UK GDPR and data protection

Scottish Government are required to ensure that they fully comply with UK GDPR requirements for the data that has been shared with them from local authorities. Scottish Government published Privacy Notices and a DPIA for the data it requested and holds from local authorities in August 2021. The DPIA sets out how Scottish Government meets these requirements.

Individuals have the right to be informed about the collection and use of their personal data. This is a key transparency requirement under the UK GDPR and includes the right to object to the processing of their personal data. The privacy notices set this out for the data Scottish Government received from local authorities.

Responsibility for ensuring that parents, carers and pupils were suitably informed about the local HWB Census before taking part lies with each local authority. Local authorities were responsible for their own data governance relating to the collection of the data and are required to ensure that they fully comply with UK General Data Protection Regulation (GDPR) requirements. As each local authority is the data controller for their local data collection, they each have their own Privacy Notices and DPIAs which cover the local authority data collection and management. Examples of published local authority DPIAs and privacy notices include Dundee, Falkirk, Moray and Perth and Kinross. These are available from each local authority,

Scottish Government provided local authorities with a set of supporting materials and guidance to assist them with this, further details are in Chapter 4 Approach to data collection.

The purpose for local authority data processing is to meet the duties set out in:

• the Children and Young People (Scotland) Act 2014 which requires local authorities and their relevant health board, in respect of each three year period, prepare a children’s services plan for the area of the local authority.
• The Standards in Scotland’s Schools etc. Act 2000, under which the education authority must carry out the duty with a view to achieving the strategic priorities set out in the National Improvement Framework.
• the Local Government in Scotland Act 2003 states that a local authority has power to do anything which it considers is likely to promote or improve the well-being of its area and persons within that area.

The purpose for Scottish Government data processing is for Ministers to meet the duties set out in:

• the National Health Service (Scotland) Act 1978 (Scottish Ministers have a duty “to promote the improvement of the physical and mental health of the people of Scotland”);
• the Standards in Scotland’s Schools etc. Act 2000 (Scottish Ministers have “to ensure that schools managed by education authorities, grant-aided schools, and hostels provided and maintained by education authorities for pupils, are health-promoting”); and
• the Local Government (Scotland) Act 1973.

Data concerning a person's health or sex life are both special category data under UK GDPR. In order to lawfully process special category data, both a lawful basis under Article 6 of the UK GDPR and a separate condition for processing under Article 9 are required. The lawful basis for local authorities and Scottish Government to process the HWB Census data is Article 6 (1)(e) public task of UK GDPR. The information is used for statistical and research purposes as part of a public task. The condition for processing the HWB Census data is Article 9(2)(j) (j) (archiving, research and statistics). Part 1 of Schedule 1 of the Data Protection Act 2018 states this condition is met if the processing—

(a) is necessary for archiving purposes, scientific or historical research purposes or statistical purposes,

(b) is carried out in accordance with Article 89(1) of the GDPR (as supplemented by section 19), and

(c) is in the public interest.  

Article 9(2)(j) permits processing special category data if “processing is necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) based on Domestic Law which shall be proportionate to the aim pursued, respect the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject”. Article 89(1) states there must be appropriate safeguards in place to protect individuals, and in particular technological and organisational measures to ensure data minimisation. Section 19 of the Data Protection Act (DPA) 2018 contains further safeguards and restrictions. In particular, this means you must:

• be able to demonstrate why you cannot use anonymised data;
• consider whether you could use pseudonymisation to make it more difficult to link the personal data back to specific individuals;
• be able to demonstrate that the processing is not likely to cause substantial damage or distress to individuals;
• not use the data to take any action or make decisions in relation to the individuals concerned (unless you are carrying out approved medical research as defined in section 19(4) of the DPA 2018); and
• consider other appropriate safeguards and security measures.

As the lawful basis under UK GDPR is public task then lawfully consent is not required for processing personal data. However, given the Census is not mandatory (further details in chapter 7.3 Voluntary data collection), and the nature of the topics included, the approach includes notifying parents/carers and pupils of the data collection and providing the option to not take part. Parents/carers and pupils themselves can opt-out or opt-in to taking part, depending on the approach taken by the relevant local authority.  The approach taken to consent to take part in the HWB Census 2021/22 by local authorities is set out in the HWB Census Technical Report Section Background Quality Statement. It is commonplace in data collections that there is a level of non-response.

Collection of Scottish Candidate Number

Since the introduction of individual level data collections in the early/mid 2000s, arrangements were put in place for children and young people to be given a Scottish Candidate Number (SCN) at the point of entry to the Scottish Education System to aide with enhanced statistical and research analysis, including data linkage. Collecting the SCN in education-related statistical collections has been standard practice within the Scottish Government for the past 20 years.

