This is a guest post by Allan Norman of Celtic Knot following the judgment of the Supreme Court in the case of The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland) [2016] UKSC 51. Allan tweets as @celticknottweet.

Back in 2013, I was asked by the Scottish home education charity Schoolhouse HEA to provide a legal opinion on the proposed scheme to appoint so-called “named persons” to every child in Scotland. I was asked specifically to comment upon its compatibility with EU and human rights law. My opinion was that it was incompatible with both. That opinion can be read on the website of the Scottish Parliament here, and with an attractive full-colour cover on Schoolhouse’s website here.

While pretty much every legally-qualified response to the proposed scheme expressed concerns (e.g. cl@n childlaw (which became an intervener), Faculty of Advocates, Govan Law Centre,  Law Society of Scotland, Kenneth Norrie, Professor of Law, Strathclyde University, Scottish Child Law Centre – each of whom referenced Article 8 specifically), the legislation was nonetheless passed, and legal challenges to the scheme failed in the Scottish Outer and Inner Courts of Session. Thus, the case arrived at the Supreme Court, which issued its judgment today.

When you have begun believing you are simply applying well-established principles, three years of people taking a contrary view is a long time to wait. Given the go-aheads that the scheme received, I had begun to be concerned that the judgment of the Supreme Court might represent a reconfiguring of the relationship between the individual and the state. Particularly significant here, I would argue, is that in the intervening period a number of other initiatives linked to my practice area of social work that are potentially subject to the same criticisms – arbitrary interference by the State in private and family life without adequate safeguards – have managed to gain traction. These include mandatory reporting, extended “school census” requirements, shared childrens’ databases, multi-agency safeguarding hubs, and near-compulsory child-in-need assessments.

Here, I propose first to explain why I believe that the judgment of the Supreme Court does indeed apply well-established principles. Then I will comment upon religious and devolution dimensions to the case. Finally, I will explore what might happen next, including claims that have been made that it is a Pyrrhic victory, and the Scottish Deputy First Minister’s statement that the scheme will go ahead.

Wellbeing and totalitarianism

Some will not be familiar with the scheme. Each child in Scotland is appointed a “named person”, normally either a health visitor or a teacher. The named person’s roles include the provision of advice and support, and helping parents to access advice and support. But in part, they have a monitoring role, in that they both receive and potentially refer-on safeguarding concerns. It is fair to say that the rationale for this is benign. It is well-established that States have a positive human rights duty to protect children from inhuman or degrading treatment. The principle that it might be possible to identify concerns from a series of low-level concerns and not only from a catastrophic incident already underpins, for example, the Disclosure and Barring Scheme. But the question was – and I argue the question still remains – whether it is possible to construct a universal scheme that monitors the wellbeing of all children, irrespective of any indicators of harm. In particular, how can such a scheme operate within the law on information-sharing? All information-sharing is data-processing, which is subject to national and EU law.

In my opinion, I cited Lady Hale in 2008, talking about totalitarian societies (for those following closely, my apologies that that citation in the linked opinion is to the wrong case of Re: B!). I am told that my reference to totalitarian societies particularly irked the Scottish government. Certainly, it meant that the opinion was picked up and quoted in the Scottish Express newspaper. I have to say I am pleased that the Supreme Court today has repackaged and thereby reaffirmed those concerns about the potential for totalitarianism:

“Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.” [paragraph 73]

Notwithstanding this extract, some including First Minister Nicola Sturgeon – herself a lawyer – have preferred to emphasise that the court described the aims of the scheme as “legitimate and benign” – words which do also appear in the judgment.

Some might question how a scheme can simultaneously have benign intentions and the potential for totalitarianism. But this judgment does indeed explain that the two are not mutually incompatible. The benign intentions segue into totalitarianism where there is insufficient regard for individual difference, and where state interference is arbitrary, and lacks procedural safeguards. Eileen Munro, writing about the Every Child Matters agenda in England, once observed:

“In policy debates, there seems to be an assumption that there is some objective measure of what is in a child’s best interests and some objective standards of good parenting applicable in all social circumstances. The possibility of rational disagreement between a parent and a professional on what is in the child’s best interests at a particular point in their lives is not addressed.”

On reflection, the whole of that excellent article ‘Confidentiality in a Preventive Child Welfare System‘ would be illuminating reading for the Scottish government, as it reflects where to go next.

Positive and Negative Rights and Duties

At a number of points in its judgment, the Supreme Court appears to apply well-worn principles, but be rather abstruse as to how it is doing so. One of these relates to positive and negative rights and duties.

On the one hand, we have the European Convention on Human Rights, which is directly applicable in the United Kingdom, but is largely confined to negative rights (to be free from interference), some of which have been interpreted as having a positive component requiring the State to protect us from each other. On the other hand, we have the UN Convention on the Rights of the Child. Although it is a rare judgment from Lady Hale that does not reference it, it is not directly applicable in UK law. It is generally framed as a series of State obligations that are necessary to give effect to the wider group of rights set out in the Universal Declaration.

