Interview: Malcolm Rifkind

In recent years, Britain’s intelligence agencies have begun to step cautiously into public view. Nowadays, their existence is officially acknowledged; they occupy high-profile headquarters in London and Cheltenham; their work is scrutinised by parliamentarians through the Intelligence and Security Committee (ISC); and their chiefs make appearances in the media – most recently on 28 October, when Sir John Sawers gave the first ever public speech by a serving head of our international intelligence agency, the SIS (the Secret Intelligence Service, also known as MI6).

It wasn’t always like this. Sir Malcolm Rifkind (pictured above), who became chairman of the ISC in July, remembers that when he was first defence, then foreign secretary in John Major’s government, the intelligence services were almost as discrete inside government as they were outside it. “When I was foreign secretary, I had departmental responsibility for MI6 and [signals intelligence agency] GCHQ, but I only met the chief of SIS or the director of GCHQ perhaps three or four times a year,” he says. Nowadays, the coalition’s new National Security Committee brings ministers together with the heads of MI6, GCHQ and domestic intelligence agency MI5 almost every week.

“There’s far greater contact on a regular basis between the prime minister, secretaries of state and the intelligence agencies,” Rifkind adds. In the 1990s “we didn’t have that constant interchange – and I think what we have now is far healthier.” Meanwhile, coordination and collaboration between the agencies has also improved beyond recognition. “Twenty, 30 years ago, the reality was that the agencies were three completely different intelligence bodies,” says Rifkind, “and none of the three would meet or have any meaningful contact. That is no longer remotely true.”

In part, Rifkind believes, better collaboration “is driven by the fact that, obviously, international terrorism is one of the biggest threats that we face – and bombs in London can be planned in Yemen. You can’t have a neat distinction between domestic and international, as you could in the past”. In part, he continues, it’s happened because “the institutional structure has been reformed and modernised in a way that makes [collaboration] natural”. Anyway, the result is that the UK’s intelligence agencies are now interacting more effectively than those of many other countries.

“Somebody once said information is power, and in some countries the people who have information keep it to themselves,” Rifkind comments. “There’s been a particular problem in the United States with all these massive agencies properly interchanging information.” The balance in the States has now swung too far in the other direction, Rifkind believes – as evidenced by the latest batch of US leaks. In the UK, though, he argues that we are getting close to “the satisfactory exchange of information.” This improvement in collaboration is “one of the single most important developments in the last ten years – and it’s probably accelerating”.

Getting used to each other
The intelligence agencies have not always been keen to step into the limelight, of course. When the ISC was established – by the same 1994 legislation that put the agencies on a statutory footing – the agencies were, says Rifkind, “a bit nervous about what was meant by oversight by parliamentarians”. But since then the agencies and ISC have developed what Rifkind calls “a very grown-up relationship”, with the intelligence services recognising the committee’s value as “a way of reassuring the public that what is taking place in relation to some area of controversy is legitimate and proper”. Nowadays, he says, the agencies “welcome oversight because it enables them to have contact with the public without jeopardising their basic functions”.

The committee’s unique procedures have helped to build that confidence. Unlike select committees, the ISC holds its hearings in secret, and reports directly to the prime minister – who censors its reports before publication. Its members are chosen by the PM and the leader of the opposition – though that process was recently reformed to introduce some parliamentary scrutiny – and work under the Official Secrets Act. It does have a high-powered, cross-party membership, however, and Rifkind is keen to state that “we reach our own conclusions”; when the prime minister does edit an ISC report, he points out, “the public are made aware that that has happened, because there’s evidence to show that it’s been redacted”.

Under previous chair Kim Howells, the ISC raised a number of concerns on which the government has subsequently acted. It highlighted the need for better funding and coordination of the government’s work on cyber-security, for example, well before the Strategic Defence and Security Review focused on the topic; the spending review subsequently provided another £650m for the various units tackling the problem.

It’s certainly a crucial issue, agrees Rifkind: “On any given day, China and Russia are heavily involved in such efforts,” he says. “That’s why this money is being made available for cybersecurity at a time when we don’t have much spare cash.” And is the current, dispersed model of many specialist agency units a sensible delivery model? “There is a risk of duplication,” Rifkind says, “though not for any sinister reason: each bit of the government structure is anxious to enhance its ability to protect its material from hacking and illegal interference”. The Cabinet Office’s Office of Cyber Security, he adds, “helps to ensure that this is done in a proper, coordinated and sensible way”.

