Monday, June 21, 2021

Sharon Horgan does the Coronavirus care homes maths

The BBC has finally had the guts to criticise the UK government handling of the pandemic.

Not BBC news operations which is as craven and as terrified of the Tory government as ever.

But BBC drama, in Dennis Kelly's excellent Together, with terrific performances from Sharon Horgan and James McAvoy.

Horgan's searing 9 minute monologue on the government's appalling incompetence and culpability in the killing of care home residents should be compulsory viewing. 

Horgan's unnamed character's mother dies, having contracted Covid-19 at her care home.

Hogan's avoidable care home tragedy dialogue starts 49 minutes and 51 seconds into the iPlayer version of Together

"I can't escape the feeling that my mother didn't die.

She was killed.

The problem is that people don't understand the word 'exponential'. They think it means 'a lot' or quite fastly, like you see it on TV, you know or in bad sci-fi movies. Good God this alien mass is growing exponentially. And you think: Yeah, that's a lot but, em,  it;s worth taking the time to understand the mathematics of exponential growth.

Right. So you, eh, you start with 1 and you double it, say, every 3 days... you, you you're doubling it every 3 days. So by the end of the first week you've got 4. 1 has become 4 in, in a week. And by the end of the 2nd week, you have 16. By the end of the 3rd week you have 128. And, as the month draws to a close, you have 512.

After just 4 weeks.

Ok. So that a lot more than 1 but, you know, no so much. But if you carry on, the 5th week gives you 2048. the 6th gives you 8192.

The 7th

The 7th gives you 65,536.

The 8th gives you 262,144.

And if you go one week more, pretty much as near as dammit to the... to the, to the two calendar months from when this whole thing started, you get one million, forty eight thousand, five hundred and seventy six (1,048,576).

So the difference between the start of the 1st week and the end of the 1st week is 4.

And the difference between the start of the 9th week and the end of the 9th week is 786,432.

So, the same amount of days.

Hugely different numbers.

This isn't an illustration of coronavirus, by the way. This isn't what actually happened. You know we didn't quite go 9 weeks before the 1st lockdown. There wasn't just one person who brought it into the country. There was probly as many as 1,300 patient zeroes and this doesn't take into account, you know, pre-lockdown efforts to to battle the virus, track and trace, people changing behaviour.

Wha what actually happened is far more complex than what I've just done. What I...what I've just done is illustrate the word 'exponential' an' it and it doesn't mean 'quite fastly'. What is means is...what it means is timing matters.

I... it's said that if we'd locked down 1 week earlier, just 1 week, that we could have saved twenty thousand (20,000) lives. So it seems to me that the word exponential is not understood. But I've just explained it to you in...

[at this point she turns to McAvoy who provides a time check from his mobile phone]

... 1 minute 34 seconds.

And, you geddit... right? It's not that hard, is it?

In January 2020, the care provider, Alliance, contacted the Department of Health & Social Care and said "What should we be doing about this new coronavirus?" And they were told "Nothing. Don't do anything different." And they contacted them a week later and said "What should we what should we be doing now? I mean should we be, you know, should we be self isolating, should we be restricting visits from family and or friends? Should we should we like should we wear masks? And this time they weren't told nothing. This time they were told... well this time they weren't told anything. This time they weren't told anything at all.

And it wasn't until a month later...that they were...given guidance. This is, this is the end of February. Now an, an, and the guidance was that they... you do not need to wear masks and it remains very unlikely that people receiving care, in care homes, will become infected.

And I am gonna to... I'm gonna repeat that, I'm gonna repeat that advice for the Department of Health & Social Care: It remains very unlikely that people receiving care, in care homes, will become infected.

You can look that up. There'll still be links for it.

And this is...this is 1 week before our prime minister is walking around just boasting about shaking hands with coronavirus patients.

And then, the Imperial College points out that, if left unchecked, the the virus could kill half a million people and the government are, like,

Oh, Oh fuck...really?

Oh shit. Fuck.

And then, then the panic kicks in.

The NHS is going to be overwhelmed, we're, we're gonna be like Italy. Oh, please God, don't let us be like Italy and ministers order 15,000 hospital beds to be vacated.

