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Named Persons

I have to confess to a secret vice: I enjoy reading law reports. My favourites are the Supreme Court judgments, but even the lowly Commercial Court can provide some enjoyable reading. I am not quite sure why I read them. Partly it is because many judges write beautifully clear English, partly because I quite enjoy knotty legal problems.

My attention was recently caught by reports of [2016] UKSC 51 (the “Named Persons” case). I suppose I should pause briefly to wail against LexisNexis and its ilk. They are for law reports what learned journal publishers are for university research. The problem LexisNexis has is that it does not own the copyright of law reports, so you might think that would make it difficult to charge lawyers large fees for providing them. But no.

RELX Group plc (reg no. 02746616) (Reed Elsevier Group plc until 2002) is dual listed. So RELX PLC is listed on the UK Stock Exchange (ticker LON-REL), current price £14.40, mkt cap £29.8 billion, and owns 52.9%. RELX NV is listed on the Amsterdam Stock Exchange (ticker AMS-REN), current price €15.02, mkt cap €32.8 billion, owns 47.1%. So over £50 billion market cap for repackaging material mainly already easily available, not bad.

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[share price of RELX PLC in pounds]

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[share price of RELX NV in euros]

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[plot of euro against pound]

Those who enjoy such things might want to figure out the scope for arbitraging the two companies and the related currencies. Note that 2016 has seen a 20% rise in the euro, a flat euro price and a 17% rise in the sterling price. One would need to look carefully at the effect of currency movements on the profits of RELX Group.

Elsevier, of course, is a major academic journal publisher. In 1991 it took over Pergamon Press, the notorious Robert Maxwell (aka Jan Hoch ) vehicle – he being the first to grasp that university libraries bought almost any academic journal, no matter how useless. See here and here for rants about journals and academia that I wrote nearly a decade ago.

The wheeze for law reports seems to be that there is copyright in arrangement as well as content. Fortunately, the UK has got much better about providing free law reports. The Supreme Court reports are easily available on its own site, and the last five years of appeal court decisions on the government site. A more extensive range of reports, including High Court cases, is on bailii, which is funded by a large collection of Inns of Court, chambers, individual barristers, firms of solicitors and a handful of major companies (see sponsors).

The Named Persons case is one of a small number where statutes passed by Holyrood have been overturned by the courts as ultra vires. It is also a horror story which might give pause for thought to those eager to extract us from the European Court of Human Rights.

It started with GIRFEC published by the Scottish government in 2008:

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Like many disastrous schemes it was begun with good intentions, in this case a desire to get better outcomes for Scottish children. The original document (revised in 2012) has bizarrely bad layout and typography as well as the expected poor English (eg Core component 8: “Maximising the skilled workforce within universal services to address needs and risks as early as possible”). After several years of consultation the scheme was enshrined in the Children and Young People (Scotland) Act 2014 (“the Act”).

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The centrepiece of the Act is Parts 4 and 5 on Named Persons and the Child’s Plan, which were due to come into force in August this year. The basic idea was to improve coordination between the umpteen agencies which might come into contact with a child by assigning every child a “Named Person” responsible for the coordination.

In practice it was hoped that two benefits would flow: parents would have a single point of contact when they wanted help, and where intervention by the state was needed it would be delivered more effectively. The second was the difficulty. This was eloquently explained by a civil liberties campaigner in the Isle of Man.

I am answering this call for written evidence because the ‘Getting it Right for Every Child’ – GIRFEC policy contained in the Children and Young People (Scotland) Bill is very similar to the ‘Every Child Matters’ (ECM) policy introduced in the Isle of Man several years ago. That policy had adverse consequences for both the local community and children’s & families social services.

