Scotland

Home Office Data Subject Access Request: Part One

Clicky Steve, , , , , , , , , 1 Comment

Data Subject Access Requests (under Article 10 of the Data Protection Act 1998) are powerful tools that allowed people to request a copy of any information held on them by organisations (with some exceptions). In order to provide a response, a fee of up to £10 could be charged.

With the new GDPR era, these fees are no longer going to apply, and the access requests will now be covered by Section 94 of the Data Protection Act 2018 (which is set for Royal Assent today). As a result, I suspect we will be seeing far more of these requests… and given how underprepared most organisations have proven to be with the DPA 98’s mechanisms, it will be interesting to see how they cope.

I decided to investigate the process myself with none other than the UKVI. Formerly known as the UKBA. The visas and immigration people. I’m pretty sure they must have some interesting information on me, especially given that my spouse is a foreign national.

Handily, they have a page where you can submit your request for information on gov.uk. The process is, as you would expect, fairly convoluted. There are three categories of information you can request: Basic, Specific, or Detailed. For the ‘Detailed’ request, they are still asking for the £10 fee. However, in order to verify your identity, they require a host of information, including:

  • Your passport number.
  • A copy of your passport.
  • Written confirmation that your passport is a ‘true likeness’ of you.

Interestingly, they ask for a lot more information, including your parents’ date of birth, etc. This is noted as being ‘optional’, but still presents itself in such a way that it seems like it might be required. Let’s repeat after me: Data Subject Access Requests should not be an excuse to mine more data. I chose not to provide any more details than was necessary.

Back to what was required: Data controllers have an obligation to take ‘reasonable measures’ to verify the identity of a person making a request, and so some of this is fair enough. However, the passport number alone should be sufficient, since the UKVI hold all of the information anyway. A copy of the passport seems unnecessary, and the written confirmation of the likeness just seems bonkers – especially since the list of people who can give this certification is prohibitively small:

 

  • a legal representative, registered with the Office for the Immigration Services Commissioner (OISC)
  • a solicitor, barrister or chartered legal executive
  • a commissioner for oaths
  • a registered charity

Now, I am not one to suggest that the UKVI may well be trying to make it as difficult as possible for somebody to make a subject access request, but it certainly seems like this is not in the spirit of the GDPR, or the DPA 2018. The list above is even more restrictive than the categories of people who can countersign photos to get a passport in the first place. To illustrate the point, here are the professions of folks who can counter-sign your initial passport application:

Examples of recognised professions include:

  • accountant
  • airline pilot
  • articled clerk of a limited company
  • assurance agent of recognised company
  • bank/building society official
  • barrister
  • chairman/director of limited company
  • chiropodist
  • commissioner for oaths
  • councillor, eg local or county
  • civil servant (permanent)
  • dentist
  • director/manager/personnel officer of a VAT-registered company
  • engineer – with professional qualifications
  • financial services intermediary, eg a stockbroker or insurance broker
  • fire service official
  • funeral director
  • insurance agent (full time) of a recognised company
  • journalist
  • Justice of the Peace
  • legal secretary – fellow or associate member of the Institute of Legal Secretaries and PAs
  • licensee of public house
  • local government officer
  • manager/personnel officer of a limited company
  • member, associate or fellow of a professional body
  • Member of Parliament
  • Merchant Navy officer
  • minister of a recognised religion – including Christian Science
  • nurse – RGN or RMN
  • officer of the armed services
  • optician
  • paralegal – certified paralegal, qualified paralegal or associate member of the Institute of Paralegals
  • person with honours, eg an OBE or MBE
  • pharmacist
  • photographer – professional
  • police officer
  • Post Office official
  • president/secretary of a recognised organisation
  • Salvation Army officer
  • social worker
  • solicitor
  • surveyor
  • teacher, lecturer
  • trade union officer
  • travel agent – qualified
  • valuer or auctioneer – fellows and associate members of the incorporated society
  • Warrant Officers and Chief Petty Officers

This means that the requirements for verifying ‘likeness’ are higher to get information held on you by the UKVI, than they are to get a passport in the first place.

For my subject access request, I have been told I have 15 days to submit the relevant documentation, including the above:

UKVI Requirements

Despite making the application online, I also apparently can’t submit the evidence online – so I’m not sure what the point of offering such a service is in the first place.

In my opinion, the requirements are not ‘reasonable’, and providing my passport number alone should be enough. As a result, I will not be submitting statements from a solicitor or charity at this point to support my request. I am going to operate on the assumption that the online system is not properly equipped to deal with subject access requests properly, and that the evidential standard is being confused with actual visa applications. I have contacted the UKVI directly with these concerns. Here’s what I said:

Reference: [redacted]

Hi,

I have just submitted a Data Subject Access Request under s.10 of the DPA 98 and s.94 of the DPA 2018 (which just received Royal Assent). This should further be considered in light of Article 15 of the GDPR.

As part of the evidential requirements listed on your site, I must provide:

1. A copy of my passport.
2. A ‘written confirmation of true likeness’ from a third party.
3. A letter of permission.

Firstly, I want to point out that there is no way to provide these documents online, despite the initial application being made online. I therefore request that you agree to receive items 1 and 3 electronically, rather than by post.

Secondly, I object to the requirement to provide a written confirmation of true likeness. As you will be aware, data controllers are required to undertake ‘reasonable measures’ to verify the identity of the person making the Data Subject Access Request. I submit that by providing a copy of my passport, and the passport number, that this more than satisfies the legal requirement.

Further, I submit that since the list of those who are considered appropriate to provide this written confirmation is less extensive than those who can act as a counter-signatory for a passport application in the first place, that this requirement is demonstrably disproportionate, and as such not required to respond to my request.

To summarise, please advise that:

1. You will accept items 1 and 2 from the above electronically.
2. That the written confirmation of true likeness is not required to give effect to the request under the relevant law.

Yours sincerely,

We will see what happens. Should my subject access request be denied, then it would appear that the UKVI really are requiring a disproportionately high standard to verify people for their Data Subject Access Requests, and I’ll need to revisit it at that point. Stay tuned.