We have seen the Northern Irish Supreme Court Justice Lord Kerr suggesting that Article 3 of the UN Convention on the Rights of the Child ought to be directly applicable, and the Supreme Court applying it in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47 (8 July 2015). Not in this case. The Scottish government referenced Article 3, pointing out that it set out a specific state obligation to promote well-being:

“States Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.”

So, how is it possible for the Supreme Court to hold that Article 3(1) of the CRC gives rise to a right to social security benefit, but Article 3(2) does not permit a legislative measure to promote children’s well-being? The answer lies in the differences between positive and negative rights and duties. There was nothing in the former case that amounted to State interference, because State assistance was actively being sought to promote the child’s best interests. But today’s judgment has to address the extent to which Article 3 can permit unwanted and unwarranted interference. The Supreme Court says in essence that nothing in Article 3 can extend the States powers to interfere with the negative rights in Article 8.

Indeed, Article 3 has two separate outings in today’s judgment. Earlier, it is pointed out that in order to properly understand the child’s best interests, Article 18 of the CRC comes into play:

“Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.” [emphasis in judgment]

In my legal opinion, I made reference to the fact that Scotland’s Minister for Children and Young People had undermined the primacy of the family by saying,

“Everything that we do and all our policies are underpinned by GIRFEC—getting it right for every child—and making sure that the child is at the centre of decisions. Of course we recognise that parents also have a role…” [Minister for Children and Young People, Aileen Campbell, in her evidence to the Education and Culture Committee on 25th June 2013]

It will be useful that the Supreme Court so plainly reinforces the primacy of the parental role, and that there is nothing within universal human rights principles to displace parents to such a degree that the totem of wellbeing could justify unwanted state interference.

Simply put: positive state duties to protect families cannot metamorphose into positive state rights to direct families.

Consent and Necessity: The Broad and the Narrow Challenges

Those who are presently taking comfort in this judgment as vindicating the potential for the named persons scheme to be lawful (of which more below) point in particular to the failure of the broader challenge to the operation of the scheme, that a named person should only be appointed either with consent or when it is necessary.

Once again, the Court is a little abstruse, for it seems to me that on a careful reading this challenge all-but succeeded. Why do I suggest this? It is true that the Court seems to suggest that a requirement for either consent or necessity as the basis for the appointment of a named person would diminish “the scope for early intervention to resolve problems” [paragraph 93]. But the nearest you will come to finding any alternative legal authority for the named person service is that its uncontroversial elements (i.e. advice and support) might go ahead with tacit acquiescence. The Court does not spell out what happens if a person does not consent, but it does leave these clues:

• The Supreme Court provides four separate examples of ways in which the Scottish legislation appears to permit information-sharing beyond the ambit of the Data Protection Act [paragraph 83]. Although it does not re-reference consent-and-necessity, the reality is that addressing those four examples of non-compliance requires addressing consent-and-necessity.

• The Supreme Court also points out that two aspects of the named person scheme ” would not normally constitute an interference” [paragraph 78] with Article 8. These are the provision of advice and support, and assistance to obtain support. But why do these not [normally] interfere with Article 8? Paragraph 94 explains that these services will not involve compulsion, and the compulsion threshold of significant harm is intact. Paragraph 95 says,

“Nevertheless, there must be a risk that, in an individual case, parents will be given the impression that they must accept the advice or services which they are offered, especially in pursuance of a child’s plan for targeted intervention under Part 5; and further, that their failure to co-operate with such a plan will be taken to be evidence of a risk of harm. An assertion of such compulsion, whether express or implied, and an assessment of non-cooperation as evidence of such a risk could well amount to an interference with the right to respect for family life which would require justification under article 8(2). Given the very wide scope of the concept of “wellbeing” and the SHANARRI factors, this might be difficult. Care should therefore be taken to emphasise the voluntary nature of the advice, information, support and help which are offered under section 19(5)(a)(i) and (ii) and the Guidance should make this clear.”

It seems clear to me from this paragraph that the Supreme Court is identifying no alternative to consent-and-necessity, no lawful basis for intervention in the absence of one or the other, and no compulsion threshold other than the pre-existing (and unchallenged) “significant harm” threshold.

The religious dimension

I confess that one aspect of this case that concerned me from the outset was that the lead appellant was The Christian Institute. The Christian Institute doubtless plays its rightful role in a democratic society promoting (to use the words of its website) “Christian influence in secular world”. However, this has sometimes taken the form of advancing rights to discriminate against protected groups, which plainly engaged the rights and freedoms of others, in ways in which both domestic courts and the European Court had not been prepared to countenance.

Had there been any argument that the rights of parents to bring up children in accordance with their philosophical convictions, and the rights of children to be protected by the State from harm were in conflict, I would have hoped and expected there was only one possible resolution to the conflict, in favour of the children’s rights. But in truth, this was never primarily about religious rights and freedoms, it was always about arbitrary State interference in family life.

Happily, this is reflected in the judgment. The Christian Institute can claim a well-deserved victory, having advanced the right arguments, and religious rights and freedoms do not appear in the Supreme Court judgment in any shape or form.

