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A Democratic Licence to Operate
and must operate from that starting point. Some international harmonisation of national
legislation is essential. Any government thinking about its powers of intrusion must
consider the reality that other governments take different views within their jurisdictions
– from autocratic regimes which spy extensively on their own populations, to those
who take a minimalist approach and do not feel themselves under undue pressure from
international criminality, terrorism or malign nations.
5.24
In addition, the secret parts of the state have operated under domestic legal conditions
of great complexity, where law has been accumulated into a regime that has baffled
legal professionals and practitioners alike. This is not a sound basis on which to confront
the technological and democratic challenges of the future. The legal expression of
state powers should never be a thing of shreds and patches. Legislative clarity is not
merely a matter of presentation in the business of interception and surveillance; it is
fundamental to democracy.
5.25
In light of this, it is not surprising that the Snowden disclosures sent ripples of anxiety
through part of the country. The intelligence agencies have acknowledged this, saying
to the Panel that ‘the dials will have to be reset’. This is reflected in the government’s
programme to renew the legislative basis for the interception of communications during
the current Parliament.
5.26
But the Panel believe that such ‘resetting’ of the dials must also be undertaken on the
basis of some very clear principles. The Snowden disclosures have made it imperative
that what was previously an essentially implicit bargain between government and
citizens over the rights of intrusion into private life should be made explicit.
5.27
Given the speed of technological and social change within our open society, it is likely
that every generation will have to look afresh at the licence it gives to the secret parts
of the state. Technology will continue to make exponential leaps but the essential
requirements of the open society will endure.
5.28
The state should always be reluctant to invade the privacy of its citizens in an open
society; it should never be a matter of routine. It is something about which the secret
parts of the state should rightly feel unease and which should test the professionalism
of the individuals within it. Intrusions into privacy, interception of communications
and the analysis and retention of data all require fine judgements which are seldom
straightforward and should never be regarded as easy or simply uncontentious. The day
the British state becomes casual about the way it uses its secret capacities will be the
day for the most acute anxiety. The key test for an open society is how it constrains and
confines the secret parts of the state.
5.29
A new licence for the law-enforcement and security and intelligence agencies to operate
for our generation must be based on a shared approach that would constitute an explicit