Meeting of the Parliament

Meeting date: Thursday, September 19, 2019

Official Report 999KB pdf

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Getting it Right for Every Child (Practice Development Panel Report)

The next item of business is a statement by John Swinney on the getting it right for every child practice development panel’s report. The cabinet secretary will take questions at the end of his statement, so there should be no interventions or interruptions.

14:47  

There is wide agreement across the chamber that we want to get it right for every child so that they can grow up loved, safe, respected and able to reach their full potential. However, too often, we have all heard of cases where children and families have not had access to the support that they need. The named person service was designed to help to address that and to ensure that every child in every part of Scotland would be able to get the support that they need, when they need it. That is a key characteristic of getting it right for every child, and I reaffirm the Government’s commitment to that policy direction today.

I believe that everyone in the chamber shares our aim of promoting the wellbeing of Scotland’s children, even if we sometimes disagree on how best to do that. Naturally, parents are the biggest influence on a child’s wellbeing, as caregiver, role model, teacher and guide. However, sometimes, a child or their family might need some additional help.

I have had the great privilege of meeting people across Scotland who are passionate about providing that help, and I have seen powerful examples of the difference that they make to children’s lives. I want to make sure that that support is available to all who need it. Legislation to support the named person service was intended to help to do that. The aim, as set out in the policy memorandum to the Children and Young People (Information Sharing) (Scotland) Bill, has always been to have in place someone who can

“act as a clear point of contact for children, young people and their parents to go to, should they wish to seek support, information or advice. ”

That function has never really been controversial. Where there quite obviously has been significant controversy is around when and how information should be shared by and with a named person.

Legislating to support and safeguard something as individual as a child’s wellbeing has its challenges, and we believed that the Supreme Court judgment required us to make changes to legislation on information sharing. The result was the Children and Young People (Information Sharing) (Scotland) Bill. However, since we introduced that bill in 2017, there have been significant changes to the data protection legal landscape, with, for example, the introduction of the general data protection regulation and the Data Protection Act 2018. In addition, of course, the Parliament’s scrutiny through the Education and Skills Committee resulted in the pausing of consideration of the bill.

In order to chart a way through that complexity, I established a panel of experts to explore the development of a statutory code of practice for information sharing. There was a critical point in relation to its work. I charged it with ensuring that the code was, to quote its remit,

“workable, comprehensive and user-friendly for children and young people, parents and practitioners”.

I asked the panel to produce a code that everyone—not just lawyers who specialise in data protection—could understand and use, and I thank Professor Ian Welsh OBE and the panel members for taking on that complex task.

Today, I have published the panel’s report. The panel concluded that achieving all the aims that I set it in a single statutory code is simply not possible. In light of that, I have had to consider how best to proceed.

Foremost in my mind has been how to ensure that families can access the help that they need when they need it in a way that respects their rights and gives them confidence that personal information is handled correctly. In considering that, the panel’s work has proven invaluable. It reviewed the data protection legislation that came into force during 2018 and concluded that the world has moved on significantly since the bill was drafted. Now that we have a new statutory framework, including through the introduction of GDPR, the panel concluded that we should not introduce a statutory code of practice and that we can rely on the law as it currently stands, founded on the Data Protection Act 2018 and GDPR.

In practical terms, that means that we will not produce a binding legal code and that information sharing will take place only in line with the law as it currently stands. The panel has recommended that, instead of the code, we provide practical help, guidance and support to enable professionals, practitioners, children and families to understand their rights under the existing law. We accept the panel’s recommendations in full. That also reflects feedback from practitioners, who have loudly and clearly called for clarity on how and when information can be shared.

My officials will now work with stakeholders to develop a suite of products to support and promote good, proportionate and appropriate information-sharing practice within existing law. That will include further training and guidance for practitioners, updated getting it right for every child guidance and material to reassure the public about how the service operates.

The panel’s report sets out the details in full, but the four recommendations on additional investment, an update of the getting it right for every child policy statement, measures to support the transparency of information sharing and a refreshed suite of practice guidance are crucial.