… First indications that ECM was causing problems [came a year after its introduction] when the Government had to ask the Tynwald for £498,000 additional funding for a further 10 children’s social workers. The Minister stated that due to new policies “workloads for new cases and for support to the Courts have risen by approximately 500% in the last year”. Fierce debate ensued in Tynwald …

The statistics are startling because there are just under 1000 children born per year in the Isle of Man. So, with circa 959 referrals to children’s social services per year, it is likely that most children will be the subject of a referral before they are 18 – with at least 70% of the referrals being utterly unnecessary. In plain terms, nearly three quarters of all children will be the subject of intrusive enquires by social services at some stage in their childhood. This hugely intrusive policy is a direct consequence of over broad referral criteria …

Evidence … cited a range of adverse consequences and public health issues resulting from over involvement with children’s social services. These include including fear of accessing medical care, distrust of health visitors, concealment of post natal illness, more marital separations and breakdowns and lack of help for those in need. The point being that parents, entirely understandably, fear needless involvement with children’s social services and, consequently, avoid contact with public authorities …

GIRFEC makes further deep inroads into the sanctity of family life. For example, the National Risk Framework 11 says a child is at risk if he/she is under 5 years, has more than 3 siblings, is adopted or a step-child, has a ‘difficult temperament’, parents are contesting contact, does not speak English, has a parent aged under 21, or a parent whose partner is not a biological parent, is a child that lacks trust towards ‘workers’ or shows culturally inappropriate behaviours. These risk indicators are over broad.

A miscellaneous group of parents and pressure groups sued, lost in the Court of Session (the top Scottish court), and appealed to the Supreme Court, where they got a unanimous judgment in their favour at the end of July this year.

The somewhat coded language of the (single) judgment indicated that the judges thought the Act was a dog’s breakfast of bad drafting, because of its obscure interaction with the Data Protection Act 1998, but ultimately concluded that was not sufficient reason to strike it out as ultra vires the Scotland Act 1998 (which gave Holyrood its limited powers).

On the other hand, they found that the Act did fall foul of article 8 of the European Convention on Human Rights (the right to privacy) and so Parts 4 and 5 had to be suspended whilst the Scottish government tried to redraft them.

The last word should go to the Scotsman (21 Oct 2016):

The ease of access that … [pressure groups] have to the centre of political decision making is one of the key characteristics of Scottish politics. This has led to the development of a revolving door … Former lobbyists now sit as MSPs and former MSPs work as lobbyists. Similarly, former civil servants have taken jobs with … [pressure groups]. Often these organisations receive a substantial part of their funding from the public purse and can have an important influence in shaping the development of Government policy and legislation …

The Scottish Government claimed that owing to the success of the [pilot] scheme in the Highlands in reducing referrals to the Children’s Panel, the scheme should be rolled out across the country. It worked closely with various children’s charities in developing the legislation. Understandably, these groups are keen to support any measures which they think might improve the outcomes for disadvantaged children.

[Deputy First Minister John Swinney claims] that … the pilot scheme … was responsible for a 68% decline in referrals to the Children’s Panel between 2007 and 2013. The problem is that a closer look at the data shows that the results in the Highland Council area are far from exceptional. Over the last 10 years there has been a decline in referrals across the whole of Scotland by 72.6 per cent. Highland ranks only 11th out of 32 local authorities in its track record on reducing referrals. Other councils which piloted the Named Person scheme, such as Angus and South Ayrshire, performed much worse, with Angus sitting at 20th and South Ayrshire at 30th in the ranking. Councils which did not pilot the scheme, such as Aberdeen and Glasgow, performed better than Highland with drops in referral rates of over 80 per cent. It appears, therefore, that the decline in referrals to the Children’s Panel is due to other factors …

One lesson … is the need for improved scrutiny of the evidence base which underpins new legislation. Too often decisions about which organisations to take oral evidence from are taken very early in the legislative process, before the deadline for submission of written evidence has expired. Parliamentary committees should wait until all the written evidence has been collated and read before deciding from whom to take oral evidence.

In other words, they meant well, but listened exclusively to charities and pressure groups worried about child abuse – and then, having made up their minds what to do, closed them to the evidence and tried to spin the data.

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