Supreme Court blocks Scottish Government’s ‘totalitarian’ Named Person scheme in historic ruling

Judges at the Supreme Court today ruled in favour of family campaigners, and blocked the Scottish Government’s controversial ‘Named Person’ scheme. It is the first time the Court has so broadly struck down legislation passed by the Scottish Parliament.

Dubbed the “State Snooper” scheme by the Scottish press, the Named Person law has endured many months of hostility from the public, and hard questions for the First Minister Nicola Sturgeon and her Deputy, John Swinney.

The scheme sought to appoint a state official for every child in Scotland to monitor their ‘wellbeing’ – defined as “happiness”. This included powers to access and share private data on children and parents, and to provide ‘advice’. One government-funded leaflet said Named Persons would even check whether a child was given a say in what they watch on TV.

In today’s unanimous judgment in The Christian Institute and others v The Lord Advocate (Scotland), the Supreme Court said the Named Person’s wide discretionary powers to share confidential information on families were “incompatible with the rights of children, young persons and parents” under article 8 of the European Convention on Human Rights (ECHR). They struck down the law, which was due to come into force on 31 August.

The appeal was heard by Lady Hale, Lord Wilson, Lord Reed, Lord Hughes and Lord Hodge. Scottish judges Lord Reed and Lord Hodge co-wrote the judgment with the Deputy President of the Court, Lady Hale.

In one devastating line from the judgment, the Supreme Court justices observed:

“The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world.” [Paragraph 73]

The data sharing powers were “central to the role of the named person” [Paragraph 78]. Even if the Scottish Government were to bring in new Named Person legislation, it would be impossible to operate the scheme in the way it wanted.

It has been dogged with problems in the run up to implementation. Unions representing the health visitors and teachers due to be assigned the Named Person role criticised the plans, and a Christian Institute poll in March this year found nearly two-thirds of Scots believed it was an “unacceptable intrusion” into family life.

The Supreme Court said the confused drafting of the law, passed by MSPs in February 2014, created “very serious difficulties” for anyone attempting to understand or implement it and expressed “even greater concern” about “the lack of safeguards” [Paragraphs 83-84].

Power to disclose a “potentially very wide” range of information on children and parents [Paragraph 16] without their knowledge were deemed to “result in interferences with rights protected by article 8 of the ECHR” [Paragraph 78]. These interferences were disproportionate and “do not meet the article 8 criterion of being ‘in accordance with the law'” [Paragraph 85].

The implications of the ruling could be far reaching and not just within Scotland. Health, Education and other authorities across the UK will need to review their sharing of personal data to make sure it properly respects the right to a private family life and the terms of the Data Protection Act.

The Christian Institute co-ordinated the successful legal action. Institute Director, Colin Hart, said today:

“We all accept the good intentions behind this law but a universal data gathering scheme like this was always going to cause major problems. We are very happy with today’s ruling which vindicates what we and others have been saying for years.

“The court even invoked the spectre of totalitarian regimes in its criticism of the plans. This is a devastating blow for the Scottish Government which sought to brush off all criticism of its Named Person scheme as ‘scaremongering’.

“The Supreme Court cited international human rights laws that protect the family and concluded, ‘Within limits, families must be left to bring up their children in their own way’. This strong endorsement of family autonomy will be welcomed by families all across the UK, including Christian families, who sometimes sense a creeping intolerance from government officials.

“Pursuing this case through the Court of Session in Edinburgh and now the UK Supreme Court, we have incurred legal costs totalling £270,000. We expect to recover some of these costs from the Scottish Government but that has yet to be resolved.

“Of course, the wider campaign against the Named Person has also incurred significant costs. The Christian Institute has been delighted over the last two years to be part of the NO2NP (No to Named Persons) campaign. Together we represent a cross-section of people of all backgrounds and beliefs who share a conviction that the Named Person scheme was an unjustified intrusion into family privacy and would be damaging to child protection.

“So much of the campaign has been about puncturing the Scottish Government’s propaganda and raising awareness of what the scheme actually involves. This has been helped immeasurably by parents willing to provide evidence of how Named Person pilot schemes were operating. This evidence proved crucial to the judicial review.

“Today’s ruling will come as a great relief to millions of people. Innocent Scottish families no longer have to wonder whether police, health and education officials are legally allowed to pass around sensitive medical data and family histories behind their backs. They are not.

“This ruling is crystal clear that the Named Person scheme’s cavalier approach to handling private information is unlawful and must not happen.

“The ruling protects families all across the UK from unwarranted invasion of their privacy by the state. We urge local and national government agencies to read the ruling carefully and amend their policies and practices to ensure they properly respect the privacy and autonomy of innocent families.”

Key extracts from the judgment:

1. “The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.” [Paragraph 73]
2. “…there must be a risk that, in an individual case, parents will be given the impression that they must accept the advice or services which they are offered, especially in pursuance of a child’s plan for targeted intervention under Part 5; and further, that their failure to co-operate with such a plan will be taken to be evidence of a risk of harm. An assertion of such compulsion, whether express or implied, and an assessment of non-cooperation as evidence of such a risk could well amount to an interference with the right to respect for family life which would require justification under article 8(2). Given the very wide scope of the concept of ‘wellbeing’ and the SHANARRI factors, this might be difficult. Care should therefore be taken to emphasise the voluntary nature of the advice, information, support and help which are offered under section 19(5)(a)(i) and (ii) and the Guidance should make this clear.” [Paragraph 95]
3. “In summary, we conclude that the information-sharing provisions of Part 4 of the Act … (b) are incompatible with the rights of children, young persons and parents under article 8 of the ECHR because they are not ‘in accordance with the law’ as that article requires, (c) may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information…” [Paragraph 106]

Notes for editors

Read a detailed summary of the judgment and its implications.

The full judgment can be accessed via the Supreme Court website.

The parties to the legal action were:

1. The Christian Institute
2. Family Education Trust
3. The Young ME Sufferers (“Tymes”) Trust
4. CARE (Christian Action Research & Education)
5. James McIntosh
6. Rhianwen McIntosh
7. Deborah Thomas

The Christian Institute is a non-denominational registered charity, which seeks to promote the Christian faith in the UK.

It was founded in 1991 by Christian church leaders and professionals and it currently campaigns on a range of issues including marriage and the family, child protection, pro-life concerns, drugs, religious liberty and education, as well as Christianity and the constitution.