§ 3.15 p.m.
§ Baroness Cox
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committe.—(Baroness Cox.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]614
§ Clause 1 [Restriction on corporal punishment of pupils]:
§ The Chairman of Committees (Lord Aberdare)
I have to point out that if Amendment No. 1 is agreed to I cannot call Amendment No. 2.
Baroness David moved Amendment No. 1:
Page 1, line 8, leave out from ("staff") to end of line 10.
§ The noble Baroness said: This Bill we are now about to consider in Committee was condemned from every side of the Chamber on Second Reading as unworkable and as a totally inadequate and pusillanimous response to the ruling of the European Court and to leading educational thinking in this country. The long list of pejorative adjectives applied to this bill range from just "bad" to "dotty" and "bizarre". In the amendments we are putting forward we are aiming at radical changes to the Bill which would make it an adequate response to the court and in line with forward thinking in the educational world and in the world of social reform, which is where your Lordships have shown great good sense and initiative in the past when introducing important social legislation. It is easier in many ways for this Chamber rather than another place to initiate legislation of that kind.
This Bill is not, as my noble friend Lord Mulley said on Second Reading, a terribly important Bill; but that is not a reason for us to collude in allowing a very foolish Bill to reach the statute book unamended. The first block of amendments I shall now move will ensure that corporal punishment is abolished through-out the state and independent sectors in England and Wales. The amendments in this block are 1, 9, 15, 19, 20, 22, 34, 35 and 36 and they include the opposing of the Motions, That Clauses 2 and 3 and the Schedule shall stand part of the Bill.
Amendment No. 9: page 2, line 11, leave out subsection (5).
Amendment No. 15: Page 2, line 25, leave out sub-paragraph (iii) and insert ("(iii) at any independent school.")
Amendment No. 19: Page 2, line 34, leave out ("or")
Amendment No. 20: Page 2, line 35, leave out paragraph (c).
Amendment No. 22: Page 2, line 40, leave out subsection (7).
Amendment No. 34: Clause 4, Page, 4, line 21, leave out subsections (1) to (4).
Amendment No. 35: Page 5, line 8, leave out ("and the Schedule to this Act")
Amendment No. 36: Page 5, line 12, leave out ("and the Schedule to this Act")
A further block of amendments have the same effect for Scotland. These amendments are Nos. 38, 45, 51, 56, 57 and 61.
Amendment No. 38: Clause 5, Page 5, line 24, leave out from ("staff") to end of line 27.
Amendment No. 45: Page 6, leave out lines 9 to 19.
Amendment No. 51: Page 6, leave out lines 25 to 29 and insert ("(iii) at any independent school.")
Amendment No. 56: Page 6, leave out lines 33 to 36.
Amendment No. 57: Page 6, line 37, leave out from beginning to end of line 10 on page 7.
Amendment No. 61: Page 7, line 27, leave out from beginning to end of line 24 on page 9.
§ The Government have accepted that they must comply with the judgment of the European Court and that abolition is the only alternative to the opt-out scheme contained in the Bill. On Second Reading in another place, Sir Keith Joseph rejected the third 615 possibility (a dual system of beating and non-beating schools) as causing enormous practical difficulties and being hugely expensive, which would mean that the existing provision of schools would virtually have to be doubled.
§ Support for this series of amendments should therefore unite those who believe that corporal punishment has no place in the educational system, those who believe the opt-out scheme to be unfair and divisive, creating resentment and worsening discipline, and those who, while undecided themselves, are prepared to accept the unanimous view of teacher, local authority, administrator and professional organisations, that abolition is preferable to implementation of the Bill in its present form.
To make the case fully, I must outline the arguments against corporal punishment. It is degrading and counter-productive; it can be physically, emotionally and sexually damaging. It is anti-educational. The Plowden Report on Primary Education in 1967 said:
The kind of relationship which ought to exist between teacher and child cannot be built up in an atmosphere in which the infliction of physical pain is regarded as a normal sanction.
§ The noble Lord, Lord James of Rusholme, unfortunately, is too ill to be here today, but I am going to quote from his speech made on Second Reading of the Bill introduced by my noble friend Lady Wootton, the Protection of Minors Bill, on 19th December 1973. I am very glad that she is here today and I hope that she will be speaking.
The noble Lord, Lord James, said:
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, 19/12/73; col. 947.]
Corporal punishment is not a deterrent. The same children get beaten repeatedly and very often for the same offences. It passes on the message that violence is an acceptable solution to problems. The Association of Educational Psychologists, in a submission to the Government, said:
Children who are beaten tend in their turn to beat and to bully".
Corporal punishment is not dying out of its own accord, at least not in England. Back in 1937 a joint NUT—Association of Education Committees' memorandum to the Board of Education said:
Corporal punishment is rapidly disappearing from public elementary schools".
But the latest information comes from a survey in 1984 of 60 of the 89 LEAs which then retained corporal punishment. This showed that it was in use in 81 per cent. of secondary schools. Thirty-two of the 104 English and Welsh LEAs have published statistics of corporal punishment officially recorded in punishment books. These confirm its very widespread use.
§ I now come to the arguments against the opt-out scheme that is proposed in this Bill. It is unfair and discriminatory and will create resentment and worsen discipline. It will force schools and local authorities to waste time and money on unnecessary administration. It will promote tension between pro-beating schools and anti-beating parents, between children and their 616 parents, between two parents who have different views. It will deny protection to some of the children who most need it. Parents who knock their children about at home are most likely to give school permission to use corporal punishment. It is only a temporary solution.
European human rights machinery has already caused the United Kingdom to circulate all LEAs saying that corporal punishment may, in certain circumstances, constitute degrading treatment in breach of Article 3 of the European Convention, and the next case alleging a breach of Article 3 has been ruled admissible. Strasbourg rulings will inevitably force abolition on the Government in time. It has been condemned almost universally, in particular by teachers and administrators, and even the Government recognise the unfairness and impracticality of what the Bill proposes. Speaking for the Government during the European court hearing of the Campbell and Cosans case, the then Lord Advocate, the noble and learned Lord, Lord Mackay of Clashfern, said:
It would not be feasible to have a system in which children in the same class were differently treated in this respect according to the view of their parents, because it must be fairly fundamental practice of any reasonable system of discipline in a school that it should be seen to be fair".
Yet that is what this Bill proposes.
§ There is the devolution argument. Some argue in support of the Bill that parental choice must prevail, and that the right to choose corporal punishment for their child should devolve to them. But once a practice has been so widely condemned by expert opinion and by education practitioners, it ceases to be a matter which, in the interests of children, can legitimately be left to parental choice. The issue is one of human rights—the right of children to protection from a degrading and potentially damaging assault in an institutional context. The wording of Clause 1 of the Bill spells out that in legal terms corporal punishment would constitute a battery if teachers' traditional defence was removed.
§ There is overwhelming opposition to the Bill. The Government, in sponsoring this Bill, are ignoring the results of their own consultation carried out last year. They are imposing the opt-out scheme on the education system against the wishes of all teacher organisations, both local authority associations and the Society of Education Officers—all of whom would prefer abolition. A massive coalition of professional education and child welfare organisations favour abolition.
§ I have a list of 20 of these and I shall name just a few: the Association of Directors of Social Services; the British Psychological Society; the National Childrens' Bureau; the National Council of Voluntary Child Care Organisations; and the Royal College of Psychiatrists. All the teacher organisations would prefer abolition to an opt-out scheme. The National Union of Teachers, the National Association of Head Teachers and the Secondary Heads Association have explicitly abolitionist policies, as do the Scottish, Welsh and Irish teachers' organisations. The three organisations which do not have an explicitly abolitionist policy—the Assistant Masters and Mistresses Association, the National Association of 617 Schoolmasters/Union of Women Teachers, and the Professional Association of Teachers—have indicated that they accept the inevitability of abolition, and have argued against the Bill in the strongest terms.
The NAS/UWT stated:
The Government's plans are impracticable and cannot be justified in operational terms. They are morally indefensible in that they allow different sanctions for the same offence and therefore pose a serious threat to a school's pastoral system, since staff and pupils alike will quickly realise how manifestly unfair any attempt to discriminate in this way must be".
The AMMA called on,
all MPs with an interest in education to oppose the proposed legislation, which is little more than an ill-conceived compromise born out of expediency".
The Professional Association of Teachers said in its submission that,
any arrangements whereby corporal punishment may be administered to some pupils and not to others is unworkable and unjust".
Both local authority associations and the Society of Education Officers argue against the Bill in strong terms. The society says that 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…It would be preferable for the Government to grasp the nettle immediately and issue a policy statement announcing the aboliton of corporal punishment in schools within a specified time scale".
§ There are the views of the churches. In July, 1982 the Church of England General Synod Board of Education issued a circular calling on its schools to phase out corporal punishment and ultimately abolish the practice. In June, 1983 the Catholic Education Council called on its schools to phase out beating. The Free Church Federal Council has also come out against corporal punishment.
§ Finally, there is our position in Europe which is one of isolation. The United Kingdom is alone in Europe in permitting school corporal punishment. European teachers' organisations are absolutely opposed to its reintroduction. The only regime to have reintroduced corporal punishment was that of Nazi Germany.
§ So all informed educational thinking and policy is against this Bill. It was the opposition of the teachers' unions and the local authorities which the Government used as the reason to resist the Protection of Minors Bill of my noble friend Lady Wootton in 1973. The Government very definitely cannot put that forward now as a reason to oppose these amendments. Thinking has moved on and moved very far in those 12 years. I commend these amendments to your Lordships and I appeal to your good sense and sense of justice in asking you to support them. I beg to move.
§ Baroness Wootton of Abinger
I wish to say only a very few words, as my noble friend has put so powerfully the case for the abolition of corporal punishment in schools. She made reference to a Bill which I attempted to introduce in this House and which would have done away with this menace a good many years ago. But the time was not ripe. Since then many children have been beaten, unjustly perhaps in the judgment of many of us, and certainly inappropriately as a tool of education. I very much hope that your Lordships will support these 618 amendments merely because they do not so much amend the Bill as make sure that we shall no longer have corporal punishment in any form in our schools. It is surely out of keeping with the spirit of the times. It is out of keeping with our feeling for children. There is no evidence that it is an effective deterrent, because the children who get beaten once tend to get beaten many times. They are not put off. They seem to get the habit.
With all this evidence that my noble friend has presented and has indicated is available, I hope very much that your Lordships now feel that the time has come when we should not behave like little savages and hit our children, or cause our children to be hit by people who are not their parents but who are in charge of them during school time and about whom their parents have only very limited information. So I hope very much that your Lordships will support wholeheartedly the case that my noble friend has so powerfully put.
§ 3.30 p.m.
§ Lord Alexander of Potterhill
If I have to choose between the Bill and abolishing corporal punishment, I go for abolishing corporal punishment because the Bill is, in my judgment, administratively impossible. There is of course another solution, which is to pay not the slightest attention to the European Court. I have great doubts about the increasing tendency to be so concerned with human rights that we are creating a society which is so permissive that it leads to the kind of situation that we saw in Brussels last week.
I take it that the basic argument is that the possibility of corporal punishment induces fear in children and the assumption is that fear is a bad thing. In my opinion, fear is an essential element in preparing people to become competent in self-discipline. Why do we take care to cross the road? It is because we are afraid that if we do not, we might be knocked down. Fear is an essential element in human society. I speak from my own experience, but, in my judgment, we should be very careful not to create the situation in which we give the children human rights and we abolish the parents' human rights, because if the logic of this decision is carried out, it will not merely abolish corporal punishment in schools. Surely it is equally valid to abolish the right of a parent to apply corporal punishment in bringing up children. Why the one and not the other?
Traditionally in this country for over 100 years a teacher has been regarded as being in loco parentis. This Bill says that he no longer enjoys that right. It goes even further than that and I should very much like the Minister to tell me, as a teacher of long ago, what I do when a child is consistently misbehaving and disrupting the education of all the other children in his class. I may not punish him, I may not expel him and I may not suspend him. What, in fact, am I supposed to do?
§ Lord Stewart of Fulham
I am a little sorry that the noble Lord, Lord Alexander of Potterhill, should have mentioned the tragedy of Brussels in connection with this debate. It seems to be completely inappropriate. That was a terrible, serious event and this is a silly and trivial Bill. I do not think that the events in Brussels 619 ought to have been brought in to be thrown in the scale of argument, one way or the other, about this Bill. But since they have been brought in, I think it is necessary to point out one very simple fact.
It is the unhappy truth at the present time that England has a worse reputation for football hooliganism than any other European country and that England is the only country which practises corporal punishment in its schools. I do not know whether it is possible to draw any logical positive conclusion from those two facts, but I am quite sure there is one negative conclusion that follows, which is that there is no ground at all for suggesting that if you beat children in school, they will be less likely to be football hooligans when they are older.
If you do not believe that—and no logical person can believe it—a great part of the argument of the noble Lord, Lord Alexander of Potterhill, falls down, because he then tried to support it by the old device that I think is called extension; that is to say, in order to discredit what your opponent in argument has said, you extend it to something much larger. You then refute the larger thing and think you have refuted the original premise. He drew a grim picture of a teacher who is faced with a recalcitrant pupil and he said that he cannot punish him and he cannot do this, that or the other. Nobody is suggesting that punishment, or any kind of sanction whatever, will be withdrawn from the schools. What we are arguing is whether this particular sanction of corporal punishment, with a solid weight of evidence against it, which no other country in Europe thinks it necessary to adopt, should be maintained. I believe that the evidence has been set out so clearly by my noble friend Lady David that the more we look at it, the more we are obliged to conclude that the only logical course is to go now for the abolition of corporal punishment in schools.
It is not a question only of how far we ought to respect the judgment of the European Court. The Government have decided that. They have decided that they will accept it. The alternative preferred by the noble Lord, Lord Alexander of Potterhill, is not available to us. The Government have not made it available. They have set us a plain choice between abolition and this Bill and if I understood the noble Lord aright, faced with that choice, he was going to choose abolition. I hope that he will do so and will support these amendments.
§ Lord Ritchie of Dundee
I did not have an opportunity to speak on this subject at Second Reading; otherwise I might have said a great deal. I promise your Lordships' Committee that I shall not do so now. But I should like to say a word or two, because I feel that my experience may not be one that your Lordships have all had; that is, to have been on the giving end and not on the receiving end of the cane. I cast my mind back 20 years to when I became headmaster of a small independent school for boys with educational and emotional problems. At the time I took over the school it seemed necessary, because the school was run on very liberal lines—and I assure your Lordships that I am not using the word politically—and the boys had a great deal of freedom, to have an ultimate or penultimate sanction which acted as a real deterrent. So it was that the cane was used.
620 When I became headmaster I had to nerve myself to do execution. I say that I had to nerve myself because I am not naturally a violent man and it is not a particularly pleasant thing to face. It seemed that it worked. But I now have to tell your Lordships that 20 years later I view what I had to do with repugnance. I think that this is not because I am a reformed sadist, or because I have changed in any particular way, but because the climate of civilised opinion has changed. What I felt I had to do and what others no doubt felt they had to do a number of years ago we now no longer feel we have to do.
I therefore believe that your Lordships should support these amendments, because the Bill looks like creating—we have all agreed this and it has been said many times in many eloquent words—an impossible situation in the classroom with which no teacher can possibly cope. One wonders how much consultation there can have been between the Government and professional teachers who actually have to keep children under control in a classroom. I therefore urge your Lordships to support the amendments and I hope that the Government may perhaps see the light and withdraw the Bill until they feel the time is right to introduce the only logical Bill that there can be, which is one abolishing the whole practice.
§ Baroness Ewart-Biggs
I should like to support the amendments. As previous speakers have said, my noble friend Lady David has put the case very clearly, and so there is no point in going over it, but I should really like to stress two of the arguments. It is a startling fact that Britain is the only European country which allows the beating of school children. It is a point that one cannot really overlook and one cannot in any way justify. The other point is that no professional organisation concerned with education or child welfare favours the retention of corporal punishment. These are two very overwhelming facts and points.
There has been a good deal of talk about the parental choice which must prevail; but surely parental choice and the human rights of the parents will always prevail. If parents think that beating is in the interests of their child, surely they are the ones who must inflict it. It is surely no possible derogation of their human rights or their parental choices to remove corporal punishment from schools. Surely it is the case—I must stress this because it is an important point—that a child who has been treated brutally and badly during his childhood has every expectation of becoming a brutal grown-up. This has been proved time and again. The point made by the noble Lord, Lord Stewart, is very valid. What an extraordinary coincidence it is that we in this country have the worst record for football hooliganism and that we in this country are the only ones to retain corporal punishment in schools.
The last thing I want to say is that a great deal has been said about how corporal punishment affects the child. The previous speaker referred to how it affected him as a teacher. I should like to say one word about how it can affect a teacher who has an inherent sadism. This surely is a channel through which that kind of sadism can be brought out. I can remember my own son at school saying in total honesty that teachers 621 enjoy it. It must be the case that some people in the education system have this hidden cruel characteristic and that this is indeed a channel for it. One is left wondering why the Government want to bring in this legislation. One is left wondering whether they are bringing in this legislation both to content the European Court of Human Rights and at the same time to satisfy some of the more robust and aggressive Back-Benchers and supporters in their own party. I wonder why children and teachers should pay the cost and so I most strongly support the amendments.
§ Lord Harmar-Nicholls
I was a little concerned about one sentence on this subject used by the noble Baroness, Lady David. She said that we in this Chamber could perhaps proceed to the extent that the amendments take us, whereas the other place could not. What did she mean by that? It can have meant only that because we are not an elected body we can ignore the general view of the electors and the people of the country more easily than can the other place whose Members have to go out to have their Membership of the House reaffirmed. It can mean only that. If that is what it meant, does it mean that we in this House ought blatantly to ignore the general feelings and the views of the ordinary people of the country who themselves do not sit in Parliament?
That brings me to my point that I think the Government have it about right. In their Bill the Government are giving a very clear indication that they are not in favour of the flagrant corporal punishment which the noble Baroness who has just sat down explained in such extreme terms. The general message of the Bill is that we do not encourage corporal punishment, but that we recognise that many people in this country think that it has a part to play.
The noble Baroness also said that the organisations which she mentioned as supporting her amendments were unanimous. She mentioned the teachers. I do not think she has any grounds for saying that the teachers who have to carry out this punishment are unanimous on this point. Indeed, we have had two contributions in this Committee in the past minute or two from former teachers. What did they say? The noble Lord, who I thought was most convincing, made the point that he had no pleasure in doing it but that it was a sanction which he needed if he was to carry out his job as a schoolmaster correctly. He needed it not to be a sadist and not so as to do something extreme or naughty, but in order to get the kind of atmosphere in school where the education we are trying to give can be properly absorbed. What did the other noble Lord say? He came down against it because he felt that it was rather repugnant. I respect him very much for that. But the most telling sentence of his contribution was that in which he said that when he had to use it, it worked. I think those were the words he used. Those two contributions from two Members of this House who have some experience of this matter rather knock on the head the unanimity which the noble Baroness claimed.
I find no joy in either receiving pain or inflicting it. It is not good, and it is against the standards to which we all aspire, but our job is to set down the overall 622 framework in which the general management of our society—and nothing is more important than proper education—can be satisfactorily carried out. It has to be carried out with the consent of the parents; never mind the foibles or the extreme views that Members of either House may have. I do not think we can disregard the general feeling in this country—certainly as I find it, and I suggest that most noble Lords have the same experience—where people by and large think that Parliament over the past few years has made a mistake in giving the impression of being too soft. It has given the impression that the kindness, the persuasion and the approach will do the job; and in my lifetime it has not. I have seen a deterioration in the general attitude of this country, whether it is in sport or in other fields, which I think has been a consequence of the actions of well intentioned, delightful and able people who have gone too soft. I do not believe that that is generally recognised by the populace at large.
As I say, I believe that the Government have got it about right. They are giving the sort of indication that a civilised group of people would want to give without overstepping the mark and so reaching the point where public confidence is lost because people think they are not being properly represented and the Government are being too soft. In view of the evidence we have heard in this Chamber I hope that the Government consider that they will be about right if they stick to the Bill as it is and not accept the amendments as they stand on the Marshalled List.
§ Lord Ritchie of Dundee
Perhaps I may say one word in response to the comment of the noble Lord, Lord Harmar-Nicholls, about my saying that corporal punishment worked or that it proved effective. It proved effective 20 years ago. I want to stress that and the fact that times have changed. The climate of opinion has changed. It is no longer accepted. A punishment, to be effective, must be psychologically accepted. It no longer is. That was my point.
§ Lord Denning
I should like to say just a few words about the European Convention on Human Rights. I have often regretted that we ratified that convention. The European Court's rulings are not binding on our courts at all. The only effect to be given to them in law arises only if we in Parliament give effect to them and make them part of our laws. But we have ratified that convention and as a matter of treaty obligations we ought to do what we can to implement it. To that extent I would agree with the objectives of the Government in promoting this Bill. Their objectives may be good but the methods I fear are bad.
Just let us take the words "corporal punishment" as describing doing anything which, apart from any justification, would constitute battery. We have to go to the common law to know what is battery. The least touching of another person is a battery. So I just have to put my hand on the shoulder of the Hansard writer, like this, and I would be guilty of a battery.
