The Christian Institute has warned that new, heavily watered-down, plans for a Named Person scheme in Scotland do not go far enough and are at risk of a legal challenge.
In a submission to MSPs, the Institute cautioned that attempts to simply address concerns in guidance – rather than in law – are akin to recalibrating gears on a bike which is “careering downhill” when faulty brakes are the real issue.
The Institute urged Parliament to make modifications to the Bill, but said if necessary it would consider further legal action.
Original concerns
In 2014 The Christian Institute warned the Scottish Government that its plans fell foul of the European Convention on Human Rights, but the concerns went unheeded.
However, in 2016, the UK Supreme Court backed the Institute’s position, forcing the Government to re-write its plans.
Now, during a consultation period on the new Bill, the Institute has said the legislation “adopts the narrowest of readings” of the Court’s judgment.
‘Wellbeing’
The Bill “does not address” the Court’s concerns about clarifying what ‘wellbeing’ means, the Institute said, stating that simply addressing the issue in guidance was not enough.
… we reserve our position in relation to further legal action.
The result “will create uncertainty for professionals” and “mean that the legislation will still fail the requirement of being in accordance with the law”.
It also fails to clarify the “voluntary nature” of the Named Person service – something which the Supreme Court urged.
Not sufficient
“The amendments to the information sharing provisions in the 2017 Act are welcome in that they remove the previous duty to share information”, it added, but said overall they are not sufficient.
In conclusion, the Institute said, the new legislation is a “good place to start”, but not enough to “put the Bill beyond the scope of further successful judicial review”.
“If modifications are not made to the Bill in Parliament”, it said it would urge the Lord Advocate to ask the Supreme Court “whether the Bill is within the legislative competence of the Scottish Parliament, as we did in February 2014”.
“Failing that, we reserve our position in relation to further legal action.”
Children’s charity speaks out
Other groups have also spoken out on the new plans.
In the Faculty of Advocate’s submission, the lawyers warned of a “serious lack of clarity” in the new proposals.
And Clan Childlaw, a leading children’s charity, called for the Scottish Government to withdraw its Bill – citing legal concerns.