97D: Clause 48, page 41, line 26, at end insert “gender, and ethnicity,”
Member’s explanatory statement
Inserted section 436C relates to the content of children not in school registers. This amendment is to ensure that data on the ethnicity and gender of such children is recorded adequately so that disparities can be kept under review.
My Lords, I welcome the long-overdue register proposals, which are a tribute to the persistence of my noble friend Lord Soley. I also commend the Department for Education’s Schools Bill fact sheet, which sets out the rationale calmly and comprehensively. Of course, with any new system there are adjustments that we can consider, but it will be a huge improvement to have registers for all the reasons my noble friend Lord Soley enumerated in the previous group and for the large proportion of Gypsy and Traveller children who have dropped out of secondary education because they feel it is not a place where they can thrive and some of whose parents struggle to educate them. Then there are those children who are not being educated at all, except by gangs and county lines—an increasing number, according to the police. Registers will be vital here.
In moving Amendment 97D, I shall also speak to Amendment 109A in this group. I am grateful for the support of my expert noble friend Lord Knight of Weymouth, even if he is only here in spirit. The point of adding gender and ethnicity in Amendment 97D is to ensure that the full facts of drop-out from school are captured in the knowledge that local authorities have of what is happening to the children in their area. There are disproportionate numbers of children from some ethnicities who abandon school and even, among a few communities, a tendency to withdraw girls, particularly from secondary school. The reasons can include prejudice and bullying, particularly evident in the case of Gypsy and Traveller children; misunderstanding and ignorance of cultural norms; and lack of positive liaison with parents. Unless the size of these problems is known, and they must be known on a national basis from each local authority, factually and quantitatively, remedies are unlikely to be tailored to the cause.
Amendment 109A respects the Department for Education’s own data protection and audit report of February 2020 concerning the safeguarding of data. Although the information officer’s conclusions in this report apply to the department itself, they are equally relevant to local authorities whose procedures vary from area to area in their competency in safeguarding data. I hope for a positive response from the Minister and, indeed, from your Lordships. I beg to move.
My Lords, before I speak to the amendments in this group, I wish to ask the Minister a question about her contribution at the end of the previous group. She said that it was inappropriate for Peers to refer to the word “criminalisation” because it was wrong. I used it when I spoke because parents are already writing to me and to other Peers with their concerns. These are the words that they are already using. They are already alarmed and worried because Clause 50, under new Section 436Q, “Offence of failure to comply with school attendance order”, states:
“A person … convicted of an offence under this section in respect of the failure, may be found guilty of an offence under this section again if the failure continues”
and in new subsection (8):
“A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale, or to a term of imprisonment not exceeding 51 weeks, or both.”
Can the Minister explain why that is not a criminal conviction? If that is the case, the word “criminalise”—for very few parents, we hope—would be right, and I think that is what the Government seek.
Amendment 97D from the noble Baroness, Lady Whitaker, proposes the addition of gender and ethnicity to the register, and I support that. Her work with the Roma and Traveller community shows that we always need to remember the children of those communities, who often end up out of school through no fault of their own and are often the children having the toughest lives. We need to make sure that we can identify them to provide the support needed.
I have also signed my noble friend Lord Storey’s Amendment 102, which proposes that a register of children not in school should list the reason why they are not in school. I will not repeat the comments I made on the two previous groups, but would say that it is vital that those in authority—in local authorities and prosecuting authorities—are reminded at every turn why a child may not be in school. Without that reason listed on the register, it would be too easy to miss, and it may not be obvious to the key personnel who need to look at the register.
My Lords, Amendment 98 in this group is in my name. I will also speak to Amendments 106, 107, 110, 113 and 114, and to support my noble friend Lord Storey on Amendment 103. I think we all need to try to speak as briefly as possible if we are not to have a totally hideous day on Wednesday, when we will be expected to finish Committee on the Bill.
All these amendments are at the request of home educators. Amendment 98 reflects that home educating may be undertaken by a single parent; the other may be estranged or simply not interested in the education of the child. Requests for the name and address of each parent may not be appropriate, and the alternative wording proposed—
“the parent or parents responsible for the education of the child”—
is much more relevant.
My noble friend Lord Storey will be proposing Amendment 103, but I recognise the value of a unique pupil number in ensuring that children can be identified as being secure and educated.
Amendment 106 reflects the concerns of home educators that all sorts of irrelevant information will be requested of them, so inserting “relevance” is important. Again, this follows on from some of the words of my noble friend Lady Brinton. This is also reflected in Amendment 107, where what the local authority may “consider appropriate” may not be universally appropriate. We do not need those two lines.
