Scottish Government ‘Named Person’ scheme blocked by Supreme Court

By The Press Association28th July 2016News ScotlandChild Protection, Childrens Services, Courts / Justice, Named Person Scheme, News Scotland

Campaigners have won a challenge at the UK’s highest court against the Scottish Government’s proposals to appoint a named person for every child.

The scheme was approved by Holyrood as part of the Children and Young People (Scotland) Act 2014, but an appeal against it was mounted by four charities and three individuals.

Under the measure, a single point of contact, such as a teacher or health visitor, would be assigned to look out for the welfare of children under 18.

The named person is required to exercise statutory functions, including providing advice, information or support where appropriate to promote, support or safeguard the wellbeing of the child or young person.

Scottish ministers say the service will act as a safety net to help families and children if they need it while opponents argue the move breaches the human rights of parents.

Five Supreme Court justices, sitting in London on Thursday, allowed an appeal brought by those opposed to the scheme following a hearing in March.

The court ruled that information sharing provisions proposed under the 2014 Act may result in disproportionate interference with Article 8 rights under the European Convention on Human Rights – the right to a family and private life.

As presently drafted they risk breaching important regulations protecting privacy and confidentiality.

The Supreme Court has given the Scottish Parliament and Scottish ministers “an opportunity to address the matters raised in the judgment”.

The justices ruled that “in the meantime”, as the “defective provisions” under the 2014 Act “are not within the the legislative competence of the Scottish Parliament, they cannot be brought into force”.

Campaigners described the ruling as “historic”, saying the implications could be “far-reaching and not just within Scotland”.

The Christian Institute co-ordinated the successful legal action and director Colin Hart said after the decision was announced: “We all accept the good intentions behind this law but a universal data-gathering scheme like this was always going to cause major problems.

“We are very happy with today’s ruling, which vindicates what we and others have been saying for years.

“The court even invoked the spectre of totalitarian regimes in its criticism of the plans. This is a devastating blow for the Scottish Government which sought to brush off all criticism of its named person scheme as ‘scaremongering’.”

He added: “The Supreme Court cited international human rights laws that protect the family and concluded ‘Within limits, families must be left to bring up their children in their own way’.

“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.”

He said: “Today’s ruling will come as a great relief to millions of people. Innocent Scottish families no longer have to wonder whether police, health and education officials are legally allowed to pass around sensitive medical data and family histories behind their backs. They are not.

“This ruling is crystal clear that the named person scheme’s cavalier approach to handling private information is unlawful and must not happen.

“The ruling protects families all across the UK from unwarranted invasion of their privacy by the state. We urge local and national government agencies to read the ruling carefully and amend their policies and practices to ensure they properly respect the privacy and autonomy of innocent families.”

Elaine Motion, an expert in civil liberties and human rights with Edinburgh-based legal firm Balfour+Manson, who represented the Christian Institute and six other petitioners who challenged the scheme, said: “This is a highly significant and extremely unusual judgment. Successful challenges to legislation are very rare.

“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 person 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 – and is therefore beyond the legal competency of the Scottish Government.

“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.”

In terms of what happens next, she said: “The Supreme Court has invited the Scottish Government to respond with proposals on how the legislation might be amended to make it compatible with Article 8 – within 42 days.

“The remainder of the Children and Young People (Scotland) Act 2014 is unaffected by this challenge, which relates purely to the named person scheme element of the legislation.”

Deputy First Minister John Swinney said: “I welcome the publication of today’s judgment and the fact that the attempt to scrap the named person service has failed.

“The Supreme Court has stated that the aim of the legislation, in promoting and safeguarding the well-being of children and young people, is ‘unquestionably legitimate and benign’.

“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.”

The Supreme Court ruling was drawn up by deputy president Lady Hale, Lord Reed and Lord Hodge, with two other justices – Lord Wilson and Lord Hughes – agreeing with their conclusions.

The justices said: “Different upbringings produce different people.

“The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world.

“Within limits, families must be left to bring up their children in their own way.”