In an astonishing and unusual decision the UK Supreme Court has struck down a Scottish government law, the Named Person Act, by a majority of five to zero. There are many aspects to this case but because it was brought by, among others, Christian charities, it is important for us to realise and understand what is going on here.
CARE and the Christian Institute have portrayed this as a victory for them against the Named Person scheme. Dr Gordon MacDonald of CARE stated: "This is a stunning victory for parents and families across Scotland. We are delighted judges at the UK's highest court have backed our case."
But the Scottish government had a different point of view. The minister responsible, John Swinney posted: "I welcome the publication of today's judgment and the fact that the attempt to scrap the named person service has failed."
So what is going on?
The Named Person Scheme came about because of perceived weaknesses in child protection provision in Scotland. There was a particular concern for joined up thinking and co-operation between different agencies involved with child welfare. The SNP has a scheme entitled "Getting it Right for Every Child" of which the Named Person legislation is a key part.
The idea is that each child in Scotland from the womb (an interesting development in itself) to aged 18 will have a state appointed Named Person, who will be a point of contact for parents, welfare services, the NHS, education etc. The aim is to improve access to services and to provide early detection and prevention when problems are likely to occur.
So far so good. So why were CARE and the Christian Institute opposed to this, to the extent that they were prepared to go to court? And it's not just some Christian groups. There are secular, political and other charitable groups who are opposed, although the majority of children's services and government social work organisations are strongly for it.
The main concerns are that it erodes parental rights and that it is so broad-based that it will be costly to implement and will limit more targeted intervention for high-risk children. From initially being a widely accepted programme that had been trialled successfully in the Highlands, there is now significant political and parental opposition, with polls showing that up to 75 per cent of parents are opposed.
The Supreme Court ruled that the Named Person scheme did breach the right to privacy and a family life under the European Convention on Human Rights and that it therefore went beyond the legislative competence of the Scottish Parliament. The Court stated that the aims of the scheme were 'legitimate and benign' but ordered the Scottish Parliament to redraft the legislation to comply with ECHR legislation.
I find myself in a bit of a bind here. I support the basic idea of a Named Person because I have listened to many of those involved in child welfare provision and they are generally supportive. There is a need for such a service and it is, as the Court stated 'legitimate and benign'.
I also question why Christian organisations are taking the government to court. Is this not a waste of money? Does it really help the Christian witness? Why is this issue so important?
But when you ask questions, you also need to listen to the answers. So I have been asking the Scottish Government, CARE and others involved, and I actually took the time to read the whole judgment. Here are the main lessons I have learned.
It is wrong for anyone to claim that the Named Person scheme is "dead in the water". I realise that when money, time and effort has been invested in a particular action there is a temptation to talk it up, for ourselves and our supporters, but we still have to be honest and measured. The fact is that, barring a significant change in circumstances, the NP scheme will go ahead. The Scottish Government has a clear majority in the Scottish Parliament and now this has been made a point of principle and pride, they will not back down.
Given that SNP MSPs are forbidden from disagreeing with any aspect of party policy and that their party discipline is so tight it is unlikely that any MSP will break ranks. So the government will change the legislation, tighten it up and then pass it in a form that the court will allow. At most, unless there is a major change of heart, the most that will happen is that it will be delayed for a few months.
However, this may turn out to be a real Achilles heel for the SNP, because it is a deeply unpopular policy and the court's ruling will not help that. Hence the almost desperate spin being put on it by the Scottish Government.
It is also wrong for the Scottish Government to claim that the Supreme Court decision was in any sense a victory for them. By a majority of five to zero (which given that fact that cases that come to the Supreme Court tend by definition to be highly contested and controversial is itself extraordinary), without any dissent, the Court has declared that one of their Acts is illegal. This was as great a victory for the Scottish Government as Culloden was for the Jacobites, or Pearl Harbour for the Americans! The denial of their defeat and the attempt to spin it as victory does not reflect well on the SNP.
What is even more concerning is the potential harm that this legislation could have been used for. This is what the Supreme Court recognised. In a stunning citation as part of their judgment they declared:
Here we have the Supreme Court warning the government that it is in danger of behaving in a totalitarian manner. Why? Despite Nicola Sturgeon suggesting that the Named Person scheme is voluntary, it is not. It is a compulsory scheme. Every child in Scotland has to have a Named Person, whether they want it or not. This is not about targeting particular needs or dangers; it is about attempting to identify them by making it compulsory. A case can be made for this if it was only about preventing child abuse. But the Scottish Government has made the scheme about much more because they have made the NP responsible for 'child well-being'. This creates an open door for abuse, because it is so ill-defined. This would not be the first time that well-intentioned legislation ended up being used for harm. What if the Named Person wants to enquire about what kind of values and views the child is being brought up with? Let me give one example.
In June of this year I was asked by Barnardos if my church would be willing to partner with them on the question of adoption. I was very interested in doing so and looked forward to the discussion, when I got a somewhat embarrassed phone call from their representative saying that they had been instructed from higher up in the organisation not to partner with us because we did not accept Same Sex Marriage. Imagine that. A child welfare organisation were prepared not to provide adoptions because of their ideology on same sex marriage! So much for the welfare of the children needing to be adopted.
Barnardos are supporters of the Named Person scheme. The Scottish government regard supporting SSM as a basic civil right. It does not take much imagination to find parents being accused of putting the child's 'welfare' at risk because the current zeitgeist morality of the State is not being taught in the home. The journalist Kevin McKenna wrote in the Guardian of the Named Person scheme that the Scottish government was: "constructing an illiberal, big government control centre that is seeking to insinuate itself into every corner of family life in Scotland. The family unit, no matter which way you try artificially to stretch it, is the natural authority in the life of every child. The state has many, many tendrils to sense when there is danger, but it has no right to presume to act as a grim, surrogate parent for the nation's children".
This is why ultimately I am thankful for the Court action taken by the charities and for the decision in their favour. It allows the Scottish government to change and amend this legislation so that the rights of parents are protected, and the welfare of children best provided for. We can only hope that they will have the humility to listen and act.
CARE and the Christian Institute have done the whole society a favour by drawing attention to the dangers involved and compelling the government to think again. It is a rare bit of good news in a time of seemingly endless bad news. For that we should be thankful. And we should all continue to work for the welfare of all children, and not rely just on governments or courts. The little children are to be brought to the Christ who loves and welcomes them. That is an on-going battle.
David Robertson is the moderator of the Free Church of Scotland and director of Solas CPC, Dundee. Follow him on Twitter @theweeflea.