Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 7

P679/14

OPINION OF LORD PENTLAND

In the Petition of

(FIRST) THE CHRISTIAN INSTITUTE;  (SECOND) FAMILY EDUCATION TRUST; (THIRD) THE YOUNG ME SUFFERERS (“TYMES”) TRUST;  (FOURTH) CARE (CHRISTIAN ACTION RESEARCH AND EDUCATION);  (FIFTH) and (SIXTH) JAMES & RHIANWEN MCINTOSH; and (SEVENTH) DEBORAH THOMAS

Petitioners;

for

Judicial Review of the Children and Young People (Scotland) Act 2014

Petitioners:  O’Neill QC,  Van der Westhuizen;  Balfour & Manson LLP

First Respondent:  Clark QC, O’Neill, Solicitor Advocate;  Scottish Government

22 January 2015

Index

The structure of this judgment is as follows:

Introduction - paragraphs [1] to [2]; pages 2 to 3

The parties - paragraphs [3] to [10]; pages 3 to 5

The legislation - paragraphs [11] to [21]; pages 5 to 11

The legislative policy - paragraphs [22] to [39]; pages 11 to 19

Compatibility with Convention rights - paragraphs [40] to [60]; pages 19 to 38

EU law on data protection - paragraphs [61] to [82]; pages 38 to 49

Devolved competence - paragraphs [83] to [89]; pages 50 to 52

Fundamental rights - paragraph [90]; page 52

Standing - paragraphs [91] to [96]; pages 53 to 55

Late production - paragraph [97]; page 55

Conclusions - paragraph [98]; pages 55 to 56

Disposal - paragraphs [99] to [100]; page 56

Introduction
[1]        In this petition for judicial review four charities and three individuals contend that provisions in an Act passed by the Scottish Parliament are "not law".  They say that the provisions are outside the Parliament’s legislative competence, as demarcated by section 29 of the Scotland Act 1998, because they are incompatible with some of the rights guaranteed under the European Convention on Human Rights and with the law of the European Union on data protection.  They also claim that the provisions are unlawful as they contravene fundamental constitutional rights protected by the common law.  The case came before me for a First Hearing, at which the petitioners moved for decree of declarator reflecting these propositions (technically in terms of sub-heads (i), (ii) and (iii) of the orders sought in statement 13 of the petition).  Mr O'Neill QC for the petitioners explained that he did not seek orders in respect of the other forms of relief sought in the petition (these included craves for reduction, suspension and interdict).  The first respondent (the Lord Advocate on behalf of the Scottish Ministers) moved for the petition to be refused on the basis that it disclosed no valid legal grounds for holding the challenged provisions to be unlawful.

[2]        The Act containing the impugned provisions is the Children and Young People (Scotland) Act 2014 (2014 asp 8) (“the Act”).  The Act received Royal Assent on 27 March 2014.  The provisions challenged in the petition are contained in Part 4 of the Act.  In outline, they establish the framework for a scheme creating a new public service referred to as the named person service.  This service will be provided, by force of law, for almost every child and young person in Scotland; there are certain limited exceptions, which I will explain later.  The Scottish Government intends to bring the provisions of Part 4 into force in August 2016, by which stage statutory guidance about how the service is intended to work in practice will have been consulted on and issued.  I note at the outset that because the provisions contained in Part 4 are not yet in force, the new service has not begun to operate;  no named persons have been appointed under the Act;  and no child, parent or family has, as yet, been affected in any practical sense by the exercise of the functions conferred on named persons under the new system.  Mr O'Neill accepted that, in these circumstances, the challenge depended on the proposition that the provisions in Part 4 were in themselves unlawful on the basis that they authorised unjustifiable State interference with the rights of children and young persons and of their parents.  

 

The parties
[3]        The first petitioner is the Christian Institute, a charity registered in England and Wales and in Scotland.  Amongst the purposes of the first petitioner is the furtherance and promotion of the Christian religion in the United Kingdom and elsewhere and the advancement of education.  The first petitioner is actively involved in legal work across the United Kingdom.  It is averred in the pleadings that the first petitioner defends cases of national importance for religious liberty.  The pleadings explain that the first petitioner campaigns in relation to issues of Christian concern, including in relation to proposals for legislative changes, particularly those relating to marriage and the family, religious liberty and free speech and medical ethics.  It is admitted that the first petitioner did not, however, participate in the consultation exercise which led to the Act. 

[4]        The second petitioner is the Family Education Trust, a charity registered in England and Wales.  The pleadings aver that the second petitioner is committed to researching the causes and consequences of family breakdown and promoting the welfare of children and young people.  Again, it is admitted that the second petitioner did not take part in the consultation exercise which preceded the Act.

[5]        The third petitioner is the Young ME Sufferers (“Tymes”) Trust, a charity registered in England and Wales.  It is averred to be the longest established national UK service for children and young people suffering from ME and their families.  It has operated for around 25 years.  It works with and advises families, doctors, teachers, other specialists and the government.  The third petitioner admittedly did not participate in the consultation exercise leading to the Act. 

[6]        The fourth petitioner is CARE (Christian Action Research & Education), a charity registered in England and Wales and in Scotland.  Amongst the purposes of the fourth petitioner is the provision of resources and help to provide Christian insight and experience in matters of law and public policy in the United Kingdom and specifically in Scotland.    

[7]        In the pleadings it is averred that the first to fourth petitioners each has a particular interest and expertise in issues concerning respect for private and family life; freedom of thought, conscience and religion; freedom of expression; and freedom of assembly and association.  The petition explains that they seek to influence the legislatures and executives within the United Kingdom on these issues.  In bringing the present proceedings, the first to fourth petitioners consider that they are acting in the public interest as responsible members of and participants in civil society.  They are concerned about what they perceive to be an excess or misuse of power reflected in the provisions contained in Part 4 of the Act.  Those provisions are said to affect, directly and immediately, parents and children in Scotland whose interests the first to fourth petitioners seek to represent.  The first to fourth petitioners also claim that this alleged excess or misuse of power affects the public generally.

[8]        The fifth and sixth petitioners are a married couple.  They are the parents of four children aged between seven years and six months.  It is averred that they have spoken out publicly against the Act because their children and family stand to be affected by its terms.  They are concerned about what is described in the pleadings as the blanket application of the legislation and that the State should not create mechanisms which undermine their roles as parents.  The fifth and sixth petitioners are Christians; they believe that raising their family is a God-given responsibility placed upon them and not the State. 

[9]        The seventh petitioner is the mother of four children aged between 12 and 26 years.  She is averred to be an active campaigner against the use of wellbeing surveys in State schools across Perth and Kinross because of her concerns about the impact on children and families, including her own. 

[10]      The first respondent is Her Majesty’s Advocate.  He is convened as representing the Scottish Ministers and as the appropriate contradictor in proceedings in which questions are raised as to whether an Act of the Scottish Parliament is within legislative competence.  For convenience, I shall refer in this opinion to the first respondent as “the respondents”.

 

The legislation
[11]      As I have already explained, the part of the Act which is the subject of challenge in the present case is Part 4.  This creates the named person service.  Part 4 begins with section 19.  Since that section is of critical importance in the present case, it is necessary to set out its provisions in full:

“Named person service

 

(1)        In this Part, ‘named person service’ means the service of making available, in relation to a child or young person, an identified individual who is to exercise the functions in subsection (5).

(2)        An individual may be identified for the purpose of a named person service only if the individual falls within subsection (3).

(3)        An individual falls within this subsection if—

(a)        the individual—

(i)         is an employee of the service provider, or

(ii)        is, or is an employee of, a person who exercises any function on behalf of the service provider, and

(b)        the individual meets such requirements as to training, qualifications, experience or position as may be specified by the Scottish Ministers by order.

(4)        An individual does not fall within subsection (3) if the individual is a parent of the child or young person.

(5)        The functions referred to in subsection (1) are—

(a)        subject to subsection (6), doing such of the following where the named person considers it to be appropriate in order to promote, support or safeguard the wellbeing of the child or young person—

(i)         advising, informing or supporting the child or young person, or a parent of the child or young person,

(ii)        helping the child or young person, or a parent of the child or young person, to access a service or support, or

(iii)       discussing, or raising, a matter about the child or young person with a service provider or relevant authority, and

(b)        such other functions as are specified by this Act or any other enactment as being functions of a named person in relation to a child or young person.

(6)        The function in subsection (5)(a) does not apply in relation to a matter arising at a time when the child or young person is, as a member of any of the reserve forces, subject to service law.

(7)        The named person functions are exercised on behalf of the service provider concerned.

(8)        Responsibility for the exercise of the named person functions lies with the service provider rather than the named person.”

 

[12]      It will assist if I now summarise the effect of sections 20 to 25 of the Act. 

[13]      Section 20 of the Act provides that a health board is to make arrangements for the provision of a named person service in relation to each pre‑school child residing in its area.  A pre-school child is one who has not commenced primary school.  Section 21 imposes a duty on local authorities to make arrangements for the provision of a named person service in relation to each child residing in their area, other than a pre‑school child or a child attending a public school managed by a different local authority, a child at a grant‑aided or independent school, a child kept in secure accommodation or a child in legal custody or subject to temporary release from legal custody.  In the case of a child attending a school managed by a different local authority, arrangements are to be made by that authority for the provision of a named person service in relation to the child.  Where the child attends a grant-aided or independent school, the arrangements are to be made by the directing authority of the establishment concerned.  A directing authority is defined in section 32 as meaning the managers of a grant-aided school or the proprietors of an independent school.  Where the child is in legal custody or on temporary release the Scottish Ministers are to make the arrangements.  The only children for whom a named person service does not have to be provided are those serving in any of the regular forces.  From these provisions it is clear that Part 4 of the Act has a wide reach in the sense that the intention is for the named person service to be provided for almost every child and young person in Scotland.

[14]      Section 22 makes provision for the continuation of the named person service in relation to young persons who have, since attaining the age of 18 years, remained at school.  Again, the requisite arrangements are to be made by the local or directing authority responsible for the school.  Section 23 applies where a person ceases to be the service provider in relation to a child or young person.  It imposes duties on the outgoing service provider to inform the incoming service provider of matters relevant to the exercise of the functions of a service provider under Part 4. 

