The Children and Young People (Information Sharing) (Scotland) Bill was introduced in the Scottish Parliament on 19th June 2017 in an attempt to address the illegalities contained in Parts 4 and 5 of the Children and Young People (Scotland) Act 2014 as ruled by the UK Supreme Court on 28th July 2016.
The Bill seeks to respond to the UK Supreme Court ruling through amending Parts 4 and 5 of the Act by, specifically, replacing the duty to share information with a "duty to consider" sharing information in regards to the function of promoting, supporting or safeguarding the wellbeing of a child or young person.
Such considerations must be taken in accordance with the Data Protection Act 1998, any directly applicable EU Law and any other act with common law. But crucially there are no requirements to consider the implications of the General Data Protection Register (GDPR) which comes in to force in May next year.
The Bill seeks to give a power to share such information where it could promote the wellbeing of the child. Yet, despite the UK Supreme Court specifically recording that "Wellbeing is not defined", the Bill does nothing to address this, leaving 'wellbeing', the concept upon which all of the actions and decisions of practitioners are based, undefined and open to subjective, arbitrary opinions and bias.
In accordance with the judgment from the UK Supreme Court, the Bill places a duty on Minsters to issue a Code of Practice for Named Persons on how they are to undertake the duty to consider whether information can be shared and how it can be shared. However, it is proposed by the Scottish Government that the Bill be passed by Parliament BEFORE the final Code of Practice is prepared. Therefore any Code of Practice will be an instrument of government prepared and implemented without Parliamentary scrutiny or need for approval.
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