PAYMENT OF SCHOOL EXPENSES; GRANT OF SCHOLARSHIPS, ETC

HL Deb 16 June 1998 vol 590 cc1478-508

(" . For section 518 of the Education Act 1996 there shall be substituted—

"Payment of school expenses; grant of scholarships, etc.

518.— (1) A local education authority, for the purpose of enabling persons to take advantage of any educational facilities available to them, may in such circumstances as may be specified in or determined in accordance with regulations—

1. (a) pay such expenses of children attending community, foundation, voluntary or special schools as may be necessary to enable them to take part in any school activities,
2. (b) grant scholarships, exhibitions, bursaries and other allowances in respect of persons over compulsory school age.

(2) Regulations may make provision—

1. (a) for requiring a local education authority to make, in relation to each financial year, a determination relating to the extent to which they propose to exercise their power under subsection (1)(b) in that year; and
2. (b) for authorising an authority to determine not to exercise that power in a financial year—
1. (i) generally,
2. (ii) in such cases as may be prescribed, or
3. (iii) in such cases as may be determined by the authority." ").

The noble Baroness said: The new clause replaces Section 518 of the Education Act 1996, which was partially amended in the Commons at Report stage by the removal of Section 518(1)(b). It confers a power on the Secretary of State to make regulations to allow LEAs to pay expenses of pupils attending maintained schools to take part in school activities such as school trips, and to assist with the cost of items such as school uniform and sports equipment. This reproduces—with only minor changes to reflect the new school structure—the provisions of existing Section 518(a) of the 1996 Act. It repeats the repeal of existing Section 518(1)(b) agreed elsewhere, which allows LEAs to pay the whole or any part of the fees or expenses for a child attending an independent school so as to avoid hardship on the part of the parents. The circumstances in which LEAs may pay all or part of such expenses will be dealt with under regulations to be made under Clause 120. As I have said, we shall consult in detail during the autumn on the provisions of these regulations, which would be made by April 1999. I have also made clear that we shall not commence the provisions of Clause 120 until regulations are ready to be laid. The existing provisions of the Education Act 1996 which give LEAs the power to provide financial assistance to independent schools and to pay fees of children attending such schools will remain in place until that time.

This amendment also contains a provision on financial support for students which is supplementary to that included under the Teaching and Higher Education Bill. That other Bill will allow the Secretary of State to remove discretionary awards for further and higher education students and put new arrangements in their place. The new clause gives the Secretary of State a power to make regulations to allow LEAs to offer additional financial support to students, if they so choose. It will, however, leave it open to LEAs to decide whether or not to do so, although they will have to review their decisions annually.

The current arrangements for post-16 LEA discretionary awards fail many students. Overall LEA expenditure on awards has declined steadily over a number of years and availability of support increasingly depends on where a student happens to live. Shoring up these discredited arrangements will not allow us to deliver lasting reform. That is why we introduced provisions in the Teaching and Higher Education Bill which will allow us to discontinue LEA discretionary awards under Section 1(6) and Section 2 of the Education Act 1962 and replace them with a new system of post-16 student support which is more consistent across the country and more effective in helping those most in need.

I should make clear that the new arrangements to replace LEA discretionary awards are quite separate and distinct from the system of student support which will replace mandatory awards for students in higher education.

To inform our decisions about the new support arrangements for post-16 students in schools and FE colleges, I asked an advisory group, chaired by Graham Lane of the Local Government Association, and including representatives from LEAs, the FEFC, colleges, the NUS and other interested bodies, for its advice. The group's remit was to consider a simpler, fairer, better targeted system for financial support to replace LEA discretionary awards for FE students. The group's report, which is part of our wider review of post-16 student support, will be published very shortly and we will be consulting on its recommendations.

I have, however, listened carefully to LEA representations about the need to retain a power to offer financial help to students in exceptional circumstances, in addition to the new arrangements which we will introduce. I have accepted that no system of student support, however well designed, will be able specifically to address the potential needs of every student facing financial difficulties. LEAs have a key role in their communities and some have argued that their ability to make exceptional payments to students can be an important part of that role. We agree. This new clause will enable LEAs to make such payments, where they so choose.

Where LEAs determine that the new arrangements are sufficient for the students in their areas, it will be open to them to decide not to make such payments. I believe it would be unreasonable in these circumstances to require authorities to consider applications and appeals from all-corners, including some who might apply for "exceptional" payments on top of their entitlement to support under the new system. This amendment will relieve LEAs of that burden, subject to the annual review. I beg to move.

Lord Tope

I have a particular concern about this amendment, on which I hope the Minister will be able to reassure me. A few months ago I initiated a debate in your Lordships' House about the funding of drama students and, by association, dance students, art students and so on. The present Arts Council funding system is clearly not working. Can the Minister tell me more about whether the new arrangements are likely to improve the current situation or, as I fear, make it worse? In particular, is she able to tell me, either now or later, when the Government expect to announce their new plans in respect of drama students?

Baroness Blackstone

I cannot give a precise date as to when we shall be able to announce our new plans. As I said in the debate on the noble Lord's Motion, we are working on a scheme to replace the interim scheme. But those arrangements will in no way impinge on the interim scheme; it will be a totally different scheme.

On Question, amendment agreed to.

5 p.m.

Clause 121 [Abolition of corporal punishment in schools etc.]:

Baroness Blatch moved Amendment No. 246FA:

Page 92, line 22, after ("school") insert ("except those schools to which section 548A below applies").

The noble Baroness said: In moving Amendment No. 246FA, I shall speak also to Amendment No. 246FB. Perhaps I should make it clear at the outset of this debate—I have no doubt that my intentions will be misinterpreted—that I am not supporting mindless beatings of children, ritual punishment, unlawful punishment or punishment that would be decreed unlawful under the European Convention on Human Rights. I am supporting the freedom of parents to choose independent education and to sign up voluntarily to a specific regime of firm discipline within a caring and loving ethos of a school. That is from where I start.

The two largest postbags I received on this Bill involve parish councils being represented on governing bodies of schools—a matter about which they felt strongly—and discipline. Many schools, particularly schools with a Christian ethos, have been concerned that the sensible regimes they operate and the supportive parent bodies of those schools where parents wish their children to be brought up with a disciplinary regime which is both fair and firm, are now in jeopardy because of the amendment moved in the House of Commons.

An organisation called Families for Discipline does not support unnecessary punishment for children, but supports the firm and fair approach. It wrote to a number of Members of the Committee and made some cogent points. It argued that the new clause should be opposed because it undermines parental responsibility. Indeed it does. It is based on false assumptions about school corporal punishment. As the headmaster of an independent school in Liverpool explained, corporal discipline is based on the guiding principles of love and correction. The school ethos is an extension of discipline in the home and I am saddened to see, having heard the protestations of the present Ministers in the Department for Education saying that they had no intention of extending the abolition of corporal punishment to the home—the smacking of children—that that extension is now to emanate from the European Community and no doubt there will be an extension to the home.

The clause should be opposed because it fails to recognise the religious basis of many independent schools. It fails to comply with the European Convention on Human Rights. Article 2, Protocol 1 requires a state to, respect the rights of parents to ensure that such education and teaching in conformity with their own religious and philosophical convictions". The European Court of Human Rights established that such corporal punishment falls within the ambit of this clause. It also exposes pupils and teachers to the risk of increased violence.

It is no good our going around wringing our hands about the behaviour of some young people in our schools; about the rise in expulsions; about the rise in disruptive behaviour in the classroom and the lack of response to the National Association of Schoolmasters/Union of Women Teachers. Its members are concerned about the protection of teachers in the classroom. How can we wring our hands about that and not allow the teachers to exercise some form of corporal punishment? Indeed, the Government distributed a guidance document to schools arguing that some force can be used and some of that force, when one reads the guidance, is a form of corporal punishment.

The clause disregards the views of the majority of the United Kingdom public. The Government make much play of saying that people think this or that. But by a considerable majority people believe that there should be corporal punishment in the context of firm but fair discipline. The clause paves the way for legislation against parents using corporal discipline in the home and we are now hearing interesting mutterings from the European Union on that subject.

The Minister in another place, Mrs. Morris, said that it is, the personal responsibility of parents to decide for themselves what disciplinary arrangements are appropriate for their child. It would not be appropriate for the State to impose its own view". That is precisely what the state is proposing to do in the new clause in relation to independent schools. The state is removing from parents the responsibility to decide for themselves. School is an extension of loco parentis. It is acting in loco parentis while the children are at school.

I have no doubt that we will hear much of the Swedish case, which was declared inadmissible by the European Court of Human Rights. Of the two cases therefore only Costello-Roberts was referred to the European Court. Neither the Commission nor the court opposed corporal punishment in schools in either case. I can expand on that if it is brought up during the course of the debate.