[15]      Section 24 provides that each service provider must publish, in such manner as it considers appropriate, information about the operation of the named person service provided in pursuance of the arrangements made by it.  The information to be published includes how the named person functions are generally exercised, the arrangements generally for contacting named persons and how the service provider generally exercises its functions under Part 4.  Section 25 imposes duties on service providers and relevant authorities to comply with requests for help from the service provider in relation to a child or young person in the exercise of the named person functions.

[16]      Sections 26 and 27 deal with information sharing and disclosure of information.  These provisions are of importance for the purposes of the present case and I shall, therefore, set them out in full:

“Information sharing

 

(1)        A service provider or relevant authority must provide to the service provider in relation to a child or young person any information which the person holds which falls within subsection (2).

(2)        Information falls within this subsection if the information holder considers that—

(a)        it is likely to be relevant to the exercise of the named person functions in relation to the child or young person,

(b)        it ought to be provided for that purpose, and

(c)        its provision to the service provider in relation to the child or young person would not prejudice the conduct of any criminal investigation or the prosecution of any offence.

(3)        The service provider in relation to a child or young person must provide to a service provider or relevant authority any information which the person holds which falls within subsection (4).

(4)        Information falls within this subsection if the information holder considers that—

(a)        it is likely to be relevant to the exercise of any function of the service provider or relevant authority which affects or may affect the wellbeing of the child or young person,

(b)        it ought to be provided for that purpose, and

(c)        its provision to the service provider or relevant authority would not prejudice the conduct of any criminal investigation or the prosecution of any offence.

(5)        In considering for the purpose of subsection (2)(b) or (4)(b) whether information ought to be provided, the information holder is so far as reasonably practicable to ascertain and have regard to the views of the child or young person.

(6)        In having regard to the views of a child under subsection (5), an information holder is to take account of the child’s age and maturity.

(7)        The information holder may decide for the purpose of subsection (2)(b) or (4)(b) that information ought to be provided only if the likely benefit to the wellbeing of the child or young person arising in consequence of doing so outweighs any likely adverse effect on that well‑being arising from doing so.

(8)        The service provider in relation to a child or young person may provide to a service provider or relevant authority any information which the person holds which falls within subsection (9).

(9)        Information falls within this subsection if the information holder considers that its provision to the service provider or relevant authority is necessary or expedient for the purposes of the exercise of any of the named person functions.

(10)      References in this section to a service provider or a relevant authority include any person exercising a function on behalf of a service provider or relevant authority.

(11)      Other than in relation to a duty of confidentiality, this section does not permit or require the provision of information in breach of a prohibition or restriction on the disclosure of information arising by virtue of an enactment or rule of law.”

 

[17]      Section 27 provides as follows:

“Disclosure of information

 

(1)        This section applies—

(a)        where by virtue of this Part, a person provides information in breach of a duty of confidentiality, and

(b)        in providing the information, the person informs the recipient of the breach of duty.

(2)        The recipient is not to provide the information to any other person, unless the provision of information is permitted or required by virtue of any enactment (including this Part) or rule of law.“

 

[18]      Section 28 provides that local authorities, health boards, directing authorities and relevant authorities must have regard to any guidance issued by the Scottish Ministers about the exercise of functions conferred by Part 4.  Before issuing or revising such guidance, the Scottish Ministers must consult with any person to which it relates and such other persons as they consider appropriate.  No guidance has yet been issued.  Mr Clark QC for the respondents informed me that the Scottish Government intends to carry out a public consultation exercise on draft guidance in early 2015.  The government expects to issue the final guidance in the summer of 2015.  Section 29 provides that local authorities, health boards and directing authorities must comply with any direction issued by the Scottish Ministers about the exercise of functions conferred by Part 4.  Again, there must be consultation by the Scottish Ministers before they issue, revise or revoke a direction.  No directions have yet been issued.  Section 30 empowers the Scottish Ministers to make provision by order about the making, consideration and determination of complaints concerning the exercise of functions conferred by or under Part 4.  No such order has as yet been made. 

[19]      Section 31 defines relevant authorities as being the persons listed or within a description listed in Schedule 2 to the Act.  They include authorities such as NHS 24, NHS National Services Scotland, the Scottish Ambulance Service Board, the State Hospitals Board for Scotland, the Chief Constable of the Police Service of Scotland, the Scottish Police Authority and the Commissioner for Children and Young People in Scotland. 

[20]      Other important features of the Act are to be found in Section 96, subsections (1), (2) and (3) of which provide as follows:

“Assessment of wellbeing

 

(1)        This section applies where under this Act a person requires to assess whether the wellbeing of a child or young person is being or would be—

(a)        promoted,

(b)        safeguarded,

(c)        supported,

(d)        affected, or

(e)        subject to an effect.

(2)        The person is to assess the wellbeing of the child or young person by reference to the extent to which the child or young person is or, as the case may be, would be—

Safe,

Healthy,

Achieving,

Nurtured,

Active,

Respected,

Responsible, and

Included.

(3)        The Scottish Ministers must issue guidance on how the matters listed in subsection (2) are to be used to assess the wellbeing of a child or young person. “

 

[21]      No guidance on these matters has yet been issued.  Subsection (4) provides that before issuing or revising such guidance the Scottish Ministers must consult each local authority and health board and such other persons as they consider appropriate.  Subsection (5) provides that in measuring the wellbeing of a child or young person, a person is to have regard to the guidance issued under subsection (3).

 

The legislative policy
[22]      The Scottish Government (and previously the Scottish Executive) have developed the policy underlying the named person service over a lengthy period of time on the basis of extensive consultation and deliberation.  To understand the thinking behind the legislation it is helpful to look at the genesis and evolution of the policy developed by successive governments.

 

For Scotland’s Children
[23]      The history can be traced back to 2001 when the Scottish Executive published a major study entitled “For Scotland’s Children”.  This drew together the conclusions of an investigation carried out by a team of experts from local government, the NHS and the voluntary sector whose task was to look at how better to integrate children’s services.  The resultant action plan proposed a range of ways in which local authorities, the NHS and the voluntary sector could work together to create a single children’s services system.  “For Scotland’s Children" recognised that in many parts of the country children’s services were not cooperating effectively.  It concluded that children and families experienced services as having different objectives, which were sometimes in conflict.  Agencies were operating autonomously and in relative isolation.  The report recommended that those leading children's services must ensure that all children had access to the universal services of health and education.  In most areas this would simply require effective mechanisms for information sharing between agencies. 

[24]      Action point four in the report was in the following terms:

“At every stage, every child should have a named individual who can function as the main point of information/reference for the child, and who can coordinate arrangements for considering whether other, more specialist services are required for the small proportion of children who will need these.  These arrangements should be seen less as a new burden than as a formalisation of what already takes place today through guidance teachers in secondary schools, the class teachers/head teacher in primary schools, key workers in the pre‑school/nursery sector and, historically, by health visitors for younger children.  For the vast majority of children, with a supportive family, the role of the named individual will be minimal and should involve only screening for potential requirement for other services and facilitating transitions e.g. home from maternity unit, into pre‑school provision, to primary school, to secondary school, through school leaving.”

 

 

It's everyone's job to make sure I'm alright
[25]      Government policy evolved further with the publication by the Scottish Executive of a report of the child protection audit and review in 2002.  It was entitled: “It's everyone's job to make sure I'm alright”.  This again was a major piece of work.  Amongst a number of important recommendations, the review included the following:

“Recommendation 10:  Local authorities’ plans for integrated children’s services, as the overarching plans and drivers for all local children’s services, should develop positive childhood initiatives.  These should be led by children’s rights rather than a public service perspective and should promote every child’s rights to life, health, decency and development.  The Executive should support this with a public campaign.”

 

 

Getting it right for every child
[26]      The next important development occurred in November 2009 when the Scottish Government published a report of an evaluation of the early implementation phases of the national programme known as Getting it right for every child ("GIRFEC") carried out across the Highland area between 2006 and 2009.  The executive summary described the national programme in the following terms:

“Getting it right for every child is a national programme that aims to improve outcomes for all children and young people in Scotland.  It seeks to do this by providing a framework for all services and agencies working with children and families to deliver a coordinated approach which is appropriate, proportionate and timely.  While the core components of Getting it right reflect and build on existing good practice across the country, it is also recognised that developments of this breadth and magnitude will necessitate a long‑term commitment to changes in systems, practices and professional cultures.”

 

[27]      The context of the report was that two Pathfinder projects had been established to help shape, develop and test the practice tools and training materials and to inform the development of national guidance for GIRFEC.  The report evaluated the success of the Highland Pathfinder Project.  In particular, it reported on one aspect of the Pathfinder Project which involved every child in the Pathfinder area having a named person in health or education responsible for ensuring appropriate access to services.  The report concluded that as a result of the introduction of a named person service the process of gathering and sharing information about the needs of children was now more consistent in the Pathfinder area and that the quality of information being shared across children’s services had improved to a significant extent.  The report observed that the wellbeing indicators, often referred to by the acronym SHANARRI (derived from safe, healthy, achieving, nurtured, active, respected, responsible and included) played a key part in the GIRFEC practice model.  These criteria informed the processes of identifying and recording concerns, assessing the child or young person’s needs, determining the intended outcomes, agreeing the actions to be taken and reviewing the progress that the child or young person had made.  The SHANARRI criteria have been given statutory effect in section 96(2) of the Act (see paragraph [20] supra).

[28]      In paragraph 13.6 the report described the role of the named person in the following way:

“The universal services in Highland have agreed that every child and young person will have a named person in health or education if they are of school age.  These individuals will be responsible for making sure that the child has the right help in place to support his or her development and wellbeing across the following life stages:

• From pre‑birth until 10 days old, the named person is the hospital or community midwife.
• From 10 days old until entering primary school, the health visitor holds the role.
• On entry to primary school, a named person will be allocated, usually the head or depute head teacher.(Each school makes its own arrangements for appointing a named person for every child.)
• Similarly in secondary schools, a named person will be allocated for every child, taking account of the skills and expertise in place and often the size of the pupil roll.Typically, this has been a deputy head teacher, a principal guidance teacher or, for some pupils, a member of the learning support staff.”

 

[29]      The report then went on to explain that within their own agency the named person would undertake a number of tasks.  These would include being the first point of contact for children and their parents or carers and ensuring that this information is made known to children, young people and their families.

 

Consultation Paper on the Children and Young People Bill
[30]      These various strands of policy development led to the publication by the Scottish Government in July 2012 of a consultation paper on the Children and Young People Bill.  The policy was summarised as a commitment to addressing the challenges faced by children and young people who have experienced poor outcomes throughout their lives.  To do this, it was stated that services had to be child-centred, responsive and joined up.  Achieving this would involve a programme of change that was not limited to any one service, but embraced a change in the culture and practice of all services that affected the lives of children, young people and their families.  There was recognised to be a key role for legislation:  in accelerating the progress already made;  bringing about a step‑change in the way all services supported children and young people;  and inspiring renewed debate and ambition for what children and young people could expect.  The consultation paper explained that for these reasons the government had decided to introduce a Children and Young People Bill.  The legislative proposals were said to be based on the following key ideas:

• A more rapid shift to the early years and early intervention was essential if outcomes were to be improved for the most vulnerable children and young people;
• Such a shift could not be restricted to particular services, but had to be part of a comprehensive shift in how services could work together to support all children and young people at all stages of their lives;and
• The heart of the approach was the aim of making real the rights of children and young people.

[31]      Based on these principles, the consultation paper set out a range of proposals for taking forward the government’s ambitions for children’s rights and services.  To ensure the principles were in place to govern how all services were designed, delivered and reviewed throughout Scotland, the following legislative changes (amongst others) were proposed:

• Services should work to support the whole wellbeing of a child or young person.An approach to welfare would be set out that put an understanding of wellbeing based on the GIRFEC approach at the heart of the design and delivery of services.
• Duties would be placed on public bodies to work together to design, plan and deliver jointly their policies and services so they focussed on improving children’s and young people’s wellbeing.

[32]      The consultation paper observed that in other parts of the United Kingdom there was a precedent for defining wellbeing.  In England and Wales the Children Act 2004 made provision for action to improve wellbeing.  The paper explained that in Scotland the GIRFEC approach put a wider understanding of wellbeing at the heart of its approach.  Wellbeing was defined through the eight SHANARRI wellbeing indicators.  These sought to capture the full range of factors that affected a child’s life.  The government proposed that this understanding of wellbeing should underpin the provisions in the bill.

[33]      Paragraph 106 of the consultation paper was in the following terms:

“Getting it right for every child aims to have in place a network of support to promote wellbeing so that children and young people get the right help at the right time.  This network will always include family and/or carers and it will include a role that we believe should be put into legislation:  the named person.  The named person is a practitioner who can monitor what children and young people need, within the context of their responsibilities, link with the relevant services that can help them and be a single point of contact for services that children and families can use if they wish.  The named person is in a position to intervene early to prevent difficulties escalating.  The named person offers a way for children and young people to make sense of a complicated service environment as well as a way to prevent any problems or challenges they are facing in their lives remaining unaddressed due to professional service boundaries.  Their job is to understand what children and young people need and make the connection to those services that can help.”

 

[34]      In paragraph 113 the consultation paper recorded that some parts of Scotland already had the named person role in place, but it had not been implemented consistently across the whole country or across all services (the service had operated on a non-statutory basis in Edinburgh, Angus and Ayrshire as well as in the Highlands).  The government believed that the time was right to consider a comprehensive approach to providing a named person for all children and young people, one based on a set of legislative duties.  It was, therefore, intended that every child would have a named person from birth up to leaving school.  The role of the named person would build on and strengthen the existing roles in the universal services of public health and school education.  It would clarify the responsibility of other agencies to monitor wellbeing and help them know what to do and who to contact if a child needed extra help or if there were concerns about a child’s wellbeing that they could not themselves meet.  The named person was to be a key role in how collective cooperation and responsibility could deliver what children and young persons needed as part of early intervention and their core duties within universal services.

[35]      Paragraph 120 of the consultation paper explained that in addition to the duty on specific public bodies to put the named person in place, there would be a more wide-ranging duty on all relevant public bodies to cooperate with the named person in the conduct of their duties.  This was said to be of particular importance in certain areas.  These included information sharing.  The paper continued in the following terms:

“The role of the named person depends on the successful sharing of information between services where there are concerns about individual children and young people.  Information sharing can be a complex and, at times, confusing legal environment for practitioners.  Scottish Ministers will consider issuing guidance that would help to clarify the circumstances under which information about the risks to the wellbeing of a child or young person can be shared with or through the named person, but the intention is that such information sharing would occur within existing legal frameworks.”

 

[36]      For reasons which will become clear later, the reference to information sharing taking place within existing legal frameworks is of particular interest.

 

The policy memorandum
[37]      The fundamental aspects of the government's policy were set out in the policy memorandum, which accompanied the introduction of the bill in the Scottish Parliament on 17 April 2013.  Paragraph 13 of the memorandum noted that the bill would improve the way that services worked to support children, young persons and families by inter alia creating a single point of contact around every child or young person.  Paragraph 31 recorded that 72 per cent of the respondents to the consultation exercise on the bill supported the named person service. 

[38]      Paragraph 68 explained that the named person would usually be a practitioner from a health board or an education authority and someone whose job meant that they were already working with the child.  The named person would be in a position to monitor the needs of the child or young person within the context of their professional responsibilities, to link with the appropriate services which could assist the child or young person and to be a single point of contact for services that children and families could use if they wished.  Paragraph 73 stated that the role of the named person would depend on the successful sharing of information between relevant public authorities where there were concerns about the wellbeing of individual children and young people.  Paragraph 76 noted that under the existing arrangements information about a child could be shared where the child was at a significant risk of harm.  The role of the named person was, however, based on the idea that information on less critical concerns about a child's wellbeing had to be shared if a full picture of wellbeing was to be put together and if action was to be taken to prevent those concerns developing into more serious issues.  Without the power to share that kind of information, the named person would not be able to act as effectively as was intended.  The policy memorandum explained that this was a point raised consistently by practitioners and professionals.

 

Summary of the policy
[39]      What all these documents show is that the policy behind the named person service has been developed carefully over more than a decade.  The process of policy development has been informed by a high level of input from experts in child welfare, education, health and care.  The basic aim of the policy and the legislation giving effect to it is that the wellbeing of children will be promoted and safeguarded by providing for every child and his or her family a suitably qualified professional who can, if necessary, act as a single point of contact between the child and any public services from which the child could benefit.  The named person will be in a position to identify any emerging challenges for the child at an early stage and to provide information about and coordinate access to any necessary services for the child.  The named person service is based on the GIRFEC philosophy.  As the policy documents explain, that approach is grounded in putting the best interests of every child at the heart of decision-making; it encourages professionals to work together; and it advocates preventative work and early intervention to support children, young persons and their families.

 

Compatibility with Convention rights
The petitioners' arguments
[40]      The petitioners argued that the enactment of the provisions in Part 4 of the Act was incompatible with a number of rights of the fifth to seventh petitioners guaranteed under the European Convention on Human Rights (“the Convention”), as those rights have been interpreted and developed in the light of various international treaties.  It was submitted that the provisions were, therefore, outside the legislative competence of the Scottish Parliament and were, as it is expressed in section 29(1) of the Scotland Act, "not law".  In outline, the impugned provisions were said to amount to unjustifiable interference by the State with the right to respect for private and family life and for the integrity of the home and to unwarranted interference with the rights of parents to determine, in accordance with their conscience and religion, the proper approach to the welfare and upbringing of their children.  More particularly, it was contended that the creation of a named person service for every child in Scotland constituted unjustifiable interference with the rights of the fifth to seventh petitioners under articles 8 and 9 of the Convention and under article 2 of the First Protocol to the Convention.  Article 8 provides inter alia that everyone has the right to respect for his private and family life.  Under article 8(2) there must be no interference by a public authority with the exercise of that right except such as is in accordance with the law and is necessary in a democratic society inter alia for the protection of the rights and freedoms of others.  Article 9 provides that everyone has the right to freedom of thought, conscience and religion and that freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society inter alia for the protection of the rights and freedoms of others.  Article 2 of the First Protocol provides that no person shall be denied the right to education and that in the exercise of any functions which it assumes in relation to education and teaching, the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

[41]      In support of their claims of infringement of Convention rights, the petitioners maintained that the enactment of the provisions in Part 4 of the Act was also incompatible with the rights enjoyed by the fifth to seventh petitioners under a number of international instruments, namely article 16(3) of the Universal Declaration of Human Rights 1948;  article 23(1) of the International Covenant on Civil and Political Rights 1966 (reference was also made to article 17);  article 10(1) of the International Covenant on Economic, Social and Cultural Rights 1966; and articles 3(2) and 5 of the UN Convention on the Rights of the Child 1969.  Although differently expressed, all these measures aim to safeguard the family and the home against disproportionate interference by the State; they recognise the family as having the primary role in the upbringing and education of children.  One might also refer to article 24(1) of the Charter of Fundamental Rights of the European Union (“the CFR”); this provides that children have the right to such protection and care as is necessary for their wellbeing.  I need not deal separately with any of these international provisions since there was no dispute at the First Hearing that they were relevant to and informed the proper interpretation and application of the Convention rights of the fifth to seventh petitioners.  The petitioners did not, however, advance any stand-alone line of argument based on the terms and effect of the international measures.  Rather, they submitted that they formed part of the backdrop against which their claims of infringement of Convention rights should be evaluated.

