Lords strongly critical of school census expansion in Motion of Regret

“Parents are upset, not just about how this information might be used but because these questions are asked at all. They are fundamentally intrusive…”

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Last night the House of Lords agreed [1] after debate, with the regret motion[2] on the expansion of the collection of pupil data:

“That this House regrets that information about pupils’ nationality and country of birth collected under the Education (Pupil Information) (England) (Miscellaneous Amendments) Regulations 2016 (Statutory Instrument 2016/808)[3] could be used to help determine a child’s immigration status.”

While the law and the policy are unchanged, it sends a strongly critical objection from the House of Lords to the government. It signals support for all who oppose the collection of country-of-birth and nationality data, and the highly intrusive, divisive and damaging policy. This clear message must be backed by effective action.

We continue to vigorously oppose the use of any pupil data for purposes beyond education, or that pupils, parents and schools do not expect and which are without consent or not fairly processed on collection[4].

Purposes of collection

Lord Nash confirmed that there is no funding behind policy, and that the government wants to first get more data and see [in addition to the ethnicity and language data already held], which Lord Storey contested, arguing that for the government to say it needs to know, “where you were born because at some time in the future we may provide some resources, ‘just seems batty.'” While the Parliamentary Under-secretary of State, said that the government doesn’t understand the impact of migration on schools, and that this decision was taken pre-EU Referendum and approved by the Star Chamber Committee, we wonder what Louise Casey’s review said or didn’t say to that end, after Nicky Morgan’s announcement of a review of “education tourism” in August 2015.

Lord Nash is the first government representative in person, to confirm that the Department for Education shares pupil’s name, address and school details with the Home Office. In the past 15 months this was specifically in relation to 520 pupils after requests for almost two and a half thousand[5]. That he chose to defend this saying as a proportion of the whole pupil population “it is a very small fraction, but a none the less valuable contribution to the Home Office fulfilling its duties of law enforcement” sets out the government position clearly – they see nothing wrong with intruding in pupils confidential school records in this way [6] or having been less than transparent to date about explaining this to parliamentarians or the public.

We therefore have no faith in any nominal MoU agreement with the Home Office that nationality, country of birth will not be shared with the Home Office in future, and there is no plan to discontinue current policy sharing name, home address and school details.

The Earl of Clancarty summed up the debate and the purpose of the collection when he said that the Minister let the cat out of the bag in answer to a [previous debate] 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.” [The Earl of Clancarty]

We share Lord Paddick’s scepticism about the Department’s refusal to simply share the new Home Office and Department for Education agreement wording, and he pointed to other recent legislation that paints the bleak but clear picture of where the Government policy is going and its purposes of immigration data in other areas of daily life.

“The charge my noble friend Lord Storey makes that the provision in the regulations smacks of racism is supported by these other measures that the Government have passed and continue to put through.” [Lord Paddick]

It was noted that the same questions are also being asked of school governors and we agree that if anyone is still at all hesitant that the purposes of this collection are to see how pupils’ data can be used for the improvement of their education, there can be no doubt that the same information on school governors “does not have anything at all to do with either a good education or good governance”.[8]

Data sensitivity, security and integrity

Lord Nash’s letter [7] suggesting that the new census country-of-birth and nationality will not be added to the National Pupil Database (NPD) on the basis of their sensitivity, effectively acknowledges only that the NPD is not secure for any sensitive data. Lord Tyler flagged that data integrity will be unreliable, given data are not required.

The practical implications of why “any difficulties they are now experiencing are entirely of their own making,” were summarised by Lord Tunnicliffe, saying that the Government “did not think through the political implications either of collecting data on pupils’ country of birth and nationality or of transmitting named pupil information, to be held by the DfE, which can be matched with data in other departments.”

“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.”  [The Earl of Clancarty]

We wholeheartedly agree. The policy is toxic, the collection is intrusive, and its use insecure and unreliable.

These are among the range of open issues[9], that we continue to pursue with the Department, including work that undermines Lord Nash’s assurance when he said “we have not had a leak in 16 years.” Before July 2015 the DfE had never carried out any audit [10] of the hundreds of third parties[11] to whom it has sent out individual pupils identifiable sensitive data. The Department therefore cannot know if users have not onwardly leaked, shared or sold pupils’ data. Or just left it on the bus. There is work-in-progress that we support [12], to fix the problems, redesign a more privacy preserving model fit for children’s data and the consent based regulations ahead[13], and deliver secure data for public benefit.

What happens next

The regret motion of Lord Storey was well founded and well supported in the strongest language by the Liberal Democrat Lords, Crossbenchers and Labour peers in the debate. We will move forwards with action.

We continue to object to the school census and early years census expansion and we continue to support the Against Borders Campaign call for it to be scrapped.[14]

“This is not about shining a light [on government reasons for collecting these data]; 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.”
[Lord Storey]

Questions abound on transparency of the flawed policy behind this unfair collection, on data security, access, and matching. Public, political and professional trust are low. We need to know how parents and pupils will be addressed who submitted country-of-birth, without informed collection or being told they could withhold.

Lord Nash responded positively to Lord Clancarty’s question about the ability of parents to retract their information submitted, and that he will “certainly take that back and consider it“.

The government must make clear how it intends to avoid similar issues for the January 19th Spring School Census and Early Years collection when they are still to solve the problems they have today. Policy remains unchanged and Early Years settings are now collecting these intrusive personal data from the rising 2s for the first time.

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[1] Hansard 31/10/2016 Motion of Regret
[2] The motion was agreed without a vote, when Lord Storey tested the opinion of the House and all in favour, ‘content’ with the motion shouted ‘aye’. Normally you would expect those opposing would afterwards shout in response when asked ‘not content’ but no one did. It was agreed without a vote per se, without a ‘division’.
[3] Statutory Instrument 808/2016
[4] We had already written with objection to the Secretary of State in the strongest terms to the use of any pupil data for immigration enforcement, not a purpose of education, once the position in the Lords became clear in questions from the House of Lords on the new collection October 12th
[5] Last Thursday on October 27th Nick Gibb, Minister for School Standards answered a written PQ and confirmed the first information about the volume of individuals the Home Office makes from pupils’ school census records at the Department for Education for immigration enforcement purposes. The HO had requested the details of nearly 2,500 individuals since only July 2015. This followed months of FOIs.
[6] It appears from Home Office detail in a separate FOI that followed, monthly access began on a regular basis in 2016.
[7] Lord Nash said that the data will be kept separately reported in Schools Week
[8] “In addition, for all these individuals we will collect within Edubase, but not publish, a range of information to help us to identify specific individuals.” [White paper] [Announcement]
[9] Things that are broken in pupil data at the DfE open issues
[10] FOI the DfE never carried out any audit  before July 2015
[11] Blog on the most recently updated third party release register
[12] DfE driven work and review by the Open Data Institute for better data privacy preserving solutions
[13] GDPR regulations on Data Protection now in effect, enforceable in 2018 ICO Blog
[14] defenddigitalme is one of over 20 rights organisations that support the  Against Borders for Children (Schools ABC) campaign, a coalition of parents, teachers, schools and campaigners, that called for the census expansion to be scrapped before the collection began.