REASONABLE CHASTISEMENT

HC Deb 01 May 1995 vol 259 cc49-75

1. '.—(1) In any proceedings (whether criminal or civil) against a person for striking a child, it shall not be a defence that the person struck the child in the purported exercise of any parental right if he or she struck the child—
1. (i) with a stick, belt or other object; or
2. (ii) in such a way as to cause, or to risk causing, injury; or
3. (iii) in such a way as to cause, or to risk causing, pain or discomfort lasting more than a very short time.
2. (2) Any person who has care or control of a child but who does not have parental responsibilities or rights in relation to the child shall have no greater right than has a parent to administer corporal punishment to the child.
3. (3) Section 12(1) of the Children and Young Persons (Scotland) Act 1937 shall be amended by leaving out the words "assaults" and "assaulted".
4. (4) Section 12(7) of that Act is hereby repealed.'.—[Mr. George Robertson.]

Brought up, and read the First time.

Mr. George Robertson

I beg to move, That the clause be read a Second time.

May I express a word of thanks to my hon. Friend the Member for Glasgow, Maryhill (Mrs. Fyfe) and other Opposition Members who served on the Committee? I did not do so but I appreciate that this is a hugely important Bill. My hon. Friend the Member for Maryhill undertook a huge amount of consultation and was backed up by a strong Committee, which added its force of argument to the points put forward.

I am sorry that it was necessary to break the unique consensus on the Bill earlier this afternoon by criticising the Government for the number of amendments that they tabled at such a late stage. I hope that Madam Speaker's reprimand will serve as a lesson to the Government.

This important new clause deals with the last remaining area where domestic violence is still legal in Scotland. The proposal in respect of chastisement and punishment of children in the family home is moderate, modest and reasonable, and should be accepted by the Government. It is not political or partisan and has no party background. It has been taken directly from the excellent and thorough report of the Scottish Law Commission on family law, which was published in 1992 and dealt with this subject in commendable detail. It reached a definitive conclusion that I should have thought the Government would accept without dispute.

The new clause is not prohibitionist and does not seek to prevent physical punishment of children in the family home. It is not absolutist and does not prohibit all forms of punishment. It is specific about the areas in which it seeks to protect children. It would not ban or criminalise parental control or diminish the right to administer reasonable physical punishment against children in the home. There is a case for stopping all forms of physical punishment in the home but the new clause does not go that far and should not be portrayed as doing so. It sets out in explicit terms areas where a civilised society would want to protect its children. We therefore propose the new clause in the light of strong argument in its favour and in the hope that, even at this late stage, the Government will see the light and accept a change in the law.

It should be totally unacceptable for a child to be hit by a parent or anyone else with a cane, belt or whip. If the Government resist this necessary change to the law, they will be rightly condemned throughout Scotland. In addition, they should be forced to accept the full burden of responsibility and blame if even a handful of parents use the Government's attitude this afternoon to indulge in that form of violence.

The new clause seeks to clarify the law not only for parents and guardians but for the courts. That must be for the good of children and the criminal justice system.

Mr. Raymond S. Robertson (Aberdeen, South)

Tripe.

Mr. Robertson

The hon. Member for Aberdeen, South (Mr. Robertson) catcalls from a sedentary position. We all look forward to Mr. Eleven per cent. having an opportunity to speak later in the debate. We shall listen to any of his arguments that might conceivably be slightly more elevated than what he just shouted.

There is no reason why the Government should not accept the new clause, which is, after all, the recommendation of the Scottish Law Commission. If they resist this valuable clarification of the law, they will leave a serious question mark over their true intentions.

Under the Children and Young Persons (Scotland) Act 1937, assaulting, ill-treating, neglecting or abandoning a child are criminal offences. Section 12(7) allows: any parent, teacher, or other person having the lawful control … to administer punishment". The prescription in law and the associated case law leave judges and sheriffs to decide what constitutes reasonable physical chastisement of children by parents and others. There is simply no legal precedent or generally accepted case on which judgments are based. That means that the law is confusing, with much disparity between the judgments of individual sheriffs of what they deem to be reasonable. That has, sadly, resulted in some parents who have inflicted fairly significant abuse on children—using belts, sticks and other implements in the name of physical punishment—being acquitted by the courts. That is why we believe that it is perfectly reasonable and sensible for the House to agree to the new clause and to give the guidance to the courts and to parents that they clearly want.

The new clause would offer more clarity for courts and for sheriffs. It would tidy up this unnecessarily loose area of legislation. We are not seeking to outlaw any form of physical punishment; we are simply providing clear legal parameters within which sheriffs can exercise their discretion.

The new clause has widespread support, from not only professionals and the Scottish Law Commission but public opinion, to which the Government should listen. If the Government tell the House that they will resist the new clause simply on the basis that the Children Act 1989, which applies to England and Wales, does not move into this territory and does not give this valuable clarification, their response will be seen as feeble and inadequate by people in Scotland. The new clause would make it clear to parents and to everybody else in society that it is no longer acceptable to use sticks, belts and other implements to deal a violent blow in the cause of disciplining children. Adults would no longer be able to use the defence that they were exercising parental rights.

It is important when considering the case for the new clause and for setting out forms of punishment that are not acceptable for parents to use against children to look at the background to the Scottish Law Commission's conclusion. This is not some woolly, liberal, soft-soap measure that has come out of some enlightened working party; there is no possibility of caricaturing the proposal in that way. If the claim that a modest smack to the leg will be made illegal is used as an excuse for not moving in this direction, the House should listen carefully to the reasoning and the arguments of the Scottish Law Commission.

The commission advanced a number of arguments as the background to promoting a change in the law. It said: If all corporal punishment is made unlawful there is less chance of violent abuse taking place. Parents will know where the line is drawn. There will be less chance of conduct which begins as chastisement ending up as violent abuse because the parent does not know his or her own strength or because the initial chastisement does not produce the desired response. That was one of the clear arguments that the commission said could be used in favour of making the law much more definitive.

5.15 pm

A second key argument deployed by the commission was: We should follow the lead taken by Sweden, Finland, Denmark, Norway and Austria. The commission refers to an American assessment of the Swedish legislation, which reported: The 1979 law is now taken for granted in Sweden. Whereas in 1981 parents reported 'thinking twice' before using any physical punishment, in 1988 parents simply say they do not use it. That is the argument that we advance today.

Another powerful argument is available to the House in reaching a decision on the matter. I hope that Conservative Members do not feel that I am promoting the new clause in a partisan way or that there is a good argument for overriding their consciences; conscience may be in short supply among certain Conservative Members. I believe, however, that those who have read the Scottish Law Commission's report will have been affected by the arguments, especially by the one that the commission deploys in relation to the United Nations convention on the rights of the child, which was adopted by the General Assembly in November 1989. It says: States must take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation while in the care of parents, legal guardians or any other person who has the care of the child. That view is subscribed to by all the members of the General Assembly.

The Scottish Law Commission went into the matter in enormous detail; it is a subject worthy of that attention to detail. The Association of Reporters to Children's Panels, which in Scotland would be regarded as being among the most authoritative voices in this field and an organisation that is closer to the issue of delinquent children than any other in Scotland, said in its submission that, at the very least, clarification of the scope of reasonable chastisement was required.

The Scottish Law Commission said: We received a particularly cogent submission from Professor Michael Freeman, of the Faculty of Laws, University College, London. The argument here is especially strong. Professor Freeman made the point: The present law was, in any event, so imprecise and uncertain in its application as to be unjust to parents (as well as children). Moreover"— this is an extremely serious point— much child abuse was corporal punishment gone wrong. He quoted an American study which concluded that well over half of all instances of child abuse appeared to have developed out of disciplinary action taken by the parent. That must worry hon. Members as it worries so many people when they think about the horrifying stories of child abuse which are now becoming public.

The Royal Scottish Society for the Prevention of Cruelty to Children makes exactly the same point in its submission to the Scottish Law Commission. It says: From experience staff know that cases of child abuse often start as physical punishment and escalate. Those two strong arguments should convince anybody considering the case on the margin. I hope that Conservative Members will listen carefully.

The Scottish Law Commission went on to discuss the options that should be considered by it and by the policy makers—ultimately, this Parliament. It produced two options that should be drawn to the attention of the House. It said: At the most general level we have to choose between recommending some change or no change in the present law. We have been impressed by the level of support, particularly from organisations concerned with child care or child welfare, for some change. We have accepted that there is force in some of the arguments for change, particularly in relation to corporal punishment at the severe end of what may be permitted by the present law. We do not therefore recommend that the law should remain unaltered. It is incumbent on the Minister to tell us why, in the face of that strong recommendation from a body as authoritative as the Scottish Law Commission, the Government, in their mighty wisdom, are choosing to put to the House the option of no change in the present law.

In the next paragraph of the report, the Scottish Law Commission says: So far as the direction of change is concerned we have no doubt that, if there is to be any change, it should be in the direction of reducing the level of physical force which can lawfully be used in the punishment of children. No-one argued that the existing law unduly curtailed the powers of parents, even although what is permitted today probably falls short of what was regarded as normal and desirable in earlier times. That is the vividly expressed argument of the Scottish Law Commission.

The force of the conclusions in the commission's report needs to be read and understood by anyone who intends to vote at the end of this short debate. The commission says: It seemed to us, on the basis of the comments which we had received, that there would be likely to be general agreement that a parent should not, in the purported exercise of parental rights, he allowed to cane, belt, whip or flog a child, or hit the child with a shoe, slipper, wet cloth, piece of rope, wooden spoon, fish slice or any of the other objects which we know some parents use as instruments of punishment. That is another vivid phrase and a horrifying commentary on what happens in the tiny minority of homes in which people hide behind the current imprecision in the law while doing these things to small children.

The commission went on: It also seemed to us that almost everyone would agree that a parent should not be allowed to strike a child in a way which actually injured the child (by breaking an arm, for example, or damaging an internal organ, or lacerating the skin) or involved a risk of injury to the child (as a heavy blow to the head, face or abdomen would do, even if by good fortune it did not cause injury in a particular instance). It also seemed to us that almost everyone would agree that a parent should not be able to strike a child in such a way as to cause, or risk causing, prolonged pain. The commission believes that everyone would subscribe to that. Its conclusions are based on a sentiment which I doubt anyone in the House would dare to suggest was wrong or controversial. Yet the Government intend to resist the new clause. They intend to say, in effect, that they will not offer children the protection that the Scottish Law Commission believes essential. The Government would appear to be willing to continue to allow these excesses to take place in a minority of homes, and they are not willing to effect the clarification of the law that the commission and almost everyone else in Scotland believes important to protect vulnerable small children in the family home.

The commission went on—as if it needed to—to carry out an opinion poll of its own, conducted by System 3 Scotland, to establish what public opinion is in respect of assaults of the kind that I have described. We are discussing not ordinary physical punishment—a slap on the leg—but the sort of brutality for which people can be acquitted in the courts because of a legal imprecision. The opinion poll discovered that 94 per cent. considered that it should be against the law for a parent to hit a three-year-old child with a belt, stick or other object, even if the hitting was not likely to cause lasting injury. Many of us might hesitate before hitting a 15-year-old, given the possibilities that might be involved—I say that as one who has brought up three children, two of whom are older than that. But the fact is that 68 per cent. thought that it should not be lawful to hit a 15-year-old with a belt, stick or other object.

Public opinion, too, supports the view that the law should be clarified. The Scottish Law Commission, after powerful consideration of the detail and having listened to all the authoritative arguments, has conclusively told the Government that the law needs amending in exactly the terms that new clause 1 proposes. Only Her Majesty's Government claim to know better than all these people.

I shall not press the Government further until we hear what the Minister has to say, but I sincerely hope that he will recognise this powerful argument, that he has re-read the SLC report and that he recognises that a change in the law is necessary. If he does that, we will achieve all-party support for the new clause and for clarification of the law. If not, we shall have to divide the House, whereupon I shall invite hon. Members on both sides to support the new clause.

Mr. Galbraith

It is important, first, to point out what the new clause does not do so that we can avoid its being caricatured by the Minister and others. It does not tell people how to bring up their children—that is a matter for them. It revolves around good judgment and very good luck, probably more the latter. I would not want to proffer advice to anyone on how to bring up children; in any case, the new clause does not do that.

Secondly, the new clause is not, as I heard claimed on a BBC television programme, about telling people not to smack their weans, although it is often caricatured thus. I fully appreciate the pressures; sometimes one can be driven across the floor with the intention, if one can get one's hands on them, of doing more than just smacking the children—but most of us manage to resist the temptation. Personally, I cannot understand why anyone would want to smack children, but if people want to inflict a mild smack on them, within reason, so be it. The new clause does not outlaw that. It clearly establishes the limits that society wants to impose as to the extent to which children can be punished.

As it stands, the law is unclear and allows some people to abuse their parental and other rights. Physical punishment is often justified on the ground that it provides a learning mechanism to obtain some sort of Pavlovian response. It is said that children can be taught the difference between right and wrong in this way. Not true: we can teach them what to do and what not to do, but we certainly cannot teach them the difference between right and wrong—that will come only from reasoned arguments once conceptual analysis becomes possible. The problem is that many people start to think that the only method of getting something done is to inflict physical violence. We must put a stop to that idea.

We can apply two tests to find out what is acceptable in this area. The first is whether we would allow it between adults. Would we allow adults to hit one another with sticks, sometimes in public? Would we allow them to bruise one another in public? The answer is that we would have them up on charges—apart from in the case of boxing, which is the anomaly that proves the case.

Lord James Douglas-Hamilton

rose

Mr. Galbraith

It would appear that the Minister wishes to defend boxing. He is a classic example of the reasons why it should be banned.

Lord James Douglas-Hamilton

Is the hon. Gentleman saying that he would introduce legislation to ban boxing?

Mr. Galbraith

Looking at the Minister sometimes I think that perhaps we should—but I am being ungenerous to him. He knows that I do not mean it: he is rather a nice chap. The House has expressed its view against such legislation, and that is the end of the matter for now.

We would not, as I was saying, allow adults to whip each other, beat each other with sticks or bruise one another. That would be considered assault. If it is wrong for us, it is wrong to do it to children.

Mr. Tim Devlin (Stockton, South)

How then would the hon. Gentleman distinguish between smacking children, which would still be permissible under the new clause, and one adult slapping another, in public or in private, which would be classified as an assault?

Mr. Galbraith

Presumably if someone started slapping me in public without my consent, he would be charged. For some reason we permit this with children, although I do not like it either. People should certainly not be allowed to thump children with sticks or belts in public and get away with it.

The second test is whether we would allow it to happen to animals. The answer is that we would not allow much of what we are talking about to happen to them. We would not allow people to beat them with sticks so that they became bruised, cut or generally damaged. We would not allow them to be whipped. If we do not allow such punishment to be inflicted on animals, why do we allow children to be treated in that way?

The clause is not partisan, nor is it party political. I am not lecturing people on how to bring up their children. We all find the task difficult enough. I am merely saying that society has a duty to draw limits, and they should be drawn on the basis of the provisions of the new clause.

5.30 pm

Mr. Gallie

It may surprise the House to learn that I agree with some of the comments about widespread public support. If the hon. Member for Hamilton (Mr. Robertson) spoke to his constituents and other people in Scotland, I suggest that he would find a great move throughout the country to bring back the belt in schools. The hon. Gentleman shakes his head. I challenge him to come with me to any town of his choosing to ask people if they would like the belt to be reintroduced in our schools. I guarantee that more people would side with me in that instance than with him.

Mr. Robert Hughes

Will the hon. Gentleman give way?

Mr. Gallie

I have only just started.

Mr. Hughes

I would like to take up what the hon. Gentleman has just said.

Mr. Gallie

All right, I will give way.

Mr. Hughes

I have some sympathy with the hon. Gentleman. There is a demand in some areas for the belt to be brought back into schools. The hon. Gentleman has a point there, but he does not have to follow that demand. If the public demanded that kids' right hands should be cut off when they were caught stealing sweeties from a shop, would the hon. Gentleman go along with that?

Mr. Gallie

The hon. Member for Hamilton suggested that we should take account of widespread public support. The hon. Member for Aberdeen, North (Mr. Hughes) has realistically and practically acknowledged that there is a demand for the belt to be brought back into our schools, and I thank him for that. To take up the intervention of the hon. Member for Aberdeen, North, I would not vote to introduce legislation that would result in people's hands being cut off on being found guilty of theft. I regard that argument as incidental.

Mr. George Robertson

Will the hon. Gentleman give way?

Mr. Gallie

The hon. Gentleman spoke for quite a while and others wish to speak. I have no doubt that he will have the chance to speak again in this debate.

Mr. Robertson

Will the hon. Gentleman give way?

Mr. Gallie

All right, I will give way.

Mr. Robertson

I am grateful to the hon. Gentleman but there is a protocol in this place whereby we give way to an hon. Member if we refer specifically to him and he rises to intervene.

Whether the hon. Gentleman is right about people wanting to bring back the belt in schools is beside the point. We are talking about clarifying the law to give protection to children—in some instances, small children—from hard implements being used upon them of the nature that I described. It is all very well for the hon. Gentleman to say, "Let us go to an average street in Scotland and conduct a straw poll." The Scottish Law Commission predicted that people like the hon. Gentleman would advance that argument. That is why it conducted an opinion poll. We know the finding of the poll, which is better than the hon. Gentleman begging me to join him in conducting a poll in a street somewhere in Scotland. We know that about 90 per cent. of those who participated in the opinion poll were opposed to punishment of the sort that I described being inflicted on three-year-olds. About 68 per cent. were opposed to it being inflicted on 15-year-olds. Surely even the hon. Gentleman can recognise that that public opinion is clear and firm.

Mr. Gallie

I am always reluctant to give way to the hon. Gentleman, who tends to make speeches out of interventions. That was hardly a short intervention, bearing in mind the fact that others want to speak. My challenge remains: if the hon. Gentleman wants to talk about public support, I leave my challenge on the table, as it were—I will go anywhere in Scotland that he suggests to ascertain public opinion.

In Committee, we debated a similar new clause. New clause 18 was voted down in Committee. No one voted in support of it. That was the right decision at the time. I ask my hon. Friend the Minister to take account of that decision when he responds to the debate. It is clear—[Interruption.] I hear Opposition Members saying "Silly man." The fact remains that in Committee new clause 18 was rejected. No one voted in favour of it.

Mrs. Fyfe

On a point of order, Mr. Deputy Speaker. The hon. Gentleman is contriving to mislead the House. Although he called a vote on new clause 18 in Committee, it was not voted upon. There was no calling of a vote through the Chair. I did not take any part in debating that new clause because I did not want a lengthy debate to take place if that would prevent today's debate from taking place. The new clause related specifically to children in local authority day nursery care. We were not talking about parents' responsibilities.

Mr. Deputy Speaker

Order. That is an argument between hon. Members; there is nothing for the Chair to rule upon.

Mr. Gallie

Thank you, Mr. Deputy Speaker.

In Committee, the hon. Member for Glasgow, Maryhill (Mrs. Fyfe)—this appears in Hansard—begged to ask leave to withdraw the motion. Hon. Members said "No" and thereafter the Question was put and negatived. If the hon. Lady reads my words in Hansard tomorrow, she will find that I said that not one Member voted in support of clause 18. I was right to make that statement and there was no point of order for the hon. Lady to make.

The hon. Member for Hamilton suggests that the new clause will clarify the law. I shall go through the clause in detail and refer to parts of it which would raise questions in the mind of any sane man. I believe that the clause has been motivated by political correctness. It is yet another small step towards the ultimate goal of removing from parents any right to chastise their children.

Mr. Wallace

Will the hon. Gentleman give way?

Mr. Gallie

No, I will not. The hon. Gentleman can make his own contribution in due course.

We have heard about Finland and Sweden, but there has been no mention of Singapore, where the use of corporal punishment has wiped out crime. I accept that the clause is directed towards children, but there are wider implications. For example, the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith) talked about physical punishment being inflicted on adults. If a straw poll were conducted in Scotland on that issue, we might find majority support for such punishment. If the clause were agreed to and implemented, it would bear upon adults because it would lead to a ban on all forms of corporal punishment.

Mr. Michael Connarty (Falkirk, East)

Will the hon. Gentleman give way?

Mr. Gallie

No, I will not. I have no doubt that the hon. Gentleman will contribute to the debate by making his own speech—[interruption.] I hear someone say, "Oh no," but I assure the House that it will happen.

Subsection (1)(i) provides that no parent shall strike his or her child "with a stick". Would a rap across the knuckles with a pencil be considered as use of a stick? We have already spoken about the belt, and subsection (1)(i) refers to "or other object". That takes into account everything, including my Order Paper. Would hitting a child with an Order Paper across the legs constitute an offence under the terms of the new clause? I suggest that that would be the position. Far from clarifying the law, the new clause would confuse it.

Mr. George Robertson

Will the hon. Gentleman give way?

Mr. Gallie

No. The hon. Gentleman has already made a mini-speech within my speech.

Mr. Robertson

I want to ask a question.

Mr. Gallie

The hon. Gentleman can take up the issue later.

Subsection (1)(ii) provides that "to risk causing, injury" constitutes a crime. If a parent were gently to strike a child, the child might take avoiding action which could result in injury. Such action by the parent could infringe the law. Perhaps an Opposition Member will choose to take that matter up.

There is further comment in the new clause on the risk of causing pain or discomfort lasting more than a very short time. I will give way to the hon. Gentleman on that. Does it mean five seconds, 10 seconds, a minute, an hour, a day? Will the hon. Gentleman declare at this point what he means by "a very short time"?

Mr. Robertson

We are trying to give clearer parameters to the courts than they currently have. The court may decide what is reasonable in the circumstances. At the moment, there is no guidance at all. As the hon. Gentleman keeps asking me questions and not letting me answer any of them, I shall ask him a question, as he has the chance to answer. Has he read the Scottish Law Commission's report on the subject? Why does he not take its arguments apart, instead of the rather feeble debating trick of taking apart the new clause that it has proposed?

Mr. Gallie

I have seen and read part of the commission's report, but I agree that I have not gone through it line by line. I frequently read such reports and I frequently feel that the conclusions arrived at are unsound and are conclusions with which I disagree. The reason why I stand here today is to vent that disagreement. I make particular reference to the hon. Gentleman's earlier comments in support of the new clause because I am trying to negate the points that he made.

Mr. Connarty

I thank the hon. Gentleman for giving way, as it will avoid me making a long speech later. Does the hon. Gentleman strike his adopted children with a belt or a stick? If not, why is he unwilling to support a law which would prevent other people from doing that legally?

Mr. Gallie

Looking back, I have to say that I certainly would not strike my children now as one is 25 and the other is 22; they are adults in their own right. In the past, as a parent, yes, I struck my children, although I never ever struck them in a way that would have marked them: had I done so, I believe that the law as it stands would certainly have allowed me to be taken to court and due justice to be exacted. I certainly did strike my children when they were younger, and I make no apologies for that. I do not believe that I at any time created undue pain or misery to my children by so doing. It was infrequent and I would like to think that any such punishment is more a deterrent than a controlling factor.

On that basis alone, I ask my hon. Friend the Minister to reject the comments coming from Opposition Members. Let us not make another mistake on such issues by listening to the siren vices of the Opposition; let us maintain the status quo.

Mrs. Ewing

I intend to speak briefly. I have listened with considerable interest to the points made by the hon. Member for Ayr (Mr. Gallie). Needless to say, I do not want to pursue many of the points that he raised, as the arguments that he deployed were similar to those advanced on issues such as the abolition of slavery, about slavery being good for the slaves, who would not be able to cope with freedom; or how it was good to keep pushing young boys up chimneys because it gave them employment.

As society develops, we have to look carefully at the parameters laid down by its legislature. I believe that the ideals enshrined in this very important new clause are admirable.

Mr. Gallie

The hon. Lady does me a great disservice when she compares the comments that I made with the days of slavery and pushing young children up chimneys. We are in a different situation. I have raised questions of detail on the new clause. If the hon. Lady wants to contribute, perhaps she could ease my mind on some of the questions that I have posed in relation to the confusion that would ensue if the new clause were adopted.

5.45 pm

Mrs. Ewing

The hon. Gentleman must accept the clear point that I made: the legislature has a responsibility to bring forward ideals into its society which reflect views and developments. The arguments that I used from history were put forward at that stage. Now, everyone regards them as ridiculous. In another century, people may look back on our debates—students of history, perhaps at some of the wonderful universities in Scotland—and wonder why on earth anyone opposed the principles being propounded here.

Of course there will be difficulties in legal interpretation. Any law that is instituted is subject to legal interpretation; otherwise we would not have lawyers, a legal system, and courts, in all their many different aspects. I believe that it is important, therefore, that we give some guidance. The Scottish Law Commission is one of the most respected legal bodies, and far too many of its reports have gathered dust on shelves and in the libraries of Scotland. We have not seen many of its very sound and effective recommendations brought into effect. This is a small measure, but it is one for which the Law Commission has clearly indicated its support, after taking substantial evidence.

The provision is also supported by organisations which see the effect of such punishment on children. The Royal Scottish Society for the Prevention of Cruelty to Children has clearly endorsed the new clause. We all accept that we are not trying to abolish the right of a parent to punish a child, but we are expecting limits to be set. I do not speak as a parent. Unfortunately I am not a parent, although I would have liked to be, but I have very interesting nephews and have watched them growing up and developing. I also worked as a teacher and saw the results in my classroom of some of the so-called "punishments" meted out to the children with whom I had to work from Monday until Friday.

It is right that if a social worker, teacher, doctor, health visitor—anyone who has a right to be in contact with the child—is concerned about the kind of chastisement being dealt out by a parent, he or she should be able to say, "This is outwith the parameters of the law and I will not accept it." That is where I come from. Of course there must be ground rules for parents, just as there are ground rules for teachers.

On punishment—not necessarily the belt—I could tell amusing stories about the class that I had to deal with for the last two periods on a Friday. The boys were desperate to leave school, could not wait for their school leaving date, and would be in competition all week to see how much of the belt they could get. Because I was the last teacher on a Friday, I was expected to be the one who would decide the competition. It was great fun for them until they discovered that I was not going to do it. So they had to sort it out before they came to my class. They knew the ground rules that I laid down within my classroom. I believe that that is what we expect within families as well. Children should always understand the parameters of the discipline and the behaviour that is expected of them.

The new clause lays down the social parameters of a responsible and caring society. I hope that all hon. Members will endorse it, because there are valid reasons for doing so.

Mr. Wallace

I, too, support the new clause. The real interest in the debate, which was opened so comprehensively by the hon. Member for Hamilton (Mr. Robertson) is in what in the world the Minister will say in opposition to it. We had a foretaste from the hon. Member for Ayr (Mr. Gallie). Let us examine his arguments. First, he argued that because for some technical or procedural reason no one voted for a parallel amendment in Committee that is somehow a compelling argument. He knows full well that that does not stand up at all.

The hon. Gentleman then suggested that there was some uncertainty in the law. The present law, however, is far from certain and the courts have interpreted widely what is meant by reasonable chastisement. In the briefing sent to us by Children First, we find that in one case a judge ruled that it was "reasonable" for a mother to use a belt on her nine-year-old daughter, leaving bruising—he said that that punishment was rightly deserved—yet in a different case, just a few weeks later, said that it was "unreasonable" that a mother had slapped her two-year-old in the face. Clearly, the present law is uncertain.

Mr. Devlin

I read that as well, and I felt that a clear distinction was made. One child aged nine had been slapped on the body and the other, aged only two, had been slapped on the face, which was obviously unreasonable.

Mr. Wallace

The hon. Gentleman has made my point even more compellingly by introducing another factor—the age of the child. That complicates matters further, but I find the use of implements to hit even nine-year-old children unacceptable.

Mr. Gallie

Will the hon. Gentleman give way?

Mr. Wallace

I shall deal with the hon. Gentleman's argument in a moment, and then allow him to respond.

The hon. Gentleman mentioned a tap over the knuckles with a pencil, or on the leg with an Order Paper. He knows that such action would not attract proceedings: he knows that the bringing of any criminal prosecution in Scotland will require the procurator fiscal, and he knows that no procurator fiscal would dream of bringing a case in such circumstances. If someone sought to use the civil courts, I suspect that—even if the case got anywhere—zero damages, or damages of 1 p, would be awarded. It is as if a motorist was doing 30.5 mph in a 30 mph area: a prosecution simply would not be brought.

Mrs. Ewing

The hon. Gentleman's approach shows much common sense. As a well educated lawyer, however, will he tell us whether hitting a child in the eyes with an Order Paper or poking a child in the eyes with a pencil, as part of a disciplinary procedure, would be prosecutable?

Mr. Wallace

I think so. Indeed, I hope that it would be prosecutable even under the current law. Acceptance of the new clause, however, would put the matter beyond doubt.

Much of what we are discussing must happen within the four walls of a family home. It is clear that enforcement may be difficult. I do not think that we should take the new clause further, and include smacking: that would constitute an intrusion into the family home, and it would be almost impossible to secure any evidence. The fact that cases have been brought to court, however, proves that evidence of unreasonable chastisement or chastisement with an implement can be obtained. School authorities, friends or parents may notice a mark on a child.

Mr. Gallie

The hon. Gentleman has defeated his own argument. He says that a smack is okay, but a smack was involved in the instance featuring children aged nine and two that he used to demonstrate the current confusion in the courts. I believe that at that time the court acted wisely and justly, and made a rational decision. The hon. Member for Moray (Mrs. Ewing) mentioned a poke in the eye, and the hon. Gentleman himself said that the present law would recognise that. I think that he has made the case.

Mr. Wallace

I do not agree. I was trying to illustrate the huge discrepancies in the interpretation of the word "reasonable". The position would be clear, however, if a child had been slapped in the face so hard that the evidence remained: that would undoubtedly come into the category of having caused pain for more than a short time. The hon. Gentleman asked what constituted a short time. He may have been such a perfect child that no hand was ever raised against him—there is always a possibility, although the suggestion may stretch the House's credulity—but he probably remembers what it was like to be given a smack on the bottom, and how long the pain lasted. A sensible approach would tell him what sort of time scale we are discussing.

The hon. Gentleman also mentioned public opinion and political correctness. He may be interested to learn that only 3 per cent. of those surveyed by the System 3 poll to which the hon. Member for Hamilton (Mr. Robertson) referred agreed that it should be lawful to hit a three-year-old child with a belt, stick or other object, and only 10 per cent. thought that it should be lawful to hit a 15-year-old with a belt, stick or other object. Given that the Conservatives' poll rating in Scotland is now about 11 per cent., some Conservatives—indeed, quite a number, even at that time—must have thought that the new clause makes good sense. Political correctness, if such it be, is clearly pervading the rump of Conservative support in Scotland.

Opinion poll evidence is important in regard to a change in the law to reflect a change in social conditions. When taking such a step, it is important to carry public opinion. There are two categories: public opinion that considers it unlawful to use a stick, implement or object that would cause harm to a child, and the large body of opinion that would not consider it right to extend that as far as a smack. I believe that the Scottish Law Commission has got the balance right, reflecting public opinion. It is difficult to imagine what opposing arguments the Government may deploy.

Unfortunately the Secretary of State has left the Chamber, but I am sure that the Minister will remember our Second Reading debate in the Scottish Grand Committee in Edinburgh on 5 December. The Secretary of State said: The Bill is founded on principles derived from the United Nations convention on the rights of the child".—[Official Report, Scottish Grand Committee, 5 December 1994; c.4.] Let me remind the Minister that article 19(1) of that convention, which this country has ratified, states that parties to the convention must take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. I very much doubt whether our current legal position addresses that international obligation, into which the Government have voluntarily entered. I believe that the new clause would meet it, and I hope that the House will accept it.

Mr. Malcolm Chisholm (Edinburgh, Leith)

I support this modest measure, which I believe is supported by public opinion. It is regrettable that the hon. Member for Ayr (Mr. Gallie) has not read the Scottish Law Commission report; if he had, he would have had second thoughts about many of the points that he made in his alarming and extreme speech. It concerns me that only four of his hon. Friends are present—five; another has just entered—[HON. MEMBERS: "Six."] It also concerns me that Conservative Members may be whipped through the Lobby to support—

Mr. Deputy Speaker

Order. We have had a good debate this afternoon, and so far we have kept to the amendments. Let us keep to them now.

Mr. Chisholm

I was only going to say that Conservative Members may be whipped to support the status quo and oppose the new clause.

We have heard the definition of unreasonable chastisement in Scots law, which is very unsatisfactory. The judgment of whether a child is beaten unreasonably is highly subjective; as a result of that subjectivity, adults have been able to get away with inflicting severe beatings on Scottish children for years—indeed, centuries. The new clause attempts to change that subjective definition into one that is at least partly objective.

It might be simpler to outlaw any kind of hitting, and I am personally attracted to that option, but I realise that it would go too far for public opinion. Many people still wish to administer a modest smack. The new clause tries to draw the line between such chastisement and the serious physical abuse that, as we all know, still goes on day in, day out in Scotland. I ask the hon. Member for Ayr and his colleagues to think seriously before opposing the measure in a knee-jerk reaction.

Let me advance three arguments in support of the new clause. First, I instinctively feel—according to the Scottish Law Commission, the majority of Scottish people feel the same—that it is barbaric for adults to inflict pain on young people, particularly with sticks, belts and similar objects. That is just an emotional reaction but one of which I am proud. I was disturbed to hear the hon. Member for Ayr suggest that he approved even of the sort of barbarity that goes on in Singapore. Most people in this country have a natural revulsion against that and, indeed, physical violence of a less severe nature.

If the Conservative party is not persuaded by and does not sympathise with that feeling, it should at least consider—I said this many times in Committee—that the Government have signed up to the United Nations convention on the rights of the child. If that were taken seriously, the Government would have to support the new clause because that convention says that Governments must take legislative measures to prevent physical violence against children. As throughout the Bill, this is a simple matter of the rights of children. In the past, the problem has often been that children have not been seen as full human beings. That is often why adults have felt able to beat children.

6 pm

My second argument against striking a child, apart from the simple barbarity of it, is that it is unnecessary. That should be clear if we look around society. Most children are brought up without such treatment and the majority of children are reasonably well behaved. We all know from our own experience that we do not have to treat children in such a way to get them to behave properly and to teach them the difference between right and wrong.

We should consider what has happened in relation to schools. The hon. Member for Ayr will disagree, but he if had read the Scottish Law Commission report he would have realised that it had considered all the evidence on the abolition of corporal punishment in schools and found that that in itself did not make a significant difference. Those of us who have been teachers can add our personal experience to back that view. We know that it is not necessary to treat children in that way.

The third argument that should be taken on board—again, reference was made to this in quite a lot of the evidence to the Scottish Law Commission—involves the long-term effect of such treatment on the children who receive it. This is perhaps the most important of all the arguments against such treatment. A wealth of evidence suggests that it makes children more aggressive and contributes to violent and anti-social behaviour. The Conservative party should consider that wealth of evidence.

This is a serious point. If one talks to violent criminals in prisons, it is amazing how many of them have been physically abused. Violent figures in history have often suffered such abuse. It brings to mind the fact that this week Alice Miller's book, "The Drama of Being a Child" is republished. She has concentrated on the effect of severe physical beatings on dictators and other vicious characters in history. In this week of all weeks, it would not be inappropriate to reflect that that was one aspect of Adolf Hitler's background. It is important, therefore, that the Conservative party considers the effect of severe beatings on the character and behaviour of young people who must endure them.

Subsection (2) may have something to do with the objections of the Conservative party. Of course the logical conclusion of not allowing parents to strike children in this way is not allowing other adults such as teachers to do so. We all know that certain private educational establishments still allow corporal punishment. It may be that a lobby made up of parents of children at such schools is influencing the Conservative party, but I urge it not to be so influenced or it will be seriously out of step with Scottish public opinion. I know that it is out of step with it on many issues, but it would be particularly regrettable if the Conservative party were to bury its head in the sand on this issue, ignore all the evidence and take what can only be described as a reactionary and deeply damaging position.

Mr. Devlin

I listened carefully to the comments of the hon. Member for Edinburgh, Leith (Mr. Chisholm). We are all concerned that people should not be unduly flogged or viciously assaulted. The question is not whether we agree that that is a satisfactory way to treat children—we all agree that it is not—but whether the new clause tabled by the hon. Member for Hamilton (Mr. Robertson) and his hon. Friends is the best way to deal with the matter.

I listened with great interest to the hon. Member for Orkney and Shetland (Mr. Wallace) when he read article 19 of the United Nations convention on the rights of the child. Having been on the Special Standing Committee that dealt with the Bill and having been approached by the hon. Member for Glasgow, Maryhill (Mrs. Fyfe) and others to sign the new clause, with which I have considerable sympathy, I have studied the matter carefully and spent some time on researching the issues around it. I have one or two reservations about supporting them and I shall tell them what they are.

Article 19 could be interpreted as calling on the Government to outlaw smacking. Subsection (1) of the new clause states that it would not be a defence if a child were struck (ii) in such a way as to cause, or to risk causing, injury; or (iii) in such a way as to cause, or to risk causing, pain or discomfort lasting more than a very short time. It all depends on how one interprets the words to cause, or to risk causing". That is the difficulty. I can see why the Government are diffident about writing the new clause into the Bill.

Mr. Wallace

As the hon. Gentleman has shown diligence in relation to the Bill, he will undoubtedly have read the Scottish Law Commission's report, which considered that very point: whether the United Nations convention—

Mr. Devlin

I am coming to that.

Mr. Wallace

The hon. Gentleman will note, however, that the report concluded that the convention did not outlaw an ordinary smack any more than it outlawed an ordinary scolding.

Mr. Devlin

The hon. Member for Hamilton, who opened the debate so well, rightly said that the proposal had been lifted directly from the Scottish Law Commission report. Unlike some of my hon. Friends, I have read the report. It states: The vagueness of the existing law exposes children to risk of quite severe violence which parents may believe, rightly or wrongly, to be legally permissible". That is the whole point. The difficulty is whether their learned Lordships—and I am an English, not a Scottish lawyer—are correct in their interpretation of the law as it stands.

Under the new clause, the use of such objects as belts or sticks to chastise a child would be outlawed, as would a violent blow. Subsection (4) of the new clause states that section 12(1) of the Children and Young Persons (Scotland) Act 1937 should be repealed. That is the existing Scottish law. My understanding of that law is that a violent blow would he construed as an assault on the child, and that it would not be a reasonable defence if parents said that they were only administering reasonable parental chastisement.

Mrs. Fyfe

Will the hon. Gentleman give way?

Mr. Devlin

I should like to cover a few more points.

One or two important points have been made in the debate. The hon. Member for Strathkelvin and Bearsden (Mr. Galbraith) said that we would not allow adults to hit each other with sticks and belts, and that we would not allow them to hit animals with whips, belts or other instruments of that nature, but an interesting distinction exists. We would not allow adults to slap each other—a point that I put to him in an intervention. In Scottish law, a slap, and even the placing of a hand on an arm, is construed as an assault. We allow parents, however, reasonably to chastise their children, and the new clause would still allow parents to administer some reasonable chastisement in the way of a slap.

Of course, the position is different in relation to animals because some animals must be controlled with the use of sticks, straps or whips. That is an everyday part of the animal's management. Anyone who rides a horse knows that it is permissible to strike it with a crop. We see that on our television screens most Saturday afternoons. No one prosecutes jockeys for administering some reasonable encouragement to the horse to run faster, so I do not want to get involved in that point.

The new clause would repeal the existing law—the Children and Young Persons (Scotland) Act 1937—which makes assaulting, ill-treating, neglecting or abandoning children a criminal offence. It would also repeal section 12(7), which allows any parent, teacher or person with lawful control to administer punishment. That, together with the extensive associated case law, leaves individual sheriffs and judges to decide what constitutes reasonable chastisement of children.

The law in this area can be confusing. However, in any area the law has to be interpreted on a case-by-case basis. That is why I said in an intervention on the hon. Member for Orkney and Shetland that there was a great of difference depending on the age of the child. He pointed to a case highlighted by the Royal Scottish Society for the Prevention of Cruelty to Children of a judge ruling on appeal that it was reasonable for a mother to use a belt on her nine-year-old daughter, but not reasonable for a mother to slap a two-year-old in the face. Obviously, there would be different degrees of physical chastisement for different children. No one would condone—and no one does under current Scottish law—the use of sticks or straps on very small children.

The proposers of the new clause say that it would significantly tighten the law in this area, provide clear parameters within which sheriffs can exercise discretion and provide a clear statement to parents about what is acceptable physical chastisement for children.

Mr. Wallace

The hon. Gentleman has made an interesting point. Does he accept that one difficulty is that parents do not necessarily know what the law is? Would he hazard a guess at what age, under current Scottish law, it might be legitimate for a parent to take a belt to a child and at what age it might be illegitimate?

Mr. Devlin

As I understand it, there is no age divide—[Interruption.] I am happy to stand corrected if I am wrong. I understand that a parent can chastise a child of about 13 with a belt. That has been held to be acceptable in many cases. However, doing so with a child of 10 has been held to be unacceptable. The hon. Gentleman obviously knows Scottish law better than I do.

There is a problem with the arguments put forward by those who support the new clause. If they want to outlaw all physical chastisement, they have a good case. However, the new clause covers only belts, straps and other instruments. That leaves rather confused arguments. I have great sympathy with the view of the Scottish Law Commission that a safe disciplinary slap involving no risk of injury and no more than transient pain would be no more unlawful under the proposals than it is under existing law. Therefore, why is it necessary to change existing law? I agree that there should be some guidance. Currently, the discretion to decide what constitutes reasonable physical chastisement lies with individual sheriffs. The question is whether the new clause is the best way to secure the clarity of guidance sought by my colleagues on the Opposition Benches.

Mrs. Fyfe

If the hon. Gentleman feels that we are least travelling in a direction of which he approves—even if we are not going all the way that he would want us to go—will he vote with us so that we can at least achieve some improvement in the law, or will he stick with his hon. Friends who are opposed to any change in the law? Has he read the Scottish Law Commission's statement that the current law is vague and that individual children are suffering because of that?

Mr. Devlin

In fact, earlier in my speech I read that part of the Scottish Law Commission's report into the record. The hon. Lady must have missed it. The current law appears to work quite well, taking into account the fact that it has to be interpreted on a case-by-case basis. I can tell her that I always endeavour to support my hon. Friend the Minister if I possibly can. I look forward with great interest to what he has to say.

Mr. Robert Hughes

As I have listened to the debate, I have been struck by the enormous change in climate that has occurred over the past 10 to 20 years. Had we been having this debate all those years ago, dozens of Conservative Members would have stood up not just to oppose the new clause, but vigorously to state the case for the efficiency of corporal punishment. Today, not a single Conservative Member has said that corporal punishment is the best way to enforce discipline. The hon. Member for Ayr (Mr. Gallie) came closest to doing so when he referred to what happens in Singapore and said that crime there had been wiped out by the use of corporal punishment. I do not want to argue with him, but as Singapore is still using corporal punishment, it cannot be working.

6.15 pm

The hon. Gentleman also said that a section of public opinion believes that behaviour would be much better if the belt was still available in schools and if the birch—or the cane, in England—was still available as corporal punishment for misdemeanours. Those who hold that view express it vociferously, but the Scottish Law Commission takes a different view. An interesting point is that there was a tremendously higher level of violence in Glasgow in the days of the razor gangs, when corporal punishment was routinely administered day by day in primary and secondary schools and by parents. Treating violence with violence does not work.

