Joint Committee On Human Rights Nineteenth Report



Appendix 2: Letter from Jim Knight MP, Minister of State for Schools and Learners, Department for Children, Schools and Families, dated 10 January 2008

I am writing to reply to your letter of 20 December in which you set out a number of questions from the Joint Committee on Human Rights (JCHR) on the human rights compatibility of provisions in the Education and Skills Bill. I hope that the explanations to each of the Committee's questions below are helpful in clarifying the Government's judgement that the Bill is compatible with the Articles in the European Convention on Human Rights (ECHR).

Duty to participate in education or training 

1. Please explain why the imposition of a duty on pain of criminal sanction is necessary and proportionate to meet the Government's aim. What consideration was given to less intrusive alternatives to address the Government's aim, what were they, and why were they rejected?

The benefits to individuals and to the wider economy and society of increasing participation in education and training post-16 are substantial. Currently, participation is voluntary and those individuals who are least likely to participate are those who are most disadvantaged and potentially have the most to gain from education and training. This situation simply contributes to their marginalisation.

Introducing a legal requirement for all young people to participate ensures that everyone benefits from the rewards of education and training, and that the system focuses on making sure that each and every individual, whatever their circumstances, has the opportunity to do so. For the legal requirement to be meaningful there must be a way of ensuring that young people comply with it. The experience of some other countries suggests that if the requirement is to have the desired impact, having a clear means of enforcing it is an important factor. Where the legal leaving age has been raised as a means of signalling that post-16 participation is important without any means of enforcing the duty, the policy has had minimal impact.

A criminal sanction is the very last stage in the enforcement system set out in the Bill. Before a young person reaches this stage a whole series of interventions would have to have taken place: A suitable learning place would have to have been identified for the individual, and the appropriate support offered to engage the young person; there would have to be no reasonable excuse for him/her not to be participating; he/she would have to have been given a final warning of the local authority's intention to enforce the requirement and to have been given an attendance notice (with the opportunity to appeal it) and failed to comply with it; he/ she would have been issued with a fixed penalty notice (with the opportunity to appeal against it) and, finally, they would have had their case heard in the Youth Court.

My officials have worked closely with the Ministry of Justice in the development of this enforcement system and given extensive consideration to alternatives to criminal sanctions. The Government has considered whether there are administrative sanctions that could be used to enforce the requirement, such as withholding benefits or financial support, but has concluded that none of these administrative provisions would be effective. Financial support to young people (principally the Education Maintenance Allowance) is already conditional on participation in education or training. Young people in this age group are only eligible for benefits if they are in severe hardship, which only applies to a very small proportion of 16 to 18 year olds. In those few cases where benefits are available, it would be extremely difficult to build an enforcement system around benefits without risking leaving very vulnerable young people destitute. We also considered whether there are any age-related rights, such as driving licences, that could be withheld as a means of enforcing the duty, but identified none that would be appropriate, universal, and practical to implement.

2. Given the potentially serious consequences of non-compliance with the duty, why are the composition, appeal procedures and powers of the attendance panel not on the face of the Bill?

It is the Government's intention to reduce the extent to which primary legislation prescribes processes in detail. The use of secondary legislation ensures appropriate flexibility and additional opportunities to consult on matters of detail and ensures that the key powers and duties in primary legislation are not unduly obscured by this detail.

The functions of the attendance panel are set out on the face of the Bill in clause 42(2). The primary legislation also contains important safeguards relating to the composition of the panel and Regulations made under this power must secure that any person who chairs the panel is not a member of the local authority.

Setting out how the panel is to be constituted in secondary, rather than primary legislation will enable appropriate consultation to take place with local education authorities, learning providers, groups working with vulnerable young people and other interested parties prior to implementation. This will help to ensure that the constitution of the attendance panel meets the needs of all those involved in the process. It will also mean that the requirements can be altered in response to changing circumstances. Detailed administrative arrangements such as these are generally made through Regulations subject to the negative resolution procedure.

The matters which an appeal may be about are defined in primary legislation. The Regulations may prescribe the procedure on appeals and the powers of the attendance panel in relation to appeals. It is expected that this would include taking advice from the local education authority's information and guidance service provider (the Connexions service or its replacement) and other services and professionals working with the young person, and obtaining information about the young person and their family circumstances.

The role of the attendance panel, though very important, is also only one of a number of measures which will ensure that young people do not enter the enforcement system inappropriately.

3. What safeguards will be in place to ensure that the procedure leading to the imposition of an attendance notice or the recommendation to prosecute compiles with Article 6 ECHR?

There is some question whether it is a civil right or a criminal charge that is being determined here, and therefore, whether Article 6 is engaged. Even if it is engaged there will be procedural safeguards to ensure fair procedure:

  • The local authority will have discretion to decide when to begin enforcement - it is not an automatic consequence of not participating;
  • Guidance will be issued to local authorities on when it may be appropriate to begin enforcement;
  • Local authorities cannot issue an attendance notice if the young person has a reasonable excuse for not participating;
  • A suitable opportunity to participate and appropriate support must have been provided before a local authority can consider issuing an attendance notice - the young person has to have been given a realistic opportunity to participate voluntarily;
  • The young person must be informed in advance of the authority's intention to issue an attendance notice;
  • The young person can appeal to the attendance panel against an attendance notice and regulations or guidance will provide that the young person must be made aware of this;
  • The local authority cannot decide to prosecute until all of the above has occurred;
  • In addition it cannot decide to prosecute until it has also issued a fixed penalty notice, in which case the young person again has the right of appeal to the attendance panel and the right to make representations.

The determination of a criminal charge will be in the Youth Court, which is compliant with Article 6.

4. How will the attendance panel be composed? Will the attendance panel satisfy the requirement for an independent and impartial tribunal in Article 6 ECHR?

The Government wishes to consult on the composition of the attendance panel but would propose that, in addition to the independent chair, it will include representatives of services and organisations relevant to the case, such as learning providers, health services, social services, the youth offending team, and Connexions. The panel members may be acquainted with the young person's circumstances, which will help them make an informed decision, but will not have taken the original decision that the young person should enter the enforcement system.

There is some question whether a civil right or a criminal charge is being determined and, therefore, whether Article 6 is engaged. Where a criminal charge is being determined this will be in the Youth Court, which is compliant with Article 6.

As the local authority will appoint the members of the panel and may offer them remuneration, the panel cannot be "wholly independent" from the authority, but regulations will provide procedural safeguards to ensure that the review by the panel is independently and fairly conducted and free from improper external influences. Such safeguards, although not establishing the panel as an independent and impartial tribunal, will preclude unreasoned decision making by an unaccountable body. The availability of judicial review then counteracts any lack of independence and ensures compliance with Article 6(1), were it to be engaged.

It is provided on the face of the Bill that the chair must not be a member of the local authority. Further, clause 46 provides that in considering whether to make a recommendation that proceedings should be instituted against the young person, the attendance panel must invite the young person to make representations to it. The Government would wish to consult on the detail of the procedures for the panel but would propose that additional safeguards should include that:

  • The independent chair of the panel has the final decision;
  • Young people must be informed of the opportunity to make representations to the panel;
  • Representations from the young person must be considered;
  • The members of the panel will not have been involved in the original decision by the local authority to take enforcement action;
  • The panel must give reasons for its decision; and
  • Guidance will be provided for panels.

Information disclosure

5. In relation to each and every information supply and sharing provision (in Parts 1 to 4), (1) what legitimate aim is sought to be protected, (2) are the provisions necessary to achieve the aim and, (3) are the measures proportionate to that aim?

6. In relation to each and every information supply and sharing provision, what specific safeguards will be in place to ensure their compatibility with Article 8 ECHR (the right to respect for private and family life)?

