The court of session in Edinburgh dismissed the concerns of Christian charities about the government's named person scheme as 'hyperbole' last week.
Three judges, led by Lord Carloway also rejected the intervention by Clan Childlaw, which had piggybacked on the action, in order to raise its own issues about data protection.
The charity, which offers legal advice and guidance on their rights to young people, had claimed the law reduced the threshold at which information about young people could be shared. This was dangerous, according to Alison Reid, of Clan, because it meant young people themselves were less likely to volunteer information, knowing it might be more likely to be passed between agencies such as schools, clinics and social work departments.
The legal argument advanced by Clan was that whereas previously the law required children to be at risk of significant harm for a worker to be able to breach a child's confidentiality, named persons were able to do so merely on the grounds of concerns about a child's welfare.
As a threshold this is significantly and obviously lower, the charity says, and risks leaving children with no realistic expectation of confidentiality at all. Why would a child concerned about their mother's alcoholism, say, or a teenager in a sexual relationship, or dabbling in drugs, seek any advice at all from an adult when anything they reveal will potentially be passed on?
Lord Carloway's ruling more or less dismissed all this as a red herring - the court actually used that term. Clan's point might have been valid, he said, but relied on the contention that the 2014 Children and Young People Act would "in some way trump" the Data Protection legislation. However that is not the case. Existing law continues to apply, in terms of thresholds for breaching confidentiality and sharing information, while the named person plans "do not involve the creation or collection of any new data; personal, sensitive or otherwise".
The court of session's ruling that named persons must operate within the confines of the data protection regime, as Lord Carloway puts it, is a useful clarification. It is one the Scottish Government should make sure all the relevant parties are aware of, because a lack of clarity about how the scheme will operate is one of the most justifiable criticisms of the Government's named person initiative.
Lord Carloway points out that if data protection rules are broken, a young person could challenge that legally, or the person responsible could be prosecuted. But it is surely better to prevent that happening in the first place.
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