Scotland’s Named Person Scheme

Gillian Black

doi:10.1163/15718182-02803001

Abstract

Abstract The Scottish Government’s proposal to introduce a “Named Person” scheme was intended to improve child protection and wellbeing in Scotland, by allocating an identified Named Person to every child in Scotland. The scheme was met by considerable concern from a range of parties, and was challenged in the courts on the basis that the data sharing provisions infringed the data protection and Article 8 of the European Convention on Human Rights (echr) privacy rights of children and parents. As a result of the complexities of introducing lawful data sharing provisions, the scheme has now been scrapped, without ever being introduced. However, at no point was there any sustained analysis of the impact of Article 5 of the United Nations Convention on the Rights of the Child (uncrc) on the Named Person scheme: to what extent would the Scottish Government proposals have helped parents meet their obligations under Article 5? Or would they in fact have infringed parents’ and children’s rights? This article provides a case study of Article 5 in practice, by setting out the background to the now-defunct Named Person scheme, before going on to analyse its interaction – and compliance – with the State Party’s obligations under Article 5.

Highlights

This article considers the impact of Article 5, uncrc on the proposed Named Person scheme in Scotland – legislated for in 2014 and abandoned in 2019, without ever having been implemented
In addition to the many criticisms levied against the proposals, a further question can be asked: to what extent would the appointment of a Named Person have supported or hindered the ‘responsibilities, rights and duties’ of parents under Article 5? Despite the scheme being cancelled, it offers a valuable case study on a legislative proposal which was designed to improve support for children and parents, but which did not apparently take into account the provisions of Article 5
The fact that the Supreme Court approved the aim of the Act, whilst holding that it did not comply with Article 8, echr and the data protection regime, led to the curious position whereby both sides claimed the Supreme Court decision as a victory: the petitioners because the scheme was defeated on the data sharing side; the Scottish Government because the defeat was only on the data sharing side, with the express recognition that it would be lawful, benign and unexceptionable if the data sharing guidance was lawful (Sutherland, 2017: 306)

Summary

Introduction

This article considers the impact of Article 5, uncrc on the proposed Named Person scheme in Scotland – legislated for in 2014 and abandoned in 2019, without ever having been implemented. The fact that the Supreme Court approved the aim of the Act, whilst holding that it did not comply with Article 8, echr and the data protection regime, led to the curious position whereby both sides claimed the Supreme Court decision as a victory: the petitioners because the scheme was defeated on the data sharing side; the Scottish Government because the defeat was only on the data sharing side, with the express recognition that it would be lawful, benign and unexceptionable if the data sharing guidance was lawful (Sutherland, 2017: 306) In reaching their conclusion, the Supreme Court explicitly acknowledged that the aim of improving public services to promote child wellbeing can justify some limit on the right to respect for private and family life. Is this an implication that the Named Person scheme would have impinged on that right? And did it engage Article 5, uncrc?

Assessing Article 5 and the Named Person Scheme Article 5 states

Concluding Comments