‘Oh, for heavens sake!’ – More on Named Persons

Oh, for heavens sake!

Look, on the one hand, there are people out there who think that the State has no role whatsoever in family life. Some of them choose to live in bunkers, and I am sure there are literal and metaphorical bunkers in Scotland. Self-styled Freemen on the Land are an example of a group with no respect for the Rule of Law, and who do not recognise the role of the State. Some of them harm their children too.

On the other hand, are those who are inherently distrustful of family life. Some of them would like to keep universal databases, and the whole of the population under surveillance. Some of them point to when things go wrong in families, others dislike the family model, because they dislike the philosophical convictions of some people who live in families. Some have a commercial interest in the database and surveillance industries.

In between these two extremes, Continue reading ‘Oh, for heavens sake!’ – More on Named Persons

The ‘Named Persons’ Scheme – When Protecting Wellbeing Is Totalitarian

This post by me is also available at Pink Tape and Local Government Lawyer

Back in 2013, I was asked by the Scottish home education charity Schoolhouse HEA to provide a legal opinion on the proposed scheme to appoint so-called “named persons” to every child in Scotland. I was asked specifically to comment upon its compatibility with EU and human rights law. My opinion was that it was incompatible with both. That opinion can be read on the website of the Scottish Parliament here, and with an attractive full-colour cover on Schoolhouse’s website here.

While pretty much every legally-qualified response to the proposed scheme expressed concerns (e.g. cl@n childlaw (which became an intervener), Faculty of Advocates, Govan Law Centre,  Law Society of Scotland, Kenneth Norrie, Professor of Law, Strathclyde University, Scottish Child Law Centre – each of whom referenced Article 8 specifically), the legislation was nonetheless passed, and legal challenges to the scheme failed in the Scottish Outer and Inner Courts of Session. Thus, the case arrived at the Supreme Court, which issued its judgment today.

When you have begun believing you are simply applying well-established principles, three years of people taking a contrary view is a long time to wait. Continue reading The ‘Named Persons’ Scheme – When Protecting Wellbeing Is Totalitarian

The state of child rights in the UK reviewed

crc_logoThe body which reports on the U.K.’s compliance with the UN Convention on the Rights of the Child is the UN Committee on the Rights of the Child. Its last report was issued last month. While the recent report of the UN Committee on Economic, Social and Cultural Rights received quite a lot of media attention, with its criticisms of UK austerity policies,  children’s rights do not seem to have received the same level of attention.

Meanwhile, children’s rights have been receiving attention in a different way, in recent online exchanges over the last couple of days concerning the Children and Social Work Bill. Specifically,

I am not really convinced by urgings that we should trust civil servants and ministers in relation to children’s rights,  Continue reading The state of child rights in the UK reviewed

Brexit and Beacons

ECHR signatories
Signatories to the European Convention on Human Rights

Hmm… Just a quick one, this.

I heard Lord Lawson of Blaby last night, speaking on the ‘Outcome of the European Union Referendum’. I was very struck by the similarity of the language he used to language used by David Maxwell-Fyfe at the time of the genesis of the European Convention on Human Rights in 1950. (David Maxwell-Fyfe was the U.K.’s Deputy Chief Prosecutor at Nuremberg, and a key negotiator in the Council of Europe after the Second World War, and spoke for the U.K. at the signing ceremony). I wondered whether Lord Lawson was aware of the similarity of language and was deliberately evoking it; but what struck me equally forcefully was how the contexts were almost polar opposites. Continue reading Brexit and Beacons

Brexit and the misunderstanding of Democracy

“The people have spoken, and their wishes must be respected.” We have been hearing a lot of this recently, and not only from the majority who want to see what they voted for realised. There seems to be a broad acceptance of the proposition by the minority also.

I do not want to question democracy itself – as Churchill once famously observed,

No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…

But I do want to cast the spotlight on this curious understanding of what democracy means: that a bare majority of those voted on a particular day must prevail in the argument.

As an understanding of democracy, I think this is both reductive and insular. Reductive, because it is just not as simple as that in a modern social democracy. Insular, because it is not like that in many other modern social democracies. Somehow, it seems that winners and losers alike have caught onto a notion that the bare majority of those who voted on a particular day must prevail; seemingly unaware of the counter-arguments that regularly prevail elsewhere. Continue reading Brexit and the misunderstanding of Democracy

DoLS, floodgates, and judges who won’t play ball

Deprivation of Liberty seems to be an issue which is putting the doctrine of judicial precedent – where lower court judges have to follow the reasoning and decisions of higher court judges – under considerable strain.

Here, I document – mainly to collate the resources into one place – two recent instances of where the lower courts have been questioning the higher courts.

But actually, this is not new. Continue reading DoLS, floodgates, and judges who won’t play ball

An elephant in the room – what could an extra 26 weeks do?

The Court of Appeal has given judgment in a case where the judge at first instance delayed for 6 months between the end of the hearing and giving a decision: http://www.bailii.org/ew/cases/EWCA/Civ/2015/606.html.

As ever, hat tip to @suesspiciousmin for reading the case so that we don’t have to! His commentary is here: http://suesspiciousminds.com/2015/06/18/six-month-delay-in-giving-judgment-appeal-point/

I just wanted to say, there is an elephant in the room. Continue reading An elephant in the room – what could an extra 26 weeks do?

Age Assessment: let’s all guess together!

On 22nd May, ‘Joint Working Guidance’ on Age Assessment was published by the government, branded with the logos of the Home Office and ADCS. More guidance on age assessment is promised in the near future.

‘Age assessment’ is the misnomer commonly used for a process whereby social workers allocate a date of birth to potential service users. BASW has last week published a position statement which questions the use of the term, but more importantly warns against social workers undertaking the exercise alone.

BASW is hosting a twitter debate on this on Monday 8th June between 6-8pm. Here (that would be below, after the background section), I want to set out why I think it is indeed a nonsense for social workers to carry out single-agency age assessments. Continue reading Age Assessment: let’s all guess together!

Vote for what you believe in!

Political Compass

(Image above from the Political Compass website at http://www.politicalcompass.org/uk2015)

It seems to be a recurring theme of this election that we are being asked to vote tactically. We are being told how important it is to keep out parties we don’t want. We are being asked to look ahead and second-guess post-election coalition talks: “vote this colour, and you’ll get that colour”. We are not only told it nationally, we are also told it locally: “in this constituency, the only person who can beat the incumbent is so-and-so”. We are told that a vote for a party that won’t win is a wasted vote.

This is a plea not to vote tactically. Look, if what you really believe in is represented by one of the big parties Continue reading Vote for what you believe in!

Two benefits of a Human Rights Act

I’m flagging up here a couple of posts by others, a couple of posts which I’m linking together as highlighting benefits of the Human Rights Act. Both are from bloggers I’d highly recommend following anyway – @DrMarkElliott‘s Public Law for Everyone and @SteveBroach‘s Rights in Reality. Both are about recent decisions of the Supreme Court. But since they’re both legal blogs, I hope the authors won’t mind if I go back a couple of steps for a non-legal audience.

Irrationality or proportionality?

There has been a long-running debate about what happens if the State (which includes central and local government and lots of officials and bodies which make decisions on behalf of the State) does something unreasonable. Decisions have been able to be challenged by a process called judicial review, but a very old case Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 (10 November 1947) gave its name to a long established principle, that you can’t win a judicial review just because the State is unreasonable. Continue reading Two benefits of a Human Rights Act