by Angela Daly

 

COVID hit at a febrile time more generally for the United Kingdom in the context of its exit from the European Union and ongoing issues over the devolved nations, particularly Northern Ireland with its land border with the Republic, and Scotland, both of which had voted to remain in the EU during the 2016 referendum. Scotland had in 2014 its own referendum on independence from the UK, which was won, albeit fairly narrowly, by the ‘No’ side. While a pro-Brexit right-wing Conservative government rules in London, the devolved administration in Edinburgh is led by the centre-left Scottish National Party (SNP) government and first minister Nicola Sturgeon.

However, when the pandemic first hit the UK in the early months of 2020 there was no discernible difference in approach between the Scottish Government and the UK Government. In March 2020 both Scotland the wider UK imposed lockdowns later than in other European countries and in mid-March both abandoned manual contact tracing around the same time that big tech firms such as Palantir were invited to meetings with the UK government. Later that month, NHSX (the English public health service unit tasked with setting policy and best practice for digital technologies and data in health) started developing a contact tracing app amid cries of digital triumphalism and technodeterminism from the Johnson administration in London that we could digitise our way out of the pandemic.

Health is a devolved power in the UK, so the Scottish Government has full responsibility for health policy in Scotland. In May we began to see divergence between Scotland the wider UK on pathways out of lockdown (Scotland has generally taken a more cautious approach to this issue than the UK government) and also on data, with the publication of the Test, Trace, Isolate, Support policy. It signalled the relaunch of Scotland’s own contact tracing scheme, foregrounding manual contact tracing which may then be supplemented by a ‘web-based’ digital ‘tool’, pointedly not an app.

But data in the context of COVID is not just contact tracing and apps, even though they have been the focus for significant debate and advocacy. The data which government releases and restrains about COVID infections and prevalence is also key to informing political debates and personal choices, and the situation in Scotland presents a complex picture of the tensions between health, the economy and politics both at the local level and as a snapshot of more global tensions in the pandemic response.

Contact tracing and the app

Scotland’s (belated) approach to contact tracing is one of the most prominent examples of its divergence with the UK central government on COVID data policy. From May Scotland set up its own contact tracing system, building capacity in its public healthcare service (NHS), in contrast to the outsourcing of this service to private companies that has occurred in England. The Scottish Government also expressed its reservations with the NHSX app and the lack of consultation with devolved administrations. However it still came as a surprise in August when the Scottish Government announced that it was launching a contact tracing app and would be adopting the Republic of Ireland’s model and software, developed by Irish company Nearform. The Northern Irish administration has also adopted this model which makes sense given political and geographical reasons, principally the land border with the Republic. The Scottish Government’s decision to adopt the app is more overtly political, inasmuch as its land border is with England rather than Ireland. However the RoI app is reasonably privacy-protecting through its adoption of the Google-Apple app protocol and decentralised design, purpose limited and already has a track record of functioning reasonably well, the same which cannot be said of the original NHSX app. Even the NHSX app’s current incarnation, released after the Scottish app, still seems to be suffering from malfunctions.

The Scottish Government may have adopted the RoI app for politically pragmatic reasons, but it leaves the nation in a position where it has followed the lead of another nation-state (Republic of Ireland) rather than its own central government in London, leading to a ‘Gaelic Fringe’ approach to apps and contact tracing across the (contested) borders of nation-states in the islands of Britain and Ireland. The outcome of this approach may be de facto the establishment of Scotland’s digital sovereignty in a similar way to the movement in Catalonia, another separatist region in Spain. This is all the more significant given Scottish Parliament elections in 2021, which the SNP are tipped to win by a landslide, and calls for another independence referendum, with polls consistently showing a pro-independence vote in the lead.

Yet the need to adhere to the Google-Apple protocol in order to create functioning apps does limit political entities’ digital sovereignty, both of Scotland and full nation-states which have had to use this protocol for their own apps. The Google-Apple protocol has promoted a measure of privacy protection lacking, for instance, from the UK Government’s initial NHSX app, but the need to adopt this protocol for a successful app demonstrates and reinforces the power of big tech firms.

Government transparency

The Scottish Government has undoubtedly been more transparent about its COVID app than its counterparts in London have been about the NHSX app and the involvement of big tech firms in providing digital infrastructure for the pandemic, as a series of openDemocracy investigations have demonstrated.