7. On what basis can the Government state, in advance, that the Part 3 powers will, in every case, be exercised proportionately?

8. What safeguards will be put in place to ensure that no violations of Article 8 occur?

The table at annex A sets out answers to questions 5, 6, 7 and 8 for each of the information sharing clauses.

Parenting contracts and orders

9. Given the potential for young people to contribute to the economic well-being of the country without necessarily participating in education or training, why does the Government consider that a blanket requirement to participate is both necessary and proportionate to that aim?

Young people who participate in education or training post-16 are much more likely to gain additional qualifications by the age of 18 than those who go into jobs without training. In fact, those young people who go into jobs without training only have a slightly improved chance of gaining qualifications than those young people who do nothing at all. A wealth of evidence shows that gaining additional skills and qualifications benefits individuals, through increased average lifetime earnings, and benefits the economy through increased productivity.

The reason for raising the participation age is not only to contribute to the economic well-being of the country, but to gain social benefits associated with increased participation, such as reduced crime and improved health, and to promote equality of opportunity for the most disadvantaged sections of society. Legislating now to require all young people to participate in 2013 will galvanise the education system and all those working with young people to focus on providing for the needs of those who currently do not participate voluntarily.

Independent educational institutions

10. Are legally professionally privileged documents protected from seizure? If so, in order to assist compliance with Articles 6 and 8 ECHR, why does this protection not appear on the face of the Bill?

The Government recognises that material which attracts legal professional privilege is protected by Article 6(3)(c) and Article 8 of the Convention and that interferences with the rights protected under Article 8 can only be justified in exceptional circumstances (Foxley v United Kingdom, Application No. 33274/96, paragraph 44).

However, the Government does not agree that the protection needs to appear on the face of this Bill. Section 6(1) of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. By virtue of clause 81, the Chief Inspector has the power to enter and inspect premises and inspect and take copies of records and documents where he has reasonable cause to believe that an offence is being committed under clause 80. The Chief Inspector is a public authority within the meaning of section 6(1) of the 1998 Act and would act unlawfully if, in breach of Articles 6 and 8 of the Convention, he took copies of documents to which legal professional privilege attached. Therefore, the protection referred to in question 10 already exists in primary legislation and to add a provision in this clause would simply be to repeat the position which we consider unnecessary.

Further comfort that the human rights of those inspected will not be infringed by this clause is provided by the speech of Lord Hoffman in the House of Lords judgment in the case of Ex Parte Simms [2000] 2 AC 115 where the courts' approach to interpretation was set out:

"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights...The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."

This passage was cited with approval and applied in the context of material protected by legal professional privilege by Lord Hobhouse at paragraph 44 of his judgment in the case of Ex Parte Morgan Grenfell & Co Ltd [2002] UKHL 21.

In light of the statutory protection given to individuals by section 6 of the Human Rights Act and the House of Lords jurisprudence on the interpretation of statutory provisions which provide for the production of privileged documents, the Government judges that the position does not require further clarification on the face of the Bill.

11. Does the Government intend to publish draft Regulations, for the purposes of assisting Parliamentary scrutiny and debate, and if so, when? We should be grateful if you would provide the Committee with a copy of the draft Regulations, as soon as they are available.

The Government intends that the Regulations set as a result of the Bill currently under consideration will be very similar to the existing Education (Independent Schools Standards) (England) Regulations 2003, as amended, and the Education (Provision of Information by Independent Schools) (England) Regulations 2003, as amended.[79] The Government will publish a more detailed description of the proposed changes to the existing Regulations before the start of Public Bill Committee and I will, of course, send a copy to the JCHR.

12. Precisely what is intended to be achieved by a power to prescribe standards in relation to spiritual and moral development and information provision?

