Terrorist Attacks (Paris)

Malcolm Rifkind Excerpts

Wednesday 14th January 2015 Commons Chamber

[Mrs May]

First, I apologise to the shadow Home Secretary for her late receipt of the statement. I apologised to her privately when we came into the Chamber, but I am happy to reiterate that apology on the Floor of the House.

I join the right hon. Lady in paying tribute to our counter-terrorist police—and, indeed, all our police—and our security and intelligence agencies. We cannot say often enough that these people are working day and night to keep us safe and to protect us. For obvious reasons, as members of our security and intelligence agencies, many of them are unseen and unknown. We are grateful to them for the work they do, and we should publicly recognise their important role.

The right hon. Lady asked a number of questions covering a number of issues. On reviews, there is no suggestion, simply because a review was not mentioned in my statement, that we have in any way side-tracked it. David Anderson is doing his work. As far as I am aware, he is undertaking discussions with relevant parties about the issues that he is looking at. Alongside that, our own Intelligence and Security Committee is conducting its work on questions of privacy, civil liberties and security. I think that those key reviews will be brought before the House in time to enable it to take account of them when it does the necessary job of looking at least at the Data Retention and Investigatory Powers Act 2014, which is under a sunset clause to 2016. The House will obviously want to take account of all aspects of those two reviews.

The Government publish the number of people under TPIMs every quarter. On the question of whether somebody should be put on a TPIM, it is for the Security Service to initiate a request to me as Home Secretary. I of course look at the request, and if I agree to it, a court process is then gone through to ensure that such a decision is reasonable. As I say, it is for the Security Service to come forward with any such proposals.

The right hon. Lady asked about making Channel compulsory, and the Leader of the Opposition raised that during Prime Minister’s questions. We believe that Channel does important work, as does Prevent, which works with community groups. Decisions about whether individuals are put on a Channel programme should be taken case by case. We are very clear, as we have been in discussions on the Counter-Terrorism and Security Bill in relation to temporary exclusion orders—they will ensure that people return from Syria on our terms, where that is appropriate—that we may seek to take action of various sorts in relation to individuals in the UK, but that what is appropriate for the individual concerned has to be decided on a case-by-case basis.

On the question of firearms, it is for us to work with others in the European Union to consider the spread of firearms across European Union. As I said, the United Kingdom has some of the toughest gun laws, but major exercises have already been undertaken, primarily led by the National Crime Agency, to look at the availability of firearms in the UK. That process started before the terrible attacks took place in Paris.

On the draft Communications Data Bill, there is a difference of opinion among parties in the House about what powers should be taken by Government. We did in fact respond to the proposals from the Joint Committee, and we did in fact provide revised proposals in relation to the measures. I am clear, as is the Prime Minister, that we need to return to that issue. I believe that it is important to have the right powers available to deal with such matters.

Finally, the right hon. Lady asked whether we speak to those at the CST. Of course we do so regularly. I have had a number of meetings with them, and the police of course have meetings with them to discuss the whole question of what protective security is available. Protective security was stepped up when the threat level was raised, but it has now been stepped up further.

[Sir Malcolm Rifkind (Kensington) (Con)]

Various press reports have stated that the director general of MI5 called in his speech of 8 January for wide new powers of surveillance for the agencies. Will the Home Secretary confirm that that is not correct? In the speech, which my right hon. Friend and I attended in person, the director general expressed his main concern:

“Changes in the technology that people are using to communicate are making it harder for the Agencies to maintain the capability to intercept the communications of terrorists.”

Is not the prime requirement at present to ensure that the agencies can continue to exercise the capability they have enjoyed for a number of years but which, because of new technology, is increasingly denied them?

[Mrs May]

My right hon. and learned Friend is absolutely correct in his description of what the director general of MI5 said in the speech. It is unfortunate that people very often mix up some of the aspects of communications data and intercepts, and sometimes believe that the Government were trying, in the draft Communications Data Bill, to expand the powers of the agencies, which was not the case. Indeed, the director general of MI5 said:

“The ability to access communications data is likewise vital to our ability to protect our national security”,

and that

“unless we maintain this capability, our ability to protect the country will be eroded.”

The Bill was about maintaining that capability, and we and others, as evidenced by the quote, see that as so important.

Data Retention and Investigatory Powers Bill (Business of the House)

Malcolm Rifkind Excerpts

Tuesday 15th July 2014 Commons Chamber

[Sir Malcolm Rifkind (Kensington) (Con)]

I shall abide by your request, Mr Speaker, and make just two brief comments on the points that have been raised.

First, Members needs to take it into account that the House is presented with emergency legislation in two sets of circumstances. The first is when a Government seek to extend their powers in some area. In such circumstances, the House has every reason to be very sceptical and concerned that it is being done through the medium of emergency legislation. There would have to be really exceptional circumstances to justify new powers of a kind that had not been used before.

We are told today—the House must make a judgment about this—that this is a different kind of emergency legislation, which has been seen in the past. Following a legal judgment, something that was thought to be lawful has potentially ceased to be lawful. The legislation is therefore necessary in order to continue with the status quo. That is, of course, a very different matter.

The second point that I want to make, very briefly, is about the concern over why the legislation was not prepared two or three months ago. It is obvious that there are two reasons. First, there are regulations that were made under the European directive. There is now uncertainty over whether those regulations might be successfully challenged. We therefore need clarification right away. Secondly, it is desirable to have all-party support if possible, particularly because it is emergency legislation. That takes time in the real world, particularly given that the Opposition have, quite reasonably, asked for additional announcements to be made in this area that are not specific to the legislation, but are relevant to it. Those factors point to why this process is not as unreasonable as it might otherwise sound.

[Mr Speaker]

Order. The right hon. and learned Member for Kensington (Sir Malcolm Rifkind) has just offered a tutorial in succinctness. I hope that he had a significant number of attentive students.

Data Retention and Investigatory Powers Bill

Malcolm Rifkind Excerpts

Tuesday 15th July 2014 Commons Chamber

[Sir Malcolm Rifkind (Kensington) (Con)]

I begin by paying tribute to the shadow Home Secretary and the Opposition for deciding to give their full support to this measure. It is always reassuring to the nation as a whole when political parties come together—we do not do it very often—on an issue of national security. Especially with emergency legislation, that has a powerful and beneficial impact, and reassures many members of the public who might otherwise be concerned.

The Intelligence and Security Committee has considered the Bill, and we have taken evidence from the intelligence agencies on its content. If we were concerned in any way that the Bill simply added to the powers available to the Government and that they were using a fast-track procedure to implement it, we would not be able to recommend its endorsement, but we are satisfied that that is not the case.

I have listened carefully to some of the comments by those on both sides of the House who are opposed to the Bill and have criticised it. Part of the argument is that it is shocking that, when the European Court of Justice has repudiated the directive, we should defy that decision. They have not taken the trouble to read properly what the Court said. It was clear. It did not oppose the retention of data under national laws based on the directive. I shall quote the judgment:

“the retention of data for the purpose of their possible transmission to the competent national authorities genuinely satisfies an objective of general interest, namely the fight against serious crime and, ultimately, public security.”

The Court’s objection—it was an understandable point—was that the directive contained insufficient proportionality and safeguards. The directive covers 28 countries, and some of them did not have previous legislation or experience in this area and simply implemented everything that the European directive seemed to permit them to do. However, as the shadow Home Secretary rightly said, that has not been the practice in the United Kingdom. Most of our safeguards had already been introduced, and continue to apply.

Let me remind those who have criticised the proposal what the safeguards include, which are far broader than the narrow approach of the directive. First, for any intelligence agency to use the powers, it has to satisfy not just itself but the Secretary of State and Parliament that to do so is in the interests of national security, fighting serious crime or protecting economic well-being, which is linked to national security. If it does not meet that requirement, the agency cannot use the powers in the first place.

Secondly, the European Court directive allowed data to be retained for up to two years. In the United Kingdom it has never been retained for two years; a maximum of a year is allowed. That is a considerable improvement. Many countries do not have the system that we already have of the interception of communications commissioner, who is able to examine the use of the powers and report both to Parliament and to the Secretary of State if he thinks that they are being used in a disproportionate way or not for the purpose that Parliament intended.

It is therefore an important consideration that the United Kingdom happens to have this experience and has used the powers in a proper and responsible way—we are not the only country, but it does not apply to all 28 members of the EU.

[Caroline Lucas]

The right hon. and learned Gentleman cites the interception of communications commissioner as some kind of safeguard, but is he aware that the commissioner has recently ruled that there has been

“significant institutional overuse of existing powers”?

That same commissioner is already warning us.

[Sir Malcolm Rifkind]

We will have to see the context in which the commissioner made that remark, but I have read his report and he gives a clean bill of health to the intelligence agencies on communications data, which is what we are talking about here. He has answered many of the criticisms that have been made elsewhere and said that they are unfounded and unjustified. I am sure that the hon. Lady has read that report. Perhaps she should re-read it and then she will remember the point that she momentarily forgot when she intervened.

The other important part of the Bill relates to questions of extraterritoriality. This is a difficult and sensitive issue, because obviously many communications service providers are not UK companies and would be reluctant or might refuse to recognise any restrictions imposed on them. I shall read out one sentence from the explanatory notes that have been prepared for the benefit of the House on this part of the Bill, which explains why this is an important and justifiable provision. The explanatory notes state on page 4:

“While RIPA has always had implicit extraterritorial effect”—

the Government themselves have said that it is extraterritorial—

“some companies based outside the United Kingdom, including some of the largest communications providers in the market, have questioned whether the legislation applies to them. These companies argue that they will only comply with requests where there is a clear obligation in law.”

In other words, up till now it has been implicit that the legislation is extraterritorial—that has certainly been the Government’s view—but that has never been spelled out explicitly. That is what the Bill now seeks to rectify, and we are told in the explanatory notes that some of the communications providers based outside the United Kingdom have said that that is what they are looking for. If it is an explicit obligation, they will be willing to comply with it. If it is not, they will have to consider whether they wish to do so or not.

There will be other providers which, even with that explicit statement, still decline to co-operate. Our Government have to decide what they will do to try to change that situation, because it is a very unsatisfactory one. We are talking about companies that operate within the United Kingdom. We are not talking about what they are doing in America, France, Germany or other countries. They should co-operate in the way that United Kingdom companies co-operate and in a way in which some overseas companies are prepared to co-operate. They recognise the public interest, and they recognise the need for these provisions in the battle against serious crime in particular, not to mention terrorism and such matters.

The House and the public can be reassured that what is in the Bill is not what we have been told is in it. Its purpose is to maintain the current situation. To oppose the Bill would create an enormous risk, if indeed the provisions, which are currently in regulations, were challenged before the courts and were then struck down. Therefore I certainly and, I think, my colleagues on the Intelligence and Security Committee, recommend these provisions to the House.

--- Later in debate ---

[Mr Jack Straw (Blackburn) (Lab)]

I am glad to follow the hon. Member for Dewsbury (Simon Reevell), because although none of us remotely underestimates the difficulty of finding a proper balance between liberty and security—some might come down in different places on that—I say with respect to those who are criticising the data retention practice in the United Kingdom, rather than the policy of the EU, which is greater, that there is a fundamental logical fallacy in what they are arguing, as the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) exposed powerfully. It is this: where there is a suspect for a crime, it is for a crime that has been committed in the past. The police will not know who that suspect is until they come to the police’s attention, at which point they have to get historical evidence. These days, part of that historical evidence will be in data records. They have to be able to access everybody’s data records in order to find those of one particular person, because the police, no more than the rest of us, are not given powers of clairvoyance with which to anticipate who is and who is not to be a suspect. Unless or until I hear from opponents of this Bill and of data retention how the police can be expected to identify in advance those who are going to be suspected of crime, I have to say that the whole logical basis of their argument completely falls away.

I always listen with interest to the right hon. Member for Haltemprice and Howden (Mr Davis). Indeed, there are areas where I have been in concert, if not conspiracy, with him. I think I am correct in saying that he said that Parliament has been a weak defender of our liberties in this field over the past 20 years. With respect, I beg to differ. Forty years ago, almost to this month, after six hours of questioning by former police officers as part of my security vetting procedure, I was interviewed by a senior officer of the Security Service. He explained to me that a file had been kept on my family since at least since 1961, when I was 15 and my sister, who was the subject of one of the original reports, was 17. In order to identify a discrepancy that had arisen between what I had said and what they thought they knew, he had to show me my file—a big, thick manila file was produced. He went on to question me as to what contact I had had as president of the National Union of Students at the end of the 1960s and the early ’70s with the student national organiser of the Communist party. I said that I had met this man from time to time at a pub in Covent Garden. “Oh yes,” he said, “You met that man at the Sussex Arms in Covent Garden on these dates, and this is what you discussed.” I mentioned that in my book and it is a great tribute to the modern Security Service that it and the Cabinet Office approved of my relaying of the story.

At that stage, however, we were in the area of the secret state. There was no parliamentary oversight whatsoever of the intelligence or security agencies. The telephone tapping that happened to me and my family was the subject of no statutory warrant whatsoever. The past 30 years have seen this House progressively doing its duty by the citizen—from the Telecommunications Act 1984 and the Intelligence Services Act 1994 through to, I am proud to say, the Human Rights Act 1998 and the Regulation of Investigatory Powers Act 2000—to ensure that the necessary powers of the state to detect and prevent crime and to secure national safety are the subject of proper controls.

Of course, as technology changes, the law should take account of it—both sides of the House are agreed on that—but RIPA was a huge advance in terms of human rights, and that was how I introduced it to the House back in 2000. It is simply a matter of record that that Act applied overseas and there has been dispute subsequently about its exact wording. That is all that is being corrected by this Bill and I defy anybody to challenge that.

There is one area in which this Bill will, indeed, change the law. Clause 3 will change the basis for obtaining a warrant for intercept on grounds of economic well-being. At the moment, in RIPA, economic well-being is the sole criterion without condition. In future, it will be subject to the interests of national security.

[Sir Malcolm Rifkind]

The right hon. Gentleman may be unaware that there has been a European directive since the late 1990s that links economic well-being to national security issues. It has been implemented in the United Kingdom through a code of practice, which is unsatisfactory, and it is that code of practice that will now appear as primary legislation.

[Mr Straw]

I am aware of that, but the right hon. and learned Gentleman will be the first to accept that there is a world of difference between something in a code and something in a Bill. I note that not one critic can find the words to commend the fact that this Government, with support from the Opposition, are going to strengthen provisions, rather than diminish them.

As the right hon. and learned Gentleman has generously given me an extra few seconds, I will also address data records. Before the Telecommunications Act 1984 and the Intelligence Services Act 1994, data communications of all sorts were collected without any statutory control. That, too, has been the subject of repeated strengthening of the law, to protect the citizen. I hope this House will pass this sensible, necessary and very modest measure.

Communications Data and Interception

Malcolm Rifkind Excerpts

Thursday 10th July 2014 Commons Chamber

[Mrs May]

I thank the right hon. Lady for the support she has shown for the emergency legislation and I am grateful for the recognition across the House that we need to ensure that our security and intelligence agencies, and our police and law enforcement agencies, have available to them the powers they need to be able to do the job we all want them to do in catching criminals, preventing terrorism and catching terrorists. There is also a recognition that, as we have said, and as the sunset clause shows, this is meeting a gap now; it is ensuring that those bodies have the capabilities they have until now been able to rely on and that those are able to continue in the face of the legal challenges that have arisen.

The right hon. Lady made a number of points. First, on the timing, the European Court of Justice judgment did indeed come in April, and, obviously, we have been spending quite a time since then looking at the most appropriate way to respond. But to any Members of the House who think it would have been possible to put these changes into normal legislation—into another Bill that is going through the House or into a separate Bill that was not fast-tracked—I say that that timetable was not available to us; it was always going to be necessary for this to be fast-tracked legislation in order to ensure that those capabilities are retained.

The right hon. Lady mentioned Select Committees wanting to be able to look at this measure. The Prime Minister, the Deputy Prime Minister and I briefed six Select Committee Chairmen yesterday, and today I am publishing a draft version of the Bill. The Bill will be formally introduced on Monday, but I thought it was appropriate to publish it in draft today, as that gives that little bit of extra time for people to be able to look at it. As I have said, I am aiming to make the maximum amount of background supporting information—the regulatory impact assessments and so forth—available to Members of the House, so that people have as much opportunity as possible within the short timetable to be able to look at the various issues.

The right hon. Lady asked whether there was any narrowing in the scope of the powers. The Bill makes something absolutely clear in relation to the issues of intercept. There have always been three areas of scope—national security, serious crime and economic well-being—and the Bill clarifies that economic well-being is there in the context of national security. Just for the avoidance of doubt, the Bill makes it clear that that is the context in which that has been used; it is related back to national security.

The right hon. Lady raised a point about the ISC and its chairmanship. Of course, the House has relatively recently debated the ISC’s structure and its relationship with Parliament. She has raised a specific point about the chairmanship and where that person should be drawn from, and I recognise the strength of view that she and the Opposition have on the matter. Hers is not a policy that we have, but it is open to the House to debate these matters should Members wish to do so.

Finally, let me deal with the review that is to take place. The right hon. Lady made a number of points about that, referring to it as a RIPA review. I should be absolutely clear with the House that it is not just a review that will look at RIPA and ask whether we need to tweak that; as I said, the review will look at the interception and communications data powers we need, as well as the way in which those powers and capabilities are regulated in the context of the threats that we face. That is important because we know that there are new challenges, through new technology, to our capabilities, and the threat context that we face is developing. RIPA came through in 2000 and we would want any legislative changes that the Government make after the next election to stand the test of a reasonable amount of time; we would not want to have to keep coming back to them. That is why this review has to be that wider review about the powers we need against the threat context we have and about the legislative and regulatory framework in which those powers and capabilities are regulated.

