§ 3.41 p.m.
§ Report received.
Baroness David moved Amendment No. 1:
Before Clause 1, insert the following new clause:
§ ("Abolition of corporal punishment.
§ .—(1) In any civil or criminal proceedings where it is proved that the defendant, or any person for whose acts the defendant is responsible in law, assaulted or struck a minor, it shall not be a defence for the defendant that he, or as the case may be, that other person was a teacher in a school, or had the custody, care or charge of such minor otherwise than as a parent or guardian, and that the assault or striking was inflicted as reasonable corporal punishment; and it shall not be a defence for the defendant that he, or as the case may be, that other person was acting on behalf of or in the place of such teacher in inflicting reasonable corporal punishment.
§ (2) The powers conferred on the Secretary of State by or under any enactment to regulate the conduct or discipline of any establishment or institution, in which a minor may be placed or required to attend or stay by order of court or local authority, or on a local authority by section 3, subsection (1) of the Child Care Act 1980, shall be deemed not to include powers to authorise the use of corporal punishment in such establishment or institution; and any regulation made or purported to be made in virue of any such power which authorises the use of any form of corporal punishment, is to that extent hereby repealed.
§ (3) References in this Act to any other enactment shall, except in so far as the context otherwise requires, be construed as references to that enactment as amended or applied by or under any subsequent enactment, including this Act.
(4) In this Act the following expressions have the meanings respectively assigned to them, that is to say—
guardian" in respect to any minor, means a person appointed according to law to be his guardian by deed or will, or by order of a court of competent jurisdiction, but does not include any employee of any organisation, charitable body or local authority who has the custody, care or charge of such minor by virtue of his employment, and normally exercises such custody, care of charge otherwise than at his private residence;
minor" means any person who has not attained the age of 18 years;
parent" includes the natural parent of an illegitimate child, a foster parent and any person who has lawfully adopted a child;
school" as respects England and Wales has the meaning assigned to it by section 114, subsection (1) of the Education Act 1944, and as respects Scotland, has the meaning assigned to it by section 135, subsection (1) of the Education (Scotland) Act 1980.
§ (5) In this Act reference to the defendant shall, in Scotland, be construed as reference to the defender.")
§ The noble Baroness said: My Lords, with this amendment we are aiming to establish the principle that corporal punishment in our schools and other institutions should be abolished. We are anxious to assist the Government to produce a workable piece of legislation. This means, in our view, that certain unworkable provisions in the Bill will have to be amended. This is a job that the House of Lords as a revising Chamber should do and which we are well qualified to do. We should not allow a bad piece of legislation to reach the statute book unamended. The interest in this Bill on all sides of the House was shown at Committee stage and is reflected in the names supporting this amendment, which has all-party support.
§ The fact is that the Bill has been condemned by the whole educational world as unworkable. It has upset 1315 both that world and every association or group concerned with child care. I believe that we should be doing the Government a service by carrying this amendment, as we should be putting this country in line with the European covention and the rulings of the European Court—those already made and those likely to come in the near future, which are not covered by the Bill. I would hope that the Secretary of State and his Ministers could concede that the proposals that they have put forward to satisfy the decision of the court are unworkable, inadequate and totally unacceptable to sensible and civilised opinion in this country. I believe that they would be admired if they had the courage to do that.
I do not think that I need again to go into the case for the abolition of corporal punishment which I put very fully at Committee stage. I should like to emphasise just two points. The first is that as a deterrent it does not work. The same children get beaten over and over again and frequently for the same offence. The second is that it is degrading for both the giver and the receiver and that a school which relies on that form of punishment will not have the sort of atmosphere conducive to good education and good relationships between teacher and taught. I would remind your Lordships of what the noble Lord, Lord James of Rusholme, said back in 1973 when speaking in the debate on the Protection of Minors Bill of my noble friend Lady Wootton. He said that,
the harm of corporal punishment goes a good deal further than its effect on the frightened child. I am referring to the more subtle damage to the atmosphere of an educative community and to the proper development of the individuals in it when authority has to rest on the infliction of physical pain".—[Official Report, 10/12/73; col. 947].
If that was true 12 years ago, it is even more true today. Since some people who were not here at Committee stage may not be aware of it, I should say that all the teacher organisations are against the Bill, even the three which have not yet an explicitly abolitionist policy. All would prefer abolition to this Bill. The very important and influential Society of Education Officers argues against the Bill in strong terms. It takes,
the view that any form of exemption scheme, though one might be devised and made to work, would be unsatisfactory, unfair and divisive. If one were introduced, it could, by creating a sense of injustice, be very damaging to the ethos of a school and could eventually undermine a school's discipline".
That is not, I imagine, what the Secretary of State wants.
The society goes on:
It would be preferable for the Government to grasp the nettle immediately and issue a policy statement announcing the abolition of corporal punishment within a specified timescale".
§ We would agree that a specified timescale is necessary in order to give those schools that still rely on corporal punishment as a method of discipline time to phase it out. For this reason we have put down Amendment No. 61 to Clause 8 which would enable the Secretary of State to appoint the day on which the Act would come into force. A year to 18 months should be ample time.
§ The Church of England General Synod Board of Education issued a circular in 1982 calling on its schools to phase out corporal punishment and 1316 ultimately to abolish the practice. The Free Church Federal Council has come out against it. And in 1983, the Catholic Education Council called on its schools to phase out beating.
I should like to say a little about the views of the child welfare associations. A coalition of them are for abolition. I quote from a letter dated 13th June which I have received from Mr. Raymond Clarke, the clerk of the National Council of Voluntary Care Organisations:
We were very sorry to learn that the House of Lords narrowly failed to achieve the abolition of corporal punishment in schools during the course of last week's debate. This Council is composed of almost 60 organisations including the large national child care charities, the social work agencies of the major Churches and a number of specialist or regional voluntary organisations. Our membership expressed its strong reservation about the proposals originally contained in the Bill. We are therefore very grateful for the advocacy which you and your colleagues offered. We greatly hope that you will feel able to apply further pressure during the report stage of the Bill. We hope that, at that stage, many of the Peers who were Not Content on 4th June will be willing to listen to the voices of reason and progress".
I hope so too, my Lords.