Yes, Protest Does Matter.

Clicky Steve, , , , , , , , 1 Comment

In the past week, we have seen peaceful protests around the world, in response to the actions taken by Donald Trump, as he has assumed the American Presidency.

Despite not having attended any of the demonstrations myself, I’ve been troubled by the fervent reaction against those who have done so, and the poor arguments that have been made against speaking out. So, without passing comment on the content of any of Trump’s policies or actions, I’ve decided to address the common criticisms publicly:

1. Protesting doesn’t make any difference.

I almost can’t believe that this statement is still being uttered in 2017, after all that has been written, and after we have seen and to-this-day celebrate the outcomes of peaceful protest in the past.

The ultimate goal of protest is obviously to bring about change, but few who take part in any single act of resistance are naive enough to believe that that one particular event will have devastating political ramifications on its own. Movements are built over time, and are successful by building the pressure on those in power.

In this particular situation, there is a real chance that sustained protest can have an impact on the policies of the Trump administration. The Republican party is not full of evil people, and many viscerally disagree with his approach to many issues, but at present feel unable to speak up against them. If all these people hear is silent indifference to what is going on, they are far less likely to have the courage to take the first steps themselves in opposition.

For many, even if there is absolutely zero chance of political change, demonstrations are still immensely important. First and foremost, they are about standing up and publicly stating that you refuse to quietly accept actions that you fundamentally disagree with, and may otherwise be powerless to stop. It’s about demonstrating to other people who facing the brunt of the effects that they are not alone. That’s why they are called ‘demonstrations’.

I won’t draw comparisons between Trump and Hitler at this point, but I do find it rather curious how one of the biggest questions people have when looking back at history is how the German population could possibly have let fascism take hold, seemingly without much protest. I wonder how many people were dismissing those who spoke up, with the same argument: ‘Protesting won’t make a difference’.

2. It’s a foreign country. It doesn’t have any impact on you or people you know. Focus on your own issues.

There are a few constitutent parts to this. Firstly, this kind of statement is often made in a blanket fashion, completely ignoring the personal relationships that the person on the receiving end may have. Where their wife may come from; where their friends may live; where the company their work for is based, for example.

Secondly, even if a person has zero personal ties to the US, the idea that we could close our eyes and ears to what happens outside of our country is a non-sequitur. In fact, it’s the worst kind of nationalism. Following the argument through logically, no Scottish person should ever speak about the evils of apartheid – because it was a South African issue. Neither should the UK have gotten involved in the Second World War. There are innumerable examples of why this doesn’t hold water.

There is a valid criticism to be made of people who only care and speak up about what they see on the news in a foreign country, whilst acting completely indifferent about what is happening in their own back garden. However, that sort of criticism can only be made with in depth knowledge of a person and their motives, and is certainly not something that should be applied with a broad brush to people whose background you have no idea about. Just because somebody is concerned about the actions of Trump, doesn’t mean that they aren’t equally as passionate about the right wing agenda of the UK Government, or that they volunteer at a local foodbank every night.

All of this aside, the reality is that what happens in America does impact what happens in the UK. The policies and rhetoric of the most powerful man on Earth, who leads the biggest military superpower in modern history, who happens to be our supposedly closest ally, definitely has repercussions around the globe. To pretend otherwise is simply foolish.

To bring it home, so to speak: the ‘solidarity’ word is one that comes with a lot of baggage, but it is exactly what protest is often about: making a statement about what kind of society you want and believe in, even in spite of everything that may be happening elsewhere. It’s about saying: ‘The most powerful nation on the planet may be targetting refugees, but we won’t accept those same actions here.’ If all the protests in Glasgow yesterday achieved was to make a single refugee feel more welcome and secure in their adopted city, then they were already a success.

3. The American people chose to vote for Trump. Get over it.

This is one of the most ridiculous assertions of the lot. The idea that once a political party or candidate wins an election that they are infallible, and should be immune from any sort of criticism is ludicrous. At best it is complete hypocrisy on the part of those uttering this nonsense, and at worst an extremely dangerous perspective, that results in human rights abuses in countries like Turkey and Russia.

4. Protesters are just idiots who are virtue signalling whilst contributing exactly zero to the cause they’re apparently so passionate about.

This is pretty much a word for word comment from someone who didn’t approve of the demonstrations held in Glasgow yesterday, but the language is similar to a lot of others.

Here’s how ‘virtue signalling’ is defined:

virtue signalling (US virtue signaling)

noun [mass noun]

the action or practice of publicly expressing opinions or sentiments intended to demonstrate one’s good character or the moral correctness of one’s position on a particular issue: it’s noticeable how often virtue signalling consists of saying you hate things | standing on the sidelines saying how awful the situation is does nothing except massage your ego by virtue signalling.

On its own, the phrase is seemingly innocuous, but more and more frequently it is now being used to dismiss people who are taking a position that others disagree with, without them having to actually intellectually engage with that position. It’s become one of the lazy phrases like ‘fake news’ that I can’t stand, as it doesn’t actually mean anything in practice.

Given that the phrase is based on intent, the only way ‘virtue signalling’ could accurately be ascribed to those who chose to demonstrate against Trump or his actions, would be if the person using it knew those intentions. In other words, they would need to know the specific motivating factors involved… something that is clearly impossible when applied to a group.

It’s probably worth being crystal clear on this: disagreeing with your position doesn’t mean that somebody is ‘virtue signalling’. It means they disagree with your position. Challenge them on their arguments, not with some spurious empty phrase that only serves to shut down discussions that you can’t handle.

Trump image by Gage Skidmore – used under CC-BY-SA 2.0 license

Common Brexit Legal Myths Debunked

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Legal myths and inaccuracies have been rampant in the days following the outcome of the EU referendum. I collected these as I sat sipping leche de pantera in sunny Barcelona, and have put together an explanation for each of the biggest howlers below.

‘The referendum was only advisory, not legally binding.’

No, the referendum is not legally binding – but that should be of no surprise, as no referendum in the UK ever is.

