text:
HANSARD 1803–2005 → 2000s → 2004 → July 2004 → 5 July 2004 → Lords Sitting
Children Bill [H.L.]
HL Deb 05 July 2004 vol 663 cc518-603 518
§ 3.19 p.m.
§ The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland)
My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Ashton of Upholland.)
§ Baroness Finlay of Llandaff
moved Amendment No. 106: After Clause 48, insert the following new clause—
"REASONABLE CHASTISEMENT
Battery of a child cannot be justified in any proceedings on the grounds that it constituted lawful punishment.
(2) Battery of a child is not unlawful if the act amounts to the use of reasonable force in order to—
avert an immediate danger to the child or any other person;
(b) avert an immediate danger to property; or
(c) prevent the commission of a crime, or an act which would be a crime if the child had reached the age of criminal responsibility.
(3) For the purpose of subsections (1) and (2) above "child" means a person under the age of 18.
(4) Section 1 of the Children and Young Persons Act 1933 (c. 12) (cruelty to persons under sixteen) is amended as follows.
(5) In subsection (7) at end insert "subject to subsection (8) below".
(6) After subsection (7) insert—
"(8) Corporal punishment administered to a child cannot be justified in any proceedings on the ground that it was administered in pursuance of a right exercisable by virtue of subsection (7) above.
(9) For the purpose of subsection (8) above, administering corporal punishment to a child means doing anything for the purpose of punishing that child which would constitute unlawful battery."
(7) This section extends to England and Wales only."
The noble Baroness said
My Lords, the aim of the amendment is to give children the same protection from assault as adults currently enjoy, and yet allow parents to take actions needed to protect their child and others from danger. The issues behind this amendment go to the very heart of our own personal experiences as parents and children. Let me make it clear from the outset: I am not against disciplining 519 children. I am known to be strict and have firm boundaries. I greatly appreciate the time that the Minister has spent with me and others, discussing this issue in depth.
We have legislated for equality of opportunity and against discrimination in our society. We protect in law all our citizens from battery—but not our children. We have failed to give children equal protection in law from assault. Today noble Lords are being asked to consider whether assaulting children is right, or whether the time has come to listen to the evidence from those countries that have taken steps to respect their children and acknowledge their human rights.
We insist on zero tolerance of domestic violence once someone is 18, but for those under one year old, our society accepts that more than half will be hit at least weekly by their parents—14 per cent with moderate severity—and for what? They are hit for being hungry, or for needing a nappy change or a cuddle. By the time children are four, the Department for Health's own data reveals 38 per cent are hit more than once a week, often moderately severely and behind closed doors in the privacy of the family home. They often do not know what they did to deserve the hit; they are being taught that the way to get someone to do what they want is to hit him. The Government's Social Exclusion Unit found that eight out of 10 child runaways cite family violence as the cause. As one child runaway said, "I was sick of my dad and his girlfriend hitting me".
Twelve days' ago, the Parliamentary Assembly of the Council of Europe noted that the European Court of Human Rights has found in successive judgments that corporal punishment violates children's rights under the Convention for the Protection of Human Rights and Fundamental Freedoms. Those decisions applied most recently within the family home; moreover, both the European Commissioner for Human Rights and the Court have emphasised that banning all corporal punishment does not breach the right to private or family life or religious freedom. The Association of Chief Police Officers, whose chairman has mailed me today to wish us good luck, and the Association of Directors of Social Services, have both issued statements in support of our amendments and have stated that they want to be directly involved in drawing up guidelines for handling reports against parents.
Amendment No. 106 is absolutist. It gives a clear message, in line with the Parliamentary Assembly of the Council of Europe, which considers that, any corporal punishment of children is in breach of their fundamental right to human dignity and physical integrity. The fact that such corporal punishment is still lawful in certain member states violates their equally fundamental right to the same legal protection as adults. Striking a human being is prohibited in European society, and children are human beings. The social and legal acceptance of corporal punishment of children must be ended".
Children tell us how much smacking hurts them. It hurts them, not only physically but inside. They tell us that they think that very young children should never be hit and that it teaches a child a way in which to get 520 control over someone else's behaviour—so it is hardly surprising that they are the children that go on to hit others.
In Committee it was said that the kind of punishment that results in injury is clearly not reasonable chastisement and, as such, is already against the law. Sadly, however, there are cases to prove that point wrong. The very existence of the defence sends a clear message that hitting children is acceptable and lawful. Very few cases reach court because of the existence of the defence; the police, the Crown Prosecution Service, social workers, paediatricians and so on, know of the defence and so do not press cases. That means that many assaults remain hidden from the public documenting procedures. In fact, prevalence research reveals a huge problem of violence against children and the family.
The Government are increasingly forceful in ensuring that violence in other forms is cracked down on, yet appear to condone, by resisting equal protection, the silent epidemic—that 700,000 under-one year-olds are hit in the privacy of their home before language and reasoning develop. Well over 4 million children in England and Wales experience being hit more than once a week in the name of discipline, year on year. Although one adult parent cannot hit the other parent, 97 per cent of these parents can continue to hit their child, aged one to four years.
Amendment No. 106 would not create a new offence but would mean that any assault that would be classed as criminal assault if aimed at an adult would become a criminal assault if aimed at a child. That is what equal protection means—it is not new. Since Committee stage, the Association of Directors of Social Services has reaffirmed its strong support for equal protection. It has taken a policy decision to support this position, not because it has any interest in parents being prosecuted for trivial matters but because it believes that children should be afforded the same protection of the law as other citizens.
The association feels that the new clause would not lower the thresholds for assessing the risks of significant harm, but would go a long way towards removing existing legal ambiguities concerning the protection of children and the rights of parents and carers to inflict violence on children. Such assessment focuses on the needs of the child, predicated on the principle enshrined in the Children Act 1989 that, wherever possible, those needs are best served within the child's own family. They, like the vast majority of your Lordships, believe that children can and should be firmly disciplined and be subject to clear, consistent parental controls, but that can be achieved without inflicting violence on children.
