The Scottish Home Education Forum has published a new piece of research in collaboration with Home Education Scotland, focusing on Local Authorities’ data protection policies and practices in relation to the withdrawal of children from school for elective home education.
Read the full report:
Taking Local Authorities to Task: An investigation and critique of Local Authorities’ data protection policies and practices in relation to the withdrawal of children from school for elective home education in Scotland
Due to the increasing volume of serious data-related complaints being reported by our forum members, we felt that closer scrutiny of LAs’ data processing activities was warranted to further inform the Scottish Government’s upcoming review of the home education statutory guidance.
We remain especially concerned about an inherently discriminatory legal anomaly in the Education (Scotland) Act 1980, whereby parents require council consent to withdraw their children from school unless one of several exceptions applies. Although such consent may not be unreasonably withheld, and statutory guidance mandates a maximum timescale of six weeks to complete the process, some LAs have shamelessly exploited the anomaly to wilfully obstruct parental choice.
Taking Local Authorities to Task expands on one of 16 recommendations from our Home Truths report (published in March 2020) that highlighted intrusive and unnecessary data collection and sharing by LAs when parents elect to withdraw their children from state schools for home education.
Since the provision of education is a parental function and parents are the legally recognised arbiters of their children’s best interests, the guidance must expressly prohibit councils from routinely gathering and sharing families’ personal data for the purpose of processing withdrawal requests. It should similarly prohibit councils from making withdrawal consent conditional upon parents and young people ceding their Article 8 and data protection rights, and the legal intervention threshold should be re-stated as ‘risk of significant harm’.
Drawing on data from freedom of information requests to all 32 Scottish councils and anecdotal experiences of our forum members, our report analyses Local Authorities’ data processing activities, some of which were found to exceed what is permitted in law.
Indeed disproportionate interference with Article 8 rights appeared to be integral to many councils’ policies, despite there being no lawful basis for such intrusion and no adequate safeguards to prevent arbitrary over-reach.
Home educators’ data subject access requests had already revealed catalogues of unlawfully obtained information, jaw-dropping factual errors, professional bias, hearsay and a culture of secrecy and contempt for parents who object to infringements of their own and their children’s rights
The current home education guidance has been in place since 2008 and is scheduled for review this year. The legal landscape has evolved considerably over the past 12 years, with human rights, data protection and equality legislation increasingly impacting upon public policy and the delivery of education and children’s services. Landmark legal judgments have meanwhile provided clarity on key principles, including upholding the long-established threshold for interference with Article 8 rights.
In anticipation of incorporation into Scots law of the UNCRC, we believe much greater care needs to be taken to protect children from arbitrary interference with Convention rights in their entirety, including Article 16. It is morally wrong that home educated children and young people should have their rights infringed on a routine basis by public service providers that are hostile to home education, and that they should receive less favourable treatment from those tasked with upholding these rights, including the ICO and Children’s Commissioner.
Given such ignorance of the law, we wonder what hope there is for UNCRC incorporation when the self-defined, rights-based, immovable object that is the Convention meets the state outcomes-driven, irresistible force that is GIRFEC?
Having discussed possible resolutions with colleagues with expertise in data protection and human rights law, we believe that LAs should be strongly urged to adopt ‘model’ guidance that includes a detailed explanation of how it fits into the overarching legislative framework. As well as protecting data subjects’ interests, this would afford greater protection from legal challenges that may become more likely now that group action is available in Scotland.
We very much hope that the deep-rooted prejudices and problems we have identified at council level will be fully addressed in the upcoming review of the home education guidance, data protection being one of the key areas of concern, and that our research will usefully contribute to the process.