This is the second of a multi-part series on Labour’s Children’s Wellbeing and Schools Bill, which was introduced in the House of Commons on 17 December. This article looks at proposals in the Bill for wider data sharing and a “Single Unique Identifier” for every child
What’s been said?
Our first article focused on the Parliamentary procedure that lies ahead for the Children’s Wellbeing and Schools Bill, [CWSB] which has its Second Reading on 8 January. In this Byte we begin to unpack some of the underlying thinking behind the proposals, especially those which will impact home educating families both directly and indirectly.
The Government has already said plenty about their ambitions for this Bill, but it’s their underlying assumptions which home educators should be reflecting on as they consider the way forward. One example, which should be a concern to every parent, is the provision to establish what the Children’s Commissioner for England has campaigned for as a “Single Unique Identifier.” In March 2022, Dame Rachel de Souza wrote this in her “Interim findings from the Children’s Commissioner’s Attendance Audit”:
“Unique identifier: One option to consider to address problems around data-sharing would be a ‘unique identifier’ (or a more consistent multi-agency use of widely used ‘identifiers’, such as an NHS number). This would enable LAs to better track children who move around the system. Having a single unique identifier would better enable services to share information on a child, identify where they need help, and allow services to support them back into school. This should be explored further.”
Section 4 of the CWSB has the title “Information sharing and consistent identifiers” and it proposes a series of insertions into the Children Act 2004 to follow existing s16L, which concerns “safeguarding partners for local authorities.”
With this in mind we turn to pages 6-10 of the Explanatory Notes. These provide an overview of the thirty-eight measures contained in this wide-ranging draft legislation. The Bill is structured in three parts, namely Children’s Social Care, Schools and General, and the notes reflect this. Ironically, the clauses which will most impact children educated outside state-supervised schools are included in the second part, “Schools.” It seems politicians and civil servants really do struggle to think outside of the classroom box!
But HE families should beware skimming over Part 1, thinking it has nothing to do with them. Not so. As the notes explain, this part addresses various aspects of the much-heralded reform of the children’s social care system. But all parents (not just home educators) would be wise to take particular note of those measures seeking to establish “better join-up between children’s social care, police and health services with education,” that is, requiring increased participation from local education services in multi-agency child protection teams. This of course will necessitate improved information sharing, and in point 9 (page 13) we read:
“The Bill seeks to amend the Children Act 2004, creating a duty to share information for safeguarding and welfare purposes and provide a power for the Secretary of State to specify a consistent identifier for children. The duty to share information will apply to persons listed in s.11(1) of the Children Act 2004, along with education and childcare relevant agencies, and seeks to address long standing issues around inadequate information sharing. The Bill also makes provision for a consistent child identifier (also known as a Single Unique Identifier or SUI). Designated persons must include the consistent identifier when processing information about a child for safeguarding and promotion of welfare purposes.” [Emphasis added]
Why does it matter?
The introduction of a policy like this raises several red flags for anyone concerned about areas such as civil liberties, data protection and the historic right to a private family life. In fact it has a very similar smell to the one which alerted Scottish HE families to a central pillar of their Government’s Getting It Right For Every Child [GIRFEC] legislation. The key component was that every child in Scotland would be appointed a “Named Person” – a State employee – charged with overseeing that child’s wellbeing and welfare throughout their childhood. This person would have access to all the child’s data without necessarily the knowledge, and importantly the consent, of their parents.
In 2013, the Schoolhouse Home Education Association obtained a legal opinion which they submitted to an inquiry by the Education and Culture Committee. They also showed it to a number of large organisations, one of which, the Christian Institute [CI], recognised its worth and informed the Scottish Government that it intended to begin legal proceedings against it over the policy. Three high level court hearings followed, with the final one being in London’s Supreme Court. The CI reported the outcome thus:
“On 28 July 2016, in the case of The Christian Institute and others v The Lord Advocate (Scotland) five UK Supreme Court judges unanimously struck down the central provisions of the scheme.
The Court stated that the data sharing provisions in the Children and Young People (Scotland) Act were in breach of the right to a private and family life under article 8 of the European Convention on Human Rights.
It also ruled that it had to be made clear that any advice offered by a named person is entirely optional.”
The Supreme Court’s judgment is worth reading if you have not already seen it. For those unfamiliar with legal text, Allan Norman, the solicitor who wrote the original opinion submitted by Schoolhouse, provided this analysis of the judgment shortly afterwards, “When Protecting Wellbeing Is Totalitarian.” One particularly helpful section is found below the sub-heading, “Wellbeing and totalitarianism.” Here, Norman examines why Lady Hale was able to describe the aims of the scheme as “legitimate and benign” at the same time as calling it “totalitarian.” Many will be familiar with this paragraph from the judgment:
“The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.” [Para.73]
If you have not already spotted the connection, from its first mention in the King’s Speech, Labour’s current Bill has been headlined as being about “Children’s Wellbeing.” The take-away message from the Scottish case, however, is that the use of such wording does not prevent a measure from being totalitarian.