The current legislative framework set out in the Education Act 2002 includes the power to make Regulations prescribing a standard for independent schools related to the extent to which they promote principles that ensure the spiritual, moral, social and cultural development of their pupils. It also includes powers to make Regulations about the provision of information to parents, which are currently contained in the Education (Provision of Information by Independent Schools) (England) Regulations 2003, as amended. Independent schools which do not meet the requirements must produce an action plan detailing how they will put right the deficiencies, and failure to do so could result in the school being deregistered.

The current Bill will carry forward the existing standard related to the spiritual, moral, social and cultural development of pupils. This standard is intended to ensure that, on leaving independent schools, pupils are likely to become well-adjusted citizens so that, for example, they: have a reasonable understanding of public institutions and services to seek help when their circumstances demand it; are able to distinguish right from wrong; and recognise that every citizen in this country must tolerate cultural and philosophical differences between individuals and communities.

The Education and Skills Bill will continue to provide a power to make Regulations setting out a standard for the provision of information by independent schools. This standard is used to require independent schools to provide parents with clear and accurate information about the educational philosophy and standards of individual schools, so that parents can be clear about the character and operation of the school, and about its performance. The Government expects schools to report on their child's progress regularly, and to ensure parents have details of key people in the school who they may need to contact. These are basic information requirements which all parents have a right to expect and continuing to place them on a statutory footing ensures parents' entitlement to this information. Schools must also provide information to regulatory bodies on request so that the judgements can be made about whether the institutions meet the standards for registration.

Religious worship in schools

13. Does the Government intend to publish draft Regulations, for the purposes of assisting Parliamentary scrutiny and debate, and if so, when? We should be grateful if you would provide the Committee with a copy of the draft Regulations, as soon as they are available.

14. Why does the Government not propose to permit children with sufficient maturity, understanding and intelligence to withdraw from religious education and collective worship? How is this consistent with respect for a child's right to freedom of thought, conscience and belief?

The current Bill inserts a new subsection (5A) into section 342 of the Education Act 1996 which obliges the Secretary of State to make Regulations to provide a right for sixth-form pupils to opt out of religious worship in non-maintained special schools. This will bring non-maintained special schools into line with the arrangements which already operate in maintained special schools.

I confirm that draft Regulations will be available before Public Bill Committee and I will send a copy to the JCHR as soon as they are available. It is not proposed to vary the arrangements which exist in maintained schools for religious education and religious worship. This amendment simply aligns the arrangements in non-maintained special schools with those in maintained special schools.

As you note, currently only pupils above compulsory school age have the right to withdraw from religious worship. Schools must have clear criteria for making arrangements for curriculum matters and to have procedures for making judgements which are not disproportionately burdensome. We do not believe it is practicable to require schools to conduct the individual assessments which a right to withdraw based on sufficient maturity would require. Such one-to-one assessments may well require professional advice in considering whether children have sufficient maturity, understanding and intelligence to make an informed decision.

The current framework for maintained special schools, and the amendments in the Bill for non-maintained special schools, draw a distinction between religious worship and attendance at religious education (RE) which the Government believes is consistent with a child's right to freedom of thought, conscience and belief. There is a proper distinction to be drawn between participation in religious worship and attendance at religious education lessons on the grounds of the nature of those activities. RE is concerned with education as opposed to instruction or worship, and the non-statutory framework for RE provides a broad and balanced understanding of religions. In addition, faith groups agreed earlier this year that RE in faith schools would be in the spirit of the National Framework. Therefore, it is the Government's view that it is reasonable not to include within the provisions in the Bill a right for children of sufficient maturity, understanding and intelligence and for sixth-formers to withdraw from RE.