The response from a lot of folk at this point is to reference the 2011 referendum on whether or not to adopt a system of proportional representation for Westminster. This is thought of as a referendum where the result would be ‘legally binding’ on Parliament. Part of the relevant language of the Parliamentary Voting System and Constituencies Act 2011 that lends itself to this view is:

8Commencement or repeal of amending provisions

(1)The Minister must make an order bringing into force section 9, Schedule 10 and Part 1 of Schedule 12 (“the alternative vote provisions”) if—

(a)more votes are cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, and

(b)the draft of an Order in Council laid before Parliament under subsection (5A) of section 3 of the Parliamentary Constituencies Act 1986 (substituted by section 10(6) below) has been submitted to Her Majesty in Council under section 4 of that Act.

(2)If more votes are not cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, the Minister must make an order repealing the alternative vote provisions.

(3)An order under subsection (1)—

(a)must bring the alternative vote provisions into force on the same day as the coming into force of the Order in Council in terms of the draft referred to in paragraph (b) of that subsection, but

(b)does not affect any election held before the first parliamentary general election following that day.

Rather than binding Parliament to a decision, this simply sets out the process by which they would be expected to implement the result in a statutory form. That in of itself does not impose a legal obligation on Parliament to actually do so. Even if it did, the doctrine of Parliamentary Sovereignty means that it is impossible for Parliament to bind itself in such a way. Just as the statutory recognition of the Scottish Parliament’s ‘permanence’ is symbolically important but legally meaningless, the same applies here. Politically, expectations may be set by statutory wording, but legally there is absolutely nothing to stop Parliament ignoring the result of any referendum.

The nature of the referendum does come into play when considering another one of the myths though, so we will come back to it later on.

From my own personal, political standpoint (rather than a legal one):

When it comes to the ‘advisory’ part of the claim about the referendum, it is a word that has conveniently only cropped up in the aftermath of the result, usually to aid a particular position. Changing the expectation of referenda in this way is a dangerous game. We should not start to assume that a referendum result will not be implemented by default, and that the Electorate are only giving their ‘opinion’, just because it technically isn’t legally binding under the constitution. If Parliament wish to ignore the expressed will of the people, we should not let them away with the political consequences of doing so.

At no point in the lead up to the EU referendum was it ever suggested that the result would only be ‘advisory’. To pretend otherwise would be a disgrace, and do a massive disservice to our Democracy. Imagine the fallout of Scotland had voted to leave the UK, only for the outcome to be dismissed on the basis that the referendum ‘was only advisory’.

‘The Scottish Parliament can veto the referendum result.’

Ah, wouldn’t it be glorious if it were true. Sadly, it’s not. This is a myth that appears to be caused, or at least perpetuated by the media’s misleading coverage.

The Sun's ill informed title
The Sun’s ill informed title. What a surprise.
Misleading headline from the Independent
Misleading headline from the Independent
The BBC's original headline
The BBC’s original headline

It’s worth noting that the BBC have since updated the story’s title to be more accurate:

BBC's updated veto title

There are some brilliant responses already that deal with this question in depth. As great as they are, they tend to approach things in a more academic fashion – which isn’t necessarily all that clear for those without a legal background. For this reason, I think it’s worth reiterating the position in a more straightforward fashion.

In short, the Scottish Parliament has no legal power to ‘veto’ any decision of the British Parliament – and particularly not this one. Westminster is sovereign, and can make or unmake any laws it likes, including the very existence of the Scottish Parliament if it so chose. (Again, see my previous blog on this very topic for more). There would of course be political fallout to any of these decisions, but legally nothing would stand in their way.

If there is no veto, what was all the media fuss about then?

There is a ‘constitutional convention’ that Westminster would seek legislative consent from the Scottish Parliament before legislating on any area that would affect devolved matters, which can be thought of as a sort of ‘gentleman’s agreement’; an understanding that the elected representatives of Scotland should at least be consulted before Westminster exercises their sovereign power to over-rule them. This could be (shakily) equated to a parent choosing to knock before entering into their teenagers’ bedroom. Nothing would stop them from waltzing in unannounced, but they make the choice not to out of respect for the other person’s individual autonomy. If parents continually disrespect this unwritten social understanding, then the overall relationship will suffer as a result.

In the interview with Nicola Sturgeon, you will notice that she never once mentioned the word ‘veto’. Rather, she stated that she would ask the Scottish Parliament to refuse to give their ‘legislative consent’, something which they are perfectly entitled to do. This may well pose a significant political and constitutional issue for Westminster, but nothing would prevent them from pulling out of the EU anyway.

As it stands, there is a very real chance that the Scottish Parliament would never have the chance to refuse to give their legislative consent anyway. If Westminster were to vote on the issue, this would be far more likely, but…

‘To leave the EU, the British Parliament will have to vote on it.’

Nope.

The idea here is that in order to give the now infamous Article 50 notification to commence the process of the UK leaving the EU, it will have to be approved by the Westminster Parliament – and potentially even the House of Lords. Those looking to find a way to avoid exiting the EU are hoping that since a majority of MPs are opposed to leaving, they will refuse to do so, scuppering the whole thing.

What people who bring this up forget is the existence of the ‘Royal Prerogative’, a curiosity of the British constitution that allows for action to be taken (usually on the advice of a Prime Minister) without requiring Parliamentary assent. This is the norm for international treaties, and it’s precisely the mechanism David Cameron was expected to employ before he dropped the mic and kicked the ball down the field for somebody else to deal with.

Parliament could block the repeal of the European Communities Act 1972 when it came time to do so, but if the Article 50 notification process had already been invoked, this would be completely pointless. After 2 years (unless there was a unanimous agreement to extend this period), we would be out of the EU under European law, whilst still domestically bound by the requirements.

‘Under European law, the result of the referendum is invalid as less than 65% of those who voted did so to leave.’

This particular idea seems to have come from people desperately reading various laws to come up with some way to nullify the vote’s outcome. It’s also completely incorrect, resulting from a simple misinterpretation of the law.

Edit: Apparently this error is the basis of a petition signed by over 4 million people to call for a second referendum. Even more important to clear it up.

