In a stunning victory for campaigners – including CARE – judges at the UK Supreme Court today said the Scottish Government’s Named Person scheme is in contravention of human rights. CARE participated in the Judicial Review, which was led by the Christian Institute, to challenge the legality of the Scottish Government’s scheme.

CARE was concerned that the scheme undermined the rights of parents and children by allowing the sharing of sensitive personal information without consent on the very subjective grounds that to do so would enhance wellbeing. With the Supreme Court upholding the legal challenge, the Scottish Government will now have to either drop the scheme or amend it to make it compliant with human rights.

Specifically, the Supreme Court found the information-sharing provisions in Part 4 of the Children and Young People (Scotland) Act 2014 to be incompatible with the right to a private and family life and therefore “not within the legislative competence of the Scottish Parliament.”[i]

In giving judgment, the Court acknowledged “that the sharing of personal data between relevant public authorities is central to the role of the named person”.[ii]

The Court concluded that it is not possible to remedy the defects in the legislation by “reading down” the defective provisions. As a result, the Named Person Scheme cannot now come into effect on 31 August as planned. The Scottish Parliament and Scottish Ministers will have to decide whether or not to pass new legislation which is human rights compatible and which addresses the “lack of safeguards” identified by the Court. The Scottish Government has no right to appeal.

Basis of judgment

Part 4 of the 2014 Act sets out the terms on which personal data about children, young people and their families may be shared between named persons and relevant public authorities.

The Court noted that terms of the information-sharing provisions “indicate an intention that the range of information to be shared will depend on the exercise of judgement by the information holder, and is potentially very wide”.[iii]

The Court also noted that the functions of the named person amount to promoting the “wellbeing” of the child or young person but that “wellbeing” is not defined in the 2014 Act. Instead, the legislation lists eight factors to which regard is to be had when assessing wellbeing. The factors, which are known under the acronym SHANARRI, are that the child or young person is or would be: “safe, healthy, achieving, nurtured, active, respected, responsible, and included”. The Court noted that these factors “are not themselves defined, and in some cases are notably vague”.[iv] Given the SHANARRI indicators, the judges highlighted the “very broad criteria which could trigger the sharing of information by a wide range of public bodies and also the initiation of intrusive enquiries into a child’s wellbeing”.[v]

The Court considered the terms of the named person legislation in the light of the right to a private and family life, as set out in article 8 of the European Convention on Human Rights. In stressing the importance of the interests protected by article 8, the Court asserted:

“There is an inextricable link between the protection of the family and the protection of fundamental freedoms in liberal democracies…Individual differences are the product of the interplay between the individual person and his upbringing and environment. Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.”[vi] (emphasis added)

After in depth analysis of the information-sharing provisions of Part 4 of the Act, the Court concluded that those provisions:

• “are incompatible with the rights of children, young persons and parents under article 8 of the European Convention on Human Rights because they are not “in accordance with the law” as that article requires”; and
• “may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information”[vii]

The Scottish Government must now decide whether to bring forward new legislation which corrects the defects in the legislation or whether to drop the Named Person scheme altogether. In the meantime the scheme cannot go ahead as planned on 31 August. We are grateful to God for this decision by the Supreme Court and are pleased to note that the emphasis in the judgement on the protection of the family and the child not being a “mere creature of the state” is a reminder of how Christian teaching about parents and children has influenced our legal freedoms.

You can read more in the Supreme Court’s judgement: Judgment | Press Summary