The UK Supreme Court held that the information-sharing provisions of Scotland’s named person scheme were outside the Scottish Parliament’s legislative competence. Part 4 of the Children and Young People (Scotland) Act 2014 required public bodies to share information about a child’s wellbeing with a named person. Those provisions interfered with the article 8 rights of children, young people and parents and were not “in accordance with the law”, because their effect was obscure when read with data protection law and they lacked adequate safeguards. A separate challenge, that the provisions related to the reserved matter of data protection, failed.
The Christian Institute and others, including parents, appealed against a decision of the Inner House. They argued that Part 4 of the Children and Young People (Scotland) Act 2014 was outside the legislative competence of the Scottish Parliament. The Lord Advocate defended the legislation. Community Law Advice Network intervened on information sharing.
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The named person and information sharing
Part 4 required a named person for every child, and for young people who remained at school after 18. Health boards, local authorities or directing authorities had to make an identified individual available. That person was to advise, inform or support the child or a parent, help them to access a service, and discuss or raise a matter with other bodies, where the named person considered it appropriate in order to promote, support or safeguard wellbeing.
Wellbeing was not defined, beyond eight factors in section 96(2): safe, healthy, achieving, nurtured, active, respected, responsible and included. The policy was early collaborative intervention, so that concerns could be shared before a child was at significant risk of harm. Sections 23 and 26 imposed duties to share information which the holder considered likely to be relevant to the relevant functions, which ought to be provided, and whose disclosure would not prejudice a criminal investigation or prosecution. Section 26(8) added a power to disclose information the holder considered necessary or expedient for named person functions. The holder was, so far as reasonably practicable, to ascertain and have regard to the child’s views, and could decide that information ought to be provided only if the likely benefit to wellbeing outweighed any likely adverse effect. Duties of confidentiality could be overridden, but other prohibitions arising by enactment or rule of law were preserved.
A wellbeing need did not itself authorise compulsion. A child’s plan was voluntary. Compulsory measures under other legislation still required, in short, a risk of significant harm or an existing statutory ground. Revised draft guidance, to which authorities had only to have regard, described wellbeing as broader than welfare and parental involvement in sharing as routine good practice rather than a legal requirement.
Reserved matters
The appellants said the disclosure provisions related to the reserved matter of data protection: the subject-matter of the Data Protection Act 1998 and Directive 95/46/EC. Under the Scotland Act 1998, that question depends on the purpose of the provision, having regard to its effect. More than a loose or consequential connection is required.
Lady Hale, Lord Reed and Lord Hodge, with whom Lord Wilson and Lord Hughes agreed, held that the purpose was to promote wellbeing by making agencies work together and share information before the stage of risk of harm. Information sharing was consequential on that purpose. The 1998 Act itself contemplates that an Act of the Scottish Parliament may require disclosure. Part 4 did not create a separate system of data-protection standards or enforcement. It therefore did not relate to the reserved matter.
The two statutes were nevertheless very difficult to apply together. Because sections 23(7) and 26(11) preserved other legal restrictions, the duties and power could not be taken at face value. A duty to disclose non-sensitive data could satisfy a Schedule 2 condition and, if section 35(1) of the 1998 Act prevailed, escape certain non-disclosure provisions, including the requirement that data actually be relevant. Sensitive data, and the discretionary power, remained subject to stricter conditions. Where article 8 applied, “necessary” meant the least interference required for the legitimate aim. Disclosure merely because information was, or was thought likely to be, relevant did not meet that test. The same difficulty arose under the Directive. The Court described the need to cross-refer and decide which statute prevailed as a logical puzzle.
Article 8
Article 8 protects private and family life, including parents’ responsibility for upbringing and a child’s confidential personal and health information. Giving advice or helping a family to access a service would not normally interfere with those rights. The information-sharing provisions would.
An interference must be in accordance with the law: accessible and foreseeable, with safeguards against arbitrary interference so that proportionality can be examined. These provisions failed that test. Their apparent width was significantly cut down by the 1998 Act and the Directive, but the priority between the statutes was obscure. There was no statutory duty to tell parents that information would be or had been shared. The duty to seek the child’s views did not apply to the section 26(8) power. The draft guidance was not binding and would not help a family who were never informed. Confidential information, including information about contraception, pregnancy or sexually transmitted disease, could be shared with a wide range of public bodies without the child or parents knowing and without an objectively compelling reason for not seeking their views.
On proportionality, a challenge to legislation before it operates succeeds only if the measure cannot be operated compatibly in all or almost all cases. Promoting wellbeing through earlier and better coordinated support was a legitimate aim and rationally connected to the scheme. Limiting a named person to cases of parental consent or risk of harm would have reduced the scope for early intervention, and was not the only reasonable legislative choice. Advice, support and a child’s plan involved no compulsion, and the Act did not change the thresholds for compulsory orders. The information-sharing provisions could in principle be operated proportionately if each holder made a scrupulous assessment.
In practice, however, disproportionate interferences were readily foreseeable. The statutory thresholds were too low. There was no requirement to obtain consent, to have a good reason for dispensing with it, to warn families beforehand, or to tell them afterwards. Reasonable exceptions could be justified, but without safeguards the overriding of confidentiality was likely often to be disproportionate. Amending non-binding guidance would not cure either the lack of legal certainty or that risk. The defects could not be removed by reading the provisions down.
EU law added nothing. Limits on the protection of personal data correspond to those under article 8. Data retained under the Act remained subject to the fifth data protection principle, which the Information Commissioner could enforce.
Verdict: The Court unanimously allowed the appeal on article 8 and the corresponding EU-law ground. The defective information-sharing provisions were outside legislative competence and could not be brought into force. The reserved-matters challenge failed. The Court invited submissions within 42 days on the terms of a possible section 102 order.
Source: The Christian Institute and others v The Lord Advocate [2016] UKSC 51