§ Lord Denning
If a pupil is a little recalcitrant and I just tap him, then there it is. I was a schoolmaster 60 years ago. Today one only has to say, "You're not 623 behaving properly. You are making too much noise", and give the pupil a tap or two and pull him along, and then one will be guilty of a battery. One would be guilty of corporal punishment, and there it is.
In many ways I support the objectives of this Bill, but as to the way it is done I share the views of many Members of this Committee who ask whether it is right that a schoolmaster should have to decide between one pupil in a class and another pupil, and to have to ask himself whether or not the parents have consented to corporal punishment. It would be quite wrong for pupils in the same class to be in different categories and for the schoolmaster to have to go around asking himself whether a certain pupil is or is not exempt. That would be quite impracticable. On that simple ground I support this amendment.
§ Lord Shinwell
I have had difficulty in following some of the speeches because of the unsatisfactory audition. The noble and learned Lord, Lord Denning, speaks—if I may say so with no disrespect to other Members who have spoken—with excellent clarity. One can understand what he is saying; he has the elocution that is required. I leave that part of the subject alone at present.
I venture to say to my noble friends that this problem is far more wide ranging than the one which affects school children or the teaching profession. It concerns general behaviour. It concerns the question of whether or not punishment of any kind should be inflicted at any time. It occurs to me that to venture to speak on this subject—which is one I have not discussed before in this House or another place—deserves some punishment. What kind of punishment can one inflict on me, except that one Member of the Committee might rise and dare to suggest that the noble Lord (he might describe me in such fashion) should no longer be heard? That would perhaps be troublesome and critical but it would hardly be satisfactory. Certainly it would not be very beneficial. So that course of action would not matter very much.
As I said, this is a wide-ranging problem. It concerns the general question of capital punishment. Would my noble friends not agree that it is quite impossible to arrive at a definite conclusion as to whether or not people should be hanged? This subject is one that in my time has engaged the attention of another place for 60 years or more. It has also engaged the attention of your Lordships' House. No solution has been found. It appears to me that no solution is desirable, for the simple reason that we suspect that no such thing is available. It is very difficult to find a solution.
What is my experience? I have never indulged in any teaching. I have engaged in lecturing of a kind. I would not call it lecturing—it is just talking, and talking, and doing so with no great advantage either to myself or to those who have to listen. I have been taught—but very little. My experience goes back to the occasion when I was under the age of six—probably about five years old—and had left a kindergarten in the East End of London which I joined at three years of age. I joined the Old Castle Street School just off Wentworth Street, known as Petticoat Lane.
624 I remember an incident at that school when I was placed in a standard which was far higher than that to which I had been accustomed. The class was quite above my standard. I did not know what they were talking about. I was presented with an exercise book. I was supposed to write something but did not know what. I did something of which I am still ashamed. I cannot avoid thinking about it sometimes. I looked over the shoulder of the boy sitting in front of me to see what he was writing. In doing that, I moved slightly from my place and was called up by the headmaster. He was a great big fellow with one of those Glasgow brogues. There could be nothing worse than that to a child of my age at that time.
I did not know why the headmaster had called me out. He said that I was interrupting the proceedings. I was only trying to find out what the work was all about, because nobody had told me. The master told me to hold out my hand, which of course I did. He struck it with a strap. I did not like that a bit. What I disliked still more was him. Ever since, I never forgave him for what he did to me. I do not know whether that was the cause of some of the troubles I encountered in later life, but that incident convinced me not long afterwards that if someone was going to injure me, or to try to injure me, then I would protect myself.
How was I going to do that? Although I was quite young, I bought an old-fashioned punching ball which I set between two doors. I punched it and punched it. I also bought a pair of small boxing gloves. I remember those boxing gloves very well. I was asked to join a small band of my chums down at Rothesay on the Isle of Bute. I took no luggage with me. I took only my boxing gloves. When I arrived, I discovered that I could not get any supper unless I was prepared to box and show what I could do. I did the best that I could. Then I had to lie down in a tent and I used my boxing gloves as a pillow. In any event, I was determined that I would prevent people from injuring me. That led to an awful lot of trouble later.
I say to all my noble friends that I rise to agree with every one of them. The noble Baroness, Lady David, would naturally speak as she did—with sympathy, with compassion, and with a desire to help. Of course we love that sort of thing, but I can understand also the views of the noble Lord, Lord Roberthall, who is one of the finest educationists we still have left in this country. It is a delight to hear from him from time to time; I sometimes wish that we heard more from him. I find it a little difficult to agree with the noble Lord, Lord Harmar-Nicholls, but the Committee would hardly expect me to do so, anyway. I hope that he will forgive me.
What are we to do about this problem? I will tell your Lordships: very little indeed—except to behave better. I have been reading in the newspapers (I noticed an article in the Standard today by a certain writer) and have been hearing quite frequently recently, because of what happened in Brussels, horrifying things which I detest and find distasteful. Because of that, I remind myself of a speech I ventured to make at the request of the noble Viscount the Leader of the House on the occasion of my one hundredth birthday.
In that speech—and after listening to nine colleagues I found it difficult to talk—I mentioned that I did not concern myself, and did not advise those present to 625 concern themselves, so much with policy in respect of the future of this country. I have said many times and I have written many times (and I have been paid for writing about it) that it is not policy but behaviour. That is what this country needs—behaviour. It needs consideration for other people: not allowing oneself to be pushed around but not trying to push other people around.
I once wrote a book. Some people complained quite a lot about the book. I made a lot of money out of it, I may tell your Lordships. It was called, Conflict Without Malice. I was as mischievous as I could be and I was as clinical as I could be with all sorts of people, even with myself—I was self-critical—but there was nothing malicious about it. I say to noble Lords that although sometimes I disagree with the other side of the House and even with the Cross-Benches (though not so much there), and even with the Liberals and those in the Alliance who ran away from us in the Labour Party, there is no question of malice, nor should there be, in this assembly of ours. We are too dignified, too traditional and too useful to this country and we should carry on in the way we have done.
Of course we make mistakes; of course we shall be criticised; of course there will be demands for our abolition; but we will carry on just the same as do the pigeons in Trafalgar Square. We are as the Trooping the Colour and various other traditions in this country. I repeat that we can talk and talk about it as much as we like. God bless your Lordships, but we will find no solution.
§ Baroness Elliot of Harwood
I regret that I was not here for the Second Reading of this Bill, because I should have liked to speak on it. I spoke on the Bill put forward by the noble Baroness, Lady Wootton, because I have always been and always will be passionately opposed to corporal punishment and to the death penalty. I have always opposed corporal punishment and no Government will ever persuade me that it should be a part of our education system. Corporal punishment is degrading to the child and to the man who administers it. In my experience, it does not make children any easier to manage, but rather worse.
I have had experience as chairman of an education committee for a great many years. Corporal punishment does not promote good relations between teacher and pupil. The idea that some schools may opt out and some allow corporal punishment is quite silly. I cannot understand how any schoolteacher or headmaster could allow this diversity. I do not believe that even parents have the right to beat their children. There is today too much cruelty to children, and this only encourages it. Therefore I support the amendment.
§ Baroness Cox
I begin by emphasising the point that the reason for the Bill is to secure compliance with the ruling of the European Court of Human Rights which obliges us to change our law in order to respect the rights of parents—parents who have a philosophical conviction against corporal punishment.
626 One response would have been to enforce abolition of this sanction of corporal punishment, which is the purpose of the amendment we are currently discussing. The Government believe that this would be wrong: partly because we believe that moderate and reasonable corporal punishment can be an appropriate sanction and, perhaps much more importantly, because we know that many parents and teachers share that view. I remind your Lordships of a recent poll in February of this year which showed that about 63 per cent. of parents interviewed favour the use of corporal punishment in schools and only 33 per cent. of parents favour abolition. Similarly, a sample poll of teachers in 1984 showed that over half of those interviewed are in favour of retention compared with, again, just one-third in favour of abolition.
Reference has been made to other English-speaking countries and European countries who have abolished the use of corporal punishment. In order to put the record straight I remind your Lordships that many other English-speaking countries retain the sanction of corporal punishment, including many of our Commonwealth countries such as Canada and Australia and many states in the United States of America.
Moreover, the European Court's ruling does not require abolition. It is concerned with respect for philosophical convictions. Another possibility of complying with that ruling could have been the creation of corporal punishment and non-corporal punishment schools—a dual system. I was glad to note that this found no favour with the noble Baroness, Lady David, on Second Reading because of the enormous practical difficulties, and that is a point of view which we share.
With the decision that it would be undesirable, in the Government's view, to enforce abolition, and having acknowledged that a dual system would be impracticable, we had only one other choice—an examption system. It is for that that the Bill provides. In schools which wish to use corporal punishment the Bill will give parents the right to say whether or not their children should be liable to the sanction. Some schools will decide not to introduce exemption arrangements and they will therefore automatically become non-corporal punishment schools. That will be their choice and it is right that they should be able to gauge for themselves the practicality of retaining the sanction in the light of their own circumstances. That would be a choice based on professional judgment. I emphasise that it is an essential point of the Government's case that we believe we are trusting the professional judgment of teachers and that this is much to be preferred to legislation imposing an enforced ban. I also point out that some of the teachers' unions—those mentioned by the noble Baroness, Lady David, such as the Professional Association of Teachers and the NAS/UWT—do not advocate an enforced abolition.
An exemption system has been criticised as being unfair. In our view that criticism is over-stated. There are differences now in the way in which pupils are treated: for example, where they are in adjacent schools, within the same school or even within the same class. Some mixed schools exempt girls from corporal punishment and most schools will exempt 627 Schedule 4 [Highways]:
Lord Fanshawe of Richmond moved Amendment No. 61:
Page 105, line 21, leave out from ("shall") to end of line and insert ("become a trunk road according to the provisions of the Highways Act 1980 subject always to the prior publication of the findings and recommendations of the relevant assessment study.")
§ The noble Lord said: I realise that my noble friend has told us that this matter may have been overtaken by the events earlier in the evening but I still would like the opportunity for my noble friend to be aware of the very real feeling which has caused the putting down of this amendment. I should also like to hear my noble friend's reply because it might have a slightly different effect on the main amendment which was moved earlier, Amendment No. 58C. My amendment empowers the Secretary of State to order any metropolitan road to become part of a national trunk network, and it is provided in the Highways Act 1980 that a draft order must be published, time for consideration must be given and a public inquiry held; and this Bill at the moment, prior to recent events earlier in the evening, removes the safeguard. I was endeavouring to incorporate it. I believe the incorporation of this safeguard is still needed, even if the appearance of a new body having the functions of a highway authority under the Highways Act 1980 in respect of metropolitan roads does take place. I should state at this moment that I am not in favour of such a body. I would like there to be an inquiry, and for the local authorities to take over these roads.
§ My interest is that for nearly 25 years I was Member of Parliament for Richmond, which includes an area where the A205, or South Circulr Road as it is more usually known, crosses the area of Richmond, Kew, Barnes, and South London. Over a quarter of a century I have seen a major increase in traffic of which noble Lords on all sides of the Committee who know that part of London will be aware. To describe the narrow lanes and suburban streets in Kew, the lower Mortlake Road, Clifford Avenue, Upper Richmond Road and the traffic that spills out into Barnes High Street would take a very long time, but it is important that noble Lords on both sides of the Committee should be aware of the problem.
§ The situation has been acknowledged by successive Ministers of all parties. There is nothing new about it. It is not a party political issue. Indeed, the noble Lord, Lord Carmichael, sitting opposite, and I debated this matter in another place some years ago. It is acknowledged by Ministers from both parties that the situation is very grave and has to be dealt with, but so far no Government, and certainly not the GLC, have managed to cope with this major hazard in the streets of South London.
§ I wholeheartedly support the Bill. I gave evidence to the Marshall Inquiry in 1977 pressing for the abolition of the GLC. I think that the lack of interest by the GLC in the South Circular Road and, indeed, in the roads throughout London, over the years that the GLC has been in existence, is to be deplored. I always pressed in the other place for action to be taken to remove responsibility for these roads from the GLC 628 so I am in a slightly different position from other noble Lords in the Committee this evening. I should like to see responsibility for these roads, the South Circular in particular, to be passed to the local boroughs. In this case it would be the London Borough of Richmond upon Thames, which will be only too glad to take it over.
§ 9.45 p.m.
§ In any case, whatever occurs there should first be an inquiry. Why do I say this? Your Lordships may not be aware that the fears and the feelings in the area of the South Circular Road are very intense. The emotion, which may not be justified but is there, is that action might be taken to widen the roads and destroy the environment along the route of the A205. As I said earlier, this includes narrow lanes and small suburban streets where the traffic flows at great speed. In many cases heavy juggernaut lorries are using roads which are not more than 14 feet wide. The fears of the residents have increased over the past few weeks. Householders, shopkeepers, old people, and mothers are worried. Some have been encouraged to agitate for political reasons. On many occasions fears have been raised quite unnecessarily, but the fears are there and should be recognised.
§ The locally elected people who are responsible for the area, both on the borough council and on the GLC, led by local Members of Parliament including, in particular, Jeremy Hanley, who led a determined and skilled campaign in Richmond, have made this clear to Ministers. If it has not been overtaken by events tonight I ask my noble friend to look very carefully at my proposals.
§ The Secretary of State initiated an assessment study and its findings will be given consideration. I hope that they will be put before any inquiry which might be set up under the 1980 Act, if the Minister agrees that such action should take place. Again, I stress that there is no reason why such an inquiry should not take place, even on transfer to a new body.
§ I should like to make one other point. Many of us complain, worry and grumble about the state of traffic on the South Circular Road, but one should ask: is there an alternative? I think that there is an alternative which this Government have looked at and previous Governments have considered but which the GLC has never put into action; that is, the possibility of a West London relief road—a road built on stilts, running over the railway between Olympia and Battersea. I understand that a study on this point by my noble friend's department is now under way. Perhaps my noble friend can give me an assurance that if this relief road was made, responsibility for the South Circular Road, as it is today, the A205, can be transferred to the local borough council. This is something on which I should welcome my noble friend's comment.
§ As the Committee will realise, I have this evening concentrated on one area and on one road. I think it brings an essential humanity to the issue, which perhaps is needed here tonight. As for some roads, the Secretary of State may have a case for ownership and 629 trunking but it surely must be incumbent on him to establish it by means of a public inquiry. I hope that there will be some support from the Committee tonight for this amendment. I should like to hear the Minister's reply. I should also like to know in detail how the voting and the result of the Division on Amendment No. 58C affects my Amendment No. 61. I beg to move.
§ Lord Ardwick
I said on my noble friend's amendment that I thought it gave a better and more radical solution to the problem raised by this Bill than the amendment to which I have put my name. It seems that this is true. If it proves to be the case that the Department of Transport is not to have this absolute power to trunk in London at will, then the residents along the South Circular Road will feel very much relieved. There have been many meetings and protests. There has been a great deal in the local press. There have been many letters. We have had lots of personal letters. People are frightened of what might happen.
The South Circular Road is a very peculiar road. In fact, there is no such thing as the South Circular Road. There are roads which are supposed to comprise it, which wind through the suburbs, through the shopping centres, past the schools and either fringe or divide the parks and commons. By following the signposts labelled "South Circular Road" it is possible to pick a way through South London with many twists and some loops and thus find one's way from Kew to Woolwich. Italy was once described as not so much a nation state as a geographical expression. I may say the South Circular is not so much a road as a topographical expression, the mere indication of a route.
I live on the edge of Putney Common. The South Circular Road is about 200 yards away. Over the years, we have been threatened with one motorway scheme or another. These threats have been beaten off by the vigorous action of the residents, always supported and very often led by their elected representatives. Here we thought the threat was really alive again because the Bill, as it now stands, though we are now trying to amend it, enables the Secretary of State to take over an additional 65 miles of roads in London and, by order, to make them into trunk roads irrespective of the wishes of those who live on or near such thoroughfares. We are horrified at what might be done to our suburb if the South Circular were to be trunked.
The danger was very well seen by 13 amenity societies which are watching this debate with great interest. They are 13 amenity societies which cover the districts from Kew, through Richmond, Wandsworth, Streatham, Norwood, etc. They have a very clear insight into the powers that would be vested in the Minister if this Bill were to pass with this part unamended. As they say in a letter to me:He would dispense with all the normal safeguards for the public, of public consultation, rights of objection and, if necessary, a public inquiry.In the weeks that have been leading up to this, we have been told in the representations that have been made that to designate a road as a trunk road is no more than a change of name and ownership. It implies 630 nothing, it is said, in the way of future development. The Ministers who gave this assurance are right. One is not challenging their good faith. But the department itself is more forthright. Last year, there was a public inquiry concerning changes that were to be desired on the North Circular Road. The department's representative described the policy in regard to trunk roads. He said:The Government's policy is that trunk roads in London serve an essential purpose in providing the connections between inner London and the national motorway network. Their adequacy is a matter of national concern".That is quite right. He said nothing about the fact that it is also a matter for local concern. He added that,the proposed addition to the London trunk network following abolition of the GLC will make this strategic network coherent and complete".The man from the Ministry went on to be even more specific:The Government is carrying out a programme of improvements to the existing trunk roads in London and is considering priorities for the new roads for which it intends to accept responsibility. These improvements should encourage"—note these words—more of the longer distance traffic to use these roads".That is exactly what we fear. Up with the juggernauts! Carry on, car commuters! Already, as the noble Lord, Lord Fanshawe, has said, there is an unacceptable heavy volume of traffic passing along the residential and shopping streets that comprise the so-called South Circular Road. And there is this danger looming up of increasing the traffic load. The people of south London are haunted by fears that they will meet the same fate as befell others in regard to the North Circular Road, which became a trunk road many years ago. The Department of Transport has upgraded that road step by step. As it has improved one stretch of road, that has attracted increased traffic so that further stretches of the road have proved inadequate. Still further schemes have been necessary to meet the new volumes.
At present 30 per cent. of the North Circular Road is still single carriageway. When the department's schemes are completed, none of it will be. At present, 27 per cent. of the road is dual carriageway with junctions at different levels. When the schemes are completed, 86 per cent. of this road going through north London, often between suburban houses and sometimes between factories, will have the standard very nearly of a motorway.
I looked at the road only this weekend. I have often driven along it, but I looked at it then from the point of view of people living along it. It must be hell. Down the middle is erected a great iron fence, sometimes with greenery growing up it which alleviates matters slightly. However, I am not trying to exaggerate when I say that it reminded me a little of the Berlin Wall. Certainly, it divides one community from another. To cross the road, people have to go 300 or 400 yards to a bridge. Ministers insist that no plans exist to improve the South Circular Road as a through route. Good! No plans perhaps, but what of aspirations and intentions? Ministers come and Ministers go, while departments remain for ever with their inexorable long-term aims and aspirations.
631provided at a place other than a school, by anyone other than a teacher employed by a local authority; or (b) corporal punishment has been given to a pupil by a member of staff and at the time the punishment was given, the pupil was exempt from corporal punishment by him, giving the punishment cannot be justified on the ground that it was done in pursuance of a right exercisable by the member of staff by virtue of his position as such.").The noble Lord said: This amendment concerns the authorisation of corporal punishment where it is for those children for whom it is permitted. The debate that we have had so far, not only on Second Reading but on the first amendment, has provided clear evidence that what we are talking about is something which is to be taken extremely seriously. One of the problems and the disadvantages on the side of those who are still in favour of corporal punishment is that in the past it has been administered where it has been allowed rather too freely, laxly, easily and without control. This amendment is designed to make certain that it is administered only by head teachers or by teachers acting on the authority of the head teacher—that is, teachers who have been authorised by the head teacher to administer it.
I think that there is very little argument against the amendment. An amendment which was produced in another place at an earlier stage on this matter was reasonably sympathetically received by the Government who said that they would take it away and look at it again. Apparently, after having looked at it again, they did not come to any positive conclusion, but we in this Chamber look forward to hearing what decision they have come to. Certainly at that time their defence of their position, their resistance to the amendment, was not particularly well-founded. The Under-Secretary of State concerned said that once we began to introduce questions about the head, or the LEA, giving delegated authority, we would run into practical difficulties. How was the delegated authority to be given? What would happen when some or many of the staff were away from school because of illness and other special circumstances? The school would find its own way round these difficulties by giving delegated authority to all its teachers and thus the intention of the amendment would be thwarted.
It seems to me that those arguments are not really of much substance. How is the delegated authority to be given? It presumably could be given as a general instruction, which would be known to all members of the staff, as to which teachers had authority to administer corporal punishment. Alternatively, if it was given merely to specific teachers in specific circumstances, it could be given in writing. There does not appear to be much difficulty about it. As to what happens when some or many of the staff are away from school because of illness or other special circumstances, I think both sides of the Chamber are joined in admiration for the teachers in our schools system. None of us could possibly imagine that the whole proceedings of the school would be baffled by this.
As I say, the Government said that they were going to look at this matter. I look forward to hearing what they have to say. I am quite clear that we ought to take the administration of corporal punishment seriously and we ought to require the schools to take it seriously. 632 If that is so, it means that head teachers should be responsible for all corporal punishment which is given in their schools. Although certainly in larger schools they should be able to delegate the authority, ideally it should be delegated to only a limited number of people and therefore kept strictly under control.