Annex A - Information disclosure
ClauseLegitimate aim Are provisions necessary to achieve the aim? Are measures proportionate to the aim? Safeguards to ensure compatibility with Article 8 ECHR
Data sharing clauses in Parts 1 and 2: Clauses 57 (educational institutions: duty to provide information); 61 (information relating to young persons: supply by Secretary of State) and 62 (Information: supply by public bodies) make very similar provision to sections 117, 119 and 120 of the Learning and Skills Act 2000, which will be repealed for England through this Bill. These three clauses are a package of information provisions that together enable the Connexions service to populate the database they use to track young people. They are fundamental to ensuring that Connexions has basic identification and contact information on young people, as well as information on what they are doing, so that they are able to contact young people, provide appropriate support, and respond quickly to provide support if they drop out of learning.

Clauses 14, 15 and 16 mirror these three sections of the Learning and Skills Act 2000 in order to enable local authorities to use this information, which will enable them to fulfil their new duties under this Bill of promoting participation (clause 10) and identifying those who have dropped out (clause 12). Furthermore the Bill transfers the responsibility for delivering Connexions to local authorities (LAs). The intention is that LAs would use the Connexions database as the tool for identifying and tracking young people, rather than set up a separate database.

The Data Protection Act will govern how those involved in the provision of Connexions services can use the personal information shared in accordance with these information sharing provisions, including how they acquire, store or dispose of it. Any unlawful disclosure or use of the information will be subject to the offences and associated penalties under the Act.

13Economic well-being of the country: the information collected will be used for promoting participation (see clause 10) and for improving the general attainment in education and training of young people by providing appropriate support to individual young people(see clause 54(1)), thereby ensuring a more skilled workforce. It is necessary that learning providers let Connexions services know if young people drop out so that they can be rapidly contacted and offered support and alternative education and training options. We know that the more quickly young people are contacted after dropping out of learning and given support to address problems, the more likely they are to re-engage. The Government has this year introduced this expectation through contracts and funding arrangements for LSC funded providers. This will be well established by 2013 but, for the avoidance of doubt, it is necessary to make it a clear legal duty. Learning providers will determine when a young person is deemed to have dropped out, in accordance with their policies on attendance, which they will make clear to their students. The only information providers will be required to pass on is that a particular young person has dropped out of learning.
14As for clause 13.The relevant information on individual young people provided by schools and colleges to Local Authorities (LAs) is necessary so that LAs can promote the duty to participate to those young people; identify those potentially in need of help; and provide information, advice and guidance (IAG) that is tailored to their particular circumstances, so that they are appropriately supported back towards or into participation. This information is fundamental to identifying the young people required to participate, for whom LAs have duties to promote participation and provide support through Connexions. Clauses 14, 15 and 16 mirror existing legislation (replicated at clauses 57, 61, 62) that enables Connexions to track young people in order to provide appropriate IAG at an early stage, thereby helping young people to make informed choices that most benefit them. The information can only be provided to a local authority; the passing of the information is under the control of "the responsible person", e.g. for a school the governing body; the young person (or parent if they are under 16) can opt to restrict the information passed to the Local Authority to name, address and date of birth only, plus name and address of the parent.
15As for clause 13.This clause is necessary to enable LAs to obtain limited information on young people in their area of responsibility who are claiming certain state benefits. By this means, LAs are in a better position to ensure that everyone not in employment, education or training (NEET) is identified. This will assist the LA when exercising its functions connected with raising participation of young people who are NEET. Such young people find it the hardest to make the transition to adult life, are more likely to engage in risky behaviour (e.g. substance abuse) and face long-term disadvantage in the jobs market. Therefore identifying all of them in time meets a pressing social need. This information is particularly valuable because from the age of 16 young people become a lot more mobile and this information is what enables LAs to track these young people. Under this clause, the information can only be provided to a local authority; the information is confined to the young person's name, address, date of birth and name and address of their parent; disclosure of this information by the recipient must be confined to LA's function of raising participation, or the provision of Connexions services, or for court or tribunal proceedings, or be done in a way that prevents the identification of the person concerned, or be done with the person's consent; finally, there is a specific penalty prescribed for people guilty of an offence in disclosing this information.
16As for clause 13.This clause is necessary to enable public bodies to supply information on young people so that LAs obtain up-to-date information on their education, training and areas of particular need (including health, family, personal and social), including changes in their circumstances.