And the the guidance given to hospitals is that it shouldn't take more than than 3 hours. So patients are taken out of hospitals and they're, they're dumped into care homes, and and and they're not being tested. Because and again I'm gonna quote here, that "Covid sufferers can be safely cared for in care homes."

So while the, while the the NHS, the burden on the NHS was being so hotly debated an, an, an wh while, you know, the fact that there was no, not enough PPE gear to go around. While all of that was being discussed, the care homes were given next to nothing. I mean, they were given dribs and drabs while the prices shot up.

And , and some local authorities threatened to withhold money from care homes, if they didn't take in confirmed coronavirus patients.

So they were sent into these places like biological warfare.

They, they were like, like, like blankets laced with smallpox. the 1st lockdown, it's said that 40% of the people who died from coronavirus were from care homes. 40%.

So you see, I can't escape the felling that my mother was killed.

And not by a car or a, or a, or a gun, or a knife, or a cricket bat or, even, the virus.

She was, she was killed by stupidity.

She was killed by dumb fuckery.

She was killed by someone looking at something, coming at them at the, at the speed of a freight train. And just being, like, Oh, let's just carry on shall we? Let's just ... you know, it's a, it's a bit, it's a bit fucking Dunkirk spirit. You know. A bit...bit stiff upper lip. Let's just carry on, old man.

And my mother. My, my... mum"

At this point McAvoy's character intervenes and says: "I think that's it" Horgan's character, emotionally drained, continues a little longer:

"Do you, do you remember when we were supposed to lockdown and then we didn't. And then we came out and and they said, you know, don't go to, to, to clubs or, or, or restaurants, you know, unless you bloody well want to or something? That was when Spain an, an, an France and Lituania and Malaysia, they were all locking down."

McAvoy: "Is that it?"

Horgan: "Is that it?"

She then runs out of energy to go on any further. 

Only people whose loved ones died as a result of government Covid-19 negligence and incompetence can truly understand the pain of the loss and the added insult of the complete absence of accountability.

It really is time the mainstream media outfits like the BBC started behaving like a democracy enhancing 4th estate and poured some energy and resources into speaking turth to power and holding power to account.

Congratulations to Horgan, McAvoy, the writer Dennis Kelly, the production team and everyone involved, constructively, in bringing Together to air.

If BBC news remain too scared to do their job, then hopefully the drama side of the institution will continue to step up. Just a reminder, though, from the BBC's own editorial guidelines:

"The BBC is committed to achieving due accuracy in all its output...

The BBC must not knowingly and materially mislead its audiences. We should not distort known facts, present invented material as fact or otherwise undermine our audiences’ trust in our content...

The BBC is committed to achieving due impartiality in all its output...

It does not require absolute neutrality on every issue or detachment from fundamental democratic principles, such as the right to vote, freedom of expression and the rule of law...

We must always scrutinise arguments, question consensus and hold power to account with consistency and due impartiality..."

Thursday, May 27, 2021

Court of Appeal Declare Data Protection Act Immigration Exemption Unlawful

On Wednesday, 26 May, 2021, the UK Court of Appeal issued a decision in The Open Rights Group & Anor, R (On the Application Of) v The Secretary of State for the Home Department & Anor [2021] EWCA Civ 800 declaring the unconscionable immigration exemption in the 2018 Data Protection Act (Paragraph 4 of Part 1, Schedule 2) unlawful.

The case was brought by the Open Rights Group and the3million and supported by the ICO.

The result brought some cheer to a week in which the European Court of Human Rights effectively accepted, in the case of Big Brother Watch & others v UK, that mass surveillance was compatible with the European Convention on Human Rights. The thin edge of a substantial fundamental rights offending wedge. The sole exception, among the 18 judges was Portuguese justice, Paulo Pinto de Albuquerque who, in concluding his dissenting judgment, said:

59. This judgment fundamentally alters the existing balance in Europe between the right to respect for private life and public security interests, in that it admits non-targeted surveillance of the content of electronic communications and related communications data, and even worse, the exchange of data with third countries which do not have comparable protection to that of the Council of Europe States. This conclusion is all the more justified in view of the CJEU’s peremptory rejection of access on a generalised basis to the content of electronic communications , its manifest reluctance regarding general and indiscriminate retention of traffic and location data and its limitation of exchanges of data with foreign intelligence services which do not ensure a level of protection essentially equivalent to that guaranteed by the Charter of Fundamental Rights . On all these three counts, the Strasbourg Court lags behind the Luxembourg Court, which remains the lighthouse for privacy rights in Europe. 

