Christian Institute v Lord Advocate

This appeal concerned the legislative competence of Part 4 of the Children and Young People (Scotland) Act 2014, which establishes a statutory "named person" service and wide duties and powers for the sharing of information about children and young people (notably sections 23 and 26). The court analysed (a) whether any provision of Part 4 "relates to" the subject-matter of the Data Protection Act 1998 or Council Directive 95/46/EC (the reserved-matters challenge under section 29(2)(b) of the Scotland Act 1998), and (b) whether the information-sharing provisions are compatible with article 8 ECHR and with EU law.

The Supreme Court held that Part 4 does not relate to the subject-matter of the DPA/Directive so as to be outside devolved competence. However, the court concluded that the information-sharing provisions, read with the revised draft statutory guidance (RDSG) as then drafted, failed the article 8(2) requirement of being "in accordance with the law" and risked disproportionate interferences with private and family life. The court therefore allowed the appeal: the information-sharing provisions are not within the legislative competence of the Scottish Parliament. The court invited submissions on a section 102 order to suspend the effect of that conclusion to permit remedial legislation or measures.

The appellants (four charities and three parents) challenged the legality of the information-sharing and retention provisions in Part 4 of the Children and Young People (Scotland) Act 2014. They argued (i) that those provisions related to reserved matters because they touched the subject-matter of the Data Protection Act 1998 and Directive 95/46/EC; and (ii) that they were incompatible with Convention rights, in particular article 8 ECHR, because they allowed disclosure of confidential personal data on an unduly low threshold and lacked adequate safeguards.

• Nature of the claim: a challenge to legislative competence under section 29 of the Scotland Act 1998 and Convention/EU-law compatibility of Part 4, seeking declaration that the impugned provisions are outside competence.
• Procedural posture: appeal to the Supreme Court from the Inner House of the Court of Session ([2015] CSIH 64).
• Issues framed: (i) whether Part 4 "relates to" the DPA/Directive (reserved matter); (ii) whether Part 4 is compatible with article 8 ECHR (accessibility/foreseeability and adequate safeguards; proportionality); (iii) whether there is additional incompatibility with EU law beyond article 8.

The court reasoned as follows. On reserved matters, the purpose and effect of Part 4 were examined: while Part 4 creates duties and powers for information sharing, its primary purpose is the promotion of children’s wellbeing and collaborative working—an objective which may be regarded as consequential to, not properly part of, the subject-matter of the DPA/Directive. The DPA itself contemplates statutory disclosures (section 35) and provides for UK-wide regulation and supervisory arrangements; Part 4 does not thereby relate to the subject-matter of the DPA so as to be outside competence.

On article 8, the court found that certain features of Part 4 (the low threshold for sharing: information which an information holder "considers" likely to be relevant; discretionary powers under section 26(8); explicit absence of a statutory duty to inform parents or to obtain consent; and the RDSG's non-binding guidance) meant that information sharing would not be sufficiently "accessible" or "foreseeable" and that safeguards against arbitrary interference were inadequate. Although in many individual cases the DPA and Directive limit disclosure (and thereby mitigate some concerns), the statutory scheme as drafted and the guidance produced do not ensure the requisite precision and safeguards. The court held that the information-sharing provisions are therefore not "in accordance with the law" and may lead to disproportionate interferences with private and family life. The EU-law challenge raised no separate incompatibility beyond article 8. The court allowed the appeal and invited submissions on a section 102 suspension order to permit corrective legislative or executive action.

Appeal allowed. The Supreme Court held that Part 4 of the Children and Young People (Scotland) Act 2014 does not "relate to" the subject-matter of the Data Protection Act 1998 or Directive 95/46/EC (so the reserved-matters challenge failed), but the information‑sharing provisions (notably sections 23 and 26), as drafted and in light of the RDSG, are not "in accordance with the law" under article 8 ECHR and risk disproportionate interferences with private and family life; accordingly those provisions are not within the legislative competence of the Scottish Parliament. The court invited submissions on a suspension order under section 102 of the Scotland Act 1998 to permit remediation.

On appeal from the Inner House of the Court of Session (Second Division) reported as [2015] CSIH 64. The case reached the Supreme Court by way of appeal from that Court of Session decision.