The secret services try again

Academics call for binding supervision of secret services

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DOSSIER: Government surveillance

There is much to do about the supervision of the secret services in the Netherlands. The Minister of the Interior asked academics from three universities to join forces and study the system of supervision of the secret services. That research is worth reading. The most important points are listed below.

Ex ante supervision: The TIB

The TIB is the supervisory body that assesses the Minister's permission to use very far-reaching powers in advance. The TIB's opinion is binding. If the TIB rejects the authorisation, the power may not be used. That makes it a powerful supervisor. And that's why it was a bit of a shock when the Evaluation Reporthere you can find the Evaluation Report of the Intelligence and Security Services Act 2017 of the Intelligence and Security Services Act 2017 made a recommendation to drastically curtail the powers of this supervisor. We are very happy to read that in this new advice, the professors go against that and recommend maintaining the current supervision by the TIB. In order to continue to meet the requirements of international case law, they even recommend strengthening this supervision.

Supervision ex durante and ex post: The CTIVD

The Review Committee on the Intelligence and Security Services (CTIVD) reviews the lawfulness of the tasks performed by the secret services both during and after the event. They may initiate their own investigations, write reports on them and make recommendations to the Minister. They have no binding powers, and so cannot interveneThis is an example that shows how this undermines the effectivity of the supervision if the secret services do not comply with the law. Nor is the Minister obliged to follow up the recommendations.

The line of European case law in recent years shows that the more untargeted the capabilities of the secret services, the higher the requirements in terms of supervision. In order to continue to meet these requirements, the Dutch supervisor should also be equipped with binding powers. This would give the supervisory authority the possibility to intervene in the ongoing work of the secret services if they do not comply with the rules.

It is questionable whether an effective system of supervision can exist without the supervisor having binding powers of intervention.

prof. dr. Paul Bovend'Eert, prof. dr. Rick Lawson en prof. dr. Heinrich Winter

Reading tip

In addition to the research conducted by these professors, the Ministry of the Interior also conducted an internal analysis of the case law of the European Court. What is striking is that the internal analysis only looks at the question of whether supervision currently meets the minimum requirements set. The approach of the external study is to meet these requirements in the long term. We believe that if you are going to change a law, you should do it properly straight away. That is why we recommend the external study to the Ministry. Then, in the run-up to the drafting of the new amendment Act to the Intelligence and Security Services Act 2017 (the dragnet Act), they can think about a supervisory system that is slightly higher than the lowest bar, and can therefore last a little longer.

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