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Named Person Service information sharing provision in Children and Young People (Scotland) Act 2014 contrary to ECHR and EU law

The Christian Institute & Ors v The Lord Advocate (Scotland) [2016] UKSC 51

Related Member(s):
Aidan O’Neill QC (Scot)
Related Practice Area(s):
EU Law, Human Rights, Public Law

On appeal from: [2015] CSIH 64

The Supreme Court has unanimously allowed the appeal, in a case where four registered charities with interests in family matters and three individual parents challenged the Children and Young People (Scotland) Act 2012, which made provision for a named person to be assigned to each child and young person in Scotland. The parties sought judicial review of Pt 4, in particular, which sets out the functions that such named persons were to exercise. It also sets out provisions for information sharing between the named person service provider and other relevant service providers or authorities.

The appellants argued that the legislation was outside the competence of the Scottish Parliament under the Scotland Act 1998, as it related to a matter that were reserved to the UK Parliament, it was incompatible with the ECHR and/or it was incompatible with EU law. Both the Outer House and Inner House of the Court of Session had disagreed with the appellants.

The Supreme Court did not find that Pt 4 related to matters which were reserved to the UK Parliament, as the provision for data sharing did not detract from the Data Protection Act regime and Directive, and was not distinct from the overall purpose of promoting the welfare of children and young persons, which was not a reserved matter.

However, it did allow the appeal on the basis of the ECHR challenge. It found that the Pt 4 was not in accordance with law, because it was drafted in a manner that lacked safeguards for examining whether access to private information was proportionate to the individuals’ ECHR, art 8 rights. The Supreme Court found that the legislation itself could be proportionate, as it pursued a legitimate policy aim and was rationally connected to those aims. However, the manner in which it was likely to operate risked a disproportionate interference in particular cases.

The Supreme Court also found that the scheme was incompatible with EU law, to the extent that it mirrored the ECHR challenge.

Aidan O’Neill QC was involved in this case.