Published in the Scottish Sunday Express, 6 August 2017. Print edition here.
THE SNP’s latest attempt to legalise state snooping on families is “doomed to disaster”, according to a leading human rights lawyer.
Education secretary John Swinney unveiled changes to the SNP’s Named Person scheme at Holyrood in June, almost 12 months after the UK Supreme Court ruled many parts of it illegal.
In particular, the judges said widespread sharing of family data on the basis of concerns about a child’s wellbeing was not compatible with data protection and European human rights laws.
The planned reforms will instead put the onus onto teachers, NHS staff and social workers to decide whether data sharing would be legal in each case.
Allan Norman, who specialises in this area, said: “We have new draft legislation that says, roughly, that officials should share information, provided it is consistent with human rights and data protection laws to do so. True. But I’m afraid that simply shifts the risk to the officials who have to work out what the law means.
“That is grossly irresponsible, and doomed to disaster, if those officials – and the Scottish Parliament – are looking to exactly the same people as didn’t appreciate in the first place that they were getting it wrong, and think that the Supreme Court ruling narrowly applies only to the previous draft legislation.
“Officials who think that that guidance, or their existing practice, is compliant are not only wrong, but are being misled by people who ought to know better.”
Following sweeping reforms without consultation by the Scottish Government in 2013, data sharing is currently sanctioned on the basis of any ‘wellbeing’ concern.
This guidance replaced the legal threshold of ‘risk of significant harm’ to a child as the trigger for sharing confidential information about families.
As a result, more than 200 wellbeing risks – including being under five, an only child or even having shabby bedroom decor – potentially place every child in the ‘at risk’ category.
Mr Norman said the promotion of the wellbeing of children and young people was not one of the aims listed under article 8 of the European Convention on Human Rights.
He added: “It therefore cannot be assumed to be necessary to share information on this basis, and if it is not necessary, consent is, in fact, required. Unless everything else built on that guidance, including organisations’ internal policies, and a professional culture of sharing without consent, are reversed, practice will still be unlawful.”
The Children and Young People (Information Sharing) (Scotland) Bill was introduced by Mr Swinney on June 19, days before Holyrood broke up for the summer recess.
MSPs on the Education and Skills Committee are consulting on the reforms, although the clerks have said they will accept submissions received after the August 25 deadline.
Simon Calvert of the NO2NP campaign said: “Years of incorrect training has led to a reckless culture of data-sharing amongst professionals and many parents have contacted us to tell us that their privacy rights have been ignored.
“The Scottish Government has been forced to amend the Named Person law which is a massive climb-down. But they are going to have to do a huge amount of retraining to correct the misunderstandings of the law they’ve been peddling for years.”
A Scottish Government spokesman said: “The deputy first minster has set out an approach which seeks to bring consistency, clarity and coherence to the practice of sharing information about children and young people’s wellbeing across Scotland.
“Public services must handle, store, process and share personal information in line with existing laws and guidance in relation to data protection, confidentiality, human rights and children’s rights.”