I have carefully read the evidence of the Director of Public Prosecutions to the Joint Committee on Human Rights, as I fear that he has been widely and selectively misquoted. Just as most minor assaults against adults are not prosecuted, he suspected that most minor assaults would not be either. Such prosecutions would be very rare. But of course he emphasised that the far greater vulnerability of 521 children meant that he could not guarantee that it would never be in the public interest to prosecute in such cases, citing examples of particularly vulnerable children, such as a mentally handicapped child. The best interests of the child victim are invariably considered as part of the public interest test.
I encourage the minority who spoke in Committee on the perceived benefits of smacking to review all the research in the area. Overall, long-term outcomes of physical punishment in childhood show increased aggression and violent behaviour as a child and when adult; less capacity for empathy; less internalisation of moral aspects of discipline; increased probability of anti-social and criminal behaviour in adulthood, including spousal and/or child abuse; and evidence of compromised mental health.
Let us be clear, however. We do not expect to see research into the harmful effects of slapping women or mistreating elderly people in care homes. We assert their human right to the full protection of the law. We do not have to prove that smacking children is harmful to justify extending to them the protection that all other larger people take for granted. They share with us an equal human right to respect for their human dignity and physical integrity.
Research overwhelmingly supports equal protection. But let us not be diverted into the arguments that distract attention from the basic wrong that we have an opportunity to right. Children tell us that the hitting occurs behind closed doors, where no one can see. Some know that their parents are ashamed of it much of the time, while others live in fear, not knowing what today will be allowed and tomorrow will receive a clout. We know that the baby's brain, and hence personality and behaviour, develop in response to stimuli. Calm loving will develop a disciplined mind; chaotic, violent families teach violence to their children, and those are the children who go on to perform poorly at school, are less able to resolve conflict without violence and are more likely to end up in youth custody. The child learns that the best way to get people smaller than himself to do what he wants is to hit them.
We can reverse the trend. Respecting the human rights of children promotes their dignified personal development. Amendment No. 106 aims to prevent the escalation of battery into systematic abuse. Prevention is all. Our amendment gives a clear message to society that hitting is wrong. When visible physical injury occurs, it is too late. We have to grasp and pursue the principle and then set about ensuring that the law provides equal protection and is implemented in the best interests of children.
The new clause proposed in Amendment No. 106 has the support of 400-plus associations and people representing all elements of the child protection service that has signed up to the stated aim of the Children are Unbeatable! Alliance—which is the aim of equal protection. They have not done so without careful 522 thought. It is not an easy issue, but we have to move on as this huge body of professional opinion has already moved on in the light of evidence.
It seems absurd to say that equal protection is unworkable when children in 12 countries in Europe—just over a fifth of Europe's children—already enjoy equal protection from assault, most recently in Romania and Ukraine. That is a fundamental human rights issue. Article 19 of the UN Convention on the Rights of the Child requires states to take appropriate legislative and other measures to protect the child from all forms of physical or mental violence while in the care of parents or others. The Committee on the Rights of the Child has told the UK twice with increasing emphasis that we must prohibit all corporal punishment. The European Committee of Social Rights takes the same position. Let us be clear. The child learns that the way to get someone to do what you want is to hit them, especially if they are smaller than you.
I am aware that Amendment No. 106B, which I will address briefly, seems seductive. It appears at first sight to help to prevent abuse, but it does not prevent children being assaulted. Amendment No. 106B takes away the defence of reasonable chastisement in the case of a statutory offence, as in subsection (2). However, it leaves parents able to justify common assault—hitting and hurting—as reasonable punishment. You would still need to prove bodily harm; that is, something to show. Yet considerable soft-tissue damage, including brain damage, can leave no external mark, no fracture on X-ray, and it can be very difficult to prove that it was related to the witnessed episode of battery. The physical force behind a smack is very seriously underestimated by over half of hitters. It does not prevent the repeated subtle physical punishment of children behind closed doors, which cleverly results in no visible bodily harm when the child is next with those who might spot it. That makes it very difficult, if not impossible, to bring proceedings. Our amendment stops assault, but explicitly recognises the importance of protecting children.
Amendment No. 106B gives a mixed message to the public. As it says, you can go on hitting children, then you have to pick and choose between offences, to know whether you were acting lawfully or unlawfully. Our amendment simply says that hitting children is wrong. I do not consider that Amendment No. 106B would satisfy our human rights obligations under the UN Convention on the Rights of the Child or the European Social Charter. The Committee on the Rights of the Child specifically emphasised in its report to the UK in October 2002 that proposals to limit rather than to remove the right to use corporal punishment do not comply with the principles and provisions of the convention. The committee stated that suggesting that some forms of corporal punishment are acceptable undermines educational measures to promote positive and non-violent discipline. The European Committee of Social Rights takes the same position. 523 The Bill is about children. Suzie, aged seven, said: If they changed the law then a lot of people will realise what they had done to their child, and they would probably be happy the law was changed. If they don't change the law they will think `Oh, well the child doesn't mind so we can just keep on doing it like we always have"'. Amy, aged nine, said: A big person should not hit a small person, not anyone, ever". Children should have equal protection under the law on assault. That is the effect of the new clause proposed by Amendment No. 106, with appropriate reassurance that parents can use physical actions to protect and restrain children, protect property and prevent the commission of a crime. As the European Convention on Human Rights and the Court have emphasised, banning corporal punishment does not breach the right to private or family life. I beg to move.
§ Lord Lester of Herne Hill
My Lords, Amendment No. 106B, standing in my name, offers an alternative approach to Amendment No. 106. I share the common aim of the noble Baroness, Lady Finlay of Llandaff, and the other supporters of Amendment No. 106. The abusive punishment of children is a serious social evil and the existing law needs to be strengthened to increase child protection. Like them, I believe that parents' unnecessary resort to smacking to discipline their children to be undesirable and, like many parents, I have to plead guilty to having done so myself on rare occasions.