Perhaps I may say that with this amendment goes the amendment which deals with the Scottish situation; that is, Amendment No. 39.Amendment No. 39: Clause 5, page 5, line 24, leave out from ("staff") to end of line 31 and insert ("other than a head-teacher or teacher acting on the authority of a head-teacher, or in relation to a pupil for whom education is being provided at a place other than a school, by anyone other than a teacher employed by a local authority; orI beg to move Amendment No. 2.(b) corporal punishment has been given to a pupil by a member of staff and at the time the punishment was given, the pupil was exempt from corporal punishment by him,giving the punishment cannot be justified on the ground that it was done in pursuance of a right exercisable by the member of staff by virtue of his position as such.").
§ Lord Skelmersdale
Before this discussion proceeds any further, may I ask the noble Lord, Lord Beaumont, whether he is speaking also to Amendment No. 8 with Amendments Nos. 2 and 39?
§ Lord Beaumont of Whitley
No. I did not think I was speaking to Amendment No. 8. Amendment No. 8 provides that corporal punishment shall only be given by the head teacher of any school. Our amendment is that corporal punishment should be given by head teachers and people acting with the authority of the head teacher.
§ Lord Houghton of Sowerby
This Bill is concerned with what we do about a decision of the European Commission of Human Rights. This is the only reason we have this Bill at the present time. A judgment of the Commission of Human Rights has required us to decide the extent to which we will implement the decision of the European Court. There are three ways of doing that. One way is to carry out the full implication of the decision of the commission and abolish corporal punishment altogether. A second way is to accept the judgment of the commission, so far as it goes, but comply with it to the minimal extent. A third way would be to comply with the decision of the European Commission to the maximum extent, short of complete abolition. The Government have decided on the minimal compliance with the judgment of the commission. As I said, they accept it, as far as they want it to go, but they do not believe in it.
It seems to me that all the discussion henceforth on this Bill will be on what kind of a job we are going to make of the compliance, as reflected in this Bill, with the judgment of the European Commission of Human Rights. I think we must all be impressed by the fact that we are getting into something of a mess here because there are so many problems which optional compliance with the judgment of the commission will create. This amendment is justified on the ground that if we are going to accept the judgment of the commission in any degree at all, we should do it to the 633 maximum extent, even if we feel that we must stop short of complete abolition. That is what this amendment seeks to do. It puts the responsibility for inflicting corporal punishment into the hands of senior members of the staff.
Listening to the debate we have just had, it seems to me that there are many misunderstandings about the position of parents in relation to corporal punishment. For example, the noble Lord, Lord Alexander, talked about the position of teachers being in loco parentis. Teachers are not in loco parentis. The term "in loco parentis" is used in the explanatory notes on the Bill but not in the Bill itself.
It seems to me that the truth of the matter is that under the common law position parents have not delegated their full authority to teachers. Under the common law they have submitted to the right of a teacher to use corporal correction to maintain order. That really is the sum and substance of what teachers are allowed to do by virtue of the position they hold. We are dealing with a common law doctrine. It will remain a common law doctrine, even when this Bill is passed.
I think we were all attracted by the clarity and simplicity of the explanation given by the noble and learned Lord, Lord Denning. He brought his incisive mind to bear upon the complexity of this problem in order to tell us what we are trying to do. The more we go through this Bill, the more we shall find that partial implementation, minimal implementation, of the judgment of the Commission of Human Rights will lead us into many difficulties and complexities of administration and possibly of the law.
As a matter of fact, we have not yet finished with the European Commission on this matter because there are cases pending which raise other issues. One of them is in relation to degrading treatment, for which apparently there is no remedy in law in this country. Yet in Article 3 of the convention there is a reference to degrading treatment and cases will be taken on that basis to the European Commission. We have to make up our minds whether we are going to try to do the best job we can on this or whether we are going to fall back into all kinds of difficulties. For that reason I support this amendment because I think we now want to fix the responsibility for the exercise of corporal punishment under the provisions of the new law. I think that is where we ought to stand.
§ Lord Denning
I too support the amendment, for this reason. Accepting what we have just decided, there are a number of children who will be exempt from corporal punishment. What is the result of that? Corporal punishment, in the eyes of the law, can be an assault for which at the moment the child or its parents can sue for damages in the courts. That will be an action which the parent or the child can bring in the courts. Once he is beaten in school, he can sue for damages. Hitherto the answer of the masters has been "Over the years this has been the ordinary practice of schoolmasters and people in the course of their profession". That is not to be the answer where the parent or child sues and then there is no justification because of exemption. This exemption ought to be 634 clearly stated and the circumstances in which corporal punishment can be inflicted should be made as clear as possible.
This amendment seeks to say that no teacher can inflict corporal punishment unless it is the head teacher or someone properly authorised. In other words, the law ought to be clear on this matter, and this amendment would help in that direction. Therefore, I support the amendment.
§ Baroness David
For the same reason as the noble and learned Lord, Lord Denning, has given, I support this amendment. I am sorry to say that we are left with a Bill which we consider to be unworkable, and I think it is our duty during the rest of this Committee stage to try to make the Bill that little bit better, more understandable and perhaps rather safer in its working.
§ Baroness Cox
The Government believe that it would be wrong to impose this restriction on the right of a member of staff to use corporal punishment. Each teacher has in loco parentis responsibilities (or, in Scotland, vested rights). The noble Lord, Lord Houghton, implied that they do not have in loco parentis rights. The answer is that in England under common law they do have them, and similarly in Scotland in loco parentis rights are vested in them under common law by their position as teachers. Those responsibilities carry with them the duty to care for pupils and the right to use reasonable and moderate corporal punishment. The Bill will have no significant effect on that position.
However, to introduce questions about the head or the local education authority giving delegated authority we believe would give rise to many practical problems. Concern has been expressed about practical problems involved in the implementation of the Bill, and it seems that this amendment itself would create practical problems. For example, how is the delegated authority to be given? What happens if, because of illness or some other special circumstances, the school's staffing level is temporarily depleted? In the interest of expediency a blanket authority might be given to all the teachers, thereby thwarting the intention behind the amendment.
It has also to be remembered that the Bill covers the actions of a greater range of staff than teachers. For example, matrons, boarding staff and others will also have in loco parentis rights and responsibilities, and their right to resort to physical chastisement—always provided the parents have not opposed the use of corporal punishment—should not be lightly removed.
While the Bill was being considered in Standing Committee in another place the definition of "member of staff" ' was the subject of some debate. Therefore, the Government later expanded the definition to make it plain that the Bill was not intended to imply that any member of staff—for example, a caretaker—could lawfully resort to corporal punishment. It is now clear that the right applies only to teachers and others who have lawful control or charge of pupils in the sense of having in loco parentis responsibilities. I hope that the noble Baroness, Lady David, and the noble Lord, Lord Beaumont, will withdraw this amendment, which we believe would cause practical problems.
§ Lord Stewart of Fulham
I have been trying to get on with this. As I have said, this is still my speech, although there have been five interventions. I rose only because it has been represented to me from several quarters that there is deep and widespread feeling against the powers that the Secretary of State is given in the Bill to declare roads trunk roads without any of the usual safeguards. I was interested in the matter because I am acquainted with both ends of the South Circular Road. When I was a small boy in south-east London, I attended a school which was bang on a road which is now part of the South Circular Road. It was considered, even in the days when I attended that school, to be a rather dangerous and busy road. The school is still there and is still used, and the idea of its becoming a trunk road is extremely undesirable. More recently in my life, I have become acquainted with west London. Although the South Circular did not run through what used to be my constituency, it runs very near it; and there is other provision in the Bill for what are called "designated" roads that will affect roads in almost any part of London. The point in every case is that the Secretary of State is given almost arbitrary powers about them.
When we were debating Amendments Nos. 58C and 58D the whole burden of the Government's argument was that we should trust and admire the borough councils. Now we are being told that their wishes can be completely overridden and orders declaring trunk roads can be made without any of the rights and safeguards they used to have.
§ 10.15 p.m.
§ Lord Stewart of Fulham
I do not think so. The noble Lord seems to make up his constitutional doctrines as he goes along. I am afraid that they do not carry very much conviction with us.
I did not want to say more about this matter, but I know that there is widespread feeling against it. The Bill as it stands gives quite arbitrary powers to the Secretary of State and the rights of the boroughs and the districts in these matters ought to be restored.
§ Lord Fanshawe of Richmond
In view of the advice of the noble Lord the Deputy Chairman, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 62 not moved.]
§ Lord Tordoff
I am sorry to intervene again. The fact is that we have been told which amendments on this side of the Committee have been ruled out of order. It 636 would be useful to know which amendments on the Government's side are also out of order in the same context. Perhaps the noble Lord could give us an indication of these.
Lord Brabazon of Tara moved Amendment No. 62A:
Page 106, line 42, after ("(2)") insert ("Subject to sub-paragraph (4) below")
§ The noble Lord said: I am assured that this amendment is still in order. I can say it is purely a technical amendment to close a gap in paragraph 56 of Schedule 4, which deals with the agency agreements between metropolitan county councils and my right honourable friend the Secretary of State. Under these agreements, the MCCs act as agents for my right honourable friend in carrying out maintenance, improvement or construction work on trunk roads and motorways. As drafted, paragraph 56 provides that these agreements may be transferred by order to a successor local authority and that any agreement not so transferred will cease to have effect on abolition.
§ It may be that on 1st April 1986 there will still be payments outstanding from the Secretary of State for work done by an MCC before abolition or other sums due under the agreement. Equally, as a result, for example, of over-requisitions which the MCC had already received in advance of work being done, sums may be due to my right honourable friend the Secretary of State under the agreement. It would clearly be unsatisfactory from the point of view of both the MCC's ratepayers and the Secretary of State either to transfer such rights and liabilities to the local authority which is to inherit the agency agreement or simply to allow them to terminate.
§ The amendments accordingly provide for the residuary bodies established under Clause 55 to step into the shoes of the MCCs with respect to such outstanding rights and liabilities. This will enable the MCC ratepayers to benefit fron the sums due and for the Secretary of State also to be able to receive outstanding payments. I hope your Lordships will support this amendment, which will ensure that both parties to the agreements are fairly treated. The need for the amendment is not removed by your Lordships' decision on Amendment 58D since the MCCs will cease to be the Secretary of State's agents upon their abolition.
§ On Question, amendment agreed to.
Lord Brabazon of Tara moved Amendment No. 62B:
Page 107, line 14, at end insert—
(" (4) All rights of a metropolitan county council arising from or in connection with any such agreement as is mentioned in sub-paragraph (1) above to receive payments from the Secretary of State and all liabilities of such a council arising as aforesaid to make payments to him (being rights and liabilities attributable to anything done or omitted under or in respect of any such agreement before the abolition date) shall be transferred on that
date to the appropriate residuary body; and accordingly as from that date any such agreement shall have effect as respects such rights and liabilities as an agreement between the Secretary of State and the appropriate residuary body.")
§ On Question, amendment agreed to.
§ Schedule 4, as amended, agreed to.
§ Schedule 5 [Road traffic]:
The Deputy Chairman of Committees
In calling Amendment No. 62C, I should point out to the Committee that I cannot call No. 63 and that it is uncertain as to whether No. 62C can be called.
Lord Tordoff had given notice of his intention to move Amendment No. 62C:
Page 116, line 48, leave out sub-paragraph (1) and insert—
(" (1) For the purpose of securing the expeditious, convenient and safe movement of vehicles and other traffic, including pedestrians, and having regard to—
§ The noble Lord said: Before saying "Not moved" in respect of this amendment, I want to say that should changes be made to this Bill at a later stage then, like the noble Lord, Lord Fanshawe of Richmond, in connection with his amendment, I would wish to being this back at a much later stage.
§ [Amendment No. 62C not moved.]
Lord Carmichael of Kelvingrove moved Amendment No. 63:
Page 117, line 3, leave out lines 3 to 8 and insert—
§ The noble Lord said: The purpose of this amendment is to ensure that the Secretary of State carries out meaningful consultations before designating a road and that the majority of borough councils to whom the roads belong agree with him on the policies to be adopted for them. Without such approval, the Secretary of State would be able to impose his policies on borough roads without local people being able to say how the roads should be run.638
§ The Secretary of State can, by order, designate any borough road, not just ex-GLC metropolitan roads, for the purpose of facilitating the movement of traffic. He must consult with the boroughs in which the road is located, other boroughs he considers affected by the designation and any other body which he deems fit. But he, the Secretary of State, will have the final decision.
§ This category of designated route will be linked to London, and the Secretary of State has indicated that some 350 miles of borough roads will be categorised in this way. He does, however, have the power to extend the network at any time on these roads which form more than a third of the mileage of GLC roads which would be handed over. The boroughs will be unable to introduce any measures which prohibit, restrict or regulate traffic or parking without the approval of the Secretary of State. The same will apply to any other road if measures introduced on it affect traffic or parking on a designated route. If a borough undertakes any work on a designated road without the approval of the Secretary of State, then the Secretary of State can reverse or modify the work, as he sees fit, and charge the borough for the work he has done.
§ Borough councils will not be able to introduce any parking, bus priority measures, cycling facilities, pedestrian crossing facilities, lorry control or road safety measures on a designated or adjoining road if they do not meet the approval of the Secretary of State. He would then effectively be the traffic order-making authority for over half of London's main roads, 200 miles of trunk roads and 300 miles plus of designated roads. This is an unprecedented interference by central Government over local policies and individual schemes. It will lead to delays, bureaucracy, and conflict, but always with the Secretary of State having the final word.
§ The Government claim that the proposals they are putting forward will increase local democracy. I believe this is quite wrong, and the Government must realise it. The proposals represent an enormous increase in central Government control. They reflect the fact that the Secretary of State clearly recognises the need for London-wide co-operation and coordination of traffic planning, yet he is getting rid of the one directly elected authority with the expert teams capable of co-ordination and replacing it by Whitehall centralisation. The House of Lords Select Committee on Science and Technology has spoken out against disbanding these expert teams, and I thoroughly agree with it. I hope that the Committee will accept this amendment. I beg to move.
§ Lord Brabazon of Tara
Before turning to the detail of this amendment I should like, if I may, to explain a little of the background to our proposals. London has some 8,000 miles of roads. After abolition, just under 7,800 miles will be the responsibility of the boroughs, and the responsibility of the remaining 210 miles will pass to the Secretary of State. While the remaining 210 miles of trunk roads known as key routes will form the most important routes for traffic distribution in London, providing links to the national network of trunk roads and motorways, there are about 300 further miles of roads of major importance for traffic movement within London.
639 protect an individual or property they are safe. I still think that subsection (3) is unnecessary. It is set out quite clearly in subsection (2) that it is only for the purpose of punishing:references in this section to the giving of corporal punishment are references to doing anything for the purpose of punishing the pupil".I believe it is unnecessary but I will read what the noble Baroness has said and consider whether or not to come back at Report stage. In the meantime I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 4 not moved.]
Baroness David moved Amendment No. 5:
Page 2, line 3, leave out ("for reasons that include averting") and insert ("to avert").
The noble Baroness said: I shall also be speaking to Amendments Nos. 6, 42 and 43:
Amendment No. 6: Page 2, line 4, leave out (", or an immediate danger to the property of,").
Amendment No. 42: Clause 5, page 5, line 41, leave out ("for reasons that include averting") and insert ("to avert").
Amendment No. 43: Page 5, line 42, leave out (", or an immediate danger to the property of,").
§ The aim is to tighten up the exceptions to the definition of "corporal punishment". As the Minister has not agreed to the deletion of subsection (3), we can still try to improve it. Amendment No. 5 seeks to leave out "for reasons that include averting" and to substitute "to avert". "For reasons that include averting" seems to be a ridiculous and meaningless phrase and it is difficult to understand what it means. I hope that we shall have the help of the noble and learned Lord, Lord Denning, on this. "To avert" is clearer and simpler and there can surely be no objection to that.
§ Amendment No. 6 concerns the protection of property exemption. The existing wording appears to allow, for example, a member of staff to hit a child who is about to damage another pupil's pen, pencil, pencil sharpener or whatever. It could refer to almost anything however trivial. A statute surely should not go in for such loose wording: it should be more precise. I beg to move.
§ Lord Denning
I support the amendment. As the noble Baroness has said, "for reasons that include averting" means that there might be all sorts of other reasons in a personal danger and personal danger might be only one of the minor instances. I should have thought that, for clarity, it would be better to include the amendment because the phrase "reasons that include averting" may include all reasons other than averting personal danger.
§ Baroness Cox
I hope I may be able to clarify this. As I said in responding to previous amendments, subsection (3) is about those actions which a teacher takes to protect property or people. In both those cases such action is, by definition, on the spur of the moment and the precise combination of motivations may be difficult to disentangle. For example a teacher may slap a child—to use an example which has been used—to stop him from running on to a dangerous road, but although the prime motivation may be to 640 avert immediate danger there may be other motives running through the teacher's mind, such as, "If I give this boy a smack to stop him running on to the road, I may also make him think twice about doing the same thing again when I am not here". These mixed motives could be a source of confusion and endless discussion in court.
These amendments also imply that it is wrong to take physical steps to restrain a pupil when the immediate danger is to property rather than to a person. It is difficult to accept that a teacher should stand idly by if, for example, he saw a pupil about to set fire to an empty classroom. He would need to seize hold of the pupil, exempt or not, to prevent him from committing the deed. The wording of the subsection cuts through these difficulties. If one of the motives of the teacher is to avert immediate danger that is enough. The complications of what might have been running through the mind of the teacher do not arise and I hope that that explanation might encourage the noble Baroness to withdraw her amendment.
§ Lord Airedale
The words in the subsection no doubt deal with the difficulties in the Minister's mind, but this is a subsection which lays down what is or is not to constitute an offence. Where we are dealing in this way with the criminal law, Parliament always endeavours to be absolutely precise. To say that it is not an offence if it is done to avert a danger is clear enough. But if one introduces a phrase such as "for reasons which include" that is wide open to definition in different ways by different courts. It is worthwhile coming back on Report, if we cannot have this now, to make this subsection clear and precise because it will become part of the criminal law.
§ Baroness David
I ask the Minister to take this back for further consideration. She has heard what the noble and learned Lord, Lord Denning, and the noble Lord, Lord Airedale, have said and there clearly is dissatisfaction with the wording in the subsection. I should be extremely pleased if she was willing to take it away and possibly write to me or come back with her own amendment at Report stage.
§ Baroness Cox
I accept this as a matter of extreme importance and I have great respect for the reservations that have been expressed. I shall naturally be very pleased to consider the points that have been raised and perhaps will write to the noble Baroness and the noble Lord. I hope to be able to explain and clarify this more effectively than I have this afternoon.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 6 not moved.]
Lord Stewart of Fulham moved Amendment No. 7:
Page 2, line 6, leave out subsection (4).
The noble Lord said: On behalf of my noble friend Lady David I move this amendment and with it goes Amendment No. 44, which is the Scottish equivalent.
Amendment No. 44, Clause 5: page 6, leave out lines 3 to 6.
§ The effect of both amendments is as follows: we have an arrangement in the Bill whereby there is to be 641 a register of pupils who are liable to corporal punishment. The understanding is that pupils on that register can receive such punishment and those who are not on the register are not allowed to receive such punishment. Now we are told in Clause 2(4), or in the Scottish equivalent, Clause 5(4), that if a teacher inflicts corporal punishment on a pupil whose name is not on the register—that is, on a pupil who is supposed to be exempt from corporal punishment—this is not to be an offence. The only action available then to the parents on their child's behalf would be to bring a civil action. There would apparently be no offence committed in law.
§ This is rather an unusual consideration because the Government have gone to all this trouble to arrange for there to be registers, but we are told at the end of the day that even if a child is hit who is regarded as being exempt from being hit the teacher is not committing an offence.
§ This surely is to take the law rather lightly because, if the child is not registered as liable to corporal punishment, it should be regarded as a child not fit for corporal punishment and therefore to take physical action against it would not normally be defensible on the ordinary grounds that the teacher was acting in loco parentis or with the ordinary rights of a teacher or somebody in control of the child. Now we are told that despite the fact that the teacher will have acted in a way which is clearly wrong, this is not an offence. As I say, it is not a very reputable way of regarding the law to say that because in this case the assault is committed against a child by a teacher therefore it shall not be criminal, whereas similar assaults committed against other people, people who are not teachers, would be criminal. This is not a very creditable arrangement.
§ There is this point also. The parent feels that it is wrong that the child should be given corporal punishment after, as he or she has said, "I have explicitly made it known that I do not wish that to happen". We are then told that the teacher has not committed an offence but that if the parent wishes to do so he or she can bring a civil action. That is easier for some parents than for others. It is expensive and the results of it are always in doubt. Further, we have to ask the question whether this will satisfy the Commission of Human Rights. Will they regard it as adequate if Britain says, "We have not made it an offence to give corporal punishment to a child when his parents disapprove of it, but it is always open to the parents to bring a civil action against the teacher"?
§ I wonder whether the Government have taken any advice as to whether that will be regarded by the Commission of Human Rights as a proper compliance with their decision. I believe that the matter was not raised when the Bill was being discussed in another place, so that we have no definite statement from the Government as to what is the legal position. I hope that we may have it because the position is not satisfactory as it stands now.
§ Lord Harmar-Nicholls
I come to a different conclusion from the noble Lord on this. I have every sympathy for what he is asking—to make the law clear and for everybody to know where they stand—but if it is on the register that the parent does not want the child chastised and then, for some special reason, he is 642 chastised, I think that the general circumstances ought to give the teachers the knowledge that they will not automatically be in breach of the law if, in the special circumstances of the particular incident, they take such steps.
