Clause 16

Education and Skills Bill – in a Public Bill Committee at 12:30 pm on 19th February 2008.

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Information: supply by public bodies

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I beg to move amendment No. 23, in clause 16, page 8, line 44, at end insert—

‘(1A) Information may only be supplied under subsection (1) if the relevant person or body mentioned in subsection (2) regards the provision of the information to be proportionate to the fulfilment of the aims of the local education authority in the exercise of its functions under this Part.’.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss the following amendments:

No. 24, in clause 16, page 8, line 44, at end insert—

‘(1A) Information may only be supplied under subsection (1) if the local education authority requesting the information regards the provision of the information to be proportionate to the aims of the local education authority in the exercise of its functions under this Part.’.

No. 113, in clause 62, page 34, line 5, at end insert—

‘(1A) Information may only be supplied under subsection (1) if the request for information is proportionate to the purpose of providing services in pursuance of section 54 or 56(1)(b).’.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

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.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families) 12:45 pm, 19th February 2008

I am not sure I would say that I am terrified by the clause because it takes an awful lot to terrorise and terrify a Liberal Democrat. However, I am extremely worried about the contents of what is a sweeping clause, as the hon. Member for Bognor Regis and Littlehampton explained. I am very attracted to the amendments that he has tabled. If we do not receive a satisfactory response from the Minister, I hope that he will press the amendment to a Division.

The clause gives open-ended powers to a wide range of authorities that go well beyond the education sector and will allow the release of information to a local authority or to persons or bodies that have responsibilities  under the Bill. This matter takes us back to some of our earlier concerns about the type of data that are likely to pass backwards and forwards as a consequence of trying to support young people in education and training and in meeting the obligations imposed by the Bill. I do not want to anticipate the questions that I will have for the Minister when debating amendment No. 60, which deals with the bodies that have a responsibility for health matters. I think that there is a need for more adequate protection against the abuse of these powers than is in the clause.

I would like the Minister to clarify two points. Will he indicate which of these powers are currently available for young people below the age of 16? In other words, are there powers such as these for under-16s who are not in education or training—they may be persistently absent or truanting—so that information from such bodies can be accessed in order that educational establishments can exercise their existing responsibilities?

On a specific point, is information held by employees of the organisations that are listed in the clause that is held not in their workplaces but at home addresses covered by the data protections that the Minister indicated earlier? There have been cases in my constituency where very specific and sensitive allegations have been made about young people, often in relation to child protection issues, and data have been held in a home setting by employees of organisations such as those listed. Will the data protections that the Minister referred earlier relate to such data?

I hope that the Minister will respond to the wise words of the hon. Member for Bognor Regis and Littlehampton and his cautionary note and that, by the end of the Minister’s speech, we will be less terrified, or in my case less moderately worried, about the contents of the clause. If not, it may be necessary for the hon. Gentleman to press the amendment to a Division.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

As with the other provisions that we have discussed under this chapter, local authorities will use the information that they receive from other public bodies to help them identify young people who are not participating. It will be used to identify the most appropriate support for those young people so that they can be helped back into learning as soon as possible. As we have discussed, the sharing of information is critical to the effective provision of services to young people and it enables coherent services to be delivered. The amendments propose specific references, in clauses 16 and 62, to the need for the supply of information by public bodies to be proportionate to the purpose for which it is requested. As we discussed with the amendments to clauses 15 and 61, article 8 of the European convention on human rights requires that information can be supplied only as far as is necessary and proportionate to the purposes that it will serve, which are to enable or assist local authorities to fulfil their duties to promote participation and identify young people not participating and to provide the Connexions service——

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

I will shortly, but let me finish my paragraph.

My letter to the Joint Committee on Human Rights details our consideration of the aims and proportionality  of the provisions. Public bodies such as those listed in clauses 16 and 62 may be providing services to a young person that would be relevant to the support that young person is receiving from the Connexions service. Disclosure of information would take place only if it was proportionate to the aim of increasing participation in education and training.

Photo of John Hayes John Hayes Shadow Minister (14-19 Reform and Apprenticeships)

There we have it. Having spent two hours telling us that the only purpose, or at least the only serious purpose, for collecting and sharing this information was to provide advice and guidance through the Connexions service, the Minister then reads a pre-prepared note, which I presume he wrote last night, which says that the purpose of collecting and sharing this information is to promote, and indeed enforce, participation. So it is not reasonable to suggest that this is entirely about efficacy; this is about enforcement and thus the tone of the amendments proposed by my hon. Friend—

Photo of John Bercow John Bercow Conservative, Buckingham

Order. I have counselled against the tendency towards an increasing prolixity in interventions, of which I am afraid that was a rather distinctive example.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

I say to the hon. Member for South Holland and The Deepings that at no point did I mention enforcement. What I said was

“which are to enable or assist local authorities to fulfil their duties to promote participation and identify young people not participating” so that they can be provided with a Connexions service. That is not so that something can be enforced against them but because the purpose of this whole part concerns the local authority’s duty to support young people to fulfil their duties to participate.

