Chris Creegan

Comment | Ideas | Opinion

After the Named Person judgment

by Chris on 30th July 2016

stockvault-the-joy-of-childhood-bw101868The debate about the Named Person scheme hasn’t been pretty for a while. But it took a new ugly turn this week. And it’s one that should concern us all. The debate has long been a noisy one, not just loud, but shrill. You could be forgiven for not knowing that the scheme was actually a policy response to issues which have been highlighted time and time again; early intervention, joined up working, a single point of contact for families.

The scheme is ultimately for children. But now, in the wake of the judgment handed down by the Supreme Court, it is the interests of children which seem to be in danger of getting lost in a battle characterised by smears, slogans and group think.

Within moments of the judgment, a cursory glance at the emerging headlines suggested that the scheme was at the very least drowning if not dead in the water. And yet just as quickly it emerged that things weren’t quite what they seemed. It wasn’t the scheme in principle which had been deemed to breach human rights. In fact, its intention had been described as benign. The court had also recognised that the principle of early intervention, and therefore the proposal that every child should have a Named Person, was central to its efficacy.

Rather it was the planned operation of the scheme that was in breach, specifically in relation to information sharing. Even here the principle of sharing information was not judged to be a breach of rights, rather the specific provisions as currently set out. This is no small matter but it was not the impression that was given.

In short, one can only assume that in some cases people wanted the appeal to succeed. After all, that was probably the better story. Certainly the better headline. The loudest voices to date have been on the opposing side. The headlines yesterday reflected that. And they fitted with an ongoing narrative about our polity.

Worst of all, a section of the judgment which talked about the characteristics of a totalitarian state was bandied about as if it was a description of Scotland given by the judges. It was not. Rather it was contained in a section of the judgment which was describing the interests protected by Article 8 of the ECHR, not the following section which went on to discuss whether the provisions of the scheme represented a breach of that Article. Just a small detail but rather an important one.

Why did this happen? In a battle characterised as good parents versus evil snoopers which had reached fever pitch, no one on the opposing side appeared to want to lose face. In reality, the judgment was a good deal more nuanced. The appeal had only partially succeeded and the potential for implementation to proceed remained pretty firmly intact even if, for the moment, it had been stopped in its tracks.

The government’s response to this was characteristically brisk and business-like. This was understandable. In the wake of the judgment, there was work to do. If you are strongly committed to the principle of a policy, your response to a judgment in which that principle remains intact is hardly going to be to offer it up on a plate.

And in any case, no one appeared to be reaching out to offer much in the way of constructive opposition. Some have decided that the scheme represents the best stick to beat the government with they’ve had in a while. Others seem to have decided that discretion is the better part of valour. So why not just plough on?

And yet there is plenty that should make everyone pause including the quality of our law making. There are certainly lessons to be learnt about the drafting of legislation which protects rights. And our collective understanding of what rights mean in practice could benefit from greater scrutiny too.

Given how much we say we value rights in today’s Scotland that should matter. So a little more humility and a good deal less hubris all round would be no bad thing. The judgment offers plenty of opportunities to think creatively about how the scheme can be made to work in everyone’s best interests.

The interests that matter most must be those of children. Ultimately and quite rightly, the judgment is a victory for their interests. Both parents and professionals have a significant role to play in protecting their well-being. But in a modern democracy, they are the chattels of neither. The state has a legitimate role to play but it must do so sensitively and proportionately. Parents have a right to expect that family life will not be unreasonably or unnecessarily intruded. By any objective analysis not caught up in kind of stramash that has come to characterise Scottish politics, it ought to be possible and desirable to make a scheme work which meets both of those principles.

Politics is often about disagreement, sometimes quite profound. And so it should be, where genuine differences exist. Cosy consensus is unhealthy. But robust scrutiny to arrive at a workable solution which everyone can agree on is not. Ultimately, it has to be about finding practical responses to issues that concern us. Children’s well-being is surely one of the most important of those issues. Not surprisingly then, some people have asked quite rightly this week, how did it come to this?

Just two years ago, a parliamentary vote on the legislation which includes this scheme was carried without any votes against. It’s fair to acknowledge that the Named Person component of the bill was the most contested. But that was before the referendum. Before we went sleep walking into a period when everything falls on one schism. Government as normal appears to be something we don’t want, even where the interests of children are at stake.

This schism has given way to a belief that we are constantly faced with government intransigence borne out of a determination to control our lives. I think that’s politically expedient nonsense. It also has the inevitable consequence of encouraging a bunker mentality by those the accusation is being levelled at. Sadly, in this case, the consequence has been that some of the government’s own politicians have often woefully failed to articulate what the policy is actually about.

Thank goodness for the main children’s charities who have remained a critical but constructive voice throughout this unedifying spectacle. But no wonder space has opened up for narrow interests of the scheme’s leading opponents to whip up public opinion in their own image. Given what some of those opponents actually stand for we should be worried about the celebrations since Thursday.

My response to this policy was borne out of personal experience. As someone who is still asking in middle age who spoke for me and my siblings in a troubled family, I wasn’t persuaded by the civil liberties arguments. They have always appeared to me to be based on a wilful misunderstanding of what the scheme was seeking to do. It’s regrettable that those arguments took us all the way to the Thursday’s judgment, especially as it’s the first time that the Supreme Court has exercised its power to prevent a major piece of Scottish legislation previously carried.

However here we are and I think the best response now is not just to accept the judgment but to welcome it. It offers an opportunity not simply to carry on, but to reassess, regroup and make something out of this mess that can really work. There will probably be people reading this from both sides who have no inclination to shift their position, precisely because this is where we’ve got to. But that would be to lose an important opportunity to face up to how we got here.

I have a great deal of respect for all five party leaders in Holyrood and I think we can do better than this. We have a chance to rebuild the sort of consensus which will be needed if the scheme is not be dogged by impracticality. And whatever happens, professionals will need to go on intervening and sharing information and we ought to make sure they are able to do that well.

Just a final word for those who argue that this was a victory for liberty versus the state. I would urge you not only to carefully read the judgment itself but also have a good look at the policy positions of the leading appellants. I’m a Christian and they do not make for liberal reading on the role of parents, the role of women, LGBT rights and a host of other issues. If you insist that this is about rolling back an invasive, so-called one party state, look at the kind of world view they have and ask yourself whether it’s honestly one you share.

Even if you’re a great parent with your children’s best interests at heart, ask yourself, do you really believe that with the right checks and balances in place a Named Person might not have something to offer. Ask yourself, when you aren’t able to be there for your children for some reason or when through no fault of your own you’ve missed vital signs that something is wrong, who will speak for them?

  • David Mackie

    What you say is true, its exactly what the Tories had been saying for years, Adam Tomkins raised this in Parliament and was shot down by John Swinney yet the judgement was exactly what he had said – I am sure Mr Swinney will be apologising very soon for his outburst.

    No opposition has ever said the desire of the law was wrong, the opposition was all about the implementation of it – this has been born out by the judgement.

    When you ask your readers to carefully read the judgement, I would suggest this article is worth reading

    “The first thing that a totalitarian regime tries to do is get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ views of the world.”

  • Bill Naismith

    Those opposing the legislation are not facing up to the reality of the problem and are not offering any meaningful alternatives.

Previous post:

Next post: