Adopting the UK model won’t be enough for Ralph Goodale to address Canada’s spy oversight woes

Minister Goodale’s plan to adopt the UK’s model of spy agency oversight leaves a lot of key questions unanswered.

Canada’s federal government has been in power for 4 months, and their plans for strengthening oversight of spy agencies are starting to become clearer. Now, for Canadians weary of the long series of spy agency scandals, such oversight can’t come soon enough. But will the Liberals’ plans — currently being driven forward by Public Safety Minister Ralph Goodale — be sufficient to address this crucial issue?

There’s no doubt that Canadians want action. When OpenMedia consulted Canadians early last year as part of the groundwork for our crowdsourced pro-privacy action plan, insufficient oversight of spy agencies was a big concern.

Canadians told us they wanted “More transparency around government collection of private data”, with 81.8% of respondents wanting spy agencies to publicly disclose how many times they intercept our personal communications, and a whopping 87.9% wanting an independent body to oversee spy agencies and issue regular reports to the public.

These concerns are regularly reflected by our community members. Gabriel Matte spoke for many when he told us on Facebook that: “I don't believe that ANYBODY that is a law abiding citizen should ever be under surveillance from our government. This is a direct violation to our Charter of Rights and Freedoms period.”

So what are the Liberals planning, and will it be enough to address Canadians’ concerns? Let’s take as our starting point the Liberals’ 2015 election platform, which featured this key pledge:

At present, Parliament does not have oversight of our national security agencies, making Canada the sole nation among our Five Eyes allies whose elected officials cannot scrutinize security operations. This leaves the public uninformed and unrepresented on critical issues. We will create an all-party committee to monitor and oversee the operations of every government department and agency with national security responsibilities.

With the Liberals now settling into power, a number of things have become clear. Here’s the story so far:

• In early January, Jim Bronskill of the Canadian Press revealed that the Liberals plan “...to model its national security committee of parliamentarians after the one in Britain”. Minister Goodale told Bronskill that he was a fan of the U.K. system because of how it had “successfully kept secret information under wraps over the years”.

• In the same interview, Goodale stated that he wants Canada’s parliamentary oversight committee up-and-running before MPs head off for their summer break in June. Encouragingly, he noted he wants the committee to keep watch not just on spy agencies like the CSE and CSIS, but on up to a dozen federal bodies, including the Canadian Border Services Agency.

• Shortly thereafter, Goodale and MP David McGuinty (tapped to chair the new committee) visited the U.K. and other European nations to examine first hand their oversight committees.

• Since then, the pace appears to have slowed, with Goodale stating recently that he hopes to start the process of creating an oversight committee by March, but that “we haven’t really settled on a mechanism.”

With the U.K. model shaping up as a key factor in this debate, we decided to do some digging to see how well it matched up with the needs of Canadians. A number of major weaknesses of the U.K. approach rapidly became clear.

First and foremost, the British Parliament’s Intelligence and Security Committee (ISC) lacks independence in that it reports directly to the Prime Minister, rather than to Parliament. This is no mere technicality: when the ISC produces a report, for example, it goes straight to the Prime Minister, who then chooses when to publish it. So not only does the PM get advance notice of any criticism, he even gets to issue his government’s response on the same day as the ISC report gets published.

Secondly, the ISC has earned a reputation for taking the side of the spy agencies, often without any supporting evidence. As the New Statesman’s Clare Algar points out:

Despite its purported role in providing scrutiny and oversight of the intelligence services, it is in fact far more often a cheerleader than a watchdog. Worse still, it has completely missed the major scandals of the past decade, which it was meant to guard against.

A number of U.K. privacy and security experts and organizations, writing in their comprehensive Don’t Spy on Us report, back up this claim, stating that the ISC “has consistently, and sometimes very publicly, failed in its duty to challenge these [intelligence] agencies.”

Thirdly, the same report highlighted that the ISC is not appropriately funded, nor is it staffed with independent experts or an independent secretariat — meaning it simply doesn’t have the resources to perform its role effectively.

It’s not all bad news. As the Toronto Star points out, the ISC is empowered to provide near real-time “oversight”, not just after-the-fact “review” of spy agency actions. Recently, the ISC also sparked headlines after unexpectedly harshly criticizing the British government’s Snoopers’ Charter (for more on the Snoopers’ Charter, check out our Ruth Coustick-Deal’s take).

But given that the job of the ISC is to hold spy agencies accountable, it should hardly be earth-shattering news when the committee does speak up. The fact that so many news outlets focused on how the ISC’s criticism was out of character with its previously tame track record is a worrying sign.

Finally, we reached out to our friends at the U.K.’s Open Rights Group (ORG), who have an impressive record of speaking up to safeguard online privacy. Their Executive Director Jim Killock, confirmed our fears:

"When Edward Snowden revealed that the British intelligence services had created mass surveillance programmes without the permission of parliament, it became very clear that parliamentary oversight in the UK had failed. The Intelligence and Security Committee (ISC) appeared to not know about the extent of the programmes being built, but defended the agencies’ actions regardless.

"They were subsequently criticised for having too close a relationship with the very agencies that they were supposed to hold to account.

ORG has called for the ISC to be reformed so that it is independent and reports to Parliament not the Prime Minister. It needs to be better resourced and staffed with independent experts who can provide the legal and technical advice needed to understand the complex issues at stake. It also needs stronger legal powers so that it can compel the attendance of witnesses.

"More recently the ISC has shown more independence in its criticisms of a proposed new surveillance law, the draft Investigatory Powers Bill. This is welcome but reform is still needed if the Committee is truly to hold the agencies to account.”

Given all this, it’s very difficult to see how adopting the U.K.’s oversight model could suffice to meet the needs of Canadians. While almost anything would be better than the non-existent Parliamentary oversight we presently have, simply importing the U.K.’s system would still largely leave the Canadian public as “uninformed and unrepresented on critical issues” — to quote the Liberal election promise — as they were before.

It’s also worth emphasizing that Parliamentary oversight, while very important, is just one part of the picture. Professors Craig Forcese and Kent Roach, both highly-respected security experts, have warned that Parliamentary oversight, while welcome, won’t be sufficient to effectively keep tabs on the spy agencies. It’s clear from the key recommendations of our crowdsourced privacy action plan that there’s much to be done beyond just establishing a Parliamentary committee.

To be fair to Public Safety Minister Goodale, he has acknowledged we’ll need a unique oversight model tailored to Canada and designed to address what he called the “clear gaps and holes” in our current approach. He also stated that “you need several layers of oversight review… the Parliamentary component by itself would not be sufficient.”

Given the huge concern out there about Bill C-51, and the fact that hundreds of thousands of Canadians are speaking out, we hope Minister Goodale is listening. It’s also clear that the media is watching closely — both The Globe and Mail and the Toronto Star have editorialized in favour of stronger oversight in recent weeks. And with stories such as these continuing to break on a regular basis, it’s clear oversight is needed more than ever.

But we mustn’t be satisfied with half-measures, when it’s clear that genuine, robust oversight is what’s required. The more of us who speak up, the more likely it is that the government will take the real action required to fix our privacy deficit.

At OpenMedia we’ve got a number of plans up our sleeve to ensure your voice won’t be ignored. If you’d like to help, you can start by supporting the Protect our Privacy Coalition at OurPrivacy.ca, and by joining the discussion on Facebook and Twitter— we’ll make sure you’re the first to know of latest developments.