Nineteenth Report of Session 2007-08: Education and Skills Bill

On 13 May 2008 the Joint Committee on Human Rights (JCHR) published its 19^th Report of the 2007-08 Session concerning the human rights implications of the Education and Skills Bill currently before Parliament. As the lead Minister for the Bill I am responding to conclusions and recommendations of the Committee and, in doing so, I use the numbering adopted on pages and 18 and 19 of the report:

1) We welcome the Government's recognition of the "increasing autonomy" of young people approaching adulthood and the positive duties incumbent on the state to respect and facilitate the enjoyment of their rights, independent of their parents or carers. However, we suggest that it is, at the very least, confusing why, given this recognition, the Government has chosen to coerce young people into education and training through the use of criminal sanctions, in a way which it could not possibly do in relation to those over the age of 18. We also regret the Government's failure to give any real consideration to the human rights implications of the proposed duty in the Explanatory Notes. This hinders effective parliamentary scrutiny of the clause's compatibility with human rights. (Paragraph 1.9)

Article 12, UNCRC states that "State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child."

The UNCR suggests that the state must give a child the right to express his or her own views according to age and maturity.

It is between the ages of 16 and 18 that a young person moves from becoming a child to becoming an adult. It is in recognition of this that the law gives 17 and 18 year olds specific rights — the right to drive at 17, the right to purchase alcohol and cigarettes at 18.

The Bill recognises this transition in young people's maturity and recognises their right to express choice. Unlike those of compulsory school age, the Bill places the responsibility to participate in education on young people, rather than on their parents. Young people are also able to choose how they participate from a wide range of options — from full time education at school or college, to employment with part time training. The flip-side of this increased right to autonomy and decision-making power is the responsibility to participate.

The only choices that would not be available to young people are doing nothing or going into a job without training, as we know that these lead to worse outcomes for young people.

I would like to draw to the Joint Committee's attention that particular effort went into making the consultation on the Green Paper proposals more accessible to young people. This included the publication of Reach, a consultation magazine, aimed at young people which was in high demand and through which we gathered the views of 1,708 young people. We also consulted young people through focus groups; we contacted children in year 5 through a number of schools and consulted young people who have barriers to participation, or who are not in education, employment or training through the third sector organisations Fairbridge and Foyer.

2) The duty to participate in education or training raises issues under Article 8 ECHR (the right to respect for private life, which can include aspects of an individual's working life and employment). Such rights may only be interfered with when it is necessary and proportionate to do so, in pursuit of a legitimate aim. Whilst we do not deny the potential benefits to some young people and the economy of their continuing in education and training, in our view, relying on criminal coercion for its enforcement is potentially disproportionate. (Paragraph 1.15)

We think it is unclear whether compelling a young person to participate does in fact engage Article 8.

Article 8 does not confer a generalised right to self determination or personal autonomy — it is concerned with the notion of 'respect' and it is therefore not the case that any interference with or intrusion into an individual's personal life constitutes a lack of respect by the state for that personal life. The Strasbourg court has recognised that certain protected interests, fall within the concept of private life in Article 8, and the duty to participate does not fall within any of these.

In addition, the duty does not contain an indefinite obligation — it is time-limited and does not compel the young person to participate in a particular form of learning and there is therefore a significant element of personal choice. Furthermore, the duty to participate does not intrude upon family life and there will be no sanction if the young person has a reasonable excuse for not participating.

However, even in the event Article 8 is engaged, our view is that the interference is clearly, in pursuit of a legitimate aim as the provisions in the Bill are in the economic interests of the country. As set out in the Leitch Review of Skills, the opportunities for a young person who has few or no skills are likely to reduce significantly in the next 20 years. Their prospects are already poor with nearly 40% of 16 year olds who leave school with no qualifications becoming NEET, compared with just 2% of those with 5 good GCSEs. It is true that the majority of the young people who drop out will be from disadvantaged families, and a significant number will have specific needs. And the benefits of staying on are clear in terms of improved life chances, as the Joint Committee acknowledges.

We think that that the interference is also proportionate and justified. The primary enforcement system is one of administrative penalties — criminal sanctions can only apply at the very end of the process. We have considered very carefully whether there is a viable alternative to criminal sanctions at this final point and concluded that there is not.

