PROTECTION OF MINORS BILL [H.L.] (Hansard, 10 December 1973)

§ BARONESS WOOTTON OF ABINGER

My Lords, I beg to move that this Bill be now read a second time. Its primary purpose is to put an end to the practice of corporal punishment of children in schools and similar institutions, or indeed anywhere, by anybody, except their parents. The Bill does not interfere in any way with the existing rights of parents to administer reasonable chastisement to their own children. And I think that in the present circumstances I ought perhaps to emphasise the word "reasonable", in view of certain tragic happenings that sometimes occur. Punishments which amount to cruelty or aggravated assaults, by parents or anyone else, are of course subject to serious charges under other Statutes and are not the concern of this particular Bill. I would commend this Bill to your Lordships on grounds of principle and expediency. I hope to show that it has been demonstrated sporadically in this country, and more widely elsewhere, that corporal punishment is both unnecessary and ineffective in the training of children. I hope also to convince your Lordships that the introduction of this Bill at the present moment is timely.

In principle, I regard the use of corporal punishment on children in school as wholly out of keeping with modern educational methods. It can hardly foster a love of learning, and if it induces respect 876 for the teacher, it is respect of might and not of right. I find it also anonialaus that the law which forbids adults to assault one another should give less, rather than more, protection to children. I find it even more anomalous that in this respect the penal system is ahead of the educational system. Corporal punishment in all types of penal institutions—and this includes borstals—was abolished after it had been demonstrated that it was ineffective in the light of the subsequent records of those who had been subjected to it. It follows, that, whereas an unruly boy of 15 or 16 may be caned in school, if he gets himself into more serious trouble and ends up in borstal, no such treatment is permitted. Strangest of all, my Lords, do I find the implication for our social values, in that apparently in this country at the present time the only people who can wield a cane with impunity, in the exercise of their professional activities, are teachers and prostitutes.

I am well aware that public opinion, both among teachers and in the community at large, is divided on this issue. I have had a fair amount of correspondence from members of the public and from teachers. I have had 176 letters, of which 155 were in favour and 21 were against this Bill. Some come from parents, a few come from schoolchildren, but the overwhelming majority come from teachers. Among those that come from teachers the proportion in favour of this Bill is 20 to one. I am very well aware that this is not a representative sample, but I have quoted these figures because, as one who has often taken up causes before they were popular, I find that generally the community is more disposed to take up its pen to protest than to commend. Such a favourable balance is, at least in my experience, entirely unique.

Those who oppose the Bill mostly do so because they take the view that the use of physical force is the only argument that a certain proportion of young people can be made to understand. I find this thesis not supported among my correspondents by very much concrete evidence, though it is often well flavoured with personal abuse. The validity of the thesis is open to challenge inasmuch as indiscipline, and occasional violence, persist in schools where corporal punishment is used habitually. A very common 877 experience is that the same children are over and over again punished by cane.

Those who support the Bill mostly do so on grounds of moral principle and educational method. They regard the finding of the Plowden Committee in relation to primary schools as applicable to all ages: I mean the finding that the right relationship between child and teacher cannot be build up in an atmosphere in which the infliction of physical pain is regarded as a normal sanction. Teachers also write to me about the frequency, in some schools, of physical punishment for trivial offences: small children being caned for coming to school with dirty knees, girls for giggling, or boys for snowballing or not wearing the school cap. Others quote examples of excessive severity: I have some recent eye-witness records of these, but I prefer not to quote from them. I do not think this Bill needs to be supported by horror stories or by exceptional occurrences; and I am quite certain that such incidents are exceptional. Nevertheless, I would say that, so long as any kind of physical punishment is permitted in schools, somebody, some time, will carry this practice to excess. Also disturbing are the reports of not infrequent unrecorded, and unsanctioned, punishments by way of slap-pings and beatings, and sometimes quite serious assaults. Also, it is disturbing to learn of the survival of the practice in some schools of caning children who have truanted, improbable though it seems that this will have the effect of inducing the truant to return to school.

My Lords, I turn now from the comments that I have received from various sources to a rather broader view of the situation as it is to-day, in so far as one can ascertain the facts. First as to the law, this can hardly be said to be a model of clarity. From the 1860s onwards, sporadic judicial decisions have formulated the doctrine that when the parent sends his child to school he, by implication, transfer his parental rights so that the teacher is for the time being in loco parentis. This doctrine, however, dates from before the introduction of compulsory education to the time when a parent, if he disliked what went on in a school, could withdraw his child. In present circumstances, where schooling is compulsory and the parent often has but limited freedom to send his child to the 878 school of his choice, it might be more realistic to say that he is deprived of his rights rather than that he voluntarily transfers them. The parent to-day who does not wish to delegate his right to punish may find that he can avoid doing so only by withdrawing the child from school and thus breaking the compulsory attendance law and depriving his child of education altogether.

