At 8.52 minutes Maureen Falconer can be heard encouraging practitioners to share their clients` private and sensitive data without consent at the lower threshold of wellbeing: "We know that we`ve got the Children and Young People Bill coming through which is lowering that trigger down to wellbeing and that`s absolutely fine. If you`re going to do that then you may well rely on public functions and public interests, and that`s absolutely valid. There`s not an issue with that."
Had she been doing her job properly she should have known that sharing private and sensitive data at this lower threshold was not absolutely fine.
Recently some emails from the Information Commissioner`s Office have been released following a Freedom of Information Request which reveal a degree of collusion between the ICO and the Scottish government regarding the data sharing aspects of the Named Person scheme.
From: Ken Macdonald Head of ICO Regions
Cc: Maureen Falconer
Subject: Supreme Court
The Supreme Court are due to rule on the Named Person scheme of the Sottish Government at 9.45 tomorrow morning (Thursday). Three issues are under consideration, two of which are directly relevant to us:
1. Whether the provisions of the 2014 Act concerning information sharing and disclosure of information associated with the exercise of the named person functions are compatible with EU law.
2. Whether the provisions of the 2014 Act concerning information sharing and disclosure of information associated with the exercise of the named person functions relate to matters reserved to the Westminster Parliament under the Scotland Act 1998.
The third issue relates to the compatibility of the scheme with the common law and the ECHR.
The petitioners` case has already been rejected by the Outer House of the Court of Session and then again by the Inner House on Appeal. However, there is a degree of concern by the Scottish Govt that at the very least it will come in for criticism and, at worst, parts of the Petition will be upheld. Depending on that outcome, we may also be criticised by association as we have advised on the Data Protection aspects. Hence there could be media interest following it.
We`re intending to watch the hand down of the judgment when it is streamed live. We`ll advise you of the judgment when we know so we can prepare responses if necessary.
From Kenneth Macdonald
To: Press Office (external)
Disappointing result. The Supreme Court has judged that the information sharing proposed under the Act is not proportional and has given the Scottish Govt six weeks to amend the legislation. In other words, the general principle of the scheme is seen to be valid but tighter controls are required.
See more emails covered at NO2NP where they explain that Kenneth Macdonald got it wrong when he said that the Scottish Government had six weeks to amend the legislation. They are still engaging intensively about it.