The complications of courts
The ISC also explores the thornier issues around intelligence. It has, for example, produced a report on the case of Binyam Mohamed, the UK resident and former Guantanamo inmate who recently initiated court proceedings against the UK government, then – along with other former inmates – accepted a no-liability settlement from ministers keen to keep his case out of an open court. These payments, says Rifkind, should not be seen as an admission of guilt on the UK’s part; and while ministers have emphasised the risk of tying up intelligence agency resources on lengthy court cases to explain their decision, Rifkind points out that there’s another important factor behind the government’s eagerness to avoid a court case.

The former prisoners, he explains, “claimed that British intelligence personnel had been complicit in some of the treatment they were subjected to at Guantanamo or elsewhere; that they may have been aware of what was happening”. So the agencies were being accused of failing to prevent other governments from subjecting the inmates to “torture or cruel or degrading treatment”; and “even if that was untrue, even if the legal actions would have ended with these claims being found to be invalid… there was a serious concern that the courts might say that in order to hear these cases they had to have access to information... from intelligence agencies other than our own – particularly those of the United States – and that could have had very serious consequences for our relationship with the United States.”

This case, says Rifkind, goes to the heart of the ‘control principle’: “All countries that share intelligence with their allies do so on the basis that the information won’t be shared with third parties without their permission,” he explains. “And if, for whatever reason, that is breached – whether it’s because our courts have no choice, or because judges choose to apply these assumptions – then there is a price to pay, and it could be a very serious price.”

The US’s eagerness to preserve the control principle, Rifkind adds, should be seen not as an admission of its involvement in illegal activities, but as a legitimate desire to preserve the secrecy of its techniques and the anonymity of its operatives. “You mustn’t assume that simply because an intelligence agency wishes to withhold information, it’s because they have something improper to hide,” he says. “Far from it: 99.9 per cent of the time, it’s because they wish to be able to continue in a lawful way protecting the identity of those who carry out very dangerous tasks on our behalf, using methods that are perfectly legal”. Terrorist organisations, he argues, watch such court cases carefully to learn more about the techniques, methods, operations and personnel of western intelligence agencies.

Reconciling justice and the control principle
If we are to avoid such situations in future, Rifkind believes, we’ll have to change the law to avoid the risk that UK court cases result in the release of intelligence information provided by other countries. “In a sense, it’s a compliment to the independence of our judiciary,” he says. “The rule of law in the UK is of a very advanced kind. Our courts are independent. They interpret the law very strictly. Governments have less ability to influence judicial decisions than in many other cases; that’s very healthy. But – and there has to be a ‘but’ – at the end of the day the courts are interpreting the law as they see it. If interpreting the law produces consequences that damage the national interest, then it is the job of government and Parliament to decide whether the law needs to be changed so that in future the courts will not feel obliged to come to such a decision.”

Such changes, he says, “may need a bit of imagination to devise”. But the former lawyer does suggest one solution: “If the courts need to see sensitive information in order to come to an honest judgement, you could have procedures that protect the public interest; for example, by the court seeing the papers in camera.” Such a compromise, he adds, “requires both sides of the argument to be willing to think in those terms. But the agencies do themselves recognise that in the modern, transparent world, we all have to do a bit of lateral thinking about what we’re trying to protect.”

In an attempt to tackle this problem, the prime minister has announced the development of a green paper on how to handle intelligence information and intercept data – another form of potential evidence that cannot currently be used in court. David Cameron also, Rifkind notes, “said that the green paper will be useful in looking at the whole question of oversight of the intelligence sector – and the Intelligence and Security Committee is a very important part of that oversight.”

Reforming the intelligence committee
The ISC chair clearly believes that it’s time, after 14 years of operation, to reform the ISC’s powers and remit; but he wants to pick his battles. The previous committee, having moved its meetings out of the Cabinet Office, was keen to ensure that its funds were not controlled by the cabinet secretary – who also has responsibility for the Cabinet Office’s work in coordinating security operations.

The last committee, Rifkind acknowledges, felt that “those who were being overseen should not be controlling the purse strings”. But the new chairman seems more relaxed about this issue: the appointment of a national security adviser means that the cabinet secretary is now “hardly involved in the intelligence and security side”, he explains. “He has the ultimate responsibility, but most of the hard work is done by the national security adviser, Peter Ricketts.”

