29 July 2016

"Hated Named persons scheme blasted as 'totalitarian'..."

I know, I know. I ought to be out eating duck gizzards and quaffing vin rosé -- and I am. But in the wake of yesterday's Named Persons judgment - further details here - I wanted to pick up just one element of the coverage of case, which warrants further scrutiny. This is pleasure, not business.

The word of the day, children, is "totalitarianism." The Daily Mail, whose rabid fulminations against the Named Persons schemes have been unrelenting, stick the word in their headline, and suggest in the body of the piece that the Supreme Court "blasted" the named persons scheme "as totalitarian."  In the Courier, the Christian Institute Colin Hart suggests Justices "even invoked the spectre of totalitarian regimes in its criticism of the plans." Brian Monteith weasels the word into his Edinburgh Evening News column, and even the Herald's readers get in on the act. Aberdeen's Press and Journal quote what they describe as a "devastating line" from the judgement: "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." 

The implications of these reports are all spectacularly unsubtle. The casual reader, leafing through the paper and spotting these stories, would be lead to understand that the Supreme Court had criticised the SNP government in general, and the Named Persons scheme in particular, as "totalitarian." Step forward, former Scotsman reporter David Maddox, who has returned to his roots with a new gig writing about politics for the Daily Express. Mr Maddox summed up the allegation neatly, if mendaciously, in a tweet yesterday: "So it is official ... a Court has likened SNP run Scotland to a "totalitarian regime." The meme did the rounds vigorously on social media. "A shocking assessment of the SNP" government one remarked. "A senior judge said this of them. Shocking."

And I grant you, on the face of it, these headlines don't look good for the Scottish Government. A senior judge, using inflammatory language like that? A bench of experienced jurists, slating the SNP's child protection measures as akin to the bloodiest and most sinister regimes the world has known in the last century? Remarkable.  

But wait: how does this -- how can this square -- with that important passage from yesterday's judgment, in which Lord Hodge described the purpose of the Named Persons scheme as "unquestionably legitimate and benign", without a peep of dissent from his colleagues? I know you are supposed to get more conservative as you get older, and heaven knows, judges aren't always the most liberal of spirits, but surely Lord Hodge wasn't suggesting that the - albeit flawed - Named Persons scheme was simultaneously "totalitarian", and "legitimate and benign"?

Of course he wasn't. Because Mr Maddox, the Daily Mail, Colin Hart, Brian Monteith, the Press and Journal are all - deliberately, or through their ignorance and incompetence - distorting the judgment to suit their intellectually dishonest political goals. I told you there would be spin about this judgment -- from both sides. There has been. I sympathised with journalists yesterday. We have the outcome of the court case -- a Pyrrhic victory for the Christian Institute -- but the Court's lengthy reasoning is more nuanced and hard to get your head around, never mind to bang out a pithy but clear few hundred word story about. Many journalists made a good fist of bringing their readers the essential facts, gesturing to the legal and political complexities of the case, even if they could not entirely account for it in their pages.

But what I find galling -- what I find indefensible -- is the wilful dishonesty which has characterised parts of the right-wing media's reporting of this story. It is as if their journalists tried to read the judgment, got bored, befuddled or confused, and instead -- just found the fieriest word in the text and decided to sex it up into an unprecedented judicial drubbing for the SNP.  But don't take my word for it. Just read paragraph [73], which is the solitary instance of the word "totalitarian" in the judgment. Lord Hodge said:

There is, you will note, no mention of the Named Persons scheme in this passage. Nor is there many mention of the SNP government, or of "SNP run Scotland", to borrow Mr Maddox's pithy phrase. Instead, Lord Hodge lays out the roots of the right to privacy and family life in international human rights law. He goes on to set out key principles and cases from the ECHR in subsequent paragraphs, before returning to their application to this case. This isn't a "devastating line" as the Press and Journal had it. It is bone dry judicial background. It doesn't "blast" the Named Persons scheme, or the SNP government, as "totalitarian", however much the Daily Mail might have liked the court to use this kind of salty language to describe the policy.  

It is an old trick, none the less shabby for its familiarity: the selective quotation, deliberately decontextualised, its true object obscured, and presented in a way calculated to mislead the reader.  If I was Lord Hodge, or any of the four other judges who contributed to the judgment, I doubt I'd be terrifically pleased to find Mr Maddox and his fellow travellers' putting words in my mouth, misrepresenting my judgments, and trying to pull me into their political battles. 

Whatever you make of the wisdom or folly of the Named Persons schemes, whatever you make of its flaws or the flaws of the government which sponsored it, we ought to be able to agree on this. Having read this passage, only an idiot could conclude the Court was "likening SNP run Scotland to a totalitarian regime." Only a determined charlatan could tell the public that Lord Hodge was "blasting the named persons scheme as 'totalitarian.'" 

For shame.


  1. I got myself in a bit of a tizzy about this too:


  2. What annoyed me most was the "totalitarian" reference was not in the press briefing only the full judgement text. Meaning journalists had to search for it. This was no error or lazy journalism it was deliberate propaganda.

  3. Meanwhile, the Investigatory Powers Bill that will make mandatory a complete retention of everyone's browsing and communications history sails on, without the press calling it "totalitarian".

  4. They are getting desperate. Mayhaps they sense that the tide is rising and will not turn for them.

  5. Ironically their "epistemic nihilism" is the way to totalitarianism eg intellectually corrupt GOP has paved the way for Trump https://twitter.com/chrislhayes/status/758036641986580480.


  6. It's like punching smoke, isn't it?
    On occasion you get to connect with a Carmichael chin, only for the media to prop them up, arms dragged triumphantly in the air, as their knees sag and bloody drool hangs from a slackened mouth...

  7. Have another bottle of chilled Rosé, this evening, on me.


    ps Hi Conan, were you in Glasgow today or your local coven?

  8. Why do you attribute para 73 to Lord Hodge? Isn't the entire judgment headed: "LADY HALE, LORD REED AND LORD HODGE: (with whom Lord Wilson and Lord Hughes agree)"?

  9. It is the dishonesty of such debate that I find so annoying. And, it is not just an the unionist side of the argument. It can be as much on the 'progressive' side as on the 'reactionary'. It does none of us any good, and yet it is what so much of the media and parliamentary discourse comprises. That, and cavilling, such as in the preceding comment. Yet these same people, many of them, recognise the nuances and can present insightful reports. So, why do they not do it as standard practice?

  10. BleP

    Alas no.
    If I had went I'm sure the BBC would have noted it and adjusted their estimate upwards accordingly, as they were counting the gathering on the digits of a one armed eunuch.
    Did you note how the George Square webcam went offline just as the march was entering the square, and went online again after they had all left?

  11. Sorry to be pedantic but how does a reference in 1925 use the word "totalitarian"? I thought the word or description only dated from about 1924 in the writing of an academic and wasn't understood and in wide use even among the educated population till the late 1930s. I mean nobody would have known what he meant or even where to look the word up.

  12. Tamas,


  13. Tamas,


    The things we have to learn to get independence!

  14. This is the "Free" press at work: free to lie, free to demonise, free to misrepresent, free to character assassinate. That's not my idea of a "free" press. Maybe the press should be less "Free"? I would have a citizen's panel adjudicate on complaints from the public and the sanction would be no publication for several days.

  15. Hi Andrew, I would like to ask you for a piece of advice on Scottish law ,is there an email address I can contact you through.

    1. See the sidebar of the blog for my contact details.

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