Big Brother, or benign assistance?

It is not often that a seismic event occurs in the field of child law. On 28 July, such an event occurred, as the Supreme Court issued its judgment in The Christian Institute v Lord Advocate [2016] UKSC 51. The judgment was heralded in the press and on social media as a damning indictment on the Scottish Government’s “named persons” scheme, constructed in part 4 of the Children and Young People (Scotland) Act 2014. Many of us will have read the headlines and heard the soundbites, but what does the judgment actually mean from a legal perspective?

Put briefly, the Supreme Court recognised the benign, positive intent of the proposed scheme but ruled that parts of part 4 are unlawful.

Section 19(1) defines the scheme as follows: “‘named person service’ means the exercise of making available, in relation to a child or young person, an identified individual who is to exercise the functions in subsection (5)”.

Subsection (5) details the functions of the named person as: “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”.

It is these provisions that appear to have caused most controversy. While few would challenge the legitimacy of the primary aim of the legislation, which was to address the issues raised in child protection inquiries in those cases in which the system has failed to protect children and young people adequately, the proposed scheme has been the focus of widespread scrutiny. Opponents have tended to focus on the resources needed to implement it, and what was described in the Faculty of Advocates’ executive summary on the legal effects of the proposed bill and its coherence with other aspects of the law, as: “a potential platform for interference with private and family life in a way that could violate article 8 of the European Convention on Human Rights”.

The Supreme Court judgment echoed that concern. The three main heads of challenge, and ruling, can be summarised as follows.

1. The reserved matters challenge

This argument focused on the lawfulness of the data sharing and retention provisions of the 2014 Act (particularly ss 26-27, but also s 23(3)), on the ground that they relate to reserved matters, with the consequence that s 29(2)(b) of the Scotland Act 1998 applies and the provisions are therefore outside the competence of the Scottish Parliament. The court had to determine whether the provisions related to the subject matter of reserved matters, namely the Data Protection Act 1998 (“DPA”) and EC Directive on data protection.

It was not persuaded that the provisions of part 4 did so relate. It considered that the fact that a provision of an Act of the Scottish Parliament (“ASP”) requires or authorises the disclosure of personal data does not mean that the provision is outside legislative competence: s 35(1) together with s 70(1) of the DPA envisaged that the disclosure of personal data may be required by an enactment comprised in an ASP, and it could not be argued that the Scotland Act could be interpreted as meaning that an enactment “relates to” the subject matter of the DPA and is therefore outside the powers of the Scottish Parliament, merely because it requires or authorises such disclosure. Further, whether a provision “relates to” a reserved matter was determined by reference to its purpose. The court considered that although part 4 did contain provisions whose objective was to ensure that information relating to children was shared, that objective was not truly distinct from the overall purpose of promoting their wellbeing (but rather was consequential upon it).

It also considered that part 4 did not detract from the regime established by the DPA and the directive. This part of the challenge was not upheld.

2. The human rights challenge

This arm focused on arguing that the compulsory appointment of a named person breached the rights of the parents to respect for private and family life, home and correspondence under article 8. The broader challenge was that the compulsory appointment of a named person to a child breaches the parent’s article 8 rights unless the parent has consented to the appointment, or the appointment is necessary to protect the child from significant harm. The narrower challenge focused on ss 26-27 and the sharing of information about a child.

The court held that the provisions of part 4 did engage article 8; the operation of the information sharing provisions interfered with the rights protected by article 8; and those provisions as currently drafted did not meet the article 8 criterion of being “in accordance with the law”. Due to the legal rules being obscured by the complex interrelationship between the 2014 Act, the DPA, the directive and the (non-binding) revised draft statutory guidance (“RDSG”), there was an issue of the measures not being accessible to, and their effects not being foreseeable by, the person concerned.

Further, there was a lack of safeguards that would enable the proportionality of an interference with article 8 rights to be adequately examined. There was no requirement to obtain the views of the child/young person or their parent(s) in relation to a service provider’s discretionary power to share information under s 26 as currently drafted, and no requirement to inform the parent(s) about the sharing of information. It was thought by the court to be perfectly possible that confidential information concerning a child could be disclosed under s 26 without either the child or parent(s) knowing, or an objectively compelling reason for the failure to obtain and have regard to their views.

The court went on to hold that the interference and the overriding of confidentiality without consultation with the child or parent(s) which was possible under s 26(8) was likely often to be disproportionate having regard to the legitimate aim pursued.

It set out that, in order to reduce the risk of disproportionate interference, there was a need for guidance to the information holder on the assessment of proportionality when considering whether information should be provided: particularly, the circumstances in which consent should be obtained, could be dispensed with and, if consent was not to be obtained, whether the affected parties should be informed of the disclosure either before or after it occurred. Also relevant was whether the recipient was subject to sufficient safeguards to prevent abuse; and if the guidance was to operate as “law” for the purposes of article 8, the information holder should be required to do more than merely have regard to it.

3. EU data protection challenge

The appellants also challenged the information sharing provisions on the grounds that they were incompatible with EU law (articles 7, 8, 14 and 33 of the Charter of Fundamental Rights of the European Union), through the sharing of personal data without consent or strict necessity.

Insofar as the DPA allowed the 2014 Act to authorise the disclosure of non-sensitive personal data which were not subject to a duty of confidentiality, and insofar as the challenge related to the overriding of confidentiality of personal data, the court held that there was no additional incompatibility with EU law beyond that in relation to article 8. While there was no provision enabling a parent or child to seek the removal of information from the database once the data were no longer needed, the data retained in the exercise of powers conferred by the 2014 Act were subject to the fifth data protection principle in part 1 of sched 1 to the DPA.

Effect of the ruling

In summary, the court concluded that the information sharing provisions of part 4:
(a) did not relate to reserved matters (DPA or directive);
(b) were incompatible with rights of children, young persons and parents under article 8 because they were not “in accordance with the law”. Part 4 was not within the legislative competence of the Scottish Parliament;
(c) might in practice result in a disproportionate interference with the article 8 rights of children and their parents through the sharing of private information; and
(d) were not incompatible with EU law, beyond their incompatibility with article 8.

The court held that it was not possible to remedy the defects by reading down s 101 of the Scotland Act (i.e. by reading the 2014 Act as narrowly as was required for it to be within competence), nor was an amendment of the RDSG sufficient to get round the problem or to prevent disproportionate interference with article 8 rights. It would be necessary to address the lack of clarity as to the relationship between the various pieces of legislation.

It also considered that the Act, subordinate legislation or binding guidance should set out the circumstances in which consent should be sought or dispensed with. In short, changes were required to improve accessibility to legal rules and to provide the appropriate safeguards so that the proportionality of an interference could be challenged and assessed.

What next for the named persons scheme?

The Scottish Government has indicated that it does not intend to abolish the named persons scheme, but will propose amendments to address the concerns raised in the judgment, which contains guidance as to how the defective provisions of part 4 could be approached.

Section 102(2)(b) of the Scotland Act provides that where an ASP or any part thereof is not within legislative competence, the court may make an order suspending the effect of its decision for any period and on any conditions to allow the defect to be corrected. The Supreme Court has given the parties 42 days to produce written submissions on the terms of an order under s 102(2)(b), to allow the Scottish Parliament the opportunity to correct the defects identified.

Whether this will involve development of a higher threshold for information sharing, or a more systematic overhaul, remains to be seen. It will be interesting to see how the Supreme Court responds.