister, inquire into any particular activity or incident within its purview;
  5. review government intelligence priorities, detailed intelligence requirements and any other directions to the intelligence community; and
  6. request the assistance of, and receive unexpurgated reports from, present and future review agencies.

Experience with the Security Intelligence Review Committee and the Office of the Communications Security Establishment Commissioner has shown that such powers are necessary for effective review of the intelligence community. The powers specified above are equivalent to those already exercised by the review agencies, and are required by the committee if it is to fulfill its mandate. Anything less would render parliamentary scrutiny ineffective.

It is envisaged that the existing review agencies would continue to operate after the establishment of the Parliamentary Intelligence Committee. We note that the Security Intelligence Review Committee also has a second role. It handles complaints about Canadian Security Intelligence Service activities from the public and security clearance appeals from employees of government departments and agencies. We expect that it would continue to do so. All present and future review bodies will continue to report to Parliament through their ministers but would find in the Parliamentary Intelligence Committee their principal interlocutor in Parliament. The Parliamentary Intelligence Committee should be the forum for the consideration of unexpurgated reports from all present and future review bodies. We expect that they will keep the Parliamentary Intelligence Committee fully informed of their activities, and will provide a detailed listing of all operational plans, documents and reports. The Parliamentary Intelligence Committee may require the production of specific documents.

The committee will also require the authority to:

  1. review the funding levels requested for intelligence purposes by the Government;
  2. recommend to the Government increases or decreases in the general expenditure levels provided to the departments and agencies concerned;
  3. develop and maintain relationships with the legislative branches of Canada's allies in the field of intelligence matters;
  4. engage experts and consultants as required;
  5. develop its own procedural rules, including, but not limited to:
    1. the creation of subcommittees where necessary; and
    2. the ability to travel in accordance with its responsibilities, and within its budget.

The authorities listed above are generally consistent with those enjoyed by Canadian review agencies and those exercised by legislative review bodies in allied countries. For the most part they are essential to the establishment of independent, and therefore credible, parliamentary scrutiny of the intelligence community. Having this authority would allow the committee to more rapidly become expert in this complex and rapidly evolving area and be better able to serve Parliament.

Access to Classified Information

The committee will have the same right of unfettered access to information held by the intelligence community as the Security Intelligence Review Committee and the Inspector General now have with respect to the Canadian Security Intelligence Service.

Without full access to the information, the Parliamentary Intelligence Committee will not be in a position to fully comprehend the nature and extent of the activities conducted by the intelligence community. It would then be unable to fulfill its mandate, comment constructively on the intelligence community, or have credibility with Canadians.

Managing the Requirement for Secrecy

Access to, and retention of, classified information will be in accordance with the Government Security Policy.

Members of the proposed committee shall swear an oath of secrecy similar to that found in the schedule to the Canadian Security Intelligence Service Act (R.S.C. 1985, c.C-23) and/or the Oath of a Privy Councillor.

All staff must obtain security clearances in accordance with the Government Security Policy.

The Parliamentary Intelligence Committee shall operate in secure premises, and use communications procedures in accordance with standards set by the Government Security Policy.

The committee shall respect the caveats and rules governing access to classified information shared between allied agencies and others.

The committee, its members and staff shall retain classified information in conformity with government standards.

The committee shall make reports directly to Parliament only after consultation with the Government to ensure that no classified information is disclosed. The Government shall have the right to review the committee's reports before they are tabled in Parliament, and to black out, but not edit or delete, such classified information as it deems necessary. The committee will also respect its obligations with regard to the disclosure of personal information as required by the Privacy Act.

It is absolutely essential that our intelligence community and those of our allies have confidence in the security procedures put in place for any system of parliamentary scrutiny. This includes secure facilities, secure communications, cleared staff, and proper mechanisms to ensure the security of classified information in accordance with current Canadian standards.

Committee Reports

The committee shall report to Parliament annually and when appropriate in accordance with its mandate.

A Statutory Basis in a Parliamentary Context

The duties and functions of the Parliamentary Intelligence Committee will be carried out within the institution of Parliament. The Parliamentary Intelligence Committee and its members will enjoy the rights, powers, privileges and immunities of Parliament constrained only by the undertakings inherent in the swearing of the oath(s).

The committee will be established within the Parliament of Canada Act by statute. The statute will provide for adequate funding and the capacity to continue in existence through prorogations and the dissolution of Parliament, in the same manner as the Board of Internal Economy in the House of Commons and the Committee of Internal Economy in the Senate. With the exception of the oaths required, nothing in the statute shall derogate in any way from parliamentary privilege.

As noted above, there are committees of Parliament set up in the Parliament of Canada Act. We are of the opinion that this committee would need to be established in a similar fashion so as to balance the requirement for secrecy, the protections afforded by parliamentary privilege, and the need to create independent scrutiny of the intelligence community.

Term of the Committee

The committee will continue to meet as it deems necessary through prorogation or dissolution of Parliament, as though there had been no prorogation or dissolution. Members of the Committee, while eligible, will continue their membership, until the members of a successor committee are appointed.

The unpredictability of national security developments necessitates that the committee's staff and facilities must continue to function irrespective of Canada's electoral cycle. Sensitive and urgent matters might arise that demand Parliament's attention, and the committee should have the capacity to meet, conduct inquiries, examine witnesses, and report in such special circumstances.

Funding the Committee Work

Prior to each fiscal year the Parliamentary Intelligence Committee shall cause to be prepared an estimate of the sums that will be required to be provided by Parliament for the payment of its charges and expenses during that fiscal year. The Speakers of the two Houses of Parliament, upon receipt of the estimates from the Co-Chairs of the Parliamentary Intelligence Committee, would then transmit them to the President of the Treasury Board who shall lay them before the House of Commons with the estimates of the Government for the fiscal year. The Leader, or Deputy Leader, of the Government in the Senate would table the Parliamentary Intelligence Committee's estimate in the Senate in a fashion consistent with current practice.

We believe that the Parliamentary Intelligence Committee requires a different funding mechanism than that used by traditional parliamentary committees. The magnitude of the committee's budget will be such that it would distort the traditional processes in practice for funding committees of the House and Senate through their respective Board and Committee of Internal Economy.

The Parliamentary Intelligence Committee will require financial expenditures that exceed those of other committees established by Parliament because of the staffing and processes required to protect sensitive information (see Annex D).

Given the nature and scope of the Parliamentary Intelligence Committee's mandate, it might not be in a position to fully explain its funding requirements in the same way as traditional committees because of the requirement for secrecy that might come into play.

Committee Procedures

The legislation establishing this committee must allow it to:

  1. meet in closed session or open session in accordance with the Government Security Policy;
  2. operate secure facilities, communications and document handling;
  3. manage its own staff; and
  4. foster a collegial, non-partisan, atmosphere.

The handling and control of classified information and testimony, the requirement for non-partisanship, and the need to pursue lines of inquiry to their logical conclusion require a set of rules devised for this purpose.

The sensitive nature of the work to be conducted by the committee will require closed sessions. This practice has been successfully adopted by other legislative bodies in the US, U.K., and Australia.

Committee Structure

There were several views as to what committee structure would be most effective for parliamentary scrutiny of intelligence functions. Three options found substantial support from the members of the interim committee: Structure 1, creating two permanent committees of Parliament; Structure 2, creating a traditional joint committee of Parliament; and Structure 3, creating an innovative form of joint committee with modified membership, rules and procedures.

Based on preferential balloting of the eight members present at our final session, Structure Three garnered the most support. We therefore recommend the creation of a Parliamentary Intelligence Committee in the form of an innovative joint committee of Parliament. That said, we would be remiss if we were not to highlight the fact that there are advantages to each of the structures:

  • Structure 1. Creating two permanent committees is reflective of the bicameral nature of Parliament and builds on the strengths, structures, cultures, and management practices that exist in each Chamber. Given the size and complexity of the intelligence community, it is important to recognize the natural limit on any one committee of Parliament's ability to provide scrutiny: a typical committee can normally only undertake two major studies a year. Two committees would, at least, double that number to four. The existence of two committees would further permit one committee to dedicate itself to a single study for a longer period. While two committees provide a practical division of labour, it need not preclude their working together when appropriate. Over time a dynamic between the two committees would emerge that would minimize the likelihood of overlap or duplication. Previous experience of parliamentary committees also supports a two committee structure. In other important areas such as Agriculture, Trade, and Defence both chambers operate their own committees. Furthermore some of our members who have joint committee experience have found that, with the exception of the Standing Joint Committee for the Scrutiny of Regulations, joint committees have not functioned well. Lastly, while it has been suggested that the multiple perspectives which two committees would bring to Parliament could be counterproductive, the plurality of opinions offered by two committees could also serve to better inform Parliament and aid the Government's decision-making process by providing it with more policy options.
  • Structure 2. Creating a traditional joint committee of Parliament — a structure which like most traditional joint committees includes co-Chairs and Co-Vice Chairs along with proportional membership from both chambers and among all parties — would allow Parliament to set aside differences between the chambers and work together in the public interest to tackle an issue of obviously non-partisan, national significance. A traditional joint committee would foster an environment wherein a single parliamentary perspective on intelligence matters could develop and in time become a single destination that the Government of Canada and Canadians could approach for consultation. Through the participation of both chambers, a traditional joint committee would ensure continuity of the committee's efforts and provide for the cross-fertilization of perspective and expertise. It would provide increased parliamentary scrutiny while minimizing the demands on financial, physical and human resources that will be placed on Parliament and the intelligence community. Separate structures for the House and the Senate would necessitate at the very least separate research and administrative staffs, whereas one joint committee would enjoy structural economies. Similarly, a single committee would reduce the numbers of briefings and documents requested of the departments and agencies in the intelligence community. On top of these advantages, this structure also has the advantage of being well-known to Parliament. It more accurately reflects the distribution of membership within Parliament and ensures than Canada's elected members of Parliament represent a majority of those on the committee.
  • Structure 3. As selected by us in a preferential ballot, creating an innovative joint committee of Parliament — one with co-Chairs and co-Vice Chairs like a traditional joint committee but with equal representation of members from the House of Commons and the Senate — would build on many of the advantages of a traditional joint committee and emphasize certain qualities of the Senate which would contribute to the committee's future success. Drawing members from both chambers of Parliament on a single committee would again demonstrate as in Structure 2 that Parliament has come together on a matter of obvious national significance and provide for the cross-fertilization of perspective and expertise. It also has the same advantages of achieving meaningful economies in terms of keeping costs low and minimizing the burden on the intelligence community. An innovative joint committee would, however, do more than a traditional joint committee to ensure the continuity of the committee's efforts and to retain significant corporate memory (because of the more permanent tenure of members of the Senate). It would also be better positioned to work through prorogations and dissolutions than a traditional joint committee. As well, Senators are able to dedicate more time to committees than members of the Commons because they do not have the same constituency obligations. Providing for a greater proportion of Senate membership would help to foster the collegial, non-partisan, atmosphere necessary for the committee's eventual success, and, together with adoption of many of the more collegial Senate Rules of Procedure, better allow it to follow issues to their logical conclusion.

Committee Membership

The Prime Minister will appoint members to the committee. When appointing a member from an opposition party, the Prime Minister will require the concurrence of the leader of that Party.

The Prime Minister has responsibility for Canada's national security and the protection of classified information and must therefore have confidence in the members appointed to a body which will have access to such information and who may be appointed to the Privy Council.

Personal suitability, experience in matters of national security, the ability to serve for an extended period of time, and the ability to work in a non-partisan way, should be among the criteria considered by the Prime Minister in the appointment of members.

Members will not hold any Cabinet office or parliamentary appointment.

The committee and its members must be, and be seen to be, independent.

Members will remain eligible for full participation on other committees.

The nature and extent of the committee's mandate will necessitate that the majority of work be conducted in closed session and on secure premises. This workload will be onerous, and will make with considerable demands on members' time. Notwithstanding these commitments and normal parliamentary time constraints, there would be clear advantages in members participating on other committees of Parliament. Other committee work would better bring outside points of view into committee discussions, and would provide other committees with some insight into the work of the Parliamentary Intelligence Committee.

Membership on a single innovative joint committee of Parliament will be limited to eight parliamentarians, four from the House of Commons, and four from the Senate. A quorum to hear evidence will consist of three members, two of whom will be members of the Governing Party. A quorum of six members will be required for reporting. The other structures described in the section above might require an adjustment in their membership composition.

Members would continue to serve on the committee as long as they remain members of Parliament, until they resign from the committee, or until they are removed from the committee by resolution of their House. Subject to the above, members will serve for the life of a Parliament, through prorogation(s) and dissolution, until they are replaced by members from the next Parliament.

Members of the committee will serve during good behaviour but may be removed for cause by a vote of their respective chambers, after seven sitting days notice. To be carried, this vote will need to be supported by a majority of those members of both the Governing Party and the Official Opposition in their chamber at the time of the vote.

No substitution of members will be allowed on the committee. No parliamentarian may serve as an ex officio member of the proposed committee (see Senate Rule # 87).

Stability of membership on the committee is important for three reasons. First, it will take time to gain the trust of the intelligence community and our allies. Second, expertise in this complex area only comes with experience. Third, a member's independence will be crucial to the committee's success. Therefore any decision to remove a member should be subject to rigorous, transparent and non-partisan processes.

Members would be eligible for reappointment.

Committee leadership positions will be selected through a secret ballot of the members as is consistent with existing practice in the House of Commons.

The interim committee notes that the practice in the United Kingdom is for the Prime Minister to appoint the Chair of the Intelligence Security Committee. Chairs of legislative intelligence oversight committees are elected in Australia and the United States.

Remuneration for the Co-Chairs and Vice-Chairs of the committee will be the same as that provided to similar positions in both Houses.

Any vacancies should be filled forthwith.

The committee's workload and the timeliness of its inquiries require that seats on the committee do not stand vacant.

Committe Staff and Facilities

The committee will have a permanent, security-cleared, professional staff, with a capacity for advisory, analytical, investigatory, and administrative work.

Staff of the committee will be responsible for daily interactions and the maintenance of relationships with the departments and agencies of the intelligence community. This workload will be considerable, both in the management of information received and the preparation of documents for the committee.

An adequate staff complement is necessary to maintain a manageable workload for members of the committee. The committee's staff will be larger than the staff complement of traditional parliamentary committees.

The staff of the committee will be appointed and engaged by, and report to, the committee.

It is expected that the day-to-day management of the staff and operations of the committee will be the responsibility of an individual appointed by, and directly responsible, to the committee through the Co-Chairs.

The committee will be able to authorize secondments and exchanges of staff with the intelligence community.

Such staff secondments could be valuable to the committee, especially in its formative years.

The legislation establishing the Parliamentary Intelligence Committee should provide it with secure facilities and communications in accordance with government standards.

Secure facilities and communications systems will be required to safeguard the classified information received and retained by the committee.


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