On Thursday 28th July 2016 the UK Supreme Court ruled that the Scottish Government’s Named Person Scheme, scheduled to have been introduced on the 31st August 2016, risked breaching the rights to privacy and family life under the terms of the European Convention on Human Rights and in so doing over-reached the legislative competence of the Holyrood Parliament.
Read a report in The Herald:
http://www.heraldscotland.com/news/14647998
And a longer report and film by the BBC:
http://www.bbc.co.uk/news/uk-scotland-scotland-politics-36903513
The Scottish Government has been given 42 days to make the necessary amendments to the Act.
The Centre for Welfare Reform recently published a paper on the Named Person policy State Guardian or Head Gardener? by Robin Jackson who stated:
"Perhaps the most concerning aspect of the notion of imposing ‘state guardians’ is that for a significant number of people it smacks of a political system where the State recognizes no limits to its authority and strives to regulate every aspect of public and private life wherever feasible. I argued that this bore all the hallmarks of a totalitarian approach."
For instance the UK Supreme Court observed:
“...individual differences are the product of the interplay between the individual person and his upbringing and environment. Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.”
Robin Jackson goes on to argue that the ruling of the UK Supreme Court raises a number of important issues that should be addressed:
- Why did the lawyers responsible for drafting the Children and Young People (Scotland) Act 2014 not anticipate any of the serious problems identified by the UK Supreme Court?
- This failure calls into question the extent of the knowledge, experience and expertise of the government lawyers responsible for drafting the Act.
- Were the lawyers under any undue pressure from the government in the formulation of the legal framework for the Named Person Scheme?
- There appears to have been little serious effort when the Bill was in draft form to subject it to detailed scrutiny by representatives of the relevant professional groups who possessed the appropriate experience and expertise?
- Why did so few of the professional bodies which represent the fields of education, health and social work in Scotland not oppose particular sections of the proposed Act when it was at an early stage?
- The parliamentary scrutiny of the Bill was demonstrably ineffectual. This resulted from the changing positions taken by each of the political parties on the necessity for such legislation: changes dictated more by political expediency than conviction.
- A key question is how was it possible that the two Scottish Courts of Appeal should arrive at a judgment so totally at variance with the unanimous judgment of the UK Supreme Court? In some people’s minds, the question must arise as to the independence of the judiciary in this particular instance.
- What justification had the Scottish Appeal Court to dismiss the appeal on the grounds that is was based on ‘hyperbole’? In the light of the UK Supreme Court’s unanimous judgment, the employment by a branch of the Scottish judiciary of this pejorative and prejudicial term in relation to this appeal was very ill-advised.
- While the judgment of the UK Supreme Court is to be greatly welcomed, there must be a broader concern about the way in which Scotland is currently governed given the growing track record of poorly thought through legislation and inadequate oversight and ineffectual implementation of that legislation.
- Scottish people owe a deep debt of gratitude to the small group who brought this challenge to the UK Supreme Court [in particular The NO2NP campaign - a coalition comprising the Christian Institute, Care (Christian Action Research and Education) and the Family Education Trust.]. There are a number of professional bodies and voluntary organisations in Scotland which should carefully reflect on their quiescence and acquiescence with regard to this legislation.
