SNP forced to gut powers of 'state guardians' after Supreme Court defeat

Simon Johnson
John Swinney and Nicola Sturgeon have been forced to completely overhaul their Named Person scheme - PA

Nicola Sturgeon’s government has been forced to gut its plan to assign every child a state guardian by scrapping all the role’s most significant powers, under a major climbdown to make it lawful.

John Swinney, the SNP Education Minister, announced that a new Bill would be tabled before the end of June to completely rewrite the Named Person’s powers after the UK Supreme Court ruled parts of the original proposal breached parents’ human rights.

He said this meant the scheme would be delayed again, until 2018, and attempted to put a brave face on the change by insisting that the Scottish Government remained “absolutely committed” to the concept.

It will introduce a named person for every child under 18, with health visitors assuming the role for pre-school children and teachers and councils for older youngsters.

But it emerged that the Named Person’s two major powers have been drastically watered down, with those holding the role unable to share confidential information about children without parents’ permission in all but the most “exceptional” of circumstances.

This gives parents an effective veto over the scheme by allowing them to withhold consent. The Named Person’s lower threshold for intervention – to protect children’s wellbeing - has also been brought back into line with the existing law.

Although they will have to consider whether sharing information would help a child’s wellbeing, they will only be able only act without parental consent if youngsters are deemed to be “at risk” of abuse or neglect

Protestors standing outside the Supreme Court in London last year demonstrating against the Scottish government's Named Person scheme  - Credit: PA

The No to Named Persons (NO2NP) campaign, which won the Supreme Court battle, said the “central element of the scheme is now history” and the extent of the climbdown showed “what a complete waste of time and money it has been.”

Simon Calvert, NO2NP’s spokesman, hailed a “major victory for parents” He said: “However they try to spin it, this is a major climb down by the Scottish Government.

“After two years of causing fear and confusion amongst parents, they are now conceding that they cannot lower the threshold for non-consensual disclosure of personal information on families. They are reverting to the existing threshold of ‘risk of harm’.”

He attacked as “pointless and superfluous” Mr Swinney’s pledge to legislate to ensure Named Persons can only share information if that would comply with existing data protection, human rights and confidentiality laws.

Scotland’s family doctors also welcomed the about-turn, saying they had raised concerns about the information-sharing requirements since the original legislation was first considered.

Dr Alan McDevitt, chairman of the British Medical Association’s GP committee, said: “Confidentiality of personal health information is the cornerstone of the patient/doctor relationship. 

“Patients need to be reassured that their health information, which they share in confidence with a doctor, will be treated confidentially otherwise they may feel unable to trust and seek help from healthcare professionals.”

But the Scottish Tories said that Mr Swinney should scrap the scheme entirely “rather than muddy the waters further”, arguing that every opinion poll shows it is opposed by parents.

Liz Smith, the party’s Shadow Education Minister, said: “This is a scheme that has run aground and the fact the delay is now at two years shows exactly that.”

John Swinney outlined his plans for a new Bill - Credit: PA

In a statement at Holyrood, Mr Swinney confirmed that the parts of the Children and Young People Scotland Act that included the Named Person scheme would have to be replaced.

He said those in the role would be duty bound to consider whether sharing information about a child would “promote, support or safeguard the wellbeing of the child or young person".

But he confirmed they would only be able to do so if that would be compatible with data protection law, human rights and confidentiality restraints.

The Deputy First Minister said: "Only if information can be shared consistently within these legal constraints will there be a power to share it and the legislation will make this clear."

Mr Swinney announced a new section will also be added to the 2014 Act to allow guidance to be produced to help Named Persons conduct their duties within the law.

A taxpayer-funded public information campaign will also be launched to win over parents following the barrage of negative publicity the scheme has received.

SNP ministers argued the scheme was needed to identify at-risk children earlier but the Supreme Court objected to the ability of named persons to share confidential information with a wide range of public bodies without having to obtain the consent of children or parents.

The judges ruled it was “disproportionate” that the state guardians could do this merely if they thought it would help them to monitor the child’s needs or to protect “wellbeing”.

Although they found the policy’s intentions were “benign”, they also noted that the “first thing that a totalitarian regime tries to do is get at the children”.

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