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 And Rhianwen Mctinosh And (seventh) Deborah Thomas For Judicial Review Of The Children And Young People (scotland) Act 2014
| Jurisdiction | Scotland |
| Judge | Lord Pentland |
| Neutral Citation | [2015] CSOH 7 |
| Year | 2015 |
| Published date | 22 January 2015 |
| Date | 22 January 2015 |
| Court | Court of Session |
| Docket Number | P679/14 |
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...
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