Children and Young People (Scotland) Act 2014

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Children and Young People (Scotland) Act 2014
Act of the Scottish Parliament
Coat of Arms of the United Kingdom in Scotland (Variant 1).svg
Scottish Parliament
Long title An Act of the Scottish Parliament to make provision about the rights of children and young people; to make provision about investigations by the Commissioner for Children and Young People in Scotland; to make provision for and about the provision of services and support for or in relation to children and young people; to make provision for an adoption register; to make provision about children’s hearings, detention in secure accommodation and consultation on certain proposals in relation to schools; and for connected purposes.
Citation 2014 asp 8
Introduced by Alex Neil MSP
Territorial extent Scotland
Dates
Royal assent 27 March 2014
Commencement
  • 28 March 2014 [1]
  • 28 June 2014 [2]
  • 1 August 2014 [2] [3]
  • 6 October 2014 [4]
  • 5 January 2015 [5]
  • 9 January 2015 [6] [7]
  • 26 January 2015 [6]
  • 1 April 2015 [8]
  • 30 March 2015 [9]
  • 15 June 2015 [8]
  • 30 September 2015 [10]
  • 1 February 2016 [11]
  • 31 August 2016 [12]
  • 7 October 2016 [13]
  • 28 November 2016 [13]
  • 1 April 2017 [13]
  • 7 August 2017 [13]
Other legislation
Relates to Commissioner for Children and Young People (Scotland) Act 2003
Status: Current legislation
History of passage through Parliament
Text of statute as originally enacted
Text of the Children and Young People (Scotland) Act 2014 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The Children and Young People (Scotland) Act 2014 is an Act of the Scottish Parliament passed on 19 February 2014 and received royal assent on 27 March 2014. [1] The legislation is part of the Scottish Government's Getting it right for every child policy implementation.

Contents

The scope of the act as described in its long title is to make provision:

In the course of legal proceedings on the part of The Christian Institute and others who were concerned with information privacy law, and who challenged provisions of the act, the judgments of the Court of Session in Edinburgh and, on appeal, of the Supreme Court in Westminster referred to the Data Protection Act 1998, the EU Data Protection Directive, and the European Convention on Human Rights. The Court of Session upheld the provisions of the act, but was overruled by the Supreme Court's decision that the provisions were defective and were not in the Parliament's legislative competence, and therefore could not be brought into force.

Key provisions

The key provisions of the Act include:

A government document published in June 2014 described the Scottish Government’s overarching plans for implementing the Act and stated that the named person provisions in Part 4 were then currently focused on developing guidance in relation to the "GIRFEC" approach. [14]

The Act has generated controversy, and in The Christian Institute and others (Appellants) v The Lord Advocate ([2016] UKSC 51), the Supreme Court of the United Kingdom ruled that certain data sharing provisions of the Act were in breach of the right to respect for private and family life prescribed in Article 8 of the European Convention on Human Rights, meaning the Scottish Parliament must amend the Act in order for it to become law. The Scottish Conservatives and Scottish Liberal Democrats have called for the Act to be repealed and Scottish Labour, whilst initially supportive of the Act, have called for a 'pause'. [15] A Survation poll has found that 64% of Scottish adults are opposed to the Named Person provisions of the Act. [16]

The appeal to the Supreme Court was from the Opinion of the Inner House of the Court of Session (delivered 3 September 2015) on a reclaiming motion ([2015] CSIH 64) between seven parties as petitioners and reclaimers, namely, The Christian Institute, Family Education Trust, The Young Me Sufferers ("TYMES"), Christian Action Research and Education ("CARE") (four registered charities with an interest in family matters), and three individual parents, against The Scottish Ministers as respondent. The Inner House refused an appeal from Lord Pentland's decision, as Lord Ordinary. Lord Pentland had refused a petition for judicial review (lodged 11 July 2014), holding that the named person service provisions in Part 4 of the 2014 Act were within the devolved competence of the Scottish Parliament and did not contravene fundamental common law rights, or the European Convention, or the EU law on data protection. [17]

The Opinion of the Inner House, which the Supreme Court's judgment overruled, was that the legislation was in accordance with the law, had a legitimate aim and was necessary in a democratic society in the interests of, amongst other things, public safety, the prevention of crime, the protection of health or morals or of the rights of others. The Inner House's Opinion was based on observing that the legislation was intended to provide for every child a suitably qualified professional able, if necessary, to act as a single point of contact with any public service from which the child could benefit, and that this would have no effect whatsoever on the legal, moral or social relationships within the family, and, further, that the legislation did not involve the state taking over any functions currently carried out by parents in relation to their children, and would not permit any interference with a parent’s or child’s right to freedom of thought, conscience and religion, nor bear upon a child’s right to education or his parent’s right to bring up a child according to his conscience and religion.

Possible remedy under Scotland Act 1998

The proceedings and judgments were mainly concerned with provisions in Part 4 of the Children and Young People (Scotland) Act 2014, including ten sections that had not then been brought into force under section 102, namely,

When allowing the appeal, the Supreme Court, following the precedent of its ruling in Salvesen v Riddell ([2013] UKSC 22), [18] invited the parties to produce, within the period of 42 days from 28 July (expiring in early September), written submissions on the terms of an order that the Court could make under 102(2)(b) of the Scotland Act 1998 to allow the Scottish Parliament and the Scottish Ministers an opportunity to correct the defects which the Court had identified, but the Court stated that in the meantime, since the defective provisions were not within the legislative competence of the Parliament, they could not be brought into force. [19]

Government's September announcement

The Scottish Government announced on 8 September a process involving the offices of the Children's Commissioner and the Information Commissioner in order to address the concerns raised by the Supreme Court, including development of a code of practice to set out how information should be shared under the legislation, with the intention of working towards a commencement date for the legislation of August 2017. [20]

Related Research Articles

<span class="mw-page-title-main">Scottish statutory instrument</span> Type of law in Scotland

A Scottish statutory instrument is subordinate legislation made by the Scottish Ministers, as well as subordinate legislation made by public bodies using powers provided to be exercisable by Scottish statutory instrument. SSIs are the main form of subordinate legislation in Scotland, being used by default to exercise powers delegated to the Scottish Ministers, the Lord Advocate, the High Court of Justiciary, the Court of Session, and the King-in-Council.

<span class="mw-page-title-main">Act of the Scottish Parliament</span> Acts passed by the devolved Scottish Parliament

An act of the Scottish Parliament is primary legislation made by the Scottish Parliament. The power to create acts was conferred to the Parliament by section 28 of the Scotland Act 1998 following the successful 1997 referendum on devolution.

References

  1. 1 2 Scottish Government (2014). Children and Young People (Scotland) Act 2014 (asp 8). National Archives. ISBN   978-0-10-590215-7. Archived from the original on 1 October 2016.
  2. 1 2 Scottish Government (2014). The Children and Young People (Scotland) Act 2014 (Commencement No. 1 and Transitory Provisions) Order 2014 (SSI 2014/131 (C. 9)). National Archives. ISBN   978-0-11-102344-0. Archived from the original on 1 October 2016.
  3. ↑ Scottish Government (2014). The Children and Young People (Scotland) (Commencement No. 2, Transitional and Transitory Provisions) Order 2014 (SSI 2014/165 (C. 12)). National Archives. ISBN   978-0-11-102382-2. Archived from the original on 1 October 2016.
  4. ↑ Scottish Government (2014). The Children and Young People (Scotland) Act 2014 (Commencement No. 3) Order 2014 (SSI 2014/251 (C. 22)). National Archives. ISBN   978-0-11-102444-7. Archived from the original on 1 October 2016.
  5. ↑ Scottish Government (2014). The Children and Young People (Scotland) Act 2014 (Commencement No. 4) Order 2014 (SSI 2014/314 (C. 29)). National Archives. ISBN   978-0-11-102505-5. Archived from the original on 1 October 2016.
  6. 1 2 Scottish Government (2014). The Children and Young People (Scotland) Act 2014 (Commencement No. 5 and Saving Provision) Order 2014 (SSI 2014/353 (C. 31)). National Archives. ISBN   978-0-11-102549-9. Archived from the original on 1 October 2016.
  7. ↑ Scottish Government (2014). The Children and Young People (Scotland) Act 2014 (Commencement No. 6) Order 2014. National Archives. ISBN   978-0-11-102560-4. Archived from the original on 1 October 2016.
  8. 1 2 Scottish Government (2015). The Children and Young People (Scotland) Act 2014 (Commencement No. 7) Order 2015 (SSI 2015/61 (C. 12)). National Archives. ISBN   978-0-11-102643-4. Archived from the original on 1 October 2016.
  9. ↑ Scottish Government (2015). The Children and Young People (Scotland) Act 2014 (Commencement No. 8 and Saving Provision) Order 2015 (SSI 2015/104 (C. 20)). National Archives. ISBN   978-0-11-102697-7. Archived from the original on 1 October 2016.
  10. ↑ Scottish Government (2015). The Children and Young People (Scotland) Act 2014 (Commencement No. 9 and Saving Provision) Order 2015 (SSI 2015/317 (C. 38)). National Archives. ISBN   978-0-11-102921-3. Archived from the original on 1 October 2016.
  11. ↑ Scottish Government (2015). The Children and Young People (Scotland) Act 2014 (Commencement No. 10 and Saving Provision) Order 2015 (SSI 2015/406 (C. 51)). National Archives. ISBN   978-0-11-103013-4. Archived from the original on 1 October 2016.
  12. ↑ Scottish Government (2016). The Children and Young People (Scotland) Act 2014 (Commencement No. 11) Order 2016 (SSI 2016/60 (C. 9)). National Archives. ISBN   978-0-11-103125-4. Archived from the original on 1 October 2016.
  13. 1 2 3 4 Scottish Government (2016). The Children and Young People (Scotland) Act 2014 (Commencement No. 12 and Saving Provision) Order 2016 (SSI 2016/254 (C. 22)). National Archives. ISBN   978-0-11-103259-6. Archived from the original on 1 October 2016.
  14. ↑ Implementation of the Children and Young People (Scotland) Act 2014, published in June 2014.
  15. ↑ "Scottish Liberal Democrats withdraw support for 'Named Person' scheme". Christian Concern (CCFON Ltd). 8 August 2016. Archived from the original on 1 October 2016. Retrieved 1 October 2016.
  16. ↑ "Poll: 64 of Scots say named-person policy is an 'unacceptable intrusion'". HeraldScotland. Retrieved 24 August 2021.
  17. ↑ The Christian Institute and Others -v- The Scottish Ministers, website of the Judiciary in Scotland
  18. ↑ Salvesen v Riddell, para.58
  19. ↑ Supreme Court judgment, paragraphs 109 to 110
  20. ↑ "Deputy First Minister's Statement on Named Persons" (Press release). Scottish Government. 8 September 2016. Retrieved 9 May 2018.
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