The policy and practice review group of the National Childrens Bureau was set up early in 1984 to examine and review policy and practice in child health, education and the personal social services. It is a widely based group of senior policy makers, practitioners, managers and academics. Its aim is to advocate children's interests. It is not a pressure group, but aims to marshal evidence and give a considered view. As a member of the all-party Parliamentary Group for Children I was sent a copy of its paper on corporal punishment in schools and child care institutions. I quote from it:
Following our deliberations we call on the Government to accept the overwhelming weight of professional advice against the use of corporal punishment in schools and child care institutions and to end Britain's isolation as the only European country to permit this discredited practice".
Again, it says:
We would urge the Government to accept that the present position in which whether or not you can be beaten depends on where you live is unjust and that it also demonstrates conclusively that this sanction is in no sense necessary".
§ It goes on to make the point that the 23 LEAs that have abolished corporal punishment include most of the large conurbations where it is felt that schools have some of the more serious problems, particularly in relation to discipline. Those Members of your Lordships' House who attend meetings of the all-party group of the noble Baroness, Lady Faithfull, will I am sure accept the very responsible and professional opinions of that group.
§ About the Bill itself, many of us, including eminent lawyers, such as the noble and learned Lords, Lord Denning and Lord Wilson of Langside, had difficulty in understanding a number of its clauses. I mention particularly Clause 1, subsections (3) and (4). The Minister was good enough to send me a copy of a letter that she wrote to the noble and learned Lord, Lord Denning, on those subsections, attempting to explain them. It ran to four pages. I would contend that any legislation that needs that amount of explanation is bad legislation. We complained of Clause 2 with its multiple negatives. I am aware that a Government amendment will be moved later which will make the 1317 clause a little simpler. But I ask your Lordships to think of the complications and paperwork that Clause 3, which runs to seven subsections and which deals with the registration of parental views, will entail.
§ I refer the House to the lengthy description of the process of communication between parents and schools described by the noble Baroness in answer to my opting-in amendment, Amendment No. 30, at Committee stage. The Minister took a whole column of Hansard in justifying and explaining the register and the letters that would have to pass to and fro and the work of the school secretary, or whoever gets involved in it. An unwanted and additional burden is being imposed on very hard-pressed LEAs.
§ There is still uncertainty whether the local authorities or the governing body have the overriding power as to whether or not corporal punishment can be used. Why go to all this length to produce a Bill which is inadequate for the purpose of responding to the judgment, and likely judgments, of the European Court? It is a Bill which is complicated, difficult to work and to understand and which arouses the hostility and scorn—I do not think that those words are too strong—of the education world and all those interested and involved in child care.
§ The Bill is unsatisfactory in content and in expression. It is a bad Bill. What we offer as an alternative is simple and short. It would make us conform to present and expected judgments of the European Court; it is in line with progressive and informed opinion in this country. This amendment has all-party support. There was certainly all-party dissatisfaction with the Bill at both the Second Reading and Committee stages. Of course, the amendment may well have technical faults, and there may have to be appeals or the removal of certain sections or subsections of earlier Acts, but that can all be dealt with at the next stage.
§ I am asking the House to support the principle that corporal punishment should be abolished in the United Kingdom and that your Lordships do not become a party to letting a very foolish, ridiculous and unworkable Bill go on the statute book in its present form this summer. I beg to move.
§ Lord Beloff
My Lords, I have listened with growing amazement to the self-styled voice of reason and progress, and I find it impossible to reconcile what has been argued with the fact (which was admitted by the noble Baroness) that of the teachers' organisations, three have not gone on record as being in favour of abolition. Yet abolition is to be the keynote of a Bill which was designed for a rather different purpose.
I remind your Lordships that our proceedings this afternoon will be interrupted by a Statement on the highly regrettable pay dispute involving the teaching profession, and I would point out that one of the reasons which has been advanced by the teachers' organisations for extra remuneration is the greater degree of physical risk and strain which some of them now face in some schools. It seems that if those teachers themselves believe that the existence, as a final sanction, of corporal punishment is to some extent a protection for them, it is not for your Lordships to remove that protection. After all, we are 1318 dealing with a Bill—and I would not defend the Bill as a masterpiece of legislation; it is not Magna Carta—which arises from a judgment of the European Court, which extended the interpretation of the convention beyond what many people would think were reasonable limits.
The clause on which they relied concerned the necessity that educational systems should take into account the philosophical and religious concerns of parents. It is very difficult not to believe that, when that convention was drawn up, its authors had in mind, not corporal punishment as a final sanction in English schools, but the fact that many countries in Europe under Nazi-Fascist rule had seen the rights of parents in serious respects with regard to religion and morale violated.
Now, all these years later, in response, if one likes, to humanitarian, libertarian or sentimental views, this convention has been stretched in this way. It seems to me that it is the business of the British Government to look first at the needs of the teachers and the schools and then to see what minimum action is necessary in order that Britain should not be in breach of her international agreements, however absurd the judgment of the European Court might appear to be.
For that reason I hope that your Lordships will realise that on Third Reading the noble Baroness is trying to substitute one Bill for another. Indeed, she has been very frank about this.
§ Lord Beloff
My Lords, I apologise. The Bill as reported to us—and I accept the correction—was a Bill to enable parents to contract their children out of the punishment system in a particular school. This amendment intends—and no doubt subsequent amendments will be consequential—to change the Bill into a measure for the abolition of corporal punishment. However much they may dislike the Bill, I invite noble Lords to say that they prefer it to the alternative now proposed.
§ The Earl of Onslow
My Lords "absurd" is the word used by my noble friend Lord Beloff when talking about the judgment of the European Court. I believe that it is possible to suggest that the judgment was absurd. However, I would suggest to my noble friend the Minister—and I say this with the sincerest admiration because I admire her very much indeed—that the Government's proposal as to whether mummy lets you pay your parking fine, or whether mummy lets you be sent to prison because you are Reginald Kray, or whether mummy has a choice in what your punishment shall be when someone else does not have that choice, is a cause for major injustice. I do not honestly care whether or not capital punishment is carried out. I have no particularly strong views on it. However, I hold very strong views that justice should be for everybody and not for one section or the other.
