Name a famous Kevin… Keegan? Kline? Costner?

How about Kevin Brennan..?

Who?

Kevin Brennan, the MP for Cardiff West and current Parliamentary Under Secretary of State at the Department of Children Families and Schools…

No? Never heard of him? Well sit back and relax because you’re about to…and more to the point you’re about to find out how may have single-handedly undermined the legal justification for a flagship government policy, the ContactPoint children’s database.

This requires some explanation, so lets start at the beginning by quoting Lord Hunt of Kings Heath, speaking for the government during last weeks’ House of Lords debate on the Criminal Justice and Immigration Bill:

Blasphemy approaches, but this is an important discussion which I am sure that we will come back to at Report. I understand exactly what the noble Earls, Lord Onslow and Lord Northesk, are driving at when they raise concerns about where information is going and the impact of information sharing. They will also expect me to say that there are many advantages to that sharing of information, both in the benefit that we, as individuals, get from a joined-up approach to services, for instance, and in the protection of the public from criminal activity. The noble Earl, Lord Northesk, referred to legislation and information kept on children. I refer him to the tragic death of Victoria Climbié and the report that came from it. If I recall, it showed that there were eight or nine different agencies involved and that if only they had shared some information, they may have saved her from the tragic consequences. There is a balance and there are many advantages. Equally, I accept that we cannot have a cavalier approach and that we have to have rigorous safeguards in place that assure the public that information is shared only where necessary.

The origins of the ContactPoint and other children’s databases under development by the government lie in the tragic case of Victoria Climbié and the inquiry that followed, which was heading by Lord Laming, an appointment that was not without its share of controversy at the time in view. Laming had been director of social services at Hertfordshire Country Council in 1990, during which period its handling of a child abuse drew heavy criticism resulting, in 1995, in a finding of maladministration with injustice by the Local Government Ombudsman.

Since the publication of the Laming report in January 2003 – actually well before that if one looks at the political rhetoric surrounding the case – the name of Victoria Climbié has served politicians and administrators as the ‘debate killer’ of choice whenever questions are raised about the legality and advisability of constructing large-scale national childrens’ databases, as can clearly be seen in Hunt’s comments (cited above) in which he claims to understand the concerns raised by Lords Onslow and Northesk only then to dismiss those concerns with an airy waft of the name ‘Victoria Climbié’ as if to indicate that the name alone is sufficient justification for a refusal to engage with and address the substance of issues raised by other peers.

Having brought up the case of Climbié, Hunt goes on to toss in the government’s favorite shibboleth about the content of the Laming report:

If I recall, it showed that there were eight or nine different agencies involved and that if only they had shared some information, they may have saved her from the tragic consequences.

Referring back to the Laming report, itself, we find that Hunt’s comment tells only part of the story:

1.16 But Victoria’s case was altogether different. Victoria was not hidden away. It is deeply disturbing that during the days and months following her initial contact with Ealing Housing Department’s Homeless Persons’ Unit, Victoria was known to no less than two further housing authorities, four social services departments, two child protection teams of the Metropolitan Police Service (MPS), a specialist centre managed by the NSPCC, and she was admitted to two different hospitals because of suspected deliberate harm. The dreadful reality was that these services knew little or nothing more about Victoria at the end of the process than they did when she was first referred to Ealing Social Services by the Homeless Persons’ Unit in April 1999. The final irony was that Haringey Social Services formally closed Victoria’s case on the very day she died. The extent of the failure to protect Victoria was lamentable. Tragically, it required nothing more than basic good practice being put into operation. This never happened.

1.17 In his opening statement to the Inquiry, Neil Garnham QC listed no fewer than 12 key occasions when the relevant services had the opportunity to successfully intervene in the life of Victoria. As evidence to the Inquiry unfolded, several other opportunities emerged. Not one of these required great skill or would have made heavy demands on time to take some form of action. Sometimes it needed nothing more than a manager doing their job by asking pertinent questions or taking the trouble to look in a case file. There can be no excuse for such sloppy and unprofessional performance.

Failures in information sharing certainly played a part in the systemic failures leading to Climbié’s tragic death, as the Laming report goes on to note:

146. However, I was told that the free exchange of information about children and families about whom there are concerns is inhibited by the legislation on data protection and human rights. It appears that, unless a child is deemed to be in need of protection, information cannot be shared between agencies without staff running the risk of contravening this legislation. This has two consequences: either it deters information sharing, or it artificially increases concerns in order that they can be expressed as the need for protection. This is a matter that the Government must address. It is not a matter that can be tackled satisfactorily at local level.

