Education (Scotland) Bill: data protection impact assessment

2. Introductory information

2.1 Summary of proposal

The objectives of the Bill are to provide the legal underpinning to support the design and delivery of a national organisational infrastructure for education in Scotland that more effectively supports the system, to deliver the vision for education in Scotland.

The Bill is in two substantive parts. Part one establishes a new qualifications body, to be known as Qualifications Scotland, to replace the Scottish Qualifications Authority (SQA). It will be set up as a Non-departmental Public Body (NDPB), including appropriate governance arrangements and statutory functions. As an operationally independent organisation, the provisions are primarily enabling ones that set the governance and structural arrangements for how Qualifications Scotland will be able to operate.

Part two establishes the office of HM Chief Inspector of Education in Scotland. The statutory functions will be conferred on the Chief Inspector and the Chief Inspector will lead a new independent education inspectorate, to take forward the education inspection functions that currently sit within Education Scotland. The Bill will set out the governance arrangements and statutory functions necessary in relation to the full range of educational establishments and services currently inspected, from early years to adult learning.

2.2 Description of the personal data involved

Please also specify if this personal data will be special category data, or relate to criminal convictions or offences

The Bill does not make provision to collect any additional personal data or special category data. The work of the Digital Pathfinder thematic of the education reform programme includes analysis of the data collected at present by the SQA and Education Scotland. The outcome of this may suggest additional data is collected by the new bodies or shared to enhance the learner and end user experience. There is no policy intention to enforce any changes via legislation.

The New Qualifications Body

The Education (Scotland) Act 1996 established the Scottish Qualifications Authority (SQA) which saw the creation of a national awarding body responsible for development, delivery, assessment and awarding of all types of qualifications besides university degrees. It also made the SQA the regulator of qualifications through its accreditation of other awarding bodies and their qualifications based in Scotland, and from other jurisdictions providing qualifications in Scotland.

The new qualifications body will exercise functions similar to those currently undertaken by the Scottish Qualifications Authority which will involve the processing of personal data including that relating to:-

• Candidates for qualifications and their parents or guardians (where relevant);
• Employees and ex-employees of SQA and predecessor bodies;
• Agency workers and consultants (current and former);
• Applicants for SQA positions, appointee roles or other positions (successful and unsuccessful);
• Other workers – temporary, short-term and voluntary work placements;
• Individuals working for their suppliers, partners or in centres:
• Members of the public who engage with the body e.g. FOI requests and other enquiries.

Special category personal data is likely to be processed in relation to the above such as making adjustments for learners with disabilities and other additional support needs in assessment and other arrangements for qualifications.

Office of HM Chief Inspector of Education

HM Inspectors have evaluated the quality of education in Scotland, initially in schools, and subsequently in a variety of other educational settings, for more than 150 years. Following the Scotland Act 1998, the Inspectorate was made an Executive Agency of the Scottish Government in 2001 and HM Inspectors were answerable to the Scottish Ministers for the running of the Inspectorate and the whole inspection system in Scotland.

Since June 2011, HM Inspectors have been part of Education Scotland as the lead public body for assurance and education improvement in Scotland and a key partner in helping achieve the Scottish Government's vision of excellence and equity.

Inspection serves to provide assurance and public accountability to stakeholders about the quality of education by carrying out individual establishment/service level inspections and conducting national thematic inspections on specific aspects of the educational system. It also promotes continuous improvement and builds capacity for improvement by identifying and sharing effective practice and informs the development of educational policy and practice by providing independent, professional evidence-based advice. Education Scotland process a range of personal information concerning: Local Authority schools, independent schools: early years establishments; higher and further education establishments; Scottish education partners; employees; suppliers; and service providers. This will include names, addresses and possibly information relating to a child/young person or adult’s disabilities.

The intention is to remove the inspection function from Education Scotland and create an independent inspectorate. The Bill will establish the office of HM Chief Inspector of Education in Scotland. The Chief Inspector will separately be designated as an office-holder in the Scottish Administration. The statutory functions undertaken by Education Scotland in respect of inspections will be conferred on the Chief Inspector of Education in Scotland.

Special category personal data that may be processed given the scope of the new education inspectorate’s functions will include entering and gathering information from a range of educational establishments and services, including information relating to individuals with additional support needs. It is assumed that the functions of the Chief Inspector will process some special category personal data as is the case currently by Education Scotland within which the inspection function currently sits.

2.3 Will the processing of personal data as a result of the proposal have an impact on decisions made about individuals, groups or categories of persons?

If so, please explain the potential or actual impact. This may include, for example, a denial of an individual’s rights, or use of social profiling to inform policy making.

Yes.

The Bill will result in the transfer of the functions currently undertaken by the SQA to a new qualifications body. This consists of handling the personal data of those taking qualifications. As the delivery of qualifications functions of the new body will be the same as those currently carried out by the SQA, the impact on the processing of this data will be minimal.

This is also the likely impact in respect of the removal of the inspection function from Education Scotland to the new independent inspectorate. This consists of handling and processing of personal data contained within the records held by educational establishments and services and such types of information shared during an inspection of an establishment or service overseen by the HM Chief Inspector of Education in Scotland.

2.4 Necessity, proportionality and justification

What issue/public need is the proposal seeking to address?

What policy objective is the legislation trying to meet?

Were less invasive or more privacy-friendly options considered, and if so why were these options rejected?

Are there any potential unintended consequences with regards to the provisions e.g., would the provisions result in unintended surveillance or profiling?

Have you considered whether the intended processing will have appropriate safeguards in place? If so briefly explain the nature of those safeguards and how any safeguards ensure the balance of any competing interests in relation to the processing.

Legislating - The Scottish Government wants to ensure Scotland continues to have a world class education system that remains relevant, is based on the vision of excellence and equity in education and supports learners to fulfil their potential through the development of well-rounded skills and knowledge that give them the best opportunity to succeed and contribute to Scotland’s society and economy. These ambitions will be realised and supported with a new national qualifications body leading on education qualifications and the establishment of an independent inspectorate.

Data relating to the functions set out in the Bill is already collected and the appropriate safeguards are in place. The work of the Digital Pathfinder thematic of the education reform programme includes analysis of the data collected at present by the SQA and Education Scotland. The outcome of this may suggest additional data is collected by the new bodies or shared to enhance the learner and end user experience. There is no policy intention to enforce any changes via legislation.

Arrangements will be made for the transfer of the data controller responsibilities from the SQA to the new qualifications body and a new data controller will have to be established to support the new independent inspectorate, along with any new data processing roles.

The transition from SQA to NQB won’t involve the transfer of any data; there will be no data migration from system A to system B as a function of the legislation. For the new inspectorate care will be needed around the sharing of and the appropriate arrangements needed to be in place for the handing over of data from the existing bodies to the new bodies. There will also be a necessity to ensure that the new bodies have the skills, expertise, and resources to cover all aspects of data protection compliance. That includes arranging appropriate controls for data leaving the UK. The ICO guidance guide to international transfers should be adhered to.

In going forward it would be the responsibility of the new qualifications body and the Chief Inspector in discharging their functions to manage and comply with legislative requirements relevant to the handling of data.

2.5 Will the implementation be accompanied by guidance or by an associated Code of Conduct?

If the latter, what will be the status of the Code of Conduct? (statutory or voluntary?

No. The administrative transitional arrangements to establish the new qualifications body and independent inspectorate will be managed through the Education Reform Programme.