This Government are an intelligent Government. My noble friend Lady Cox is really a major adornment of the Government, and I say that sincerely and from the bottom of my heart. I know that she does not believe in the Bill for a single moment because she is 1319 far too intelligent. It is a silly thing to do. Therefore, let us agree to accept something which I do not particuarly want—namely, to abolish corporal punishment—because I do not think it is necessary. Most of the time I am longing to thrash my children, but that may be an unhealthy reaction. I think we have all wanted to thrash our children, and I quite understand the schoolteachers who want to thrash the children in their class. However, to be able to thrash Johnny but not Fred would be a ridiculous and unfair system; and, against my will, I shall be forced to vote for the noble Baroness, Lady David.
§ 4 p.m.
§ Lord Boothby
My Lords, very briefly, I want to support this amendment. The date of 4th August 1914 is a day that will always be imprinted on my mind. On that date I was beaten for the first time as a schoolboy, and on that date the First World War broke out! I shall never forget it. In those days the houses at Eton—for that was my school, which was then regarded as a very posh school—were governed by a select group of five or six senior boys called the library, of whom two, the captain of games and the captain of the house (and my noble friend Lord Home was both) were allowed to beat other boys with a cane. It was called tanning. That happened every Saturday night in my house, and the consent of the whole library had to be obtained. When I was put into the library by the housemaster I used my vote to veto all tanning, and that lasted for about four weeks. There were no beatings in the house during that period. I took the view that the house was very much happier at the end of that time.
My housemaster, however, took a different view. He said that all discipline had been undermined, and replaced by anarchy. He therefore decided to make a new rule, which was that my vote on this question should be disregarded. Therefore, every Saturday night when tanning was to take place I was reduced to walking out in protest, and tanning was restored. But even at that time I realised that more damage was being done to the beaters and the watchers than to the beaten, because very soon you could see that they began to enjoy it.
Whichever way we look at it, and however much the noble Lord who has just spoken may maintain that beating is an essential part of the Christian religion, I nevertheless say that corporal punishment, however administered in nurseries and schools, is to legalise physical assault upon unprotected children. As such it condones violence, and even encourages it. This is extremely dangerous.
Violence should be a cause of great anxiety to all of us at the present time. I have never seen anybody turn on a television screen, or turned one on myself, at any hour of the day and for any programme, for the last five years, without my saying, "I bet ten to one that this is violent". If anybody had ever taken the bets I would be a rich man today. Violence is the greatest danger we have to face at the present time, and it is growing.
The main reason why I have risen to my feet in support of this amendment, which I hope will be passed, is to put on record in the Official Report a last 1320 sentence or two of one of the great men of our time, the late Sigmund Freud, who was apt to see through to the roots of a problem. In a slim book called Civilization and its Discontents published in 1929, nearly 60 years ago and long before the atomic bomb had been invented, he concluded by saying that he had discovered that there were two instincts in all of us, the instinct of life and the instinct of death; the instinct of aggression and the instinct of love which he called Eros; and they are in constant turmoil and conflict with one another. The words I want to put on record in the Official Report are these:My courage fails me, therefore, at the thought of rising up as a prophet before my fellow-men, and I bow to their reproach that I have no consolation to offer them; for at bottom this is what they all demand—the frenzied revolutionary as passionately as the most pious believer.The fateful question of the human species seems to me to be whether and to what extent the cultural process developed in it will succeed in mastering the derangements of communal life caused by the human instinct of aggression and self-destruction. In this connection, perhaps the phase through which we are at this moment passing deserves special interest. Men have brought their powers of subduing the forces of nature"—and this was written nearly 60 years ago—to such a pitch that by using them they could now very easily exterminate one another to the last man. They know this—"—and here is a characteristic sentence—hence arises a great part of their current unrest, their dejection, their mood of apprehension. And now it may be expected that the other of the two 'heavenly forces', eternal Eros, will put forth his strength so as to maintain himself alongside of his equally immortal adversary".We can only hope so.
My Lords, I think these fateful words should be in the Official Report. They apply today perhaps to a greater extent than they have ever applied in the whole of human history. Violence, I repeat, is the greatest menace we have to face. We should make a better start putting an end to violence in nurseries and schoolrooms than we shall in the conference rooms of Geneva. I believe, therefore, that underlying this Bill and this amendment, which I quite agree lends itself to considerable jokes from time to time, is a problem which adds up to the greatest menace of our time.
§ Lord Mulley
My Lords, I should like briefly to support the amendment. Although I personally agree with the noble Lord, Lord Boothby, that matter is not the question before the House. The question before the House is whether we should comply with, and in what form, the judgment of the European Court. The logic of Lord Beloff's arguments has been rejected by the Government, because clearly he thinks that either the court should not be there or that we should totally disregard its decision. If we are going to comply with the decision the question is, how? In my submission—and I agree with the noble Earl, Lord Onslow—we should do it in a form which is both just and workable.
This bureaucratic nonsense is adding to the scarcity of resources in education. The chance of whether a child is, or is not, subject to corporal punishment depends on the parents. In some cases, with ethnic minorities for example, the parents may not have got round to writing the letters. I do not see how anyone can run a school, or a class, when there may occur cases such as I have heard of, with forward juveniles 1321 who have told policemen, "You can't touch me because I am under age." We shall have the kind of feeling: "I can do this because I can't be beaten, because my father sent you a letter." This would create a quite impossible situation, in my view. The noble Earl, Lord Onslow, manages his family with equitable justice or otherwise to each of them. He does not have some who can be subject to his displeasure and others who are not.
It would be quite impossible to administer this as a piece of legislation or from the point of view of the actual practitioners in the school. Since I believe that we should comply with the decisions of the European Court—as indeed do the Government—I support this amendment. It would also not be a bad thing if we became not the only country in Europe which persisted in corporal punishment.
§ Lord Henderson of Brompton
My Lords, I wonder whether, as I have my name down to this amendment, I may be allowed to speak at this stage? Hitherto on this Bill I have not spoken, partly because more or less everything that could be said has been said, but I have silently indicated my opposition by consistently voting for the amendments to improve this Bill in Committee, amendments which, alas! have been resisted by Her Majesty's Government, supported, I feel, rather sheepishly by a trickle of Government supporters.
