The DfE hid the truth from the decision-making Star Chamber

After sixteen months, the DfE has finally admitted it kept the Star Chamber Scrutiny Board in the dark on expanding the school census.

When the unaccountable Board was asked to approve the collection of nationality data in November 2015, the Department for Education did not tell them it had already set up an agreement with the Home Office Border Force Removals Casework Team.

The Department for Education did not tell them that once collected, nationality data would be handed over for up to 1,500 children a month, for immigration purposes.

So what was their ‘approval” and ‘scrutiny’ worth, and why does it matter?

The Change of Law in 2016

The School Standards Minister Nick Gibb told Parliament in written questions in July 2016, that the Star Chamber Scrutiny Board had approved the collection which required a change in law, and was passed via Statutory Instrument SI 808/2016.

The change came into effect without debate.

After our letter in September 2016 to the House of Lords Secondary Legislation Scrutiny Committee, the Department told the Lords’ committee in writing that had the Star Chamber had any concerns they would have been raised.

But now it is clear, the “approving” Star Chamber, had been kept in the dark.

Last month October 2017, the Secondary Legislation Scrutiny Committee concluded some of its follow-up. The Department for Education in its response tells its own version of history. [See full response .pdf 424 kB] It is full of gaps and disputes our statements made etc etc, but what matters is that Point 15 confirms the Star Chamber were not told about Home office use of school census data when they signed off the nationality data collection.

This is significant when Ministers in 2016 relied on the assurance that the Star Chamber had approved the expansion and would have raised concerns had they had any, to the Lords.

Now the Department says,

“The terms of reference of the SCSB are clear in that it is this group’s responsibility to represent the sector and ensure that all departmental data collection proposals are necessary, provide value for money and are designed to add as small a burden to the frontline as possible […] For this reason there was no need for DfE to discuss with SCSB the sharing of data with Home Office as: a.) none of the data being considered by the SCSB as part of the proposal supporting this SI has been, or will be, shared with any third-party (including other government departments); and b.) even if the data was to be shared externally, those decisions are outside the SCSB terms of reference.”

That sounds quite different from the intention behind saying, “They approved the decision and would have raised any concerns had they had any”.

The assurance that Nick Gibb gave in parliamentary questions in July 2016 about the Star Chamber “approval” was worthless.

The assurance that the Department for Education gave to the House of Lords Secondary Legislation Scrutiny Committee  in September 2016 was worthless.

How can any Statutory Instrument process that changes our laws be built on sand and retain their trustworthiness?

 

The Truth Behind the Purposes of the Collection is not all the Department says it is

As the BBC revealed the truth in December 2016, the purposes were 100% about immigration not education.

“In summer 2015, Theresa May wanted Whitehall departments to contribute to the government’s ambition to reduce immigration to the tens of thousands.

One source says every department was to have its hands “dipped in blood”. But the letters reveal there was a “disquiet among our own ministers about the potential for inflammatory comparisons” by using schools as part of the immigration system, punishing the children of illegal immigrants by putting them to the bottom of the list for school places.

After discussions at a cabinet committee, Nicky Morgan, then Education Secretary, wrote twice to the then Prime Minister David Cameron with “profound concerns” about the Home Office’s plan for schools.”

Collecting country of birth and nationality in the school census was agreed in a compromise instead, at the Immigration Taskforce meeting in July 2015. Nothing to do with the educational purposes and benefiting the individual pupil of the DfE recent letter to the Lords.

 

Why did we want to know what the Star Chamber had been told about the Purpose of Nationality Data?

The key question was what assurance and scrutiny had the Star Chamber given the school census expansion decision. Because the House of Lords was told by DfE they’d had no concerns.

Now we know the Board did not know anything about the data sharing agreement already in place between the DfE and Home Office or that “(once collected) nationality data” [para 15.2.6] was intended to share with the Border Force Casework removals Team. The ‘scrutiny’ and assurance that they would have raised concerns had there been any, was nothing more than DfE empty words.

In parallel for the last sixteen months, we have been trying to find out, did the Board ask the question and get given reassurance, or were they lied to? That we still don’t know.

We have now got some recorded notes of decision-making, but not how or why. The discussion of the facts is conspicuous by its absence. The minutes are not a record of what was said.

We had made a Freedom-of-Information request on July 4, 2016 before any of the facts around Home Office access had come out, for any board minutes referring to the decision to start collecting nationality and country of birth in the school census.. The Department refused to publish the evidence from the meeting, and after months of wrangling and internal review, we escalated the request to the Information Commissioner, who ruled in favour of release of the information, in the balance of public interest.

The Department of Education appealed to overturn the ICO decision, at the First Tier Tribunal on information rights. The case was due to be heard this week, but the DfE decided last-minute to withdraw its appeal, and has just provided some of the disputed information.

Before pursuing the FOI, we wrote to the Board and asked them for their own version of events but had not received answers to our questions.

Would they have had concerns had they known?

Members have told us verbally yes. They would never have approved it.

Was Parliament misled when it reviewed the change in law after it had already come into effect after being snuck through in the summer holidays without debate? We believe so.

How trustworthy is anything that the Star Chamber now “approves” and our law making process to expand the school census?

How trustworthy is the DfE Statutory Instrument scrutiny process?

