Surveillance: Citizens and the State - Constitution Committee Contents

CHAPTER 1: Introduction—the Committee report

Surveillance: Citizens and the State


1.  Surveillance is an inescapable part of life in the UK. Every time we make a telephone call, send an email, browse the internet, or even walk down our local high street, our actions may be monitored and recorded. To respond to crime, combat the threat of terrorism, and improve administrative efficiency, successive UK governments have gradually constructed one of the most extensive and technologically advanced surveillance systems in the world. At the same time, similar developments in the private sector have contributed to a profound change in the character of life in this country. The development of electronic surveillance and the collection and processing of personal information have become pervasive, routine, and almost taken for granted. Many of these surveillance practices are unknown to most people, and their potential consequences are not fully appreciated.

2.  Commenting on these developments in August 2004, the Information Commissioner Richard Thomas warned against the possibility of the UK sleepwalking into what he referred to as a "surveillance society".[1] In particular, he expressed concern about a raft of new Government proposals, including the establishment of a national identity card scheme, and the creation of a database containing the name and address of every child under the age of 18.

3.  The years that have followed these comments have seen an expansion in the National DNA Database (NDNAD), the introduction or development of new databases for a variety of public services, and a steady increase in the use of CCTV in both the public and private sector. There has been a profound and continuous expansion in the surveillance apparatus of both the state and the private sector. In the past, computer databases and data sharing, the monitoring of electronic communications, electronic identification, and public area CCTV surveillance were relatively uncommon. Today these technologies are ubiquitous and exert an influence over many aspects of our everyday lives. The expansion in the use of surveillance represents one of the most significant changes in the life of the nation since the end of the Second World War, and has been shaped by a succession of governments, public bodies, and private organisations. Furthermore, surveillance continues to exert a powerful influence over the relationship between individuals and the state, and between individuals themselves. The selective way in which it is sometimes used threatens to discriminate against certain categories of individuals.

4.  In 2006, the Information Commissioner commissioned the Surveillance Studies Network to compile A Report on the Surveillance Society. The Report was published in November 2006, and focused on surveillance in everyday life in the UK today and in the future, and on how it might be regulated.[2] In March 2007, the Royal Academy of Engineering (RAE) produced its report, Dilemmas of Privacy and Surveillance: Challenges of Technological Change, which also made a number of recommendations for regulation.[3]

5.  In the light of these developments, we decided to undertake an inquiry into "the impact that government surveillance and data collection have upon the privacy of citizens and their relationship with the State." The then Chairman, the late Lord Holme of Cheltenham, said that "the broad constitutional implications of these changes have not thus far been sufficiently closely scrutinised. As a Committee we hope to get to the bottom of how these changes are altering the relationship between individuals and the State, and to ascertain whether necessary protection is in place."[4] We pay tribute to Lord Holme, not only for his influence in launching this inquiry, but for his wise counsel in chairing the Committee from 2004-2007.

6.  Some of the questions we sought to answer included:

  •   Have increased surveillance and data collection by the state fundamentally altered the way it relates to its citizens?
  •   What forms of surveillance and data collection might be considered constitutionally proper or improper? Is there a line that should not be crossed? How could it be identified?
  •   What effect do public and private sector surveillance and data collection have on a citizen's liberty and privacy?
  •   How have surveillance and data collection altered the nature of citizenship in the 21st century, especially in terms of citizens' relationship with the state?
  •   Is the Data Protection Act 1998 sufficient to protect citizens? Is there a need for additional constitutional protection for citizens in relation to surveillance and the collection of data?

7.  We acknowledge that many of these questions are far reaching, and that finding answers to them may not be easy. We recognise that no single government bears sole responsibility for the concerns raised in this report, and that the solutions which we propose will require commitment from politicians of all political persuasions, and from other groups in the public, private and voluntary sectors, if we are to respond effectively to the challenges posed by surveillance and data collection.

Developments during the course of the inquiry

8.  During the course of the inquiry, a number of reports were published by the Government, commissioned experts, think tanks, campaign organisations, and other Parliamentary Committees. In addition, a number of high profile news stories drew attention to the issues which we were examining. Box One highlights a selection of these developments, which we discuss in more detail below.

9.  The news stories have been subject to a substantial amount of media coverage and analysis by a wide range of journalists. Television programmes, such as Panorama, have highlighted surveillance in its many varieties. Websites and "blogs" have been very active with commentary on stories, policies and developments. In addition, campaign groups have sought to raise public awareness and exert influence on the policy process.