A young person cannot even enter the enforcement system, let alone reach the end of it, while they have a reasonable excuse for not participating or have unmet needs. Individual personal circumstances will be taken into account at every stage of the enforcement process. Furthermore, there are safeguards built into the system, such as an independent panel to hear appeals and consider the local authority's judgements, to ensure that young people do not face enforcement action inappropriately.

The Bill does not, as the Committee claims, "coerce young people into education and training through the use of criminal sanctions". The focus of the policy is on engaging young people in learning through the provision of worthwhile routes and the right support. An enforcement system is required to make the requirement meaningful, but its use would be an absolute last resort. It is only at the very end of this process, which it would be difficult and rare for a young person to reach, that there is any question of criminal sanctions.

3) We question whether simply "enabling" or "assisting" the performance of statutory functions is sufficient, in every circumstance, to meet the necessity test. We recommend that these particular provisions of the Bill be amended to provide more precise purposes for which information may be disclosed. (Paragraph 1.24)

We do think that "enabling" or "assisting" the performance of statutory functions is sufficient in these circumstances to ensure the fulfilment of what the Joint Committee refers to as "the necessity test". There are a number of statutory functions that are set out in Part 1 of the Bill including the duty to promote fulfilment of the clause 2 duty (clause 10) and the duty to identify those not fulfilling the duty imposed by clause 2 (clause 12). The information that may lawfully be disclosed under clauses 14, 15 and 16 would need to be reasonably required or necessary for the fulfilment of those and other statutory functions in Part 1.

I would like to remind the Joint Committee that, in considering whether a disclosure would be lawful under clauses 14, 15 and 16, account must be taken of the operation of principles of public law, the Human Rights Act 1998, the common law of confidence and the Data Protection Act 1998. We do not think that it is possible, or desirable, to devise a form of statutory language that encapsulates the operation of all of these statutory provisions and legal principles and imports such provisions and principles into these particular clauses. The existing legal framework for data sharing (which is contained in more than one source) operates satisfactorily and these clauses must be seen in that context. The Joint Committee may wish to refer to our letter to the Public Bill Committee of 8 May 2008 which sets out the Government's view on how exactly the existing legal framework applies to the information sharing provisions in Part 1 and Part 2 of the Bill.

We do not think that in this context detailing in a more precise way the purposes for which information may be disclosed in primary legislation is the best way to convey to those that need to know how exactly information can be lawfully shared and used. We intend to issue guidance to local authorities under clause 18 of the Bill, on how we expect local authorities to carry out their duties and powers and we think that that is a better approach.

4) Whilst we are pleased to note that the Government has chosen to deal with the categories of information which may be disclosed in primary rather than secondary legislation, we draw attention to the vagueness of many of those categories. We recommend that the Bill be amended to ensure that the information which may be disclosed is defined with greater specificity, preferably in an exhaustive list. This is vital to ensuring that both the authorities making the disclosures and the individual subjects of disclosures understand the information which may or may not be disclosed and the circumstances in which that disclosure may take place. (Paragraph 1.26)

The Government's view is that there are adequate legal safeguards (contained in principles of public law, in the Data Protection Act 1998, the Human Rights Act 1998 and the common law of confidence) which ensure that information is only disclosed in so far as it may be reasonably required and such disclosure is proportionate. Data sharing is carried out under these provisions for purposes that are in the public interest in that they promote the well-being of individuals and the economic well-being of society as a whole. That is why it would be undesirable to unnecessarily restrict the disclosure of relevant information. Compiling exhaustive lists or attempting to be more specific might have this effect. In addition it would remove the subtlety of judging what information might be needed in one case, but would not be in another.

In some individual cases, it may be necessary:

• To receive information from a Strategic Health Authority that a young person had died, so that the deceased's family would not be contacted which they could find distressing
• To receive information from a Youth Offending Team that an Order had been issued against a young person (though normally the information would not include details of the offence) — which would accompany a referral of the young person to Connexions by the YOT
• To receive information from the police about a young person being the victim of domestic violence
• For a Primary Care Trust to contact Connexions with information about a teenage mother who was not engaged with Connexions.