[42]      Before turning to examine in more detail the petitioners' complaints insofar as based on infringement of Convention rights, I would observe that the argument ultimately presented was that all the provisions in Part 4 of the Act were incompatible with Convention rights.  The argument was that the whole scheme for establishing a named person service was, in itself, unlawful as being in breach of Convention rights.  It was contended that the petitioners did not have to show that the actual exercise of the named person functions would be incompatible with Convention rights in the circumstances of an individual case; their basic complaint was that a named person was to be automatically allocated to every child without the consent of the child or his or her parents and without there being any assessment as to whether there was a pressing social need sufficient to justify such appointment.   

[43]      Drawing together the essence of the petitioners' complaints about what they regard as the incompatibility of the provisions in Part 4 of the Act with Convention rights, the main themes of their case were as follows.  It was said that Part 4 failed to reflect the principles that any interference with these rights was only lawful if it took place either with the consent of the child or his or her parents or if such interference could be demonstrated to be necessary.  In particular, the provisions contained no means for the child or his or her parents to consent to the named person scheme by electing to opt in or out of it.  Furthermore, there was no provision that, in the absence of consent, the appointment of a named person could be made only if there were substantive grounds for showing that such an appointment was necessary in the case of the individual child for some good reason, such as protection from significant harm.  It was argued that the absence of any threshold conditions for the appointment of a named person meant that the Act contained insufficient safeguards against unwarranted interference by the State in the private and family lives of children and their parents.  The Act, it was contended, laid down no objective basis for interference with these fundamental rights.

[44]      The petitioners also submitted that the interference with Convention rights was not "in accordance with law".  They argued that the framework laid down by Part 4 of the Act was insufficiently transparent, accessible and predictable.  The provisions conferred unduly broad discretionary powers on named persons and thereby provided insufficient protection for children, parents and families against arbitrary interference by the State.

Legitimacy of the legislative aim
[45]      In my opinion, the petitioners have failed to show that any of the provisions contained in Part 4 of the Act are, in themselves, incompatible with any of the Convention rights of the fifth to seventh petitioners.  Mr O'Neill made it clear that the petitioners challenged the aims of the legislation.  The first question to address is, therefore, whether Part 4 of the Act pursues a legitimate aim in the general interest.  At the most general level the objective of the measure is to promote and safeguard the wellbeing of all children and young people in Scotland.  That is clearly a legitimate  aim.  In the context of Convention rights, it is perhaps more appropriate, however, to consider the aim at a somewhat more specific level.  Seen in that way, the objective of Part 4 may reasonably be encapsulated as being the establishment of a system for the appointment of a named person for (almost) every child or young person in the country.  In my opinion, that is also a legitimate aim.  

[46]      The starting point in considering whether the measure's aim is legitimate is to recognise that in the sphere of social policy and child welfare the executive and the legislature must be allowed a wide degree of latitude in deciding on the policies and measures they consider best suited to the conditions of modern society.  There is abundant authority to that effect in the case law.  I need cite only the words of Lord Hope of Craighead in Salvesen v Riddell 2013 SC (UKSC) 236 at paragraph [36]:

"There is no doubt that, as regards the question whether it is pursuing a legitimate aim in the general interest, the Parliament has a broad area of discretion in the exercise of its judgment as to social and economic policy (Hutten-Czapska v Poland, paras 164–166; Gauci v Malta, para 54). Provided that the legislature remains within the bounds of its margin of appreciation, it is not for the court to say whether the legislation represents the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way (James v UK, para 51; Mellacher and ors v Austria, para 53). But there must be a fair balance if the requirement of proportionality is to be satisfied. The balance that must be struck is between the demands of the general interest of the community and the requirements of the protection of the fundamental rights of the individual."

 

[47]      The European Court of Justice made observations along similar lines in the specific context of the conception of child protection shared by all member states in Dynamic Medien Vertriebs GMBH v Avides Media AG [2008] ECR I-505 at paragraph 44.  The court recognised that the conception as to the level of protection and the detailed rules relating to it may vary as between member states.  Accordingly, they must be extended a definite margin of discretion in this area. 

[48]      The petitioners argued that a measure containing provisions such as those in Part 4 of the Act could only be justified if it could be properly characterised as a child protection measure; by this they meant that the legitimacy of the measure's objective depended on whether its provisions required there to be a substantive basis for intervening in the private or family life of a child or young person.  In my view, that argument misses the whole point of the legislation;  Part 4 is based on the view that the protection and welfare of all children will be improved by the introduction of a near-universal system for the appointment of named persons.  It seems to me that the petitioners' argument is flawed because it entails the imposition of undue restrictions on the legislature's freedom of choice and action.  Effectively, it amounts to reformulating and narrowing the aim of the legislation.  In my opinion, it is pre-eminently a matter for the legislature to decide whether the wellbeing of children is likely to be promoted by having a near-universal system for appointing named persons.  In this connection, it is important to recall that the policy has been carefully developed by successive governments over a period of many years; it has been the subject of extensive investigation; there has been shown to be wide support for the introduction of such a system amongst those with expertise in the field; and it has been successfully piloted on a non-statutory basis in various parts of the country.  The advantages of the new service are not difficult to discern: increased scope for early intervention; improved integration and coordination across the public services landscape; reduction in the risk that the needs of vulnerable children will be inadvertently overlooked due to communication difficulties between service providers; and the introduction of a single focal point to ensure that children and their families receive the support and services they need.  It seems to me that whether the right course was to introduce a named person service on a near-universal basis was quintessentially a judgment based on considerations of social policy and one that, for this reason, fell squarely within the margin of discretionary decision-making entrusted to the Scottish Parliament.  It is not the type of judgment which it is appropriate for the court to review.  As the case law has repeatedly emphasised, the court should be careful to avoid substituting itself for the legislative decision-maker or being unduly critical of the reasoning or evidence on which the decision-maker relied (see e.g. R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 394 per Lord Neuberger of Abbotsbury MR at paragraphs 232-233).  The court must resist the temptation to come up for itself with a different solution which it feels is somewhat less restrictive than the one selected by the executive or the legislature; the court is not the forum in which judgments based on the complexities of social policy fall to be made; for one thing the court may not be aware of all the relevant practical considerations.  As Lord Reed said in Bank Mellat v HM Treasury (No 2) [2014] AC 700 at paragraph 93:

"Legislation may be based on an evaluation of complex facts, or considerations (for example, of economic or social policy, or national security) which are contestable and may be controversial.  In such situations, the Court has to allow room for the exercise of judgment by the executive and legislative branches of government, which bear democratic responsibility for these decisions.  The making of government and legislative policy cannot be turned into a judicial process."

 

[49]      In their attack on the aim of the legislation the petitioners, in my view, tended to over-state the likely impact of the provisions in Part 4 of the Act.  It is important to keep a sense of proportion and balance and not to assume that the new service will operate in a way that is inappropriately invasive or disrespectful of private and family lives.  In the great majority of cases the practical effect of allocating a named person to a child or young person is likely to be minimal.  In some cases it may, however, be necessary and justifiable for the named person to become involved to a greater extent, but it does not follow from this that the aim of the legislation is illegitimate.  There is no reason to suppose that named persons will intrude inappropriately or to an excessive degree in the lives of children and young persons or that they will act in a manner likely to undermine family life.  As the policy documents explain, the new scheme is not intended to impose additional burdens on children and families, but rather to introduce an improved system for coordinating the functions traditionally performed by guidance and head teachers and health workers and improving communication between them in the context of promoting and safeguarding the wellbeing of children and young persons.  For all these reasons, I conclude that the aims of Part 4 of the Act (whether stated at a general or at a more specific level) are legitimate and do not contravene Convention rights.

 

The petitioners' case is speculative and hypothetical
[50]      This takes me to what I consider to be a fundamental difficulty facing the petitioners in the present case.  Their complaints are presented, as they can only be at this stage, on an abstract and theoretical level.  They suffer from a lack of practical focus and application.  This difficulty arises for a number of reasons, the first of which is that the scheme set out in Part 4 of the Act does not contain all the relevant components of the system.  The provisions included in Part 4 do not constitute a free-standing scheme in terms of which the named person service can be established and operated.  Part 4 contains merely the basic legislative framework under which the named person system will work, but it will be filled out in important respects by subordinate legislation, statutory guidance and advice from appropriate agencies, such as the Information Commissioner.  It can thus be seen that the named person scheme is at present incomplete for a number of reasons.  In the first place, the Scottish Ministers have not issued any guidance under section 28 about the exercise of the statutory functions.  As I have mentioned already, named person service providers will be subject to a statutory duty to have regard to such guidance.  Secondly, the Ministers have not issued any directions under section 29 about the exercise of those functions.  Again, such directions will have to be complied with.  Thirdly, the Scottish Ministers have not made any provision by order under section 30 concerning the making, consideration and determination of complaints about the exercise of functions conferred by or under Part 4.  Fourthly, the Scottish Ministers have not issued any guidance under section 96 as to how the SHANARRI criteria are to be used to assess the wellbeing of children and young persons.  In assessing wellbeing, local authorities, health boards and such other persons as the Ministers may consider appropriate will be obliged to have regard to such guidance.  In these circumstances, the petitioners' case is based upon only a partial view of the overall legislative scheme.  The importance of this is that all the steps remaining to be taken or put in place are likely to be relevant when it comes to assessing whether functions actually exercised by named persons are in compliance with Convention rights.  In particular, the guidance, directions and subordinate legislation will, in my view, be important in evaluating whether any interference with Convention rights is in accordance with law, as required under article 8.  In this connection, I note that on a number of occasions the Strasbourg Court has made clear that in assessing compatibility with Convention rights it is relevant to have regard to secondary legislation as well as to codes of practice and documents containing guidance as to how statutory powers should be carried out; these can all serve as appropriate safeguards (Silver v United Kingdom (1983) 5 EHRR 347; Gillan and Quinton v United Kingdom (2010) 50 EHRR 45; and MM v United Kingdom (Application no. 24029/07)).  The guidance, directions and subordinate legislation will be relevant if and when it comes to assessing the real impact of the appointment of named persons on children, young persons and their parents and the practical efficacy of the safeguards contained in the legislation.  A further serious difficulty for the petitioners is that no functions have been exercised under the Act in relation to any child or young person.  It follows from the inchoate state of the legislative scheme and from the fact that no named person functions have yet been exercised that the most one can say at the present time is that, after the provisions contained in Part 4 of the Act are, in the future, brought into force and the guidance and other material have been issued, the exercise by a named person of the functions in subsection (5) of section 19 in relation to the children of the fifth to seventh petitioners may possibly engage the Convention rights of those petitioners as parents of the children to whom the named persons are appointed.  In my opinion, it would be wholly unjustified for the court to declare provisions contained in an Act of the Scottish Parliament to be ultra vires when they merely create the potential for infringement of Convention rights.  If that was all that was needed for a successful challenge it would mean that a wide range of legislation would be vulnerable.  That cannot be right.  As Lord Nicholls of Birkenhead said in In re S (Care Order: Implementation of Care Plan) [2002] 2 AC 291 at paragraph 56 (in the context of the Children Act 1989), the mere possibility that something may go wrong with the authority's discharge of its statutory responsibilities or its decision-making processes and that there would then be a breach of an affected person's article 8 rights does not mean that the legislation itself is incompatible with article 8.   

