Intelligence and Security Services

Malcolm Rifkind Excerpts

Thursday 31st October 2013 Westminster Hall

[Mr Meacher]

That is perfectly true. The real issue is whether that justifies its being outside the system of accountability of the Houses of Parliament. In my submission, it does not. Safeguards might be required, but not the construction of a different type of Committee, whose Chair and members are appointed by the Prime Minister, to replace as and when he or she wishes, and which sits in private.

[Sir Malcolm Rifkind (Kensington) (Con)]

The right hon. Gentleman cannot get away with that. Is he completely unaware that the Parliament of which he is a Member passed legislation providing that from now on Parliament will have the last word on who is appointed to the Intelligence and Security Committee? If Parliament does not like the names recommended by the Prime Minister it can reject them, and continue to reject them until it is satisfied with the names brought forward.

[Mr Meacher]

The right hon. and learned Gentleman is correct, but the question is whether that is an effective way for the legislature to make the choice. It is all very well to say that there is a provision that will work if it is used diligently and systematically by the House. I submit that it is not, and that we need to change it.

--- Later in debate ---

[Sir Malcolm Rifkind (Kensington) (Con)]

These are serious matters, but may I start on a slightly lighter note? It has been reported today that Mr Snowden has obtained new employment in Moscow—this is quite true—on a Russian website. We have been told that which website it is could not be revealed on the grounds of security, so there is clearly a need for a Russian whistleblower, if not Mr Snowden.

In the time available, I will concentrate on two matters. The first is that the ISC is quite willing to be criticised, but I think that all its members would prefer to be criticised by people who have taken the trouble to find out what Parliament has approved in the past 12 months and how the new ISC has been constituted.

When the current Committee came into existence at the beginning of this Parliament, our first work was to review all the existing powers. We came to the conclusion that the original 1994 Act was out of date and needed to be replaced. We put a series of recommendations to the Government, who accepted 99% of them, and the Opposition were of a similar mind.

I remind right hon. and hon. Members, or those who are apparently not aware of them, of the fundamental changes that have been made. First, under the new legislation, we now report to Parliament, not to the Prime Minister. Secondly, as I have said, Parliament has the last word on who the Committee members are. Thirdly, contrary to the suggestion by the right hon. Member for Oldham West and Royton (Mr Meacher) that the Prime Minister should continue to appoint the Chairman, the Committee will in future choose the Chairman from among its own members. That is a big change.

My second point is that the powers have been transformed. For all the years since the Committee came into existence, we could not require intelligence agencies to give us information that they did not wish to provide. We could make requests, to which they often acceded, but we could not require them to do so. The new legislation requires them to respond and give us the information we seek.

Until now, the legislation did not even mention the most important part of agencies’ activities—their operations. Any Committee involvement in operations was incidental or at the request of the Prime Minister, or it was done voluntarily when agencies were willing to co-operate. Now we have not just the opportunity but the right to demand from the agencies all information regarding nationally significant operations, including retrospectively. They cannot refuse; it is our right.

The right hon. Gentleman and other critics may not be aware of this, and perhaps there is no reason why they should be, but I must tell them that one of the changes taking place—for example, in respect to our current inquiry on Woolwich—is that, although as part of our investigations the agencies normally sent us a report with such raw material or parts of their files as they thought appropriate, we now have the right, which we are exercising, to send our staff into GCHQ, MI5 or MI6 to look at files that are relevant to our investigation and they, not the agencies, decide what the Committee might want to see. To be fair to the agencies, we are doing so with their full co-operation. It is a cultural revolution in the agencies’ work to allow people who are not even part of their staff or involved in government into their building. That transformation in the Committee’s powers ought to be borne in mind by those who say that the present Committee—not the former one—does not have the powers to do the required job.

[Mr Meacher]

Will the right hon. and learned Gentleman explain why the Committee did not find out about the Tempora programme when it began to operate?

[Sir Malcolm Rifkind]

The right hon. Gentleman does not have the faintest idea whether the Committee was aware of programmes of any kind. We are given classified information, and the whole point of an independent Committee having access to top secret information, whatever that is, is that we do not announce what such information is. If he can devise a system whereby secret information can be made available to all law-abiding British citizens, without its being simultaneously made available to the rest of the world, I am interested in hearing about it, but I do not think that he is likely to meet that requirement.

In the short time available, I want to deal with the fundamental challenge mentioned by the hon. Member for Cambridge (Dr Huppert), who secured the debate, as well as by those who have supported him. Like others, they have said that we are living in a society in which, to use their term, there is “mass surveillance”. If that means anything, it is an accusation: the implication is that all our e-mails are or will be examined by GCHQ—as it chooses and by its own methods—as though something like that was now available. They seem totally to misunderstand or not to refer to the reality of what happens with modern technology, so in the brief time available, I will share with them what they ought to know. It is not secret, but is in the public domain.

Modern computers, which can indeed digest vast amounts of e-mails or communications data, are programmed to run using certain selectors, such as an e-mail address that might belong to a terrorist or some other information relating to terrorism. They are programmed to go through millions and millions of communications and to discard, without their having been looked at—no human eye looks at any of the e-mails—all those to which selectors are not attached.