The Minister appears to consider that the European court would be unlikely to uphold any argument that the new clause would result in a violation of the rights of parents under Article 2 of Protocol 1. However, legal advice received on the matter from a barrister specialising in human rights suggests otherwise. In his view, Campbell and Cousins v. The United Kingdom is a case for positive respect by the state for religious and philosophical convictions to which pluralism in education is fundamental to a democratic society. In Campbell and Cousins the court established that, corporal punishment of children in schools falls within the ambit of Article 2 of Protocol 1".

The British public think otherwise. In polls taken towards the end of 1996 two-thirds of the general public registered support for the restoration of corporal punishment in state schools. That subject has been dealt with by Parliament and I have no wish to restore that debate today. However, I wish to argue strongly that we are talking about parents who freely enter into a contract with an independent school. I believe that they have a human right not only to do that, but also to enter voluntarily into an agreement with that school, knowing what the régime running that school is and knowing that corporal punishment is administered within the law and certainly within what is acceptable under the European Convention on Human Rights. The amendment I tabled makes it clear that the intention is to be lawful at all times.

In the independent sector many schools have the support of governors, teachers and parents to retain the right to use moderate and reasonable corporal punishment in appropriate circumstances. Many of those schools are relatively small; some are faith based and seek to provide an education and disciplinary ethos in harmony with the homes from which the children come. Who are we to deny them that right? These are parents who are not opting for state education over which the Department for Education has control. They opted for independent education and take what comes with it in a voluntary way, entering into a contract voluntarily.

Such a desire is in keeping with national law; it is certainly in keeping with international instruments and conforms to the Department of Health Guidance to the Children Act 1989. I beg to move.

Lord Henderson of Brompton

Is the noble Baroness speaking for the Official Opposition? She speaks from the Opposition Front Bench. It would be nice to know whether or not she is speaking for the Opposition and, indeed, whether a free vote will be allowed on all Benches, especially the Benches of the noble Baroness.

Baroness Blatch

I can confirm that there will be a totally free vote in relation to these Benches. I can add that, when the subject came up in this Chamber, as an official government party we supported, as long as it was within reasonable bounds and conformed to the European Convention on Human Rights, corporal punishment as a good thing in schools. For the purposes of this amendment, the vote will be a free vote.

Lord Henderson of Brompton

The noble Baroness was speaking from the Opposition Front Bench. Is what she said Official Opposition policy?

Baroness Blatch

I was speaking to the amendment in a personal capacity. I have made it clear that when the subject came up when we were on the Government Benches we certainly supported that. Nevertheless, at that time there was a free vote and some noble Lords on our Benches took a contrary view. We believe that this is a subject for a free vote, and there will indeed be a free vote on the subject this evening.

Baroness David

If there is to be a free vote on the Opposition side of the Committee, I find it strange that the noble Baroness did not make that clear when she started to speak from her position as the Opposition's official spokesman for education.

When this amendment was put into the Bill in another place, there was a free vote on all sides of the House. The Government won by a substantial majority on a free vote—by 211 to 15. We now understand that there is to be a free vote. I am delighted to hear that. We are certainly having a free vote on this side of the Committee.

The aim of the clause is to extend the abolition of corporal punishment to cover all pupils in private schools and also those in nursery education. Its purpose is to close a sordid and embarrassing chapter in the history of our education system and to end the form of discrimination which has allowed some schools to go on beating some pupils whose parents were paying fees but not others where the state was paying the fees. These amendments are wrecking amendments intended to remove the clause altogether or to keep corporal punishment for some schools and for some pupils in the private sector. I do not know how many Members of the Committee remember Sir Keith Joseph's Bill in the Session 1984–85 which proposed in the state sector that if parents chose they could have their children beaten but that parents could choose not to. That Bill was voted out of the House at Report stage and had to be withdrawn by the then government.

Baroness Blatch

I am most grateful to the noble Baroness for giving way. She referred to this as a wrecking amendment. This clause was not in the Bill when the Bill was published in another place. In fact the clause was added to the Bill not by the Government, but with the support of the Government, by a Liberal Democrat Member in another place. Therefore, in the sense that we are just taking a different view about that clause, it is not a wrecking amendment.

Baroness Blackstone

Perhaps I may clarify something. The noble Baroness, Lady Blatch, will confuse everyone if she continues in this vein. A decision was made in another place not by the Government but by Parliament. The Government did not support this amendment. Members of the Government took a personal position on it and decided to vote in favour of the amendment, but that is quite different from saying that this is in any way a government amendment. The noble Baroness referred a little earlier to the state imposing certain constraints in relation to corporal punishment. That, again, is inaccurate. This is a decision of Parliament, which wishes to see this practice come to an end. Perhaps I may also confirm what my noble friend Lady David said. The Government believe that there should be a free vote on this important issue.

Baroness Young

Before the noble Baroness sits down, will she clarify one point? She said twice that this is a decision of Parliament. It is in fact a decision of the House of Commons. There is a distinction.

Baroness Blackstone

I am grateful to the noble Baroness, Lady Young. It is of course a decision of the House of Commons—of another place.

Baroness Blatch

I would have made the same point. But perhaps I may also add that I did not say that it was a government amendment. I rose to make that very point. I rose to say that it would have been a wrecking amendment had it been a government amendment. It was actually an amendment of a member of another party in another place which received the support of the majority of the House of Commons. Many on the Government Benches supported the amendment. I have looked down the list. But it is not a government amendment. It was not put as a government amendment and it was not spoken to as a government amendment.

Baroness Blackstone

When the noble Baroness reads Hansard, she will see that just two or three minutes ago she said that the amendment had the support of the Government. That is not accurate. It did have the support of individual members of the Government who voted in favour of it, but that is a completely different matter.

Baroness David

Perhaps I may now get on with what I was saying. On several occasions in the past this House has taken the initiative to rid our school system of this abhorrent, anti-education and dangerous practice. I have had a great deal to do with getting as far as we have in this House. I have supported all the Bills and was the opposition spokesman on some of those Bills when we won amendments which sought to abolish corporal punishment in the state system.

The private schools associations want abolition. That is an important point. On 5th March, Ian Beer, who is the chairman of the Independent Schools Council, issued a statement in which he said that the independent schools welcome the proposal to ban all corporate punishment. The statement said that many private schools had concluded long before any form of legal ban was contemplated that, corporal punishment impeded good education". The noble Baroness, Lady Blatch, talked about parents sending their children to independent schools. If parents want to send their children to independent schools, they are quite free to do so. But if they send their children to an independent school which has banned corporal punishment, that is settled. That is the policy of the school and they can either send their children to it or not.

The teachers want abolition. Full prohibition is supported by all the teacher unions, by the other education organisations and, of course, by all child welfare and child protection groups. In particular, effective child protection demands full abolition. The national committee of inquiry into the prevention of child abuse, chaired by the noble Lord, Lord Williams of Mostyn, and Sir William Utting's recent review of safeguards for all looked-after children—children in care—including those in boarding schools, also strongly recommended full prohibition.

Our obligations under international human rights law demand full abolition. Three United Nations human rights treaty bodies—the Human Rights Committee, the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child—had formally recommended that the Government should extend prohibition to cover all pupils. Each committee expressed concern at the continued legality of corporal punishment for some pupils.

The amendment tabled by the noble Baroness, Lady Blatch, attempts to define—

Lord Skidelsky

I thank the noble Baroness for giving way. Why does she believe that her views and the views of other people, which are worthy of the greatest respect, should be imposed on the population of this country?

Baroness David

I do not know whether the noble Lord is referring to the European rights committees.

Lord Skidelsky

I am referring to the noble Baroness's personal views, which she has expressed most eloquently.

Baroness David

I believe that corporal punishment is a bad thing in all our schools. I am hoping to persuade noble Lords that this clause should remain part of the Bill and help to abolish corporal punishment in our schools and in our nursery schools.

In its most recent judgment on this issue, the European Court of Human Rights stated unanimously that it did not wish to be taken to approve in any way the retention of corporal punishment as part of the disciplinary regime for schools. The noble Baroness forgets our clear obligation to remove corporal punishment from our school system altogether under the other international human rights treaties. For years private schools in the UK have been the only educational institutions in Europe. east or west, in which corporal punishment of children has remained lawful.

I hope that the Committee will decisively reject the amendments and thus ensure at long last that our school system—the whole of our school system—is rid of this sordid practice. It was 35 years ago that Baroness Wootton of Abinger, whom we all admired enormously, sought to get this House to accept full abolition. She said then, "If a thing is wrong today it should be put right today and not tomorrow or the day after". It has taken a very long time to get as far as this, but I hope that today we shall clear that up.

By adopting this clause in another place by such a huge majority on a free vote, the Bill has achieved for what so many of us have pleaded for a long time. I hope that this Committee will show its strong support for this clause in the Bill. We have a free vote.

Lord Tope

It is a privilege for me to be able follow the noble Baroness, Lady David, on this subject. In my comparatively short time in your Lordships' House I have seen how she has campaigned tirelessly on this issue. I know that she has been campaigning for many years before I came here. In that sense I am very pleased and very proud to be able to follow her in this debate. I am sure that she will understand that it is a privilege that I hoped very much I would not have. During the Second Reading debate on the Bill I commented that I hoped that we had heard the end of the issue of corporal punishment when it had been determined in the other place. When I said that there were murmurs of agreement around your Lordships' House. If I remember rightly, in her reply the Minister echoed my sentiments although I am sure that she was speaking solely in a personal capacity.