 

What was Parliament, Civil Society and Schools told?

“The data will be collected solely for the Department’s internal use for the analytical, statistical and research purposes described above.”

Ministers had told Parliament in the written parliamentary questions in July 2016, “There are currently no plans to share the data with other government departments.” (our underlining) And this is again what the DfE refers to in point 15 of the letter, that “well basically we weren’t going to hand over nationality and we don’t now, so it doesn’t matter.

In effect, “Nothing to see here, move along, move along.”

Wrong. The MOU was modified with an “updated purpose” on November 27, 2015  and continued to be live and in place including paragraph 15.2.6 “(Once collected) Nationality” until 7, October 2016 when that single line was removed from the text.

It’s easy to become confused and think the truth that is now known, was always known. But follow the timeline of events carefully, and it is clearer.

On September 26, 2016, almost 20 human rights organisations led by Against Borders for Children wrote to the Secretary of State, calling for nationality to be scrapped.

On September 29 in a meeting at The Department told defenddigitalme that the use of pupil data by the Border Force Casework Removals Team was ‘under discussion’. Questions on October 12 and a motion-of-regret in the House of Lords took place on October 31. At none of this, had Ministers ever admitted any sharing of pupil data with the Home Office for immigration enforcement.

When we met the  Director for Data and Education Standards Analysis and three staff on November 16, 2016 along with representatives of nine of those human rights organisations, we were all told the Department would consider taking nationality out of the matching process. “What we’ve said so far is that won’t give nationality back to the Home Office. I’m getting minded to take away looking to give you the assurance that the nationality field won’t be used at all.”

We never received that assurance. The  Director for Data and Education Standards Analysis left the Department 4 months later.

What now?

Schools have still NEVER been told that school census data are used for these purposes at all, and many simply fail to believe it could be true that the Department for Education, now uses pupil data, from up to the last five years, “obtained from the National Pupil Database and used to contact families to “regularise their stay or remove them.””

Has the Ministry of Magic still something more to hide? We believe that nationality is used in the processes for the Home Office purposes, which need not be done through the National Pupil Database but can be done from any data, for example from that held in the i-Store where the nationality data are held at the DfE. The Department’s razor-sharp use of language to not tell the whole truth is often deeply disappointing. The provision of data is VERY specific. We do not pass these data to the Home Office is very specific. It does not exclude using nationality data on site, at the DfE in the preparation of the Home Office work to provide the knowledge the HO asks for.

We believe the full facts are still missing. There is no guarantee of any future safeguards or oversight, and since July 2017 the Department refuse to respond to Freedom of Information requests for the numbers of pupils affected. We have been told since November 2016, that the numbers of children asked for and handed over, will be published. We await to see it happen.

Meanwhile, at the Ministry of Magic, the Death Eaters continue to pass into schools behind the scenes, exchanging pupil data invisibly for up to 1,500 in the agreement,  on a monthly basis, for the purposes of the Border Force Removals Casework Team.

The story is far from over.

The government continues to add ever more sensitive data to the school census collections, putting children at more unseen risks.

The House of Lords Select Committee on the Constitution point out in the report on the Data Protection Bill,  underway in the Lords, that the number and breadth of the delegated powers, are, “an increasingly common feature of legislation which, as we have repeatedly stated, causes considerable concern.” We agree.


References:

Legislation and decision process on School census expansion to incl. nationality data collection 

  • Sept 2016 Letter to the Lords Secondary Legislation Scrutiny Committee – SI 808/2016; school census expansion [letter .pdf 143kb]]
  • October 2016 Government response to the SI 808/2016 letter [response .pdf 707kB]
  • September 2016 Items 11-13 in the 8th Report [8th Committee Report of session 2016/17]
  • October 2017 Government response to questions from the Lords Secondary Legislation Scrutiny Committee about the purposes of the SI 808/2016 [response .pdf 424 kB] There are lots of weasel words and simply missing facts in this letter, but Point 15 confirms the Star Chamber were not told about Home office use of school census data when they signed off the nationality data collection. This is significant when Ministers relied on the assurance that the Star Chamber had approved the expansion and had raised no concerns.

The Star Chamber Scrutiny Board approval process – was it made blind?

Memorandum of Understanding (MOU) between the DfE and Home Office

  • version 1.0 Memorandum of Understanding (MOU) between the DfE and Home Office, effective between 18/12/15 and 06/10/2016 [download .pdf 538 kB]
  • version 2.1 Memorandum of Understanding (MOU) between the DfE and Home Office, effective since 07/10/2016 [download .pdf  539kB]

Alternative Provision School Census expansion STARTING IN JANUARY 2018

Briefing on the census expansion including pregnancy, and other health data

  • Short background and questions [download, .pdf 60.9 KB] ed. 4Nov 2017
  • The Statutory Instrument [link]The Education (Information About Children in Alternative Provision) (England) (Amendment) Regulations 2017 (807/2017) and its Explanatory Memorandum 
  • Letter to the Department for Education and Office of the Information Commissioner  [download .pdf] (September 21, 2017) On Nov 7, 2017 it remains unanswered.
  • In 2016, there were 22,212 children recorded as being in local authority funded placements outside of state place funded schools, including children who are educated in private voluntary and independent (“PVI”) settings.
  • Background for schools by the Department for Education [link]