Review of significant caselaw



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A YEAR IN HUMAN RIGHTS
A REVIEW OF SIGNIFICANT CASELAW

2014 TO 2015


Scott Blair, Advocate
Terra Firma Chambers

Our Speaker
First, a note about Scott.
Scott is on the highest level “A List” of Panel Counsel to the Equality and Human Rights Commission. He holds an LL. B (Hons), University of Glasgow (First Class Honours). He is regularly listed in the Legal 500 for his expertise. He specialises in a wide range of public law issues. He has been instructed in cases in the European Court of Human Rights, Supreme Court, House of Lords, Judicial Committee of the Privy Council, both the Inner and Outer House of the Court of Session, the High Court of Justiciary at first instance and on appeal, the Sheriff Court and before various tribunals, licensing boards and local authority regulatory committees.
He is the author of Scots Administrative Law: Cases and Materials (W Green/ Sweet & Maxwell); A Practical Guide to Human Rights in Scotland, The Hon. Lord Reed (ed)  (W Green/ Sweet and Maxwell, 2001), (chapter on public law and human rights) Scottish Human Rights Service, The Hon. Lord Reed and Prof. A Miller (eds),  (looseleaf, W Green/ Sweet and Maxwell), (chapter on constitutional and administrative law).
He is a Legal Member of the Mental Health Tribunal for Scotland, 2007 to date. He has been a First Tier Judge of the Asylum and Immigration Chamber since 2006.
Children
The Christian Institute and others v Lord Advocate [2015] CSOH 7
In this petition for judicial review four charities and three individuals argued that Children and Young People (Scotland) Act 2014 was incompatible with Arts. 8, 9 and Art. 2 of the First Protocol to the ECHR. They claimed that the provisions contravened fundamental constitutional rights protected by the common law.  In support of their claims of infringement of Convention rights, the petitioners also maintained that the enactment of the provisions in Part 4 of the Act was also incompatible with the rights enjoyed by the fifth to seventh petitioners under a number of international instruments, namely article 16(3) of the Universal Declaration of Human Rights 1948;  article 23(1) of the International Covenant on Civil and Political Rights 1966 (reference was also made to article 17);  article 10(1) of the International Covenant on Economic, Social and Cultural Rights 1966; and articles 3(2) and 5 of the UN Convention on the Rights of the Child 1969.  The argument ultimately presented was that all the provisions in Part 4 of the Act were incompatible with Convention rights.  The argument was that the whole scheme for establishing a named person service was, in itself, unlawful as being in breach of Convention rights.  It was contended that the petitioners did not have to show that the actual exercise of the named person functions would be incompatible with Convention rights in the circumstances of an individual case; their basic complaint was that a named person was to be automatically allocated to every child without the consent of the child or his or her parents and without there being any assessment as to whether there was a pressing social need sufficient to justify such appointment.      Drawing together the essence of the petitioners' complaints about what they regard as the incompatibility of the provisions in Part 4 of the Act with Convention rights, the main themes of their case were as follows.  (1) It was said that Part 4 failed to reflect the principles that any interference with these rights was only lawful if it took place either with the consent of the child or his or her parents or if such interference could be demonstrated to be necessary.  In particular, the provisions contained no means for the child or his or her parents to consent to the named person scheme by electing to opt in or out of it.  (2) Furthermore, there was no provision that, in the absence of consent, the appointment of a named person could be made only if there were substantive grounds for showing that such an appointment was necessary in the case of the individual child for some good reason, such as protection from significant harm.  It was argued that the absence of any threshold conditions for the appointment of a named person meant that the Act contained insufficient safeguards against unwarranted interference by the State in the private and family lives of children and their parents.  The Act, it was contended, laid down no objective basis for interference with these fundamental rights. (3) The petitioners also submitted that the interference with Convention rights was not "in accordance with law".  They argued that the framework laid down by Part 4 of the Act was insufficiently transparent, accessible and predictable.  The provisions conferred unduly broad discretionary powers on named persons and thereby provided insufficient protection for children, parents and families against arbitrary interference by the State.