[51]      The petitioners' argument depended on the proposition that because the Act authorised the appointment of named persons to every child in Scotland (subject to very limited exceptions) and because there was no threshold for appointment based upon the criterion of necessity and no requirement for consent to be obtained, it was inevitable that the appointment of a named person to the children of the fifth to seventh petitioners would breach the Convention rights of those petitioners.  It seems to me that there are a number of basic weaknesses in that line of argument.  First, the fact that the named person service will be provided for (nearly) every child and young person does not, in itself, necessarily mean that there will be a breach of Convention rights.  This will depend on the practical effect of appointment in the particular circumstances of an individual child or young person.  Secondly, the petitioners' argument amounted to saying that the functions conferred by the Act on named persons were not capable of being exercised in a manner that would be compatible with Convention rights.  This approach is, in my opinion, fundamentally misconceived.  It ignores the fact that, in carrying out their statutory functions, a named person service provider would be exercising functions in the public interest and would be acting in the sphere of public law.  Accordingly, the service provider would have to respect the Convention rights of the children and parents involved.  I see no basis for holding that the statutory functions of a named person are incapable of being exercised in a manner that respects Convention rights.  As a subsidiary branch of their argument, the petitioners submitted that a directing authority responsible for an independent or grant-aided school would not be bound to respect the Convention rights of children or young persons in making available the named person service.  They referred to YL v Birmingham City Council and others [2008] 1AC 95.  In my opinion, that case is not helpful in the present context.  Unlike the private sector care provider in YL, the directing authority would be exercising a statutory function directly imposed on it under the Act and would for that reason be carrying out public functions.  In such circumstances, the authority would have to respect Convention rights.  In any event, the particular question as to the exact legal status of a directing authority does not arise in any practical sense at the present time; again, the point is hypothetical. 

[52]      In this state of affairs, it would be wrong for the court to declare in these proceedings that any of the Convention rights invoked by the petitioners have been breached by the enactment of the Act.  To do so would be to strike down statutory provisions on an abstract and theoretical basis at a stage when the legislative landscape has not been fully formed and when important practical steps and measures likely to be highly relevant to the assessment of compliance with Convention rights remain to be taken and put in place.  Moreover, nothing is known about the practical impact of the new system on any individuals.  It cannot, as matters presently stand, be said that there has been any interference with any of the Convention rights of the fifth to seventh petitioners.  Taking matters a little further, I do not see how it is possible for the court to carry out any adequate proportionality assessment as matters currently stand.  Suppose, for example, that the named persons appointed in due course to the children of the fifth to seventh petitioners were to take no substantive steps in the exercise of their statutory functions because, having paid due regard to the applicable guidance by then available, they are satisfied that the children are perfectly well cared for by their parents.  There are no concerns about their wellbeing and accordingly there is no need for the named persons to exercise any of their statutory functions.  It appears to me to be most unlikely in that state of affairs that the appointment of the named persons would be held to be disproportionate.  If that outcome is accepted to be at least a realistic possibility (as it seems to me to be), it would be wrong for the court to declare the legislation to be contrary to Convention rights on an advance basis.  At the end of the day, I consider that the petitioners' concerns are not actually with the existence of the provisions in Part 4; rather they are based on concerns as to how the new statutory functions may in the fullness of time come to be exercised (this comes through clearly from the affidavits lodged on behalf of the petitioners).  So seen, the petitioners' complaints are speculative and cannot form a proper basis for judicial review.  The mere conferral of statutory functions does not in itself constitute an actionable interference with Convention rights.

 

The proportionality of Part 4 of the Act
[53]      As I have already said, I do not believe that it is possible at this stage to carry out a meaningful and comprehensive assessment of the proportionality of the provisions in Part 4 of the Act.  I would, however, make the following observations.  In Bank Mellat supra Lord Reed (at paragraphs 72 - 74) considered the analytical approach to assessing proportionality which has been developed in Commonwealth jurisdictions, particularly in Canada.  His Lordship explained that this is the approach that has been adopted in UK case law under the Human Rights Act 1998.  It has been found helpful to break down the assessment into four distinct elements with a view to making the value judgements involved more explicit.  The approach can be summarised by saying that it is necessary to determine : (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right; (2) whether the measure is rationally connected to the objective;  (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.  Applying, as best one can at this stage, the four criteria identified by Lord Reed, I would make the following observations.  First, the measure's objective is clearly an important one.  Part 4 of the Act has the theoretical potential to limit protected rights in some (I think not many) individual cases, but it is not possible to draw any firm general conclusions at the present time.  In many cases the practical impact will be slight.  With regard to the second criterion, the provisions in Part 4 are rationally connected to the aim: they require the appointment of named persons to (nearly) every child and young person in Scotland; that is the whole idea underlying the new service.  As to the third criterion, the court should be wary of coming up with alternative solutions to the problem addressed by the legislation.  I would also observe that insofar as the petitioners submitted that the legislation was disproportionate because it did not require there to be consent or allow for opting in or out of the new scheme, it seems to me that to have either of these as requirements would run counter to and be liable to defeat the aim of the measure.  Finally on the fourth criterion, it is impossible to carry out the type of balancing exercise referred to since the legislation has not yet had any practical impact on individuals. 

[54]      Looking somewhat more generally at the question of proportionality, it is important to recall that Part 4 contains a number of important safeguards.  These may be summarised as follows: named persons will have to be properly trained, qualified and experienced (section 19(3)(b)); information will have to be published about the operation of the new service (section 24); there are a number of specific protections built into the provisions on information sharing set out in sections 26 and 27 - I shall deal with these more fully infra; authorities will have to have regard to guidance issued by the Scottish Ministers (section 28) and comply with directions issued by the Ministers (section 29);  provision is made for the setting up of a complaints system (section 30);  and authorities will have to have regard to guidance issued by the Ministers on the assessment of wellbeing (section 96).  Having regard to the existence of these safeguards, I do not believe that one can say that the provisions in Part 4 of the Act are necessarily disproportionate to the legitimate aim of the legislation. 

 

Are the provisions in Part 4 of the Act in accordance with the law? 
[55]      Finally on this aspect of their case, the petitioners argued that the appointment of a named person would not be in accordance with the law, as required under article 8, because the provisions in Part 4 were not sufficiently precise and accessible for the purpose of enabling individuals to foresee with a reasonable degree of accuracy how they are liable to be affected by the legislation and so as to protect them against arbitrary application of its provisions.  I do not accept this argument.  In my opinion, the provisions in Part 4 provide a sufficiently transparent and predictable code of rules for the purposes of enabling individuals to understand the legal framework governing the new service.  As to the details of how the named person scheme is intended to operate at a practical level, one will have to wait for the statutory guidance and other materials already referred to.  Only once all that information becomes available will it be possible to make a comprehensive assessment of whether the entire legislative scheme is in accordance with law.  It is worth noting on this branch of the case that in Olsson v Sweden 1989 11 EHRR 259 the Strasbourg Court made clear, in the context of a case concerning the taking of a child into public care, that the circumstances in which such a decision might have to be taken were so variable that it was impossible to formulate a law so as to cover every eventuality.  It was not necessary to confine the circumstances in which a child might be taken into care to those where actual harm to the child had already occurred; such an approach would reduce the effectiveness of the protection.  Steps taken under legislation which was general in terms and conferred a wide measure of discretion would still be in accordance with the law.  In the light of that guidance, I have no difficulty in concluding that the provisions in Part 4 of the Act are sufficiently clear, accessible and predictable to qualify as being in accordance with law.

 

Sections 26 and 27
[56]      So far I have dealt with the petitioners' Convention rights challenges in relation to Part 4 of the Act taken as a whole.  That was largely the way in which their case was presented.  They did, however, at some points in their written and oral submissions on Convention rights deal separately with the information sharing scheme created by sections 26 and 27.  Much of what I have already said about the weaknesses in the petitioners' Convention rights case applies with equal force to these sections.  I would only add the following.  The information sharing provisions in sections 26 and 27 are, of course, integral to the scheme creating the named person service in Part 4 of the Act.  Like the other provisions in Part 4, sections 26 and 27 are directed towards the promotion of, support for and safeguarding of the wellbeing of children and young persons.  Thus, information can be shared where it is considered relevant to the exercise of the named person functions; those functions are defined in section 19 by reference to the promotion, safeguarding and support of wellbeing.  Information may also be shared if it is thought likely to be relevant to the exercise of functions of other authorities which affect wellbeing or may do so.  The named person service provider may also share information with other authorities if to do so is considered necessary or expedient for the exercise of any of the named person functions.  For the reasons I have already given, I am in no doubt that the aim of these provisions is legitimate.

