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Scottish ‘named persons’ scheme is unlawful, decides the Supreme Court

Scottish government remains committed to the legislation

The Supreme Court has unanimously determined that the Scottish 'named person' legislation is incompatible with the European Convention on Human Rights and cannot be brought into force in its present form.

In The Christian Institute and others v The Lord Advocate (Scotland) [2016] UKSC 51 the Supreme Court unanimously allowed the appeal. The Court has 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 Children and Young People (Scotland) Act 2014 ("the 2014 Act"), as currently drafted, makes provision for a named person service ("the NPS") in relation to children and young people ("C&YP") in Scotland. The NPS establishes the new professional role of the "named person", and envisages that all C&YP in Scotland will be assigned a named person. The NPS aims to achieve two policy aims: first, a shift away from intervention by public authorities after a risk to welfare has been identified, to an emphasis on early intervention to promote wellbeing. Secondly, moving from a legal structure under which the duties of statutory bodies to cooperate were linked to the performance of their individual functions, to one which ensures that they work collaboratively and share information in order to support wellbeing. The 2014 Act is supplemented by revised statutory guidance ("the Guidance"), which is still in draft. Part 4 of the Act provides that named persons will exercise certain functions in relation to C&YP. These include: (a) advising, informing or supporting them or their parents; (b) helping them or their parents access a service or support; and (c) discussing or raising a matter about them with a service provider (e.g. health boards and local authorities) or relevant authority (e.g. the NHS and Scottish Police Authority).

The appellants – four registered charities with an interest in family matters, and three individual parents – challenged Part 4 of the 2014 Act by way of judicial review on the basis that it is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998 ("the Scotland Act") because: (a) it relates to matters which are reserved under the Scotland Act to the UK Parliament ("the Reserved Matters Challenge"); (b) it is incompatible with rights under the European Convention on Human Rights ("the ECHR Challenge"); and/or (c) it is incompatible with EU law ("the EU Law Challenge"). The appellants' challenges were dismissed in both the Outer House and the Inner House of the Court of Session. They now appeal to the Supreme Court.

The Supreme Court decided against the appellants in respect of the Reserved Matters Challenge.

However, the ECHR Challenge and the EU Law Challenge (insofar as it mirrored the ECHR Challenge) were successful. In the context of the 2014 Act, the interests protected by Article 8 include 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 must not only have some basis in domestic law but also be accessible to the person(s) concerned and foreseeable as to their effects. The Court concluded that, as currently drafted, the information sharing sections of Part 4 and the Guidance do not satisfy the requirement of being "in accordance with the law".

John Swinney, Scotland's Deputy First Minister, responded to the judgment:

"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."

The Christian Institute said:

"This is a devastating blow for the Scottish Government which sought to brush off all criticism of its Named Person scheme as 'scaremongering'.

"This strong endorsement of family autonomy will be welcomed by families all across the UK, including Christian families, who sometimes sense a creeping intolerance from government officials."

The judgment is here. The official summary is here.