The right hon. Lady mentioned the proposal that David Anderson should undertake this review, and I am pleased to say to the House that I have been able to speak to him this morning and that he is willing to undertake it. I think that is very good, given his expertise and his knowledge and understanding of these issues. He and I have been very clear in our conversation. We have not yet been in a position to sit down and discuss terms of reference and the resources he would need, but I am absolutely clear, given the nature of the review that I have just set out, that we need to make sure we get the terms of reference right and that he has the resources and support necessary to be able to do the job that I think everybody across this House wants him to do.

[Sir Malcolm Rifkind (Kensington) (Con)]

Is it not important for the House to take into account that the European Court made it clear that it recognises that there may indeed be a need for such a European directive but that it is concerned that the current directive is not consistent with Human Rights Act requirements and so forth? In so far as the Government have given a clear pledge that the Bill will be drafted to meet those concerns about safeguards and human rights considerations, the Intelligence and Security Committee warmly welcomes the proposal. So far as the other measures in the Bill are concerned, the Committee will be taking evidence from the intelligence agencies on the interception warrant issues and related matters, and we hope to be in a position to advise the House when it considers the Bill on Second Reading next week.

[Mrs May]

I am grateful to my right hon. and learned Friend for his comments. He is absolutely right that the Court made it clear in its judgment that retaining those data could be necessary. The question was about the regulatory framework in which the data are retained and whether the methods and various aspects of access to the data were proportionate. I am grateful to him and to all members of the ISC for the work they continue to do on these issues. It is worth noting that the work of the ISC is important for the House and for the wider public, albeit that much of that work, by definition, is never seen or heard because of the matters that it addresses. The Committee plays an important role.

My right hon. and learned Friend mentioned the criticisms raised in the ECJ judgment, and there were four key areas of criticism, on scope, duration, access and storage. We are addressing all those criticisms, in so far as it is necessary to do so over and above the regulations that we have in place. As I indicated in my statement, our current framework already addresses some of the issues that the ECJ raised.

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.

Justice and Security Bill [Lords]

Malcolm Rifkind Excerpts

Thursday 7th March 2013 Commons Chamber

[Steve Baker]

I am grateful to the right hon. Gentleman for giving his opinion, and I do not mean any slight against him personally, of course, but before addressing that specific point I would like to talk about the experience the House has had since Select Committee Chairs have been elected.

The second reason why the ISC needs reform is that its independence has been compromised by its ties to the Executive. In recent years, a string of appointees have come out of Government to chair the Committee, only to return to the Front Bench afterwards. Until the June 2009 reshuffle, all of the preceding three Chairmen of the Committee went straight back into senior Government posts. They were Ann Taylor, now Baroness Taylor of Bolton, and the right hon. Members for Torfaen (Paul Murphy) and for Derby South (Margaret Beckett).

Despite Standing Order No. 152E, introduced under the previous Prime Minister, Kim Howells was appointed as Chair by that Prime Minister in October 2008 without the involvement of the Committee of Selection. Experience of Government is no doubt valuable, but the revolving door between the chairmanship of the ISC and the Government should be blocked. It is damaging to the Committee’s credibility.

[Sir Malcolm Rifkind (Kensington) (Con)]

I am grateful to my hon. Friend for giving way, especially as I must apologise because I will not be able to attend much of this debate as I have to travel overseas.

I put it to my hon. Friend that the point he makes is already met by the reforms in the Bill, because in future not only will the House of Commons have to approve any member of the Committee and be able to reject recommendations from the Prime Minister, but the Chairman will be elected by the Committee members from among themselves, who in turn will have been approved by the House of Commons. It was the Prime Minister who appointed me and all my predecessors; that is the current situation, but he will no longer have that power.

[Steve Baker]

My right hon. and learned Friend accurately reflects the Bill’s contents, but as I shall explain later, I do not think it is right that the Chair should be elected by the nominated members of the Committee approved by the House. I think the Chair should be elected by the whole House under secret ballot.

--- Later in debate ---

[Steve Baker]

Since my hon. Friend has brought me on to this territory early, let me deal with these points now, first by saying to my right hon. and learned Friend that I well remember the month when he became Secretary of State for Defence, because it was when I graduated from initial officer training. I am very well aware of his august experience and the extent to which it exceeds my own. I am also well aware that my hon. Friend is a man of great character and integrity and personal courage. This is not really the issue, however. The issue is the institutional arrangements we put in place not necessarily to constrain my right hon. and learned Friend and my hon. Friend, but to ensure the Committee is credible both now and in future.

[Sir Malcolm Rifkind]

I want to be clear about my hon. Friend’s position. Is he concerned that, as on previous occasions, I might be asked to rejoin the Government in the near future? If so, I would be grateful if he would share any relevant information with me.

--- Later in debate ---

[Steve Baker]

I certainly agree with my hon. Friend on that point, but that is why the amendment is phrased in the way that it is. It does not seek that individual members of the Committee should be elected; that is a compromise that those who introduced it have agreed to. There is agreement that Committee members should be nominated by the Prime Minister and approved by the House, as the Government have proposed. The crucial distinction is that the Chairman, who is the key figure of the Committee, should be elected by secret ballot of the whole House and that that Chairman should have been previously agreed to by formal consent of the Prime Minister in writing, which gives the Prime Minister and the security establishment the opportunity to exclude any Member who might not be an appropriate person.

[Sir Malcolm Rifkind]

Has my hon. Friend taken on board the ultimate argument against his amendment—that is, the invidious position in which it would put the Prime Minister of the day? If someone has sought to stand as candidate for the Chair and the Prime Minister has refused to give his consent, that is not a private matter. That would become a public matter and the Prime Minister would either have to refuse to give his reasons or, if he did give his reasons, those might be very damaging to the reputation of the individual Member concerned. When the ISC considered this question, as we did when we were putting forward our original proposals to the Government, we rejected that idea precisely because it would put the Prime Minister in an invidious position that he could not be expected to carry out without creating much greater problems.

[Steve Baker]

I recognise that my right hon. and learned Friend is advancing that argument with the best possible intention, but we live in a time when, because of terrorism and the fear of terrorism in particular—to pre-empt my concluding remarks—there has been an encroachment on our fundamental principles of liberty and justice, which we see elsewhere in the Bill. It is in that context that we must make sure that the security services are held properly to account in a transparent and credible way.

Here is the crucial point: in other Select Committees, transparency can do the heavy lifting, but as has been mentioned, transparency is not available in relation to the ISC. Precisely because of that, we need an elected Chair. I appreciate that the Prime Minister might find himself in a position where he had to reject a candidate in advance of their election, but that is surely a better option than going forward with a Committee whose independence from prime ministerial patronage can be questioned. I appreciate that the Prime Minister might have to engage in some politics on this issue, but that is after all his job.

Intelligence and Security Committee

Malcolm Rifkind Excerpts

Monday 21st November 2011 Commons Chamber

[Sir Malcolm Rifkind (Kensington) (Con)]

I am privileged, as Chairman of the Intelligence and Security Committee, to introduce this debate on not only the Committee’s annual report but the work of our intelligence agencies over the past year. It has been a particularly interesting year, in which we have seen a sea change in our intelligence agencies and the role that they play in the public debate of the nation: not only has the Justice and Security Green Paper been published by the Government, but only last week the Foreign Secretary, for the first time in our history, gave a lecture on the record—a public lecture—on the role of intelligence in foreign policy; over the past few months, the heads of the various intelligence agencies—the Secret Intelligence Service, the Security Service and GCHQ—have either given lectures or been interviewed on television or in the press about the work of their agencies and the role of intelligence; and the Intelligence and Security Committee has said in its annual report that we look forward to having, at least on one or two occasions, public sittings, for the first time in the history of the Committee, and we know that the Government see that to be appropriate. The fundamental reforms that we will be discussing today on the nature of the Intelligence and Security Committee and on the wider question of intelligence oversight mark a fundamental departure from the practices of the past.

Some might be entitled to ask, “Does this mean that secrecy is not as important as it used to be?” They might suggest that our secret services do not have to be as secret and that the secrets themselves do not require the same protection. Anyone who had that view would need correcting quickly and comprehensively. Of course there are secrets, and the basic role of these agencies is to carry out secret activities on behalf the nation as a whole.

[Keith Vaz (Leicester East) (Lab)]

I welcome what the right hon. and learned Gentleman has said about this important matter. When the Select Committee on Home Affairs has sought evidence from the head of MI5 in the past, we have had to travel to its headquarters for a private briefing, sometimes with darkened windows. I welcome what he said about the fact that the heads of those agencies will be giving evidence to his Committee in public so that they can be cross-examined. Does he know when the first such sitting might be?

[Sir Malcolm Rifkind]

The heads of the agencies have been travelling to the Intelligence and Security Committee to give evidence—albeit in secret, not in public—for a good number of years, so precedent is not being broken. Some thought is being given to holding public sessions, and I certainly hope that will prove possible over the next few months. I cannot give an absolute commitment to that effect, but it is certainly what I would expect.

