Nicola Sturgeon’s controversial Named Person scheme was yesterday ruled unlawful by the UK’s highest court in a judgment that is deeply embarrassing for the Scottish Government.
The ruling by the UK Supreme Court found that the Named Person legislation risks breaching the right to privacy and family life under the European Convention on Human Rights (ECHR).
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.Simon Calvert
A unanimous decision by five judges has led to calls for the recall of Holyrood to discuss the implications for the scheme, which was to be fully rolled out next month and intended to give every Scottish child a Named Person to monitor their welfare.
Anti-Named Person campaigners were delighted by the judgment. But the Scottish Government was defiant with Education Secretary John Swinney vowing to work with public services and children’s charities to keep the scheme going.
Mr Swinney said the government would start work on changing the Children and Young People (Scotland) Act 2014 to make it compatible with the ECHR. The Scottish Government has 42 days in which to address the issues raised in the judgment.
The court case was brought as part of a campaign being fought against the legislation by critics of the scheme which typically sees head teachers or health visitors appointed named persons. Its critics have described the legislation as “a snoopers’ charter” which is “an unjustifiable intrusion” on family life by the state.
Although the judgment acknowledged the aim of the scheme – to protect the wellbeing of children – was “unquestionably legitimate and benign”, it found it risked breaching Article 8 of the ECHR.
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This article is designed to protect the right to respect for private and family life. The court objected to the Scottish Government’s proposal to share information about children across agencies.
The 48-page document underlined the importance of article 8 and issued a general warning, noting: “The first thing that a totalitarian regime tries to do is to get to 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.”
The sharing of information about vulnerable children across agencies was a key aspect of the Named Person legislation. It was introduced in a bid to prevent tragedies such as the death of 11-week-old Caleb Ness from Edinburgh who was killed by his father despite the involvement of social work and health staff.
But the judgment said: “Information, including confidential information concerning a child or young person’s state of health (eg as to contraception, pregnancy or sexually transmitted disease), could be disclosed to a wide range of authorities without either the child or young person or their parents being aware of the interference with their article 8 rights.”
It added that the legislation did not satisfy the requirement of being “in accordance with the law”.
The appeal was brought by the No to Named Persons (NO2NP) coalition, which is made up of the Christian Institute, Care (Christian Action Research and Education), Tyme Trust and the Family Education Trust.
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They took their case to the Supreme Court after their arguments failed to convince the Court of Session in Edinburgh. The ruling, made by Lady Hale, Lord Wilson, Lord Reed, Lord Hughes and Lord Hodge – found that Holyrood had acted outwith its powers when passing the Children and Young People (Scotland) Act 2014.
Simon Calvert, spokesman for NO2NP, said: “We are delighted with the decision which proves our concerns, and those of the 35,000 people who signed our petition, were properly founded. The proposed scheme was intrusive, incomprehensible and illegal.
“This ruling means the Scottish Government has been blocked from implementing this scheme on 31 August. It must scrap its plan for state snoopers with intrusive data sharing powers.”
Mr Swinney said: “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.”
Last night, the Lib Dems called for MSPs to be recalled from their summer recess. MSP Tavish Scott said: “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.”