Timeline of main events

  •   September 2007. Publication of the Nuffield Council on Bioethics Report on The Forensic Use of Bioinformation: Ethical Issues.[6]

  •   October 2007. The Prime Minister asked the Information Commissioner, Richard Thomas, and Mark Walport, Director of the Wellcome Trust, to "undertake a review of the framework for the use of information".[7]

  •   October 2007. Publication of Overlooked, Liberty's report on privacy and surveillance.[8]

  •   October 2007. Publication of the Home Office/ Association of Chief Police Officers (ACPO) National CCTV Strategy.[9]

  •   November 2007. The Government announced that the child benefit details of 25 million people had been lost after an Her Majesty's Revenue and Customs (HMRC) computer disc went missing, and that Kieran Poynter, the then Chairman and Senior Partner of PricewaterhouseCoopers, would undertake a review of HMRC's security procedures.[10] The Cabinet Secretary, Sir Gus O'Donnell, was asked to undertake a review of data handling procedures in government.

  •   December 2007. It was revealed that a computer hard drive with the details of 3 million UK learner drivers had gone missing in the USA, and that the details of 7,500 vehicles and their owners had been lost by the Driver and Vehicle Agency (DVA) in Northern Ireland.[11]

  •   January 2008. Publication of the House of Commons Justice Committee's report on Protection of Private Data.[12] The Government's response was published in March 2008.[13]
  •   January 2008. It was announced that the Ministry of Defence had lost the details of 600,000 Royal Navy recruits when a laptop was stolen, and that Sir Edmund Burton, Chairman of the Information Assurance Advisory Council, had been asked to undertake an inquiry into the data loss.[14]

  •   February 2008. Media reports alleged that covert surveillance of two visits by Sadiq Khan MP to a prisoner had been undertaken.[15] The Chief Surveillance Commissioner, Sir Christopher Rose, was asked to undertake an inquiry. His report was published later that month.[16]

  •   March 2008. Publication of the report of the Joint Committee on Human Rights (JCHR) on Data Protection and Human Rights.[17] The Government's response was published in June 2008.[18]

  •   April 2008. Media reports expressing concern at the use of surveillance powers by local authorities under the Regulation of Investigatory Powers Act 2000 (RIPA), in particular in relation to suspected fraudulent school place applications.[19]

  •   April 2008. Publication of Sir Edmund Burton's Report into the Loss of MOD Personal Data.[20]

  •   June 2008. Publication of the report of the House of Commons Home Affairs Committee on A Surveillance Society?[21] The Government reply was published in July 2008.[22]

  •   June 2008. Publication of Sir Gus O'Donnell's Data Handling Procedures in Government: Final Report, undertaken in the wake of the HMRC data loss.[23]

  •   June 2008. Publication of Kieran Poynter's Review of Information Security at HM Revenue and Customs: Final Report.[24]

  •   July 2008. Publication of the Thomas-Walport Data Sharing Review Report.[25] The Government response was published in November 2008.[26]

  •   December 2008. In the case of S. and Marper v. The United Kingdom, the European Court of Human Rights ruled that keeping the DNA profiles of individuals not convicted of a criminal offence breached Article 8 of the European Convention on Human Rights (ECHR).[27]

A "constitutional approach"

10.  The stories that have emerged, and the coverage they have received, have illustrated the importance of the issues which we have been examining. We particularly wish to acknowledge the work of our fellow Parliamentary committees, the House of Commons Home Affairs Committee and the House of Commons Justice Committee, and the Joint Committee on Human Rights, in this field. Whilst we concur with many of their recommendations, we have sought to maintain a distinctive approach to the subject of surveillance throughout the course of our inquiry. In keeping with our remit, we have been especially concerned to focus our attention on the constitutional questions and challenges raised by the spread of surveillance and the practice of data collection. This report seeks to examine surveillance in the context of the UK's constitutional framework, and makes a number of practical recommendations as to how current practices and systems might be improved.

11.  We have also sought to identify the constitutional principles that should govern the use of surveillance in the UK today. In the First Report of this Committee, published in July 2001, we observed that the constitution of the United Kingdom is constantly evolving, and that it is embodied in "the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual."[28] We also noted that the constitution is founded on five key tenets, namely:

  •   The Sovereignty of the Crown in Parliament;
  •   The Rule of Law, encompassing the rights of the individual;
  •   The Union State;
  •   Representative Government; and
  •   Membership of the Commonwealth, the European Union, and other international organisations.[29]

12.  Central to the success of evolving constitutional democracy has been the British people's commitment to the fundamental principles that underpin these tenets. In particular, there is a widespread belief in the importance of individual freedom and the need for executive accountability and restraint. In the absence of a written constitution which clearly defines the limits of the state and the proper role of government, these principles have continued to inform the relationship between the individual and the state. They have fundamentally shaped the development of our laws, practices, and public institutions.

