Protection of Freedoms Bill

Memorandum submitted by the National Union of Teachers (PF 39)

Introduction

1. The purpose of this memorandum is to provide a commentary from the National Union of Teachers – the largest teachers’ organisation in Europe – on the protection of biometric information of children in schools. The memorandum identifies to members of the Bill Committee areas where we believe clarification or amendments would be useful.

Consent must be ‘explicit’ not ‘implicit’

2. The NUT supports the aim in the Bill to strengthen the data protection rights of minors through the added protection of parental consent. The Union has sought for many years now to address the individual and collective concerns of teachers over the increasing use of biometric technologies in schools, not only in relation to pupils, but in relation to school staff as well.

3. Guidance from the British Educational Communications and Technology Agency (BECTA) and the Information Commissioner have been helpful in explaining the current legal framework to concerned teachers and parents, who have been dismayed to discover that schools are currently permitted under UK law to process biometric data without the express consent of data subjects (i.e. pupils and school staff) or parents.

4. The Bill provides that a child’s biometric information must not be processed without the consent of each of the child’s parents, except where one of the exceptions under clause 27 of the Bill applies. Crucially, the Bill does not make it clear whether the consent sought must be ‘express’ or ‘implied’. This distinction has great significance in the context of data protection legislation. If consent is ‘implied’, it will be sufficient for schools to place the burden on parents to ‘opt out’ if they do not want their children’s biometric data processed, rather than ‘opt in’ if they do. In the NUT’s view, the sensitive nature of biometric data requires schools to do more than seek passive or implicit consent. When responding to the Ministry of Justices’ recent call for evidence on the current data protection legislative framework, the Union expressed the view that biometric data should fall within the scope of ‘sensitive personal data’, since the special nature of such data requires data controllers to seek express as opposed to implied consent before processing information. The Union continues to hold that view.

The right to be consulted

5. The NUT believes that in addition to upholding the right of parents to object to the processing of their children’s biometric data, the Bill should also provide pupils, parents and school staff with a right to be consulted about proposals to introduce biometric technology to their schools and/or extend its use further. The Union’s own experience of the growing use of fingerprint technology in schools is that in most cases:

· There is little or no discussion with pupils, parents and school staff about the governing body or local authority proposals;

· Other innovative, cheaper and less intrusive methods of obtaining the same information have not been investigated and considered; and

· Parents and school staff have not received assurances that the requirements of the Data Protection Act will be met.

The Union believes that a requirement on schools and local authorities not merely to inform, but also to consult, would address most if not all of these concerns.

Reasonable alternatives to biometric processing

6. The Bill provides that children whose parents object to the processing of biometric information should be given a ‘reasonable alternative means’ of participating in school activities (clause 26(6)). To assist schools, it would be very helpful if the Bill contained criteria for determining whether alternative means might be reasonable or otherwise. For example, schools might wish to consider the extent to which the alternative(s) would be practical and/or cost effective, or the extent to which the alternative(s) would disrupt the smooth running of the school.

The issue of pre-existing consent

7. As the explanatory note to the Bill acknowledges, a significant number of schools in England and Wales currently use automated fingerprint recognition systems. The NUT knows from casework experience that many parents and school staff have acquiesced to the processing of their biometric data because they were provided with no alternative. This is particularly so where access to school premises is controlled by fingerprint recognition systems and pupils and staff have no alternative method of accessing the school. It would be helpful if Ministers could make clear whether schools will be required to seek consent anew from pupils, parents and staff once the Bill is enacted, or whether consent given under the existing regime (which makes it optional for schools to obtain consent in any event) will be binding on data subjects and parents under the new regime.

April 2011