The Named Person Scheme

[Monkey Tennis]

Some amendment required, but it'll still happen in the way it was intended to.

[Granny Danger]

2 minutes ago, Monkey Tennis said:

Some amendment required, but it'll still happen in the way it was intended to.

That's certainly what Swinney's tweet suggest which in turn implies the BBC report is less than accurate.

[drs]

Well no, as it stands the scheme has been declared unlawful - the Scottish Govt have said they'll amend the scheme to make it lawful.

Its not the actual named person scheme that is the problem, its the data sharing.

[mjw]

That's certainly what Swinney's tweet suggest which in turn implies the BBC report is less than accurate.

And every yoon tweeting furiously about it is less than accurate.

[Crossbill]

It's almost as if the BBC report is not entirely representing the actual fact of the ruling.  What a shock!

[Sooky]

It seems like both sides are claiming a massive victory here. I don't really think either can claim a win, tbh.

[Monkey Tennis]

19 minutes ago, Sooky said:

It seems like both sides are claiming a massive victory here. I don't really think either can claim a win, tbh.

I think that's probably right.

The praise for the scheme in principal is significant, but obviously so is the fact that it's been blocked.  Information sharing appears to be the issue.

That's a fairly central plank of GIRFEC, so it depends I suppose, on what the particular obstacles are.  I don't see this derailing the initiative though.

[Monkey Tennis]

19 minutes ago, Sooky said:

It seems like both sides are claiming a massive victory here. I don't really think either can claim a win, tbh.

I think that's probably right.

The praise for the scheme in principal is significant, but obviously so is the fact that it's been blocked.  Information sharing appears to be the issue.

That's a fairly central plank of GIRFEC, so it depends I suppose, on what the particular obstacles are.  I don't see this derailing the initiative though.

[invergowrie arab]

It is unlawful.

In the same way that if you put in a car for MOT with a bald tyre it is unlawful.

That doesn't mean your car will be scrapped.

[williemillersmoustache]

That's certainly what Swinney's tweet suggest which in turn implies the BBC report is less than accurate.

I. Am. Shocked.

[Cream Cheese]

1 hour ago, drs said:

Well no, as it stands the scheme has been declared unlawful - the Scottish Govt have said they'll amend the scheme to make it lawful.

Its not the actual named person scheme that is the problem, its the data sharing.

The data sharing isn't the issue here. It was the lack of clarity over the policy and how it would effect people. The Scottish Government won't actually amend anything, they will just provide greater clarity to the courts in regards to the policy.

[invergowrie arab]

37 minutes ago, Cream Cheese said:

The data sharing isn't the issue here. It was the lack of clarity over the policy and how it would effect people. The Scottish Government won't actually amend anything, they will just provide greater clarity to the courts in regards to the policy.

This is pretty much what I'm taking from the judgement.

It is legitimate to interfere with someone's article 8 Rights to privacy (in this case data sharing) where the justification to interfere with those rights is sufficiently legally precise to give protection against arbitrariness. The guidance on NP fails in this regard. 

The justification must also allow actions to be foreseeable  - ie must be sufficiently legally precise that the person affected could modify their behaviour to avoid their rights being interfered with. Again the lack of clarity in the guidance means it would also fail this test.

The court were absolutely clear that having a named person is a proportionate, legitimate measure. Data sharing is also legitimate where the guidance around that data sharing is clear.

[smpar]

I'd imagine there'll be little (if any) amendments made here. The Named Person will still go ahead as planned.

Also, I've yet to hear/see an opposition argument that isn't paranoid nonsense.

[Cream Cheese]

BBC continuing to spout more of their lies. Giving a platform to those who are against the scheme, letting them spew out their lies completely unchallenged. Nice to see that the BBC cameras caught a big angry protest outside the court of about 6 people, with UJ tattoos.

[Monkey Tennis]

2 hours ago, smpar said:

I'd imagine there'll be little (if any) amendments made here. The Named Person will still go ahead as planned.

Also, I've yet to hear/see an opposition argument that isn't paranoid nonsense.

That truly is because no such arguments exist.

[Diamonds are Forever]

Instead of the SNPbad crew like Davidson trying to oppose the scheme - which will still go ahead - they'd be far better focusing on the SNP's incompetence at drafting legislation. 

[Cream Cheese]

STV narrative - "The supreme courts have deemed the Scottish Governments controversial named person scheme as unlawful. However, ministers say they are going to change the law and press on with it anyway."

LOL Change the law? When did they say anything about changing the law in order to push the scheme through? More rubbish being spouted by the MSM.

[Ad Lib]

The issue of accurate reporting here relates to what was actually being challenged by the petitioners.

There were, broadly, four distinct arguments:

1. That the Scottish Government cannot legislate for a special data-sharing arrangement because it "relates to" the subject matter of the Data Protection Act, which is a reserved matter.

