Christian Institute v Lord Advocate [2016] UKSC 51

The Supreme Court held that the named person provisions in Part 4 of the Children and Young People (Scotland) Act 2014, particularly the information-sharing measures, were outside the Scottish Parliament's legislative competence as they breached Article 8 ECHR rights to private and family life.

Facts

The Scottish Parliament enacted the Children and Young People (Scotland) Act 2014. Part 4 established a ‘named person service’, under which every child in Scotland would have an identified individual (typically a health visitor or senior teacher) responsible for promoting, supporting and safeguarding the child’s wellbeing. Central to this scheme were sections 23, 26 and 27, which imposed duties and conferred powers on service providers and relevant authorities to share information about children and young people with named persons and other bodies. The threshold for sharing was whether the information holder considered the information ‘likely to be relevant’ to the exercise of named person functions, with ‘wellbeing’ assessed by reference to eight broad SHANARRI factors (safe, healthy, achieving, nurtured, active, respected, responsible, included).

The appellants — four charities and three parents — challenged the legislation as being outside the legislative competence of the Scottish Parliament.

Issues

The Court identified the following issues:

• Whether the information-sharing provisions of Part 4 ‘related to’ reserved matters, namely the subject-matter of the Data Protection Act 1998 and Directive 95/46/EC, contrary to section 29(2)(b) of the Scotland Act 1998.
• Whether the provisions were incompatible with Article 8 ECHR, in particular whether any interference was ‘in accordance with the law’ and proportionate.
• Whether the provisions were incompatible with EU law, including the EU Charter of Fundamental Rights.

Arguments

Appellants

The appellants argued that the compulsory appointment of a named person breached parents’ Article 8 rights unless consented to or necessary to protect the child from significant harm. They argued the information-sharing provisions related to reserved data protection matters, imposed too low a threshold for disclosure, lacked safeguards, and contravened EU law including the right to be forgotten under Google Spain.

Respondent (Lord Advocate)

The Lord Advocate argued that the purpose of Part 4 was to promote the wellbeing of children, with information-sharing merely consequential. He contended that the relevant Schedule 2 and 3 conditions of the DPA were satisfied, and that the provisions pursued legitimate aims proportionately.

Judgment

Reserved matters challenge

The Court held that Part 4 did not relate to reserved matters. The ultimate aim of Part 4 was to promote children’s wellbeing, with the information-sharing objective being consequential. Section 35(1) of the DPA expressly contemplates that disclosure may be required by an enactment of the Scottish Parliament. The ‘fail-safe’ provisions in sections 23(7) and 26(11) of the 2014 Act ensured that the regime under the DPA was not displaced. Accordingly, the provisions did not ‘relate to’ the subject-matter of the DPA and Directive.

Article 8 ECHR challenge

The Court found that the information-sharing provisions engaged Article 8 rights of children, young people and parents. The relationship between Part 4 and the DPA was so complex and obscure — particularly given the ‘logical puzzle’ created by sections 23(7) and 26(11) read with section 35(1) of the DPA — that the provisions failed the accessibility and foreseeability requirements for being ‘in accordance with the law’. There were also inadequate safeguards against arbitrary interference: there was no requirement to obtain consent, to inform children, young people or parents of disclosure, or to involve them meaningfully in the decision. The Revised Draft Statutory Guidance offered only weak protection, as it merely had to be ‘had regard to’.

On proportionality, the Court applied the four-stage test from Bank Mellat (No 2). While the aims were legitimate and the measures rationally connected, the Act created a low threshold for disclosure and risked disproportionate interferences in individual cases, particularly given the broad SHANARRI factors and the potential for parents to feel coerced into accepting advice or services.

EU Law challenge

The Court rejected a separate EU law challenge beyond that under Article 8, citing Volker und Markus Schecke, and held that the fifth data protection principle in the DPA addressed concerns about retention of data.

Remedy

The Court allowed the appeal, holding that the information-sharing provisions of Part 4 were not within the legislative competence of the Scottish Parliament. Reading down under section 101 of the Scotland Act was not possible. The Court indicated it would consider making an order under section 102(2)(b) suspending the effect of its decision to allow the defects to be corrected, and invited written submissions on the terms.

Implications

The decision is significant in several respects. It confirms that the test for whether a provision ‘relates to’ a reserved matter under section 29(2)(b) of the Scotland Act is not equivalent to the ‘pith and substance’ test used in federal systems; rather, the purpose of the provision must be examined having regard to its effect. The case also clarifies that legislation requiring or authorising disclosure of personal data does not automatically relate to the reserved subject-matter of the DPA, given the derogations the DPA itself permits.

The judgment reinforces that Article 8 ECHR demands that interferences be both clearly grounded in accessible law and subject to safeguards enabling assessment of proportionality. Where information-sharing provisions affect highly sensitive personal data — particularly concerning children — the Court emphasised the need for consent, notification, and clear guidance to information holders.

The decision is also notable for its strong endorsement of the role of the family. The Court drew on the UN Convention on the Rights of the Child and cited Justice McReynolds in Pierce v Society of Sisters, emphasising that ‘the child is not the mere creature of the state’ and that families must, within limits, be allowed to bring up their children in their own way. This passage signals judicial concern about the breadth of state intervention into family life justified by broad and ill-defined notions of ‘wellbeing’.

The judgment matters to legislators, public authorities, social workers, healthcare professionals, educators and families. It establishes that statutory schemes for information-sharing must be drafted with clarity, proportionality, and safeguards; mere reliance on guidance which authorities must only ‘have regard to’ is insufficient where Convention rights are engaged.

Verdict: Appeal allowed. The information-sharing provisions of Part 4 of the Children and Young People (Scotland) Act 2014 were held to be incompatible with Article 8 ECHR and therefore outside the legislative competence of the Scottish Parliament. The Court indicated it would make an order under section 102(2)(b) of the Scotland Act 1998 suspending the effect of the decision to allow the defects to be corrected, with parties invited to make written submissions within 42 days.

Source: Christian Institute v Lord Advocate [2016] UKSC 51