Following the passage of the Children and Young People (Scotland) Bill, Schoolhouse has written to the Secretary of State for Scotland requesting that he refer the legislation to the Judicial Committee of the Privy Council under Section 35 of the Scotland Act. We are aware that we are not alone in urging this course of action in the light of legal opinion from senior counsel and advice from a constitutional law expert.
We have reproduced in full the text of our letter to the Secretary of State for the elucidation of those who may still be unaware of, or who have been deliberately misled regarding, the far reaching consequences for every family in Scotland of specific aspects of the Bill. We would also refer interested parties to our petition which has attracted more than 2800 signatories who oppose the universal data gathering and sharing without consent and the Named Person provisions contained within this piece of incompetent, anti-family legislation. Tony Benn described this sort of intrusion into family life as “the sort of thing Hitler talked about” and who in their right mind (as defined by these handy mental health indicators) could possibly disagree?
The Rt Hon Alistair Carmichael MP
Secretary of State for Scotland
19 February 2014
Children and Young People (Scotland) Bill – request for the Bill to be referred to the Judicial Committee of the Privy Council under Section 35 of the Scotland Act.
Dear Secretary of State,
I write on behalf of Schoolhouse Home Education Association, a registered Scottish Charity (No. SC026965) which exists to support families who elect to educate their children “by other means” in accordance with section 30 of the Education (Scotland) Act 1980.
A persistent issue for home educating families is needless and intrusive inquiries from public authorities. Documentation we see shows assessments of families by public servants that contain little more than subjective and, at times, damaging views of individual parenting styles. We see these issues becoming more acute if certain provisions in the Children and Young People (Scotland) Bill, which has just completed Stage 3 of its passage, become law. We are, therefore, formally requesting that you exercise your powers under the Scotland Act Section 35(1)(b) and make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.
We specifically object to the Named Person Service in Sections 19, 20, 21, 22, 23, 24 and 25 of Part 4 of the Bill. This legislation proposes that every child will be assigned a Named Person who will be a public employee working in health or education services. The Named Person will have a duty to report anything they perceive might affect an individual child’s ‘wellbeing’. Statutory indicators of ‘wellbeing’ are listed in Section 72 of Part 13 of the Bill.
With the exception of ‘safe’, none of the ‘wellbeing’ indicators is, of itself an indicator of a child at risk. Therefore, they are not necessary for the state to mandate as thresholds for compulsory involvement in family life by the Named Person. We, therefore, specifically object to Section 72 of Part 13 of the Bill.
We object to the powers of the Named Person because they impede and directly impact upon the rights and responsibilities of parents in relation to their own children. There is an obligation on the Named Person to interfere regardless of the wishes of the parent or child. The interference is universal, potentially unlimited and automatically overrides the consent of the parent. The effects of the Named Person’s rights over parents are not foreseeable. Specifically parents would not be in control of their family life whilst the Named Persons powers were engaged with them. Parents are excluded from being their own child’s Named Person. Parents are also denied any choice over who is assigned to them as Named Person.
We therefore contend that the Named Person provisions in the Bill engage Article 8 of the European Convention on Human Rights on the grounds that they are not necessary, they undermine family autonomy and do not respect private and family life.
We also specifically object to the information sharing provisions in Section 26 of Part 4 of the Bill. We have previously commented on Section 26, in detail, in our attached submission to the Education and Culture Committee’s consultation on the Bill which was prepared on our behalf by Allan Norman.
This legislation proposes that information can be shared, without consent, with the Named Person on the basis of the ‘wellbeing’ indicators in the Bill. We quote from paragraph 9 of our submission:
‘It follows that any legislative provision which purports to allow information sharing which is neither consensual nor necessary, will fall foul of the Data Protection Act and the EU directive from which the Data Protection Act derives.’
Significantly, in our submission, we made reference to the Haringey judgement (S. and Marper v. The UK), which found that it was not necessary to share information without consent where the child was not ‘at risk’.
We contend that Section 26 breaches the Data Protection Act because it permits information to be shared without the parents’ freely given, specific and informed consent, when the child is not ‘at risk’.
The concerns raised in our submission were not adequately addressed either in the Policy Memorandum to the Bill, in Committee or in Parliamentary debate. We are, therefore, concerned that there has been insufficient consideration of the legal compliance of the aforementioned issues for the Bill to achieve Royal Assent.
The Bill, as passed at the 3rd Stage on 19 February 2014 does not, in our view, comply with the reserved matters of the European Convention on Human Rights, Council of Europe Convention 108, Directive 95/46/EC of the European Parliament or The Data Protection Act 1998.
We, therefore, request that the Secretary of State prohibits the Presiding Officer from submitting the Bill for Royal Assent under Section 35(1)(a) of the Scotland Act because the Bill is incompatible with the United Kingdom’s international obligations.
We further request that the Secretary of State prohibits the Presiding Officer from submitting the Bill for Royal Assent under Section 35(1)(a) of the Scotland Act because the Bill has an adverse effect on the operation of the law as it applies to the reserved matter of the Data Protection Act 1998.
Schoolhouse Home Education Association