NO2NP exposes flaws in reply from Better Life Chances Unit

Back in December, NO2NPers wrote in their hundreds to the Deputy First Minister, making sure their concerns were heard as part of the “intense engagement” over the Named Person scheme.

After thinking that just a few minor tweaks would be needed, and with the Deputy First Minister John Swinney encouraging councils and health boards to continue developing their Named Person schemes on 8 September 2016, it seems to be taking the Scottish Government a long time to work out how to fix the unlawful scheme.

The Scottish Government has finally – after two months – got around to writing back to people. We thought we’d take a look at what they’re saying, just to see if there are any clues about what the Government are thinking about the future…

“As you are aware, following the Supreme Court judgment on the Named Person provisions in the Children and Young People (Scotland) Act 2014 (the Act), the Deputy First Minister, Minister for Childcare and Early Years and officials from the GIRFEC team, have been engaging widely with a range of stakeholders as part of the Scottish Government’s three month engagement programme.”

Hmm…the GIRFEC team “have been engaging widely”. Is that really true? They refused to see NO2NP as part of the engagement process, telling The Christian Institute, one of the parties involved in the legal action, that because of the “fundamental policy disagreement”, the Scottish Government would only be engaging with people who “wish to improve the legislation”.

This is despite the fact that a poll last year found that only 24 per cent of Scots think that every child should have a state-appointed Named Person and almost two-thirds believe the Named Person is “an unacceptable intrusion into family life”. If the Scottish Government took engagement seriously, they would be talking especially to those who have concerns, not leaving them out in the cold. There are also over 36,500 people who have expressed their concerns and opposition to the Named Person scheme via the NO2NP petition – does the Scottish Government think their views don’t matter?

This period of engagement was to address the concerns of the Supreme Court judgment on the information sharing provisions. It was not a public consultation; the formal public consultation on the Children and Young People Bill took place in 2012. Your views and comments on information sharing will be considered as part of this engagement process.

The Supreme Court did not just have “concerns” about the information sharing provisions, they said in paragraph 15 that the new information sharing legal powers and duties for Named Persons formed “one of the central purposes of Part 4” and stated clearly in paragraph 78: “the sharing of personal data between relevant public authorities is central to the role of the named person”. The judges continued that “the operation of the information-sharing provisions of Part 4… will result in interferences with rights protected by article 8 of the ECHR.”

Given that the Supreme Court ruling blew a hole in the Government’s plans by striking down the data-sharing which was “central” why boast about failing to consult widely? Clearly they need to consult widely to understand the problems with the scheme.

“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.”

Well, if only that were the whole story. The Supreme Court actually said a lot more than that Ministers needed to provider greater clarity. In paragraph 73, the judges noted: “The first thing that a totalitarian regime tries to do is to get at the children…” – totalitarian sounds pretty bad. As well as a lack of clarity, the judges referred to “confusion”, so it looks like the scheme will be needing more than minor tweaks.

“They ruled that the information-sharing provisions of Part 4 of the Children and Young People (Scotland) Act 2014 are incompatible with Article 8 of the European Convention on Human Rights and that changes are needed to make those provisions compatible with Article 8, to ensure respect for one’s “private and family life, his home and his correspondence”.”

Finally, this is closer to the truth. Paragraph 106 of the Supreme Court judgment explains that “the information-sharing provisions of Part 4 of the Act… are incompatible with the rights of children, young persons and parents under article 8 of the ECHR” and concludes by saying they are “not within the legislative competence of the Scottish Parliament”.

“The Supreme Court ruled definitively that the principle of providing a named person for every child does not breach human rights and is compatible with EU law.”

The Supreme Court actually said that while it cannot be said that the operation of the Named Person’s functions will necessarily “amount to a disproportionate interference with article 8 rights” (para. 96), there was a definite risk that the Named Person in practice also could interfere with article 8 rights (para. 106).

“They described the intention of the policy as “unquestionably legitimate and benign.””

This has to be the favourite…or wait, the only part of the Supreme Court judgment that the Scottish Government seem proud to quote. Even then, it should be taken in its context. The Supreme Court are talking about the Children and Young People (Scotland) Act as a whole, and say in paragraph 91 that it is the aim of the Act that is “unquestionably legitimate and benign” – that is, “the promotion and safeguarding of the wellbeing of children and young persons”. We never challenged that!

“They rejected the petitioners’ argument that the legislation relates to reserved matters. Furthermore, the establishment of the Named Person was agreed by Parliament in 2014 – which passed the necessary legislation on a cross-party basis with no votes against.”

Due to the fact that Part 4 of the Act breached the Human Rights Act and the Data Protection Act, the Supreme Court judges ruled that the information-sharing provisions were “not within the legislative competence of the Scottish Parliament” (para. 106). Regardless of what the votes were in the Scottish Parliament, we won! Whatever the vote, it was a breach of fundamental human rights and of the Data Protection Act.

