UK: Supreme Court – Information sharing and human rights

By James McGachie and Hazel Moffat

The Supreme Court has ruled that information-sharing provisions in Scottish legislation are not sufficiently precise to be compatible with Article 8 of the European Convention on Human Rights, a decision that marks only the second finding that provisions of a Scottish Parliament enactment fall out with its legislative competence and which prevents the relevant sections coming into force as planned on 31 August 2016.

Background

The Children and Young People (Scotland) Act 2014 (the “2014 Act”) is aimed at promoting child welfare in Scotland. Under its “named person” scheme, an individual is designated to every child in Scotland (usually a teacher or health professional already known to the child) and is entrusted with promotion of well-being through support and advice in gaining access to services.

Information sharing is considered necessary to support these objectives. The 2014 Act provides that authorities must generally provide information to the named person where relevant to the exercise of the named person’s functions, or else where the public authority considers information sharing “necessary or expedient“.

Basis for challenge

Any Scottish Parliament legislation must remain within the realm of matters devolved to its jurisdiction and must also be compatible with EU law, including the European Convention on Human Rights (ECHR). Legislation can be challenged on the basis of falling out with these categories.

Judicial review of the legislative competence of the 2014 Act was sought by a number of parties on grounds including incompatibility of the information sharing provisions with Article 8 of the ECHR. This provision affords the right to respect for private and family life, and ensures that any interference with these rights may only take place in accordance with law and where necessary in a democratic society.

Supreme Court decision

The Supreme Court held that the information sharing provisions in the 2014 Act are incompatible with Article 8 of the ECHR. In summary:

  • While finding the named person scheme was “unquestionably legitimate and benign“, the court considered the requirement to share personal data about children and families in order to protect their “well-being” caused a “disproportionate interference with Article 8 rights”. The court considered “well-being” is too low a threshold for information sharing and contradictory to the requirement for data to only be shared if it would protect an individual’s “vital interests” as outlined in the Data Protection Act 1998.
  • In making this finding, the court highlighted that confidential information concerning a child or young person’s state of health could be disclosed to or by to a wide range of authorities without either the child / young person or their parents being aware of this, and in circumstances in which there was no objectively compelling reason for the failure to inform them. Such disclosure would fall under protection of the child’s “well-being“, without consideration of “vital interests“.
  • As currently drafted, the Supreme Court considered the interference caused to Article 8 rights by the new information sharing provisions was not in accordance with law or necessary in a democratic society. The court therefore made an order that the information sharing provisions were incompatible with Article 8 of the ECHR and therefore outside the legislative competence of the Scottish Parliament.  

Where statute requires reference to be made to supporting statutory guidance prior to information being shared, it is imperative that such guidance is clear and comprehensive. The court noted that an information holder will have to address difficult questions of proportionality in relation to the disclosure of confidential information with only the help of statutory guidance issued under the 2014 Act, which the court found to be limited at present.

The judgment highlights the need for any information sharing scheme to be designed to ensuring compliance with both human rights and data protection obligations. This should be the foundation upon which any provisions regarding information sharing are constructed.

The Cabinet Secretary for Education and Skills, John Swinney, has stated that the government would start work to amend the 2014 Act “immediately” so the scheme can still be rolled out “at the earliest possible date”. Whether this will involve development of a higher threshold for information sharing, or further changes to the named person scheme in principle, remains to be seen.

What does this mean information sharing in future?

The Cabinet Secretary for Education and Skills, John Swinney, has stated that the government would start work to amend the 2014 Act “immediately” so the scheme can still be rolled out “at the earliest possible date”. Whether this will involve development of a higher threshold for information sharing, or further changes to the named person scheme in principle, remains to be seen.

The judgment highlights the need for any information sharing scheme to be designed to ensuring compliance with both human rights and data protection obligations. This should be the foundation upon which any provisions regarding information sharing are constructed.

Where statute requires reference to be made to supporting statutory guidance prior to information being shared, it is imperative that such guidance is clear and comprehensive. The court noted that an information holder will have to address difficult questions of proportionality in relation to the disclosure of confidential information with only the help of statutory guidance issued under the 2014 Act, which the court found to be limited at present.