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Session 2007 - 08 Publications on the internet General Committee Debates Education and Skills Bill |
Education and Skills Bill |
The Committee consisted of the following Members:Nick
Walker, Tom Goldsmith, Committee
Clerks
† attended the
Committee
Public Bill CommitteeTuesday 19 February 2008(Morning)[John Bercow in the Chair]Education and Skills BillFurther written evidence to be reported to the HouseE&S 16
Fairbridge
Clause 14Educational
institutions: duty to provide
information
Amendment
proposed [7 February]: No. 17, in
clause 14, page 7, line 29, after
‘authority’, insert
‘provided that the relevant pupil
or student has given written consent for the information to be
provided.’.—[Mr.
Gibb.]
10.30
am
Question
again proposed, That the amendment be
made.
The
Chairman:
I remind the Committee that with this we are
discussing the following amendments: No. 16, in
clause 14, page 7, line 36, at
end insert—
‘(3A) Any pupil
or student to whom subsection (1) applies shall have the right to
examine any relevant information requested by a local authority before
that information is provided by the responsible person to the
authority.’.
No.
19, in
clause 14, page 7, line 36, at
end insert—
‘(3A) Any pupil
or student to whom subsection (1) applies shall be given the
opportunity to correct any relevant information regarded by him as
inaccurate, subject to the agreement of the responsible
person.
(3B) For the purposes
of subsection (3A), when agreement cannot be reached between the pupil
or student and the responsible person the Information Commissioner
shall decide what correction, if any, should be made to the relevant
information.’.
No.
170, in
clause 14, page 7, line 36, at
end insert
‘which is
relevant to assessing their educational and support
needs.’.
No.
18, in
clause 14, page 7, line 43, leave
out ‘instructed the responsible person not’ and
insert
‘not given
written consent to the responsible
person’.
No.
97, in
clause 57, page 30, line 34, at
beginning insert
‘Subject to the written consent of
the pupil or
student,’.
Mr.
David Laws (Yeovil) (LD): Good morning to you,
Mr. Bercow, and to the rest of the Committee. In your case,
welcome back to the
Chair.
At the end of
the last sitting, as you indicated, Mr. Bercow, we came on
to an important part of the Bill dealing with the information that must
be provided to local authorities by a variety of organisations, with
some of the information to be provided within local authorities from one
department to another. The hon. Member for Bognor Regis and
Littlehampton raised some legitimate concerns regarding the
Bill’s rather sweeping powers to require information to be
passed over. I shall be surprised if we do not return to some of those
specific matters, not only in the course of our discussions this
morning, but in another
place.
The hon.
Gentleman was kind enough to indicate that he supports amendment No.
170, tabled by me and my hon. Friend the Member for Bristol, West,
which would have the effect of requiring the information passed by
institutions in respect of their pupils or students to a local
authority to be
“relevant to assessing their
educational and support needs.”
The fact that the amendment is necessary
highlights the sweeping nature of the powers that the clause appears to
attempt to take. It allows an institution to pass over information of a
broad nature about young
people—[
Interruption.
] I am happy to give
way to the Minister if he wishes to correct anything that I have
said.
The clause is
widely framed, and when one considers the type of information that
educational institutions often collect and the difficult nature of
their job in dealing with some young people, there is a fear that some
of the information passed over may not be appropriate in the light of
the powers in the
Bill.
The
Minister for Schools and Learners (Jim Knight):
The hon.
Gentleman says that the powers are sweeping. To help him and the rest
of the Committee, I point out that subsection (3)(a) and (b) specifies
which information would be transferred automatically. Any other
information beyond that basic level would be transferred only with
consent.
Mr.
Laws:
The Minister is right that questions of consent are
involved. I do not want to return to the debate we had in our last
sitting and the points raised by the hon. Member for Bognor Regis and
Littlehampton, but he rightly asked whether young people and their
parents would be in a position to exercise the right to opt out;
whether they would be aware of all the information kept; and whether
they would be notified in a reliable way before the information changed
hands.
Jim
Knight:
The hon. Gentleman used the phrase “opt
out”. I will assist the Committee by pointing to subsection (4)
which sets out the position
if
“a parent of the pupil
or student concerned...has instructed the responsible person not
to provide
information”.
Mr.
Laws:
Yes, as the hon. Member for Bognor Regis and
Littlehampton said from a sedentary position, that is opting out. It is
not opting in, which is the thrust of the Conservative amendments. The
amendments tabled by the hon. Gentleman would have a different effect
from ours, although they deal with the same concerns. He has drawn
attention to the fact that the end of subsection (4) is rather vague on
how those responsibilities will be carried out. It states that the
information held by the institution about a pupil or student can be
handed over to the local authority unless the pupil or the parent of a
pupil below the age
of 16 has instructed the responsible person not to provide such
information. As I understand it, that leaves open the questions of how
young people or their parents might find out that that information will
be passed over, precisely what checks and information would have to be
available to them first, and whether they would have a right to correct
the information and see all of it.
Those are legitimate concerns,
because there might be cases involving, for example, child abuse where
very sensitive information is kept by schools. I can think of cases in
my constituency where imparting such information not only to an outside
body, but sometimes to the parent in a case where the child has given
the information in confidence, might be an extremely sensitive matter,
and the Bill as it stands does not clarify what the checks and balances
will be to enable that opt-out to be exercised in
practice.
Jim
Knight:
I apologise. The hon. Gentleman is right that the
Bill, as currently written, reads as if there would be an opt-out, but
it has to be read in conjunction with the data protection legislation,
which requires active consent for that sort of information to be passed
on.
Mr.
Laws:
I am grateful to the Minister for that
clarification. No doubt, he will set out the position as the Government
see it when he responds to the amendments. We certainly want to ensure
that those checks and balances are effective. We want to know how that
process will operate and whether data held that might be inaccurate
could be corrected, as the hon. Member for Bognor Regis and
Littlehampton suggested.
We certainly want to know what
objections the Minister has to amendment No. 170, which would attach to
the end of subsection (3)(c) the proviso that the information that is
handed over should be
“relevant to assessing educational
and support needs.”
If
the amendment was accepted, subsection (3)(c) would still be fairly
widely framed, but it would be narrower than in its present form, which
would effectively allow any information held by the school to be handed
over.
