Campaigners raise concerns over State guardian scheme

Simon Calvert, James Macintosh, Sam Webster and Alison Preuss.

The claim was made as a two-day judicial review of the named persons scheme began at The Supreme Court in London.

The legal action has been taken by campaigners against the proposal contained in the Children and Young People (Scotland) Act. They claim it authorises ‘unjustified and unjustifiable state interference with family rights.

Among the issues being considered during the two-day hearing are whether the ‘named persons’ policy is compatible with common law rights and the European Convention on Human Rights.

The case heard in front of five judges at the Supreme Court saw Aidan O’Neill QC appearing on behalf of campaigners including the No To Named Person (NO2NP) group.

Mr O’Neill was asked by the Lord Reed if a GP prescribing the pill to a teenager would have to tell the girl’s named person, Mr O’Neill answered: “Yes and not be constrained by the duty of confidentiality.” Mr O’Neill then suggested the teenage girl’s parents would not have the right to know, even though the named person – normally a headteacher – would.

He claimed that under the provisions of the proposed law, “there is no requirement to involve parents in these matters.”

Those taking the legal action object to the scheme on the grounds that it is compulsory. Mr O’Neill said the policy “looks to be built on not much very more than sand”. The lawyer said the policy’s aim was the “promotion of wellbeing” of children, but described the proposals as “going beyond the state’s role’ as set out in the UN Convention of The Rights of the Child”.

He described the “principle of subsidiarity” outlined in the UN convention, which states that the state should play a secondary role to a child’s parents in ensuring their wellbeing.

“The child is not the mere creature of the state,” said Mr O’Neill. “What we have here is the state coming in and having a view and promoting a particular vision of welfare under very vague notions of when the child is safe, active, healthy and nurtured.”

The court heard the Scottish government has produced an easy-read guide for parents which contains guidance about how a child’s room should be decorated and what television programmes they should watch to promote their ‘wellbeing’.

A named person could be able to raise concerns about a child if they thought there was a risk of their wellbeing being “adversely affected by any matter”.

Mr O’Neill said he would try to avoid using Orwellian language, but likened the scheme to “Big Sister watching out for you”.

He said: ‘Having four sisters myself it has a certain menace to it. It’s all done in the language of this is all for the good of the child, Scotland will be the best place for a child to grow up.”

He added: “In emphasising that they seem to have lost sight that the role of the state is a limited one.”

The scheme was defended by James Wolffe QC, who acted on behalf of The Lord Advocate. Mr Wolffe said: “This is the state not going too far, it is seeking to provide support for family life through this particular mechanism.”

He claimed the named persons scheme was an “appropriate policy response” to social conditions and said that “action under the legislation will depend on an assessment of wellbeing.”

Responding to claims that the concept of “wellbeing” is too imprecise to meet legal requirements, Mr Wolffe said: “It is my submission that the requirement of legality does not prevent the use in legislation of flexible concepts, nor does it require a rigidity that is greater than the subject matter.”

Mr Wolffe said the easy-read guide that Mr O’Neill had earlier referred to was a document created by charities with funding from the Scottish government.

He said it was not an official publication of the Scottish government and has since been withdrawn.

The hearing continues today.