The Christian Institute and Others v The Lord Advocate: SC 28 Jul 2016

(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to share information was outwith the powers of the Parliament. It extended the information to be shared about a child without her consent beyond those maters necessary to protect her vital interests, to where it would benefit her wellbeing.
Held: The appeal succeeded. The Scotland Act cannot sensibly be interpreted as meaning that an enactment ‘relates to’ the subject-matter of the DPA, and is therefore outside the powers of the Scottish Parliament, merely because it requires or authorises the disclosure of personal data. On the other hand, an enactment does not have to modify the DPA in order to relate to the subject-matter of that Act. The court was not persuaded that the provisions of Part 4 relate to the subject-matter of the DPA and the Directive. However, the information-sharing provisions of Part 4 of the Act and the RDSG as currently drafted do not meet the article 8 criterion of being ‘in accordance with the law’.
The broad challenge was that the compulsory appointment of a named person to a child involves a breach of the parents’ article 8 rights unless the parents have consented to the appointment or the appointment is necessary to protect the child from significant harm. The narrower challenge focusses on the provisions in sections 26 and 27 for the sharing of information about a child.
‘There are thus very serious difficulties in accessing the relevant legal rules when one has to read together and cross refer between Part 4 of the Act and the DPA and work out the relative priority of their provisions.
Of even greater concern is the lack of safeguards which would enable the proportionality of an interference with article 8 rights to be adequately examined. Section 26(5) requires an information holder, when considering whether information ought to be provided in the exercise of the duties in section 26(1) or (3), ‘so far as reasonably practicable to ascertain and have regard to the views of the child or young person’. But there is no such requirement in relation to a service provider’s discretionary power to share information under section 26(8). There the test is merely that the provision of the information is necessary or expedient for the purposes of the exercise of any of the named person functions. Moreover, there is no statutory requirement, qualified or otherwise, to inform the parents of a child about the sharing of information. The RDSG is only guidance, speaks of ‘routine good practice’, and leaves it to the discretion of the information holder whether to involve the parent or parents. It is thus perfectly possible that information, including confidential information concerning a child or young person’s state of health (for example, as to contraception, pregnancy or sexually transmitted disease), could be disclosed under section 26 to a wide range of public authorities without either the child or young person or her parents being aware of the interference with their article 8 rights, and in circumstances in which there was no objectively compelling reason for the failure to ascertain and have regard to their views.
‘the information-sharing provisions of Part 4 of the Act (a) do not relate to reserved matters, namely the subject matter of the DPA and the Directive, (b) are incompatible with the rights of children, young persons and parents under article 8 of the ECHR because they are not ‘in accordance with the law’ as that article requires, (c) may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information, and (d) are not incompatible with EU law in any way which goes beyond their incompatibility with article 8 of the ECHR. We are satisfied that it is not possible to remedy this defect by reading down the provisions under section 101 of the Scotland Act 1998. Conclusion (b) therefore means that the information-sharing provisions of Part 4 of the Act are not within the legislative competence of the Scottish Parliament.’


Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Hughes, Lord Hodge


[2016] UKSC 51, 2016 SCLR 448, [2016] ELR 474, [2016] HRLR 19, 2016 GWD 22-401, (2016) 19 CCL Rep 422, 2016 SLT 805, UKSC 2015/0216, 2017 SC (UKSC) 29


Bailii Summary, Bailii, SC, SC Summary


Children and Young People (Scotland) Act 2014, Scotland Act 1998 29(1), Data Protection Act 1998, European Convention on Human Rights 8, Human Rights Act 1998 6




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Lists of cited by and citing cases may be incomplete.

Children, Human Rights, Constitutional, Information, European

Updated: 18 April 2022; Ref: scu.567720