National security: Here’s why we need legislative oversight

by Hugh Segal

The Globe and Mail
November 29, 2012

The recent case of a junior naval officer who confessed to selling classified information to a foreign power reminds us that Canada stands out from most of its G8 and NATO partners in one significant way: We do not have independent legislative oversight of our national security and intelligence agencies. This gap produces some serious challenges.

On March 23, 2011, the special Senate committee on anti-terrorism issued a report that included a recommendation for a statutory legislative oversight committee, made up of both MPs and senators appointed by the prime minister and based on the United Kingdom’s model. This reflected a bill that fell off the order paper in 2005 proposing the same approach.

In a speech to the Parliamentary Centre (in November of 2011), I made the case, as committee chair, that the capacity and context of our national security engagement was diminished by this ongoing gap and this glaring difference between Canada and our most important allies. It’s a view I still hold.

The United States has a plethora of intelligence and defence oversight committees in their House and Senate, a framework I would not suggest for Canada. We have a different system of government and any approach we take must reflect that difference. But there’s a Westminster model that could work well for Canada – one that reflects the balance between secrecy and legitimate oversight.

In the U.K., there’s a committee of parliamentarians (which is different from a parliamentary committee) reflective of the main parties present in both chambers. Appointees are chosen by the prime minister and report annually to him on their work. That report is made public, and when, or if, national security requirements demand there be some editing by the Cabinet Office, then that information must be disclosed. Intelligence and national security matters are discussed on a systematic basis, with heads of agencies appearing before the committee of parliamentarians to share insights and discuss plans, budgets and key competencies. The law establishing the committee makes it legal for agency heads to share information.

In Canada, no law allows any senior defence, intelligence, police or security official to share information with parliamentarians who don’t have a security clearance as high as that of the official. In fact, the law makes the opposite assertion: Only ministers have the clearance necessary for access to this kind of frank discussion.

The U.K. system, established in 1994, doesn’t in any way dilute ministerial responsibility to Parliament for the agencies that operate under his or her jurisdiction. Nor does it interfere in day-to-day operational issues or the chain of command that exists in national security, defence intelligence or police agencies.

Why would such an approach be of value in Canada?

First, it would move us beyond the complaints-driven, limited role of the Security Intelligence Review Committee, which is made up of former elected officials or community leaders. They do good work, but they look backward – and retroactivity is no way to look ahead.

Such an approach would also allow Canadian service heads an opportunity to discuss some of their medium- and long-term intelligence and security concerns in a way that gives parliamentarians a clear sense of the challenge framework. Conversely, this approach would provide service heads with a sense of how legislators would react to some of the challenges and choices ahead. Moreover, with legislators from both houses who bring specific defence, police, community, government and business experience to their task, there would be benefits flowing both ways.

The absence of legislative oversight means that service heads and senior officers get to talk only to their superiors and interdepartmental counterparts, if at all. If things go off track, fresh perspectives and open-mindedness may well be diminished in these circles, to be charitable.

The Prime Minister deserves great credit for the new national security committee structure that he has implemented within the Privy Council. A properly established legislative oversight committee would be a welcome and constructive addition to Canada’s security infrastructure.

No intelligence or security official canvassed informally at the time of the Senate committee’s 2011 report seemed troubled by the proposition. There’s no reason for a thoughtful government to be troubled by a statutory legislative review process where competence, discretion, judgment and legislators support and enhance the democratic underpinnings of the national security our officials are sworn to protect.

Conservative Senator Hugh Segal is a senior fellow at the Canadian Defence & Foreign Affairs Institute.