[2016] UKSC 51
UKSC 2015/0216
The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland)
On appeal from the Inner House of the Court of Session
The Children and Young People (Scotland) Act 2014 ("the 2014 Act") established a framework for a scheme creating a new public service in Scotland referred to as the "named person service". The scheme is to be made available by certain service providers to every child and young person in Scotland (other than those serving in the UK Armed Forces). Under the scheme, an identified individual - "a named person" - is to be made available to every child and young person within the scope of the legislation. That named person is required to exercise statutory functions, including providing advice, information or support. These functions must be exercised where the named person considers it to be appropriate in order to promote, support or safeguard the wellbeing of the child or young person. The appellants are four registered charities and three individuals. In July 2014, they lodged a petition for judicial review challenging the lawfulness of certain provisions of the named person scheme under the 2014 Act on the grounds that they purported to authorise unjustifiable state interference with family rights. In January 2015, the Lord Ordinary dismissed the appellants' petition. The appellants' reclaimed, but their reclaiming motion was dismissed by the Inner House in September 2015. They appealed to the Supreme Court. The issues before the Supreme Court were whether the provisions of the 2014 Act are compatible with (a) fundamental common law rights; and (b) the ECHR and whether provisions concerning sharing and disclosure of information are compatible with EU law or relate to matters reserved to the Westminster Parliament under the Scotland Act 1998.
The Supreme Court unanimously allows the appeal on the basis of the ECHR Challenge and the EU Law Challenge (to the extent it mirrors the ECHR Challenge). The Court invites written submissions as to the terms of its order under s.102 of the Scotland Act in order to give the Scottish Parliament and Scottish Ministers an opportunity to address the matters raised in the judgment. In the meantime, since the defective provisions of Part 4 of the 2014 Act are not within the legislative competence of the Scottish Parliament, they cannot be brought into force.
