An update on legal action

In 2018 we began regulatory and legal action with a legal team at Leigh Day. We have decided to end these challenges, and to continue work in these areas in other ways.

Through regulatory and legal routes we have managed to bring about some significant changes to practice and policy since 2018.

Letters to the Secretary of State for Education under the #LabelsLastaLifetime campaign, calling for change early on, were signed by over 20 leading child rights advocates and organisations including The Royal Mencap Society, the Alliance for Inclusive Education, and young offenders mentoring charity Trailblazers. We began this because of the new and ongoing breach of rights due to the lack of communication to the children and families affected by the 2018 Alternative Provision census expansion.

After our legal team with Leigh Day and Monckton Chambers submitted a regulatory case, the ICO carried out an audit of the DfE in 2019-20 which resulted in a reprimand issued to the DfE and a complete overhaul of internal policies, and package of work. (And we continue to work to obtain the full outcomes of these changes).

Through that, we ensured the first data protection impact assessment was carried out of the National Pupil Database and summaries were published for the first time in 2019. These revealed the news that sexual orientation and religion is being stored in the NPD shared by HESA to the OFS and UK higher education bodies. We continue to work towards change of policy here, so that student equality monitoring is retained only as statistics not on a named basis.

After the Nationality and Country-of-Birth data stopped being collected in the school census in June 2018, we continued to pursue its destruction, after providing evidence that data completeness made it unusable and retention was unnecessary. The data was destroyed in 2020 after the ICO audit. There has been less ICO support on misuse for new purposes in the Hostile Environment that are incompatible with the original reasons for why children’s data is collected in the first place, to promote the education and wellbeing of children.

While acknowledging what the ICO has done and that the DfE *has* changed practices, a lack of dissausive enforcement action and recognising the difficult current legal landscape in England, means it is most sensible to discontinue our ongoing legal challenges of the current government policy. This includes the daily collection of attendance and absence data from every child together with digital rights legal firm, AWO. Although we had a strong, well researched and evidenced case, we were refused permission by the courts to pursue to the next stage. The ruling does not dispute or affect the significance of the concerns that the Information Commissioner had raised, or our own view at Defend Digital Me that there is unlawful practice and excessive data collection and retention. We continue to work to change and improve this through other routes and in our work as a whole. We have not ruled out further future legal action. But we hope the next government, whatever its colour, will end bad policy and practices, and continue to push the Department for Education along the path for improvement it is on.

Most importantly, we are enormously grateful for the financial support we received from individuals and organisations and collective action. We are now closing the crowdfunder for all related work, the full funds for which have already been used as part of the total costs paid to the legal firms involved since 2017. We are grateful to the Digital Freedom Fund for the bulk of the financial support that made this work possible. We will continue to campaign for children’s fundamental rights in national pupil data including the right to refuse to be commercially exploited through the state, just because a child goes to school. An opt in/-out in legislation is urgently needed.

For anyone that wants to continue to support our work financially, you can donate here instead, as we always need and welcome our supporters help. You can sign up for our latest news and updates online. Thank you.