Keeping up appearances of ‘getting it right’

By Alison Preuss of Home Education Forums

Back in September 2016, Deputy First Minister John Swinney reassured Parliament that Named Person schemes which were already operating on a non-statutory basis – including the much-vaunted Highland pilot – were not affected by the Supreme Court judgment because they were acting in accordance with the existing legal framework.

His assertion that it would be ‘business as usual’ drew sharp criticism from families across Scotland, whose personal data had already been collected and shared by public and third sector bodies without their knowledge or consent – and who had the damning evidence to prove it.

What’s more, current policy documents – including the Highland Practice Model and the practitioner toolkit published on Perth and Kinross Council’s website – proved beyond all doubt that non-consensual data processing had become well established and embedded across services over the preceding several years.

In a valiant effort to keep up appearances of ‘getting it right’ post-judgment, the Scottish Government sought to validate its own Named Person guidance by publishing an update on its website.

It claimed that the guidance “remains valid”, but that “some of the information will need to be revised”, namely the information sharing provisions of Part 4 and 5 of the Children and Young People (Scotland) Act 2014 as the ruling “requires these provisions to be amended in order for them to be compatible with Article 8 of the ECHR”.

Actually, the legislation needs to be re-drafted and approved by Parliament, and it will also need to comply fully with human rights and data protection laws to the satisfaction of the Supreme Court. Data processing without freely given informed consent is no longer a legislative option and legal remedies will be available to those whose rights have been breached.

The revised statement goes on: “The current draft statutory guidance on sections 23, 26, 27 and 40 should be disregarded for the time being, until it is revised following amendment of the provisions. Any information shared by and with those identified as Named Persons under GIRFEC policy can and should continue to operate in accordance with the existing legal framework and guidance on data sharing, human rights and children’s rights. This includes the Data Protection Act 1998 and the Human Rights Act 1998. Read the Policy Update on delivery of the Getting it right for every child approach here.”

In fact, current information sharing guidance does not accord with the existing legal framework, as upheld by the Supreme Court, since it encourages non-consensual data processing on the basis of any vague, undefined ‘wellbeing’ concern, as opposed to adherence to the legally permissible threshold of risk, or likely risk, of significant harm to a child.

The question remains: was the Deputy First Minister unaware of this?