This piece was originally posted on The University of Glasgow's School of Law blog on 29 July 2016 and is re-posted here with kind permission from the author CRFR associate researcher Professor Jane Mair, School of Law, University of Glasgow.
When the long awaited Supreme Court judgment was issued yesterday morning, the Scottish Government, behind the upbeat tweets and positive spin, must surely have groaned. The Named Person scheme, and the bigger project - the Children and Young People (Scotland) Act 2014 - of which it is only a part, has been a long time coming. From the consultation paper in 2012 to the planned implementation of the named person provisions in August 2016, and via a nationwide programme of training events and roadshows, this has been a major commitment and a lengthy process. To be halted – even temporarily and partially – at this late stage, must be frustrating to say the least.
It was not however yesterday’s judgement – a measured, insightful and wise opinion – which caused me to groan, but rather the draft Bill from which the now infamous named person provisions sprang. When I first heard about it, I wanted to like it. Who would not support an attempt to Get it Right for Every Child? Who does not want Scotland to be a good place (the best?) for children and young people to grow up? As the Supreme Court put it [para 91], “[t]he public interest in the flourishing of children is obvious”. As a family lawyer, any improvement in family law, particularly when it is child-focused, surely has to be a good thing. But nonetheless when I read the Bill, and the Act it became, I groaned – three times at least!
I groaned first as an old-style Scot; the product no doubt of that stereotypically dour Presbyterian upbringing. The motivational tone of management-speak, the self-belief in the power of individual intervention and the catchy GIRFEC strapline grate against my more measured, cautious, “let’s just do our best” brand of Scottishness. But that’s my problem and I am trying to adjust.
My second groan was as a lawyer. I care about the state of Scots law, family law in particular: not to derive some weird legalistic pleasure or for a narrow sense of academic satisfaction but because, if family law is to help and protect families, as it is intended to do, then it needs to be law that actually works. Statute should have structure. Like a well-constructed architectural model or a precisely planned electrical circuit, when lawyers look at legislation, they should be able to see how it will work. Who has the rights; what are the obligations; where are the thresholds? When is discretion triggered; what are the principles underpinning its exercise and where are the safeguards and remedies? The problems which law is designed to address are rarely simple, but simple and effective is what the law itself should strive to be. If we lawyers had not already noticed that the 2014 Act falls far short of these benchmarks, then the Supreme Court has surely left us in no doubt. While their decision was that the legislation is not competent, in the narrow sense of the legislative powers conferred on the Scottish Parliament by the Scotland Act 1998, in their observations they highlighted much wider concerns about the effectiveness of this as a legal framework. When the highly trained minds of the Supreme Court describe what has been created as a “logical puzzle” [para 37], there should be little doubt that this is law which will not work.
The problem may lie, at least in part, in the back story to the Act. The 2014 Act is an example of law which has grown out of practice. It is an attempt, well intentioned no doubt, to enshrine in law for all children the existing good practice already of benefit to some. From within the weighty portfolio of guidance, advice and training materials, which accompany this legislation, this comment offers some insight: “The text of a law rarely changes much on the ground; it’s how relevant organisations and individuals put that law into effect which determines its impact.” [CELCIS, Corporate Parenting Implementation Note 1] Of course, it’s the implementation that ultimately makes a difference, but the text of the law which underpins that implementation is vital. When this example of a Scottish statute is compared with models of good practice such as emanated from the Scottish Law Commission in the 1980s and 1990s, the deterioration in family law making is striking.
My third and final groan was as a parent and long standing reader of bedtime books. I groaned because I had read this particular story before and I feared it would not end well. I groaned at the Scottish legislation because it reminded me in so many ways of a wonderful series of books, by Lemony Snicket, which tell the sorry tale of children in need. Each time these children are exposed to danger, their corporate protectors wrap them more tightly in increasingly complex plans and burdensome processes, implemented by highly esteemed individuals with ever greater powers. How could those children not be safe? Sadly, of course, the common sense of the adults has been stripped away by over reliance on process and their innate ability to respond hampered by regulatory systems of compliance. And while the children repeatedly tell the adults where the danger lies, no one really listens. Before I incur the wrath of the wonderful Mr Snicket, who wrote those particular fictional tales, let me stress that his work has none of the structural or syntactical flaws of the Scottish legislation. Similarly, to the many real professionals who work with Scotland’s children, my concerns are not about your ability or commitment, but rather about the complexity and weight of process and procedure under which this legislation requires you to work.
So as the Scottish Ministers settle down to draft a response to the Supreme Court, I should like to suggest two pieces of weekend reading. First, the Children (Scotland) Act 1995 (in its original form), as a model of good legislation and secondly, Lemony Snicket’s A Series of Unfortunate Events, as a cautionary tale (2014, Egmont).