However, as happened in the case of the Soham murders in 2002, failures to adequately retain and share information were not the primary cause of the tragic events that followed, merely another indicator of the systemic failures and lack of professional competence that, in both cases, formed the core of the professional failing which contributed to both cases.

In the case of Victoria Climbié, as in that of the Soham murders, neither the Data Protection Act nor the Human Rights Act should have impeded the various authorities involved in these case in the retention and sharing of data which could, hypothetically, have helped to prevent both tragedies. As Laming correctly observes, ‘It appears that, unless a child is deemed to be in need of protection, information cannot be shared between agencies without staff running the risk of contravening this legislation.’ – and if a child is not in need of protection, or an individual presents no risk to children, so that we cover the situation at Soham, then there is no need to share information. What caused the system to fail in each case was that the various professionals involved in each case; police, social services, medical staff, failed miserably to make the necessary judgement call that would have removed the possibility of HRA/DPA serving as a barrier to information sharing.

Neither the Human Rights Act or the Data Protection Act should have prevented critical information being shared amongst professionals in either case. That it is cited as a barrier to information sharing is, in part, an exercise in making excuses and equally an admission of serious managerial, administrative and cultural failings within the police, social services and across local and central government. What went wrong is simply that the agencies involved assumed that they could get away with treating HRA and DPA as specialism that need only be understood by specialist staff – typically HRA is left to the lawyers while DPA is buried with the IT services department and other staff are provided with the minimum of training in both areas, even where these can have a significant impact on their day-to-day work. What both Acts have in common is that they each set out a collection of principles that require interpretation in order to apply them correctly on a day-to-day basis rather than a simple set of clear guidelines and rules. to work within the framework of either or both Acts requires front-line workers to exercise their own autonomous/semi-autonomous judgement, and give such staff the freedom and responsibility for making of such judgement calls is an anathema to the kind of managerialist, target-driven, micro-management culture that too readily infests our public services these days.

This same managerialist culture has, in addition, led to a significant shift in government policy towards children and children’s services, one that needs also to be understood if one is to appreciate fully why the government is so keen to push ahead with the development of the ContactPoint database, and other children’s databases, and why this has, in turn, both a significant impact on citizen’s rights to privacy and why some of what the government is seeking to put in place is of dubious legality.

Once upon a time, not so very long ago, the overriding concern of children’s social services and the big children’s charities (Barnardos, NSPCC, NCH, etc.), who are willing partners in much of this, was that of child protection, which as it says, driven the objective of preventing children from coming to harm. Since the introduction of the Children’s Act 2004 and the ‘Every Child Matters’ strategy, the emphasis amongst policy makers has shifted from considerations of child protection to those of child welfare. The role that the state has assigned to itself has broadened considerably to encompass, and justify state invention in, just about every aspect of children’s development from birth – and arguably before birth given the attention given to women’s behaviour during pregnancy – right through to adulthood. It is this change in policy emphasis, far more than any considerations of child protection or lesson’s derived from the Laming report and/or Bichard Inquiry (pdf) that is driving government policy and the creation of its range of national children’s databases and giving rise to serious concerns about the direction that government is taking and the extent to which it is increasing intruding into the private lives of citizens without their consent, and nowhere more so than in terms of the extent to government appears to think itself justified in compiling profiling information.

The most recent such initiative, which the government is pushing ahead with, despite suspending implementation of ContactPoint pending a review ordering in the wake of HMRC’s loss of the personal details of 25 million child benefit recipients, the disappearance of 6 million learner driver records from data centre in Iowa and the theft of a laptop containing information on 600,000 people who had considered a career in the armed forces, is a national database profiling the educational ‘careers‘ of all school children in England:

All 14-year-old children in England will have their personal details and exam results placed on an electronic database for life under a plan to be announced tomorrow.

Colleges and prospective employers will be able to access students’ records online to check on their qualifications. Under the terms of the scheme all children will keep their individual number throughout their adult lives, The Times has learnt. The database will include details of exclusions and expulsions.

The government’s spin on this new database is that it

…would enable students to build a lifelong record of their educational participation and achievements that can be accessed through the internet. The system would be password protected and would have two points of entry. Students could look up their full records and personal details by using one password. They could then give another password to employers to give them access to a restricted view of the information online.

All of which entails given every child its own ‘Unique Learner Number’ which the government claims will not end up being tied to the National Identity Register – or rather this part of the plan has been ‘shelved for the time being’ even though the original plans for this system, drawn up in 2003, did indicate that it would be linked to NIR.

