Published in the Scottish Review, 24 August 2016.
On 28 July 2016, the Scottish Government’s controversial named person scheme was finally declared dead in the water as the highest court in the land ruled that the information sharing powers on which it relied were incompatible with overarching human rights legislation.
The Scottish Government was handed a 42-day deadline to bring new, compliant legislation before the court, or the offending provisions would be struck down. Given that the unlawful sections of the Children and Young People (Scotland) Act 2014 mandated the sharing of citizens’ personal data, with or without consent, on the basis of any vague, statutorily undefined ‘wellbeing’ concern about any child – and that the so-called SHANARRI (safe, healthy, achieving, nurtured, active, respected, responsible and included) wellbeing indicators were deemed unacceptably wide and open to subjective interpretation – the government will be hard pressed to concoct a human rights-compliant version of the ‘service’ it wanted to force on every child up to the age of 18.
Furthermore, the justices proceeded to nail the coffin of the surveillance scheme tight shut by ruling that parents and children must be free to decline any advice or services offered by state-appointed named persons without fear of repercussions. That came as a blessed relief to those already experiencing the sharp end of the (non-statutory) SHANARRI stick.
So far so good (depending on your perspective).
The media interest was intense after the landmark ruling, which made headline news for several days. However, the words ‘unanimously allows the appeal’ appeared to get lost in translation into Scotspeak as the losing side decided to re-package humiliating defeat as glorious victory for the Scottish Government. You really couldn’t make it up – but they did.
Rather than admit to getting it wrong all along, the government and its apologists took refuge in denial, a common reaction to bad news. In what resembled a bad re-make of Monty Python’s dead parrot sketch, they claimed their scheme was only ‘resting’. Putting on a show of bravado, the deputy first minister predicted his scheme would soon be up and flying again, albeit with clipped wings.
He also claimed, erroneously, that the court had ruled on the aim of the 2014 Act – promoting the wellbeing of children – which had never been in dispute and had formed no part of the case. He further failed to grasp that, no matter how ‘legitimate and benign’ its (undisputed) intention, the legislative means by which the government sought to achieve its stated aim had been found, unanimously, to breach the human rights of Scots citizens. The reference in the judgement to the dangers of a ‘totalitarian regime’ must have stung, and while there was no suggestion that the Scottish Government’s intentions were anything other than honourable, it was a stark reminder of how the proverbial road to hell is paved.
Parents are rightly angry that no apology has been forthcoming from those responsible for the passing of legislation specifically to enable the free flow of their children’s, their own and third parties’ personal data around countless agencies, without their knowledge or consent, on the basis of an undefined wellbeing whim or, according to published practitioners’ toolkits, ‘gut instinct’.
In the absence of risk of harm to a child – or freely given, fully informed consent – such data processing has been held unlawful, but there is plenty of evidence of existing ultra vires practice, including teachers obtaining confidential health information and using it inappropriately. Intrusive wellbeing questionnaires have also been administered to 46,000 school children in class time without informed parental consent.
Named persons aside, the Supreme Court has dealt a severe blow to GIRFEC, the government’s grand theft data policy, which has long been operating on a non-statutory basis to identify – and intervene in the lives of – families at risk of straying from the state-approved path. Common sense dictates that the bigger the haystack, the harder it is to find the small needles, so placing every child under state surveillance is bound to compromise the provision of skilled social work support for the most vulnerable families. Yet while vital front line services are starved of resources and stretched to breaking point, public spending priorities have shifted from child protection to data collection.
We are unlikely to make constructive progress towards safeguarding the wellbeing and human rights of children and families in Scotland until the government and other apologists accept that existing information-sharing arrangements contravene the law, whether by accident or design. There is no denying the downward shift of the established non-consensual data processing and intervention threshold from ‘risk of significant harm’ to one of failing to meet the state’s wellbeing outcomes when the Scottish Government’s own website tells us: ‘Current data protection principles and privacy laws already permit information sharing when it is necessary to prevent or address a risk to wellbeing. These laws apply to all existing information management and data processing by public bodies and those who provide services on their behalf’. [emphasis added]
Perth and Kinross Council is held up as a glowing example of best practice, which looks distinctly dodgy in the light of the recent judgement. One leaflet reminds parents that ‘if people working with you and your child are worried or concerned about your child’s wellbeing, they can share information with other people without permission’. Interestingly, the equivalent leaflet for children cites safety, as opposed to wellbeing, concerns as the reason information may be shared without their permission.
And it gets better (or worse, depending on your perspective). The practitioners’ toolkit boasts: ‘Remember, nothing whatsoever, in Scottish, UK and/or European law and/or in the Scottish child protection legislative, policy and/or practice environments prevents you from sharing information where you are worried or concerned about a child or young person’s wellbeing. On the contrary, you are, within certain limitations and constraints, empowered to do so‘. [their emphasis]
The Supreme Court would no doubt beg to differ.