But I have the misfortune to disagree about the choice of means adopted in Amendment No. 106, and regard it as fatally flawed. Unlike Amendment No. 106, my amendment seeks to outlaw abusive punishment without also outlawing reasonable parental discipline of children. Amendment No. 106B seeks to do so in a way that achieves the reasonable legal certainty required by human rights law. It was in fact not me but the Director of Public Prosecutions, Ken Macdonald QC, who considered that that could be a possible solution when he gave evidence to the Joint Committee on Human Rights on 19 May.
According to my amendment, child battery cannot be justified as a "reasonable punishment" in any proceedings for wounding and causing grievous bodily harm, or for cruelty to children under 16, or for assault occasioning actual bodily harm. The meaning of "actual bodily harm" under English law was conveniently summarised by the European Court of Human Rights in the case of A v United Kingdom as including, any hurt or injury calculated to interfere with the health or comfort of the victim; the hurt or injury need not be permanent but must be more than transitory or trifling". It is also an offence under Section 1(1) of the Children and Young Persons Act 1933 to commit acts of cruelty to children, for example, to assault or ill-treat a child in a manner likely to cause the child unnecessary suffering or injury to health.
My amendment ensures that it will not be possible to justify as a reasonable punishment an assault occasioning actual bodily harm. Such a justification was relied upon in the notorious case of A v United Kingdom, where a jury 524 acquitted a stepfather who had caned a nine-year-old boy with considerable force on several occasions, causing serious bruising to the child. The European Court held, with this Government's agreement, that the failure to provide adequate protection in English law was a violation of Article 3 of the Convention on Human Rights. The court awarded £10,000 compensation and the Government undertook to amend the law.
My amendment seeks to give effect to that important government undertaking to the Strasbourg Court. Any assault occasioning actual bodily harm to a child will not be justified as constituting a reasonable punishment. That will put children on the same basis as adults in such cases.
It is also an offence under Section 1(1) of the Children and Young Persons Act 1933 to commit acts of cruelty to children, for example, to assault or ill treat a child in a manner likely to cause the child unnecessary suffering or injury to health. My amendment would repeal the archaic and anomalous Section 1(7) of the 1933 Act, which allows parents to claim that acts of wilful assault that cause suffering to a child are reasonable punishment.
I shall not explain my objection to the amendments of my noble friend Lord Thomas of Gresford to my own amendment. They confuse the issue by seeking to convert my amendment into something akin to Amendment No. 106—a cuckoo in the nest. If Amendment No. 106 does not pass muster, I hope that the House will not be beguiled by his advocacy into treating the Thomas amendment as a workable compromise when in reality it would distort both the criminal and civil law of assault and their effectiveness.
I am delighted that the Attorney-General is in his place and I hope that he will be in a position to advise the House on the legal effect of all three sets of amendments. I am grateful to him and to Ministers for their willingness to discuss this important issue. It was as a result of our discussion that I withdrew my original Amendment No. 106A for its lack of legal certainty, and tabled Amendment No. 106B instead.
I greatly welcome the support of the noble Lord, Lord Laming, because he has such great experience and authority from the Victoria Climbiáe inquiry. I also welcome the strong and significant support of Liberty which, like me, is a signatory of the Children are Unbeatable! Alliance.
As I say, there is a need to strengthen legal protection for children whose parents are violent towards them, but I do not believe that parents should be criminalised for administering a light disciplinary smack because it is technically a battery; nor do I believe that equality requires such an extension of the criminal law.
Amendment No. 106 is seriously flawed. It is both over inclusive and under inclusive. It is over inclusive because it sweeps too broadly. It makes criminal any battery of a child however trivial and in whatever circumstances unless such conduct comes within the exceptions in subsection (2) of the proposed new clause. It does so even though its supporters, including my own party, do not intend that minor parental 525 smacking should lead to a criminal prosecution. It is under inclusive because the exceptions in subsection (2) would authorise the use of reasonable force on a child, for example, to, avert an immediate danger to property; or prevent the commission of a crime", exceptions that are dangerously broad and vague. Yet it would not cover the case where a parent smacks a child who has run into the road for the fifth time but whose life is not in immediate danger. Amendment No. 106 fails to ensure sufficient child protection and it lacks proportionality and reasonable legal certainty.
The Children are Unbeatable! Alliance does not campaign under the slogan, "Children are Unsmackable". If it did so, it would lose much of its support. That was recognised by my noble friend Lady Walmsley when she explained during the Second Reading debate on 30 March that: It is important to make it clear that the public interest will not be served by prosecuting caring parents for an occasional quick smack".—[Official Report, 30/3/04; col. 1222.] In her reply the Minister explained that while the Government would not support a ban on smacking, The kind of punishment that results in injury is clearly not reasonable chastisement and as such is already against the law".—[Official Report, 30/3/04; col. 1308.] That was an important ministerial statement by the noble Baroness, Lady Ashton, that needs to be made clear in the Bill, as I have sought to do.
The question for the House is not whether parental smacking is undesirable, just as the use of violent language, screaming and swearing at a child are undesirable and a failure of parental authority, but whether all parental smacking should constitute a criminal offence, even where it does not cause physical or mental harm.
The alliance itself recognises that smacking which does not cause physical or mental harm should not result in the prosecution of the offending parent. It seeks to rely upon the Director of Public Prosecution's discretion to ensure that a battery in the form of parental smacking, which involves no harm to a child, would not in practice be the subject of a criminal prosecution. However, the director explained on 19 May to the Joint Select Committee on Human Rights, of which I am a member, why reasonable legal certainty is an essential requirement of the criminal law, and that it is for Parliament rather than the director to decide whether parental smacking, as distinct from beating, should be criminalised. Nor in my view can the absence of sufficient legal certainty be addressed by the publication of guidelines. Indeed, the director has made it clear that he could not publish guidelines which fettered his discretion and that it is for Parliament to decide the key issues of legal public policy in the way we make the law.
The principle of legal certainty requires the law, and especially the criminal law, to be adequately accessible. The citizen must be able to have a sufficient indication of the legal rules applicable to a given case. The law must be formulated with sufficient precision to enable 526 the citizen to regulate her or his conduct. The citizen must be able reasonably to foresee the consequences that a given action may cause. The prosecuting authorities retain their vital discretion to ensure that proceedings are brought only in the public interest. However, what is unacceptable is to leave the scope and definition of the law to the discretion of the prosecuting authorities.
If a law is enacted with no intention that a part of it should be enforced in practice, this not only brings the law into public disrepute, it also means a lack of legal certainty. If the meaning of the law is vague and leaves its scope and definition to the discretion of a public officer, that, too, means a lack of legal certainty and will weaken effective law enforcement in cases of abusive parental violence against children. My amendment seeks to achieve greater legal certainty by clarifying the legal framework protecting children from parental violence and abuse.
Like the noble Baroness, the alliance seeks legal reform to give children the same protection under the law on assault as adults. The principle of equal protection of the law is indeed another vital constitutional principle, anchored in international human rights law. I have worked throughout my life to translate the principle of equality into practical reality. However, it is not a mechanistic principle requiring literal equality in all circumstances. In law, as elsewhere, context is everything. Most people would surely agree that there is a difference between light parental smacking to discipline or train a naughty child and the hitting of one adult by another. A smack by a loving and anxious parent whose child has run into the road for the fifth time, despite repeated warnings, is not to be equated with a minor act of violence against an adult. Both involve battery but the context is different. Yet, as I have explained, Amendment No. 106 would criminalise such disciplinary action by a parent who seeks to teach the child not to run into the road again.
I think most people would agree that parents are responsible for disciplining their children as part of child-rearing, whereas adults do not have that responsibility for disciplining each other. In other words, the context is different when a parent smacks her child from when an adult smacks another adult. It is important for the law to recognise this commonsense difference, as it does in giving special protection to children in the criminal law that is not provided for adults.
In his second treatise on civil government, John Locke noted, in the chapter on parental power, that children, are not born in the full state of equality, though they are born to it", a quotation drawn to my attention by my ever learned noble friend Lord Russell. It is a total misunderstanding of the principle of equality to ignore the context of parental discipline which does not apply as between adults. 527 I am indebted to the Minister and to the noble and learned Lord the Attorney-General for their open-minded and positive approach. I pay particular tribute to the noble Baroness, Lady Ashton, for her wisdom and enlightenment. I hope that they will be able to confirm as a matter both of policy and law that my amendment constitutes a significant further advance, clarifying the law and making it possible for the law to draw a workable distinction between abusive punishment that is unlawful and parental disciplinary conduct that is not unlawful.
Finally, I turn to the Convention on the Rights of the Child, which is trotted out again and again. Contrary to the advice given to the alliance, my amendment would meet the UK's obligations under Article 19 and Article 37(a) of that convention and would be a proportionate response to the pressing social need to protect children from all forms of physical or mental violence, injury or abuse. Article 19 requires states to take, all appropriate legislative, administrative, social and educational measures to protect the child against maltreatment while in the care of a parent or guardian or any other person who has the care of the child. It deliberately leaves a wide area of discretionary judgment to the state—
§ Baroness Whitaker
My Lords, I apologise for interrupting the noble Lord, but does not Article 19 ask states parties to take, all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence"? I emphasise the words "all forms".
My Lords, of course, it does, but I was concentrating on the words, all … legislative, administrative, social and educational measures". It leaves a wide area of discretionary judgment to the state to choose the appropriate means of providing such protection not only through legislation but also through, administrative, social and educational measures". It does not require uniform solutions, and unless parental conduct involves, physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse", it falls outside Article 19. Article 37(a) says that, no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment". Neither provision obliges the UK to criminalise a parent for disciplinary acts of battery that cause no mental or physical harm.
§ Baroness Walmsley
My Lords, does my noble friend recall that the Committee responsible for monitoring the UK's compliance with the convention has three times been extremely critical of the failure of 528 the UK to change its legislation, not its education and social standards? In October 2002, the Committee said it was, very concerned that legislation prohibiting all corporal punishment in this context is not yet in place in England, Scotland or Northern Ireland".
That is only one of several quotes I could give the House, but I shall not waste any more time. I hope my noble friend will accept that.
My Lords, of course I am aware of that too, but the UN Committee on the Rights of the Child has to construe what is in the convention. I challenge any human rights lawyer to be able to demonstrate that what I have said is in error. The convention gives a wide area of discretionary judgment as to means. The legislation needs to be there, which is why I have introduced my amendment in order to produce legislative reform and not leave it entirely to the courts. I do not understand any expert on international human rights law who reads the words and looks at the background to that convention to say, as I think my noble friend is implying, that all states must criminalise by legislation all parental smacking. International human rights law does not go so far—it has a sense of proportion.
Forty years ago, a great judge told his fellow Americans that, The spirit of liberty is the spirit that is not too sure that it is right". I also try to apply that to myself, you will be surprised to note. In an area where many campaign with what I can only describe as dogmatic certainty, it may be timely to remind ourselves of that enlightened, truly liberal wisdom.
§ Lord Thomas of Gresford
My Lords, I speak to Amendment No. 106, and to my own Amendments Nos. 106C, 106D and 106E. My noble friend referred to me as a cuckoo in the nest. Well, normally we sing very sweetly together, and I hope we will do so again. As for my nest, I brought up four children in it—or rather my wife did, with my assistance—with a copy of Dr Spock set up against the twigs that formed our nest. Dr Spock is not the last word on childcare; indeed, I presented a copy of his work to my daughter-in-law not so long ago—a family relic, minus its covers—and she very politely handed it back to me. However, Dr Spock said in his day that if we were ever to turn towards a kindlier society and a safer world, a revulsion against the physical punishment of children would be a good place to start. At that time, in my youth, it was thought somewhat eccentric for a dad to want to be at the birth of his child. It was also thought rather eccentric to eschew for ever smacking one's child on principle. I never recall smacking my children and, I am pleased to tell your Lordships, neither do they, but I had no basic principle about it then. Experience, particularly as a lawyer, has changed my view.
Dr Spock never mentioned child abuse. It was hidden away. Amendment No. 106 is not primarily concerned with the "smack in the supermarket", as it is so often trivialised; it is about what goes on behind locked doors within families, what children suffer 529 privately and what they see happening to their brothers and sisters. We are concerned with a repeating cycle of violence. I recall when I had my first child I was engaged in a case where I defended a man on a manslaughter charge. I was a very young solicitor at the time. I persuaded the magistrates not to send him for trial at the Assizes. Ten or 15 years later I heard that he had killed his second child, and had admitted to having killed the first. Experiences like that change one's view of life.
I have prosecuted, and I have defended. Smacking can lead to battering, which can lead to death. Those of your Lordships who have experience in this field will know that we are presented with medical reports, social services records and school records. One can see the route to death that starts with the initial smack. Unfortunately, the Victoria Climbiée case is only one of a significant number. I have therefore come to the conclusion that assaulting children by way of punishment for past demeanours should be absolutely banned. My noble friend Lord Lester said that that is going to criminalise parents. I do not agree with his analysis. Assaulting an adult is a crime, as is assaulting another person's child. The ancient defence of "reasonable punishment" open to parents and those with parental responsibility decriminalises an act that would otherwise be a crime. There is no question of Amendment No. 106, or indeed my amendments, inventing a new crime for parents; they merely remove this ancient defence.
References have already been made to the United Nations Committee on the Rights of the Child. It has considered the report of the UK Government with regard to their compliance with the convention on children's rights on 4 October 2002. I add another quote to those that have been given. In light of its previous recommendation, the Committee deeply regrets that", the United Kingdom, persists in retaining the defence of 'reasonable chastisement' and has taken no significant action towards prohibiting all corporal punishment of children in the family. The Committee is of the opinion that governmental proposals to limit rather than to remove the 'reasonable chastisement' defence do not comply with the principles and provisions of the Convention and the aforementioned recommendations, particularly since they constitute a serious violation of the dignity of the child". It is astonishing that the Government have done nothing to respond to that report; that they introduce a Children Bill about systems and procedures and they introduced into England a Children's Commissioner with weaker powers than those for Scotland and Wales; and that they then leave it to the noble Lord, Lord Lester, to introduce an amendment on matters that trouble the United Nations committee. Even then they do not give leadership to their side, but talk about giving them a free vote.
It might be said that the voter will come to the conclusion that "beating children is what we do, and always have done"; that it is the common law of England, deeply embedded in our tradition and history. I was interested to find the earliest reference to this defence that I could without descending into 530 reports in Norman French. I got back to The Country Justice, written in 1690 by Michael Dalton. It is interesting to note the company that the defence of "reasonable chastisement of children" keeps. I quote from his work: Also though Assaults and Batteries be for the most part contrary to the Peace of the Realm, and the Laws of the same, yet some [people] are allowed to have a natural, and some a civil Power (or Authority) over others; so that they may (in reasonable and moderate manner only) correct and chastise them for their Offences, without any imputation of breach of the Peace; yea, they may (by the Law) justifie the same; and so in such cases the beating and battery of the person of another, maketh no breach of the Peace; but the manner of the battery only doth make the breach of the Peace. And therefore the Parent (with moderation) may chastise his Child within age". That is the first point. So may the Master his Servant or Apprentice, for their evil Service. So may the School-master his Scholars. So may a Gaoler (or his Servant by his command) his unruly Prisoners. So may any Man his Kinsman that is mad, &c. And none of these shall be in peril therefore to forfeit any Recognizance of the Peace. Note, that the Master may strike his Servant with his hand, fist, small staff or stick for correction; and though he do draw blood thereby, yet it seemeth no breach of the Peace, as appeareth by the Statute of", Henry VIII". Also the School-Master, with a Rod, may chastise his Scholar which is careless and negligent in Learning, or that shall abuse his School-fellows, or for other the like occasions. Also it is lawful for the Parents, Kinsmen or other Friends of a Man that is mad or frantick (who being at liberty, attempteth … to hurt himself or others) to take and put him into an house, to bind or chain him, and to beat him with rods, and to do any other forcible act to reclaim him, or to keep him so as he shall do no hurt". In all of these areas, save that of the parent and child, we have moved on as a society.
My noble friend Lord Lester's amendment retains the defence of "reasonable punishment" for common assault. He abolishes it only for assault causing actual or grievous bodily harm or for cruelty. It is as though the master may still strike his servant with his hand or his fist but not with his staff or stick. My other objection to the noble Lord's amendment is that it leaves the burden on the prosecution still to disprove the suggestion that the defendant's act was in reasonable punishment of his child. It is for the prosecution to prove that the defence, once raised, has not been established beyond all reasonable doubt.
What is "actual bodily harm"? The current charging standards of the CPS for assault occasioning actual bodily harm, which is as far as my noble friend will go, involve injuries such as loss or breaking of a tooth, temporary loss of sensory functions including loss of consciousness, extensive or multiple bruising, displaced broken nose, minor fractures, minor cuts requiring stitches and psychiatric injury which is more than fear, distress or panic. That is the basis upon 531 which charges are brought today by the CPS for assault occasioning actual bodily harm. On current standards, anything less than that would not be covered by the amendment tabled by the noble Lord, Lord Lester. It is unlikely that a magistrate or a jury today would find that injuries such as those that I have described were reasonable punishment of a child.
