Managing Continuity and Change: Legislating for Intelligence Agency Accountability

Abstract

While legislative oversight of intelligence agencies implies an ongoing process of scrutiny by democratically elected politicians, at its most fundamental level it also involves the passage of legislation to ensure that the existence and activities of intelligence agencies are grounded in law. As Born and Leigh observe:

Legislation is the legal embodiment of the democratic will. In most states, approving legislation (along with scrutinising government actions) is among the key roles of the parliament. It is therefore appropriate that in democracies where the rule of law prevails, intelligence and security agencies derive their existence and powers from legislation rather than exceptional powers such as the prerogative. (Born and Leigh, 2005, p. 17)

Providing intelligence agencies with a democratic mandate not only provides legitimacy, the process of securing parliamentary approval through the passage of legislation also allows democratically elected politicians the opportunity to debate an important area of state power and establish the nature and powers they wish it to wield. While the passage of legislation, without some ongoing process of scrutiny or review, is not sufficient on its own to ensure effective accountability, it is nevertheless an important first step.