Aidan O’Neill QC: Constitution working as intended after part of Named Persons act deemed outwith Holyrood competence

Following today’s judgment from the Supreme Court that the data sharing provisions of part 4 of the Children and Young People (Scotland) Act 2014, which establishes the Named Person scheme, is incompatible with article 8 ECHR, lawyers have given their reaction.

Counsel for the appellants, Aidan O’Neill QC, of Matrix Chambers, told Scottish Legal News the decision demonstrates that the constitution is working as intended.

He said: “The constitutional duty which is placed on the court under the devolution statues is to police the boundaries placed on the legislative competence of the devolved legislatures.

“As Lord President Lord Rodger of Earlsferry noted in 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 be 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.”

Elaine Motion, chairman of 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.

“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.”

Ms Motion has been involved in the case from its outset. The Court of Session found in favour of the Scottish government. However, the judgment released today by five Justices of the Supreme Court – including Lord Reed and Lord Hodge, the two Scottish Justices - reached a different conclusion.

In terms of what happens next, Ms Motion said: “The Supreme Court has invited the Scottish government to respond with proposals on how the legislation might be amended to make it compatible with article 8 - within 42 days.

“The remainder of the Children and Young People (Scotland) Act 2014 is unaffected by this challenge, which relates purely to the Named Persons Scheme element of the legislation.”

Alison Reid, principal solicitor of Clan Childlaw said: “We are pleased that the Supreme Court recognises our concerns regarding the information sharing provisions of the act and the balance between appropriate sharing of information and a child’s right to privacy. We hope now to work with the Scottish government to find a solution to redress this balance and to protect a child’s right to privacy as well as to ensure that appropriate information sharing takes place.”

The Christian Institute director, Colin Hart, said: “The court … invoked the spectre of totalitarian regimes in its criticism of the plans. This is a devastating blow for the Scottish government which sought to brush off all criticism of its Named Person scheme as ‘scaremongering’.

“Pursuing this case through the Court of Session in Edinburgh and now the UK Supreme Court, we have incurred legal costs totalling £270,000. We expect to recover some of these costs from the Scottish government but that has yet to be resolved.

“This ruling is crystal clear that the Named Person scheme’s cavalier approach to handling private information is unlawful and must not happen.”