13.  We regard a commitment to the freedom of the individual as paramount. It is a precondition of the functioning of our existing constitutional framework. We also believe that privacy and the principle of restraint in the use of surveillance and data collection powers are central to individual freedom, and should be taken into account and adhered to at all times by the executive, government agencies, and public bodies. There is a danger that the growing use of surveillance by government and private organisations in the UK could constitute a serious threat to these principles and commitments.

14.  Mass surveillance has the potential to erode privacy. As privacy is an essential pre-requisite to the exercise of individual freedom, its erosion weakens the constitutional foundations on which democracy and good governance have traditionally been based in this country. Central to this inquiry is the question of whether surveillance, which has substantially increased over recent years, represents a threat to these foundations, and to what extent surveillance should be permissible within the current constitutional framework of the UK.

15.  In this report, we seek to show how the principles explained above are (or are not) being observed, and how they could be better promoted and protected in the future.


16.  We have taken a wide range of evidence to inform the report and we would like to thank all those who gave us their views. In the course of this inquiry, we have heard oral evidence from 44 witnesses, and received written evidence from a further 28 witnesses. We have also consulted a large body of secondary evidence, including many of the reports and publications detailed in Box One above. In April 2008, we undertook a visit to Canada and the United States of America, to examine how those nations have managed the issues under consideration.[30] We would like to express our particular thanks to those at the British Embassy in the USA, the British High Commission in Canada, and to all those whom we met on our visit. We would also like to record our thanks to our Specialist Adviser, Professor Charles Raab, Professor Emeritus and Honorary Fellow, University of Edinburgh, and to our Specialist Legal Adviser, Dr Benjamin Goold, Lecturer in Law and Fellow of Somerville College, University of Oxford, for their valuable input and assistance during the course of the inquiry.

1   Ford R, "Beware rise of Big Brother state, warns data watchdog", The Times, 16 August 2004. Back

2   Surveillance Studies Network, A Report on the Surveillance Society: Full Report, for the Information Commissioner, September 2006. Back

3   The Royal Academy of Engineering, Dilemmas of Privacy and Surveillance: Challenges of Technological Change, March 2007. Back

4  Back

5   1st Annual Report of the Ethics Group: National DNA Database, April 2008.  Back

6   Nuffield Council on Bioethics, The Forensic Use of Bioinformation: Ethical Issues, September 2007.  Back

7   Gordon Brown MP, Speech on Liberty, 25 October 2007.  Back

8   Gareth Crossman, Liberty, Overlooked: Surveillance and Personal Privacy in Modern Britain, October 2007. Back

9   Home Office and ACPO, National CCTV Strategy, October 2007.  Back

10   HC Deb 20 Nov 2007 cols 1101-04 Back

11   HC Deb 17 Dec 2007 cols 624-26 Back

12   1st Report (2007-08): Protection of Private Data (HC 154).  Back

13   3rd Special Report (2007-08): Protection of Private Data: Government Response to the Committee's First Report of Session 2007-08 (HC 406).  Back

14   HC Deb 21 Jan 2008 cols 1225-27 Back

15   See for example "Probe into police 'bugging' of MP", BBC News website, 3 February 2008.  Back

16   Report on Two Visits by Sadiq Khan MP to Babar Ahmad at HM Prison Woodhill, Report of Investigation by The Rt Hon Sir Christopher Rose, Chief Surveillance Commissioner, Cm 7336, February 2008.  Back

17   14th Report (2007-08): Data Protection and Human Rights (HL 72) (HC 132).  Back

18   22nd Report (2007-08): Government Response to the Committee's Fourteenth Report of Session 2007-08: Data Protection and Human Rights (HL 125) (HC 754).  Back

19   See for example "Council admits spying on family", BBC News website, 10 April 2008.  Back

20   Sir Edmund Burton, Report into the Loss of MOD Personal Data, April 2008.  Back

21   5th Report (2007-08): A Surveillance Society? (HC 58).  Back

22   The Government Reply to the Fifth Report from the Home Affairs Committee Session 2007-08 HC 58, A Surveillance Society?, Cm 7449, July 2008.  Back

23   Cabinet Office, Data Handling Procedures in Government: Final Report, June 2008.  Back

24   Kieran Poynter, Review of Information Security at HM Revenue and Customs: Final Report, June 2008.  Back

25   Richard Thomas and Mark Walport, Data Sharing Review Report, July 2008, op. cit. Back

26   Ministry of Justice, Response to the Data Sharing Review Report, November 2008.  Back

27   For the text of the judgment see  Back

28   1st Report (2001-02): Reviewing the Constitution: Terms of Reference and Method of Working (HL 11), paras 18, 20. Back

29   ibid., para 21 Back

30   A note of the Committee's visit is at Appendix 4. Back

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