“At the moment there are no plans for the Unique Learner Number to be used by the ID Card system,” she said. She added that the purpose of the system was to support the education, training and careers guidance of the learner, “not security, taxation or access to government services”.

‘No plans’ we can take to mean ‘we’ll be doing it later, when we think the heat’s off’.

The children’s databases, taken collectively, represent the most despicable and intrusive efforts of this government to reach into the private lives of its citizen’s and dictate to them how they should live their lives – it is a framework for social engineering on the grandest of scales and moreover one in which, from time to time, the government have been entirely unabashed in promoting its intentions, signalling its intention to use this data to profile children and families who it considers to be ‘at risk’ not of causing children to come to harm but simply of not ‘getting with the programme’. If you’re poor and especially if you’re a single parent, if your kid’s a bit overweight or struggling a bit a school or getting into a few scrapes here and there, if you family fits the statistic profile of a family that in the government’s opinion ‘under performs’ then you’ll be flagged up for ‘early intervention’ whether you actually need it or not. Tick enough boxes on the profile and you’ll be tagged as a ‘failing family’ whether that reflects the reality of your family life or not.

I only have to look at my own life to see the inherent dangers and threats in such an approach. I grew up on a council estate, my parents divorced when I was four years old and my early years were more than a bit of struggle – I grew up knowing what its like to be eating beans on toast for 2-3 days before pay day because that’s all we could afford, and seeing my parents go without to put food on the table.

My childhood would have easily fit enough of the profile to bring a bit of ‘early intervention’ down on my family and yet here I am, 11 ‘O’ levels, ‘A’ levels and a university education later as proof that tough start in life doesn’t have to lead to education failure and criminality, which is what the government seems to believe is the inevitable outcome of such an upbringing.

I can say the same for my family as it is today. My son is preparing for his GCSE’s, and looking well set for a clutch of good grades which will take him on to college and then university. My daughter, who’s eight and no less intelligent, lively and articulate that my son was at the same age, has a reading ability of two-three years behind her classmates – although she’s slightly ahead of the game in her numeracy skills – and a personal history which includes a spell of speech therapy and string of assessments for everything from hearing difficulties to an autistic spectrum disorder none of which have succeeded in pinning down – so far – exactly why she struggles with literacy much beyond the assertion that she has some sort of ‘learning difficulty’.

(Personally we suspect that this will come down to dyslexia or a related neuro-linguistic processing problem but getting through the absurd layers of bureaucracy to a diagnosis is proving to be frustrating problematic. The ‘multi-agency’ approach to diagnosis favoured by central and local government as a consummate arse-covering measure – it spreads out the decision-making so no one can be blamed if they get it wrong – is making near impossible to get any kind of serious ‘intervention’, early or otherwise)

Looking at how these databases are shaping up and the intent behind them, it seems obvious that my daughter will be heading for one of the government’s little digital flags against her name, something that if thing go according to the state’s plan, she’ll be forced to carry through into her adult life whether or not any of this will be relevant to who she is in years to come – we certainly hope not and all we actually want from the state is a fucking diagnosis so we can be sure what the problem is and what remedial action we can take – after that we can sort things out for ourselves without the government’s assistance.

My daughter is already looking at playing catch-up through the rest of her school career and may even beyond and yet, as parent I know her to be bright and intelligent – she may struggle with literacy but given information in the form she can process she takes everything in and already shows a marked aptitude for and interest in mathematics and the sciences. Given that we identify the reasons why she struggles with reading and writing and with much hard work, effort and support, we remain optimistic that she will overcome her current problems, even it takes her a bit longer than other kids to get to where she needs to go – at which point we would expect that she should be able to put her past difficulties behind her and get on with her life. And that is what, up to now, she would be able to do… but no longer if the government has its way in creating these databases which will force her to carry her current problems right through into her adult life whether she wishes to or not and irrespective of whether they are relevant to the adult she will be in a few years time.

What concerns me most, as a parent – and what should concern every parent when it comes to these databases – is the extent to which the government in compiling profiling information about our children and compelling them to carry those profiles through into adult life without and regard for the possibility that this may easily prove to be prejudicial to their future lives as adults. We all change over time and nowhere more in making the transition from childhood to adulthood and yet this government seems determined to put in place a series of all-encompassing databases on every single child in England of a kind that will lock them into their past and any problems and failings they may have had as children, whether or not these has any relevance to the person they become as an adult.

