Supreme Court rules Named Person scheme “unlawful”

Earlier today, the Supreme Court ruled that the Scottish Government’s Named Person scheme (the scheme) is illegal. This is an important judgment as it is the first time that the Supreme Court has exercised its power to prevent a major piece of passed Scottish legislation (especially as it was passed by the Scottish Parliament without opposition with 103 yes votes).

• For the long version see the court’s judgement available here: The Christian Institute and Others v The Lord Advocate (Scotland) [2016] UKSC 51.
• For the short version read our blog below to find out what the Named Person scheme is, what the Supreme Court said and what will happen to the scheme.

What is the Named Person scheme?

The scheme is part of the Scottish Government’s (SG) Children and Young People (Scotland) 2014 Act (the Act), whereby health boards and Scottish local authorities are required to assign a “named person” to each child and young person in Scotland. Until the events of this morning, the scheme was on track to take effect from 31 August.

Why was Named Person scheme before the court?

• Who?

Four registered charities and three individual parents challenged the Act by means of judicial review. The appellants’ first and second attempts were unsuccessful with both the Outer House and the Inner House of the Court of Session dismissing their challenge, nonetheless their final attempt, by way of appeal to the Supreme Court, has been successful.

• What?

In particular, the appellants challenged Part 4 of the Act which sets out the functions of named persons and the powers and duties of named persons in relation to data sharing. The appellants argued that Part 4 was outside SG’s legislative competence on three basis:

1. it relates to reserved matters;
2. it is incompatible with the right to private and family life (Article 8 of the European Convention on Human Rights (ECHR)); and
3. it is incompatible with EU law generally.

What did the Supreme Court say?

The Supreme Court allowed the appeal and in particular, it held:

• that Part 4 does not relate to a reserved matter – the court noted that Part 4 does not detract from the data protection regime enshrined in the Data Protection Act 1998 (which is UK wide law) and the associated European Directive;
• that Part 4 is not in accordance with Article 8 the ECHR – the court felt the operation of Part 4 would lack the required safeguards to enable adequate examination of whether access to private information would be proportionate (although it noted that the Act itself could be proportionate); and
• there is no incompatibility issue with EU law (other than in relation to the ECHR challenge).

What happens now?

• Part 4 cannot come into force as is currently drafted and judicially, this is the end of the line for SG as a Supreme Court’s decision cannot be appealed.
• The Supreme Court note that the Scottish Parliament will have the opportunity to address the issues raised in its judgement. Therefore, the Named Person scheme is not completely out of the picture and merely requires revisiting and alteration by SG.
• The Supreme Court only upheld one challenge out of three, therefore, it should not be overly difficult for SG to fix the ‘bugs’ within their Named Person scheme to ensure its survival. Indeed, the Supreme Court have noted that it is “undoubtable [that the Act] pursues legitimate policy aims and is clearly rationally connected with those aims” providing that the Act itself could be deemed proportionate. On this basis it may be argued that it won’t take much in the way of amendment to ensure that the operation of the practices under Part 4 are also deemed proportionate.

Earlier today, Deputy First Minister John Swinney tweeted: “Bid to scrap #NamedPerson via Supreme Court fails. Ruling means policy goes ahead. SG will clarify info-sharing in statute & implement asap” indicating that SG will make the required amendments. This was confirmed by SG this morning via a  press release which includes the following quote by Swinney: “Ministers remain absolutely committed to the named person policy.” 

Val has been with MacRoberts since 1999 and works in the areas of IP, Technology & Commercial, Compliance & Regulatory and Charities & the Third Sector.

Drafting all manner of commercial contracts across many industry sectors she has a specialism in IT and IP related matters. With an in-depth understanding of IP & IT law, Val has a particular interest in information management and cybersecurity.

In her Compliance and Regulatory role she provides clients with advice on compliance with, in particular, the UK Bribery Act & the Data Protection Act, regularly delivering face to face workshop based training across many industry sectors.

A special interest in the Medical Device sector, she regularly advises on contractual matters including clinical trial and research agreements; in and out licensing arrangements; royalty agreements; consultancy and proctor arrangements; data sharing and related privacy issues; OEM and other supply agreements; collaboration agreements and NDA’s.