Human rights challenge against ‘named person’ legislation refused by appeal judges

Four charities and three individuals contended that provisions in the Children and Young People (Scotland) Act 2014 passed by the Scottish Parliament were “incompatible” with the European Convention on Human Rights and EU data protection law, and hence beyond the legislative competence of the Scottish Parliament.

However, the Lord Justice Clerk, Lord Carloway, sitting with Lord Bracadale and Lord Malcolm, upheld a decision to refuse a petition for judicial review of the legislation introduced by the Scottish Ministers.

In January 2015 Lord Pentland held that the named person service provisions contained in Part 4 of the 2014 Act did not contravene the European Convention, EU law on data protection or fundamental common law rights, and that the subject matter was “within the devolved competence”of the Scottish Parliament.

However, the petitioners – (First) The Christian Institute, (Second) Family Education Trust, (Third) The Young Me Sufferers (“Tymes”) Trust, (Fourth) Care (Christian Action Research And Education), (Fifth) and (Sixth) James and Rhianwen Mcintosh, and (Seventh) Deborah Thomas – appealed.

They argued that the automatic naming of a person to be allocated to each child – without the consent of the child or parent and without any assessment of need – interfered with the Article 8 right to respect for a person’s private and family life and for the integrity of the home. They argued that the provisions interfered with parents’ rights to determine, in accordance with their conscience and religion, the welfare and upbringing of their children, in terms of Article 9 and Article 2 of Protocol 1.

The petitioners submitted that the scheme was not “in accordance with law” since it lacked transparency, accessibility and predictability, and that it amounted to an “arbitrary interference” by the State.

The petitioners also contended that the sections of the 2014 Act which deal with the sharing of information were incompatible with the requirement of the European Parliament and Council Directive on Data Protection, as read and applied in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union. For this reason also the provisions were ultra vires of the Scottish Parliament.

The petitioners further argued that the information sharing provisions ran contrary to the Data Protection Act 1998 and related to reserved matters – i.e. data protection – in terms of the Scotland Act 1998 and thus, once again, were ultra vires of the Parliament.

The interveners, Community Law Advice Network (Clan Childlaw) – who applied and were granted for leave to intervene in the case in the “public interest” – were concerned only with the extent to which the information sharing provisions were compatible with children’s rights under Article 8 of the European Convention.

Refusing the appeal based upon the Article 8 right to respect for a private and family life, the judges observed that all that the legislation does, and is intended to do, is “…to provide for every child and his or her family a suitably qualified professional who can, if necessary, act as a single point of contact between the child and any public service from which the child could benefit”.

Delivering the opinion of the court, the Lord Justice Clerk said: “The mere creation of a named person, available to assist a child or parent, no more confuses or diminishes the legal role, duties and responsibilities of parents in relation to their children than the provision of social services or education generally. It has no effect whatsoever on the legal, moral or social relationships within the family. The legislation does not involve the state taking over any functions currently carried out by parents in relation to their children.”

The challenges under Article 9 and Article 2 of Protocol 1 also failed, as the court held that the 2014 Act contained ”no colourable interference, or even potential interference” with a parent’s or child’s right to freedom of thought, conscience and religion, and that the legislation contained “no provision which bears upon a child’s right to education or his parent’s right to bring up a child according to his conscience and religion”.

If the scheme was seen as interfering with Convention rights, the court considered that such interference is in accordance with the law, has a legitimate aim and is necessary in a democratic society in the interests of, amongst other things, public safety, the prevention of crime, the protection of health or morals or of the rights of others.

The court held that the scheme has the appearance of “achieving a balance” in which the advantages of early detection of potential welfare issues involving a child “outweigh” any adverse effect of the measure on the Convention rights of parents and children generally.

The challenges to the information sharing and disclosure provisions in the Act were also rejected.

Lord Carloway said: “The 2014 Act makes it clear to all those concerned that information may be shared between service providers in certain defined circumstances; notably if it is necessary or expedient to enable a named person to carry out his or her statutory functions. These functions are clearly set out and involve, broadly stated, advising the child or young person and helping him or her to access the correct service or support and raising a matter concerning the child with a service provider or relevant authority.”

The court further held that the 2014 Act did not encroach upon reserved matters, stating: “Its pith and substance is child protection.”

On the issue of standing, however, the court disagreed with the conclusion of the Lord Ordinary that the first to fourth petitioners, the four charities, had no standing to bring the present proceedings.

The standing of the fifth to seventh (individual) petitioners to bring the proceedings was conceded, but the Lord Ordinary held that first to fourth (institutional) petitioners lacked “sufficient interest” entitling them to seek judicial review of Part 4 of the Act.

However, the appeal judges considered that, applying the “broad tests” set out by the UK Supreme Court, they did have standing “in general” to challenge the legislation.

“It was appropriate that interest groups, who showed sufficient interest in the subject matter, should be permitted to assist with the proper development of public law and to call public authorities to account,” the Lord Justice Clerk added.