I will give the noble Lord the reason why instinctively I come to my different conclusion. When I was holding junior office, on one occasion the police brought out a whole list of things concerning Trafalgar Square where they had said that they wanted to have a regulation which would make it a breach of the law if anybody scratched the plinth or if the water was disturbed or if any of the flowers were broken. If at that stage one had acceded to that request, it would have meant, however innocent the scratch and however innocent the broken flowers and however innocently the water was disturbed on a hot day, someone would automatically have been in breach of the law. The question that I put when I was asked to consider that was, "How do you deal with it now?" They said, "At the minute we have to prove damage and we have to show that there were exceptions". I said, "For my money, you have to go on doing that because if you are asking that in the case of these almost innocent and trivial things people are automatically in breach of the law. I do not think that this is good law".
In this particular instance we are now discussing, if the child is on the list of those of whom parents have said that they do not want the child to be chastised but if children are about to run across a busy road or if there is a potential danger in the laboratory and certain steps are taken, then I believe the discretion of the teacher ought to be left as the Bill seems to leave it. My instinctive reaction, while not opposed to the general feeling that the noble Lord expresses, is that I do not believe that it ought to be too easy, following an innocent action, for somebody automatically to find themselves having committed a criminal offence.
§ 5.15 p.m.
§ Lord Denning
I should like to ask for an explanation of this subsection. I have read it through two or three times and I have been trying to imagine a case to which it applies. I should like to ask the Government what is the case to which it applies. For instance, there are the words:A person does not commit an offence".What offence is being talked of there? There is not an offence mentioned in Clause 1. Is it the offence of assault? What is the offence? I should like that explained. Then I should like a justification of the words:apart from this section".I want to have a case which is being illustrated there by the use of the words:apart from this section".This clause will give the lawyers no end of arguments if it remains in its present state. I would suggest that it be redrafted so as to make it clear to any ordinary individual. For that purpose, I would support the amendment but I think it would be better if instead of the amendment being carried, the Government were to take back the clause, look at it and make it clear.
§ Baroness David
I too had great difficulty in understanding this subsection. I took the advice of two noble and learned Lords in this House yesterday. Their advice to me was that this subsection makes the situation worse than it is at the present moment and that it gives much greater protection to teachers who beat children when they should not than they would get at the present time. It seems to me wrong that the Bill should be doing that, if that is what in fact it means. I think we all want some clarification on this. Perhaps the noble Baroness, if she cannot explain it, will take it back and try to redraft it.
§ Baroness Cox
I hope that on this occasion I will be able to explain it. First, perhaps I may reply to the noble Lord, Lord Stewart of Fulham, who asked whether the Government had taken legal advice. Yes, the Government have taken legal advice and have been told that the Bill as it is now worded fully meets the requirements of the European Convention. I am afraid that the Government cannot accept this amendment because, without subsection (4) of Clause 1, a teacher might be the subject of criminal proceedings simply because of a contravention of exemption arrangements. Perhaps I may amplify that. As the law stands at the moment, a teacher committing a battery on a pupil may face proceedings in a civil court or in a criminal court if the action were to involve immoderate and unreasonable corporal punishment. The Bill does not remove the prospect of criminal proceedings where that prospect now exists, but subsection (4) ensures that no new crime is brought into being by this Bill. In other words, no criminal offence is committed simply by failure to comply with exemption arrangements.
If a teacher were to make an error and inflict reasonable corporal punishment on a child for whom exemption had been claimed the teacher would not thereby become the subject of criminal proceedings. In other words, the remedy provided by the Bill is a civil one and we believe that that is the way it should be. This is because we are surely not talking about criminal actions when considering breaches of exemption arrangements. Civil proceedings are onerous enough and teachers, like most of the rest of the community, are likely to want to avoid such proceedings if possible. I think it would be wrong to expect teachers to take care and control of children and then to expose them to criminal proceedings for contravention of exemption arrangements. I hope that, with that clarification, the noble Lord, Lord Stewart, and the noble Baroness will withdraw the amendment.
§ Lord Denning
I think that I understand from that explanation that a teacher who goes beyond the bounds or whatever it may be is not to be liable for any criminal offence. He is not to be taken to the criminal courts for an assault or anything like that and the only question here is one of civil action. If so, I would hope that this subsection does not involve the committing of any criminal offence, because assault is a criminal offence too.
§ Baroness Cox
Were a teacher to inflict immoderate and unreasonable corporal punishment, then he or she would be subject to criminal proceedings as is the case now.
644 The situation with regard to this amendment is to make sure that were a teacher inadvertently pehaps to apply corporal punishment to a pupil who had been exempt from corporal punishment by parental wish, that teacher would not, for those reasons, be subject to criminal proceedings; but that would be a civil matter.
§ Lord Marsh
Listening to the amendments and the discussion on this Bill it seems to me the most unbelievably bad Bill in its effect that one has ever encountered. Whatever view one takes in terms of for or against corporal punishment, since Parliament has decided to go down this particular path it seems to me that we are in danger of making the position of teachers almost impossible. As I understand the amendment, it places a teacher in a situation where, if he or she—in a moment of anger with a particularly irritating child, and all parents know that all children are at times particularly irritating—slaps it across the leg and it happens to be the child of an over-protective parent, the teacher then finds himself or herself faced with criminal proceedings. That seems to me to be absurd in the extreme. If the teacher uses excessive force on the child, then quite rightly, as with any other person, that teacher is open to criminal proceedings, as I understand it. But to place a teacher in a situation where, for slapping a child across the back of the legs in a matter of irritation or of the moment, automatically he or she is subject to criminal proceedings, is an absurdity, and I would have thought the Bill contains enough absurdity not to increase the quantity.
§ Lord Stewart of Fulham
I must say that the more we discuss this passage I find it more and more difficult to follow. But I have noted what the noble Baroness has said. We may want to return to this at a later stage; but for the present I would ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Somers moved Amendment No. 8:
Page 2, line 10, at end insert—
("( ) Corporal punishment shall only be given by the Head Teacher of any school.")
§ The noble Lord said: This amendment is purely to reserve the action of corporal punishment to the headmaster who is considered to be a responsible person and to prevent its use by other members of the staff who may or may not be responsible people; one cannot tell these days. I think it much wiser on the whole to confine it to the headmaster who will use it justifiably or not as he thinks right. Therefore, I beg to move.
§ Baroness Cox
The arguments which relate to the amendment put forward by the noble Lord in this context are perhaps similar to those which were discussed with regard to the earlier amendments of delegation of authority from a head or from a local authority to other teachers. But I think it could be said that they apply with even greater force to restricting the right to use corporal punishment to the head teacher alone. I think it might help if we remember that the definition of corporal punishment is necessarily broad; a point which we have already 645 made. It covers not just the caning or the use of the tawse but also the much more immediate, ready, and much milder forms of corporal punishment such as smacks or slaps, which is just the kind of physical chastisement which is often used particularly on young children, in, say, primary schools. Some head teachers may by choice reserve to themselves the right to use corporal punishment and if they so decide then obviously that is fine and is fully to be respected. But given the range of staff with in loco parentis rights and responsibilities, the Government believe that it would be wrong to impose restrictions of the kind put forward by this amendment by legislation.
§ Lord Somers
I think I was perhaps unwise enough to confine my interpretation of corporal punishment as being the use of the cane. But of course if it is a matter of merely slapping a pupil's hand, naturally one does not want to confine that purely to the headmaster. Therefore I withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy Chairman of Committees (The Earl of Listowel)
Before I call the next amendment I should draw the attention of the Committee to the fact that if this amendment is agreed to I cannot call Amendments Nos. 11 to 13.
§ [Amendment No. 9 not moved.]
§ The Deputy Chairman of Committees
If the next amendment, No. 10, is agreed to, I cannot call Amendments Nos. 11 to 13.
Lord Somers moved Amendment No. 10:
Page 2, line 11, leave out subsection (5) and insert—
("( ) A pupil shall be exempt from corporal punishment only if, in the opinion of a registered medical practitioner, such punishment would cause him physical or psychological damage, and a certificate from such practitioner has been produced.").
§ The noble Lord said: I move this amendment because of an impossible position in which the teacher will be placed under this Bill as it stands. That is the discrimination in a single class between those who are subject to corporal punishment and those who are not. That makes the teacher's position absolutely untenable. It is essential that either we have all children subject to it—except possibly, as I have allowed for in the amendment, very special cases who I think would be very rare if they existed at all—or none. Personally I would prefer all.
§ While I am moving it, I must say to those noble Lords who are so keen on abolishing corporal punishment that we have this Bill with us. It has gone through the other place and your Lordships have given it a Second Reading so we must go on with it. The only thing we can do is to make what is at present a completely unworkable Bill a workable one. That is what we are trying to do tonight. I beg to move.
§ Baroness Cox
I regret that the Government cannot accept this amendment because it would in effect mean that all school pupils would be liable to corporal punishment unless it were medically certified that such punishment would result in physical or psychological damage. In practice it is doubtful whether most parents would ask their doctors to certify to this effect 646 and whether in fact most doctors would wish to do so. Therefore the great majority of pupils would be liable to corporal punishment regardless of their parents' wishes on the matter, and it is the case that we are obliged, as has already been stated this afternoon, under the European Convention on Human Rights, to ensure in effect that parents' wishes about corporal punishment will be respected. If the Bill were amended in the words which the noble Lord suggests, it would not meet that obligation. I hope therefore that he might withdraw the amendment.
§ The Earl of Onslow
I have been trying not to say this. I think this Chamber and this Parliament is about to make the most ghastly error. To paraphrase, this Bill is exactly the same as the line that gives the mother of the Kray twins the decision whether Reggie should go to Ford Open Prison or to the high security prison in the North of England, Gartree outside Leicester. We are in danger of making the most terrible asses of ourselves on this particular Bill. I do not think I have heard anybody outside the Chamber say a single good word about it. We are voting for it saying: "Well, we don't want to disturb the apple-cart, we don't want to throw things out. We know that we are making a mess. It's just a little Bill so we have to do something about it."
The European Court of Human Rights has put us in a ghastly position. We are now doing something which is nothing short of ridiculous, and the only thing I can say in favour of the situation put by the noble Lord, Lord Somers, is that it makes something which is particularly ridiculous just that much less ridiculous. I am neither anti- nor pro- corporal punishment—I do not feel strongly either way—but I think that in this Parliament and this Chamber we are in danger of making the most frightful asses of ourselves.
§ 5.30 p.m.
§ Lord Somers
I really feel in rather a quandary here because I think it is essential to take out of the Bill that discriminatory aspect of it which is going to make things so impossible for teachers. I am speaking from a little experience—I have been a schoolmaster myself—and I know that that kind of thing would have made life absolutely impossible. Therefore I can only say that if we are so bound to the European convention that we dare not regulate our lives as we feel is best, then on this occasion I think that I must ask you Lordships to express your opinion.
§ On Question, amendment negatived.
Baroness David moved Amendment No. 11:
Page 2, line 13, at end insert ("he has attained the age of five and").
§ The noble Baroness said: This is the first of a number of amendments which aim to remove whole age groups or categories of people from those liable to corporal punishment. This amendment is to exempt all pupils aged under five from corporal punishment. These young children under five are particularly likely to suffer physical damage and to be emotionally upset if they receive corporal punishment. The relevant professional organisations are strongly opposed to corporal punishment for very young children, for example the Pre-School Play Groups Association, the 647 British Association for Early Childhood Education and so on.
At present the Bill allows parents of children attending nursery schools and classes maintained by local education authorities to opt them out. But it does not appear to cover other forms of pre-school education, even those supported by public funds. A later amendment, No. 16, seeks to extend the scope of the Bill to day nurseries and other pre-school provision.
Anmendment No 16: Page 2, line 30, at end insert—
(iv) at a day nursery or other provision for children aged under five maintained or assisted by a local authority,").
That amendment will obviously not be moved if this amendment succeeds. I do not think that the Parliamentary Secretary put up at all a convincing case when he argued against this amendment at Committee stage in another place. He said at col. 57 on 20th February:
I cannot accept that central Government should seek to force teachers to abandon corporal punishment for this or any other group of pupils. After all, it is the parents and the teachers who together know these children best, and if the parents believe that their children should not be liable to corporal punishment, the Bill gives them the absolute right to claim an exemption.
This Bill seems to me to put at risk precisely those children who most need protection: the ones perhaps whose parents beat them about a bit at home. I feel most strongly that no child under five should be beaten at school or play group, or whatever form of activity they attend. I beg to move.
§ The Countess of Mar
I find myself in a most terrible quandary here. We have had the definition of what corporal punishment is: in other words, it can be a slight tap or a good hiding. Having been a mother myself, I am well aware that a child will go to put a finger behind the bar of an electric fire, and you give the child a tap and if the child does the same thing again you tap it a bit harder. What on earth is a teacher in a nursery school to do with a youngster under five who is inquisitive—and there is something wrong with it if it is not—and the child will keep going back and back to something which is dangerous to the child itself. I think we must be very careful how we define corporal punishment, particularly with the under-fives.
§ Lord Marsh
I should like to follow that point, if I may, because many of the contributions that we have had on this subject have contained emotive words such as "beating" and "flogging". Quite frankly, any teacher who beats a child who is under five in any accepted way should certainly be fired and probably prosecuted, and I suspect that he would be found guilty under the law. If corporal punishment is a question of smacking children, probably sometimes in their own interests, and we are really getting to the level of saying that that must not even be allowed then I think it is an absurdity. One of the problems is that people are defining corporal punishment in the way most of us tend to think of it and, as I understand it, that is not the way it is defined in the Bill. I repeat the point that with some children some rather tougher punishment has an effect, but I think anyone who is 648 talking about very small children being beaten is living in a world which none of us would want to be a party to.
§ Baroness Cox
As the noble Baroness, Lady David, has said, these amendments are seeking to restrict the range of pupils liable to corporal punishment, even though their parents may be perfectly content to agree to the sanction. In this particular case the ideal would be to impose a ban on any form of corporal punishment in any maintained nursery school and nursery classes and even on under-fives in primary schools. The smack on the leg or the hand would not be allowed in the light of these amendments.
It is a fact, surely, with which everyone would agree that children under five (and indeed any children) can sometimes behave very badly, and although we would all accept that those who teach and supervise them would obviously exercise the care appropriate to the age of their charges, we cannot accept that central Government should force those teachers to abandon corporal punishment altogether for this or for any other group of pupils.
We must be prepared to respect the professionalism of teachers and those who have the care of young children. I am a little worried about the implied lack of faith in the professionalism of these teachers which underpins the sense of these amendments. Therefore I hope the noble Baroness and others who support the amendment would accept that decisions should be left with parents if they wish their young children to be exempted, and that they will trust members of the teaching profession and those who have the care of young children; and that they will therefore withdraw these amendments.
§ Baroness David
I should like to say to the noble Countess, Lady Mar, that teachers would be perfectly all right if they prevented a child from burning itself or doing damage. That would not come into the question at all. I still feel it is very distasteful for corporal punishment, however described (and it is described as a battering in the Bill) to be applied to children under five. However, I will read what the noble Baroness has said and reserve the right to come back on this at a later stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Stewart of Fulham moved Amendment No. 12:
Page 2, line 13, at end insert ("he has not attained the age of 16 and").
The noble Lord said: On behalf of my noble friend Lady David, I beg to move this amendment and with this are the related Scottish amendments, Nos. 47, 65 and 67.
Amendment No. 47: Clause 5, page 6, line 12, leave out ("18") and insert ("16").
Amendment No. 65: Page 8, leave out lines 7 to 10 and insert ("a parent of the pupil").
Amendment No. 67: Page 8, line 12, leave out ("or, as the case may be, himself").
§ The effect of them would be to make children over the age of 16 exempt from corporal punishment. This is a very different line of argument from that which we have been pursuing in regard to the under fives. In the 649 first place, presumably one must admit and say to the noble Lord, Lord Marsh, that, unless it is serious, there is no point in corporal punishment at all if one is dealing with someone under the age of 16. We are therefore dealing with severe corporal punishment. The question is whether that is really a sensible way of dealing with young people of this age.
§ It is noticeable—we shall revert to this in a different connection later—that the law in Scotland is that a 16-year-old is entitled to decide for himself whether or not he will be liable to corporal punishment. That is why we bring in three Scottish amendments. The whole process is a little complicated because we have to deal with the problems at present in Scotland, where the 16-year-olds can decide for themselves. The net effect of the amendments I am proposing would be to make 16 the maximum age at which anyone can be regarded as liable for corporal punishment.
§ The question is: at what age are you going to start treating a young person as a young man or a young woman rather than as a boy or girl? I think we must all recognise that the age at which we do that is now rather earlier than it would have been, say, 20 or even 10 years ago. We ought nowadays to be able to treat young people of 16 as entirely responsible people for whom this kind of sanction would not, on any line of argument, be appropriate. We have to remember that at the age of 16 they can legally contract a marriage. There are several other things that legally they can do at this age and it becomes an absurdity to regard them also as being liable to corporal punishment.
§ The alteration in the Bill we are asking for here is therefore not a very great one. It is true that at the beginning of these Committee stage debates we were arguing a major question about corporal punishment as a whole. We have to accept the decision which the Committee has taken on that. But I think we should now address ourselves to this much smaller question of whether it is appropriate to use corporal punishment on people who have already attained the age of 16. I think one would find that the majority of people who have to do with the education of young people of that age would say that it really ought not to be necessary once they reach the age of 16. I hope the Committee will come round to that view.
§ Lord Harmar-Nicholls
Is this not really a point that we should leave to the discretion of the teacher? We have now apparently accepted the general principle that under certain circumstances corporal punishment will be doing the right thing for the pupil and for the general system we want to support. It is perfectly true that a lot of people are very adult at 16 and a teacher would be a bit stupid to think in terms of doing to a 16-year-old what he would do to an eight- or nine-year-old. Let him use his discretion on that. If the pupil is the sort of person for whom, however mildly it is done, corporal punishment would not achieve the discipline the teacher wants, the teacher would find some other form of punishment to try to achieve the discipline.
I do not think we in this Committee or those in another place ought to try to define every circumstance as specifically as that and lay it down exactly when and how the judgment of the teacher can be used. I should have thought this was the case. The 650 general principle having been accepted in the Bill—we accepted it at Second Reading and we have defeated amendments since—I should have thought that the question of age was a matter that we ought to leave to the teachers.
Or is it? Perhaps I am being very naughty again; and I often am. But if we exempt the under-fives, is it a matter of trying to defeat the general principle of the Bill by this gradual softening up? Having accepted the Bill, let us not be too clever in the parliamentary tactics. Let us leave some responsibility to the people who are there and who have to face the tune when they make their decisions.
§ Lord Marsh
I find this such an extraordinary Bill that it is difficult to develop a particular theme with it. I find that I have a great deal of sympathy with the amendment, for two reasons. First, I think it quite wrong that a teacher may be placed in a position where he is expected by his employers to administer physical force to people who are bigger than he is. I come from the state system and on the whole I have never been in favour of hitting people who are as big as I am or even bigger—only people who are much smaller. Therefore on a quite serious point I think it is asking too much that that be expected of the teacher, if that is the tradition of the school.
Secondly, if the child is over the age of 16, there is an additional sanction which does not exist before then, which is that he is past the statutory leaving age and can be expelled. In my view, teachers are entitled to say, if they have a large lout who is uncontrollable, that he should be excluded from the school and somebody else must look after him. I am bound to say that with all the other things that this Bill does and the problems it poses to the teaching profession, if we place many more responsibilities on teachers in respect of trying to keep law and order in the school, I think they will resign en masse.
§ The Earl of Onslow
Presumably under this Bill the teachers are actually going to be able to flog adults when they are over 18. My son is 18 next week and he may need flogging, but that is a different question altogether. Will teachers under this Bill still be able to flog adults? It seems a rather odd way to behave.
§ The Countess of Mar
I have to agree with the noble Lord, Lord Stewart of Fulham. In fact I should like to see the age lowered. I shall never forget that at the tender age of 14 my father "clocked" me one round the ear and I, completely without thinking, hit him back and I knocked him over. This is going to happen with kids in school. I think girls particularly resent being hit and the instinct is to hit back. I have very little doubt about that. My husband is a teacher and my previous husband was also a teacher, and I have seen it done. I think that to expect teachers, in some circumstances, to hit children of 16 and over who are young people by that time is ridiculous.
§ Baroness Cox
Perhaps I may respond very briefly by reiterating that of course parents and teachers have 651 an important disciplinary function for this age group, as for any other age group. We, in the Government, believe that we should not rule out the occasional use of corporal punishment for this age group, if this is what seems appropriate to those people who are directly involved with the situation on the spot. I am sure schools will continue to rely on the development of self-discipline as distinct from imposed discipline, but there may well be times when imposed discipline is necessary. Truly, we must and can trust the professional judgment of the teaching staff on the spot rather than make their decisions for them. Therefore I am afraid again we cannot go along with those who would wish to enforce a ban. There are many circumstances when a 16- or 17-year-old may indeed deserve and may receive corporal punishment. If the school has the authority through the Bill to use corporal punishment, why should we stand in the way of that school if it regards corporal punishment as the appropriate sanction?
The schools, of course, can always use other sanctions if they seem more appropriate. For example, the sanction of expulsion is always there for this age group. But I would hope again that we would trust the teaching profession and would not seek to impose a ban on them which would prohibit them from undertaking what seems to them to be the appropriate sanction in the particular situation in which they find themselves, confronting problems of disorder and indiscipline.