The devolution dimension

Another aspect that concerned me was the devolution dimension. Since the scheme seems to me self-evidently unlawful, I was struggling with how the Outer and Inner Courts of Session had managed to reach a contrary conclusion, if devolution politics were not in play. Then, after the hearing but before the judgment, came the Brexit referendum. How, now, does the devolved Scottish Parliament deal with the fact that this is the first time the Supreme Court has found it to have legislated beyond its devolved competence?

Although I observed some concern that a judgment might be seen in Scotland as unwanted interference by the Supreme Court, my hope is that this can also become a non-issue. After all, the original question I was posed and answered was about EU law and about human rights law. Scotland, independent or otherwise, is firmly committed to both. Moreover, in committing to both, it is committed in principle to accepting rulings on both from outwith its borders. This judgment does not apply UK law to overrule the Scottish Parliament, it relies in its entirety on the established principles of European jurisdictions that an independent Scotland would seek to abide by.

So What Happens Next?

I had my hopes. Instead of simply criticising, I aimed to present,

“a completely different vision for children’s services in Scotland, one that would not only address lawfulness, but also command respect… the consent-element of services to promote the well-being of children In Scotland being provided in the form of services that are perceived as beneficial by service users, so likely to be taken up without any element of compulsion…”

Tantalisingly, I find a glimpse of such a vision in today’s judgment too. Where? In the paragraph that uses those words “legitimate and benign”! Three words on their own can be, and have been, taken out of context. The Court in this paragraph is not describing the data-sharing (“one of the principal purposes” of named persons, paragraph 4) as legitimate and benign; rather it is the aims of “promoting better outcomes… Improving access to, and the coordination of, public services…” [paragraph 91] that are laudable. To put it another way, the wish of the Scottish Government to provide a broad and co-ordinated range of services that promote the wellbeing of children is benign, and the creation of a named person service to facilitate that is legitimate.

It is at this point that the gulf of understanding between those tweeting “legitimate and benign” and those tweeting “totalitarian” is laid bare. The intention is legitimate and benign, and the service is created. What then? It can respond to our requests for directions; pose in photographs for us; show off its new equipment at community events; go into schools; post public service information to us; even invite us to eliminate ourselves from its enquiries and come down to the station to make a statement. But today’s case is a shot across the bows: it cannot become the secret police of a totalitarian state, keeping the population under surveillance, setting child against parent, undermining trust in communities, and amassing secret files on us.

It is how to serve society in the wide space between these two extremes that is the operational challenge. My answer to that challenge was to maximise the utility of the service, in order to maximise buy-in to it: offer something genuinely useful that people want. I don’t find the Supreme Court disagreeing with that vision.

I was astonished to read the response to the Supreme Court judgment from Scotland’s Deputy First Minister John Swinney:

“I welcome the publication of today’s judgment and the fact that the attempt to scrap the named person service has failed.”

I immediately reflected upon this comparable characteristic of the judicial review jurisdiction: judicial reviews review and rule upon the lawfulness of decisions, but the relief granted where the decision is unlawful is not for the court to substitute its decision, but rather that the decision is quashed and the decision maker must make it again, and this time lawfully. This can indeed be a Pyrrhic victory, if you win a judicial review, but the public body in question re-takes that decision, and arrives at the same decision by lawful means.

By analogy here, the Supreme Court was never going to substitute its own scheme. So, to assess whether it is a Pyrrhic victory, the first question to ask is whether it would be possible for Scotland to implement the same or substantially the same scheme, but this time lawfully? And the answer to this is a resounding ‘No’.

When the judgment summary says, “The Supreme Court unanimously allows the appeal on the basis of the ECHR Challenge and the EU Law Challenge… since the defective provisions of Part 4 of the 2014 Act are not within the legislative competence of the Scottish Parliament, they cannot be brought into force”, it must be difficult to find a positive media spin, but to say that the attempt to scrap the service has failed must surely be spin.

It is plain that the scheme requires new legislation, and not simply new guidance. Whether or not the Supreme Court had used the Scotland Act to provide the Scottish Parliament with the opportunity to legislate, it was never going to interfere to prevent a legislature from passing legislation.

And how similar can new legislation be to that which has been ruled unlawful? It must:

• Comply with the Data Protection Act and the EU Directive on Data Protection – the existing legislation does not.

• Include, either in the form of legislation, or of sufficiently binding guidance a clear framework to ensure that individual named persons do not unwittingly overreach their powers – the existing legislation and guidance does not have this.

• Ensure that the scheme does not operate in an arbitrary way – the consequences of the scheme must be foreseeable, and there must be an adequate remedy for breaches, in order to comply with the basic requirements of the rule of law – the current scheme does not meet this requirement.

• Ensure that any attempt to legislate the “wellbeing” principle is not only clear and unambiguous, but also does not extend its meaning incompatibly with children’s and parental rights.

If I were doing all of the above, in stark contrast to John Swinney, I would take the opportunity to rebrand the new and wholly different scheme, and consign the memories of “named persons” to the legislative dustbin.