In Amendment 110, there is concern about the register being published, with too much information being put into the public domain. We want “publication” to be deleted, because this is not necessary.
Amendments 113 and 114 would both insert “reasonably”. Once again, the concern for all sorts of information to be requested and recorded surely needs justifying in some way.
My Lords, I am going to speak briefly as well, for several reasons: first, because I want to get home tonight; secondly, because I am cold; and, thirdly, because I quite agree that we do not want a terrible day on Wednesday.
Part of the fallacy on this children not in school register is the idea that local authorities do not already have the information about children who are not in school, but that is not true. For the most invisible children, who have had no contact with any service at all, of course it might apply; otherwise, the truth is that local authorities have a great deal of information about almost every child, whether they attend a school or not. Instead of adding yet more data collection, there should be an overhaul of how local authorities collect and process this data, and perhaps some sort of universality about it. That overhaul should be made in a code of practice, as set out in my Amendment 171S.
I have three other amendments in this group, which are basically probing because I feel that the legislation just does not have the detail that we need to understand exactly what it is going to do. Turning to the new registration requirements, I think the Bill really ought to be clearer about what information must be provided by home-educating parents to the local authority. We are left at the moment with “other information”, which leaves a large void of worry for the parents who will have to provide this information, which could be very probing and intrusive. I would much rather see such broad wording removed altogether or made subject to being necessary and in the child’s best interests. This group contains a range of possible ways forward, but the general gist is that the Minister must convince your Lordships’ House that any of this intrusive bureaucracy is needed in the first place.
My Lords, I rise to speak to six amendments standing in my name. Amendment 101 removes from the register any requirement to record the means by which a child is being educated—something that ought to be discretionary on the parents. It replaces it with a less intrusive requirement to record only those details that demonstrate that the child is receiving a suitable education in accordance with the existing duty on parents to secure compulsory education for their child or children.
Amendment 105 curbs the local authorities’ proposed power to contain within the register
“any other information that may be prescribed”—
it is very broad and open to abuse—solely to instances where the safeguarding of the child is a concern. Surely that is the point.
Amendment 108 removes the wide-ranging power for local authorities to collect any other data they consider appropriate. Again, this is a highly undefined power that could be used to target individuals with protected characteristics, and it makes the state ever more intrusive. The amendment replaces this new subsection with a more clearly defined power permitting local authorities to collect special category data—such as ethnic origin, philosophical beliefs and sexual orientation—only in cases where the safeguarding of the child is concerned.
Amendments 111 and 112 ensure that parents are properly informed about the data collected: how it will be stored, shared, published, and when it will be deleted. These amendments are complementary to the amendments tabled by the noble Baroness, Lady Whitaker, requiring the Secretary of State to introduce regulations related to the not in school register, which I welcome.
Finally, Amendment 127 safeguards any data collected by local authorities when directed by the Secretary of State to provide information on the register. This is done by requiring that all data is either aggregated or anonymised unless there is sufficient reason for the Secretary of State to request information relating to an individual child, the sufficient reasons listed being safeguarding concerns or issues of public safety and criminality.
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I suspect the reason is to allow local authorities to collect information as set out by Amendment 102, in the names of the noble Lord, Lord Storey, and the noble Baroness, Lady Brinton. Although I do not oppose this amendment, on the principle that the parents retain the discretion and freedom of conscience to home educate their child, and that the state has no right to inquire as to their specific reasons, at least these noble Lords are honest as to the sort of data that they wish to contain within the register.
The Government appear to be hiding behind a discretion placed on the local authority to decide what information is appropriate. Amendments 105 and 108 would set fair boundaries on what information is circumstantially, rather than unilaterally, appropriate to collect. Furthermore, Amendments 111 and 112 would add additional safeguards to any Secretary of State’s regulations so that parents can feel confident that the data contained in the register is secure, respects privacy and is subject to the proper consent of the data subject where sharing and publication are concerned.
Similarly, why do Her Majesty’s Government believe that the Secretary of State has the absolute right to access information relating to an individual child without providing a just reason? This is highly sensitive data, and the Secretary of State ought to be able to provide a suitable reason to access information relating to an individual child. This would be remedied by Amendment 127, which requires the Secretary of State to have a clearly defined reason when accessing individual data from the register. Without this requirement, the state could essentially snoop on parents without providing any justification for doing so.
I remain concerned by the idea that local authorities can collect
“such details of the means by which the child is being educated”.