Of the totality processed by computers, perhaps 0.01% will have selectors that the computer has been programmed to look for. The communications of the other 99.99%— covering virtually every citizen of this country, bar a very small number—are never even looked at by the computer, other than in relation to a selector, such as an e-mail address. Even for the tiny minority identified by the computers as potentially relevant to terrorism, if GCHQ, MI5 or MI6 want to read the content of any of the e-mails, they have to go to the Secretary of State for permission. Under the law, only if they are given permission can the content be read.

To say that we are living in a mass surveillance society is to make a wonderful allegation that sounds vaguely sinister, but the reality is that the e-mails of pretty well everyone in the Chamber are not being intercepted or read.

[Mr Watson]

rose—

[Mr George Howarth]

rose—

[Sir Malcolm Rifkind]

I am happy give way to the hon. Member for West Bromwich East (Mr Watson).

[Mr Watson]

I understand what the right hon. Gentleman is saying about algorithmic searches and the ability to obtain lifestyle information based on metadata, but the point is that the mass analysis of those data might identify patterns of behaviour that we do not know about and so give people leverage. It is the very use of such algorithmic search terms that raises people’s fears.

[Sir Malcolm Rifkind]

The hon. Gentleman’s point may be a very strong one with regard to matters unrelated to national security—for example, what companies do in sharing commercial data—but I must tell him that the intelligence agencies have far more important things to do than to look at patterns of behaviour, unless they are directly relevant to a terrorist threat or serious crime. That is their function and legal duty, and if they go beyond it, they are committing a crime—even if they had the time, which they do not have, or the inclination to do so.

I am not arguing that there are no legitimate issues for public debate; I am saying, as my hon. Friends have done, that there is a legitimate public debate. The Intelligence and Security Committee has already said that it will conduct an investigation into whether the three Acts—the Human Rights Act, RIPA and the Intelligence Services Act—remain appropriate, given the dramatic changes in technology over the past few years. We will do that work, as it is right to do, to identify whether, in our view, the balance between security and privacy is appropriate.

Unlike in the past, some of the inquiry’s sessions will be in public; they cannot all be, for obvious reasons. Unprecedentedly, we will have public evidence sessions so that everyone can be part of the debate. There has been a revolution in oversight, and right hon. and hon. Members should acknowledge and recognise that fact.

It is no coincidence that, as the technological capabilities available to not just the intelligence agencies but terrorists and criminals have expanded dramatically over the past 20 years, oversight has also expanded dramatically. I say without fear of contradiction that, with the one exception of the United States—it has intelligence oversight powers that are not exactly the same in detail as ours, but are comparable to them—no other country in the world, including democratic ones, has both substantial intelligence agencies and such a degree of oversight.

[Mr Watson]

Will the right hon. and learned Gentleman give way?

[Sir Malcolm Rifkind]

I am sorry, but I cannot at this stage.

Given our willingness to have our first public hearing with the intelligence chiefs next week in front of the cameras, plus other public sessions, as well as the new powers we are already exercising, I ask right hon. and hon. Members to test whether we use such powers properly. They should not say that we do not have those powers in the first place, because there is not a single new power that they have suggested should be given to the Intelligence and Security Committee that we do not now have.

[Dr Huppert]

Will the right hon. Gentleman give way?

[Sir Malcolm Rifkind]

I cannot, unfortunately.

Right hon. and hon. Members should by all means scrutinise whether we use the powers properly, but they should please do so on the basis of knowledge about the Act that Parliament approved within the past 12 months.

--- Later in debate ---

[James Brokenshire]

To be fair to the hon. Gentleman, he took part in the consideration of the Justice and Security Act 2013, although he did not make then a number of the points that he has made this afternoon. However, we need to be very careful to ensure that scrutiny does not seek to cut across into direct, ongoing operational activity. I am quite sure that, given the robustness of the new powers that the ISC itself will hold, that consideration is very much in the forefront of the minds of the Committee members.

[Sir Malcolm Rifkind]

In response to the perfectly reasonable issue raised by the hon. Member for Cambridge (Dr Huppert), I must say that this point was seized on by the ISC itself. We have completed discussions with the Government, the results of which will appear in a memorandum of understanding that will be published and include details of how these matters will be dealt with. That will ensure that that consideration cannot be used as an improper way of preventing the ISC from obtaining access to operations that—by any normal, common-sense approach—could be considered as completed.

[James Brokenshire]

It is also important to highlight that, at a political level, the intelligence agencies are ultimately accountable to the Prime Minister, but on a day-to-day basis it is Secretaries of State—primarily my right hon. Friends the Home Secretary and Foreign Secretary—who are responsible for balancing the need to protect national security and the need to fulfil their duty to protect the British public against the potential intrusion on individuals’ rights to privacy that could be caused by intelligence activity. I know from working alongside my right hon. Friend the Home Secretary how much attention she gives to that role.

The interception of communications commissioner also has such oversight in relation to that intelligence activity, and in taking decisions about whether to authorise the use of intrusive powers—for example, to intercept communications—he must be satisfied that such measures are legal, necessary, proportionate and carefully targeted.