I put it to the
Minister that although the bulk of the information held by educational
institutions about their pupils and students is likely to be relevant
to their education and training needs, it is also quite possible that
there might be some sensitive information held that pupils, parents and
others might not want passed over. I hope to hear what the Minister
will do to ensure that the information that is handed over is relevant
only to educational and support needs, rather than being
open-ended.
My second
point relates to amendment No. 171, which I wish to mention in passing.
There is a slight difference between the thrust of the amendments
tabled by the hon. Member for Bognor Regis and Littlehampton and
amendments Nos. 170 and 171 taken together. My understanding is that
the Conservatives’ approach is essentially that there should be
opt-ins, that people should have the ability to correct information
that is inaccurate, and that there should be consent to information
being passed over. Our
approach is that the information that is passed over must be relevant to
educational and support needs, but when we come to amendment No. 171 we
will consider whether there needs to be consent to the information
being passed over, or whether there is some information that local
authorities, in the exercise of their responsibilities, should have
access to if it is relevant to the educational and support needs that
they are seeking to maintain. We will come to that point when debating
amendment No.
171.
Jim
Knight:
I, too, am delighted to be back, refreshed after a
week’s sojourn. I hope that the Committee will be sharp and
businesslike—both of which are adjectives that describe your
chairmanship, Mr. Bercow, which we continue to
enjoy.
I will address
the issues that the hon. Member for Bognor Regis and Littlehampton
raised when we last met and those that were just raised by the hon.
Member for Yeovil. I will also explain more widely how the Connexions
service works in practice and why that work is so vital to our shared
aim of assisting young people to engage in appropriate education and
training. I hope that setting that out for the Committee now will
enable us to avoid going over these issues in such detail when debating
later clauses. I apologise for speaking at some length, Mr.
Bercow, but I assure you that this is an attempt to save
time—perhaps “invest to save” would be a good
phrase.
To be able to
provide young people with support that is timely and appropriate to
their needs, local authorities and Connexions need first to know who
the young people are, how to contact them, and what education and
training they are engaged in and where. It is also helpful to know what
their needs and interests are so that they can be provided with
appropriate, personalised advice and guidance. That will inform the
planning of
provision.
When a
young person drops out and a provider has not been able to prevent it
or re-engage them, the provider will let Connexions know, as set out
in clause 13. Guidance professionals will get in touch with
the young person immediately and help them to find an alternative place
and resolve any problems. That is key to the considerable work that is
being done across the country to drive up participation, to deliver the
September guarantee and to reduce the number of young people not in
education, employment or training. To achieve that, Connexions and
local authorities need a high-quality, accurate system that tracks
young people
effectively.
The
Green Paper “Raising Expectations: staying in education and
training post-16” said that we would build on the system that
Connexions currently uses to gather that information—the client
caseload information system, which I will refer to as the CCIS. It uses
information from a range of sources, including learning providers and
other public bodies. Connexions personal advisers record information
from their one-to-one contact with young people. I assure the Committee
that none of that infringes on young people’s rights to privacy.
I will elaborate on that point
later.
As I mentioned
and got to eventually in my third intervention on the hon. Member for
Yeovil, young people have the right under the Data Protection
Act 1998, rather than the Bill, to know if their information is going to
be passed on. They can request a copy of it and can request that it be
corrected if they think that it is wrong. They can prevent their school
or college from passing on certain information about them. Connexions
obtains their consent before passing on their information to other
bodies. Young people can consent to the information being passed on to
some bodies and not to others. The hon. Member for Bognor Regis and
Littlehampton is right that that is the active consent to which I
referred in the oral evidence session on 29 January. It is fair to say
that it is not clear on reading the Bill where the act of consent comes
in, because it is provided for by other
legislation.
Mr.
Nick Gibb (Bognor Regis and Littlehampton) (Con): This is
the crux of clause 14 and subsequent clauses. The explanatory note to
clause 16 states that its purpose
is
“to allow public
bodies to provide information to local education authorities where
other statutory provisions would prevent their doing
so.”
My vague
recollection from my period as a law student is that later statutes
take priority over earlier ones. Clause 14(4) is very clear that it
requires a student himself to instruct the institution when he does not
wish information to be supplied. That implies that that provision,
rather than other legislation such as the Data Protection Act, will be
the law in relation to this precise transfer of information. Will the
Minister give chapter and verse on the sections in the Data Protection
Act that he believes will take priority over this later
statute?
10.45
am
Jim
Knight:
I shall come back with chapter and verse in the
fullness of time. I am sure that I will be able to do that fairly
soon.
Returning
to clauses 14 and 57, I would like to be clear that information sharing
has been in place for Connexions since the Learning and Skills Act 2000
was passed. It is not new. None of the measures is new, but they are
necessary because of the new arrangements between Connexions and local
authorities. Learning providers already provide information to
Connexions so that it can track young people’s participation and
offer support that is appropriate and timely. As local authorities take
responsibility for providing the Connexions service, they will need
information sharing to continue so that the effectiveness of the
service is not jeopardised. These clauses are similar to existing
arrangements and are covered by the Data Protection
Act.
Clause 14(4) does
not require consent for sensitive information to be passed on, but the
agencies must give a very strong public interest justification for it
being passed on. Consent will not necessarily be required where there
is a statutory power for the disclosure to be made, but parents and
pupils will be made fully aware of the right to opt out in the fair
processing notice that is issued annually. There are clearly some quite
complicated issues about data protection, and I will come back to the
hon. Gentleman on whether one piece of legislation supersedes the
other.
Mr.
Laws:
Will the Minister clarify two points? First, will
the educational institutions involved have to give information of that
type about past pupils and students, or are we talking about present
pupils and students only? Secondly, how will consent be achieved in
practice within educational settings? Who will seek it, what will the
opt-out mechanisms be and how will the information be supplied to
individuals? He has given us a formal ministerial description, but I
would like something that feels a bit more human and
comprehensible.
Jim
Knight:
I shall try to set out the latter point in the
course of my longish comments. As far as I am aware we are talking
about current pupils as they go through the system, and the various
consents apply accordingly. I will correct that if I need
to.