The nature of secret operations remains as crucial as ever. A much more mature approach is being taken to what Britain needs to remain secret and what is a legitimate question of public debate, even if the intelligence agencies are involved. When I first entered this House, and right up until the 1990s, the very existence of the intelligence agencies was never officially declared or admitted and those who led the agencies were very private figures whose identities were never revealed. Much has changed since enactment of the Intelligence Services Act 1994, but to this day some aspects of that approach remain very much in our eye. The question that must be asked is whether that is acceptable in a modern society. We have three intelligence agencies that collectively receive some £2 billion of taxpayers’ money each year. That is serious money that inevitably needs not only private scrutiny but a degree of public scrutiny, too.

Secondly, the very fact that they are secret agencies in an open society means that there is a need for Parliament and the public to take a serious interest not only in the private but, where possible, in the public way in which the agencies operate. Of course, there is a third consideration, which is that as the very activities of the agencies involve the power to intercept communications or carry out operations that, without the authority of a Secretary of State, would be unlawful, they have a privilege that is not available to the rest of the community. If one thinks that this debate is taking place in the middle of a hacking inquiry when exactly that kind of interception was carried out by those who did not have lawful authority, one can see a clear illustration of why the needs of the agencies should be subject to a degree of transparency.

[Mr David Winnick (Walsall North) (Lab)]

The Chair of the Committee mentioned that before 1994, there was no debate—or at least no acceptance and acknowledgment by the Government of the day—of the security services. Does he accept that during the 1980s some of us pressed for parliamentary scrutiny and used every opportunity in debates to say that there should be such scrutiny by Members of Parliament?

[Sir Malcolm Rifkind]

I not only acknowledge that but can say that both the activity of the hon. Gentleman and many representations from other hon. Members and those outside this House led in the 1990s to the Government changing the situation. I was Defence Secretary at the time and was involved in the discussions within Government that led to the 1994 Act, which set up for the first time the independent oversight machinery. We are now trying to discuss and consider the radical modernisation of that machinery, which has existed since 1994.

It is worth also making the general point that at the end of the cold war there was a debate about whether we still needed intelligence agencies and whether they needed the funding, powers and resources they had been allocated during the cold war. The famous phrase about its being the end of history was quoted at that time. I have always been sceptical of that phrase; I prefer an alternative view, which is that as one door closes another slams in your face.

[Mark Field (Cities of London and Westminster) (Con)]

Although we accept that some radical change is clearly overdue, which will, we hope, be put in place, and accept that the change will be fluid because of the fluid international world in which we live, will my right hon. and learned Friend reiterate the importance of remembering that there will always be a need for certain information to remain secret? We do not want to throw everything out with the bathwater. There will always be a need for certain things to remain secret, even within this transparent 24/7 media world.

[Sir Malcolm Rifkind]

Yes, there are crucial requirements and anyone will understand why that is the case. The identity of intelligence officers can never be revealed. If it were, not only would they not be able to carry out their proper responsibilities but their very physical safety would be in danger. Intelligence operations and the ways in which intelligence is obtained, processed and dealt with should not become public knowledge. If they were, they would be available to our enemies and would cease to be available in that way in future. There would be no benefit in having intelligence agencies unless that fundamental secrecy applied—that covers all the areas that are relevant to the operational work they do and the benefits they provide for our society.

In the years since the end of the cold war, we have had the 7/7 bombings in London, which were very traumatic. Those terrible actions led to some deep soul-searching within the security and intelligence agencies. The perpetrators were British citizens who had been born in this country, but the agencies had not anticipated that event. In addition, there are problems with nuclear proliferation and cyber attacks, which might be aimed at Governments but cover a wide range of economic intelligence that is sought by foreign Governments and industrial interests. That is a matter of great significance.

Those new demands led the intelligence agencies to operate rather differently, which is a welcome development. The most significant point is that the intelligence agencies now work together far more than ever before. If one went to GCHQ on any day of the week one would probably find officials from the Secret Intelligence Service who had been seconded there for a significant period. The same would apply to the SIS and to each of the agencies in reverse. That is happening not because of some doctrinal view but because of the practical requirements of getting the best use of intelligence in this modern world and ensuring maximum public benefit. It is not too dissimilar to the way in which the Navy, Army and Air Force have increasingly realised that operations will involve all those services, or two of the three services, with joint activity becoming the norm rather than the exception.

The other big change, which I very much welcome, as does the Committee, has been the creation of the National Security Council. Not only does it provide an opportunity in general terms for strategic thinking, strategic planning and proper consideration under the Prime Minister, but for the first time the heads of the intelligence agencies attend meetings as of right and are able to ensure not only that they hear what is being said but that the intelligence they are providing is much more easily fitted into the requirements of Government so that the practical benefits of the intelligence is of much greater value.

[Mr Tobias Ellwood (Bournemouth East) (Con)]

My right hon. and learned Friend talks about the change in attitude and style in the work of our security services. Does he agree that after 9/11, in a bid to counter the asymmetric threats, the clandestine services lost their way for a period? I think of such things as Guantanamo Bay, water-boarding, rendition, dodgy dossiers and so forth. Does he agree that with the freedoms that were given to those services in a bid to try to find Osama bin Laden and hunt down the enemy we lost the moral high ground for some time and that it has taken a while for us to redeem ourselves?

[Sir Malcolm Rifkind]

I certainly agree that serious issues came to prominence during those years, some of which were the responsibility of the agencies and some of which were more the responsibility of government. However, I think we should get this into perspective. So far as I am aware, not a single British intelligence officer has ever been accused of personally being involved in water-boarding, torture or maltreatment of an individual. The issue—and it is a very serious issue—is whether they were aware of those matters and whether they might indirectly have colluded in such activity. I do not wish to diminish the seriousness of these matters but it is very important to make that point and get things into perspective because the same is not true of many other countries around the world. That is an important point that has to be made.

I want to speak briefly about four points in the report and then say something about the issues in the Green Paper, particularly about what is called the control principle, with regard to the handling of intelligence. Finally, I shall address the reform of the Intelligence and Security Committee. I shall try not to detain the House too long. The first of the four points in the report I want to address concerns the single intelligence account—the £2 billion that goes to the intelligence agencies. They have had a very large increase over the past few years but a cut is now being imposed—and understandably so—of 11% if one takes account of inflation over the next four years. The Committee has said:

“It is essential—given the fundamental importance to our national security of the Agencies’ work—that the settlement is kept under review and that there is scope to adjust it if there is a significant change in the threat.”

I know that every single recipient of Government funding would like to be able to say that, but I hope there is no dispute that when we are dealing with the fundamental issues of national security, if the threat were to change in a material way, it would not be acceptable to say that those resources could not be reviewed by a Government because that might in some way contradict public expenditure decisions. I have no reason to believe that the Government would take that view, but it is important to make that point, and that is what the Committee would like to stress.

The second point is the security that will be needed for the Olympics. The director general of the Security Service—again, I quote from our report—

“told us that he considers the Service to be well placed to manage the risks that the Olympics will bring.”

However, he added that

“the effort required to cover the Olympics will inevitably divert resources from the Service’s other work.”

The Committee would like to emphasise that the National Security Council must take such steps as are necessary to minimise that risk. Although we understand that the Security Service is not at present making representations and feels that the task can be handled effectively, it is too early to be certain that that will remain the case and it must be kept under consideration.

The third point relates to cyber security. In its reports of 2008 and 2009, the Committee drew attention to the increasing risks this country faces from cyber attacks. The Committee welcomes the fact that the Government have said that cyber is now a tier 1 interest in our national security strategy and have provided more than £600 million in new resources for that purpose.

The Committee’s concern is not those sums but the potential over-interest within Government in cyber matters. We note in our report that there are 18 units with responsibilities in this field across the three agencies— two law enforcement bodies and five Government Departments—and express our concern, which the Government share, about the risk of duplication. It is extremely important that these matters are looked at to ensure that, with such large sums and so many elements of Government involved, we do not do mischief to our own objectives.

[Mark Field]

I entirely endorse what my right hon. and learned Friend says. We feel strongly that there is a risk of duplication, with 18 bodies having some say in cyber security. We are grateful for the Government’s commitment and provision of certainty of financing over a four-year period—the £600 million to which he referred. However, if in 2007 we had asked about the importance of cyber, it would have been largely off the radar. Does my right hon. and learned Friend agree that we must be aware that if this becomes a much bigger problem not just in governmental and military terms, but in commercial terms, by the end of that four-year period considerably larger sums might be required, along the lines of the provision for the Olympics?

[Sir Malcolm Rifkind]

I thank my hon. Friend for his contribution to the work of the Committee. He and I visited GCHQ and saw at first hand the increasing threat from cyber that this country faces from a number of sources. I therefore very much endorse his comments.

