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:

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