Feminist campaigner and former social worker Maggie Mellon explains why she’s welcoming a recent decision from the Supreme Court on the controversial Named Person law

WHY has the Scottish Government allowed itself to be undone by a scheme with an Orwellian name which it never able to explain without contradicting themselves?

On Thursday, the Supreme Court delivered its verdict on the case against the Named Person law (Part 4 of the Children and Young People Act, 2014). The appeal was upheld on two crucial grounds.

There are excellent accounts of the ruling (link to CelticKnot blog) and I won’t go into these here. I want to discuss the politics of the whole thing. I felt relief to hear the verdict. The scheme would not go ahead in its current form. As an opponent of the Named Person law, I could not be anything but relieved and pleased.

Read more – Nicky MacCrimmon: What the Supreme Court really said about Named Person and what it means

But I had other feelings, too. As a Yes campaigner and a member of Women For Independence – and indeed an elected member of the WFI national committee – I also felt really regretful that it had come to this.

A government that I genuinely want to support, and which has done some very good things, has been humiliated on a UK and world stage on an issue of human rights, which it prides itself on upholding. This has allowed the Tories and the rightwing press, which care not a jot for European rights legislation, and who rejoice in the austerity being imposed on our poorest children and families, to celebrate and crow.

I hate that. I hate it as much as any member of the SNP, or any supporter of independence. But I am not responsible and I don’t feel guilty. The case needed to be brought, for the sake of families and children, and it was right that it was won.

When the Scottish Parliament voted in favour of the Children and Young People Act 2014, it ignored the good legal advice of the Faculty of Advocates, the Law Society of Scotland, the Child Law Centre, Clan Law, and of leading legal minds such as Professors Elaine Sutherland and Ken Norrie.

The parliament also ignored the criticisms and concerns of local authorities, the majority of whom were against at the consultation stage as the costs and burdens of allocating a Named Person to every child in Scotland would fall to them.

It ignored the concerns of the Scottish Parent Teacher Council, and of many other smaller organisations including the Scottish Association of Social Workers who warned of confusing child protection with wellbeing, and of diverting resources from the most vulnerable.

In the period between passing the law and implementation which was to be August this year, it should have been a red warning sign to ministers and to their special advisors and senior civil servants that they were constantly having to literally ‘spin’ the message 180 degrees in response to challenges.

A government that I genuinely want to support, and which has done some very good things, has been humiliated on a UK and world stage on an issue of human rights.

One day, the message was that Named Persons were a voluntary service that parents had asked for, and the next it was necessary to impose Named Persons on all children in order to protect the most vulnerable and prevent child deaths. Families with nothing to hide had nothing to fear.

One day the scheme had been successfully piloted in Fife and in Highland it was flawless. The next, in response to the deaths of children in those very authorities, we were told that the Named Person scheme was not responsible for protecting children, just the promotion of low level wellbeing.

We were also told that the ‘successful’ pilots had not in fact been pilots at all, as the law was not implemented yet.

Challenge after challenge emerged – about guidance which advised that the Named Person would check on children having choice in their home lives about bedroom décor, and bedtimes, about children being told that their parents were gardeners but the Named Person was the head gardener, about 261 risk factors that Named Persons had to consider, (one risk – ‘being under five’ – gives an idea of the nature of this scatter gun approach), about what happened in the school holidays (an unnamed would be holding the baby), about why 16 year olds could vote and marry, and leave school but still needed a Named Person.

Then it emerged that a child’s Named Person would be informed of significant health or other issues in the lives of over-12s, but whether parents were told would be up to the Named Person. Not surprisingly, the draft guidance was condemned by almost everyone except its authors as confusing and inadequate, and it could not be issued in time to train the thousands of Named Persons for their new responsibilities.

A disaster waiting to happen, I am sure I am not alone in feeling that I could hardly bear to watch as the shambles got worse. Worse was having tried to raise all these problems and issues and being told they were complete nonsense. Nothing, it seemed, could give the government pause to consider the risks.

Read more – Swinney defends Named Person scheme in wake of Supreme Court ruling

Come June, when Nicola Sturgeon appointed John Swinney as the new education secretary, I optimistically thought that she was creating a golden opportunity for a strategic step back. We had been there before with the women’s prison, a campaign I had been involved in.