Having set out my objections to the government’s policy on Children’s databases, the key question that needs to be asked, and answered, is whether to what extent any of this is legal – much of it is certainly unethical and deeply intrusive, but ethics and law are not the same thing.

Read any of the primary or secondary legislation relating to this databases and what you will see is the standard disclaimer on the government parts which indicates their belief that the legislation is compatible with the Human Rights Act and the Data Protection Act for all that such disclaimers are actually worth when one considers the number of occasions in recent years in which, when such legislation is put to the test, the courts have decided otherwise.

I started out by suggesting that Kevin Brennan may have inadvertently undermine the legal justification for the ContactPoint database and, consequently, need to explain what the database is (and does) in order to explain why.

ContactPoint records only a minimal amount of direct personal information about children as follows:

ContactPoint will only hold the following basic information for all children in England (up until their 18th birthday)

• Name, address, gender, date of birth and a unique identifying number.
• Name and contact details for a child’s parent or carer.
• Contact details for services working with a child: as a minimum, educational setting (e.g. school) and GP practice, but also other services where appropriate.
• A means to indicate whether a practitioner is a lead professional and if they have undertaken an assessment under the Common Assessment Framework.

Those providing a sensitive service (those in the fields of sexual health, mental health and substance abuse) will be required to seek informed, explicit consent before recording their contact details on ContactPoint. Where they are recorded, only an indication of an unspecified service would be visible.

And the same page also, ‘helpfully’ points out what the database will not contain:

ContactPoint will not hold:

• any assessment or case information
• details such as birth weight, exam results, medical records, or diet
• subjective information about a child or their parent

It is a ‘meta-database’, one that contains a minimal amount of personal information but which points its users to the location of other detailed information by way of recording information about the professional services that may have been accessed by a child and their family. As such, it has arguably been designed in such a way as to skirt the provisions of the Data Protection Act by avoiding the inclusion of ‘sensitive personal information’ on the database – the incorporation of which would require explicit consent in many cases – by simply including information which points to where sensitive information is kept. That’s the theory, so far as the government is concerned, as they are confident enough in their belief that they’ve got around DPA and HRA that the statutory instrument which sets up the regulations for ContactPoint explicit waives the common law right of confidentiality.

In short, as a parent you have no say in whether you child is included on this database nor in what information is recorded about them and whether or not there is any reason to maintain such a record about your child is immaterial – if all there is in terms of contact is the details of a child’s school and their GP, the minimum possible for a child about whom there would no ‘concerns’ whatsoever, then that information will be recorded without either your consent, or that of your child should then be old enough to pass the Gillick test of competence.

The government considers that the contents of this database are not ‘sensitive’ in terms of the strict terms set out in law, even though simply by recording a child’s contacts with various professionals, which includes social services, primary health services, probation, youth justice and family courts amongst others, anyone with access to the database can get a very clear picture of a child’s circumstances (and that of their family) and make some highly informed ‘guesses’ or inferences about their situation. Even the attempt to protect information about access to ‘sensitive services’ is a bit of a joke as if any such information does appear on the system then you’ve got a one in three shot at guessing which of the three services (sexual health, mental health and substance abuse) has been accessed and as the system gives the name of the individual who provide the service its a bit of no-brainer to pinpoint the exact service simply by looking that individual up on-line using Google. Think about it here, just how protected is the information about a ‘sensitive service’ if you can look up the name of the practitioner and find out in a matter of minutes that they’re a clinical psychologist specialising in childhood depression – the government may be stupid enough to think they covered themselves, but I’m not that daft and nor should anyone else be.

All this take place without parental consent and the system itself is non-discriminating, in the sense that it, like other children’s databases, will record information about children whether or not there is an explicit reason to do so, and here’s where questions about the legality of the system start to emerge.

The applicable law here article 8 of the European Convention on Human Rights, which is, of course, enacted in UK law in the Human Rights Act, and which comes in two parts:

Everyone has the right to respect for his private and family life, his home and his correspondence.

That’s your central principle – everyone has the right to respect for their private and family life, home and correspondence. But, this is not an absolute right, like that which prohibits the use or torture, but a qualified right, one that can be restricted, limited or overridden under certain specific circumstances, which are set out in the second part of the article:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests 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.

This is straightforward enough. The state cannot interfere with the individual’s right to privacy unless it can justify such interference on any one of a number of specific grounds and legislates specifically for such situations. Some of these grounds go without saying – national security, prevention of crime and disorder, etc. – others require a little more care in interpretation, like the protection of health and morals.

