Higher Education and Research Act 2017 (Cooperation and Information Sharing) Regulations 2018

Lord Adonis Excerpts

Tuesday 24th July 2018 Lords Chamber

[Lord Adonis (Lab)]

My Lords, I agree with almost every word that the noble Lord, Lord Lucas, has said. My noble friend Lord Watson is to be commended for pursuing this issue with terrier-like commitment. Having now read the debates in the House of Commons, I can say that the gravity of the issues is extremely serious. My one point of difference with the noble Lord, Lord Lucas, is that he said we should learn lessons for the future. We are a Parliament and these are regulations going through Parliament. If we are deeply unhappy with them, on something as fundamental as the sharing of individuals’ data, my view is that we should not agree the regulations. The regulations should be redrafted and the Government should be required to resubmit them, and we should not pass them until they have gone through the process again of being examined by the Delegated Powers and Regulatory Reform Committee and we are satisfied that there is no significant invasion of people’s individual liberty taking place.

I cannot think of a good reason why we would not do that, except for the fact that we are always steamrollered in these things. We are debating this in what may be—I should not give away my negotiating position—the final moments of the sitting of the House before the summer. But it need not be like that. I do not know whether my noble friend Lord Watson is thinking of pressing this to a vote, but there is a very strong case for him to do so—not just because of the gravity of the issues at stake but to send a very clear message to the Government that we are not prepared as a Parliament to be treated like this when we are representing the people on something as fundamental as data.

The issues that the noble Lord raised are extremely serious. Pearson is the largest single commercial education provider in the country, and these regulations give the Government unfettered power to share data with it. The explanation given by the Minister for Higher Education in the House of Commons was that it would be in respect of HNDs and HNCs where it was believed that illegality was taking place. But that is not codified anywhere in the regulations. As the noble Lord, Lord Lucas, said, the data-sharing agreement is not published, and I understand that it is not even finalised yet—although perhaps the Minister could tell us that in his remarks. That is a completely unsatisfactory situation.

Pearson has huge potential commercial interests in this information. What guarantees do the Government have about Chinese walls operating inside Pearson? What guarantees is he in a position to give to Parliament for us to give to students that their data will not be shared with an organisation that is then going to start trying to sell them other services or use it to target them for promotional activities—or any range of activities that could take place under this?

On sharing, the Minister for Higher Education in the other place said:

“On students’ right to know”—


this is where students will actually be informed that their data is being shared with other bodies, so it is about whether they even know, let alone consent—

“the OFS will tell them before it shares data, where appropriate”.—[Official Report, Commons, 2/7/18; col. 10.]

What does “where appropriate” mean? This is the crucial thing. Where would it conceivably be appropriate for the Office for Students not to consult students on the sharing of their data with other bodies? That includes public sector bodies. There is big concern about how the Department for Education has been sharing information with the immigration control agencies, which I am informed has apparently been part of the hostile environment. This information has been shared in respect of school governors and, indeed, children, from other databases held in the Department for Education. So it is absolutely essential that students know where their data is being shared. My own view—and I do not think that this is too demanding—is that they should be required to give their consent to the sharing of that information. I see very big scandals coming down the line if that does not take place.

I have two other points. Could the noble Viscount tell the House why these regulations took effect before they were approved by Parliament? I understand that it was because it was done under the negative procedure. However, commitments were given in debates during the passage of what the Higher Education and Research Bill, which many of us spent many hours taking part in, that because of the significance of the issues at stake here, this would be done under the affirmative procedure. I see all kinds of precedents for this on the raft of regulations that will come our way when the noble Lord, Lord Callanan, gets going on transposing the European legislation into the British statute book. If the procedures that have taken place on these three regulations are replicated elsewhere, there will be major breaches of parliamentary oversight.

It is also immensely concerning that student bodies, including the National Union of Students, were not consulted in the construction of these regulations. That became clear in the debate in the House of Commons. The Government tried to elide that fact by saying that they are in regular consultation with them—but they were not consulted. The National Union of Students has formally protested to the Government about the fact that it was not consulted on these data-sharing regulations, which will have an immense impact on students and young people.

