Surveillance: Citizens and the State - Constitution Committee Contents

Examination of Witnesses (Questions 517-519)

Professor David Feldman

2 APRIL 2008

  Q517 Chairman: Professor Feldman, good morning. Thank you very much indeed for coming to join us. It is extremely good of you to give your time. We are not being televised this morning, but we are being recorded, so may I ask you, please, to formally identify yourself for the record and then, if you would like to make a brief opening statement before we start questions and discussion, that would be most welcome.

  Professor Feldman: I am David Feldman, I am a Professor in Cambridge and Chairman of the Faculty of Law at the University of Cambridge, a Fellow of Downing College and a judge of the Constitutional Court of Bosnia and Herzegovina. I am very grateful to your Lordships for inviting me to come and contribute to the inquiry. All that I think I would say to start with is that I am not entirely convinced that surveillance generally raises important constitutional issues of an institutional kind, but I think that it affects a number of the underlying values that help to support the constitution, and perhaps it is those matters that we will be concentrating on mainly. Apart from that, I am here to answer questions.

  Q518  Chairman: That is very kind. Thank you very much indeed. Perhaps I could kick off by asking if there are, in your view, any existing constitutional conventions or principles that are threatened by the spread of surveillance and data collection and are there principled limits that we, Parliament, might want to impose on the state's powers in this area?

  Professor Feldman: I do not think that there are any constitutional conventions that are particularly affected. The one that might be perhaps is accountability, if one regards accountability for surveillance activity as a constitutional convention. I am not sure that it is actually. It may be that one particular form of it, ministerial responsibility to Parliament, is a clear constitutional convention that is engaged where the activities are undertaken by or under the control of a minister. I think it is extremely difficult to see how that convention can operate in relation to activities of other agencies and still more difficult to see how it can operate where the activities are undertaken by private organisations. Of course, a lot of surveillance, for example, by CCTV is undertaken by private people, private bodies, and that lies outside the convention of political accountability entirely. On the other hand, constitutional principles, as I hinted a minute ago, are significant and I think that there are two or three that might be relevant. First of all, as a general background principle supporting the idea of liberty in this country, the UK's constitution has long relied on what one might describe as a principle of executive and legislative self-restraint in interfering with people or authorising interference with people and their activities. That is an important principle, although it is very rarely written about in any of the text books, and it is important because of the centrality of the idea of the legislative supremacy of the Queen in Parliament. If you have a situation in which the Queen in Parliament can authorise in principle anything, then it becomes very important to be self-controlled in the way in which those powers are used, so I like to think that there is a principle of both executive and legislative self-restraint that is increasingly under strain, I think, at the moment. In relation to the executive, that was made more pressing by a decision of Vice-Chancellor Megarry in the late seventies in the case of Malone v Metropolitan Police Commissioner where he extended the view that people could do anything that was not forbidden by statute or common law to the police and, by implication, other state agencies.

  Q519  Chairman: Can you remind us what the point at issue was in the Malone case?

  Professor Feldman: The Malone case concerned telephone tapping, allegedly by the Metropolitan Police. Mr Malone, who was the subject of the alleged interception, sued for a number of grounds, all of which failed, and they failed because there was at the time no legal rule preventing anyone from tapping anyone else's telephone and Vice-Chancellor Megarry said, "This is a free country. Because it is a free country, you can do anything that is not forbidden, and that applies to the police as it applies to you and me." That is a problem if you believe in the Rule of Law as a system for imposing legal accountability and objectively verifiable standards on activities by public and executive bodies that interfere with people's private activities. So it was objectionable as an attack on the spirit of the Rule of Law. It also ran counter to other decisions going back a very long way, at least into the 18th century, holding that actually the Executive needs to show positive legal authority for what it does if it affects people's rights. That was one reason why it was problematic. Another reason was that, as Vice-Chancellor Megarry foresaw, it meant as a state we were acting inconsistently with the rights with respect to private life under Article 8 of the European Convention, and I think, probably, there is a constitutional principle that, as far as possible, one ought to make sure that one's executive, legislative and general legal arrangements in the state are consistent with our international obligations.

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