Scottish Government’s Named Persons scheme incompatible with Article 8

29 July 2016 by David Scott

The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland) [2016] UKSC 51 – read judgment here

The Supreme Court has today unanimously struck down the Scottish Parliaments’s Named Persons scheme as insufficiently precise for the purposes of Article 8, overturning two previous decisions at the Court of Session (see our previous coverage here).

by David Scott

Background

The Children and Young People (Scotland) Act 2014 introduced a host of measures intended to support and protect children in Scotland, making it “the best place in the world for children to grow up”.  One such measure was the introduction of a “Named Person Service” (NPS), under Part 4 of the Act. This requires public service providers to designate a named person to every child in Scotland, entrusted with promoting their well-being through support and advice in gaining access to services. In practice, this would be someone already working with the child, such as a health professional or a senior teacher.

The 2014 Act also contains provisions relating to the sharing of information between named persons and public authorities. A public authority must generally provide information to the named person’s employer where such information is relevant to the exercise of the named person’s functions (s 26 (1), (2)). Furthermore, a public authority may provide information where they consider it “necessary or expedient” for the exercise of named person functions (s 26 (8), (9)). When considering if information should be provided the information holder should have regard to the views of the child (s 25). These measures fit within the broader intentions of the Children and Young People (Scotland) Act 2014, which seeks to move away from public authority intervention after the identification of risk towards a new system of collaboration between statutory bodies, unlinked from the performance of their individual functions and with an emphasis on early intervention and the promotion of child well-being more generally.

Since its introduction the scheme has faced criticism, not least from the campaign group No To Named Persons, who were one of the applicants in this case. Critics have argued that it undermines the privacy of families, grants undue state power and influence over children, and focuses limited social service resources on “trivial or irrelevant family issues” and children not most in need of state protection. To date the No To Named Persons’ petition against the NPS has been signed by over 35,000 people.

However, the NPS has received backing from children’s charities such as Barnardo’s, Aberlour, Action for Children and Children 1^st, and is supported by the Green Party as well as the SNP at Holyrood.

The NPS was due to come into force across Scotland on August 31^st, although trials were already underway in the Highlands, Edinburgh, Fife, Angus and South Ayrshire.

A refresher on the Scotland Act 1998

The challenge before the Supreme Court today sought to argue that Part 4 of the Children and Young People (Scotland) Act 2014 was outside the legislative competence of the Scottish Parliament.

The power for the Scottish Parliament to pass laws is granted by s28 of the Scotland Act 1998. Its powers are constrained, however, by s29, which in relevant part reads (with emphasis added):

29 Legislative competence

(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2) A provision is outside that competence so far as any of the following paragraphs apply—

(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,

(b) it relates to reserved matters,

(c) it is in breach of the restrictions in Schedule 4,

(d) it is incompatible with any of the Convention rights or with EU law,

(e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.

The reserved matters for s29(2)(b) are given in Schedule 5 of the Act, which lists a whole host of areas that Westminster retains legislative power over—things like the Constitution, foreign affairs, certain financial matters, etc.

Schedule 6 allows Acts of the Scottish Parliament to be challenged if they are outside the legislative competence given in s29, and any Act found to be outside the Parliament’s competence can be suspended under s102.  However, courts are under a duty under s101 to read an Act of the Scottish Parliament as far as possible as to be within competence.  This means that, for the Supreme Court to have issued an order under s102, it must have had no other possible way of reading the Act as within Scottish Parliament competence.  The first time this happened was only as recently as 2013, in Salvesen v Riddell [2013] UKSC 22.

Arguments

The appellants sought to argue their case on three grounds: that Part 4 related to a reserved matter (s29(2)(b) of the Scotland Act 1998); that it was incompatible with European Union law (s29(2)(d) of the Scotland Act 1998); and that it was incompatible with Articles 8 of the ECHR (also s29(2)(d) of the Scotland Act 1998).

The Court of Session’s Judgments

The appellants had been unsuccessful in both the Outer and Inner House of the Court of Session.  It is interesting to contrast the findings of those courts with those of the Supreme Court.