[57]      As I have already explained, the legislative scheme is not yet complete.  No guidance has been issued under sections 28 or 96.  In these circumstances, the most one can say is that  the sharing of some information about the children of the fifth to seventh petitioners may possibly engage the Convention rights of the children or their parents under article 8.  It seems to me, however, that any information holder would have to respect such Convention rights in exercising the powers conferred by section 26.  Those powers would be carried out in the sphere of public law and would be of a public nature.  Moreover, section 26(11) reinforces the point that the information holder could not share information if to do so would infringe Convention rights.  That subsection makes it clear that information cannot be shared in breach of a prohibition or restriction on the disclosure of information arising by virtue of an enactment or rule of law.  The language is apt to cover disclosure in breach of Convention rights.  In these circumstances, there is no basis on which the court could properly grant declarator at the present time to the effect that the information sharing provisions are in breach of Convention rights.

[58]      It is important to note also that section 26 itself contains a number of safeguards against the type of indiscriminate disclosure by the State of personal data which gave rise to concern in R(T) v Chief Constable of Greater Manchester Police [2014] 3 WLR 96.  For example, information is to be shared under subsections (2) and (4) only if certain conditions are met.  These include the information holder being satisfied that the sharing is likely to be relevant to the exercise of the named person functions or functions affecting wellbeing.  The holder must also consider that the information ought to be provided for the relevant purpose.  It follows that the information holder will be required to make a judgment, in the whole circumstances of the particular case, as to whether disclosure of information is justified.  In deciding whether information ought to be shared, it is reasonable to presume that the holder will take into account inter alia the privacy interests of those concerned and the extent to which the information may be regarded as confidential.  Moreover, subsection (5) requires the information holder to ascertain (so far as reasonably practicable) and have regard to the views of the child or young person in considering whether information ought to be shared.  There is an important further safeguard provided for in subsection (7); this makes clear that an information holder is entitled to conclude that information ought to be shared under subsections (2) and (4) only if the likely benefit to wellbeing outweighs any likely adverse effect.  Under subsections (8) and (9), information may be shared if the holder considers that its provision is necessary or expedient for the purposes of the exercise of any of the named person functions.  The petitioners criticised the criteria of necessity and expedience as being too imprecise, but I think that they in fact provide an important measure of protection because the link to the named person functions means that the information can be shared only where this will promote or safeguard wellbeing.  Finally on safeguards, section 27 provides another level of protection.  It means that where the recipient of confidential information is made aware of the underlying confidentiality, it must continue to respect the confidentiality of the information.  In my opinion, the fact that the legislative framework provides  for so many safeguards and layers of protection in regard to the sharing of information makes it impossible to say that sections 26 and 27 are, in themselves, disproportionate or that the provisions are not in accordance with the law.  It appears to me that these provisions do not go further than is necessary for the purpose of giving effect to the legitimate objectives of the legislation.  In this connection, it is important to acknowledge that in recent times there have been a number of tragic cases in which serious public concern has been expressed because authorities have failed to act in a co-ordinated manner and to share information timeously so as to prevent or reduce the risk of children suffering serious harm.

 

Article 9 and article 2 of the First Protocol
[59]      So far, I have taken the petitioners' complaints about infringement of a number of Convention rights together; that is in line with how their case was presented, both in writing and orally. It will be noted that much of the analysis is of the type usually adopted in cases brought under article 8, but it applies just as much to the other articles of the Convention which the petitioners briefly mentioned.  I would add that so far as the case brought under article 9 is concerned, it manifestly lacks merit in my opinion.  The petitioners have failed to identify in what way the existence of the provisions in Part 4 of the Act interferes with the article 9 rights of the fifth to seventh petitioners.  I do not see any basis upon which it can be said that the provisions in Part 4 interfere with the rights of the fifth to seventh petitioners to freedom of thought, conscience or religion or with their freedom to manifest religious or other beliefs.  The fifth to seventh petitioners' freedoms in these various respects are not affected by the enactment of the provisions in Part 4.  These petitioners remain entirely free to hold and to exercise the same beliefs as they did immediately before the enactment of Part 4.  In the circumstances, I am not persuaded that the provisions of Part 4, in themselves, engage the article 9 rights of the fifth to seventh petitioners.  So far as the alleged infringement of the rights of the fifth to seventh petitioners under article 2 of the First Protocol is concerned, this aspect was barely touched on in the debate at the First Hearing; nor does it feature to any significant extent in the petitioners' written submissions.  Again, I consider that this aspect of the petitioners' case is unsound.  I am unable to identify any basis upon which it can be said that there is any interference with these rights arising from the enactment of Part 4.  Those provisions in themselves have no impact on the rights protected under article 2 of the First Protocol.

 

Conclusion on Convention rights challenges
[60]      For these various reasons, I have concluded that none of the provisions contained in Part 4 of the Act is incompatible with any of the Convention rights of the fifth to seventh petitioners.  Accordingly, it follows that the legislation is not outside the legislative competence of the Scottish Parliament on that ground.

 

EU law on data protection
The petitioners' arguments
[61]      The petitioners submitted that the sharing of information under section 26 of the Act would be incompatible with the data protection requirements of Directive 95/46/EC of the European Parliament and the Council (“the Directive”), as read and applied in the light of the CFR.  Such sharing of information would also be incompatible, it was argued, with the Data Protection Act 1998 (“the DPA”).  The petitioners contended that the information sharing provisions of the Act involve a wholesale and unlawful lowering of the threshold for permissible data disclosure without consent.  It was said that EU law afforded the protection of personal data a high degree of importance.  Reference was made to article 16 of the Treaty on the Functioning of the European Union ("the Treaty"), which provides that everyone has the right to the protection of personal data concerning them.

[62]      The petitioners relied also on articles 7 and 8 of the CFR.  Article 7 provides that everyone has the right to respect for his or her private and family life, home and communications.  Article 8 states that everyone has the right to the protection of personal data concerning him or her and that such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law.  Article 8(3) requires compliance with these rules to be subject to control by an independent authority.

[63]      The petitioners’ case is that because section 26 (and consequently section 27) are incompatible with EU law they are outside the legislative competence of the Scottish Parliament by virtue of section 29(2)(d) of the Scotland Act 1998.  The petitioners argued that there was a general requirement under EU law that the sharing and retention of personal data is only allowed where this can be shown to be strictly necessary.  In support of that proposition the petitioners relied on certain passages from the opinion of the Grand Chamber of the Court of Justice in Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others [2014] 3 CMLR 44 in which the court declared Directive 2006/24 on the retention of data generated or processed by a public electronic communications service or network to be contrary to articles 7 and 8 of the CFR.  It is sufficient for present purposes to refer to two short sections from the court's opinion.  In paragraph 48 the court observed that in view of the important role played by the protection of personal data in the light of the fundamental right to respect for private life and the extent and seriousness of the interference with that right caused by Directive 2006/24, the EU legislature's discretion was reduced, with the result that review of that discretion should be strict.  In paragraph 52 the court reiterated that its settled case law made it clear that the protection of the right to respect for private life required that derogations and limitations in relation to the protection of personal data must apply only insofar as strictly necessary.  The court concluded that Directive 2006/24 did not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in articles 7 and 8 of the CFR.

[64]      The petitioners argued that sections 26 and 27 of the Act permitted the sharing of personal data in circumstances where it could not be said that this was strictly necessary.  The information sharing provisions in sections 26 and 27 were accordingly in breach of article 7 of the Directive.  The provisions of the Act were also said to fail to provide sufficient safeguards against the unlawful sharing of personal data.  Finally, it was submitted that the provisions did not provide for a “right to be forgotten”.  In the course of their submissions on this branch of the case the petitioners referred to a number of authorities; these included:  R(T) v Chief Constable of Greater Manchester Police and others supra; Gillan and Quinton v United Kingdom supra; Criminal Proceedings against Bodil Lindqvist [2003] ECR I-12971; Volker und Markus Schecke GbR v Land Hessen [2010] ECR I-11063; and Google Spain SL and another v Agencia Española de Proteccion de Datos and another [2014] 3 WLR 659.  The petitioners also cited article 52(1) of the CFR, which provides that any limitation on the exercise of the rights and freedoms laid down by the CFR must be provided for by law, respect their essence and, subject to the principle of proportionality, limitations may be made to those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.  Finally, the petitioners briefly mentioned in their written submissions articles 14(3) and 33(1) of the CFR.  Article 14(3) protects the rights of parents to educate their children in conformity with their religious, philosophical and pedagogical convictions.  Article 33(1) provides that the family shall enjoy legal, economic and social protection. 

 

The structure of the information sharing scheme created by sections 26 and 27 of the Act
[65]      Before turning to consider the petitioners’ arguments on EU law, it will be helpful to look a little more closely at the structure and detail of the information sharing scheme created by sections 26 and 27 of the Act.  Subsections (1) and (2) impose duties on service providers and relevant authorities to provide information to named person service providers if the information holder considers that (a) the information is likely to be relevant to the exercise of the named person functions in relation to the child or young person and (b) the information ought to be provided for that purpose and (c) provision of the information would not prejudice a criminal investigation or prosecution.  Subsections (3) and (4) deal with the other side of the equation – that is with the provision of information by named person service providers to service providers or relevant authorities.  Again, the subsections impose duties, this time on the named person service provider, to provide information if it considers that it is likely to be relevant to the exercise of any function of the service provider or relevant authority which affects or may affect the wellbeing of the child or young person.  The named person service provider must also consider that the information ought to be provided for that purpose and that a criminal investigation or prosecution would not thereby be prejudiced.

[66]      As I have already explained, in terms of subsections (5) and (6), in considering whether information ought to be provided, the information holder is to ascertain and have regard to the views of the child so far as reasonably practicable.  In doing so, the holder must take account of the child’s age and maturity.  Subsection (7) provides that the information holder may decide that information ought to be provided only if the likely benefit to the wellbeing of the child or young person as a result of doing so outweighs any likely adverse effect.

