Houses of Parliament, Westminster, London.

The rights of the child?

A Scottish bill is importing radical progressive politics in the name of protecting children

Artillery Row

Currently sitting in the King’s in-tray awaiting royal assent is a bill passed five weeks ago by the Scottish Parliament, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. It looks entirely innocent and indeed uncontroversial, being aimed (according to Holyrood) at ensuring that “children’s rights are respected and protected in the law in Scotland.” Who would have the stony heart to disagree with such a measure? Certainly not the Scottish Tories, whose support ensured that it passed unanimously after a few devolution wrinkles were ironed out following a visit to the UK Supreme Court in October 2021.

By way of background, the Convention on the Rights of the Child, or UNCRC, is a UN-sponsored treaty ratified by the UK back in 1991. It binds us to give children general rights such as cultural identity, freedom of assembly, privacy, freedom from mental or physical violence, the “highest attainable standard of health,” a decent standard of living, social security, and so on. It also sets up a transnational Committee on the Rights of the Child, the CRC, to which every state must self-report every five years, and which can make recommendations for any changes it sees as necessitated by the Convention.

This legislation transfers a worrying amount of say on controversial issues of child law out of the political process

Currently, however, the UNCRC is binding only in the rarefied field of international law. In practice this, together with the often indeterminate nature of the rights it affords, leaves us in the UK a great deal of wiggle-room if someone alleges that our internal law puts us in breach of it.

The new legislation changes all this, at least for events north of the Tweed. When in force, it will make the Convention part of ordinary Scots law. Scottish courts will have the power to enforce it against any public authority in Scotland, and must apply it in preference to any pre-existing Scottish legislation. They will also have the power to interpret it, in the light not only of its wording but any reports or opinions from the UN’s CRC.

All this may seem straightforward, or even praiseworthy. Yet look a little closer, and a number of things should make Scots distinctly worried about what the SNP has done in their name.

One is that this Bill actually outsources a good many decisions about the direction to be taken by Scottish child law, in practice taking them away from Holyrood, and making Scots subservient instead to a politically-charged international organisation and the opinion of its apparatchiks on the interpretation of an open-ended instrument.

This is an attempt by the SNP and the Greens quietly to impose their authoritarian brand of activism on the people of Scotland

Why? The answer is that the CRC, whose views the courts must take into account in enforcing the Convention, is in practice a comfortable congeries of the transnational great and good. It is also a group with a consistently progressive and frankly illiberal mindset. Last year, for example, its most recent report to the UK government incorporated some fairly curious demands supposedly based on the UNCRC. These included setting up youth parliaments and incorporation of their views into national policy-making; giving children the right to declare their gender identity; completely preventing schools selecting by religion; banning “conversion therapy” aimed at changing the gender identity of children; and compulsory LGBT-friendly sex education “without the possibility for faith-based schools or parents to opt out of such education.” It should concern anyone that courts should be mandated to pay respect to and possibly use state power to enforce the views of such an organisation, put forward by it as a matter of international law which public authorities have to conform to whatever the views of Scots voters or their elected politicians.

Secondly, even if we discount the influence of UN functionaries, this legislation also transfers a worrying amount of say on controversial issues of child law out of the political process where it belongs, and in favour of unelected courts, where broadly it doesn’t. It will also in practice unduly enfranchise activist pressure-groups by giving them a strong encouragement, if they want to get their way, to use lawfare rather than politics. Want to change the law on sex education, or church schools? This might be difficult if you have to persuade voters, or move Holyrood into action. Much easier to make common cause with the progressive establishment and get the Court of Session to issue a declarator that this is already required as a matter of the interpretation of the UNCRC. The activists will be rubbing their hands.

Thirdly, the UNCRC as interpreted by the CRC at times seems to require things that are simply bad. Apart from the controversial suggestions already mentioned, the CRC has also demanded a total ban on excluding any primary schoolchild; a bar on children being “threatened” for involvement in climate activism; and (of course) the compulsory decolonising of the school curriculum. Do parents really want the courts to decide that if their children bunk off school to support Greta nothing can be done by them or anyone else, or to tell them that if their children’s education being wrecked by the disruptive, or stymied by a politicised curriculum, that’s all right because the law demands it? However well that may go down in leafy Bruntsfield, if you ask that question in Invergordon or Inverclyde you may get a different, and remarkably dusty, answer.

In short, this is not decency to children as we know it. This is an attempt by the SNP and the Greens quietly to impose their authoritarian brand of activism on the people of Scotland. The Scottish people will need to be on their toes, whatever their previous view of the legislation, and if necessary demand legislative intervention against worst excesses of the increasingly doctrinaire children’s rights establishment.

Oh, and there’s one more thing that needs to be shouted from every Scots rooftop. This year the SNP government will roll out plans to incorporate four more UN human rights treaties into Scots law, covering everything from disability rights to cultural participation. This isn’t the last they will hear of this kind of compulsory progressive activism. Scots, you have been warned.

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover