Data Protection Bill [HL]

Debate between Lord Clement-Jones and Earl of Clancarty

Monday 11th December 2017 Lords Chamber

[The Earl of Clancarty (CB)]

My Lords, I will speak to Amendment 117 in my name, but before I do I warmly congratulate my noble friend Lady Kidron on obtaining this important code of practice for children. I apologise for not having spoken in the debate on this Bill previously, but Amendment 117 is significant and is also a children’s rights issue.

If there is to be—correctly—a sensitivity concerning age-appropriate understanding by children in relation to information services, the same should be no less true in the school setting, where personal data given out ranges from a new maths app to data collected by the DfE for the national pupil database. A code of practice needs to be introduced that centres on the rights of the child—children are currently disempowered in relation to their own personal data in schools. Although not explicitly referred to in this amendment, such a code ought to reflect the child’s right to be heard as set out in Article 12 of the UN Convention on the Rights of the Child. Among other things, it would allow children, parents, school staff and systems administrators to build trust together in safe, fair and transparent practice.

The situation is complicated in part by the fact that it is parents who make decisions on behalf of children up to the age of 18; although that in itself makes it even more necessary that children are made aware of the data about themselves that is collected and every use to which that data may be put, including the handing on to third-party users, as well as the justification for so doing. The current reality is that children may well go through life without knowing that data on a named basis is held permanently by the DfE, let alone passed on to others. There may, of course, be very good research reasons why data is collected, but such reasons should not override children’s rights, even as an exemption.

It is because there is no clear code of practice for a culture of increased data gathering in the school setting that we now have the current situation of growing controversy, enforcement and misuse. It is important, for instance, that both parents and children, in their capacity to understand, are made aware—as schools should be—of what data can be provided optionally. However, when nationality and place of birth were introduced by the DfE last year, many schools demanded that passports be brought into the classroom. In effect, the DfE operated an opt-out system. The introduction of nationality and place of birth data also raises the question of the relevance of data to improving education and its ultimate use. Many parents do not believe that such data has anything to do with the improvement of education. Last week, Against Borders for Children, supported by Liberty, launched an action against the Government on this basis.

There is now also considerable concern about the further expansion of the census data in January next year to include alternative provision data on mental health, pregnancy and other sensitive information without consent from parents or children, with no commitment to children’s confidentiality and without ceasing the use of identifying data for third-party use.

It was only after FOI requests and questions from Caroline Lucas that we discovered that the DfE had passed on individual records to the Home Office for particular immigration purposes. As defenddigitalme said, such action,

“impinges on fundamental rights to privacy and the basic data protection principles of purposes limitation and fairness”.

I appreciate that as the Bill stands such purposes are an exemption, but teachers are not border guards.

In 2013, a large number of records were passed to the Daily Telegraph by the DfE. In an Answer given on 31 October this year by Nick Gibb to a Question by Darren Jones, he incorrectly said that individuals could not be identified. There is no suggestion that there was any sinister intent, but many parents and schoolchildren would be appalled that a newspaper had possession of this data or that such a transfer of information was possible. Moreover, in the same Answer he said that he did not know how many datasets had been passed on. This is unacceptable. There needs to be a proper auditing process, as data needs to be safe. It is wrong too that a company may have more access to a pupil’s data than the pupil themselves, or indeed have such data corrected if wrong.

It is clear that from the Government’s point of view, one reason for having a good code of practice is to restore confidence in the Government, but this should not be the main reason. In September, Schools Week reported that the Information Commissioner’s Office was critical of the current DfE guidance, which is aimed at schools rather than parents or children and is, in the main, procedural. It said that rights were not given enough prominence. Both children and parents need to be properly informed of these rights and the use to which data is put at every stage throughout a child’s school life and, where applicable, beyond.

[Lord Clement-Jones (LD)]

My Lords, I add my very strong welcome for this amendment to the very strong welcome from these Benches. I endorse everything that my noble friend Lord McNally said about the noble Baroness, Lady Kidron, and her energy and efforts. In fact, I believe that she was far too modest in her introduction of the amendment. I agree with the noble Lord, Lord Best, that, quite honestly, this is essentially a game-changer in the online world for children. As he said, the process of setting standards could be much wider than simply the UK. As the noble Lord, Lord Puttnam, said, these major tech companies need to wake up and understand that they have to behave in an ethical fashion. Having been exposed to some of the issues in recent weeks, it is obvious to me that as technology becomes ever more autonomous, the way tech companies adopt ethical forms of behaviour becomes ever more important. This is the start of something important in this field. Otherwise, the public will turn away and will not understand why all this is happening. That will inevitably be the consequence.