Some authorities hold that in the case of a conflict between the parent and school, the parent's wishes must prevail. Yet the teacher enjoys further statutory protection under Section 1(7) of the Children and Young Persons Act 1933, which expressly provides that nothing in that Act shall affect the teacher's right to administer punishment (incidentally of an unspecified nature) to any child in his care. This Bill would repeal that provision and would also override any assumed or explicit transfer of the parent's right to the teacher or to anybody else.

To turn from law to practice, I find that a surprising number of well-informed people regard the Bill as unnecessary because they believe that corporal punishment has already been abolished, at any rate in the State schools. Unfortunately, statistics from the punishment books are not published: I do not think they are even nationally recorded. If they were, they would undoubtedly be incomplete, but I have equally no doubt that they would be sufficient to dispel any illusion of that kind. So far as I know, only one local education authority has imposed a total ban on corporal punishment which is effective at the present time, and that is Great Yarmouth. That ban took effect only last October, so that to date there is not much experience of its working. Recently the Oxford City Education Committee proposed a similar total ban, to take effect from the beginning of next year. But as from April, 1974, the Oxford City Council will be swallowed up in the larger county authority and it is likely that the matter will have to be reviewed at that stage. Some months ago, Liverpool took courage and proposed a total ban, but second thoughts presently prevailed —largely, I think, because the council were already meeting opposition to their policy on comprehensive education, and they decided that it might be more prudent to proceed gradually. Finally, as many of your Lordships 879 will know, the Inner London Education Authority have prohibited corporal punishment altogether, but only in their primary schools, as from the beginning of this current year. After only one term of this experience, the Inner London Teachers' Association, through their Education Committee, passed a resolution calling for the extension of this to schools of all ages. Meanwhile, three or four other smaller authorities have also banned corporal punishment in their primary schools.

Apart from these exceptions, education authorities generally either make precise rules or leave the matter to the discretion of individual staffs. The rules make very macabre reading, laying down the circumstances in which and by whom corporal punishment may be administered, and the precise degree of permissible severity. The policy of leaving it to the staffs is often welcomed by teachers, on the ground that this is a matter within their professional competence and they are specially qualified, as professionals, to determine when it is and when it is not proper to employ the cane. I find this a very odd conception of professionalism, and I should very much like to know what instruction on this matter is given to prospective teachers in the course of their training. I should have thought that the question of when it is legitimate to hit another person was essentially a moral issue and one that could be described as professional only in the sense that some professional bodies do lay down ethical codes to which they require all their members to conform. To allow that a teacher is professionally qualified to decide when a cane should be used seems to me to be analogous to substituting for the rule that doctors must not indulge in sexual intercourse with their patients a provision that their professional training would allow them to determine in what circumstances it would be right and proper to do so.

However, whether rules are prescribed or not, there is a great diversity of practice in this country. At one end of the scale stands the City of Edinburgh, where I am officially informed that in the spring term of this year 9,326 instances of corporal punishment occurred in regard to boys, and 1,663 instances in regard to girls, making a total of just short of 11,000 cases of corporal punishment in the 880 Corporations's 20-odd secondary and 90-odd primary schools in a single term. It is fair to add that, perhaps on account of these facts having come to light. I understand that some phasing-out of corporal punishment is now on the Corporation's agenda. At the other end of the scale, up and down the country there are schools in which corporal punishment has been totally abolished. I have records of a number of these. Typically, the initiative comes from a headmaster, very often newly appointed, who manages to persuade a sometimes reluctant staff. Typically also, I have subsequent reports of greatly improved relationships between staff and students after abolition has been in force for some time. In one comprehensive school in a somewhat depressed area in the North of the country this was referred to as "an inestimable gain", and from areas where there are tough children and deprived-area environments one gets the same story.

I should like to refer to one London comprehensive which proceeded rather differently. It was agreed by the staff that they would not abolish the cane immediately but that every time an occasion arose when it might be used they would consider what alternative could be substituted. The result was that alternatives were found and caning gradually disappeared. After a term had gone by with no cases at all, the practice of corporal punishment was totally abandoned. This confirms the view that I have received from two other headmasters, one of whom says that: …until such time as the cane disappears we shall go on 'kidding' ourselves that it is effective"; and the other of whom asks for abolition by law of corporal punishment because it would accelerate the rethinking of educational methods. Independent schools, of course, are a law unto themselves, or have been until now. Recently, the author of The Times Diary conducted a survey of seven named major public schools. He found—and I quote his own words—that parents no longer spend fortunes sending their sons to schools where, as recently as the 'sixties they were savagely beaten". While all these establishments have reduced what he elegantly calls the practice of "beating their privileged bottoms", in only one case has the practice been abandoned altogether—yet in no case was 881 it reported that sparing the "privileged bottom" had spoiled the discipline.

I will not weary your Lordships with more individual examples. I will only say that, alike in independent schools and in the State system, I find the same story over and over again. Where corporal punishment has been abolished or greatly reduced, the improvement in relations between the child and the teacher is constantly emphasised. This in turn, in the words of one head teacher, strengthens the child's ability to learn, and consequently reduces violence. Again and again it is demonstrated that there are no enemies of indiscipline comparable with mutual understanding and the awakening of pupil interest. The unruly child is the frustrated and bored child.

