An examination of John Swinney's tortuous 'tweak':
Swinney’s tweak: a lesson in doublespeak
Swinney’s tweak: a lesson in doublespeak
Even before its examination by the education and skills committee, let alone scrutiny by a full complement of MSPs (which didn’t go well last time), the lawyers are crying foul on the new bill. Allan Norman, who got it completely right last time, has not minced his words, and now the Faculty of Advocates (who also got it right last time) has warned it is a recipe for confusion.
Service providers will have to do a series of proportionality calculations (we hope they all have A-grade passes in Higher Maths and Statistics) and document them before deciding whether or not they can lawfully process the personal data of children and any third parties – a convoluted exercise to reach a foregone conclusion (clue: they need to ask permission unless a child is at risk of significant harm).
Then, of course, there is the problem that none of this ‘absolute clarity’ actually appears in the bill itself; nor does the all-important child protection threshold (clue: it’s not ‘wellbeing’), below which consent is required unless the data processing is ‘necessary’ (clue: promoting/safeguarding ‘wellbeing’ fails that test) and ‘in accordance with the law’ (clue: ECHR and the Data Protection Directive, soon to become GDPR).
Instead, a woolly Code of Practice has been produced that seeks to blur the boundaries between risk of significant harm (where information sharing is mandatory and uncontentious) and risk of not meeting state-dictated wellbeing outcomes (which requires informed consent).
The subject access request mountain is going to be epic (as the young people say), and front-line practitoners will need more than the Faculty’s suggested helpline to support them in ‘getting it right’ – especially if it is manned by the likes of Alan Small, erstwhile head of informaton sharing with the Scottish government’s GIRFEC team and former chair of Fife’s child protection committee, whose track record in protecting children is a disturbing D-minus.
Child protection is a deadly serious business where delays can cost lives and crucial evidence, as Police Scotland has previously warned. So let’s just abandon the idea of a phone chat with Alan the friendly mechanic for advice on the tyre pressure of a dodgy SHANARRI wheel in a desperate bid to to keep an unroadworthy wellbeing wagon on the road of allegedly good intentions.
The vitriol and smears aimed at opponents of the named person scheme have undoubtedly damaged the reputation of the parliament and its elected members, many of whom apparently believe that human rights should apply only to those they approve of. These are the people who work for us, all of us, but who treat some of us as Untermenschen unworthy of representation. To their shame, many MSPs have failed to act on behalf of constituents whose rights have been, and are still being, infringed as a direct result of their own rank incompetence as legislators.
The government was meanwhile stuck with an enormous credibility problem in that an unlawful information-sharing regime of the totalitarian flavour had been operating across Scotland since the issue of that non-compliant ‘guidance’ back in 2013. There was only one thing for it: outright denial. And that is exactly what we got when ‘honest John’ Swinney said that the ruling did not affect current arrangements and refused to concede that GIRFEC had long since descended into a dangerous game of Grand Theft Data.
Fake facts continued to be peddled in the ‘shared new language’ of Scotspeak that losing was the new winning, even after the ‘losing’ winners were awarded their full legal costs. One BBC interviewee was so disturbed by the rhetoric of Highland Council’s cheerleader-in-chief that she formally challenged his assertion that information sharing was fully consent based when his council’s own guidance clearly stated otherwise. Predictably, she was faced with the same brick wall of denial that scores of complainants had hit head-on before her.
Such a damaging debacle surely also merits a full public inquiry, but who could possibly be qualified to conduct it, given the spread of the data sharing disease that has dealt a near-fatal blow to the human rights of children and families across Scotland?