Held: petition dismissed (1) Part 4 is based on the view that the protection and welfare of all children will be improved by the introduction of a near-universal system for the appointment of named persons.  The petitioners' argument was flawed because it entails the imposition of undue restrictions on the legislature's freedom of choice and action.  Effectively, it amounts to reformulating and narrowing the aim of the legislation.  It is pre-eminently a matter for the legislature to decide whether the wellbeing of children is likely to be promoted by having a near-universal system for appointing named persons.  In this connection, it was important to recall that the policy has been carefully developed by successive governments over a period of many years; it has been the subject of extensive investigation; there has been shown to be wide support for the introduction of such a system amongst those with expertise in the field; and it has been successfully piloted on a non-statutory basis in various parts of the country.  The advantages of the new service were not difficult to discern: increased scope for early intervention; improved integration and coordination across the public services landscape; reduction in the risk that the needs of vulnerable children will be inadvertently overlooked due to communication difficulties between service providers; and the introduction of a single focal point to ensure that children and their families receive the support and services they need.  It seems to me that whether the right course was to introduce a named person service on a near-universal basis was quintessentially a judgment based on considerations of social policy and one that, for this reason, fell squarely within the margin of discretionary decision-making entrusted to the Scottish Parliament.  It is not the type of judgment which it is appropriate for the court to review. (2) In their attack on the aim of the legislation the petitioners, to over-stated the likely impact of the provisions in Part 4 of the Act.  In the great majority of cases the practical effect of allocating a named person to a child or young person is likely to be minimal.  In some cases it may, however, be necessary and justifiable for the named person to become involved to a greater extent, but it does not follow from this that the aim of the legislation is illegitimate.  There is no reason to suppose that named persons will intrude inappropriately or to an excessive degree in the lives of children and young persons or that they will act in a manner likely to undermine family life.  As the policy documents explained, the new scheme was not intended to impose additional burdens on children and families, but rather to introduce an improved system for coordinating the functions traditionally performed by guidance and head teachers and health workers and improving communication between them in the context of promoting and safeguarding the wellbeing of children and young persons.  The aims of Part 4 of the Act are legitimate and do not contravene Convention rights. (3) There was a fundamental difficulty facing the petitioners in the present case as the case had a lack of practical focus and application.  This difficulty arose for a number of reasons, the first of which is that the scheme set out in Part 4 of the Act does not contain all the relevant components of the system.  The provisions included in Part 4 do not constitute a free-standing scheme in terms of which the named person service can be established and operated. In particular, the guidance, directions and subordinate legislation will, be important in evaluating whether any interference with Convention rights is in accordance with law, as required under article 8.  On a number of occasions the Strasbourg Court had made clear that in assessing compatibility with Convention rights it was relevant to have regard to secondary legislation as well as to codes of practice and documents containing guidance as to how statutory powers should be carried out; these can all serve as appropriate safeguards (Silver v United Kingdom (1983) 5 EHRR 347; Gillan and Quinton v United Kingdom (2010) 50 EHRR 45; and MM v United Kingdom (Application no. 24029/07)).  The guidance, directions and subordinate legislation will be relevant if and when it comes to assessing the real impact of the appointment of named persons on children, young persons and their parents and the practical efficacy of the safeguards contained in the legislation. It followed that it was not possible at this stage to carry out a meaningful and comprehensive assessment of the proportionality of the provisions in Part 4 of the Act.  (4) In assessing proportionality it has been found helpful to break down the assessment into four distinct elements with a view to making the value judgements involved more explicit.  The approach can be summarised by saying that it is necessary to determine : (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right; (2) whether the measure is rationally connected to the objective;  (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.  (5) Applying these criteria identified, the measure's objective was clearly an important one.  Part 4 of the Act had the theoretical potential to limit protected rights in some individual cases, but it was not possible to draw any firm general conclusions at the present time.  In many cases the practical impact will be slight.  With regard to the second criterion, the provisions in Part 4 were rationally connected to the aim: they require the appointment of named persons to (nearly) every child and young person in Scotland; that is the whole idea underlying the new service.  As to the third criterion, the court should be wary of coming up with alternative solutions to the problem addressed by the legislation. On the fourth criterion, it is impossible to carry out the type of balancing exercise referred to since the legislation has not yet had any practical impact on individuals. (6) On the argument that the appointment of a named person would not be in accordance with the law, as required under art. 8, because the provisions in Part 4 were not sufficiently precise and accessible for the purpose of enabling individuals to foresee with a reasonable degree of accuracy how they are liable to be affected by the legislation and so as to protect them against arbitrary application of its provisions, the court did not accept this argument.  The provisions in Part 4 provided a sufficiently transparent and predictable code of rules for the purposes of enabling individuals to understand the legal framework governing the new service.  As to the details of how the named person scheme is intended to operate at a practical level, the statutory guidance and other materials would be relevant. Only once all that information becomes available would it be possible to make a comprehensive assessment of whether the entire legislative scheme is in accordance with law.  (7) It was important that in Olsson v Sweden 1989 11 EHRR 259 the Strasbourg Court made clear, in the context of a case concerning the taking of a child into public care, that the circumstances in which such a decision might have to be taken were so variable that it was impossible to formulate a law so as to cover every eventuality.  It was not necessary to confine the circumstances in which a child might be taken into care to those where actual harm to the child had already occurred; such an approach would reduce the effectiveness of the protection.  Steps taken under legislation which was general in terms and conferred a wide measure of discretion would still be in accordance with the law.  (8) The foregoing analysis applied just as much to the other articles of the Convention which the petitioners briefly mentioned.  The case under art. 9 manifestly lacked merit. The petitioners failed to identify in what way the existence of the provisions in Part 4 of the Act interferes with the art. 9 rights of the fifth to seventh petitioners.  There was no basis upon which it can be said that the provisions in Part 4 interfered with the rights of the fifth to seventh petitioners to freedom of thought, conscience or religion or with their freedom to manifest religious or other beliefs.  The fifth to seventh petitioners' freedoms in these various respects were not affected by the enactment of the provisions in Part 4.  These petitioners remained entirely free to hold and to exercise the same beliefs as they did immediately before the enactment of Part 4.  In the circumstances, I am not persuaded that the provisions of Part 4, in themselves, engage the article 9 rights of the fifth to seventh petitioners.  (9) So far as the alleged infringement of the rights of the fifth to seventh petitioners under article 2 of the First Protocol is concerned, this aspect of the petitioners' case is unsound.  The Part 4 provisions in themselves have no impact on the rights protected under article 2 of the First Protocol. (10) On the common law challenge such a challenge could only hope to succeed in truly exceptional circumstances (see e.g. AXA General Insurance Limited, Petitioners 2012 SC (UKSC) 122).  There is nothing in the circumstances of the present case that comes anywhere close to that threshold.  In any event, the fundamental rights referred to did not extend beyond the Convention rights on which the petitioners relied.  They added nothing to the petitioners’ arguments. 
For those of you who are interested here is some more from the judgment:-
[7] 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.  

 

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. 

In support of their claims of infringement of Convention rights, the petitioners maintained that the enactment of the provisions in Part 4 of the Act was also incompatible with the rights enjoyed by the fifth to seventh petitioners under a number of international instruments, namely article 16(3) of the Universal Declaration of Human Rights 1948;  article 23(1) of the International Covenant on Civil and Political Rights 1966 (reference was also made to article 17);  article 10(1) of the International Covenant on Economic, Social and Cultural Rights 1966; and articles 3(2) and 5 of the UN Convention on the Rights of the Child 1969.  Although differently expressed, all these measures aim to safeguard the family and the home against disproportionate interference by the State; they recognise the family as having the primary role in the upbringing and education of children.  One might also refer to article 24(1) of the Charter of Fundamental Rights of the European Union (the CFR); this provides that children have the right to such protection and care as is necessary for their wellbeing.  I need not deal separately with any of these international provisions since there was no dispute at the First Hearing that they were relevant to and informed the proper interpretation and application of the Convention rights of the fifth to seventh petitioners.  The petitioners did not, however, advance any stand-alone line of argument based on the terms and effect of the international measures.  Rather, they submitted that they formed part of the backdrop against which their claims of infringement of Convention rights should be evaluated.

[42]      Before turning to examine in more detail the petitioners' complaints insofar as based on infringement of Convention rights, I would observe that the argument ultimately presented was that all the provisions in Part 4 of the Act were incompatible with Convention rights.  The argument was that the whole scheme for establishing a named person service was, in itself, unlawful as being in breach of Convention rights.  It was contended that the petitioners did not have to show that the actual exercise of the named person functions would be incompatible with Convention rights in the circumstances of an individual case; their basic complaint was that a named person was to be automatically allocated to every child without the consent of the child or his or her parents and without there being any assessment as to whether there was a pressing social need sufficient to justify such appointment.   

[43]      Drawing together the essence of the petitioners' complaints about what they regard as the incompatibility of the provisions in Part 4 of the Act with Convention rights, the main themes of their case were as follows.  It was said that Part 4 failed to reflect the principles that any interference with these rights was only lawful if it took place either with the consent of the child or his or her parents or if such interference could be demonstrated to be necessary.  In particular, the provisions contained no means for the child or his or her parents to consent to the named person scheme by electing to opt in or out of it.  Furthermore, there was no provision that, in the absence of consent, the appointment of a named person could be made only if there were substantive grounds for showing that such an appointment was necessary in the case of the individual child for some good reason, such as protection from significant harm.  It was argued that the absence of any threshold conditions for the appointment of a named person meant that the Act contained insufficient safeguards against unwarranted interference by the State in the private and family lives of children and their parents.  The Act, it was contended, laid down no objective basis for interference with these fundamental rights.

[44]      The petitioners also submitted that the interference with Convention rights was not "in accordance with law".  They argued that the framework laid down by Part 4 of the Act was insufficiently transparent, accessible and predictable.  The provisions conferred unduly broad discretionary powers on named persons and thereby provided insufficient protection for children, parents and families against arbitrary interference by the State.

[48]      The petitioners argued that a measure containing provisions such as those in Part 4 of the Act could only be justified if it could be properly characterised as a child protection measure; by this they meant that the legitimacy of the measure's objective depended on whether its provisions required there to be a substantive basis for intervening in the private or family life of a child or young person.  In my view, that argument misses the whole point of the legislation;  Part 4 is based on the view that the protection and welfare of all children will be improved by the introduction of a near-universal system for the appointment of named persons.  It seems to me that the petitioners' argument is flawed because it entails the imposition of undue restrictions on the legislature's freedom of choice and action.  Effectively, it amounts to reformulating and narrowing the aim of the legislation.  In my opinion, it is pre-eminently a matter for the legislature to decide whether the wellbeing of children is likely to be promoted by having a near-universal system for appointing named persons.  In this connection, it is important to recall that the policy has been carefully developed by successive governments over a period of many years; it has been the subject of extensive investigation; there has been shown to be wide support for the introduction of such a system amongst those with expertise in the field; and it has been successfully piloted on a non-statutory basis in various parts of the country.  The advantages of the new service are not difficult to discern: increased scope for early intervention; improved integration and coordination across the public services landscape; reduction in the risk that the needs of vulnerable children will be inadvertently overlooked due to communication difficulties between service providers; and the introduction of a single focal point to ensure that children and their families receive the support and services they need.  It seems to me that whether the right course was to introduce a named person service on a near-universal basis was quintessentially a judgment based on considerations of social policy and one that, for this reason, fell squarely within the margin of discretionary decision-making entrusted to the Scottish Parliament.  It is not the type of judgment which it is appropriate for the court to review.

In their attack on the aim of the legislation the petitioners, in my view, tended to over-state the likely impact of the provisions in Part 4 of the Act.  It is important to keep a sense of proportion and balance and not to assume that the new service will operate in a way that is inappropriately invasive or disrespectful of private and family lives.  In the great majority of cases the practical effect of allocating a named person to a child or young person is likely to be minimal.  In some cases it may, however, be necessary and justifiable for the named person to become involved to a greater extent, but it does not follow from this that the aim of the legislation is illegitimate.  There is no reason to suppose that named persons will intrude inappropriately or to an excessive degree in the lives of children and young persons or that they will act in a manner likely to undermine family life.  As the policy documents explain, the new scheme is not intended to impose additional burdens on children and families, but rather to introduce an improved system for coordinating the functions traditionally performed by guidance and head teachers and health workers and improving communication between them in the context of promoting and safeguarding the wellbeing of children and young persons.  For all these reasons, I conclude that the aims of Part 4 of the Act (whether stated at a general or at a more specific level) are legitimate and do not contravene Convention rights.

This takes me to what I consider to be a fundamental difficulty facing the petitioners in the present case.  Their complaints are presented, as they can only be at this stage, on an abstract and theoretical level.  They suffer from a lack of practical focus and application.  This difficulty arises for a number of reasons, the first of which is that the scheme set out in Part 4 of the Act does not contain all the relevant components of the system.  The provisions included in Part 4 do not constitute a free-standing scheme in terms of which the named person service can be established and operated.

In particular, the guidance, directions and subordinate legislation will, in my view, be important in evaluating whether any interference with Convention rights is in accordance with law, as required under article 8.  In this connection, I note that on a number of occasions the Strasbourg Court has made clear that in assessing compatibility with Convention rights it is relevant to have regard to secondary legislation as well as to codes of practice and documents containing guidance as to how statutory powers should be carried out; these can all serve as appropriate safeguards (Silver v United Kingdom (1983) 5 EHRR 347; Gillan and Quinton v United Kingdom (2010) 50 EHRR 45; and MM v United Kingdom (Application no. 24029/07)).  The guidance, directions and subordinate legislation will be relevant if and when it comes to assessing the real impact of the appointment of named persons on children, young persons and their parents and the practical efficacy of the safeguards contained in the legislation. 

As I have already said, I do not believe that it is possible at this stage to carry out a meaningful and comprehensive assessment of the proportionality of the provisions in Part 4 of the Act.  I would, however, make the following observations.  In Bank Mellat supra Lord Reed (at paragraphs 72 - 74) considered the analytical approach to assessing proportionality which has been developed in Commonwealth jurisdictions, particularly in Canada.  His Lordship explained that this is the approach that has been adopted in UK case law under the Human Rights Act 1998.  It has been found helpful to break down the assessment into four distinct elements with a view to making the value judgements involved more explicit.  The approach can be summarised by saying that it is necessary to determine : (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right; (2) whether the measure is rationally connected to the objective;  (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.  Applying, as best one can at this stage, the four criteria identified by Lord Reed, I would make the following observations.  First, the measure's objective is clearly an important one.  Part 4 of the Act has the theoretical potential to limit protected rights in some (I think not many) individual cases, but it is not possible to draw any firm general conclusions at the present time.  In many cases the practical impact will be slight.  With regard to the second criterion, the provisions in Part 4 are rationally connected to the aim: they require the appointment of named persons to (nearly) every child and young person in Scotland; that is the whole idea underlying the new service.  As to the third criterion, the court should be wary of coming up with alternative solutions to the problem addressed by the legislation.  I would also observe that insofar as the petitioners submitted that the legislation was disproportionate because it did not require there to be consent or allow for opting in or out of the new scheme, it seems to me that to have either of these as requirements would run counter to and be liable to defeat the aim of the measure.  Finally on the fourth criterion, it is impossible to carry out the type of balancing exercise referred to since the legislation has not yet had any practical impact on individuals. 

Finally on this aspect of their case, the petitioners argued that the appointment of a named person would not be in accordance with the law, as required under article 8, because the provisions in Part 4 were not sufficiently precise and accessible for the purpose of enabling individuals to foresee with a reasonable degree of accuracy how they are liable to be affected by the legislation and so as to protect them against arbitrary application of its provisions.  I do not accept this argument.  In my opinion, the provisions in Part 4 provide a sufficiently transparent and predictable code of rules for the purposes of enabling individuals to understand the legal framework governing the new service.  As to the details of how the named person scheme is intended to operate at a practical level, one will have to wait for the statutory guidance and other materials already referred to.  Only once all that information becomes available will it be possible to make a comprehensive assessment of whether the entire legislative scheme is in accordance with law.  It is worth noting on this branch of the case that in Olsson v Sweden 1989 11 EHRR 259 the Strasbourg Court made clear, in the context of a case concerning the taking of a child into public care, that the circumstances in which such a decision might have to be taken were so variable that it was impossible to formulate a law so as to cover every eventuality.  It was not necessary to confine the circumstances in which a child might be taken into care to those where actual harm to the child had already occurred; such an approach would reduce the effectiveness of the protection.  Steps taken under legislation which was general in terms and conferred a wide measure of discretion would still be in accordance with the law.  In the light of that guidance, I have no difficulty in concluding that the provisions in Part 4 of the Act are sufficiently clear, accessible and predictable to qualify as being in accordance with law.

