The Role of Good Governance and the Rule of Law in Building Public Trust in Data-Driven Responses to Public Health Emergencies
Lead Research Organisation:
British Institute of International and Comparative Law
Department Name: Head office
Abstract
This research, at the intersection of law, ethics, citizen deliberation, public health and data science, aims to develop a distinct arts and humanities, values-based framework to help understand and address the challenges posed by data-driven responses to public health emergencies and the need to build public trust.
In their COVID-19 responses, states have relied on data-driven approaches to justify far-reaching measures including closing entire business sectors and categories of travel, curtailing personal liberties and requiring compliance with new technologies for contact tracing and social distancing.
To be effective, such measures must be internationally co-ordinated, nationally adopted and adhered to by a high proportion of the public. Trust underpins both national adoption and public adherence: trust in international institutions, in the measures, and their scientific foundations.
This project will examine two critical enablers of that trust: good governance and the rule of law. It aims to provide practical guidance on how international and national institutions can build public trust in the processes by which they design and implement data-driven responses to public health emergencies. The research consists of four interconnected work packages which examine
(1) International governance frameworks for public health emergencies
(2) Values-based principles to guide data-driven responses by national institutions including governments, parliaments, courts and police
(3) Reforms that may be needed to data governance (national and international) given the scale of personal data sharing that is required
(4) A citizen jury deliberation on the trustworthiness of data-driven measures and what additional safeguards may be needed.
In their COVID-19 responses, states have relied on data-driven approaches to justify far-reaching measures including closing entire business sectors and categories of travel, curtailing personal liberties and requiring compliance with new technologies for contact tracing and social distancing.
To be effective, such measures must be internationally co-ordinated, nationally adopted and adhered to by a high proportion of the public. Trust underpins both national adoption and public adherence: trust in international institutions, in the measures, and their scientific foundations.
This project will examine two critical enablers of that trust: good governance and the rule of law. It aims to provide practical guidance on how international and national institutions can build public trust in the processes by which they design and implement data-driven responses to public health emergencies. The research consists of four interconnected work packages which examine
(1) International governance frameworks for public health emergencies
(2) Values-based principles to guide data-driven responses by national institutions including governments, parliaments, courts and police
(3) Reforms that may be needed to data governance (national and international) given the scale of personal data sharing that is required
(4) A citizen jury deliberation on the trustworthiness of data-driven measures and what additional safeguards may be needed.
Publications
Edwards L
(2021)
'Venue Check-In' or 'Presence' Apps
Mackenzie-Gray Scott R
(2021)
International Law Applicable to Public Health Emergencies
Mackenzie-Gray Scott R
(2021)
Rebalancing Upstream and Downstream Scrutiny of Government during National Emergencies
| Description | Each of the four work packages (WPs) of the project made significant findings WP1 focused on international governance frameworks for public health emergencies. This work considered how existing international frameworks functioned during the COVID-19 pandemic, and how they could be improved for future outbreaks of infectious disease that could become a global public health emergency or pandemic. Co-operation between states is vital for prevention, early detection and effective response. Current frameworks do not facilitate international co-operation as well as they could, as they suffer from a lack of clarity and inadequate implementation in some respects. These include the current International Health Regulations (2005), which represented a big step forward in international co-operation and specifically data-sharing when they were adopted in the wake of SARS outbreaks. However, a new pandemic treaty, which some leaders have called for, may not be an appropriate solution since other areas of international law from trade law to human rights and environmental law are also relevant. Instead, the contribution made by each of these areas of law should be taken into account and improved where possible through processes of change that are inclusive of the widest possible range of stakeholders and capable of attracting global support. WP2 focused on domestic principles relating to good governance and the Rule of Law during public health emergencies, and examined how adherence to these principles can contribute to public trust. This work highlighted the value of ensuring that, even in emergency situations, government measures such as lockdowns and other, more technologically-based approaches should be grounded in legal frameworks that are