Date lodged: 10 February 2017
To ask the Scottish Government what guidance it has provided to local authorities regarding legislation on the Named Person Service, and whether this guidance was updated following the judgement in the case, The Christian Institute and others v The Lord Advocate, on 28 July 2016.
Answered by: John Swinney 24 February 2017
The Scottish Government, in close collaboration with stakeholders, produced draft Statutory Guidance for Parts 4, 5 and 18 (Section 96) of the Children and Young People (Scotland) Act 2014 (the Act) and published this in December 2015. Through the policy document, which was issued to stakeholders on 26 October 2016, the Scottish Government gave advice on the draft Statutory Guidance following the Supreme Court judgment. The policy document is available on the Scottish Government website via the following link http://www.gov.scot/Resource/0050/00508709.pdf. The relevant sections are included below for ease of reference.
The substance of the draft statutory guidance on Parts 4, 5 and 18 (section 96) of the Act issued in December 2015 is still reflective of the Scottish Government’s expectations in terms of the delivery of GIRFEC, with the notable exception of how information sharing is to operate.
The draft statutory guidance describes how the requirement to share information with and by Named Persons was planned to operate when Part 4 of the Act was commenced. The guidance on Part 4 includes guidance on sections 23, 26 and 27 (Communication in relation to movement of children and young people; Information sharing; and Disclosure of information, respectively). These three sections specifically refer to the sharing of information. The Supreme Court judgment requires the information sharing provisions of Part 4 of the Act to be amended in order for them to be compatible with Article 8 of the ECHR. Therefore, the current draft statutory guidance on sections 23, 26 and 27 is not applicable for the time being until it is revised following amendment of the provisions. Any information sharing by and with those identified as Named Persons under GIRFEC policy can and should continue to operate in accordance with the existing legal framework and guidance on data sharing, human rights and children’s rights, including the Data Protection Act 1998 and the Human Rights Act 1998.
The draft statutory guidance on Part 5 of the Act (Child’s Plan) includes guidance on section 40 of the Act (Assistance in relation to child’s plan). This guidance states that the duty to provide assistance may include a duty to provide information, however, as Part 5 of the Act has not been commenced there is no statutory requirement to provide information in relation to Child’s Plans. The current draft statutory guidance on section 40 of the Act should, therefore, also be disregarded for the time being until the draft statutory guidance has been reviewed in light of any further legislative amendments. Any information sharing in relation to child planning can and should continue to operate in accordance with the existing legal framework and guidance on data sharing, human rights and children’s rights, including the Data Protection Act 1998 and the Human Rights Act 1998.