Delay Named Person Scheme to Avoid Legal Action

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  • Scottish Government urged to delay Named Person Scheme, allowing them to make significant changes to proposals which would save them from another embarrassing climbdown or further legal action being taken against them

A leading public affairs charity has warned that the Scottish Government’s Named Person Scheme could be subject to further legal action if significant changes are not made to the Bill.

In evidence to the Scottish Parliament’s Education and Skills Committee, Christian Action Research and Education (CARE) has warned that the Scottish Government’s proposals to amend the information sharing provisions of the Named Person scheme are unlikely to solve the problems with the scheme.

The charity is calling on the Scottish Parliament to delay consideration of the Children and Young People (Information Sharing) (Scotland) Bill until guidance is published on new data protection legislation  

The Named Person policy, introduced as part of the Children and Young People Scotland Act of 2014, aims to appoint a single point of contact to look after the wellbeing of all children up until the age of 18. However, CARE has serious concerns not only how private data will be used and shared but that it seriously undermines the role of parents in family life.

Last July, the Scottish Government were forced to climbdown after a lengthy legal battle exposed the Named Person Scheme to be ‘unlawful’ in its current format and the Supreme Court found that as it breached rights to privacy and family life under the European Convention of Human Rights.

The Scottish Government has proposed to change the duty on Named Persons to share information to a duty to consider whether information should be shared in cases where a wellbeing concern exists. 

With the Bill containing no practical definition of ‘wellbeing’, it opens this term up to multiple subjective interpretations. This could not only lead to a serious breach of data, but also the lack of clarity leaves the Bill potentially unworkable in practise and open to further possible legal action.

Named Persons are unlikely to know when they are able to share information if consent has not been given by either the parents or the young person concerned. They would need to compare and contrast the new Scottish legislation and its associated guidance with the Data Protection Act and the new General Data Protection Regulation from the EU. The UK Information Commissioner has not yet published guidance on how that regulation will be implemented.

CARE commends the Scottish Government for wanting to put forward legislation that will help to uncover child abuse and neglect, but in its current form the Named Person Scheme will not adequately do this. The scheme risks diverting resources away from children who are genuinely vulnerable.

CARE for Scotland Policy Officer Dr Gordon Macdonald

“CARE is very concerned about how this Bill will work in practise. There are still serious problems within this Bill that have not been addressed by Scottish Government.”

“The Scottish parliament is being asked to legislate in a vacuum. The Bill should be delayed until guidance on the new General Data Protection Regulation has been published.”

“The failure of the Scottish Government to define wellbeing is particularly problematic and concerning. Without a clear definition, this opens up the possibility of personal data being shared without legitimate concerns for the most trivial of reasons.”

“When consent is not obtained from either parents or young people, Named Persons are still being asked to share information without a clear legal threshold being identified on the face of the Bill.”

“The Scottish Government should pay attention to the evidence that was submitted during its consultation with stakeholders at the end of last year. Many of these groups have now made the same points to the Scottish Parliament’s Education and Skills Committee.”

“The Government needs to place parents at the heart of the bill, as they are in the best place to take care of their children. Doing this would save the Government from having to make another embarrassing climbdown in the future.”

Ends

Notes to the editor:

For more information please contact Rachael Adams on 020 7227 4731 / 07851 153693 or rachael.adams@care.org.uk

CARE is a leading charity that works with MSPs, MPs, Peers and MLAs to lobby for changes in legislation relating to human dignity. You can read about the success we’ve had and our latest work here.

CARE was a Petitioner in the Judicial Review of the Children and Young People (Scotland) Act 2014 (the 2014 Act). Following the UK Supreme Court’s (UKSC) judgement, CARE has met with the Scottish Government and participated as a member of the GIRFEC Third Sector Stakeholder Group.

Our objective has been to engage constructively with the Scottish Government to help it to rectify the shortcomings of the 2014 Act.

To read CARE for Scotland’s evidence to the Education and Skills Committee on Children and Young People (Information Sharing) (Scotland) Bill click here: http://www.parliament.scot/S5_Education/Inquiries/20170825CARE_Evidence_Version3.pdf

In 2016 ComRes found that only 24% of Scots thought that every child should have a state-appointed Named Person. Almost two-thirds believed it was ‘an unacceptable intrusion into family life’

Read about the Supreme Court’s decision to rule against the named person bill here https://care.org.uk/news/latest-news/named-person-scheme-unlawful

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