The wording that gives rise to the confusion is found in our old friend Article 50 of the Treaty of the Functioning of the European Union. Section 4 states:

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

and Article 238(3)(b) says:

(b) By way of derogation from point (a), when the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72% of the members of the Council representing Member States comprising at least 65% of the population of these States.

Rather than imposing any requirement on the percentage of people who have to vote to leave the EU in a Member State, this sets out the framework for how the European Council will go about negotiations should that Member State decide to leave. The 65% figure relates to the makeup of the group that will enter into those negotiations.

Further, Section 1 of Article 50 TFEU is pretty clear:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

If the UK decided to draw straws, or have a haggis flinging competition to decide whether or not to leave the EU – that would be perfectly acceptable (so long as it complied with other general EU law principles). The point is that the decision making process is something that is entirely up to the Member State in question to determine. Again, this provides a neat segue into the final incorrect assertion:

‘The EU will force the UK to leave if we don’t trigger Article 50.’

If you listen to the President of the European Commission, Jean-Claude Juncker, it would sound like the UK is about to be kicked out of the EU, even if it doesn’t invoke Article 50. However, there is nothing in the European treaty that allows for that possibility.

As things stand, the UK is arguably still involved in the decision making process of whether to leave the EU or not, in accordance with the British constitution. The referendum is hugely important, and Westminster should ignore it at their peril – but given that it isn’t legally binding on the British Parliament, then it means absolutely diddly squat under European law.

Until the Article 50 notification is invoked, legally absolutely nothing has changed between the UK and the EU. This is why Juncker’s smart-ass riposte to UKIP in the European Parliament isn’t all that clever at all. Politically, pressure is mounting, and feelings are obviously running high, but the UK remains a full Member State – something which everyone would do well to recognise.

—

If you’re looking for some good legal resources (some with particular political slants), check out the following blogs:

https://publiclawforeveryone.com/

http://barristerblogger.com/

http://lallandspeatworrier.blogspot.com/

http://jackofkent.com/

Scotland, get ready to fight

Clicky Steve, , , , 3 Comments

Earlier today, we woke up to the terrible realisation that the UK had narrowly voted to leave the European Union. This was an outcome that I ultimately expected, but facing the stark reality of the situation has still left me feeling numb, and in shock. Opening my eyes to see ‘Nigel Farage declares independence day’ and ‘British Pound drops to a 31 year low’ on my phone’s lock screen is something I’m not sure I’ll ever be able to forget; reminiscent of a dystopian nightmare rather than reality.

To make things worse, the dogged, often proud ignorance of those smugly celebrating victory in the immediate aftermath has been staggering. As I write this, I am overlooking the City of Barcelona, and being here only renders the sadness even more palpable, and even harder to believe. 

However, this is not a drill. This is the real deal. Like it or not, the U.K. Has voted to leave the EU, and the question is what we are going to do about it now.

Many legal commentators have pointed out that the referendum isn’t binding. Whilst technically correct, this ignores the political reality, and does nothing but give a false sense of hope to those who are hurting most at this point. Of course the legal position should be stated, but it must be done holistically, not in a theoretical vacuum. There is no realistic chance of Westminster refusing to honour the outcome, nor should there be. I despise and despair at how the vote went, but the result must be respected. 

Scotland’s First Minister Nicola Sturgeon has announced that she plans to prepare for the possibility of a second Scottish independence referendum, in response to 62% of those who voted choosing to remain. She is right to do. The SNP stood for election to the Scottish Parliament just a few months ago with a clear indication that they would seek another referendum in this precise scenario. There are many who will not like this, but the Scottish people chose to return them to power in Holyrood knowing this. Just as the result of the EU referendum must be respected, so must that be.

We were told during the last referendum that ‘the only way to ensure Scotland’s continued membership of the EU is to vote to remain part of the U.K.’. For those of us who do not wish to see us removed from the EU despite a majority vote to remain, independence is the only possible solution. If that last shred of hope is to be realised, we need to be prepared for the fight of our lives. This is it. There will be no third chance. 

The last time we had a chance to vote on Scotland’s independence, it caught many of us by surprise. I don’t think I’m alone in feeling like even the vote itself couldn’t possibly be actually happening, up until the last few weeks. That is not the case this time around. We have woken up; we know the score, and if we want to have any chance of success we need to start preparing right now. 

Yes, we were told that a vote for Scottish independence would mean economic chaos… Leaving the EU… Cutting off ties with our neighbours… Jumping into the unknown… and yes, all of those arguments seem null given the inevitable Brexit fallout. However, we cannot rely on this alone to make our case. We need to be smarter in how we approach things, and have better, concrete answers for issues like currency. I have faith that Nicola Sturgeon and the SNP will be able to put together a solid case, but it’s up to us to make it compelling. 

Here are some general things that we need to start doing, from this point on:

  • Push for Scottish independence. We cannot rely on Nicola Sturgeon and the SNP alone to call for a second referendum. If we want it, we have to demand it. It’s now or never. Write to your MSP… Tweet them… Sign the SNP’s pledge of support. Do as much as you can to demonstrate the appetite that exists. 
  • Nail your colours to the mast early. In the first referendum, many of us waited far too long to express and articulate our positions, in order to avoid causing problems with friends or family. By the time we did, it was too late. This time, we have to speak up loudly, firmly, but politely. People will value what you think, and this is too important an issue for you not to be heard. Set up your own blog, write letters to newspapers, create music or other art… Just make sure you speak up.
  • Understand your arguments. It’s not enough just to want independence and argue with whoever disagrees. Get informed and understand why you believe what you do, and be able to articulate it. Don’t just reel off platitudes; be smart.
  • Challenge misinformation. Far too often during the EU referendum, we failed to challenge those making sweeping statements, in order to avoid the potential conflict that would come along with engaging. As difficult and frustrating as it may be, that has to change. If somebody says something that you know is wrong, speak up. If you aren’t sure what the answer is, but your gut tells you that something isn’t right, ask for evidence. Challenge others to back up their claims and explain them – firmly, but politely. This applies equally to our own side of the debate as it does to those who disagree with us. 
  • Think critically. Not everything the SNP does is good. Not everything The Tories do are bad. Don’t accept things just because other independence supports do. Don’t jump on the bandwagon. If people are criticising an article on Twitter, read it before commenting. Don’t just swallow what everybody else has, and don’t buy into the self aggrandising myths of the Scottish new media – including Bella Caledonia and the ilk. 
  • Keep the heid. Be kind. Be prepared to accept when you are wrong or someone has a better argument than you. Make concessions and see from the opposite point of view. Challenge misinformation but don’t resort to attacking other people. Do not vilify those who disagree. Independence will never be reached unless we win over hearts and minds. Labelling people and dismissing them will do nothing to aid that. 