This clause is particularly important to ensuring that public services on the ground are acting in a joined up manner towards the young people that they serve.

The information that public bodies hold is crucial to ensuring that the data in the database used by Connexions is accurate. Not having this information leaves a risk that the support offered is not the most appropriate for a young person; some agencies may have dealings with a particular young person but would be unable to share that information with the Connexions service. The information can only be provided to a local authority for the purposes of its duty of promoting participation. All of the agencies named are subject to their own controls on transferring personal information.
17As for clause 13.This clause is necessary to allow data held by LAs and data held by Connexions providers to be shared and used, either for the purposes of delivering Connexions (clause 54) or for the purposes of delivering the LA's duties of promoting participation (under Part 1). This will enable better tracking of young people moving across borders. The intention is also that LAs will continue to maintain the database currently maintained by the Connexions service to track young people, for both these purposes. Without this clause there is the risk that LAs and Connexions providers will have in place two separate databases to carry out their respective functions. This could make maintaining the accuracy of the data more difficult, particularly where young people move across local authority boundaries. If the database is not up to date then the Connexions service and the LA's duty to promote participation cannot be carried out effectively. Without this clause, a local authority could receive information about a young person entering its area, and not pass it on to the local authority that has been dealing with that young person's case. So the local authority responsible for that young person might not have the information it needs to support participation, even though that information is available elsewhere. The clause defines for what purposes it is appropriate for this information to be shared and used. The uses are strictly limited to the delivery of the Connexions service and the LA's duty to promote participation. If it were shared or used for any other purpose, that would be unlawful under the Data Protection Act. This information will be stored in the established system that Connexions currently use, and access to personal data will continue to be strictly controlled in compliance with the data protection laws.
57Economic well-being of the country: the information collected will be used for improving the participation and general attainment in education and training of young people by providing appropriate support to individual young people (see clause 54(1)), thereby ensuring a more skilled workforce. The provision by educational institutions within the meaning of clause 57 such as schools and colleges of relevant information on individual young people to those involved in the provision of support (Connexions) services is necessary so that every young person potentially in need of help is identified and information, advice and guidance (IAG) is tailored to their particular circumstances. There is widespread acceptance by those concerned with young people's preparation for working and adult life that appropriate IAG is vital to achieving the aim and meets a pressing social need. Only by the provision of this information - name, address, date of birth and other information relevant to Connexions services - by schools and colleges can the full group of young people be identified in respect of whom LAs have the duty in clause 54 to make Connexions support services available. This enables Connexions services to provide appropriate IAG at an early stage, thereby helping young people to make informed choices that most benefit them. The information, which must be relevant to the provision of Connexions services, can only be provided to a person involved in the provision of Connexions services; the passing of the information is under the control of "the responsible person", e.g. for a school the governing body; the young person (or parent if they are under 16) can opt to restrict the information passed to Connexions to name, address and date of birth only, plus name and address of the parent.
61As for clause 57. Specifically, the information collected will enable LAs to identify young people who are not in employment, education or training and offer them appropriate help. This clause is to enable LAs/other people involved in the provision of Connexions services to obtain information on young people in their area of responsibility who are claiming certain state benefits. By this means, Connexions services are in a better position to ensure that everyone not in employment, education or training (NEET) is identified, so that they can be provided with support. Young people who are NEET find it the hardest to make transition to adult life, are more likely to engage in harmful or high-risk behaviour (e.g. substance abuse) and face long-term disadvantage in the jobs market. Therefore identifying all of them in time meets a pressing social need. Without the passage of information enabled by this clause, it is possible that the identities of some 18-19 year olds who were NEET would not come to the knowledge of Connexions services. This information is particularly valuable because from the age of 16 young people become a lot more mobile and a range of information sources are necessary to ensure that Connexions services can track these young people and offer them appropriate help. Information released under this clause is one component of a matrix of information sharing that takes place between DWP and Connexions services, some of it based on the consent of the individuals. This clause provides a mechanism for Connexions services to receive, if necessary without the individual's consent, a limited amount of information which helps them to be in a better position to ensure that all 18 and 19 year olds who are not in employment, education or training are known to them. Under this clause, the information can only be provided to a person involved in the provision of Connexions services; the social security information is confined to the young person's name, address, date of birth and name and address of their parent; disclosure of this information by the recipient must be for the purpose of the provision of Connexions services or be specifically confined to the circumstances listed in clause 61(4). Finally, there is a specific offence with associated penalty prescribed for unlawful disclosures.
62As for clause 57.Listed public bodies are given the power to supply relevant information on young people and adults in the Connexions client group to enable LAs/those involved in the provision of Connexions services to obtain up-to-date information on their education, training and areas of particular need (including health, family, personal and social), including changes in their circumstances, where that information is for the purpose of the provision of Connexions services. This information is vital to enable the Connexions adviser to liaise effectively with other professionals providing help and support to the young person/adult and ensure they get the information, advice and guidance and where necessary targeted and intensive support that is most appropriate to their needs. Only by this means can the Aim be met. Unless all the agencies concerned with young people and adults in the Connexions client group co-operate and share information, young people who need Connexions support will not be identified, or the support that is offered risks not being the most appropriate if some agencies having dealings with that young person are unable to share that information with the Connexions service. It is only information that is specifically for the purposes of the provision of the Connexions service that can be supplied. The information can only be provided to a person involved in the provision of Connexions services, for the purpose of providing those services. All of the agencies named are subject to their own controls on transferring personal information, including the provisions of data protection legislation.
71-75To introduce statutory provisions for datasharing between DIUS, DWP, HMRC, Welsh Assembly and the Scottish Executive for the purpose of measuring whether low skilled individuals are moving into sustainable employment and progressing, and whether the qualifications being delivered by the system are economically valuable.