I said just now that the Bill was timely. Opponents will argue, on the contrary, that the moment when a minority of young people take too freely to violence is quite the wrong moment at which to abolish corporal punishment. This implies of course, what I have already disputed, that the method is effective. But I would rather turn the argument upside down. I would submit that the greater the prevalence of undisciplined behaviour, the less is it opportune to give implicit official endorsement to the doctrine that in the last resort the way to enforce your will is by physical assault. As one head teacher has put it, children often learn from us a lesson we are not intending to teach. But the Bill is timely for other reasons. Britain is rapidly getting to be out on a limb in this matter. In Europe outside the E.E.C. corporal punishment is forbidden in the schools of Iceland, Norway, Finland and Sweden, as it is also in a great many non-European countries and I am not sure that the list is complete. Of our partners within the Community, France, Belgium, Luxembourg, Denmark and Italy have all prohibited it. Italy have denied they have ever abolished it because they say it never existed. I am officially told that in Holland it is generally unknown and that any teacher who resorts to it is liable to be, and sometimes is, reprimanded. In Germany it is allowed only in primary schools, but there is an element of provincial discretion and I 882 understand that in some areas further steps have been taken towards abolition. Within the Community only in Ireland and the United Kingdom is corporal punishment both legal and frequently used. Now that movements towards uniformity are afoot in so many matters of the European Community, such as, for example, the qualifications required for various professions or the control of juggernauts, may it not be only a question of time before we are required to abandon a practice which has been discarded by so many of our partners—indeed the great majority of them—as archaic, if not barbaric? Would it not be more dignified to fall into line of our own volition without waiting to he told?

I turn now to summarise shortly the text of the Bill. It applies throughout to England and Wales, Scotland and Northern Ireland. Clause 1 creates a new offence of wilful assault on a minor by any person (including any teacher) who has the custody, care or charge of him, while expressly safeguarding the parents or legal guardians and their spouses against being found guilty of an offence under the Bill, parental liability at common law and under other enactments being, of course, unaffected. This clause also declares that "reasonable chastisement" shall not be an acceptable defence to a prosecution for the offence created by the Bill. Clause 1 further prescribes the penalties that may be imposed for the new offence. Here I must apologise to your Lordships for an oversight in the printing of the Bill, as a result of which the penalties appear to be fixed fines or terms of imprisonment. Actually, as is usual in our Statutes, they should be maxima, and should in every case be preceded by the words "not exceeding". If your Lordships give this Bill a Second Reading, undertake to move an Amendment in Committee to put this right.

The penalties proposed for summary conviction are well below those that may be imposed by magistrates for many other offences. In so fixing them I have had in mind that very serious assaults by teachers or anybody else are dealt with under existing legislation, and that this Bill applies only to the kinds of assault which may at present be inflicted upon the children by their teachers with impunity. The 883 maximum sentence of imprisonment on summary conviction of four months has been deliberately inserted so that an accused person may have the opportunity of trial in the Crown Court by jury.

Clause 2 gives protection against double jeopardy by providing that no one can be charged both with the new offence and with an offence of aggravated assault under previous legislation. It does, however, allow a person charged with such an aggravated assault to be alternatively found guilty of the less serious offence created by the Bill, just as a person charged with dangerous driving may be convicted of the lesser offence of driving without due care. Clause 3 abolishes the defence of "reasonable chastisement" (except for parents and legal guardians and their spouses) in civil actions or prosecutions for aggravated assault.

Clause 4 repeals the section of the Children and Young Persons Act 1933, to which I have already referred, which expressly allows any teacher to administer unspecified punishment to a child. This clause also prohibits the use of corporal punishment in any institution in which children may reside by order of a court or local authority, including those cases in which a local authority has by resolution assumed parental rights under the Children Act 1948. Clause 5 is interpretive but contains also a provision binding the Crown. The remaining clauses provide that the Bill may, by Order in Council, be extended to the Isle of Man or the Channel Islands, and that it should come into force on January 1, 1975.

Britain prides itself upon a reputation for sportsmanship, and I have always understood that the first rule of sportsmanship is that a person may not hit someone who is not of his own size, and least of all hit someone who cannot hit back. Is it not therefore strange that the law which forbids us to strike our equals should make one exception—those who by definition, are not, at any rate in status, our own size and who have no right or opportunity of retaliation? Is it really credible that British children are so much more unruly than French, Italian, Norwegian, Danish, Dutch, Belgian or Swedish children, or literally millions of others throughout the world, that our children, and our children alone, can only be 884 educated with the assistance of punitive assaults? I myself have no doubt at all that the day will come when some of the scenes enacted in our schools today will be looked upon as we now look upon tales from Dickens. If in fact that is what those scenes are, why do we not recognise the reality immediately and act accordingly? I beg to move.