Sector briefings on draft Information Sharing Bill
Date: 4th September 2017
Category: General principles, Protection of privacy
Views were recently sought on the draft Children and Young People (Information Sharing) (Scotland) Bill by the Education and Skills Committee.
Together and several of its members published briefings on the history of the draft Bill and next steps, including Clan Childlaw who have called to scrap the revised law on information sharing.
The Information Sharing Bill and an illustrative Code of Practice were introduced to the Scottish Parliament in June 2017 to respond to the Supreme Court's judgment that the information sharing provisions of the Children and Young People (Scotland) Act 2014 did not comply with article 8 of the European Convention on Human Rights.
The Supreme Court ruled that information-sharing provisions included in the Named Person scheme in Part 4 of the Children & Young People (Scotland) Act 2014 may result in a disproportionate interference with the rights of children, young people and their parents under Article 8 of the ECHR. The Court was very clear that the policy intention behind the 2014 Act is 'unquestionably legitimate and benign' and does not breach human rights.
The Supreme Court ruling provided an opportunity to ensure that children and young people's rights are fully respected, protected and fulfilled throughout the implementation of the Named Person scheme. Central to revisions made to the Children and Young People (Information Sharing) (Scotland) Bill must be the Court's conclusion that safeguards should be put in place to allow children, young people and their parents to provide consent to the sharing of confidential information, and to be informed if - and when - information is shared. As it works on the necessary amendments to the Named Person scheme, it is essential that the views of children and young people, as well as their parents and practitioners are sought and listened to.
In response to the draft Children and Young People (Information Sharing) (Scotland) Bill and accompanying illustrative Code of Practice, a number of children's organisations published briefings including Together, Clan Childlaw and the Children and Young People's Commissioner for Scotland (CYPCS).
Specific issues were raised by the Supreme Court in relation to a lack of 1) clarity on information sharing 2) safeguards and 3) requirement to gain consent to share information. The Supreme Court judgment expressed concern at the lack of safeguards against disproportionate sharing of information. These safeguards must include requirements that children, young people and their parents provide consent to the sharing of confidential information, and are informed of the possibility that information will be shared.
The draft Children and Young People (Information Sharing) Bill and illustrative Code of Practice do not adequately address all concerns raised by the Supreme Court. The new Bill and illustrative Code of Practice takes steps to help safeguard the proportionality of information shared. They do not succeed in providing clarity as to when or how to share information about children and young people, or ensure that the views of children and young people are taken into account when sharing information about them. The issue of consent has not been included on the face of the new Bill.
Clan Childlaw has long expressed concerns about the infringement of children's rights by proposed duties on professionals to share information about children. They were the "Interveners" in the Supreme Court case. The Supreme Court agreed with Clan Childlaw that previous legislation was outwith the legislative competence of the Scottish Parliament, in that the information sharing provisions were incompatible with the rights of children, young persons and parents under article 8 of the ECHR.
In Clan Childlaw's view, adding the proposed legislation to the existing, complex legal framework would not simplify matters. It would not alter the circumstances in which information can lawfully be shared. It is unnecessary and disproportionate to legislate in order to "encourage" the sharing of information. Legislation also has considerable financial implications. Those resources would be better directed at investing in the development of clear, robust, and accessible National Guidance and support to professionals around its implementation.
Clan have instead called for the Government to scrap the law intended to 'fix' its Named Person policy.
Children and Young People's Commissioner for Scotland (CYPCS)
Draft bill: the draft bill is intended to address the technical deficiencies in the 2014 Act relating to information sharing by amending the Act to ensure it is compliant with the Data Protection Act (DPA) 1998 and with the ECHR. The bill as currently drafted does not achieve this.
The bill removes a duty to share information with the Named Person and replaces it with a two-stage process: a duty for any practitioner working with a child to consider whether information should be shared followed by a duty to consider whether sharing it would be permissible in terms of the DPA. For information sharing to comply with current data protection legislation, it needs to be proportionate, relevant and appropriate. CYPCS are concerned that the threshold for sharing data proposed by the 2014 Act had been lowered to a point where there was a risk of the child's right to privacy might be violated. The current bill does not add any clarity on this.
Code of Practice: CYPCS state they do not believe that any Code of Practice prepared along the same lines as the current illustrative Code of Practice could provide practitioners with the guidance they need to ensure that information sharing is carried out in line with data protection legislation.
The Code of Practice and any accompanying guidance must be grounded in children's rights and provide practical advice to all practitioners working with children and young people. Consent should be at the heart of decisions about information sharing and it must be made clear the sharing of information without consent should be exceptional. The circumstances in which information can be shared should be explicitly detailed. The code and any guidance must be written in language which will be easily understood by all practitioners working with children. This is vitally important not just to prevent information being shared unlawfully but also to provide practitioners with the confidence to share information when it is necessary to protect children's rights.
The consultation on the draft Children and Young People (Information Sharing) (Scotland) Bill and illustrative Code of Practice by the Education and Skills Committee closed on 25th August. Together will keep its members informed of further developments in the coming months.