The UK's highest court has said the Scottish Government's Named Person scheme would be in breach of European human rights laws
The Scottish Government’s Named Person scheme would breach the rights to privacy and family life under European human rights laws, the UK’s highest court has ruled.
Law lords at the Supreme Court in London has given the Scottish Government 42 days to rectify the legislation so that it does not breach Article 8 of the European Convention of Human Rights.
The court found the principle of creating a named person to support every child in Scotland is “legitimate and benign” and not in controvention of EU laws. However it ruled against elements of the law in relation to data sharing information on young people and their families across a range of agencies.
The named person scheme proposes every child in Scotland is allocated a single contact, usually a health worker or teacher, to look after their interests throughout their childhood.
This is a highly significant and extremely unusual judgment. Successful challenges to legislation are very rare - Elaine Motion, human rights lawyer
The appeal was brought by the No to Named Persons (NO2NP) campaign group, which has vociferously argued against the scheme, which was voted in by MSPs as part of the Children and Young People Act 2014 and was due to come into effect next month.
However, the Scottish Government and a range of children’s charities have argued that the Named Person scheme is designed to protect young people, giving them and their parents a single contact to go to if and when problems arise.
Deputy First Minister John Swinney responded to the ruling by pledging to work with key public services and children’s charities to ensure the roll-out goes ahead.
He welcome that the court ruled in favour of the legislation in principle and agreed it is compatible with EU law.
Swinney said: “The Supreme Court has stated that the aim of the legislation, in promoting and safeguarding the wellbeing of children and young people, is ‘unquestionably legitimate and benign’. It makes clear that the principle of providing a named person to support children and families does not breach human rights.
“The court’s ruling requires us to provide greater clarity about the basis on which health visitors, teachers and other professionals supporting families will share and receive information in their named person role.
“We will start work on this immediately so we can make the necessary legislative amendments. The service will be implemented nationally at the earliest possible date.”
Over two days in March this year, NO2NP, which includes the Christian Institute, the Tyme Trust and Family Education Trust, tried to convince the Supreme Court that the legislation would lead to “unjustified and unjustifiable state interference with family rights”
Scotland’s Court of Session has previously dismissed this argument, claiming the legislation did not diminish the role of parents and had “no effect whatsoever on the legal, moral or social relationships within the family.”
Elaine Motion, an expert in civil liberties and human rights with Edinburgh-based legal firm Balfour+Manson, represented The Christian Institute and six other petitioners who challenged The Scottish Government in The Supreme Court.
She said: "This is a highly significant and extremely unusual judgment. Successful challenges to legislation are very rare.
"The action was brought as there was an important public interest issue with a real strength of feeling about the potential impact of the named persons scheme across Scottish society. That meant it was right to take the case all the way to the Supreme Court.
"The legal issues were undoubtedly very complex, but put simply, The Supreme Court has decided that the named person scheme, as it stands, breaches Article 8 of ECHR - and is therefore beyond the legal competency of the Scottish Government. In layman's terms, the Supreme Court has said that The Scottish Government has overstepped the line drawn by Article 8 to protect and respect private and family life.
"The Supreme Court has decided that the information sharing details of the named person scheme were not in accordance with law as they were lacking in the necessary precision to give protection against arbitrary interference. That was incompatible with Article 8.
“In addition, the court identified a central problem of the lack of required consent before sharing such information."
Simon Calvert, spokesman for NO2NP, said: “We are delighted with the decision which proves our concerns, and those of the 35,000 people who signed our petition, were properly founded.
“This proposed scheme was intrusive, incomprehensible and illegal.
“This ruling means the Scottish Government has been blocked from implementing this scheme on 31 August. It must scrap its plan for state snoopers with intrusive data sharing powers. It has to go back to the legislative drawing board if it wants to try again. But they would have to come up with a much more limited scheme that actually respects the rights of children and parents.”
The Children and Young People Act 2014 was passed with cross-party support and not a single vote against, by 103 votes to zero, in the Scottish Parliament. The policy was also supported by a majority of MSPs across parties during a parliamentary vote in June.
Major children's charities welcomed the Supreme Court's characterisation of Named Person as essentially "benign" and looked forward to seeing the legislation being implimented once ammended.
Martin Crewe, director of Barnardo's Scotland, said: “We look forward to working with the Scottish Government and other stakeholders to ensure the Named Person service works effectively to support children and young people in Scotland. We are also encouraged by the court’s recognition that early intervention is a central element of the effective operation of the Named Person role.”
Jackie Brock, chief executive of Children In Scotland, said: “What is needed now is for new provisions to be redrafted to ensure they are fully in accordance with ECHR. The Scottish Government has been given 42 days to put this right.
“We are pleased that the judgment has upheld the principles of Getting it Right for Every Child and that existing implementation by local authorities and public bodies of these principles can continue.
“We call on the government to move quickly to put an end to any uncertainty.”
