MINISTERS have been accused of bringing in its 'snooper's charter' under the radar as it emerged that its controversial and sexually explicit health and well-being census for children is not totally confidential.
While local authority messaging to parents has been that the survey is anonymous and is "for research purposes only", the Herald on Sunday has seen privacy documents over the scheme that show that local authorities can act on behalf of children if any answers raise concerns.
This has raised fears that that the controversial survey is a 'named person scheme' through the back door.
The new worries emerged as eight of Scotland's 32 local authorities have refused to take part in the survey amidst calls for a boycott over its use of sexually explicit questions, the Herald can reveal.
They are among 21 that have failed yet to take part in the census with 12 reviewing its contents and another one distributing it with changes.
Only ten have told the Herald that they are to distribute the survey as provided by the Scottish Government as concerns continue to be raised about 'sex experience' questions.
The Scottish Government-sanctioned census asks questions only meant to be filled out by children as young as 14 about their sexual experiences.
One question - aimed at pupils in S4 and S6 - says: “People have varying degrees of sexual experience. How much, if any, sexual experience have you had?”
Multiple choice answers include “oral sex” and “vaginal or anal sex”.
The Scottish Government scrapped the plan to appoint a named person to safeguard the welfare of every child in the country in 2019 after it was accused of being a "snooper's charter".
It was due to be introduced in 2016 and was delayed when the Supreme Court ruled that part of the plan breached human rights laws.
The scheme would have seen a named person - usually a teacher or health visitor - act as a clear point of contact for every child from birth until the age of 18.
In its ruling in July 2016, the Supreme Court said the aim of the policy was "unquestionably legitimate and benign", but that proposals around information-sharing breached the right to privacy and a family life under the European Convention on Human Rights.
READ MORE: Scottish Government's sex census for kids is rejected by eight councils
The judges said the proposals meant it was "perfectly possible" that confidential information about a young person could be disclosed to a "wide range of public authorities without either the child or young person or her parents being aware".
The Herald on Sunday can reveal that while the information provided is supposed to be anonymous, if local authority analysts see any answers of concern they can take action to help children concerned.
Local authorities have been asked to get local P5 – S6 children and young people to fill in the health and wellbeing survey in this 2021-22 academic year.
The questionnaire is due to take place during class time and it is estimated it would take up to 40 minutes to complete.
The census is due to be given to kids in P5, 6 and 7 but the younger groups' questions are targeted on matters such as physical activity, mental health, sleep patterns, social media, body image, and bullying. It also quizzes them on how easy it is to talk to family members about things that bother them and whether their parents really care about their education.
Scottish Government-produced information on privacy states that local authorities are required by law to plan for children’s services in their local area and so have a "legal basis" to ask young people about their lives and wellbeing to help them with this.
It says that no-one other than a small team of analysts and IT support staff within each local authority will see the answers provided by children and young people.
They say the staff are trained to keep data safe, confidential and anonymous and children will not be asked to type in their name.
But it goes on: "If analysts within your local authority see anything in the answers provided by some children and young people that raises some concerns, they may need to do something to help these individuals.
"This would be the only time that the identity of individual children and young people would be sought by identifying these individuals from a separate database that holds the names of children and young people together with their Scottish Candidate Number, and for which the local authority also has access too.
"This should not happen very often so it is highly unlikely that anyone will contact children, young people or their families."
The census, which was designed and created by representatives and analysts from Public Health Scotland, local authorities, schools, Education Scotland, and the Scottish Government has been tightly controlled with few details of its full question content allowed to be divulged.
While the UK's General Data Protection Regulation gives individuals the right to object to the processing of personal data, the information states that where the processing of personal data is for scientific or historical research, or statistical purposes, "these rights to object is more restricted".
And it states that parents cannot object to the processing of health and wellbeing data.
"As the data we process is lawfully gathered and necessary for the performance of a task carried out for reasons of public interest, you do not have a right to object to the processing of your personal data," the document states.
It can also not be deleted.
"As we require the data for the performance of a task carried out in the public interest and for no other purpose, such as direct marketing, we are also not required to erase your personal data as we need to retain this data for this purpose," it states.
A Scottish Government data protection impact assessment of the census states that the benefit to the public of the databeing shared with Scottish ministers is to help in the formulation and monitoring of national and local policies, which in turn will "ultimately drive forward improvements in the outcomes of Scotland’s children and young people".
