The law to expand the school census and early years census, collecting more data on 8+ million children every year in England, snuck through in the six week parliamentary summer holiday without scrutiny before it came into effect on September 1st, for unclear purposes, without enforceable limitations of users different from what is done already, and lack of transparent accountability for its decision-making, cost, benefit, or impact.

Further questions and answers here to download.

The new law enables the national collection from the school census of children age 2-19’s Country-of-birth and Nationality, data provided by parents/guardians, and the expansion of the school created English-as-an-Additional Language assessment.

We note the Department for Education (DfE) has responded (1) to the Lords Secondary Legislation Scrutiny Committee regards our letter (2) with questions on the change of law.

Ignores Home Office access

Most significantly the DfE response completely ignores one of the key concerns about the collection of nationality and country-of-birth, that the Home Office has had access to the National Pupil Database since 2012. In the final comment (6) on page 5 the DfE refers only to the unpublished police access.

Unclear purpose for collection

Schools Week reported in June that the DfE had refused a Freedom of Information request asking for further detail about the inquiry in immigration in England’s schools and its scope. Schools Week wrote:

“It is understood the information will not be used as part of its investigation into the “impact of mass migration” on schools.”

While the Minister and Department are now saying it will be for exactly that. There is still  little clear information for parents about what this new data collection is for and school forms are wrong, saying it is required for funding, and not mentioning it is optional.

No published Business Case

The Department responded to the statement that there is no published business case, that a business case does however exist. The change notice was published but carries little detail.

“All amendments to DfE data collections considered by the SCSB are supported by a detailed business case. As part of the SCSB business case, there is consideration of the cost to schools and local authorities of complying with the request for data (known as the compliance cost) and this is weighed up by the board against the benefits of holding/collecting the data.”

We have asked for the business case to be published to demonstrate transparently the balance of cost and benefit of this change to the public purse, at national regional and local levels, in the public interest.

Accountability for Decision Making

We have asked previously for the minutes of the decision making. This response notes, that the minutes of the meetings of the Star Chamber Scrutiny Board (SCSB) were withheld under exemption 35a of the Freedom of Information (FOI) Act which allows for the withholding of information if it relates to the formulation or development of government policy.

The department dismisses concerns and we do not know if there was any concern raised in discussion of these changes last November. The Department note to the Lords suggested that “Should there have been concerns regarding these changes, SCSB would have raised these for discussion requesting clarification or amendment before providing their formal decision to accept or reject the changes.”

We were really surprised that a little-heard-of DfE board could be developing government policy without green or white paper or any public debate. We suggest this board, as in its name, provides scrutiny rather than formulates policy, so we believe the FOI exemption has been misapplied, have appealed, and look forward to seeing the transparent decision-making in the public domain soon.

Data Protection advice from the DfE to Schools

The DfE wrote:

“As data controllers in their own right, we do not advise schools directly on their collecting and processing of personal data or regulate their compliance with the Data Protection Act but the template we provide to schools gives parents access to further information about the Department’s use of their children’s data.”

The DfE does advise schools on the Data Protection Act and compliance with collecting and processing the census.  They tell schools they are exempt from all breach of duty of confidence and that the statutory gateway means they do not need to ask for pupil or parental consent. The DfE video does not mention fair processing. The new privacy template has included the link to third parties since April 2016 but our research to date has shown it does not reach schools parents or pupils. And of course don’t forget most people still believe these releases mean statistics, not individual level pupil identifiable data, that’s not anonymous and there is no supression of small numbers when identifiable pupil data is released, data that includes the most sensitive personal data.

So far, there is no mid-year off cycle ‘country of birth’ template form based on any DfE provided privacy template. Schools to date we have seen collecting this between May and July 2016 were using a separate custom form, not the national annual template. Clearly off-cycle data collection also means additional work in schools.

The DfE has received no Complaints

The DfE writes, “There is no quantifiable evidence to support the claim that many school staff and parents have concerns regarding the collection of this new data. The Department have not received any formal complaints from schools or parents regarding the changes to the school census data and, for example, discussions on parental public forums (such as mumsnet) suggest that the majority of people are supportive of the changes.”

Given that people concerned with privacy and raising their hand are unlikely to contact a Government Department directly, this lack of direct contact is unsurprising. There is no correlation that suggests the majority of people are supportive of the changes.

We raised collective concerns, passed on to us from parents and staff since May, to the Department on July 6 and the Minister in mid-July after there was no reply from the Department. We note there have already been two Parliamentary questions (3) asked by MPs who believed it important enough to follow up.

There is concern building in various communities, including those who first flagged it to us in May this year after their school started collecting the data. We can do little more to convince the Department of their concerns but continue to support and share them in confidence. We encourage those who are concerned to write to their MP as well as talking to us.

On the new Data Collection data source quality

While the DfE suggest “some significant factual inaccuracies in the article” that country-of-birth and nationality are not free-text but drop down fields in the national database, is the only one they go on to elaborate.

We welcome any correction, that improves public understanding, and have asked for it to be noted on the article we wrote on the LSE digital parenting blog.

The Department for Education technical specification indicates the country-of-birth and nationality fields are not free text and use an updated codeset from September 1, 2016.

While the government codeset may be behind the countries and nationalities entered via computer in schools, the fields are open free text on forms from parents, and codes such as not-yet-obtained, unknown and refused may also be used. The translation between what parents or pupils say and what schools administrators enter on systems leaves room for interpretation. We are dubious about data quality.

What is extracted at national level is a subset of the entire data collection made in state supported schools for all children age 2-19.

The Law is being rushed through without transparent scrutiny

We believe this is a significant expansion, with vague purposes that is neither necessary or proportionate. It should not be rushed through without public or parliamentary discussion.

The Lords noted the recommended notice procedure was not followed this new law:

SI 2016/808 requires schools to include additional data items in the termly School Census. It was laid on 27 July, to come into force on 1 September 2016:

again, this does not allow for a term’s interval between laying and coming into force. In this case, the EM (at paragraph 3.2) acknowledges this failure to give one term’s notice, but states that the instrument means only a “modest expansion” of an existing requirement. [page 6 of 15, item 11]

The law snuck through in the six weeks parliamentary summer holiday without scrutiny before it came into effect. It enables the national collection of more data on 8+ million children and more every year after that,  to be stored and shared forever for unclear purposes, and with lack of transparent accountability for its decision-making or impact.

 

References:

(1) http://www.parliament.uk/documents/lords-committees/Secondary-Legislation-Scrutiny-Committee/DfE-Response-SI2016_808.pdf

(2) http://www.parliament.uk/documents/lords-committees/Secondary-Legislation-Scrutiny-Committee/Defenddigitalme-submission-SI2016-808.pdf

(3) i) Question: 42942 –  Answered on July 25, by Schools’ Minister Nick Gibb
http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2016-07-15/42942/

ii) Question: 42842 –  Answered on July 26, by Schools’ Minister Nick Gibb
http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2016-07-14/42842/

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