Chairman, members of the committee, it's a great pleasure to have the chance to give testimony on Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians .
I'd like to begin by making some brief contextual remarks about the legislation. Genuine parliamentary capacity to scrutinize intelligence and security has been a long-time coming in Canada. Having such a body was first proposed by the McDonald commission over 30 years ago, but was rejected by a special Senate committee established to review the commission's report and recommendations. Instead, we got a different accountability mechanism back then, the Security Intelligence Review Committee, established with the CSIS Act in 1984.
Despite various efforts to bring forward legislation in subsequent years, including several attempts in recent years, Bill C-22 marks the first time that a legislative proposal supported by the government has come to a standing committee for hearings.
Much wasted time has passed and much has changed in the intervening years. The necessity for a committee of parliamentarians of the kind envisaged by Bill C-22 is irrefutable, in my view. We have been left behind by the efforts of our allies in legislative branch scrutiny. The Canadian security and intelligence community, which will be the subject of the reviews conducted by the proposed committee, has undergone tremendous change, in particular since the 9/11 attacks, and now benefits from much greater resources, capacity, and power than it has ever experienced in Canadian history.
With that increase in power comes a corresponding increase in the need for strategic level scrutiny of the activities of the security and intelligence community as a whole and a crying need for real parliamentary capacity. In addition, the Canadian public is much more attuned to security and intelligence issues than in the past and there is a much higher expectation in the public domain for the delivery of accountability, transparency, and adequate public knowledge.
I fully support Bill C-22. I think it represents a necessary and timely experiment in parliamentary democracy and activism. I give full credit to the Liberal government for seeing the importance of parliamentary scrutiny of security and intelligence and for making this a centrepiece of its response to the previous government's anti-terrorism legislation, Bill C-51, and for making it a promise in their election platform.
I don't think Bill C-22 is perfect, but Parliament will have to decide how significant the gaps might be between a perfect scheme and something good enough for a start-up. If we are honest, this is what Bill C-22 represents, a start-up. It's the beginning of a delayed experiment in parliamentary scrutiny, which requires, of course, robust legislation, but which will also be dependent on many other factors and will require a period of maturation before it can become fully effective.
This has been the experience of the U.K.'s Intelligence and Security Committee of Parliament, on which the Canadian legislation is clearly based. The U.K. committee was created in 1994, has over 20 years of experience, and was granted revised powers and procedures in legislation in 2013.
The success of the proposed national security and intelligence committee of parliamentarians will depend, beyond robust legislation, on many factors, including strong membership, reflecting the stature of the committee, which makes it a highly desirable place for MPs and senators to aspire to a seat around the table; a steep learning curve about the complex domestic and international dimensions of intelligence activities; the trust of key agencies in the security and intelligence community; earned legitimacy in Parliament; and last but not least, and perhaps most important of all, public legitimacy, twinned with an understanding that one of the key roles of the a national security and intelligence committee of parliamentarians is to build and sustain public understanding of the role and challenges of intelligence and security endeavours in a democracy.
It seems to me that these are the challenges ahead for the committee, but to meet them the committee will need the right legislative tools.
In terms of having the right legislative tools, Bill C-22 has to find what I would call a “sweet spot” between committee access to secrets and the protection of secrets. Finding this sweet spot is the challenge before you in your study of this legislation. That sweet spot can be examined under five headings, all of which are core elements of Bill C-22: membership, mandate, powers, resources, and protection against leaks.
In the time remaining, I propose to make some short remarks about the strengths and weaknesses of Bill C-22, as it currently stands, under those five headings.
First of all, I will discuss membership. My plea to the committee would be not to too hung up on membership, though I imagine you might well do that. The key thing is having good members and instilling a culture of non-partisanship. How you arrive at those members is something that you'll have to determine. It's certainly the case that the Canadian proposal in Bill C-22 falls a little behind the revised procedures currently being used by the U.K. Intelligence and Security Committee of Parliament, but I hope this doesn't become the overweening focus of the committee's deliberations.
Mandate is the second issue.
The mandate proposed for Bill C-22 is very broad, and that's good, but it comes with challenges. There are core agencies of the security and intelligence community that will preoccupy the committee and take up almost all of its time. I would prefer to see these core agencies named, as is the case with the legislation for the U.K. intelligence and security committee.
You can of course maintain the broad mandate while still naming the key agencies that are going to be the subject of your work, by adding an additional clause indicating that other government departments and agencies would be under the purview of the committee as required and as it pursues its mandate. I think, however, that it's critical to name those core agencies, in part to assist the committee in coming up with a useful work plan and in part to help the public understand what its expectations around the reporting of this committee will be.
I would also add under mandate that it would be important to include something that does not currently fall under the mandate, which is a direct reference to operations. By operations I mean past operations. This area should be listed as part of the mandate of the committee, as is the current U.K. practice.
I'm going to skip over powers for a minute and turn to resources. The Bill C-22 provisions for a secretariat are, I believe, excellent. I had the opportunity to talk to the visiting intelligence and security committee delegation that travelled to Ottawa recently, and this was one of the things they commented on. They clearly felt some degree of jealousy about the explicit provisions for resources for a secretariat and for the leadership of that secretariat. This is one of the strongest pieces of the Bill C-22 legislation. I hope it will be supported and sustained.
Protection against leaks is a question of finding the sweet spot between access to secrets and protection against the inadvertent or deliberate revealing of secrets. The measures that are provided in Bill C-22 to protect against leaks are clearly overwrought; they go beyond the kinds of measures that were proposed in previous versions of draft legislation.
They're overwrought in imposing a security clearance requirement on members. I say “overwrought” in that regard because it is very likely that members of the national security and intelligence committee of parliamentarians would not be cleared to the highest levels, in part because I can't quite imagine MPs and senators wishing to undergo polygraph examination.
I also think it's completely unnecessary. All it really needs is what was proposed in many versions of previous legislation, which is reliance on an oath of secrecy as the principal protection required, with an assumption of trust with regard to the behaviour of MPs and senators sitting on the committee. A properly administered oath of secrecy, surrounded by the kinds of protections you'll need with regard to documents and document handling that would be enforced by the secretariat is in my view sufficient. From my perspective, I think the government overplayed its hand here.
That leads me to the final point, which is about powers. I suspect this will be one of the most contentious issues you'll have to address in this committee. Again, I would urge you to think about these powers in the context of that sweet spot between access to secrets on the part of the committee and protecting legitimate secrets held by the government and provided to the government, possibly by many of our allied partners.
There are many complicated provisions contained in Bill C-22 with respect to access to records and in respect to reporting. I'm not going to run through these in detail. The point I would simply like to make is that in comparison with the U.K. legislation, which I think could usefully be our guide here, the legislation in Bill C-22 goes a little further than necessary. It's too complex and can be usefully simplified around the protection of intelligence sources and methods and around any kind of divulgence that might impact upon the proper working of intelligence and security agencies.
A lot of the other kinds of clauses and exemptions in terms of access to reports or the nature of reporting that could be done I think are frankly unnecessary. I think it could be very helpful in terms of the committee's work, Parliament's understanding of its work, the public's understanding of its work, and removing any suspicions about excessive executive control over this committee if all of those efforts to corral access and reporting could be vastly simplified.
One thing, in particular, that I want to draw the committee's attention to is to be careful about including in C-22 an exemption to access and reporting that refers directly to operational information. That is a reference to the Security of Information Act, and the definition of operational information in the Security of Information Act, which was passed as part of the Anti-terrorism Act in 2001, is extremely broad and, if it were read literally, could really bring the work of the committee to a halt. My main message is that this part of C-22 could be usefully and practically simplified.
Just by way of quick conclusion, there are two things I would encourage the committee to do as it scrutinizes C-22. First, seek genuine parliamentary consensus on an acceptable form of legislation, and practice bipartisanship as you do so. It seems there is a good amount of bipartisanship already, in terms of the sharing of ice cream going on, so this is a good sign.
I say this because consensus and bipartisanship are going to be the working ethic of the committee that is established. It would be a good place to start, to think about these things in this committee.
Second, keep in mind that the proposed national security and intelligence committee of parliamentarians is a start-up and will be reviewed after five years, and accept that there is no perfect formula for balancing secrecy requirements and access requirements. Pease don't spin your wheels too much on that.
I'll end with a quote. As General William “Wild Bill” Donovan was fond of saying during his leadership of the Office of Strategic Services in World War II, “Perfect is the enemy of the good.”
Thank you.