Liam MacleanBackground

The Children and Young People (Scotland) Act 2014 received Royal Assent on 27 March 2014. Part 4 of the 2014 Act contains provisions for every child or young person in Scotland (bar those serving in the Armed Forces) to be allocated a ‘named person’ with a remit to promote, support or safeguard their wellbeing. In particular, a named person may:

  • advise, inform or support the child or young person, or a parent of the child or young person;
  • help the child or young person, or a parent of the child or young person, to access a service or support; or
  • discuss or raise a matter about the child or young person with a service provider or relevant authority.

In order to assist named persons in undertaking their role, Part 4 also regulates the sharing and disclosure of information between a named person and various other service providers.

A number of groups and individuals campaigned against these provisions. On 11 July 2014 a number of these groups and individuals petitioned for judicial review.

The Outer House

The Lord Ordinary refused the petition at first instance, handing down his opinion on 22 January 2015. He held that a number of the petitioners did not have sufficient standing to competently bring the petition as they had not evidenced ‘sufficient interest’ in respect of the alleged breaches of EU law and fundamental rights and did not meet the definition of ‘victim’ for the purpose of the human rights elements of the challenge as required by s100 of the Scotland Act 1998.

On the first of the petitioners’ substantive claims, the Lord Ordinary found that the named person provisions of the 2014 Act did not breach their rights under the European Convention of Human Rights (ECHR) either by Article 8 (respect of private and family life and the integrity of the home) or Article 9/Article 2 of Protocol 1 (parents’ right to determine, in accordance with their conscience and religion, the welfare and upbringing of their children). A wide degree of latitude must be granted to the legislator in the formulation of social policy and the petitioners had, in the Lord Ordinary’s opinion, at best shown that Part 4 merely created the potential for an infringement of the ECHR.

The Lord Ordinary also dismissed the petitioners’ argument that the provisions of Part 4 breached EU law data protection requirements found in Directive 95/46, read in conjunction with Articles 7 (respect of private and family life) and 8 (protection of personal data) of the Charter of Fundamental Rights. There was no justification for the petitioners’ assertion that processing data was only EU law compliant where it could be shown to be strictly necessary. In any case, any processing of data conducted in pursuit of the ‘named person’ elements of the 2014 Act would need to comply with existing UK (and, ergo, EU) data protection legislation.

Finally, the Lord Ordinary rejected the petitioners’ claim that the Act was out with the competence of the Scottish Parliament as it related to the reserved matter of data protection. The information sharing provisions of the 2014 Act were to enable the promotion and safeguarding of the wellbeing of children and young people in Scotland, thus incidental and consequential upon the main purpose of the 2014 Act which was clearly within the devolved Parliament’s area of competence.

The Inner House

On virtually all the contested issues discussed above, the Inner House agreed with the Lord Ordinary. The Inner House did, however, believe that all the petitioners had ‘sufficient interest’. It was clear that some petitioners were not ‘victims’ for the purpose of the human rights based claims, but this would have limited practical effect given that the petition was presented by all the petitioners (some of whom were ‘victims’) and there is no distinction among the petitioners in the bases of their challenge.

On the substantive grounds (breach of human rights, breach of EU law and vires of the Scottish Parliament), the Inner House upheld the Lord Ordinary’s conclusions.

Issues for the Supreme Court

The Supreme Court will hear oral arguments in this case on 8 and 9 March 2016. Three issues are listed as salient for the court:

  1. Is Part 4 of the 2014 Act compatible with fundamental common law rights and the ECHR?
  2. Are the information sharing elements of Part 4 compatible with EU law?
  3. Do the information sharing elements of Part 4 relate to reserved matters?

The court, therefore, appears to have been asked to give authoritative guidance on the same substantive issues that the Lord Ordinary and the Inner House have already ruled on. It appears, though, that the Inner House’s decision on standing is not being appealed.