Published GIRFEC board minutes tell a sorry tale of keeping the public in the dark until data-sharing was embedded in practice in order to prevent ‘an adverse reaction for stakeholders’. The minutes also reveal the leading role played by the Assistant ICO (Scotland) who agreed a joint statement back in 2013 ‘to help clarify situations where a child was on a pathway to risk to wellbeing as well as significant risk of harm’ which would conveniently ‘free up the way practitioners share information under existing law’. [emphasis added]
The assistant ICO’s statement directly contradicted previous UK ICO advice and that of Westminster’s Joint Committee on Human Rights in relation to similar proposals in England (including the ContactPoint children’s database) which were later abandoned. Nevertheless, his memo quickly assumed the status of definitive guidance for practitioners and was duly disseminated through Community Planning Partnerships, making its way unchecked into council, NHS and third sector policies and publications. It was also cited as an authority in training sessions to justify information-sharing without the consent, or even knowledge, of data subjects, thereby allowing the data-stealing disease to spread across services.
Given that the same ICO has rejected complaints by individuals in relation to data processing on the basis of a lowered consent threshold, subsequently held to be unlawful, it is hardly surprising that victims are now calling for an inquiry into the role of the regulator. Not that the ICO was the only watchdog to have lost its bark: the Scottish Human Rights Commission, which ‘promotes and protects human rights for everyone in Scotland’, also failed to notice the engagement of Article 8 and directed all inquiries to the Children’s Commissioner. Parents and other adults’ human rights were apparently considered fair game.
Meanwhile, it is said to be business as usual for most councils and schools, who have been assured by the deputy first minister that they are not breaking any laws by continuing with existing information-sharing arrangements. So confident are they in their latest orders from above that they have made no attempt to conceal the incriminating evidence.
Policy briefings issued to elected members have also been worryingly inaccurate to the point of misleading. Councillors have been assured by service heads that all existing practice is within the law, and some have even been told the named person has not been introduced in their area, despite published evidence to the contrary. Even the Scottish Parliament’s own SPICE briefing for MSPs states that ‘the Supreme Court ruling does not apply to the existing, non-statutory, Named Person schemes’ when the Scottish Government’s own website details current information-sharing practices which are not in accordance with the law. The Supreme Court judgement unquestionably applies to existing arrangements and it is disingenuous to pretend otherwise.
The government’s contempt for the court’s carefully-crafted judgement and the reasoning behind it has been breathtaking to behold, but the clock is ticking and no amount of chatting to the same coterie of collaborators, all of whom ignored the human rights arguments raised during the passage of the Act, will alter the facts. There can be no quick fix, since the legislation is underpinned by the state’s own notion of ‘wellbeing’ – a notion the court has said cannot lawfully be imposed on families.
This ill-fated legislation has been punctuated by countless contradictions, shameless spin and a series of embarrassing gaffes. Who could forget the named person as head gardener analogy, the bedroom decor ‘rights’ leaflet that raised a laugh from the Supreme Court benches, the GIRFEC Cluedo that cast parents as prime suspects, the wellbeing snail board game where points were lost for failure to join the after-school fencing club, the taxpayer-funded theatre group that toured schools with SHANARRI propaganda songs? On a much more serious note, we have seen children already known to services, with non-statutory named persons in place, die in tragic circumstances, while a number of professionals, including at least one named person, have been placed on the sex offenders’ register.
Questions must be asked about why MSPs chose to ignore the human rights, data-related problems flagged up by their own constituents, grass-roots groups and the legal establishment in favour of policy-based evidence offered by state-funded children’s charities and vested interests, all with an eye on lucrative new funding opportunities. It is equally hard to fathom why the Scottish courts failed to spot the glaring legislative flaws and saw fit to dismiss the experiences and evidence of victims as ‘hyperbole’.
Angry parents are promising repercussions in reverse, and councils, schools, NHS services, third sector and private providers can expect to be flooded with subject access requests to obtain the data held on their children and themselves, with a view to possible legal action. ‘Just following orders’ will be no defence for practitioners who should by now have read and understood the judgement, as opposed to the government’s spun version, and considered whether or not their information management systems will pass the human rights test.
The fall-out could prove damaging in terms of diminished trust in professionals, especially education and health, and may even deter parents and young people from engaging with services. There is also the matter of cost to the taxpayer, not least of all in legal fees, which could have been avoided if the government and parliament had listened to the real experts on children’s welfare and wellbeing in the first place – parents. The former children’s minister famously pronounced that parents ‘also’ have a role in the upbringing of their children, but in the light of the court’s decision, it is probably best that they assume sole charge and send interfering state busy-bodies on their way.
As for the next steps, the Scottish Government has until 8 September to get its act together and persuade MSPs to approve new legislation and binding guidance that will satisfy the court and address the appellants’ concerns. It also needs to recognise the extent to which current practice has already infringed the rights of families and accept that root and branch reform will be required. A ‘sorry’ wouldn’t go amiss, either.