They argued the scheme breaches article eight of the European Convention on Human Rights – the right to privacy and a family life – as there is scope for disproportionate or excessive interference in the parent’s right to parent and the child’s and parent’s right to privacy. Also that the provisions are beyond the jurisdiction of the Scottish Parliament. Three years ago, the Law Society of Scotland raised similar concerns with the Scottish Parliament’s Education and Culture committee.
The court considered the terms of the act together with other law, including on data protection, human rights, the draft guidance and the UN Convention of the rights of child. The judges confirmed that the aims of the act are praiseworthy but the information sharing provisions are not compatible with ECHR Article 8 rights: “may in practice, result in disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information”.
The court has ordered that the Scottish Government cannot bring the “defective provisions into force”. The court will make an order under section 102 (2) (b)” to allow the Scottish Parliament to have an opportunity to correct the defect which we have been identified”.
Before the court makes an order, they have given the parties 42 days to make written submissions. The court will make the order after looking at the submissions.
What the court said yesterday means that the named person scheme can go ahead but the information sharing part has to be fixed.
The court says it has to be a lot clearer and show how children, young people and families will be protected when private information is shared with and by the named person.
After yesterday’s decision there are still difficult issues to tackle. The Law Society of Scotland will be watching closely as things develop.
l Morag Driscoll is Convener of the Law Society of Scotland’s Family Law Committee.