[Mr Philip Hollobone (Kettering) (Con)]

I am enjoying my right hon. and learned Friend’s speech immensely. In his Committee’s report, in recommendations K and E, the Committee identifies a wider technological problem facing our security services. In recommendation E the Committee says:

“We are concerned about GCHQ’s inability to retain a suitable cadre of internet specialists to respond to the threat”,

and in recommendation K it states:

“The Committee recognises that the Security Service needs IT specialists in order to deliver its major technology projects. However, spending on consultants and contractors continues to increase at a significant rate.”

Does my right hon. and learned Friend share my concern that although his Committee has identified this as a problem, the Government are not yet up to speed in providing the answer that his Committee seeks?

--- Later in debate ---

[Sir Malcolm Rifkind]

I very much welcome what my hon. Friend says. It is timely, because the Intelligence and Security Committee some months ago commissioned its own investigator to carry out a study of the use of contractors and consultants in the intelligence agencies. We found that they were used to a very high order and we have a number of recommendations, which we are analysing and will subsequently put to Government. I hope that many of them will be made public. Contractors and consultants can be very expensive and are not always the best way of using the resources available, but sometimes they have skills that the agencies could provide only at disproportionate cost to their wider interests. I very much welcome my hon. Friend’s comments.

[Geoffrey Clifton-Brown (The Cotswolds) (Con)]

Does my right hon. and learned Friend agree that the situation with cyber attacks is likely to get worse, rather than better? There are clear examples around the world of such attacks significantly disabling military installations and operations, so the Government must continue to regard that as a high-level threat. In contrast to what he has just said, it is the consultants working on this on the front line around the world who are likely to know the latest technologies, rather than those who have been employed by the intelligence agencies for some time.

[Sir Malcolm Rifkind]

There may be some truth in what my hon. Friend says, and obviously these matters must be taken on board. Given his comments, I will make the general point that we should realise that cyber technology can be a threat and an opportunity for this country and others. One need only think of the use of what has become known as the Stuxnet malware, which temporarily prevented the Iranians continuing with uranium enrichment, which might lead to nuclear capability. If that happened—obviously, the information available is limited—it is a positive example of how such technology might prevent military conflict or a war ever taking place. Technology is not peculiar to one side of the debate or the other, but we must protect our secrets and our information. I strongly endorse my hon. Friend’s comments.

[Richard Graham (Gloucester) (Con)]

Will my right hon. and learned Friend confirm that ministerial responsibility for cyber-security will be with the Cabinet Office and that that will in no way detract from the Foreign Secretary’s overall responsibility for GCHQ?

[Sir Malcolm Rifkind]

That is one of the great dilemmas that Governments have faced and, I suspect, continue to face. It is not for me to comment on what the conclusion will be, but there has been some confusion on that. My hon. Friend will be aware that Baroness Neville-Jones at one stage had some responsibility for that within the Home Office, but she is no longer in government. It probably makes sense that the Cabinet Office has some sort of lead responsibility, but many loose ends still need to be addressed. If the Home Secretary or the Minister has any thoughts on those matters, I am sure that the whole House will be delighted to hear them when they reply to the debate, as it would deal with a problem that has been present for a considerable time and to which our report refers.

[Dr Julian Lewis (New Forest East) (Con)]

For the sake of clarity, before some reporter’s pen runs away with him, will my right hon. and learned Friend confirm that there was no suggestion in his remarks that UK intelligence services were responsible for the Stuxnet virus?

[Sir Malcolm Rifkind]

Even our worst enemies have not suggested that, as far as I am aware. I of course entirely confirm that.

My final detailed point on the report relates to a part of our intelligence community that is hardly even mentioned in this House or anywhere else: Defence Intelligence. It is part of the Ministry of Defence, but its contribution and role is greatly underestimated, if not entirely unknown, in the wider world, a point we draw attention to on page 51 of the report:

“Defence Intelligence provides the largest single all-source assessment capability within the UK intelligence community.”

As it is part of the MOD, it has perhaps been more subject to resource reductions than the other intelligence agencies. The report states:

“The prospect of further cuts—combined with the impact of cuts to BBC Monitoring, on which DI relies heavily—therefore has potentially very serious long-term consequences for DI’s ability to support military operations”,

which everyone tends to know about,

“and for the UK intelligence community as a whole.”

I hope that the Government can give some careful thought to how Defence Intelligence’s unique contribution to the UK’s overall assessment capability can be properly protected. I suggest that it perhaps needs a higher profile and status in the intelligence community than it has traditionally had so that there can be wider awareness of the benefits it brings to the national interest.

I deal now with the intelligence aspects of the Government’s Green Paper, particularly the control principle and the ISC itself. As far as the control principle is concerned, many Members attending the debate will be aware that what I am referring to, and what the Green Paper refers to, is how we deal with intelligence received from other friendly intelligence services. Anyone who has any awareness of the intelligence situation will know that that is crucial to the UK, particularly our relationship with the United States. If the special relationship means anything, it means a dramatic amount of intelligence, which has continued for around 60 years and benefited the UK enormously. However, it concerns not only the United States; to a lesser degree, we share and receive intelligence from other friendly agencies as well. Fundamental to the system is the deep principle that intelligence shared with another intelligence agency will not be made available to any third party without the consent of the agency that gave it in the first place. That principle has overwhelmingly been respected, but there have been individual exceptions that caused great concern. Following the Binyam Mohamed case, the Court of Appeal decided that such information should be released in a limited set of circumstances, and that caused great concern in the United States and elsewhere. I and the Committee greatly welcome the Government’s determination to deal with the matter in a way that strikes a proper balance between the national security requirement and the interests of justice, because that is the crucial debate in these matters.

Some might imagine that the Binyam Mohamed case was a one-off and that the Green Paper is an overreaction to the problem. With all respect, the Committee’s view is that it is not an overreaction. Although the Court of Appeal’s verdict might have been different in that case, we are today dealing with a situation that is very different from that which existed in the past. Information on this is given in the Green Paper, so I will share briefly with the House what the Government say. The Green Paper refers to judicial review, and not simply with regard to intelligence, but more broadly how it has increased over the years:

“Recourse to judicial review has increased significantly in recent decades, from 160 applications in 1974 to 4,539 in 1998. By 2010 the number of applications had reached 10,548.”

Judicial review and the overruling of the Government’s view—perhaps rightly in many cases—have become a major part of our judicial process, rather than an exception.

The raising of intelligence matters in court has also been transformed dramatically in recent years. The same page of the Green Paper states that

“in the first 90 years of the Security Service’s existence”—

meaning MI5—

“no case impacting directly on that Service’s work reached the House of Lords. In the last 10 years there have been 14 such case in the House of Lords or the Supreme Court.”

That is no longer an exception, but increasingly something we must be aware of and decide whether the previous balance is the appropriate one in the wider national interest.

Another point of interest, and one I was unaware of until recently, is that one of the circumstances in which these matters are being raised is not the release of sensitive documents to help in UK legal cases, as sometimes happens, but often the request for the release of this information to assist legal proceedings in other countries. The Green Paper states on page 7:

“The Government has strained key international relationships and risked compromise of vital sources and techniques in no fewer than seven court cases in which the applicants sought sensitive UK Government-held but very often foreign government-originated information for disclosure into foreign legal proceedings.”

Of course, Binyam Mohamed was such an example, because his appearance before a United States military commission led to the application in the first place.

Against that background and as the report states, I and the Committee very much welcome the Government’s proposals to modernise the procedure and their recommendation that the United Kingdom use the closed material procedure and involve special advocates, as already occurs in several areas, to deal with such cases. The only alternative, traditionally, has been the public interest immunity approach, but that is a blockbuster approach, and if one secures such immunity one finds that none of the information can be seen by anyone.

At least under the special advocate procedure, the special advocate—someone who has been vetted to be able to inspect such sensitive material—will have the opportunity to see it on behalf of his or her client, and, although they will not be able to reveal detailed information, they will be able at least to take it into account when advising their client on judicial proceedings.

That is greatly welcome and a step forward, but the Committee wants to make this point. If these proposals are implemented, the situation will improve considerably, but they do not provide an absolute guarantee that no information can ever be released at the insistence of the court, a fact that the Government acknowledge. Page 21 of the Green Paper states that closed material proceedings, involving a special advocate,

“reduce the risk of damaging disclosure of sensitive material.”

Such proceedings do not remove the risk; they reduce it. Likewise, on the following page, the Green Paper states that a decision to allow a special advocate to be available can

“be reviewable by the trial judge on judicial review principles if the other side decides to challenge the Secretary of State’s decision.”

We are therefore dealing with a very curious situation. If the Government’s proposals are accepted, the balance will change, and that is good and healthy, but the significant possibility will remain that in very special circumstances a judge might take a different view on such matters and the information could be released, with all the consequences that might flow from that.

Those who take the interests of national security very seriously indeed, as I certainly do and I am sure everyone here does, accept that, at the end of the day in a country that believes in the rule of law, the courts—in most circumstances, if not all—have to have the final word. I wonder, however, whether the Government ought to consider the argument that the provisions in the Green Paper need to be further strengthened: a belt and braces approach, which would not be inconsistent with the rule of law but would certainly provide added reassurance.

The Government have been good enough to refer in their Green Paper to the way that approach might be taken, and paragraph 2.78 on page 33 states:

“It would be possible for Parliament to provide the courts with clearer guidance in statute”.

The proposal refers to public interest immunity cases, but it could apply to special advocate cases, and the Government go on to state in the next paragraph:

“One such presumption”—

written into statute as a “rebuttable presumption”—

“would be against disclosure of sensitive”—

national security—

“material owned by foreign governments, obtained via intelligence relationships working on the basis of the Control Principle.”

That is exactly what we need seriously to consider. It would not be inconsistent with the rule of law, because at the end of the day it would be a rebuttable presumption, and the court would determine whether the presumption were rebutted.

As we have always known, the courts, when they interpret the legislation of this House, not only look at the words of an Act but try to identify, if they can, Parliament’s intention in passing it. If the statute stated that there were such a presumption against the disclosure of intelligence received from a foreign, friendly Government, the court would be able at least to take that into account before it reached a final decision, so I and the Committee hope that the Government give that proposal serious consideration.

One of the main parts of not only our report but the Government’s Green Paper concerns the future of the Intelligence and Security Committee, and although I note that it is a major issue I will not detain the House for long, as I hope to conclude my remarks in at most another 10 or 15 minutes in order to allow everyone else who wishes to speak the chance to do so. It is, however, a crucial matter.

Over a period of some 17 or 18 years, the Intelligence Services Act 1994 has become outdated: it no longer accurately describes how the Committee operates. That is part of the problem; another part of the problem is that the Committee, if it is to conduct its oversight effectively, needs additional responsibility and power.

It is worth remembering that when the 1994 Act was passed, the intention was not only that oversight would be provided for the first time, but that the public would be reassured that it was independent oversight—and to some degree that reassurance has not yet been achieved. The public, when they look at the Act, see a Committee that is not a Committee of Parliament, although it is a Committee of parliamentarians, because we are all appointed by the Prime Minister, we report to the Prime Minister, and only through the Prime Minister do our reports eventually reach the House. That obviously calls our independence into question.

[Mr George Howarth (Knowsley) (Lab)]

We are all nominated by the Prime Minister, but it is important to note that this House has to endorse the names of the Committee’s members before the Committee is formed.

[Sir Malcolm Rifkind]

The House has to give its view, but I say to the right hon. Gentleman, who also serves on the Committee and has done so even longer than I have, that the Prime Minister has the last word. Although Prime Ministers have in practice never overruled the view of the House, they have the statutory power to do so. The House gives its advice, thus illustrating the difficulty in terms of the public’s view. That is the first problem.

The Committee, in its report, recommends—we are delighted that the Government have accepted it in principle—that the Committee become a Committee of Parliament. It is a joint Committee of the House of Commons and House of Lords, with two distinguished Members of the House of Lords, Lord Butler and Lord Lothian, but we recommend that its appointment procedure be very similar to that used by the Standards and Privileges Committee or by all Joint Committees of Parliament. Names would be presented to Parliament, but Parliament would be able to veto them if it disapproved. If it disapproved, the names would have to disappear, and only when Parliament was satisfied with the recommendations would appointments be made. Parliament would have—in a way that it does not, and has never had—the last word on both the Chairman of the Committee and its members, and it would properly be a Committee of Parliament, albeit obviously required to operate under slightly different procedures because of the secret information that we deal with. That is the first reform of a fundamental kind.

On the second reform, the 1994 Act states that the Committee has responsibility for policy, resources and administration, but it does not mention operations, a subject in which there is overwhelming public interest and in which, on a simple literal reading of the Act, we appear to have no involvement. People who ought to know better have recently asked, “How can the Committee operate effectively if it cannot even look at operations?” In reality, it has been looking at operations over the past few years, whether on the treatment of detainees, the Binyam Mohamed case or the use of intelligence during the Iraq war.

The Committee has been able to look at the raw material and to question agencies about operations, but that role does not appear in the Act. That needs to be revised. We suggest that, instead of listing the issues that the Committee can look at, the Act should be reformed and simply state that “the Committee should have oversight responsibility for all the activities of the intelligence agencies”, thereby including operations.

[Dr Julian Lewis]

On operations, does my right hon. and learned Friend agree that practice in the past has been—and is likely to be in the future—for the examination of particular operations to be retrospective and that there are very good reasons for that?

[Sir Malcolm Rifkind]

My hon. Friend raises a very important point. In making our recommendations to the Government—the matter is important to them as well—we acknowledge that we do not seek the level of responsibility that exists in the United States, where certain senior members of Congress have to be consulted in advance of an operation regarding what the intelligence agencies will be doing. They do not have the power to stop an operation, but they are informed about it, as they were, for example—so we understand—of that involving Osama bin Laden.

The ISC can see no public interest in such an approach. Having power without responsibility is bad enough, but to have responsibility without power is even worse. Our responsibility is to provide retrospective oversight, and the Government appear in principle to have accepted that, as long as we are dealing—as we agree we should be—with matters of significant national interest. That is right and proper. Many discussions will be needed about how that will be handled in practice, but the principle is of profound importance.

[Geoffrey Clifton-Brown]

I have been thinking carefully about what my right hon. and learned Friend said regarding a change in the procedure for electing his Committee. Would a constitutional issue arise if Parliament summoned either him, as Chairman of the Committee, or a member of his Committee to give information that they knew but felt they were not entitled to reveal? What would happen in such a case?

[Sir Malcolm Rifkind]

I can give my hon. Friend a very straightforward answer: all members of the Committee are subject to the Official Secrets Act. We see the most secret information and we have therefore all been considered suitable for that purpose. Like any other United Kingdom citizen, we cannot reveal information that is in breach of the Official Secrets Act, which is an Act of this place and must be respected. In the unlikely event of the circumstances to which my hon. Friend refers, that would be the response.

The third major reform relates to the fact that the 1994 Act states that the Committee may “request” information from the intelligence agencies. If the Committee has the power to request, the agencies have the power to decline. I have to be fair and say that the agencies have never used that power, but they are able to decline and that is no longer acceptable. Our view, which we have recommended to the Government, is that the Committee should have the power to require information to be shared by the intelligence agencies, and only the Government, not the agencies, should have the power to override that if, for example, a Secretary of State or Prime Minister believe there is some overwhelming national interest in doing so. That would have to be reported to Parliament.

The power to require information is not just a change of words. At the moment, if the Committee wants information we request it and the agencies, which sometimes have massive files, produce a summary of the information. I am sure that they do it in good faith, but we are allowed to see only that summarised version. The power to require information will mean that we will have our own staff who can have informal discussions in a constructive and positive way with the agencies and see all the available information. Ultimately, they will decide what summary we might wish to see, which will enable us to put questions to the agencies if we decide to take evidence from them. That is a much more sensible procedure, which I am sure will work. However, it is obviously a very important change compared with previous practice.

[Hazel Blears (Salford and Eccles) (Lab)]

The right hon. and learned Gentleman has talked about balance in relation to the Green Paper. If there are to be more closed proceedings, is it not absolutely essential that there should be more rigorous parliamentary oversight? The Committee should therefore have more resources, not to aggrandise itself but to do properly the job that the Government are asking us to do

[Sir Malcolm Rifkind]

Yes. The right hon. Lady is a very senior member of the Intelligence and Security Committee. In the Green Paper, the Government have combined enhanced oversight with proposals for reform of the control principle precisely for the reason she mentions. In addition, even if there had not been a Green Paper and there were no Government proposals, I am sure the Committee would have taken the view that the time had come for a fundamental root-and-branch reform of oversight, and would have been making the recommendations we are discussing today to the Government. I do not know—and we will never know—what the Government’s reaction might have been. That would have been a different situation.

The final major change we are recommending relates, again, to the 1994 Act. The Act states that we have oversight of the Secret Intelligence Service, which is MI6; the Security Service, which is MI5; and GCHQ. That is all that is mentioned but, as the House will be well aware, the intelligence community is considerably wider than that. I mentioned defence intelligence a few minutes ago, and there is the Joint Intelligence Committee and the new National Security Council, which has a role partly concerned with intelligence. The reality is that, over the years, these additional agencies and parts of government have voluntarily subjected themselves to scrutiny by the ISC. That is right and proper, but it is time that the legislation caught up with the formal position. That has also been accepted by the Government.

In conclusion, the House might think, “Well, that’s all very well. We know what the Government’s view is and we know what the Intelligence and Security Committee’s view is, but what about the agencies themselves? How comfortable are they with these proposals?” I cannot speak on their behalf, but I can say that our relationship with the agencies is very positive and that they have sometimes publicly said that it is time for reform.

The agencies have taken an entirely constructive approach to the kind of issues we have been discussing today. Of course, there is a very good reason for that. Not only are the agencies great national servants operating in the national interest, but one of the big developments in intelligence oversight over the past 16 years has been that a Committee such as ours, whose primary role may seem to be to criticise agencies or the Government if something goes wrong, has also occasionally been the agencies’ champion if we conclude they are being unfairly attacked either in the media or elsewhere and are unable to defend themselves.