This is a sorry tale. Every word the noble Lord, Lord Lucas, and my noble friend Lord Watson said is valid in this case. I do not believe that Parliament should consent to these regulations in their current form. A major scandal could come down the line from them, and if my noble friend is minded to push this matter to a vote, I shall certainly vote with him.

--- Later in debate ---

[Viscount Younger of Leckie]

They have gone through the scrutiny procedure, as mentioned.

Let me continue. These regulations and the enabling primary legislation provide greater protection, scrutiny and control over information sharing than before. The regulations replicate, and in some cases improve on, the arrangements that HEFCE, OFFA and the DfE had in place for sharing information with other bodies. As HEFCE’s and OFFA’s enabling legislation did not place controls around co-operation and information sharing in the same way as the Higher Education and Research Act 2017 does for the OfS, the legal framework around information sharing has actually been strengthened. The parliamentary process for the regulations, including this very debate, also means that there is more scrutiny and oversight of the information sharing than before.

I should now like to address the concerns raised by the noble Lord, Lord Watson, in turn, starting with his question about the consultation with UCAS and universities, and, in particular, students’ concerns regarding access to their data. As the noble Lord may know, officials and Ministers have regular meetings and interactions with universities, and they work closely with UCAS. On student concerns regarding access to their data, I reiterate that personal data would be shared only if there were serious concerns and if it were necessary to share that data.

[Lord Adonis]

The noble Viscount always uses these weasel words. He says, “if it was necessary to share that data”. What does that mean? In what circumstances would it be necessary to share that data?

[Viscount Younger of Leckie]

I think that it would be wise if I continued with my remarks and then, if there are further concerns, I shall be happy to listen.

First, the noble Lord, Lord Watson, referred to the “single commercial provider” within the regulations, which is Pearson Education Ltd. To reassure him and the noble Baroness, Lady Garden, I emphasise that Pearson is included in these regulations solely in its capacity as the awarding body for HND and HNC qualifications. This is in the same way as other awarding bodies have been included in the regulations—namely, the Scottish Qualifications Authority, Gateway Qualifications Company Ltd and the Vocational Training Charitable Trust.

The OfS would share with Pearson only information that related to the provision of HNDs and HNCs. For example, as happens now between the DfE and Pearson, the OfS might wish to alert Pearson to an issue around the quality of this provision or suspicions of wrongdoing relating to HND or HNC provision. This sharing would be done in the interests of students and the taxpayer. Any data sharing would be underpinned by a data-sharing agreement stating that Pearson could not use that data for any other purposes. This is just one of a range of strong safeguards and protections that will be in place, as I will set out shortly.

The noble Lord, Lord Watson, raised a question about Sir Michael Barber and his potential conflict of interest. There are already information-sharing agreements between the DfE and Pearson. Sir Michael Barber no longer works for Pearson and, in any case, he was not involved in the drafting of the regulations. Therefore, I reassure the noble Lord that there really is no conflict of interest. In addition, if it emerged in the future that the OfS wished to share information or co-operate with any other organisation not currently included in these regulations, and this was to fulfil a function of that other body, I make it clear that this would be possible only by amending the regulations.

The noble Lord, Lord Watson, and my noble friend Lord Lucas asked why Pearson is included and whether awarding the HNC and HND makes it unique. They also asked about transparency surrounding what they can do with the data. I reiterate that Pearson is included only because it owns, designs and awards HNDs and HNCs. The collaboration agreement with Pearson will be published—there is transparency. Data-sharing agreements will not be published, as they may contain commercially confidential information about the circumstances that have led to the concerns that are being shared with the other party.

The noble Lord, Lord Watson, asked whether Pearson can sell on data. The answer is: absolutely not. The information sharing will be underpinned by data-sharing agreements which will specify the purposes of the data sharing, and these purposes will not include selling data. If Pearson did so, it would be in breach of the data-sharing agreement and subject to sanctions by the Information Commissioner—a serious matter.

