Report of the Independent Surveillance Review
xiii
The third is in the articulation of enduring principles that the ISR Panel believe must be
set before Parliament and the public as new legislation is considered. In the past, the
government’s licence to operate secretly was implicit, not least because the SIAs were
not officially acknowledged. The situation today is radically different and the public have
greater expectations of openness and transparency in government. It is not sufficient
for the government to assume it has public consent for the secret parts of its work
just because it had it in the past. To that end the ISR Panel offer ten tests that any new
legislation or regulation must be seen to pass before Parliament and the public can have
confidence in it, and which also guarantee the ability of the police and SIAs to continue
to go about their work. We regard these tests as the essence of a democratic licence to
operate now and for the future.
Ten Tests for the Intrusion of Privacy
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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