Can they do that? The question for the UK Supreme Court on the Scottish Named Person Scheme

01 Aug 2016

BLM's head of family law, Siobhan Kelly comments on the judgment in the case of The Christian Institute and others v The Lord Advocate which was heard before the Supreme Court on 28 July.

Depending on your politics, the provisions of the Children and Young People (Scotland) Act 2014 requiring the appointment of a named person to every child and young person in Scotland (other than those serving in the UK Armed Forces) is either the implementation of a “Nanny State” or, as the Scottish Government contend, the best way to ensure that we “get it right for every child”.

One thing that all will agree on is that the provisions have generated heated debate. The intensity of the post-legislative debate was not, though, foreshadowed during the Scottish Parliament’s consideration of the matter. In fact, the Bill became law, in the form of an Act of the Scottish Parliament, by 103 MSPs voting for it, with no votes against.

The backlash against the Act was spearheaded by The Christian Institute, three other registered charities and three private individuals. Campaigning by them and others led to a 9 May 2016 lead editorial by The Scotsman urging that “Concern over child safety law must be heeded”. The Scotsman later, on 28 June 2016, carried an article written by Dr Gordon MacDonald, the Parliamentary Officer for the Christian charity CARE for Scotland, under the heading “Is the named person scheme heading down the same rocky road as poll tax?”

From politics to law

The Supreme Court is, of course, politically neutral. The Courts cannot be asked to rule on matters of political policy. Rather, after two Courts in Scotland (the Outer House and Inner House of the Court of Session) rejected the challenge to the legislation, the Supreme Court was asked to determine whether it is in the Scottish Parliament’s gift to enact the Named Person provisions into law. Put simply, the question for the Supreme Court is “Can they do that?”. The Charities and individuals who brought the judicial review petition challenging the Act claimed that the answer should be “no” because the provisions, as they see it, are an unjustified and unjustifiable state interference with family rights. They relied, in that regard, on fundamental common law rights, articles of the European Convention on Human Rights and EU law. They also argued that the sharing and disclosure of information associated with the exercise of the Named Person functions relate to matters reserved to the Westminster Parliament under the Scotland Act 1998.  

The decision in the case

Unanimously, the Supreme Court’s 28 July 2016 judgment holds that the subject matter of the legislation was not a matter reserved to Westminster, hence the Scottish Parliament could enact law on that. However, again in the unanimous decision of the five Justices – including two from Scotland, Lords Reed and Hodge, the latter delivering the judgment in Court – the Supreme Court has found that the 2014 Act as it presently stands is contrary to Human Rights law and EU law (to the extent that that mirrors Human Rights law) in the context of the proposed information-sharing of family matters, hence unlawful.

In short, the answer to the question “Can they do that?” is no.

The Supreme Court proposes to make an order in terms of s.102 of the Scotland Act 1998 – which gives courts or tribunals powers to vary decisions, including Acts of the Scottish Parliament. The precise terms of the order have yet to be determined. The Supreme Court has invited the Scottish Parliament and Scottish Ministers, along with those who challenged the legislation, to produce written submissions on the terms of the s.102 order within 42 days of 28 July 2016, hence by Thursday 8 September 2016.

What this means for you

Trinity term at the Supreme Court ends on Friday 29 July 2016. The next term, Michaelmas, starts on Monday 3 October and runs until Wednesday 21 December 2016. With that in mind, whilst written submissions are due by 8 September 2016, the Supreme Court’s final determination of the matter may wait until the 3/10/16 to 21/12/16 period.

On 9 July 2016, Scotland’s Deputy First Minister, John Swinney, anticipating that the Supreme Court judgment may not be available in Trinity term, said that “I wish to advise Parliament that the Government will not move to implement (the Named Person Scheme) until there is a definitive judgment from the Supreme Court in this judicial review”. The Scheme was due to be implemented on 31 August 2016. That will not now happen.

In immediate response to the judgment, Mr Swinney has undertaken on behalf of the Scottish Government to “provide greater clarity” about information-sharing and to start work immediately on the necessary legislative amendments, with a view to implementing the revised legislation Scotland-wide at the earliest possible opportunity. Whether, both politically and legally, that will be possible remains to be seen.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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