[67]      Subsections (8) and (9) empower a named person service provider to provide information to a service provider or relevant authority if the information holder considers that it is necessary or expedient to do so for the purposes of the exercise of any of the functions of the named person service provider.  The focus of subsections (8) and (9) is on the functions of the named person service provider.  This may be contrasted with subsections (3) and (4) where the focus is on the functions of a service provider or relevant authority.  Another point of distinction is that whereas subsections (1) and (2) relating to the provision of information by service providers and relevant authorities and subsections (3) and (4) relating to the provision of information by named person service providers speak in terms of duties, subsections (8) and (9) are empowering in nature.  In the course of argument at the First Hearing an example of the sort of circumstances in which subsections (8) and (9) might come into play was given.  A named person, in the context of the example a head teacher, might wish to disclose to the Scottish Sports Council (a relevant authority) that she has a number of pupils attending her school who have physical disabilities and for whom she would like to make available additional specialised provision for physical education.  She believes that this would promote the children's wellbeing.  She wishes to know what public funds might be available for this purpose and considers that the authority might be in a position to assist.  The disclosure of the information that there are disabled pupils at the school would be information which the named person considers it would be expedient (i.e. helpful) to provide to the relevant authority for the purpose of the exercise of the named person's functions.  The situation would accordingly be one covered by subsections (8) and (9) so that the head teacher would be entitled to disclose the information about her disabled pupils to the Scottish Sports Council.     

[68]      Finally, subsection (11) is of importance.  It says that except in relation to a duty of confidentiality, nothing in section 26 permits or requires the provision of information in breach of a prohibition or restriction on the disclosure or information arising by virtue of an enactment or rule of law.

[69]      Section 27 makes clear that the recipient of information provided to him in breach of a duty of confidentiality must not provide the information to any other person unless required to do so by virtue of any enactment or rule of law.

 

Three preliminary observations
[70]      In considering the petitioners’ case insofar as it is based on alleged incompatibility with EU law, three preliminary observations may be made.  First, there may be information which comes to be shared under section 26 that does not qualify as personal data; the section is not drafted so as to apply only to personal data.  Secondly, as I have already observed, no guidance has yet been issued by the Scottish Ministers under section 96(3) of the Act as to how the wellbeing of children and young persons is to be assessed in terms of the SHANARRI criteria.  The assessment of wellbeing will be a key concept in operating the provisions of the information sharing scheme.  Thirdly, the Act has not yet been brought into force with the consequence that no decision has yet been made about the sharing of any information concerning any child or young person.  From this it can be seen that this branch of the petitioners' case is again presented on an abstract and theoretical basis.

 

Analysis of the petitioners' arguments
[71]      Turning to the substance of the petitioners' arguments on alleged incompatibility with EU law, it seems to me that the starting point is to note that under article 5 of the Directive it is left to member states, within the limits set in chapter II of the Directive, to determine more precisely the conditions under which the processing of personal data is lawful.  This contemplates that national legislatures will introduce detailed rules governing the sharing of information, but such schemes must conform to the requirements of the Directive.  Article 6 sets out a number of principles relating to data quality and states inter alia that member states shall provide that personal data must be (a) processed fairly and lawfully; (b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes; and (c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed.  Article 7 lays down a number of criteria for making data processing legitimate.  It requires member states to provide that personal data may be processed only if one or more of a number of conditions is satisfied.  These conditions include that the data subject has unambiguously given his consent or that processing is necessary for compliance with a legal obligation to which the controller is subject or that processing is necessary in order to protect the vital interests of the data subject.  Other conditions which can allow for lawful processing of personal data are that the processing is necessary for the purposes of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed.  The Court of Justice has confirmed that the conditions set out in article 7 constitute an exhaustive list of cases in which the processing of personal data can be regarded as lawful (Asociacion Nacional de Establecimentos Financieras de Credito  v Administracion del Estado [2011] ECR 1-12181).

[72]      The petitioners' ultimate approach (as clarified and confirmed in Mr O'Neill's oral submissions) was that the sharing of personal data under section 26 of the Act could not, in any circumstances, be said to be necessary for any of the purposes identified in article 7 of the Directive.  In other words, any sharing of information amounting to personal data under the provisions in the Act would inevitably constitute unlawful processing.  The breadth of that proposition will be immediately obvious. 

[73]      In considering the petitioners' submissions, one must take account of the effect of the DPA.  This, of course, is the measure which transposed the provisions of the Directive for the purposes of the legal systems in the United Kingdom.  As is well‑known, section 4(4) of the DPA provides that the data controller has a duty to comply with the data protection principles in relation to all personal data with respect to which he is the data controller (there is an exception for exempt data, but that is of no relevance for present purposes).  Schedule 1 to the DPA sets out the data protection principles; these too have become familiar.  The first principle is that personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless one of the conditions in Schedule 2 is met and in the case of sensitive personal data at least one of the conditions is Schedule 3 is also met.  In the present context it is perhaps relevant to mention also the third principle, which is that personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. 

[74]      Schedule 2 sets out the conditions relevant for the purposes of the first data protection principle. The conditions reflect the criteria in article 7 of the Directive.  For present purposes, condition 3 is of interest.  It is that the processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.  Condition 5(b) is also important.  It is that the processing is necessary for the exercise of any functions conferred on any person by or under any enactment.  Section 70(1) of the DPA, as amended by the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999, defines "enactment" as including an enactment passed after the DPA and any enactment comprised in an Act of the Scottish Parliament.  So the Act qualifies as an enactment for the purposes of the DPA generally and for the purposes of this condition in particular.

[75]      Schedule 3 to the DPA sets out the conditions relevant for the purposes of the first data protection principle (i.e. that personal data must be processed fairly and lawfully) in the case of sensitive personal data.  Condition 7(1)(b) is that the processing is necessary for the exercise of any functions conferred on any person by or under an enactment (now including an Act of the Scottish Parliament).

[76]      In my opinion, it is clearly the case that any processing of personal data under and in terms of the scheme established by sections 26 and 27 of the Act will have to comply with the requirements of the DPA and with the Directive.   The obligations incumbent on a data controller (it was accepted that this would extend to an information holder in terms of section 26) under the DPA are unaffected by the terms of sections 26 and 27.  The DPA has not been amended (far less abrogated) by the Act.  It continues in force alongside the Act.  So, for example, in considering whether it ought to provide information under sections 26(1) or (3) the information holder will have to observe the data protection principles.  It will be recalled that subsections (2) and (4) each specifically require consideration to be given to whether information ought to be provided.  In the case of information provided in terms of subsections (8) and (9) the information holder will likewise have to comply with the data protection principles.  Under all these provisions of the Act the information holder will, therefore, have to process personal data fairly and lawfully in accordance with the pre-existing laws of the European Union and of Scotland - the Directive, the DPA, Convention rights and the CFR.  In doing so, it will also have to satisfy one of the conditions in Schedule 2 to the DPA and in the case of sensitive personal data one of the conditions in Schedule 3 also.  The Scottish Government will issue guidance on these matters in due course.  The petitioners argued that sections 26 and 27 lowered the threshold for lawful sharing of personal data in the sense that the provisions introduced less stringent tests than those required under EU law.  In my opinion, that argument is misconceived.  It proceeds on the mistaken basis that the information holder will no longer have to act in compliance with the Directive and the DPA.  The correct position is to contrary effect: he or she will continue to be subject to the principles and rules contained in those measures insofar as they apply to the processing of personal data.  This is not to relegate the effect of those rules and principles to the status of mere procedural requirements, as the petitioners at one point sought to submit.  The real point is that nothing in sections 26 and 27 of the Act derogates from the substantive protections on the processing of personal data established by the Directive and the DPA.  The petitioners submitted that EU law stipulated that personal data could only be lawfully processed where the processing could be shown to be strictly necessary.   They based that submission on Digital Rights Ireland Ltd supra.  In that case the Court of Justice did not, however, seek to introduce any such requirement for the lawful processing of personal data or to qualify or limit the effect of the Directive in the way that the petitioners suggested.  The focus of the decision in Digital Rights Ireland Ltd was on the different question as to whether Directive 2006/24 was contrary to articles 7, 8 and 52(1) of the CFR.  In my view, the petitioners' argument misinterprets the Grand Chamber's ruling and seeks to add an unjustifiable gloss to article 7 of the Directive, for which there is no support in the opinion of the Court of Justice.  The petitioners also sought to read into article  7 of the Directive the requirement that personal data should be processed only where this could be shown to be strictly necessary.  In my view there is no justification for so doing. 

[77]      The fact that information holders will continue to be subject to the DPA and the Directive and the general requirements of EU law (including the CFR) when acting under section 26 of the Act is reinforced and underscored by the terms of section 26(11).  This makes it clear that nothing in section 26 detracts from or weakens the effect of restrictions or prohibitions arising by virtue of inter alia the DPA.  The petitioners argued that the reference in the subsection to a duty of confidentiality meant that the effect of the provision was to lower the threshold of protection given to personal data under the DPA.  In my view, that would be a perverse and nonsensical reading of the provision.  Read fairly and in context, the duty of confidentiality referred to must be such a duty arising other than under the DPA, for example a common law duty of confidence.  I note that this was the explanation provided  by the Minister for Children and Young People when she moved an amendment to the terms of the provision at stage 2 of the Bill's passage through the Scottish Parliament (7 January 2014; columns 3244 and 3245). 

[78]      For these reasons, I conclude that information sharing under section 26 will have to take place in accordance with the data protection principles already established under the Directive and the DPA; there was no suggestion that the DPA was not in conformity with EU law.  That being so, there is no basis for the proposition that sharing of information under section 26 will inevitably breach EU law, including any of the provisions of the CFR.  Accordingly, I consider this aspect of the petitioners' case to be unsound.  Like the Convention rights challenge, it suffers fatally from being theoretical and speculative and from the lack of any practical focus.  

[79]      In the course of the First Hearing passing reference was made to section 35 of the DPA, although neither the petitioners nor the respondents developed any submissions on this.  The section provides that personal data are exempt from the non-disclosure provisions (defined in section 27 as including the first to fifth data protection principles) where the disclosure is required inter alia by or under any enactment.  I am not convinced that section 26 can properly be read as "requiring" the disclosure of personal data.  But nothing turns on this for present purposes. 

[80]      So far as the petitioners' reliance on Google Spain and the so-called right to be forgotten is concerned, I do not consider that this advances their case.  The basic point remains that, in the processing of personal data under the terms of section 26, the information holder will have to comply with the DPA, the Directive and all the requirements of EU law.