There appears to be a nostalgic view about the use of violence in the past. It struck me as perverse that the press should have presented the funeral of one of the Kray twins as a coming together and healing of the community. There was a suggestion that when the Krays were not in prison, but were carrying out their foul deeds on the streets of east London, it was some sort of paradise. Where does such a nostalgic view come from? I certainly do not know. The truth is that the use of violence, whether by an adult against an adult or by an adult against a child, is wrong. It cannot be justified by giving it some sort of legal respectability.

The climate has changed and it is our duty not only to take account of that, but to try to persuade people that there is a better way of enforcing discipline and a much better way of teaching children the difference between right and wrong than to try to beat sense into them.

I am not a lawyer, but when a question of law has been examined by the Scottish Law Commission I feel that, unless there are very powerful arguments to the contrary, we should support the commission's. What it wants done is quite clear; it has set it out for us. I believe that, in this case, we are duty bound to accept it. I hope that the Government will do so.

Lord James Douglas-Hamilton

When considering this subject, it is useful to examine the current position under the law. A parent can exercise a degree of discipline and moderate chastisement upon his or her children. However, the punishment must be moderate and reasonable in relation to its end. If it is, that constitutes a defence to a charge of cruelty to the child, to a charge of criminal assault and to a claim for damages for civil assault. Discipline is not a right in the strict sense, but a parental power or authority. There is no reason why its exercise cannot be delegated—for example, by a widow or other single mother with an unruly son—to the child's uncle or grandfather.

On the question of the United Nations convention on human rights, in no Scottish case has the exercise of disciplinary powers over children been held to contravene its prohibition, in article 3, of inhuman or degrading punishment. However, the developing jurisprudence of the European Court of Human Rights—although its decisions are not directly enforceable—may influence views of reasonableness.

I mentioned earlier that only reasonable and moderate chastisement is permitted. What is today acceptable punishment by parents may well be limited to slaps and the like which do not cause injury, extensive bruising or long and lasting pain. Excess definitely constitutes an assault. What constitutes excess will vary according to the circumstances of the case, including the age, sex and any known disabilities or weaknesses of the child. Factors such as the nature and context of the punishment, the manner and method of its execution, its duration and its physical and mental effects will all be taken into account.

To slap a child of any age on the face or to knock a child over is an act as remote from reasonable chastisement as anybody could possibly imagine. Punishment which is intended to cause significant physical injury or which is inflicted in disregard of a readily foreseeable risk of such injury is clearly excessive. Punishment that goes beyond the reasonable objectives of discipline and is degrading or grossly humiliating is definitely excessive. Where punishment is inflicted without any justification at all or is out of proportion to the triviality of the offence, it may be wrongful and constitute an assault although the physical results may not have been otherwise excessive. An objectionable method of punishment may also constitute excess, irrespective of whether physical harm results.

The court will not sanction as moderate or reasonable punishment which carries with it an appreciable risk of injury, even if that injury does not materialise or is not shown. In any event, it appears that there are certain methods of punishment which are to be regarded as improper and that blows to the head generally come into that category.

Dr. Godman

If the law is so comprehensive in protecting children from what the Minister has described as moderate or reasonable chastisement, why has the Law Commission presented the argument for reform?

Lord James Douglas-Hamilton

The Law Commission provides an invaluable function, but we have a duty to examine its terms very closely. The test that I would apply is that any change in the law should not prevent the court from deciding that an excessive punishment of a child is unlawful.

I have some sympathy with the intention behind the new clause. It is my view that no violence to children should be justifiable under the guise of punishment. On the other hand, we certainly do not want to criminalise the great majority of parents who occasionally have to resort to a safe smack, if only to safeguard their unruly offspring. The law as its stands—both statutory and common law—already offers sufficient protection to children from assault by parents, teachers or others who have charge of children. We must resist new clause 1 as it may prevent the courts from arriving at the conclusion that they felt right in the circumstances.

The Law Commission, in its "Report on Family Law", discussed whether all corporal punishment should be made unlawful. It concluded—rightly in my view—that an outright ban would not have popular support, nor would it be enforceable. Instead, it recommended clarifying the law to make it unlawful to hit a child with a stick, belt or other object or in such a way as to risk causing injury, pain or discomfort lasting for more than a very short period of time. In essence, that is the principle of new clause 1. But I must make Labour Members aware that the formula that they have adopted would not necessarily achieve the objective sought.

New clause 1 would place unnecessary constraints on the power of the courts to take all the circumstances of each case into consideration. That has proved to be a key factor in recent case history. Some reports in the media of such cases may have been misleading. There was the unfortunate case of the girl whose thigh was bruised by a belt. In fact, in that case, the court did not say that it approved of belting children. It found that after taking account of all the circumstances, the act of the mother could not be categorised as criminal.

It has also been pointed out that a blow to the head of a two-year-old was found to be unreasonable. I find that entirely credible. A blow with a hand to the head may be much more dangerous for a young child than for an older child being struck with an implement on a less sensitive part of the anatomy. A court has to take many things into account in determining if punishment is reasonable, such as age, sex and known disabilities or weaknesses, the manner and method of execution, duration and the physical and mental effects of what has occurred.

New clause I may limit courts to only two factors: the use of the implement and discomfort lasting more than a very short period of time. I fear that that may force a court to come to a decision that it did not feel was justified given all the circumstances of the case. It may lead to a court finding against a parent who administered a light tap with some inoffensive—

Dr. Godman

Will the Minister give way?

Lord James Douglas-Hamilton

In a moment. It may lead to a court finding against a parent who administered a light tap with some inoffensive implement, while someone giving a much more severe blow with the hand may escape censure.

Dr. Godman

When were guidelines last issued to sheriffs, especially new sheriffs or temporary sheriffs—these days there seem to be more temporary sheriffs than those with security of tenure—concerning the Minister's definition of what is reasonable chastisement?

Lord James Douglas-Hamilton

Any excessive force against a child in any circumstances should be prohibited and could give rise to a charge of assault. My hon. Friend the Member for Stockton, South (Mr. Devlin) raised—

Mrs. Ewing

rose—

Lord James Douglas-Hamilton

I want to follow through this point. My hon. Friend made a very important point when he raised the question of reasonable punishment being a defence to a charge of assault. That is an assumption on which the new clause is based. It seems to restrict that defence so that it is not available in certain circumstances, such as where a parent strikes the child with a stick. But reasonable punishment is strictly not a defence to a charge of assault. A mother who hits a child may be prosecuted for assault under common law. An essential ingredient of that crime is the existence of evil intent. The courts have held that there is no evil intent when all that the parent did was to administer reasonable punishment to the child. It is not therefore the case that the assault is established and reasonable punishment constitutes a defence. Where there is reasonable punishment, there is no assault at all. The new clause therefore appears to miss its mark entirely.

There are other technical difficulties with the new clause.

Several hon. Members

rose—

Lord James Douglas-Hamilton

Let me develop the argument and then lion. Members may intervene if they wish. Courts would have some difficulties interpreting subsection (1)(iii) of the new clause. Under it, a parent would have no defence if the child were struck in such a way as to cause, or to risk causing, pain or discomfort lasting more than a very short time. My hon. Friend the Member for Ayr asked what was a very short period of time. It would be very hard to judge that other than by subjective standards. For example, would the length depend on the seriousness of the misdemeanour? More importantly, since the test would arise where there is no injury, it is extremely hard to see how anyone could ever tell whether the pain lasted more than a very short time or, indeed, risked doing so.

Other important points concern me. What is meant by "other object"? Indeed, my hon. Friend the Member for Ayr considered whether it would be legitimate to hit a child with an Order Paper. Would it be legitimate to hit a child in the eye or to use a heavy magazine? Whenever excessive force is used, it should be prohibited and the necessary action taken.

The effect of paragraph (ii) of the new clause is not clear and I fear would do nothing to clarify the law. There are a number of deficiencies in the new clause.

Mr. Wallace

The Minister's response so far has been somewhat unconvincing. He seems to be saying that the new clause does not provide what he would consider to be a satisfactory solution to the problem. Given that a United Nations committee chastised the British Government earlier in the year specifically on the ground that there was no legislation in force to avoid physical punishment to children, what proposals would he see as being appropriate to deal with this area, which would meet and honour our obligations under the UN convention on the rights of the child?

Lord James Douglas-Hamilton

Appropriate proposals would create a situation in which the courts may consider any and every case in which excessive force against a child is used. I do not believe that the new clause helps the creation of that situation for the following reasons. It is impossible to enforce. It misses the legal point and therefore would not be effective, which I mentioned earlier. It limits the court's power to take all the facts of the case into account. It lacks objectivity as to what is a very short period of time and it categorises a gentle blow with a soft object as worse than a hard blow with a hand. For all those reasons, the new clause in its present form is defective and I recommend that the House rejects it.

Mr. George Robertson

This has been a considered debate in which hon. Members on both sides of the House made serious points on one of the most serious issues that the House could possibly consider, but the Minister's reply did not live up to the debate.