the product of parliamentary scrutiny and debate. An appropriate balance needs to be struck between "upstream" scrutiny when new measures are introduced by primary or secondary legislation, and "downstream" scrutiny by the courts. If Parliament's upstream role is curtailed, then judicial scrutiny at the downstream stage becomes all the more important. Courts may have to improve their ability to consider scientific evidence to ensure that government decisions are evidence-based and do not result in discrimination or disproportionate interference with rights. Both WP3 (legal research) and WP4 (citizen jury deliberations) examined the introduction of new digital technologies to deal with public health emergencies, and the implications for public trust. This work involved the in-depth examination of technologies including contact tracing apps, "vaccine passports", vaccine allocation algorithms (QCovid) and venue check-in apps. Four key principles were identified as making a difference to trustworthiness of these technologies. First, transparency: in communicating with the public about decisions taken and the reasoning and data behind them, through publishing source code, privacy notices and Data Protection Impact Assessments and online statistical dashboards of "pings". Second, non-discrimination: It has been suggested that some Covid-19 technologies are inherently discriminatory; for others, steps may be possible to mitigate possible discrimination. This has been a heated debate in relation to vaccine passports. Third, privacy: while privacy-preserving features of contact tracing apps were helpful, concerns about venue check-in apps received less attention. Vaccine passports raise concerns about tracking of movement domestically and internationally; the spectre of social exclusion; and the possibility of retention and scope creep beyond the pandemic raising fears of a "new ID card". Fourth, democratic accountability and scrutiny. Governance by app - "code as law" - is a relatively unaddressed problem in the UK. This issue has come to the fore in COVID-19, where apps such as vaccine passports have the potential to substantially affect rights and freedoms yet are subject to little or no public or legislative scrutiny in their development phases, and judges mostly take a markedly hands-off approach to oversight once the apps are in operation. |
| Exploitation Route | See key findings above, and recommendations set out in policy papers for Work Packages 1-3 (publications list). Citizen jury report (still to be published as an additional output) will contain further reflections on aspects of governance that citizens considered to be important for earning their trust in government measures. |
| Sectors | Healthcare,Government, Democracy and Justice,Security and Diplomacy |
| URL | https://binghamcentre.biicl.org/projects/the-role-of-good-governance-and-the-rule-of-law-in-building-public-trust-in-data-driven-responses-to-public-health-emergencies |
| Description | See the item we have reported separately under Influence on Policy, Practice, Patients and the Public: Citation by Public Administration and Constitutional Affairs Committee in report on Covid-Status Certification (2021). |
| First Year Of Impact | 2021 |
| Sector | Healthcare,Government, Democracy and Justice |
| Impact Types | Policy & public services |
| Description | Citation by Public Administration and Constitutional Affairs Committee in report on Covid-Status Certification |
| Geographic Reach | National |
| Policy Influence Type | Contribution to a national consultation/review |
| URL | https://committees.parliament.uk/publications/6264/documents/69158/default/ |
| Description | Submission to March 2021 UK Government Consultation on Covid-Status Certification |
| Geographic Reach | National |
| Policy Influence Type | Contribution to a national consultation/review |
| URL | https://www.biicl.org/documents/10673_full_response_open_consultation_covid-status_certification_rev... |
| Description | Submission to the Scottish Government's COVID-19 public inquiry set-up team |
| Geographic Reach | Local/Municipal/Regional |
| Policy Influence Type | Contribution to a national consultation/review |
| URL | https://binghamcentre.biicl.org/publications/submission-to-the-scottish-governments-covid-19-public-... |
| Description | Submission to the UK Government's consultation on mandatory COVID certification in a Plan B scenario |
| Geographic Reach | National |
| Policy Influence Type | Contribution to a national consultation/review |
| URL | https://binghamcentre.biicl.org/publications/written-evidence-submitted-to-the-uk-governments-consul... |
| Description | BIICL blog - Irene Pietropaoli, Part 2: 'Getting Digital Health Passports Right? Legal, Ethical and Equality Considerations' |
| Form Of Engagement Activity | Engagement focused website, blog or social media channel |
| Part Of Official Scheme? | No |
| Geographic Reach | International |
| Primary Audience | Postgraduate students |
| Results and Impact | Provided commentary and discussion of a submission made to a UK government consultation in March 2021 on the introduction of Covid-status certification measures. |
| Year(s) Of Engagement Activity | 2021 |
| URL | https://www.biicl.org/blog/23/part-2-getting-digital-health-passports-right-legal-ethical-and-equali... |
| Description | BIICL blog - Lilian Edwards, Part 1: 'The Great Vaccination Passports Debate: "ID Cards on Steroids" or the Rational Way Forward?' |
