Scotland's Named Persons Scheme: balancing children's welfare against privacy rights

Case of The Christian Institute and others v The Lord Advocate (Scotland) [2016] UKSC 51 (28 July 2016)

Summary

In a recent judgment, the United Kingdom Supreme Court unanimously blocked the introduction of the Scottish Government's Named Persons scheme (Scheme), due to its incompatibility with article 8 (right to private and family life) of the European Convention on Human Rights (ECHR). The Scheme was part of a package of child welfare measures introduced under the Children and Young People (Scotland) Act 2014 (the Act).

Prior to the Supreme Court's decision on appeal, the appellants had been unsuccessful in their opposition to the Scheme in both the Inner and Outer Houses of the Scottish Court of Session.

Facts

The Scheme
The primary objective of the Scottish Government's Scheme was to reduce cases of child abuse and neglect in Scotland. It offered every child and young person (aged 0-18) access to a nominated 'named' person to act as a general point of contact for the child or young person and their parents. Under the Scheme, this person would also monitor and promote the general wellbeing of the relevant child, with the assistance of relevant public authorities and service providers. The Scheme was said to enable a "shift away from intervention by public authorities after a risk to children's and young people's welfare had been identified, to an emphasis on early intervention to promote their wellbeing."

The "Named Person Service"

Pursuant to Part 4 of the Act, the Scheme was implemented with the assistance of a "Named Person Service" (NPS). The NPS defined the functions of a 'named' person and also provided a framework for this person, as well as authorities and service providers, to fulfil their roles and responsibilities in relation to the wellbeing of any child or young person.

The information-sharing provisions in Part 4 both imposed duties and conferred power on relevant authorities and service providers to share a broad range of information relevant to the wellbeing of a child or young person. For the purpose of determining whether information ought to be shared, these parties were to consider different factors, including whether the likely benefit to the wellbeing of the child or young person would outweigh any likely adverse effects, the views of the child and if it was necessary for the exercise of the 'named' person's functions.

Opponents claimed that the NPS undermined the right to privacy and family life and that it would allow 'named' persons to intrude upon families' homes and monitor private activities without parental consent. They also argued that it granted undue state power and influence over family life, which is private and should not be interfered with by the government.

The Supreme Court appeal

The appellants relied on section 29(1) of the Scotland Act 1998 (the Scotland Act) to challenge Part 4 of the Act. This subsection provides that an Act of the Scottish Parliament is not law so far as any provision of the legislation is outside of its legislative competence.

The appellants put forward three main arguments to challenge the Scottish Parliament's legislative competence in relation to Part 4, namely that:

1. The subject matter of the Scheme related to issues which are 'reserved matters', as defined by Schedule 5 of the Scotland Act, and therefore remain under the responsibility of the UK Parliament (section 29(2)(b) of the Scotland Act);

1. The Scheme was incompatible with article 8 of the ECHR, which provides a 'right to respect for his/her private and family life, his home and his correspondence' (section 29(2)(d)); and

1. The Scheme was incompatible with EU Law (particularly data protection and privacy rights) (section 29(2)(d)).

Decision

In contrast to the Court of Session, the UK Supreme Court unanimously held that the information-sharing provisions under Part 4 were not within the legislative competence of the Scottish Parliament due to the fact that they were incompatible with article 8 of the ECHR.

Under article 8(2) of the ECHR, a public authority can only interfere with the right to private and family life where the interference is "… in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or moral, or for the protection of the rights and freedoms of others." In order to be 'in accordance with the law', a legislative measure must have some basis in domestic law and must also be accessible to the person concerned and foreseeable as to its effects.

While the Court did not find Part 4 problematic as a whole, it did find that the information-sharing provisions were not sufficiently precise so as to be considered 'in accordance with law'. Given the imprecision of the provisions and the lack of appropriate safeguards on the information-sharing duties and powers of authorities and service providers, the Court found that the provisions could lead to disproportionate interferences with the rights under article 8 of the ECHR. For example, the Court identified a risk that parents would be under the impression that advice from a named person was mandatory and that failure to comply would be taken as evidence of risk of harm, and that there were insufficiently clear guidelines provided in the Scheme for information-holders to assess proportionality in making decisions about whether to disclose confidential information.

Overall, the Court stated that the aims of the Scheme were ‘legitimate and benign’ but ordered the Scottish Parliament to redraft Part 4 of the Act to comply with the ECHR and avoid disproportionate interferences with people's rights.

Commentary

On the one hand, the Court's decision could potentially be considered a loss for those promoting the rights and welfare of children in Scotland via the Scheme. After all, it is clear that the Scottish Parliament had good intentions when attempting to put measures in place to avoid another child abuse tragedy in Scotland. However, on the other hand, the judgment is clearly a landmark case for upholding privacy rights and reducing government intervention in Scotland, as well as emphasising the need to safeguard the rights under the ECHR.

Arguably, the Court's ultimate decision is correct because it has prevented the potential for people's human rights to be disproportionately interfered with and at the same time does not completely reject the Scheme as an overall concept. Rather, it provides recommendations for legislative reform to address the current deficiencies in Part 4 and also caters for the implementation of an improved scheme in future.

Nevertheless, the question remains whether the NPS is a desirable child welfare measure at all, given the potential human rights and privacy issues it has given rise to so far and will give rise to in future.

Despite the uncertainties above, the recent decision of the Supreme Court serves as an important reminder that where legislative measures may impede upon the right to private and family life under the ECHR, in order to be justified and 'in accordance with the law' they must sufficiently precise and appropriate in scope to safeguard against disproportionate interferences with an individual's fundamental rights.

The full text of the decision can be found here.

Josephine Gardiner is a Graduate Lawyer at DLA Piper.