From a parent’s point of view, that means that information about a child or young person will not be routinely shared without their or their family’s knowledge or engagement. From a practitioner’s perspective, it simply means that those operating the services must handle personal information in line with existing guidance and laws, such as those that are applicable to data protection, confidentiality and human rights.

In taking that approach, I hope and believe that we have resolved the information-sharing controversy at the heart of the named person approach in a way that protects the vitally important policy of getting it right for every child.

The law on information sharing will not now change. The way in which information is shared will be based on existing law, and we will provide help and support to make practitioners certain that they will get it right and to ensure that families know what can and cannot happen to their personal information. Consequently, I will write to the Presiding Officer to withdraw the Children and Young People (Information Sharing) (Scotland) Bill.

That brings me to the Children and Young People (Scotland) Act 2014 and the statutory named person scheme. Part 4 of the act makes provision for every child and young person to have a named person. Part 5 introduced the requirement for a child’s plan when a child’s wellbeing requires the support of a targeted intervention. Those elements of the 2014 act are awaiting the passage of the Children and Young People (Information Sharing) (Scotland) Bill before being brought into force.

However, the reality is that many community planning partnerships already operate elements of a named person service and a child’s plan. Those services are provided within their existing statutory functions, under existing legislation, and they have evolved over the past 10 years to provide early help, high-quality planning and the co-ordination of services. I want more families to benefit from those services.

I want to be absolutely clear: the services do not require wellbeing information about a child or young person to be routinely shared without their or their family’s knowledge or engagement. As I said earlier, the aim of supporting families when and where they need it has largely been uncontroversial.

Having addressed the information-sharing controversy, we must now ensure that the help and support that the named person service provides to children and families continue. That service is already making a massive difference in children’s lives. It should be recognised that, in the past five years—since we introduced the 2014 act—we have seen real advances in culture, systems and practice in services that support families. That progress has improved lives the length and breadth of the country and we must continue to build on it in order to increase confidence in the delivery of the getting it right for every child approach, including the named person service. I am wholly supportive of existing good practice continuing.

The child’s plan is also being used across children’s services, and it has been well received. Children and families already benefit from practitioners working closer together in a co-ordinated way to support children in all aspects of their wellbeing.

Our commitment to those policies and the practitioners who implement them is reaffirmed today. They are in place, they are effective and they change lives for the better, without the need for underpinning legislation. I therefore give notice of our intention to repeal parts 4 and 5 of the Children and Young People (Scotland) Act 2014. We will do so in due course, using a suitable legislative vehicle.

Today, we have taken an important step forward in providing families and practitioners with certainty about how information sharing can support wellbeing in a transparent way that respects everyone’s rights. We will now not underpin in law the mandatory named person scheme for every child. We will withdraw the Children and Young People (Information Sharing) (Scotland) Bill and repeal the relevant legislation. Instead, existing voluntary schemes that provide a point of contact for support will continue, under current legal powers, when councils and health boards wish to provide them and parents wish to use them.

In that way, we will support our children and young people, so that they can thrive and rise to the challenges and opportunities that life brings. Only through continued investment in our children’s wellbeing will we achieve our vision of a prosperous country where everyone gets the chance to fulfil their potential and no one is left behind. That is why we continue to be fully committed to getting it right for every child.

The cabinet secretary will now take questions on the issues raised in his statement. I intend to allow 20 minutes for questions, after which we must move on to the next item of business.

I thank the cabinet secretary for prior sight of the statement.

The Parliament knows only too well that I have held strong views on the named person policy from the very beginning, and I do not believe that any tears will be shed this afternoon by parents, teachers, health and social care professionals, campaigners or, of course, the public, who have persistently told the Scottish National Party that the policy is one of the most deeply unpopular, illiberal and unworkable ones of modern times.

Will the cabinet secretary now apologise to all those professionals on the front line who have had to endure endless bureaucracy and anxiety about where their legal responsibilities lie? Will he apologise to local authorities who have had to divert significant resources away from other spending priorities in order to retrain their officials and practitioners? Will he apologise to all the families across Scotland for the general upset that the policy has caused over the past five years?

In all of this discussion, it is really important that we remember that the Government’s policy intention, at all times, has been to put in place measures that would support and enhance the wellbeing of children and young people in our society. I will not apologise for trying to find the best way to do that. In so doing, the Government has had significant support from and engagement with the self-same professionals and local authorities and families that Liz Smith talks about. What I hear from members of the public who come to see me—and those who have come to see me over the past 20 years as their member of this Parliament—is frustration at the lack of connection between public services in meeting the needs of individual families, and cries for help when people have needed those services the most. I will not apologise for trying to help those individuals. What I will do is put in place, as I do every day of the week, measures to support the enhancement of the wellbeing of children and young people in our society, and that is what I am determined to do in the future.

I thank the cabinet secretary for prior sight of the statement. When the cabinet secretary dropped his proposed education bill, I called it the mother of all ministerial climb-downs, but he has outdone himself today, losing two bills—one dropped and one repealed. This must be the mother and father of humiliating U-turns. The difference is that the education bill was a bad idea; the named person scheme was a good idea, supported by this Parliament, that has been destroyed by the incompetence of a succession of ministers, who lost control of the implementation, lost the support and confidence of practitioners and the public, lost the legal challenge in the Supreme Court and lost the argument in the Education and Skills Committee.

The cabinet secretary talks about the policy’s good intentions. Good intentions do not alone make for good government, and this has been very poor government indeed.

The cabinet secretary would not apologise to Liz Smith. Labour members have tried to support the legislation, as have many professionals and organisations in the sector. Will the cabinet secretary at least apologise to them for the mess that he has made?

The crucial point is that the legislation that I have tried to enforce and take forward was supported in this Parliament by the SNP, the Labour Party, the Liberals and the Greens; in the final vote on the legislation, the Conservatives abstained. Parliament has supported the legislation comprehensively. Obviously, the legislation was challenged in the courts in Scotland before I became the education secretary and it succeeded in passing those challenges. An issue of concern was raised by the Supreme Court in relation to the provisions on information sharing and we have done our level best to try to protect the legislation that Parliament enacted.

That is the duty of the Government—to try to ensure that we do everything we can to implement the legislation that Parliament has passed and to make sure that that can be done effectively. I have sought every possible avenue to do that, through the introduction of successor legislation and by inviting Professor Ian Welsh and his colleagues to look carefully at how the issue could be resolved. They have found it impossible to find a way to provide a meaningful statutory code of practice, which was, in our view, the means to address the issues raised by the Supreme Court.

I cannot ignore the Supreme Court and I have never at any time sought to do so, but we and the panel have found it impossible to address the Supreme Court’s issues in a workable fashion. We have made every effort to do so. I have acknowledged and faced the reality of that difficulty today and I am committing the Government to make sure that we put in place all the support that we possibly can, in every respect, for the vulnerable children and young people in our society who need the help of public services.

I have no desire to stymie questions and answers, but I would like to get 11 members in, so I ask members to follow my mantra of short questions and succinct answers. I understand that this is a very important question session.

The Deputy First Minister has outlined that the Scottish Government will repeal sections 4 and 5 of the Children and Young People (Scotland) Act 2014. Does he share my view, that the impetus around the named person service since the bill was introduced to Parliament has resulted in improvements across children’s services?

Yes—it has. We can see that from some of the assessments of the support that is available for children and young people, particularly the recent Nuffield Trust report, “International comparisons of health and wellbeing in early childhood”, which illustrated some significant improvements in the circumstances of children and young people in our country. Other challenges will come their way, such as challenges from poverty—which is acute in Clare Adamson’s constituency of Motherwell and Wishaw—as a consequence of the changes to benefits regimes that are taking their course. The Government will remain relentlessly focused on supporting those vulnerable children and young people. Today’s statement and the pathway that I have set out will, I hope, assist in ensuring that that is the case for children and young people across Scotland.

