Privacy regulators investigate Scottish ministers' sex census for kids

The First Minister insisted last week during First Minister's questions that the census was confidential and "ensures that any results of the research or resulting statistics will not be made available in a form which identifies individual children and young people."

Complaints have been lodged with the ICO after the Herald on Sunday revealed concerns that Scottish ministers were 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 was not totally confidential.

Privacy documents over the scheme that show that analysts overseeing the survey within local authorities can act on behalf of children if any answers raise concerns and does not specify what type.

The UK General Data Protection Regulation and Data Protection Act 2018 sets a maximum fine of £17.5m or 4% of annual global turnover – whichever is greater – for infringements.

Ministers have dismissed calls by the Children and Young People's Commissioner Bruce Adamson to pause the survey to ensure a "rights compliant process" following concerns over privacy and whether informed consent is available.

But 11 out of Scotland's 32 local authorities have already distributed the census as provided by the Scottish Government - Glasgow City, Perth and Kinross, Stirling, Angus, South Ayrshire, Moray, Clackmannanshire, Dundee, Dumfries and Galloway and Renfrewshire.

At least 14 local authorities have said they have not committed to distribute the census.

Moray has revealed that its position has changed in the light of the controversy and has paused the process to "consider next steps".

And East Renfrewshire Council said they will be issuing a version of the questionnaire next year with changes to sexual health section.

West Dunbartonshire has said it will not be distributing the census in its current form.

And councillors on Stirling Council have forced a special meeting for December 17 raising questions about the census process.

But North Ayrshire having carried out a review, has said it is now to proceed with the census "on the basis that participation is optional".

Parents have raised questions about the content of the government's Health and Wellbeing Census, which asks pupils as young as 14 intimate questions on their sexual activity - effectively asking them to confess about illegal acts.

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”.

It also asks how many people they have had sexual intercourse with in the past 12 months.

The census, the full details of which are not available to parents, is 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.

The issues around the confidentiality of the census have been lodged with the Information Commissioner by Neale Hanvey, the Alba Party MP for Kirkcaldy and Cowdenbeath since 2019, is one who is compiled the privacy concerns in a letter stating concern that the individual child remains identifable in the process.

He said: "Do you believe that informed consent, including full access to the census questions, should be sought from parents/carers/young people prior to the child's participation? If you do not believe this is necessary, can you please detail your reasons for this?

"Do you believe that the threshold for consent, data sharing/retention and GDPR rights are being complied with?"

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 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".

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.

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.

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.

Mr Hanvey said: "Given the serious concerns which exist among parents, teachers, a growing number of councils, The Children and Young People’s Commissioner and the wider public I have written to the ICO asking them to intervene."

He told the ICO there was "growing disquiet that informed consent for child participation has not been obtained".

"The Scottish Government state in their privacy notice that data may be linked with other data they hold for an individual child," he said, saying this "contradicts the intention of anonymised data collection.

He said it was alleged questions intrude into private family life and that this may contravene Article 16 of the United Nations Convention on the Rights of the Child (UNCRC) which provides children with an equitable right to privacy. It may also encroach on the family's right to privacy as laid out in the UN's Universal Declaration of Human Rights.

An ICO spokesperson said: “We have received a complaint in relation to this matter and we will assess the information provided.”

Meanwhile Conservative moral campaign charity Family Education Trust (FET) has warned the health secretary Humza Yousaf that children were being asked to admit to what is an "illegal activity" and said there were "safeguarding concerns".

"You will be aware of the negligence that was shown by many local authorities in dealing with the sexual abuse of young girls by grooming gangs," said senior researcher Piers Shepherd.

"The problem in many cases was that the local authority treated having under-age sex as a normal part of growing up, thus allowing the abuse to continue.

"The questions in this survey display the same irresponsible attitude to young people's sexual activity that was shown by so many local authorities. We would urge that they be withdrawn."

The eight councils that have refused to participate are West Lothian Council, Falkirk, East Lothian, Midlothian, Aberdeenshire, North Lanarkshire, Aberdeen and Highland.

Some 11 councils have said they are reviewing its content. They are Orkney, East Dunbartonshire, West Dunbartonshire, Argyll and Bute, South Lanarkshire, East Ayrshire, Shetland, Fife, Inverclyde, Scottish Borders, Comhairle nan Eilean Siar.

Of those Comhairle nan Eilean Siar, Orkney, South Lanarkshire, Inverclyde, East Ayrshire and East Dunbartonshire say they have not made any commitment to undertake the survey until the review is complete.

City of Edinburgh Council is distributing it having excluded questions "that we felt would present difficulties".

A Scottish Government spokesperson said: “We fully support the administering of this important census by local authorities.

“Health and wellbeing surveys like this one are not new and play a crucial role in ensuring children and young people have access to the help, advice and services they need. They comply with UK GDPR, as part of process of informing parents/carers and children and young people in deciding if they wish to take part in the census. The vensus documentation, and the questionnaires themselves, are explicit about this.

“As with any situation involving children and young people, if welfare concerns, such as abuse or harm to young people, are identified, local authorities are permitted to share information in order to safeguard the young person.

“Scottish Government officials will continue to engage with the office of the Children's Commissioner on this issue.”