What’s been said?
Across the UK, governments are increasingly turning to data sharing to monitor their citizens’ lives. The latest example of this is the Welsh consultation, which proposes a new requirement for LAs, health boards and independent schools to pool data on every child.
These proposals are contained in §3 of the Draft Guidelines for LAs [DGLA]. They are included because, unlike the DfE in England, the Welsh Assembly Government [WAG] is not proposing a requirement for parents to register their HE children. Instead they are planning to put forward legislation to enable LAs to be “proactive in looking for ways to identify children not known to them.” (§3.2)
The proposed means of doing this is use powers under Section 29 of the Children Act 2004 to make new regulations requiring LAs “to maintain and populate a database of compulsory school aged children in their area…” and “local health boards to disclose to a local authority non-medical information to assist them in identifying children in their locality.” Further, the new EHE guidelines state, “Local authorities should undertake other means of identifying children not specified in the regulations in order to ensure the database is as accurate and complete as possible.” (§3.7)
After stating “Local authority officers can share information in accordance with General Data Protection Regulation (GDPR) and the Data Protection Act (DPA 2018),” §3.9 continues “Information sharing is vital to ensure that all children of compulsory school age are identified. Therefore, local authorities should seek to develop information sharing protocols…” whilst §3.11 extends the scope of such sharing to “other local authorities across England and Wales.” These proposals should therefore be of concern to parents in England as well as Wales, and across the UK.
In this light we urge readers to carefully consider §3.20-23 which describe the purpose of the School to School data transfer website where it is stated, “Local authorities should regularly check the ‘Lost Pupil Database’ for children who are potentially missing education and/or may be home educated.” [emphasis added]
Why does it matter?
Big data is increasingly being used by companies and governments to track and influence people’s lives. There are, however, limits on what data they can collect and retain without consent from individuals. The importance of these limits has recently been underlined by the long overdue abandonment of the Scottish Named Person Scheme [NPS]. The Supreme Court’s judgement in that case provides an important limitation on LA data sharing powers. In §22, it quotes the Information Commissioner’s Office Data Sharing Code of Practice, which, referring to Article 8 of the European Convention on Human Rights, states (para 10.3.1):
“The right to privacy in article 8 is a qualified rather than an absolute right. Public authorities can share information if it is lawful and proportionate to do so, but each case must be considered carefully to assess what is lawful and proportionate in the particular circumstances.” [emphasis added]
In response to the proposed new Isle of Man Education Bill, the Quinn Legal opinion argued that the powers in that Bill concerning EHE “fail the proportionality test.” (§69) Importantly, in establishing that test the authors draw on §90 of the NPS ruling which sets out four criteria to establish whether the measures in the Scottish legislation were proportional, and concluded that they were not. Two key points are listed in §106 of the Court’s judgement:
“(b) are incompatible with the rights of children, young persons and parents under article 8 of the ECHR because they are not “in accordance with the law” as that article requires,
(c) may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information,”
In the light of this important judgement and the failure of the Scottish government to circumvent it, there is a serious question as to whether or not the WAG data sharing proposals are legal.
Of further relevance to this area is a 2008 European Court of Human Rights ruling in the case of I v Finland in which the court ruled that states are responsible for the protection of medical data held by their hospitals. §38 of its judgement reads:
“The protection of personal data, in particular medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.”
What can I do?
The Welsh consultation has brought into sharp focus several important issues which apparently lie behind the last decade of systematic attempts to discredit EHE parents. If you have not done so already, please read our previous Bytes on the WAG’s proposals: one, two, three.
For more information about the data protection implications of these proposals and their threat to the privacy of children, please download this sample response to the consultation.
If you possibly can, make time to respond to the consultation.
Probably the most important thing you can do is to discuss these vital matters with other HE parents. As a good discussion starter you could use this statement from §73 of the Supreme Court’s judgement in the NPS judgement:
“Individual differences are the product of the interplay between the individual person and his upbringing and environment. Different upbringings produce different people. 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.“