Again, the Joint Committee may wish to refer to our letter to the Public Bill Committee of 8 May 2008 on this matter. We intend to issue guidance under clause 18 to local authorities, on how we would expect them to carry out their new duties and powers under Part 1.

In addition the Joint Committee will wish to note that the Government has tabled amendments to clauses 15 and 61 which limit the information that may be supplied to "social security information", and these were passed by the House during the Bill's Commons Report Stage on 13 May.

5) We repeat this conclusion [that the existence of the Data Protection Act does not exhaust the obligation on the State to provide adequate safeguards] in relation to this Bill. (Paragraphs 1.29-1.30)

We agree that it may be necessary for legislation to limit the scope of powers to disclose personal information, over and above the safeguards contained in the Data Protection Act and the other sources of law as mentioned previously.

That is why each of the information clauses specifies the purposes for the disclosures and restricts them to those purposes only. Disclosing information other than for the specified purposes would therefore be unlawful.

In addition clauses 14 and 57 (information provided by learning providers) provide an additional safeguard by enabling young people to instruct the provider not to pass on information beyond their basic identification information. This was included in s117 of the Learning and Skills Act 2000, which clause 57 replaces for England.

Clauses 15 and 61 (information provided by the Secretary of State) contain a specific criminal offence for unlawful disclosures of personal data, which is necessary so that it is commensurate with offences in other social security legislation. That is why no such offences appear in the other clauses, as there is already an offence provided in the Data Protection Act for unlawful disclosures not relating to social security legislation.

The purpose of the Data Protection Act is to regulate the collection, use, storage and distribution of personal data and therefore the Bill must be read alongside the Act and other data protection law, which apply to all disclosures of personal data. They are of general application, and the Government's view is that they do not require explicit references to them or their principles on the face of other legislation for this to be the case. Indeed, to make such references in one piece of legislation whenever that legislation contains data sharing provisions would be unnecessary as a matter of law and would increase the burden on Parliament when it scrutinised such legislation. It would also be confusing to have so much repetition.

We are clear that, although the Bill proposes to create statutory duties and powers for public bodies to provide information, this does not remove the responsibility of these public bodies to act in accordance with the relevant data protection legislation and legal principles, as we have set out at length in the recent letter to the Public Bill Committee on this matter.

6) We are concerned by the confusion surrounding the operation of the purported safeguard in clauses 14(4) and 57(4), which is exacerbated by the need for public bodies to have regard to a number of pieces of legislation to interpret their statutory duties in relation to both clauses. We are therefore dubious as to whether the position will be sufficiently clear to enable staff to be sure when they may disclose information without consent, and when consent will be required. Such confusion is likely to be detrimental to the privacy rights of individuals. We recommend that the issue be clarified in guidance under clause 18. (Paragraph 1.34)

We are happy to clarify this in guidance issued under clause 18 (and in non statutory guidance in relation to clause 57(4))

Clauses 14 and 57 treat basic identification information and additional information differently. Young people (or, if younger than 16, their parents) can instruct the learning provider not to disclose the additional information, which has been referred to as the 'opt-out'.

So consent for disclosure is not required by these clauses. However consent could be required in law in exceptional cases if the educational institution holds extremely sensitive information, for example if it holds information obtained under an obligation of confidence, such as in the case of sensitive medical records and there isn't a sufficiently strong public interest justification in disclosing the information.

These arrangements have been in place since 2000 for disclosures to Connexions (under s117 of the Learning and Skills Act 2000) and have a good track record.

7) We recommend that, in relation to any of the information sharing provisions dealing with personal information, the Bill be amended to require that an individual and his or her parents be notified, at a minimum, annually of the personal information (beyond an individual's name and address) which may be disclosed, and be required to decide whether to opt-in to permit such disclosures being made. However, before the disclosure of sensitive information may take place, written consent should be sought and received. (Paragraph 1.35)

We completely agree that young people and their parents should be notified annually. Learning providers should already do this and the existing arrangements for disclosures to Connexions (under section 117 of the Learning and Skills Act 2000) are established and work well.

In addition, the principle of fairness contained in the Data Protection Act already means that it is necessary to inform a person if personal data relating to him or her is being, or will be, shared, if such notification is practicable.

