On 28 July 2016, the UK Supreme Court issued a ruling on the legality of the Named Person scheme, which is part of the Children and Young People (Scotland) Act 2014.
In their ruling, the UK Supreme Court recognised that the scheme pursued a legitimate aim— promoting and safeguarding the wellbeing of children and young people.
However, they found that the scheme’s proposals around information sharing weren’t compatible with the right to respect for private and family life under Article 8 of the European Convention on Human Rights. Therefore, they were not within the legislative competence of the Scottish Parliament.
Furthermore, as the Data Protection Act 1998 (DPA) requires data to be processed fairly and lawfully, by definition the information-sharing proposals contained within Part 4 of the 2014 Act did not comply with the DPA.
Right now, professionals can share private information about a child or young person without consent if they believe that person is at risk of significant harm.
The Named Person scheme would have lowered the threshold for information sharing, allowing professionals to share information if they were worried about a child or young person’s wellbeing.
The Court ruled that this could give rise to situations where a child or young person’s privacy rights weren’t respected.
What happens now
The Commissioner’s office has previously raised concerns that the scheme’s information sharing provisions might violate a child’s right to privacy.
We hope the changes the Government will make to the scheme will now address these concerns.
Speaking after the Court’s ruling, Commissioner Tam Baillie said:
“The ruling by the Supreme Court confirmed that there is a lack of safeguards around the issue of information sharing under the proposals and that the provisions as they stand, are incompatible with children’s rights.
“The Scottish Government and Scottish Parliament has now been given 42 days to ‘correct the defects’ identified by the Court and my office is prepared to work with them to do this. As part of this work, Scottish Government must engage with children and young people about the issue of sharing confidential, sensitive and personal information.”
Find out more
Access the Scottish Parliament's summary of the judgment.
Download the UK Supreme Court’s press summary of its judgment.
Download the full text of the Supreme Court’s judgment around the Named Person scheme.