SNP to press ahead with Named Person scheme despite ‘incompatible’ ruling
The Scottish Government insists controversial new measures to appoint a named person for every child will still go ahead despite the UK’s highest court ruling the legislation at present is “incompatible” with European human rights laws.
The flagship policy, introduced by the SNP administration at Holyrood, set out to appoint a single point of contact, such as a teacher or health visitor, to look out for the welfare of children under 18.
Ministers have argued the service will act as a safety net to help families and children if they need it while opponents argue the move breaches the human rights of parents.
Five Supreme Court justices, sitting in London on Thursday, allowed an appeal brought by those opposed to the scheme following a hearing in March.
The court ruled that information-sharing provisions proposed under the 2014 Act may result in disproportionate interference with Article 8 rights under the European Convention on Human Rights – the right to a family and private life.
As presently drafted, they risk breaching important regulations protecting privacy and confidentiality, according to the judges.
The Supreme Court has given the Scottish Parliament and Scottish ministers “an opportunity to address the matters raised in the judgment”.
The justices ruled that “in the meantime”, as the “defective provisions” under the 2014 Act “are not within the the legislative competence of the Scottish Parliament, they cannot be brought into force”.
Simon Calvert, spokesman for the No to Named Persons (NO2NP) campaign, said afterwards: “The decision by the judges is a devastating critique of this fatally-flawed flagship legislation. It is holed below the water line. Let us hope it sinks without trace.”
Ministers had planned to roll out the named person scheme across Scotland in just over a month
Mr Calvert said the measures were “intrusive, incomprehensible and illegal”, adding the judgement “blocked” the Scottish Government from implementing them on August 31.
“It must scrap its plan for state snoopers with intrusive data-sharing powers,” he said. “It has to go back to the legislative drawing board if it wants to try again.
“But they would have to come up with a much more limited scheme that actually respects the rights of children and parents. The Big Brother scheme is history.”
He continued: “It’s wonderful news for mums, dads and children all across Scotland who no longer have to worry about this unjustified invasion of their private lives.
“To many of them the named person scheme felt like a legal battering ram to gain access to their homes.
“The court has taken sides with ordinary families and put the Scottish Government back in its place.”
However, Scottish Deputy First Minister John Swinney insisted the campaigners’ bid to scrap the named person scheme had “failed” and said it would be “implemented nationally at the earliest possible date” once changes have been made.
He added: “The Supreme Court has stated that the aim of the legislation, in promoting and safeguarding the well-being of children and young people, is ‘unquestionably legitimate and benign’.
“It makes clear that the principle of providing a named person to support children and families does not breach human rights.
“The court’s ruling requires us to provide greater clarity about the basis on which health visitors, teachers and other professionals supporting families will share and receive information in their named person role.
“We will start work on this immediately so we can make the necessary legislative amendments. The service will be implemented nationally at the earliest possible date.”
He stressed: “Ministers remain absolutely committed to the named person policy, developed over several years in consultation with a wide range of individuals and organisations working across Scotland to support children and families.
“We will work closely with local authorities, health boards and other key public service partners to ensure that those performing the role have the support and guidance they need ahead of implementation.”
The named person scheme was brought in as part of the Children and Young People (Scotland) Act 2014 but four charities and three individuals mounted the appeal.
Lawyer Elaine Motion, from Edinburgh-based firm Balfour+Manson, represented The Christian Institute and six other petitioners in the legal challenge.
She said: “This is a highly significant and extremely unusual judgment. Successful challenges to legislation are very rare.
“The action was brought as there was an important public interest issue with a real strength of feeling about the potential impact of the named person scheme across Scottish society. That meant it was right to take the case all the way to the Supreme Court.
“The legal issues were undoubtedly very complex, but put simply, the Supreme Court has decided that the named person scheme, as it stands, breaches Article 8 of ECHR – and is therefore beyond the legal competency of the Scottish Government.
“In layman’s terms, the Supreme Court has said that the Scottish Government has overstepped the line drawn by Article 8 to protect and respect private and family life.”
The Supreme Court ruling was drawn up by deputy president Lady Hale, Lord Reed and Lord Hodge, with two other justices – Lord Wilson and Lord Hughes – agreeing with their conclusions.
The justices said: ”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.”
In their ruling, the judges said that the provisions of the legislation “appear to point toward a more relaxed approach to disclosure than is compatible with article 8”.
They concluded the information-sharing provisions “are incompatible with the rights of children, young persons and parents under article 8 of the ECHR”.
The Scottish Government has been given 42 days to respond on how it could change the legislation to ensure it complies with human-rights laws.
While the Supreme Court ruling said it would “not be appropriate for this court to propose particular legislative solutions”, it added that it did not think making changes to the guidance for the legislation would “get round the problem” or be “sufficient in itself to prevent many instances of disproportionate interference”.
Scottish Conservatives have long opposed the proposals, with leader Ruth Davidson welcoming an “important ruling by the most senior court in the land”.