However the Scottish Government does not have a flawless record on its own transparency during this period. In Scotland freedom of information (FoI) laws were ‘relaxed’ at the outbreak of the pandemic in April, allowing government agencies a threefold extension to their deadlines for responding to freedom of information requests. These measures were strongly criticised at the time. Even the UK government did not relax FoI laws to the same extent. The Index on Free Expression criticised the Scottish Government, comparing it to Bolsonaro’s Brazil for its restrictions of freedom of information rights during the pandemic.

Access to public data and information extends beyond FoI. Who is infected with COVID and who has died from COVID and where have been key questions in order to understand whether certain groups have been more impacted than others. In England people from Black and Minority Ethnic (BAME) backgrounds have been more susceptible to infection and death form COVID for a number of reasons including socio-economic circumstances, structural racism and pre-existing health inequalities. Scotland has a significant minority population of South Asian origin, and there was anecdotal evidence in spring 2020 that this community was experiencing a disproportionate amount of COVID deaths. Scottish NGO the Coalition for Racial Equality and Rights (CRER) raised concerns about the lack of data on this issue and the poor quality of the data that did exist. Finally, in July the National Record of Scotland published a study on ethnicity and COVID in Scotland which found that South Asian people were 1.9 times more likely to die of COVID. This is in line with outcomes in other parts of the UK, but the Scottish data was made available later than elsewhere. CRER is still calling for more and better data to be generated and released on COVID and ethnicity in Scotland.

Data and marketization

For contact tracing the Scottish Government has followed a less neoliberal and privatised approach to England, where these functions have been outsourced to private companies (ironically including some located in Scotland, one of which itself experienced a COVID outbreak). However marketization and privatisation of other public functions have had an obfuscating impact on what data is available to the public in Scotland.

Like elsewhere in the UK, and in other western countries, care homes for the elderly and disabled have been severely impacted by COVID, with many residents dying of the disease. One notorious example was the private Home Farm care home on the Isle of Skye, where ten residents died of the virus, run by HC-One, one of the UK’s largest care home providers. Care home regulatory bodies in both England and Scotland have refused to make public the numbers of deaths in specific care homes, with part of the justification being that this would negatively affect providers’ commercial interests.

While so far not as deadly, marketised universities in Scotland like the rest of the UK brought students back to campus for the start of the new academic year (in some cases with all teaching still online) and have experienced COVID outbreaks in shared student accommodation from September 2020. There has been patchy information about COVID cases among campus communities, with some institutions releasing this data and others not, leading to the UniCOVID site set up by two University of Sussex academics to track developments. It seems that universities are becoming more forthcoming about tracking their own COVID outbreaks and releasing data publicly, however there is no systematic way this is being done and not every institution is readily providing this data. Marketisation of this public service has led to students returning prematurely to campuses and may have contributed to institutions’ reticence in compiling and publicising data about COVID cases.

There are aspects of the Scottish digital story which demonstrate a clearly different path from that of the UK central government, notably the approach to contact tracing which remains within the public health service rather than being outsourced to private providers, yet also which represents a radical alignment with Dublin on the app. Along with the Belfast administration’s embrace of the Nearform software, we see a Gaelic Fringe approach to contact tracing apps emerging, one which is also in line with European standards more generally and thus represents a further cleavage with the pro-Brexit London government. While the Scottish Government may have adopted this approach for pragmatic reasons, in outcome it may be seen as a further step towards Scotland’s digital sovereignty in some senses, but also shows the limits of this sovereignty inasmuch as the Google-Apple protocol is respected.

The worst excesses of the UK government’s privatised and digitised COVID response are not replicated in Scotland, but equally things have not been perfect either. Transparency, who is counted in data, and what data is available to the public have been influenced negatively by logics of privatisation and marketization in public functions, particularly in care homes. The needs of ethnic minorities to be counted and visible in data when COVID has disproportionately affected them, were not adequately addressed and taken account of by the Scottish Government.

Scotland shows the potential for the margins to forge different paths on data than the cores, but also the limits of doing so in a world of big tech, neoliberal logics and inequalities. Groups such as the CRER demanding more and better data on COVID and ethnicity in Scotland and the wider UK initiative UniCOVID providing data on university outbreaks including in Scotland shows the kinds of bottom-up data activism emerging in the COVID context. With COVID, data is power, data is political and this is as true in Scotland as it is elsewhere.

 

About the author

Dr Angela Daly is Senior Lecturer in Strathclyde Law School and Co-Director of the Strathclyde Centre for Internet Law & Policy in Glasgow, Scotland. As a ‘critical friend’ she has advised the Scottish Government on data in its COVID-19 response as a member of the COVID-19 Data Taskforce and a board member of Research Data Scotland. She co-edited the open access book Good Data in 2019.