I am happy to do that. My intention is to provide a bit of background to the bill and an explanation of what its provisions will do. I will also address the financial memorandum and delegated powers within the bill, which the convener has just mentioned.
The Children and Young People (Scotland) Act 2014 provides the statutory underpinning for the getting it right for every child approach, which is our national approach to improving outcomes and supporting the wellbeing of children and young people by offering the right help at the right time and from the right people. The named person service and the child’s plan are central to the approach; they put the wellbeing of every child and young person at the centre and ensure that services work together to support children, young people and their families.
The policy was developed in response to real-life experiences and expert advice that a timely and early offer of advice or help can prevent troubles from becoming crises. It was developed in response to parents asking for a clear point of contact for children, young people and their parents, should they be seeking support, information or advice.
The Scottish Government is committed to ensuring that all children and young people have access to the same standard of support, irrespective of where they live, and it remains committed to provision of a universal named person service for all children and young people up to the age of 18. It is against that backdrop that the 2014 bill was passed.
As members know, the 2014 act was, in the case of the Christian Institute and Others v the Lord Advocate, challenged as being outside the Scottish Parliament’s legislative competence. The grounds for challenge were that part 4 of the act, which relates to the named person service, related to reserved matters and that it was incompatible with the European convention on human rights and European Union law.
In July 2016, the Supreme Court gave its decision. It dismissed the challenges on reserved matters and EU law. On the human rights challenge, the Supreme Court found that the provision of a named person service was
“unquestionably legitimate and benign”.
However, it went on to find that the information-sharing provisions in part 4 were not in accordance with the law. In brief, that was because of the very serious difficulties in accessing the relevant legal rules and a lack of safeguards that would enable the proportionality of an interference with article 8 rights to be examined.
What has happened since the Supreme Court case? The Scottish Government held an intense period of extensive engagement between September and December 2016. It included more than 50 meetings with about 250 organisations and groups. We heard from about 700 young people, parents and carers, practitioners, professionals and leaders from education, health, local authorities, the police, faith communities, unions and charities. Through that engagement, we also listened to those who had raised concerns about the named person policy, including Christian Action Research and Education for Scotland, Clan Childlaw, Together and the Scottish Parent Teacher Council, among others.
The bill seeks to address the points that were raised by the Supreme Court and to ensure that decisions around sharing of information are taken in partnership with children and young people and their parents. That is something that children and young people, parents and practitioners expressed was a key issue for them, and it is core to the getting it right for every child approach. The bill will make changes to parts 4 and 5 of the 2014 act, which relate to the named person service and the child’s plan. The changes that the bill will make relate to information sharing only. It seeks to clarify the provisions around information sharing and to ensure that proper safeguards are in place.
In relation to part 4 of the act, on the named person service, the bill will substitute a new section 26 and insert a new section 26A. Those sections relate to the provision of information by or to a named person service provider. The previous duty to share information under the 2014 act will be removed and replaced with a new duty to consider sharing information. First, the named person or other information holder who is seeking to share information with the named person service provider must consider whether providing the information
“could, in its opinion, promote, support or safeguard the wellbeing of the child”.
Secondly, the provider will have to consider whether the relevant information could be shared in accordance with the law. That includes data protection law, human rights law and the law of confidentiality.
Thirdly, the bill provides a power to share information. That means that there will no longer be a duty to share information, but named persons and others who seek to share information with the named person will be able to continue to exercise their professional discretion.
Section 1 of the bill will amend section 23 of the 2014 act, on communication in relation to the movement of children and young people. The changes, which are similar to those that I have just set out, will ensure that information may be shared where that
“could ... promote, support or safeguard the wellbeing of the child or young person.”
There is also similar provision making it clear that information can be shared only where that is in accordance with the law, which includes data protection law, human rights law and the law of confidentiality.
The proposed new section 26A makes it clear that information cannot be shared under part 4 unless the Data Protection Act 1998 and other relevant law can be complied with. It also ensures that information cannot be shared where that
“would prejudice the conduct of a criminal investigation or the prosecution of any offence.”
With regard to delegated powers, the bill will introduce a new section 26B into the 2014 act, which will place a duty on ministers to issue a code of practice about the provision of information under part 4, which means by or with named person service providers. The bill provides for the code to be binding and states that it
“must ... provide for safeguards applicable to the”
sharing of information. The bill sets out the procedure that must be followed before issuing a code of practice, which is akin to affirmative procedure. It places obligations on ministers to consult relevant persons, to lay a draft before the Parliament for 40 days and to take account of any views expressed by the Parliament.
Although the Supreme Court focused on part 4 of the act, in relation to the named persons service, the bill will make similar changes to the information-sharing provisions in part 5 of the 2014 act, which relates to child’s plans. In particular, it will bring those provisions into alignment with the new provisions on information sharing under part 4, thereby making clear that information can be shared only where that is in compliance with the law and where it would not
“prejudice the conduct of a criminal investigation or the prosecution of any offence.”
Proposed new section 40B will place a duty on ministers to issue a code of practice in relation to the sharing of information under part 5, in the same way that proposed new section 26B will in respect of the named person service. The committee has been provided with an illustrative draft code of practice. That is intended to assist the committee in understating how the power to issue a code of practice could be used. It is intended to be an illustration only and shows how a code of practice could provide for additional safeguards in relation to information sharing. As it is an illustration, it was drafted with regard to the law as it presently applies. The illustrative code is set out in two parts: the first concerns safeguards and the second is a description of the relevant law. Those are both aspects on which the Supreme Court focused.
The code sets out the steps that the named person service provider, or the relevant authority seeking to share information with a named person, must follow in order for the information sharing to be in compliance with the law. It sets out the responsibilities to inform the person to whom the information relates and the need to seek consent, which will be applicable in most circumstances. Practically, that is likely to be the consent of the child or young person or their parents. It sets out the responsibilities that apply in the limited circumstances where the law permits consent not to be required, including steps to inform persons affected before or after sharing. Importantly, the code does not change the law on data sharing or human rights, but sets out the safeguards that must be followed to ensure that information sharing is in compliance with the law. The code also contains requirements to records decisions, which is an important part of good decision making.
The second part of the code provides a description of the relevant law. Again that is because of the importance that the Supreme Court placed on the matter in its decision. As I said, the draft that has been published is for illustrative purposes only: any code of practice will be subject to consultation and the procedure that is set out in the bill.
Before taking questions, I will address the financial memorandum. The Scottish Government has supported local implementation of the getting it right for every child approach by providing £10.2 million to local authorities to prepare for the commencement of parts 4 and 5 of the 2014 act. Prior to the planned implementation date of August 2016, local authorities, health boards, Police Scotland and other organisations had confirmed that they were ready and prepared to be compliant with those parts of the 2014 act on commencement.
The financial memorandum sets out the additional costs of £1.2 million that will be required to develop training and learning materials to support national consistency and to backfill for staff who are undergoing training on the new duties on information sharing only, which are set out in the bill.
The financial memorandum is based on the same modelling that was agreed with stakeholders and Parliament during the passage of the 2014 act. The expectation is that that training will complement and become part of the regular supervision and continuous professional development requirements that professionals undertaking the named person and child’s plans responsibilities already undertake. That will be supported by revised statutory guidance under the 2014 act, and by information and practice materials that the GIRFEC policy team will be developing in collaboration with children, young people and practitioners in advance of implementation.
I hope that that summary has been of assistance to the committee. My colleague and I are happy to answer any questions.