| Form Of Engagement Activity | Engagement focused website, blog or social media channel |
| Part Of Official Scheme? | No |
| Geographic Reach | International |
| Primary Audience | Postgraduate students |
| Results and Impact | This blog discussed key points made in a submission to a March 2021 government consultation on covid-status certification measures (including vaccine passports) |
| Year(s) Of Engagement Activity | 2021 |
| URL | https://www.biicl.org/blog/22/part-1-the-great-vaccination-passports-debate-id-cards-on-steroids-or-... |
| Description | Bingham Centre blog - Richard Mackenzie-Gray Scott 'The Ethics of Relying on Vaccine Certifications for International Travel during times of Vaccine Inequity' |
| Form Of Engagement Activity | Engagement focused website, blog or social media channel |
| Part Of Official Scheme? | No |
| Geographic Reach | International |
| Primary Audience | Postgraduate students |
| Results and Impact | This blog highlighted that vaccine inequity, at an early stage of global roll-out, meant that developing countries with limited vaccine supplies were at particular risk from the premature reopening of travel, particularly leisure travel, that vaccine passports might bring. |
| Year(s) Of Engagement Activity | 2021 |
| URL | https://binghamcentre.biicl.org/comments/112/the-ethics-of-relying-on-vaccine-certifications-for-int... |
| Description | Bingham Centre blog - Richard Mackenzie-Gray Scott and Jean-Pierre Gauci, 'Calls for a New Treaty on Pandemics and the Law that Already Exists' |
| Form Of Engagement Activity | Engagement focused website, blog or social media channel |
| Part Of Official Scheme? | No |
| Geographic Reach | International |
| Primary Audience | Postgraduate students |
| Results and Impact | In response to international calls for a new pandemic treaty, highlighted the problems with starting from scratch and the desirability of working to improve existing legal frameworks that apply during public health emergencies. |
| Year(s) Of Engagement Activity | 2021 |
| URL | https://binghamcentre.biicl.org/comments/110/calls-for-a-new-treaty-on-pandemics-and-the-law-that-al... |
| Description | Blog for Opinio Iuris (international law site): Richard Mackenzie-Gray Scott, 'A Short-Term Option for Addressing Misinformation during Public Health Emergencies: Online Nudging and the Human Right to Freedom of Thought' |
| Form Of Engagement Activity | Engagement focused website, blog or social media channel |
| Part Of Official Scheme? | No |
| Geographic Reach | International |
| Primary Audience | Postgraduate students |
| Results and Impact | The blog discussed the role of social media "nudging" to combat misinformation, including Covid denialism and vaccine scepticism |
| Year(s) Of Engagement Activity | 2021 |
| URL | http://opiniojuris.org/2021/03/08/a-short-term-option-for-addressing-misinformation-during-public-he... |
| Description | Citizen Jury deliberations (July 2021) |
| Form Of Engagement Activity | Participation in an activity, workshop or similar |
| Part Of Official Scheme? | No |
| Geographic Reach | National |
| Primary Audience | Policymakers/politicians |
| Results and Impact | Project members worked with the Ada Lovelace Institute, one of the leading UK bodies in the field of public deliberation on technology and AI, to conduct two week-long citizen jury deliberations. Meeting online, two demographically representative groups of 25 UK residents reflected on their experiences of COVID-19 and debated how governments could earn their trust when developing and implementing data-driven responses. The subjects covered included vaccine passports, vaccine allocation algorithms (Q-Covid) and the proposed General Practice Data for Planning and Research (GPDPR) initiative. Each group presented their findings to policy-makers from bodies including the UK Cabinet Office, devolved Governments and NHS-X. An in-depth report is to be published in Spring 2022. |
| Year(s) Of Engagement Activity | 2021 |
| Description | Prospect Magazine op-ed, co-authored by project member Richard Mackenzie-Gray Scott, 'Vaccine passports must be legislated for properly through Parliament' |
| Form Of Engagement Activity | A magazine, newsletter or online publication |
| Part Of Official Scheme? | No |
| Geographic Reach | National |
| Primary Audience | Media (as a channel to the public) |
| Results and Impact | Op ed argument noted that most restrictions on personal liberty in the pandemic have been imposed by a single minister. But parliamentary debate and scrutiny are vital for democratic legitimacy. |
| Year(s) Of Engagement Activity | 2021 |
| URL | https://www.prospectmagazine.co.uk/politics/vaccine-passports-parliament-legislation |
| Description | blog of the UK Law Societies' joint Brussels office - Richard Mackenzie-Gray Scott, 'Strengthening Cooperation during Public Health Emergencies' |
| Form Of Engagement Activity | Engagement focused website, blog or social media channel |
| Part Of Official Scheme? | No |
| Geographic Reach | International |
| Primary Audience | Professional Practitioners |
| Results and Impact | Blog made the case for global co-operation and stronger international frameworks at a time when the Omicron variant was just beginning to spread |
| Year(s) Of Engagement Activity | 2021 |
| URL | https://www.lawsocieties.eu/news/strengthening-cooperation-during-public-health-emergencies-by-dr-ri... |