Pupils' Educational Records (Scotland) Regulations 2003 (SSI 2003/581)
For item 2, which is consideration of the Pupils' Educational Records (Scotland) Regulations 2003, we will take evidence from Rachel Edgar and Shirley Ferguson, who are respectively the head of branch of the Scottish Executive schools division and an official from the solicitors division. I welcome them both.
Certainly. The regulations will give parents an independent right of access to their child's educational record. Parents of pupils at local authority schools previously had that right under the School Pupil Records (Scotland) Regulations 1990. However, the right was effectively removed as a consequence of the extension of the Data Protection Act 1998 to manual as well as electronic records. The regulations before us today will restore that right to parents of children at local authority schools and will introduce a new right for parents of children at independent and grant-aided schools.
That would be helpful, as we want to know whether the issues raised are simply technical matters or whether they could cause problems such that somebody could challenge the regulations. We would appreciate a view on that. Clearly, there is an issue about the charging power, to which the Subordinate Legislation Committee has drawn our attention. Perhaps the other matters are less significant. Could we have your observations on those?
I refer the committee to the terms of the Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002, which provided the power to make the regulations. Section 2(1) of the act states:
With respect, will you deal with the particular point about the charging power? It is said that the case law requires that such a power must be specifically provided for.
Indeed. It is accepted that the authorities to which the Subordinate Legislation Committee have referred make it clear that, for example, a local authority would have to have a specific power to enable it to levy a charge. The Executive accepts that, which is why the regulations deal with the matter. The Executive takes the view that the extremely broad power that it is given by section 4(1) of the 2002 act enables a range of matters relating to the keeping, transferring and disclosure of educational records to be dealt with. In section 4(2), there is a specific power to authorise persons supplying copies to charge up to a limit that does not exceed the cost of supply. Our argument would be that, with that broad power, it was envisaged that there might be provision in relation to charging. There is no suggestion that the Scottish ministers will levy a charge. It is accepted that there would have to be a specific power in the regulations before the responsible bodies were able to levy a charge, which is what the regulations allow for.
I am sorry to press you on that point in the middle of your explanation, but presumably if there is no power in the law to levy a charge, that power cannot be conveyed by statutory instrument.
Our view relates to what the Parliament intended. It is important to remember that the powers of the Scottish ministers are different from those of a body that is set up by statute, which has to be given specific functions. The Scottish ministers can, within the limits of their devolved competence, exercise any powers or functions that they have. When examining a statute, you have to consider what the ministers are not entitled to do rather than what they may do.
I thought that you accepted that they were not entitled to levy a charge without specific statutory sanction.
That is right, but they are not seeking to do that. The ministers are merely empowering those who are supplying copies to charge a fee that is subject to the maximum amount that Parliament had considered and allowed in section 4(2), which is up to the cost of supply. Parliament, envisaging that charges might be made, set a ceiling on the charge and our view is that the Scottish ministers have the power to do anything up to that maximum ceiling.
Are you relying on the Data Protection Act 1998 to give you powers to allow local authorities to charge for copying?
No, but we are conscious that data protection is a reserved area and that our regulations had to sit underneath that act and not conflict with it in any way. As you might be aware, the 1998 act allows disclosure only where there is a legal provision that specifically allows disclosure.
Would you like to comment to the committee on anything in the consultation response?
The draft regulations were sent out to a wide range of consultees, principally because we were aware that they had to work under the Data Protection Act 1998 and that, for example, other holders of information would have to be aware of their obligations under the Disability Discrimination Act 1995, the European convention on human rights and various other pieces of legislation that form the much wider legislative obligations and duties of which people have to be aware. It was therefore important to ensure that practitioners and, for example, the Scottish information commissioner were content with the regulations. Once we had ingathered the consultation responses, we took some time to consider them and then adjusted the draft regulations in the light of the responses.
I would like to clarify a point on charging. You say that the 2002 act allows education authorities to charge up to the cost of copying documents, but the regulations seem to forbid that: regulation 5(1) states that the documents must be "available … free of charge". Does that mean that the documents are available for inspection free of charge and the copying charges come after that?
Yes, that is right. That is consistent with other regulations on the provision of information about school to parents and others. Other regulations about the provision of information were made under the Education (Scotland) Act 1980 and they provide that, if someone is going to inspect documents, the inspection should be free of charge.
I do not understand how that varies from what the 2002 act intended. If the act intended that there should be no charging except for copies, there is no variation—or is there?
The only thing that the 2002 act says is that the regulations may include certain things. Section 4(2)(c) specifies that the regulations may authorise persons who supply copies to charge up to the maximum, which is the cost of supply.