[81]      In these circumstances, I consider that the petitioners have not shown that any processing of personal data that may take place in the future under the terms of sections 26 of the Act will inevitably be in breach of EU law.  This branch of the petitioners' case fails accordingly.

 

Reference to the Court of Justice for a preliminary ruling
[82]      The petitioners raised (somewhat faintly) the possibility of a reference to the Court of Justice of the European Union for a preliminary ruling under article 267 of the Treaty.  Under that provision the Court of Justice has power to give preliminary rulings concerning the interpretation of the Treaties and the validity and interpretation of acts of the institutions, bodies, offices and agencies of the Union.  In my opinion, there is no need for a reference to be made in the present case.  I do not consider that it is necessary to enable me to give judgment for there to be a preliminary ruling from the Court of Justice on a question of the type covered by article 267.  The answer to the EU points raised by the petitioners is clear. 

Devolved competence
[83]      The petitioners argued that sections 26 and 27 of the Act were outside the devolved competence of the Scottish Parliament because their provisions related to reserved matters. 

[84]      Section 29(2)(b) and (3) of the Scotland Act 1998 state that a provision of an Act of the Scottish Parliament is outside legislative competence so far as it relates to reserved matters, and whether it relates to reserved matters is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.  Schedule 5 to the Scotland Act provides in Part II for a number of specific reserved matters.  These include under Head B2 the subject matter of the DPA and the Directive.

[85]      In my opinion, it is clear that the provisions contained in sections 26 and 27 of the Act do not relate to the reserved matters specified in Head B2 of Schedule 5.  There is a good deal of authority on the proper approach towards deciding whether an Act of the Scottish Parliament relates to a reserved matter; brief reference was made to some of the leading case law during the First Hearing.  I did not understand there to be any difference as to the right approach.  It was encapsulated by Lord Walker of Gestingthorpe in Martin v Most 2010 SC (UKSC) 40 at paragraph [49].  His Lordship observed that section 29(2)(b) prohibits legislation by the Scottish Parliament which relates to reserved matters.  The expression “relates to reserved matters” is, as Lord Walker pointed out, a familiar one in this sort of context; it indicates more than a loose or consequential connection.  His Lordship went on to say that the language of section 29(3), referring to a provision’s purpose and effect, reinforced that.  In the same case Lord Hope of Craighead observed in paragraph [14], under reference to Lord Sewel's well-known statement at the Committee Stage of the Scotland Bill in the House of Lords, that the devolutionary scheme recognised that a degree of trespass into reserved areas was inevitable and that it had been intended that any argument as to whether a provision in an Act of the Scottish Parliament  related to a reserved matter was to be decided by reference to its “pith and substance”  or its purpose and if its purpose was a devolved one it was not to be outside legislative competence merely because it affected a reserved matter.  The intention of the United Kingdom Parliament was that the devolutionary settlements should be stable and workable (In re Agricultural Sector (Wales) Bill [2014] 1 WLR 2622).  The interpretation and application of the Scotland Act should be approached with that guiding principle kept clearly in view.

[86]      In my judgment, the clear and obvious purpose of the information sharing provisions contained in sections 26 and 27 is to enable named persons and other authorities to share information where to do so will promote and safeguard the wellbeing of children and young persons in accordance with the policy objectives of the Act.  The information sharing provisions are incidental to and consequential on the main purpose of the Act; the main purpose is unquestionably within devolved competence.  The provisions are in no sense free-standing with their own independent purpose; on the contrary, they are intended to support and make more effective the main purpose of the Act, which is to promote and safeguard wellbeing by creating a near-universal named person service.  In these circumstances, I consider there to be no substance in this branch of the petitioners’ case.

[87]      The petitioners argued briefly that sections 26 and 27 of the Act, in any event, made modifications of Scots private law as it applied to reserved matters and that the sections accordingly fell to be treated as relating to reserved matters by virtue of section 29(4) of the Scotland Act.  As I understood the petitioners' submission, it was to the effect that Scots law on data protection as it currently stands would be modified by sections 26 and 27.  The difficulty for the petitioners is that the definition of Scots private law given in section 126(4) of the Scotland Act does not extend to the EU and UK legal rules on data protection.  Accordingly, it cannot be said that sections 26 and 27 make modifications of Scots private law at all.  I reject this line of argument.

[88]       Finally on this branch of their case, the petitioners referred (again in brief terms) to Schedule 4 to the Scotland Act.  Paragraph 2 of Schedule 4 provides that the Scottish Parliament cannot modify the law on reserved matters.  Paragraph 3(1) of Schedule 4 states that paragraph 2 does not apply to modifications which—

"(a) are incidental to, or consequential on, provision made (whether by virtue of the Act in question or another enactment) which does not relate to reserved matters,

and

(b) do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision."

 

[89]      In my opinion, the petitioners have not succeeded in showing that sections 26 or 27 of the Act make any modification to the law on reserved matters.  Accordingly, no issue as to incidental or consequential modification of the law of reserved matter arises.

 

Fundamental rights under the common law
[90]      In the petition there are averments supporting a challenge to Part 4 of the Act on the basis that the provisions it contains are contrary to the fundamental rights of the petitioners under the common law.  The petitioners’ written argument also made some submissions along these lines.  At the outset of the First Hearing Mr O'Neill informed me that the arguments based on breach of fundamental rights at common law had been included in the petition and the written argument simply for completeness.  He said next to nothing about this aspect in his oral submissions.  That is hardly surprising since it is clear that such a challenge could only hope to succeed in truly exceptional circumstances (see e.g. AXA General Insurance Limited, Petitioners 2012 SC (UKSC) 122).  There is nothing in the circumstances of the present case that comes anywhere close to that threshold.  In any event, the fundamental rights referred to did not extend beyond the Convention rights on which the petitioners relied.  They added nothing to the petitioners’ arguments.  In the circumstances, I have no hesitation in rejecting this branch of the petitioners' case.

           

The standing of the first to fourth petitioners
[91]      The respondents conceded the standing of the fifth to seventh petitioners.

[92]      As to the standing of the first to fourth petitioners, I agree with the submissions advanced on behalf of the respondents to the effect that these petitioners lack sufficient interest entitling them to seek judicial review of Part 4 of the Act.  The effect of section 100 of the Scotland Act is that only a person who would qualify as a victim for the purposes of article 34 of the Convention is entitled to challenge the vires of an Act of the Scottish Parliament on the ground that it contravenes Convention rights.  It is clear that Part 4 of the Act does not infringe any of the Convention rights of the first to fourth petitioners.  Accordingly, they have no standing to pursue such complaints in the present proceedings.

[93]      Insofar as the first to fourth petitioners advance claims extending beyond breach of Convention rights (e.g. the alleged contraventions of EU law or breach of fundamental rights), I consider that they do not have a sufficient interest to justify them pursuing any such claim.  I acknowledge that the court should not adopt an unduly restrictive approach to this issue given that these are public law proceedings (Walton v Scottish Ministers 2012 SC (UKSC) 67).  It seems to me, however, that these petitioners are not in any realistic sense directly affected by Part 4 of the Act.  In this connection, it is important to note that the first to third petitioners did not participate in the consultation exercise preceding the Act.  Nor did they contribute to the legislative scrutiny of the Act despite the general call for evidence issued by the Education and Culture Committee at Stage 1. In these circumstances, I am not persuaded that the first to third petitioners have shown a genuine concern about the legislation before they brought the present case.  So far as the fourth petitioners are concerned, they responded to the call for evidence by submitting concerns, in general terms, that the rights of others might be eroded and could be infringed by the legislation and that public officials might act in a particular manner.  These views seem to me to be too insubstantial to engender a sufficient interest for the purpose of bringing proceedings for judicial review.

[94]      Moreover, this is not a case in which the involvement of the first to fourth petitioners is needed in order to ensure that the rule of law is upheld.  That is catered for by the participation of the fifth to seventh petitioners.

[95]      Finally, I am not satisfied that the first to fourth petitioners have demonstrated that they possess sufficient levels of expertise and knowledge in matters concerning child welfare and children’s services to support their claims of entitlement to act in a representative capacity.  The essence of matters appears to me to be as follows.  The first and fourth petitioners are Christian charities, but the legislation does not affect questions of religion in any meaningful sense.  The second petitioners are an educational charity researching the causes and consequences of family breakdown and issues relating to the family, but their activities are not focussed on systems and methods for providing public services relating to children.  The third petitioners are a charity supporting children and young people with ME (and their families).  The legislation is not concerned with that condition.  In my judgment none of the petitioners is entitled to bring these proceedings on behalf of other persons who might potentially have the requisite standing to challenge Part 4 of the Act. 

[96]      In the circumstances, I conclude that the first to fourth petitioners do not have sufficient standing to bring the present proceedings.

 

Late production
[97]      After I had reserved judgment the petitioners lodged a late production in the form of a guidance document issued by the Scottish Government in December 2014 entitled Conduct of Relationships, Sexual Health and Parenthood Education in Schools.  The guidance was issued under section 56 of the Standards in Scotland's Schools etc. Act 2000.  It anticipates the coming into force of the Act and makes some reference to it.  I note, in particular, that in paragraph 17 the guidance explains that, in considering whether to share information with a named person, staff should have regard to inter alia the DPA and the Human Rights Act 1998.  I do not, however, consider that the guidance has any direct bearing on the issues raised in the present case.  It was issued under different legislation.

 

Conclusions
[98]      I have concluded that the petitioners' case fails on all points.  Part 4 of the Act does not contravene Convention rights, EU law or fundamental common law rights.  It is unnecessary to make a reference to the European Court of Justice for a preliminary ruling.  The subject matter of the legislation is within the devolved competence of the Scottish Parliament.  The first to fourth petitioners do not have standing to bring the present proceedings.

Disposal
[99]      I have sustained the second, third, sixth and seventh pleas-in-law for the respondents; their other pleas are redundant or do not arise.  I have repelled the petitioners' pleas. The petition is refused.

[100]    I have reserved all questions of expenses.