II. Privacy and Security
2.1
While the Snowden disclosures may have reinvigorated the ongoing debate on privacy
and national security in the UK, it is noticeable that the British public remain largely
absent from the debate. The public are regularly asked about their perceptions of the
work of the police, SIAs, online privacy and oversight mechanisms, but large portions of
society rarely engage with this topic in any great depth.
2.2
The lack of public engagement may in large part be due to the difficulty of navigating
these complex issues. Detailed information is often scarce, and discussions are often
framed either in abstract terms (the meaning of privacy, the price of security) or in
very detailed legal or technical terms (the validity of RIPA 2000 or the implications of
end-to-end encryption). Finally, we tend to think of the public and private sectors as
two independent spheres of influence and thus fail to spot the obvious similarities and
differences in issues of trust, transparency and consent.
2.3
The concepts of liberty, security and privacy are central to a number of universal rights
outlined by important pieces of twentieth-century treaties and legislation, including
the Universal Declaration of Human Rights 1948, the European Convention on Human
Rights (ECHR) 1950 and the UK Human Rights Act 1998.1 Article 5 of the ECHR sets out
a combined right to liberty and security for each person; Article 8 sets out a right to
privacy for each person. These rights are not seen as absolute or unconditional, but
rather as qualified rights. This qualification – that these rights are in turn subject to
other rights – is important if these rights are to be consistent, balanced and mutually
reinforcing. Each right must be protected and respected, to the greatest extent possible,
but it cannot exist in isolation. There is no privacy without respect for security; there is
no liberty without respect for privacy; security requires both certain liberties and privacy.
It is therefore unfruitful (indeed misleading) to cast debates about privacy, liberty and
security as a matter of choice or ‘balancing’ between these rights, still less to think of
trade-offs between these rights.
2.4
Following the fundamental Universal Declaration of Human Rights, the international
human-rights framework dictates that there cannot be arbitrary interference with these
rights. Rights can only be curtailed under certain conditions: firstly, to secure other
rights or protect other public interests; secondly, where the consequent restrictions on
each right are proportionate; and thirdly, if the specific ways of adjusting rights one to
another are lawful. It follows that measures taken by the government to protect rights
1.
At the time of writing the government was proposing to replace the Human Rights Act
with a British Bill of Rights to ‘make our own Supreme Court the ultimate arbiter of human
rights matters in the UK’. See Conservative Party, ‘The Conservative Party Manifesto 2015’,
2015, p. 60.