A YEAR IN HUMAN RIGHTS
A REVIEW OF SIGNIFICANT CASELAW
2014 TO 2015
Scott Blair, Advocate
Terra Firma Chambers
Our Speaker
First, anote 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) Act2014 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 Part4 of the Act was also incompatible with the rights enjoyed by the fifth to seventh petitioners under a number of international instruments, namely article16(3) of the Universal Declaration of Human Rights 1948; article23(1) of the International Covenant on Civil and Political Rights 1966 (reference was also made to article17); article10(1) of the International Covenant on Economic, Social and Cultural Rights1966; and articles3(2) and 5 of the UN Convention on the Rights of the Child 1969. The argument ultimately presented was that all the provisions in Part4 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 Part4 of the Act with Convention rights, the main themes of their case were as follows. (1) It was said that Part4 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 Part4 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) Part4 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 Part4 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 Part4 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 Part4 of the Act does not contain all the relevant components of the system. The provisions included in Part4 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 article8. 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 Part4 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 Part4 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 Part4 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 Part4 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 Part4 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 Part4. These petitioners remained entirely free to hold and to exercise the same beliefs as they did immediately before the enactment of Part4. In the circumstances, I am not persuaded that the provisions of Part4, in themselves, engage the article9 rights of the fifth to seventh petitioners. (9) So far as the alleged infringement of the rights of the fifth to seventh petitioners under article2 of the First Protocol is concerned, this aspect of the petitioners' case is unsound. The Part4 provisions in themselves have no impact on the rights protected under article2 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) Act2014 (2014 asp8) (“the Act”). The Act received Royal Assent on 27March 2014. The provisions challenged in the petition are contained in Part4 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 Part4 into force in August2016, 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 Part4 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 Part4 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 Part4 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 sevenyears and sixmonths. 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.