INTERIM COMMITTEE OF PARLIAMENTARIANS ON NATIONAL SECURITY

CANADA

COMITÉ INTÉRIMAIRE DE PARLEMENTAIRES SUR LA SÉCURITÉ NATIONALE

Ottawa, Ontario K1A 0A9

4 October 2004

The Honourable Anne McLellan
Deputy Prime Minister and
Minister of Public Safety and Emergency Preparedness
55 Metcalfe Street, 15th Floor
Ottawa, Ontario
K1A 0A3

RE: The creation of a Parliamentary Intelligence Committee

Dear Ms. McLellan:

We are pleased to provide you with the report of the Interim Committee of Parliamentarians on National Security. All parties and both Houses of Parliament are represented on this committee.

In December 2003, the Prime Minister announced a number of democratic reforms designed to better engage Canadians in the democratic process and “restore Parliament as the center of decision-making …”. Included in these reforms, and later reiterated in your announcement of March 31, 2004, was the recommendation to establish a mechanism through which Parliament could provide more active scrutiny of security and intelligence. On May 13, 2004, the Honourable Jacques Saada, the then-Government House Leader, announced the creation of our interim committee. These initiatives by the Government, and our report, are the first steps in the process of responding to the commitments of the Prime Minister.

This letter serves as the executive summary of our report which is attached and which is accompanied by annexes that add background information. The report contains sufficient detail and rationale to assist in drafting the legislation that will be necessary to implement our recommendations.

Our committee met with legislators, oversight bodies, security and intelligence agencies, and academics in Canada and abroad (see Annex A). We visited Australia, the United Kingdom and the United States. We gathered a great deal of useful information and very much appreciated the candour of our hosts and witnesses. We also benefited greatly from the invaluable assistance of departmental officials in Ottawa and our diplomatic representatives abroad. While we are fortunate to be able to build upon the experiences of our allies and others, what we recommend is a “made in Canada” approach.

We are of the view that this approach should provide wide-ranging scrutiny of all present and future agencies, departments and review bodies in the intelligence community.

The security and intelligence community in Canada includes those departments and agencies having a mandate to collect, retain and analyze information, and advise the government; it is hereinafter referred to as the “intelligence community.” It also includes those bodies which review its activities. It employs thousands of people, expends hundreds of millions of dollars annually, and is subject to only very limited parliamentary scrutiny (see Annex B).

Parliamentary scrutiny of intelligence functions has been raised as an issue with every evolution of the intelligence community since the MacDonald Commission in 1981 (see Annex C). Parliament currently receives only expurgated reports from review agencies. Otherwise, its role is limited to two committees which do not normally have access to classified information: the House of Commons’ Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness Subcommittee on National Security; and the Senate’s Standing Committee on National Security and Defence.

Today, Canadians are more concerned than ever before with issues of national security. Since the events of September 2001, there has been a substantial expansion in the breadth and intensity of Canada’s counter-terrorism efforts. The Canadian Security Intelligence Service has been joined by the Royal Canadian Mounted Police and several other agencies and departments in these activities. The creation of Integrated National Security Enforcement Teams (INSETS) across the country should be of particular note. We agree with the Prime Minister that the status quo of parliamentary scrutiny is no longer adequate. 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 for their inquiries in a fashion similar to that which is provided to the Security Intelligence Review Committee in Section 39(2) of the Canadian Security Intelligence Service Act (see Annex E). We recognize that this is a significant departure from current Canadian practice but believe it is necessary to ensure that Parliament can undertake comprehensive and independent scrutiny of this important area. Though this arguably goes further than the legislation enacted by some of our allies, it is in line with developing practice.

Some of the jurisdictions we visited initially enacted legislation that was less ambitious than what we envision for Canada. However, because of the trust that has evolved since the passage of that legislation, their oversight committees’ access has exceeded the level that was originally envisaged. Their systems have evolved over time to become more effective. We strongly believe that a structure which must rely on the gradual evolution and expansion of access, powers, and remit would be inappropriate for Canada. We realize nevertheless that the establishment of confidence between the intelligence community and the committee will be essential to the success of parliamentary scrutiny of intelligence functions.

We also recognize that such access without appropriate safeguards could have a negative impact on Canada’s security, and on relationships with our allies. Such safeguards should include permanently assigned and security-cleared staff, secure premises, and committee members who are selected based upon their suitability for the position and who are sworn to secrecy. Experience suggests that the Privy Council oath is an option that would suffice. Our committee accepts that access to classified information will limit a committee member’s capacity to speak publicly. We believe, however, that parliamentarians will find an appropriate balance between the rights and responsibilities of their office, and the requirement to protect national security; as has apparently been achieved by their counterparts abroad.

We believe 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. The intelligence community will be more accountable to Parliament and, by extension, to the people of Canada. This closer scrutiny will also better assure the efficacy and efficiency of the intelligence community by thoroughly examining its roles and responsibilities.

The level of parliamentary scrutiny that we envisage would be thorough and comprehensive. It will add to the intelligence community’s workload. Because of this we believe that a defined relationship with present and future review agencies will be required. This will include a process whereby they report to Parliament through the structure we are proposing. We are also adamant that this process, or any other facet of such parliamentary scrutiny of intelligence, shall not derogate from Parliament’s privilege to send for papers, people and records, or diminish the role and authority of any other parliamentary committee.

To establish and maintain the confidence of both chambers of Parliament and the trust of Canadians, Parliament’s role in this area must be, and be seen to be, independent of the Executive (Cabinet).

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 3 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.

We are of the view that the unique nature of the intelligence community and the nature of the modern threats facing Canada necessitates that the committee be able to meet as required. The committee will need to be established by statute, so as to provide operational flexibility, adequate funding for secure facilities and staff, as well as the capacity to continue in existence through prorogations and the dissolution of Parliament. Establishment by statute would also provide for access to and the protection of classified information.

We believe that the proposed committee should be a committee of Parliament, not a committee of parliamentarians. Members of the committee will continue to enjoy the same parliamentary privilege as their peers. We acknowledge that there are probably significant parliamentary procedural and privilege issues that need to be resolved by procedural experts and legislative drafters, but we also believe that none of these need be insuperable given the importance of the issue at hand.

We recommend that members should be appointed to the committee by the Prime Minister for a term that continues until the constitution of a new committee at the commencement of the next Parliament. When appointing a member of an opposition party, the Prime Minister should seek the concurrence of that member’s party leader.

Appointing the right parliamentarians to this committee is crucial to its success. We recommend that the Prime Minister, when considering prospective members, take into account their personal characteristics; their knowledge of security and intelligence issues; and their capacity to work in a non-partisan way. To ensure its independence, members of the Cabinet, Parliamentary Secretaries, Party Whips and House and Senate Officers should be ineligible for appointment to the committee.

Based on the experiences of others, we are of the opinion that the workload for committee members will be onerous, particularly for the Chairs. Despite this, we recommend that the members remain eligible for full participation on other committees.

Consistent with recent changes in the House of Commons, committee leadership positions should be elected by a secret ballot of its members to enhance the reality, and perception, of committee independence.

The effectiveness of parliamentary scrutiny of intelligence will hinge, in part, on the commitment of sufficient resources which, we believe, will be approximately $3 million annually (see Annex D). This figure is consistent with existing oversight budgets in Canada and the United States. In Canada, for example, the Security Intelligence Review Committee and the Office of Communications Security Establishment Commissioner have budgets of approximately $2.47 million and $902,000 respectively. Their mandates are agency-specific, whereas parliamentary scrutiny would have a broader mandate, and would therefore require additional resources.

We believe that properly discharging Parliament’s role in this important area will include start-up and ongoing costs that will exceed the financial expenditures of other committees established by Parliament. Assuming the provision of secure facilities, the additional costs that will be incurred on an annual basis will be attributable to the nature of the mandate, the number of permanent staff that could be required, and the need to maintain the security of information. To provide anything less than this level of support would undermine the effectiveness of the committee’s work. Without this commitment we question whether effective parliamentary scrutiny of the intelligence community can be achieved.

We believe that it would be useful for this report to be tabled in both the House of Commons and the Senate, as a public document for future reference, on an appropriate occasion after the October 4th, 2004 recall of Parliament.

We would appreciate an opportunity to discuss our report with you. Once you have had time to arrive at some preliminary conclusions, the members of our committee have asked us to assure you that they would be willing to address any further issues you may wish to raise.

Respectfully submitted,

Mr. Derek Lee, M.P.
Chair

The Honourable Colin Kenny, Senator
Vice-Chair