So I was surprised and very disappointed to find at the last possible moment in the Committee stage of this Bill that the noble Baroness, Lady Blatch, the Opposition education spokesperson, had tabled this amendment. I do not know why she waited until the last possible moment and I do not propose to speculate on that today. She mentioned that it was the second largest issue in her postbag. That must say something for the noble Baroness, Lady Blatch, and for the image that her party still has because I have not had a single letter on this subject until today. The letters I have received expressed the horror and alarm that I feel that we are again debating this issue.

I am astonished that the Conservative Party education spokesperson in this House should table this amendment. I do not understand how that fits into the image of the modern Conservative Party which her leader is apparently so keen to promote. Much has been said about public opinion outside this House. I believe when it is heard that the Conservative Party has chosen at the last minute to reintroduce this issue determined overwhelmingly in another place, it will agree that is different from taking a view when the issue was first introduced in the other place.

Baroness Blatch

I am grateful to the noble Lord for giving way. I have said that there will be a free vote on these Benches. I have already said that there are Members on these Benches who will not support this amendment and therefore there is a free vote. The amendment was tabled last week. As we have gone through the Bill, and given the fact that we have no back-up and we have had to deal with amendments on a very complicated Bill, at every stage I have tabled amendments for the next day of the Committee stage. The noble Lord will know that this amendment was tabled last week and not yesterday at the last minute.

Lord Tope

I believe I referred specifically to last Friday and not to yesterday. Nevertheless, it is at the last minute. I am not going to enter into an argument with the noble Baroness as to why and when she did what she did. Of course it is a free vote. I should say—although I thought it was unnecessary—that it is a free vote for my party as it always is on an issue of this kind and that is as it should be.

I still express astonishment that the Conservative Party should wish to project this image. That is a matter for that party and I care very little about it, but I care quite a lot about the reputation of your Lordships' House. Were this amendment to be accepted today, I cannot believe that we would be doing anything to enhance the reputation of this House or to suggest that we were ready to face the 21st century and not to be still steeped in the 19th century as some people mistakenly believe.

The noble Baroness, Lady David, made all the right points in opposition to the amendment. I agree with her that the Independent Schools Joint Council, which represents 80 per cent. of the independent schools, was very clear and unequivocal in its support of the successful amendment in the other place. It is a point of interest to me that Ian Beer, the chairman of that organisation, whom the noble Baroness, Lady David, mentioned, and I went to the same school and, I imagine, a few years before me. He suffered—if that is the right word—the same regime as I did. I am interested that he now takes the same view.

The noble Baroness, Lady Blatch, made reference to the issue of human rights and the legal position. It seems to me that that was something of a perversion of a view of human rights. I am enormously encouraged that I have sitting behind me my noble friend Lord Lester of Herne Hill who is an acknowledged expert and authority on such matters. I know that he intends to speak shortly. I am sure that he will have something very important and wise to say on the issue. I would not presume to dwell further on it in his presence.

Not surprisingly, all the child care organisations oppose corporal punishment. The noble Baroness, Lady David, has referred to various commissions including the one chaired by the noble Lord, Lord Williams of Mostyn. They have all come out against corporal punishment. We are the only country in Europe which still condones corporal punishment. There are many things about the uniqueness of Britain which should make us very proud, but corporal punishment is not one of them.

The noble Baroness spoke about the need for fair and firm discipline. I do not believe that any of us would argue with that as a statement. But to suggest that firm discipline means hitting small children—or even large ones for that matter—with a cane (that is corporal punishment) is a view that is rejected overwhelmingly by teachers, child care professionals and by most other informed opinion on the subject.

Discipline in the home was mentioned. I hope that we shall not be distracted by that debate. It is entirely outside the scope of this Bill. I have a view on it, as I am sure all Members of the Committee have. It is not the issue that we are talking about here. Needless to say, I shall oppose this amendment most strongly. I deeply regret that it has been introduced into your Lordships' House. On a free vote the other place determined the issue and, I hoped, once and for all. There was an overwhelming vote of 211 to only 15. I had hoped that that was the last word, but clearly it was not. I hope that this afternoon this House will show that we are ready to move into the 21st century and that we will have the last word on this issue by rejecting this amendment at least as overwhelmingly as in the other place.

Lord Wilberforce

I rise as calmly and dispassionately as one can to support the amendment proposed by the noble Baroness, Lady Blatch. As the Committee will have seen from the Marshalled List, I put my name to oppose the Question that this clause stand part of the Bill. I was motivated to do that by a sense of considerable disquiet as to the legislative process which has taken place on this matter. I need not go into it at length because Members of the Committee know quite well what happened. We have a very elaborate and important Bill which we are now considering. It was put forward by the Government without any mention whatever of corporal punishment. At a very late stage; namely, five o'clock in the morning, at the instance of a Member, two clauses were put in, of which this is one, dealing with this matter. It was voted on in a free vote.

I felt that such a process in relation to a matter of civil liberties, importantly affecting the rights of parents and schools, should receive further consideration, at any rate in this House. I was very much disturbed that until last Thursday, I believe it was, although we had had six days in Committee and about 300 amendments, no mention appeared to have been made of this important subject. Therefore I was very much relieved when the noble Lady, Baroness Blatch, tabled this amendment enabling us to discuss this problem calmly and dispassionately as we ought.

No more than the noble Baroness am I arguing in favour of corporal punishment or against it. I am completely agnostic on the subject and so I should be. Between the age of six and 17 I attended no fewer than six independent schools and at five of those there was some degree of corporal punishment, ranging right down the scale from a slap on the wrist from a woman teacher to what I may call the "full Monty" meaning thereby one administered by Monty Rendall, our headmaster.

Those experiences led me to realise that what matters in schools is the disciplinary ethos—some call it the disciplinary code—which exists and which is built up by agreement between the headmaster or headteacher, the board of governors and above all, the parents. It may or may not contain an element of corporal punishment. My position—I believe that I am in agreement with the noble Baroness on this—is that, as a matter of freedom, we ought not interfere with that sort of bargain of choice, freely made, unless there is some manifest public interest which requires to be safeguarded.

We all agree that children have to be protected from abuse. That is an overriding consideration. However, let us consider the position. We are not arguing here about ritualistic flogging. I know that that phrase creeps in from time to time; it did in the other place. We are not arguing about that; we are arguing about reasonable measures of correction or, as they are called in Australia, reasonable measures of chastisement.

The child is well protected by the common law under the law of battery. As your Lordships know, "battery" is widely interpreted even to go beyond physical contact. The child will now also protected by the Human Rights Bill 1998, which makes the European Convention on Human Rights part of our law. Article 3 of that convention prohibits inhuman and degrading punishment. Your Lordships have already been told by the noble Baroness—I believe this to be correct—that the European Court of Human Rights in Strasbourg has so far been cautious about what it says in relation to corporal punishment in schools. The noble Lord, Lord Lester of Herne Hill, will correct any imbalance in that statement. I believe it to be correct that the court has left open the question of whether corporal punishment in schools should be prohibited. It depends on the circumstances. Those considerations are reflected in the amendment of the noble Baroness. I refer to the case of Costello-Roberts in 1993.

What is the scale of the problem with which we are dealing? It is a very small-scale problem. Many of the larger schools—I mention in correct order, Winchester, Eton and Harrow—have already disposed of it, as have others. We were told by speakers in the other place that fewer than 200 private schools have some measure of corporal punishment. There is no evidence of any scandal or excess. No research has been carried out into what is done in those schools and what effect it has. There is no perceived demand for the abolition of corporal punishment in those schools.

I submit that it is absolutely contrary to the sound principles of legislation that one should interfere with the reasonable choices of persons unless there is clear evidence of some public interest.

One other consideration has already been mentioned. I refer to the relationship between corporal punishment in schools and in the home. I know that the noble Lord, Lord Tope, says that that has nothing to do with this case, but the two situations are closely related. Once one begins to attempt to legislate about punishment in schools, one runs up against the question of what is going to happen in the home. If, in the home, it is legitimate to give reasonable and moderate chastisement—I think that most people would accept that—it is difficult to see why, when a parent has delegated that responsibility to a school, it should be prohibited. After all, many parents—they may be lone parents without a man in the house—who have an unruly child with whom they cannot cope decide that the only thing to do is to send that child to an independent boarding school, as to which they have verified that the disciplinary situation is sound and well thought out. How can the one remain separated from the other? Conversely, if one prohibits any such punishment in schools, one is faced with the question of how far one can justify allowing it in the home. That will arouse some difficulties.

That point was perfectly well perceived in the discussions in the other place where opinions were expressed, which I think have been quoted. that the original clause—it was then Clause 21—would create difficulties and a dangerous thin end of the wedge in relation to the situation in the home. Therefore, at the very last moment, at about 6 a.m., Clause 23—it is now Clause 121—was substituted for the original clause; namely, Clause 21.

However, the matter does not stop there. We are again running into difficulties with the European Court of Human Rights. I understand that a case is before it at the moment of corporal punishment in the home involving a step-father who caned his boy on the legs with a cane. I understand that judgment may be given in the course of next week. If that were to be so, the Government would have at least to consider adjusting the law in this country. I respectfully ask whether it would not be wiser to leave the matter for consideration until we know what the European Court has to say, when we can then consider with greater calm and detachment and away from the difficulties of this Bill the whole question of control and discipline in the home and its relation to a small number of independent schools. I support the attempt of the noble Baroness to regulate the situation in a calm and moderate way and in accordance with the European convention. I hope that her amendment will be carried.

Perhaps I may draw attention finally to two good points about the amendment. First, it contains definitions of both "corporal punishment" and of "lawful corporal punishment". Those are helpful. Secondly, the amendment refers to the reasons why corporal punishment may be administered in certain circumstances, taken pretty well directly from the judgment of the court in the case of Costello-Roberts. I support the amendment.

5.30 p.m.

Lord Annan

I am extremely sorry to be in disagreement with the noble and learned Lord, Lord Wilberforce, whose words of wisdom I have always admired enormously. The noble and learned Lord said that we are not talking about ritual punishment. All corporal punishment in a school inevitably becomes ritualised. Curious tremors go through a school when corporal punishment is to be administered.

I must ask the noble Baroness what she means by "lawful corporal punishment". Does the noble Baroness favour the tawse, the riding crop, the cane or perhaps the birch, which used to be a great cry from the women at Conservative Party conferences long ago? Does the noble Baroness favour the mode of punishment that I remember from my own prep school, which was administered by what was called "Punishment Bat No. 1" on sale at Harrods? We must have some response on this matter. The noble and learned Lord, Lord Wilberforce, said that "corporal punishment" is defined in the amendment, but it does not seem to me to be defined at all. I should like an answer to that question.

I turn now to subsection (2)(b) and to the position of two pupils committing an offence. Of course, we have had this discussion before in the debate on, I believe, the 1996 Bill. What happens if two pupils commit an offence and one, by his parents' permission, is soundly caned while the other who is "an assisted pupil" is therefore not allowed to submit to corporal punishment? Is that a fair way of dealing with the two children? The second child will no doubt be punished by many hours of physical drill or detention, but is that really fair? What if the assisted pupil is so disgusted by the unfair differentiation that he or she insists that he or she suffers the fate of the fellow delinquent? Note that I say "he or she". Nothing in this amendment differentiates between boys and girls. Will girls be subjected to corporal punishment? Under many recent Acts that have been passed to outlaw discrimination of any kind, that will happen. Who is to administer the punishment to the girls? Will it be administered by a male member of staff? That is perfectly possible within the terms of this amendment. The sexual implications of that have not been made clear, and I hope that they will not escape the attention of the Committee.

Lord Monson

I thank my noble friend for allowing me to intervene. The noble Baroness does not introduce any new principle. The amendment simply permits the continuation of what happens at the moment.

Lord Annan

I do not address the principle but the legal document before us by which these things will be possible. Is this punishment to be administered only by members of the staff or by the boys and girls themselves? Perhaps the only good thing that came out of the Public Schools Commission was its recommendation that the beating of boys by boys was something that schools should abolish. I am glad that many of them have done so. But under this amendment it is perfectly possible for a school to say that the prefects shall have power to beat the boys.

I remind the noble and learned Lord, Lord Wilberforce, of what happened to a near-contemporary of his, Lord Clark. When Kenneth Clark boarded the school train at Waterloo as a new boy, unaware of any of the Winchester "notions", i.e. the rules about how boys should behave towards one another, he chatted away to a lot of the other boys. When he arrived he was summoned by the head of his house and told—I use the Wykehamist phrase—to "sport an arse" and he was soundly beaten. Of course, that disappeared from Winchester and enlightened public schools long ago. Nevertheless, in the terms of this amendment it is possible for that to happen.

In an amendment of this kind should we not make it perfectly clear who is entitled to administer corporal punishment to other pupils in the school? For example, referring to subsection (4), what form of corporal punishment does not involve inhuman and degrading treatment and contravene the pupil's convention rights? I should very much like to be enlightened on that point. Nearly all corporal punishment involves degrading treatment; indeed, that is one of its main purposes. I pose that question because I believe that in view of subsections (5)(d), (e) and (f) the court would be almost bound to conclude that the punishment was degrading.

There may be parents who still believe that to spare the rod spoils the child. In that respect I am very much on the side of the noble and learned Lord. Lord Wilberforce. I believe that parental rights should not be invaded. If they want to flog and beat their children—of course within the law—they are entitled to do so. But when one is considering a school the state has a right to interfere and to lay down exactly what should and should not be done. This practice should not be legalised.

It is often said that it never did anyone any harm, but can one number the autobiographies written in the past 40 to 50 years that have made perfectly plain that such a practice caused harm? It is also responsible for a good deal of perverse conduct. Some years ago I recall going up Wellington Road and observing among the graffiti the statement "Bring back the birch!" Underneath it some willing suppliant had written "Please!" This kind of conduct is encouraged by the continuation of beating in schools. I have no wish to interfere with the right of anyone who gets pleasure from being whipped or whipping another, but there is no doubt that from the poet Swinburne onwards what stimulates this in the first place is corporal punishment.

5.45 p.m.

Lord Beloff

As so often when the noble Lord, Lord Annan, intervenes in an education debate, I am confirmed in my belief that there is no island so remote from the generality as King's College Cambridge. As the noble Lord, Lord Monson, points out, this amendment does not legalise anything but merely prevents something that has gone on for a long time from being made illegal.

I return to the more central point. I am one of those noble Lords—not many—who took part in the debate when the noble Baroness, Lady David, managed to persuade this House to abolish corporal punishment in state schools. I said at the time that the results would be disastrous, and so it has proved. We have seen endless assaults by young hooligans and pupils—it is now fashionable to refer to them as students—upon their teachers. We have seen them backed up by parents who have assaulted teachers. We have removed a protection from the teaching profession and have not substituted anything else. Whether the current leaders of the teachers' unions take a different view is another matter. It goes further than that. We have seen a general reluctance in our society to check behaviour, however bad. One of the consequences of the success of the noble Baroness, Lady David, is the recent events in the streets of Marseilles. That is how the young English who have been freed from corporal punishment find it easy and profitable to behave. This is a fact.

We are told that corporal punishment does not happen in other countries. No doubt they have other forms of penalty. For instance, we have not devised appropriate penalties for parents who allow their children to play truant from school and when in school to obstruct the teaching of others. We have become a totally undisciplined society and it is beginning to make Britain look foolish in the eyes of the world. I am sure that the noble Baroness, Lady David, and even that absurd institution, the European Court of Human Rights, did not intend to bring that about, but they have done so. Although I believe that the question whether a few independent schools are or are not allowed to inflict corporal punishment is a relatively minor matter, the passing of this amendment will show that at least some Members of this House know what is going on and regret it.

Baroness David

I should like to make one response in regard to football hooligans. The fact is that in no other country in Europe is corporal punishment allowed in schools. They have had some trouble on the cricket pitches and in other places.

Lord Hardy of Wath

I do not wish to detain the Committee long, but it may be appropriate for me to make a few observations based on my long experience as a schoolmaster rather a long time ago. The boys I taught did not frequently go to Oxford or Cambridge. They attended schools which sometimes presented the teachers with severe challenges.

As the years passed, my experience of 17 years in education in a mining area led me to become less and less enthusiastic or supportive of the case for corporal punishment. The noble Lord, Lord Annan, has given examples of the sheer impracticality which surrounds the amendment. The noble Lord referred to the situation where two boys commit an offence and the parents of one say, "Yes, cane him", and the parents of the other say, "You cannot cane my son". Do you cane one and not the other?

Even worse, if a boy commits an offence at school and is caned, and another boy commits a similar offence the following week and his parents object to caning, is that boy caned? What does the Committee think will happen to relationships in schools if some boys are caned for one offence and others are not caned for committing a similar offence? What will be the relationship between boy and teacher, or boy and boy? It will be impossible to operate a school in an effective and fair manner without experiencing a quite corrosive effect on relationships.

I share the distaste, horror and abhorrence of the noble Lord, Lord Beloff, for the events in Marseilles. Perhaps we need more order in our society. It is a pity that the noble Lord did not offer those examples to the House over the past decade or more, and was less enthusiastic than he might have been about the new initiatives of Jack Straw which I think are already beginning to have an effect. It is an effect which this society needs after it has espoused greed and all its consequences for the past decade and a half.

One has to be practical about the law and the requirements of discipline. But we shall not beat children into good behaviour. We have to apply common sense; and I do not see much common sense in the amendments.