Mr.
Laws:
The Minister may receive guidance from on high or
from behind him, but will he clarify that the powers cannot be used in
respect of an institution when the pupil or student has already left?
That seems to me to be an important point and one that could well arise
in some
circumstances.
Jim
Knight:
I will clarify the point if I have to, but my
reading of the clause is that it refers to part 1 and therefore relates
to pupils who are going through the process. There may be other
measures about being able to track the destinations of pupils, but they
do not relate to this
matter.
I was talking
about the similarity between the measures in the Bill and other
existing arrangements. The measures are covered by the Data Protection
Act. I will write to the Committee about the detailed legal advice on
superseding legislation. That will explain the matter more clearly than
any comment that I can summon up from my collective wisdom here and
now.
On active
consent, when Connexions passes on information that it holds on young
people, such as the information that is given through one-to-one
contact, it asks for the young person’s consent before passing
it on. Therefore, a very active consent procedure is already going
on.
Jim
Knight:
Certainly. I have been saying that all we are
doing is repeating current law and current practice. Now, when
Connexions passes on information that is held on young people, such as
information that a young person may have given through one-to-one
contact with a personal adviser, it always asks for the young
person’s consent before passing it on. For example, in the
course of a conversation about a young person’s treatment for an
addiction, the personal adviser might ask whether they mind if that
information is passed on to another body, such as a health body. The
young person has the opportunity to say at that point whether they are
happy to give that
consent.
I can confirm
that schools can only pass on information about existing pupils, if
that helps to bring absolute clarity for the hon. Member for
Yeovil.
Mr.
Gibb:
On the point that the clause is merely extrapolating
existing powers relating to the Connexions service, the Bill extends
far more widely than simply giving careers advice to young people. It
covers all
young people aged 16 or 17, requiring them to remain
in education or training until they are 18, on pain of criminal
sanctions. That is the difference between the Bill and the legislation
applying to the Connexions service, which is a narrow service provider
of a limited range of services. The clause represents a huge difference
in scale. I do not think that it is sufficient for the Minister to say
that the much wider power and duty in the Bill is simply a continuation
of the same provisions. I am
worried—
The
Chairman:
Order. I make the point at this stage that
interventions are becoming increasingly wordy. Progress to date has
been relatively leisurely and I want it to become much less so. Will
Mr. Nick Gibb briefly finish his
point?
Mr.
Gibb:
My other concern is that the amendment has been on
the amendment paper for some weeks and I delivered my comments before
the recess, so it is not adequate for the Minister to say that he will
write to the Committee on the basic crux of his argument regarding
consent.
Jim
Knight:
On the hon. Gentleman’s first point on the
scale of the criminal consequence, in substance, we are talking about
the passing of personal information from one body to another. That is a
sensitive matter, regardless of the consequence. It is important that
we protect sensitive information now and in the future, regardless of
the criminal consequence attached to part 1 and the duty to
participate.
In
respect of what I said about writing a response on the topic of
consent, the only reassurance that I can give the hon. Gentleman now is
that the Data Protection Act was passed in 1998, and the governing
legislation that we are replacing is the Learning and Skills Act 2000,
so the governing legislation was already passed after the Data
Protection Act. On that basis I do not envisage any legal problem with
the provisions of the Bill. If I need to correct what I have said, as
ever, I will write to the Committee to inform hon.
Members.
To try to
move on, Mr. Bercow: the fact that the provisions are
similar to existing arrangements means that a young person can already
request a copy of personal information held about them by their school,
college or other provider, and that they could put the same request to
Connexions or the local authority whenever they wish. If a young person
believes that the information held on them is inaccurate, they can
write to the organisation to set out what they believe is wrong with it
and what should be done to correct it. If the necessary changes are not
made, the young person can ultimately take the organisation to court,
but they can also ask the Information Commissioner to assess whether
the processing of their personal data has been carried out in
compliance with the provisions of the Act. Amendments Nos. 16 and 19
are therefore unnecessary. I assure the Committee that the sharing of
information specified in the Bill is subject to the Data Protection
Act, and that there is no need for the safeguards to be repeated
explicitly here to make it
so.
Mr.
Gibb:
Why, then, is the safeguard in clause 14(4)? What is
the point of that provision if that too is
unnecessary?
Jim
Knight:
The provision repeats the safeguards already laid
out in the Learning and Skills Act 2000. They are to differentiate the
basic relevant information described in subsection (3) and the broader
information, as described by the hon. Member for Yeovil. A difference
needs to be set out in
law.
Under the
Learning and Skills Act 2000, learning providers pass on young
people’s basic identification information to Connexions
providers, including their name, address, date of birth, and the name
and address of a parent, as set out in subsection (3). They and their
parents are informed, normally by way of a letter, that that
information will be passed on, and about the uses to which it might be
put. The young person, or their parent if they are under the age of 16,
has the right to stop any further information about them being passed
on, and the Bill allows those arrangements to continue when the
responsibility for Connexions passes to local
authorities.
Mr.
Laws:
I want to clarify that point, because it is
obviously important. Is the Minister saying that under the existing
system it would be possible to pass any of the educational and support
information specified in subsection (3)(c) to a local authority without
permission, or is the whole of subsection (3)(c) subject to the
opt-outs in subsection
(4)?
“Information within
subsection (3)(c) must not be provided under subsection (1)
if”
the pupil or student
has instructed the responsible person not to provide the information. I
hope that that answers the hon. Gentleman, because it seems fairly
clear to
me.
Mr.
Laws:
I think that that is clear, but can the Minister
clarify that no information that would be covered by subsection (3)(c),
even if it is educational, can at the moment be passed on without an
opt-out provision? I think that that is what he is saying, but it would
be useful to be clear that there is that sharp distinction between what
is in subsection (3)(a) and (b) and the
rest.
Mr.
Gibb:
It is not clear to me. Is the Minister saying that
the information covered in subsection (3)(c) will be supplied unless
the institution has received written instructions not to do
so—in other words, that the institution does not need actively
to seek the consent of the pupil to supply that
information?
Mr.