For me, this debacle has been very personal, as I was the head of a children’s service and a member of my local authority’s GIRFEC implementation team. Therefore, for me, it is about asking the cabinet secretary to not only apologise but recognise that we had to put in a lot of extra work to make the scheme work on the ground. We told him back then that we could make it work without legislation and that it was about professional judgment. I therefore want the cabinet secretary to commit to listen to those of us who are on the front line, and to recognise that it is bureaucracy that creates many of the gaps in the scheme, because social workers and children’s workers do not have enough time—instead, they are filling in paperwork.

There are elements of Michelle Ballantyne’s question that I agree with. I want to make sure that our professionals on the front line are able to take, and are confident about taking, the necessary steps to support the wellbeing of children and young people in our society. That work does not need to be drowned out by bureaucracy; it needs to be supported by good practice, good communication and good integration of services.

Many people in the professional community have contributed hugely to the development of the named person service and have developed much of the practice, which I applaud. I want to make sure that anyone who is observing my statement takes from it an encouragement to continue and enhance their practice. As I said to Clare Adamson a moment ago, I believe that the named person practice that we are seeing in place is actually benefiting the lives of children and young people.

Today, I have set out a route that empowers professionals to take that agenda forward and I look forward to supporting them in their endeavours.

I welcome the cabinet secretary’s continued commitment to GIRFEC, which was described by the Nuffield Trust last year as leading the way in the UK.

Will the cabinet secretary expand on how the policy direction will shape the revised national guidance for child protection in Scotland that was announced in the programme for government?

The work that we are doing there will be about the importance of early intervention and prevention to support children and young people, as acknowledged in the Nuffield Trust report. The whole agenda is predicated on ensuring that active support is in place. One of the foundations of the expansion of early learning and childcare is to ensure that we have the earliest possible intervention to support children and young people.

On the question on child protection, we have in place a very well-ordered, clearly defined child protection approach. It is there to make sure that children who are at risk of harm are properly supported, and that issues are resolved on their behalf. The thinking that comes out of the early intervention work will be brought to the heart of the work that is taken forward on child protection as a consequence of the programme for government.

When the Education and Skills Committee took evidence on it in the autumn of 2017, it became clear that the Children and Young People (Information Sharing) (Scotland) Bill ran the very real risk of either conflicting with data protection laws, or being rendered meaningless by them. The issues that were identified by the committee must have been identified by the Government’s advisers. Will the cabinet secretary say whether their advice contained those warnings, and when he received it?

Mr Johnson’s question gets to the nub of the difficulty that the panel was trying to resolve. There is intense complexity in respect of interweaving pieces of legislation. The objective of the bill on information sharing was to try to chart a course through that complexity; that was the framework in which the Government intended to operate.

It became clear through the work of the panel that that could not be done in a way that would be accessible to children, young people and their families as well as to practitioners. I accept that conclusion. That is why I am here today and that is why the Government is not pursuing that bill. We had hoped that the framework in the bill would create the architecture within which that work could be undertaken. The panel has told us that that cannot be done. I accept that conclusion, which is why we are taking the steps that we are taking today.

The cabinet secretary’s announcement today completely vindicates the position that was taken by the Education and Skills Committee in 2017, which was that we should not proceed with his unsound bill. The unquestionably legitimate policy of having named persons has been devastated by the bungling of the Government. What does the Deputy First Minister have to say to people who are already acting as named persons across the country, who will face further anxiety and uncertainty as a result of today’s announcement?

I hope that those professionals will take from my statement the Government’s unreserved support for the work that they are undertaking. I do not accept Mr Greer’s comment that they have been in any way undermined by the issues that we have been wrestling with: they have been getting on with the work of supporting children and young people in our communities in order to address the issues and difficulties that they face. I say first, to those professionals, a word of thanks for their efforts and their contribution, and, secondly, a word of encouragement to continue to develop the excellent practice that they have undertaken.

The bill has wasted years of time and the good will of the people, including me, who are involved in delivery of the policy in the children’s sector. The cabinet secretary knows that he had the support of my party. However, we kept telling him where the faults lay and still he did nothing. What is the cost of the legal bills and workforce hours that have gone into that failed policy? What confidence can he offer hardworking colleagues in the voluntary and public sectors that their concerns will be better heeded in other areas of policy?

