FACTS
The appellants in this Supreme Court appeal are collectively known as No to Named Persons (NO2NP) and consist of three individual parents and four registered charities with interests in family matters. They challenge Part 4 of the Children and Young People (Scotland) Act 2014 (“the 2014 Act”) and its introduction of the compulsory Named Person Service (NPS).
This service would ensure that every child in Scotland from birth to 18 years would have a named person responsible for their welfare in addition to their parents or legal guardians. This would involve providing the child or parents of the child with advice or information, and assistance on accessing a service or support network. Additionally, the named person would be required to share information with relevant public authorities should any concerns or significant changes arise or occur regarding the child, and also to hand over all information on the child when it is time for the named person to change, for example, when the child starts school.
The NPS forms part of the Scottish government strategy ‘Getting it Right for every Child’ in their bid to be the best place in the world to grow up. It was designed to combat the lack of settled procedure regarding when authorities needed to collaborate with each other, and to intervene when a child is identified as being at risk. Prior to this appeal, the Scottish Courts rejected the argument that there was a breach of Article 8 European Convention on Human Rights (ECHR).
ISSUES
The basis of the appellants’ challenge was that Part 4 of the Children and Young People (Scotland) Act 2014 was outside the legislative competence of the Scottish Parliament on the following grounds:-
1. It falls under and ‘relates to’ a ‘reserved matter’ as provided for in section 29 and 30 Scotland Act 1998
2. It is incompatible with ECHR because:-
i. The compulsory appointment of a named person is a breach of the parents’ rights set out in Article 8; or
ii. The information sharing provisions in section 26 and 27 impose too low a threshold for the disclosure of confidential information and infringe Article 8 rights. (The intervention from Community Law Advice Network challenged only this narrower point so, as a result, there was more focus on this that there had been in the previous trials).
3. The Court also briefly considered whether there was any incompatibility with EU Law but this was quickly dealt with and dismissed.
JUDGMENT
Reserved Matters Challenge
1. In order to address the ‘reserved matters’ challenge, the Court examined the scope of section 29(2) Scotland Act 1998. This provides that if the provision ‘relates to reserved matters’, it will be outside the legislative competency of the Scottish Parliament and, in line with section 29(1), will not be valid law as it is only for Westminster to legislate on. Reserved matters are defined in Schedule 5, and given effect by section 30 Scotland Act. Reservation B2 provides that ‘Data Protection and the subject matter of the Data Protection Act 1998 and the Council Directive 95/46/EC (“The Directive”)’ is to be a reserved matter. The Court applied Martin v Most [2010] UKSC 40 at [49] which defined ‘relates to’ as ‘more than a loose or consequential connection’. With this definition, it was decided that Part 4 of the 2014 Act did not ‘relate to’ the subject matter of the Data Protection Act and the Directive merely because it authorises the disclosure of personal data. Rather, the overall aim of Part 4 is to promote the wellbeing of children and young people and to better co-ordinate different institutions to achieve this aim. The fact that it involved data-sharing is merely a consequence of this aim. As a result, Part 4 could not be considered outside the legislative competence in this way.
Human Rights Challenge
2. The judges then turned to the ECHR challenge. In order to address whether the provisions are incompatible with the ECHR, the Court examined the following four points:-
i. The scope of Article 8 ECHR right to private and family life
ii. Whether Part 4 of the 2014 is an interference with those rights
iii. Whether such interference, if any, is in accordance with the law
iv. Whether the interference is proportionate
i/ii. To address the first two points, the Court used the UN Convention on the Rights of the Child (UNCRC) to assist in interpreting Article 8. In summary, Articles 5, 18(2), 19(1) and 27(3) of the UNCRC require the state to respect the parents’ duties in bringing up their children but that the state’s role is to assist in these duties and to protect the child from abuse. It was not felt by the Court that the advice, information and support provisions in section 19 of the 2014 Act constituted an interference with Article 8 rights on their own but, together with the information sharing provisions in sections 23, 26, and 27, such interference would be created.
iii. There are three requirements for an interference to be ‘in accordance with the law’ as per Article 8(2) ECHR. Applying those to Part 4, the Court held:
(a) Firstly, the provision must have a basis in domestic law – Part 4 does as it is an Act of the Scottish Parliament.
(b) Secondly, it must be accessible in the sense that it is sufficiently precise to enable any individual to regulate his own behaviour – Part 4 is too complicated to understand as it has to be constantly cross-referenced with both the Data Protection Act and the Directive to determine its true effects. The Court also noted that both the Data Protection Act and the Directive contain provisions that allow scope for derogation from their requirements by the Westminster and Scottish Parliaments, whereas the 2014 Act includes provisions that should be read in line with existing legislation. This ‘logical puzzle’ as to which takes precedence makes the 2014 Act difficult to interpret and inaccessible.
(c) Thirdly, it must be foreseeable as to its effects in order to provide effective protection against arbitrariness – The information-sharing provisions lack the necessary safeguards to ascertain when parents are to be informed or required to consent to information-sharing and, therefore, lack sufficient protection from arbitrariness. On the basis of requirements (b) and (c), the Court found that the provisions are not ‘in accordance with the law’ and are therefore outside of the legislative competence of the Scottish Parliament.
iv. Although already concluded to be outside the legislative competence of the Scottish Parliament, the Court discussed proportionality. They proceeded with the four part proportionality analysis from Huang v Secretary of State for the Home Department [2007] UKHL 1:-
1. Is the objective sufficiently important to justify the limitation of a protected right? The Court agreed that the objective, to protect the wellbeing of the child, is sufficiently important to justify interference with Article 8.
2. Is the proposed aim rationally connected to the objective? Yes. The aim for early intervention to promote the wellbeing of the child is rationally connected to the objective.
3. Could a less intrusive method have been used without unacceptably compromising the achievement of the objective? The Court did not consider that a less intrusive measure would have been better as requiring parental consent to assign a named person or waiting until the child was at risk to intervene would weaken any opportunity for early intervention.
4. On balance, does the severity of the measure’s effects on the rights of the person outweigh the importance of the objective, or vice versa? Although the Court considered that the operation of the 2014 Act could be proportionate (were it ‘in accordance with the law’), it envisaged times where it could be disproportionate. An example of this is where the information is not classified as ‘sensitive personal data.’ Unlike personal data which is sensitive, which remains bound by the strict restrictions imposed by the Data Protection Act and Directive, there is a lack of any requirement to obtain the consent of the child or their parent to share the information, or a duty to inform that it will be or has been shared. This, in the Court’s view, did not represent a fair balance as required by the fourth part of the proportionality test.
Suggested Amendments
The Court then made suggestions as to how Part 4 could be rectified. It advised that statute should provide more safeguards as to when the information holder should obtain or dispense with parental consent to share information, or inform the parents that information is going to be or has been shared. It also advised that the relationship between the Data Protection Act and the Directive required clarification. Firstly, the aforementioned ‘logical puzzle’ needs to be solved. Secondly, the current threshold of when information can be shared under the 2014 Act needs to be aligned with the Data Protection Act. The 2014 Act provides that information can be shared if the information holder ‘considers’ that the data is ‘likely to be relevant’ and ‘ought to be provided for that purpose,’ whereas the Data Protection Act requires the information sharing to be ‘necessary’ and to create the least interference possible with Article 8 rights to pursue the legitimate aim.
The five judges came to a unanimous decision.
COMMENT
Outcome
The only challenge by the appellants which the Court upheld, thus finding the legislation to be outside the Scottish Parliament’s competence and void, was that the information sharing provisions were not yet sufficiently precise to be ‘in accordance with the law.’
Incompatibility with ECHR
The courts have the statutory power to declare invalid and strike down legislation of the devolved Parliaments. When the courts declare a Scottish Act to be incompatible with the ECHR, their decision is binding and voids the relevant piece of legislation. By contrast, section 4(6) Human Rights Act 1998 (HRA) provides that a declaration of incompatibility with ECHR of UK legislation:
‘(a) Does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given.’
