Wholesale Named Person rewrite shows reality is beginning to dawn on Scottish Government

Comment

Colin Hart, Director of The Christian Institute

In July this year the Supreme Court upheld our appeal against the Scottish Government. Five judges ruled unanimously that the central part of the scheme is unlawful – the plan to allow state officials to share sensitive personal information without consent. The judges also stated that any advice offered by a named person is optional, not compulsory.

Instead of withdrawing the scheme, the Scottish Government is trying to salvage something from the wreckage of its plans. But the magnitude of the challenge is now starting to dawn on them.

Wholesale rewrite

At first the spin was that the issues were so trivial that they could be fixed in a month or two. Then we were told the Named Person scheme would come into force by the end of 2016. But now Deputy First Minister John Swinney has been forced to admit that it will take much longer than that – at least a year – to sort out the problems. He will not be able to continue the spin indefinitely. He must know that the Supreme Court will be looking at what he is doing.

The delay for a year shows that a wholesale rewriting of the law is in view. John Swinney made a statement to MSPs on 8 September in response to the historic Supreme Court judgment in the case of The Christian Institute and others v The Lord Advocate (Scotland).

In his statement Mr Swinney also announced a new consultation. It is disappointing that he has refused to meet with representatives of ‘No to Named Persons’ (NO2NP) to discuss the ongoing concerns about the scheme.

Coercion not consent

From the start the Institute has had three main concerns, namely that the scheme would:

• Create a named person for every child in Scotland regardless of whether they’re at risk or not. (The scheme has never been about protecting vulnerable children since they are already covered by child protection laws.)
• Give the named person coercive power to advise and inform children about personal family matters without the consent of parents.
• Allow a child’s confidential personal information to be shared without parental consent, even when it’s unnecessary.

Implications

The Supreme Court’s ruling means that the aspects of the scheme giving rise to our second and third concerns must be abandoned. So if the Scottish Government insists on going ahead, it is left only with some sort of universal system (point one above) – crucially, state officials would no longer have power to interfere in family life for wellbeing concerns.

The effect of the judgment is that Ministers can only introduce an advisory scheme, which parents and children can refuse to engage with. The Supreme Court was clear that parents should not even be given the impression that they have to accept a named person’s advice.

So it is obvious that the original legislation will have to be heavily watered down. In the end, if a Named Person scheme does go ahead, it will be a shadow of the ‘Big Brother’ scheme the Court has struck down. Named persons will not have these dangerous legal powers given to them, but they may still have the capacity to be irritating!

Next steps

We believe it is likely that the Supreme Court will want to monitor the proposed changes to the legislation. In the meantime, we have submitted evidence to the Court of the various contradictory statements made by Ministers since the ruling was handed down.

The Scottish Government’s claim that the scheme was always simply a service to help parents who wanted it was never remotely connected to the actual legislation passed at Holyrood in 2014. Nor does it reflect the practice in the named person pilot areas, where we have serious concerns about the unlawful information sharing that is still going on.

We will need to be very watchful for local authorities, schools and health visitors acting outside the law. We understand that, following the judgment, there are already at least two court cases involving gross breaches of privacy.