The Christian Institute and others v The Lord Advocate [2016] UKSC 51  (Supreme Court, 28 July 2016)

Background: The Children and Young People (Scotland) Act 2014 provides for a named person service in relation to children and young people in Scotland and establishes the new professional role of the “named person”. Part 4 of the Act sets out powers and duties relating to information sharing.

Four registered charities and three individual parents challenged Part 4 by way of judicial review on the basis that it is outside the legislative competence of the Scottish Parliament. After the appellants’ challenges were dismissed in both the Outer House and the Inner House of the Court of Session, they appealed to the Supreme Court.

Held: The court determined that the Act’s information sharing provisions were incompatible with the rights of children, young people and parents under article 8 of the ECHR, and therefore outwith the legislative competence of the Scottish Parliament.

The court stated that the law must be formulated with sufficient precision to enable any individual to regulate his or her conduct and that it must indicate with sufficient clarity the scope of any discretion of competent authorities. This had not been done. The court explained that the information sharing provisions in the Act require to be read alongside the Data Protection Act 1998 and that there were “very serious difficulties in accessing the relevant legal rules.” The court was also concerned that there was a lack of safeguards which would enable the proportionality of an interference with article 8 rights to be adequately examined. The court said:

“It is thus 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 professionals 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.” [84]

The court concluded that:

“In short, changes are needed both to improve the accessibility of the legal rules and to provide safeguards so that the proportionality of an interference can be challenged and assessed.” [107]

Note: Clan Childlaw intervened in this case to highlight concerns that the balance between sharing information amongst professionals and the ability of a young person to access confidential services had shifted too far towards the sharing of information, resulting in an unlawful interference with a child’s right to privacy as protected by article 8 of the ECHR.