The Outer House found the petitioners’ case to be “speculative and hypothetical” [50-52], finding “no basis for holding that the statutory functions of a named person are incapable of being exercised in a manner that respects Convention rights” [51]. Additional arguments under Article 9 and A2P1 were rejected as “unsound” and “manifestly [lacking] merit” [59], and there were sufficient safeguards to render the legislation proportionate to the legitimate aim pursued [54]. Similar grounds were used to reject the EU argument [61-81] and the “exceptional” common law fundamental rights argument [90]: there was nothing in the legislation to suggest that the NPS would operate contrary to these rights, and deference should be shown to the will of the elected Scottish Parliament. Finally, the Lord Ordinary rejected the argument that Part 4 clashed with the Council Directive 95/46/EC (protection of individuals with regard to the processing of personal data and on the free movement of such data) or its domestic implementation by the Data Protection Act, both reserved matters for Westminster under Part II of Schedule 5 of the Scotland Act [85].

The Inner House largely concurred with the Outer House’s decision. It fond that the Lord Ordinary had been correct in limiting his assessment to whether Part 4 would inevitably breach the Convention:

The existence of the possibility of interference, if a person acts in a particular way once the scheme is operating, does not mean that there has, or will inevitably be, a breach of the Convention and thus that the legislation is incompatible with a Convention right. [66]

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 assertion to the contrary, without any supporting basis, has the appearance of hyperbole. [68]

The claims under Article 9 and A2P1 were similarly struck out as ill-founded [69-70].

Having already rejected the Article 8, the Inner House nevertheless chose to address the issue of proportionality, finding that any potential interference with Convention rights would be justified. First, it found that the legislation had a legitimate aim, namely, the promotion of child welfare. The petitioners tried to draw a distinction between promoting the well-being of children and protecting them from harm, arguing that state intrusion was only justified in the latter scenario. However, it was held to be understandable that policy makers would want a scheme which identified threats in advance rather than waiting for a child to be the subject of a specific threat. Secondly, the chosen scheme was rationally connected to its objective. Without it there was the potential for a lack of communication which would “seriously undermine” the government’s aims. Finally, whilst the role of parents was to be respected, there was nothing to prevent the state from putting in place reasonable measures to support children and their parents. The scheme was designed to ensure that crucial information about a child’s welfare was not missed, with the need to ensure early detection of welfare issues outweighing any adverse effect on children and parents.

In relation to the data sharing provisions, the Inner House found that the 2014 Act could be operated consistently with the data protection regime, including the Data Protection Act 1998 which transposed the EU Charter and Directives concerning personal data into domestic law. Whilst it was possible that breaches of data protection principles could occur in particular cases, there was nothing to suggest that the legislation necessarily infringed those principles.

The Supreme Court’s Judgment

The reserved matters argument (paragraphs 27-66)

In agreement with the Court of Session, the Supreme Court rejected that Part 4 related to a reserved matter under Schedule 5 of the Scotland Act 1998. Part 4 did not modify the Data Protection Act 1998, as s35(1) of the Data Protection Act 1998, read with s70(1), envisages the disclosure of data via an Act of the Scottish Parliament:

In view of that provision, the Scotland Act cannot sensibly be interpreted as meaning that an enactment “relates to” the subject-matter of the DPA, and is therefore outside the powers of the Scottish Parliament, merely because it requires or authorises the disclosure of personal data. [63]

The power to legislate on data disclosure was not therefore outwith the powers of the Scottish Parliament.

The question remained, however, whether the content of Part 4 in particular contravened the Data Protection Act 1998. The Supreme Court accepted the arguments of the Scottish Ministers that the purpose of Part 4 is “to promote the wellbeing of children and young people”, that the provisions concerning the processing of personal data are “merely consequential upon, or incidental to, that purpose” [64] and that Part 4 “does not detract from the regime established by the DPA and the Directive” [65]. The legislation could thus not be struck down under s29(2)(b) of the Scotland Act 1998.

The EU law argument (paragraphs 102-105)

The Supreme Court also found itself “in large measure in agreement with the Inner House and the Lord Ordinary” on the question of EU law, finding that the Data Protection Act 1998 sufficiently limited Part 4 in order to keep it in accordance with Council Directive 95/46/EC [103]. While questions of privacy under the Charter of Fundamental Rights was raised, this was not considered separate from the grounds raised under the Convention argument [104], and the Court was further satisfied that retention of data under Part 4 was entirely coherent with the Data Protection Act 1998. Accordingly, there had been no violation of EU law [105].