“The engagement programme involved more than 50 meetings that directly engaged with some 250 organisations and groups – and included around 700 practitioners and professionals, young people and parents/carers.”

So in the end, the Scottish Government have engaged with lots of people, but fairly reluctantly. They were forced into it by losing in the Supreme Court and then cut themselves off from a valuable supply of input – those proved right by the Supreme Court. Do these figures include the hundreds of NO2NPers who proactively emailed even though the Government didn’t want to hear from them?

“The Named Person service is about ensuring children and parents get advice and help, with early support if and when they need it. Overwhelmingly in our meetings with groups and individuals as part of the engagement, this principle is understood and welcomed.”

No one objects to children and parents getting advice and help if and when they need it, but what we’ve argued, and what the Supreme Court accepted, is that the plans breached privacy and it is not clear that the scheme is not compulsory – as the First Minister has said. In paragraph 95, the judges explained that there is a risk that “parents will be given the impression that they must accept the advice or services which they are offered”. The Scottish Government have not been clear: on the one hand, the First Minister has insisted that the Named Person is an “entitlement”, but on the other hand, there has been no clear explanation given of how to opt out of the scheme. And “not engaging” is apparently a “risk factor”.

“As the Scottish Government works towards commencement of the Named Person provisions, local authorities, health boards and partners can continue to progress the GIRFEC approach and continue to develop and deliver “Named Person” services.”

Well, this explains why some of you are still being told your children have a Named Person. Some councils are continuing to run a non-statutory Named Person scheme, but it is crucial to remember that they can’t lawfully share your personal, sensitive information in the way that the Government wanted, and any advice offered by a Named Person has to be optional.

“The Scottish Government has never suggested that the role of the Named Person is to ‘police’ the wellbeing of children and/or monitor parenting against Government targets.”

We would beg to differ. This Government-backed leaflet said that the Named Person will check that your child is respected, including by seeing whether they get a say in how their room is decorated and what they watch on TV.

“This approach means that many targeted services, like social work, will have more time and resources to deal with more challenging issues. Therefore, the provision of a Named Person service can free up resources rather than divert them.”

Yes, maybe it can free up resources, but it can also do the opposite by generating lots of unnecessary referrals over trivial matters. It won’t free up teachers – they are busy enough already and have expressed concerns about the increased workload. Greg Dempster, General Secretary of the Association of Headteachers and Deputes in Scotland said last year: “There is an issue with bureaucracy. The biggest issue that I hear mentioned as an absorber of headteacher time is the bureaucracy associated with the named person duties and GIRFEC. It would be useful to have a look at that bureaucracy.” A survey of health visitors represented by UNISON Scotland also highlighted concerns about the increased workload with Named Person duties.

We’ve always argued that generating unnecessary reports on well-adjusted families will overburden already overstretched social services departments. The Named Person scheme, far from freeing up resources, could see trivial matters being raised with social services on the basis that they may be relevant to wellbeing, even though they are not remotely near the threshold of child protection issues.

“Parents have rights and responsibilities to raise their children and provide for their wellbeing needs. A Named Person does not replace or change the role of a parent or carer, or undermine families.”

Surely parents have the primary responsibility for raising their children? Yet the Named Person scheme threatens to undermine parents. The Children’s Parliament even dubbed Named Persons ‘Head Gardeners’, while parents were demoted to mere ‘gardeners’ alongside ‘other adults’. If it doesn’t undermine families, why did the Faculty of Advocates say that it “dilutes the legal role of parents” and “undermines family autonomy”?

“Local authorities, health boards and other organisations will be required to provide a Named Person service to make sure that extra support is available to all children and young people – and parents – if and when they need it.”

If that was it, no one would be objecting to the scheme. The trouble is, the Government haven’t really made it clear that parents can just use the Named Persons service as and when they want it. The Supreme Court judgment stated in paragraph 95 that “there must be a risk that… parents will be given the impression that they must accept the advice or services which they are offered… and further, that their failure to co-operate with such a plan will be taken to be evidence of a risk of harm”.

“Health visitors, promoted teachers, and others who will be Named Persons already have responsibilities for providing advice and support to children, young people, and families. The new legislation will make good practice the standard and formalises this part of their role.”

If the new legislation is just formalising a role that already exists and doesn’t change anything, why did the ICO say that it was lowering the trigger for the sharing of personal information? Why did the Supreme Court strike down the information-sharing provisions if nothing had really changed?

The Deputy First Minister will return to Parliament in the new year to set out the process for implementing this important policy.”

Well, this letter was still being sent to people in February. But finally after a long wait Mr Swinney has announced he will make a statement in Parliament today on the future of Named Persons. Watch it live at about 2:20pm: