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Named Person fact check: ‘just needs a few tweaks’

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SCOTTISH GOVERNMENT CLAIM:

Ever since they lost in the Supreme Court the Scottish Govt has been trying to downplay the significance of the ruling and of the information sharing provisions which the court ruled to be a breach of human rights. For example:

“I welcome the publication of today’s judgment and the fact that the attempt to scrap the named person service has failed.

“The Supreme Court has stated that the aim of the legislation, in promoting and safeguarding the wellbeing of children and young people, is ‘unquestionably legitimate and benign’. It makes clear that the principle of providing a named person to support children and families does not breach human rights.

“The court’s ruling requires us to provide greater clarity about the basis on which health visitors, teachers and other professionals supporting families will share and receive information in their named person role. We will start work on this immediately so we can make the necessary legislative amendments. The service will be implemented nationally at the earliest possible date.”

Press release from the Deputy First Minister, 28 July 2017

“Last year the Supreme Court ruled definitively that the intention of providing a Named Person for every child to promote and safeguard their wellbeing was ‘unquestionably legitimate and benign’. Their judgement did, however require us to change the provisions relating to information sharing.”

Press release from the Deputy First Minister, 6 March 2017

“The Supreme Court determined that Ministers needed to provide greater clarity about the basis on which health visitors, teachers and other professionals supporting families will share and receive information in their named person role.”

Letter from Scottish Government’s “Better Life Chances Unit”, February 2017

REALITY:

The Supreme Court said (emphasis added):

2. On its introduction in April 2013, the Children and Young People (Scotland) Bill was accompanied by a Policy Memorandum which was similar in content to the consultation paper.
…
It provided for a wide-ranging duty on all relevant public authorities to cooperate with the named person in the conduct of their duties. This would be of particular importance in the area of information sharing, since the “role of the named person will depend on the successful sharing of information between relevant public authorities” (para 73).

3. The memorandum explained that concern had been expressed about the existing legal framework for information sharing. This was felt to be confusing and potentially insufficient to enable the role of the named person to operate as well as anticipated. In particular, there were concerns regarding sharing information about children where consent was not given (para 75). The memorandum continued:

“Currently, information about a child may be shared where the child is at a significant risk of harm. However, the role of the named person is based on the idea that information on less critical concerns about a child’s wellbeing must be shared if a full picture of their wellbeing is to be put together and if action is to be taken to prevent these concerns developing into more serious issues. Without the necessary power to share that kind of information, the named person will not be able to act as effectively as is intended … Specific provisions in the Bill, therefore, set out arrangements on information sharing, to give professionals and named persons the power to share information about those concerns.” (paras 76-77)

4. It appears, therefore, that one of the principal purposes of Part 4, as envisaged at that stage, was to alter the existing law in relation to the sharing of information about children and young people, so as to enable information about concerns about their wellbeing, held by individual bodies, to be pooled in the hands of named persons and shared with other bodies, with the ultimate aim of promoting their wellbeing.

78. … while article 8 is engaged, not all that may be done under Part 4 would involve an interference with a person’s article 8 rights. There are elements of the role of the named person which are unlikely, by themselves, to involve any interference with the right of a parent, child or young person to respect for his or her private and family life. Thus, by themselves, the functions in section 19(5)(a)(i) and (ii) of providing advice, information and support and helping the parent, child or young person to access a service or support would not normally constitute an interference with the article 8 rights of either the child or his or her parents. But it is clear from the consultation paper, “A Scotland for Children” and the Policy Memorandum, which we discussed in paras 1 to 3 above, that the sharing of personal data between relevant public authorities is central to the role of the named person. As we have explained, this may well constitute an interference with the article 8 rights of those to whom the information relates. We are therefore satisfied that the operation of the information-sharing provisions of Part 4 (in particular, sections 23, 26 and 27) will result in interferences with rights protected by article 8 of the ECHR. The question therefore arises whether such interferences can be justified under article 8(2).