Named Person Fact Check: ‘legitimate and benign’

SCOTTISH GOVERNMENT CLAIM:

“Last year the Supreme Court ruled definitively that the intention of providing a Named Person for every child to promote and safeguard their wellbeing was ‘unquestionably legitimate and benign’”

Press release by the Deputy First Minister, 6 March 2017

REALITY:

What the court actually said was:

“The public interest in the flourishing of children is obvious. The aim of the Act, which is unquestionably legitimate and benign, is the promotion and safeguarding of the wellbeing of children and young persons.” (para. 91)

It was “The aim of… the promotion and safeguarding of the wellbeing of children and young persons” that was benign, not the Named Person.

What the court said about the Named Person was:

“…the sharing of personal data between relevant public authorities is central to the role of the named person … the operation of the information-sharing provisions of Part 4… will result in interferences with the rights protected by article 8 of the ECHR” (para. 78).

“It is thus perfectly possible that information, including confidential information concerning a child or a young person’s state of health (for example, as to contraception, pregnancy or sexually transmitted disease), could be disclosed… to a wide range of public authorities without either the child or young person or her parents being aware of the interference with their article 8 rights” (para. 84).

“We conclude therefore that the information-sharing provisions … as currently drafted do not meet the article 8 criterion of being ‘in accordance with the law’.” (para. 85).

The Supreme Court said the confused drafting of the law created “very serious difficulties” for anyone attempting to understand or implement it and expressed “even greater concern” about “the lack of safeguards” [Paragraphs 83-84].

Because of the lack of safeguards “the overriding of confidentiality is likely often to be disproportionate” (para. 100).

They concluded:

“…the information-sharing provisions of Part 4 of the Act are not within the legislative competence of the Scottish Parliament” (para. 106).

“…since the defective provisions are not within the legislative competence of the Parliament, they cannot be brought into force” (para. 109).

After losing the case, the Scottish Government asked the court not to force them to pay their opponents legal costs. They claimed they had only lost on a “relatively limited ground”. The Supreme Court rejected this argument and ordered them to pay all the costs of the case.

Clearly the Supreme Court did not think the Named Person was “legitimate and benign”.

Watch John Swinney’s statement to Parliament on Named Persons today at about 2:20pm: www.scottishparliament.tv

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