Gibb:
Yes, it is very helpful and confirms my concern that
the active consent that the Minister said would be required will not
be. It is still an opt-out situation, is it not? Has not he confirmed
that the protection is only in subsection (4) and that the Data
Protection Act 1998 does not require the institution to seek consent
before supplying the educational
information?
Mr.
Gibb:
I do not understand the purpose of subsection (4) if
the 1998 Act already requires the institution actively to seek the
consent of the pupil before supplying the educational information in
its possession about that pupil. If the data protection legislation
applies, what is the purpose of subsection (4), which requires written
instruction from the student not to supply it, and, in the absence of
receiving that written instruction, can the institution supply the
information regardless of whether they have sought
consent?
Jim
Knight:
As I understand it, subsection (4) allows us to
differentiate the basic information set out in subsection (3)(a) and
(b) and other information, in terms of the law. Alongside subsection
(4) are the measures in the 1998 Act, which will also apply to that
sort of
information.
Mr.
Gibb:
This is crucial to the whole essence of the
data-sharing provision. If an institution is requested by a local
authority to supply educational information about that student, does
that institution need to obtain written consent from the
student?
Mr.
Gibb:
If the local authority requests information about a
student from an educational institution, does it have to obtain consent
from a student before supplying that
information?
Jim
Knight:
Clause 14(4) is based on presumed consent, so that
that information can be passed on more quickly, but obviously the 1998
Act applies on top of that.
Mr.
Gibb:
That is not an adequate response. Imagine that I am
an educational institution. I receive a request from a local authority
for educational information about a student in my institution. Do I
need to obtain consent from the student before I supply that
information—yes or
no?
11
am
Jim
Knight:
No, in response to the question about written
consent before supply. Before an educational institution has to supply
information, written consent does not have to be obtained, as I
understand it. However, all the protections in the Data Protection Act
that I have set out remain in the case of the individual and their
parents.
Mr.
Laws:
On how many young people is the clause likely to
impact? Does the Minister envisage a large-scale data transfer in the
years running up to a person’s 16th birthday, or does he think
that it will be used in a small minority of
cases?
Jim
Knight:
Every young person will be affected by the clause,
because when someone reaches the age of 13, information is passed from
the school or institution to Connexions so that it can offer advice as
they move on to make choices at 14. Subsequently, as and when they have
contact with Connexions, their record will develop. That further
information could include the courses that they have studied, their
grades, their attendance and changes of address. That gives Connexions
softer intelligence on each young person, enabling it to tailor the
support on
offer.
Amendment No.
170, which was tabled by the hon. Member for Yeovil, would ensure that
information is passed on only if it is relevant to an assessment of the
young person’s educational and support needs. I can reassure the
Committee that that is already the case. The first word of clauses 14
and 57 is “Relevant”. That will continue to be the case
regardless of whether the information is passed on to Connexions or to
the local authority. The law already regulates the circumstances under
which information can be passed on. The Data Protection Act, the Human
Rights Act 1998 and a common law of confidence all ensure that the
sharing of personal information without consent takes place only when
necessary and proportionate. For example, in this case, it is relevant
to the local authority’s duties under part 1 to promote
participation or to provide the Connexions service. Amendment No. 170
is therefore
unnecessary.
Mr.
Laws:
Would it be relevant if a child had been abused by
their parent, causing mental health problems, and if the school had
information about that on its
file?
Jim
Knight:
I dare say it may well be relevant if those sorts
of things have happened. That information would be extremely relevant
in respect of some clauses that we will discuss on public bodies
passing information to Connexions and vice versa. The hon. Gentleman
has tabled an amendment to exclude health authorities and primary care
trusts from passing on information. It is exactly that sort of scenario
in which someone has mental health needs where we want a facility in
law, so that that information can be passed on and the relevant support
provided. In respect of mental health, the information would be held on
a school’s pupil leave annual school census
database—PLASC—but it would not be passed on by the
school, because it passes that information up to the Department, and
from there, the PLASC data will go down to local authorities and
Connexions.
Mr.
Laws:
Earlier, the Minister said that this provision could
involve large numbers of children. His assumption, therefore, is that
this information will be accessed for most of the cohort. Is that
correct?
Jim
Knight:
As I said, data are held on PLASC and on CCIS in a
very basic form. That is set out in subsections (3)(a) and (b)
as
“the name, address and
date of birth of the pupil or
student”
and
the
“name and address of
a parent of the pupil or student”
for every pupil and student in the
country. It therefore applies to the whole cohort. Is that the
information that the hon. Gentleman was
seeking?
Mr.
Laws:
These are quite sweeping powers on the scope of
information, and the need for an opt-out or an opt-in may relate to the
size of the transfer. I think the Minister is saying that the transfer
could affect quite a large number of young people whose permission
would be sought.
Jim
Knight:
The basic information requirement affects every
pupil. The duty to provide the name and address of the pupil or
student, and the name and address of a parent of a pupil or student is
set out in subsections 3(a) and (b). Subsequent information, such as
that in respect of the DPA and whether there is an opt-in or an opt-out
depends on the circumstances. In most cases, much of that information
will be passed on, because parents will not withhold their consent, as
they value the support generated from the Connexions services and
others.
Let me try to
make some progress by returning to amendments Nos. 17, 18 and 97, which
deal with consent. The Data Protection Act 1998 already requires public
bodies, including schools, colleges and training providers, to inform
an individual if personal data relating to him or her is disclosed. In
practice, that means, for example, that the school will actively
approach the young person, or their parent, to inform them about the
purposes of data processing, such as the type of information and the
bodies with whom data may be shared and why. The school would need to
repeat that annually, and every year, it should send some kind of
notice home to parents setting out how the data will be
used.
This requirement
exists even where consent for the sharing of information is not
required as a matter of law. The interests of the young person, and any
consequences for them of information sharing, must be the paramount
consideration. Adding a specific requirement for young people to give
their written consent every time their school or college passed
information to the local authority or its Connexions service would
greatly increase bureaucracy and add complexity to the system. More
importantly, it would reduce the ability of the Connexions service to
provide timely and appropriate support to young people in finding and
accessing appropriate courses.
In cases where young people did
not consent to their basic identification information being passed on,
the local authority and Connexions would not be able to track young
people or know when someone had dropped out of education or training.
