BONJOUR from the bonny Languedoc-Roussillon!
I’m meant to be on my holidays, but the Supreme Court of the United Kingdom is no respecter of summer sojourns.
The court just handed down its judgment in the Christian Institute’s challenge to the Scottish Government’s controversial named persons scheme.
Heaven knows, the hacks will need help reporting this one. Both sides will claim victory, and indeed, both sides have achieved important things in this judgment. It puts the headline writers in an awkward spot. The spin-machines will be whirling overtime. Everyone will take what they want from the decision, whether or not you can find it in the court’s analysis. So what’s the short version? Here follows a – very brief, dashed off holiday primer on some of the issues. I’ve only had time to make a hasty reading of the judgment in full. Forgive any weaknesses or glaring gaps in the speedy reaction that follows.
The Christian Institute won, as the court, led by Lady Hale and Lords Reed and Hodge, decided the named person scheme as presently constituted is unlawful. It is incompatible with Article 8 of the European Convention on Human Rights. Article 8 protects the privacy of your home and family life, of your correspondence. But in order to understand what the court has and has not decided, you have to know a little more about how they approach Article 8. Privacy and family isn’t an absolute right. It is qualified.
The state is allowed to interfere with its citizens’ family lives – if they have a good reason to do so.
Thus, for example, the law permits children at risk to be taken from their parents. A more radical intervention in anybody’s family life, it is difficult to imagine, but if there is a good reason for doing so, Article 8 will not prevent it. The same goes, for example, about bugging the houses of people suspected of serious organised crime or terrorism.
A more radical intrusion into your home life, it is difficult to imagine, but if it is for a good reason, and strikes a fair balance between the collective interests of the community and the rights of the individual, Article 8 doesn’t stand in its way.
So for any given scheme which interferes with a citizen’s privacy or family life, the court must ask itself three questions. One: does the scheme purse a “legitimate aim”? Does the government and parliament have a good reason for interfering with the rights of its citizens? The Supreme Court held that the aim of the Act, “is unquestionably legitimate and benign”.
Shona Craven: Holyrood must not be bullied into binning named persons law in its entirety
Two: judges must consider, is the measure “necessary in a democratic society”? Essentially, this means: is the measure proportionate? Does it go too far? The court fired a warning shot across the Scottish Government’s bows, observing that, because of weak guidance in the legislation, the named persons scheme does have the potential in some cases to disproportionately interfere with privacy and family life.
But critically, yesterday, judges recognised the named persons scheme as a whole does pursue a legitimate aim, and can be proportionate across the piece. But judges expressed some pretty serious reservations about how the scheme will operate in individual cases, concluding that without clear guidance on the powers and responsibilities of named persons, the scheme as presently drafted “may in practice result in a disproportionate interference with the Article 8 rights of many children, young persons and their parents, through the sharing of private information.” Which brings us on to the third and final test, and the critical one in this appeal.
Thirdly and lastly, the court must ask itself whether the scheme is “according to law”? This, rather than legitimacy or proportionality, is the key point in the named persons judgment, and the basis for the court’s conclusion that the legislation, as it presently stands, is unlawful. In principle, we live under the rule of law. Decisions taken by our public authorities must not be arbitrary. There should be a clear legal basis for their actions, and more than that, decisions which interfere with fundamental rights must, in particular, have a clear and rational basis in law. That might mean the backing of parliament through legislation, or a decision of the courts. Here, the named persons scheme was enshrined in law by Holyrood in Part 4 of the Children and Young People (Scotland) Act 2014. But having some legal basis for a scheme isn’t enough. The ECHR is not just concerned with whether there is a legal basis, but the quality of the legal basis. The law must be clear about what powers and responsibilities public officials do and do not have under the legislation. That’s the nub of the decision and that’s where the Scottish Government has taken a tumble.
Lord Hodge and his colleagues concluded the legal rules governing the named person scheme currently aren’t tight enough or clear enough to satisfy the ECHR. But critically, this can be fixed. The Scottish Government lost, but this decision does not permanently hull the named persons scheme below the waterline. I hope that makes things just a little clearer. There is, as I’ve said, something here for everyone. Sharply critical passages. Important concessions. Expect the partisans to seize their advantages where they may, and to spin like billy-oh.
What we all ought to be able to agree on is this. This judgment calls for a fundamental reappraisal of how the named persons scheme is set out in primary and secondary legislation. It demands a very serious second look at the rules which have been put in place to govern the legal powers and responsibilities of named persons. John Swinney indicated yesterday he intends to fix up the scheme, and “roll out” named persons as soon as possible. But with the proper amendments, nothing here prevents him from doing so. For the Christian Institute, perhaps a Pyrrhic victory, for the Scottish Government, a Pyrrhic defeat.
And now, summoned away from my dusty shelf of law tomes, the sunshine calls...
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