A "constitutional approach"
10. The stories that have emerged, and the coverage
they have received, have illustrated the importance of the issues
which we have been examining. We particularly wish to acknowledge
the work of our fellow Parliamentary committees, the House of
Commons Home Affairs Committee and the House of Commons Justice
Committee, and the Joint Committee on Human Rights, in this field.
Whilst we concur with many of their recommendations, we have sought
to maintain a distinctive approach to the subject of surveillance
throughout the course of our inquiry. In keeping with our remit,
we have been especially concerned to focus our attention on the
constitutional questions and challenges raised by the spread of
surveillance and the practice of data collection. This report
seeks to examine surveillance in the context of the UK's constitutional
framework, and makes a number of practical recommendations as
to how current practices and systems might be improved.
11. We have also sought to identify the constitutional
principles that should govern the use of surveillance in the UK
today. In the First Report of this Committee, published in July
2001, we observed that the constitution of the United Kingdom
is constantly evolving, and that it is embodied in "the set
of laws, rules and practices that create the basic institutions
of the state, and its component and related parts, and stipulate
the powers of those institutions and the relationship between
the different institutions and between those institutions and
the individual."[28]
We also noted that the constitution is founded on five key tenets,
namely:
- The Sovereignty of the Crown in Parliament;
- The Rule of Law, encompassing the rights
of the individual;
- The Union State;
- Representative Government; and
- Membership of the Commonwealth, the European
Union, and other international organisations.[29]
12. Central to the success of evolving constitutional
democracy has been the British people's commitment to the fundamental
principles that underpin these tenets. In particular, there is
a widespread belief in the importance of individual freedom and
the need for executive accountability and restraint. In the absence
of a written constitution which clearly defines the limits of
the state and the proper role of government, these principles
have continued to inform the relationship between the individual
and the state. They have fundamentally shaped the development
of our laws, practices, and public institutions.
13. We regard a commitment to the freedom of
the individual as paramount. It is a precondition of the functioning
of our existing constitutional framework. We also believe that
privacy and the principle of restraint in the use of surveillance
and data collection powers are central to individual freedom,
and should be taken into account and adhered to at all times by
the executive, government agencies, and public bodies. There is
a danger that the growing use of surveillance by government and
private organisations in the UK could constitute a serious threat
to these principles and commitments.
14. Mass surveillance has the potential to erode
privacy. As privacy is an essential pre-requisite to the exercise
of individual freedom, its erosion weakens the constitutional
foundations on which democracy and good governance have traditionally
been based in this country. Central to this inquiry is the question
of whether surveillance, which has substantially increased over
recent years, represents a threat to these foundations, and to
what extent surveillance should be permissible within the current
constitutional framework of the UK.
15. In this report, we seek to show how the principles
explained above are (or are not) being observed, and how they
could be better promoted and protected in the future.
Acknowledgements
16. We have taken a wide range of evidence to
inform the report and we would like to thank all those who gave
us their views. In the course of this inquiry, we have heard oral
evidence from 44 witnesses, and received written evidence from
a further 28 witnesses. We have also consulted a large body of
secondary evidence, including many of the reports and publications
detailed in Box One above. In April 2008, we undertook a visit
to Canada and the United States of America, to examine how those
nations have managed the issues under consideration.[30]
We would like to express our particular thanks to those at the
British Embassy in the USA, the British High Commission in Canada,
and to all those whom we met on our visit. We would also like
to record our thanks to our Specialist Adviser, Professor Charles
Raab, Professor Emeritus and Honorary Fellow, University
of Edinburgh, and to our Specialist Legal Adviser, Dr Benjamin
Goold, Lecturer in Law and Fellow of Somerville College, University
of Oxford, for their valuable input and assistance during the
course of the inquiry.
1 Ford R, "Beware rise of Big Brother state, warns
data watchdog", The Times, 16 August 2004. Back
2
Surveillance Studies Network, A Report on the Surveillance
Society: Full Report, for the Information Commissioner, September
2006. Back
3
The Royal Academy of Engineering, Dilemmas of Privacy and Surveillance:
Challenges of Technological Change, March 2007. Back
4
http://www.parliament.uk/parliamentary_committees/lords_press_notices/pn260407const.cfm
Back
5
1st Annual Report of the Ethics Group: National DNA
Database, April 2008. Back
6
Nuffield Council on Bioethics, The Forensic Use of Bioinformation:
Ethical Issues, September 2007. Back
7
Gordon Brown MP, Speech on Liberty, 25 October 2007. Back
8
Gareth Crossman, Liberty, Overlooked: Surveillance and Personal
Privacy in Modern Britain, October 2007. Back
9
Home Office and ACPO, National CCTV Strategy, October 2007.
Back
10
HC Deb 20 Nov 2007 cols 1101-04 Back
11
HC Deb 17 Dec 2007 cols 624-26 Back
12
1st Report (2007-08): Protection of Private Data (HC 154).
Back
13
3rd Special Report (2007-08): Protection of Private Data: Government
Response to the Committee's First Report of Session 2007-08 (HC
406). Back
14
HC Deb 21 Jan 2008 cols 1225-27 Back
15
See for example "Probe into police 'bugging' of MP",
BBC News website, 3 February 2008. Back
16
Report on Two Visits by Sadiq Khan MP to Babar Ahmad at HM Prison
Woodhill, Report of Investigation by The Rt Hon Sir Christopher
Rose, Chief Surveillance Commissioner, Cm 7336, February 2008.
Back
17
14th Report (2007-08): Data Protection and Human Rights
(HL 72) (HC 132). Back
18
22nd Report (2007-08): Government Response to the Committee's
Fourteenth Report of Session 2007-08: Data Protection and Human
Rights (HL 125) (HC 754). Back
19
See for example "Council admits spying on family", BBC
News website, 10 April 2008. Back
20
Sir Edmund Burton, Report into the Loss of MOD Personal Data,
April 2008. Back
21
5th Report (2007-08): A Surveillance Society? (HC 58).
Back
22
The Government Reply to the Fifth Report from the Home Affairs
Committee Session 2007-08 HC 58, A Surveillance Society?, Cm 7449,
July 2008. Back
23
Cabinet Office, Data Handling Procedures in Government: Final
Report, June 2008. Back
24
Kieran Poynter, Review of Information Security at HM Revenue and
Customs: Final Report, June 2008. Back
25
Richard Thomas and Mark Walport, Data Sharing Review Report,
July 2008, op. cit. Back
26
Ministry of Justice, Response to the Data Sharing Review Report,
November 2008. Back
27
For the text of the judgment see http://www.bailii.org/eu/cases/ECHR/2008/1581.html
Back
28
1st Report (2001-02): Reviewing the Constitution: Terms of Reference
and Method of Working (HL 11), paras 18, 20. Back
29
ibid., para 21 Back
30
A note of the Committee's visit is at Appendix 4. Back