Obfuscating Officialdom called out by Scottish Petitioners

Public inquiry into GIRFEC human rights impact: parliamentary petition update

What’s been said?

The problem of non-consensual inter-agency information sharing being faced by Scottish home educators and the objections raised by Alison Preuss of the Scottish Home Education Forum and Lesley Scott of Tymes Trust in the form of petition PE01692 have already been reported on this website in June and July this year.

On 30 October 2019 these two determined petitioners made public a further submission on the SHEF website, in response to correspondence received by the Petitions Committee Convener from Deputy First Minister and Cabinet Secretary for Education and Skills, John Swinney, and Dr Ken Macdonald, Head of the Information Commissioner’s Office Regions [ICO].

Swinney’s letter referred to the differing remits of the public bodies charged with “scrutinising and challenging the practice of information sharing on behalf of the public.” Preuss and Scott contend that “none of these public bodies is willing to discharge their responsibility to Scotland’s children” and speak of  “a complete collective failure to know or understand their remits.”

They go on to list the particular areas of responsibility of the Scottish Human Rights Commission [SHRC], the Equality and Human Rights Commission [EHRC], the Children’s Commissioner’s Office [CYPCS]  and the Information Commissioner’s Office [ICO].

After careful consideration of the reasoning provided to them by each of these bodies as to why the task of investigating irregular information sharing should not be theirs but someone else’s, the petitioners’ view is that “GIRFEC policy and unlawful practice affects all citizens, both adults and children, and that this falls firmly within the SHRC remit.”

They also express the following concerns:

all public bodies, including the SPSO [Scotland’s Ombudsman], Police Scotland, SCRA and indeed the ICO, have been applying the wrong threshold and criteria for non-consensual information gathering and sharing….” and the associated problems are “ongoing.” [Emphasis added]

Though the offending legislation in the 2014 Children and Young People (Scotland) Act was eventually abandoned after six and a half years, “yet no effort has been made to ‘cascade’ fully compliant advice, undo training or amend guidance.”

The petitioners expose discrepancies in Macdonald’s response too, highlighting confused terminology and explanations about the slowness to replace outdated guidance on local authority websites and in child protection guidance, and “the failure by public sector data protection officers to address this upon notification.” They shrewdly observe that there seemed to have been no such reluctance when it came to ‘cascading’ the 2013 ‘advice’.

They speak of disproportionate detriment to children and families, particularly in the Highland Region and especially those with Autism, chronic illnesses and disabilities. Also of “hearsay and malicious referrals” being used without consent to “build cases against families.”

Why does it matter?

This is a detailed read, but Preuss and Scott’s own words express so clearly why it matters:

“this is about the categorical failure of public bodies, tasked with protecting the human rights of children and families in Scotland, to undertake even the simplest of investigations to ascertain if there is any hint of a breach. It is, rather, about the bodies tasked with protecting the people from authoritarian over-reach by government intentionally looking the other way.”

Affirming that data protection supervisors are required to maintain independence, Preuss and Scott also point out that the outcome could have been very different were it not for the intervention of the UK Supreme Court:

“Dr Macdonald and the ICO… actively worked with government… to develop a policy that ended up undermining children’s rights and which, absent the intervention of the UK Supreme Court, would be running unchecked over the rights of Scotland’s families.” [Emphasis added]

The petitioners have done their homework before making this challenge. They are currently conducting research into “all 32 local authorities’ home education policies and practices, and families’ experiences of them.” Their early findings raise some serious concerns.

  • “significant misrepresentation of the law and blatant breaches of children’s and families’ rights that can be directly attributed to the implementation of GIRFEC policy;”
  • some [LAs] have “illegal information gathering and sharing written into policy;”
  • a failure to “correctly delineate parental and state responsibilities, with a particular issue of misrepresentation of negative duties;”
  • “over-reach by councils, often founded in deep-rooted prejudice to the point of home-eduphobia, is all too often endorsed rather than challenged by other agencies.”

Preuss and Scott conclude that “The unlawful application of GIRFEC policy has only been checked, not eliminated, by the 2016 court ruling.” They point out that victims wishing to raise objections are left to bring legal proceedings at their own expense, and state that the loss of confidence in public services by “our seldom heard communities…cannot be overstated.”

Their closing recommendation sums up the whole débâcle:

A full independent public inquiry is essential in order to reveal the extent of the erosion of human rights in Scotland that accompanied the Children & Young People (Scotland) Act and the multi-agency failure which meant no aspect of the state or of the bodies tasked with protecting the public raised a murmur of protest.” [Emphasis original]

As we observed in October, the spectre of the Named Person Scheme lives on!

What can I do?

In a climate where it is all too easy to look the other way and say nothing, this document should make us all   concerned about how easily ground is lost and prejudicial policies thrive.

Be thankful for these two terriers who are not prepared to let the Scottish Government off the hook.

Should circumstances arise where you find issues that need challenging in a similar way, don’t pass up the opportunity. Home educators everywhere will be so thankful that you didn’t.