The HWB Census 2021-22 core questionnaires included the collection of SCN. This is primarily to

• reduce the burden on children and young people,
• minimise the data collected,
• to improve data quality,
• to support the use of the HWB Census data through data linkage for Scottish Government and external data users.

Collection of the SCN removed the need for pupils to provide other personal information about themselves. Pupil characteristic data, including a pupil’s sex, date of birth, home postcode (for deprivation analysis), ethnicity and additional support needs is already shared with the Scottish Government as part of the annual Pupil Census. 

By asking pupils to enter their SCN in the HWB Census, local authorities and the Scottish Government can link the HWB Census data with data already held by local authorities (and Scottish Government) in order to attach the characteristics required for statistical analyses. The variables attached for the Scottish Government analysis are set out in the Technical report: Linkage to the Pupil Census. This also means the HWB data can be linked to any dataset that contains the SCN to enable research and analysis (see Chapter 7.2 Data linkage). This can also improve privacy as the HWB datasets do not include personal characteristics, which is held separately.

Time needed to complete the questionnaire has been one of the key considerations in designing and agreeing the core questionnaires – collection of SCN is an important aspect of meeting this constraint as respondents are only asked to enter SCN, rather than a range of questions to collect their characteristic data. Secondly, collection of SCN enables a wide use of the data to meet a range of research needs, through linkage to the Pupil Census and other datasets.

As with any of the questions in the core questionnaire, the decision to ask this (or other equality and socio-economic characteristic data) is the decision of local authorities. Local authorities have responsibilities on the duty of care for their children and young people, and their data collection on children and young people’s health and wellbeing must be consistent with local practices across their wider work.

While the HWB Census sought to collect SCN as part of the HWB Census to help with data linkage for statistical/research purposes, the collection of SCN as part of the HWB Census was a decision for local authorities to make. Fifteen of the 16 local authorities who undertook a HWB Census in 2021/22 collected SCN. 

A Substance Use questionnaire for S4 pupils was developed to collect more detailed information on alcohol, smoking and drug use. The S4 cohort was agreed by the Content Group for inclusion for this questionnaire to allow replication as far as possible questions previously included in SALSUS, which was answered by pupils in S2 and S4. This questionnaire is a separate questionnaire and was anonymous, as it only asked for the pupil’s sex and Scottish Index of Multiple Deprivation (SIMD) to provide some breakdown by characteristic. It did not collect the SCN. This means this substance use data cannot be linked to other data sources but does however provide the information required to measure prevalence consistent with SALSUS. Information on anonymity for the Substance Use questionnaire is included in Chapter 7.4 Respondent confidentiality.

Post-Census Actions: Following engagement with the ICO after the HWB Census was undertaken, concerns were raised about Scottish Governments proposed approach to the use of the SCN for statistics and research purposes. In light of the ICO's recommendations, the Scottish Government has been working to introduce enhanced technical and organisational measures to ensure that any data which contains the SCN and is processed for statistical and research purposes will have a pseudonym created. The SCN and the method of pseudonymisation will be held separately. The HWB Census data used for statistical and research purposes no longer contains the SCN and a pseudonym will now be used to undertake analysis on the HWB census 2021/22 data. These enhanced measures have been agreed with the ICO.

Data linkage

Data linkage is a process which temporarily brings together two or more sets of administrative or survey data from different sources to produce a wealth of information which can be used for research and statistical purposes. This enables better use of data that already exists in Scotland. The findings of research and analysis can then be used to inform policy and service delivery.

As noted above, Scottish Government linked the HWB Census data to the Pupil Census 2021 data to attach characteristic variables for analysis. Information on data linkage to the Pupil Census for Scottish Government analysis of the HWB Census data is available in the Technical Report: Linkage to the Pupil Census.

In Scotland, publicly held data can only be linked:

• if it is in the public interest to do so
• for clearly specified research and statistical purposes
• if data controllers (those responsible for the data) approve the linkage

In addition to this, the data linkage approval process must be open and accountable to the public. Only the minimum amount of data is linked to produce statistics or answer the research question proposed. This reduces any potential risk to privacy by limiting unauthorised sharing of large quantities of data.

Privacy is a major consideration of any data linkage work and the potential benefits of the statistical research must be weighed up in relation to the potential risk of a researcher being able to identify individuals. The HWB Census data is ‘pseudonymised’ before any data linkage for external data users. This means the SCN is replaced with a unique identifier so researchers do not have access to individual SCNs and are not able to identify individual pupils. ‘Pseudonymisation’ of data is a common approach to ensuring privacy is maintained when undertaking data linkage for research and statistical purposes.

HWB Census data will only be linked in order to enable statistical analysis and research. The Scottish Government itself does not have access to any data which contains a pupil’s name or address. Therefore, the Scottish Government is unable to link the pupil’s SCN to other information in order to directly identify any pupil.

