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Background

The Supreme Court has upheld a challenge to the “named person” provisions of the Children and Young People (Scotland) Act 2014.

The Act makes provision to assign a “named person” to every child and young person in Scotland, as defined in s 21(1) and 22(2), respectively. Part 4 of the Act provides that named persons will exercise certain functions in relation to children: advising, informing or supporting them or their parents; helping them or their parents access a service or support; and discussing or raising matters about them with service providers such as health boards and local authorities or with relevant authorities such as the NHS and the Scottish Police Authority.

Supreme Court

In Christian Institute & Ors v Lord Advocate (Scotland) [2016] UKSC 51, the appellants sought judicial review of Part 4, averring that it was outwith the legislative competence of the Scottish Parliament under the Scotland Act 1998 because it related to matters reserved to the UK Parliament, that it was incompatible with ECHR rights and/or that it was incompatible with EU law. They had failed in both Houses of the Court of Session.

The Supreme Court [Lady Hale DPSC, Lord Reed and Lord Hodge JJSC, with whom Lord Wilson and Lord Hughes JJSC agreed]:

  • allowed the appeal on the basis of the ECHR challenge and the EU law challenge (to the extent that it mirrored the ECHR challenge); and
  • invited written submissions as to the terms of its order under s 102 of the Scotland Act in order to give the Scottish Parliament and Scottish Ministers an opportunity to address the matters raised in the judgment.

In the meantime, since the defective provisions of Part 4 of the 2014 Act are not within the legislative competence of the Scottish Parliament they cannot be brought into force.

The appellants claimed that the NPS provisions breached ECHR, art 8 (respect for private and family life), both because the compulsory appointment of a named person without parental consent breached the parents’ art 8 rights, and because the information-sharing provisions under Part 4 violated the rights both of parents and children [67-68]. In the context of the 2014 Act, the interests protected by Article 8 included both family life [71-74] and privacy [75-77], and the operation of the information sharing provisions of Part 4 would interfere with those interests [78].

In order for that interference to be “in accordance with law” for the purposes of art 8(2), the measures had not only to have some basis in domestic law but had also to be accessible to those concerned and foreseeable as to their effects and had to be formulated with sufficient precision as to give legal protection against arbitrariness [79-81]. There were difficulties in accessing the relevant rules for information-sharing and there were insufficient safeguards in relation to the proportionality of any interference with art 8 83-84]: confidential information concerning a child or young person’s state of health (such as contraception, pregnancy or sexually transmitted disease) could be disclosed to a wide range of authorities without either the young person or the parents being aware of the art 8 interference – and in circumstances in which there was no objectively compelling reason for the failure to inform them. Accordingly, the information-sharing sections of Part 4 and the Guidance as currently drafted did not satisfy the requirement of being “in accordance with the law” [85].

As to proportionality, Part 4 undoubtedly pursued legitimate policy aims and was rationally connected to those aims [91-92]. Allowing the legislature the appropriate margin of discretion, Part 4 was also a reasonable measure for it to impose in order to achieve those legitimate aims. Therefore, the appellants’ broad challenge could not succeed, because if a named person could be appointed only with parental consent, the scope for early intervention would be diminished [93]. However, the operation of Part 4 might well give rise to disproportionate interferences in particular cases:

  • There was a risk that parents would be given the impression that they had to accept advice in relation to the services offered by a named person in the exercise of the named person functions and that failure to cooperate would be taken as evidence of risk of harm. Care had to be taken to emphasise the voluntary nature of the advice, information, support and help offered by the named person [94-95].
  • The information holder would have to address difficult questions of proportionality in disclosing confidential information: the only help was the (limited) Guidance, which set too low a threshold for overriding duties of confidentiality [96-100]; and clear guidance was needed for information holders as to how to assess proportionality when considering whether or not information should be shared [101].

In relation to the EU law challenge, there was no incompatibility additional to that identified in relation to the ECHR challenge [102-105].

The Court concluded as follows:

“109. We are of the view that this court should consider making an order under section 102(2)(b) of the Scotland Act 1998 to allow the Scottish Parliament and the Scottish Ministers an opportunity, if so advised, to correct the defects which we have identified. We do not think that it is appropriate to set out the possible terms of such an order until we have received written submissions from the parties on the terms of the order, including both the period of suspension and any conditions which should be attached to the order. As was said in Salvesen v Riddell 2013 SC (UKSC) 236 (Lord Hope at para 57), if such an order is made, it may be appropriate to give permission to the Lord Advocate to return to the court for any further orders under section 102(2)(b) as may be required. The court which is best placed to make such further orders may be the Court of Session. In the meantime, since the defective provisions are not within the legislative competence of the Parliament, they cannot be brought into force.

110. We would allow the appeal and invite the parties to produce written submissions on the terms of a section 102 order within 42 days of the date of this judgment.”

Originally posted here.