Faculty: ‘named person’ legislation needs further tweaking

The Children and Young People (Information Sharing) (Scotland) Bill was drafted after the Supreme Court’s ruling on the Children and Young People (Scotland) Act 2014.

Views on the bill were sought by the Scottish Parliament’s Education and Skills Committee, and the Faculty said in response that two principal issues had been identified by the Supreme Court – a serious lack of clarity for those implementing the legislation and the lack of safeguards for those affected.

“Neither of these issues is easy to resolve and some of the criticisms of the Supreme Court will continue to apply if the Bill as drafted is passed and the accompanying Code of Practice is approved,” added the Faculty.

“The information sharing provisions will require to be operated by teachers, health visitors, social workers and other non-lawyers and therefore the rules must be clear and accessible.

“This is in part to be addressed by a Code of Practice and a draft has been produced, the intention being that such a Code will be utilised by the relevant professionals in interpreting the statute as it is implemented…

“The draft Code itself illustrates the complexity of the issues to be faced, and dealt with by busy professionals focused on other aspects of provision for children. A professional considering information sharing is required to carry out a proportionality exercise…

“We remain concerned that this is an exceptionally difficult requirement to impose on professionals in respect of every child in Scotland. Its imposition risks making their job considerably more difficult and undermining the trust of families and the willingness to share information with the professional concerned.

“In our view, the Code of Practice itself would benefit from being phrased in more accessible language…Given the complex exercise being expected of those professionals, they should also, in our view, have access to an advice service or helpline to provide assistance when they are uncertain how to deal with information sharing.”

In relation to informing a child or young person, or parent, that information was to be shared and obtaining consent, the Faculty said those issues were discussed within the Code of Practice, but were not mentioned in the bill.

“In our view, these issues are sufficiently fundamental to be referred to within the legislation itself, rather than simply being dealt with in the Code of Practice,” the Faculty submitted.

It pointed out that a Code of Practice was not a substitute for legislation and was not debated and passed by the Parliament. And where there was any conflict between the statute and the Code of Practice, the statute would prevail.