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Supreme Court unanimously allows appeal against Named Person scheme

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

The Supreme Court has unanimously allowed the appeal against the Children and Young People (Scotland) Act 2012, which had been enacted by the Scottish Parliament. Under this legislation, from 31 August every child in Scotland was due to be assigned a state guardian which would monitor their ‘wellbeing’. The Court determined that the data sharing provisions of the Children and Young People (Scotland) Act 2012 breached the right to a private and family life under article 8 of the European Convention on Human Rights (ECHR). The Supreme Court unanimously struck down these provisions which were central to the scheme.

The appellants successfully argued that the legislation was outside the competence of the Scottish Parliament, under the Scotland Act 1998. The information sharing provisions did not contain sufficient privacy safeguards, and were therefore incompatible with the European Convention on Human Rights, and with corresponding provisions in EU law.

Aidan O’Neill QC who acted for the successful appellants before the UKSC and throughout this case said “The constitutional duty which is placed on the court under the devolution statutes is to police the boundaries placed on the legislative competence of the devolved legislatures.   As Lord President, Lord Rodger of Earlsferry noted in Whaley v. Watson, 2000 SC 340, IH (at 350B-C), the courts “are not dealing with a Parliament which is sovereign: on the contrary, it is subject to the laws and hence to the courts”. The devolved statutes accordingly all confer upon the courts functions which, in a bicameral Parliament, might otherwise expect to be exercised by an upper house or revising chamber. This revising role is confirmed by the “institutional dialogue” provisions of Section 102(2)(b) SA which permit the court, if so advised, to “suspend[…] the effect of the decision for any period and on any conditions to allow the defect to be corrected”. The decision of the UKSC in Christian Institute v. Lord Advocate accordingly shows the constitution working as it was intended to, and the UKSC properly fulfilling its role as a constitutional court for these islands.