Further information on data linkage is available in Scottish Government Data Linkage for Research in Scotland factsheet.

HWB Census data can be requested through the established data access procedures for both linkage and non-linkage projects for statistics and research purposes as detailed in the Scottish Government DPIA. Because of the sensitivities with personal data, and for researchers to access it, they have to satisfy a number of safeguards and approvals as part of the application process. Where evidence is made available it is done so in a way no individual can be identified.

Scottish Government made the data available to external researchers through Administrative Data Research Scotland for statistics and research purposes. Researchers can apply for access to the HWB Census data via the data access process.

Post-Census Actions: While Scottish Government consider this to be a valuable dataset, and having researchers examine the drivers behind some of the high-level results through data linkage, it must give due consideration to the strong opinions that have been expressed through the media. 

In February 2025, Scottish Government instructed delivery partners to remove availability of the metadata and data catalogue entries for researchers to request access to this specific dataset, until they had the opportunity to consider the concerns raised.

Voluntary data collection

The HWB Census is voluntary, for local authorities to undertake, for parents/carers to permit and for pupils to take part in.

As the HWB Census is a local authority data collection, local authorities decide whether they will collect health and wellbeing evidence using the questionnaires, IT platform and support materials. Even if using these resources, local authorities may choose to adapt them to best meet local need.

It is up to parents, carers and children and young people themselves to decide whether their child should take part. Local authorities are responsible for issuing letters to parents and carers through their existing systems ahead of the census to inform parents/carers about the data collection and include the opportunity for them to opt their child out (or in) of taking part. For all ages, whether parental consent was opt-in or opt-out was a matter for each local authority to decide.

Even where parents and carers agree to their child taking part in the Census, the child is not required to do so. They can opt out themselves. The questionnaire requires the respondent to provide active consent before they proceed to the questions. This was a mandatory field in the core questionnaires. Additionally, the questionnaires were designed to allow a pupil to skip any question they do not wish to answer.

Respondent confidentiality

The Census is confidential. This means that what children and young people say is said in confidence and that individual children and young people will remain unidentifiable in any published results.

However, Scotland’s approach to safeguarding children and young people is linked to Getting It Right for Every Child (GIRFEC) which promotes action to improve the wellbeing of every child and young person. Safeguarding is a golden thread that runs through the curriculum. The aim is to support the development of learner’s knowledge, skills and resilience to keep themselves safe and protect themselves and to develop an understanding of the world so that they can respond to a range of issues and potential risky situations arising throughout their lives.

All agencies have a responsibility to recognise and actively consider potential risks to a child. Legislation relating to child protection places a variety of duties and responsibilities on services and organisations. These include duties to investigate and respond to concerns about a child's safety and wellbeing.

To comply with UK GDPR, any results of the research or resulting statistics are not to be made available in a form which identifies individual children and young people. However, as with any situation involving children and young people, if welfare concerns, such as abuse or harm to young people, are identified from information it gathers, local authorities may breach such confidentiality in order to safeguard the young person.

Local authorities do have access to the names of children and young people linked to their SCN on a separate management information system. Therefore, as with any situation involving children and young people, if welfare concerns, such as abuse or harm to young people, were identified, local authorities are permitted (if necessary) to share information in line with the National Child Protection Guidelines in order to safeguard the young person. This is common ethical practice when undertaking surveys/research involving children and young people. Parents/carers and children and young people were informed of this in advance of any child or young person taking part in the Census, so that they can decide not to take part in the Census because of this condition.

Local arrangements for safeguarding children may vary from area to area, and therefore the situation in which a local authority may identify welfare concerns will be dependent on the local authority’s own guidance.

The questionnaires were specially designed to minimise the risk of any specific child welfare issue being identified. Concerns about local authority duty of care responsibilities were raised during questionnaire development - if a child protection issue is uncovered by a child or young person taking part in the Census local authorities are required to act on it. To minimise this risk, the following actions were taken:

• The substance use questions were removed from the stage questionnaires into a separate anonymous survey, which did not collect SCN or pupil characteristics (other than sex and SIMD);
• All free text responses were removed;
• Scrutiny of the draft set of questionnaires to identify potential questions that could likely raise a wellbeing concern was undertaken by a sub-group reporting to the Content Group. Some questions were removed, for others wording was amended to make them more subjective;

Additionally, if children and young people do take part in the Census the digital questionnaire was set up so they can skip any question they don’t wish to answer or state that they would “prefer not to say”.

Each local authority's DPIA provides detail on their security arrangements. When local authorities share their data with Scottish Government the Scottish Government Data Protection Impact Assessment sets out the security arrangements in place and detail who within Scottish Government has access to the individual level data.