This will fulfil a social need and pursue the legitimate aim of economic well-being, as it will enable more informed assessment of policy in relation to the provision of training or education of persons who have attained the age of 19, more informed assessment of Social Security or employment policy (as it affects the provision or participation in such training or education), and the more effective use of limited resources

The current barrier is that there is a statutory prohibition on sharing HMRC data so use of their data requires a 'statutory gateway' which the Bill will put in place. It is also DWP's policy to ensure they have statutory gateways to share bulk data.

The purpose of the passing of the information from HMRC is so that information which indicates whether or not a person is working can be combined with DIUS and DWP information and analysed to assess the effects of certain types of educational training on the prospects of individuals.

This analysis will assist in the government's decisions about improving prospects for work for certain groups and is of general benefit in helping more people into the workplace and reducing the need for reliance on benefits. This supports the aim of improving the economic well-being of England, Wales and Scotland

A full picture will not be obtained unless it is possible for all individuals who have undergone certain types of training to be linked with their employment and benefits history. It would be very expensive and not nearly as effective to approach such individuals to ask them for information which is already in the hands of government.

The individuals themselves will not be disadvantaged by the process as the combined information will only be used for the purposes of research, evaluation, and assessing policy and at that stage will be anonymised.

The provisions enable DIUS, DWP, HMRC, the Scottish Executive and the Welsh Assembly to share information to assess the effectiveness of learning interventions on individuals' employment and earnings prospects, and to assess Social Security or employment policy (as it affects the provision or participation in such training or education). The provisions clearly define the data which can be shared, by whom, and the limited purposes for which the data may be used.

Data which explicitly identifies individuals will have been removed from the matched data sets at the point of use i.e. when it is used by analysts and researchers, including those in DIUS and the DAs. Use of the data is strictly limited to the above analytical, research and assessment purposes only.