I now speak on this amendment if only to show that it has support from all round the House. The noble Baroness, Lady Elliot, has her name down to this amendment, and a formidable lady she is. She is strongly in favour of this amendment, as well as of abolition. The noble Earl spoke from the Conservative Benches, and we have heard the noble Lords, Lord Mulley and Lord Boothby, so I think that it is important that this should not be treated as a Government Bill. It should be treated more or less like a Private Member's Bill, in which everyone can exercise their conscience free from the constraint of the Party Whips, which have been so predominant recently. I should have thought that that must be a relief to the members of the Conservative Party.
I should like to address myself to the remarks of the noble Lord, Lord Beloff. He does not seem to understand that this is a alternative way of fulfilling what the Government are trying to do. All he has to do is to look at the Explanatory Memorandum, where it says:This Bill [is] to fulfil obligations arising under Article 2 of the First Protocol to the European Convention on Human Rights.This is a better way of doing so. That is all there is to it. We are really helping the Government out of a hole. It is better than the text of the Bill brought before the House, and that is the principal justification of this amendment. Let me say to the noble Lord, Lord Beloff, or anybody else who objects to this amendment, that it is also squarely within the Long Title of the Bill:An Act to make provision in respect of the corporal punishment of pupils.Of course that is what this amendment does. It makes provision in respect of corporal punishment in schools. 1322 I hope we shall not have too much by way of quibble. This amendment is not just an alternative way of fulfilling the obligations to respect our treaty rights and legal obligations. It is a better way, and one which is unlikely to be challenged in the future: while I fear that the present Bill is open to incessant challenge and that we shall be brought repeatedly before the European Court in the humiliating way that we have suffered all these years. Let us put a stop to that, for I do not want to see it happen again.
I strongly agree with the noble Baroness, Lady David, that this is a proper job for this House. We are a revising Chamber and we have a clear duty to see that this country's legal and treaty obligations are fulfilled. The Bill before us does not do so. We also have to ensure—and I am sure this is a common factor between us all—that we make work that which, in the view of those who have to work it, is seen to be unworkable; I refer to all the teacher organisations, both the relevant local authority organisations, the education administrators and the child welfare organisations. They may or may not be in favour of the abolition of corporal punishment. The noble Lord, Lord Beloff, has tried to say that some of them are not. But that is irrelevant. They are all agreed that the Bill, as brought before us, is unworkable. If there is a consensus of the professional opinion, how can it not be respected? I ask the Government to respect it and to agree to this alternative way of fulfilling the duties of this country to respect the European Court. We must also have regard to those professional organisations, their anxieties, their disquiet and indeed their outright opposition. That is a main reason for this amendment to be accepted by all Peers in all quarters of the House, irrespective of party.
I must also revert to this question of fairness. The Bill is surely manifestly unfair as between one child and another. This has been so amply demonstrated on Second Reading and in Committee that I do not need to elaborate on it, except to say that I find it hard to believe that anyone could have entertained the idea of opting out, or even of opting in—which is better perhaps, but only marginally so—sufficiently seriously to have put it into statutory language and to have brought it before Parliament. It passes imagination that someone so obviously intelligent and sensitive as the noble Baroness should have to say as she did in Committee—this is only an example of the kind of thing she had to say because the Bill is drafted in this way:Some mixed schools exempt girls from corporal punishment and most schools will exempt delicate pupils"—[Official Report, 4/6/85; col. 626.]What a shameful thing to have to say on the Floor of the House in defence of a public Bill! The noble Lord, Lord Boyd-Carpenter, makes dissenting noises. All schools, I would hope, would exempt delicate pupils from corporal punishment. Would the noble Lord, Lord Boyd-Carpenter, like delicate pupils to be subject to corporal punishment?
§ Lord Boyd-Carpenter
My Lords, as the noble lord goes out of his way to challenge me, I am very happy indeed to respond.
§ Lord Henderson of Brompton
I merely said that the noble Lord was making dissenting noises, my Lords.
§ Lord Boyd-Carpenter
My Lords, does it not occur to the noble Lord that the words of the noble Baroness could very properly exclude schools that did not have delicate or physically weak children, and there are a good many?
§ Lord Henderson of Brompton
My Lords, I leave the House to judge the worth of the noble Lord's intervention. But I find it upsetting that the noble Baroness should have to say things like that and that the House should have to listen to such distasteful words, thoughts and expressions.
I would briefly say that the exemption of the independent schools is only yet one more cause for further application to the European Court. Of course if this amendment is unsuccessful (and I very much hope that it is successful) that must simply be rectified, because if it is not this country will again be dragged through the shame of further causes in the European Court just because parents in independent schools will undoubtedly take the matter where it has been before.
I admit that the schoolboy concept of fairness is pretty crude. Recently I read these words of Sydney Smith, written in 1809:The morality of boys is generally very imperfect; their notions of honour extremely mistaken; and their objects of ambition frequently very absurd".But there is this fundamental notion of fairness which we all recognise from our schooldays, and that concept of fairness is carried on into adult life and is one that we all share. Indeed, the schoolboy concept of what is fair now has statutory recognition and is incorporated into such concepts as fair trading. Surely we cannot impose on boys and girls at school something which we know they will consider to be unfair.
What I have to say finally may appeal to noble Lords on the Conservative Benches because they are words of the great Dr. Samuel Johnson, who was always a very good Tory and was concerned to see that the Whig Dogs never had the best of it. But just in case noble Lords on the Conservative Benches feel that they may be, to use the word used by the noble Lord, Lord Beloff, "cissies", let them bear in mind the words of the great Dr. Johnson, who said:The hardy method of treating children does no good".I commend those words to the House.
§ Baroness Wootton of Abinger
My Lords, I think we should remind ourselves at this stage of the seriousness of the matter we are discussing. We are not discussing trifling things that happen and are not taken much notice of, and that some schools have and some schools do not have. We are thinking of what would be a serious criminal assault if similar and equal force was applied to an attack made upon a grown adult of one's own size.
I have always believed that the principle of justice was that one never attacked a man who was not of one's own size. It is not so long ago that we abolished corporal punishment for adults who were convicted of serious criminal offences. I believe that there has been some reason to suppose that this has had a beneficial effect upon the necessarily large number of criminal offences that were formerly dealt with in that way.
