Education (Pupil Information) (England) (Miscellaneous Amendments) Regulations 2016

Lord Storey Excerpts

Monday 31st October 2016 Lords Chamber

Moved by

[Lord Storey]

That this House regrets that information about pupils’ nationality and country of birth collected under the Education (Pupil Information) (England) (Miscellaneous Amendments) Regulations 2016 (SI 2016/808) could be used to help determine a child’s immigration status.

[Lord Storey (LD)]

My Lords, it is important that schools know how many of their pupils have English as an additional language. I hope that means that extra resources and support can be provided for those pupils. Indeed, schools and local authorities have been doing this for decades. However, the requirement for every school in England—by the way, we are not talking about Scotland, Northern Ireland or Wales—to collect information en masse about every child’s country of birth is, frankly, unbelievable.

These regulations were made on 20 July and laid before Parliament on 27 July, after Parliament had risen for the Summer Recess. They were rushed through Parliament in the six-week summer holiday with no debate, no proper scrutiny or, indeed, public consultation. You might have thought that the DfE would have wanted to consult, take soundings and take the views of a range of organisations before embarking on this requirement. However, that was not the case. The regulations were rushed through Parliament and that was it.

Against a backdrop of a massive increase in anti-immigration rhetoric, as witnessed by big increases in hate crime, and at one stage the Government considering asking firms to report on the number of foreign staff they employed, there is real concern among members of different ethnic groups about victimisation and being targeted. I am afraid that this proposal has all the hallmarks of racism, particularly as language codes are already recorded for pupils with English as an additional language, as are codes on their ethnic background. We have already seen the effects of this new requirement. It became a duty for schools to collect this information this September. Some schools have asked pupils to bring in their passports. Can noble Lords imagine pupils having to bring in their passports? In investigating the school census, Schools Week found classroom discrimination whereby only non-white children were being asked to bring in their passports to school. The Independent reported that where parents do not provide information, teachers will be asked to guess the ethnicity of pupils. Is it any wonder that children and young people have felt discriminated against and embarrassed in front of their peers? The Government may say that the guidelines state such and such, but that is a very different matter from practice in schools.

What is the purpose of collecting the information? The Minister says in his letter to me that the information will help us to understand the impact of migration on schools—for example, what extra support we may need to provide. However, there is no extra budget financing. He goes on to say that it will help us plan how we ensure there are enough good places for every child. However, knowing where a child was born has nothing to do with school place provision. The DfE says that the information will not be accessible to the Home Office, but already on 18 separate occasions since 2012 the National Pupil Database data have been handed over to the Home Office, while information has been granted to the police 31 times.

The actions of the Government and statements from them on nationality and country of birth have also raised real concerns about the confidentiality of the school census as a whole and the child’s personal data given by parents in good faith when their child enrols at school. If information from the school census can be shared with other agencies, for example the Home Office and police, without any oversight at all or consent, what does that say about the confidentiality of such information? By acknowledging that the nationality and country of birth data are too sensitive to be kept on the National Pupil Database with other data, are the Government suggesting that that database is not a secure place for a child’s data to be stored? How does this rest with our child safeguarding responsibilities?

I am very grateful to the Minister for his letter of 26 October, in which he made a number of key points. I hope that when he responds to the debate he will deal with some of them. He says that the new data on nationality and country of birth will be provided to schools by parents only if they choose to do so. It will be entirely optional. What is the point of all this if, at the end of the day, it will be entirely optional? How will that affect the need for extra resources or school placements?

On the question of passing information to the Home Office, the Minister says that it is solely for internal Department for Education use. How can we have a 100% cast-iron guarantee that this information will not be passed on to other agencies? He also talks about how we currently give information to private organisations and for research purposes. Is there to be carte blanche? What checks and balances are currently in place when people ask to see this information, and how do we ensure that if we agree that information goes to a private organisation, we are happy that it will be treated correctly and properly?

