Judge upholds "named persons" law

The "named person" provisions in the Children and Young People (Scotland) Act 2014 passed by the Scottish Parliament do not breach EU law or the European Convention on Human Rights, a Court of Session judge ruled today.

Lord Pentland dismissed a case that part 4 of the Act was beyond the powers of the Scottish Parliament because it conflicted with rights under the Convention and with EU law on data protection.

He also held that the four charities who brought the case, though not three individual petitioners, lacked sufficient interest entitling them to seek judicial review of the legislation. 

Part 4 of the Act establishes the framework for a scheme creating a new public service referred to as the named person service, which will be provided for every child and young person in Scotland, with certain limited exceptions. Under it, each child will have an individual, arranged by the health board for pre-school children and by the local authority for school-age children, responsible for providing advice and support to the child or a parent, and helping the child to access services, among other things.

The challenge was brought on the basis that part 4 authorises “unjustifiable state interference” with the rights of parents to determine, in accordance with their conscience and religion, the proper approach to the welfare and upbringing of their children. It was argued that any interference with these rights was only lawful if it took place either with the consent of the child or his or her parents, or if such interference could be demonstrated to be necessary, and there was no ability to opt in or out of the scheme.

Refusing the petition, Lord Pentland observed that the fact that the named person service would be provided for nearly every child and young person did not, in itself, necessarily mean that there would be a breach of Convention rights. Part 4 of the Act was not necessarily disproportionate to the legitimate aim of the legislation, which was to promote and safeguard the wellbeing of all children and young people in Scotland by establishing a system for the appointment of named persons.

"It seems to me that the petitioners' argument is flawed because it entails the imposition of undue restrictions on the legislature's freedom of choice and action", he stated. "Effectively, it amounts to reformulating and narrowing the aim of the legislation. In my opinion, it is pre-eminently a matter for the legislature to decide whether the wellbeing of children is likely to be promoted by having a near-universal system for appointing named persons."

He added: "In their attack on the aim of the legislation the petitioners, in my view, tended to overstate the likely impact of the provisions in part 4 of the Act. It is important to keep a sense of proportion and balance and not to assume that the new service will operate in a way that is inappropriately invasive or disrespectful of private and family lives. In the great majority of cases the practical effect of allocating a named person to a child or young person is likely to be minimal."

On the question whether the provisions were sufficiently precise and accessible to enable individuals to foresee how they were likely to be affected, the judge said they wwere sufficiently "transparent" that people could understand the legal framework, and it would be necessary to wait for the statutory guidance and other materials to see how the scheme was intended to operate at a practical level.

Regarding the EU, it was clear that information sharing under the Act would have to take place in accordance with established data protection principles, and there was no basis for the proposition that there would inevitably be a breach of EU law. It was unnecessary to make a reference to the European Court of Justice for a preliminary ruling.

Lord Pentland further held that the four charities – The Christian Institute, Family Education Trust, The Young Me Sufferers (“TYMES”) Trust, and Care (Christian Action Research And Education) – were not subject to any infringement of Convention rights by the Act, and were therefore not "victims" entitled to challenge it. While the court should not adopt an unduly restrictive approach, "these petitioners are not in any realistic sense directly affected by part 4 of the Act", he said.

The Scottish Government intends to bring the provisions of part 4 into force in August 2016, by which stage statutory guidance about how the service is intended to work in practice will have been consulted on and issued.

Click here to view the opinion.