A battle Rifkind seems keener to fight is the struggle to win formal powers for the ISC to investigate individual intelligence operations. “The 1994 Act said that the function of the committee was to deal with policy, resources, administration, and although it was not ruled out that we could look at individual operations, the inference was that it was beyond the normal territory,” he says. But the ISC has since held several inquiries into individual operations, “and to be fair, the agencies concluded that it was in their interest and in the public interest to cooperate closely.” Given that the ISC has expanded its role in practice, Rifkind argues, “it may be time now to modernise the legislation and for the legislation not only to catch up with reality, but also to realise that the whole way we have oversight in a modern, free society has to be a dynamic process.”

Rifkind also suggests that the agencies should be stripped of their right to unilaterally withhold information from the committee. “At the moment, under the legislation, if the ISC seeks highly classified information it can be declined, either by the secretary of state or without even reference to the secretary of state by the agencies themselves, if they think it’s so sensitive that it would be improper to [release it]. The secretary of state can overrule them, but there is this dual control. That was to reassure the agencies back in the 1990s that their proper functions would not be disturbed,” Rifkind explains. “Actually we’re way beyond that now, and if there is the need for some sort of constraint, it should be the prime minister or the secretary of state who says: ‘Sorry, it wouldn’t be appropriate,’ because they are answerable to Parliament and if they say it can’t be done they may end up having to justify that before Parliament. If the agencies do the same, they’re not accountable to anyone.”

So this is the right time to reform the committee? “It’s the beginning of a new Parliament; it’s a new committee,” Rifkind replies; he doesn’t want to prejudge exactly what recommendations the committee will make for reform, “but I’ve no doubt in my own mind that the committee will want to make quite significant recommendations.” The forthcoming green paper, he adds, “provides an excellent method of having these issues addressed. The timing is excellent from our point of view”.

These recommendations, we can be sure, will not be radical. Rifkind is the archetypal establishment figure: a long-serving Tory minister, heading up a committee of frontbench and civil service veterans sitting inside the government’s ‘ring of secrecy’. But he is also a lawyer with a detailed understanding of the courts’ operations and requirements – and a politician who wants to see the ultimate decision-making powers rest with elected ministers, not officials. So secretaries of state, he argues, should decide what information the ISC can see, not intelligence chiefs. And he believes that it’s the job of elected politicians, not officials, to decide the rules under which our intelligence services operate – and how they handle information whose origins are murky, if not downright illegal.

Lines in the sand
The Bush administration, he notes, redefined its own definitions of what comprises torture in order to allow US intelligence agencies to use waterboarding and other violent interrogation techniques. This, Rifkind believes, was “very foolish, very unwise – not just because of the damage it did to their reputation, serious though that was, but also because I have the gravest doubts as to whether the vast majority of information that might be obtained by these methods is reliable”. The UK, by contrast, “has always taken the view that under no circumstances is it right to use torture or cruel, degrading or inhumane treatment on people who you’ve detained”.

The difference of opinion here is clear; but there’s a much more challenging debate, Rifkind says, over whether the UK should make use of information obtained by inhumane methods. The “difficult moral question”, he says, is: “What do you do in a situation where some other country, with which you have a cooperative relationship, has obtained information that might enable you to save people from being blown up by a terrorist bomb, when you have reason to believe that the information might have been obtained by improper means? Do you dirty your hands by using it?”

Nobody, says Rifkind, “yet has a simple ‘yes’ or ‘no’ answer to that question”. But he is clear about one thing: the decision over the use of such information should rest with elected politicians, not officials. “If a judgment has to be made, that judgment has to be made by ministers, not by the agencies,” he concludes. “That’s still not an absolute answer, but it points us in the right direction.”

CV Highlights
1946    Born in Edinburgh
1967    Completes law degree at Edinburgh University, and takes a job lecturing at the University College of Rhodesia (now Zimbabwe) while completing a postgraduate degree in political science
1970    Called to the Bar in Scotland
1974    Elected MP for Edinburgh Pentlands
1979    Appointed Parliamentary Under-Secretary of State in the Scottish Office
1986    Joins the cabinet as Scottish secretary
1992    Made defence secretary
1995    Becomes foreign secretary
1997    Loses his seat; subsequently becomes president of Scottish Conservatives
2005    Returns to Parliament, representing Kensington and Chelsea
2010    Now MP for reboundaried Kensington constituency, appointed chairman of the ISC