This Friday, tens of thousands of young people will take part in the Global Climate Strike, demanding immediate action to address the global climate crisis.
Students who have not been granted permission by their headteachers to participate may find their absence is recorded as “unauthorised” and Netpol has been alarmed by reports from previous reports of the police in some parts of the country asking schools for lists of students taking part in climate strike protests.
Whilst police may justify this based on concerns about “truancy”, there is a real concern that information about those participating in protest may be collected and retained by the police, and that this information-gathering may intimidate people away from participating in non-violent protest.
So what is the legal position?
Schools, like all public bodies, have a duty under the Children Act 2004, to ‘safeguard and promote the welfare of children’. Safeguarding duties mean that schools are required to share information with the police where this is necessary for preventing crime or preventing harm to children in their care.
It is important to remember that schools have a duty not just to prevent harm to students, but also to promote their welfare – which includes enhancing social and intellectual development and recognising the contribution made by children to society.
Schools may feel justified in having concerns about the welfare of truanting children – but students leaving school to take part in a ‘climate strike’ is a very different thing.
It is important to remember that schools have a duty not just to prevent harm to students, but also to promote their welfare – which includes enhancing social and intellectual development and recognising the contribution made by children to society. On this basis, schools should surely support pupils who are playing an active part in the public debates around climate change, and see protest as a positive way to develop skills and awareness, rather than as ‘risky’ or disobedient.
Both schools and the police also have a duty to respect and protect wider rights of children. The UN Convention on the Rights of the Child and the European Convention on Human Rights recognises the rights of the child to freedom of association and to freedom of peaceful assembly.
In 2016 a report by the UN Special Rapporteur recommended that, as children are a group which are vulnerable to discrimination, authorities should ‘take additional measures to facilitate the exercise of the right to freedom of assembly by such groups’.
Rather than helping to ensure that school children are able to exercise their rights, the routine passing of information between schools and the police relating to political activity can have a substantial ‘chilling effect’ – as demonstrated by the Netpol survey. of school climate strike campaigners published today.
In any case, the duty on public authorities to safeguard children is not absolute. In Castle v Commissioner of Police for the Metropolis, a case brought in 2011 involving three claimants, two aged 16 and one aged 14 who took part in demonstrations in London protesting against the rise in university tuition fees, the High Court ruled that kettling them for seven hours was lawful. The claimants were supported by Netpol Lawyers Group solicitors and we strongly reject the conclusions of the court.
However, the police and the state cannot have it both ways. If the duty to safeguard and promote the welfare of children does not take priority over other policing duties and responsibilities when it means detaining them for hours on end, it cannot suddenly become the justification for downgrading another important legal responsibility, to facilitate and protect the right to protest, just because children choose to exercise their human rights.
Issues also arise in relation to privacy and data protection. In order to pass information to the police, schools must be able to justify data-sharing and ensure there is a valid legal basis to do so.
It is possible they can do this in relation to ‘regular’ truancy data – but it is clear that very different considerations arise when children are leaving school to participate in collective political activity.
Both the police and schools must positively respect children’s rights and not just see them as ‘actors who need protection’.
Once data is passed to the police, the police must have a valid legal basis for retaining it. However, in practice, the need to ‘prevent crime and disorder’ has historically been seen as sufficient justification for collecting and keeping details about people taking part in peaceful forms of protest.
Netpol maintains that ‘safeguarding’ should not be used as a blanket justification for sharing information about climate strikers. Both the police and schools must positively respect children’s rights and not just see them as ‘actors who need protection’.
The police have a proven track record of retaining the personal data of people involved in political protest, so schools should think very carefully about whether they share data with the police that can be used to identify students taking part in climate strike activities.
Unless there is a particular reason to believe an individual may be at risk, sharing such data may breach the rights of children to privacy and freedom of assembly and association and may be detrimental to the welfare of children in their care.