60. For good or ill, and I believe for ill more than for good, with the present judgment the Strasbourg Court has just opened the gates for an electronic “Big Brother” in Europe. If this is the new normal that my learned colleagues in the majority want for Europe, I cannot join them, and this I say with a disenchanted heart, with the same consternation as that exuding from Gregorio Allegri’s Miserere mei, Deus."

I hope to get round to a more detailed assessment of the Big Brother Watch case another time but having been partly consoled by the thought that at least the immigration exemption was toast, a close reading of the Court of Appeal decision led to the unfortunate conclusion that it is still very much alive and kicking.

The short version of the story is that Lord Justices Warby, Singh and Underhill have indeed declared the immigration exemption unlawful but only on a technicality. Essentially the government didn't get all their legislative ducks in a row when passing the law and didn't follow the UK GDPR rules on how to implement a contemptible measure like this. The immigration exemption itself was not thrown out on principle. 

Basically, if the UK government want to implement something like the immigration exemption circumventing data protection rights, they have to do so according to specific GDPR Article 23 rules. They failed to follow the rules, so the exemption is unlawful. 

"29. The argument has been wide-ranging but I would suggest that, if my Lords agree, this appeal can and should be decided on the following short and straightforward basis. There presently exists no legislative measure that contains specific provisions in accordance with the mandatory requirements of Article 23(2) of the GDPR. In the absence of any such measure, the Immigration Exemption is an unauthorised derogation from the fundamental rights conferred by the GDPR, and therefore incompatible with the Regulation. For that reason, it is unlawful. The appeal succeeds on this aspect of Ground 2, and it is unnecessary to reach conclusions on the other issues raised."

For the Brexiters, btw, shouting we are no longer in the EU, the GDPR is indeed directly applicable in EU member states only and applied from 25 May 2018. The UK has exited the EU but the UK parliament decided to keep substantially the same law in place in the UK. As the appeal court judges say at paragraph 12,

"(1) Sections 2, 3 and 6 of the European Union (Withdrawal) Act 2018 (“EUWA”) provided for certain aspects of EU law to remain in force, as part of English law, notwithstanding withdrawal. This is known as “retained EU law”. The GDPR, DPA 2018, and relevant CJEU case-law pre-dating IP completion day all fell into this category. 


” The Immigration Exemption is “pre-exit domestic legislation”. 

(3) A statutory instrument of 2019 made amendments to the GDPR and DPA 2018 with effect from IP completion day. 1 As a result the GDPR, as it applies domestically, is now known as “the UK GDPR”. But the UK GDPR has the same legal status today as the GDPR had before IP completion day. Article 23 is now in slightly amended terms, but the amendments are not material. In Article 23(1), references to “the Union” and “Member State” are deleted and the power to restrict is now conferred on the Secretary of State. There is no change to Article 23(2). The Immigration Exemption is unamended."

So, the judges were free to declare the immigration exemption incompatible with article 23 of the GDPR and article 23 of the UK GDPR and to strike it out.

In paragraphs 14 to 18 the judgment is not exactly complementary on Home Office activities in this area, referring to their extensive use of the immigration exemption to deny people access to their data in 10,823 cases, "authoritative reports that cast doubt on the accuracy and reliability of the Home Office decision-making in the arena of immigration and data protection"  and that "it is clear that the Immigration Exemption plays a significant role in practice as a brake on access to personal data".

When dealing with the original judge's decision approving the immigration exemption, the Court says he relied on UK domestic case law to side with the government and say they were not obliged to follow the black letter requirements of GDPR article 23. In other words he felt the technicalities of article 23 were irrelevant in this context.