But Swinney, a normally astute politician, waded right in and insisted that Named Persons would be implemented and that anyone against it had to be rebuffed strongly. However, he announced that the August implementation date would be put back until after the Supreme Court ruling.

Why was he so confident that any ruling would be in the government’s favour? Is the advice of government lawyers so duff that they did not prepare him for possible defeat? Did he seek no other advice? Did he have a Plan B? The whole world now knows the ruling wasn’t in the government’s favour. Very clearly not in favour.

Government announcements, however, in a piece of astonishing spin, insisted that the Supreme Court had praised the scheme and its intentions, and had only upheld the appeal on a couple of technical grounds which would be a mere trifle for the government to sort out.

The Supreme Court had in the judgement commented that the Act’s stated aims were legitimate and benign, but this was nothing more than a polite statement of the obvious. No-one has ever suggested that the aim of promoting children’s wellbeing is a bad aim, or that it is not a legitimate aim for the Scottish Parliament or Government to hold.

No-one has ever suggested that having a single point of contact for parents and/or children is a bad thing. But unfortunately that is not what the law set out. The law does not mention parents or children’s rights, their consent, or even consultation.

Named Persons were clearly to be assigned as a point of contact about parents and children, not for parents and children (except in a ‘we know best’ way). That is why the Supreme Court upheld the appeal – the law as passed allowed for non-consensual sharing of information about children and their families without any threshold or protection. That, as the government was warned, breaches European Convention rights to private and family life.

A disaster waiting to happen, I am sure I am not alone in feeling that I could hardly bear to watch as the shambles got worse.

The court’s warning about the dangers of totalitarianism was not an accusation against the government but an explanation of the importance of respecting and preserving the ECHR right to privacy and family life. The family does not belong to the state, and is not for regulation, no matter how benign the stated intention. The road to hell, as we know, is often paved with good intentions. But so much for the legal story and the route to disaster.

The appeal and the campaign has been largely funded by the Christian Institute. I considered my position in relation to this very carefully before I agreed to lend my name to the campaign. I agreed to support the campaign only when I had assured myself that it would not be party political, would not promote any one religion or religious belief, that there would be no anti-gay, anti-women, or racist sentiments espoused, and that it would not defend the physical punishment of children.

I and others also stressed that the campaign would defend families of all shapes and sizes and beliefs. Christianity is a religion which is as entitled as any other to its beliefs. In fact, religion is a protected characteristic under equality law – every religion.

It is ironic that many people who decry Islamophobia seemingly don’t believe that Christianity is entitled to the same tolerance as Islam. When I spoke at public meetings of the campaign I met families who were genuinely frightened of having the care of their children threatened because of their religious beliefs.

They are entitled to their beliefs – and they have a right to tell their children what they believe even if it is seven-day creationism. I shared beliefs with my children about lots of things that the government of the day or even their head teacher might have found objectionable. Indeed, Section 28 was still in force when we told our children it was wrong.

The Christian Institute people no doubt found some of my beliefs objectionable as I would theirs, but the No2NP campaign did not stray into promoting any such views. So much for the campaign and its supporters.

Worse was having tried to raise all these problems and issues and being told they were complete nonsense. Nothing, it seemed, could give the government pause to consider the risks.

But what were and are the government’s motives? Why was and is the government so wedded to a policy that it can’t really defend or explain? What can we make of the intransigent, defiant and unrepentant stance of the government and its supporters? Why were they so committed to this ‘flagship policy’ which had the marks of confusion and impending disaster from the very start?

Is it just that the SNP does not ‘do’ policy very well itself and thus is prey to half-baked ideas promoted by enthusiasts as ‘big ideas’? It’s a reckless government that legislates in such central areas of Scottish life as football and families without really knowing what it is doing. And it is reckless legal advice that allows it to do so.

Has it completely misunderstand the difference between a universal service and a universal imposition? The NHS is a service free at the point of need. Demanding weekly medicals from every citizen is an imposition.

