How best to use the law?

This blog first appeared as part of the Scottish Union for Education Newsletter 33 and is republished with permission. 

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Not very long ago, I helped to set up NO2NP, the campaign against the Named Person scheme proposed by the Scottish Government and that still exists (in a variation of its original form). The Named Person scheme was an initiative developed in Scotland to make every professional who comes into contact with any child in Scotland either a Named Person or a reporter to the Named Person. Through this initiative, every aspect of a child’s ‘wellbeing’ (undefined by the legislation) was to be monitored and recorded by health visitors, nursery workers, nurses, doctors, teachers—the list was endless. Those opposing this initiative felt that this was a huge overreach by the state, which for all intents and purposes was taking over the role and rights of the family and parents.

There were two core dimensions to our campaign. First, there was an attempt to create public pressure, helped by public meetings across the country and by media articles and the engagement of politicians. The second was legal, and the case against the Named Person scheme ended up in the UK Supreme Court.

I was always nervous about the legal dimension, in part because once you turn to law you risk handing over authority to lawyers and unelected judges to decide what is right and wrong. A good example of this could be seen when the Lord Advocate, the chief legal advisor in Scotland, rejected the idea that there was any legal issue with the Named Person scheme. Following this, the legal case was taken to the Inner House, part of the supreme civil court in Scotland, and once again it was judged that there was no legal issue. Indeed, it was not until the case went to the UK Supreme Court that the illegality of the Named Person scheme was recognised.

When thinking about using the law, it is worth bearing this process in mind, because somehow, magically, the same piece of legislation was twice deemed to be fine and dandy by the best legal minds in Scotland, and then, suddenly, the Supreme Court noted that, at least with regard to data sharing of private information about children, it was very clear that Article 8 of the Human Rights legislation had been breached.

Moreover, despite ruling against the data-sharing dimension of the Named Person scheme, the Supreme Court also argued that the fundamental idea of the Named Person was ‘unquestionably legitimate and benign’. I totally disagree with this part of the ruling, as did everyone involved in the NO2NP campaign and the vast majority of parents we met across Scotland. But there it was, in black and white, and indeed in law: the principle of the Named Person scheme is legitimate because a few judges in London have said so!

As legal writer Jon Holbrook noted at the time, this is the potential danger of using the law to fight what is in many respects a public-political matter about parents’ rights and role in society. The conservatism of judges, he argues, is always likely to protect the prevailing order of things.



Which prompts the question: when it comes to the madness of the policies put in place to supposedly support ‘transgender’ pupils in schools, the sexualisation of children, the potential loss of sex-based spaces and sports, and so on, and the wider question of indoctrination of schools, what role should the law play, and how should we use it?

If I’m honest, I don’t really have the answer to this question, but I do think that there is a place for using the law to challenge what is happening in our schools.

At our first Parents’ and Supporters’ Group (PSG) meeting last week, which I thought was fantastic, the question of the law was raised a number of times, and in England a variety of legal issues are being raised regarding the harms taking place in schools. Indeed, as one of the activists in the PSG brilliantly observed, in Scotland, schools are an unsafe space! She’s right.

A parent also raised the idea that a parent or a group of parents could possibly use the law to challenge the harm being done to children through the promotion of transgender ideology and the use of inappropriate sex education materials. Again, in England, the issue of the harms of transitioning is being discussed and the question of legal action considered.

However, the same parent noted that, following concerns raised by herself and others, the headteacher had decided to ‘take the clitoris off the curriculum’. This was in a primary school, where part of the sex education, unbelievably, involves teaching young kids about sex and sexual pleasure. The point about this, for me at least, is that this change to the curriculum didn’t need a lawyer, or a group of fusty old judges; it just took a few parents asserting their right to speak up about what they thought was wrong to change things.

Elsewhere, we have seen For Women Scotland very usefully noting that there is, in fact, a law regarding the provision of single-sex toilets in schools. And we already have a legal framework for ensuring that education in Scotland is in ‘accordance with the wishes of [pupils’] parents’. Furthermore, the Human Rights Act talks about education and teaching conforming with the ‘religious and philosophical convictions’ of parents. And yet here we are, watching as our schools are turned into centres of social justice activism.



As I have said, I think we can use the law, but I suspect a key part of this approach is to arm parents with the knowledge about what schools should and should not be doing, not because it is just illegal but because it is wrong; it goes against the basic principles of education, it threatens to undermine the distinction between adults and children, and it also confuses education and politics.

Our first PSG meeting was attended by about 50 people. Imagine if it were 500 or 5,000 people. Then we wouldn’t have to rely on lawyers and judges to make our schools and our politicians sit up and take note—because, if you’ll excuse my language, they’d be crapping in their pants.

Let’s use the law where we can, but more importantly, let’s get clued up on what legislation there is and what breaches of the basic rules of education are taking place; and let us all collectively make damned sure that our headteachers and councillors know that whatever they think is ‘progressive’, we—the public—think they’re wrong.

Over the next two months SUE intends to spell out in detail what is legally, morally and politically dangerous and damaging about what is happening in schools. We hope to produce a leaflet that spells this out. I suspect we will need to do this and to create a mass public campaign, because as the illegitimate Scottish rulings around the Named Person scheme proved, and what the Supreme Court ruling about the Named Person scheme being essentially legitimate and benign shows, when it comes to doing what is right, in the end, we cannot rely on judges to fight our battles for us; we have to rely on one another.


Image: Lee County Courthouse, Giddings, Texas | licence CC BY 2.0