To enable this to work the named person will also be required to discuss or raise relevant matters about the child or young person with other service providers or relevant authorities. The service provider or relevant authority may be a health board, local authority or directing authority of an independent school and this may operate in practice in different ways. In some instances it will require personal or confidential information to be communicated between these various bodies to which the child or their parents may or may not have given consent or even be aware of happening. There are some broad criteria in the legislation and in draft statutory guidance to assist named persons in deciding whether to share such information.
The court challenge was brought by four charities and three individual parents. Their challenge was that Part 4 was beyond the legislative competence of the Scottish Parliament under the Scotland Act 1998, that it was contrary to the European Convention on Human Rights (ECHR) and that it was contrary to EU law.
The Supreme Court has now issued its judgement in the case. It decided that the main purpose of Part 4 of the Children and Young People (Scotland) Act 2014, is the promotion and safeguarding of the wellbeing of children and young persons and that purpose is unquestionably legitimate and benign. The Act is not therefore unlawful in its underlying aims.
However the Court found that the way the 2014 Act dealt with sharing information about children and young persons, which was a necessary part of how the named person scheme operated, was flawed. It held that the information sharing provisions were contrary to Article 8 of ECHR because they were not "in accordance with the law".
The Court's reasoning was that Article 8 provides that the private and family life of children and young people and their parents is respected. Sharing sensitive personal information in domestic law is governed by the Data Protection Act 1998. It allows different arrangements to be made for sharing such information in Scotland subject to certain limitations. The 2014 Act was not therefore breaching the legislative competence of the Scottish Parliament under the Scotland Act 1998. However, the way the information sharing provisions would operate alongside the Data Protection Act 1998 provisions in certain individual cases was not clear. and might be a breach of Article 8 privacy rights.
The court said that " First a rule must be formulated with sufficient precision to enable any individual - if need be with appropriate advice - to regulate his or her conduct……Secondly it must be sufficiently precise to give legal protection against arbitrariness." In this case the relationship between the provisions on information sharing in Part 4 of the 2014 Act and in the Data Protection Act 1998 was not sufficiently clear to meet this test. It was therefore not "in accordance with the law" and was a breach of ECHR.
The 2014 Act cannot therefore be commenced at present. The Court, having said it was not their role to advise how to sort the problems, did give the Scottish Government some hints. The First Minister and the Deputy First Minister and Cabinet Secretary for Education have said Scottish Government intends to remedy the legislative defects and proceed to implement the named persons policy. They have 42 days to go back to the Supreme Court with suggestions as to what Order the Court should make in the light of its decision. Procedurally, the Court is exercising section 102 of the Scotland Act 1998, a relatively rare event, which allows the Court to give the Scottish Government some time to think about the issue and find a solution without the pressure of responding immediately to a judgement of this kind which may require complex solutions.
Clearly the Scottish Government intend to bring forward amendments to the 2014 Act which will then be debated before the Scottish Parliament. It then remains to be seen if there will be further challenge to the terms of the amended Act. We could be off to the Supreme Court again!