Unrestrained sharing of children’s data (i.e. with no need for parental consent to be gained) proved problematic for the Named Person Scheme, and therefore it must be asked if its inclusion in the CWSB is an indicator that Labour’s intentions will result in a totalitarian oversight of childhood. Of course, Governments can find ways to excuse themselves from complying with Human Rights legislation, and another Bill currently going through Parliament will do that very thing – if it passes though scrutiny intact!
In the first post of this series we recommended Defend Digital Me’s post about the CWSB. Their comments on the Single Unique Identifier and the proposed changes to data protection law (sub-headings 4 & 5 respectively) are a must-read if you wish to be well-informed about this area. The latter links to an earlier post of theirs on the Data (Use and Access) Bill, which is already being debated in the Lords. Here they list six serious concerns carried over from the previous data bill, which fell when last July’s election was called. The first is described thus:
“1. The new condition of Legitimate Interests for safeguarding the wellbeing of vulnerable persons, (Schedule 4 – Lawfulness of processing: recognised legitimate interests, Safeguarding vulnerable individuals); dropping the Right to Object and the obligation on controllers for a balancing test creates foreseeable risks, this is unnecessary especially where use cases given in the Explanatory Notes may need the basis of Vital Interests instead;”
We encourage you to read Schedule 4 for yourself. Essentially this deals with “Lawfulness of Processing: Recognised Legitimate Interests – Disclosure for purposes of processing described in Article 6(1)(e)” of UK GDPR. The relevant Clauses are 6, 7 & 8 which are headed “Safeguarding vulnerable individuals.” The first of these reads, “This condition is met where the processing is necessary for the purposes of safeguarding a vulnerable individual.” The next clause specifies the meaning of both ‘safeguarding’ and ‘vulnerable individual’ in 6, the latter being defined as: a) aged under 18, or b) aged 18 or over and at risk.
If the Data (Use and Access) Bill receives Royal Assent in its present form, the decision whether or not share data across services on any child from birth until their eighteenth birthday will not lie with the person themselves, nor with their parents, but with the Data Controller of the agency holding the information about them. Add to this the proposal quoted above from the CWSB which will require “designated persons” to include the consistent identifier when processing information about a child for safeguarding and promotion of welfare purposes, and it’s not hard to see the direction of travel. Parents are being set aside as the prime safeguarders of their children!
Some may ask, is there not a place for the State to possess and share data on a child across agencies? Yes there is, but legislation already allows for this when the agents of the State are able to justify that acting without informed parental consent, which has not been given under duress, will protect the child from suffering, or potentially suffering, serious harm. It is impossible for a blanket policy which considers every young person under the age of 18 as vulnerable to meet that criteria. It cannot be denied that the State had plenty of data on Sara Sharif and her family. However, possessing that data did not protect her.
It is worth noting that parents still retain the privilege of being able to name their children; in accepting this as normal, the State recognises the parents’ responsibility and authority in the lives of their child. (Some countries do have restrictions on what names children may be given, but otherwise the choice is left to the parents.) We are now at a moment in time where, in its relationship with your children, our Government is seeking to replace their name with a number. At one time farmers called their cows names like Daisy or Buttercup, but these days “the Department” (in this case DEFRA) demands they have a number. It’s not hard to spot the similarities.
What can I do?
You may not feel like engaging with another piece of legislation. However, you should at least be aware that the CWSB is not a stand-alone set of measures. It is not the only Bill which seems to have survived a change of Government, and been reissued in a more intrusive form. When it comes to data protection and education, Defend Digital Me is the specialist rights group. You may find other organisations with a wider interest in data protection helpful too. These include Big Brother Watch and the Open Rights Group. As busy as everyone is, it’s good to keep as well informed as possible so as to grasp the bigger picture.
The reason for highlighting the SUI and the Data (Use and Access) Bill here is because, as HE families, we often find it difficult to engage parents of schooled children with our concerns. It’s difficult for many such parents to recognise that the loss of your freedom to HE your children without unjustified State interference will erode their role as parents even more than it already has been over the last two decades or so. However, if you can bring to their attention that the State is seeking to give every child, including theirs, a track and trace number – perhaps a lifelong one, as it seems this could easily become a backdoor route to the digital equivalent of ID cards – then you might gain their interest.
A decade ago it was HE families in Scotland who sounded the alarm, and others rallied to their cause. Can a similar thing happen in England now? Most parents are not aware of the extent to which their children’s personal data is already being stored and shared by the state. If HE families can help those they know outside HE circles to understand what’s happening, then perhaps they too will come to a better appreciation of why many HE parents suspect the State will not be satisfied until every child is in school.