Scottish government ordered to pay appellants’ legal costs in Named Persons case
The Scottish government may be required to pay out an estimated £500,000 over its “Named Person” scheme after judges in the UK Supreme Court ordered it to pay the legal bills incurred by those who brought the case.All the successful litigants are part of the No to Named Persons (NO2NP) campaign group.
Their costs are estimated to top £250,000 and the Scottish government’s bills could possibly bringing the total cost to the taxpayer to around £500,000.
So far, £61 million-plus that has been allocated to the policy behind the Named Person scheme which seeks to impose a state-appointed guardian for every child up to 18. In addition, local authorities like Aberdeen say it could cost them £2 million to implement.
The decision to award costs in their favour has been welcomed by NO2NP.
Spokesman Simon Calvert said: “The government has been hammered on costs. This is a total and utter vindication of the legal action that we were involved in, and underlines how deeply flawed this illegal scheme was.
“The Scottish government argued we should pay our own costs. But the judges disagreed, awarding us our costs, further proving that we have been right all along.”
In its judgment on the Named Person scheme, the judges stated: “The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.”
Deputy First Minister John Swinney who is responsible for the scheme issued a tweet on the day of the judgment in which he said: “Bid to scrap #NamedPerson via Supreme Court fails. Ruling means policy goes ahead. SG will clarify info-sharing in statute & implement asap.”
Mr Calvert said: “Of course, the government repeatedly tried to argue that we had litigated on multiple grounds and won on only one, as if it was a marginal victory. This costs order demolishes that spin. If the court thought most of our arguments were invalid, they could have ordered us to pay our own costs. They did not.
“The bottom line? We won. The government lost.”
Mr Calvert said the entire legal case – through the Scottish courts at first instance and on appeal and then on to the Supreme Court – could have been avoided if the then Lord Advocate Frank Mulholland had listened to concerns raised in 2014 by The Christian Institute, a party to the legal action.
A week before Named Person legislation completed its passage through the Scottish Parliament, the Institute wrote to Mr Mulholland.
In a letter, the Institute’s in-house solicitor Sam Webster expressed “considerable doubt” as to whether the legislation behind the Named Person scheme was “compatible with Article 8 of the European Convention on Human Rights”.
He urged Mr Mulholland to refer to the UK Supreme Court the question of whether the legislation would be “within the legislative competence of the Scottish Parliament”.
And he drew attention to data sharing provisions, warning that they “appear to fail the test of being in ‘accordance with the law’”.
The UK Supreme Court recognised these points when it issued its ruling against the Named Person scheme in July this year.
Paragraph 106 of the judgment stated that the data sharing provisions mentioned were incompatible with the European Convention on Human Rights because – as Mr Webster pointed out – they are not ”in accordance with the law”.
The court concluded by stating that the information sharing provisions of the legislation are “not within the legislative competence of the Scottish Parliament”.
Mr Calvert said: “The Lord Advocate could have taken the Institute’s concerns on board and halted the progress of the legislation while the issues were addressed – preventing a protracted and costly legal battle in the Scottish courts, leading to the government being defeated in the Supreme Court.
“Instead, an assistant legal secretary wrote back to say he had ‘taken account of the points raised’ but did not consider them ’appropriate to make a reference’”.
The parties to the action will now have their legal costs met by the Scottish government.
The NO2NP campaign has so far attracted more than 36,000 names to its petition.