6.30 pm

We are talking about violence against small children. That is what we are trying to prevent. We are trying to clarify the law so that no body, and no parent, can hide behind the vagueness of the present law in order to inflict pain and injury on small children. That seems to be one of the most important issues that we could address our minds to. Quite frankly, the complacency and unconvincing nature of the Government's case would lead anyone with any objectivity outside this place to believe that they had made up their minds in advance and were simply repeating their points.

Mr. Devlin

Does not the hon. Gentleman agree that, while we are all seeking to protect small children from violence, the new clause will also prevent reasonable chastisement of young hooligans who are considerably older than very small children?

Mr. Robertson

Of course we are trying to implement the same principles. However, when hon. Members go through the Lobby tonight, they should consider the fact that we are about to make a judgment based on a recommendation of the Scottish Law Commission on how we can prevent physical violence against even the smallest children. That should be weighed in the balance and should persuade hon. Members on both sides of the House to support the recommendation.

I return to what I said at the beginning of my comments and make a simple elementary point. This new clause did not come from the Labour party. It has not been tabled in a partisan context. Word for word, it is the recommendation of the Scottish Law Commission. If the hon. Member for Ayr (Mr. Gallie) wants to make a few cheap political points about political correctness, perhaps he should consider that the accusation of political correctness—

Mr. Gallie

Will the hon. Gentleman give way?

Mr. Robertson

The hon. Gentleman should listen to the charge before he pleads guilty to it. To make an allegation of political correctness against Lord Davidson, Dr. Clive, Professor Love, Sheriff Macphail and Mr. W. A. Nimmo Smith QC is perverse in the extreme. However, it is an indication of the weakness of the case of the hon. Member for Ayr. At least the hon. Member for Ayr has the honesty to say that he has not even read the Scottish Law Commission report before he makes a decision here tonight which might save some small children from violence and which might change a law behind which negligent and evil parents might hide when it comes to a court of law.

Mr. Gallie

My objection to the new clause is that it does nothing for young children. The present law covers the situation, as has been acknowledged in the debate. That is the point. The new clause would simply confuse the issue.

Mr. Robertson

In all fairness, if I thought that that was the case, I would not support the new clause tonight. I do not believe that if the hon. Gentleman had read the Scottish Law Commission report, he would have reached that conclusion. The commission considered the issue in enormous depth and it consulted widely, here and abroad, and reached its conclusion. It stated that its proposal, which is the proposition before the House tonight, would draw the line at a point which could be easily explained and understood. No implement. No injury or risk of injury. No lasting pain or discomfort or risk of lasting pain or discomfort. That is the line which those eminent lawyers and people looking at the issue arrived at. However, they have met a wall of trivia from the Government.

We are told that if someone is hit by an Order Paper or receives a light tap from an implement, there might be a risk of prosecution—as if there was no procurator fiscal service in Scotland and no public prosecutor could decide between the trivial and the real. In the past, the procurator fiscal service has had to make the judgment about what was real and proper. All that is swept aside in order to make debating points.

The Scottish Law Commission report considered the point that was made in the debate. It stated that A safe disciplinary smack, involving no risk of injury and no more than transient pain would be no more unlawful than it is under existing law. The commission addressed itself to the excess referred to by the Minister. It considered the excess of some parents against small children. We have a heavy responsibility on us today as to whether we believe that the Scottish Law Commission was wrong and irrelevant and that we will simply rely on the present vagueness of the law, which has unfortunately led to some parents receiving precisely the wrong signal, or whether we accept our responsibilities, consider the commission's advice and accept that new clause 1, which enshrines the commission's wording, is something that would give the additional protection to small children.

In the face of the Government's hostility, I hope that hon. Members will decide that we should be on the side of the children and that they will vote in favour of new clause 1.

Question put, That the clause be read a Second time:—

The House divided: Ayes 193, Noes 260.

Division No. 138]	[6.39 pm
AYES
Adams, Mrs Irene	Denham, John
Ainsworth, Robert (Cov'try NE)	Dewar, Donald
Allen, Graham	Dixon, Don
Alton, David	Donohoe, Brian H
Anderson, Donald (Swansea E)	Dowd, Jim
Anderson, Ms Janet (Ros'dale)	Dunnachie, Jimmy
Armstrong, Hilary	Dunwoody, Mrs Gwyneth
Ashton, Joe	Eagle, Ms Angela
Austin-Walker, John	Eastham, Ken
Banks, Tony (Newham.NW)	Enright, Derek
Barnes, Harry	Evans, John (St Helens N)
Barron, Kevin	Ewing, Mrs Margaret
Battle, John	Fatchett, Derek
Bayley, Hugh	Field, Frank (Birkenhead)
Beckett, Rt Hon Margaret	Fisher, Mark
Bell, Stuart	Flynn, Paul
Bennett, Andrew F	Foulkes, George
Bermingham, Gerald	Fraser, John
Berry, Roger	Fyfe, Maria
Betts, Clive	Galbraith, Sam
Boateng, Paul	Galloway, George
Bray, Dr Jeremy	Gapes, Mike
Brown, N (N'c'tle upon Tyne E)	Garrett, John
Burden, Richard	Gerrard, Neil
Byers, Stephen	Gilbert, Rt Hon Dr John
Callaghan, Jim	Godman, Dr Norman A
Campbell, Mrs Anne (C'bridge)	Godsiff, Roger
Campbell, Menzies (Fife NE)	Golding, Mrs Llin
Campbell, Ronnie (Blyth V)	Gordon, Mildred
Campbell-Savours, D N	Graham, Thomas
Canavan, Dennis	Grant, Bernie (Tottenham)
Chisholm, Malcolm	Griffiths, Nigel (Edinburgh S)
Church, Judith	Grocott, Bruce
Clapham, Michael	Gunnell, John
Clark, Dr David (South Shields)	Hall, Mike
Clarke, Eric (Midlothian)	Hardy, Peter
Clelland, David	Henderson, Doug
Clwyd, Mrs Ann	Heppell, John
Coffey, Ann	Hill, Keith (Streatham)
Cohen, Harry	Hogg, Norman (Cumbernauld)
Connarty, Michael	Hoon, Geoffrey
Cock, Robin (Livingston)	Howarth, George (Knowsley North)
Corbett, Robin	Howells, Dr. Kim (Pontypridd)
Corbyn, Jeremy	Hoyle, Doug
Cox, Tom	Hughes, Kevin (Doncaster N)
Cunningham, Jim (Covy SE)	Hughes, Robert (Aberdeen N)
Dalyell, Tam	Hughes, Roy (Newport E)
Darling, Alistair	Illsley, Eric
Davidson, Ian	Ingram, Adam
Davies, Bryan (Oldham C'tral)	Jackson, Glenda (H'stead)
Davies, Rt Hon Denzil (Llanelli)	Jamieson, David

