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Scotland’s Census 2011: The Cyber Pathway to the Killing Fields by Tom Muirhead

These are the notes of Tom Muirhead when he gave a talk at a Ragged University event in the Edinburgh Festival on August 11th 2011 at 12:45 in Out of the Blue Drill Hall, Edinburgh.

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Section 1: An introduction to the 2011 Census

Introduction-1A: Scotland’s Census 2011: The Cyber Pathway to the Killing Fields.

It is contended that the latest Census for Scotland held on the 27th of March 2011i (“2011 Census”) was unlawful. This talk will start by giving the legal background to the 2011 Census before going on to list some of the reasons that call its validity into question. It will then take a horrific example from history that shows the dangers inherent in taking and storing confidential data of the type asked for in the 2011 Census before concluding

 

Slide 1-1A: The 2011 Census

The 2011 Census took place on the 27th of March 2011 [ii]. It asked 13 questions about each household, and up to 35 additional questions about each individual person who lives there. Almost all of the questions asked for personal and private details.

 

Slide 1-1B:

Some examples of the questions asked are [iii]:

  • Question 13 – What religion, religious denomination or body do you belong to [iv] ? ;
  • Question 15 – What is your ethnic group? ;
  • Question 23 – Which of these qualifications do you have? (Tick all that apply);
  • Question 30 onwards – Questions regarding your occupation – number of hours worked, for whom, position, job title, etc.

Slide 1-1C:

The web site for the 2011 Census [v] states that the census is held every ten years and that the taking of a Census is necessary to help plan our future public services. The next section in this talk explains the legal background to the 2011 Census and shows where the authority comes from that allows the Registrar General for Scotland to ask everyone to divulge personal and private data.

Slide 1-2A: The Legal Background to the 2011 Census

The Census Act 1920 (“Census Act”) is the legislation of the British Parliament that gives authority for a Census to be taken [vi]. It sets out the procedures that have to be followed in order to run a Census.

In summary: – Legislation is produced by the Queen in Council [vii]. The legislation is laid before the Scottish Parliament and if no objections are raised the legislation becomes law. Thus, the Census (Scotland) Order 2010 (“Census Order”) became law on 12th of May 2010.

 

Slide 1-2B:

Amongst other things the Census Order a) sets out the ‘Particulars to be Stated in Returns’; and b) set the date for the 2011 Census as the 27th of March 2011. The Scottish Parliament then produced a Household Questionnaire in order to collect the aforementioned ‘Particulars to be stated in Returns’ that was passed to the Registrar General to allow him to administer the 2011 Census.

It is my opinion, for a number of reasons, that the 2011 Census was unlawful. I will now go on to list and explain two of these reasons:

 

Section 2: Two reasons why the 2011 Census may have been unlawful.

Slide 2-1A: Unlawful

Different Questions Appear in the Household Questionnaire Compared to Those Authorised in the Census Order. Schedule 2 of the Census Order lists the particulars that are to be stated in the returns [viii]. In other words it sets out what has been legally authorised to be asked for.

I have compared Schedule 2 against the Household Questionnaire sent to every household in Scotland. My comparisons show, and please check this for yourself, that there are over 50 differences between the legally authorised particulars that can be asked for (by way of a question) and those questions that appear in the Questionnaire.

 

Slide 2-1B:

Only some of these differences can, in my opinion, be considered major. But, nevertheless, there are a vast number of differences. It should also be noted that no one (and that includes the Scottish Parliament) has been given the authorityix to ask for any particulars that are not contained in the Census Order.

 

Slide 2-1C:

The next section of this talk gives two examples of the type of differences found (The Particulars to be Stated in Returns or the questions authorized to be asked by the Census Order (“CO”) are listed first and then followed by the actual question asked in the Household Questionnaire (”HQ”)):

  • 1 – CO (6): As regards marital or same-sex civil partnership status, whether— (a) never married or in a registered same-sex civil partnership;
  • HQ (I4): On the 27 March 2011, what is your legal marital or same-sex civil partnership status – Never married and never registered a same sex civil partnership.
  • 2 – CO (11): The address of the person’s main place of work or study.
  • HQ (I11): What address do you travel to for your main job or course of study (including school)?

Slide 2-1D:

It is my opinion that as the Household Questionnaire does not reflect Schedule 2 of the Census Order it is invalid. If my analysis is correct then the consequences are enormous. At a minimum, and of course this is yet again only my opinion, it will mean that all the data collected will have to be destroyed.

I will next discuss some of the human rights aspects of the 2011 Census:

 

Slide 2-2A: Unlawful 2: Alleged Violation of Article 8 of the ECHR: Respect for Private and Family Life.

