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A delaying action

The SNP’s majestic advance to state surveillance of every child in Scotland has been slowed.

The Guardian reports:

Scottish plan for every child to have ‘named person’ breaches rights

Judges at the supreme court have ruled that the Scottish government’s controversial “named person” scheme for supporting children risks breaching rights to privacy and a family life under the European convention on human rights, and thus overreaches the legislative competence of the Holyrood parliament.

The supreme court has given the Scottish government 42 days to correct the defects in the legislation, which has been described as a snoopers’ charter by family rights campaigners, but said that it recognised that the aims of the scheme were “unquestionably legitimate and benign”.

The Scotsman has a slightly different, and I regret to say more realistic, take on the story:

Court rules against Scottish Government’s named person policy

The Scottish Government insists controversial new measures to appoint a named person for every child will still go ahead despite the UK’s highest court ruling the legislation at present is “incompatible” with European human rights laws.

[…]

The court ruled that information-sharing provisions proposed under the 2014 Act may result in disproportionate interference with Article 8 rights under the European Convention on Human Rights – the right to a family and private life.

Note that the European Convention on Human Rights predates the European Union and its predecessors and is adhered to by several states outside the EU.

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38 comments to A delaying action

  • but said that it recognised that the aims of the scheme were “unquestionably legitimate and benign”.

    Clearly, they are having difficulty with the spelling of “malign”…

  • Pat

    Well, the Scots did vote for it. Maybe experience will change their mind for next time.

  • Sam Duncan

    I didn’t, Pat.

    This is good news. And it sounds like the Graun is cherrypicking the most favourable parts of the jusdgement. I prefer this, from paragraph 73:

    The first thing that a totalitarian regime tries to do is to get to the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world.

    While there are citations from other legal decisions around the world, those are the UK judges’ own words. I don’t think they liked what they saw at all.

  • Laird

    “it recognised that the aims of the scheme were ‘unquestionably legitimate and benign’.”

    Sure. Tell me another one.

  • Runcie Balspune

    This is a solution for a problem that does not exist.

    Whilst it is probably necessary that the government provide protection for abused children, they already provide social services for that sort of thing (whether this is effective or not is another matter).

    What is happening is the government are assuming every parent is a potential child abuser.

    Getting It Right for Every Child framework, provides children with access to a named person such as a health worker or teacher

    In other words – someone from the government.

    In fact, considering the problem of child abuse by government agencies is not exactly unknown, perhaps this should actually apply the other way around, for every child in government care there should be a named person not in the government looking out for them.

    Then again, isn’t this what fostering and adoption is?

  • Raymond

    The ruling ought to be devastating for this egregious attempt at authoritarian legislation, but the arrogant Natz will just see it as a minor hurdle to overcome. As Sam points out above, that quote from paragraph 73 -in a sane world- would be regarded as utterly damning: “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.”

    Those words weren’t chosen by accident.

  • At least, Sturgeon has been embarrassed; she’s telling all who will listen that quoting the bit about “totalitarian” is shamefully misleading. Sadly, as Natalie notes, the judgement is weak; the European Convention on How to Wrong Humans is no true defender of the right and has merely forced them to redraft one aspect. However the publicity is a step on the (long, I fear) road to kill it.

  • Mr Ed

    Elena’s Twitter account on this (be it true) is quite interesting.

    This is shocking journalism. The court didn’t describe it in this way. In fact, it said NP aim ‘legitimate & benign’

    Sorry, typo, I meant Nicola Sturgeon, not Elena Ceausescu, long day.

  • bobby b

    Well, I think it’s a wonderful idea.

    So long as I get to choose who gets to be a named person.

  • Well, I think it’s a wonderful idea.

    So long as I get to choose who gets to be a named person.

    Funnily enough I would name the Parent every time, because despite pedo hysteria it is the parent who is the best person to look after the child. As to which parent? Not sure it matters. Flip a coin if need be.

  • PeterT

    Have to say I’m pleasantly surprised by this. I didn’t realise that the UK court had jurisdiction over Scotland, given the difference in legal institutions. It’s a bit sad that this piece of judicial activism was only possible due to European law.

  • Sam Duncan

    It’s at the top of page 33, Mr Ed, if she wants to check.

    Now, to be scrupulously fair (‘cos I’m sure the Nats would be if the Tories or Labour had tried to pull something like this, right?), it’s in the context of the Court laying out the intentions behind Article 8 of the Convention, rather than “describing” the Act itself, but that’s hardly the point. It was intended to stop totalitarian régimes from indoctrinating children, and the Court has ruled that it applies here. Join the dots.

