Surveillance by intelligence services – Volume II: field perspectives and legal update
“It is rather difficult to talk about transparency in relation to
services whose effectiveness depends upon secrecy.”
(Parliamentary committee)
“The issue of transparency is discussed in connection with
an area of activity the very principle of which is a lack of
transparency, since classification of information as secret
puts a limit on transparency.” (Expert body)
“There is a lack of transparency on this issue, due in
particular to its degree of technical complexity, which is itself
heightened by the difficulty in accessing information, since
the intelligence services are not very communicative.”
(Civil society organisation)
While discussing transparency issues, many oversight
body representatives mentioned existing limitations for
transparency in the oversight of intelligence collection.
Some respondents believe the general culture of
secrecy around intelligence services interferes with
transparency, and that the lack of transparency is
inevitable. The limitations or lack of transparency are
related to a great variety of issues, such as technical
complexity, classification of information, level of secrecy
(‘the trade-off between transparency and secrecy’),
and restrictions and limitations defined by legislation,
which have to be respected. Some respondents said
that secrecy constraints serve as a tool to keep the
procedures implemented properly, e.g. observing
classification levels. Some interviewees believe that
transparency can nonetheless be maintained through
cooperation or communication between the different
institutions and public authorities that operate
in the area.
According to Born and Wills, useful elements for
achieving maximum transparency include availability
of information about the conduct of the oversight
bodies, regular reporting to a relevant authority and
occasional publication of special reports.350 Regarding
these key aspects, it is relevant whether the oversight
bodies have open sessions, whether their members
are allowed to comment on their findings, and
whether the body issues comprehensive, regular and
largely informative reports. At the same time, the
effectiveness of providing transparency will inevitably
depend on the powers of the oversight bodies, as that
will, among others, define the quality and quantity of
information they have access to in the first place. As
emphasised in FRA’s 2015 report, expert bodies’ ability
to publish public versions of periodic and investigation
reports is essential.351
350 Born, H. and Wills, A. (2012), p. 80.
351 FRA (2015a), p. 41.
88
The meetings of the Dutch CIVD are strictly confidential.
It publishes an annual report, addressed to the House
of Representatives, with information about the
number of meetings and the agenda items.352 The
report of the Intelligence and Security Committee of
the United Kingdom, whether annual or ad hoc, usually
contains redactions on security grounds suggested
by the services – but these must be justified, and
the committee has the final say.353 In a case of major
disagreement, the prime minister may exceptionally
insist on a redaction before a report is sent to parliament
(the redaction is reported).354 The ISC may also choose
to report privately to the prime minister if a national
security matter is exceptionally sensitive355 – an example
might be the handling of an ongoing espionage case.
Though members of the German Parliamentary Control
Panel are sworn to secrecy, they can comment publicly
on certain issues, as long as the decision to do so is
reached by two-thirds of its members.356 It reports to
the parliament twice during the legislature.357
FRA analysed some of the key features of the publicly
accessible reports prepared by expert bodies 358
(Annex 3) and parliamentary oversight committees
(Annex 4) in several Member States. A report’s length
can indicate the level of detail provided therein and
thus how transparency is observed. For example, in
2016, the Belgian Standing Committee I produced an
annual report of 131 pages. By contrast, the German
G10 Commission published a 10-page report. However,
some expert bodies publish separate reports on
specific investigations conducted and exclude this
information from their annual reports. It is also not
uncommon for parliamentary committees to prepare
ad hoc thematic reports, as is the case in the United
Kingdom359 and Italy.360
352 The Netherlands, House of Representatives (Tweede
Kamer der Staten Generaal) (2016), ‘Commissie voor de
Inlichtingen- en Veiligheidsdiensten’, Web page.
353 United Kingdom, Intelligence and Security Committee of
Parliament (ISC) (2015), p. iv (foreword).
354 United Kingdom, Justice and Security Act 2013, ss. 2 (3)
and 2 (4) of Part 1.
355 United Kingdom, House of Commons Library (2017), p. 6.
356 Germany, PKGrG, S. 10 (1). See Bartodziej, P. in Dietrich, J.-H.
and Eiffler, S. (eds) (2017), p. 1556 and following.
357 See Germany, Federal Parliament (Deutscher Bundestag)
(2016), the latest report covering November 2013 to
November 2015. See also de With, H. and Kathmann, E. (2011),
Policy Department C: Citizens’ Rights and Constitutional
Affairs, p. 218; Heumann, S. and Wetzling, T., Stiftung neue
Verantwortung (2014).
358 Excluding data protection authorities.
359 For example, see United Kingdom, Intelligence and Security
Committee of Parliament (2015).
360 For example, see Italy, COPASIR (2015), ‘Report on so-called
“Butterfly” and “Return” operations and on the affair
“Flamia”’ (‘Relazione sulle cosiddette operazioni “Farfalla”
e “Rientro” e sulla vicenda “Flamia”’), Rome, 12 March 2015.