The Committee’s first five years, 2017 to 2022
The National Security and Intelligence Committee of Parliamentarians 2022 Annual Report
Strengthening the effectiveness and accountability of the security and intelligence community
2. The Committee was created when the NSICOP Act came into force on October 6, 2017. Footnote 1 Like our closest allies, Canada created a committee of parliamentarians from all political parties and from both houses of Parliament, cleared to view top secret and other sensitive information, with a mandate to conduct wide-ranging reviews of national security and intelligence frameworks and activities across the government.
In its first five years, the Committee completed nine reviews and made 29 recommendations to strengthen the effectiveness and accountability of the security and intelligence community.
3. The Committee’s legal mandate is to review:
- the legislative, regulatory, policy, administrative and financial framework for national security and intelligence (‘framework reviews’);
- any activity carried out by a department that relates to national security or intelligence (‘activity reviews’); and
- any matter relating to national security or intelligence that a minister of the Crown refers to the Committee (‘referral reviews’).
4. First constituted in December 2017, the Committee began 2018 with site visits and briefings at each of the core national security and intelligence departments to learn about the threats to the security of Canada and the role each department plays in countering those threats. The Committee also met with the Office of the Privacy Commissioner of Canada, the Office of the Auditor General of Canada, the Intelligence Commissioner (IC) and the National Security and Intelligence Review Agency (NSIRA) upon their creation, academics, experts, and several civil liberties groups on the interplay between human rights and security.
5. Also in 2018, the Committee determined its criteria for determining which security or intelligence activities to review. For the Committee to consider any review, the activity must involve one of the core members of the security and intelligence community. For national security issues, the activity must also relate to threats to the security of Canada as defined in the Canadian Security Intelligence Service Act or criminality of national scope and gravity. For intelligence issues, the activity must involve the use of clandestine, covert, or privileged sources or methods. The Committee also decided on a list of other factors it considers, including whether the organization or activity was previously subject to review, and whether there is a high level of public interest in the topic. Footnote 2
6. The Committee believes that its nine reviews over the past five years have served three primary objectives. First, the Committee’s 61 findings and 29 recommendations sought to strengthen the effectiveness and accountability of the many departments and agencies that make up the security and intelligence community. Second, the revised versions of the Committee’s reports – which are tabled in Parliament and published to the Committee’s website – improved transparency by informing parliamentarians and the public about the government’s security and intelligence activities. Third, the Committee’s reports and stakeholder engagement informed the democratic debate about national security and intelligence, and our rights and freedoms. The Committee is grateful to its colleagues on the House of Commons’ Standing Committee on Public Safety and National Security and the Standing Senate Committee on National Security, Defence and Veterans Affairs, as well as the academic community, for their engagement with its reports.
7. One of the Committee’s first reviews, which examined the government’s process for setting intelligence priorities, exemplified all three of the Committee’s primary objectives. The Committee’s recommendations sought to improve the intelligence priority setting process, coordination, and reporting on results. The review was an act of transparency, as it provided Parliamentarians and Canadians with previously unpublished information about a process that involves all core members of the security and intelligence community. The review also bolstered accountability over an area of operations that is high-risk because of its sensitivity and potential impact on the rights of Canadians. This review is just one example of how a committee of security cleared parliamentarians strengthened the operations and accountability of a security and intelligence activity of strategic importance. Footnote 3
Challenges to obtaining relevant information
8. The Committee has a broad mandate to enhance the accountability of the security and intelligence community. The Committee can only discharge its mandate if it has broad access to relevant information.
9. When the Committee was established, only the Canadian Security Intelligence Service (CSIS), the Communications Security Establishment (CSE) and the Royal Canadian Mounted Police (RCMP) were subject to review by independent review bodies. Departments that were new to national security and intelligence review responded in different ways. Some immediately set a high standard for engagement with the Committee while others required more time to achieve an ability to provide the Committee with information that was comprehensive and timely.
The Committee has encountered problems obtaining government information that it is entitled to by law.
10. While some in the security and intelligence community may have been apprehensive about providing top secret information to a committee of parliamentarians, the Committee has always believed that it is in the best interests of the agencies to be frank and forthcoming with NSICOP. For its part, the Committee’s approach has always been to build trust and maintain an open dialogue with the departments and agencies under review without compromising its independence. The Committee was encouraged when the National Security and Intelligence Advisor to the Prime Minister established a review liaison unit in PCO to coordinate the response to reviews and to coordinate review-related work across the government, and that most departments and agencies have now established liaison units to act as their central point of contact for NSICOP. Nonetheless, challenges remain.
11. According to the NSICOP Act, the Committee is “entitled to have access to any information that is under the control of a department and that is related to the fulfilment of the Committee’s mandate,” with several narrow exceptions that are expressly stated in the Act. Over the past five years, however, the Committee has encountered problems obtaining the information that it is entitled to by law. First, several departments cited reasons outside the statutory exceptions as a rationale for not providing information, such as inappropriately claiming that relevant emails, draft policies or departmental studies should not be provided to the Committee.
12. Second, some departments selectively refused to provide information even though the information fell within a request for information from the Committee. In several cases, the Committee came across the information later or through other sources, such as subsequent media reporting based on information disclosed by those very departments under the Access to Information Act. This is an important problem, because the Committee is unaware of what information is being withheld, which could undermine its ability to fulfil its mandate.
13. Third, the Committee is concerned that departments are applying an overly broad interpretation of what constitutes a Cabinet confidence, one of four statutory limitations to the Committee’s right of access to information. For example, during the review of the national security and intelligence activities of Global Affairs Canada (GAC), information that departments asserted was a Cabinet confidence turned out to have already been made public or to have simply been part of a briefing given to a Minister by their deputy head (but not policy advice to Cabinet or a committee of Cabinet). In each case, NSICOP argued that the assertion was inappropriate and, with one exception, the departments agreed. As the Committee wrote to the Prime Minister in June 2022, the core of the Committee’s mandate is to improve Government accountability for national security and intelligence. Footnote 4 If departments continue to broadly interpret the definition of Cabinet confidence to withhold information and are not required to inform the Committee of what relevant information has been withheld and why, then the Committee’s ability to transparently and comprehensively review the governance frameworks which support Ministerial accountability risks being compromised.
Areas for statutory reform
14. Between 2017 and 2019, Parliament enacted legislation that created three new bodies with mandates to review national security and intelligence organizations or to provide oversight of certain activities: NSICOP, NSIRA and the IC, respectively. Consistent with provisions in the NSICOP Act and the National Security Act, 2017, the latter of which created NSIRA and the IC, Parliament is required to conduct “a comprehensive review of the provisions and operation” of both statutes. Footnote 5
15. The Committee may make specific recommendations about reforming the NSICOP Act to the designated Parliamentary committee at the appropriate time. Here, it raises two broad themes for the government’s consideration.
16. First, reforms to the NSICOP Act should improve the Committee’s access to information and its ability to exchange information with other review bodies. In our reports, including this one, we have outlined some of the challenges the Committee has faced since its inception in obtaining information. The Act could be amended to address these issues. Second, the reforms of the NSICOP Act should enhance the independence and efficiency of the Committee. The Act could be amended to reflect the evolution of authorities of NSICOP's counterpart in the United Kingdom, the Intelligence and Security Committee.
17. The Committee looks forward to the resolution of the challenges it faces, informing Parliament’s review of the NSICOP Act, receiving the government’s responses to all its past and future recommendations, and continuing its review agenda.