Lord Lester of Herne Hill

I have listened carefully to all the speeches. I do not understand any noble Lord to be arguing that it is in the nature of liberalism or libertarianism that children should be subjected to inhuman or degrading treatment or punishment by teachers in state or private schools. All Members of the Committee seem to agree that the universal human right proclaimed 50 years ago in the universal declaration, in the English Bill of Rights of 1689, and subsequently defined in all the international human rights codes—that there should be no inhuman or degrading treatment or punishment—is one with which every Member of this House would agree.

The noble Lord, Lord Skidelsky, asked how it is the business of this House (or of another place, I suppose he would argue) to impose standards in the circumstances of the amendment. I shall try to answer him.

I have only two qualifications for making this speech. First, I inflicted corporal punishment as a prefect in a boys' school in front of a group of other prefects. I did so only once. It degraded me; it degraded the pupil; and it convinced me that corporal punishment is inherently degrading. But I would not seek to inflict that view on the population at large for obvious libertarian reasons, if that were all.

My only other qualification is that I argued one of the first corporal punishment cases. I should like briefly to recall what it was about. It answers the point made by the noble and learned Lord, Lord Wilberforce, who argued that the common law perfectly protects pupils in this country against inhuman and degrading treatment or punishment. At least, I think that that is what he submitted, among other things.

Lord Wilberforce

Not "perfectly".

Lord Lester of Herne Hill

Certainly in the case of Karen it was far from perfect. The story of Karen could apply equally to any independent private school. She had been smoking outside the school premises. I think that she was 15. She was caned by a male deputy headmaster in the presence of another master. We took the case to Strasbourg and had no difficulty in showing that le vice anglais, as it is called by the rest of Europe—the vice that the English and Irish, unlike the rest of Europe, have enthusiastically and less enthusiastically indulged in for a long time—had led to her degrading punishment. As a result the government of the day had to settle the case. As we know, corporal punishment in state schools had eventually to be abolished by Parliament in order to comply with Article 3 of the human rights convention which forbids inhuman or degrading treatment or punishment.

Meanwhile the steady evolution of the European court's case law—the court of which the noble Lord, Lord Beloff, so disapproved but which has been so careful in gradually moving in this area—has made it clear that states have a positive obligation to protect children against inhuman or degrading treatment or punishment, whether in state or private schools.

In the early cases there was concern about freedom of choice. In cases where parents did not want their children to be subjected to corporal punishment, the court said that it was an interference with their freedom of choice not to be able to protect their children. But then the court became stronger and said in some of its cases that there would be breach of the guarantee against ill treatment in Article 3 of the convention. I have little doubt that quite soon the court will hold that corporal punishment in any circumstances except those provided for in Clause 121 of the Bill, where one is dealing with imminent threats to the person or property, is inherently degrading and in breach of Article 3.

My difficulty about the amendment tabled by the noble Baroness is this. Although I know that it is not the noble Baroness's intention, I believe that the amendment would authorise breaches of Article 3 of the convention; or at best be so confusing as to make it difficult to know what the law was. The noble and learned Lord, Lord Wilberforce, said that the amendment was agnostic. With respect, I do not think that that is right. It is not an agnostic amendment. It authorises corporal punishment in the circumstances set out in the amendment.

What is wrong with the provision in a nutshell is that it does not embody the criteria needed to guarantee against inhuman or degrading treatment or punishment. Perhaps I may explain. First, it does not refer to the nature and gravity of the pupil's misconduct. It does not refer to the proportionality of the punishment to the nature and gravity of the pupil's misconduct—a crucial principle being that the punishment must fit the crime. As the noble Lord, Lord Annan, pointed out, it does not refer to the gender or age of the pupil, and of the teacher inflicting the punishment. Under the amendment, it is perfectly possible to authorise Karen's example: a male teacher, perhaps in the presence of another male teacher, inflicting corporal punishment on a 15 year-old girl. And it assumes that corporal punishment is not inherently degrading. As I explained, I believe that it is; and I believe that the European Court will say so.

The noble Lord, Lord Skidelsky, asked how it is our business to give effect to international human rights guarantees to which we must give effect under international human rights law. What is the business of the state or the legislature in giving effect to those safeguards? The answer is, first, that there are universal human rights to which all civilised countries adhere and recognise, of which the prohibition on inhuman and degrading treatment or punishment is one of the most fundamental.

Secondly, the state has a positive obligation to protect its citizens, especially its children, against ill treatment. That is not paternalism, it is not a breach of the John Stuart Mill principles, it is simply a recognition that the state has a responsibility to protect against the ill treatment of children.

Thirdly, it does not matter whether 66 per cent. of the British people are or are not in favour of corporal punishment in schools. It does not matter because, I suggest, basic human rights and their protection do not depend on the outcome of elections or the determination of majoritarian beliefs. Furthermore, if the democratic branch of the legislature by an overwhelming vote—that is, the elected representatives of the people—find it possible on a free vote in accordance with their consciences to disregard the beliefs of the majority, it does not behove us, the unelected part of the legislature, to disregard that massive vote in another place and make ourselves look somewhat older than we are and somewhat more outmoded and ridiculous than we would like to be.

I do not criticise the noble Baroness for tabling the amendment. To that extent, I respectfully disagree with my noble friend Lord Tope. The noble Baroness is perfectly entitled to table the amendment and we have had a healthy debate. However, I very much hope that she will not press it to a vote, but that if she does the answer will be the same as in another place.

6 p.m.

Lord Monson

I am glad to support my noble and learned friend Lord Wilberforce and the noble Baroness, Lady Blatch. Clause 121, which was not in the Labour Party manifesto—and rightly so because it would have done it no good—is wholly illiberal in that it seeks to force progressive prejudices—or "trendy Leftist prejudices", to use a populist description—on those who in all sincerity and honesty take a different view. I am sure that the noble Lord, Lord Lester, will agree that we are not talking about inhuman treatment. No one advocates that. Nor are we talking about boys beating other boys, a practice which rightly disappeared a long time ago.

Why should not thoughtful and caring parents who want their children to receive fair but firm discipline—firmer than they would receive at a state school and which may involve in extremis corporal punishment administered by those in loco parentis (a point that has been forgotten all too often in the debate)—be allowed to continue to make that choice? We are not talking only about conventional public and prep schools, many of which have already abolished corporal punishment; we are talking also, for example, about private day schools with a strong religious influence catering largely for children of West Indian descent. As anyone with any knowledge of the Caribbean will confirm, discipline in schools in the English-speaking West Indies is as strict as it used to be in this country prior to the 1960s. Many West Indian parents know that their children thrive on such firm discipline and are prepared to make considerable financial sacrifices to ensure that their children benefit from it. Once again, in a free country the choice should be theirs.

Lord Walton of Detchant

In many respects, I find the debate extremely distressing. It is extraordinary that one should hear arguments supporting the retention of a degrading and demeaning form of punishment if only because it is thought by some that the application of corporal punishment has a deterrent effect. Surely, that can be the only justification for proposing that it be retained in any sector of our educational establishment. Over the years, a great deal of evidence has accumulated to the effect that, for instance, capital punishment has no deterrent effect in relation to violent crime. The same arguments have been adduced in relation to the deterrent effect of corporal punishment in schools.

Discipline can be introduced and maintained in schools without any suggestion of applying some demeaning treatment. It is a mechanism which breeds hostility and resentment. I recall my early school days in an elementary council school in Durham County of which my father was the head teacher. His senior assistant master caned every child in the class for failure to complete a mathematical programme. I confess that I deeply resented that and even now recall it with a sense of resentment.

It seems to me that we are looking at an anachronistic clause in a Bill which, if added to by the amendment proposed by the noble Baroness, Lady Blatch, will allow the retention in our society of a punishment which is no deterrent and which I believe was properly removed from the maintained school sector a considerable number of years ago.

I found it astonishing that the noble Lord, Lord Beloff, in talking about the desperately offensive and degrading behaviour of English fans in Marseilles, should suggest that corporal punishment would have prevented that. Surely, there is a great deal of evidence to suggest that punishment such as the restriction of liberty, the removal of passports and even a life long ban on attending football matches would be a much more effective deterrent than corporal punishment. I cannot believe that to treat those individuals with the birch, to which reference has already been made, would have had any effect other than to increase violence on their part and to breed increasing hostility. The delivery of a violent form of punishment will in my view breed violence in return. For that reason, I trust that the Committee will reject the amendment.

Lord Skidelsky

I support the amendment moved by my noble friend and so cogently and eloquently supported by the noble and learned Lord, Lord Wilberforce. I found the arguments in support of the amendment much more convincing than the list of hypothetical cases put forward by the noble Lord, Lord Annan. It seems to have fewer reference to contemporary circumstances than to those of his own childhood. Neither did I find convincing the list of the noble Lord, Lord Tope, of organisations which supported his view. I was not brought up to believe that trotting out a list of people who agree with one is an argument.

Furthermore, the noble Lord, Lord Walton of Detchant, appears to be unable to distinguish between his right to hold his opinions and his right to enforce them on everyone else. That is the nub of our disagreement. We all repudiate the right of people to inflict barbarous and inhuman punishment on their own children. However, our opinions differ as to what constitutes barbarous and degrading punishment. We are arguing for the right of parents to inflict lawful punishment.

My argument is based passionately on my belief in liberty, on the absolute lexicographical priority of liberty; that is to say, that we do not trade-off liberty against certain other goods; that liberty is prior and must be upheld at all costs unless a clear harm is being done to others. That is John Stuart Mill's argument.

The question I wish to ask is: what is the difference in law between allowing parents to administer certain punishments in their own homes and delegating that right to others to administer them? What is the relevant difference? It seems to me that the logical consequence of the argument put forward by the noble Lord, Lord Lester—and he admitted it—is that because there is no logical difference the law will be driven by steps to control the right of parents to administer punishments which they deem right in their own homes. In other words, the parental slap will sooner or later become a battery as far as the law is concerned.

What is the consequence of that? Children will be encouraged to report on their parents. Neighbours will be encouraged to report on what is going on next door, possibly by a special line to Esther Rantzen. We shall gradually creep into a position which we so deplored when it happened in the Soviet Union. It will be said that that is impossible; that it cannot happen in England. But it can happen because things which seem reasonable in themselves, if continued by small steps, can lead to a situation which no one would wish. That is why I emphasise the priority of liberty. Of course the Minister understands that argument. But does she believe in it?

Lord Lester of Herne Hill

I am sure I must be right about this but in his argument about liberty, the noble Lord is not arguing, is he, that liberty justifies infringement of basic human rights and freedoms, including the ill treatment of children even by their own parents, any more than it justifies, for example, slavery or racial discrimination? He is not an absolutist about liberty. Does he then accept that if the international human rights codes forbid a certain level of punishment as being inhuman or degrading it is our obligation to make sure that we protect our children from the possibility that their basic rights will be infringed by institutions, whether state or independent, when those children are at school?

Lord Skidelsky

I believe that we have a right to make up our own minds as to what constitutes barbarous and inhuman treatment. No one is arguing on this side of the Committee that any kind of physical violence by parents or schools against children is justified. We are arguing for forms of punishment within the law. I do not believe that corporal punishment administered in the kind of environment specified in the amendment constitutes a violation of children's rights.

I conclude by saying that if Members of the Committee opposite believe in liberty, they should have no difficulty in accepting the amendment. It does not introduce any new principles or laws. It simply safeguards a liberty which exists. I do not believe that corporal punishment will have a long and glorious future. Most people already do not believe in it very much. I believe that it has its uses under exceptional and special circumstances and that the right to it should be retained.

6.15 p.m.

Baroness Park of Monmouth

I cannot support the amendment but I see difficulties and understand some of the thinking that prompted it. First, I am afraid that I warmly support the spanking of children by their parents, particularly when they are small. Very often, a spank and a kiss solves everything whereas cold-hearted treatment and reasoning leaves a much greater mark on a child. It is much better to administer a brisk spank and then to make up and say sorry. I believe in that, but I do not support what the amendment proposes to retain. However, I acknowledge the major difficulty raised by my noble friend Lord Beloff. I do not yet see what will be done to enable teachers to keep order now that they have lost a rather simple remedy when dealing with violent children.

I know an excellent Somerville graduate who became a teacher. She was the daughter of teachers and the only thing she wanted to do was to teach. She achieved a first in physics and I rejoiced to think that a good scientist would be teaching in our schools. After six years and three schools she gave up, because, as she told me, in each school she had encountered one hard core of children in a class—sometimes there could be more—who were not only determined not to learn but who were also determined to prevent others from learning. They were violent and impossible to control. In each case when she asked her headmaster what sanctions she had, she was told there were none. She was not allowed to send them home. In one case she was told, "Don't, for God's sake, do anything or we shall have the parents coming and beating us up." That situation is extremely dangerous and something must be done to solve it. It may be one reason for suggesting the retention of the power, but I cannot support the amendment.

The Lord Bishop of Ripon

It seems to me that the noble Baroness, Lady Park, referred to situations which do not relate to independent schools. First, staff in independent schools have the power of expulsion and therefore the situation is quite different from that which pertains in the cases to which the noble Baroness referred.

I support wholeheartedly what the noble Lord, Lord Walton of Detchant, said about discipline not necessarily having to be associated with corporal punishment. Indeed, it seems to me that corporal punishment is frequently the easy way out when one is talking of discipline. There are other ways of disciplining which are far more effective. The noble Baroness, Lady Blatch, talked about discipline within a caring ethos. There are ways of disciplining within a caring ethos which are far more demanding both for those who administer the discipline and for those who receive it.

Earlier, there was mention of the association between corporal discipline and religion. I found that rather difficult to follow. I am not clear quite what forms of religion were being referred to. Certainly, the religious tradition in which I stand goes back to the gospels. I should find it difficult to find in the gospels any mention of corporal punishment. In the gospels there is a strong sense of discipline and I should point out that the word "discipline" is related to the word "disciple". A disciple is one who learns and discipline is to enable us to learn. But it is difficult to find in my religious tradition the notion of corporal punishment.

I always understood the phrase in loco parentis to mean those who took over responsibility and care of children, not that those who took over that particular role could do whatever parents do. It seems to me that there is a distinction between what institutions do and what a parent does. Again, I support what the noble Baroness, Lady Park, said. There is an immediacy about parental involvement, held as it is within a strong framework of affection which is different from discipline administered by an institution.

Finally, I make the point that many people these days choose to send their children to Church schools because they believe that in such schools there is precisely that strong, firm discipline within a caring ethos. But within Church schools, certainly those in the maintained sector, corporal punishment is not allowed.

Lord Milverton

I am afraid that I cannot support my noble friend's amendment. Perhaps my wife and I have been fortunate. We never wanted to smack. We never found it necessary and we never wanted to do it. To me, it seems senseless and pointless just as it seems to me to be pointless to have caning in some schools. I was caned. Why? Just because one had a half-cross mark for some misdemeanour. If one reached four crosses, one knew that meant the cane. One was caned by a sixth former, with the rest of the sixth form watching. Although it was meant to be hush-hush in the house, everybody knew that it would happen after prayers. One went to one's study and knew that there would be knock, knock, knock, and one would be told to go along to the library to receive one's punishment. It seems pointless.

In all this, surely discipline comes from winning respect. One knows that it is dashed hard for teachers in many state schools. Is one of the reasons for nuisance children who prevent others from learning that their parents have not been able to win their children's respect, or that those children have not seen their parents give respect to others? Surely the core of discipline is respect, not only towards others but towards oneself.

Children will respect adults who respect them. That is how it must be done. That is a hard task. At the school where my wife teaches, Marlborough College, a girl from a state school is attending for her sixth form years. She and her sister found it dashed hard to learn at the state school because it was made hard for them to do so. The staff were, in a sense, tired out by doing what they had to do. It was difficult for those girls to get the staff to help them. All credit to that girl's sister: she got through it and went to university. Discipline comes from respect between all.

Baroness Warnock

I hope that this debate will turn out satisfactorily for me. I hope that we shall not be high on the concept of liberty—that we are depriving people of their liberty by refusing to continue to permit corporal punishment in independent schools. It is clear that we are divided morally—that is, whether we think corporal punishment is right or wrong is a moral question. There is also a tremendous amount of evidence in schools that violence breeds violence. The best schools are those where corporal punishment has not for a long time been used even if it is permitted.

There is a huge difference between passing and enforcing a law that is intrusive and would in any case be difficult to enforce—such as one making it illegal to exercise corporal punishment in the home. The concept of corporal punishment in an institution, be it a private school or maintained school, is ultimately under the eye of the law. What happens there can be discovered without undue intrusiveness or spying. It is one of those frequent cases where, for example, one might wish for a law against adultery but to have such a law would be obviously and hopelessly intrusive. The evils that came from such a law would be far worse than any good that could come of it. One must always take into account the difference between private morality and public morality. We are undoubtedly debating what is public morality.

As the noble Lord, Lord Meston, knows, I am not much enamoured of the concept of human rights but, where we are prepared to talk about human rights, we are talking about a consensus of what is evil and bad for human beings in general. If we must talk about human rights, there is a consensus—as demonstrated in another place, against corporal punishment. We would be utterly wrong to go against that consensus—although we are all perfectly entitled to express our own moral opinions.

Lord Skidelsky

If the noble Baroness believes that corporal punishment, however humanely administered or however loving the environment, harms the child, how can she say that such punishment can be justified at home but not at school—especially at private school?

Baroness Warnock

I do not believe that corporal punishment is justified in the home. I was merely saying that it would be extremely contrary to the general public good to have a law against it, because that would be too intrusive. Respect for privacy would tell against such a law. I would not say that corporal punishment is justified in the home. On the contrary. We are in a position to prevent corporal punishment in schools. We are probably not in a position to prevent corporal punishment in the home. It is not that corporal punishment is good in one case and bad in the other. It is bad in all cases. In my view, modern morality must be taught largely by example. The exercise of violence is no way to encourage inner discipline and goodness. I certainly do not think that by law there should be the freedom to commit that kind of harm on a child.

Lord Gisborough

I apologise to the Committee for rising to speak, having just come in. I had a public duty in the North and I have just arrived.

Noble Lords

No!

Lord Meston

I want the noble Baroness, Lady Blatch, to amplify her remark that many schools want the exemption that she advocates in her amendment. Just how many private independent schools want exemption? What proportion of the private independent educational sector supports the noble Baroness? I understood my noble friend, Lord Tope, to say that level of support has not been reflected in the representative body of private independent schools.

I spend much of my professional life involved in cases concerning the physical abuse of children. That abuse is often inflicted in the home, by a parent or step-parent. They are people who, with the best will in the world, do not know where to draw the line, then seek to justify their actions after the event by saying that they were exercising reasonable chastisement—sometimes, with quite dreadful results.

Of course there is a distinction to be drawn between what happens and can be regulated in the home and what can happen in a school. The common theme is that violence begets violence and does so from one generation to another. Quite the wrong message will go out from this Committee if we support the amendment.

6.30 p.m.

Baroness Blackstone

Debates on corporal punishment always demonstrate a very wide range of personal views, most of them irreconcilable. This debate is no exception. It would be quite wrong for me to try to respond to the debate or indeed in any way to sum it up. As I said earlier, this is a matter for a free vote. All I want to do is make a few brief points where I understand that the factual position may not be entirely clear.

It is perhaps worth noting that very few independent schools still use corporal punishment and that there was broad support from the independent schools associations for the intent of Clause 121. Moreover, I should also like to mention that there is continuing international criticism of the UK's seemingly inconsistent position: both the UN Human Rights Committee and the Committee on the Rights of the Child recommended in 1995 that corporal punishment in independent schools should be outlawed completely.

The noble Baroness, Lady Blatch, has called for the restoration of corporal punishment following its abolition in another place on a free vote. As Her Majesty's Chief Inspector has reported, we should remember that most schools are orderly communities, although there were one or two purple passages in this debate which suggested otherwise. Where there are serious problems of indiscipline, Section 4 of the Education Act 1997, which comes into force on 1st September of this year, will allow teachers to use "reasonable force" to restrain a pupil from doing certain things; for example, committing an offence, causing personal injury to himself and others, or causing serious disruption. It is also the case that there are powers for schools to exclude extremely difficult and disruptive pupils. In the independent sector, which we are discussing today, there are powers, as has already been mentioned, to expel pupils.

Most teachers do not believe that corporal punishment is the answer or that it would have any practical impact on enforcing discipline or maintaining high standards of behaviour. There have been no demands from school governors or the teacher associations to restore corporal punishment in maintained schools since the amendment was passed in another place. Noble Lords will also recall that attempts during the last Parliament to do so were also soundly defeated on a free vote.

Under this clause a member of staff at a school or a nursery education institution would no longer be able to rely in any type of criminal proceedings—for example, a prosecution for assault—on the common law defence of "reasonable chastisement" to justify the use of corporal punishment. This would affect maintained as well as independent schools.

The provision as it affects nursery education is very tightly drawn: it would not extend to institutions, groups or premises (such as private homes) where only childcare services are provided, or to parents who teach their children at home. I am advised that these are outside the scope of the Bill.

I should like to reiterate what my honourable friend Estelle Morris said in another place. The Government have no intention of using the new clause or any other provision to extend the ban on corporal punishment into the family setting. If I understood the noble Baroness, Lady Blatch, correctly, she seemed to imply that the Government would seek such a ban at some point. It is the personal responsibility of parents to decide for themselves what disciplinary arrangements are appropriate for their child at home. As the noble Baroness, Lady Warnock, said, it would be extremely intrusive to try to impose a ban on corporal punishment in the home.

It has also been argued that Clause 121 would contravene the European Convention on Human Rights. I understand that similar arguments were used in a case brought against Sweden in 1982, which prohibited corporal punishment in all its schools. The case failed. The European Court of Human Rights has on several occasions made it absolutely clear that it is against corporal punishment in schools. I have received legal advice to the effect that the European Court would therefore be most unlikely to uphold any argument that the new clause would violate the rights of parents, under Article 2 of Protocol 1, who wanted to send their child to a school where corporal punishment was used.

I shall simply end by saying that I personally support this clause and oppose the amendment moved by the noble Baroness, Lady Blatch.

Baroness Blatch

I should like to pick up one of the points made by the Minister about the department's view on punishment. There is much concern among teachers about unruly behaviour in schools and actual damage done to teaching staff. Indeed, one only has to remember the awful death of Mr. Lawrence, because we understand that the young people involved were of school age. In only February of this year the Department for Education and Employment felt compelled to issue draft guidance permitting schools, in the most exceptional circumstances"— and we are talking about in extremis— to use force in a way that might reasonably be expected to cause injury". Examples were given in that respect, such as: holding a pupil around the neck by the collar or in any other way that might restrict the pupil's ability to breathe; slapping, punching or kicking a pupil; twisting or forcing limbs against a joint; tripping up a pupil and holding or pulling a pupil by the hair. I understand those are very exceptional circumstances. They are situations where teachers have to intervene in what might be an extreme fight and where someone is in danger of being seriously hurt. I understand the context in which those examples were outlined; nevertheless, they do constitute a form of corporal punishment.

In answer to many points that have been made by Members of the Committee during the course of the debate, I should point out that the Department of Health issued guidance to independent schools following the abolition of corporal punishment in state schools. I shall read from the document because it is important and will answer a number of points that have been raised. I shall quote from paragraphs 391 to 395 of the Children Act Guidance, Volume 5, for independent schools: In normal circumstances children should be encouraged to behave well by the frequent expression of approval by staff and by the generous use of awards rather than by the extensive imposition of sanctions. The latter might reasonably include: temporary removal of privileges. mild or moderate verbal reprimand, additional household chores and restriction of leisure activities. Sanctions which are unproductive, eg writing out of lines, or which involve the use of educational activities, such as essay-writing, should be avoided as a means of punishment. If in exceptional circumstances it is decided to use corporal punishment, it should not be unreasonable (for trivial offences or applied indiscriminately to whole classes) or excessive. In all circumstances punishments and sanctions need to be applied fairly and consistently, making the distinction between minor and serious offences clear, yet at the same time allowing a degree of flexibility for individual circumstances. In deciding how these criteria are to be applied some allowance needs to be made for the cultural ethos and declared policy of the school. Corporal punishment is widely regarded as particularly inappropriate for children with sensory, physical and intellectual impairment and those with emotional and behavioural difficulties. Details of corporal punishment—date, nature of offence, nature of punishment—should be recorded in the punishment book and the record witnessed by another adult. In normal circumstances corporal punishment should only be administered by the head teacher. The imposition of sanctions (but not corporal punishment) by prefects or teachers is permissible". In other words, to answer the point made by the noble Lord, Lord Annan, no one other than the head teacher can administer corporal punishment but other sanctions can be administered by teachers or prefects, including the minor sanctions to which I have already referred. The document goes on to say: Sanctions administered or imposed should be recorded stating clearly the nature of the transgression and the nature of the sanction, and be subject to monitoring by a senior member of staff who is concerned with care of children within the school. The record should be available to parents". That is the end of the quotation from the guidance document. Independent schools are bound by that. That is the guidance to independent schools. All those who have written to me have argued strongly that they are entirely happy to live within the guidance of our health department.

The schools are also subject to external inspection. The records and the regime of the school are made available for inspectors to make a judgment on that. I say to the noble Lord, Lord Meston, that I am not in any way supporting something comparable to the abuse of children in the home. Many of the letters I have received state movingly that abolishing corporal punishment in schools will not lessen the incidence of abuse in the home, which we all certainly abhor.

