On the 7th March 2017, John Swinney made a statement to the Scottish Parliament to update them on the progress (or lack thereof) of the Named Person legislation that attempts to appoint a state guardian for every child in Scotland. In a hesitant and low-energy performance, Mr Swinney spoke for some time and we are still trying to decipher his meaning. For those who wish to experience the full effect, the statement can be viewed below:
The confusion generated by the government regarding this legislation is profound. Look, for example, at the differences between the commentaries on his statement in the Telegraph ("SNP forced to gut powers of 'state guardians' after Supreme Court defeat") and Third Force News ("Named person laws are back on track").
Like the Enigma machine of the Wehrmacht, Mr Swinney has a fatal flaw. The Enigma machine could not represent a letter using that same letter itself. Likewise, Mr Swinney's flaw is that he cannot reveal the real nature of the Named Person system, always substituting a ciphered representation but never revealing a true image.
Take, for example, the stated aim to ensure that all children in Scotland get the best possible start in life. What does this mean? Does it mean that the state can interfere when it perceives that children are being disadvantaged by poor parenting? The rhetoric of Mr Swinney would imply that this is indeed the aim. The stated concentration on reducing the gap between the attainment of children born into poverty and those born into affluence; the wellbeing indicators that ask whether a child is respected and achieving: they all speak to a state involvement to cure the ills, real or perceived, of family life.
But it must not be so; for this is unlawful. As Lord Templeton said in the House of Lords in 1988:
The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered.
In a 2007 case on the threshold criteria for state intervention in family life, Hedley J, having quoted Lord Templeman, continued:
It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the [province] of the state to spare children all the consequences of defective parenting.
He concluded that the children were suffering, and likely to suffer, some harm to their intellectual development as a result of their parents’ inadequacies, but that it was not of a character or significance to justify compulsory intervention.
Or take Mr Swinney's statement that the Supreme Court judgement does not require current policy or practice to change. Current policy is defined by the Getting It Right For Every Child (GIRFEC) approach that has been embedded in every aspect of the public sector since 2006. The sections of the Children and Young peoples (Scotland) Act 2014 deemed unlawful by the UK Supreme Court are called, in Scottish Government Documents, "The GIRFEC legislation". These same documents make it clear that this legislation aims to make the roll out of the GIRFEC principles across the nation more rapid and more uniform: "to embed best practice" to use the official government phrase. So the GIRFEC legislation is unlawful, and following the GIRFEC policy is lawful, yet the two are identical.
Mr Swinney explains that current named person roll out and GIRFEC policies operates under current law and that it is up to local authorities to ensure they comply with existing legislation. Numerous Scotgov documents refer to the roll-out of the named person scheme in multiple local authorities over the past three or four years. This roll out, we are assured, might be called named person but, absent the legislative support of the unlawful GIRFEC legislation, it was not REALLY named person. No it is just called named person, and is charged with the duties of a named person, but is not a named person under the act. So the act introducing named persons is unlawful but the named persons are introduced without the act and everything is, apparently, legal.
How does this all work? Well, let's have a look at Perth and Kinross Council's guidance on sharing information. They have a 'consent to share information' flowchart as follows:
This simple yet frightening tool gives all council and government employees the right to share private and confidential information about a child when they are "worried or concerned" about the child's "wellbeing". To translate, when they subjectively experience an emotional reaction (not necessarily backed by facts or evidence), about an undefinable and vague construct that can mean anything, and certainly means different things to different people. This is exactly the sort of policy that the UK supreme court had in mind when it struck down the named person, and yet, here it is, embedded in current local authority practice and downloadable from their website.
This brings us to wellbeing. "Defined in the 2014 Act" says Mr. Swinney, "not defined" says the UK supreme court. Does no one in the Scottish Government recognise the conflict?
Wellbeing is defined using the SHANARRI indicators says Mr Swinney, but the UK Supreme Court does not agree:
The only guidance as to its meaning is provided by section 96(2), which lists eight factors to which regard is to be had when assessing wellbeing. The factors, which are known under the acronym SHANARRI, are that the child or young person is or would be: “safe, healthy, achieving, nurtured, active, respected, responsible, and included”. These factors are not themselves defined, and in some cases are notably vague: for example, that the child or young person is “achieving” and “included”.
And finally (for we could cite such discrepancies all day), what does Mr Swinney mean by "exceptional circumstances"? During the consultation following the government's Supreme Court defeat, professionals told Mr Swinney that:
Information sharing that was rooted in consent, engagement and empowerment of families was the best way forward. Only in exceptional circumstances, such as where the risk of harm was present, should we consider departing from those core principles.
Let us be clear, if this is the policy that is delivered, the NO2NP Campaign has won a huge victory and the named person scheme has been gutted. With information sharing returned to the status quo ante bellum, consent will be required unless there is a risk of significant harm to the child. In this case, the claws are drawn from this monstrous idea. But recall, the original justification for the scheme was to intervene before events escalate to form a risk of significant harm. Has this really been abandoned? And also note that current practice, as stated in the PKC flow chart, does not comply with this standard. So again doubt, not certainty, is the defining characteristic.
When new legislation is introduced, to replace the unlawful GIRFEC legislation, what will it be? Clear and lawful or vague and dangerous? Will the errors and contradictions which littered Mr Swinneys speech be resolved or merely concealed? Tackling this legislation was described by the advocate for the NO2NP campaign as like "nailing fog to the wall". Will the next version be better? We will have to wait until at least the summer to find out. The introduction of the mark II named person is currently penciled in for 2018.
Deciphering the Enigma code took the greatest of minds and keenest of intellects; assisted by the most powerful computer then in existence. Deciphering Mr Swinney will not be so easy.