'Named Person' Challenge Rejected

A legal challenge against the Scottish Government's plans to appoint named guardians for children has failed at Scotland's top civil court. A judge at the Court of Session today refused a petition for the judicial review of legislation which will see a "named person'' assigned to almost every child in Scotland. The measure is contained in the Children and Young People (Scotland) Act and assigns a ''named person'', such as a teacher or health visitor, to look out for the welfare of children under 18. It was opposed by the No To Named Persons (NO2NP) campaign group, which argues that ministers have exceeded their powers and breached data protection laws and the human rights of parents. Legal papers formally challenging the plans were lodged last year.

Campaigners argued provisions which will lead to the creation of a " named person'' service were outside the Scottish Parliament's legislative competence because they were incompatible with some rights guaranteed under the European Convention on Human Rights and with the law of the European Union on data protection. They also claimed the provisions were unlawful as they contravened fundamental constitutional rights protected by the common law. Their challenge depended on the proposition that the provisions in the relevant section (Part 4) of the Act 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. However Lord Pentland concluded that the petitioners' case failed on all points. He ruled Part 4 of the Act did not contravene Convention rights, EU law or fundamental common law rights and observed that the fact the named person service will be provided for nearly every child and young person did not, in itself, necessarily mean there will be a breach of Convention rights. He also did not believe the provisions in Part 4 of the Act were necessarily disproportionate to the legitimate aim of the legislation, which is to promote and safeguard the wellbeing of all children and young people in Scotland by establishing a system for the appointment of named persons. He considered it was "unnecessary'' to make a reference to the European Court of Justice for a preliminary ruling. Lord Pentland concluded the subject matter of the legislation was "within the devolved competence'' of the Scottish Parliament, stating it was clear the provisions did not relate to matters reserved to Westminster. The Children and Young People (Scotland) Act received Royal Assent last March. The legal action was spearheaded by the Christian Institute, the Christian charity Care (Christian Action Research and Education), the Family Education Trust and Tymes (The Young ME Sufferers) Trust with the support of academics and individual parents.