It says: All necessary steps will be taken to ensure that there is no potential for individual identification when sharing school level reports with LAs [local authorities] as well as publishing LA level reports.
"This will be mitigated by applying appropriate suppression methods within the analytical tool to be provided to LAs by SG [Scottish Government] as well as SG analytical staff applying these at time of analysis."
READ MORE: Scots ministers face councils' backlash over sexually explicit census questions for kids
It goes on: "The questionnaires have been specially designed so that the information provided by children and young people is only used for statistical and research purposes only by local authorities and the Scottish Government. This means that what children and young people say in the census will remain confidential and will only be seen by a very small number of staff at their school's local authority and the Scottish Government in order for them to carry out analysis of the information.
"However, if during such analysis, if a child or young person is identified as possibly being at risk of harm, the welfare of the child takes priority over the confidentiality given to them for taking part in the census. "As such, local authorities may need to breach this confidence and report their concerns to child protection colleagues (or others) who may subsequently need to take further appropriate action in line with standard procedures.
Chris McEleny, the general secretary of Alex Salmond’s Alba Party who has been hugely critical of the census and helped force Inverclyde Council to review its use said: "The Scottish Government must come clean on this census which appears to be a snoopers charter via the back door."
East Ayrshire Council's pilot of the Scottish Government-produced census, which has seen P5, P6 and P7 children from New Cumnock Primary School complete the survey told parents that the information provided will be shared with the Scottish Government to assist them in planning and implementing national policies and to target resources better.
The council said that they will gather, process and analyse the census data for "statistical and research purposes only".
"Although individual pupils complete the census, the questions in the census are not validated for individual diagnosis, reports or the assessment of children/young people," the letter states.
One parent told the Herald on Sunday: "I was concerned as there appears confusion on just how confidential this census is, and with these questions about sex that were asked we felt that our child should not take part.
"It all feels like a way to get parts of the named persons' through quietly and it sounds like the census give powers to act on issues over our heads without our consent.
"So many issues over privacy hit me, like at what point the authorities could end up acting if they didn't like something they read in the survey.
"It is so intrusive and I won't compromise on the privacy of my family."
Fife Council which had initially committed to distributing the survey in the next few months did a u-turn and is to delay "until some questions it contains can be scrutinised further".
The decision came after Conservative councillor Kathleen Leslie, brought an urgent motion saying a closer look was needed as to why the survey is necessary and the questions that will be asked of which year groups.
But she also said it raised questions about anonymity, privacy, data sharing and how involved parents and carers will be in the process.
“The Scottish Government is requesting to add to its already burgeoning collection of data to snoop around what our young people are doing in their lives, outside of the classroom,” she said.
She wondered what might become of youngsters under the age of 16 - and therefore under the age of consent - if they answer ‘yes’ to questions of a sexual nature.
“We’re not asking for the survey to be blocked - we’re asking for caution and for us to consider our position fully before considering whether or not to proceed with it,” she continued.
Education Secretary John Swinney set up an expert panel which was tasked with finding a way of making named person compatible with the Supreme Court ruling on the named person scheme.
But they were unable to write a workable code of practice on information sharing, and concluded that doing so "would not be desirable" as the complexity would make it difficult to understand or apply in practice.
Mr Swinney told the Scottish Parliament two years ago that the "mandatory named persons scheme for every child, underpinned by law, will now not happen" and that "we will withdraw our bill and repeal the relevant legislation."
A Scottish Government spokesman said that health and well-being surveys play a crucial role in ensuring children and young people have access to the help, advice and services they need.
“Local authorities are not able to use any of the data gathered to take any direct action on any individual child or young person, and they are to ensure that any results of the research or resulting statistics will not made available in a form which identifies individual children and young people," the spokesman said.
“However, as with any research involving children and young people, local authorities are permitted to break any confidentiality assurances given when necessary. For example, if they uncover that a child or young person is at risk of harm and action needs to be taken to protect them. This is common ethical practice when undertaking surveys/research involving children and young people.
“Parents/carers and children and young people are informed of this in advance of any child or young person taking part in the census, so that they can decide to not to take part in the census because of this condition. Also, if children and young people do take part in the census then they can skip any question they don’t wish to answer or state that they would 'prefer not to say.”'
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