§ Lord Stewart of Fulham
I must say the noble Baroness always phrases it very charmingly, but she is rather obstinate about this. I listened in some respects to the arguments that were advanced about the under-fives, but this really does not seem to make sense. At present, if you are in Scotland, the lad over 16 can always avoid corporal punishment by deciding to exempt himself from it. Why should you insist that there must be the right to inflict corporal punishment on over-16s in England, although it cannot be done in Scotland? I really cannot make sense of this. I should have thought that if we are to have a Bill of this kind at all—and I share the view of the noble Lord, Lord Marsh, that it is rather unfortunate that we are having it at all; indeed I think this is everybody's view really, including the Government's—we might take the opportunity to clear up one or two anomalies, and one is this anomaly between English and Scottish law about the over-16s. I cannot feel that the case has been made out and I should like to test the opinion of the Committee on this amendment.
§ 5.48 p.m.
§ On Question, Whether the said amendment (No. 12) shall be agreed to?
§ Their Lordships divided: Contents, 91; Not-Contents, 100.653
|DIVISION NO. 3|
|Airedale, L.||Bank, L.|
|Allen of Abbeydale, L.||Beaumont of Whitley, L. [Teller.]|
|Aylestone, L.||Bernstein, L.|
|Birk, B.||Kilmarnock, L.|
|Blease, L.||Kinloss, Ly.|
|Blyton, L.||Listowel, E.|
|Boston of Faversham, L.||Longford, E.|
|Brockway, L.||McGregor of Durris, L.|
|Brooks of Tremorfa, L.||McNair, L.|
|Bruce of Donington, L.||Mar, C.|
|Campbell of Eskan, L.||Marsh, L.|
|Carmichael of Kelvingrove, L.||Melchett, L.|
|Cledwyn of Penrhos, L.||Meston, L.|
|Collison, L.||Molloy, L.|
|Darcy (de Knayth), B.||Munster, E.|
|David, B.||Nicol, B.|
|Davies of Leek, L.||Ogmore, L.|
|Diamond, L.||O'Neill of the Maine, L.|
|Donaldson of Kingsbridge, L.||Onslow, E.|
|Elwyn-Jones, L.||Parry, L.|
|Ennals, L.||Perry of Walton, L.|
|Ewart-Biggs, B.||Pitt of Hampstad, L.|
|Ezra, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Fisher of Rednal, B.||Prys-Davies, L.|
|Fulton, L.||Raglan, L.|
|Gallacher, L.||Rea, L.|
|Galpern, L.||Ritchie of Dundee, L.|
|Glenamara, L.||Ross of Marnock, L.|
|Graham of Edmonton, L.||Sainsbury, L.|
|Greenway, L.||Seear, B.|
|Hampton, L.||Shaughnessy, L.|
|Harris of Greenwich, L.||Shinwell, L.|
|Hatch of Lusby, L.||Somers, L.|
|Henderson of Brompton, L.||Stallard, L.|
|Heycock, L.||Stedman, B.|
|Houghton of Sowerby, L.||Stewart of Fulham, L.|
|Hylton, L.||Taylor of Blackburn, L.|
|Hylton-Foster, B.||Taylor of Mansfield, L.|
|Jacobson, L.||Thurso, V.|
|Jacques, L.||Tordoff, L.|
|Jeger, B.||Whaddon, L.|
|Jenkins of Putney, L.||Wilson of Langside, L.|
|John-Mackie, L.||Winstanley, L.|
|Kagan, L.||Wootton of Abinger, B.|
|Airey of Abingdon, B.||Gray of Contin, L.|
|Alexander of Tunis, E.||Gridley, L.|
|Arran, E.||Grimthorpe, L.|
|Belhaven and Stenton, L.||Hailsham of Saint Marylebone, L.|
|Belstead, L.||Harmar-Nicholls, L.|
|Birdwood, L.||Hemphill, L.|
|Blake, L.||Holderness, L.|
|Boyd- Carpenter, L.||Inglewood, L.|
|Brabazon of Tara, L.||Kaberry of Adel, L.|
|Brookeborough, V.||Kemsley, V.|
|Brougham and Vaux, L.||Kinnaird, L.|
|Buckinghamshire, E.||Kinnoull, E.|
|Burton, L.||Kintore, E.|
|Caccia, L.||Lauderdale, E.|
|Caithness, E.||Layton, L.|
|Cameron of Lochbroom, L.||Long, V. [Teller.]|
|Campbell of Alloway, L.||Lyell, L.|
|Cathcart, E.||McAlpine of Moffat, L.|
|Chelwood, L.||McAlpine of West Green, L.|
|Coleraine, L.||McFadzean, L.|
|Cork and Orrery, E.||Macleod of Borve, B.|
|Cox, B.||Margadale, L.|
|Craigavon, V.||Massereene and Ferrard, V.|
|Craigmyle, L.||Maude of Stratford-upon-Avon, L.|
|De La Warr, E.||Milverton, L.|
|Drumalbyn, L.||Monk Bretton, L.|
|Elliott of Morpeth, L.||Monson, L.|
|Ferrers, E.||Montgomery of Alamein, V.|
|Ferrier, L.||Moyne, L.|
|Fortescue, E.||Murton of Lindisfarne, L.|
|Fraser of Kilmorack, L.||Newall, L.|
|Gainford, L.||Norwich, Bp.|
|Glenarthur, L.||Nugent of Guildford, L.|
|Gray, L.||Orkney, E.|
|Orr-Ewing, L.||Stamp, L.|
|Pender, L.||Stockton, E.|
|Portland, D.||Stodart of Leaston, L.|
|Quinton, L.||Sudeley, L.|
|Rawlinson of Ewell, L.||Swinfen, L.|
|Renton, L.||Swinton, E. [Teller.]|
|Richardson, L.||Terrington, L.|
|Romney, E.||Tranmire, L.|
|St. Aldwyn, E.||Trefgarne, L.|
|St. Davids, V.||Vaux of Harrowden, L.|
|Sandys, L.||Windlesham, L.|
|Sempill, Ly.||Yarborough, E.|
|Sharples, B.||Young, B.|
|Skelmersdale, L.||Young of Graffham, L.|
|Smith, L.||Zouche of Haryngworth, L.|
§ Resolved in the negative, the amendment disagreed to accordingly.
§ [Amendment No. 13 not moved.]
§ 5.57 p.m.
Baroness David moved Amendment No. 14:
Page 2, line 18, at end insert—
(") No pupil in respect of whom a statement of special educational needs is maintained shall be shown in a register as liable to corporal punishment.").
The noble Baroness said: This amendment covers another group of children whom we wish to exempt and these are pupils with statements of special educational needs. This group is particularly vulnerable. Even the most ardent supporters of corporal punishment hesitate over advocating it for handicapped children. When the Education Act 1981 was being discussed the noble Baroness, Lady Young, said:
I believe that the use of corporal punishment on handicapped children is wrong"—
! believe that one would find that good practice would make clear that corporal punishment applied to handicapped children must be wrong".
In response to the DES consultation which preceded this Bill, the Voluntary Council for Handicapped Children—an umbrella group representing all the organisations working in this field—wrote:
We are convinced that the use of corporal punishment is inappropriate for any children in school and particularly undesirable when a child may have a disability or special needs".
The Royal College of Psychiatrists, in a memorandum to the Government wrote:
Children who are suffering from handicap, emotional disturbance or severe deprivation are possibly the most likely to receive it and the most likely to be harmed".
RADAR responded to the consultation:
We would emphasise our objection to corporal punishment of any kind. We believe that in no circumstances should physically disabled children be subject to corporal punishment, as not only is it an inappropriate method of maintaining discipline but may also physically harm the child concerned".
§ No organisation working with children with special needs favours the use of corporal punishment. While the integration of children with special needs into ordinary schools is increasing, the overwhelming professional view is that the potential dangers of using corporal punishment are too great a risk. As some children will be exempt because of parental preference, there can be no argument against this amendment for singling out children with statements and making them feel different. The present position is 654 that only 12 of the majority of LEAs which retain corporal punishment have banned the beating of handicapped children.
The Government's arguments against a similar amendment discussed in Committee were unconvincing. While it is true that local authority policies on making statements may vary, all children with severe disabilities and all those attending special schools will have or should have statements under the provisions of the Education Act 1981 The Parliamentary Under-Secretary said in another place:
While by and large teachers do not use corporal punishment on children with special educational needs, to ban the use of this sanction entirely could be undesirable. I think that the Committee will accept that as a major point".
I totally fail to see that it is a major point and feel it is no argument whatsoever against the case, which I think is strong, with all those different organisations feeling very powerfully for this amendment, which I beg to move.
§ 6 p.m.
§ Baroness Cox
Naturally I have great sympathy with the thinking behind this amendment. It raises sensitive issues and I believe a sensitive approach is needed in any discussion on it. But I also believe that the amendment would be undesirable in itself and because of variations in the way education authorities work in relation to statements it could well lead to inconsistencies. Perhaps I may explain.
I think it is undesirable in itself because teachers must know—they know very well—when they are dealing with pupils who need special care. A pupil with special needs—a statemented pupil—could however be someone with a slight hearing problem or someone who manifests serious behavioural and social problems. The teachers know that they must respond to each individual child. They know the pupil and they know the circumstances of each child and what is the most appropriate response to him or to her.
By and large teachers do not use corporal punishment on children with special educational needs; but to ban the possibility of its use is to remove responsibilities from the teacher and above all from the parents. Under the Bill parents, who, after all, know the children better than anyone else, have the absolute right to exempt the child from corporal punishment if they feel that is best. The Bill gives them that right and of course they can exercise it. The idea is that they should exercise it. Let us leave the schools and the parents with the joint right to decide. If one or the other decides against corporal punishment, that should be the end of the matter; and, indeed, under the Bill it would be so. So, intrinsically, the amendment is undesirable.
It could also lead in practice to some inconsistencies. For example, in a case where a child is mildly handicapped, the policy and practice of the particular local education authority involved may or may not result in his being statemented. The amendment therefore could cause a child to be affected by, or excluded from, the provisions of the Bill on the basis of criteria which are completely unrelated to the Bill itself. To that extent it would be rather arbitrary.
655 Nor is there a satisfactory dividing line any longer between those in special schools and those in ordinary schools—in other words, in all other schools—because under the Education Act 1981 those pupils with milder difficulties may well be integrated in ordinary schools, but nevertheless be given the protection of a statement. To base exclusion from corporal punishment on whether or not a child has a statement again might not be satisfactory.
Perhaps I may finish by saying that I acknowledge and respect that this is a very sensitive issue, but I believe that in such matters the best course is to leave decisions to those who really know the pupils best. The parents have the right to request exemption; the teachers would use their professional discretion in responding to each individual child. The Bill allows for that. With that recognition of the real sensitivity of these matters, I hope that the noble Baroness will not press this amendment.
§ Lord Beaumont of Whitley
I do not really think that the Minister has managed to answer the case for this amendment. The main argument which I understood the noble Baroness to put forward is that teachers will know the problems of the children with whom they are dealing and they will know which child they ought to be punishing with corporal punishment and which child they ought not. That is a perfectly fair argument; or at least it would be perfectly fair in any Bill except this one. But this Bill has substituted for that judgment the wishes of the parent. I have already said on Second Reading that unlike many of my noble friends I rather support the Government on this, but I cannot see that the Government can have it both ways. If they have substituted the judgment of the parents, it seems to me that they should not be arguing that the teacher should be judging between which child to punish and which not to punish. It seems to me that the case for the amendment still stands.
§ Lord Ritchie of Dundee
I should like to put in a word here. The noble Baroness, Lady Cox, said that teachers always know and will always have the right information about when a child is handicapped or not. In my experience of teaching handicapped children this is not always so. They should know, but they do not always know. A child may exhibit very irritating symptoms such as hyperactivity or aggressiveness which may proceed from medical causes which are known about by the experts but not always by the teacher concerned. One also has to consider that a teacher trying to cope with the difficulties of a large class may well forget in the heat of the moment that this or that child who is being a nuisance is in fact slightly handicapped. I think it is a very prevalent situation. I wish to question very strongly the statement of the noble Baroness that the teacher always knows; first, he may not know and, secondly, he may forget.
§ Lord Harmar-Nicholls
The last two speeches have cancelled themselves out. On the one hand it was said that teachers know; so let them use their judgment and give them the power to do it. Then the noble Lord on the Liberal Bench who said that he supported the Bill on Second Reading said that he did not like the parent 656 provision being brought in. If one faces up to it, if the teacher does not know, the parent will know. If the parent does not know, the teacher will know. To suggest that together they would not arrive at the sort of conclusion which would exempt those who ought to be exempted I find very hard to believe.
On the question of the disabled generally I am a little self-conscious about the line I find I have to take in response to the various amendments that are on the Marshalled List. I truly believe that I am as compassionate as any of those who have put their names to the amendment. I think that in looking after one's own family and from the jobs one has had in the Army and at other times one is as compassionate, as sensitive and as anti-pain as anybody else. But on this subject it is so easy to appeal emotionally. One has only to say that one ought not to slap or inflict corporal punishment on anyone disabled and immediately and emotionally one has the support of everybody who has any decency in them at all.
But in practical terms we all know—I know and I bet noble Lords here know also—that young children who are handicapped are not automatically angels. They are not automatically goody-goodies. In their early days because of their disablement they are given way to (and understandably so) by their parents and they sometimes become a little selfish and difficult. It is hard to say this to people and particularly to children who are disabled because we are expected to love without question, but we have to be practical when we are putting legislation on to the statute book. If it is the general proposition that corporal punishment in the form that it is being defined—not thrashings and not beatings but disciplining by a slap or by other things—is right, to say that because they are disabled in one way or another certain pupils are so different from the others that they must not be treated in the same way is in many ways an insult.
I believe that this is a case where the matter ought to be left to the discretion of the teacher. If it is the case that we feel that teachers are not fit to exercise that discretion, then they ought not to be appointed. In that case, perhaps we should have a Bill that pays more attention to the kind of people we allow to teach our children, so that we will have teachers whose discretion we believe is reasonably sound and can be trusted.
I will add just this. I paid some attention to the European Community and was a Member of the European Parliament for five years, as many of your Lordships know. People are saying that this is a bad Bill. I do not believe that it is a good Bill and I have many criticisms of it. But I find it very difficult to accept that people who are pro-Common Market, to the extent that so many are, can be critical about this being a bad Bill. I find that rather contradictory. This Bill is the only way possible to take into account the feelings of our own country while at the same time paying some regard to the European Court.
I am not prepared to concede that the European Court automatically and necessarily can reflect what is good for this country. I only say that in response to those who seem to be criticising the Government for this being a bad Bill while at the same time applauding things which perhaps started the whole of this trouble.
§ Lord Beaumont of Whitley
The European Court of Human Rights has nothing to do with the EC; it has to do with the Council of Europe. The noble Lord's objection does not really stand up.
§ Lord Harmar-Nicholls
I put them together. The one flows from the other: the Council of Europe and the things it does.
§ Lord Parry
Perhaps we may return to the sensitive issues which were being sensibly debated by the Committee before that natural but slight digression. The issue before us is one we all know something about. Anyone who is a parent knows something about the frustration that builds up in a normal, fit individual. My wife was for seven years running a special unit in a school for very severely physically and mentally handicapped children. At the moment, my daughter is working in such a school and is enjoying herself very much.
The point about the handicapped is the immense frustration that occasionally explodes from them. We are talking about degrees of handicap which range over the whole spectrum. If a person is handicapped then the frustrations which are part of a normal human being burst through in occasional violence. In those moments of violence they are faced with another ordinary human individual, who can be frustrated too at exactly the same moment. It is essential that that situation should be removed as quickly as possible from the one-to-one confrontation to the person in authority.
I have tremendous sympathy for the expression that has come from the Front Bench about this very real problem but I believe the Committee will find that the more experienced the teacher in this particular type of very difficult teaching, the more likely it is that he or she will say, "I would very much prefer this issue to be settled up the corridor". Quite often corporal restraint is a very different thing indeed from corporal punishment—and ought to be.
§ Baroness David
There is one other point we ought to remember when talking about teachers of children with statements. It is that children are now being integrated in normal schools—and possibly even faster than they should be because the teachers there to receive them may not have had the necessary training. They may not understand as much as they should about children with handicaps, whether those handicaps are slight or great.
I am amazed at the arrogance of the Government in imagining that they know very much better than all the councils and bodies which have such experience of dealing with handicapped people—organisations such as the Royal College of Psychiatrists, the Voluntary Council for Handicapped Children, and RADAR. We should respect their judgment and opinions. I am extremely surprised that the Government are being so intransigent about this matter. I feel strongly about this and wish to divide the Committee.
§ 6.14 p.m.
§ On Question, Whether the said amendment (No. 14) shall be agreed to?658
§ Their Lordships divided: Contents, 89; Not-contents, 91.659
|DIVISION NO. 4|
|Airedale, L.||Kagan, L.|
|Ampthill, L.||Kaldor, L.|
|Aylestone, L.||Kilbracken, L.|
|Beaumont of Whitley, [Teller]||Kilmarnock, L.|
|Bernstein, L.||Longford, E.|
|Birk, B.||McGregor of Durris, L.|
|Blease, L.||McNair, L.|
|Boston of Faversham, L.||Mar, C.|
|Brockway, L.||Masham of Ilton, B.|
|Brooks of Tremorfa, L.||Meston, L.|
|Buckmaster, V.||Molloy, L.|
|Campbell of Eskan, L.||Munster, E.|
|Carmichael of Kelvingrove, L.||Nicol, B.|
|Cledwyn of Penrhos, L.||Northfield, L.|
|Collison, L.||Ogmore, L.|
|Darcy (de Knayth), B.||Parry, L.|
|David, B.||Perry of Walton, L.|
|Davies of Leek, L.||Pitt of Hampstead, L.|
|Davies of Penrhys, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Diamond, L.||Prys-Davies, L.|
|Elwyn-Jones, L.||Raglan, L.|
|Ennals, L.||Rea, L.|
|Ewart-Biggs, B.||Richardson, L.|
|Ezra, L.||Ritchie of Dundee, L.|
|Fisher of Rednal, B.||Ross of Marnock, L.|
|Foot, L.||Sainsbury, L.|
|Fulton, L.||Seear, B.|
|Gallacher, L.||Shaughnessy, L.|
|Galpern, L.||Shinwell, L.|
|Glenamara, L.||Silkin of Dulwich, L.|
|Graham of Edmonton, L.||Somers, L.|
|Greenway, L.||Stallard, L.|
|Grimond, L.||Stedman, B.|
|Harris of Greenwich, L.||Stewart of Fulham, L.|
|Hatch of Lusby, L.||Taylor of Blackburn, L.|
|Henderson of Brompton, L.||Taylor of Gryfe, L.|
|Heycock, L.||Taylor of Mansfield, L.|
|Houghton of Sowerby, L.||Thurso, V.|
|Howie of Troon, L.||Whaddon, L.|
|Hylton, L.||White, B.|
|Jacques, L.||Wilson of Langside, L.|
|Jeger, B.||Winstanley, L.|
|Jenkins of Putney, L.||Wootton of Abinger, B.|
|Airey of Abingdon, B.||De La Warr, E.|
|Alexander of Tunis, E.||Drumalbyn, L.|
|Arran, E.||Eden of Winton, L.|
|Auckland, L.||Elliott of Morpeth, L.|
|Belhaven and Stenton, L.||Elton, L.|
|Beloff, L.||Ferrier, L.|
|Belstead, L.||Gainford, L.|
|Birdwood, L.||Glenarthur, L.|
|Blake, L.||Gray, L.|
|Boyd-Carpenter, L.||Gray of Contin, L.|
|Brabazon of Tara, L.||Gridley, L.|
|Brookeborough, V.||Hailsham of Saint Marylebone, L.|
|Brougham and Vaux, L.|
|Buckinghamshire, E.||Harmar-Nicholls, L.|
|Burton, L.||Hemphill, L.|
|Caccia, L.||Holderness, L.|
|Caithness, E.||Hunter of Newington, L.|
|Cameron of Lochbroom, L.||Hylton-Foster, B.|
|Campbell of Alloway, L.||Inglewood, L.|
|Chelwood, L.||Kemsley, V.|
|Coleraine, L.||Kinnaird, L.|
|Cork and Orrery, E.||Kinoull, E.|
|Cox, B.||Kintore, E.|
|Craigavon, V.||Lauderdale, E.|
|Craigmyle, L.||Layton, L.|
|Davidson, V.||Long, V. [Teller.]|
|Lucas of Chilworth, L.||St. Aldwyn, E.|
|Lyell, L.||St. Davids, V.|
|McAlpine of Moffat, L.||Sandys, L.|
|McFadzean, L.||Sempill, Ly.|
|Macleod of Borve, B.||Sharples, B.|
|Margadale, L.||Skelmersdale, L.|
|Massereene and Ferrard, V.||Smith, E.|
|Maude of Stratford-upon-Avon, L.||Stockton, E.|
|Stodart of Leaston, L.|
|Merrivale, L.||Sudeley, L.|
|Milverton, L.||Swinfen, L.|
|Monk Bretton, L.||Swinton, E. [Teller.]|
|Montgomery of Alamein, V.||Terrington, L.|
|Murton of Lindisfarne, L.||Tranmire, L.|
|Newall, L.||Trefgarne, L.|
|Nugent of Guildford, L.||Vaux of Harrowden, L.|
|Orkney, E.||Windlesham, L.|
|Pender, L.||Yarborough, E.|
|Portland, D.||Young of Graffham, L.|
|Rawlinson of Ewell, L.||Zouche of Haryngworth, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ [Amendment No. 15 not moved.]