The appeal court decided he got this wrong. A clear line of judgments from the Court of Justice of the European Union supports the Open Rights Group, the3million and the ICO argument that the government do have to follow the rules of article 23 if they want to ignore data protection rights in connection with immigration cases. In the Digital Rights Ireland (2014), Tele 2 & Watson (2016), EU-Canada PNR (2017), Privacy International and La Quadrature du Net (2018, decided on the same day), the CJEU was "alert to the risk of over-broad derogations from fundamental rights; requires any derogation from fundamental rights to be justified by proof of strict necessity; and does not consider that this, or the requirement of proportionality, can be satisfied unless the appropriate safeguards are built into the legislative measure."

The CJEU was aware that member states would make end runs around fundamental rights when they felt like it and wanted to set up some hurdles to negotiate if that was the aim. And the UK government's argument that we should not worry our little heads about them taking away the rights of people because, like, they can always try another law if they are worried, didn't pass muster with Lord Justice Warby and his two colleagues.

"48. As I have indicated, however, I would prefer to decide this case on a narrower basis. I do not believe Article 23 should be construed as merely requiring the state to provide a general legal framework that contains guarantees of necessity and proportionality, and other safeguards. That might be a legitimate interpretation of Article 23(1), if it stood alone. But our analysis must reflect the fact that when updating and strengthening EU data protection law in the GDPR the legislature chose to depart from the approach to derogation that it had adopted in Article 13 of the Data Protection Directive. It particularised the requirements of Article 23(1), at some length, and in some detail, in Article 23(2). It seems to me that the respondents’ argument fails to explain or account for this and, in the process, leaves Article 23(2) with no significant purpose or function. In one sense, Article 23(2) clearly does provide a checklist. But I do not consider it plausible that Article 23(2) was intended to amount to nothing more than a sort of high level aide-memoire to the state about the kinds of matters it should have in mind when deciding whether to derogate from fundamental rights, in pursuit of one of the specified aims. The checklist is cast in mandatory terms, and calls for “specific” provisions. Sir James’s submission that these “specific provisions” can be found in general principles of human rights or administrative law, or in existing Articles of the GDPR is unconvincing. Article 23(2) itself – on the face of it – requires them to be contained in “any legislative measure referred to in paragraph 1

49. It may be that this wording is not to be read entirely literally; but it is remarkably specific and surely must be given some meaning. At any rate, in my judgment the better view, in the light of the CJEU jurisprudence, is that Article 23(2) requires any derogation to be effected by a “legislative measure” that is tailored to the derogation, legally enforceable, and contains provisions that are specific to the listed topics - to the extent these are relevant to the derogation in question - precise, and produce a reasonably foreseeable outcome. It can, I think, be said that this interpretation follows from the CJEU decision in La Quadrature. As I read that decision, the Court adopted and applied in the context of Article 23 of the GDPR the body of jurisprudence it had built up over the preceding years when dealing with Article 15 of the e-Privacy Directive and the Data Retention Directive. More generally, in this respect the Luxembourg jurisprudence and the language of Article 23(2) seem to me to be broadly if not precisely in step. The CJEU has repeatedly rejected submissions to the effect that domestic legislation should be held to pass muster on the basis that sufficient safeguards could be found elsewhere in the overall legal framework. The language of Article 23(2) seems to me to reflect the lines of reasoning enunciated in Digital Rights Ireland [54] and Tele2 [117-118], and the legislature may properly be considered to have intended an outcome on the same lines. 

50. The essence of the reasoning, as I see it, is that broad legal provisions, such as those that require a measure to be necessary and proportionate in pursuit of a legitimate aim, are insufficient to protect the individual against the risk of unlawful abrogation of fundamental rights. The legal framework will not provide the citizen with sufficient guarantees that any derogation will be strictly necessary and proportionate to the aim in view, unless the legislature has taken the time to direct its attention to the specific impacts which the derogation would have, to consider whether any tailored provisions are required and, if so, to lay them down with precision. This approach will tend to make the scope and operation of a derogation more transparent, improve the quality of decision-making, and facilitate review of its proportionality. To my mind the evidence to date as to the relevant decision-making tends to emphasise the importance of characteristics such as these." 

