Petition for judicial review of ‘named person’ legislation refused

Four charities and three individuals contended that provisions in the Children and Young People (Scotland) Act 2014 passed by the Scottish parliament were “not law”.

The petitioners argued that the provisions which will lead to the creation of a “named person” service were outside the parliament’s legislative competence, as demarcated by section 29 of the Scotland Act 1998, because they were incompatible with some rights guaranteed under the European Convention on Human Rights and with the law of the European Union on data protection.

They also claimed that the provisions were unlawful as they contravened fundamental constitutional rights protected by the common law. However, Lord Pentland (pictured) refused the petition.

The provisions challenged in the petition were contained in part 4 of the act, which establish the framework for a scheme creating a new public service referred to as the named person service, and which will be provided, by force of law, for every child and young person in Scotland, with certain limited exceptions.

The Scottish government intends to bring the provisions of part 4 into force in August 2016, by which stage statutory guidance about how the service is intended to work in practice will have been consulted on and issued.

In these circumstances, the challenge depended on the proposition that the provisions in part 4 were in themselves unlawful on the basis that they authorised “unjustifiable State interference” with the rights of children and young persons and of their parents.

The case came before Lord Pentland for a first hearing, at which the petitioners moved for decree of declarator reflecting these propositions.

The first respondent, the lord advocate on behalf of the Scottish ministers, moved for the petition to be refused on the basis that it disclosed no valid legal grounds for holding the challenged provisions to be unlawful.

Refusing the petition, Lord Pentland concluded that the petitioners’ case failed on all points.

He ruled that part 4 of the act did not contravene Convention rights, EU law or fundamental common law rights.

He observed that the fact that the named person service will be provided for (nearly) every child and young person did not, in itself, necessarily mean that there will be a breach of Convention rights.

Further, he did not believe that the provisions in part 4 of the act were necessarily disproportionate to the legitimate aim of the legislation, which is to promote and safeguard the wellbeing of all children and young people in Scotland by establishing a system for the appointment of named persons.

He also considered that it was “unnecessary” to make a reference to theEuropean Court of Justice for a preliminary ruling.

Lord Pentland concluded that the subject matter of the legislation was “within the devolved competence” of the Scottish parliament, stating that it was clear that the provisions did not relate to matters reserved to Westminster.

He further held that the first to fourth petitioners, the four charities, had no standing to bring the present proceedings as they lacked “sufficient interest” entitling them to seek judicial review of part 4 of the act.