1324 I suppose that we might retain corporal punishment in schools if we admitted that the aim of education is to teach children that force always wins in the end. Perhaps I might refer once again to my friends, the Russian children, who, when our English party arrived, greeted us all with a warm handshake and the moving words, "So you come from Britain, where they beat the children?" This has remained as a stain and a mark of guilt on my mind ever since. Wherever I go I have to say to myself, "I come from Britain where they beat the children"—and I carry this sort of mark of the devil about with me. And so do all of you who are equally to blame!
I think that we have heard quite enough on this topic, but I want to emphasise that it is a very serious matter. It is true that you would have committed a serious crime if you had applied unequal force in a dispute with a man of your own size about a matter affecting you alone.
§ Lord Denning
My Lords, I support this amendment, and may I also go on to tell your Lordships of the decisions of the European Court which have given rise to it. It is said that the Government, and they, I think most reluctantly, feel, they are obliged to adhere to the decisions of that court. Let me tell your Lordships what those decisions were. The particular case which gave rise to this dialogue took place in 1961. It involved a boy called Jeffrey Cosans who was aged 15½. The boys from his school continually took a short cut across the cemetery and disturbed the peace and quiet which should be there. The school made a rule that they were not to take that short cut. Cosans and others disobeyed. They were reported to the headmaster for a caning; but when they got to the spot they objected to it, so that he did not cane them. Instead, Cosans was suspended for a little time from going to school.
That is the case which occurred in 1961. By the time we get to 1978, that comes before the European Court. Your Lordships ought to know that that European Court has its protocols and its treaty. May I say what those come to? Your Lordships ought to know that the one case they referred to has nothing in it about corporal punishment. It is concerned only with education. Let me read the whole article which the Government feel that they must implement:No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching as is in conformity with their own religious and philosophical convictions".There is nothing about corporal punishment there.
Then, in 1978, they said that a parent could object to corporal punishment on the ground of his philosophical convictions. What nonsense! I am glad to say that the English judge, Sir Vincent Evans, dissented from those other six foreigners. He did not agree with that interpretation, that there were philosophical convictions. And how right he was!
My Lords, they were not only wrong on that, and this is only in a protocol. When this country, through its treaty-making powers, signed the protocol it made the express reservation that it was accepted in the United Kingdom only so far as it was compatible with the progression of efficient instruction and training. So 1325 there it is. That is our own reservation. How far is it compatible? Our English judge said that this business was not compatible at all. The only three ways in which the court suggested it could be made compatible were: one, to have separate schools, in some of which there was corporal punishment and in some not; and they turned down that; two, separate classes in which one class could have corporal punishment and the other could not; and they turned down that. The third one was that the children in the same class should be treated differently according to the views and wishes of their parents.
Our English judge said that it was all nonsense; that in one class you cannot have differently treated children, some of them liable to corporal punishment and some not. Any of those who were not subject to it would cock a snoot at the headmaster and say, "You can't cane me". If two of them were larking about together and smoking or whatever, then one would say, "You can't cane me. You can cane him". That will not do for discipline at all. I venture to say that our English judge was quite right in dissenting from that decision in the European Court. There it is. It is said that we must comply with it. I doubt whether we should. That decision has caused all the trouble, and it is why the Government think that they have to go along with it.
Let me go to the next stage and the next case. There is another clause, and this is in the original treaty which your Lordships ought to know about. It is Article 3, which states:No one shall be subjected to torture or to inhuman or degrading treatment or punishment".That is simple enough. But that arose from a case in 1956, that of a boy aged 15 called Tyrer. He was one of three boys who took beer into school. I suspect that they were going to have a good time. At all events, the senior boy, the prefect, reported that fact to the headmaster. The headmaster thereupon caned the three; and those three, then, if you please, attacked the prefect. They bruised and cut him. I do not know that he was hurt very badly. But those three boys attacked the prefect who had reported them for doing what they did.
Then the headmaster thought that it was about time he intervened and the boys were brought before the magistrates' court—this was in the Isle of Man, if you please—and they pleaded guilty in a way that most of us would think was a very good step. At that time, in 1956, they were sentenced, each of them, to three strokes of the birch. Well, there it is! That has been held by the European Court of Human Rights to be degrading treatment, contrary altogether to the convention. Our English judge, Sir Gerald Fitzmaurice, again dissented from those other seven. In a way (and I am afraid that I must say so) that court is trying to put forward its own social theories and impose them on a modern state, as distinct from what we agreed to in 1956. This is what they said:Modern opinion has come to regard corporal punishment as an undesirable form of punishment [whatever the age of the offended]".Sir Gerald Fitzmaurice added that the fact that it was undesirable does not turn it automatically into a degrading punishment. But there it was: the court held that the three strokes of the birch, done in private, was a degrading punishment.
1326 The logical consequence which I must draw to the attention of your Lordships is this. If the case of any child who is beaten at school is now taken to the European Court the chances are 99 to 1 that that court, in view of that earlier decision, will hold that it is a degrading punishment, contrary to the convention, and that therefore we are disobeying the convention in that way. That is why I would support this amendment because it is 99 to 1 that when the next decision comes from the European Court of Human Rights it will condemn all corporal punishment in schools as being degrading.
Do not let us wait for them to tell us what to do, my Lords. Let us really take it into our own hands and govern ourselves by our own statutes. This statute produces an impossible situation, as every schoolmaster will tell you, because, if some of the boys are liable for corporal punishment—caning or whatever it may be—and others are not, it is quite impossible to work, it is quite unjust to the boys and the boys themselves know perfectly well what is just and what is fair. No teacher, I think, can possibly support this dual system of some boys being liable to corporal punishment and some not.
On that simple ground, I would ask your Lordships not to go into all these trivialities or this "dual purpose" in the Bill but to take the straightforward case now and abolish corporal punishment now in schools, because we can certainly well get on without it. Also in that way we shall in due course be conforming to the European Court's decisions in a modern sense. For that reason I would support the amendment.
§ Lord Somers
My Lords, I had not really intended to speak on this Bill at all since I felt that it had already gone beyond the point where it was possible to improve it. However, I should be very grateful if the noble Baroness, when she replies, would tell me whether there is any legal interpretation of the words "assault of a child". I have heard of cases where somebody who just took a child by the arm to prevent it doing what it ought not to do was accused of assaulting it. I think perhaps that ought to be more clearly defined.