The good judge also takes comfort to note his conclusions "are consistent with paragraphs 45-46 of the Guidelines 10/2020 on restrictions under Article 23 GDPR published by the European Data Protection Board (“EDPB”)".It is clear that the immigration exemption in the Data Protection Act does not comply with GDPR article 23.

"The Exemption itself contains nothing, specific or otherwise, about any of the matters listed in Article 23(2). Even assuming, without deciding, that it is permissible for the “specific provisions” required by Article 23(2) to be contained in some separate legislative measure, there is no such measure."

What happens next remains to be seen. The Court has declared the immigration exemption unlawful but stopped short of striking it out, declaring the next steps the "subject of separate argument" for another day.

"55. The claim form seeks a declaration that the Immigration Exemption is incompatible with the Charter and the GDPR, and an order that it be disapplied, or alternatively a more limited form of declaration, specifying the conditions under which the Exemption might be lawfully applied. But at the conclusion of the hearing it was common ground that if we were in favour of the appellants the question of what relief should follow our decision would need to be the subject of separate argument...

56. The appropriate remedy in a case of incompatibility is a sensitive matter... Here, I have identified an omission that is, in principle, capable of remedy by measures that amend or supplement the existing provision. In the circumstances, I see merit in the cautious approach of both sides. I would defer a decision on relief, inviting further submissions on that issue in the light of these reasons."

The bottom line is that the reprehensible immigration exemption in the 2018 Data Protection Act is unlawful in its current form but it lives to fight another day. So, with the highest of plaudits due to the Open Rights Group and the3million for pursuing the case (and kudos to the ICO for supporting them), the knowledge that the exemption remains and the government essentially gets a license to reshape it, in a more legally acceptable form, is depressing.

Monday, May 24, 2021

Discriminatory code: R, the academic formerly known as Ray

Issues of digital identity are always complex.

Recently my long-time employer, the Open University, implemented a blanket email format change, incorporating first names in the email addresses of all staff, except for a handful of us who became aware of an option and took steps to opt out. This was done in spite of several prior warnings about the discriminatory effects of such real names policies.

I am deeply disappointed that my university has gone ahead with this policy which I consider is institutionally sexist, racist, anti-LGBTQ, discriminatory against other marginalised groups and wholly at odds with our values.

There is a long history of real/proper/full names policies creating disproportionately adverse consequences for different ethnic groups, women, neurodiverse and LGBTQ people. There are a multitude of reasons why people would choose not to include their first name in an email address and it is incumbent upon the Open University to respect those wishes.

The opt out, incidentally, consisted of those who were concerned, in advance and sufficiently alert to the potential fallout from the imposition of the format change, that, currently, most have neither the time nor energy to expend exhausted cognitive resources upon, engaging, on an individual basis, in DIY human resources system administration to change their preferred first name to an initial, in the requisite field/s.

In essence, I am now known officially, in OU systems, as R, not Ray.

Anecdotally, in two separate Open University Adobe Connect meetings last week, I was explicitly called out by the host/s as someone with a name they could not identify.

"I see there is an R.Corrigan who I don't know..."

"R.Corrigan, I'm not sure who you are..."

Proceedings were more or less paused to invite me to say who I was.

I declined and, on the second occasion, simply left the meeting.

Consider a member of a marginalised community placed in the same predicament.

We know about the discriminatory effects of architecture and built environments.

Communications infrastructure discriminatory effects are also very real and very serious.

The Open University should not be engaging in or perpetuating them. 

There was no intention, on the part of the people at the OU who conceived and implemented this policy or on the part of the University's executives who approved it, to discriminate. However, they were very clearly and repeatedly warned of the issues in advance of the policy implementation. They pressed ahead anyway. Additionally, once such infrastructure is in place, it is wholly irrelevant whether the architects intended to discriminate or not - the discriminatory effects are built in and there is no simple flick of a switch available to negate or reverse them. That is the nature of computer code.

The Open University is a unique and invaluable public service.

I expect much better of this venerable institution.

Friday, January 15, 2021

UKCRC/CPHC/UKRI/BCS policy engagement workshop

I spent the morning at a joint UKCRC/CPHC/UKRI/BCS workshop on policy engagement. There were a selection of interesting contirbutions from Jane Hillston Chair UKCRC, Edmund Robinson chair of CPHC, James Dracott of UKRI, Alastair Irons of the BCS, Chris Hankin of ICL and Chris Johnson, PVC, Queens University Belfast, who was repeatedly described as the hero who does  much of the heavy lifting on policy engagement & consultation work for UKCRC.

