Lawyers' concerns over attempts to fix named person plans

The legislation would appoint a named person responsible for ensuring the welfare of each child in Scotland

Lawyers have raised concerns about the Scottish government's plans to bring its named person scheme into operation.

Ministers want to appoint a named person, usually a teacher or health visitor, to be responsible for ensuring the welfare of every child.

The plans were held up when the Supreme Court ruled that information sharing sections did not comply with the law.

Changes to legislation are being considered, but the Faculty of Advocates say they need improvement.

They want to see guidance for named persons "phrased in more accessible language" and a helpline provided for them, raising concerns that the plans as they are currently drafted might not resolve the concerns raised in the Supreme Court.

Other groups, including City of Edinburgh Council and NHS Highland, have also raised questions about the legislative changes.

The Scottish government said it was confident the changes would address the issues raised by the Supreme Court.

• What is the named person scheme?

The named person plans were signed off by MSPs as part of the Children and Young People (Scotland) Act 2014 - passed by 103 votes to nil - but were quickly tied up in legal challenges by campaigners who feared the scheme would cause unnecessary intrusion into family life.

Judges at the UK's highest court ruled against the scheme in July 2016, citing concerns that information-sharing plans were incompatible with the rights to privacy and a family life under the European Convention on Human Rights.

The did however say that the aim of the scheme was legitimate, and the ministers said they remained "absolutely committed" to implementing it.

The government brought forward the Children and Young People (Information Sharing) (Scotland) Bill in a bid to make the necessary changes, and Holyrood's education committee is examining the new legislation. The submission from the Faculty of Advocates forms part of this process.

In their written remarks, the Faculty said the principal issues raised about the legislation were not easy to resolve, and said that "some of the criticisms of the Supreme Court will continue to apply if the bill as drafted is passed".

They said that named persons - non-lawyers, who would not be familiar with complicated legal guidance - would be required to "carry out a proportionality exercise" as part of the role, while balancing their other work.

They described this as "an exceptionally difficult requirement" which "risks making their job considerably more difficult and undermining the trust of families and the willingness to share information with the professional concerned".

'Complex exercise'

The submission said: "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."

Similar concerns were raised by City of Edinburgh Council in its submission, which said guidance would need "further clarification for day to day practice". However East Ayrshire Council said their response was "wholly positive".

NHS Highland meanwhile raised questions about the difficulty of assessing whether young children were capable of making their own decisions over information sharing.

Opposition parties backed the lawyers' submission, with the Scottish Conservatives saying the Faculty were "correct" in their criticisms.

Education spokeswoman Liz Smith said: "The new bill does not fully address the concerns raised by the Supreme Court. The Scottish government should finally do the honourable thing and abandon this unwanted and expensive policy."

Campaigners fear the scheme will cause unnecessary intrusion into family life

Scottish Labour's education spokesman Iain Gray said his party still backed the principles of the scheme, but said the SNP had "botched the legislation and lost the confidence of the public and professionals".

He added: "The Faculty is telling ministers that their attempt to correct the legislation is heading for the buffers too. SNP ministers had better listen, and get this sorted now.

"In particular the Faculty is right to say these amendments must be made in law, not guidance, and thereby subject to full parliamentary scrutiny."

'Clarity and coherence'

A spokesman for No To Named Persons, the campaign group which took the Scottish government to the Supreme Court, said ministers would be "better off scrapping the scheme altogether".

Announcing the planned changes in June, Deputy First Minister John Swinney said the court had "ruled definitively that the intention of providing a named person for every child to promote and safeguard their wellbeing was unquestionably legitimate and benign".

He said young people and families must have "confidence that their information will be shared only where their rights can be respected", saying the bill would achieve this.

A Scottish government spokesman said: "We are confident that the Children and Young People (Information Sharing) (Scotland) Bill fully addresses the issues raised by the UK Supreme Court.

"It will bring consistency, clarity and coherence to the sharing of information about children's and young people's wellbeing across Scotland.

"The bill will be subject to scrutiny and approval by the Scottish Parliament and we will continue to listen to views of stakeholders and the parliament through this process."