The obvious example of that is the 7/7 bombings, when serious representations were made that because the names of the people responsible for the bombings were on the Security Service’s files, what happened could surely have been stopped and it was all a disastrous mistake. I was not involved in that investigation, but our predecessors looked into the matter in enormous detail. It is significant that the conclusion they came to was in all material respects the same as that the coroner came to a few months ago: although various criticisms could be made, the Security Service was being unfairly accused on the central question of failing to stop that terrible event in the circumstances. The agencies have trust in the Committee partly because it has operated in a mature and sensible way. Although on many occasions the Committee may have criticised things the agencies have done, we are also prepared to speak on their behalf in public and private if we think the facts justify it.

Intelligence has been a hugely important issue for the United Kingdom for many years. The single most important intelligence achievement was Bletchley Park during the second world war, which had a material impact on our winning the war. More recently, how intelligence operates has changed fundamentally. However, the crucial aspects of intelligence remain the same: our national interest requires that intelligence agencies remain secret in their most crucial activities. That is how I started and that is how I conclude my comments. On behalf of the Committee as a whole, I commend our report to the House.

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[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

I, too, welcome the Intelligence and Security Committee’s annual report and the work that the Committee has done this year, which was comprehensively set out by the right hon. and learned Member for Kensington (Sir Malcolm Rifkind).

It is 13 years since I last spoke in a debate on a report by the Intelligence and Security Committee. That was before the attacks of 9/11, before the London bombings of 7/7 and the damage done by al-Qaeda, before the most recent military engagements in Afghanistan and Iraq and at a very different stage in the Northern Ireland peace process. There have been dramatic changes since then in the nature of the threats that Britain faces and in the nature of the work of the intelligence and security agencies to keep us safe. However, many of the principles that we debated then, such as the importance of accountability and managing the tensions between liberty and security and between democracy and secrecy, remain as valid and as pertinent now.

I join the Committee and the Home Secretary in paying tribute to those who work in the intelligence and security agencies, and I place on the record the gratitude of the Opposition and those we represent. Our intelligence officers and agents are not known. By its very nature, their work must go unsung. Some have even died in the course of their work and have been laid to rest quietly with no public tribute. They work tirelessly, sometimes in dangerous conditions, to find a piece of a jigsaw that will never be fully complete, but which could yet save lives.

In this debate, we must pay tribute from the Front Benches to the work of the ISC, as the Home Secretary has done. Its members take extremely seriously their responsibility to provide accountability, even though they cannot discuss or debate in public many of the issues that they pursue privately. There is a long tradition of cross-party working and consensus in the Committee, as indeed there should be, on many issues to do with intelligence and our national interest. I congratulate the Committee on its latest report. I also thank those who represent the Opposition on the Committee, my right hon. Friends the Members for Salford and Eccles (Hazel Blears), for Wythenshawe and Sale East (Paul Goggins) and for Knowsley (Mr Howarth), for their hard work on behalf of this side of the House and Parliament as a whole.

As the Committee and Ministers have made clear, the security risks that we face have become more diverse and technologically advanced than at any time in our history. Hostile attacks in cyberspace by other states and terrorist groups have the potential to cause serious damage to the security and prosperity of the UK. The Home Secretary has set out the continued threat from al-Qaeda and rightly paid tribute to the work of our armed forces. The work on international terrorism and counter-proliferation are becoming more closely connected. We are also dealing with new challenges, such as helping new states to emerge from the Arab spring. The older and more established threat from groups in Northern Ireland is now a growing concern.

Our security and intelligence agencies have expanded their work substantially over the past decade, supported by increased resources that were rightly provided over many years to keep Britain safe. The right hon. and learned Member for Kensington was right to point to the increasingly mature debate on security and accountability. As a result, there are large areas of agreement across the Committee and across the House on security and our national interest.

The Committee has rightly welcomed the work done by the Government through the National Security Council and the growing focus on cyber-terrorism. It is right that the Government and the agencies are increasing investment and action in that area. I also welcome the ISC’s continued scrutiny of the Prevent and Contest strategies, which we have discussed on the Floor of the House.

Like the Committee Chair, I welcome the Government’s attempts in the justice and security Green Paper to address the difficult issues of the control principle and the use of sensitive material in civil cases. Those are not easy problems to solve, but they are extremely important given the chilling effect on international intelligence arrangements if sensitive material is at risk of being disclosed. I noted the important points that the right hon. Gentleman made about the detail, practicality and workability of measures, and we stand ready to work with the Government to get that right, because it is hugely important.

We welcome, too, the Gibson inquiry, which is important for maintaining confidence in the work of the intelligence agencies. The Committee may wish to look further at that matter in advance of the Gibson inquiry beginning its work, while there remain legal delays, to ensure that the inquiry can achieve its aims.

A number of concerns are raised as a result of the Committee’s report. In particular, in the face of the ever-changing threats, the Committee’s scrutiny of resources is extremely important. The report rightly identifies areas in which the agencies could make greater savings by, for example, exploring a consolidated approach to vetting. The Home Secretary should also take seriously the Committee’s concerns about the scale of the real-terms cuts that the agencies are facing, particularly in Olympic year. The increases in inflation since the spending review have increased those real-terms cuts. Ministers will be aware that the chief of the Secret Intelligence Service told the Committee:

“It’s quite hard to…maintain the capability of the Service when we face a 10% reduction in staff”.

Clearly all Departments and agencies need to make their share of efficiencies, but in the current circumstances it is vital that the Government accept the Committee’s recommendation that

“Given the importance of national security work, it is essential that the Spending Review settlement can be adjusted if there is a significant change in the threat.”

We are also concerned about the particular pressures surrounding the Olympics. According to figures from the Library, the real reduction in the single intelligence account next year alone will be £60 million. Next year is the year in which the eyes of the world will be on us for the Olympics, and the Home Secretary rightly discussed the Olympics in her speech. The evidence quoted in the Committee’s report shows the pressure that the agencies will face. The Security Service chief has said that

“there will be a large diversion of resource from other things into the Olympics. But I don’t think we’ve got any option about that.”

The Secret Intelligence Service chief has said that the Olympics

“will certainly have an impact on our intelligence operations and intelligence coverage of other targets during that period.”

The Home Secretary and the Foreign Secretary must take seriously the Committee’s warning that it is

“nevertheless concerned that this will inevitably divert resources from the Service’s other work during this period, and thus expose the UK to greater risk.”

At a time when thousands of police officers are being lost, the Home Secretary and the Treasury should take the opportunity to review the level of resources available for security and policing next year to ensure that they are sufficient for the threats that we will face.

As a result of the Olympics, there is also an additional reason for the Home Secretary to re-examine counter-terror powers, which my right hon. Friend the Member for Salford and Eccles has raised. The Home Secretary is aware of our deep concern that she is removing the ability to keep terror suspects out of London in Olympic year through control orders. The director-general of the Security Service told the Committee that under the Terrorism Prevention and Investigation Measures Bill and with additional resources,

“there should be no substantial increase in overall risk.”

Frankly, however, it is very hard for the House to understand why the Home Secretary should want any increase in overall risk, let alone one that is entirely a result of her own policies. The Committee is right to warn the Government about that and to raise the concern that the new regime does not offer the same level of assurance as control orders.

We know that the Government have themselves admitted that there are issues to consider in that regard. Indeed, the Home Office has recently written to the House of Lords to say that the transitional period between control orders and TPIMs will be extended from 28 days to 42 days in an amendment to be tabled in the Lords in response, I understand, to resourcing concerns raised by the Metropolitan police. However, would it not be wise to delay the implementation of TPIMs altogether, at least until after the Olympics have taken place? Frankly, it is simply not responsible for the Government to reduce counter-terror powers, as well as resources, at a time when we know the pressures are growing. I urge the Home Secretary to examine the Committee’s report carefully and think again.

Turning to the ISC’s proposals for its own reform, the current Chair called for those reforms even before he was appointed, and I welcome his continued commitment to them. The Committee has certainly evolved since the 1994 Act, as he rightly pointed out. It started with no investigatory resource, which changed after the debates in the late ’90s. Over the years, increasing levels of detail have been provided to the Committee, and also by the Committee to the public, including more information about overall budgets and information from other Departments and organisations. Although many people in the agencies viewed the Committee with a certain suspicion and anxiety in its early years, I believe most now agree about its importance and the benefits that the agencies are provided with by having accountability and independent scrutiny. The Committee can bust myths and counteract attacks on the agencies as well as challenge and explore problems without putting security at risk in any way.

However, it is time to go further, and both the ISC and the Government are right to want reform now. The Government are right to consider strengthened executive accountability and greater scrutiny of the agencies through the executive and judicial routes, and they are right to consider options such as an inspector-general, although I understand that considerably more work will need to be done on that approach. For many years, the tradition of the agencies was one of very little executive oversight. Ministers would decide the overall framework, but they did not have clear accountability for how operations took place. That executive accountability has increased over the years, with the roles of the different commissioners being strengthened, but I do not believe it is yet on a sensible long-term footing, and the Government are right to explore that further.

