Scottish Catholic Observer

The Children and Young People (Information Sharing) (Scotland) Bill is the Scottish Government’s response to the Supreme Court’s ruling that its previous named person legislation was not ‘in accordance with the law.’

“Concerns remain about the named person scheme generally, particularly around the need for the scheme when greater investment in the existing system could bring about the outcomes required to improve the safety and wellbeing of our children, while at the same time respecting and protecting basic rights of parents and of the family, including the right to a private and family life,” Anthony Horan, director of the Catholic Parliamentary Office, said in his submission. “The need for new legislation in this area remains highly questionable.”

Mr Horan said it is ‘welcome’ that the Bill makes clear that information will only be shared if it is expected to ‘promote, support or safeguard the wellbeing’ of the young person or child, and the voluntary aspect of the scheme.

However, he noted concerns surrounding the term ‘wellbeing’ and the ‘lack of statutory provision around the scheme’s voluntary aspect.’

Mr Horan also noted that ‘there remains a question mark over the threshold applicable to the principle regarding a refusal to accept advice or services offered.’

“Will there be instances when a named person is duty bound to record such refusal to cooperate as evidence of risk of harm? In which case is this principle not absolute?” he said. “As the Policy Memorandum makes clear: the service is voluntary and, as a result, we would expect there to be no uncalled for, unwanted, unwelcome or unnecessary intrusions into the life of a child or young person and their family by a named person.

“However, this element is not included in the legislation itself which begs the question as to whether or not the scheme is genuinely voluntary.

“In order to be truly voluntary surely the principle should have the full weight of the legislation behind it? The principle of the scheme being voluntary is further called into question by the inability of parents to opt-out of having a named person appointed to their child. Again, if the scheme is to be truly voluntary then surely the option to opt out must be built in.”

He also said that the Code of Practice accompanying this ‘correctly points out’ that consent is needed before sharing information and use must be made of the Data Protection Act, however ‘deep reservations’ remain on how it relates to the Data Protection Act and other legislation.

“There is a fundamental responsibility on the part of the authorities to respect a person’s right to respect for private and family life as protected under Article 8 of the European Convention on Human Rights (ECHR),” Mr Horan said. “Only lawful and proportionate interference is legitimate under Article 8 and authorities must tread very carefully in this area. The authority must be satisfied that it meets the required test and there can be little room for doubt.

“It is imperative that Article 8 of the ECHR is fully respected and that public authorities do not interfere with family/private life in a way that compromises the protections offered by Article 8.

“This would be tantamount to a gross intrusion on the part of the state. Public authorities, should they believe interference to be necessary, must be certain of the legitimate aim and ensure that any interference is proportionate to achieve that legitimate aim. There can be no abuse of or cutting corners in relation to this fundamental right.”

Mr Horan also said that the Catholic Parliamentary Office was concerned about the Faculty of Advocates response to the Bill, who said that some of the Supreme Court’s criticisms ‘will continue to apply if the Bill as drafted is passed and the accompanying Code of Practice is approved’ as well as fears than the Code of Practice is unclear.

“Without clearly defined parameters there is an increased risk of the legislation not being properly applied and the proposed system failing,” he explained. “This is complex law and complex law requires greater clarity, including precise terms and ease of accessibility to those expected to apply it.

“The draft bill would itself benefit from changes such as the addition of terms on consent and informing relevant persons that information is to be shared, as stipulated in the Code of Practice. It would also benefit from a clearer definition of wellbeing.

“These are fundamental elements of the process and they should be given due reverence by being included in the legislation and not an accompanying document which carries little weight in comparison. The same must also be said with respect to the supposedly voluntary nature of the scheme.

“Ultimately, this legislation must balance the responsibility of the state to do what it legitimately can within its purview to protect children and young people with the rights of parents and children to live a family life in private.

“The proposed changes address some of the failings of the original legislation though there still remains a question mark over the need for the legislation at all. It is absolutely critical that in applying the provisions of this Bill all stakeholders, including the Scottish Government, acknowledge that respect for parental primacy and the right to private family life is paramount.”

The Holyrood Committee is no longer taking submissions, and will now begin a period of hearing evidence relating to the Bill.