In the period since the terrorist attacks of September 11, 2001, the intelligence and security activities of many states have been underpinned by a fusion doctrine designed to break down the silos in which intelligence and security agencies operate. Increased cooperation and coordination of intelligence activities has become a feature of intelligence and security policy both within and often between states. Recent years have also seen the emergence of new agencies and structures to deal with the emerging threat from cyber technologies.
In many states the establishment of intelligence oversight bodies followed after, in some cases many years after, the creation of the intelligence agencies they were tasked with overseeing. There has been a similar lag in the evolution of those oversight structures to deal with the emergence of new agencies and practices. Oversight bodies have tended to remain siloed, locked into structures established in the 1990s or earlier, while cooperation between them has often been limited or actively discouraged. It is time for a more joined-up approach to intelligence oversight aimed at the establishment of more coordinated regulatory frameworks for the scrutiny of intelligence and security agencies.
Why does intelligence oversight matter?
Intelligence oversight is generally defined as a process of supervision designed to ensure that intelligence agencies do not break the law or abuse the rights of individuals at home or abroad. It also ensures that agencies are managed efficiently, and that money is spent properly and wisely. There is no one model of intelligence oversight. It does, of necessity, vary from country to country, and may be defined by a state’s history, constitutional and legal systems, and political culture. Existing studies of intelligence oversight have established the view that oversight takes place at different levels, carried out by a range of institutions and actors drawn from the executive, legislative and judicial branches of the state as well as civil society. At each level, oversight bodies are often seen as performing distinct and separate roles, as systems are designed to prevent overlap or duplication, and also to provide the compartmentalisation necessary to ensure security.
Patchwork or jigsaw: the risks of a fragmented approach to intelligence oversight
While the establishment of a range of bodies to scrutinise the work of intelligence agencies is generally seen to have enhanced intelligence agency accountability, the emergence of separate oversight bodies with discrete functions can lead to a fragmented approach which creates gaps in accountability. Just as new intelligence structures and practices have emerged to deal with new threats, the development of intelligence accountability in many states has been a dynamic process with new institutions or powers added to existing oversight structures over time. However, unless consideration has been given to dovetailing new oversight bodies into existing arrangements there is potential for accountability gaps to emerge with the resulting system of oversight more akin to a patchwork than a jigsaw.
Towards joined-up oversight
In the place of regulatory frameworks comprised of discrete oversight bodies with discrete and separate roles, a joined-up approach to intelligence agency accountability should provide for enhanced cooperation between oversight bodies with elements of both horizontal and vertical accountability. Horizontal accountability refers to cooperation between state institutions, such as parliamentary committees and judicial review bodies. This may involve dialogue and sharing of information on issues of mutual concern but might also include a legal duty to refer matters for investigation by different oversight bodies.
Vertical accountability refers to the hierarchical relationships between different accountability mechanisms and also takes account of scrutiny by non-state actors such as the media and civil society organisations. It is relatively commonplace for the executive to be able ask intelligence oversight bodies to conduct inquiries. So-called ‘referral reviews’ are the principal mechanism for initiating inquiries by the Australian parliamentary oversight committee and are a statutory function of the Canadian National Security and Intelligence Committee of Parliamentarians. It is less common for inquiries to be conducted in response to requests from lower levels of accountability but there is surely a role for parliamentary committees to operate in response the demands of concerned citizens, and in certain circumstance for parliament require the executive to take action.
Some of the most ambitious examples of joined-up oversight relate to the merging of functions between oversight bodies and also attempts at vertical accountability involving civil society actors. The UK for example recently combined the functions of three judicial commissioners responsible for overseeing the work of intelligence agencies and the police, into a single Investigatory Powers Commissioner’s Office, with enhanced powers and resources. This body is supported by an independent Technical Advisory Panel (TAP) which advises the commissioners and also government ministers on the impact of changes in technology on the exercise of investigatory powers. Membership of the TAP is drawn from civil society including university professors, and cyber security experts with experience in the private and NGO sectors.
Andrew Defty
Dr., Associate Professor of Politics
School of Social and Political Sciences
University of Lincoln
UK
