Impact Assessment and scrutiny not fit for purpose: the Children’s Wellbeing and Schools Bill so far

Today, MP Neil O’Brien,”put on record,” that the Minister will be, “well aware of some of the concerns about the clause that are coming to us from civil society.”

“When we make laws in this way, it relies on someone noticing and raising an objection to Parliament to get any kind of democratic debate, and we can only stop such things in hindsight.

“As the Minister will know, Defend Digital Me has put forward 30 different areas and proposals that it has concerns about, particularly on the information side. On previous clauses, we debated the constant unique identifier and eventually using the NHS number for that, and other things that we have objected to, such as the requirement to give information about how much time a home-schooled child is spending with both parents.

“I will not reconsider all the debates that we have already had, but all those important decisions will potentially be in the scope of this Henry VIII power.”

As there are many things running in parallel in our current remit, from the Data Use and Access Bill, to the Department for Education plans for a Content Store and the consultation on Copyright and AI (see from p.99 tldr; learners’ personal data, content from schoolwork, exams, edTech might all be up for grabs on an ‘opt out’ basis from July this year) as well as other things like bans or privacy-invasive measures on mobile phones among everything else, we were a bit behind on this stage of debate of this Bill, it has run so fast. Clause 4 was debated on January 23rd, (pp145-158) and Clause 25 on 30th January (pp299-312).

Gaps in Impact Assessment: Public sector equality duty and Human rights

Much of the Bill was even debated ahead of the publication of its own impact assessment. The Final Stage Impact Assessment was only published on January 30th on the Bill page, and the others have not been published on the Bill page at all. In fact, debate ran so fast that when Munira Wilson MP tried and failed to get the Equality Impact Assessment discussed on January 30th after the Minister mentioned it and moved quickly on, the Lib Dem did not get the chance again (p309).

It is shocking in its absence of scrutiny because the Equality Impact Assessment, published by the DfE on January 30th (but not on the Bill page), found not only risk of digital discrimination in the ability of some parents without online access that will be an expected necessary feature of the reporting, but also:

“we recognise that the CNIS proposals may have a disproportionate impact on those of Jewish ethnicity and the Gypsy, Roma, Traveller (GRT) community.” (Paras 145, 151, 154 and 184, 186, 187).

The Regulatory Policy Committee (RPC) published its Opinion on February 3rd saying, “As originally submitted, the IAs in respect of the Bill were not fit for purpose.” The leading reason was,

“Lack of evidence to support the problems under consideration in the rationale for intervention.”

It is something Damian Hinds has repeatedly framed in these Bill debates as a lack of clarity about, “what is the problem they are trying to solve”. And while government MPs chastised the framing, they have also failed to answer it, not only in Committee but seemingly to the RPC as well.

The RPC on page 6 finds, “A number of IAs could also improve their application of the critical success factors, as these are either provided only in the shortlist, not fully explained or do not align with the specific key critical success factors as set out in the Green Book.”

Furthermore, it is unclear from the oblique reference on page 16 if the Committee writing the RPC saw the IA on Equality at all, as they mention it could benefit from considering further that it “might” impact “Gypsy, Roma, Traveller communities” disproportionately. (The Equality Impact Assessment published on the DfE website did find this, but it’s not included in the Final Stage Summary nor available from the Bill page).

There’s been little to no mention of the Human Rights Impact Assessment of, for example Clause 25 (436C, 436E(3)), where there are confidentiality and privacy risks (aside from the damage it will do to trusted relationships between families and providers), but no risks are mentioned of the impact of parents or providers being asked to routinely hand over detailed personal data about the other without their permission, or against their will, or even the detail of the documented privacy effects, including that,  “Information shared may include personal data (relating to individuals) or private correspondence.”

No one can scrutinise what they cannot see in the dark: Cost Impact Assessment is Fictional

What we will write to the Committee to ask, is why it found the IA fit for purpose and then gave it a green light after it first found it failing? The IA is missing any monetary analysis for Local Authority and sector wide impact of increased data management (Clause 25). The Bill mandates the imposition of an as yet ‘imaginary’ national ID in Clause 4 (yet to be specified and only via negative regulations according to page 7 of the Memorandum from the Department for Education to the Delegated Powers and Regulatory Reform Committee, not the affirmative procedure we would suggest necessary as a minimum back stop); the impact of which (p33 (4))which will have not only initial costs, but long term maintenance costs for other parts of other systems (yet to be identified) in terms of infrastructure, interoperability, maintenance, staffing plus more in the way of intangible costs. All of this seems important to have costed the impact to determine feasibility, and makes the numbers that have been published about the costs of the Bill impacts, a work of fiction.

It doesn’t get even close to considering the costs of potential legal action for Local Authorities to bear from challenges related to infringements on the public sector equality duty and privacy.

The data gathering alone is unlimited and mandates every change from every home educator and provider no matter how small and how frequent to be passed on to Local Authorities, and unless the Bill is amended, with powers to potentially onwardly impact a wide range of bodies, which the Minister defended in Committee. It is going to be a mahoosive bureaucratic data exercise and in need of constant update. Surely the Committee cannot green-light something they cannot yet see, cannot scrutinise, and cannot cost, but they have, it seems, approved it, eyes wide shut.

The probing questions O’Brien and the former Secretary of State for Education, the Rt Hon Damian Hinds asked about these clauses, were not meaningfully answered. (Clause 4 was debated on January 23rd, (pp145-158) and Clause 25 on 30th January (pp299-312).) In addition to the equality impact assessment, there is a glaring gap in anyone asking about the risks of the national data grab of every EHE child’s identifying data by the Secretary of State in Clause 25 436F(1) and (2) (para 241 of the EN) and potential risks of re-uses at national level. (Even those who want it for example, to reflect adoption, would not mean the DfE need it on an identifying basis).

Any critical amendment cannot be meaningfully made where the Committee make-up is in the government’s favour. The risk assessment was weak to absent. The break-neck speed has been damaging to good scrutiny and good drafting of significant new law. So what happens next?

Lords are left to challenge all the ‘too difficult’ things pushed to secondary regulations

O’Brien said in today’s debate, that he was, “sure that the Government will receive lots of probing questions on this point as the Bill moves to the other place“.

It would appear yet another Bill will go unready to the Lords in terms of practical impact and costs, as well as in several areas with regard to the impact it will have on children. There’s no assessment of the harms these measures will cause to trusted relationships between providers (forced to snitch on parents who do not register, or face a fine) and families they support. Or the risk of potentially pushing anxious parents and children towards less scrupulous providers and less presentation (to support services or the NHS) where they might ask for help today.

Considering this is essentially taken from an old failed bill from 2022 reheated, it is shocking that there is still no remedy for really any of these substantive issues the Lords raised then. It seems ill-thought out that, although it is “not our intention to criminalise parents” the Bill as written, will do exactly that in cases where Local Authorities dispute that whatever data demands they make have been met, and as a result, evidenced or not, and with no concerns about a child’s safeguarding or welfare but just because they refuse to indulge an unlimited demand for bureaucracy 436C(3) p.50.

The Local Authority has the power to issue a school attendance order without an independent route for redress or meaningful appeal as-is the case today (it goes to the DfE and no Secretary of State has ever annulled one). Parents could be criminalised for simply refusing in principle, jailed for up to 51 weeks according to debate, with no thought to the impact it will have on children. A feature of recent legislation that Lord Russell noted in closing in the Data Use and Access Bill Third Reading debate, peers are all getting rather sick of.

This Bill could be a vehicle to try to fix some of these matters, but the government has chosen to leave all the ‘too difficult’ things to secondary regulations, and makes some things worse instead. Buckle up.

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Revisions: Further updated with references and headings Friday 7/2/2025 11:30.