§ 6.23 p.m.
Lord Beaumont of Whitley moved Amendment No. 16:
Page 2, line 30, at end insert—
(iv) at a day nursery or other provision for children aged under five maintained or assisted by a local authority,").
§ The noble Lord said: This amendment has been tabled because we think that the Bill is defective at this point in a way that, for once, it is not meant to be. The stated intention of the Bill is to ensure compliance with the European Convention and the European Court judgment. Education is provided at public expense at day nurseries and other play groups; and nursery provision receives authority grants—some from social services and some from the LEAs. Surely they should be covered by the Bill. At present the Bill covers only nursery schools and classes maintained by LEAs. I beg to move.
§ Baroness Cox
The Bill does provide for an exemptions scheme covering all maintained schools, as the noble Lord said, including nursery schools and nursery classes. The Bill is concerned with provision under the Education Acts and, as such, does not apply to day nurseries. Therefore the Government must resist the amendment.
We appreciate that education authority staff may sometimes be employed at day nurseries and that amendments may be needed to seek to deny such teachers the right to use corporal punishment, but we need to see this in context. In the absence of a ban on corporal punishment for day nurseries as a whole it would be invidious to impose a selective ban on its use by education authority employees who are a part of the day nursery staff and who are faced with much the same situation as the colleagues with whom they work. Therefore the Government do not see any merit in extending the provisions of the Bill to cover the small number involved.
§ Lord Beaumont of Whitley
I am far from convinced by that answer that the Government have really looked at the problems and are quite clear that they are going to be covered. However, I do not think that 660 much good would be done by going further into it at this moment. I merely hope that the Government will consult their lawyers again before the Bill finally passes through your Lordships' House.
§ Baroness David
Would not the noble Baroness be willing to take this back to see whether it can be discussed with Ministers to ascertain whether they can look more favourably on this amendment?
§ Baroness Cox
I would naturally be willing to consider what has been said and, should it seem to be helpful, I shall write to the noble Lord if I can add anything to what I have already said.
§ Lord Cledwyn of Penrhos
With great respect to the noble Baroness, writing to the noble Lord is not sufficient. I have listened to a great deal of this debate and, if I may say so, the noble Baroness is comporting herself with great skill. Nevertheless, there are moments when one feels that it would be helpful if she would be prepared to take matters back to think about them and consult with her right honourable friend.
We are in difficulty on this and other matters, and the votes in the Committee have shown that this is not a party political matter but that there is deep feeling throughout the Committee on these issues. The amendment moved by the noble Lord, Lord Beaumont, is so reasonable that I consider it would be proper for the noble Baroness to say that she will consult with her right honourable friend and come back at a later stage.
§ Baroness Cox
I accept that this is an important point and, without giving any commitment, I undertake to consult further.
§ Lord Beaumont of Whitley
I am most grateful to the noble Baroness. I think she is not only generous but also well advised on this particular occasion. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness David moved Amendment No. 17:
Page 2, line 33. after second ("provided") insert ("or assisted").
The noble Baroness said: With this amendment I shall be speaking also to Amendments Nos. 18, 23, 28 and, on the Scottish side, Amendments Nos. 53, 54, 55, 58 and 63.
Amendment No. 18: Page 2, line 34, leave out ("education").
Amendment No. 23: Page 3, line 21, leave out second ("education").
Amendment No. 28: Clause 3, page 3, line 42, leave out ("education").
Amendment No. 53: Clause 5, page 6, line 30, leave out ("school").
Amendment No. 54: Page 6, line 30, after ("provided") insert ("or assisted").
Amendment No. 55: Page 6, line 31, leave out ("education").
Amendment No. 58: Page 7, line 21, leave out ("education").
Amendment No. 63: Page 7, line 37, leave out ("education").
§ In a way, this amendment has some similarities to the previous amendment. It is to ensure that pupils receiving education provided by, or assisted by, local authorities—not only education authorities but, for instance, community homes with education—are included in the scope of the Bill. At present the Bill does not cover children and young people whose 661 education is being provided other than at school at public expense by local authorities other than the education authority: for example, the social services committee in the case of community homes with education.
§ The amendments are intended to widen the scope of the Bill to cover such pupils. The amendments include those in community homes with education, observation and assessment centres, intermediate treatment centres, private and voluntary children's homes with education on the premises and those pupils being educated on the premises of residential care homes, private nursing and mental nursing homes.
§ The numbers are not insignificant. Probably over 10,000 children and young people are involved. Some but not all of them will be in care. Others will have been placed by parents, under health or mental health legislation. A recent amendment to child care law specifically enables community homes to accommodate children not in care. It is quite clear that to comply fully with the implications of the European Convention parents—both natural parents and local authority or voluntary organisation parents for children in care—must be able to opt their children out of corporal punishment.
In Committee the Government suggested, and I quote from col. 63:
It would be inappropriate in a Bill defining an exemption scheme for institutions acting under education legislation to attempt to encompass other types of institutions".
I do not really think that the Minister should have shrugged this matter off in this manner because it is an extremely important matter. I think we must remember that corporal punishment in borstals was stopped in 1967, so that it should remain in community homes with education seems more extraordinary. The Education Act 1981, for example, concerned with the education of children with special needs, places quite specific duties on the social services and health authorities. There seems no reason why the Bill's scope should not be widened to ensure full compliance with the European Convention and the European Court judgment.
§ 6.30 p.m.
I have a letter from the London Boroughs Children's Regional Planning Committee in which the principal adviser, John Ogden, writes:
I am writing to express concern that the Bill's definition of 'pupil' seems to omit a number of children who are the concern of the social services departments.
Although some of the children will be covered by other children's homes regulations, there are others who do not even have that degree of protection. Even those covered by the children's homes regulations would not be protected in the way that is envisaged by this Bill. There is a danger that there could be one standard for children in care who attended LEA schools and a different standard for children in care receiving education provided by social services in a community home".
I think that this is a very important amendment and it would be very unfair to the children in community homes with education in particular if this amendment were not agreed to. I beg to move.
§ Baroness Cox
As we are all well aware, this Bill is related to the provisions under the Education Acts. It 662 does not extend to day nurseries nor to community homes with education, because neither comes within the responsibility of education authorities. Community homes with education are established under social services legislation, and education in them is part and parcel of social services provision. Therefore, it would be inappropriate, in a Bill defining an exemptions scheme, for provision made under education legislation to attempt to cover these homes.
Perhaps, however, I can offer the noble Baroness some reassurance by pointing out that the use of corporal punishment in community homes with education is currently being considered. At present, DHSS are reviewing regulations for various types of children's homes. That review will have regard to such implications as may arise under Article 2 of the First Protocol to the European Convention on Human Rights under which the Campbell and Cosans case was brought. Bearing in mind the fact that that review is under way, I hope that the noble Baroness might withdraw the amendment.
§ Baroness David
Can the Minister tell me whether that review will be made public? Will it be finished by the time we reach the Report stage of this Bill?
§ Baroness Cox
I am afraid I cannot give the noble Baroness the answer at the moment, but I can write to her as soon as possible.
§ Baroness David
In the light of that information, I think it would be wrong to press this amendment at the moment. But it is one that we feel very strongly about, and so it will certainly come back at Report stage unless there is some favourable information reaching us before then. At the moment, I beg to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 18 to 20 not moved.]
Lord Stewart of Fulham moved Amendment No. 21
Page 2, line 39, leave out ("eighteen") and insert ("seventeen").
The noble Lord said: I should like, with my noble friend Lady David, to move this amendment. Previously I was urging an amendment that would have made 16 the maximum age at which anyone would be liable for corporal punishment. That having been defeated, I am now asking the Government to consider whether 17 ought not to be the right age. There are quite solid reasons for doing that. If one looks for a statutory justification of the general view that parents have a right to use corporal punishment on their children, we find this in the Children and Young Persons Act 1933, Section 1(7):
Nothing in this section shall be construed as affecting the right of any parent, teacher, or other person having the lawful control or charge of a child or young person to administer punishment to him".
There you have a statement in a statute of the right of teachers, parents and persons in lawful control of children to administer punishment to a child or young person.
§ The same Act defines a child as somebody who has not yet reached the age of 14, and a young person as somebody who has reached the age of 14 but not yet 663 reached the age of 17. The statutory right then appears to be to administer punishment to those who are under 17. This Bill as it now stands, which makes 18 the maximum age, seems to appear to be actually raising by a year the age at which young people can be made liable for corporal punishment. Is that sense? Is that what the Government intended?
§ I hope we shall not be told that it is essential to leave to the teachers' judgment what you should do to a 17year-old who misbehaves. After all, the Government are engaged in trying to put on the statute book a Bill which every organisation of teachers, every professional organisation, has told them is a thoroughly bad Bill. So one really gets tired of hearing the Government say in answer to every argument put forward, "We must trust the teachers' judgment". If the Government trusted the teachers' judgment, they would not be introducing this Bill at all. So let us dismiss that one straight away.
§ Now there is this serious point that at present there appears to be a legal right of those in control to administer punishment to people under 17. Why, therefore, should we in this Bill have a maximum age of 18 rather than 17? It does not seem to be sense. Also, I think we should remember that at the age of 17 a young man can join the armed forces. He can be not merely a cadet or boy soldier, but a fully fledged member of the army. Is it really sensible to say that people of that age ought to be liable to corporal punishment in schools? I do not think it is.
§ I wish the Government would consider this one. There cannot be a solid reason for it. I can imagine what is in the noble Baroness's brief; it is a paragraph headed with the word "Resist". Then after that come the reasons for resisting. I know because I have seen that kind of document myself. But there are occasions when a Minister, of whatever rank, should suddenly say to himself or herself, meeting that word "Resist", "Why should I? There may be some sense in what is being said on the other side of the House". It really is not good enough to go on with the stock piece of recitation.
§ I repeat, therefore, that 17-year-olds are considered to be fit to fight for their country, to take on all the responsibilities involved in being soldiers. They are not regarded as either children or young persons, and apparently they are not regarded as being liable to corporal punishment by their parents. Why then, in this Bill, should we have the limit of 18? I ask the noble Baroness most earnestly to look at this. I hope that if she cannot give us a favourable reply now, at least she may say that the Government will reconsider this matter seriously before the Report stage arrives.
§ Baroness Cox
The noble Lord will have a certain amount of sympathy with me as he knows what it is like to have a brief which says "Resist". But I hope I have shown, during the course of this debate, that I listen and I am prepared to take very seriously the arguments which are put forward. As I understand it, the noble Lord is concerned with the relationship between the Bill and Section 1 of the Children and Young Persons Act 1933 and its Scottish equivalent. Section 1 of that Act concerns cruelty to a person under 16 and has no relevance to youngsters over that 664 age. For them, the fact that subsection 1(7) safeguards the common law right of those having lawful control or charge of a child or young person to administer reasonable and moderate corporal punishment is immaterial. Section 1 is about protecting those under 16 from cruelty.
The right of persons who are in loco parentis to use corporal punishment on minors in their care—the right with which we are today concerned—is quite separate and is a common law right. It applies in respect of any minor—that is anyone under 18. Therefore there is no case for substituting an age lower than 18 in Clause 1 of the Education (Corporal Punishment) Bill as the noble Lord has argued.
I would perhaps add one further point. Clause 1 restricts the in loco parentis right to use corporal punishment on pupils as defined in subsection (6). Limiting the upper age limit for pupils to 17 rather than 18 would have the effect of removing the 17-to-18-year-olds from the scope of the Bill and they would then remain liable to corporal punishment, irrespective of their parents' views. That would be an outcome which I no less than the noble Lord would find unwelcome, albeit perhaps for different reasons. I hope that with that in mind he might withdraw the amendment.
§ Lord Stewart of Fulham
I am not happy with this. It has turned out very much as I thought it would. But I think that on the whole I shall ask leave now to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 22 to 25 not moved.]
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ Lord Houghton of Sowerby
I shall not detain the Committee more than a few moments, but there is one matter that arises on Clause 1 which I think is in need of further consideration, though probably at a later stage in the Bill. So long as we retain corporal punishment, even under the terms of the Bill, we are likely to be at variance with the code of conduct set out in the European Convention on Human Rights and Corporal Punishment. I refer to the troublesome question of Article 3, which says:No one shall be subjected to torture or to inhuman or degrading treatment or punishment".Under Article 26 of the convention those who may be appealing to the European Commission of Human Rights must have exhausted all domestic avenues of redress before any complaint can be admitted to the European Court. Under Clause 1 we still have subsection (4) to which the noble and learned Lord, Lord Denning, scornfully referred earlier in the day. It reads:A person does not commit an offence by reason of any conduct relating to a pupil which would, apart from this section, be justified on the ground that it was done in pursuance of a right exercisable by a member of the staff by virtue of his position as such".In exercising that right the person's conduct may exceed what might be regarded as justified from some points of view, but it may not constitute an offence under the Bill.
There is a case which has been before the European Commission recently on the question of degrading 665 treatment. The British Government sought to divert the case from going to the European Commission on the ground that the applicants had not exhausted their domestic sources of redress. But because of a previous case that was decided in the English courts on the question of degrading treatment where the applicants failed, the European Court decided in the case of Townend v UK on 6th March 1985 that:In the absence of any effective remedy under English law against degrading treatment of a pupil the applicants cannot be said to have failed to exhaust domestic remedies as required by Article 26 of the Convention".So this is now wide open.
If applicants wish to plead that the punishment inflicted upon a child amounts to degrading treatment, they can still go to the European Court for a judgment against the British Government because there is no effective remedy in English law for a charge of that kind. Apparently in English law we have no such thing as degrading treatment, but there is such a thing under Article 3 of the European Convention on Human Rights.
The question is, are we now to have these battles going on? Notwithstanding our attempt to meet the judgment in the case of Campbell and Cosans, which is the main case upon which the Bill rests, we shall still he in conflict with the European Court on the area that we retain subject to corporal punishment. The fact that a parent may not have claimed exemption for the child from corporal punishment does not in any way restrict his right to go to the European Court to complain of a mischief for which there is no remedy in English law. What then in future will be the relationship between ourselves and the European Convention in the troublesome field of the treatment of children in our schools? It seems to me that it will never end if a charge can be brought before the European Commission on Human Rights which has no standing in the English courts.
The one case in which remedy was sought failed. The remedy was sought in the case of a girl of 15 years of age who was seen by a headmaster from his study window to be smoking in the grounds of the school. Smoking by pupils was against the rules of the school. That child was punished by a male headmaster in front of the school, and the parents took the case to the county court for an award of damages, but they lost. They then took it to the European Commission on Human Rights, and it is on the case decided in the English court that the European Commission has decided that there is no domestic remedy in this country for persons who claim that their child has been subject to degrading treatment.
Therefore cases where excessive punishment may have been meted out to a child who has been exposed to corporal punishment by the parents' decision may still go to the European Court for a judgment on the degree of severity imposed. It seems to me that those complexities ought to be borne in mind and we should not be under the illusion that we are making a clean job of it by the clause that we have in front of us.
I conclude by saying that the extraordinary thing about the Bill is that we get down to the technical complexities, devote ourselves to the minutae of 666 administration in schools and every now and again a noble Lord, bursting with impatience and frustration, denounces the whole Bill as silly, ridiculous and unworkable. He then subsides, goes out to recover, we get on with the job, he comes back and there is another outburst. We seem to be debating the Bill in Committee with a mixture of sober consideration of its detail and emotional outbursts from noble Lords who can stand it no longer.
§ Baroness Cox
The noble Lord said that he was prepared to return to this. I recognise the importance of the points that he raises, and in view of the complexity of the issues I shall be taking advice on them. It might be relevant to mention at the moment that we are aware that there are cases before the European Commission of Human Rights in which the claim is made that corporal punishment amounts to inhuman and degrading treatment. But the Government are defending all those cases. Perhaps it is appropriate to say that opponents of corporal punishment should not necessarily jump to conclusions about the outcome of those cases. As I have said, the issues are complex, and there will be an opportunity to return to them. I shall certainly take advice on the important points that the noble Lord raises.
§ Clause 1 agreed to.
§ Clause 2 [Exemption from corporal punishment not ground for suspension, etc.]:
Lord Beaumont of Whitley moved Amendment No. 26:
Page 3, line 27, leave out ("a") and insert ("any particular").
The noble Lord said: Perhaps it would be for the convenience of the Committee, with Amendment No. 26 to discuss Amendment No. 27, and also Amendments Nos. 70 and 71, which are the ones applying to Scotland.
Amendment No. 27: Page 3, line 29, after ("that") insert ("he is exempt from corporal punishment by members of the staff for the purposes of section 1 of this Act, or that").
Amendment No. 70: Clause 5, page 8, line 44, leave out first ("a") and insert ("any particular").
Amendment No. 71: Page 8, line 45, after ("that") insert ("he is exempt from corporal punishment by members of the staff for the purposes of section 48A of this Act, or that if he were not so debarred in those circumstances he would not be adequately amenable to discipline by reason of his being so exempt").
This clause, Clause 2, was inserted by the Government during Report stage in another place. I must say that I rather think they could have spared themselves the trouble because I cannot make any sense of it at all. I do not know whether anyone else in this Chamber, including the noble and learned Lord, Lord Denning, can do so. It seems to me that undoubtedly it is a clause which will provide considerable livelihood to the legal profession. To start with, it has three negatives operating on each other in the main argument:
A person shall not be debarred … on the grounds that, if he were not so debarred … he would not be adequately amenable to discipline".
I am unable to find my way through it. Thus these amendments are really probing amendments.
§ As far as I do understand it, the clause seems ambiguous. Does it mean that LEAs must have at least 667 one school which admits children whose parents opt them out? Alternatively, does it mean that all their schools must not refuse admission on these grounds? Does the clause specifically forbid refusal of admission, etc., on grounds of exemption? Does the clause apply to independent schools? I am not so much asking those specific questions as asking the Government to explain to us and to posterity what on earth the whole thing is about.
§ Baroness Cox
Each part of this group of amendments is rightly concerned with ensuring that this clause, introduced at Report stage in another place, adequately protects a pupil from debarment, under which I include refusal of admission on account of his parents' wish to exempt him from corporal punishment. We are confident that the clause, as it stands, fulfils that requirement, but I should like to comment on the amendments.
The first amendment seeks to replace refusal to admit a pupil to a school because of his exempted status by refusal to admit him to a particular school. For practical purposes the terms are in our view perhaps synonymous. But we must bear in mind of course that parents do not have an absolute right to a place in a school of their choice. For example, the places available may be oversubscribed.
The second amendment seeks to ensure that a pupil's exempt status should not in itself constitute grounds for debarment. We fully subscribe to the sentiment of this amendment and believe that the other provisions of the Bill, together with the regulations, would generally be adequate to meet the situation. For pupils being considered for admission to a school, we will be providing a safeguard through the regulations so that questions about corporal punishment will be put to parents only after the school place has been secured. So far as pupils already in a school are concerned, debarment on account of exempt status would, in the case of a maintained school, constitute unreasonable conduct in respect of which the Secretary of State or the parent could take action. We believe that these factors, taken together with the right of parents to change their minds, would broadly meet the situation.
Perhaps I may say that the Committee may therefore wonder, rather like the noble Lord, Lord Beaumont of Whitley, why the Government decided to introduce Clause 2 at all. I shall explain. We did so as a response to some of the lingering doubts on these issues in another place and in recognition of the possibility that a school might decide to debar an exempted pupil who had been misbehaving badly on the grounds that, being unable to use corporal punishment, they could not control him. We had no wish to stop a school from debarring a pupil if his behaviour was thought to merit such action. Our purpose was to undermine any tendency on the part of a school to bring exempt status into the reckoning whenever the possibility of debarment was under consideration.
We believe, therefore, that the proposed addition to Clause 2, to which the noble Lord has spoken, is not necessary. The grounds referred to in Clause 2 are the actual grounds for the pupil's debarment, not simply 668 the reasons as they may be articulated to the parent by the school. We believe that, although a school may attempt to explain a debarment simply in terms of the pupil having an exempt status, its real grounds might go deeper than that. In our view these real grounds will invariably be those mentioned in Clause 2: that is, that the child will not be adequately amenable to discipline if he has exempt status. For this reason we believe that Clause 2 prohibits debarments which appear simply to be based on the pupil's exempt status.
In our view, therefore, Clause 2, together with the other provisions to which I have referred, will be adequate to prevent schools attempting to evade the legislation by debarring pupils. I trust that, in the light of those explanations, the noble Lord and the noble Baroness may be prepared to withdraw their amendment. Perhaps I may say also that if that explanation has not succeeded in clarifying the situation and it is felt still to be unclear, we would perhaps be willing to take advice on drafting to make it more clear.
§ Lord Beaumont of Whitley
I am most grateful to the noble Baroness for her explanations. I still shall have to take it away, put a cold towel round my head and examine exactly Oat has been said and what is the result. I am extremely grateful to the noble Baroness for saying that she will be prepared to have a look at the redraft. I should be grateful if she would look at the redrafting before the next stage. We shall also look at the explanation and what it looks like in the light of that. Perhaps we may come back to this matter at that stage. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 27 not moved.]