Here are some specific challenges I think we have to overcome, and need to keep in mind: 

  • Independence is not in the bag. The big yellow map of Scotland from the EU referendum is undeniably symbolic, and a comfort to those of us who are hurting – but we have to remember that it’s not the full story. 62% voted to remain in the EU, and not all of them will automatically support an independent Scotland. There’s a long way to go, and we have to never forget that. 
  • Explaining why we want to be part of the EU. This is something we have failed to articulate in a way that is easily accessible to those not as invested in this debate. We need to find creative and clear ways of explaining why there is a difference between voting to be a sovereign nation, and being part of the European Union. It isn’t just about not having other people tell you what to to do. This is a challenge that will come up time and time again and we need to have s good response. 
  • Avoiding the echo chamber. Sharing on Facebook is fine, but experience has shown that we primarily end up talking to those who share our views rather than anybody who may oppose them. We need to find ways to have meaningful conversations with those outside of our echo chambers.

I’m tired, and I’ve lost three drafts of this post already trying to type it on my damn phone… But we aren’t going to get another chance at this. We need to be prepared for the fight of our lives, we need to be smarter and kinder than we were before – and we need to do it now. 

From the Archives: “Why I am opposed to ‘assumed consent’ for organ donation”

Clicky Steve, , Leave a comment

I used to have one single solitary blog that I’d throw everything onto. Usually photos, but also sometimes a place where my political thoughts would spill over. For years these articles have lived on allmyfriendsarejpegs.com, but not really fitted in – so I’ve decided to slowly re-publish them here so they have a more suitable home. Note that these haven’t been edited since they were posted, and so may not necessarily reflect my current position.

Why I am opposed to ‘assumed consent’ for organ donation

First published: 25th October 2011

Today on the news there was a story around organ donation, highlighting that Scotland has the highest figure of people signed up in the UK at a reported 37% of the population.

As part of this, the question was again brought up as to whether or not we might move to an ‘opt-out’ system of registration rather than the current one, where people must actively state that they wish their organs to be used after their death where possible.

I posted on Twitter with my rather blunt opposition to such an idea (something along the lines of fuck that), and was surprised (in a way) to see that there were a number of responses that were in complete disagreement. Rather than reply in bursts of 140 characters, I thought I’d try articulate things a bit better on here.

What would the change mean?

The policy that is being advocated is one of ‘assumed consent’. Essentially what this means is that if you die and your organs are able to be used, then it will be presumed that you would agree to such a thing in the interests of saving another person’s life, and they will be taken unless you have specifically stated that you do not wish this to be the case prior to your death.

So what’s the problem?

Why should anybody object to such an approach? It seems fairly straightforward surely? What happens to your body upon passing away is of no consequence to you, and if such a move will help increase the number of organs available and in turn save lives, then we should make it happen. After all, if they do have problems with the idea, they can still opt-out.

However, it isn’t as simple as that, and there are subtle, but profound effects of such a decision. The utilitarian notion of the ‘greater good’ trumping the inconvenience of the few is as flawed here as it is in other ethical questions. To go into examples would be fruitless as it is debated at length elsewhere, and there are deeper questions involved that transcend any idea of accumulated communal wellbeing. In short, just because something may have a positive impact in one respect on a group of people as a whole, that does not mean that it is automatically the correct position to take; far from it.

Why are rates so low?

If the donor rates are so low, then why is this? Does that mean that people in society have some sort of moral deficiency? Does the act of not signing up not state exactly what opting out will do, but in a different way? If it is indeed true that people simply don’t have the knowledge, interest, or concern about the topic, then why should the State coerce them into a position that they have no desire to be involved in? By re-stating the question in a different way, do we not just twist the rules of morality to make them acceptable to our own standards, dominating the moral and political narratives that underpin our supposedly ‘free’ society, and ignoring any possible philisophical, ethical, theological or ideological differences?

Ideology

There is a massive ideological problem involved in the approach being proposed. There are a whole host of issues that we will set to one side for now, such as those involving how foreign nationals would be dealt with; those with a lack of mental capacity; basic human rights claims; the question of whether consent is really ‘informed’ or not; tensions and relationships with relatives in the event of a dispute… all of which are important, but there is a deeper question about the reach of the State itself.

By creating such legislation, the Government would in effect be stating that it had an automatic right to ownership of your body (over and above even your closest family), unless you explicitly protest against it. This is an incredibly dangerous road to travel down, and is something that they do not, and should never have the authority to claim. That in of itself is enough to reject the proposal completely.

We need to read behind the lines in decisions like this, and not just take things on an issue-by-issue basis. The precedent that this assertion would create would conceivably allow future Governments to make further claims on its back, with the steady erosion of control over our own being.

Implied consent is not a common default with regards to other legal questions, and especially when it comes to matters regarding the body. Interestingly enough, the act (or contract!) of sexual intercourse requires active consent. The exact definition of what that entails is open to legal debate, but there is never assumed consent to engaging in sex. Whilst the comparison may be specious, it’s worth noting our attitude to issues relating to the person as distinct from other contractual matters, and on this hangs the crux: There is something important about the rights of a human being to their own constitution actually belonging to them without having to explicitly make this clear. No person, State or other entity should ever have the arrogance to over-ride this.

Disclaimer: In the interests of full disclosure, it’s worth noting that I am a registered donor and have been since I was young. This isn’t a question about the value of organ donation in itself, but political interference in the process.

