Why do some councils appear to have Named Persons?

While the Scottish Government has said it intends to push ahead with a revised version of the scheme, the truth is that there will have to be radical changes to comply with the Supreme Court’s ruling.

The information-sharing provisions, which the Supreme Court said were central to the scheme, have been ruled unlawful. The legislation has to be amended by the Scottish Parliament, and guidance will need to be redrafted too.

The Supreme Court will be keeping an eye on the revised proposals the Scottish Government brings forward – as will we.

Any amended statutory scheme will definitely not commence on 31st August, as John Swinney has confirmed.

It has been brought to our attention that some local authorities are continuing to operate a form of Named Person. There is nothing preventing authorities running a non-statutory Named Person scheme, as has been the case with the pilot schemes which have been operating over the past few years.

But service providers are constrained by the existing law, which includes the terms of the recent UK Supreme Court judgment.

This means:
1. Parents and families should not be compelled to accept the advice or services of the Named Person;
2. Information cannot be shared in breach of the thresholds in the Data Protection Act, which emphasises consent unless sharing is necessary for one of the reasons specified in that legislation – a test that “wellbeing” does not meet.

We have been aware for some time that some authorities in Scotland have been operating as if the Named Person legislation (including its specific data sharing provisions) was in force.

But after the decision of the Supreme Court, it should be easier for a family to raise a complaint or bring a claim against a public authority where data has been shared in line with the tests in the Named Person legislation rather than in compliance with the Data Protection Act.

This is because the UK’s highest court has declared the thresholds in the Named Person legislation to be unlawful.

To find out what information your local council or health board holds about you or your family, you can submit a subject access request. More information on making a subject access request can be found here.

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