 

[59]      So far, I have taken the petitioners' complaints about infringement of a number of Convention rights together; that is in line with how their case was presented, both in writing and orally. It will be noted that much of the analysis is of the type usually adopted in cases brought under article 8, but it applies just as much to the other articles of the Convention which the petitioners briefly mentioned.  I would add that so far as the case brought under article 9 is concerned, it manifestly lacks merit in my opinion.  The petitioners have failed to identify in what way the existence of the provisions in Part 4 of the Act interferes with the article 9 rights of the fifth to seventh petitioners.  I do not see any basis upon which it can be said that the provisions in Part 4 interfere with the rights of the fifth to seventh petitioners to freedom of thought, conscience or religion or with their freedom to manifest religious or other beliefs.  The fifth to seventh petitioners' freedoms in these various respects are not affected by the enactment of the provisions in Part 4.  These petitioners remain entirely free to hold and to exercise the same beliefs as they did immediately before the enactment of Part 4.  In the circumstances, I am not persuaded that the provisions of Part 4, in themselves, engage the article 9 rights of the fifth to seventh petitioners.  So far as the alleged infringement of the rights of the fifth to seventh petitioners under article 2 of the First Protocol is concerned, this aspect was barely touched on in the debate at the First Hearing; nor does it feature to any significant extent in the petitioners' written submissions.  Again, I consider that this aspect of the petitioners' case is unsound.  I am unable to identify any basis upon which it can be said that there is any interference with these rights arising from the enactment of Part 4.  Those provisions in themselves have no impact on the rights protected under article 2 of the First Protocol.



 

In the petition there are averments supporting a challenge to Part 4 of the Act on the basis that the provisions it contains are contrary to the fundamental rights of the petitioners under the common law.  The petitioners’ written argument also made some submissions along these lines.  At the outset of the First Hearing Mr O'Neill informed me that the arguments based on breach of fundamental rights at common law had been included in the petition and the written argument simply for completeness.  He said next to nothing about this aspect in his oral submissions.  That is hardly surprising since it is clear that such a challenge could only hope to succeed in truly exceptional circumstances (see e.g. AXA General Insurance Limited, Petitioners 2012 SC (UKSC) 122).  There is nothing in the circumstances of the present case that comes anywhere close to that threshold.  In any event, the fundamental rights referred to did not extend beyond the Convention rights on which the petitioners relied.  They added nothing to the petitioners’ arguments.  In the circumstances, I have no hesitation in rejecting this branch of the petitioners' case.

92]      As to the standing of the first to fourth petitioners, I agree with the submissions advanced on behalf of the respondents to the effect that these petitioners lack sufficient interest entitling them to seek judicial review of Part 4 of the Act.  The effect of section 100 of the Scotland Act is that only a person who would qualify as a victim for the purposes of article 34 of the Convention is entitled to challenge the vires of an Act of the Scottish Parliament on the ground that it contravenes Convention rights.  It is clear that Part 4 of the Act does not infringe any of the Convention rights of the first to fourth petitioners.  Accordingly, they have no standing to pursue such complaints in the present proceedings.