Although I wholly respect the noble Lord, Lord Lester, and his campaigning for human rights—far greater than mine—his amendment adds little to the criminal law. Two months ago a new code for prosecutors was published on the CPS website which said that the charging standards for common assault and assault occasioning actual bodily harm could be found in appendix A. There was no appendix A published, so we do not know what that said. Perhaps we may hear something about that today.
How does the prosecution prove the existence of injuries such as bruising, reddening or scratches—if that is the nature of the new guidelines? Some children bruise more easily than others, or may be hit in an area where bruising does not occur, but the pain is the same. How does the prosecution get behind the door to find out what has taken place to disprove the defence of reasonable punishment?
In any event, a magistrate or jury might reject the suggestion that such injuries were actual bodily harm. As a fairly experienced advocate in these matters, I would say that the aim of the defence advocate would be to persuade the court that the case was merely one of common assault and that the prosecution had failed to disprove the suggestion put forward by the defendant that his act was "reasonable punishment".
My amendments to those tabled by the noble Lord, Lord Lester, do two things. I ask noble Lords to consider their terms carefully. First, they abolish the defence of "reasonable punishment" for a past misdemeanour altogether. Secondly, they recognise that there may be circumstances when a person has to act to restrain a child from causing immediate or future harm to itself or to another. Those circumstances may arise even if there is no parent-child relationship. I have deliberately used the word "defendant" rather than "parent" in the amendment. The circumstances may include pulling a child back from traffic, or from a hot stove, or preventing it hitting another child and may require a slap to be administered to restrain the child from that activity.
But if restraint is to be the excuse for what would otherwise be an assault, then my amendment would make it necessary for the defendant to prove it—not for the prosecution to disprove; for him to show that it was more likely than not that his purpose was to restrain and not to punish. I ask your Lordships to think carefully about the wording of my amendment. I commend it as a far better and more balanced approach than one that still condones pain to a child as punishment.
My first task is to urge your Lordships to pass Amendment No. 106, which has been prepared by the most experienced lawyers in this field and has been supported, as the noble Baroness, Lady Finlay, has 532 said, by many experienced organisations. If your Lordships, perhaps as the result of coercion, were unable to do that, I would ask noble Lords to support my approach to the amendment tabled by the noble Lord, Lord Lester, and to ensure that we end up with legislation that truly advances the situation.
§ Lord Laming
My Lords, I support Amendment No. 106B and shall speak against Amendments Nos. 106, 106C, 106D and 106E. The whole House should feel indebted to the noble Lord, Lord Lester for finding a way of removing the defence of "reasonable chastisement" from our legislation, while supporting the thrust of legislation and policy in working constructively with parents, and keeping safeguards for children—as set out in the Children Act 1989.
I do not regard the amendment tabled by the noble Lord, Lord Lester, as a compromise. On the contrary, it has been deliberately framed with great care to achieve a specific objective. I support it not as a compromise, but because I believe it is right in the interests of working constructively with children and families in this country.
I am sure that we all agree that there is no place in our society for the defence of "reasonable chastisement". It is from an age gone by and should be removed from the statute book. I remind the House that the law recognises that children are different from adults and have specific needs. That is why we have had specific legislation that respects the needs and rights of children for hundreds of years.
So the issue is not about removing a defence that we all dislike. It is about which route to take and how best to continue working constructively with families, while safeguarding the rights of children. We would all hope that every parent in the country had the knowledge, understanding and skills to avoid the need for recourse to physical punishment—no matter how tired or harassed they might be. But the reality is that some parents will continue to need help both in developing that understanding and in developing better parenting skills.
I recognise the points made by noble Lords who have spoken in favour of Amendment No. 106, but I do not share their views, for four principal reasons. First, there is a real danger that Amendment No. 106 will bring a host of otherwise well meaning parents within the scope of being criminalised. We should recognise that the vast majority of parents in our society actually want the best for their children. If the state has a role, its primary role is to help them to achieve that objective.
Secondly, that amendment would work against the thrust of the Children Act 1989 and the Children Bill which is now before your Lordships' House. The main intent of that legislation is to accord paramount importance to the well-being of each child, by recognising that the well-being of each child is generally met by working constructively with the ' child's parents.
Thirdly, it may put at risk the willingness of parents to welcome into the home health visitors, social workers, a Sure Start worker, even a volunteer from 533 such excellent schemes as HomeStart. Why, they may say, run the risk of putting yourself in possible danger by welcoming these people into the home?
Fourthly, there are those who claim that a ban on smacking may not increase the number of parents being prosecuted. They may well be right, but that misses the key issue, which is that the police will have to investigate any and every allegation of assault on a child, however trivial or even mischievous it may be. It is the process of investigation—gathering the evidence, doing interviews, getting statements, with everything being recorded and reports produced for the Director of Public Prosecutions—which will have a huge impact on many parents. It will be that process that will make them feel under considerable threat. Now many claims have been made—
§ Baroness Sharp of Guildford
My Lords, does the noble Lord accept that the Director of Public Prosecutions said clearly in his evidence to the Joint Committee on Human Rights that prosecutions for adults for minor assaults were very rare, and that he was sure that prosecutions for minor assaults on children would be very rare indeed?
My Lords, indeed I would accept that, for he was talking quite rightly about prosecutions. I am talking about the very substantial and demanding process that precedes any decision to prosecute.
Claims have been made already today about support from various organisations. Through my letterbox this last week came a statement, unsolicited by me, from the Association of Chief Police Officers. One small section of it says: National Crime Recording Standards, introduced recently by the Home Office, require the police to record any crimes reported to them. The police have a duty to investigate and where they are able to clear up crimes once reported, which would imply interviewing the suspect and then proposing either caution or prosecution". We should not underestimate the impact that these investigations may have upon a family.