The Convention argument (paragraphs 67-101)

However, the Supreme Court took a very different view from the Scottish courts in relation to the appellants’ argument under the Article 8 of the Convention, the Article 9 and A2P1 arguments having been discarded by the appellants. The appellants’ Article 8 challenge consisted of “narrow” and “broad” arguments:

The broad challenge is that the compulsory appointment of a named person to a child involves a breach of the parents’ article 8 rights unless the parents have consented to the appointment or the appointment is necessary to protect the child from significant harm. The narrower challenge focusses on the provisions in sections 26 and 27 for the sharing of information about a child. [68]

While the Court found that a named person providing advice, information and support and helping the parent, child or young person to access a service or support (under s19(5)(a)(i) and (ii)) would not normally engage Article 8, the effect of the information-sharing provisions of Part 4 (in particular, sections 23, 26 and 27) would result in interferences with rights protected by article 8 of the ECHR [78]. The Supreme Court therefore had to ask whether such interferences could be justified under Article 8(2).

What is most interesting is how the Court finds the Act incompatible with Article 8: while agreeing that the Act was not a disproportionate interference in and of itself, it found the law insufficiently precise to be “in accordance with law”.

Accordance with law (the “narrower” challenge)

In order to be “in accordance with the law”, according to the Court, the measure must not only have some basis in domestic law but also be accessible to the person concerned and foreseeable as to its effects [79]. The Court outlines two qualitative elements of this accessibility and foreseeability:

First, a rule must be formulated with sufficient precision to enable any individual—if need be with appropriate advice—to regulate his or her conduct…Secondly, it must be sufficiently precise to give legal protection against arbitrariness. [79]

The question is therefore whether Part 4 was sufficiently precise to meet these criteria. The Court found “very serious difficulties” in understanding the relationship of Part 4 within the context of the Data Protection Act 1998 [83], and noted particular concerns in the safeguards ensuring that data is only shared in accordance with Article 8 [84]. Accordingly, the Court found that the current drafting of the data-sharing provisions of Part 4 were insufficiently precise to meet the “accordance with law” standard, and the defect could not be “read down” in accordance with s101 of the Scotland Act 1998. An order was thus made under s102 that the information-sharing provisions of Part 4 were outside the legislative competence of the Scottish Parliament [107].

Proportionality (the “broad” challenge)

The Court also studied the broader proportionality of Part 4. Such a challenge to the validity of legislation is, as they note, a “high hurdle”, and the Supreme Court agreed with the Court of Session that this had not been surmounted. Part 4 as a whole could not, therefore, be struck down as a disproportionate interference with Article 8 [88]. The Court did, however, have significant concerns over the potential of specific provisions to lead to disproportionate interference in specific cases, and made some suggestions for reform.

Correcting the Problems

While unable to give exact legislative proposals, the Court provided the Scottish Government some guidance. First, they found that guidelines implementing the judgment would be insufficient considering s28 of Part 4 only asks public authorities to “have regard” to any guidance issued. Thus subordinate legislation or binding “guidance” would be required to address the circumstances in which (i) the child, young person or parent should be informed of the sharing of information or (ii) consent should be obtained for the sharing of information, including confidential information. Greater clarity is also needed to address the relationship between Part 4 and the non-disclosure protections in the Data Protection Act: “In short, changes are needed both to improve the accessibility of the legal rules and to provide safeguards so that the proportionality of an interference can be challenged and assessed.” [108]

However, the Supreme Court also took time note other areas that could be reconsidered alongside this clarification “to minimise the risk of disproportionate interferences with the article 8 rights of children, young persons and parents” [108]. Care should be taken to emphasise the voluntary nature of the advice, information, support and help which are offered under section 19(5)(a)(i) and (ii), as there is a real risk that parents will be pressured into accepting advice or services from the state, as refusal of such services may be taken as evidence of a risk of harm, creating stronger grounds for state intervention [94-95]. Moreover, the obligation to share information under s26(1) and (3) could be triggered by “very broad criteria” for assessing wellbeing, with a high possibility of breaching Article 8, particularly in relation to the “duty of confidentiality”. The provisions do not require the consent of the child or young person to share the information; nor do they require that there be any good reason for dispensing with this consent [98], even with the limits the Data Protection Act 1998 would provide [99-100].

The Court summarises:

100. …The central problems are the lack of any requirement to obtain the consent of the child, young person, or his or her parents to the disclosure, the lack of any requirement to inform them about the possibility of such disclosure at the time when the information is obtained from them, and the lack of any requirement to inform them about such disclosure after it has taken place. Such requirements cannot, of course, be absolute: reasonable exceptions can be made where, for example, the child is unable to give consent, or the circumstances are such that it would be inappropriate for the parents’ consent to be sought, or the child’s best interests might be harmed. But, without such safeguards, the overriding of confidentiality is likely often to be disproportionate.