That means that they might not be able to provide that person with any
support, let alone timely support. The sooner the Connexions service
contacts someone who needs support, the better the chances that that
will be effective in getting them back into learning.
The additional requirement
would be particularly burdensome on the young people themselves. It
would effectively bar some of the most vulnerable young people, such as
young people with special educational needs, those suffering from drug
or alcohol abuse or those with chaotic lifestyles, from receiving
support
until they had formally consented in writing. That is not practicable or
desirable. Young people do—and this will continue—have
the option of refusing consent for additional information, which is
information above their basic identification information, to be shared
with the local authority. I hope that what I have said reassures hon.
Members that the young person and/or their parents will be fully aware
of whom this information would be shared with and why, and of their
right to stop it happening.
While there are a number of
support services that seek to reach out and support young people, the
Connexions service is the only one that has responsibility for
supporting all young people between 13 and 19. That is one of its
strengths. None of the other partner agencies has been tasked with
tracking all young people, and most other systems would only record
information on those young people with whom they are working.
Connexions is required to know about everyone in its area. It is the
information provided by schools and colleges that forms the basis for
the support that it provides, and enables it to identify young people
who may need additional help.
I can reassure the hon. Members
for Bognor Regis and Littlehampton and for Yeovil that, in line with
data protection principles, only information relevant to the provision
of the Connexions service would be shared under the clause. This is
likely to include gender and ethnicity, whether the young person is
receiving support through SEN school action or school action plus, and
which year group they are in. For those in their final year of
compulsory education, it would include whether they had an offer to
return to school for the sixth form. That allows the Connexions service
to target support on those who are not planning to stay on at school
and to help them obtain a suitable place elsewhere.
The information shared is
unlikely to include more personal information such as whether the young
person had been in trouble at school or had problems at home. Given
that protection and the other safeguards in the process, I do not think
there is a risk that young people will be deterred from raising
academic or personal problems with school
staff.
Mr.
Gibb:
Does the information requested under clause 14
relate only to the Connexions service and not to the general duty in
part 1 of the
Bill?
Jim
Knight:
Clause 14 refers to local authorities sharing
information. Later clauses refer to Connexions sharing information. Was
the hon. Gentleman asking whether the clause referred to that
duty?
Mr.
Gibb:
The Minister has just said that the information is
necessary to enable Connexions to carry out its service, but I assumed
that clause 14 related to the duties in part 1 of the Bill, which are
about raising participation, and not merely to the Connexions
service.
Jim
Knight:
Clause 14 relates to part 1
functions—similarly, clause 57 relates to part 2
functions—so it relates to the raising of the participation age,
which is what we were discussing with regard to part
1.
Mr.
Gibb:
Why did the Minister focus his arguments about the
clause on the fact that Connexions wishes to carry out that
service?
Jim
Knight:
The scale is not significantly different. Parts 1
and 2 cover all young people. The Data Protection Act protections
require institutions to let young people and their parents know that
the information that is shared will be used for part 1 purposes, so it
could be used to identify the fact that they are not fulfilling their
duty to participate. The point of sharing the information, in relation
to both parts, is to enable Connexions to support young
people.
Mr.
Gibb:
Yes, but there is a difference in scale. The
Minister is justifying those sweeping information-sharing powers as
though they were a minor thing that simply provided services to a
student. They are not to do only that; they enforce a duty in part 1.
There is a huge difference of scale, so he cannot use that argument to
justify the powers in clause
14.
Jim
Knight:
But the CCIS—and I have been very clear
with officials—will not be used for some kind of trawling
exercise to enforce the duty. It will provide support to help young
people fulfil their duty as in part 1, but it is not meant to assist
the local authority in carrying out any kind of enforcement. The hon.
Gentleman describes the measures as sweeping powers, but as I have made
perfectly clear, they are set out in the Learning and Skills Act
2000.
Jim
Knight:
Clause 14 sets out replacement clauses for the
2000 Act. With regard to trawling exercises and enforcement, we are
absolutely clear that that does not apply. I have already told the hon.
Gentleman clearly that the clause relates to the support that
Connexions provides to enable people to fulfil their duty, rather than
to any kind of
enforcement.
We
believe that the nature of the information that will enable Connexions
to fulfil its duty of support to all young people means that it is
proportionate to have an opt-out approach to consent. We take a
slightly different stance on the information that is held by Connexions
and may be passed to other agencies. That information includes the
basic information and any other information passed on by schools and
other learning providers, but it also includes information gathered by
Connexions in the course of its interactions with a young person. That
latter category of data held by Connexions can be
sensitive.
In
some cases, because of an individual’s needs, the Connexions
service may want to pass specific information to another professional
working in a specific area, such as a social worker or a health
professional. That would be done on a case-by-case basis and with the
active consent of the young person. The young person can agree to
information being passed to one professional but not to another. The
provisions strike the right balance between enabling the local
authority to fulfil its duty of promoting participation by providing
the Connexions service and tracking young people effectively,
and respecting young people’s right to prevent certain
information about them from being shared. That balance that has been
proved to work over the past eight years, as these provisions replace
measures, as I have repeatedly said, in the Learning and Skills Act
2000 in a largely unaltered
form.
Mr.
Gibb:
The Minister has just read out a phrase or
sub-clause of a sentence in his brief saying that the
information-sharing provision has been included to promote the duty to
participate. If this is simply about providing information for the
Connexions service, I cannot understand why there are two different
clauses—clause 14 relating to part 1, and clause 57 relating to
support services—saying the same thing:. Why have two identical
clauses in different parts of the
Bill?
11.15
am
Jim
Knight:
We have two clauses: one in relation to local
authorities and one in relation to Connexions. That is because of the
new arrangements between local authorities and Connexions, as the
Connexions service is something that local authorities can provide
themselves or contract out. The scale is not significantly different
from now. There is a new purpose, which is why we have separate
clauses, but the powers are not new. They enable local authorities to
identify young people, but clause 57 already allows that. Clause 14 is
important, because it makes the new purpose clear with regard to the
role of local authorities. They cannot perform their part 1 duties if
they do not provide support through, for example, Connexions. It is
absolutely fundamental that we have these provisions in place. They can
promote participation, but they are not meant to enforce
it.