Last week I did something highly unusual, in that I wrote a letter for publication to a national newspaper. In it, I set out what I hoped were some of the chief points against a general ban on smacking. I am most grateful to the editor of the Independent on Sunday for publishing the letter in its entirety. It was the only letter on the subject, but it appeared under the headline "We need smacking ban". It just so happened that a "smacking ban" coincided with the editorial comment of that newspaper. I mention this not to express my frustration with the newspaper, which you may gather is keenly felt, but more because in that letter I quoted the late Lord Seebohm.
Many will remember Lord Seebohm's 1968 report on the future of the personal social services. Lord Seebohm spoke at length in the report about the need for the state to support the family unit, and for its services to be seen to support the family. He said: An effective family service must be concerned with the prevention of social distress. Morally, socially and economically this makes sense". 534 I suggest that preventing social distress is not best achieved by the state threatening parents with possible prosecution at any turn.
The Government have promised a wide range of measures that will be introduced to support families in our society. In my view, the choice before us is either to respect the responsibilities of parents; to seek to work with them constructively in partnership; to pursue policies and practices which are based on encouragement, help and support—or to go down a route which is based upon threat and coercion.
In my view, in Amendment No. 106B, the noble Lord, Lord Lester, has devised a way which can lead to a defence that we all abhor being removed from the statute, while at the same time ensuring that we continue to work constructively with parents and help them to feel secure in their parenting roles and responsibilities. If parents are helped to avoid the use of physical punishment they will then teach their children the need to avoid physical force. By that constructive means from generation to generation we will help to achieve a position that I am sure we all want: to avoid the use of unnecessary force and violence.
Of course, persistent abuse or physical hitting of children has a detrimental effect upon a child, which is why the Children Act 1989 places the well being of each child in paramount position. I believe that the choice before us this afternoon is simply between one of education, support and encouragement, as set out by the noble Lord, Lord Lester, or for the state to use its authority in ways which would be perceived by many parents as threatening and menacing.
§ Baroness Massey of Darwen
My Lords, it is a great honour to follow the words of the noble Lord, Lord Laming. I cannot support Amendments Nos. 106C to 106E but shall support Amendment No. 106B in the name of the noble Lord, Lord Lester.
I have thought a great deal about the issue of "reasonable chastisement". I have attended innumerable meetings where it has been discussed. I have long supported the Children are Unbeatable! Alliance, and I agree that hitting children is a lesson in bad behaviour and in itself wrong. I am an NSPCC ambassador, and co-chair of the All-Party Group on Children. I therefore talk to many people about children's rights and parental responsibilities. It is a great privilege to be associated with these organisations and with Members of your Lordships' House who consistently support the welfare of children. I find myself somewhat surprised and uncomfortable about being on the opposite side to a number of respected colleagues.
I do have great respect and admiration for the commitment and dedication of the movers of Amendment No. 106, and for the principles behind it. However, I cannot support it. While supporting the amendment of the noble Lord, Lord Lester, I do not think that we yet have the wording of anything quite right, and I hope we can move toward that. 535 If there is a risk of a parent being prosecuted for gently tapping a child in reprimand, then I cannot go along with that. The idea of a parent and children being in court for this is painful. The idea of being labelled a bad parent for this is painful. The language we are using is emotive, and I regret that. "Battery" can mean a slight tap, not a beating. When I see a headline on the letters page of today's Guardian, saying "A vote against violence", I get very offended.
I am against violence in any form, most of all to children. But violence is not merely physical; there are many ways of abusing children—some were mentioned by the noble Lord, Lord Lester—including verbal means. The other day, I was sitting on a train near a woman with a small child—a four year-old— and, as he continued to tap the window, she threatened to sell him for doing so. I consider that to be violence, and I am against violence of any kind.
I believe that when we have finished with this Bill, whatever its outcome, we need to look seriously at how we as a society educate and support parents and prospective parents. I agree with the noble Lord, Lord Laming, about that. I am less worried about the concept of a nanny state than about securing the welfare of children.
I have listened to, and read about, the experiences of those who come under international anti-smacking laws, and I have concluded that they cannot be applied in this country. The wording of the Swedish law against smacking is absolutely brilliant. It speaks of the entitlement of children to care, security and respect, but it is found in the parental code. We have no such code. Would that we had; would that we had many things that would increase the protection of children. This Bill should tighten up on that.
Therefore, regretfully I cannot support Amendment No. 106 or the amendments to Amendment No. 106B, but I do support that of the noble Lord, Lord Lester of Herne Hill. I hope that we shall eventually come up with legislation which is totally satisfactory all round and which will benefit both children and their parents.
§ Lord Blackwell
My Lords, I am conscious that the House will not want a long debate on these amendments, but I think it is important that a voice is raised to oppose all the amendments, as I do.
We have heard some noble and distinguished arguments on the legal distinctions between the various amendments. However, the simple view that I take is that we, in Parliament, cannot pass a law that we do not expect to be enforced. At present, as I understand it, injury to a child, as indeed to anyone else, is against the law. The law is very clear in that respect.
My reading of many of the amendments is that they attempt to cover a grey area between no smacking at all and the current position in law but in a way that will be almost impossible for the courts to interpret. The consequence of that will be the perception, at least, that Parliament intends that any smacking covered by the amendments should be investigated by the police. Parents will be completely uncertain about what is 536 intended and many will suffer police investigations as a consequence. I do not think that it is reasonable to pass a law and to say, "We didn't intend this to be taken seriously by the Director of Public Prosecutions. He will exercise judgment and discretion". If we pass a law to ban the use of corporal punishment or reasonable chastisement, we must expect the police to fulfil their obligation to enforce that law.