The “means” by which a child is being educated is only one degree away from requiring the actual content of what a child is being taught. However, even the idea of the “means” implies that there is a correct means and an incorrect means—correct content and incorrect content. In fact, the way a child learns can vary, and it strikes me that the parents are best placed to decide how a child needs to be educated. In my opinion, as set out in Amendment 101, all that needs to be proved is that
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I now turn to data. I thank the noble Lord, Lord Lucas, for proposing how we group some of our discussions on Part 3 but, inevitably, data seems to be running through every group. In both previous groups, other Peers spoke about data issues. I want to go back to the principle of why the Government want to publish this data.
I do not think any of us disagrees that it should be collected, but my concern is that the phrase I seem to recall being used on the day the Secretary of State launched the idea of attendance orders and the register was “similar to the electoral register”, but it does not exactly say in the Bill what will be published; nor does it say who will have access to this highly sensitive and personal data. I ask the Minister: is there any other form of public register in this country that lists the names and addresses of children or their parents? Is that information available? The Bill talks about how long the data needs to be held and, from what I can see, it will be held for long after children have left the school system. If data is held, it should be deleted once the child reaches 18, unless that is because the Government want to track their future lives. If that is the case, Parliament needs to know.
The Minister may be somewhat frustrated that noble Lords are proposing to increase the data collected, but we want to ensure that the collection is of the appropriate data best to help the children, as we have discussed on previous groups. I want reassurance on exactly what will be published. In my view, only pseudonymised data should be published, and that at local authority level. Otherwise, with a very small number of children on the register, it will be all too easy to backtrack and find out where they live. It is not appropriate for families’ private information to be published and, as I said on the previous group, a high percentage of children out of school have SEND, are on free school meals or are from black and ethnic minority backgrounds.
The Bill says in Clause 48, in new Section 436C(2):
“A register under section 436B may also contain any other information the local authority consider appropriate.”
New Section 436C(3) states:
“Regulations may, in relation to a register under section 436B, make provision about … (c) access to and publication of the register”.
We keep saying, on different parts of the Bill, that it is not ready to be enacted, is not going to work and is not fit for purpose. It seems completely inappropriate for the House to approve this part of the Bill without any notion of what personal information may be included or what will be published, or who will have access to that information. These are Henry VIII powers gone mad. As long as only the relevant staff, who will have to comply with GDPR, will see the raw data, a child’s personal information can be collected. Can the Minister reassure me that this is the case and, if it is not and is as printed in the Bill at the moment, can she please provide the House with a justification for why the Government are taking these very strong steps?
The home educators are very concerned about the Bill. They have sent me rafts of material, which they consolidated into amendments. I have tried to reflect this. We are naturally concerned about those who claim to home educate but are using it as a cover to abuse, indoctrinate or otherwise do damage to children. However, we are also aware of the amazing work that most home educators do and wish to ensure that they are not unduly disadvantaged by the Bill.
At this stage, these are probing amendments. However, they reflect a number of serious concerns that many of us have about the danger that this Bill poses to home educators and the right they have to decide on a suitable education for their child. I do not oppose, in principle, a register containing information about home-schooled children in a local authority’s area. What concerns me is that the implementation of such a register as it exists within the Bill poses an attack on the principles of a free society where parents retain the discretion to educate their child in accordance with their own values. Without meaningful safeguards, this register could be the thin end of a slippery wedge resulting in Ofsted in the home: parents being mandated to teach specific things in a specific way, or being directed by law to send their children to school to receive a particular type of education.
After tabling these amendments, I decided to try and explore the rationale between the wide-ranging powers they sought to give to local authorities. I presumed there would be a vast array of evidence of why we desperately needed to have the collection of all this information. Well, the House of Lords Library kindly prepared a briefing at my request. The Government’s guidance from April 2019 stated that there was
“no proven correlation between home education and safeguarding risk.”
Furthermore, the Library was unable to provide any information on the exam success rates of children receiving an elective home education. However, from a cursory glance online, there is quite a lot of evidence to strongly suggest that children receiving EHE outperformed their counterparts in state education, so it is entirely reasonable to ask the Government why they believe local authorities should have the right to collect highly sensitive data pertaining to things that are not necessarily relevant to the child’s education. A register simply to track the number of home-educated children, at its core, is a sensible proposal. Likewise, there may be understandable instances where information beyond that needed just to register the child is required, but surely this should be the exception not the rule.
Her Majesty’s Government need to provide the rationale behind this proposal to give local authorities the right to collect to contain “any other information” they consider appropriate. This must be more specific so that there exists a clear legal boundary determining what information a local authority can collect, and for what specific reasons. Currently, this broad ambiguity allows local authorities to request entirely inappropriate special category data without good reason.