I refer to the point on the European Convention on Human Rights mentioned by the noble Lord, Lord Lester of Herne Hill. I defer to his expertise in these matters. In the Costello-Roberts v. United Kingdom case the court stressed that, in order for punishment to be 'degrading' and in breach of Article 3, the humiliation and debasement involved must attain a particular level of severity and must in any event be other than that usual element of humiliation inherent in any punishment. Indeed, Article 3, by expressly prohibiting 'inhuman' and 'degrading' punishment, implies that there is a distinction between such punishment and punishment more generally". In the case of Costello-Roberts, the court expressed, 'certain misgivings about the automatic nature of the punishment and the three-day wait before its imposition', but still considered that the minimum level of severity had not been reached". We are not talking about excessive severity. We are talking about legal punishment. I wish to quote extracts from letters I have received, I write as a former parent of a Christian Independent School where I now teach. Never have I taught in a school where there was more loving concern for the whole child. When our child was admitted to the school we gave our written consent, giving the school the authority to exercise corporal discipline if it should be deemed necessary. We love our daughter dearly and we felt confident in the staff being just, loving and merciful, and knew that this type of discipline was only used in cases of persistent disobedience or the breaking of the moral code. I am glad to say that this type of discipline was never necessary, but I have seen the positive effects of corporal discipline being used. When children choose to cross boundaries set they, like all of us, need to know there is a cost. In our school (very much as it is at home) when the punishment is over the slate is wiped clean and the children have a fresh start. They know they are loved and their value as human beings is undiminished. We trust that they have learned from the episode". Another letter states, Having taught in state schools I was (and am) concerned over the unruly behaviour of some pupils and the erosion of options open to a teacher for disciplining such unacceptable behaviour". Another letter states, While not wishing to denigrate the importance of ensuring that children are not subject to abuse or put at risk we believe it is important to respect the religious convictions of parents who consider that under certain circumstances and after careful consideration, it may be necessary for a school to apply corporal discipline … The ethos of a school should be an extension of the discipline used in the home where corporal discipline is based on the guiding principles of love and correction. If the amendment is carried, it opens the way for further legislation against any parent using corporal discipline in the home". Yet another letter states, As a parent I feel this is an infringement on my belief and rights as a parent on how I feel my child should be brought up. The lack of discipline in schools in general is alarming and it is evident for all to see the decline of behaviour since 1986, when corporal punishment was outlawed in maintained schools. My son is now 16 years and has benefited greatly from standards and boundaries being set which then had a punishment appropriate that was carried out if he did not stay within the limits set. This was always done in a loving environment not when a teacher was enraged and lashed out, always with the parents' support. I feel this is the thin end of the wedge. Next … the home. All of these rules will make no difference to the child battering parents— I refer to the point made by the noble Lord, Lord Meston— I feel these are two completely different issues. I feel as a parent my need for 'respect of my rights to ensure education and teaching in conformity with my own religious and philosophical convictions' as the European Convention on Human Rights allows". We are not talking here about inhuman and degrading treatment; that is ruled out by the European Convention on Human Rights.

The noble Lord, Lord Tope, criticised me for tabling this amendment at the last minute. However, it was tabled on Thursday. If one compares that with the tail end stages of the Bill in another place discussed at 5 o'clock in the morning, I think I probably win as regards having a fuller Chamber to debate this issue. The noble Lord, Lord Annan, asked me about my preference in terms of punishment. Even if I were against corporal punishment, I would support this amendment. I have no preference. I do not wish to choose between a tawse and something else. In fact I think a tawse would be totally outlawed under the present law. I support the right of parents to choose independent education and to choose within the law a punishment regime that they believe is right for their child.

As the noble and learned Lord, Lord Wilberforce, made clear, this amendment is not about the merits or demerits of corporal punishment. It is about defending the right of parents to send their children to a school that in extremis applies corporal punishment fairly and within the limits of the European Convention on Human Rights, if that is what they choose.

6.46 p.m.

On Question, Whether the said amendment (No. 246FA) shall be agreed to?

Their Lordships divided: Contents, 64; Not-Contents, 150.

Division No. 3
CONTENTS
Beaumont of Whitley, L.	Lyell, L.
Beloff, L.	Mancroft, L.
Blatch, B.	Marlesford, L.
Bowness, L.	Massereene and Ferrard, V.
Broadbridge, L.	Molyneaux of Killead, L.
Brougham and Vaux, L.	Monson, L.
Byford, B.	Mountevans, L.
Cadman, L.	Norrie, L.
Caithness, E.	Northesk, E.
Carnegy of Lour, B.	O'Cathain, B.
Carnock, L.	Orr-Ewing, L.
Clark of Kempston, L.	Oxfuird, V.
Coleraine, L.	Palmer, L.
Cope of Berkeley, L.	Pearson of Rannoch, L.
Cross, V.	Pike, B.
Dean of Harptree, L.	Rawlings, B.
Dilhorne, V.	Reay, L.
Dixon-Smith, L.	Rennell, L.
Gisborough, L.	Rowallan, L.
Gray, L.	Saltoun of Abernethy, Ly.
Greenway, L.	Seccombe, B. [Teller.]
Harmar-Nicholls, L.	Sharples, B.
HolmPatrick, L.	Shaughnessy, L.
Hooper, B.	Skelmersdale, L.
Kinnoull, E.	Skidelsky, L. [Teller.]
Kitchener, E.	Stodart of Leaston, L.
Knight of Collingtree, B.	Strathclyde, L.
Leigh, L.	Sudeley, L.
Lindsay, E.	Teviot, L.
Liverpool, E.	Wilberforce, L.
Lucas of Chilworth, L.	Wilcox, B.
Luke, L.	Wise, L.

NOT-CONTENTS
Acton, L.	Eatwell, L.
Addington, L.	Elis-Thomas, L.
Allenby of Megiddo, V.	Evans of Parkside, L.
Amos, B.	Ewing of Kirkford, L.
Ampthill, L.	Falconer of Thoroton, L.
Annan, L.	Falkland, V.
Archer of Sandwell, L.	Farrington of Ribbleton, B.
Ashley of Stoke, L.	Gallacher, L.
Barnett, L.	Garel-Jones, L.
Berners, B.	Geraint, L.
Birdwood, L.	Gilbert, L.
Blackstone, B.	Gladwin of Clee, L.
Blease, L.	Glenamara, L.
Borrie, L.	Goodhart, L.
Brooks of Tremorfa, L.	Graham of Edmonton, L.
Burlison, L.	Gregson, L.
Carlisle, E.	Grenfell, L.
Carmichael of Kelvingrove, L.	Hampton, L.
Carter, L.	Hamwee, B.
Clinton-Davis, L.	Hanworth, V.
Cocks of Hartcliffe, L.	Hardie, L.
Darcy de Knayth, B.	Hardy of Wath, L.
David, B. [Teller.]	Harris of Greenwich, L.
Davies of Coity, L.	Haskel, L.
Davies of Oldham, L.	Hattersley, L.
Dean of Beswick, L.	Hayman, B.
Dearing, L.	Henderson of Brompton, L. [Teller.]
Desai, L.
Diamond, L.	Hilton of Eggardon, B.
Dixon, L.	Hogg of Cumbernauld, L.
Donoughue, L.	Hollick, L.
Dormand of Easington, L.	Hollis of Heigham, B.

Hoyle, L.	Prys-Davies, L.
Hughes, L.	Puttnam, L.
Hughes of Woodside, L.	Ramsay of Cartvale, B.
Hunt of Kings Heath, L.	Randall of St Budeaux, L.
Irvine of Lairg, L. [Lord Chancellor.]	Redesdale, L.
	Rees-Mogg, L.
Islwyn, L.	Rendell of Babergh, B.
Jay of Paddington, B.	Richard, L. [Lord Privy Seal.]
Jeger, B.	Ripon, Bp.
Jenkins of Putney, L.	Rodgers of Quarry Bank, L.
Judd, L.	Rogers of Riverside, L.
Kennet, L.	Russell, E.
Kilbracken, L.	Russell-Johnston, L.
Lawrence, L.	Sandberg, L.
Lester of Herne Hill, L.	Sandwich, E.
Linklater of Butterstone, B.	Scotland of Asthal, B.
Lockwood, B.	Sefton of Garston, L.
Lofthouse of Pontefract, L.	Serota, B.
Lovell-Davis, L.	Sewel, L.
Ludford, B.	Shepherd, L.
McIntosh of Haringey, L.	Simon, V.
Mackie of Benshie, L.	Simon of Highbury, L.
McNair, L.	Southwell, Bp.
McNally, L.	Steel of Aikwood, L.
Masham of Ilton, B.	Stoddart of Swindon, L.
Merlyn-Rees, L.	Stone of Blackheath, L.
Meston, L.	Strabolgi, L.
Milner of Leeds, L.	Taverne, L.
Milverton, L.	Taylor of Blackburn, L.
Mishcon, L.	Thomas of Gresford, L.
Molloy, L.	Thomas of Macclesfield, L.
Monkswell, L.	Thomas of Walliswood, B.
Montague of Oxford, L.	Tope, L.
Morris of Manchester, L.	Tordoff, L.
Murray of Epping Forest, L.	Tugendhat, L.
Newby, L.	Turner of Camden, B.
Nicol, B.	Wakefield, Bp.
Orme, L.	Walker of Doncaster, L.
Parry, L.	Walton of Detchant, L.
Paul, L.	Warnock, B.
Peston, L.	Weatherill, L.
Pitkeathley, B.	Whitty, L.
Plant of Highfield, L.	Williams of Elvel, L.
Ponsonby of Shulbrede, L.	Williams of Mostyn, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.55 p.m.

[Amendment No. 246FB not moved.]

On Question, Whether Clause 121 shall stand part of the Bill?

Lord Wilberforce

I have already made my submissions. I do not wish to trouble the Committee with any further observations.

Clause 121 agreed to.

Clauses 122 to 125 agreed to.

Schedule 28 agreed to.

Clause 126 agreed to.

Lord Whitty moved Amendment No. 246G:

After Clause 126, insert the following new clause—