§ Lord Soper
My Lords, the discussion is about the relevance of violence in the contemporary system, and particularly in education. I wish I could speak authoritatively and ecumenically for the Christian churches. I cannot do that. I had hoped that at the Methodist Conference, which is now in session, I could have produced a motion, but they were too busy concerning themselves with the dubious habits of freemasons and the opportunity did not arise. However, I do not think it would be imprudent of me to say that I represent an overwhelming consensus in the Christian Churches today that everything that can be done to reduce the element of violence in the contemporary society should be undertaken as a matter of primary opportunity and of primary concern.
Therefore I will make a very simple plea and take very little time over it. Here is an opportunity to 1327 reduce the content of violence in one particular area where I think its effects are probably more dangerous than anywhere else. I have come to know, and I would submit to your Lordships, that violence is a very insidious practice and can produce effects which are totally unappreciated at the time they are inflicted. Those of your Lordships who have read Darkness at Noon and those of you who have contemplated the somewhat extravagant theories, in some cases, of a number of psychiatrists too numerous to mention will not, I think, be opposed to the view that the application of violence in any form is dangerous because the results of it can never be attributable in terms of a final end to the problem that they seek to solve and indeed are so incalculable in their effects that we now have a community saturated with violence. Your Lordships will perhaps permit me to offer one illustration. I repair to a place called Hyde Park every Sunday afternoon, and what bothers me is the kind of violence that has erupted in that arena for which there seems no reasonable basis or explanation—and I do not think it is the National Front. It is mindless violence, because the whole atmosphere is saturated with the concept and presentation of violence.
Therefore all I have to say is this. I heartily support this amendment, not only because the Bill is ridiculous, absolutely impracticable and theologically highly wrong but because here is an opportunity, I would submit to your Lordships, of reducing to some extent the element and content of violence in our contemporary society. In that regard, even if it is the only argument that is presentable, I believe it has sufficient force to say to your Lordships that here is an opportunity which should not be missed and that this amendment should be commended and agreed to.
§ Lord Hutchinson of Lullington
My Lords, may I also fairly shortly support this amendment and follow up what the noble Lord, Lord Soper, has just said and also what the noble Baroness, Lady Wootton, has said, together with the reference in the amendment to criminal proceedings? There is a matter which seems to me to have been avoided by your Lordships throughout our debates, and that is a matter which concerns the sexual overtones which undoubtedly exist when it comes to the question of corporal punishment. Anyone who has spent any time in the criminal courts knows perfectly well that in a very large number of cases where violence comes up before the courts, involving people who have administered corporal punishment, there are in fact sexual overtones involved.
I do not know whether the noble Earl, Lord Longford, is in his place—I see that he is—but one claim that I have to be on a basis of equality with him is that we are both in a sense experts in pornography. If your Lordships go into any shops which deal in soft pornography, you will find that over 50 per cent. of what is there involves the administration of corporal punishment in some form or other. There are magazines which are called Spanking, and so on, which have an enormous sale. If one goes round Soho and looks at the notices on boards from ladies offering their services—not that your Lordships have ever done that sort of thing but, unfortunately, professionally I 1328 have had to do so on a number of occasions—one will find that those advertisements, over and over again, are offering some form of corporal punishment, which has of course to do with sexual gratification.
I must say I have always looked with some suspicion on those Members of your Lordships' House who get up and say, "I was given a number of good hidings when I was at school and it has done me nothing but good." One noble Lord referred to the abolition of corporal punishment for adults. It was found that violent men who had the cat-o-nine-tails or the birch administered to them quite clearly very often obtained great sexual gratification from that administration and in fact looked forward in a sort of horrific way to the punishment they were going to receive, let alone the gratification which some persons who administered it got out of that administration.
It has always seemed to me quite astonishing that in this country parents, innocently, can hand over their children perfectly happily for corporal punishment to be administered—of course not in all cases, but quite often involving sexual gratification on the part of the person who administers it. Therefore it gives me particular pleasure to see that this amendment involves criminal proceedings and the defence of inflicting reasonable corporal punishment which, in many cases, I, acting professionally, have put foward as a defence, when so often one has seen that the real truth of the matter was that the person administering the punishment was receiving pleasure out of it.
When one looks back at the glory of the days of the public school in Victorian times, one realises how many persons from the great houses of this country who received corporal punishment would return to those great houses later in adult life and, after dinner, quietly get out among the gentlemen present their pornographic libraries. That was one of the effects of the great public school system, because of course in those days pornography was limited to the great and the good. I support this amendment and I hope the House will do so too.
§ The Earl of Arran
My Lords, having been beaten at school I shall no doubt be under deep suspicion in this House before I say anything. I scarcely thought that some 30 years after having been beaten for listening to a state funeral on a crystal set I should be in your Lordships' House discussing the merits of whether beating should be allowed at all. I have the feeling that many of your Lordships would agree that in those 30 years most of the Western world has become a considerably softer place in its attitude towards discipline. I dare to suggest, furthermore, that many of your Lordships will consider that to be not a good thing. Perhaps like myself—and it would appear others—some of your Lordships have experienced a beating and found that it did no harm; and indeed on reflection did some good.
The reason we are discussing this Bill at all, as we all know, is as a result of the judgment given by the European Court of Human Rights, to which we are a party. As a result of this judgment the British Government have decided that it is better to allow some form of corporal punishment rather than none at all. It is on this issue that I am in agreement with the Government. The entire spectrum, the whole 1329 principle, of corporal punishment has for years been accepted as a part of our daily lives.
What is it that now causes us to doubt its relevance? Is it fashion? Is it 40 years of peacetime? If we are not to continue to include this particular form of discipline in our schools through the assistance of a short, sharp rap that may sting for a few seconds in our stern endeavour to teach that child at an early age the difference between right and wrong, to teach that child respect and kindness towards its elders, its fellow pupils, and property, then teachers, and parents, and children later to be adults may well be the poorer citizens for it.
If we deny the option of administering reasonable and moderate corporal punishment in our schools, how long will it be before the Paediatric Association, the Royal College of Psychiatrists and other such august bodies will be recommending that all forms of discipline should be outlawed in all schools? Furthermore, the fact that we are the only Western European country which does not prohibit corporal punishment in schools is really not an argument for abolition. How many times in the past have we had to go it alone against strong pressures from outsiders to acquiesce? The majority is not always right.