101. In order to reduce the risk of disproportionate interferences, there is a need for guidance to the information holder on the assessment of proportionality when considering whether information should be provided. In particular, there is a need for guidance on (a) the circumstances in which consent should be obtained, (b) those in which such consent can be dispensed with and (c) whether, if consent is not to be obtained, the affected parties should be informed of the disclosure either before or after it has occurred. Also relevant is whether the recipient of the information is subject to sufficient safeguards to prevent abuse: MS v Sweden (1997) 28 EHRR 313. Further, if the guidance is to operate as “law” for the purposes of article 8, the information holder should be required to do more than merely have regard to it.

Crucially, the balance of these matters will involve policy questions which are the responsibility of the Scottish Ministers and the democratic legislature [108].

Commentary

Three points are worthy of discussion. The more immediate is the political ramifications for the NPS, particularly considering the scheme is already underway in many parts of Scotland. Politicians at Holyrood have already staked out their positions, with Scottish Conservative leader Ruth Davidson calling the ruling “important” and “a victory for campaigners” against “illiberal, invasive and deeply flawed” legislation. Other parties have called for a new approach to the implementation of the NPS and its description to the public.

The Supreme Court granted an order under s102(2)(b) of the Scotland Act 1998 “to allow the Scottish Parliament and the Scottish Ministers an opportunity, if so advised, to correct the defects which we have identified”, and have given 42 days for the parties to provide written submissions on the matter, including the possibility of further later submissions from the Lord Advocate [109-110].  Cabinet Secretary for Education and Skills John Swinney has stated that the government would start work to amend the legislation “immediately” so that the scheme can still be rolled out “at the earliest possible date”, but is facing calls from the Scottish Lib Dems to reconvene Parliament from its summer recess to properly debate the future of the NPS. Whichever way this debate lands, it’s unlikely we’ve heard the last of this judgment.

Yet it’s important to be clear that the Supreme Court did not actually strike down the NPS as a concept. As it said at paragraph 96:

In our view…it cannot be said that the operation of the information-sharing duties and powers in relation to any of the named person’s functions will necessarily amount to a disproportionate interference with article 8 rights. But for the problem in relation to the requirement that the Act be “in accordance with the law” (paras 79-85 above), we consider that the Act would be capable of being operated in a manner which is compatible with the Convention rights. [emphasis added]

Thus, provided the legislation is suitably clarified to meet the “accordance with law” test, there is no reason why the NPS cannot begin operating. Today’s judgment may provide ammunition for critics of the NPS, but it has failed to make the scheme inherently illegal.

The final notable point is the diversion between the two Court of Session judgments—quite strident in their assertion that the NPS was entirely compatible with Article 8—and the unanimous verdict at the Supreme Court (including both Scottish Justices, Lord Reed and Lord Hodge). Unfortunately, the Supreme Court doesn’t do much to show where it disagreed with the prior reasoning of the Court of Session, though it does not at paragraph 69 that Article 8 received less focus in the arguments before the lower courts. In relation to the substantive question of precision for the purposes of the interference being “in accordance with law”, the Outer House gave very little consideration to the question, stating in paragraph 55 that:

In my opinion, the provisions in Part 4 provide a sufficiently transparent and predictable code of rules for the purposes of enabling individuals to understand the legal framework governing the new service.  As to the details of how the named person scheme is intended to operate at a practical level, one will have to wait for the statutory guidance and other materials already referred to.  Only once all that information becomes available will it be possible to make a comprehensive assessment of whether the entire legislative scheme is in accordance with law.

The Inner House gave even less time to the question, devoting only three sentences in paragraph 72 of its judgment:

The named person provisions are set out in detailed legislation.  There is no lack of clarity in the statutory provisions.  In so far as they might constitute an interference, they are in accordance with the law.

What is interesting is that the Supreme Court only “found” problems with the “accordance with law” test when it studied the difficulties in squaring Part 4 with the requirements of the Data Protection Act 1998 (requirements that the Supreme Court later highlights as ensuring challenges on the grounds of proportionality are available under Part 4). One can argue over the preferred judicial reasoning, but a schism such as this is a fairly rare occurrence.

In any event, the story is nowhere near from other, in either Holyrood or the courts. Watch this space to see how the amendments go…