    PeterT: The Supreme Court, as I’m sure you know, replaces appeal to the House of Lords, which itself was introduced by the Act of Union as a (rather cack-handed) replacement of the right of appeal to the Scottish Parliament for a change in the law if the complainant felt it wronged him personally. This, and not the SNP’s “We arra peepul!” guff, is what was meant by the Scottish people, not the Crown, being sovereign.

  • Nicholas (Unlicensed Joker!) Gray

    What is all the fuss about? As usual, the marketplace has come up with a solution. Samsung products will be monitoring everyone, not just kids!

  • Lee Moore

    The ECHR is a pile of vague waffle, agreed no doubt with “unquestionably legitimate and benign” intentions, but which can be – and is – tortured to “mean” whatever the judges want it to mean. In reality it just provides a soapbox for politicians in wigs. On this occasion we seem to have drawn a bench of reasonably sane, reasonably agitprop free, politicians in wigs. On another occasion they might decide to block the building of a new airport runway, or eliminate the use of potties in prison, on the basis of whatever they think is “reasonable” that morning.

    An independent judiciary is part of the bedrock of limited government. But independent means independent of the executive, and threats therefrom, not independent of the law. If you write laws so vague that their interpretation is necessarily mere politics the judiciary becomes independent of any constraint – they ARE the law. That’s not the kind of independent judiciary you’re looking for. And you create an incentive for people who are quite unsuited to the proper judicial role – that of neutral umpire, bound by laws decided elsewhere – to become judges. What fun to make policy without the trouble of getting elected ! And you also create an incentive to stack the bench with political allies. Judges should be dull, unimaginative, conservative, hidebound, predictable. The pre-Denning judiciary was as close as you could get to that ideal, and it is a great shame for English (and Scottish) liberty that the essence of that great institution has been destroyed.

    To restore it requires, as a first step, the elimination from the job of the judge of as much discretion as can be eliminated. Some discretion, inevitably, can’t be avoided. But to seek out and expand the turf of judicial discretion is madness. The idea of getting rid of the Human Rights Act was a good one. It needs to be replaced with something MUCH more precise, which is then parked beyond the Parliament Act override of the Lords. And then this “purposive construction” crap needs to be nuked with a nice new Interpretation Act.

    In case y’all were left in any doubt by the above, no, I don’t have the ideal judicial temperament 🙂

  • Laird

    “Judges should be dull, unimaginative, conservative, hidebound, predictable.”

    Exactly.

  • Deep Lurker

    the aims of the scheme were “unquestionably legitimate and benign”

    When I see a quote like that, giving credit for good intentions to the backers of some obviously vile scheme, my first thought is, “Who might be blackmailing the speaker, to make him say that?”

  • PeterT

    When I see a quote to the effect of “they meant well”, my first thought is “uh oh”. I’m not sure who would take this statement at face value, let alone consider it worth anything as a face saving device.

  • Nicholas (Unlicensed Joker!) Gray

    I remember Arthur C Clark once commenting on domestic staff in Sri Lanka, and how the most dreaded words on the letter from the last employer was ‘means well’.

  • PeterT, July 28, 2016 at 9:56 pm and July 29, 2016 at 5:57 am: ‘… “unquestionably legitimate and benign” … Who might be blackmailing the speaker, to make him say that?’

    Sadly, probably noone needed to blackmail the judge. This is standard PC-speak of judicial activism.

    “It’s a bit sad that this piece of judicial activism was only possible due to European law.”

    More than a bit; the evil the ECHR does far outweighs its good, for the reasons Lee Moore (July 29, 2016 at 1:50 am) explains. However increased publicity about NP is needed, so I’ll take the little good that has come out of this.

    Statistically, it is well-established that children are much more in danger when under the authority of someone who is not a biological parent. For obvious reasons, the PC cannot stress that, so must engage in displacement activities on the issue. If the said activities assist rulers’ agendas, so much the better.

  • Rob

    Court uses past Progressive legislation to sink pending Progressive legislation.

  • Mr Ed

    Rob has it spot on, self-cancelling errors for now.

    Had this been an English legal matter, Sir Edward Coke (had he risen from his grave and been appointed to the Supreme Court) would have condemned the Act as repugnant to reason and beyond Parliament’s powers, as with Dr Bonham’s Case.

    [I]t appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.

    Of course, the Scottish Parliament is entirely statutory, and is a creation of the UK Parliament, and the outcome here is but a golem of Coke’s finding of the law.

  • Andrew Duffin

    The Party never makes mistakes.

    Tractor production continues to increase.

    The Personal Commissar Scheme is part of the Five Year Plan and it will be delivered.

    These fascist wreckers will be trampled into the dust of history.

  • Snorri Godhi

    Any speculation about intentions, or “the aims of the scheme”, always appears morbid to me. In this case, however, perhaps i have spotted the intention (he!) behind legitimizing “the aims of the scheme”: when the Supreme Court judges “the scheme” to be the sort of thing that Hitler and Stalin would do, they risk looking loony unless they clarify that no evil intent is implied.