However, the way ECHR and HRA work is that they are enacted as personal rather than constitutional law, in the sense that the courts cannot make a declaration of incompatibility in general terms and on the principle of the law, they can deal only with personal cases on a case-by-case basis, cases which, if successful could, theoretically, result in a general declaration of incompatibility – i.e. that a law is wrong in principle – or, as is more often the case, a qualified declaration of incompatibility, i.e. that specifies that the government’s claim to justification for intrusion in rights of privacy, etc. is valid only is specific circumstances and not a general principle. This is the nub of the case which is currently before the European Court of Human Rights in regards to the retention of DNA profiles by the police in a DNA database – what is being argued in not the police have no right to retain DNA profiles at all, due to this breaching the right of privacy (and a few other rights as well) but that this ability of override the right of privacy is permissible only in specific circumstances relating to individuals whose conduct and behaviour provides the police with a reasonable cause to retain DNA information about them.

If this case is successful then it will set a precedent that has considerable implications for the future development of these children’s databases because it uphold the principle that the state may retain information about children, and individuals generally, only where it can show that it has good cause to do so, i.e. for one of the purposes set out in the second part of article 8 and only then on a case-by-case basis, i.e. it cannot universally and indiscriminately record information in this and other children’s databases about all children without parental consent, it may only do so if it storing information about a child who can reasonably be judged to be somehow ‘at risk’ and in needs of having their rights and freedoms and health or moral protected or where such information may be necessarily retained to assist in the prevention and detection of crime. what the government cannot do is treat all children and families as if their health and morals are automatically risk or treat all children as if they are potential future criminals, it can only retain information where there is evidence to justify the intrusion into personal privacy sufficient to override considerations of consent and confidentiality.

The DNA database, if successful, would set a precedent which opens the door to a judicial review challenging the legality of the children’s databases, at least insofar as the recording in information about children for whom there is no evidence of risk is concerned.

And then, at last, we come back to Kevin Brennan MP and to the contents of this submission, by the Foundation for Information Policy Research, to the Information Commissioner/Ministry of Justice Data Sharing Review, which quotes Brennan as having given this statement, in writing, to a member of the public in reply to a query about the ContactPoint database:

In your letter, you assert the Government is introducing ContactPoint chiefly to prevent another terrible case like that of Victoria Climbié. This is not the case. The chief purpose of ContactPoint is to improve the efficiency of children’s services by freeing up practitioner time.

As the FIPR’s submission quite correctly notes, while the government may be justified in overriding parental consent, and ECHR article 8 rights to privacy, in the interests of child protection – i.e. specifically to prevent a child meeting the same terrible fate as that which befell Victoria Climbié, is is categorically NOT justified in doing so exclusively or primarily in the interests of administrative convenience or efficiency, such considerations being entirely outside the framework of legal grounds under which the government may legitimately limit or override its citizens’ article 8 rights.

Brennan has not contradicted his ministerial colleague, Lord Hunt, who you will recall said only last week that:

The noble Earl, Lord Northesk, referred to legislation and information kept on children. I refer him to the tragic death of Victoria Climbié and the report that came from it. If I recall, it showed that there were eight or nine different agencies involved and that if only they had shared some information, they may have saved her from the tragic consequences.

…clearly implying that it IS the Climbié case and the risk of future cases in the same vein that lies behind the creation of these databases, but it also undermines the government’s entire legal justification for the creation of these databases in the form in which they are being constructed, i.e. as repositories of information about all children and families in England and not simply those for whom the state has justifiable grounds for considering the child(ren) to be at risk.

Having run this past a barrister of my acquaintance and asked their opinion I am reliably informed that unless the European Court of Human Rights hands down an entirely perverse judgement in the ongoing DNA database case and effective consigns article 8 of ECHR to the legislative dustbin then, with that on board and in light of Brennan’s comment and with the right choice of plaintiff – i.e. a child/family whose sole contact with the state and its many practitioners has been entirely routine and which has never given any cause for concern, then there is every prospect of mounting a successful legal challenge – via judicial review – to the indiscriminate and universal scope of these databases and the principle that the state may automatically disregard issues of parental consent, confidentiality and reasonable cause in adding information on every child/family in the UK to these databases…

…and it goes without saying that a successful case would blow a major hole not only in ContactPoint itself, but in the government’s proposed ‘school children’s’ database and in any other universal database it has in the pipeline where it cannot show good legal cause, within the framework of ECHR, for intruding on individual privacy and/or disregarding individual consent.