• If they could have demonstrated this, pretty much any named person scheme would be dead-in-the-water as it would necessarily, and distinctly, relate to a reserved matter even if the dominant priority of the legislation was the wellbeing of children, which fell within the Scottish Parliament's competence.

2. That compulsory appointment of a named person is, per se, a disproportionate interference with the right to respect for private and family life

• Similarly, if they could demonstrate this essentially no named person scheme could function.

3. The specific data-sharing principles were unlawful because:

(a) they were too vague and convoluted in order that they could readily be understood by actual named persons and/or children and their parents/guardians, such that they could effectively determine what could not/could/must be disclosed, to whom and in what circumstances;

(b) the scheme was not accessible enough for disclosures to be held to account if they were done improperly, both because of the convoluted nature of (a) and because there were insufficient safeguards to ensure that, except in compelling contrary circumstances, children/parents were to be made aware that a disclosure had in fact taken place;

• Problems of this nature are ones ostensibly of statutory drafting: it wouldn't be enough simply to say that the guidance has been made clearer. The actual legislation will have to be narrowed so that these requirements are more explicit.
• This was the ground on which a third party "intervened" in the case, and several of these arguments were at the core of the criticism in Parliament made a few weeks ago by the Tories in the opposition day debate calling for a pause in the legislation. Some of you may remember a stooshie between John Swinney and Adam Tomkins, which related specifically to this issue.

4. That the data-sharing scheme was disproportionate because:

(a) the scheme was insufficiently clear for the purposes of affected parents that not taking the advice of a named person would not in itself be taken as non-compliance or grounds for suspicion that they were not satisfying their basic duties as a parent to cater for the wellbeing of their child; and

(b) the guidance for disclosure was not sufficiently protective of information that was not restricted by the Data Protection Act for "sensitivity" but which nevertheless ought still to be "confidential"

• These problems may arise systemically, such that the legislation is itself fundamentally deficient, or they could arise frequently in specific applications of the legislation.

On the first and second arguments, the Scottish Government very clearly won. The first argument was not one that I have seen the political opponents to the NP scheme push either in Parliament or in public, but the second one does relate to the public debate. Something can be "proportionate" in the legal sense but be regarded, politically, as disproportionate, given what is called the "margin of appreciation" or "deference" that courts afford to political decision-makers about what is the right balance to strike between fundamental rights and the public interest. In this respect, while the SNP are right to say that the court said the objectives of the statutory scheme were "legitimate and benign" that isn't the same as saying as a matter of politics that they were either or both (though I think on balance they are). The court explicitly recognised that if the political judgment had been made that a single point of contact was necessary, it was open to the Scottish Government to reject a voluntary scheme on the grounds that precisely the children they were aiming to most protect and benefit would slip through the cracks.

To that end, the SNP are right that the scheme has not been destroyed outright through the courts.

Where they are encountering significant problems are especially under heading three and to a lesser extent, but for connected reasons, under heading four. The result of this judgment is that the current rules are deemed to be insufficiently specific and clear for the purposes of both named persons and parents and their children, especially around non-consensual and non-disclosed disclosure, to guarantee effective and consistent application that does not involve unwarranted intrusions into private/family life. Perhaps most importantly, the Supreme Court concluded there was no possible interpretation of the interaction between the Act and the Data Protection Act/EU Directive, and no possible redrafting of the government's guidance to named persons, which would in itself be capable of making the scheme lawful. There will have to be specific amending legislation that much more clearly spells-out the circumstances, justifications and thresholds for disclosure.

The court stopped short of saying that the scheme as currently drafted would be inherently disproportionate, but it did indicate that the indeterminacy of how it operates could lead to disproportionate interferences with rights in practice. This means the problems under 4 might become more acute if the amendments to deal with heading 3 are not sufficiently narrow.

The kind of tl;dr conclusion is that both sides had their wings clipped a bit. The scheme will probably still be able to go ahead in some form, but the putative advantages of the data-sharing element could be blunted substantially to the point that people might wonder what the point of it was in the first place.

[Ad Lib]

8 minutes ago, Cream Cheese said:

STV narrative - "The supreme courts have deemed the Scottish Governments controversial named person scheme as unlawful. However, ministers say they are going to change the law and press on with it anyway."

LOL Change the law? When did they say anything about changing the law in order to push the scheme through? More rubbish being spouted by the MSM.

They have said that. Swinney said they'd bring forward amending legislation. Because the Supreme Court told them they had to.

[Cream Cheese]

2 minutes ago, Ad Lib said:

They have said that. Swinney said they'd bring forward amending legislation. Because the Supreme Court told them they had to.

Amended legislation to the named person policy. They aren't "changing the law" in order to accommodate it.