  • Fred the Fourth

    Taking “intent” seriously, in legislation or in e.g. the US constitution preamble, is the road to hell. Look at how much damage has been done in the US by the phrase “promote the general welfare” in the preamble.
    Second, letting the courts investigate the “intent of the legislature” for a law, based on items in the record but not in the law, is also fraught. Law, after all, has the function of instructing the populace on the boundary between legal and illegal behavior. If this cannot be known from the text of the law (with minimal exceptions to resolve by judges) then that function does not operate.
    One should always assume that any law one passes will be operated by one’s enemies.

  • Laird

    Mr Ed, Coke might well have tried to cite Dr Bonham’s Case is this matter, but he would have been writing the minority opinion; that principle has long been overturned, certainly in the US and I believe in the UK, too (please correct me if I’m wrong about that).

    Fred, parsing “legislative intent” is an integral and essential part of interpreting a statute, and has been for a very long time. But it has limits, and when we criticize a court’s finding about “intent” it’s usually because that court ignored those limits. It is an elementary principle of statutory construction that the court is to look at intent only when the specific language of the statute is unclear or self-contradictory. And that is entirely appropriate. Unfortunately, too many times courts skip over that rule, or “manufacture” ambiguity where none exists on a fair reading of the words, in order to justify judicial augury into “intent”. The problem isn’t the principle, it’s the application.

  • Fred the Fourth

    Laird, I agree that judicial parsing of intent has strong historical roots. However, in the US at least, the trend for a long time has been for the legislatures to write laws vaguely, and deliberately leave it up to the bureaucracy and courts to resolve the actual practice.
    I hold that 1) this is a power Congress was not granted by the constitution, and 2) leads to disrespect for the law, in part because no one can know what the law is.
    In another thread (on Glenn Reynolds blog) there is a discussion of some recent blather from Nancy Pelosi, Speaker of the US House of Reps. She is infamous for saying, about Obamacare (PPACA) “we need to pass this law to find out what is in it.”
    That’s where the yielding of too much authority to the courts and executives leads.

  • Laird

    Fred, I don’t disagree with your complaint, but it is properly directed against Congress, not against the courts charged with interpreting the laws and relying (in part) on a divination of “legislative intent” to do so. Personally, I agree with you: Congress should not have the power to pass vague laws and leave the interpretive details to an unelected regulatory agency; that leads to the largely uncontrollable and endlessly expanding “administrative state” we see today. But I fear that ship sailed long ago.

  • Mr Ed

    Laird

    Mr Ed, Coke might well have tried to cite Dr Bonham’s Case is this matter, but he would have been writing the minority opinion

    Indeed, but if he can come back from the dead, then cloning 4 more of him should be a trifle, and that should seal it, the four need only say ‘I agree’ or ‘I also agree’, saving much time and nuanced discussions about competing majority speeches.

    There is one generally sound judge on the UK’s Supreme Court, Lord Sumption, who applied direct from practice at the Bar for a job on the Supreme Court despite only sitting as a part-time High Court judge, and got it, which is very rare.

  • Fred the Fourth

    Laird: US Presidents have a veto pen for a reason.
    I think you and I are agreeing violently here. And I don’t want to piss anyone off unnecessarily, but I live with this crap everyday. I prematurely retired from my business engineering new tech products because I could not cope with the regulatory tsunami over the last two decades. Plus, I live in California, home of, just to name one minor abomination, CARB (California Air Resources Board) who are the reason I can’t buy decent paint anymore.
    I know, I know, I’m starting to froth at the mouth. I’ll stop now.

  • Laird

    Mr Ed, I bow to your superior knowledge about raising people from the dead and cloning them.

    Fred, I thought all of the intelligent people had already left California (excepting, of course, the two people Julie from Chicago claims to know there). Why are you still there?

  • Expatnik

    I prematurely retired from my business engineering new tech products because I could not cope with the regulatory tsunami over the last two decades

    I hear you. I had a company providing specialised pharma products in San Mateo County. I sold it for exactly that reason and left not just California but the USA. Just not willing to support the system anymore. I moved to New Zealand and I’ve never been happier. Never going back.

  • Lee Moore

    I have a very good friend who still lives in California (SF) who, though he claims to be a Republican, is reflexively on the liberal side of any issue, and can never find a Republican he actually wishes to vote for over the opposing Dem. He’s extremely intelligent, though only marginally sane (but in a cheerful, endearing way.) He is quite well off (retired) but says he’s very happy indeed to pay his full whack of taxes. He stays in California because he loves his lifestyle, isn’t trying to run a business, and has property taxes grandfathered back to when he bought his very nice house on top of the hill, just after the 1906 earthquake. He used to be a tax lawyer and spent most of his working life sheltering his own income quite successfully.

