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A Democratic Licence to Operate
Ten Tests for the Intrusion of Privacy
5.35
We believe there are ten enduring tests that Parliament and the public should apply
when considering all future legislation relating to the conditions under which the police
and intelligence and security agencies can intrude upon the privacy of the citizen. They
derive from principles we believe must be constantly observed and which encapsulate
the most essential elements in the grand bargain we have outlined.
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Rule of law: All intrusion into privacy must be in accordance with law through
processes that can be meaningfully assessed against clear and open legislation,
and only for purposes laid down by law.
Necessity: All intrusion must be justified as necessary in relation to explicit
tasks and missions assigned to government agencies in accordance with their
duly democratic processes, and there should be no other practicable means of
achieving the objective.
Proportionality: Intrusion must be judged as proportionate to the advantages
gained, not just in cost or resource terms but also through a judgement that the
degree of intrusion is matched by the seriousness of the harm to be prevented.
Restraint: It should never become routine for the state to intrude into the lives of
its citizens. It must be reluctant to do so, restrained in the powers it chooses to
use, and properly authorised when it deems it necessary to intrude.
Effective oversight: An effective regime must be in place. Effectiveness should be
judged by the capabilities of the regime to supervise and investigate governmental
intrusion, the power it has to bring officials and ministers to account, and the
transparency it embodies so the public can be confident it is working properly.
There should also be means independently to investigate complaints.
Recognition of necessary secrecy: The ‘secret parts of the state’ must be
acknowledged as necessary to the functioning and protection of the open
society. It cannot be more than minimally transparent, but it must be fully
democratically accountable.
Minimal secrecy: The ‘secret parts of the state’ must draw and observe clear
boundaries between that which must remain secret (such as intelligence sources
or the identity of their employees) and all other aspects of their work which
should be openly acknowledged. Necessary secrecy, however, must not be a
justification for a wider culture of secrecy on security and intelligence matters.
Transparency: How the law applies to the citizen must be evident if the rule of law
is to be upheld. Anything that does not need to be secret should be transparent
to the public; not just comprehensible to dedicated specialists but clearly stated
in ways that any interested citizen understands.
Legislative clarity: Relevant legislation is not likely to be simple but it must be
clearly explained in Codes of Practice that have Parliamentary approval, are kept
up-to-date and are accessible to citizens, the private sector, foreign governments
and practitioners alike.