 

Spot the difference

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Apparently non British, Irish, or Commonwealth citizens will not be allowed to vote in the upcoming EU referendum in the UK.

I haven’t read into the actual law on this, just the media coverage, so caveat emptor, but:

More than 1million foreigners living in Britain will be banned from voting in the EU referendum, the Conservatives have announced, in a significant boost to Eurosceptic campaigners.

It comes after Eurosceptic MPs confronted ministers over the issue amid concerns that pro-Europeans could effectively rig the result by giving EU citizens the decisive vote.

(source)

The language we use is important.

Isn’t it interesting that here we see people living in the UK described as ‘foreigners’ – setting up an instant division – whilst the Scottish Government during the independence referendum process spoke not of ‘foreigners’, but of ‘the Scottish people’, irrespective of where they were from originally?

Isn’t it interesting that the result of the independence referendum was based precisely on the votes of the people who lived there, and not some ethnic idea of what Scottishness is supposed to be? Isn’t it interesting that this wasn’t seen as ‘rigging the result’, but as an integral part of it?

I don’t believe in ethnic politics. I believe in civic politics. Great Britain is a fundamentally racist construct that needs to be dissolved. The sooner the better.

Proportional representation won’t save the Union

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In the days following the results of the 2015 General Election, there have been calls from all sides of the political spectrum for electoral reform. Quite rightly, those on the left are both furious at the lack of representation they’ve been afforded at Westminster, and also terrified at the prospect of a future where nobody but the Conservatives will be able to achieve a majority in Parliament. Those on the right aren’t much happier, with analysis showing that UKIP would have had a massive gain in seats under a proportional system, rising from the 1 that they currently hold to upwards of 80.

Proportional Representation - General Election 2015
How the BBC visualised the difference

Of course, this sort of disproportionate result has always been present in previous elections. It’s just that up until recently it has largely been masked by the domination of the two major parties. Cracks in the system began to show with the rise in popularity of the Lib Dems, and are now fully exposed both by the UKIP surge, and the simultaneous demise of Labour in Scotland.

One of the stated benefits of the First Past the Post System is to produce strong majorities in Parliament, bringing with them political and economic stability. Seemingly against all the odds, FTPT has managed to again achieve that, at least in terms of the numbers involved anyway. Whilst the Tories will be able to hold what’s called the ‘confidence of Parliament’, that doesn’t mean that they hold the confidence of an increasingly fractured United Kingdom. This election has demonstrated a strong need for electoral reform, with some sort of proportional system required to give legitimacy to future governments, but it will not solve the constitutional problems being faced, particularly in relation to Scotland.

If the UK truly was a single entity, without borders, then PR would provide a solid foundation for people to feel like they are genuinely and fairly represented, irrespective of where they lived. However, that is not the case. No matter how  unpopular it may be to some, we are – to use Cameron’s words – ‘a family of nations’, with distinct and separate identities. Even ardent Scottish Unionists recognise this; a truism that is not just some product of contemporary nationalism, but evident culturally and structurally. People in Scotland support proportional representation, but also want a stronger voice for their nation within the family dynamic. We may just be 5 million people out of 64, but we are also 1 of 4 nations. It is this contradiction that is posing such an issue for the future of the UK. Even with electoral reform, this identity crisis will remain; the Scottish question unanswered.

Scottish Independence British State

Another danger lurking underneath the surface of the calls for electoral reform is that the debate may indeed only serve to highlight the differences between Scotland and England, and ultimately expedite the breakup of the Union. In many corners, the questions about PR are posited in terms of reducing the influence of the Scottish, with the thinly veiled question at the heart of things really asking: Why do the Scots have so many MPs with such a small percentage of the population? This isn’t correct, of course – as we would have the same number of MPs whatever parties held them, but it’s easy for the issues to become conflated given the (disproportionate) success of the SNP, and the anti–Scottish rhetoric that has emerged. To my pro-Union friends seeking a fairer electoral system: beware this trap. Proportional representation won’t save the UK, and if the debate isn’t approached carefully, it could do more damage to the relationship than it will good.

Header ‘Scottish and British flags’ image by ‘The Laird of Oldham‘ – used under Creative Commons License. ‘Poland-Ball’ style image by ‘Universalis‘ – used under Creative Commons License. 

General Election 2015: The aftermath 

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I’ve just woken up to the sun shining brightly over Loch Ness, as the final results of the General Election trickle in from around England.

At around 6am I headed to bed with only one Scottish seat left to declare, and its announcement looking likely to bring the total number held by the SNP to a staggering 56 out of 59 possible.

It’s important to reiterate just how incredible this outcome is. Some of the safest Labour seats in the UK have fallen to the SNP, mere months after a ‘no’ vote in an independence referendum. The seven seat stronghold in Glasgow has been swept aside with seemingly remarkable ease, colouring the city yellow – along with much of the rest of the country. Between them, Labour, the Lib Dems, and the Tories now only have three representatives. The record breaking swings to the SNP were so large that they broke the BBC’s swingometer.

They weren't expecting that.
They weren’t expecting that.

Where once household political names would be relatively safe from such shifts in the political landscape by virtue of their recognisability, it seems like that prominence may only have served to aid in their downfall. Danny Alexander has gone, Jo Swinson has gone, the Scottish Labour Party leader has gone, and the former shadow foreign secretary Douglas Alexander has gone, losing to a 20 year old politics student. It’s fascinating.

That right Jim, aye?
That right Jim, aye?

Even as the losses piled up, Labour Party members seemed unable to deal with the idea that they have fundamentally lost the confidence of the Scottish people – taking swipes at the SNP rather than asking themselves what the hell just happened. Scotland doesn’t belong to Labour, and the continuing failure to comprehend that by entitled politicians has doubtless played a significant part in their downfall. It wasn’t a ‘rise in nationalism’ that crushed Labour, as Ed seems to think. Labour have done this to themselves.