There were several points to address in there. Mr Cole-Hamilton knows that the Government has faced legal costs for defence of the legislation in the outer and inner house of the Court of Session and in the Supreme Court. It is quite reasonable for the Government to commission legal costs to protect legislation that has been agreed by Parliament—and which was supported by Mr Cole-Hamilton and his colleagues. We have incurred relatively modest costs on the practice development panel—less than £10,000. The panel has spent a huge amount of time and effort on its work, but its members gave their time voluntarily.

Contrary to what Alex Cole-Hamilton said, practitioners—many of whom were involved in the practice development panel—have given of their time willingly, because they are hugely supportive of the policy’s direction of travel and want it to succeed. I encourage them to continue in those efforts. I hope that my statement today has given them confidence and clarity for the future.

I refer members to my entry in the register of interests as a registered social worker. I associate myself with the comments that have just been made by the Deputy First Minister.

Practitioners in social work and other services work tirelessly on a multi-agency basis and want—in fact, demand—confidence from members of the Scottish Parliament in what they are doing. I welcome the Deputy First Minister’s emphasis on that in his statement.

Can he expand on how the Government, local authority partners and other stakeholders can work together to encourage even more joined-up working across children’s services, in order to build on the progress that has been made in recent years and the good practice that exists out there?

One of the principal ways to do that is by designing approaches that relentlessly focus on the circumstances of individual children. The more we can keep the interests of the child and children’s wellbeing at the heart of our interventions, the more we will encourage focused joint working among public bodies. That is the sensible and rational evidence-based approach that will enhance the life chances of children and young people in our society. I encourage professionals to follow that guidance.

My colleagues across the chamber have already outlined what a very great waste of time and money this fiasco has been from start to finish. Will the cabinet secretary give us his firm assurance that every public body that is involved will have in place up-to-date information on sharing guidance by the end of this year? If not, how long does he expect that that will take?

The clearest signal that I am giving to public bodies today is that they need to operate within the current legislative framework, particularly in relation to issues around data protection and in connection with human rights. That is not something new that has been announced today—that is the law of the land as it is today, and public bodies should be operating in that fashion.

I have been a strong believer in a named persons system as a good scheme for helping vulnerable families in my constituency who are seeking help to avoid being passed from pillar to post. Can the cabinet secretary give reassurance to vulnerable families in my constituency that they will be able to find help when they go to the public sector?

That was the import of my statement. I want to make sure that the people in our society who need assistance are able to get it. The sentiment that John Mason expressed about encountering families who feel that they are being passed from pillar to post is an experience that I have had all too often in my parliamentary life. I want to address that, so I give him reassurance that that is the focus of the policy, and of the guidance and the advice that we will provide as a consequence of it. I am confident that local authority partners, health boards and other bodies are similarly focused on taking forward that agenda.

Additional recommendation 4 of the GIRFEC practice development panel’s report states:

“There should be additional multi-year investment in multi-agency training.”

Will the cabinet secretary tell Parliament how much that investment will be, and when it will be in place?

Those issues will be part of the implementation approach that the Government takes. We will discuss that with our local authority and health board partners in the normal course of our activities, in order to ensure that we have in place the proper support that will enable the recommendations of the panel—which I accept in full—to be taken forward and implemented.

I appreciate that the cabinet secretary has set out that we will not proceed with the Children and Young People (Information Sharing) (Scotland) Bill. Will he outline how the role of consent will be factored into information sharing, following that decision?

Practitioners must take a careful approach to handling consent. Consent lies at the heart of the matter, including the question of how practitioners evaluate whether members of the public are giving consent voluntarily in cases where they might feel obliged to give it. Practitioners must exercise great care in how they approach the question of consent. Good family engagement and good dialogue are central to making sure that the people who need services are able to access them, and that practitioners can make the appropriate judgments, in that context.

That concludes questions on the statement. I thank the cabinet secretary and members, because everyone got to ask their question—as should be normal.