Mr.
Laws:
I am grateful to the Minister for his patience and
generosity. In relation to the sensitive information in subsection
3(c), who would make the judgment about whether it should be passed to
the local authority? What would be the process of deciding whether that
information should be handed
over?
Jim
Knight:
The Connexions service, the schools and
institutions, and the local authorities themselves have well
established procedures. It would be well known what information is
helpful in providing the service. I have set out some of that,
including the courses they provide and so on. In the end, the people
operating the Connexions services locally or the local authority could
make a request for certain information to be passed on and then the
consent procedures would kick
in.
Finally—hopefully,
it is finally—on the subject of the capacity of the CCIS system
to perform the new role, both the National Audit Office and the Prime
Minister’s delivery unit have commented favourably on the
information system. In addition, my Department has reviewed the
system’s capabilities for supporting the raising of the
participation age—RPA—and while it is always possible to
make improvements, I am satisfied that the specification will do the
job. Kieran Gordon, who gave evidence to the Committee, offered a very
helpful description of how the system works in practice. In addition,
he said:
“It
is interesting that tracking has improved markedly during the life of
Connexions. The percentage of young people who are
not known has fallen radically through better engagement with young
people.”——[Official Report, Education and
Skills Public Bill Committee, 29 January 2008; c. 183,
Q420.]
As part of the
proposed directions to local authorities provided for in clause 55,
local authorities will have to comply with the national specification
for CCIS, to ensure vital information flows and availability is
safeguarded. CCIS will, of course, need some adaptation to cater for
100 per cent. participation, and that is a key consideration for the
RPA implementation work to follow in the next five years I hope,
although I am not all that optimistic, that in the light of my
reasoning and lengthy explanation, hon. Members will not press their
amendments.
Mr.
Gibb:
I have to say that I am very unhappy with the
Minister’s attempts to justify the provisions. He is extending
limited powers that applied to Connexions—an advisory service to
help young people with advice on careers and future
training—much more widely to promote participation. He makes a
distinction between promoting participation and enforcing it. But the
Bill makes no such distinction. Clause 14(2)
says:
“A local
education authority may request information under subsection (1) only
for the purpose of enabling or assisting it to exercise its functions
under this
Part.”
Its
functions under that part, which includes every clause that we have
debated, relate not only to promoting participation but to enforcing
it. The Minister is not correct to say that this is solely about
promoting participation and trying to enable the local authority to
provide a tailored service to an individual, as it is also about
enforcing participation to ensure that young people are attending. That
is what part 1 is about. I am also unclear, despite extensive
interventions on the Minister by the hon. Member for Yeovil and myself,
about the purpose of clause 14(4), which states that sensitive
information in subsection (3)(c) about which we are concerned must not
be provided if the young
person
“has instructed
the responsible person not to provide information of that
kind”.
If there is no
written note from the young person saying that the information should
not be provided, according to the Bill, the educational institution can
provide it.
The
Minister said that the Data Protection Act provisions required active
consent from the pupil before that information can be provided, but on
probing, he fell back on the explanation that it required written
instructions from the pupil that the information should not be
provided. Those things do not stack up, and he has been unable
to tell the Committee chapter and verse which provisions in the Data
Protection Act require active consent from the pupil. I think that he
is playing fast and loose with the provisions, although I hate to be so
argumentative in making my
point.
Jim
Knight:
I apologise to the Committee if I have not been
able to satisfy it in respect of the minutiae of how the provision
works. I would be very happy to set out the technicalities in a note to
the Committee. If hon. Members are not happy with the technicalities
that I set out, we can return to the matter
on Report.
Mr.
Gibb:
I am grateful for that assurance and I am sure that
we will return to this matter on Report. I have asked the Minister
quite explicitly, if I were an educational institution and had a
request from a local authority to provide sensitive educational
information, whether I would be required to obtain consent from the
pupil. His answer was no: there had to be written instructions from the
pupil, and the institution would not have to seek that consent. That
concern underlies the amendment, and that is why I will press it to a
Division.
Jim
Knight:
Just to clarify my point that these powers are to
be used for support rather than enforcement, the powers in clause 18 on
guidance make it extremely clear that that will be the case. There are
further measures in clause 39(5)(a) and (b), which set that out in a
little more detail. We will come on to those
provisions.
Mr.
Gibb:
I do not regard guidance, which is a tertiary form
of legislation that we do not scrutinise and which has no real power
over primary legislation, as a safeguard, particularly as the Committee
has not seen a draft of that guidance. I remain unconvinced and very
unhappy about the Minister’s response. As a consequence, I will
press the amendment to a
Division.
Mr.
Laws:
I am grateful, Mr. Bercow, for your
patience, as we have not made quite the progress that you hoped for. I
hope that we will make more rapid progress once we have dealt with this
extremely important
clause.
Perhaps I
should start by saying what we would be happy to see in the clause,
rather than raise further problems with it. Given the principles behind
the Bill, we would be happy to see a situation in which basic
information relating to pupils’ names, addresses and so forth,
together with core educational information, are transferred to a local
authority to help it discharge its responsibilities under the
legislation.
We have
concerns about the passing over of very sensitive information. I have
cited some examples from my constituency where schools often hold
extremely sensitive information about young people that they have
gained not because of their strict educational responsibilities, but
during course of contact between children and particular teachers.
Subsection (3)(c) will allow that information to be passed to a local
authority unless an individual has instructed the responsible person in
the educational institution not to do
so.
When pressed, the
Minister thought that he was giving me reassurance, but he actually
causing me further concern about the types of case that I was already
concerned about. For example, he said that a case in which information
was held on a school database concerning a young person who had been,
or claimed to have been, sexually abused by a parent, and had developed
mental health or other problems, could be passed over as a result of
the provisions in the clause. That is a very sensitive
matter.
Our basic
position is that, provided the information is clearly relevant to
educational and social support, without any controversy, it would be
reasonable for it to be passed over; although some of the opt-out,
opt-in issues raised by the hon. Member for Bognor Regis and
Littlehampton remain. However, if the information is much more
sensitive, particularly in circumstances where establishing its
importance to the local authority in discharging its responsibilities
is more controversial, we would want a failsafe mechanism to protect
the transfer of that information, and to ensure that explicit
permission had to be sought and given; rather than the open-ended
provision at the end of subsection (4) that states that an individual
who does not wish the information to be passed over must give an
instruction for it not to
be.