In conclusion, very few clauses of any Bill are ideal. Some of the clauses in this Bill may not be ideal. But I suspect that as much as the ideology, the rights and wrongs, behind this particular Bill there lies the natural anxiety over the unknown, the uncertainty, as to whether this Bill can be made to work. Given understanding and patience and time, I have little doubt that it will. I therefore urge your Lordships to support the noble Baroness, Lady Cox, and thereby the Government, and to vote against this amendment.
§ 4.45 p.m.
§ Lord Wilson of Langside
My Lords, to follow what has just been said by the noble Earl who has just sat down, I think it is a great pity if the issue is polarised on the question of whether or not corporal punishment should be abolished. The Bill is the Government's response to the decision of the European Court. For myself, I do not think the decision of the court was absurd; I do not think it was nonsense. I think it was just mistaken. From my study of the reports of the commission and the judgment of the court, the mistake which the court made may have been—and I put it no higher than this, because I was not there—contributed to by the inadequacy of the case which was put before it on behalf of the British Government.
It was by a slip of the tongue that the noble and learned Lord, Lord Denning, spoke of 1961. It was 1976 when what I see as this long-running farce began. Neither Master Campbell nor Master Cosans was ever subjected to corporal punishment. I remember that when I first read and heard about it—I live not far from where these youths live—I thought, "Surely the case will be for the Government de minimis non curat lex". Having studied the reports which are available, I remain of the same view. I cannot understand why that case was not made. It might not have been valid, and I may be wrong and others may disagree with me. But we now have this decision. I would have been with the dissenting British judge had I been there.
1330 But the question for us is not: are you for or against corporal punishment?—although we all have our views about that. The question is: how can we make the best of a bad job? I said this on Second Reading, and probably at Committee stage. Happily, there are many more of your Lordships here today and I am glad, as the noble Baroness said, that it is being appreciated that this is a very important matter and that your Lordships are clearly taking so much greater an interest in it. We may get a sensible decision.
If this Bill goes through, what is obvious is that the British legislature, instead of making the best of a bad job, will have made the worst of it. It will be damaging in the schools; damaging for our youth; and it will do no good at all.
§ Lord Ritchie of Dundee
My Lords, I shall not keep your Lordships more than just a minute. At the Committee stage, I said something which now feels rather like a public confession: that is, that many years ago when I was running a small school as headmaster, I felt it was necessary to use the cane. This was the feeling from the staff—not just the feeling; it was what they said—and also, it may surprise you, from the hoys themselves. This was their idea of justice and of seeing that justice was done. But it was 20 years ago. I would not do it now. It is not just because I have given up playing tennis. It is because times have changed. The climate of opinion has changed. In an increasingly violent world, I think all civilised educationists, and perhaps all civilised people, agree that violence breeds violence and that we are not likely to achieve any better purposes by putting the clock back.
I believe that youth are particularly sensitive to the prevailing violence in the world. I think that they can be helped towards making a constructive contribution to society only by having their immense depths of unselfish service called forth. I should like to echo the noble words of Freud, quoted by the noble Lord, Lord Boothby, that we must devote our attention as educationists to developing love and service within young people, and not in the negative disciplines of using violence.
§ Baroness Cox
My Lords, this amendment is clearly much more widely framed than those which we considered in Committee. We are, not surprisingly, opposed to this amendment, because it is thorough-going in its efforts to see an end to virtually all corporal punishment outside the home, whatever the circumstances, whatever the views of parents, teachers or other professions. My noble friends Lord Arran and Lord Beloff have very helpfully reminded us of the context of this Bill, its purpose and the desirability of respecting the wishes of parents and teachers; many thousands of parents and teachers have indicated a wish to retain the option of corporal punishment, if and when it seems appropriate to a teacher.
As has been pointed out, our objective with this Bill is straightforward—to secure compliance with a judgment of the European Court of Human Rights—and we are opposed to the injection of broader aims, in particular, the enforced abolition of corporal punishment. In reply to the point raised by the noble Lord, Lord Somers, no one should be misled by the use of the term "battery", because very much of 1331 what we are talking about is the mild tap or slap or use of force which a primary school teacher might for example, use on a boy who is distracting a classroom; on a five- or six-year-old who is throwing paint pots around or is, perhaps, opening the door of the hamsters' cage and letting out the school hamsters—
§ The Earl of Onslow
My Lords, is my noble friend saying that the parent of one child who allows hamsters to escape or throws paint pots around is to have his child thrashed, but that the parent of another child is going to say, "My child must not be thrashed if he lets hamsters escape or throws paint pots around"? If that is the case, the position is even more ridiculous than I originally thought it was.
§ Baroness Cox
My Lords, I should have thought it was absolutely ridiculous to thrash a child for letting the school hamsters out of a cage. What I am talking about is precisely the heart of this Bill, which is to retain for the primary school teacher, or for any other teacher, the use of such appropriate physical force, or corporal punishment in the broadest sense of that word, as might help quickly and speedily to bring a situation back into order and to impose appropriate discipline.
Perhaps I may briefly summarise the Government's position without rehearsing all the arguments which have been made at Second Reading and Committee stage. The Government prefer to leave the decisions concerning the appropriateness of corporal punishment to those closest to the child and with responsibility for his or her well-being. I refer, of course, to the parents and the teachers. No one is requiring them to use corporal punishment, but the enforced abolition of corporal punishment implies a lack of trust in them and in their judgment; and, indeed, during the debate this afternoon, even worse, sadistic motives have been imputed to them. The Government therefore oppose this amendment as a matter of principle. In reply to my noble friend Lord Onslow and also to the noble Lord, Lord Henderson, I must say that I speak with complete sincerity regarding the principle of respecting parents and teachers, of trusting them with responsibility for the welfare of the children whose charge they have.
§ Baroness David
My Lords, we have had a long discussion on this amendment. I have had a great deal of excellent support for it and I should particularly like to thank the noble Lord, Lord Henderson, and my noble friends Lady Wootton and Lord Soper, because they made the point about violence and the fact that we want to get rid of as much of that as we possibly can in this community. If we support this amendment, we shall be doing that little bit towards it. I press the amendment.
