When ‘Consent’ isn’t ‘Consent’

The state wants your family’s data, so be careful to give them only what they can legitimately ask for.

What’s been said?

Does the new Welsh guidance for elective home education properly conform with home education law? We need to stop and think about this very carefully.

In §4.21 it reads, “for a local authority to satisfy itself of the suitability of education provided by the parents, the local authority should see and communicate with the child.” However, the same paragraph closes by recognising that, “Parents and Gillick competent children are not, however, obliged to meet with the local authority and are free to decline a meeting if they so wish.”

Later, referencing the above, §4.37c explains, “[if] a family has refused without giving a good reason to allow their child to take part in meetings, then it [the local authority] will need to consider whether it can conclude a child is receiving a suitable education.”

When a government recognises on the one hand that citizens are not obliged to engage with them, and then suggests it could be to their detriment if they decide not to so, the result is that most people feel threatened by the state.

The question therefore is, is this how British law works?

Since the days of Robert Peel it has been recognised that policing in Britain is by the consent of the public and not through fear. When it comes to the safeguarding of children and vulnerable adults, the majority of needs are met with the consent of the individual concerned, or that of their parents or guardian. Only in the most serious of instances can social workers seek to override the consent of an individual or of those responsible for them by obtaining consent from a court. In court, it is up to those seeking to deviate from the norm to justify why it is necessary for them to do so.

The next section of this article is written by a guest author to explain the simple every-day implications of giving or withholding our consent.

Why does it matter?

What is it about the prospect of home education registration and the local authority that really bothers you? Is it the fear of being judged a risky parent? Fear of a school attendance order and having to give evidence in court? Maybe it is fear that you might be compelled to teach something that you don’t agree with, or that your child might get distressed by a home visit. Perhaps it is the fear of the knock at the door from a council official.

If the local authority is such a beast, then why are we consenting to let them into our lives at all?

British law is based on consent. This is an obvious point, but often we forget the obvious, hence this article. The Oxford English Dictionary says consent means “express willingness, give permission, agree.”

These are things we do all the time in our daily lives. We consent to things and decide not to consent to things. A spoof caller phones and starts asking for personal information about your heating system. You say “no thank you, good bye” and hang up. You have just refused consent. A delivery driver asks if he can leave a parcel with you for the neighbours because they are out. You agree. You have just given consent.

Your electricity company writes saying that next Tuesday they will call to replace your old electricity meter with a smart meter. You phone them up and say you do not consent to them having access to your data, and cancel the appointment. You have just refused consent.

You click on a link to a website and are asked to accept cookies. You refuse and carry on to the website to browse the pages at your will. You have refused consent for the website to track your data, but view it anyway.

Your friend’s car was broken into and you were a passenger the previous day. The police officer wants to take your fingerprints to rule you out of the investigation. You are uncomfortable with that and refuse consent, safe in the knowledge that, whilst you may not have been helpful, there will be no repercussions.

Consent is woven through the warp and weft of our lives, and we don’t even think about it.

Perhaps it is time, as home educators, that we took a long, cool look at consent because it is also woven into our British common law and, importantly, the Data Protection Act.

Suppose the above electricity company had also pointed out in their letter that you could refuse the installation of a smart meter – but if you did, they would terminate the contract. Would that be legal? Of course not!

The Data Protection Act is overseen by the Information Commissioner and their website has plenty of advice for the public on the matter of consent:

“Consent means giving people genuine choice and control over how you use their data. If the individual has no real choice, consent is not freely given and it will be invalid.

This means people must be able to refuse consent without detriment, and must be able to withdraw consent easily at any time.”

So how does consent work when the local authority writes to you asking for information about your home education?

The Education Act 1996 Section 436A says local authorities:

“must make arrangements to enable them to establish (so far as it is possible to do so) … the identities of children … not receiving suitable education otherwise than at a school.”

Home education is one hundred per cent legal and there is no law saying they can demand information when there is nothing to tell them that you are not providing a suitable education. Nowhere does it say that, in the absence of a legitimate concern, you must provide them with information and nowhere does it say what information you should provide in any case.

So why, then, do people write reports for local authorities and let them into their homes, sometimes leading to highly distressing situations?

The answer is fear. Fear that the local authority might serve a school attendance order, and fear that they might make your life even more stressful than it already is.

But if the local authority asks for personal information with a background threat of court action, then are you giving your consent freely?

If you could refuse to deal with the local authority safe in the knowledge that there would be no repercussions, then you would probably do so.

What can I do?

Consent is something which requires further consideration, as it is an area of law that underpins the whole debate around the freedom to home educate, and therefore we hope to publish on this theme again.

It is important though to begin to inform yourself about the circumstances when you can legitimately refuse to provide your own or your children’s data to a third party, and the limitations as to when they can justifiably request it against your will.

The Information Commissioner’s Office website is a useful source of reliable, relevant information. The quotation above about consent needing to be freely given is from a page entitled ‘What is valid consent?’ That is part of a section especially ‘For the public’. Other relevant pages in this section include ‘Your right to limit how organisations use your data’ and ‘The right to object to the use of your data’.

A much bigger section is provided ‘For organisations’, which includes national and local government bodies. Sections there which those seeking a fuller understanding may wish to read are ‘Public task’ and ‘Special category data’.