Johnston, Sir Russell	Pearson, Ian
Jones, Jon Owen (Cardiff C)	Pendry, Tom
Jones, Lynne (B'ham S O)	Pike, Peter L
Jones, Martyn (Clwyd, SW)	Pope, Greg
Jowell, Tessa	Powell, Ray (Ogmore)
Keen, Alan	Prentice, Bridget (Lew'm E)
Kennedy, Charles (Ross,C&S)	Prentice, Gordon (Pendle)
Kennedy, Jane (Lpool Brdgn)	Prescott, Rt Hon John
Khabra, Piara S	Purchase, Ken
Kirkwood, Archy	Quin, Ms Joyce
Lestor, Joan (Eccles)	Raynsford, Nick
Lewis, Terry	Redmond, Martin
Liddell, Mrs Helen	Reid, Dr John
Lynne, Ms Liz	Rendel, David
McAllion, John	Robertson, George (Hamilton)
McAvoy, Thomas	Robinson, Geoffrey (Co'try NW)
McCartney, Ian	Rooney, Terry
Macdonald, Calum	Ross, Ernie (Dundee W)
McFall, John	Ruddock, Joan
McKelvey, William	Sedgemore, Brian
McLeish, Henry	Sheldon, Rt Hon Robert
McMaster, Gordon	Short, Clare
McNamara, Kevin	Simpson, Alan
MacShane, Denis	Skinner, Dennis
Madden, Max	Smith, Andrew (Oxford E)
Mahon, Alice	Smith, Chris (Isl'ton S & F'sbury)
Mandelson, Peter	Soley, Clive
Marshall, David (Shettleston)	Spellar, John
Meacher, Michael	Squire, Rachel (Dunfermline W)
	Steinberg, Gerry
Meale, Alan	Stevenson, George
Michael, Alun	Sutcliffe, Gerry
Michie, Bill (Sheffield Heeley)	Taylor, Mrs Ann (Dewsbury)
Milburn, Alan	Taylor, Matthew (Truro)
Miller, Andrew	Thompson, Jack (Wansbeck)
Moonie, Dr Lewis	Tipping, Paddy
Morgan, Rhodri	Turner, Dennis
Morris, Rt Hon Alfred (Wy'nshawe)	Walker, Rt Hon Sir Harold
Morris, Estelle (B'ham Yardley)	Wallace, James
Morris, Rt Hon John (Aberavon)	Welsh, Andrew
Mowlam, Marjorie	Wicks, Malcolm
Mudie, George	Williams, Rt Hon Alan (SW'n W)
Oakes, Rt Hon Gordon	Winnick, David
O'Brien, William (Normanton)	Wray, Jimmy
O'Hara, Edward
Olner, Bill	Tellers for the Ayes:
O'Neill, Martin	Mr. John Cummings and
Orme, Rt Hon Stanley	Mr. Joe Benton.
NOES
Ainsworth, Peter (East Surrey)	Bowden, Sir Andrew
Alexander, Richard	Bowis, John
Allason, Rupert (Torbay)	Boyson, Rt Hon Sir Rhodes
Amess, David	Brandreth, Gyles
Ancram, Michael	Brazier, Julian
Arbuthnot, James	Bright, Sir Graham
Arnold, Jacques (Gravesham)	Brooke, Rt Hon Peter
Arnold, Sir Thomas (Hazel Grv)	Browning, Mrs Angela
Ashby, David	Bruce, Ian (Dorset)
Atkins, Robert	Budgen, Nicholas
Atkinson, David (Bour'mouth E)	Burns, Simon
Atkinson, Peter (Hexham)	Burt, Alistair
Baker, Nicholas (North Dorset)	Butcher, John
Baldry, Tony	Butler, Peter
Banks, Matthew (Southport)	Butterfill, John
Bates, Michael	Carlisle, John (Luton North)
Batiste, Spencer	Carlisle, Sir Kenneth (Lincoln)
Bellingham, Henry	Carttiss, Michael
Bendall, Vivian	Clappison, James
Beresford, Sir Paul	Clark, Dr Michael (Rochford)
Biffen, Rt Hon John	Clarke, Rt Hon Kenneth (Ru'clif)
Body, Sir Richard	Clifton-Brown, Geoffrey
Booth, Hartley	Coe, Sebastian
Boswell, Tim	Congdon, David
Bottomley, Peter (Eltham)	Conway, Derek
Bottomley, Rt Hon Virginia	Coombs, Anthony (Wyre For'st)

Coombs, Simon (Swindon)	Johnson Smith, Sir Geoffrey
Cope, Rt Hon Sir John	Jones, Gwilym (Cardiff N)
Couchman, James	Jones, Robert B (W Hertfdshr)
Cran, James	Kellett-Bowman, Dame Elaine
Curry, David (Skipton & Ripon)	King, Rt Hon Tom
Davies, Quentin (Stamford)	Kirkhope, Timothy
Davis, David (Boothferry)	Knapman, Roger
Day, Stephen	Knight Mrs Angela (Erewash)
Deva, Nirj Joseph	Knight, Greg (Derby N)
Devlin, Tim	Knight, Dame Jill (Bir'm E'st'n)
Dicks, Terry	Knox, Sir David
Douglas-Hamilton, Lord James	Kynoch, George (Kincardine)
Dover, Den	Lait, Mrs Jacqui
Duncan, Alan	Lamont, Rt Hon Norman
Duncan-Smith, Iain	Lang, Rt Hon Ian
Dunn, Bob	Lawrence, Sir Ivan
Durant, Sir Anthony	Legg, Barry
Dykes, Hugh	Lennox-Boyd, Sir Mark
Elletson, Harold	Lester, Jim (Broxtowe)
Evans, David (Welwyn Hatfield)	Lidington, David
Evans, Jonathan (Brecon)	Lightbown, David
Evans, Nigel (Ribble Valley)	Lilley, Rt Hon Peter
Evans, Roger (Monmouth)	Lord, Michael
Evennett, David	Luff, Peter
Faber, David	Lyell, Rt Hon Sir Nicholas
Fabricant, Michael	MacKay, Andrew
Fenner, Dame Peggy	McLoughlin, Patrick
Field, Barry (Isle of Wight)	McNair-Wilson, Sir Patrick
Fishburn, Dudley	Madel, Sir David
Forsyth, Rt Hon Michael (Stirling)	Maitland, Lady Olga
Forth, Eric	Malone, Gerald
Fowler, Rt Hon Sir Norman	Mans, Keith
Fox, Sir Marcus (Shipley)	Marlow, Tony
Freeman, Rt Hon Roger	Marshall, Sir Michael (Arundel)
French, Douglas	Martin, David (Portsmouth S)
Fry, Sir Peter	Mates, Michael
Gale, Roger	Mawhinney, Rt Hon Dr Brian
Gallie, Phil	Merchant, Piers
Gardiner, Sir George	Mills, Iain
Garel-Jones, Rt Hon Tristan	Mitchell, Andrew (Gedling)
Garnier, Edward	Monro, Sir Hector
Gill, Christopher	Needham, Rt Hon Richard
Gillan, Cheryl	Nelson, Anthony
Goodson-Wickes, Dr Charles	Neubert, Sir Michael
Gorst, Sir John	Newton, Rt Hon Tony
Grant, Sir A (SW Cambs)	Nicholls, Patrick
Greenway, Harry (Ealing N)	Nicholson, Emma (Devon West)
Greenway, John (Ryedale)	Norris, Steve
Griffiths, Peter (Portsmouth, N)	Onslow, Rt Hon Sir Cranley
Grylls, Sir Michael	Oppenheim, Phillip
Hague, William	Ottaway, Richard
Hamilton, Rt Hon Sir Archibald	Page, Richard
Hampson, Dr Keith	Paice, James
Hannam, Sir John	Patrick, Sir Irvine
Hargreaves, Andrew	Pattie, Rt Hon Sir Geoffrey
Harris, David	Pawsey, James
Haselhurst, Alan	Pickles, Eric
Hawkins, Nick	Porter, Barry (Wirral S)
Heald, Oliver	Porter, David (Waveney)
Heath, Rt Hon Sir Edward	Portillo, Rt Hon Michael
Hendry, Charles	Rathbone, Tim
Hicks, Robert	Redwood, Rt Hon John
Higgins, Rt Hon Sir Terence	Renton, Rt Hon Tim
Hill, James (Southampton Test)	Richards, Rod
Horam, John	Rifkind, Rt Hon Malcolm
Hordem, Rt Hon Sir Peter	Robathan, Andrew
Howarth, Alan (Strat'rd-on-A)	Robertson, Raymond (Ab'd'n S)
Howell, Rt Hon David (G'dford)	Robinson, Mark (Somerton)
Howell, Sir Ralph (N Norfolk)	Roe, Mrs Marion (Broxbourne)
Hughes, Robert G (Harrow W)	Rowe, Andrew (Mid Kent)
Hunt, Sir John (Ravensbourne)	Rumbold, Rt Hon Dame Angela
Hunter, Andrew	Ryder, Rt Hon Richard
Jack, Michael	Sackville, Tom
Jackson, Robert (Wantage)	Sainsbury, Rt Hon Sir Timothy
Jenkin, Bernard	Scott, Rt Hon Sir Nicholas
Jessel, Toby	Shaw, David (Dover)

Shaw, Sir Giles (Pudsey)	Thurnham, Peter
Shepherd, Richard (Aldridge)	Townsend, Cyril D (Bexl'yh'th)
Shersby, Michael	Trend, Michael
Sims, Roger	Trotter, Neville
Skeet, Sir Trevor	Twinn, Dr Ian
Smith, Tim (Beaconsfield)	Vaughan, Sir Gerard
Soames, Nicholas	Viggers, Peter
Speed, Sir Keith	Walden, George
Spencer, Sir Derek	Walker, Bill (N Tayside)
Spicer, Sir James (W Dorset)	Waller, Gary
Spicer, Michael (S Worcs)	Ward, John
Spink, Dr Robert	Wardle, Charles (Bexhill)
Spring, Richard	Waterson, Nigel
Sproat, Iain	Watts, John
Squire, Robin (Hornchurch)	Wells, Bowen
Stanley, Rt Hon Sir John	Whitney, Ray
Steen, Anthony	Whittingdale, John
Stephen, Michael	Widdecombe, Ann
Stern, Michael	Wiggin, Sir Jerry
Stewart, Allan	Wilkinson, John
Streeter, Gary	Willetts, David
Sumberg, David	Wilshire, David
Sykes, John	Wolfson, Mark
Taylor, Ian (Esher)	Wood, Timothy
Taylor, John M (Solihull)	Yeo, Tim
Taylor, Sir Teddy (Southend, E)	Young, Rt Hon Sir George
Thomason, Roy
Thompson, Sir Donald (C'er V)	Tellers for the Noes:
Thompson, Patrick (Norwich N)	Mr. Sydney Chapman and
Thornton, Sir Malcolm	Dr. Liam Fox.

Question accordingly negatived.