European Parliament Study on Intelligence Oversight

The European Parliament's Civil Liberties, Justice and Home Affairs Committee released  this lengthy study today of oversight of national security and intelligence agencies by member states. Entitled "Parliamentary Oversight of Security and Intelligence Agencies in the European Union," it includes attachments submitted by national intelligence oversight bodies. The abstract reads as follows:

This study evaluates the oversight of national security and intelligence agencies by parliaments and specialised non-parliamentary oversight bodies, with a view to identifying good practices that can inform the European Parliament’s approach to strengthening the oversight of Europol, Eurojust, Frontex and, to a lesser extent, Sitcen. The study puts forward a series of detailed recommendations (including in the field of access to classified information) that are formulated on the basis of indepth assessments of: (1) the current functions and powers of these four bodies; (2) existing arrangements for the oversight of these bodies by the European Parliament, the Joint Supervisory Bodies and national parliaments; and (3) the legal and institutional frameworks for parliamentary and specialised oversight of security and intelligence agencies in EU Member States and other major democracies.

The Executive Summary alone is more than 20 pages, so I will content myself with posting only its introduction:

The European Parliament's Directorate-General for Internal Policies mandated the Geneva Centre for the Democratic Control of Armed Forces (DCAF) and the European Union Institute (EUI) to carry out a study on ‘parliamentary oversight of intelligence agencies in relevant EU Member States and other major democracies’. This study was expected to ‘identify democratic standards and best practice as well as a proper balance between the demands of secrecy and the need for scrutiny which can be used by the European Parliament (EP) when it sets up its own oversight body’. Following consultations with the EP’s Directorate General for Internal Policies, it was decided to interpret this mandate against the backdrop of four important trends and developments which have prompted a discussion on how the EP can strengthen oversight of the EU’s AFSJ agencies, as well as the European Union’s Situation Centre (Sitcen) which plays a role in the Area of Freedom Security and Justice (AFSJ):

(1) The Treaty of Lisbon gives the EP and national parliaments a mandate to strengthen their oversight of two AFSJ bodies: Europol and Eurojust. It explicitly provides for the new regulations on Europol and Eurojust to include provisions on parliamentary ‘scrutiny’ (in the case of Europol) and ‘evaluation’ (in the case of Eurojust). Within the next two years, the Commission will put forward proposals for these regulations; the EP will have the opportunity to ensure that this legislation includes appropriate provisions on parliamentary oversight. In addition, the fact that the Area of Freedom, Security and Justice is now subject to the standard legislative procedure means that the EP is now better placed to ensure that new or revised legal frameworks for the AFSJ agencies include provisions on parliamentary oversight. Indeed, it has already done so in a draft regulation on Frontex, which, at the time of writing, was under discussion.

(2) The EP may have some opportunities to address the work of Sitcen, which performs a number of functions pertaining to internal security, because it is now part of the European External Action Service (EEAS). While the EEAS (and thus Sitcen) falls under the Common Foreign and Security Policy (CFSP), which is an intergovernmental policy area, the Treaty of Lisbon gives the EP some new powers in this area.

(3) There have been important developments in the area of access to information, which are intrinsically linked to strengthening oversight of the AFSJ bodies. In 2010, the EP and Commission concluded a new inter-institutional agreement, which significantly improves the EP’s access to information from the Commission. In addition, the EP is currently considering the revision of the EU’s legislation on access to information, as well as the possibility of a new inter-institutional agreement with the Council, which would include provisions on parliamentary access to classified information. The trajectory of these ongoing discussions will have profound implications for the EP’s oversight of AFSJ bodies.

(4) More generally, over the past decade, the EP has developed a growing interest in both national security agencies and AFSJ bodies. This has been evidenced by its strong interest in the development of the new regulation on Frontex, the Europol and Eurojust decisions, as well as two temporary committees that examined the activities of national security agencies and made important recommendations in regard to oversight.

On the basis of this interpretation of the mandate, the primary aim of this study is to provide a comparative assessment of the oversight of intelligence agencies in European Union member states and other democracies, with the aim of identifying good practices that can inform the debate on strengthening oversight of the AFSJ bodies by the European Parliament. This study focuses on Europol, Frontex and Eurojust as well as Sitcen. Broadly speaking, the role of these AFSJ bodies is to facilitate, coordinate and strengthen cooperation between national authorities with the aim of promoting security and justice within the EU. Arguably the defining feature of the national intelligence agencies is their power to use what are known as ‘special powers’ to collect information, such as the powers to intercept communications, conduct covert surveillance, use secret informants, and even enter dwellings surreptitiously. The AFSJ bodies do not possess such powers, and when juxtaposed alongside this description, it is evident that the EU’s AFSJ bodies are not intelligence agencies in the way that they are conceptualised at the national level. In view of the fact the EP is interested in strengthening oversight of these bodies, a mandate to study and draw lessons from the oversight of national ‘intelligence agencies’ may appear to be an unusual choice. Nevertheless, the AFSJ bodies and national intelligence agencies share a number of characteristics. They perform ‘intelligence functions’ of national intelligence agencies, albeit not necessarily in the same way or for the same purpose. Notably, they collect (though without recourse to special powers), analyse and disseminate information to a range of decision makers. Another important similarity between the AFSJ bodies and national intelligence agencies is that they too receive, produce and disseminate classified information. This has important implications for oversight because overseers need access to classified information in order to scrutinise the work of agencies whose activities are ‘classified’ and/or entail the use of classified information, which is an area where the EP can learn much from national systems of oversight. We should, however, remain cautious about the ‘portability’ of oversight models and practices from the national to the EU level given that national overseers and the EP scrutinise agencies with very different mandates and powers. Oversight has to be understood in the context of the organisations which are being overseen. This study is comprised of five chapters. The first discusses the aims, mandate and methodology of the study. The second chapter provides an overview of the legal basis, mandate and current powers of Europol, Eurojust, Frontex and Sitcen, and identifies several areas of these bodies’ work that might raise concerns from the point of view of oversight. The third chapter anaylses the EP’s existing role and powers for overseeing the AFSJ bodies, as well as the scope of its access to information from (and pertaining to) these bodies. This chapter also examines the role of national parliaments in overseeing the AFSJ bodies, as well as the role of the Joint Supervisory Bodies (JSBs) of Europol and Eurojust in scrutinising these agencies’ use of personal data. Chapter four provides a detailed comparative assessment of how parliamentary and specialised non-parliamentary oversight is organised and carried out on a national level. This section will pay particular attention to access to information by parliamentary and non-parliamentary oversight bodies. The final chapter of the study outlines a series of options for consolidating and strengthening oversight of Europol, Eurojust, Frontex and Sitcen by the European Parliament. This executive summary will focus on providing an overview of this chapter, including its twenty-two recommendations to the European Parliament.