Tuesday 5 April 2016

Named person legislation and undermining the family

And so the Current Stooshie (there must always be a Current Stooshie) in Scottish politics is that anent the named person legislation.

There's a rough and ready distinction to be made between principled reason and embodied reason. 'Principled reason' describes that aspect of reasoning which can be governed and corrected by principles such as those of formal and informal fallacies. 'Embodied reason' describes the conditions under which we promote reason in real life, concrete circumstances. For example, exercising control over one's temper, trying to see things from another person's point of view, not debating while drunk and restricted to 140 characters are all helpful contributions to embodied reasoning.

I'm obsessing a bit about Russell Kirk at the moment. (That doesn't mean I worship him or think that he's right about everything, but simply that I think he's well worth reading and I've some time to make up on this before I enter my long home.) His (varying) list of ten principles of conservatism are helpful in the way that all principles of reasoning are helpful, in particular, to call to mind externally for the less than wise what the fully wise have already internalized. But an oddity of those principles, at least for the modern western world, is that in general they do not directly refer to issues which exercise much of our current politics such as nationality and gender. More revealing perhaps are the three ends that Kirk claims to have structured his life:

Looking back over his life at the age of 75, Kirk saw that he had sought three ends: to conserve “a patrimony of order, justice, and freedom” and a respectable moral order; to lead “a life of decent independence,” necessary for kindling a rigorous mind and making his voice heard; and “to marry for love” and rear children who “would come to know that the service of God is perfect freedom.”


The two latter ends (a life of decent independence,” and “to marry for love” and rear children) directly concern the formation of the household. And it is that institution, where the individual faces the past and the future in the beginning and the end of life, the encounter between the sexes, and the tension between the private and the public that I am increasingly certain is the hub around which all politics should turn. That sense of its importance was reinforced by reading a recent interview with the (liberal) psychologist, Jonathan Haidt:

As you Jonathan have delved into morality more deeply, are there any examples of something you considered harmless before, that now you think may actually be harmful once second, third, etc., social effects are taken into account?

HAIDT: Oh, yes, yes. When I was younger I remember thinking, “Oh, you know, marriage isn’t so important, all that matters is that you — of course you need to take care of the kids, but people should be free to do what they want.” I’ve come to see — so I started off on the left. In fact I got into political psychology in 2004 precisely to help the Democrats because I thought they were getting their rear‑ends kicked by the Republicans who knew how to talk about morality.
Whereas Gore and Kerry just didn’t have a clue. Since I started researching conservatism and then libertarianism, I’ve just found that they make a lot of points that as a social scientist I have to agree, “Oh, that’s a good point.”
The overriding importance of family stability, if you’re raising kids with incredible family stability, they just come out better. In fact they’re much more likely to rise economically than if they’re raised with any sort of family instability. So I think I’m more conservative about family arrangements, precisely because of these second- and third-level effects.
[Full interview here.]
The problem for me with the named person legislation is that it seems to set up an authority which is either superior to or or at least co-ordinate with parental authority. The legislation spells out the duties thus:
(1) In this Part, “named person service” means the service of making available, in relation to a child or young person, an identified individual who is to exercise the functions in subsection (5).
(5)The functions referred to in subsection (1) are—
(a)subject to subsection (6), doing such of the following where the named person considers it to be appropriate in order to promote, support or safeguard the wellbeing of the child or young person—
(i)advising, informing or supporting the child or young person, or a parent of the child or young person,
(ii)helping the child or young person, or a parent of the child or young person, to access a service or support, or
(iii)discussing, or raising, a matter about the child or young person with a service provider or relevant authority
Now I agree with Lord Pentland's reasoning in rejecting the petition for judicial review here: (paragraph 52)

In this state of affairs, it would be wrong for the court to declare in these proceedings that any of the Convention rights invoked by the petitioners have been breached by the enactment of the Act. To do so would be to strike down statutory provisions on an abstract and theoretical basis at a stage when the legislative landscape has not been fully formed and when important practical steps and measures likely to be highly relevant to the assessment of compliance with Convention rights remain to be taken and put in place. Moreover, nothing is known about the practical impact of the new system on any individuals. It cannot, as matters presently stand, be said that there has been any interference with any of the Convention rights of the fifth to seventh petitioners. Taking matters a little further, I do not see how it is possible for the court to carry out any adequate proportionality assessment as matters currently stand.

