The Tribune

By Rashad Rolle

Tribune Staff Reporter

rrolle@tribunemedia.net

THE Organisation for Responsible Governance has raised concerns over the National Crime Intelligence Agency Bill that was passed in the House of Assembly last week.

The bill gives expansive powers to a secretive organisation that would conduct clandestine intelligence gathering activities.

Matt Aubry, executive director of ORG, said the government did not consult civil society on the bill even though it was publicly released in 2017. He said mechanisms that could ensure the law is not abused are non-existent. He agreed with some concerns Progressive Liberal Party leader Philip “Brave” Davis and Englerston MP Glenys Hanna Martin raised about the bill in the House of Assembly last week.

“I think there were a lot of really important points raised that were similar to concerns that civil society would have about this bill and many of those concerns are similar to pieces that are in other legislation which are quite common,” he said.

“Particularly, a bill like this that has an important component of secrecy in it, it is going to be very important that the mechanisms for accountability are clear, transparent and functional. When I look at the research related to balancing effectiveness of intelligence agencies and transparency, the balance is best struck when you have a very strong focus on enforcement of rule of law and effective bureaucrat methods. If these things are in place, then those that would make the bill ethical and above board tend to unfold. When there’s not a great history then you would want to make sure that those mechanisms are bolstered, not only in the bill itself but within mechanisms outside of it.”

When the Minnis administration tabled the National Intelligence Agency Bill in 2017, an Ombudsman Bill and an Integrity Commission Bill were tabled simultaneously. Mr Aubry said it is concerning those bills, which would enhance accountability, have not been debated and passed in the House while the Intelligence Agency bill, which has been amended since it was tabled in 2017, has been advanced to the Senate. 

“When they came out as a cluster it made sense at that point,” he said. “If you’re going to go forward with something concerning intelligence, you would have mechanisms like the independence of an integrity commission or the independence of a public ombudsman that can act as a voice of the people which would look out for their interests.

“When those three things came out at the same time, there was a sense that if they all come together you have to understand them in context of one another. Here we are now and we see that although this bill has moved forward, it’s going in place without anything that would bring accountability. Another concern we have related to timing is that the Freedom of Information Act is still not fully enacted. Through that process, the FOIA would’ve established an information commissioner and that commissioner was supposed to develop a means test which would allow him to discern what information could be brought forward related to public interest as well as what information would compromise national security.

“And if you have a bill like the National Crime Intelligence Agency come into play it would seem that almost by definition they’re going to define what is national security without the interplay and balance of an information commissioner who is by his charge looking out for access of information for the public. If all of these things were in play it would be a different environment. Without them this raises concerns. When dealing with legislation like this, you have to consider how functional it would be and also how it could be used to further the interests of an individual or an agenda and some of the elements that were raised related to the director taking directions from the minister and the minister being bound to Cabinet is concerning. That the review committee is encompassed entirely of parliamentarians which is a global standard is concerning as well because there’s no other mechanism in place to really oversee this. All of these things raise flags for us.”

Last week, Mr Davis said the NCIA Bill had elements which are “dangerous” and “unconstitutional”.

The bill calls into question the independence of the body and appears to leave the door open to political interference. This is seen in clause eight of the bill outlining that the director of the NCIA “shall be subject to the directions of the minister”.

It continues that the minister may from time to give general or specific directions to the director relating to the functions or exercise of the agency’s powers.

The NCIA Bill further gives the agency the authority to “use any force as is necessary and reasonable to achieve the objectives” of a search warrant. Contained in clause 28 of the bill, the provision brings into question who is able to quantify what is defined and reasonable and necessary and how this can be done.