How to fix the Named Person scheme… Or not

Significant changes were needed after the UK Supreme Court struck down the information sharing provisions at the heart of the Named Person scheme.

But has the Scottish Government done enough to address the issues?

NO2NP puts the Children and Young People (Information Sharing) (Scotland) Bill to the test.

1. Not in accordance with law

The UK Supreme Court ruled that the Named Person information sharing provisions were not “in accordance with the law”. The legislation breached the rights of children and families under Article 8 of the European Convention on Human Rights.

The Scottish Government managed to pass legislation which was not legal!

A big problem to solve.

So what has been done to make things right?

In a word, not enough.

Judges said: “changes are needed both to improve the accessibility of the legal rules and to provide safeguards so that the proportionality of an interference can be challenged and assessed” (emphasis added) (para. 107).

But this new Bill has failed to resolve these issues.

Anybody trying to understand what the law is will have to simultaneously consider several separate pieces of complex legislation: the Children and Young People (Scotland) Act 2014, the Data Protection Act 1998, the Human Rights Act 1998 and the Draft Code of Practice, as well as the new General Data Protection Regulation (GDPR).

This does not sound very accessible!

How can busy practitioners, those expected to carry out the role of Named Persons who are unlikely to have legal qualifications – particularly teachers and health visitors – be expected to negotiate this area with enough certainty to know that they are able to share information when the rules are spread out across at least four pieces of legislation?

As for providing safeguards against unlawful interference, the Scottish Government has taken a step forward, but the situation is still confusing. It has the opportunity to put proper, clear safeguards on the face of the legislation, and it should do so.

2. Voluntary nature of the Named Person service

The UK Supreme Court also said that the Scottish Government had to make clear that advice from the Named Person is entirely voluntary.

The Policy Memorandum published alongside the 2017 Bill has offered some clarification:

“Children and young people, and their parents, can accept or reject advice, information, support and help offered by a named person under Part 4 of the 2014 Act. … This freedom of choice must be made clear to them. Refusal to accept advice or services offered or refusal to co-operate with a child’s plan is not in itself to be taken as evidence of a risk of harm.”

However guidance is not law. So it’s doubtful that the words about the voluntary nature of the scheme would carry sufficient weight with parents unless it is on the face of the legislation.

Many parents remain unconvinced by the Government’s ‘voluntary nature’ rhetoric, and would prefer a proper ‘opt-out’ to ensure their personal information is not being shared and actions not taken without their full knowledge and informed consent.

3. Definition of wellbeing

The Scottish Government has done nothing to address the “notably vague” definition of wellbeing as identified by the UK Supreme Court. The wellbeing threshold is the driving force of the Named Person scheme. Without a clear definition it will be difficult for practitioners to know what is proportionate and in accordance with the law, leaving individual families at risk of having their human rights breached.

The Faculty of Advocates has also warned that the Scottish Government’s proposed changes don’t go far enough to meet the Supreme Court’s concerns.

Clan Childlaw, a leading children’s legal charity, expressed concern that the Scottish Government’s revised Named Person information sharing legislation wouldn’t fix the issues raised by the UK Supreme Court.

In its written evidence to the Scottish Parliament’s Education and Skills Committee that the bill “fails to overcome the difficulties identified by the Supreme Court, in relation to lack of precision and accessibility, and lack of safeguards and consent”.

We hope the Deputy First Minister and his team will take heed and listen to the serious concerns being raised, so that they are not forced back to the legislative drawing board… again.