Article 8 of the European Convention of Human Rights (“ECHR”) reads as follows: “Article 8 – Right to respect for private and family life…

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

It should be noted that Article 8 has been brought into UK law by the Human Rights Act 1998 (“HRA”).

 

Slide 2-2B:

It is my opinion that a) the collection of everybody’s personal and private details; and b) the Registrar General’s commitment to publish these details after 100 years [x] is in direct conflict with Article 8. Everyone’s personal and private details are protected by law – there is no mention of any time limit.

Slide 2-2C – Implied Repeal after the Human Rights Act 1998?

As the HRA brought various articles of the ECHR directly into UK law it would now seem, using the legal doctrine of implied repealxi , that any previous acts of Parliament that conflict with any of these articles of the ECHR are null and void. It is contended that under the doctrine of implied repeal the Census Act 1920 is no longer valid. Further, it should be noted that the Census Act does not authorise people’s private and personal details to be published – it only authorises for certain particulars to be collected. The publication of this data is authorised by other acts of our Parliamentsxii.

The next section of this paper will look at some of the other problems that I have identified with the 2011 Census.


 

 

Section 3: Some other problems with the 2011 Census.

Slide 3- 1A: Problem – 1: Data Security.

The Registrar General states that all confidential data is kept secure before being published in 100 years time. When you analyse this statement you find that it doesn’t really add up. Firstly, is the Registrar General promising the impossible? We have all seen recently that no centrally controlled store of data can ever be considered completely secure. Think of Wiki leaks, confidential banking data and government data CDs being left on trains, etc. The examples are too numerous to mention.

 

Slide 3-1B:

Secondly, this confidentiality is at the discretion of the Registrar General. He or she is legally authorised to supply all of the census data to anyone the only caveat being that they must consider all requests for the data to be reasonable. Therefore, the Registrar General’s statementxiii that ‘Your personal information is protected by law and we will keep it confidential for 100 years’ is, at best, misleading. Under section 4 of the Census Act the decision to release the data is a discretionary one. Data can be released to anyone.

 

Slide 3-1C:

Further, the Registrar General publishes all of the data in ‘‘output areas’ of approximately 20 – 50 households’ [xiv]. It is my opinion that when you get to this level of granularity it is possible, especially using modern data mining techniques, to pinpoint the private and personal characteristics of any individual.

The Registrar General seems to realise that this is possible. The end-user license that is required for access to the 2001 Census data specifically requires: ‘That the user will not attempt to derive information about identifiable individuals or households nor purport to have done so.’ [xv] Please also consider the vast and ongoing cost of attempting to keep this data secure.

 

Slide 3-2A: Problem – 2: Why does the Government need to ask these Questions?

The web site for the 2011 Census states the following:

‘The results are used to produce anonymised (with personal details removed) statistics that help decide how billions of pounds of taxes will be spent every year on services everyone needs, such as education, transport and healthcare.’ [xvi]

In my opinion the above statement, at first glance, seems reasonable but when you compare it to some of the questions asked then alarm bells start to ring. Consider some of the questions set out in the introduction section of this paper.

 

Slide 3-2B:

  • Question 13 – What religion, religious denomination or body do you belong to?xvii
  • Question 15 – What is your ethnic group?

Can anyone please explain why these statistics are required in order to help decide ‘how billions of pounds of taxes will be spent every year on services everyone needs, such as education, transport and healthcare’. Further, it would be very useful to know how these statistics have actually been used.

 

Slide 3-2C:

Another problem that may arise is that the collection of this data allows (and again I re-emphasise that I am not accusing anyone of doing this) political parties to take part in, amongst other things, certain unlawful electioneering techniques such as ‘gerrymandering’ [xviii]. The next section of this talk will look at, from a historical perspective, some of the dangers inherent in taking, storing and publishing vast amounts of personal and private data.

 

Section 4: Highlights some of the dangers inherent in taking, storing and publishing vast amounts of personal and private data.

The Killing Fields

Slide 4-1A:

Pol Pot, the Khmer Rouge, Year Zero and the Killing Fields. In 1984 the Oscar winning film – “the Killing Fields” was released. It tells the story of a journalist imprisoned in Cambodia during Pol Pot and the Khmer Rouge’s Year Zero [xix]. The premise behind ‘Year Zero’ was to return Cambodia to an agrarian, socialist past and restart from scratch. The elite, the educated, the skilled and various other groups were sought out and killed. The hero in the film found himself having to act as an illiterate peasant in order to survive. To show any sign of his educated past would have lead to his death.

 

Slide 4-1B:

A brilliant film based upon a horrific true story. But, the frightening question that comes to my mind is: what would have been the consequences if the Khmer Rouge held data equivalent to the data collected in the 2011 Census… Similarly, what use could the Nazis have made of this type of data? Consider Warsaw in 1940? How much easier would the round up of the Jews and others have been? How much more efficient would the Nazi’s ‘Final Solution’ have become?

