Named Person Policy

Part of the debate – in the Scottish Parliament at on 8 September 2016.

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Photo of John Swinney John Swinney Scottish National Party

On Liz Smith’s first point, I set out in my statement the current legal position, which is that, if any local authority wishes to provide the service, it must ensure that it is compatible with the requirements of the Data Protection Act 1998 and the Human Rights Act 1998. That is the legal framework within which local authorities must act in designing their schemes. In my statement, I made a distinction between that framework and the provisions in the Children and Young People (Scotland) Act 2014, which the Supreme Court has clearly said require to be altered. That legal framework has not come into force and has not been enacted. It was to come into force, but the Supreme Court has said that it cannot unless it is revised. Local authorities must vest their schemes in the existing legal framework that precedes that, and I cited the basis on which that should be done.

On the second point that Liz Smith raised, I am glad that she put in the caveat that we do not reveal our legal advice, because we do not reveal it. I point out to her that the Parliament considered all those issues when it legislated in 2014 and came to its conclusions. The act was then tested in the outer house and the inner house of the Court of Session, and the legal challenges were dismissed in both those courts. Therefore I do not think that it is fair for her to say that somehow the Government has not taken due care or paid due attention in taking forward the legislation, because we have had it tested already in the two highest courts in Scotland and the legal challenges were dismissed.

The Supreme Court has taken a different view in relation only to the information-sharing provisions. The roots of the decision and judgment of the Supreme Court in July come from the thinking that has emerged, originating in the Supreme Court’s handling in June 2014 of a case against the chief constable of Greater Manchester Police. At that point, the Supreme Court attached much greater significance to the vesting of provisions in relation to convention rights in accordance with law, to use its term. That judgment postdated the passage of the legislation by the Scottish Parliament earlier in 2014.

In answering the point about the legal strength of our arguments, I say to Liz Smith that the consideration of the bill and the dismissal of the challenges by the inner and outer houses of the Court of Session are a strong vindication of the legal position taken by the Parliament. I have cited the basis on which I think that there has been an emergence of thinking within the Supreme Court that opens up what I consider to be a new point of analysis on convention rights in accordance with law, which postdates the passage of the legislation in this Parliament.

The final point on wellbeing and welfare is a very substantial point because it relates very directly to one of the other terms that Liz Smith used, which was the question of threshold. The Supreme Court judgment raised the issue with us. I do not take the view that this should just be about welfare; I believe that it should be about wellbeing too, because that is at the heart of GIRFEC and it is what provides for our early intervention activity to address difficulties that young people face to try to avert those and prevent them from becoming more serious. However, there has to be an appropriate threshold. That is the issue that now has to be examined as part of the analysis that I have undertaken.

I hope that that provides clarity on what will be in my mind and the mind of the Minister for Childcare and Early Years as we go about the process of ensuring that the legislation is given absolutely secure foundations and that it fulfils its purpose, which is to be of value as an asset to protect the wellbeing of children in Scotland and to make sure that we can deliver the best outcomes for every single one of them. In that respect, I am an unapologetic advocate of getting it right for every child, and that will drive everything that I do as the education secretary in this Parliament.