The Scottish government's Named Person scheme (NPS) has caused a great deal of debate in Scotland since the 2012 consultation paper which commenced the legislative process. Last Thursday the UK Supreme Court ruled that Part 4 of the Children and Young People (Scotland) Act 2014 ("the Act") was incompatible with Article 8 of the European Convention on Human Rights ("ECHR"). As we wait to see what steps the government takes next, this case serves as a useful reminder that the UK Supreme Court is not afraid to fulfil its constitutional duty when it comes to the Scottish Parliament legislating outside its competence.

The NPS is aimed at ensuring that every child in Scotland has a named person appointed. This professional, such as a teacher, midwife, or health visitor, would be a single point of contact in relation to the child. Other processionals and services (GPs, for example) would share information with them. The Scottish Government viewed this as a mechanism for ensuring that the welfare of every child in Scotland is monitored and protected.

Part 4 of the Act provides for the named person to exercise certain functions in relation to the child. These functions (which many will identify as being the responsibility of the parents) include discussions about the child with other service providers. Part 4 also sets out the information sharing duties of the named person when exercising their functions.

The No To Named Persons campaign group, made up of a collection of charities, was set up to oppose the Act. Pulling no punches, they described it as "the most calamitous scheme the Scottish government has ever dreamed up". They brought a judicial review against Part 4 of the Act as being outside the legislative competence of the Scottish Parliament. This was dismissed by both the Outer and Inner Houses of the Court of Session. The UK Supreme Court has now allowed the appeal. 

The legislative competence of the Scottish Parliament is determined by the Scotland Act 1998. Scottish legislation incompatible with the ECHR is specifically noted to be outside the legislative competence of the Scottish Parliament. 

The challenge to Part 4 succeeded. In giving the court's judgment, Lord Hodge identified that the information sharing provisions were in breach of the child and parents' rights under Article 8 ECHR. That is the right to protection of private and family life.

In the judgment, Lord Hodge commented that the aim of the act was "unquestionably legitimate and benign" but that did not cure its defective legislative competence. While there will be some who disagree with Lord Hodge's comment, this judgment serves as a reminder of the constitutional role of the UK Supreme Court when it comes to the devolved legislatures.

In a unicameral parliamentary system, it is the courts that fulfil the role otherwise carried out by a second chamber. The UK Supreme Court has demonstrated that it is willing to intervene, even if both Houses of the Court of Session were not. Legislation passed by the Scottish Parliament - no matter its level of public support, parliamentary goodwill, or legitimate and benign nature - must be in accordance with the law.

This is a timely reminder as the Scottish Government proceeds with plans to retrospectively change the law in terms of the Prescription and Limitation (Scotland) Act 1973 to which some have voiced concerns due to ECHR compatibility issues. The government requires to consider ECHR compatibility very carefully. If they do not, it is clear that the UK Supreme Court is willing to step in.

UK Supreme Court Serves A Timely Reminder On The Legislative Competence Of The Scottish Parliament

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.