Security Review or Oversight? The Critical Difference

Published in the Globe and Mail, March 11, 2015

The government’s legislation to increase the powers of Canada’s security services has stimulated a necessary and welcome debate. One aspect of this debate concerns the question of what is the appropriate level of scrutiny of these services, and who should do it. This is an important issue in any democratic country.

Unfortunately, many speakers in this debate are confused as to some basic principles of how we have traditionally fulfilled this role in Canada. More specifically, the terms “review” and “oversight” are being used almost interchangeably. This is more than a semantic difference; the two are fundamentally different and have significant implications for how we govern ourselves.

Failure to appreciate the critical difference between the two can lead to a misinformed debate and bad decisions.

“Review” has been the tradition in Canada. Not for nothing is the body that watches over the Canadian Security Intelligence Service (CSIS) called SIRC – the Security Intelligence Review Committee. In Canadian tradition, as in all other parliamentary democracies based on the Westminster model, review is a function carried out by an appointed body that examines the conduct of a specific agency in a retrospective manner to determine whether it has followed its mandate appropriately.

Review is not undertaken to ask whether the policies followed by the agency in question were the right ones, or to provide advice or criticism on those policies – just whether they were carried out in accordance with the law. In our tradition, it is up to ministers, accountable to Parliament (and ultimately the people), to determine whether policies are the right ones and to make sure they are being implemented properly in real time.

Review is thus a retrospective check by an independent body on whether actions were properly carried out. It is not an act of seeking to question the policies on which the actions are based, or attempting to affect how they are being implemented as they are unfolding.

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Review of the security services can be carried out by a variety of bodies. In Canada, we have relied upon a special body – SIRC, which reports to Parliament – to review CSIS’s activities. However, in other countries with the same system of government, special committees of parliamentarians with appropriate clearances have also been created with a review mandate. But they are undertaking review, not oversight.

Oversight is a very different thing. As it has developed in the United States, congressional oversight is a function of the strict separation of the executive and legislative branches and their fundamentally adversarial relationship. Oversight involves committees of the Senate and/or House of Representatives convening hearings, often while the activities in question are under way, to make political hay over activities being undertaken by the executive branch, particularly if it is dominated by politicians from a different party than the president.

In Canada, where the executive and legislative branches are effectively fused into one, the U.S. model of “oversight” is difficult to imagine. Although the doctrine of ministerial accountability has been severely weakened by the centralization of power in the Prime Minister’s Office (which predates Stephen Harper, although he has taken it to new heights), it is still the method by which we govern ourselves. It is ministers, accountable to Parliament, who oversee the development, approval and day-to-day implementation of policy, be it in the security sector or any other. Their actions can be reviewed, but an independent oversight body is not in keeping with our traditions of how we govern ourselves.

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None of this is to argue that the current debate is wrong. CSIS has grown significantly since 9/11, and been given new powers. SIRC has not kept up in terms of its resources and mandate. Other security agencies, such as the Communications Security Establishment and the RCMP have pathetically weak review mechanisms. The questions of whether SIRC should be beefed up, and whether CSE and the RCMP get new review mechanisms appropriate to their mandates, are serious ones that need to be discussed. And the issue of whether a special committee of parliamentarians, as exists in Britain and Australia, should be struck to undertake another level of review also requires careful thought.

But that discussion needs to proceed on an understanding that we are talking about review, not oversight. Failure to appreciate the critical difference between the two can lead to a misinformed debate and bad decisions.

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