V. A Democratic Licence to
Operate
5.1
While the ISR was initiated following the disclosures by Edward Snowden, the Review
reflects a wider and longstanding debate in the UK surrounding the interception of
communications, internet surveillance and state intrusion into privacy. Rather than
representing a spectrum of opinion, this debate has often been framed in terms of
individual privacy versus collective security.
5.2
On the ‘security’ side, the police and SIAs argue that, in order to stay one step ahead
of increasingly capable adversaries, they must have a particular set of advanced and
potentially intrusive capabilities. On the ‘privacy’ side, civil-liberties and privacy
advocates believe that the capabilities of the agencies are disproportionate to the
threat, and that the oversight mechanisms that hold them to account are inadequate.
5.3
It was within this context that the disclosures by Edward Snowden emerged. The
information brought sharp focus to the debate and entrenched positions on both sides.
Allegations of bulk data collection raised specific legal questions on the remit and
oversight of the SIAs in many countries, including the UK.
5.4
The ECJ ruling in Digital Rights Ireland – declaring invalid the EU Data Retention Directive
– marked a significant moment. According to the UK government, the subsequent
introduction of DRIPA 2014 was designed to resolve the immediate potential loss of
capability; the sunset clause, meaning the legislation will cease to have effect from
the end of 2016, would allow time to conduct a more thorough review of the intrusive
powers required by the agencies, as well as the legislation regulating these powers.
5.5
The ISR report is one of three reports whose findings will be drawn upon to inform the
government’s approach in this regard and also future legislation. In June 2015, Theresa
May acknowledged that the government would be giving due consideration to all three
reports in parallel:
These independent reviews are each important and valuable contributions to the continuing
debate about the role of our security, intelligence and law enforcement agencies, their
use of investigatory powers and their oversight. The Government will need to give proper
consideration to their recommendations, but I believe that collectively they will provide a firm
basis for consultation on legislation.1
1.
Theresa May, Hansard, House of Commons Debates, Col. 1353 (11 June 2015).