The Named Persons legislation and who stands up for liberty in Scotland?

Gerry Hassan

Sunday Mail, July 31st 2016

The summer of 2016 is proving dramatic and historic. Brexit, David Cameron resignation as PM, Theresa May becoming the new PM, Jeremy Corbyn’s travails.

That’s just Britain. Across the world there is Donald Trump, Hillary Clinton, violent and terrorist attacks in Germany and France, Putin flexing his muscles, while a belligerent China shows its power in the South China Sea.

Meanwhile, the Scottish Government has been playing an astute game on Brexit. This week Nicola Sturgeon spoke in a way no pro-European UK politician has yet managed. She was empathic, thoughtful, and forward-looking, while calmly making the case that this mess and crisis is not of Scotland’s making.

It then comes as a bit of a bolt and bringing back down to earth that the UK Supreme Court found against the Scottish Government on the Named Persons Act – which would appoint for every child a named person to look after their wellbeing – finding it not unlawful in principle, but in practice, and in particular, in terms of data sharing between public agencies.

The Named Persons Act (or Children and Young People (Scotland) Act to give it its proper title) was passed overwhelmingly by the Scottish Parliament – by 103-0 votes with the Tories abstaining. It originally emerged as an idea when Labour were in office nearly a decade ago, from civil servants and public sector professionals wanting to offer joined-up services, partly to minimise things going wrong and to protect children, and to prevent the consequences which flow from public services getting the blame.

Government and public agencies always prefer tidiness, and for people to organise their lives into neat silos which aid public policy. Recognising this seldom happens, the best intentions of the Named Persons Act was to develop joined up services for young people, acknowledging that many of the differentiations of services have been for the benefit of professionals, not users.

However, this act hit a raw nerve – being seen by many as one step too far. It fed into worries about the nanny state, an unwelcome encroachment by a Big Brother authority, and violating the privacy of families and children. It doesn’t matter for many opponents that the original intent was benign; the biggest advances in state power often are.

Now there is much hyperbole by both supporters and opponents here. Talk of the bill as ‘Orwellian’, the comparison to a ‘totalitarian regime’ by the Supreme Court, and understandable criticism of the opponents who brought the bill to court (a mixture of the Christian Institute and hard right libertarians), misses most of the concerns. Equally worrying is the lack of political touch by SNP supporters, failing to realise the symbolic and wider importance of this controversy: touching on so many anxieties that are emerging about not just the SNP, but Scottish Government.

This has fed into existing concerns about SNP centralisation. The Named Persons Act follows the creation of Police Scotland, the setting up of one Scottish Fire and Rescue Service, and the development of the Offensive Behaviour at Football Act which creates a whole new category of hate crime just in relation to football.

This though isn’t just about the SNP. Centralisation has been one of the defining features of public life for decades. The setting up of the Scottish Parliament aided this – as the new body found its feet and gathered more power inside the country. Before that Thatcherism governed a hostile land and attempted to keep power in a few, chosen hands.

Both are normally blamed as the main culprits, yet all they did was accelerate existing trends dating back nearly a century. There was the 1970s local government re-organisation which witnessed the creation of huge regions; the expansion of the public sector from 1945; and the dilution of local government powers and financial autonomy from the 1920s onwards.

The SNP have until recently been outsiders in public life: people who were independent minded as well as supporting independence; beyond the reach of Labour patronage. One of the perils of success is that it slowly erodes these credentials and the edge it gave, as the SNP top echelons slowly and inexorably become part of the system.

None of Scotland’s political traditions or parties have proven at their peak – Tories, Labour or the SNP so far – that they are passionate champions of civil rights or liberties. No one wants to talk about the succession of badly drafted laws emanating from Holyrood under Labour-Lib Dems and SNP. All fine for the Tories to stand up at this late stage, but where were they earlier on this bill, or more generally?

This is important in an age of scepticism in elites, politicians and bureaucracies. It could even be that addressing this is as important to the prospects of the SNP and independence as what happens with Brexit.

The clarion call of ‘Freedom’ rings hollow in the midst of such bad laws. This doesn’t bother true believers, but to others, for all the talk of an independent Scottish Government with the full powers of a Parliament, what matters is what they do with their authority, and the limits of their reach. ‘Freedom’ may stir hearts, but liberty, drafting good laws and governments who don’t meddle in things they shouldn’t, are just as vital in the making of a nation.

If independence is to be a bright hope, it has to include alongside sweeping promises, a fresh start, and competence, an awareness of the need for diversity, pluralism and checks on authority, government included.