§ 4.54 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 108; Not-Contents, 104.1333
|DIVISION NO. 1|
|Ampthill, L.||Kilbracken, L.|
|Ardwick, L.||Kilmarnock, L.|
|Aylestone, L.||Kirkhill, L.|
|Banks, L.||Leatherland, L.|
|Bernstein, L.||Listowel, E.|
|Birk, B.||Lockwood, B.|
|Blease, L.||Longford, E.|
|Boothby, L.||Lovell-Davis, L.|
|Boston of Faversham, L.||McGregor of Durris, L.|
|Bottomley, L.||McIntosh of Haringey, L.|
|Brockway, L.||McNair, L.|
|Bruce of Donington, L.||Mais, L.|
|Caradon, L.||Mishcon, L.|
|Carmichael of Kelvingrove, L.||Molloy, L.|
|Cledwyn of Penrhos, L.||Morton of Shuna, L.|
|Collison, L.||Mulley, L.|
|Darcy (de Knayth), B.||Nicol, B.|
|David, B.||Northfield, L.|
|Davies of Leek, L.||O'Neill of the Maine, L.|
|De Freyne, L.||Onslow, E.|
|Dean of Beswick, L.||Oram, L.|
|Denning, L.||Pitt of Hampstead, L.|
|Diamond, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Donaldson of Kingsbridge, L.|
|Elwyn-Jones, L.||Rea, L.|
|Elystan-Morgan, L.||Ritchie of Dundee, L.|
|Ennals, L.||Rochester, L.|
|Ewart-Biggs, B.||Russell of Liverpool, L.|
|Ezra, L.||Seebohm, L.|
|Falkender, B.||Serota, B.|
|Fisher of Rednal, B.||Shackleton, L.|
|Fulton, L.||Shaughnessy, L.|
|Gaitskell, B.||Shepherd, L.|
|Gallacher, L.||Silkin of Dulwich, L.|
|Galpern, L.||Smith, L.|
|Graham of Edmonton, L.||Soper, L.|
|Gregson, L.||Stallard, L.|
|Hampton, L.||Stedman, B.|
|Hanworth, V.||Stewart of Fulham, L.|
|Harmsworth, L.||Stoddart of Swindon, L.|
|Harris of Greenwich, L.||Strabolgi, L.|
|Hatch of Lusby, L.||Taylor of Blackburn, L.|
|Hayter, L.||Tayor of Mansfield, L.|
|Henderson of Brompton, L. [Teller.]||Tonypandy, V.|
|Hooson, L.||Turner of Camden, B.|
|Houghton of Sowerby, L.||Underhill, L.|
|Hunt, L.||Vickers, B.|
|Hutchinson of Lullington, L.||Wallace of Coslany, L.|
|Ingleby, V.||White, B.|
|Jacobson, L.||Wigoder, L.|
|Jacques, L.||Williams of Elvel, L.|
|Jeger, B.||Wilson of Langside, L.|
|Jenkins of Putney, L.||Winstanley, L.|
|John-Mackie, L.||Wootton of Abinger, B.|
|Abinger, L.||Caithness, E.|
|Airey of Abingdon, B.||Cayzer, L.|
|Aldington, L.||Coleraine, L.|
|Alexander of Tunis, E.||Constantine of Stanmore, L|
|Arran, E.||Cox, B.|
|Attlee, E.||Craigavon, V.|
|Bauer, L.||Craigmyle, L.|
|Belhaven and Stenton, L.||Crawshaw of Aintree, L.|
|Beloff, L.||Cullen of Ashbourne, L.|
|Belstead, L.||Denham, L. [Teller.]|
|Berkeley, B.||Drumalbyn, L.|
|Bethell, L.||Ellenborough, L.|
|Blake, L.||Elliott of Morpeth, L.|
|Boyd-Carpenter, L.||Elton, L.|
|Brabazon of Tara, L.||Fanshawe of Richmond, L.|
|Brougham and Vaux, L.||Ferrers, E.|
|Broxbourne, L.||Ferrier, L.|
|Buckmaster, V.||Gainford, L.|
|Burton, L.||Gardner of Parkes, B.|
|Caccia, L.||Gowrie, E.|
|Gray of Contin, L.||Orkney, E.|
|Grey, E.||Pender, L.|
|Gridley, L.||Peyton of Yeovil, L.|
|Hailsham of Saint Marylebone, L.||Porritt, L.|
|Hardinge of Penshurst, L.||Rankeillour, L.|
|Holderness, L.||Renton, L.|
|Home of the Hirsel, L.||Romney, E.|
|Hooper, B.||St. Aldwyn, E.|
|Kaberry of Adel, L.||St. Davids, V.|
|Kimball, L.||Sanderson of Bowden, L.|
|Kinnaird, L.||Sandys, L.|
|Lane-Fox, B.||Skelmersdale, L.|
|Lauderdale, E.||Soames, L.|
|Long, V. [Teller.]||Somers, L.|
|Lucas of Chilworth, L.||Stamp, L.|
|Mancroft, L.||Sudeley, L.|
|Marley, L.||Swinton, E.|
|Marsh, L.||Terrington, L.|
|Massereene and Ferrard, V.||Teviot, L.|
|Maude of Stratford-upon-Avon, L.||Teynham, L.|
|Merrivale, L.||Trumpington, B.|
|Mersey, V.||Vaux of Harrowden, L.|
|Molson, L.||Vivian, L.|
|Monson, L.||Westbury, L.|
|Montgomery of Alamein, V.||Whitelaw, V.|
|Morris, L.||Wilberforce, L.|
|Mottistone, L.||Wise, L.|
|Mowbray and Stourton, L.||Yarborough, E.|
|Murton of Lindisfarne, L.||Young of Graffham, L.|
|Nelson of Stafford, L.||Zouche of Haryngworth, L|
|Nugent of Guildford, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 5.2 p.m.
§ The Lord President of the Council (Viscount Whitelaw)
My Lords, it is quite clear that, this amendment having been passed, any further consideration of the Bill is rendered quite impossible today. I therefore beg to move that the Report stage of this Bill be now adjourned.
§ Moved accordingly, and, on Question, Motion agreed to.