How can states establish democratic oversight of their intelligence services? This publication from the Geneva Centre for the Democratic Control of Armed Forces, the Human Rights Centre of the University of Durham and the Norwegian Parliamentary Intelligence Oversight Committee presents legal standards and best practices for the oversight of intelligence agencies. The legal standards and best practices need to be developed at four levels of control: internal agency control, executive control, parliamentary oversight and independent oversight.
Democratic accountability of intelligence services requires executive control and parliamentary oversight, as well as inputs from civil society. The goal is for intelligence agencies to be responsive to the needs of the people through their elected representatives, while being insulated from political abuse. If intelligence agencies are to enjoy legitimacy they must be established by legislation and have the powers that they can exercise grounded in law.
Best practices for oversight of intelligence agencies include the following:
- The roles of agencies, the threats they are to deal with, their territorial competence and their tasks and powers should be clearly defined in legislation.
- Laws governing the use of special powers should be clear, specific and comprehensive, incorporating the principle of proportionality. There should be controls against misuse of special powers and supervision and review of agency actions.
- Legislation should limit the purposes for and circumstances in which information may be gathered, particularly on individuals, to the lawful purposes of the agency. There should be controls on the retention, use of and access to information.
- The minister should be legally responsible for policy and entitled to receive regular intelligence reports.
- All covert action must be approved by the executive according to a legal framework approved by parliament.
- Intelligence legislation should include safeguards against ministerial abuse and the politicisation of intelligence services.
- The mandate of a parliamentary oversight body should be clear and specific and matched by the body’s powers and resources. The entire intelligence community should be covered by the mandate of one or more parliamentary oversight bodies.
- The parliamentary oversight body should have the legal power to initiate investigations and unrestricted access to all information necessary for performing their duties.
- The parliamentary oversight body should report to parliament at least once yearly. Primary responsibility for the timing and form of the report and the decision to publish evidence should rest within the parliamentary committee.
- When resolving citizens’ grievances, as much of the process as possible should be open to the public and the complainant. The official or tribunal hearing a complaint should be able to make legally binding orders to remedy complaints.
- Review of the functions of intelligence agencies affecting individuals should be carried out by independent and impartial officials. Officials should have sufficient legal powers to carry out the review. The scope of review should be established in law.
