John Swinney at an impasse of his own making

John Swinney at an impasse of his own making

by Elizabeth Smith
article from Monday 6, November, 2017

NOT SURPRISINGLY, the SNP has gone very quiet about its named persons policy. This is not because the policy is now so discredited – the public have seen to that – but because the proposed amended legislation and its accompanying code of practice have hit the parliamentary buffers.

Inexplicably, the SNP has got parliamentarians into a situation where they are left unable to scrutinise the proposed changes and therefore unable to make an informed decision about the new bill before them.

In July 2016, the Supreme Court ruled that the information sharing part of the named person policy was unlawful. This is because judges did not believe sufficient safeguards were in place to prevent undue interference in family life in circumstances which were below the threshold of child protection – something that is well defined in law.

However, the much more general concept of a child’s “wellbeing”, is entirely subjective and, most importantly, has no definition in law. Herein lies the major problem. We have the Supreme Court telling the Scottish Government that it needs to put proper safeguards in place to avoid any unlawful sharing of data, but ministers have singularly failed to provide clarity about what these safeguards are. They have failed to define “wellbeing”.

Instead, ministers produced an illustrative code of practice. This was supposed to resemble what the guidance will look like for practitioners when they come to implement the revised named person policy. Unfortunately for the SNP, however, it transpires that this illustrative code will almost certainly end up very far removed from the final version which, as yet, does not exist. In other words, all those witnesses who have recently provided evidence to parliament have been providing evidence about a code that is, in effect, meaningless. The Information Commissioner told the Education Committee that the illustrative code was “not fit for purpose”.

This is an entirely unsatisfactory situation, both in terms of the lack of effective scrutiny which, after all, is a key duty of any parliament, and in terms of the impasse which has been created for practitioners.

Put yourself in a practitioner’s shoes. As a teacher or social worker or health visitor you want to know exactly where you stand in relation to the law, what rights you have, when you can and cannot share information and who will back you up when you make what is a very important decision about a child.

If Named Persons have a muddled piece of legislation and a meaningless code of practice before them, none of these things is clear. As a result, they are even more anxious than they were before and so too are parents. Indeed, we have some parents alleging that data has already been unlawfully shared which, if true, will mean more legal action.

This is an extraordinary situation to be in not least because all the practitioners who are supposed to be implementing the policy (many of whom previously supported the named person policy) are telling MSPs that this fiasco is diverting their attention away from helping our most vulnerable children. They rightly worry that the huge burden already placed upon them – without the necessary resources to assist them – is now accompanied by a complete muddle over where they stand as Named Persons. This is hardly the basis for establishing trust between Named Persons and parents which has been the fundamental weakness all along. In fact, some practitioners are now suggesting that Named Persons will shy away from making decisions because they feel so vulnerable in terms of the law.

Meanwhile, parliamentary opinion has moved on. The debate is no longer about whether the named person policy is a good or a bad thing in principle. It is about whether the policy is workable and the overwhelming response from the Named Persons themselves is that it is not. No longer does it have support as the best policy for helping our most vulnerable children which, after all, is surely the most important aim in all of this.

We have ended up in a situation where parliament is unable to move on. The Education Committee, in good faith, and with assiduous convenorship, has taken evidence over no fewer than six sessions. Each time, we have been told the same message; you are asking us to make decisions about a code of practice that does not exist.

As a result, the bill and its accompanying code are in serious trouble and the SNP knows it. There is, quite frankly, no way out of this impasse unless the bill is scrapped and we start again. As parliamentarians, we owe it to the public that we will do our jobs as MSPs properly, but with this mess that is simply not possible. Just as importantly, we owe it to our hardworking practitioners and our most vulnerable children not to pursue a policy that is fundamentally flawed and in danger of doing more harm than good.

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