Ms Davidson said: “It’s a victory for campaigners who have exposed this from the outset as illiberal, invasive and deeply flawed.
“Simply put, the SNP does not know better than parents when it comes to raising their children.
“We have consistently argued against the named person legislation on grounds of principle and practicality.
“I hope today’s ruling will make the SNP stop and think again.”
She warned: “If the Scottish Government arrogantly tries to implement this anyway – as it has threatened to do – it will face a heavy reckoning from Scottish parents who rightly want to be able to raise their children without state interference.”
Labour politicians have previously called for the scheme to be paused, and education spokesman Iain Gray said that, in the wake of the ruling, that must be done “for as long as it takes to sort it properly”.
Mr Gray said: “That is the case Scottish Labour have made for many months now and it is more compelling than ever following the court decision.
“It now falls to SNP Deputy First Minister John Swinney to clarify how he will regain the trust and confidence of the Scottish public in the scheme. Simply pressing on after minor amendments to the legislation will not be good enough. We need to see a complete re-examination of the guidance and regulations.”
Scottish Liberal Democrats want MSPs recalled to Holyrood, with education spokesman Tavish Scott arguing: “This is hugely serious. Parliament was asked to support a flagship piece of legislation. The highest court in the UK has today ruled sections of it as unlawful. We need to know quickly what changes will be made to comply with this decision and MSPs must be given the chance to agree on the way ahead.
“A recall of Parliament is the only way to ensure that reforms receive the scrutiny required. This is not a decision for a minority minister to make in his office. It needs full parliamentary approval.”
He added: “Parliament took the decision to back the legislation. The whole Parliament must be given the chance to decide the way forward now.”
Ukip’s Scottish leader, David Coburn, said the verdict was a “major victory” for his party as he hit out at “this draconian, interfering, we-know-best piece of legislation”.
He said: “I am delighted the court has sided with the decent parents in Scotland.
“This is a major victory for Ukip in Scotland, and it will be a huge relief to concerned parents across Scotland that the Supreme Court agrees with us and has sided with the people against the nanny state government headed by the SNP.
“If the SNP now try to push an amended version through, we will continue to fight tooth and nail against it.”
The Christian Institute co-ordinated the successful legal action and director Colin Hart said: “This ruling is crystal clear that the named person scheme’s cavalier approach to handling private information is unlawful and must not happen.”
He stated: “We all accept the good intentions behind this law but a universal data-gathering scheme like this was always going to cause major problems.
”We are very happy with today’s ruling, which vindicates what we and others have been saying for years.
”The court even invoked the spectre of totalitarian regimes in its criticism of the plans. This is a devastating blow for the Scottish Government which sought to brush off all criticism of its named person scheme as ‘scaremongering’.”
The Christian charity Care, which was also one of the co-petitioners in the legal challenge, hailed the outcome as a “stunning victory for parents and families across Scotland”.
Spokesman Dr Gordon Macdonald said: “The Scottish Government’s named person scheme was in clear breach of European human rights law on the rights to a private life.”
He added: “While well-intentioned, the scheme was ill-conceived and represented an attack upon the rights of parents.
“We wholeheartedly support the need to protect young people from harm but, in its scope and its mandatory character, the named person scheme was not the best way to go about doing it.”
A spokesman for NSPCC Scotland, one of several children’s charities which had backed the named person scheme, said: “NSPCC Scotland has recognised the concern about how the ‘named person’ part of the Children and Young People Act was being introduced and, while supporting the principle behind it, has had reservations as to how it would be implemented in practice.
“It is now for the Scottish Government to determine next steps, but it is essential that it ensures that any new system is effective in protecting children and we would urge that the Government’s commitment to early intervention is not diminished.”
Ross Greer, the Scottish Greens’ education and skills spokesman said: “Greens continue to support the Named Person scheme and it is positive that the UK Supreme Court has ruled this essential child protection scheme ‘unquestionably legitimate’.
“As I told the Scottish Parliament last month, the Scottish Government must do more to build public confidence and better explain what Named Person means in practice.
“Even the name is far from perfect. They now have an opportunity to do that when the Supreme Court’s necessary changes are made to the legislation.
“Let’s review the scheme’s effectiveness after it’s implemented, but its opponents must accept the court’s decision.
“The system has been designed for children who need help and who would otherwise slip through the net. It’s for that reason Greens give it our full support.”
Copyright (c) Press Association Ltd. 2016, All Rights Reserved.
Picture – Parents James, 41, and Rhianwen McIntosh, 38 and their four children Caleb, 9, Joel, 6, Charis, 4, and Micah, 2, who were informed in April 2014 the children had been assigned named persons before the Named Persons scheme was scheduled to be implemented, stand outside the Supreme Court in London after judges ruled against the Scottish government’s Named Person scheme. (c) Lauren Hurley / PA Wire.