How Should Policy Proceed ?
The government intends that contract tracing will play an important part in the UK’s safe return to work as the Covid-19 pandemic subsides. But the question it must now consider, says Anthony Speaight QC, is how best can this laudable aim be achieved?
There are signs that ministers may be weighing up whether to persist with the trials of the unproven app proposed by officials for contact tracing. Not only has the app prompted concerns about a bureaucratic apparatus with the potential for unprecedented intrusion. But the loss of public trust that would result were the app to fail could diminish the very take-up on which the success of a tracing programme depends. Should the government therefore pause before rushing ahead with this app, and consider other systems to achieve its aims?
The value of tracing the contacts of individuals infected with Codid-19, so far as it can be achieved, is widely recognised. There is also wide acceptance that, faced with the gravity of the current emergency, it is worthwhile to attempt to trace infectious contacts through a smartphone app, although there is as yet no certainty how much this will achieve. The issue is as to the choice which has been made between two significantly different types of app, and the lack of safeguards being offered with the method which has been chosen.
It is impossible to understand why the seemingly technical question of the choice between …
Many of the questions raised by the use of the NHSX are already being considered by MPs. The Joint Parliamentary Committee on Human Rights has proposed delays and safeguards. Others have drawn attention to the introduction by other countries of a non-centralised app for some of the reasons discussed here. The government, meanwhile, has started its pilot scheme on the Isle of Wight and though continuing with the centralised model, it is keeping ‘all options under review to make the app as effective as possible’ (8 May).
Prompted by the concerns discussed in this analysis, the Joint Committee on Human Rights has advised that the Government should not rollout the NHSX app until important steps have been taken. These include the enactment of legislation to provide assurances on privacy, and the establishment of a Digital Contact Tracing Commissioner to oversee it. The Committee calls for the highest standards of data security, and for the deletion of all data at the latest after 2 years. It seems that all these sensible suggestions are being ignored. Government sources today are seemingly briefing the press of an intention to roll out the NHSX app nationally during the present month of May.
There are strong reasons now to move to other options. All in all, the NHS app is an unnecessary mare’s nest of problems. Our heritage leans heavily against a powerful or all-knowing state. For example, Britain is a country which, unlike most of our European neighbours, has always resisted identity cards in peacetime. A centralised contact tracing app may reflect the centralised organisation of the NHS: but it fits ill with the deeper political culture of our nation. If it is to be deployed at all, it must be delayed until safeguards, such as those in the Edwards draft Bill have been enacted. But the better course will be to abandon NHSX, and in common with most of the rest of the Western world use the safety of a decentralised tracing model.
*Anthony Speaight QC is a barrister at 4 Pump Court. He was a member of the Government Commission on a UK Bill of Rights. He recently co-authored Pardonable in the Heat of Crisis – but we must urgently return to the Rule of Law, with Guy Sandhurst QC. He is past Vice-Chairman of the Bar Council’s IT panel.
Currently he is Chair of Research of the Society of Conservative Lawyers, but writes here in a personal capacity.