The reason for listing these historical tragedies is not to lay accusations that our present Government(s) will contemplate anything similar but rather to show the dangers inherent in collecting and storing large amounts of highly personal data. Who knows how the political landscape will change – why tempt fate?

 

Section 5: Conclusion: What if the 2011 Census was Unlawful?

Slide 5-1A: The Consequences.

If any of the reasons given in this paper that question the validity of the 2011 Census are correct then the resultant consequence is that: The Registrar General on behalf of the Scottish Parliament has taken, stored and published this data unlawfully. Surely the only outcome is to destroy the data and apologise. I would ask everyone who has read this paper to do their own research. If they are satisfied that I have made some valid criticisms then it would be appreciated if they would consider writing to the Registrar General stating their own reservations about the 2011 Census.

 

Slide 5-1B:

Finally – in March of this year I wrote to the Registrar General stating my reservations about the 2011 Census. I received no satisfactory answer and therefore made a statement in writing that I would not fill in the Household Questionnaire. The result of this is that I have been threatened with prosecution and I risk a criminal record.

So far nothing has happened but it is early days yet. My opinion and defence to these threats is to state: That not only was the 2011 Census unlawful (and possibly criminally so) it also represents a real danger to the people of Scotland as well as violating everybody’s human rights. We shall see what happens…


 

Bibliography

  • [i] The front page of the Household Questionnaire sent out to every ‘household’ in Scotland states: ‘Please fill in this questionnaire on, or around, Sunday 27 March. Please include everyone at this address. It shouldn’t take very long.’
  • [ii] See the web site of the 2011 Census at: http://www.scotlandscensus.gov.uk/en/ for full details.
  • [iii] All these questions were asked in the ‘Individual questions’ part of the Household Questionnaire. For a full list of questions see: http://www.scotlandscensus.gov.uk/en/howto/questionshelp/index.html#listofquestions
  • [iv] See: http://www.scotlandscensus.gov.uk/en/howto/questionshelp/q/i13.html
  • [v] See: http://www.scotlandscensus.gov.uk/en/reference/
  • [vi] Please note that the Census Act has been modified to take account of, amongst other things, the Devolved Scottish Parliament and authorizes the Scottish Ministers to hold a Census every ten years. The Act can be found on-line at: http://www.legislation.gov.uk/ukpga/Geo5/10-11/41
  • [vii] For an explanation of the ‘Privy Council’ and the Queen in Council see: http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-3708.pdf
  • [viii] Can be found on-line at: http://www.legislation.gov.uk/ssi/2010/187/contents/made
  • [ix] No one has the authority to change a piece of legislation unless that authority is expressly given. I have checked the Census Act and the Census Order and I can’t find this authority expressed within.
  • [x] See sections 38 and 58 of the Freedom of Information (Scotland) Act 2002 and the web site of the Registrar general for Scotland at: http://www.scotlandscensus.gov.uk/en/.
  • [xi] Implied Repeal – The doctrine of implied repeal states that where the provisions of an earlier Act of Parliament conflict with the provisions of a later Act the later Act takes precedence and the conflicting provisions of the earlier Act are repealed (become null and void). See Thoburn v Sunderland City Council [2002] 3 WLR 247 at: http://www.bailii.org/ew/cases/EWHC/Admin/2002/195.html for more information.
  • [xii] Sections 38 and 58 of the Freedom of Information (Scotland) Act 2002
  • [xiii] The Registrar General’s statement regarding the confidentiality of personal data can be found on the front page of the Household Questionnaire. See also: http://www.scotlandscensus.gov.uk/en/
  • [xiv] See ‘Scotland’s Census 2011 – A Government Statement’ section 5.1. Can be found on-line at: http://www.gro-scotland.gov.uk/census/censushm2011/policy-and-methodology/2011-census-gov-statement-and-supporting-docs/scotlands-census-2011-a-government-statement.html
  • [xv] See: http://www.gro-scotland.gov.uk/files1/stats/guide-v15.pdf at page 9.
  • [xvi] See: http://www.scotlandscensus.gov.uk/en/reference/
  • [xvii] See: http://www.scotlandscensus.gov.uk/en/howto/questionshelp/q/i13.html
  • [xviii] See: http://www.fairvote.org/redistricting
  • [xix] See: http://www.cambcomm.org.uk/holocaust.html and http://en.wikipedia.org/wiki/The_Killing_Fields_%28film%29

 

The paper (and other related papers) that this talk is based on is published at the Scottish Human Rights Union: www.shru.org.

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