Named Person Every Child (Scotland) Supreme Court Judgment

On July 28th 2016 the Supreme Court allowed an appeal against the Named Person scheme for children in Scotland. The full judgment is here.

On August 9th a letter stated how the measures would be formally delayed. AUGUST 26TH the Scottish Government has published statutory instruments [Link 1  Link 2   Link 3 ] which officially halted the intended implementation date of August 31st.

On September 8th John Swinney told MSPs that there would be a three month period of “intense engagement” saying “we will take input from practitioners as well as parents, charities as well as young people”  with the aim of having an amended Named Person scheme in place by August 2017.

Commentary/critique  here, added September 23rd 2016, Elaine Sutherland, Law Society Scotland

There has been no further news about how families can give feedback.

There have been various different interpretations of what the Supreme Court ruling means.

Stuart Rodger, July 28th  (“The ruling from the Supreme Court branded some parts of the scheme inconsistent with UK and EU law with regard to data and human rights, meaning it now cannot fully come into force on 31 August as originally intended.”)

Allan Norman, July 30th (“Simply put: positive state duties to protect families cannot metamorphose into positive state rights to direct families.”) 

Allan Norman, August 3rd (“the new scheme must incorporate the very changes that the appellants insisted were necessary, and that starting with a scheme that has been ruled to breach human rights, and tweaking it as little as possible so that it just crosses the line into “lawful” territory is not an approach to inspire confidence in the good intentions of the legislature towards children’s rights.”) 

The issue for the Supreme Court was about the legitimacy of information sharing and data processing for the purpose of “wellbeing” when there was no known risk of significant harm to the child. 

The Supreme Court said that any future guidance must make it clear to parents that the Named Person scheme is VOLUNTARY

The Supreme Court also said that “The central problems are the lack of any requirement to obtain the consent of the child, young person, or his or her parents to the disclosure, the lack of any requirement to inform them about the possibility of such disclosure at the time when the information is obtained from them, and the lack of any requirement to inform them about such disclosure after it has taken place” 

Paragraph 106 of the Supreme Court judgment is key:

106.          In summary, we conclude that the information-sharing provisions of Part 4 of the Act (a) do not relate to reserved matters, namely the subject matter of the DPA and the Directive, (b) are incompatible with the rights of children, young persons and parents under article 8 of the ECHR because they are not “in accordance with the law” as that article requires, (c) may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information, and (d) are not incompatible with EU law in any way which goes beyond their incompatibility with article 8 of the ECHR. We are satisfied that it is not possible to remedy this defect by reading down the provisions under section 101 of the Scotland Act 1998. Conclusion (b) therefore means that the information-sharing provisions of Part 4 of the Act are not within the legislative competence of the Scottish Parliament.

[my emphasis]