James Dracott, Sarah Main of the Campaign for Science and Engineering (CaSE) and chief government adviser, Anthony Finkelstein, particularly focussed on the practicalities of effective policy engagement with really engaging talks.

I liked James's reminder of Wiio's laws of communication.

  1. Communication usually fails, except by accident.
    1. If communication can fail, it will.
    2. If communication cannot fail, it still most usually fails.
    3. If communication seems to succeed in the intended way, there's a misunderstanding.
    4. If you are content with your message, communication certainly fails.
  2. If a message can be interpreted in several ways, it will be interpreted in a manner that maximizes the damage.
  3. There is always someone who knows better than you what you meant with your message.
  4. The more we communicate, the worse communication succeeds.
    1. The more we communicate, the faster misunderstandings propagate.
  5. In mass communication, the important thing is not how things are but how they seem to be.
  6. The importance of a news item is inversely proportional to the square of the distance.
  7. The more important the situation is, the more probable you had forgotten an essential thing that you remembered a moment ago.

Sarah had a great example of CaSE's influence on immigration policy.

Firstly, they asked government to exempt scarce skills STEM areas from the tier 2 visa cap. They produced and coordinated co-signed letters and petitions engaging authoritative other organisations in a broad STEM and business coalition, emphasising the cap was causing problems. They got the media to pick up the cause and it got traction. There was significant pressure on the Home Secretary, Amber Rudd at the time, from a range of issues, not least of which was the Windrush scandal. Ms Rudd then got replaced by Savid Javid. The combination of Windrush, unfilled vacancies in an under-pressure NHS and the CaSE campaign eventually led to government exempting NHS roles from the tier 2 visa cap. Now, post Brexit, The Home Office support for a global talent visa is particularly pertinent to the STEM agenda.

In summary, Sarah concluded that effective policy engagement requires:

1.       A substantive body of evidence underpinning your case

2.       The building of relationships in the policy space

3.       Collaboration with other organisations to work together

4.       Good timing

Policy decisions are multifactorial decisions and we cannot expect to be considered the most important voice but should work to bring evidence-based influence to bear.

Anthony Finkelstein rounded off the morning with a no nonsense collection of ten things to know and do to make a policy impact. Firstly you have to know the politics. Many academics may have soft liberal or left tendencies but must recognise that the current government is Tory. Do not believe what you read in the papers – reacting to newspaper speculation often leads to circular discussion and debate bubbles that don’t make useful contributions. Remember you are one voice amongst many. Be active in being in right place at right time. If the issue is current, you are probably too late. If you are reacting to a research funding call you are a year too late. What is needed is foresight and preparation. Authority and tone count. Speaking with authority of national academies, UKCRC, high quality peer reviewed literature carries weight. A whiny critical tone will not be attended to. Know 'who and where' – know the 'geography of government.' The person handling your material is probably pretty junior. The central civil service is now very thin and very stretched. Junior civil servants welcome help (backed with evidence) not criticism. In government money is in short supply. Everything that happens does so at the expense of something else. Manage your own political capital. If your point is made elsewhere by and with authority don’t repeat it. Leverage other good voices. CaSE are brilliant at this. Encourage your students to become civil servants. It is a rich career. These people are in great demand. They will also make government technological capability better. Use government chief scientific advisers. They have significant influence and can reach directly into Downing St if needed, have regular meetings with Patrick Vallance and can reach their own permanent secretaries when they need to. In short:

1.       Issues matter and service is noble

2.       Know the politics

3.       Do not believe what you read in the papers

4.       Remember you are one voice amongst many … If the issue is current you are probably too late

5.       Authority counts, tone matters

6.       Know who and where. The person handling this is probably pretty junior (and will not welcome criticism but will welcome help, generally evidence)

7.       Money is in short supply – time and people are too

8.       Manage your political capital

9.       Encourage your students to be civil servants

10.   Use the Chief Scientific Advisors