Currently, schools write to the parents of all pupils approaching the age of 13, and then annually, letting them know that information about their children will be shared with the Connexions service unless they request that it should not be. Parents are provided with a form to sign and return to the school if they do not want information about their child to be passed to Connexions which goes beyond name, address, date of birth and a parents name and address. These arrangements are sufficient and respect the will of Parliament through the requirements of the Data Protection Act.

It is right that consent is sometimes required for disclosures of highly sensitive personal information. That is why, under the law relating to the obligation of confidence, for example in relation to sensitive medical records, that a data controller is already restricted from using information for a purpose other than that for which it was provided, unless it obtains the individual's consent and unless there is a sufficiently strong public interest justification in favour of disclosure. This is the case under common law.

We will clarify the operation of clauses 14(4) and 57(4) through guidance and this guidance will clarify when consent is required before the disclosure of sensitive information.

8) The lack of safeguards on the face of the Bill is in our view unacceptable. Specific core safeguards in relation to the powers to enter, inspect and take copies of records should appear on the face of the Bill, not least to provide protection for documents subject to legal professional privilege. Requiring the surrender of documents subject to privilege would create a significant risk of incompatibility with Articles 6(1) and 8 ECHR (Paragraph 1.39)

We are giving careful consideration to bringing forward a government amendment during the passage of the Bill through the House of Lords in response to the recommendation. We are exploring an amendment which would introduce safeguards onto the face of the Bill in relation to the powers to enter, inspect and take copies of records contained in clauses 82 and 96 in order to provide protection for documents which are subject to legal professional privilege. We remain of the view that the Chief Inspector, being a public authority for the purposes of the Human Rights Act 1998, is obliged to act compatibly with Convention rights when conducting inspections. The duty to act compatibly would apply in cases involving legally professionally privileged materials. Therefore, we disagree there is a "significant risk of incompatibility with article 6(1) and 8 ECHR". Nevertheless, we are considering an amendment to put the matter beyond doubt.

9) We are pleased to note that the Bill proposes to permit sixth-form pupils to opt-out of religious worship in non-maintained special schools. However, we question whether the Bill gives sufficient weight to the rights of a child to freedom of thought, conscience and belief under Article 9 ECHR and to Article 12 of the UNCRC. (Paragraph 1.42)

10) We recommend that the Government reconsiders its objection to permitting a child of sufficient maturity, intelligence and understanding to withdraw from religious education and takes into account our previously expressed views on this issue. As for religious worship, we recommend that children who are not in the sixth-form but who have sufficient maturity, intelligence and understanding be permitted to withdraw. This could be simply remedied in the Bill by replacing "sixth-form pupil" (in new section 342(5A)(b)(i) of the Education Act 1996 - see clause 127) with "child of sufficient maturity, intelligence and understanding." (Paragraph 1.45)

The purpose of clause 127 is to align the position of maintained and non-maintained special schools. During the passage of the Education and Inspections Bill 2006 a government amendment was made to allow pupils above compulsory school age in maintained the right to withdraw from collective (religious) worship. There are a number of reasons why this amendment did not go further by allowing pupils the right to withdraw from Religious Education or by allowing younger pupils to withdraw from collective worship.

Article 12, UNCRC states that "State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child"

The UNCRC suggests that the state must give a child the right to express his or her own views according to age and maturity.

It is between the ages of 16 and 18 that a young person moves from becoming a child to becoming an adult. It is in recognition of this that the law gives 17 and 18 year olds specific rights — the right to drive at 17, the right to purchase alcohol and cigarettes at 18.

The Bill recognises this transition in young people's maturity and recognises their right to express choice. This clause provides for those pupils over compulsory school age attending non-maintained special schools to make choices for themselves relating to attendance at the daily act of collective worship. In relation to younger children, there remains a parental right of withdrawal.

There is a proper distinction to be drawn between participation in collective (religious) worship and attendance at religious education lessons on the grounds of the nature of those activities. We do not believe that teaching children about religion in an objective, critical and pluralistic manner in religious education lessons (especially where, as here, there is a parental right of withdrawal from RE) is a breach of their human rights.

The Government continues to believe that it is not 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. Parents have the right to withdraw their child from all or any part of religious education and / or collective worship and sixth form pupils can withdraw themselves from collective worship. We believe this strikes the right balance.