Perthshire community worker Nicky MacCrimmon outlines today's Supreme Court decision on the controversial Named Person legislation and what it means
IN A monumental day for one of the Scottish Government’s flagship policies, the Supreme Court finally released its ruling on the Named Person Scheme and the Scottish Parliament’s competency to implement it under the Children and Young People (Scotland) Act 2014.
In a judgement that has seen both sides claiming victory, what exactly was the basis of the legal challenge, what has the court said and what are the implications for the Named Person scheme?
The court was asked to consider three different challenges to the legality of the scheme:
1.) Are the data sharing provisions of the scheme outwith the competency of the Scottish Parliament as Data Protection is a reserved matter to Westminster?
2.) Are the data sharing provisions of the scheme a breach of Article 8 of the European Convention on Human Rights and therefore outwith the competence of the Scottish Parliament?
3.) Are the provisions of the scheme are contrary to EU law?
The Supreme Court found that the scheme did not have any direct implications for the overall operation of the Data Protection Act 1998 and that aspect of the challenge was dismissed.
However, the court found that the data sharing provisions of the scheme did breach Article 8 and consequently, in relation to that Article 8 breach only, are contrary to EU law. Therefore, the second and third challenges were upheld and the application of the scheme held to be outwith the competence of the Scottish Parliament.
Article 8 of the ECHR relates to the protection of family life and privacy. The court ruled that the compulsory imposition of a Named Person and the low threshold for sharing confidential information could interfere with families’ and the children and young people’s Article 8 rights.
This has been taken by some politicians and social media commenters to mean that the scheme as a whole breaches human rights. However, this is not the whole story. There are a huge variety of ways in which human rights can be legitimately and legally interfered with provided that these measures are proportionate and legal.
The court found that the data sharing provisions of the scheme breached Article 8 and consequently, in relation to that Article 8 breach only, are contrary to EU law.
For the court to decide that it was legal for an individual’s Article 8 rights to be interfered with there must be a basis in domestic law – in this case the Children and Young People (Scotland) Act 2014 and, furthermore, two questions must be asked. Firstly, are the consequences of the interference foreseeable – eg. can someone modify their behaviour and reasonably expect to know that modifying that behaviour will mean their rights are no longer interfered with?
Secondly, is the guidance around the interference accessible – eg. sufficiently clear and available to the public to protect the individual from arbitrary interference with their rights?
In both cases the court found that the Scottish Government’s guidance, and that contained within the legislation, was insufficiently clear. The guidance as currently drafted fails the legal test because a child or young person could have confidential information about them shared without their knowledge and without their necessarily being a compelling reason to do so, although it should be noted there is no need for consent for that information to be shared.
It was also noted in the judgement that while there is detailed guidance for practitioners, no accessible clear guidance exists for families and the wider public.
With regards to proportionality, the court found that the scheme itself is proportionate. The Named Person scheme was described by the court as "benign" and it was recognised that the principles of early intervention, of agencies working more closely together, information sharing and the imposition of a Named Person on families, were not disproportionate measures when looking to provide better outcomes for children.
With regards to proportionality, the court found that the scheme itself is proportionate. The Named Person scheme was described by the court as "benign" and it was recognised that the principles of early intervention were not disproportionate measures when looking to provide better outcomes for children.
However, the court did have concerns that the guidance is sufficiently vague that, in the operations of the scheme, there is a danger of measures becoming disproportionate.
The court was particularly concerned that it wasn't clear enough that the guidance, support and advice from the Named Person is to be taken voluntarily by families and young people – it is not compulsory, and that the guidance does not offer sufficient advice to the information holder to allow them to make informed decisions about when information should be shared and when confidentiality should override that decision.
In conclusion, while it is clear that the Scottish Government has work to do around the guidance it is absolutely clear from the Supreme Court judgement that the Named Person scheme is proportionate, that the aims of the scheme in promoting child and family wellbeing are legitimate and that, subject to strengthening of the guidance from the Scottish Government, the scheme will be deemed to be legal and its rollout by the Scottish Government legally competent.
The court has given the Scottish Government 42 days to redraft the guidance around the scheme but has not asked for any substantive changes to the scheme itself.
The Scottish Government and several leading charities have welcomed the court’s judgement and reaffirmed that the Named Person scheme will be rolled out.
There is now just the small matter of strengthening the guidance sufficiently within the six-week window granted by the court.
The court has given the Scottish Government 42 days to redraft the guidance around the scheme but has not asked for any substantive changes to the scheme itself.
Campaigners against the Named Person scheme can rightly be pleased that their concerns about the proportionality of information sharing and the need for clarity on the scheme overall have been taken on board.
For many members of the public this addresses concerns that they had about the scheme. The Scottish Government will have to learn lessons about the quality of legislation being drafted in Edinburgh as this is not the first Act from Holyrood to be found wanting in terms of legal compliance.
However, those who wish to see the scheme scrapped in its entirety will need to take what crumbs of comfort they can from a small victory.
The Supreme Court legitimised the scheme as a whole and it seems clear now that within the year the Named Person scheme will be rolled out across Scotland.
Picture courtesy of Michael Coghlan
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