[93]      Insofar as the first to fourth petitioners advance claims extending beyond breach of Convention rights (e.g. the alleged contraventions of EU law or breach of fundamental rights), I consider that they do not have a sufficient interest to justify them pursuing any such claim.  I acknowledge that the court should not adopt an unduly restrictive approach to this issue given that these are public law proceedings (Walton v Scottish Ministers 2012 SC (UKSC) 67).  It seems to me, however, that these petitioners are not in any realistic sense directly affected by Part 4 of the Act.  In this connection, it is important to note that the first to third petitioners did not participate in the consultation exercise preceding the Act.  Nor did they contribute to the legislative scrutiny of the Act despite the general call for evidence issued by the Education and Culture Committee at Stage 1. In these circumstances, I am not persuaded that the first to third petitioners have shown a genuine concern about the legislation before they brought the present case.  So far as the fourth petitioners are concerned, they responded to the call for evidence by submitting concerns, in general terms, that the rights of others might be eroded and could be infringed by the legislation and that public officials might act in a particular manner.  These views seem to me to be too insubstantial to engender a sufficient interest for the purpose of bringing proceedings for judicial review.

[94]      Moreover, this is not a case in which the involvement of the first to fourth petitioners is needed in order to ensure that the rule of law is upheld.  That is catered for by the participation of the fifth to seventh petitioners.

[95]      Finally, I am not satisfied that the first to fourth petitioners have demonstrated that they possess sufficient levels of expertise and knowledge in matters concerning child welfare and children’s services to support their claims of entitlement to act in a representative capacity.  The essence of matters appears to me to be as follows.  The first and fourth petitioners are Christian charities, but the legislation does not affect questions of religion in any meaningful sense.  The second petitioners are an educational charity researching the causes and consequences of family breakdown and issues relating to the family, but their activities are not focussed on systems and methods for providing public services relating to children.  The third petitioners are a charity supporting children and young people with ME (and their families).  The legislation is not concerned with that condition.  In my judgment none of the petitioners is entitled to bring these proceedings on behalf of other persons who might potentially have the requisite standing to challenge Part 4 of the Act. 

[96]      In the circumstances, I conclude that the first to fourth petitioners do not have sufficient standing to bring the present proceedings.”
The Petitioners reclaimed without success-see [2015] CSIH 64; 2015 S.L.T. 633. In essence the reclaiming motion was refused as (1) The Lord Ordinary had correctly addressed the challenge to the legislation as being one involving a matter of principle which attacked the general scheme in Pt.4: the existence of a possibility of interference, if a person acted in a particular way once the scheme was operating, did not mean that there was, or inevitably had to be, a breach of the Convention, and the mere creation of a named person, available to assist a child or parent, no more confused or diminished the legal role, duties and responsibilities of parents in relation to their children than the provision of social services or education generally; for the aforementioned reasons, P's challenge, in so far as based on the art.8 right to respect for a private and family life had to fail; similarly the 2014 Act contained no colourable interference with either a parent or child's right to any of the freedoms enshrined in art.9, or that enshrined in art.2 of Protocol 1 to the Convention. (2) There was no substance in the contention that the 2014 Act could not be operated within the confines of the data protection regime and once it was seen as operating therein, it could not be regarded as breaching the Data Protection Act 1998, the Directive from which it was derived or the wider Charter rights and given that context, there was no need for the 2014 Act to incorporate data protection principles; the 2014 Act created a regime involving child welfare which directed what should happen regarding the sharing of relevant information but it assumed that the actions of those operating the system would comply with data protection principles. (3) A right of confidentiality undoubtedly existed in the context of a person's medical records as part of the general art.8 right but said right was not absolute and restrictions upon it might be made if they corresponded to objectives of general public interest and were neither disproportionate nor amounted to an intolerable interference with the fundamental right: the 2014 Act was not a statute which introduced information sharing into the field of child welfare law but attempted to put an existing sharing exercise onto a firmer more transparent statutory footing in the context of the applicability of Convention rights in general, and the data protection principles in particular. Further, the 2014 Act could not be seen as encroaching upon reserved matters in terms of the Scotland Act 1998, the substance thereof was child protection and any effect on data protection was both incidental and de minimis , the provisions of ss.26 and 27 fell within the competence of Parliament and any challenge thereto had to fail. Observed , that if the scheme of the legislation could be seen as interfering with Convention rights, it had the appearance of achieving a balance in which the advantages of early detection of potential welfare issues involving a child outweighed any adverse effect of the measure on the Convention rights of parents and children generally.
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