Mr.
John Hayes (South Holland and The Deepings) (Con): The
nature of the information is likely to be sensitive, given that
Connexions will be its repository. We have heard both at this stage of
the Committee and in the evidence sessions that the Connexions database
is at the fulcrum of the matter. As the hon. Gentleman knows,
Connexions holds immensely sensitive information about a large number
of young people. Surely that exacerbates his
fears?
Mr.
Laws:
The hon. Gentleman is quite right that, inevitably,
local authorities and schools may consider a lot of sensitive
information relevant to the question of establishing a young
person’s support needs. When pressed on those matters, the
Minister told us a number of things. He said that the data transfer
could affect a large proportion, or even all, of the cohort. We accept
that a smaller proportion will be affected in relation to the transfer
of very sensitive information, but none of us really knows quite how
small that will be. He said that the information will be required to be
passed over by the education establishment while the pupil or student
is on the roll and not afterwards, which also raises concerns. If the
information has to be passed over at that time rather than afterwards,
it creates more of a presumption that more data will be
transferred.
For
example, a young person post-16 may not comply with the duty in the
Bill to be in education or training, and a local authority might get
involved at that stage. It might start to think: why is this person not
complying with the provisions of the Bill? What are their support
needs? What can we find out about them that will help us to understand
their needs and ensure that we put that support in place? If the
presumption is that accessing such information, which is often held by
the education establishment, must be done while the pupil or student is
at that establishment, there is a greater risk that the local authority
would expect the school to provide as much information as possible that
might be relevant in future to assessing those support needs. I fear
that quite a lot of information of a sensitive nature might transfer
from the schools to the local authorities during that
process.
How will the
approval work, and how will it be given? A small number of people with
high needs will have a Connexions adviser, and they may have a
conversation of the type that the Minister cited, leading to the
question of whether the young person would be happy for information
about their drug abuse to be passed on as a result of that
conversation. However, we could be talking about a much larger number
of young people.
I was trying to elicit from the
Minister a flavour of how he thinks that permission will be given in
practice. Could a teacher or head teacher come to a class in the final
year at school, or whichever year is relevant, and say, “We are
going to download all these boring data to the local authority to help
with your future education needs. Let me know if there is a problem
with that, and now over to the maths test”? Or perhaps it could
take place in assembly. Perhaps I am being too cynical and simplistic,
but it is unclear on a human scale how the permission will be
stored.
11.30
am
That is
directly relevant to what the hon. Member for Bognor Regis and
Littlehampton seeks to do, which is to firm up the provision so that it
is not left to people to have specifically to opt out when they realise
that the data are sensitive. However, if the data are sensitive, people
will have to opt in with some type of agreement. The more that the
Government want to make subsection (3)(c) open-ended, so that lots of
potentially sensitive data can be transferred, the more it is necessary
to have something stronger than the current opt-out, which might not
turn out to be as effective as the Minister
says.
Jim
Knight:
The hon. Gentleman is clearly concerned about
sensitive information. He is right to be so. We are all concerned about
that. We are very clear that sensitive information about child abuse,
for example, will not be routinely shared. It may be shared with a
personal adviser in school to support the young person, but a teacher
or case worker would have to seek the young person’s consent for
that unless there were safeguarding considerations, in which case the
safeguarding legislation would come into play. The hon. Gentleman must
also bear in mind that there will be a build-up of information from the
age of 13 when the initial record is created in CCIS. That is then
subject to the annual notice under the Data Protection Act, which I set
out in my speaking
note.
Mr.
Laws:
I am still confused about how the provision will
operate. Let us take the case of a young person who has allegedly been
sexually abused by a parent. That information would be held on some
kind of database within a school. The abuse would clearly have a big
impact on the young person, which could mean that they often truanted
from school or that they had mental health or other problems. If the
school was aware of the young person’s duty to be in education
and training post-16 and it was aware of the young person’s
problems as a consequence of those allegations, would it not, under
this part of the Bill, feel some obligation to pass that information
over? Is that not precisely the type of information that needs
cast-iron protection to ensure that there is not an opt-out, but an
opt-in? The very fact that the Minister said, in response to my
question, that he would regard such information as very relevant to a
young person’s potential future support and educational needs
indicates that it is the kind of information that could flow over as a
consequence of the provisions.
I put it to
the Minister that, at the moment, there are no adequate protections in
the measure for some of the data transfer that is envisaged. He
indicated that he did not have a fundamental problem with the contents
of
amendment No. 170, which simply seeks to tag to the end of subsection
(3)(c) the provision that the information should relate to education
and support needs. I admit that even that is a little vague because
support needs could be widely defined, but at least there would be a
little more clarity about the need to make a strong connection between
the information passed over and its relevance to education and support
needs. At the moment, the subsection is very
open-ended.
Jim
Knight:
The hon. Gentleman is a generous and reasonable
man. Does he not see that clause 14 starts with the words,
“Relevant information about a
pupil or student”?
In
that case, relevant refers to relevant part 1 of the Bill, so the hon.
Gentleman is getting what he wants already.
Mr.
Laws:
Unfortunately, I do not think that I am getting what
I want. The word “relevant” can be enormously open-ended,
as the Minister has already indicated in response to questions. For it
to be that open-ended, with only the protection at the end of
subsection (4) that the information will be passed over unless the
person proactively sets out an instruction that it should not be, does
not seem to be an adequate protection nor is it a realistic one in the
circumstances. Although we understand the need for some of that data to
be passed over, and we would want a lot of straightforward data to be
passed over in a non-bureaucratic way, we are obliged to be sympathetic
to the amendments tabled by the hon. Member for Bognor Regis and
Littlehampton. We feel that there needs to be some protection from
subsection (3)(c). In addition, I would like to press amendment No. 170
to a separate Division if that is acceptable to you, Mr.
Bercow, and to the rest of the
Committee.
Mr.
Gibb:
I intend to press the amendment to a Division.
Nothing that I have heard from the Minister convinces me to do
otherwise.
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 6, Noes
8.
Division
No.
12
]
AYESNOES
Question
accordingly negatived.
Amendment proposed: No.
170, in clause 14, page 7, line 36, at end insert
‘which is relevant to assessing
their educational and support needs.’.—[Mr.
Laws.]
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 6, Noes
8.
Division No.
13
]
AYESNOES
Question
accordingly negatived.
Mr.
Charles Walker (Broxbourne) (Con): On a point of order,
Mr. Bercow. The official record of proceedings on Thursday 7
February shows me as not attending. However, I took part in two
Divisions on that day, so could the record be amended to show that I
did indeed attend that
sitting?
The
Chairman:
An amendment will indeed be made and I am
grateful to the hon. Gentleman for raising a genuine point of
order.
I will try not to
detain the Committee too long on the amendment, nor shall I contradict
the position that I set out in the previous debate, but I want to raise
a parallel concern about the way in which the Government are framing
their policies in relation to the transfer of information, because as
well as running the risk of quite sensitive information being passed
over without proper checks, the provisions in subsection (4) allow
parents and pupils to opt out of passing some quite basic educational
information to the local
authority.
This
probing amendment is designed to find out why the Government have
decided to insert that provision and whether it is simply a
manifestation of the fact that subsection (3)(c) is so sweeping in the
powers that it could give that protection of this type is necessary. It
is designed to tempt the Minister into indicating that there may be a
distinction between information that is purely educational—most
of us would regard it as sensible for there to be a right to pass over
such information—and more sensitive information that might
require an opt-in.
In
its response to the Bill—a clause-by-clause briefing—the
Local Government Association suggests in relation to the subsection
that
“This
appears to suggest that if parents and/or young people are unwilling to
provide information,
we”—
the local
authorities—
“will
not necessarily be able to arrange for the most helpful support to that
young person”.
The
briefing goes on to
state:
“There
may be other legal reasons for this, but it does seem potentially
unhelpful if we are pursuing the principle that the local authority has
a duty to promote participation and support the young person in so
doing.”
Previous debates have shown that
we do not support the elements of compulsion and criminalisation in the
Bill. However, if those duties are to be included in the Bill and if
the local authority is to be charged with ensuring that the young
person is in an education and training setting, is it sensible for
young people and parents who do not want to comply with the measures to
have an opt-out from all educational information, other than the
minimal information contained in clause 14(3)(a) and (b)? Surely basic
educational information should be able to pass without that hindrance
and my probing amendment is designed to elicit a response from the
Government on that
point.
Jim
Knight:
As the hon. Gentleman has set out, the amendment
would remove the right of the young person, or if they are under 16
their parent, to prevent additional information—apart from the
young person’s name, address, date of birth and the name and
address of their parents—that might be in the learning
provider’s possession from being passed on to the local
authority. On the face of it, that is a remarkably illiberal amendment,
but I accept that it is a probing one and that it does not necessarily
reflect the liberal values that the hon. Gentleman has
displayed.
Mr.
Laws:
I cannot let the Minister get away with that. Does
he understand that there is a basic difference between raw educational
data and the type of sensitive information that we are discussing, on
which my party has certainly taken a very liberal
line?
Jim
Knight:
Of course there are distinctions. We make a
straightforward distinction between basic information that is not at
all sensitive—name and address or date of birth—and other
information, whether about education or the more sensitive sorts of
information to which the hon. Gentleman referred. The whole point of
the subsection about which he is concerned is to distinguish between
basic and other information, whether that is in relation to education
and training experience or other personal information, in respect of
the person’s needs.
Mr.
Oliver Heald (North-East Hertfordshire) (Con): Let us
suppose that the individual concerned is a violent person who has been
found carrying weapons in a school. Would that person be able to say,
“Well, you can’t pass that information on”? If
that is so, it is difficult to see how the local education authority
could make a proper risk assessment of that individual and where they
might be deployed in the education system.
Jim
Knight:
In that context, without information, the LEA
would not be able to pass on the data, but in that sort of scenario one
would expect the enforcement agencies to be called by the police, who
would have their own records. If there were an overriding, strong
public interest justification for sharing information—whatever
it might be—that would come into play. It is difficult to
comment on the exact scenario that the hon. Gentleman describes,
whereby a number of different agencies would be engaged and would be
collecting their own data on individuals and an individual case.
They would not be solely reliant in terms of support, as we might be, on
an agency’s being able to share information, but it should be on
the basis of
consent.
Let me
address the amendment in more detail. Clause 14 sets out the
requirements on learning providers to pass on information, as we have
discussed, and replaces section 117 of the Learning and Skills
Act 2000. In practice, as I said earlier, schools write to parents of
all pupils approaching the age of 13 when they are in year 8 to let
them know that information about their children will be shared with the
Connexions service. That core information covers the young
person’s name and address and the name and address of a parent.
Schools will also pass on additional information about the young person
unless they, or their parent if they are under 16, request that it is
not passed on. The information could include the courses that the young
person has studied, their grades, attendance or a change of
address.
Parents are
provided with a form to sign and return to the school if they do not
want the additional information to be passed on to Connexions, in which
case it would not be. In practice, few currently opt out—less
than 10 per cent. In practice, if Connexions did not obtain the
additional information from the school but had other contact on a
one-to-one basis through a personal adviser, it might acquire the
information from the young person through that
route.
Clause 14 sets
out similar arrangements to those already provided for. It enables
learning providers to pass on information to the local authority so
that it can fulfil its new responsibilities for delivering Connexions
and promoting participation. As happens at present, clause 14 will give
young people, or their parents if they are under 16, the right to
prevent learning providers from passing on their additional information
to the local authority. I hope that in the light of my reasoning the
hon. Member for Yeovil will withdraw his
amendment.
Mr.
Laws:
I shall withdraw my amendment, but that is not
because I am persuaded. I tabled the amendment simply to highlight the
fact that the Government need protection in subsection (4) that creates
some impediments to the rational transfer of data, because in other
parts of the clause and the Bill excessive powers are granted to allow
the transfer of data that we would seek to protect. I hope that we will
be able to return to that issue later in our proceedings. On that
basis, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Clause 14 ordered to stand
part of the
Bill.
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