Scottish government’s information sharing provisions in Named Person scheme incompatible with Article 8 ECHR

The Children and Young People (Scotland) Act 2014 (“the 2014 Act”) makes provision for a named person service (“the NPS”) in relation to children and young people (“C&YP”) in Scotland. The NPS establishes the new professional role of the “named person”, and envisages that all C&YP in Scotland will be assigned a named person. The NPS aims to achieve two policy aims: first, a shift away from intervention by public authorities after a risk to welfare has been identified, to an emphasis on early intervention to promote wellbeing. Secondly, moving from a legal structure under which the duties of statutory bodies to cooperate were linked to the performance of their individual functions, to one which ensures that they work collaboratively and share information in order to support wellbeing. The 2014 Act is supplemented by revised statutory guidance (“the Guidance”), which is still in draft.

Part 4 of the 2014 Act (“Part 4”) provides that named persons will exercise certain functions in relation to C&YP. These include: (a) advising, informing or supporting them or their parents; (b) helping them or their parents access a service or support; and (c) discussing or raising a matter about them with a service provider (e.g. health boards and local authorities) or relevant authority (e.g. the NHS and Scottish Police Authority). The authority responsible for the provision of the NPS (“the NPS Provider”) changes depending on the age and circumstances of the child or young person.

Part 4 also sets out powers and duties relating to information sharing, including (in s.23) conditions for when information must be shared following a change in NPS Provider, and (in s.26) conditions for when information must be shared between service providers or relevant authorities, and the NPS Provider. Section 26(8) includes an additional power of disclosure where the NPS Provider holds information and it considers that providing it to a service provider or relevant authority is “necessary or expedient” (s.26(9)) for the purpose of the exercise of any of the named person functions. The powers and duties of disclosure under ss.23 and 26 cannot, however, be exercised where the information would be provided in breach of a prohibition or restriction under “an enactment”.

The appellants are four registered charities with an interest in family matters, and three individual parents. They challenged Part 4 by way of judicial review on the basis that it is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998 (“the Scotland Act”) because: (a) it relates to matters which are reserved under the Scotland Act to the UK Parliament (“the Reserved Matters Challenge”); (b) it is incompatible with rights under the European Convention on Human Rights (“the ECHR Challenge”); and/or (c) it is incompatible with EU law (“the EU Law Challenge”). The appellants’ challenges were dismissed in both the Outer House and the Inner House of the Court of Session.

They appealed to the Supreme Court.

The Supreme Court unanimously allowed the appeal on the basis of the ECHR Challenge and the EU Law Challenge (to the extent it mirrors the ECHR Challenge). The Court invited written submissions as to the terms of its order under s.102 of the Scotland Act in order to give the Scottish Parliament and Scottish Ministers an opportunity to address the matters raised in the judgment. In the meantime, since the defective provisions of Part 4 of the 2014 Act are not within the legislative competence of the Scottish Parliament, they cannot be brought into force. Lady Hale, Lord Reed and Lord Hodge, with whom Lord Wilson and Lord Hughes agreed, gave the joint leading judgment. Only the ECHR and EU challenges are included below.

The ECHR Challenge

The appellants claimed that the NPS breaches Article 8 ECHR rights. This is both (a) on the broad basis that compulsory appointment of a named person without parental consent amounts to a breach of the parents’ Article 8 rights, and (b) on the narrow basis that the information sharing provisions under Part 4 amount to breaches of parents’ and C&YP’s Article 8 rights. The Community Law Advice Network, as intervener, also challenged the information sharing provisions on the basis that they impose too low a threshold for the disclosure of confidential information and amount to an infringement of the Article 8 rights of C&YP. This meant that there was more focus on Article 8 in the appeal before this Court than there had been before the Court of Session below.

In the context of the 2014 Act, the interests protected by Article 8 include both family life and privacy, and the operation of the information sharing provisions of Part 4 will result in interferences with those interests.

In accordance with the law

In order for that interference to be “in accordance with the law” (for the purposes of Article 8(2)), the measures must not only have some basis in domestic law but also be accessible to the person(s) concerned and foreseeable as to their effects. This means rules must be formulated with sufficient precision to give legal protection against arbitrariness. In assessing the legality of Part 4, regard must be had to the Guidance.

As is clear from the Court’s findings on the Reserved Matters Challenge, there are difficulties in accessing the relevant rules for information sharing. An information holder would need to read together and cross refer between Part 4, the DPA and the Directive in order to work out the priority of their provisions. Of even greater concern is the lack of safeguards which would enable the proportionality of any interference with Article 8 to be adequately examined. For example, information, including confidential information concerning a child or young person’s state of health (e.g. as to contraception, pregnancy or sexually transmitted disease), could be disclosed to a wide range of authorities without either the child or young person or their parents being aware of the interference with their Article 8 rights, and in circumstances in which there was no objectively compelling reason for the failure to inform them. Accordingly, as currently drafted, the information sharing sections of Part 4 and the Guidance do not satisfy the requirement of being “in accordance with the law”.

Proportionality

In assessing whether the operation of Part 4 would give rise to interferences with Article 8 which are disproportionate having regard to the legitimate aim pursued, it is necessary to distinguish between the 2014 Act and its operation in individual cases. Focusing on the proportionality of the legislation itself, Part 4 undoubtedly pursues legitimate policy aims and is clearly rationally connected to those aims. Allowing the legislature the appropriate margin of discretion, Part 4 is also a reasonable measure for the legislature to impose in order to achieve those legitimate aims. It is for this reason that the appellants’ broad challenge cannot succeed. If a named person could be appointed only with parental consent, the scope for early intervention would be diminished.

However, the operation of Part 4 may well give rise to disproportionate interferences in particular cases:

The EU Law Challenge

In relation to the EU Law Challenge, there is no incompatibility additional to that identified in relation to the ECHR Challenge.