Earlier today the Supreme Court ruled against a Scottish Government scheme to appoint a ‘named person’ for every child and young person in Scotland.
The Supreme Court said that some of the scheme’s proposals would breach the rights to privacy and a family life.
What is the scheme?
Under the Children and Young People (Scotland) Act 2014 (the “2014 Act”), which was passed by the Scottish Parliament, a ‘named person’ would be assigned to every child and young person in Scotland, to look out for the wellbeing of their appointed child (or youngster). The named person would usually be someone already relevant in the child’s life, such as a teacher or health visitor. One aim of the scheme is to ensure that, if something goes wrong in a child’s life, there would be someone (other than a parent) ready and able to support them.
The named person would be able to do things like give advice and support to the child or the child’s parents, help them to access services and discuss the child’s wellbeing with certain authorities (such as healthcare authorities). The named person could also share information (including concerns) about the child to relevant public authorities in order to make sure the child receives appropriate care.
What were the arguments against the scheme?
The Scottish Parliament gets its power to legislate for Scotland (on certain issues) from the Westminster Parliament through the Scotland Act 1998. In this Act, Westminster also set out certain things that the Scottish Parliament does not have the power to do. One of those things is that the Scottish Parliament may not pass legislation which is incompatible with the rights contained in the European Convention on Human Rights.
Some charities with an interest in family issues, along with some parents who disagreed with the scheme, went to the UK Supreme Court arguing that the scheme was something that the Scottish Parliament did not have the power to do. One of the claims they made was that the scheme would violate the right to respect for private and family life (protected under Article 8 the European Convention on Human Rights), because the appointment of a named person was compulsory and did not consider parents’ consent. They also worried about the named person passing on potentially confidential information about the child or the child’s parents.
What did the Supreme Court say?
The Supreme Court said that the purpose of the scheme was “unquestionably legitimate and benign”. The fact that parents did not need to give consent for a named person to be assigned to their child did not automatically mean that there was a violation of Article 8. In fact, the Court said if parents’ consent were required, that could undermine the aim of the scheme.
However, the Court did agree with the charities and parents that the way in which the scheme would operate, particularly in relation to information sharing and how advice would be given to parents, could interfere with the right to privacy and/or family life.
The Court considered that certain actions the named person could take – including sharing potentially confidential information about the child – would go too far. It said that there were not enough clear guidelines to assist the named person in deciding whether or not to share such information. Under the 2014 Act, the named person would be able to pass on confidential and sensitive information without the child or their parents even knowing about it. The Supreme Court decided that the implementation of the scheme could be incompatible with the right to respect for private and family life. The Scottish Parliament had gone beyond the power that it had been given by Westminster and so the scheme was unlawful.
What does this mean for the Scottish named persons scheme?
The Supreme Court’s decision doesn’t mean that the scheme can never operate. However, it will be delayed until the Scottish Government can fix the parts of the legislation which the Supreme Court decided could violate the right to respect for private and family life. The Scottish Government has committed to providing “greater clarity” on the circumstances in which information about children or young people could be shared by their appointed named person.
Read our plain English explainer of powers given to the devolved nations (including Scotland) here. Learn more about the right to respect for private and family life with our infographic poster and our family, privacy and children’s rights resources.