    My friend is, in fact, a really nice chap and a tiny bit of mild hypocrisy on the tax front is unimportant. Nevertheless I do know a number of other rich liberals – some nice, some not so much – who don’t always walk the walk. I know a few who’ve fled California for Colorado, where they now vote religiously to turn Colorado into California. And I know one in particular who gets very cross about Republicans banging on about high taxes. He made several million from his small business. But on closer inspection, all his money came from selling the property from which his not very successful business had operated. For a nice capital gain. At capital gain rates.

  • Fred the Fourth

    Laird,
    It is the nature of my current business, and my wife’s, that most of it still takes place in the SF Bay Area, face to face. We have an extensive personal network here that makes the work possible.
    Also, I am a Silicon Valley native, have always lived in the area, and as my wife is fond of saying, am a bit provincial.
    Really, though, it’s just inertia and laziness.
    My oh-so-liberal BIL is doing the right thing, though – he’s already got himself a retirement place in a tax haven state, to minimize the tax damage to his estate from his own voting policies.

  • Abyssus Invocat

    Should the Scottish Parliament try and inplement this administratively, I hope that the Scots will practice a little Irish democracy and simply refuse to comply in sufficient numbers that it becomes impossible for the organs of the state to force compliance.

  • Abyssus Invocat, July 31, 2016 at 6:44 am: ‘simply refuse to comply”

    I’m sure most Scots parents will wish to, but it’s not that easy. Home schooling, or sending your child to a boarding school in England, would be the only easy ways to avoid it. Otherwise, when your six-year-old son or daughter is told by her teacher to go and see the “school nurse” or “head gardener” or whatever phrase they use, and then interrogated about your home life to build up a considerable profile of your politics, your lifestyle, whether you go to church or not, etc., etc.,, what exactly do you do. A year later, some bureaucrat informs you that your children are not yours – the state is taking them. What exactly do you do?

    When one mad doctor in Cleveland decades ago diagnosed every single child she saw as having been abused, to a total of 116 taken from their parents before the authorities nerved themselves to halt things, it took years to sort out. This is a mad state, not one mad doctor. Even I, who loath the natz, will concede (and hope) that they are probably not nearly as mad as that doctor. But they are a state, or at least a substate; not just one doctor.

  • Paul Marks

    It seems Plato is at work again – but then evil never sleeps.

    However, it seems unlikely that the European Convention (which has been incorporated into E.U. structures – so they are no longer totally distinct, although they did indeed start off distinct) will hold back Scotland from undermining families if that is what most people in Scotland really want to do, and no one is forced to vote SNP or can seriously claim they do not know that the SNP is a collectivist organisation. Vote SNP and you will get collectivism -that is what you voted for.

    In the end liberty only survives if people understand the basic principles of liberty and are prepared to sacrifice for them. F.A. Hayek was mistaken in his (David Hume) idea that conscious knowledge of the basic principles of liberty is not necessary, that liberty just “evolves” without people understanding it or being prepared to sacrifice their lives to achieve it and maintain it. Indeed Hayek clearly, at least sometimes, understood all this himself – otherwise why write the “Road to Serfdom”? Is it not an effort to explain the basic principles of liberty and to make a moral plea to people to defend them?

    Such things as slavery do not end without people coming to understand they are wrong, and working (and sacrificing) to end them. And such things as the voluntary family (as opposed to women being forced into marriage rather than choosing to be married) do not come into being without people understanding the principle of voluntary choice (that is not an “illusion” – as determinists and “compatiblists” would claim) and being prepared to defend it.

    As for children – they are neither the property of their parents (to be tortured or eaten on whims) or of the state – in some sort of Plato nightmare totalitarian regime. If parents choose to torture their children to death it is the duty of the state (indeed of any private individual or organisation) to intervene to stop them. But if, for example, parents choose not to teach their children about the wonders of “Social Justice”, it is not up to some SNP “named individual” to make them do so.

  • Paul Marks

    If people can not do other than they do, as determinsts and compatiblists claim (“compatibilism” is essentially declaring that two incompatible things, moral responsibility and all actions being predetermined, are “compatible”), then there is no moral guilt in eating one’s children – as moral praise or blame depends on choice being real, not an “illusion”.

    Sadly I suspect the “Named Person” will be a supporter of all the modern fads and fancies – they will be the last sort of person to be a moral or physical guardian of a child.

    By the way…….

    If he “named individual” is responsible if anything bad happens to the child, will they be punished if something bad does happen to the child? Will it go – “the father of little Peter murdered him – so the father is to be hanged and you, the “Named Individual”, will be hanged along side of him” – I rather doubt it.