In other words, in principle, the legislation does not necessarily infringe (legal) rights. Whether as a matter of fact it does will depend on the development of detailed guidance and how that guidance is applied. So much for principled reasoning. But what, as a matter of embodied reasoning, is likely to be the effect of giving a state employee a status and a title that grants a supervisory role over a child's welfare? At the moment, there exists a sort of free floating imperfect duty: I, as a headteacher, may notice something which concerns me about a child's welfare. But I am not the only person involved. Others will act if they are more certain. And so, unless I am very, very concerned and very very certain that the concern is well founded, I may well do nothing. (And my concern joins that queue of other perspectives competing for attention, not particularly privileged among a chorus of other voices.) In the future, that imperfect duty is translated into a perfect one: the buck stops with me. Moreover, my voice is privileged among many others: I am the Named Person. (Much better to act than not to act.)

Conservatives ought to be troubled at this point by the absence of a strong statement that parental authority is prior to that of the state or its representatives in family matters, and by the replacement of prudential judgment ('should I exercise on this occasion my general duty of beneficence?') by the strict obligation always to act with a view to protect.

The problem here, of course, is that it is the hesitation, the possibility of cases dropping between competing authorities that is precisely the target of this legislation. As Lord Pentland said:

The advantages of the new service are not difficult to discern: increased scope for early intervention; improved integration and coordination across the public services landscape; reduction in the risk that the needs of vulnerable children will be inadvertently overlooked due to communication difficulties between service providers; and the introduction of a single focal point to ensure that children and their families receive the support and services they need.

(Note that Lord Pentland also states clearly that there is no provision for opting out of the scheme on the part of parents ('would also observe that insofar as the petitioners submitted that the legislation was disproportionate because it did not require there to be consent or allow for opting in or out of the new scheme, it seems to me that to have either of these as requirements would run counter to and be liable to defeat the aim of the measure' (paragraph 53) here.)

The issue is whether we should be more troubled by the possibility of inappropriate intervention or by the problem of inappropriate inaction. (Conservatives will remember the sixth of Kirk's principles: 'conservatives are chastened by their principle of imperfectability'. (No legislation, however good, will be entirely without its harms.)) The ridiculous optimism of 'Getting it right for every child (GIRFEC)'  is part of the problem: nothing will ensure that this occurs. Any arrangment (the superiority of parental authority; the superiority of the state) will always let some cases through. The only question is what does the lesser harm: (a tendency to) constant activist supervision of normal parents or (a tendency to) overlooking those cases where a child is being abused.

And this is where I suspect the unspoken roots of the Current Stooshie lie. I look around modern Scotland and I see a complete progressive attack on the traditional family. I expect that general tendency to be expressed in how this legislation is utilised. Others will see the traditional family as part of the burden progressive modern Scotland wishes to abandon, and this legislation as part of the emancipatory function of the state. The provisions of the legislation itself as dead ink on the page are probably pretty harmless. But as part of a symbolic, embodied apparatus of reasoning and control, I fully expect them to be yet one more element in the unravelling of traditional. biological family structures.

Does one make a fuss now? It's the common sorites problem of politics: where does one take a stand? I completely understand why many are in favour of this legislation: certainly in intent, it has the noble aim of ensuring that genuine need is better served by a fairly clunky bureaucracy. It has, of course, now become part of the Great Game of trying to find a scratch in the SNP's seemingly teflon ability to slip away from any criticism. (And of course as such it offers the possibility that surfing these party political forces, a genuine possibility of resisting the change exists in a way that, say, it didn't with same sex marriage.) I have no doubt that legislation targeted more precisely on families with clear needs would be better legislation. For those reasons, I shall fight against it with all the power of my keyboard and my two index fingers. (Tremble, my masters.)

[A personal coda. There was an occasion in our family when we did (albeit in a fairly minor way) have to negotiate the state bureaucracy for children. In our case, it consisted mostly of trying to ignore a headteacher and finding another state resource who was (frankly) less of an idiot. The existence of competing authorities and centres of power helped us then. In a normal family, there is no one, absolutely no one who can replace a parent with the deeply rooted biological mammalian imperatives to seek help for a child. A parent is the best person to find the best person to help. (Ask any parent who has tried (invariably battled) to get help for a disabled child.) There is no particular reason to think a headteacher, with a specific, narrow professional expertise and hundreds of other responsibilities would be particularly good. No system will be perfect. All will suffer from the unavoidable problem of 'Quis custodiet ipsos custodes?' But there is reason to think a parent will (generally) be less problematic than a headteacher or health visitor. Anything that confuses that insight into the final nature of parental responsibility is dangerous. I have no doubt it would have made our lives more difficult. (And yes, I'm aware that's only thin anecdotal evidence, nothing more.)]



  1. I concur. But one of the many elephants in the room is that a very accurate way of targetting those children at increased risk may well be to focus on those whose mother is living with a man who is not their biological father. But that is undiscussable.

    1. Indeed. If we were serious about child welfare, we'd be looking at doing all we could to promote stable heterosexual marriage with biological children. (Will all those who disagree please go and bother Haidt not me.) Won't be holding my breath though...