The Named Person law has been rejected, for good reason, though the SNP won’t accept that, writes Brian Monteith
The decision by the Supreme Court to overrule aspects of the Named Persons legislation is being seen by many political observers as a significant slap in the face to the SNP government, and it is. It is, however, more than that: it is a repudiation of the cosy consensus and complacency towards the performance and quality of the Scottish Parliament and its legislative output.
It is damning condemnation on the standards of Scotland’s political leadership in being unable to accept even constructive criticism, the regular failure of opposition to challenge or scrutinise the executive – and the encouragement by our MacChattering classes for more political interventions as the solution when so often they are the problem in the first instance or will make an existing problem much worse.
That there is a real need to help children and young people in need of protection from adults is not doubted by anyone, be they parents or guardians, social workers or carers, professionals in the field, police and healthcare workers – or just plain ordinary members of the public.
The central question has been when such help justifies intervention by the state in what is and should remain a family responsibility, and how that intervention is provided.
When it comes to maximising life chances of children through providing moral and physical support, accessing opportunities for advancement, and offering corrective advice and a commitment beyond working hours the family unit has never been bettered.
We know that children removed from families (irrespective of how the traditional definition of “family” has changed in the last few generations) and put into the care of the state are far more likely to encounter difficulties, be it in their economic expectations, social relationships or the avoidance of criminal activities.
State intervention for the sake of the child must therefore find a balance that does not put at risk the relationship between children and families so that the cure becomes worse than the calamity. Nor should it undermine the family, as that will only put more children at risk that would not have been at risk before.
It has been the argument of opponents of the concept of state guardians for all children that the cure would indeed be disproportionate and that the appointment of what would amount to politically correct commissars in every family was based on the presumption that all parents must be guilty until proven innocent.
It is therefore distinctly unhelpful for government ministers from Nicola Sturgeon down or partisan supporters to seek to demonise critics of the named person’s scheme as if they are on the side of violent child abusers, paedophiles and grossly negligent parents – but that has been what happened when serious but well-intended criticism was levelled at the legislation.
The SNP government, not for the first time, took a holier-than-thou attitude that would brook no difference of opinion and carried on regardless. The same attitude prevailed, for instance, in the debates about freedom of speech when singing songs that could be perceived to be offensive and the need for higher alcohol prices for everyone as a means to limit the abusive consumption of a small minority. That the resulting legislation in both instances has been highly controversial or challenged in court demonstrated the political failure of the Scottish Government to win its case convincingly or establish a consensus.
Worryingly, the Scottish Government appears to have learned nothing from the Supreme Court ruling and insists on presenting any changes it is being forced to make as a mere insertion of a comma here or the dotting of a i there. Few governments than this SNP administration can have displayed such a surfeit of hubris and a shortage of humility.
It would be far better for Scotland’s body politic if the SNP leadership could even just occasionally bring itself to acknowledge that it is composed of humans who, no matter their obviously attractive qualities, are now and again apt to fail – and that their opponents may sometimes have a better idea.
Unfortunately the SNP has form when it comes to being in denial; it has failed to accept expert criticism of so many of its proposed laws during the legislative process, failed to accept the independence referendum result despite signing the Edinburgh Agreement that stated it would, and now fails to accept that the EU referendum was a UK-wide decision. This behaviour serves only to sow division in Scottish society and undermine our democratic process at its foundations.
The SNP’s current behaviour does not however let the Scottish Parliament off the hook. If the quality of some of the drafting has been poor, it has also been down to the poverty of scrutiny at Holyrood and most certainly down to the unicameral nature of the institution itself that some legislation is less than ideal.
When the SNP was a minority government many of its more absurd ideas – such as a ban on alcohol purchase from off-licences by those under 21 – were thrown to the wind as the lack of a majority meant it was impossible for them to pass.
It was only once the SNP gained an overall majority that arrogance and condescension towards opponents took a hold. This however was little different from the behaviour of the Labour-Liberal Democrat coalition between 1999-2007 that, through its whipped overall majority, was also able to act in an often cavalier and patronising manner. By 2007 the Scottish public wanted a change away from Labour’s managerial cronyism and the signs are that it is now beginning to tire of the SNP’s aloofness.
Nevertheless, the Scottish public should not have to rely on the ebb and flow of political sympathy towards one party or another for it to enjoy a culture of political self-restraint. Our constitutional arrangements should seek to minimise opportunity for political absolutism and maximise the chances for constructive criticism that gives a voice to everyone.
Such institutional change must require the establishment of new systems of parliamentary scrutiny, be it improvements to Holyrood’s committee structures or the establishment of a second chamber. If it requires there to be less legislation which is of higher quality because it takes longer then that should be a price worth paying.