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
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
The government has been working to incorporate the changes required as a result of the OECD's work on BEPS Action 5: Harmful Tax Practices, which requires implementation of a Nexus approach to the Patent Box regime.
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