The noble Lord, Lord Watson, asked about parliamentary scrutiny, and I would like to add to the words that I used. The regulations were scrutinised by the JCSI before they came into force, and there was a debate in the Commons in Committee on this very matter. The inclusion of any new body in the regulations would therefore be subject to the same parliamentary scrutiny and oversight as these regulations have received.

Secondly, the noble Lord, Lord Watson, was concerned about the sharing of students’ confidential data. Data privacy is a particularly pertinent topic in the current climate, and this is precisely why the Government have strengthened the legal framework underpinning data sharing by the OfS compared to the previous regime. I emphasise, however, that the main purpose of these regulations is to enable information sharing at a provider or course level. Personal data would be shared only if there were serious concerns—for example, around fraud or malpractice—and there was a specific need to share personal data to investigate a specific issue.

The noble Lord, Lord Watson, also raised concerns that students’ confidential information will be shared without the consent of those to whom it refers. I reassure noble Lords that any data sharing will be subject to data protection legislation. While consent is one lawful basis on which information may be shared, there are other bases for data sharing; the circumstances will dictate which is most appropriate. The OfS will always seek consent where it is appropriate to do so. However, where data sharing is to investigate wrongdoing or fraud, for example, and seeking consent would jeopardise the investigation, the OfS may rely on another lawful basis for information sharing.

In addition, I reassure noble Lords that these regulations do not oblige the OfS to share any information or to co-operate with any of the bodies in the regulations, including Pearson. They simply make this possible where appropriate. It will be for the OfS, or in some cases the Secretary of State, to decide when to do this, and this will be decided in the context of the general duties and functions of the OfS as set out in primary legislation.

I would like to go further. I reassure all noble Lords that there will be strong safeguards for any data sharing that is carried out with all bodies included in the regulations, including Pearson. For example, any information sharing will be subject to strict data protection laws governing its use, as stipulated by the primary legislation. These regulations do nothing to undermine data protection law. The OfS will also publish its collaboration agreements with other bodies online, including stating where data sharing agreements are in place.

It might happen, for example, that the OfS needs to share information with another body as part of a joint investigation. In this case, the OfS would also create a bespoke data sharing agreement. This agreement would state what data will be shared, with whom and why, on what legal basis, and how it will be processed and kept secure. This would also set out individuals’ rights in relation to their data. The OfS would only ever share data with precisely who needed to see it and only ever precisely what they needed to see to resolve the issue. A data sharing agreement is binding: if any organisation breaches this, the OfS as the data controller would stop this arrangement and, where appropriate, inform the Information Commissioner, who could then take action. Make no mistake: this would apply to every organisation in the regulations, and Pearson would be no exception to this.

I now turn to the final point from the noble Lord, Lord Watson, in which he called on Her Majesty’s Government to carry out a privacy impact assessment on the regulations. I thank the noble Lord for raising this point, because data privacy impact assessments are indeed a useful tool. Under GDPR, however, the Government are not obliged to conduct such an assessment. Furthermore, it would not be appropriate to do so. While the Government, in writing these enabling regulations, have identified the overall situations and reasons where the OfS may wish to share information, the need for a data privacy impact assessment should properly be considered by the organisation that will be sharing the data, once the specifics are known. Much of the data sharing would be in response to emerging concerns: for example, where there are suspicions of wrongdoing. It is only at this point that the nature and extent of privacy risks can be properly assessed and fully effective solutions put in place. The OfS is aware of the sensitivities around the sharing of personal data and takes its responsibilities to safeguard personal data extremely seriously. It will consider whether a data privacy impact assessment is needed, and will carry this out where appropriate, before sharing information that could impact on personal privacy.

I hope that, having put a lot of emphasis on these safeguards, I have reassured the House that data sharing—in particular with non-government bodies, including Pearson—will be undertaken in an appropriate way and for the right purpose, with strong protections in place.