Analysis: Pressure on new spy watchdog after five years of unrelenting oversight

New Inspector-General of Intelligence and Security Brendan Horsley. Photo / Supplied

There is a new Inspector-General of Intelligence and Security and it may be our spies are not off a hook on which they have uncomfortably dangled these recent years.

Deputy Solicitor-General Brendan Horsley has been appointed our new spies' watchdog, leaving the Crown Law Office to take over as IGIS 10 months after his predecessor, Cheryl Gwyn, left to become a High Court judge.

Horsley's path to the role comes after five years as Deputy Solicitor-General (Criminal), having previously been the establishing director of the Public Defence Service (PDS) and - prior to other roles - solicitor and Crown Prosecutor in Gisborne.

Gwyn held the role for five years and spent the entire period testing the boundaries of the role, placing the intelligence agencies under greater scrutiny than they have ever experienced.

She did so under new laws with expanded power and greater resources than previously afforded the role, care of the National Government's extensive reform of the intelligence community.

The degree of scrutiny was such that it caused discomfort inside the NZ Security Intelligence Service and Government Communications Security Bureau where some became concerned Gwyn's oversight was causing interference in active operations.

They will now be looking to Horsley and wondering whether the exceptional period of scrutiny endured under Gwyn will continue.

It may well. The prolonged appointment period is due - according to sources - to the need for Horsley to obtain the Top Secret Special security clearance needed for the role. It's an exhaustive and lengthy process, but the absence of an existing high-level clearance means Horsley would not be seen as an insider, or part of the wider intelligence clique, when he started work this month.

Former Inspector-General of Intelligence and Security Cheryl Gwyn. Photo / Mark Mitchell

How Horsley does that work will be the focus of intense fascination at Pipitea House, where our spies are based.

From a public perspective, the work of the enhanced IGIS office under Gwyn has been revelatory.

Today, New Zealanders know more than they have ever known about how its spy agencies operate and the purpose they are intended to serve.

We can also have greater faith than ever our intelligence agencies are operating in the way they are meant to - legally and proportionately. This confidence is a function of good oversight and a good oversight structure.

A large part of that is the way Gwyn went about her work, but also the remit she had to carry out that work through laws passed in 2013 and 2017. The changes followed bungling around entrepreneur-fugitive Kim Dotcom here and the heightened demand internationally for accountability after the disclosures of whistleblower Edward Snowden.

The Dotcom episode led to then-Prime Minister John Key sending in lawyer and then-Cabinet Secretary Rebecca Kitteridge to investigate. Her report offered an embarrassingly unflattering picture of the GCSB. Similar issues were found at the NZSIS after Kitteridge was appointed there as Director-General.

Over this period Key - who was minister of the agencies at the time - modernised our intelligence architecture from the top down, creating the National Security portfolio for the Prime Minister and devolving ministerial oversight for the agencies to Chris Finlayson QC. It saw huge funding boosts, not only for agencies that truly needed an overhaul but for the previously under-power and still, comparatively, underfunded Inspector-General's office.

Former Prime Minister Sir John Key overhauled the spy agencies and Chris Finlayson QC took on the role as their Minister. Photo / Mark Mitchell

With empowering legislation and an office (comparatively) better funded and staffed than her predecessors, Gwyn's time as IGIS saw inquiries of the like never seen in our intelligence community.

Gwyn's careful public reporting of matters that would once have stayed secret, and the unrelenting doggedness through which she pursued her oversight role, created tension between her office and the agencies.

There were signs of this when Gerry Brownlee spoke in Parliament during the speech in which Horsley's appointment was announced.

Brownlee said there was "concern" that the IGIS office had "almost put itself into a veto role when it comes to the issue of warrants and other such". It had developed to be less retrospective - that is, checking warrants issued and executed - and had taken on a "prospective approval process for some of the activities that our security services have to engage in".

"I think that's unfortunate," said Brownlee, adding that he did "hope that Mr Horsley has a good look at the operation that he inherits".

Having done so, said Brownlee, Horsley needed to "refer back to his legislation and to work with the directors of the two security agencies to ensure that they have their own confidence about being able to do the work that they are required to do on behalf of New Zealand".

This was an unusual steer from a politician to an independent statutory officer, particularly from a politician of Brownlee's acumen and experience.

The background is the clashes between the intelligence agencies and the Inspector-General's office. Some of these were revealed in Gwyn's reports, and many reflected the different views held by Gwyn and the respective agencies over what was allowed under the Intelligence and Security Act.

NZSIS director-general Rebecca Kitteridge with GCSB director-general Andrew Hampton. Photo / File

In a letter to the Herald, GCSB Director-General Andrew Hampton phrased it this way: "The Inspector-General provides rigorous oversight of authorisations issued to the GCSB. The Inspector-General has challenged the GCSB's views on some aspect of the [new law], and such differences of opinion are to be expected following the introduction of significant new legislation in the absence of case law for guidance."

That's very polite language. The way the relationship with the IGIS is described has had slightly different phrasing inside the protected confines of Pipitea House, where some felt Gwyn's willingness to pounce on a warrant and find issues with it is disruptive to their jobs.

When your job is New Zealand's national security, disruption is something to be taken seriously. The new IGIS will have to balance carefully those dire warnings from our spies with Gwyn's record of determined inquiry and disclosure. In the six years since Gwyn was appointed, the sky has yet to fall.

• David Fisher is a member of the Inspector-General's reference group - a collection of people from across the community with an interest in intelligence. No classified information is disclosed to the group, which was intended to provide alternative viewpoints that might inform the IGIS' work. The group is not paid and its meetings are reported on the IGIS website. It is yet to be decided whether the reference group will continue under the new Inspector-General.