Has it misunderstood the Christie Commission recommendation for prevention to be at the heart of public service so entirely that it thinks this means giving public services more and wider powers to tell parents and others how to live their lives?

Prevention means public services should serve the public, not that the public have to serve the services. Maybe there is a bit of all of that. But the explanation that I find most plausible is that if a government does not have the will, or the necessary bottle, to fundamentally tackle poverty and inequality, then promoting ‘child rescue’ is very attractive.

This brings it closer to charities whose funding and position depend on maintaining ‘child rescue’ as their mission. This explains the big charities’ support for the Named Person. This explanation would also tie in with other parts of the Children and Young People Act which focus on care and after-care, and particularly on adoption (the ultimate example of child rescue) rather than on support for families.

Is it just that the SNP does not ‘do’ policy very well itself and thus is prey to half-baked ideas promoted by enthusiasts as ‘big ideas’?

Take a child out of a bad family and put them in a good family. No need to change society. Changing a family is much easier. Rather than one-stop family centres, and a focus on support for families in adversity, providing refuges, nutrition, holidays, childcare, high levels of child benefit, the CYP Act set sail in the opposite direction.

This was not prevention, whatever the government claims. And the proof is that Scotland now has the highest rate of children coming into care (that is away from their families) in the whole of the UK.

However, there are some who believe that the government has been kidnapped by a sinister ‘Big Data’ agenda, which aims to ensure data mining of the whole population – and that children are just the soft end of getting public acquiescence to this.

Getting a single database of all children in Scotland with an account of their birth weights, post codes, educational attainments, hereditary illnesses and conditions, and all sorts of ancillary information about their parents and wider families’ health, income, life incidences, would be an enormous prize not least to multinational companies in their search for profit and control.

The intrusive and unevaluated ‘surveys’ that the private sector Dartington Unit has persuaded various authorities around Scotland to administer without parental knowledge or consent are just a small example of the kind of data-gathering that should never be embarked on, particularly in unregulated hands of the private sector.

A very dangerous prize for whoever can access it. And this is where the Scottish Government is (hopefully was?) heading with plans for one enormous database for all children. Extremely expensive, possibly unachievable, and definitely dangerous, not least for very vulnerable children.

I don’t see any sign that lessons have been learned about how to work with opponents, or doubters, or even to collaborate with anyone who does not give 100 per cent support.

Who guards the data? Where now? There was too much of last week’s spin and bluster that was reminiscent of 1984. I found it chilling to watch John Swinney misleadingly reassuring supporters that the Supreme Court ruling was a vindication, denying the facts about just how wrong his government had been.

Worse than that, he seemed to be trying to work gullible government supporters to self-righteous anger against those of us who had dared to challenge the government in court. This was an attempt to have the Named Person scheme scrapped, he fumed, and it would not succeed.

Determined to clothe himself in the justification of ‘benign and legitimate’ aims, he was unwilling to accord any such good faith to those who oppose the scheme and who took to court to save our rights. The opponents have benign and legitimate aims, too.

And these happen to accord with the ECHR, which the Scottish Government claims to be strongly committed to upholding and keeping. The government has 42 days to go back to the Supreme Court with a proposed redraft of the legislation and guidance which will meet the requirements of European law.

John Swinney has announced that he is consulting with the same charities and public sector leaders who supported the law and wrote the guidance. The Sunday Herald writes about a ‘compromise’ position that would entail parents signing agreements to allow information sharing but being allowed to see and correct any information.

Do they think that they are entering a negotiation with the Supreme Court on human rights? That they can offer to meet them half way? That won’t do.

There has been no overture to the Scottish Parent Teacher Council or to anyone else involved in successfully challenging bad legislation to ask for assistance or opinion.

If this is the case, then I sadly think that any renewed campaign for independence is not going to be able to win over the 10-15 per cent that are needed to win another referendum.

I don’t see any sign that lessons have been learned about how to work with opponents, or doubters, or even to collaborate with anyone who does not give 100 per cent support.

If this is the case, then I sadly think that any renewed campaign for independence is not going to be able to win over the 10-15 per cent that are needed to win another referendum.

Unbending commitment to imposing the Named Person might prove to be a bigger millstone than any other single issue.

By Maggie Mellon