Furthermore, the ways in which the powers will be exercised mean that, under these provisions, no one public body has access to any more data than they need for their own purposes. For example, DIUS will only have access to employment, earnings and benefit records for those individuals who are over 19 and have been on a course of further education in England, while DWP researchers will only have access to the learning records of those individuals who are, or have been, a benefit recipient.

All reasonable steps will be taken to ensure that the data is handled securely, and to prevent the disclosure of personal information.

The limited purposes for which the information may be used under these provisions, along with Clause 74 which introduces a criminal sanction for unlawful disclosure, provide safeguards to ensure compatibility with Article 8, as do the safeguards in relation to data processing contained in the Data Protection Act.

When the data is in an explicitly identifiable format it will be kept within a secure environment at DWP. There are various safeguards in place to prevent breaches occurring.

For example, the servers on which the data will be stored at DWP are within the departments firewall but also have their technical and organisational security barriers. Access by those individuals carrying out the data matching will be via a formal request to the directorates Data Protection and Security Team to follow the standard security procedures. Access is granted to named individuals and will be audited to show which individual accessed which data file on which date.

The team with access to such information in this explicitly identifiable format for the purposes of the matching process is small (under 10 people).

115Protection of rights of children The appropriate authority has a power to make a direction prohibiting or restricting persons from participating in the management of an independent educational institution. This clause allows various public authorities which hold information concerning persons in relation to whom a direction may be made to share relevant information. Sharing of relevant information is necessary so that decisions about the suitability of individuals to take up relevant posts at institutions can be taken on the basis of all the facts. These provisions are necessary in a democratic society and correspond with the existence of a pressing social need to protect vulnerable young children from unsuitable adults. Before the appropriate authority makes a direction which prohibits or restricts a person from engaging in a particular activity, it is right that all relevant information about that person should be taken into account. All of the sub-clauses limit the power to share information so that only relevant information can be shared. Clauses 115(1) and 115(2) allow the registration authorities for England and Wales to share only information held in connection with their registration functions (a registration authority may take enforcement action where a school does not meet the required standards, one of which relates to the suitability of proprietors). Clauses 115(3) and 115(4) allow the Secretary of State and the Independent Barring Board (established under the Safeguarding Vulnerable Groups Act 2006), both of whom have had or will have responsibility for making decisions concerned with protecting children from unsuitable persons, to share information which is held by them and which is relevant to the appropriate authority's functions. Clause 115(5) allows the appropriate authority to share information which is held in relation to its direction making functions. Given the seriousness of the legitimate aim pursued (protection of the rights of children), the limits placed on the power to share information and the importance of considering all relevant information before making a restrictive direction and in light of the margin of appreciation afforded the State in these matters, the Government considers that the powers in this clause can be exercised in a proportionate way. All reasonable steps will be taken to ensure that the data is handled securely, and to prevent the disclosure of personal information.

The limited purposes for which this information can be used provides a safeguard in addition to the safeguards in relation to data processing contained in the Data Protection Act

All of the authorities and bodies referred to in this clause are subject to their own controls on transferring personal information.

All of these measures provide safeguards to ensure compliance with article 8.



79   Education (Independent School Standards) (England) Regulations 2003 -

http://www.opsi.gov.uk/si/si2003/20031910.htm; Education (Independent School Standards) (England) (Amendment) Regulations 2004 - http://www.opsi.gov.uk/si/si2004/20043374.htm; 

Education (Independent School Standards) (England) (Amendment) Regulations 2007 - http://www.opsi.gov.uk/si/si2007/uksi_20071087_en_1; Education (Provision of Information by Independent Schools) (England) Regulations 2003 - http://www.opsi.gov.uk/si/si2003/20031934.htm; Education (Provision of Information by Independent Schools) (England) (Amendment) Regulations 2004 - http://www.opsi.gov.uk/si/si2004/20043373.htm Back


 
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