An imperative: control from within
Chancellery staff member nicely illustrates the issues
faced by all controllers.
The need to be selective when controlling
“We certainly often also became proactive. But we are,
of course, as you rightly point out, as an entity that conducts legality reviews with relatively few employees at
the Federal Chancellery trying to accompany a huge authority in terms of administrative and specialised control,
not in a position to follow all processes in all departments
down to the last detail. We always need and needed to
concentrate on key areas.”
Germany, Federal Parliament (Deutscher Bundestag) (2017b), p. 1243
[FRA translation]
In the Netherlands, the Minister of the Interior, the
Minister of Defence and the Minister of General Affairs
(the prime minister) are in charge of appointing the
coordinator for the intelligence services. The prime
minister instructs the coordinator, in agreement with the
Minister of the Interior and the Minister of Defence.223
The coordinator chairs a special committee on the
intelligence services composed of representatives of
relevant ministries.224 The heads of the services are
under obligation to cooperate with the coordinator.225
The Minister of Interior reports to parliament annually
regarding the work of the AIVD.226
In Belgium, the Minister of Justice appoints the head of
the service, officers to certain posts, and the internal
administrative control. The minister is also in charge of
the expenses and discipline of the services.227
The 2015 FRA report highlighted the executive’s
crucial role in authorising/approving surveillance
measures in most Member States. 228 In the United
Kingdom, officials in the Home Office and Foreign
Office scrutinise applications for warrants from their
agencies and obtain their own legal advice before
submitting advice on the applications to their Secretary
of State. In France, members of the executive other
than the president of the republic or prime minister
may also exercise control over the intelligence services.
Furthermore, a 2017 decree specifies that the heads of
the intelligence services communicate to the national
intelligence and fight against terrorism coordinator
the intelligence to be brought to the attention of the
223 The Netherlands, Act on the Intelligence and
Security Services 2017 (Wet op de inlichtingen- en
veiligheidsdiensten 2017) Art. 4.
224 Ibid. Art. 5.
225 Ibid. Art. 7.
226 Ibid. Art. 12
227 Belgium, Organic Law on intelligence and security services
(Loi organique du 30 Novembre 1998 des services de
renseignement et de sécurité), 30 November 1998, Arts. 4
and 5.
228 FRA (2015a), p. 32.
prime minister and the president of the republic. 229
The prime minister may hold the services accountable
via the Inspectorate of Intelligence Services, whose
members the prime minister may appoint from
among the personnel of existing inspectorates. This
body is in charge of monitoring, auditing, researching,
consulting, and assessing the intelligence services,
and reports back to the prime minister. 230 While the
inspectorate’s powers were extended recently, the
French parliamentary oversight committee is calling
for its further strengthening.231
FRA’s fieldwork included interviews with representatives
of executive control bodies in three Member States
(France, Germany, and Sweden). The interviewees
described their roles as involving ‘internal control
in the services’ – for example, that procedures and
provisions are implemented properly; supervisory
functions; acting as advisory to the government; and
coordinating the services – for example, facilitating
sharing of information between agencies and between
government and the services. The experts said that,
alongside their main supervisory role, they performed
audit or advisory functions. Some said that they
supplemented the general oversight system. They
noted that they addressed matters as directed by the
government, but also exercised their power to take up
specific matters on their own initiative.
“The strength of the [national] system is having an
independent person who says what is doable and what is
not, and the government which decides in fine.” (Expert body)
While executive control plays an intrinsic role and
should always be informed about the work of the
services, it may not have a strong interest in revealing
failures that occur due to the potential political costs.232
Therefore, for accountability mechanisms to provide
public reassurance, they must include independent
oversight, as well. Control led by the executive is in
fact a pre-condition for setting up efficient oversight
frameworks – as described in the following section.
229 France, Defence Code (Code de la défense),
Article R.* 1122-8-1.
230 France, Decree No. 2014–833 on the Inspectorate of
intelligence services (Décret n°2014–833 relatif à l'inspection
des services de renseignement), 24 July 2014. See also
France, DPR & CNCTR (2017), p. 24.
231 See also France, Adam, P., Parliamentary Delegation on
Intelligence (2017), p. 24.
232 Born, H. and Wills, A. (eds.) (2012), p. 10.
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