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ Baroness David
I spoke to this with the first amendment, the abolition amendment. The other reason I wished to speak to it was to try to find out what it meant. That has been clarified a little—at least, I hope it will have been clarified—by the amendment of the noble Lord, Lord Beaumont. Thus I shall not be speaking to this.
§ Clause 2 agreed to.
§ Clause 3 [Registration of parental views]:
§ [Amendment No. 28 not moved.]
Baroness David moved Amendment No. 29:
Page 4, line 3, at end insert—
("(3A) While regulations are in force, the local education authority may direct the responsible body for any school maintained by the authority not to maintain a register under the regulations in respect of pupils at that school or any class of such pupils.
(3B) Any direction made under subsection (3A) above may apply either to all schools maintained by the authority or to such schools or classes of schools as the local education authority may direct.").
§ The noble Baroness said: The aim of this amendment is to ensure that local education authorities, as well as governing bodies, can abolish corporal punishment in schools which they control. 669 For Scotland, the Bill gives the power to the local education authority to decide whether or not to keep a register, and thus keep corporal punishment. That is in Clause 5, page 8, line 22.
At the Second Reading in another place, Robert Dunn, the Parliamentary Under-Secretary of State, said on 28th January, at col. 106 of Hansard:
The Bill is based upon a principle which should unite every Member of the House—the principle that local education authorities should decide whether to permit the application of corporal punishment in their schools, and those local authorities that so decide will allow school governors and parents to decide the matter in each school".
That seems to be giving it with one hand and taking it back with the other. I do not understand it.
§ However, it does not seem to be the principle on which the Bill is based. This amendment should achieve this principle by specifically giving governing bodies of county as well as voluntary schools the power to decide whether or not to keep a register of pupils liable to corporal punishment and thus to decide whether or not to keep corporal punishment. The Bill appears to override any powers that local education authorities may have to abolish.
At a later stage of the Bill, Mr. Dunn retreated from his statement of principle to suggest that the Bill was neutral over the respective powers of LEAs and governing bodies. However, he also admitted that if asked to choose the Government would favour giving the power to decide to the governing body. The noble Baroness, Lady Cox, echoed the belief that the Bill was neutral when she said at Second Reading on 3rd May, at col. 517 of Hansard:
if a local education authority can legally abolish corporal punishment now, the intention is that the Bill will not allow the governing body to overturn that decision".
§ Without this amendment, the Bill throws into doubt the position of those 23 (soon to be 43) English and Welsh LEAs who have already successfully abolished corporal punishment in the schools they control. It would be quite wrong to leave that position in doubt, with the likelihood of unconstructive legal action between parents, local authorities and governing bodies. The amendment would simply bring the English and Welsh provisions into line with those for Scotland. I take it that, as the noble Baroness said in answer to a direct question from me on Second Reading, the intention is that the Bill will not allow the governing bodies to overturn the previous decisions of the LEA, this amendment will be acceptable to the Government. I beg to move.
§ 7 p.m.
§ Baroness Cox
This amendment would increase the power of local education authorities at the expense of individual schools. At present school articles of government are the means by which responsibility for the conduct of a school—and that includes discipline and corporal punishment—is assigned. These articles of government vary between authorities and sometimes between schools within an authority, but usually they assign ultimate responsibility for discipline to school governing bodies, albeit often in somewhat imprecise terms.
Some articles of government offer LEAs general override powers. That is, they are drawn up so as to 670 give the LEA the power to override the decisions of the governing body. Some LEAs have used such provisions to impose an authority-wide ban on corporal punishment.
Some LEAs have also achieved the same end by using their position as employers. Either through negotiation with teachers' unions or by recourse to general provisions within the teachers' contracts of employment, the LEAs have reached a position where the teachers are left in no doubt that, as employees, they are not expected to use corporal punishment.
That is the background against which this amendment must be considered. It is at present a grey area of overlapping and sometimes conflicting responsibilities and powers. The amendment seeks clarity and certainty. It aims to resolve the issue by giving LEAs the unequivocal right to ban corporal punishment.
I accept that the present position is unsatisfactory and that Parliament should settle the respective powers of headteachers, governing bodies and LEAs in relation to school discipline. But we are opposed to the amendment on two grounds.
First, it sides with the LEAs against the schools. That is not the right direction in which to seek a solution. The partnership between LEAs and schools is complex, but if the Government had to make a choice between giving control of corporal punishment to LEAs and giving it to schools, they would opt for the latter. That would be in line with the Government's reasoned case for a new legislative framework for schools as set out in the recent White Paper Better Schools. The second reason why we are not happy with this amendment is that it tries to tackle the question of corporal punishment in isolation. The issue of corporal punishment is related to discipline and that in turn is related to the conduct of schools; and, indeed, the whole relationship between heads, school governing bodies and LEAs on a wide variety of topics must be considered together. The White Paper envisages a new approach, a rational approach, in which all aspects are considered alongside each other; it foreshadows legislative proposals to bring clarity out of this grey area. That is the context in which changes should be discussed, and I hope that the noble Baroness might understand and perhaps consider withdrawing her amendment on that argument.
Perhaps I may just add this. The noble Baroness referred to the point that I made on Second Reading, when I said that it is not our intention that the Bill should be neutral on this question. But I think we need to distinguish between decisions about the keeping of registers, on which Clause 3 has something to say, and decisions about the use of corporal punishment as a general principle.
The point is that Clause 3 has to place on some party the responsibility for deciding whether a register is to be maintained, and if that party decides that a register is to be maintained, to ensure its proper maintenance. Where a local education authority has taken the prior decision to abolish corporal punishment and has the legal right to do so, a decision by the governing body to keep a register will, in the Government's view, have no practical effect.
§ Baroness David
In order to be absolutely clear, do I take it that those local education authorities which have now banned corporal punishment in their schools will be able to stick to that, whatever the governing body wants to do? May I have a clear answer to that question?
§ Baroness David
In that case, I shall read very carefully all that the noble Baroness has said and reserve the right to come back on Report. However, for the moment I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy Chairman of Committees (Lord Murton of Lindisfarne)
The next amendment is Amendment No. 30. If this amendment is agreed, I shall not be able to call Amendments Nos. 31 and 32.
Baroness David moved Amendment No. 30:
Page 4, line 7, leave out from ("staff") to end of subsection (4) and insert ("unless it appears to the responsible body or, as the case may be, local education authority that—
§ The noble Baroness said: This is an important amendment and its aim is to turn the Bill into an opting-in rather than an opting-out measure, so that pupils would be liable for corporal punishment only when a parent has consented in writing and no other parent has dissented. The opt-out scheme in the Bill as it stands is a recipe for conflicts between parents and school over whether school received an exemption form. Court cases and complaints to the European Human Rights Commission will result. Just such a case is already the subject of a complaint to Strasbourg—the school denied receiving a form signed by the parents saying that their son was not to be caned, and so the parents are now going to court over it.
§ There will be circumstances in which a school may have no indication of parental opposition to beating, but it would be wrong and dangerous to assume that parents have no objection. Exemption forms could be lost in the post, eaten by the caretaker's dog, or mislaid by children if they are entrusted with taking them home. Many things could happen to those letters: the school may have the wrong address for the pupil; in some circumstances pupils may be moving around, staying first with one parent and then another, and then perhaps with grandparents; some parents will know little English or be illiterate; some parents never reply to any school communication. Surely children of such parents need particular help and understanding rather than being liable to corporal punishment.
§ The opt-out scheme will imply that very many parents do not in practice have the rights guaranteed under the convention. This is an important amendment and it will ensure that the people who are on the register are really those who are willing to have 672 corporal punishment inflicted on their children. I am careful not to say beating and flogging. I beg to move.
§ Lord Airedale
I should like to support this amendment. Those of us who think that the time for corporal punishment in schools in this country is now over and that anyway our friends in Europe quite soon will drag corporal punishment out of our schools, should like to see the general rule that in the meantime there shall not be corporal punishment in schools, except in those cases where parents have signified in writing that they consent to having their children subjected to corporal punishment.
§ Baroness Phillips
As an ex-teacher, I feel that we must get this Bill into some perspective. One has the picture of teachers beating children up and down the corridors in every school every day. Nothing could be further from the truth. In fact, judging from my experiences in 20 years of teaching, as the chairman of a board of governors for a long time and in constant contact with schools, in London at any rate—and I think that they are very typical—the number of times corporal punishment has been administered has been very small and it has been in very few schools.
I did not attend the Second Reading debate on this Bill because I felt that it was all such complete nonsense that it did not merit any attention at all. In fact, I should like to see a Bill to protect the teachers against some of the children, but that is another matter altogether. The teachers do not get any support or help.
However, I think that we must be very careful over the use of the word "staff". For many years no staff have ever had permission to administer corporal punishment; it has had to be a head teacher. Therefore, I wonder whether some of the people who have drafted the Bill really know what goes on in schools. So far as I recall, a punishment book had to be maintained. I am intrigued by the word "debarring". I did not realise that a head teacher had to inform a child, or a parent, if they did not want the child in the school. This was news to me.
I begin to see that there are far more powers entrusted in governing bodies and LEAs than I had ever envisaged. But I feel—and this is not in any way to speak against my noble friend's amendment—that the Bill has been put together, as with all too many things that now come before us, without an in-depth knowledge of what is going on in the schools today.
§ Baroness Cox
Perhaps I may help by clarifying the reasons which underpin the wording of the Bill as it now stands. Under the wording of the Bill, a pupil will be exempt from corporal punishment if one or both of his parents indicate in writing that such is their wish. That is a straightforward principle. It will be translated into practice through regulations.
Schools wishing to use corporal punishment on pupils will be required to enter the pupil's name on the register and to send a standardised form to parents seeking their views. Parents will be given six weeks in which to return the form to the school. If the parents say on the form that they wish the pupil to be exempt, the pupil's name will be deleted. If the parents say that they are content for the pupil to be liable to corporal 673 punishment, the register will record the fact. It is felt that it is much safer to have the recording done on that basis rather than on the alternative basis.
If the parents do not reply, a follow-up letter will be sent. Then after six weeks the school can assume that the parents do not have any strong feelings on the matter; and providing that they notify the parents of their decision they can, if they wish, record the fact in the register and the pupil will then be liable to corporal punishment.
It is with this group of parents—those who do not respond to the school's approach—that this amendment is concerned. The amendment would mean that the children of those parents would be exempt. This would reduce the number of children liable to corporal punishment, although that may not be the parent's explicit wish. It is the Government's view that parents who are indifferent, or who do not take the trouble to return the form to the school, are really saying in effect, "We leave the decision to the school". The school is then entitled to apply the disciplinary arrangements that it believes to be best.
It might be asked: what if the parents are not so much indifferent as uncertain? What if they cannot make up their minds in the six weeks? There are two answers to those questions. First, this Bill stems from a judgment of the European Court of Human Rights. The judgment concerned philosophical convictions which are at the least very positive beliefs. If parents cannot make up their minds, it is highly unlikely that their views amount to a strongly-held conviction. Until they do make up their minds the schools should be allowed to do what they think best. Secondly, if it takes parents longer than six weeks to come to a decision then all they have to do is simply write to the school as soon as they have decided, and the pupil can be made exempt by the school.
It might also be asked: what if it is neither indifference nor uncertainty which lies behind a non-response? I think the point was made by the noble Baroness, Lady David: what if a form has been lost in the post, or eaten by the caretaker's dog? It is admitted that such things could happen, but there will be safeguards. As I said, we propose that the school should be allowed to record the fact of non-response only if the school has taken steps to notify the parents of its decision to make the pupil liable to corporal punishment.
Of course, it could happen that the forms are lost or that a succession of misunderstandings take place. No system can be guaranteed against all eventualities. But as a long-stop measure we propose that regulations will allow parents to ask for (and the school will then be obliged to provide) a copy of the entry in the register relating to their children. That should again reduce to an absolute minimum the number of mistakes which might arise. I hope that in the light of that rather full explanation of the procedures we have in mind that the noble Baroness and the noble Lord might reconsider their amendments.
§ Lord Airedale
In trying to provide against all eventualities, if there is a simple rule that the child's name does not go on the register unless you have in your possession a letter from the parents saying, "I agree to having my child subjected to corporal 674 punishment", that provides complete certainty. What the noble Baroness has been talking about has been a lot of surmise as to what the parents might have thought, and whether the letter might have got lost in the post. Why not go for the answer which gives the certainty?
§ Baroness David
I agree entirely with the noble Lord. Nothing that the noble Baroness has said makes sure that letters will arrive and that they will be paid attention to. It does nothing about the illiterate or those who do not understand the English language. The only safe way is to have an opting-in rather than an opting-out measure. I shall divide the Committee on this.
§ 7.15 p.m.
§ On Question, Whether the said amendment (No. 30) shall be agreed to?
§ Their Lordships divided: Contents, 64; Not-Contents, 90.
|DIVISION NO. 5|
|Airedale, L.||Kagan, L.|
|Allen of Abbeydale, L.||Kaldor, L.|
|Ampthill, L.||Kilbracken, L.|
|Barnett, L.||Kilmarnock, L.|
|Beaumont of Whitley, L. [Teller.]||Kinloss, Ly.|
|Birk, B.||Longford, E.|
|Blease, L.||McNair, L.|
|Brockway, L.||Mar, C.|
|Buckmaster, V.||Munster, E.|
|Campbell of Eskan, L.||Nicol, B.|
|Cledwyn of Penrhos, L.||Northfield, L.|
|Collison, L.||Parry, L.|
|Darcy (de Knayth), B.||Phillips, B.|
|David, B.||Pitt of Hampstead, L.|
|Ennals, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Fulton, L.||Prys-Davies, L.|
|Gallacher, L.||Rea, L.|
|Galpern, L.||Ritchie of Dundee, L.|
|Glenamara, L.||Rochester, L.|
|Graham of Edmonton, L.||Ross of Marnock, L.|
|Greenway, L.||Sainsbury, L.|
|Grimond, L.||Seear, B.|
|Hanworth, V.||Shaughnessy, L.|
|Harris of Greenwich, L.||Stedman, B.|
|Henderson of Brompton, L.||Stewart of Fulham, L.|
|Heycock, L.||Taylor of Blackburn, L.|
|Hirshfield, L.||Taylor of Mansfield, L.|
|Houghton of Sowerby, L.||Thurso, V.|
|Howie of Troon, L.||Whaddon, L.|
|Jeger, B.||Wilson of Langside, L.|
|John-Mackie, L.||Winterbottom, L.|
|Airey of Abingdon, B.||Cameron of Lochbroom, L.|
|Alexander of Tunis, E.||Campbell of Alloway, L.|
|Allenby of Megiddo, V.||Chelwood, L.|
|Arran, E.||Coleraine, L.|
|Auckland, L.||Colwyn, L.|
|Belhaven and Stenton, L.||Cork and Orrery, E.|
|Beloff, L.||Cox, B.|
|Belstead, L.||Craigmyle, L.|
|Boyd-Carpenter, L.||Davidson, V.|
|Brabazon of Tara, L.||Denning, L.|
|Brookeborough, V.||Dilhorne, V.|
|Brougham and Vaux, L.||Drumalbyn, L.|
|Bruce-Gardyne, L.||Eden of Winton, L.|
|Buckinghamshire, E.||Elton, L.|
|Burton, L.||Ferrier, L.|
|Caithness, E.||Fortescue, E.|
§ there can be no organisation working to help disabled people which does not support that campaign. There are, too, numbers of distinguished and learned people with whom this theory has found favour. No such allowance has been made to date, but important background events have occurred. It is most encouraging to find that the Office of Population and Censuses has a comprehensive two-year survey in operation which is expected to be finished by the end of next year, or soon after. This information will follow up the findings of the Amelia Harris report of about 15 years ago. Having had the privilege of seeing the inquiry form used in the survey, I am most impressed by its construction and I sincerely believe that it will help to extract that measurement of the extent of handicap from both physical and social causes without which it is totally impossible to create a scale for any such allowance.
§ Alas, the survey must take two years but having waited for so long for any Government to undertake it, everything possible should now be done to help it to achieve maximum results; that is, to reveal the full story of these people's difficulties, some of whom find it very hard to explain their own situation. I am more hopeful than ever before in the whole duration of the campaign that the picture that will be revealed by the survey will be the most important tier in the showcase we have laboured to build. For this reason it is imperative that, in the meantime, no move is made to jeopardise its future. Today there are very wide differences between what is paid to those extensively disabled, as other noble Lords have described, through illness or condition, or from private accidents such as in the home, compared with those who were industrially disabled or the victims of road and other accidents.
§ Nobody can pretend that any amount of ingenuity can do much to retrieve the enormous opportunities that are offered by life and that can be lost through a disastrous calamity. However, cash has the power to provide helpers, homes and hope; and for lay well-wishers wanting to help and provide something along the way it is the only way to try to compensate. If preference is given to one type of disability over another one creates yet another less than logical class society.
§ There have been many disabled people with the good fortune to be eligible for high awards to start them off on very useful careers. Others made the most of whatever came their way, like the late stage and television actor Michael Flanders. He told me that after being felled by a severe attack of polio at the end of the war it was his war gratuity that made it possible for him to go to Oxford, where he met up with Donald Swann, and to compose an unforgettable stage image that turned him into a high taxpayer. He could, he said, so easily have been someone depending on social security.
§ That gratuity was a sort of life raft. Many of us, for instance, who were clobbered by polio at the age of 12 or thereabouts had no such life raft or grant to help us back to life and to help us show our paces. Some of us had parents prepared to make huge sacrifices and who did not necessarily feel guilty in any way, may I explain to my noble friend Lady Faithfull? They made 676 huge sacrifices in caring for us, unpaid. But the less lucky ones among us ended up in residential establishments for life, at great expense to the nation.
§ Where there is reference to vaccine-damage victims of course our hearts are torn. But those of us who have suffered these foul diseases which can be prevented realise what good fortune so many hundreds of thousands of children have had to be saved from our fate or, worse still, from being killed by such diseases. They have been saved by vaccination.
§ I am told that the rate of vaccination in the United Kingdom is falling and is already alarmingly low for polio. The threat of an epidemic is there. How could anyone increase that threat. Of course they could do so by sending out frightening accounts of the sad cases of vaccine damage. I know that that would not be the wish of anyone taking part in this debate, but it is important that that should not act as a deterrent to this terribly important preventive measure of vaccination. I beg of everyone not to put the clock back now.
§ At this late stage let me admit that in an oblique way I have an interest in this matter—an interest which is almost an embarrassment. Certainly it is not my wish to obstruct any payment of funds to disabled people and their keepers. It is probably only those of us from among that number who understand the real struggle of financial survival for severely disabled people. I say that even in the knowledge of eligibility to invalidity allowance, attendance allowance, mobility allowance and other small additions and with the realisation that mostly these have been new and merciful payments over the past 15 years.
§ I have with me the memory of the introduction of the attendance allowance as the first measure placed on the statute book by the 1970 Conservative Government, with Sir Keith Joseph as Secretary of State for Social Services, and not forgetting the work which was contributed towards it by the noble Lord, Lord Ennals, in the earlier stages. That moment was wonderful and is marked indelibly on my memory. It seemed that for the first time someone outside the family was giving us a hand and somehow we were being included at last.
§ I may have appeared to have waxed unbearably sentimental, but I wanted to make it very much known how worth while it is to fix fair allowances that will not favour one variety of case more than another. We should urge that the very most be made of the survey and expect to achieve a code of practice without fear or favour, despite the knowledge that within restricted resources we cannot hope for vast expenditure now. Nevertheless, we should be jolly sure of making a weighty and important claim for the earliest attention to prevent unfairness in the future and to help others who are now left out. I believe that this is a case where a bird in the hand is not worth two in the bush, for those birds in the bush find it hard to perch on the branch without the prospects and hope of future help. With luck, the survey will alert the Government to their plight. Thank you, my Lords.
§ 4.25 p.m.
§ Lord Edmund-Davies
My Lords, I seek to make an extremely short contribution to this most important debate which has in large measure, and understandably, been confined to the extremely important 677 topic of damages for vaccine injury. The topic that I have in mind is of far wider importance. In intervening I naturally apologise to your Lordships' House for not having put down my name to speak, but I had every reason to think that I should be away from London today. Having made that apology, I can assure your Lordships that my contribution will be in inverse ratio in brevity to its importance.
It is a topic which was touched upon by the noble and learned Lord, Lord Denning. It is the topic of the quantification of damages—damages in cases where there has been the committal of a civil wrong (a tort) and proceedings are instituted in respect of such damage, and also in cases of strict liability, which is a topic that the Royal Commission deliberated upon for a long time and on which it made very clear recommendations.
The problem is this. In the civil courts a judge has to deal with a case of personal injury. Liability is established, or fault may not have to be established because it is a case of strict liability. The problem that arises is, how much? Under our common law the judge has to peer into the future. He can have positive evidence as to the financial loss to date. He can have detailed evidence about the nature of the injuries—the pain and suffering and matters of that kind—but the plaintiff has not recovered. His injuries may last for a very long time. How long, and how intense and grievous are the injuries?
Sometimes the problem is virtually insoluble. It involves peering into the future, and the glass can be very dark indeed. I confess that at times I have found myself on the bench confronted by that task, saying to myself, "Really, what are you doing more than making an intelligent guess?" The guess—estimation is perhaps a better word, and more acceptable to the judiciary—has to be made at the time the case is being disposed of.
