SPICe has published briefing on Named Person judgment

Date: 24th August 2016
Category: Protection of privacy
Author: Scottish Parliament

This briefing by SPICe (the Scottish Parliament Information Centre) summarises the Named Person judgement, the parliamentary passage of the legislation and looks briefly at other Scottish Parliament legislation that has been challenged in the courts.

Executive summary

A Supreme Court judgement has found that the information sharing provisions in relation to the Named Person Service in Part 4 of the Children and Young People (Scotland) Act 2014 (the 2014 Act) are outwith the legislative competence of the Scottish Parliament. Part 4 of the 2014 Act is not yet in force. It is due to come into force on 31st August.

The Scottish Government has said that:

"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." (Scottish Government 2016).

Many local authorities and health boards currently operate a non-statutory Named Person scheme as part of their approach to 'Getting it right for every child.' The court judgement does not apply to these policy-based schemes. It is the statutory scheme, not yet in force, that the court judgement applies to.

Article 8 of the European Convention on Human Rights protects children and families against unjustified interference by the state. One of the requirements relates to the clarity of the legislation - people need to know what they are allowed to do. The Court found that the information sharing provisions were not clear enough because of the complicated way that they relate to data protection law. As a result, they were not 'in accordance with the law.'

The Court found that, apart from the information sharing provisions, the Named Person statutory scheme could be operated in a way that met human rights requirements. However, there was a risk that there might be breaches in practice in relation to information sharing.

It is not for the Court to suggest policy, but they did say that the 2014 Act needs greater clarity about how it relates to the law on data protection and that either binding guidance or subordinate legislation should be introduced to guard against human rights breaches in individual cases.

Parties were given 42 days to make written submissions to the Court. The Court may then decide whether a s.102 Order is required to suspend the effect of the judgement to give time to remedy the defects in the legislation.

Two other Acts of the Scottish Parliament have had provisions struck down by the Courts. In both cases, the relevant provisions were already in force.

- Agriculture Holdings (Scotland) Act 2003

- Criminal Justice and Licensing (Scotland) Act 2010

There is an ongoing challenge to the Alcohol (Minimum Pricing) (Scotland) Act 2012, which is currently at the Court of Session.