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A Democratic Licence to Operate
communications technology, and does not serve either the government or members of
the public satisfactorily. A new, comprehensive and clearer legal framework is required.
The SIAs have covert and intrusive powers that enable them to delve into people’s
personal lives, and considerable technical capabilities to do this, including the ability
to intercept substantial volumes of data from across the Internet and then filter and
analyse what they have collected. The ISR Panel consider that our privacy rights as
individuals are engaged whenever these agencies embark upon such intelligence activity,
including when the public’s data is accessed, collected, filtered and eventually examined
by an intelligence analyst. At each stage, such activities must be demonstrably lawful,
necessary and proportionate. Such requirements are essential if there is to be public
confidence in the use of these powerful capabilities.
Public confidence in the work of the police and SIAs is generally high. But such
confidence is less evident in the way the public thinks its communications and other
data are used by government. The ISR Panel conclude that there are inadequacies both
in law and oversight that have helped to create a credibility gap that has undermined
the public’s confidence.
To address this credibility gap we believe that recommendations in three key areas
should be considered by the government.
The first is in the process of authorisation for any intrusion into a citizen’s private life.
Warrants are an established and important legal mechanism authorising the use of the
state’s most intrusive powers. They are crucial in being able to monitor, record and audit
the use of such powers. The current system of warrantry (the issuing of warrants) is
complex, incomplete and lacks legal clarity, particularly in light of outdated assumptions
such as the distinction between domestic and international communications. The ISR
Panel believe the system requires a radical overhaul which must include an enhanced
role for the judiciary.
The second is in the oversight regime that ensures the police and SIAs are held to account.
It is neither possible nor desirable for those parts of the state that must operate in
secret to be fully transparent, but effective oversight is therefore all the more essential.
The current oversight regime operates in a series of layers, from ministerial oversight,
parliamentary oversight, to the work of a number of judicial commissioners and the
Investigatory Powers Tribunal (IPT). This system has grown in ad hoc ways and the public
have limited knowledge and understanding of how it works. In the past few years a
number of improvements have been made to the oversight regime, but further reform is
required. Reorganisation and better resourcing of the existing setup could create a more
streamlined, robust and systematic oversight regime that would be genuinely visible to
the public and have a positive effect on the police and SIAs.