Privacy campaigners have secured significant concessions in a key report into surveillance by the British security agencies published on Tuesday.

The 132-page report, A Democratic Licence To Operate, which Nick Clegg commissioned last year in the wake of revelations by the US whistleblower Edward Snowden, acknowledges the importance of privacy concerns.

“Privacy is an essential prerequisite to the exercise of individual freedom, and its erosion weakens the constitutional foundations on which democracy and good governance have traditionally been based in this country,” the report says.

It says that there are “inadequacies in both law and oversight that have helped create a credibility gap that has undermined public confidence”.

The report proposes that the intelligence services retain the power to collect bulk communications data on the private lives of British citizens, but it also now concedes that privacy must be a consideration throughout the process.

The report, written for the Royal United Services Institute (RUSI) by a panel that includes three former heads of UK intelligence agencies, also calls for an overhaul of existing legislation.

Despite its concessions to the privacy lobby, the report overall is more favourable to the police and intelligence services than to the campaigners.



The panel included the former MI6 chief Sir John Scarlett, the former head of GCHQ Sir David Omand, the former MI5 director general Lord Evans, the investigative journalist Heather Brooke, the historian Lord Hennessy, the co-founder of lastminute.com, Baroness Lane-Fox, and the professor of computer science Dame Wendy Hall.

Key points in the report include:

Its claim that the UK intelligence agencies are not knowingly acting illegally, though it leaves open past behaviour.

Its proposal that the security services retain the power to collect bulk communications data, one of the key concerns raised by Snowden.

Its acknowledgment that privacy concerns should be integral to considerations at the start of bulk data collection rather than left towards the end of the process.

Its proposal that judges rather than ministers take responsibility for authorising warrants related to criminal issues but that, subject to judicial review, ministers retain responsibility for warrants related to national security – something the intelligence agencies wanted.

There was vigorous debate between the former intelligence heads and privacy advocates over Snowden’s disclosures and whether British intelligence agencies had acted illegally.

The intelligence agencies had wanted the report to give them a clean bill of health, but instead several caveats were added at the request of privacy advocates such as the inclusion of the word “knowingly”.

The report concludes: “Despite the disclosures made by Edward Snowden, we have seen no evidence that the British government knowingly acts illegally in intercepting private communications, or that the ability to collect data in bulk is used by the government to provide it with a perpetual window into the private lives of British citizens.

“On the other hand, we have seen evidence that the present legal framework authorising the interception of communications is unclear, has not kept pace with developments in 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 issue of bulk data collection also divided the panel. The intelligence agencies argued that privacy considerations should only kick in near the end of the process when a human analyst sees the information, and not in the initial stages when computers gather and filter data.

Privacy campaigners disputed this and secured a new benchmark that puts privacy concerns at the start of the process. The report says: “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.”

Brooke, an investigative journalist and a representative of the campaign group Privacy International, identified this as a significant shift.

“In the age of big data, it is important to recognise that people’s privacy rights are engaged at the point of collection, not just when a human being sits down to look at the final analysis,” she said.

“We can’t pretend that intercepting an undersea cable filled with the world’s internet traffic doesn’t affect privacy simply because the data is held and analysed by computers. The mere fact it is accessed and collected is the concern.”

The report is the third to be published in the UK this year in response to Snowden’s disclosures. The first was from the parliamentary intelligence and security committee and the second by David Anderson QC, the independent reviewer of counter-terrorism legislation.

The three reports will feed into the debate later this year when the government is scheduled to introduce legislation on surveillance.

Clegg, who will be at the RUSI on Tuesday for the formal launch of the report, said: “The RUSI report is hugely significant. It brings together thinkers from civil society with senior members of the intelligence community to consider whether internet surveillance practices which have evolved in secret are appropriate for our democratic society.

“We are now seeing an emerging consensus in favour of a new settlement, with clearer rules and stronger safeguards,” the former deputy prime minister said.

“I hope that this report, together with the recent report by David Anderson QC, can provide the basis for a stable new system that protects our security while doing much more to preserve the privacy of ordinary citizens online.”