An example which comes easily and readily to my mind of the sort of problem is this. There is, we are told, a threat of impending, supervening epilepsy. The evidence of the expert medical witnesses may vary a great deal, some saying that there is a probability, others that there is a remote possibility, and with many shades of opinion in between those two extremes. The judge has to come down in favour of one side or the other. I repeat that the problem can be one involving acute anxiety, leaving the judge at the end of the day, having made his award, far from satisfied that what he has done is likely to be borne out by the events as they happen in the future.
That is very bad. The Royal Commission thought so, and it made some recommendations involving the making of an interim award in relation to those matters which had been established but enabling the plaintiff to come back in the future if events occurred which his legal and medical advisers thought merited a return to the court for further consideration. That is not a new matter in this country. The Criminal Injuries Compensation Board, whose practice I have seen as an observer at its sittings, does precisely what the Pearson Report recommended. It has the capacity to make an interim award. To take again the case of suspected supervening epilepsy, a nominal award can 678 be made in relation to that as it presents itself at the time of the hearing but leaving it open to the injured plaintiff, injured as a result of a criminal assault, to come back to the court in the future if the glass has darkened and his injury, his epilepsy, has supervened.
Many arguments were advanced, chiefly from the insurance side, against making interim awards in the civil courts. The state has taken on the liability in respect of criminal injuries and has enabled interim awards to be made. This is a matter, I respectfully suggest, that calls for earnest consideration. It is a signal example of inconsistency in the existing provisions. I warmly support the speech of the noble Lord, Lord Allen of Abbeydale.
§ 4.32 p.m.
§ Lord Elwyn-Jones
My Lords, this has been an important and moving debate. We have touched upon the sufferings and handicaps of those in our society who have been afflicted mostly through no fault of their own. We have looked at and seen the variety of misfortune that can arise. We have to face conflict as to how the matter should be dealt with. The message that has emerged most strongly to my mind is that what our society and our country really lacks is a coherent policy towards disabled people.
§ Lord Elwyn-Jones
My Lords, I shall gladly do so. What the country and our society really lacks is a coherent policy towards disabled people. I had thought that the noble and learned Lord would perhaps be familiar with those words because they were his very own, stated at the end of a debate on this kind of subject a year or two ago. I hope that I shall not be deemed impertinent if I ask the noble and learned Lord what steps are being taken to achieve a coherent policy towards disabled people. There are those throughout our society who have been awaiting it a long time. I do not blame any one particular Administration for having given an inadequate answer.
The debate was opened by the noble Lord, Lord Allen of Abbeydale, who once again showed his compassion, added to, in his case, by his chairmanship of MENCAP. It is a reaction with which I am also, if I may say so, familiar, as president of the Mental Health Foundation. Injury to the mind and to the brain caused by vaccine damage has been one of its most tragic features. When we discussed that particular issue during the debate in December 1982, I think it was, initiated by the noble Lord, Lord Campbell of Alloway, a speech was made by the noble Baroness, Lady Faithfull, who has always been greatly involved in this field, especially where children are concerned. The debate arose at a time when there was need to inspire confidence about vaccination. The noble Baroness quoted from a study produced by the Association of Parents of Vaccine Damaged Children, suggesting three ways in which an improvement could be made: first, by promoting vaccines that are safe and can be shown to be safe (that was the theme on which the noble Lord, Lord Winstanley, spoke, and I apologise to him for my brief intervention); secondly, 679 But here we come along writing in a statutory right to corporal punishment in, certainly, those schools that are left. As soon as this is passed the hope to get elimination goes. It would have been so much easier without it. I have never been one who has favoured Scottish clauses in what are virtually English Bills. This is an English Bill. We have been dragged in and forced—it may well be against the wishes of the Scottish Office; I am perfectly sure that it would be against the wishes of the Scottish Office—into this rather stupid business of giving a double standard within whatever schools there may well be left with this right in Scotland.
I do not think the fact that we are in the Bill is something that we have to be proud of. But, being in the Bill, could not we have gone our own way and done the elimination for that 8 per cent. which everybody—COSLA, the teachers, everybody—wants? It may well be that they have not done the consultation properly. It may well be that they have not sounded the business of getting the alternatives; but we could have done that.
I know that there is a weakness in the second clause so far as Scotland is concerned. We do not deal with governing bodies. You see, we have not got the shadow of so-called public schools over us in Scotland where the real public schools try to ape the others. The public schools come under the local authorities. But I still think that the Scottish Office have done a bad job in this matter in getting themselves mixed up in this Bill and in getting mixed up in the way that they have.
§ Lord Gray of Contin
The noble Lord is as dedicated to the continuation of the United Kingdom as I am and he will appreciate that Scotland is subject to the ruling of the European Court in the same way as is the rest of the United Kingdom. Therefore, although there are only 8 per cent. of Scottish children affected by this Bill, it is important we include Scotland in order that we comply with the ruling of the court.
The noble Lord suggested that we should have taken more stringent action in order to ensure that corporal punishment was eliminated entirely; but he is a tolerant man, he is a moderate man and I think that he would agree with me that when in Scotland we have achieved by voluntary means elimination of corporal punishment as it affects 92 per cent. of the children, it is not unreasonable to use methods of persuasion rather than dictation in order ultimately to achieve 100 per cent.
§ Lord Houghton of Sowerby
Perhaps I may give my noble friend a rest just for a moment. The noble Lord just now said that it was necessary to put Scotland in this Bill in order to comply with the judgment of the European Court of Human Rights in respect of the 8 per cent. of the Scottish children still subject to corporal punishment. But the judgment of the Court of Human Rights does not require this form of compliance at all. What it said was that corporal punishment should not be retained at all; and the compliance that the Minister is talking about is not a compliance with the judgment of the court. It is merely to bring it into line with what the Government wish to do to meet the judgment of the Court, which is an entirely different matter.
§ Lord Gray of Contin
I think the noble Lord is playing with words a little; but he raised this matter under an earlier "clause stand part" debate. My noble friend gave him the assurance that what he had said would be very carefully read so that it could be considered at a later stage. I do not think I would wish to add anything further to that which my noble friend said at that time.
§ Lord Ross of Marnock
The noble Lord was not all that long in the other House, but if he had been there he would have known my complete objection to including Scotland, especially in those traditional areas of government where Scotland has its own law. If he looks at Clause 5 when we come to it, and to which the other amendment relating to this point in Scotland is concerned, it says: "the Education (Scotland) Act 1980 shall be amended". Not a British Act, not a United Kingdom Act, but the Scottish Act. If you want to amend the Scottish Act you have Scottish legislation, you have a Scottish Act, and I claim that if we had a Scottish Act we would never have had these words which will be around our necks in respect of our fairly good reputation so far as corporal punishment is concerned because as soon as it is passed the pressure from the Scottish office, I am perfectly sure, will end and we can thank our English friends for having misled us in that way.
§ Lord Beaumont of Whitley
If we might just revert now from amendment No. 72 back to Amendment No. 33, may I say that I have the greatest respect and sympathy with the arguments which have been deployed by the noble Lord, Lord Ross of Marnock, over the past few minutes. But I still want to get back to the answer that we had from the Minister on Amendment No. 33. If I understand her aright, she was saying that punishment books are kept in all schools; and that it is not open to schools not to keep them. If that is so, why does it matter that they are administered by local education authorities and that it is not laid down in an Act of Parliament? No one would accuse noble Lords on these Benches, or me, I think, of not being very firmly in favour of devolution on almost any occasion when we possibly can. But I do not see the point of saying that this amendment should not be in the Bill. If it were open for local authorities to differ, if they could say that punishment books might not be kept in some local authorities, and it was open to some schools in their area not to keep them, then one could consider the merits of the matter and one could come to the conclusion that this was a right opportunity and a right occasion for local option. That is not the case as I understand it. The case is that there is no option. If there is no option why do we not write it into the Bill?
§ 7.45 p.m.
§ Baroness Cox
The situation can be summarised very briefly. The punishment books recording instances of corporal punishment are kept by schools because of paragraph 6 of DES Administrative Memorandum 531 which states:Punishment book. This book must record all cases of corporal punishment. The headmaster or headmistress is responsible for its completeness and accuracy".It therefore seems redundant to have to bring this into the Bill in the form of a specific amendment. The 681 situation is working well and that is why the Government does not see it necessary to accept this amendment.
§ Baroness David
I do not think that I shall divide the House at this late hour. I should like to read what the noble Baroness said as there was quite a gap between her first reply and my speaking in reply now. But my sympathies are very much with the noble Lord, Lord Beaumont, in fact. If it is there, and it has to be done, and we have this extraordinary Bill, why not put this into it? But I shall read what has been said and if I feel inclined I can come back at Report stage: and Scotland can decide what it does about making the wording right.
§ Lord Houghton of Sowerby
May I raise a point of order? It is now a quarter to eight and it is customary on a Tuesday evening when the supper is being served to have a break for supper. It seems to me that we are tending to get into the bad habits of another place which long ceased to have a break for a evening meal and plodded on and did the work. I do not mind plodding on and doing the work, but I think that if that is so then better arrangements will have to be made for refreshments after we have completed the Committee stage of this Bill and we should not be told that the service of refreshments ceases at twenty minutes past eight. I think therefore that if the noble Lord the Chief Whip, or his representative, thinks that the Committee can keep going during the supper break then some more civilised arrangements should be made for us to be fed when we have finished the Committee stage. Some of us have to go a long way on the Water (Flouridation) Bill to follow and I do not think it is fair that we should go on and on just to meet the convenience of the Benches opposite. I therefore hope that we can now have a break of one hour to get some refreshment and come back to finish the Committee stage of the Bill.
§ The Earl of Swinton
As I understood, it was agreed between the usual channels in the light of the business today that there should not be a break for dinner. I do not think that I can give an undertaking to the noble Lord but obviously I shall bear it in mind and pass it on to those greater and better than me who may think twice on another occasion. I apologise. I hope the noble Lord will be able to get some refreshment; I am sure that he deserves it.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 34 to 36 not moved.]
§ Clause 4 agreed to.
§ Clause 5 [Restriction on corporal punishment of pupils—Scotland]:
§ [Amendment No. 37 not moved.]
§ Baroness David had given notice of her intention to move Amendment No. 38:
§ [Printed earlier: col. 614.]
§ The noble Baroness said: This amendment was taken with Amendment No. 1 and the whole abolition list of amendments. The situation of course is rather different in Scotland as we know full well from what the noble Lord, Lord Ross, has been saying. I do not 682 know whether he wishes to speak on this now as he has already referred to it. So far as I am concerned I would not move it as I mentioned the whole of the Scottish amendments when speaking to Amendment No. 1. The whole block so far as I am concerned would not be moved.
§ [Amendments Nos. 38 to 72 not moved.]
§ On Question, Whether Clause 5 shall stand part of the Bill?
§ Lord Wilson of Langside
In giving notice of my intention to oppose the Motion. That this clause shall stand part of the Bill, my object is to exclude Scotland from the operations of the Bill. I will speak to Clause 5 and also to my Amendments Nos. 73 and 77,Amendment No. 73: Clause 8, page 10, line 3, leave out (", 2 and 5") and insert ("and 7")Amendment No. 77: Page 10, line 7, leave out subsections (3) and (4) and insert—(" (3) This Act extends to England and Wales only with the exception of section 6 which applies to Northern Ireland.")I should say that there is a misprint on Amendment No. 73. It should read as follows:leave out (', 2 and 5') and insert (`and 2')".My object in seeking to exclude the application of this unhappy Bill to Scotland I will come to in a moment, but the noble Lord, Lord Gray of Contin, said something which, frankly, puzzled me, when he was replying to the noble Lord, Lord Ross of Marnock. He said that we must include Scotland in the Bill in order to comply with the decision of the European Court. I look forward with interest to his explanation to your Lordships as to why that is so, because I should have thought that if we had simply continued with the process to which the noble Lord, Lord Ross, referred in his intervention, that would equally have been compliance. I am grateful to the noble Lord, Lord Ross of Marnock, for making it unnecessary for me to remind your Lordships that in Scotland we have a separate system of education in which traditionally we have, certainly in the past, taken great pride. Indeed it is one of the significant causes for our national pride.
I seek to exclude Scotland from the Bill, not simply because, as has been said perhaps to the point of tedium already in the course of this debate and also during Second Reading, it would be altogether damaging if this bizarre and bureaucratic measure were adopted, but because this measure is unworkable—unworkable in the sense that any attempt to work it would, I should imagine from my discussions with teachers and others with knowledge of the educational field, inevitably be disruptive of discipline. I am grateful also to the noble Lord. Lord Houghton of Sowerby, for, on Second Reading, describing the Bill as "dotty", because that really sums up the situation.
The question really is: was there an alternative? I should have thought that the alternative embarked upon, as the noble Lord, Lord Ross of Marnock, has told us, almost 20 years ago was surely to complete that process. Is there any obstacle to doing that? Over 90 per cent. of the pupils of Scotland are exempt from corporal punishment. Why has that process not been continued? Surely, with goodwill and governmental effort, local and national, the process could readily have been completed at least as soon as the effective 683 would be enhanced and not diminished. I have, however, given up all hope of consistency.
The noble and learned Lord reminded me that I had used the epithet of "coherence". I have not quite given that up. I think a coherent policy is probably too ambitious an aim at the present time, but I suggest that we ought to apply a little coherent thought to what is inherently an extremely difficult problem. Some of the difficulties were adumbrated by the noble Lord, Lord Allen of Abbeydale, himself and by the noble Lord, Lord Airedale, when they were talking about product liability.
There are two questions which hold up an international agreement on this point. There is already a convention in existence between the 21 member states of the Council of Europe; there is also a series of meetings, of which I think the next will be later this month, in the organs of the Community on this very subject. But the two related questions which have held up decision are, first, what is called development risks, or sometimes state of the art defence, and secondly, statutory limits to a claim.
The Germans favour statutory limits and have them, I think, as part of their domestic law. That creates a great deal of injustice and great inconsistency. There is also state of the art defence. I am not going to argue the case at length, I am only going to say that there is, as the noble Lord, Lord Airedale, pointed out in relation to an ingenious case which he raised himself, an inherent injustice about asking people to pay for what they could not possibly have foreseen.
Of course, if you keep a dangerous animal on your premises you are subject to strict liability, but that is because keeping a dangerous animal on your premises, or doing something which can be called analogous to it, is a risk which you ought to have known about. Everybody of course knows that all new products may carry a risk which one does not foresee, but there is something inherently wrong about asking people to pay tort damages for something that nobody could have foreseen at the time.
What is more, it is unlikely to do humanity any good. Taking the case of pharmaceuticals, for instance, a great deal more good has been done by developing pharmaceuticals—although I am no advocate of some of the companies—than has harm. If they know that they are going to be liable for the unforeseeable they can neither insure—because you cannot insure against the unforeseeable, as any underwriter will tell you—nor will they be prepared to lay out money on research and development. That would not reduce the inconsistencies and would not, I think, advance humanity or its cause.
What is true is that we are seeking, through the Economic Community, to develop a directive which would take account of the two disputed items. Of course a great number of international conventions have applied statutory limits of one sort or another, so it must not be thought that I am inherently against them, but it is the case, as was pointed out by the noble and learned Lord, Lord Fraser of Tullybelton, some years ago, that the European Convention of 21 nations got it wrong, and probably the Germans have originated a device which would do more harm than good in the opinion of a great number of people. It is, 684 however, possible that in the next 14 days or so something more hopeful may happen.
I now turn back—staring, I am afraid, at the clock—to the question of vaccine damage. I must reiterate what I said earlier in my speech: that to do what was passionately argued for by the noble Lord from the Liberal Benches, and by my noble friend Lord Campbell of Alloway, would create a greater inconsistency than it would remove. I do not say that it is wrong for that reason. I do say, however, that I challenge at least two of the assumptions upon which the speeches were made, and particularly that of the noble Lord, Lord Winstanley. However, I may now be doing him an injustice and, if so, I apologise in advance.
I spoke about this, it will be remembered, in December 1982. I was then anecdotal, which I am not going to be today, because I had had rather a poignant personal experience, which I then related, concerning the polio injection which was then under discussion.
Whether it is whooping cough or polio, the same two questions arise. The first is that it is said that we encourage the vaccination for the sake of society knowingly exposing the child to risk of brain damage of a permanent kind. I challenge that. If that was what we were doing we should be guilty, as I said in December 1982, of a great moral wrong. We have no right to sacrifice an innocent child incapable of deciding for itself for the sake of other children, but that is not what is being done. What is being done is what I did in the incident that I related. I ascertained from the medical authorities that, in relation to the polio injection, the chances of an unvaccinated child suffering permanent damage would be very much greater than if it were vaccinated. In other words, vaccination was done for the sake of the child.
In relation to whooping cough, which I spoke about in December 1982, I evaluated the chances then—subject to any improvements which have been made since, I fancy they are not out of scale now—that the chances of permanent damage or death from not being vaccinated were then 1:6,000 and if vaccinated in a course of three injections the chances of damage were 1:100,000. In other words, we encourage the parents of a child to have it vaccinated because the chances of damage are very much less and we do it in the interests of the child itself. To say for that reason that the child who belongs to the class of 1:6,000 and is unvaccinated owing to the imprudence of his parents should be given a lower and less satisfactory compensation than the child who had prudent parents and had it vaccinated but subjected it to a risk of only 1:100,000 would be creating an anomaly and an injustice which no one could seriously justify.
I do not think this is an easy problem. I must end on that note without answering many of the fundamental questions. The truth is that we shall have to live both with the tort system and with the system of state compensation allowances, such as mobility and disability allowances, for a long time to come. There will be numerous inconsistencies long after I have passed from the scene.
Throughout this debate I have been painfully conscious of the shades of my old and admired senior, Colin Pearson, whom I invited into my room in 1973 685 and who modestly, humbly and with great public spirit undertook the burden of this vast task which I persuaded him to accept and which yielded an admirable report—with much of which I do not agree—of over 1,000 pages. Were he present here today, I frankly concede that he would have to say that not everything he would have liked has been done. I do not think that, in the light of wisdom of another, and, I hope, better world, his shade would be quite so reproachful as that sentence might have implied.
The problem is much more complex than has been acknowledged. I should have told him that, in the field for which we are wholly responsible—that is, the first system of monetary compensation—we have improved the relevant part of the scheme to a large extent over the last six years. I make no party point for or against this present Administration. In real terms, not in cash terms, the benefits under the first system have increased by 35 per cent., against which one has to set off the increased numbers of persons in the population. I shall not do that sum. There is a real advance amounting to not less than £150 million in the annual expenditure in real terms on the first system.
We have not abolished inconsistency. We have never had a coherent policy. My recollection of the legal complexities goes back to the Workmen's Compensation Act 1925. We are improving a little in coherent thought about what is a difficult, complex and an agonising subject.
§ Lord Campbell of Alloway
My Lords, before my noble and learned friend the Lord Chancellor sits down, may I ask him a short question on a point over which we are at issue? Does he agree that paragraph 1398 of the Pearson Report supports the assertion for which I contend—that the inoculations are given (I quote) "to protect the community"? That is not my idea, but an assertion which has a respectable basis.
The Lord Chancellor
My Lords, I should never have thought that it was not respectable even if my noble friend had been the only person to advance it, but I said that others, almost every other speaker except myself, had made that assumption. It is the assumption I challenge, not its respectability.
§ Lord Allen of Abbeydale
My Lords, this is not the occasion for another speech, but there are one or two points I should like to make. I begin by saying that I was particularly glad that the noble Lord, Lord Winstanley, referred to the helpful speech of the noble Lord, Lord Henderson of Brompton, on an earlier occasion, because I know that the noble Lord, Lord Henderson, particularly regrets not being able to contribute today. I was also very pleased that my noble and learned friends Lord Denning and Lord Edmund-Davies referred to some of the other important recommendations of the Pearson Commission; for example, in relation to assessment of damages, periodic payments and road traffic, all of which we could debate for a long time. I am pleased that the noble and learned Lord. Lord Edmund-Davies, scored a hit, as I understand it.
686 I am grateful to the noble Baroness, Lady Lane-Fox, for apologising for her late arrival. She had already told me that it was inevitable, but I was anxious that she should have an opportunity to put her point of view, which she did so eloquently, and which I am sure we were all pleased to hear and have on the record.
Having listened to the noble and learned Lord the Lord Chancellor, I should like to say how grateful I am that he thought it appropriate himself to answer this debate. I began by saying that I had no ambition to remove all inconsistencies; it was a question of moving the boundary lines. The underlining theme of the Pearson Report was the fact that tort and social security had grown up without any regard to one another, and how they could be fitted together and how extraordinarily difficult it was to do that.
The noble and learned Lord referred to the Council of Europe Convention on Product Liability, but as that rules out the state of the art defence I have always understood that on our view so far we would not be able to ratify that convention. Although I listened carefully, I do not think he said anything about the question we raised on sticking at an unindexed £10,000. Perhaps he will think about that in the light of the points which have been made.
All that remains for me to say is that the one thing the debate has established beyond peradventure is that this is difficult territory. I am very grateful for the views which have been expressed. I think the problems are very formidable and speak for themselves. I am afraid that in sitting down I cannot give an undertaking that I will never again return to these issues. I beg leave to withdraw my Motion for Papers.
§ Motion for Papers, by leave, withdrawn.