UNCRC DELAY WAS NOT INEVITABLE
The re-introduction of the UNCRC bill is a welcome move from the Cabinet Secretary.
For years children and young people fought hard to have their rights recognised in domestic law, and despite seemingly achieving that win in 2020, 3 years later those rights have still not been enshrined.
So, today’s announcement marks a major step forward, but it is not without disappointment.
Two years ago I wrote an article on this blog entitled “the uncrc journey doesn’t end here” and that remains true.
The cabinet secretary has been clear that the re-introduced bill will only cover pre-devolution legislation — that means important acts like the Education (Scotland) Act 1980, and the Children (Scotland) Act 1995 will not be covered, nor will subsequent amendments made to them by the Scottish Parliament. The impact of that cannot be understated — it means the basic provision of education — standards, special needs provision — will not have the protections of incorporation and nor will the duties on local authorities in relation to looked after children.
The limitations on the bill and their subsequent limits on the scope of the protections offered by the convention align with the devolution settlement — and on the surface is an easy swipe at the constitutional arrangement but dig a little deeper and it’s clear to see that such far-reaching restrictions were not inevitable.
The SNP government for years claimed education to be its priority, yet throughout its 16 years in power it has continued to rely on a more than 40 years old Thatcherite piece of legislation — an act almost twice as old as me.
It’s a testament to how severely the SNP have wasted the powers of devolution –inaction that has led to what is ultimately a huge disappointment for young people, their representatives, and the wider movement for incorporation.
But beyond just inaction, the SNP is guilty of an even worse betrayal — a broken promise to young people that it must always have known it could not keep.
The devolution settlement is clear, yet the government chose to not only produce a bill that reached beyond the powers of the Scottish parliament – so much so that in 2021 a supreme court judge said it seemed the bill was drafted “in terms which deliberately exceed” those powers – but it made a commitment on full incorporation to young people, I was one of them, all the while knowing that delivering that commitment reached far beyond its means.
In the time since that fact became clear, it’s tried hard to blame Westminster, to blame the Tories. The Tories are no defender of children’s rights, but in this instance, it wasn’t an act of outright obstruction, it was a defence of the Scotland Act.
Of course, this drawn-out constitutional rammy could have been avoided altogether had the Scottish Government heeded advice at the time the bill initially progressed through parliament — it could have put forward then the bill in the form it has indicated it is set to re-introduce this legislation, backed by a programme of legislative reform to update and refresh outstanding UK acts that govern devolved issues, creating new devolved Scottish legislation in their place.
The cynic in me believes that it chose to proceed as it did not only paint to Westminster in a negative light but because they didn’t want to admit to their own incompetence and accept that it had promised far more than it was legally able to deliver.
