Balfour+Manson: Named Person Scheme ruled as unlawful07/28/2016
The UK Supreme Court today (Thursday 28th July) ruled that The Scottish Government's Named Person Scheme, part of the Children and Young People (Scotland) Act 2014, is not compatible with Article 8 of the European Convention on Human Rights (the right to respect for private and family life).
The Scottish Government wants to appoint a “named person” to monitor the welfare of every child in Scotland. Opponents argue the legislation will undermine parents, breach a family's right to privacy and divert resources away from genuinely vulnerable children.
Elaine Motion, Chairman of Balfour+Manson LLP and expert in civil liberties and human rights, represented The Christian Institute and six other petitioners who challenged The Scottish Government in The Supreme Court.
Elaine said: "This is a highly significant and extremely unusual judgment. Successful challenges to legislation are very rare.
"The action was brought as there was an important public interest issue with a real strength of feeling about the potential impact of the named persons scheme across Scottish society. That meant it was right to take the case all the way to the Supreme Court.
"The legal issues were undoubtedly very complex, but put simply, The Supreme Court has decided that the named person scheme, as it stands, breaches Article 8 of ECHR - and is therefore beyond the legal competency of the Scottish Government. In layman's terms, the Supreme Court has said that The Scottish Government has overstepped the line drawn by Article 8 to protect and respect private and family life.
"The Supreme Court has decided that the information sharing details of the named person scheme were not in accordance with law as they were lacking in the necessary precision to give protection against arbitrary interference. That was incompatible with Article 8.
“In addition, the court identified a central problem of the lack of required consent before sharing such information."
Elaine has been involved in the case from its outset. The Court of Session and Appeal Court in Scotland found in favour of the Scottish Government. However, the judgment released today by five Justices of the Supreme Court – including Lord Reed and Lord Hodge, the two Scottish Justices - reached a different conclusion.
In terms of what happens next, Elaine said: "The Supreme Court has invited the Scottish Government to respond with proposals on how the legislation might be amended to make it compatible with Article 8 - within 42 days.
“The remainder of the Children and Young People (Scotland) Act 2014 is unaffected by this challenge, which relates purely to the Named Persons Scheme element of the legislation."