Clause 16
Education and Skills Bill
12:30 pm
Nick Gibb (Shadow Minister, Children, Schools and Families; Bognor Regis and Littlehampton, Conservative)
Clause 16 is the most terrifying of all the data-sharing clauses in the Bill. It is made more terrifying still by the words in the explanatory notes. The clause says that any of the state organisations listed in subsection (2) can supply information that they hold on a 16 or 17-year-old to the local authority to help the authority fulfil the duties that the Bill imposes on it. The organisations are a local authority, the Learning and Skills Council for England, a primary care trust, a strategic health authority, a chief officer of police, a local probation board, and a youth offending team. Information could therefore include a person’s health records, their criminal records, their involvement with the youth offending team and details of how such programmes are working.
One might think that there were rules and regulations to prevent certain aspects of a person’s health records from being disclosed, but we then have the chilling words on page 10 of the explanatory notes, which state:
“Clause 16 sets out which other public bodies may share information about a young person with a local education authority in order for it to fulfil its duty. The purpose of the clause is to allow public bodies to provide information to local education authorities where other statutory provisions would prevent their doing so.”
All the sections in all the Acts over the years that were designed to safeguard the confidentiality of sensitive personal information held by GPs, hospitals, the probation service and the police will therefore be rendered worthless for 16 and 17-year-olds as a result of this one clause in the Bill.
As we have debated, the provisions in clause 16, together with all the other information-sharing provisions, have attracted the interest of the Joint Committee on Human Rights. The Committee is looking at the Bill and is concerned about whether such provisions are consistent with the right to respect for private and family life.
The Minister responded at length to those concerns, but on whether the measures in clause 16 are proportionate to the Government’s aims, he said:
“The information that public bodies hold is crucial to ensuring that the data in the database used by Connexions is accurate. Not having this information leaves a risk that the support offered is not the most appropriate for a young person; some agencies may have dealings with a particular young person but would be unable to share that information with the Connexions service.”
The implication is that the data are simply being used by Connexions to help advise young people. If that were the case, it would still be disproportionate and would, at the very least, necessitate the young person’s consenting to information about his health or involvement with the police being supplied. Clause 16 is not, however, just about the Connexions service; that would be the case if were debating clause 61. Clause 16 relates to
“enabling or assisting the authority to exercise its functions under this Part”—
that is, its duty to promote participation. That is far wider than the duties in clause 54.
The Minister says:
“some agencies may have dealings with a particular young person but would be unable to share that information with the Connexions service.”
As I said, we are not talking just about the Connexions service. However, some of the agencies that have dealings with a young person should not be able to share information with Connexions or, indeed, with the local authority or other agencies. Health records and details of involvement with the police should be sacrosanct. We await the Joint Committee’s report, but I have serious concerns about the Bill’s data-sharing provisions in general and clause 16 in particular. I am alarmed by the cavalier response in the Minister’s letter to the hon. Member for Hendon.
Amendments Nos. 23 and 24 introduced into clause 16 the requirement that the information requested is proportionate to the Government’s aims, and amendment No. 13 introduces a similar provision into clause 62. Article 8 of the European convention on human rights protects the rights to private and family life, and that is a qualified right, as we debated on the previous clause. The Government can breach that right, provided that the breach has a basis in law and is done to secure one of the permissible aims set out in paragraph 2 of article 8. According to that paragraph, a breach may be made for reasons of
“national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The other condition is that a breach is
“necessary in a democratic society”,
which means that it must fulfil a pressing social need and must be proportionate to the Government’s aims, and that is the consideration that the amendments would introduce into the Bill. They introduce a requirement that a breach of article 8 must be made for wider social aims and be proportionate to those aims.
It is interesting that the Government have included that requirement in clause 35 on parenting orders. Clause 35(8) says:
“The second condition is that any interference with family life which is likely to result from the attendance of the parent at a residential course is proportionate in all the circumstances.”
That is a clear reference to the human rights legislation for a lesser breach of human rights—attending a residential course—than that contained in the sharing of sensitive personal information.
The Minister said that that provision was superfluous in relation to these clauses. Is it not, therefore, superfluous in relation to clause 35? Perhaps the drafters of the legislation in chapter 4 have a more profound understanding of the importance of human rights and the right to a private and family life than the drafters of this part of the Bill, who take a less sanguine view of the importance of these matters.