This isn’t just about standing shoulder to shoulder with the Tories as part of Better Together (though that certainly has been an element), it’s about a complete inability on their part to speak up for Scotland in Westminster: instead, working as a branch office of the British Labour Party. The Scots are fed up of their hollow promises. My now ex-MP who held his seat for 15 years voted to invade Iraq, against any investigation into the war, for national ID cards, and even to raise University tuition fees in England. Typical of the toxic sort of politics that has no place in post-indyref Scotland. Oh, he’s also the one who said that he was ‘bored with politics‘ just last week. Jog on pal.

What Scotland Looked Like Before
What Scotland looked like before
What Scotland Looks Like Now
What Scotland looks like now

As the results came in over the night, there was a markedly different mood between my Scottish and English friends. The former were abuzz with excitement and anticipation, whilst the latter despondent and almost disconnected from the whole thing. It’s not hard to see why this might be, given the bleak choice that faced those on the left. Miliband wasn’t just a weak opponent, but one who has spent so much time trying to appease Middle England on issues like immigration that red has seemingly just become another shade of blue. If I was down south, I couldn’t have brought myself to vote for him, tactically or otherwise.

It may seem strange to be celebrating a landslide SNP victory in Scotland when the Tories are currently finalising a majority from votes in England, but for the Scots, having no real impact on those who hold power in Westminster has always been the case. Given this, seeing real change sweep across Scotland became the most exciting and important thing, not whether we got Cameron, Miliband, or some other cookie cutter Prime Minister that we didn’t vote for anyway. The ‘roch winds blew through the Great Glen of Scotland tonight’. The established political wisdoms no longer apply here, and it’s exciting.

For all of that though, when the dust clears we will still be faced with the decidedly grim prospect of another 5 years of Tory governance. It’s incredibly unlikely that we will see ‘some sort of federal offer’, as Boris Johnson has suggested. Instead, what we definitely will see is a concerted attack on civil liberties, with the Tory tongues already drooling at the prospect of scrapping the Human Rights Act. We will see more hateful rhetoric around immigrants, with the currently ludicrous and contradictory system being stacked even more against British citizens with non-EU spouses. We will see a referendum in 2017 that could ultimately rip Scotland out of the European Union against the wishes of the people, and directly in the face of that membership being hailed as one of the benefits of remaining in the Union.

Ultimately, last night was a clear statement of how politics in Scotland have shifted. There could yet be a revolution, but things are going to get worse before they get better. We have a fight on our hands.

Election Night

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It’s almost time. The polls are closing soon, and we’re just a disco nap away from a political all nighter.

I’ve never been as excited about watching the results of an election before, with the perhaps obvious exception of the independence referendum back in September. 

Last time around I didn’t even bother to vote in the UK General Election, as I didn’t see the point. I could have voted SNP, but with a general lack of enthusiasm in the rest of the country, it would have made no difference. Whatever I did with my pencil on polling day, Labour would win the majority of seats in Scotland, and the Tories (or whatever Governent England decided on) would inevitably get into power. 

It turned out to be more interesting than that of course, but by no means brought about a better outcome. Thankfully, things now are a bit different – at least North of the border. Finally, it feels like our votes might actually mean something, and the old duopoly of British politics has been broken.

I’ll be watching with interest to see if there’s a material difference in turn out between Scotland and the rest of the UK, but the real pleasure will be in something else. Nothing is more satisfying than seeing those in power surprised and afraid of an engaged electorate, and hopefully tonight that will be available in abundance. The old, complacent Labour dynasties who thought they were untouchable will be confronted with the harsh reality: that they have taken their Scottish constituents for granted for too long, and that the jig is up. The seats they felt so safe in before are now down to nothing more than an extremely shoogly peg.  

I will watch with whisky at the ready to toast the moment when those Labour MPs who voted to invade Iraq, raise tuition fees in England, introduce ID cards, and lie through their teeth about further devolution get punted out on their ear. It’s a day I never thought I would see come to the party’s Scottish heartlands, and one that I’m sure they never thought they would have to face either… But it has. Us Scots are a loyal people, but when you fuck us over we don’t forget it easily. Labour are about to find that out tonight. Come witness the entitled get swept away. 

SQA Higher Computing Revisited

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School. Apparently the ‘best years of your life’.

That definitely was not my experience of school, it has to be said.

One of the big frustrations I remember from my time at Kirkintilloch High was taking Computing – both at the Standard Grade level (third and fourth year, or aged 14-16 roughly), and Higher (aged 16-17).

Despite it being something that I had a pretty in-depth understanding of, I ultimately only got a B for the Higher exam. What I remember is that the questions were vague, allowing significant room for interpretation; the teachers lacked the knowledge or the common sense to make allowances, and you could be marked down for answers which were correct, but didn’t match up rigidly with what was on the marking scheme.

The example that sticks in my head was from a prelim exam we sat where the question was ‘Name three pieces of hardware required to watch a multimedia video’. I answered: ‘Processor, Monitor, Graphics card’, which seemed to me like the very basics of what you would need – discounting all the other bits and bobs that make up a functioning computer. Apparently, this was wrong. The correct answer was something akin to: “An input device, processor, video card, or graphics card.’ My teacher informed me that ‘monitor’ was not on the marking scheme, and therefore I lost points as a result. My desperate pleading for an explanation of how anybody could watch a video without a display fell on deaf ears, and the maddening insanity of this has forever stuck in my mind.

I decided to go back and have a look at some of the questions from around that period, to see what they were like with the benefit of hindsight. This proved to be a bit tougher than I had expected, as past papers from that era aren’t kept online by the SQA. I e-mailed them to request a copy, and received a rather puzzling response:

SQA Copyright Restrictions

Well, that’s weird. Surely the SQA own the copyright to their own past papers? I pressed them on this, and got – if anything – an even more puzzling reply:

SQA Past Papers

The SQA can’t keep past papers for more than 5 years due to ‘data storage’?! I almost wrote back to offer a donation of a hard drive. Hell, even a 1GB USB pen drive should have been enough to keep them ticking over for a few decades. It possibly goes some way to explaining the nonsensical Computing questions that they used to ask.

