"Named person" provisions breach article 8 rights, Supreme Court rules

Provisions of the scheme by which every child and young person in Scotland has a designated "named person" are beyond the powers of the Scottish Parliament, the UK Supreme Court ruled today.

Five judges unanimously allowed an appeal by the Christian Institute and others against the decisions of the Outer and Inner House of the Court of Session to reject their challenge to the legality of the legislation, as an interference with the rights of parents to private and family life under article 8 of the European Convention on Human Rights.

Under part 4 of the Children and Young People (Scotland) Act 2014, named persons are to exercise the functions of advising, informing or supporting children or their parents, helping them access a service or support, and discuss or raise matters about them with a service provider (such as health boards and local authorities) or relevant authority (such as the NHS or police). It intends to mark a shift away from intervention after a risk to welfare has been identified, to an emphasis on early intervention to promote wellbeing, with better collaboration among different authorities. The Act was considered by the court along with revised draft statutory guidance.

The appellants, four registered charities with an interest in family matters, and three individual parents, challenged the powers of the Parliament in relation to part 4 as it related to reserved matters due to its impact on data protection legislation. Further, they argued that part 4 was incompatible with article 8 of the Convention and EU law, on the broad basis that compulsory appointment of a named person without parental consent amounted to a breach of the parents’ article 8 rights, and on the narrow basis that its information sharing provisions amounted to breaches of parents’ and children's article 8 rights.

Accessibility

Deputy President Lady Hale, Lord Wilson, Lord Reed, Lord Hughes and Lord Hodge found against the appellants on the reserved matters argument and also ruled that the provisions pursued legitimate policy aims, but upheld the article 8 challenge on the narrower basis.

In a joint judgment by Lady Hale, Lord Reed and Lord Hodge, the court said as respects the reserved matters challenge that the current thresholds for disclosure of data without the subject's consentwere higher than those in the 2014 Act. However the effect of part 4 on the requirements of the Data Protection Act was "extremely complex" and had not been fully discussed at the hearing. The interaction of the diferent provisions created a "logical puzzle"; but it was clear that the powers and duties of disclosure under part 4 could not be taken at face value and in several respects, they were significantly curtailed by the Data Protection Act and Directive. The objective of part 4 was that of promoting the wellbeing of children and young persons and not that of sharing information; it did not detract from the data protection regime and therefore did not “relate to the subject-matter” of the Data Protection Act and Directive for the purposes of the Scotland Act.

"To the extent that part 4 of the 2014 Act affects the way in which the data protection regime... applies to matters falling within its scope, that possibility is contemplated by the [Data Protection Act] itself, in s 35", the judges commented. The reserved matters challenge therefore could not succeed. 

As regards article 8, the judges observed that due to an intervention by the Community Law Advice Network, there had been more focus on article 8 in the present appeal than there had been before the Court of Session.

In the context of the 2014 Act, the interests protected by article 8 included both family life and privacy, and the operation of the information sharing provisions of part 4 would result in interferences with those interests.

In order for that interference to be “in accordance with the law” for the purposes of article 8(2), the measures had not only to have some basis in domestic law but also to be accessible to the person(s) concerned and foreseeable as to their effects. Rules therefore had to be formulated with sufficient precision to give legal protection against arbitrariness, and in assessing the legality of part 4, regard had to be had to the guidance.

There were difficulties in accessing the relevant rules for information sharing. An information holder would need to read together and cross refer between part 4, the Data Protection Act and the Data Protection Directive in order to work out the priority of their provisions. "Of even greater concern" was the lack of safeguards to enable the proportionality of any interference with article 8 to be adequately examined. For example, information, including confidential information concerning health issues (for example as to contraception, pregnancy or sexually transmitted disease), could be disclosed to a wide range of authorities without either the child or young person or their parents being aware of the interference with their article 8 rights, and in circumstances in which there was no objectively compelling reason for the failure to inform them. Accordingly, as currently drafted, the information sharing sections of part 4 and the guidance did not satisfy the requirement of being “in accordance with the law”.

Proportionate?

As regards proportionality, in assessing whether the operation of part 4 would give rise to interferences with article 8 which were disproportionate having regard to the legitimate aim pursued, it was necessary to distinguish between the Act and its operation in individual cases. As regards the legislation itself, it was "obvious" that part 4 pursued legitimate policy aims, and it was "rationally connected to the legitimate aims pursued". Allowing the legislature the appropriate margin of discretion, the limitation on the fundamental lright was a reasonable one for the legislature to impose: if, as the appellants argued on their broad challenge, a named person should be appointed only with consent, or if necessary to protect a child at risk, the scope for early intervention and for coordination of public services would be diminished.

However, the judges continued, the operation of part 4 might well give rise to "disproportionate interferences" in particular cases. First, 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, and that their 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.

Secondly, the information holder would have to address difficult questions of proportionality in relation to the disclosure of confidential information with the help of only the guidance, which was limited, and the part 4 criteria, which set too low a threshold for overriding duties of confidentiality. There was therefore a need for clear guidance to information holders as to how to assess proportionality when considering whether information should be shared.

The judges added that there was no additional issue raised by the EU law challenge.

As for remedy, "changes are needed both to improve the accessibility of the legal rules and to provide safeguards so that the proportionality of an interference can be challenged and assessed. The reconsideration of the terms of the Act and the [guidance] also provides an opportunity to minimise the risk of disproportionate interferences with the article 8 rights of children, young persons and parents. Consideration of these matters will involve policy questions which are the responsibility of the Scottish ministers and the democratic legislature".

The court invited written submissions, within 42 days, as to the terms of the order to be made under s 102 of the Scotland Act, in order to give the Scottish Parliament and Scottish ministers an opportunity to address the matters raised. The defective provisions of part 4 will not be able to be brought into force. 

Commitment reaffirmed

Reacting to the judgment, Deputy First Minister John Swinney said he welcomed the fact that the attempt to scrap the named person service had failed.

“The Supreme Court has stated that the aim of the legislation, in promoting and safeguarding the wellbeing of children and young people, is ‘unquestionably legitimate and benign’", he commented. "It makes clear that the principle of providing a named person to support children and families does not breach human rights.

“The court’s ruling requires us to provide greater clarity about the basis on which health visitors, teachers and other professionals supporting families will share and receive information in their named person role. We will start work on this immediately so we can make the necessary legislative amendments. The service will be implemented nationally at the earliest possible date.

“Ministers remain absolutely committed to the named person policy, developed over several years in consultation with a wide range of individuals and organisations working across Scotland to support children and families. We will work closely with local authorities, health boards and other key public service partners to ensure that those performing the role have the support and guidance they need ahead of implementation.”

Elaine Motion of Balfour+Manson, the solicitor who acted for the appellants, described the judgment as "highly significant and extremely unusual", as successful challenges to legislation were very rare.

She commented: "The action was brought as there was an important public interest issue with a real strength of feeling about the potential impact of the named persons scheme across Scottish society. That meant it was right to take the case all the way to the Supreme Court.

"The legal issues were undoubtedly very complex, but put simply, the Supreme Court has decided that the named person scheme, as it stands, breaches article 8 of ECHR... In layman's terms, the Supreme Court has said that the Scottish Government has overstepped the line drawn by article 8 to protect and respect private and family life.

"The Supreme Court has decided that the information sharing details of the named person scheme were not in accordance with law as they were lacking in the necessary precision to give protection against arbitrary interference. That was incompatible with article 8.

“In addition, the court identified a central problem of the lack of required consent before sharing such information."

Click here to access the judgment.