Finally, to go back to the point I made at the beginning, the Minister talks in his letter about extra support. Are we to understand that there are plans to provide extra financial support for schools which have children from different ethnic backgrounds?

Children are children, and to use their personal information for immigration enforcement is disingenuous, irresponsible, and not the hallmark of a tolerant, open and caring society.

[The Earl of Clancarty (CB)]

My Lords, I thank the noble Lord, Lord Storey, for introducing this Motion and I agree with his concerns.

There are two aspects to this. One is concern over whether school census data might be passed to the Home Office for immigration purposes, and the other is whether the gathering of these data oversteps the bounds of privacy, whether or not there is any usefulness for education. I have to say that but for the perseverance of campaign groups such as Against Borders for Children and Jen Persson of defenddigitalme, we would be none the wiser about the sharing for immigration purposes of the National Pupil Database between the Department for Education and the Home Office that has already gone on.

It has taken two freedom of information requests by Pippa King as well as Parliamentary Written Questions from Caroline Lucas to uncover, for instance, that in the last 15 months alone, requests to a total of 2,462 pupils have been made by the Home Office. I therefore feel that it is already very difficult to trust any reassurances that the Government now might make for the future. These revelations also contradict the statement that the noble Viscount, Lord Younger of Leckie, made in this Chamber on October 12 when he said,

“I reassure the House that the information is kept within the Department for Education and is not passed on to the Home Office”.—[Official Report, 12/10/16; col. 1890.]

This is clearly untrue, and I hope that this statement will be retracted. So far, the Government have said nothing about these disclosures.

We learned at the weekend from the report in Schools Week that the noble Lord, Lord Nash, has said that the nationality and place of birth data would be kept in a separate database. This raises a number of questions, not least whether this is a tacit admission that the NPD is not a secure place already in terms of data sharing—and of course we know now that it is not. But I would like to know what would be so special about this separate database. What is the precise wording that will ensure that these data will not be shared with the Home Office? Will this be a legally binding agreement? That these data would be on a different database seems to me to be meaningless in itself. What, then, of the NPD? Can the Minister assure us that those data, aside from nationality and birthplace, will not be shared in the future with the Home Office? What is the wording of any agreement which will ensure that?

Parents are upset, not just about how this information might be used but because these questions are asked at all. They are fundamentally intrusive in the same way that the listing of foreign workers would be. We also know that the same questions are also being asked of school governors. If it is unclear how pupils’ data can be used for the improvement of their education, it seems that the same information on school governors does not have anything at all to do with either a good education or good governance.

One of the things that ought to be emphasised is that these questions are in one important sense mandatory. You cannot leave them blank and, despite what it says in the guidance, parents have been asked for their passports for the simple reason that when the department asks a school to do something, they will naturally try to do so as effectively as they can. It is true that you can currently put “Refuse” as an answer, which parents are quite rightly doing out of protest at being asked these questions, but for many parents this will appear a provocative response. Can the Minister say whether there would be a straightforward opportunity for parents who are unhappy about having already given the information to have it retracted? Having “Refuse” as an option is a telling recognition that this is a sensitive area and, if these regulations continue, it will not surprise me at all if in a year or two that option is removed.

As everyone in education knows, it is a hard job to get pupils who may be excluded from mainstream education by circumstance into education. We need to get all our children into school, not frighten them away. In a sense, the Minister let the cat out of the bag in answer to a question from the noble Baroness, Lady McIntosh of Hudnall, that,

“it better enables us to monitor immigration issues within this country”.—[Official Report, 12/10/16; col. 1889.]

How is that a function of the DfE? Data gathered by the DfE should not be used to monitor immigration issues. Teachers are not border guards.

This is a children’s rights issue. Many parents are against the provision of these data and campaign groups have displayed serious concerns about it. The regret Motion of the noble Lord, Lord Storey, is unfortunately well founded.

--- Later in debate ---

[Lord Nash]

Obviously, it will not be as reliable as if they had, but it will be better than nothing. At the moment we just do not know and we are seeking a better picture. Frankly, many schools and, I am sure, parents, will understand why we want this information. Parents want their children to be educated better and they want them to be integrated into our school system better. We need to be better at doing that.

Having these data also helps us shine a light on where good practice is taking place. The new data on English proficiency will allow the department and individual schools to explore whether there is a better way of targeting specific children who need additional language support. I repeat loud and clear that the data on nationality, country of birth and language proficiency are not and will not be shared with the Home Office or police. There is a memorandum of understanding in place to this effect, to which a number of noble Lords have already referred. The MoU sets out the terms for sharing data with the Home Office and it reflects the need for practical arrangements between departments of state. It would be disproportionate to put this arrangement on a statutory footing. So far as our apparent refusal to publish this MoU is concerned, we anticipate publishing it shortly.

Where the police or Home Office have clear evidence of illegal activity or fear of harm to children, limited data, including a pupil’s name, address and some school details, may be requested. To be absolutely clear, this does not include data on nationality, country of birth or language proficiency. We have shared data with the Home Office in relation to 520 pupils in the past 15 months, set against 8 million pupils in our school system. It is a very small fraction, but a none the less valuable contribution to the Home Office fulfilling its duties of law enforcement.

Separately from the new data items, the DfE does support the reuse of our data by third parties such as academics and education research organisations when the use of it is both secure and in the interest of adding to the evidence of what works. Recent examples include independent academic analysis of the performance of academies, and others unpicking the recent improvement in outcomes for London schools to ensure that we can maximise what the data tell us about the best things to do next to improve education outcomes.

The data are also reused on websites such as schoolsguide.co.uk and in the Good Schools Guide, which help parents make sense of these complex data when making vital choices. The noble Lord, Lord Storey, asked about our procedures in this regard. We give extracts of our national pupil database out, but only under strict controls. We do not share nationality and country of birth data as part of this process. Access to sensitive data is strictly controlled by the DfE Data Management Advisory Panel, which is comprised of senior experts on the data and legal issues associated with the release of data.

The noble Lord, Lord Storey, and the noble Earl, Lord Clancarty, suggested that perhaps our NPD data are not secure. We believe that they are very secure because we have not had a leak in 16 years. However, we take data protection extremely seriously. All staff who work with data comply with the requirements of the Data Protection Act and undertake mandatory annual data handling training. In addition, all information assets are appointed an information asset owner to ensure that access to data is restricted to only those people who have been vetted and approved. All department systems used to collect, store or transfer personal data undergo regular IT health checks to ensure that they are secure, and these policies and the processes within them are regularly reviewed by the Government Internal Audit Agency to ensure that they are appropriate and effective.

I have responded to the point about this being optional by saying that it is better than what we have by a long way. The noble Lord, Lord Storey, asked whether financial support would be available to schools. Let us first get the information and analyse it so that we can work that out. I have already responded to the point made by the noble Earl, Lord Clancarty, about the circumstances in which the data would be made available to the Home Office. They can be requested only where there is a reasonable expectation that a crime has been committed or fear of harm. I hope I have reassured noble Lords about the intended use of the data that these regulations will collect and that I have allayed the fears and dispelled the myths that have grown up around them.

[Lord Storey]

My Lords, I am grateful to the Minister for his detailed response and he has given us quite important information about some areas of this matter. The truth is that I do not think he or the Government realised the effect collecting such data would have on schools. We have seen some of the most appalling practices such as, “Hands up if you do not live in England”. That is not conducive to good race relations or to how schools work.

On the question of resources, we already collect information about pupils’ ethnic backgrounds so that we can provide them, but the notion of saying to children, “We want to know where you live and where you were born because at some time in the future we may provide some resources”, just seems batty to me. This is not about shining a light; quite frankly, this is just inept. I am disappointed that the Government did not retract what they had done when they realised how stupid all this is. So I am afraid I am not convinced. I know that this will not have any effect on what has happened, but it is important that people stand up and be counted, and therefore I want to test the opinion of the House.

Motion agreed.