I searched high and low for PDFs from the relevant years, only to turn up a couple of prelim samples from schools that had seemingly uploaded them yonks ago and forgot. Finally, success! I tracked down this bad boy from a seller on Amazon:

SQA Past Papers 2002-2006

So let’s have a look shall we? The examples below are taken from a mix of the online PDFs that I found, and the book above.

Consider the following question, taken from the specimen question paper to be used from ‘2005 onwards’:

Higher Specimen Paper 2005The purpose of this question is to discuss ‘peripherals’, and the ‘advantages of solid state storage devices’. These are pretty important to understand, though the question here seems a bit bizarre.

  • What are the benefits of using a camera with a ‘flashcard’, compared to what? The question doesn’t give anything to compare flash storage against, so it seems impossible to know what the benefits would be.
  • There isn’t really any other storage option suitable for digital cameras. All of them use flash storage, so to use that device to illustrate the advantages seems weird. You can’t really have an advantage when that’s the only option. Asking: ‘Give two reasons why a flashcard is the most appropriate form of storage for the camera?’ would make far more sense.

This is backed up by the answers given:

Screen Shot 2014-11-24 at 15.19.18

It’s worth noting that these two are the only two listed in the marking scheme. Personally, I think there should be far more. Here’s a couple of suggestions:

  • Flash based storage is much faster to access than other kinds.
  • Flashcards are more robust, and less sensitive to knocks – as required in a portable device.

Thankfully, things have improved a bit on this front. Here’s the question from the same subject, but in 2014:

Screen Shot 2014-11-24 at 15.54.49

Much better!

Going back to the 2005 specimen paper, here is question b) – along with the answers:

Screen Shot 2014-11-24 at 15.30.00

In some respects, the aim of this is pretty good. Students should definitely understand the different types of file formats available for graphics, and their varying purposes. However, the question itself is stupid. It asks what file format would be ‘suitable for this application’ – i.e. for use in a digital camera, and then gives equal marks for explaining the pros and cons of whatever you choose. That means you’d get the same marks for answering GIF as you would JPEG. Completely ridiculous. A GIF would never be an appropriate file format for use in a digital camera, irrespective of the advantages and disadvantages. There’s too much of a disconnect between the question and the learning outcome.

This would be a more appropriate question:

‘Name a ‘standard file format’ used in modern digital cameras, and explain why it is most appropriate (one advantage and one disadvantage)

It makes clear that there are particular formats that are used, doesn’t award marks for inappropriate answers to real-world examples, and still requires the student to understand and analyse why the format is appropriate over and against others.

Here’s a similar question from the 2005 exam, with the acceptable answers underneath.

Screen Shot 2014-11-28 at 18.06.59

I think disallowing ‘bitmap’ here is pretty unfair given that it’s the name of the file format bmp. If they had asked for the extension of the standard file format, rather than ‘name a standard file format’, then restricting it in this way would make more sense. Boo, hiss.

Moving on, take a look at this question:

Higher Specimen Question 2 2005

I’d tell Helen to throw out her PCWorld Magazine and go buy a Macbook Pro.

roncomputer

Okay, I’m kidding, but only half.

This is the answer given:

Screen Shot 2014-11-24 at 15.40.25The purpose here is to demonstrate ‘justification of the hardware selected in terms of appropriate characteristics’. Again, an important aim, but with an inappropriate question.

We’ll ignore the fact that floppy drives at this point were only ever used in PCs for when (inevitably) things went tits up and you had to do something to the BIOS (Apple had gotten rid of them years before this). We’ll also ignore that the question didn’t actually specify what sort of data Helen wants to back up, so it would be impossible to know whether a floppy drive was too small for purpose or not. (Maybe she just wanted to back up a few text files?).

Even back then, the most appropriate answer would be to use some sort of external USB storage. Helen would have been better off getting the cheaper system out of the two that let her also get an external device. Maybe that’s what’s meant to be covered under the vague description of: ‘Other suitable.’ However, it looks like they don’t really care what answer you give, so long as you pick the one with the DVD-ROM.

This sums up exactly what was wrong with much of the Computing Higher back then. Even if you gave a perfectly justifiable reason to pick the ‘Lynx 983’ device, you would be marked wrong – completely defeating the aim of the student justifying the hardware selected based. The questions were vague, allowed significant room for interpretation, and no common sense was used in the marking process. On top of that, the teachers often didn’t have the knowledge or leeway to do anything about it anyway.

One of the saving grace’s of the curriculum is that it included questions relating to ‘Computers and the Law’. Something that everybody should have an understanding of:
Screen Shot 2014-11-24 at 15.14.10

Higher Paper Question 4 2005Nice.

Another of the problems with the Computing course was the disparity in difficulty levels of the questions within the space of one paper. On one hand, students are asked to explain what the benefit of using a DVD is over a CD (answer: more space), or to explain why a short domain name is better than a long, complex one… and how the Internet can help small businesses:

urlhighercomputing

and just a few pages later they are expected to know wtf ‘backchaining’ and ‘loop constructs’ are, and to be able to express things in pseudocode:

Pseudo Code Higher Computing

backwardchaining

and does anybody really need to know how to work out numbers in binary? I sure am glad I don’t have to do that sort of calculation any longer.

Higher Computing Binary

I get the importance of gaining holistic knowledge about computing and the technology industry, but the consistency in the questions was way off. One of the particular frustrations I remember from sitting these exams myself was being treated like an idiot on one hand: “Duhhrr give an example of a URL.” and then being expected to produce fairly beefy examples of scripts out of our heads on paper (that’s right, we ‘coded’ everything in our notebooks, rather than using the computers). It seems like half the course should have been at Standard Grade, rather than Higher level. Although it’s probably best we don’t go back to look at those particular questions, which involved explaining what a mouse and keyboard were used for.

Back then the Computing curriculum was a joke, doing a disservice both to those who taught it as well as those who sat it. The purpose of the whole thing seemed (and seems) pretty unclear. Whether it was to teach the basics of hardware, prepare future programmers for University, or just give a general overview of Computing it failed on all accounts. I really hope that things have changed since then.