Children’s Data in Scotland: When Watchdogs are Lapdogs

For the past 3 months the Scottish parliament’s Education and Skills Committee has been taking evidence for the rewrite of its Children and Young Person act (Scotland) 2014; commonly known as the Named Person scheme. This is due to the Supreme Court ruling on 28/07/16 that revoked part 4 and 5 from law due to it being incompatible with article 8 of the European convention of Human Rights (ECHR).

Getting It Right For Every Child (GIRFEC) is the Scottish government’s first step in response to the United Nations Convention on the Rights of child (UNCRC) and was meant to bring the spirit of UNCRC into Scots Law. But I have my suspicions that nobody actually read UNCRC. There is nothing in UNCRC that isn’t already in ECHR, which already puts our human rights into law. To get technical, Article 8 of ECHR, which deals with the right to a private family life, can easily be found in articles 3.2, 5, and 16, of UNCRC. The articles also addresses the Supreme Court ruling about privacy, and how parts 4 & 5 were incompatible with article 8 ECHR.

There were three aspects of the evidence sessions that need to be flagged.

First , on 20/09/17 Professor Hugo Van Woerden noted that children of 12 years and above have the legal capacity to consent to their data being shared. However, to satisfy the legal competency to consent, a person also has to be “competent in well-being”, which is a term meaning that the child has to have skills in understanding what well-being actually is. Professor Woerden suggested possibly the Named Person GIRFEC approach should only apply until the age of 12. This left me wondering; if a 12 year old is competent in well-being, then why aren’t their parents?

A second flag was evidence given on 21/10/17 by Detective Chief Inspector Norman Conway (Police Scotland):

“After the [Scottish Information Commissioner Office] guidance in 2013, we started to think that we had good grounds for actively sharing wellbeing information about children”.

What struck me was the date. The Children and Young Person act (Scotland) wasn’t passed by the Scottish parliament until 2014 and the Named Person scheme wasn’t meant to commence until August 2016, yet Police Scotland were considering the issue in 2013. This confirmed what many parents and other critics of the scheme suspected; that there had been non-consensual data sharing on well-being concerns about children across the public services right up until the Supreme court ruling. Police Scotland were somehow given a green light and were, possibly illegally, data sharing with other public bodies that have anything to do with children, such as schools, the NHSS & social workers.

It seems to me that The Scottish Information Commissioner’s Office (ICO), instead of holding the Scottish government to account, rolled over and jumped on board a mass data mining exercise of every family in Scotland, in the name of “well-being”, by advising public bodies such as Police Scotland that the data protection act wasn’t to be seen as a barrier to data sharing.

This revelation is in contradiction to the Cabinet Secretary for Education and Skills’ official statement on 08/09/16. John Swinney said that information sharing provisions weren’t in force yet, as the Supreme Court ruling was prior to the commencement of the Named Person scheme. He also repeated it to the Education and Skills Committee on the 14/09/16 and placed the onus on Local Authorities to have acted within the law.

For three years, between 2013 and 2016, public bodies had been clearly willy-nilly data sharing well-being information on children and their families. This also extended to the third sector, which in itself is third-party data sharing, and it was all done without consent of the child or parents/guardians being sought.

It leaves me wondering if there will be a Scottish parliamentary inquiry on illegal data sharing and what will happen with the data which was gathered in the name of well-being?

The third flag was during the evidence session on 01/11/17. The NO2NP campaign fought for inclusion in the session but was met with contempt by some members of the committee, including the convenor. The NO2NP campaign consider that they are fighting for the human rights of the Scottish people. However, the hostility of the Scottish government comes from their reluctance to back down on the Named Person scheme; they would rather write a pointless law creating guidance for the so-called named person themselves to follow current law, than admit they were wrong and apologise for breaching rights.

Scotland has one more watchdog des look out for Scotland’s human rights, especially children’s, which is the Children and Young Person Commissioner of Scotland(CYPCS). Surely CYPCS, who actively promotes UNCRC, would hold the Scottish government to account but, alas, CYPCS also jumped on board data mining families in the name of “well-being”.

Well-being isn’t to be confused with child welfare. Child welfare has always had the ability to multi-agency data share at the point of significant harm. Well-being has no definition in law and it was noted by the Supreme Court that SHANARRI well-being indicators (another Scottish Government acronym for, Safe, Health, Active, Nurtured, Achieving, Respected, Responsible and Included) had been notably vague.

Well-being can’t be defined in law because one man’s trash is another’s treasure and is completely unique to the individual. Despite agreeing that well-being can’t be defined, the Scottish government seems to think that a magical data gathering exercise on every child in Scotland will produce interventions and ensure future woes will disappear.

What hope have the people of Scotland in having their human rights upheld that don’t involve expensive court cases? Even a win would be bitter-sweet win as we pay either way if the watchdogs are nothing more than lapdogs to the Scottish Government.


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