Photo of John Hayes John Hayes Shadow Minister (14-19 Reform and Apprenticeships)

The Minister is stretching the credulity of the Committee to its very limits. Is he really saying that identification of non-participants is purely to give them advice and could never be used to ensure that non-participants do participate in line with the statutory responsibilities and powers of local authorities?

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

I can tell the hon. Gentleman that the purposes of identifying young people who are not participating is to provide them with support. The personal adviser would make contact with the young person, discuss their support needs and seek to broker those support needs for them. Subsequently, at some point down the track, there may be a conversation that takes place because that person refuses that support, but that is not because of the initial transfer of data. The initial transfer of data was in order to inform their support needs.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Is the Minister saying, for example, that the provision relating to the police could not be used to ask the police to give information that would help the local authority to pursue an individual who is not complying with their responsibilities under the Bill and pursue that person, potentially through an enforcement route, for not being in the education and training sectors?

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

In that we are going to issue guidance to say this should be used for support rather than enforcement, the purpose of the police and other criminal justice-related bodies being listed here is in order for that support to understand the circumstances of that young person. If they are involved with a youth offending team, that information is extremely relevant for people in understanding what they are dealing with and the support that is needed.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I think that the Minister is being helpful. Is he confirming that a local authority would never go to the police, in relation to a young person who was not complying with the responsibility to be in education or training and who had perhaps disappeared from their home address, to ask them to identify where that individual might be or whether they were in contact with some part of the existing police organisation in order to help the local authority to track them down and take enforcement action against them?

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

I cannot foresee a circumstance in which Connexions personal advisers using these data would go to the police in the way that the hon. Gentleman describes. I hope that that is helpful to him.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Clause 16 states that the information should be used to assist the authority

“to exercise its functions under this Part.”

My understanding is that the phrase “this Part” means part 1 of the Bill and that part 1 refers to clauses 1 to 53 inclusive. Within clauses 1 to 53 are all the clauses about attendance notices, written notices to participate and the penalties that go with that. Have I understood correctly what is meant by “this Part”?

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

In so far as the hon. Gentleman has gone, clearly he has understood that. Then in clause 18 we say:

“In exercising its functions under this Part, a local education authority must have regard to any guidance given by the Secretary of State.”

It is in that guidance that we will set out how this measure should be used. In the same way that we are giving our initial thoughts on clause 4 and some of the issues about that, I am happy to give our initial thoughts on this measure, although not the draft guidance, to assist the Committee.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I will be corrected by you, Mr. Bercow, if I am wrong, but my understanding is that guidance cannot overrule the provisions of primary legislation. If primary legislation gives local authorities the power to request the information—it says explicitly in the Bill  that that is for the purpose of part 1, that is clauses 1 to 53—they are entitled to do that, regardless of what is in guidance that the Minister may or may not issue.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

I am sure that the hon. Gentleman’s understanding of guidance is not wrong, but he also has to understand the reality in which this measure works. I cannot foresee that some jobsworth officer in a local authority will want to incur the great cost of chasing around trying to enforce things left, right and centre. The reality is that the whole enforcement issue, which we have debated at huge length over the previous few weeks, is there as a culture change. It is there to be used in extremis, not to be used by officers going fishing.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I am astonished by what the Minister is saying. Let us say that a local authority officer was aware that a young person was not in education or training as they were supposed to be under the Bill, but was deliberately trying to duck being tracked down for that purpose. Is the Minister really suggesting that that officer would be a jobsworth if they contacted the police to find out whether they knew where that individual was?

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

Let us say that someone is deliberately flouting the law. The legislation does not say “must”, but the local authority can, and we would expect that it would, take enforcement action. However, I do not envisage fishing trips—people casting around trying to find individuals to enforce against.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Just taking the Minister at his own word—his own argument—what information would the Connexions service want from the police service to help it to provide careers advice?

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

If someone has been in trouble with the law, that certainly affects their life chances. Therefore, they may have particular support needs and particular service provision may be helpful to them in preventing reoffending behaviour and getting them re-engaged in education and training.

Photo of John Bercow John Bercow Conservative, Buckingham

Order. I apologise to the Minister for interrupting him before he has completed his answer to the hon. Member for Bognor Regis and Littlehampton, but we have reached the appointed hour.

It being One o’clock,The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Four o’clock.