It is also right that we look further at parliamentary oversight. I believe that we should have gone further on that under the previous Government. It is right to consider creating a statutory Committee of Parliament with much stronger access to information. Of course, the Committee will always have to operate in a different way from other parliamentary Committees. The principle of its operating inside the so-called ring of secrecy is integral to much of its work, so it requires additional safeguards, including on how Committee members are selected. However, I believe that the Government could still go further.

The Home Secretary said that the Government were still cautiously considering the proposal that the Committee’s work should cover operations. Of course, it is not for the Committee to second-guess operations in advance, which is not what the ISC is proposing, but there needs to be parliamentary scrutiny of not only the policies and good intentions of the agencies, but operations. Ministers and the agencies actively resisted that when the Committee was first established in 1994, but in fact the Committee has already gone further in practice than was originally intended in legislation. It is important to support it now and give it the proper underpinnings that it needs to be able to examine operations properly and thoroughly where it is appropriate to do so, and where the Committee believes that a significant issue needs to be investigated. I urge the Home Secretary to make progress in that area and accept the principle of the Committee’s recommendations.

I also believe that there is a strong case for the Committee, or at least its Chair, to see more detail on individual cases. I have seen no convincing reason to deny the Committee, or its Chair, access to the full oversight reports on the agencies by the various commissioners, including the annexes, which are currently often withheld.

It would help the House, too, for the ISC—or, again, at least for its Chair—to have access to the detailed papers on individual control order cases as, for example, the commissioner currently does. Again, that would not be to second-guess current cases, but so that the House could reflect on the implications of those cases for legislation. For example, we may be asked to introduce emergency legislation on TPIMs or on extending pre-charge detention, yet it is a genuine problem for Parliament that the only person who has seen all the cases that justify changing legislation is the Home Secretary who proposes the new legislation. There are too few checks and balances in that system, which is bad for democracy but ultimately also bad for the Home Secretary and for confidence in national security. It would be far better for Parliament and for the Home Secretary to have another independent voice that can come to judgment on the basis of the evidence and advise Parliament. Stronger counter-terror powers can be justified, but I would like stronger checks and balances alongside them. The Opposition would prefer to retain control orders, especially in Olympics year, but we would also prefer greater scrutiny of the control order regime by Parliament, including the ISC.

Finally, I am astonished to find myself in agreement with the hon. Member for Stone (Mr Cash), who in last year’s debate argued that the ISC Chair should be an Opposition Member. There are significant advantages to the ISC following the example of the Public Accounts Committee, the Chair of which is a senior Member of the Opposition. That is not to cast aspersions on the current ISC Chair, who would make an admirable Chair any time in opposition, nor is it—perhaps more importantly —to cast aspersions on my right hon. Friends who did admirable jobs as ISC Chairs when Labour was in government. They would make excellent ISC Chairs now, but perceived independence and credibility is even more important for the ISC than for other Committees.

[Sir Malcolm Rifkind]

I am extremely grateful to the right hon. Lady for the additional comments that she has volunteered. The House might like to be reminded that there is nothing to stop an Opposition Member from being ISC Chair. In fact, there is a precedent. Tom King, now Lord King of Bridgwater, was the first ISC Chair and remained for a period after the Labour Government came into power in 1997. It is entirely available to Opposition Members, depending on who they are.

[Yvette Cooper]

The right hon. and learned Gentleman is absolutely right that there are precedents. In fact, Lord King was Chair when I was a member of the ISC between 1997 and 1999, and he continued through to 2001. The principle of the Public Accounts Committee is that as a matter of course the Chair is a Member of the Opposition. The value of that is this: exactly because the ISC must operate behind closed doors, it needs to be seen to be independent and authoritative in its conclusions; and exactly because it cannot tell us the evidence on which its judgments are based, it needs to be perceived by the wider public to be independent of Ministers. That is important for the agencies as well as for the public.

In the 1998 debate, the then ISC Chair, Tom King, spoke of the importance of the Committee having a unanimous all-party voice and authority:

“When a situation arises that gives serious cause for public concern…We shall not be able to help matters unless we can say that we have investigated the allegations, with…access to all the relevant information”.—[Official Report, 2 November 1998; Vol. 318, c. 594.]

Those words stand today. When I spoke in that debate, I said that accountability through the ISC lay at the heart of the tension not just between liberty and security, but between democracy and secrecy:

“We have certainly come a long way since the mere existence of MI5 and MI6 was denied. I believe that, sooner or later, we will travel much further. We will have to improve our system of accountability, for the sake not only of democracy but of the very secret agencies that the United Kingdom needs to function and to protect our modern democracy. If we do not improve our system of accountability, those agencies’ capacity to operate in the national interest will be threatened.”—[Official Report, 2 November 1998; Vol. 318, c. 613.]

Those words, too, still stand.

The role of the ISC has become stronger since 1998 and it does vital work. Accountability has increased, but it has not yet gone far enough. The Government’s reforms are welcome, but they should be brave and go further, so that we continue to have effective agencies that have the confidence of the public in a modern democracy. Sooner or later, we will have that.

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[Richard Ottaway]

I completely agree, and I have always been hugely impressed by the vast quantity of information. When there was just one needle in the haystack, they might not have found it the first time around but they did find it the second time around and quite rightly, as my hon. Friend says, produced it for the Committee.

On the Green Paper, may I support the point that was made about the handling of sensitive material, which I gather was mentioned by the Chairman of the ISC in his opening speech? The recommendations in the Green Paper are sensible and offer the best way of dealing with sensitive material, but I do not think it has to be instead of using a special advocate. It could well be in addition to using a special advocate and using the presumptions set out in the Green Paper.

Let me address the role of the Committee and the way it operates. Parliamentary oversight of a secret service is always going to have limitations. I do not think there is a silver bullet, regardless of whether the Committee is a Committee of the House. Let me give an illustration. The major foreign policy objective of our engagement in Afghanistan is to deny al-Qaeda and international terrorists a base from which to carry out their operations. During the Foreign Affairs Committee’s report on Afghanistan, a number of witnesses told us that that is no longer a problem in Afghanistan, so at the Liaison Committee I asked the Prime Minister whether he was still receiving intelligence to that effect and he said he was. So, we are stuck with the same old problem that a major overseas deployment of the British Army and other armed services is based on intelligence that has not been subject to the scrutiny of the House. Those of us who were here at the time of the Iraq war know the problems that that can generate. This is an echo of the past. I have come up with a least-bad option and have written to the Chairman of the ISC to ask him to put it to the appropriate quarters when a suitable opportunity arrives and then to report to the House on the veracity of that information. I hope that, in the short term, that can be a way of dealing with the matter.

[Sir Malcolm Rifkind]

May I say that we have been in touch with the SIS and have asked it to respond on exactly the points that my hon. Friend is concerned about?

[Richard Ottaway]

I am delighted to hear that because that presents a channel—certainly in the current circumstances, until there is a change in the law—through which the House can make inquiries. However, it irritates the hell out of a lot of Members that we have to do that. The fact that the ISC is not a Committee of the House has long been a bugbear. I remember debates in which Andrew MacKinlay used to go on and on about this and challenge the legitimacy of the ISC. We all love him deeply, but I think it is time to move on. It is wrong that the ISC has oversight of the Cabinet Office, which is the Department that administers the ISC. Those who are critical see the Committee as being somehow made up of Government lackeys, but that is an insult to the members of the Committee. Those who have served on the Committee know that we behave as though we were on a Select Committee; indeed, there is far less partisan behaviour on the ISC than on any other Committee I have served on. This issue can now be addressed.

We have to accept that classified information can be handled only by those who are subject to the Official Secrets Act. If one accepts that principle, it does not make much difference whether the Committee is a Committee of the House or not, but there is a good case for it becoming a Committee of the House if only to remove the suspicion that has prevailed over the years. In making the move, the devil will be in the detail. There are a number of issues to address, although I will not go into the detail now, such as the question of appointments and the fact that the Official Secrets Act does not fit easily with freedom of speech.

I think it would be sensible for the Committee to have powers to call for information that could be withheld only by the Secretary of State, rather than what happens currently. When I was on the Committee, the question “Have we seen everything?” was always at the back of my mind. It took two reports on the 7/7 bombings for us to satisfy ourselves that we had done everything. The fact that there was a second report illustrated that we had not seen everything the first time around. Another problem to address is how redactions will be dealt with by a Committee of the House, as the Government will not be able to threaten a veto on publication. Obviously, the report will be to the House, but what will it report? It is no secret that some evidence submissions to the Government never saw the light of day in the previous Parliament. How would that be treated if the Committee were to become a Committee of the House?

This issue is a minefield, but the Government have found a way through it in their Green Paper and I support them. It is very hard to have democratic oversight of a secret service, but I think we are on the right track.