The Supreme Court has rejected the Named Person Scheme on the basis of the European Convention on Human Rights and Proportionality.
Whilst the court found that the principle of creating a named person to support every person in Scotland is ‘legitimate and benign’ and therefore not in contravention of EU laws, it ruled against elements of the law in relation to the sharing of data and information on young people and their families.
The UK Supreme Court ruled that the information sharing provisions proposed may result in a disproportionate interference with Article 8 rights under ECHR and that they risked breaching regulations protecting privacy and confidentiality. Of concern, is the lack of requirement to obtain consent from the child, young person or parent, the lack of requirement to inform them of any possible disclosure and the lack of requirement to inform them after a disclosure is made.
The judges also expressed concern at the lack of safeguards which would enable the proportionality of an interference with Article rights to be adequately examined. Without significant safeguards, the overriding of confidentiality is likely often to be disproportionate.
In delivering it’s judgement the court stated (at 84) that it is ‘perfectly possible that information, including confidential information concerning a child or young person’s state of health (for example, as to contraception, pregnancy or sexually transmitted disease), could be disclosed… to a wide range of public authorities without either the child or young person or her parents being aware of the interference with their article 8 rights and in circumstances in which there was no objectively compelling reason for the failure to ascertain and have regard to their views.’
The court went on to state (at 88) that ‘it can readily be foreseen that in practice the sharing and exchange of information between public authorities are likely to give rise to disproportionate interferences with Article 8 rights, unless the information holder carries out a scrupulous and informed assessment of proportionality.’
The court has now invited written submissions in order to give the Scottish Parliament and the Scottish Ministers an opportunity to address the matters raised within its judgement.
In the meantime, as the defective provisions of Part 4 of the 2014 Act are not within the legislative competence of the Scottish Parliament, they cannot be brought into force.
So it is back to drawing board for the Scottish Parliament. No doubt many parents and commentators will be keen to see whether the Scottish Parliament can work with those opposed to the provision to find a resolution which protects a child’s right to privacy whilst still allowing appropriate and necessary information to be shared.
Link to the judgement: https://www.supremecourt.uk/cases/docs/uksc-2015-0216-judgment.pdf.
