27 July, 2016

UKSC unanimously allow appeal on Children and Young People (Scotland) Act 2014

The UK Supreme court has handed down its judgment and unanimously allowed the appeal on the Judicial Review brought by The Christian Institute and others on the Children and Young People (Scotland) Act 2014. In the case of The Christian Institute and others v The Lord Advocate [2016] UKSC 51, the UKSC has ruled that as defective provisions within the Act are not within the legislative competence of the Parliament, they cannot be brought into force. The court has issued an order under Section 102(2)(b) of the Scotland Act 1998, inviting parties to make written submissions within 42 days.

The UKSC found that Part 4 of Children and Young People (Scotland) Act 2014 breaches European Convention on Human Rights and cannot be brought into force as it stands. Whilst the aims of the Act are legitimate the proportionate interplay between Data Protection Act 1998 and Part 4 of the Act were insufficiently clear.

The full judgment of the UK Supreme Court can be viewed here and the press summary here.

Ampersand’s Aidan O’Neill Q.C. and Laura-Anne van der Westhuizen represented the successful Appellants and Ailsa Carmichael Q.C. (now Lady Carmichael) represented the Intervener.

Following the decision, Aidan O’Neill Q.C. said:

“The constitutional duty which is placed on the court under the devolution statues is to police the boundaries placed on the legislative competence of the devolved legislatures. As Lord President Lord Rodger of Earlsferry noted in in Whaley v. Watson, 2000 SC 340, IH (at 350B-C) the courts “are not dealing with a Parliament which is sovereign: on the contrary, it is subject to the laws and hence to the courts”: The devolved statutes accordingly all confer upon the courts functions which, in a bicameral Parliament, might otherwise be expect to be exercised by an upper house or revising chamber. This revising role is confirmed by the “institutional dialogue” provisions of Section 102(2)(b) SA which permit the court, if so advised, to “suspend[…] the effect of the decision for any period and on any conditions to allow the defect to be corrected”. The decision of the UKSC in Christian Institute v. Lord Advocate accordingly shows the constitution working as it was intended to, and the UKSC properly fulfilling its role as a constitutional court for these islands.”


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