The role of the section 4 HRA declaration is to notify Westminster that an incompatibility has arisen; the decision then lies with Westminster on how to proceed. These declarations are, in practice, greatly influential. Smith v Scott [2007] CSIH
7 remains the only example of where Parliament refused to make changes following a declaration of incompatibility which stated that the blanket ban on prisoner voting was contrary to Protocol 1 Article 3 ECHR.
In order for the courts to make a section 4 declaration of incompatibility, they must first attempt to apply section 3 which allows them to read and give effect to legislation in a way which is compatible with the ECHR ‘as far as it is possible to do so’. This power can give the courts incredible scope to alter the meaning of legislation, for example, Ghaidan v Godin-Mendoza [2004] UKHL 30 in which the Court extended survivorship rights in the Rent Act 1977 to include same-sex couples. Only after section 3 has been considered (and dismissed) can section 4 apply.
Although the courts still have considerable power when reading UK legislation in line with the ECHR, their power over devolved legislation is greater. An explanation for this could be that the devolved Parliaments are very new, justifying Westminster’s desire to supervise and monitor them. Logically, then, there must be a point in time when these ‘new’ or ‘young’ Parliaments become ‘old’ enough to continue without further supervision thus requiring the provisions allowing for suspensory orders to be revoked. It would be impossible to stipulate when this might be.
In Scotland, the ability of the courts to strike down their legislation does not have to be viewed in a negative light. The Scottish Independence Bill (prior to the Scottish Referendum 2014), proposing for amendments to be made to the Scotland Act 1998 wanted to retain the provisions for this power, considering the upholding of the Convention as more important than legislative supremacy. It is also a useful tool to challenge contentious legislation which appears to interfere in our human rights, giving the devolved Parliaments a unique platform from which to make a complaint.
Operation of a Suspensory Order
The decision of the Court to declare legislation void could present the problem of leaving gaps in Scottish legislation. This is doubly problematic in the present case as the NPS has already been implemented in some parts of Scotland and this would need to be unravelled. In order to mitigate the consequences of a declaration of incompatibility, the Court issued a section 102(2)(b) suspensory order under the Scotland Act 1998, which provides the following:
‘(2) The court or tribunal may make an order: … (b) suspending the effect of the decision for any period and on any conditions to allow the defect to be corrected.’
The Court chose to suspend its decision for 42 days. This allows the legislation to remain valid for that time while the Scottish Parliament makes the required amendments. This goes against the traditional approach in administrative law to declare acts or legislation void ab initio (as if it never came into existence) but is an important legislative mechanism as it minimises any public uncertainty arising from gaps in the legislation and no knowledge as to when these gaps would be filled.
By giving some of the control back to the Scottish Parliament, it is possible to draw comparisons between the section 102 suspensory order and section 4 HRA. Both seem to approach the problem of incompatibilities with ECHR from a similar perspective; gaps must not be left in legislation. The key difference is that the Scottish Parliament has to make changes whereas Westminster can choose to leave incompatibilities in place (an option rarely taken).
Conclusion
A crucial observation needs to be made about the outcome of the case. The Supreme Court has not ruled that the NPS can never be implemented – quite the contrary. The judges explicitly approved of the overall aim of the Act as being “unquestionably legitimate and benign” and found nothing wrong with the NPS as a concept. The implementation date of the 2014 Act has been postponed, subject to the suggested areas being tweaked. The parties have until 8th September 2016 to produce submissions correcting any identified defects. The Scottish Parliament still remains determined that it will be passed before the end of the year. So, in terms of those who are against the NPS altogether, it is very much going to be a case of ‘wait and see’ with regards to the changes that are going to be made. What is certain is that this will not be the last we hear of the NPS.
Molly Tatchell
Sources
Nadhamuni, VS ‘Suspending invalidity while keeping faith with nullity: an analysis of the suspension order cases and their impact on our understanding of the doctrine of nullity’ (2015) PL 596, 596-98
Scottish Independence Bill: ‘A Renewed Scotland Act for Independence’ <http://www.gov.scot/Publications/2014/06/8135/5> accessed 19th August 2016
Joint Committee on Human Rights, Human Rights Judgments, Seventh Report of Session, March 2015
<http://www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/13006.htm#a13> accessed 22nd August 2016