You spell out in regulation 9 the details of how that charge will be regulated, but the Subordinate Legislation Committee suggests that the Executive should not say that education authorities should supply information free of charge because it does not have the authority to do so. Do you accept that point?
No. The provision on providing information free of charge was included in the regulations because there was provision for charging in the 2002 act and the Executive wanted to make it explicit that someone cannot be charged for going to the school or elsewhere just to look at the records. The provision was included in the regulations to make explicit what was implicit in any event; if it had not been included, there would still be no authority for an education authority to levy a charge, but its presence underlines that fact and makes it clear to all users of the regulations, including parents, that there is to be no charge. That is consistent with other sets of regulations that have been made on education.
The Subordinate Legislation Committee obviously takes a different view. It says that the 2002 act did not allow for charging—it allowed only for a fee for copying—and that to say that an education authority cannot charge is therefore to go beyond the act's powers. However, you do not accept that point.
No. The Executive takes the view that, because of the terms of section 4(1) of the 2002 act, there are no restrictions in the act on what the Scottish ministers can put in the regulations.
However, there is no power to charge in section 4(1). Is that accepted?
Yes, it is.
I have difficulty in understanding how, if it is the general law that specific powers to charge are necessary, you can say that because a power to charge is not included in section 4(1) the Executive has the power to charge. I do not follow that.
I am saying that, underneath that broad power, there are examples, which include a provision about charging.
Those examples relate to particular situations, not to a general power to charge.
Yes, but the regulations do not go any further than that. We are not imposing a charge in any other circumstances.
From what you are saying, it seems that section 4(1) of the 2002 act does not specifically say that ministers have the power to charge, but that they have power to make regulations on other content. We do not have a policy concern—everyone is agreed that there should not be a charge for inspection of records—but the issue is how we ensure that the regulations are drafted in such a way as to make them robust law. My understanding is that the regulations say that there should be no charge for inspection of records, but that that matter is not covered by the original legislation.
That is obviously a matter for the committee, if it feels that there is a difficulty. However, as I have said, the regulations are consistent with previous regulations that refer to documents being supplied free of charge, using a similar broad regulation-making power. It might be helpful if I gave the committee a bit more detail of that. For example, the Education (School and Placing Information) (Scotland) Regulations 1982 were made under section 28B of the 1980 act, which contains a general regulation-making power. Section 28B states that
To be clear, that is a different example; you are not using it as the basis of the regulations that we are discussing.
I am just saying that there are other examples and that the regulations that we are discussing are consistent with the previous approach. The 1982 regulations refer to information being provided as the education authorities
The report on the consultation refers to a possible conflict between parents—depending on how they are defined—and children about revelation of records and mentions the balance between parental and children's rights. For the sake of argument, let us assume that children have no right to object to the revelation of records to a parent. I am not sure that that is appropriate. Will you provide some insight into the intention behind those particular regulations?
Yes. The intention was to recognise that the parent has an obligation to provide school education for their child and that therefore the parent should be in possession of the relevant information that enables them to do so. As members will see, regulation 6 contains safeguards that seek to cover the kind of situations that some of the consultees highlighted. For example, "sensitive personal data", such as health information, are excluded. Another, more general provision in regulation 6(d) refers to the revelation of information causing
Regulation 5(2) says that a copy of the records must be provided to the parent "within 15 school days" on payment of any fee. Does that 15-day period begin on the day that the request is made or on the day that the fee is paid? Is the time limit disapplied if no fee is paid?
We should bear in mind that charging a fee is not compulsory; the responsible body is merely given the power to charge a fee in the circumstances outlined in regulation 9. However, it is intended that that will be a precondition of the release of any copies and that the 15-day period will run from the payment of the fee.
I see. So if there is no payment, the time limit will not apply.
That is right.
I am sorry that we gave you such a hard time about the regulations, but we had to resolve some of the issues that the Subordinate Legislation Committee raised in its report.
I agree. As the policy intention is quite clear, we should not urge the Parliament not to agree to the instrument.
Are committee members happy with that?
Yes, that is a reasonable approach. I find it interesting that paragraph 4 of the Subordinate Legislation Committee's report points out that the Executive has undertaken to correct at the earliest opportunity an error in relation to a different matter in the regulations. When the Executive reflects on our comments and concerns, it might want to come back and amend the regulations. I presume that case law will also report that the Parliament was concerned about the basis of the charging mechanism.
Is the committee content with what has been proposed?
We should not lose sight of the fact that the regulations are important and that we are keen to have them implemented. I am grateful to the Executive officials for giving us their time.