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IRONY of IRONIES: Scotland’s (Odious) Named Person law Struck Down by UK Supreme Court (wait for it!) Because it COULD Violate the Euro Human Rights Law!

I love ironic humor and this story is ironic humor inside of ironic humor perhaps inside of ironic humor:

The Scottish Parliament (Hereafter called Holyrood for the area of Edinburgh that the parliament meets at) passed this terrible law (The Children and Young People Act) that subjected every Scottish child AT BIRTH to have a “named person” to oversee him or her until they become an adult – regardless of the virtue or lack thereof of their natural parents.

The law was rightly criticized (and at this blog as an example of the potential reach of the UN Child Treaty) as an invasion of parental rights (look here at parental-rights.org) but it was not struck down for that – but as the BBC article indicates, it is contrary to the European Covenant on Human Rights!  (The British court asked for further briefing to determine what the remedy is but the Scottish government will not enforce it in the interim.)

Judges say some proposals breach rights to privacy and a family life under the European Convention on Human Rights.

The court said the aim of the Act, which is intended to promote and safeguard the rights and wellbeing of children and young people, was “unquestionably legitimate and benign”.

However, judges said specific proposals about information-sharing “are not within the legislative competence of the Scottish Parliament”.

Now I disagree with the court’s finding that this act is in any way legitimate and benign.  It is a nanny state law striking at the heart of the parent-child/family relationship.  It would likely be struck down by an American court (unless we ratify the UN Child Treaty) under the Pierce v. Society of Sisters decision in the 1920s that forbad the teaching of children in private schools and the Meyer v. Nebraska decision that struck down a law forbidding the teaching of young children the German (or any other language).

Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control: as often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

By the way, Pierce is cited with approval by the UK court and even implies that the UN Child Treaty protects the same liberty interest.  (See slip opinion p. 33)  Of course it does not (See this from the testimony of the Commissioner for Children and Young People in 2013 for the smoking gun evidence that the SNP government believes this is to implement the Child Treaty) but even if it did, the US government or any state or local government cannot be placed in a legal construct that requires it to answer to foreign law as supreme.

However, the irony I promised is coming!  Here is the holding of the UK Supreme Court (Slip opinion p. 46):

In summary, we conclude that the information-sharing provisions of Part 4 of the Act (a) do not relate to reserved matters, namely the subject matter of the DPA and the Directive, (b) are incompatible with the rights of children, young persons and parents under article 8 of the ECHR because they are not “in accordance with the law” as that article requires, (c) may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information, and (d) are not incompatible with EU law in any way which goes beyond their incompatibility with article 8 of the ECHR. We are satisfied that it is not possible to remedy this defect by reading down the provisions under section101 of the Scotland Act 1998. Conclusion (b) therefore means that the information-sharing provisions of Part 4 of the Act are not within the legislative competence of the Scottish Parliament.
It is very limited to privacy but the UK court held that the ECHR – the European Human Rights “Constitution” that the SNP wants to be under or remain under as part of the European Union and EU law as well forbids this law so it is beyond the authority of Holyrood to pass. Only the UK government can pass it.
So an independent Scotland could enforce this law – maybe – if the EU did not force it to be struck down – but as it is – only if the UK LEAVES the EU can Scotland enforce this law.  Don’t you love the compound irony?
So I ask the Scottish people:  Which one do you want?  Be independent or be part of the EU?  You can’t be both.  That is one reason why the United Kingdom voted to leave the European Union.  But Scotland wants to be independent  – in large part so it can be part of the EU and be subject to its laws.  So I ask again:  Which one is it?  (And remember I am a friend of Scottish independence!)
What Scotland needs to do is vote in a true libertarian party that advocates independence and liberty!  Here is the website of the Scottish Libertarian Party (I love that person you see first when you enter the site and it shows one example of the international reach of the ideals of Dr. Ron Paul!) for your viewing pleasure.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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