England's top court stops Scottish government spying on its citizens, but won't stand up to Theresa May

The Supreme Court in London has overuled the Scottish Named Persons scheme that some Scottish activists have labelled a ‘state snooper law’. The ruling places the utmost importance on the right to privacy, seeking to safeguard against potential interference to this essential human right.

However, some might now question when would be a good time to challenge the real Snoopers Charter, being passed through Parliament at this moment.

What threat could the Named Persons Scheme bring

The Named Person Scheme in Scotland was designed to ensure that every child, up to the age of 18, would have one named person as well as their parents that could in essence facilitate on their behalf should they run into a complicated health or welfare situation. It could be a teacher, or a health visitor, but the idea was that they could provide extra support and become one contact point for the myriad of services or specialists that can sometimes become involved.

The scheme has faced quite some opposition, naming it a state snoopers law. A coalition of campaign groups took the case to two Scottish courts but were turned down in the judgment. The Supreme Court, however, understood there was no malintent in the legislation but fully accepted that rights infringements were wholly possible as a result of it. Therefore, the legislation hasn’t been blocked, just postponed until amendments can be made.

New Supreme Court ruling on Scottish child safety scheme: key points https://t.co/y3es52x1FB pic.twitter.com/2HhvbOHBV8

— EachOther (@EachOtherUK) July 28, 2016

Disproportionate interference with rights to privacy and family life

The Judge delivering the verdict stated that there were two parts to the ruling:

First, the information-sharing provisions of the 2014 Act are incompatible with the rights of children, young persons and parents under article eight of the European Convention on Human Rights (ECHR).

Secondly, this provisions may in practice result in disproportionate interference with those rights, with limited safeguards available to individuals affected. As presently drafted, they are at risk of placing those tasked with delivering the scheme on the ground in breach of importance regulations protecting privacy and confidentiality.

Elaine Motion who represented the coalition said the ruling was “significant”, showing the Scottish Government had “overstepped” on human rights law.

This is a highly significant and extremely unusual judgment. Successful challenges to legislation are very rare.

Will the real snoopers charter be next?

The test for breaches of privacy can be quite succinctly put. Article 8 of the European Convention on Human Rights explicitly names the Right to Privacy as a fundamental and indivisible right; with the following caveat:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Supreme Court’s Robert Walker put it this way:

Is the right interfered with? If so, is the interference justified? If the answer to the first question is yes and to the second no, there is a breach of the right.

This is a key test that needs to be applied to England’s own proposed Snoopers Charter (AKA the Investigatory Powers Bill) and must be done on a public interest level.

The legislation passed onto its third reading after being voted through the Commons on 7 June 2016 in a majority vote. It went through the second reading in the House of Lords on 13 July 2016.

The bill is widely criticised for going too far in giving powers to security officials to pry into people’s data, using a catch all justification of national security. There are also thought not to be sufficient safeguards in place to stop officials unlawfully accessing and using data.

There are campaigns against the bill as it stands, such as by Human Rights organisation Liberty, and activists can contact their MPs. The Labour party, and other political parties, seem to want improvements as well. But it appears a large proportion of the general public are unaware any of this is going on.

If the Supreme Court can rule that placing information sharing powers in the hands of someone who has the best intentions of the child at heart is against the spirit of the ECHR, then surely the seemingly sinister and controversial measures proposed in the IP Bill are too. At the very least, it should be put to the Supreme Court test.

Get involved

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Featured image via Sean MacEntee/Flikr