That takes us back to the question: what is our intention? Clearly, some in this House genuinely believe that any use of smacking to chastise a child is wrong and morally obnoxious and that it should be prohibited by the full force of the law. Equally, I have to say to the House that there are many, not only in this House but in the country at large, who think that it is a matter for individual parents to decide. So long as they are within a loving family environment, are using their best methods to bring up and control their children and are showing them the boundaries of what is or is not acceptable behaviour, as parents they are entitled to make that judgment according to their interpretation of a loving and caring upbringing.
We are not talking about situations in which children are damaged physically or mentally—that is already classified as an assault and is covered by the law. We are talking about the grey area where actions may be interpreted as right or wrong. Those in this House who hold a different view are trying to impose that view through the full force of the law. However, if this House imposed that standard on parents at large and used the full force of the law to do so, that would be a great intrusion into personal and family liberty and it is not an action that we should embark on lightly.
§ Baroness Richardson of Calow
My Lords, I have been sitting here trying to think what a parent will do when a child runs into the road for the sixth time. What sanctions are left once the "reasonable chastisement" of smacking has gone? I am not being facetious; I think that positive parenting skills need to be developed within our families.
I do not know whether any of your Lordships have seen the programmes on television which show parents how to deal with troublesome children. The methods used do not involve any physical punishment whatever and they are usually very successful in producing good relationships between parents and their children. I believe we all agree that the right discipline is self-discipline. The first self-discipline to be found within a family should be that of the parent, who is able to respond to the needs of the child and to administer a punishment that reflects the misdemeanour of the child. Often a physical smack cannot achieve that. Whatever can a child make of being smacked for being in danger? The two things cannot be held together.
I support Amendment No. 106. We are not in the same position in the country that we were in before this debate started. It was known that this debate was to take place. If, at the end of it, we leave things as they are or pass a slight amendment to the law, we shall be giving a firm signal to parents that it is all right to carry on as they have been doing and that the positive 537 parenting skills that the amendment would secure, or perhaps at least encourage, would be in danger of not being taken up.
I beg noble Lords to pass the amendment in order to free society from the taint of physical abuse within families. We stopped thinking that it was all right for wives or partners to be battered and now we must take that a stage further and say that physical punishment has no place within a loving family and that there are other ways of ensuring that self-discipline grows within a child.
§ Baroness Howells of St Davids
My Lords, I shall be extremely brief but I want to refer to a few words that have been used in the House today: "sufficient provision" and, as referred to by the noble Lord, Lord Thomas, "bruising". I remind your Lordships that we live in a multiracial society. I do not think that I need a photograph to show noble Lords that a mere tap on a white child creates a bruise, but it takes a great deal of that type of smacking for the bruises to show on a black child. I do not think that this is the first time that we have had to remove the ability to smack children from any one group. So far as I understand, teachers and policemen are no longer allowed to smack children.
I believe that the amendment before us today dodges the real issue. Smacking takes place when a parent loses control of a child. I believe that we should concentrate on helping parents to gain control of their children in ways other than smacking. I was brought up in the days when smacking was allowed but I am pleased to tell your Lordships that I have never been smacked or hit by any man or woman. However, I know of young people who, to this day, report having been smacked as a form of control. That has lived with them in a bruising way but it is a way that we cannot see.
I speak as someone who has lived, since birth, in a multiracial society. I know that one complaint from young people is that one has only to tap a white person and it shows, but a black person has to be given quite a whack before it shows. Let us not hang around looking at these amendments and let us realise that smacking must go and go now.
§ The Earl of Onslow
My Lords, I will be incredibly quick. I was taken by what the noble Baroness, Lady Finlay of Llandaff, said. She said that 3 million or 4 million children are hit every week. I ask myself what effect this legislation will have on that number. Will four million people suddenly be stopped or will they go on? I am only going to ask questions, because I do not know the answers.
Something that the noble Lord, Lord Lester, said influenced me considerably. It concerned the case of the man who thrashed his daughter or step-daughter beyond acceptable limits and got off on reasonable chastisement grounds. That seems to me totally wrong. However, I still do not think that it should be 538 made completely illegal. My instinct, for what it is worth, is to vote for the noble Lord, Lord Lester. I do not always agree with the noble Lord, Lord Lester, but I will make on this occasion a very willing breach of my own principles.
A total ban is going too far. The noble Lord, Lord Lester, is trying to tighten things up and make "reasonable" really reasonable as opposed to old-fashioned reasonable. That makes sense. I will still listen, but I just wanted to put a few doubts into everybody's mind to help the conversation along.
§ Baroness Howe of Idlicote
My Lords, as other noble Lords have said, everyone here is united in an endeavour to achieve the same thing: to ensure that our children are fully protected and respected as individual human beings in our law. Where perhaps one or two of us differ is in believing that Amendment No. 106 is the way to achieve that purpose. Most noble Lords bring to this debate experience as parents and carers and many professional involvements with children and families. In my own case, that involvement includes a fair amount of work with voluntary organisations and school governors, as well as acting as a member of the ILEA and as chairman of an inner London juvenile court for 20 years or more.
Although I have the greatest admiration and respect for the views and experience of the noble Baroness, Lady Finlay of Llandaff, and other noble Lords supporting this amendment, I am sadly not able to join them in the Lobby today. This is because I believe that most parents today are loving and caring. Even though they may be fearful for or exasperated by their child's behaviour on occasion, they are not and should not be labelled as child abusers—as I believe there is a danger that they may be. The proposed change in the law, whereby the rare smack at the far end of a parent's discipline could in some people's view be subject to legal action, is not only unnecessary but likely to undermine, as the noble Lord, Lord Laming, has said, the undervalued but vitally important and responsible role of parents in their children's upbringing.
Despite what has been said today, I believe that the amendment, if accepted, could well result in unnecessary or even malicious charges being brought. Perhaps even more important than that is that the amendment would hardly, if at all, influence the behaviour of those whose ill-treatment of children is its primary target—those who are indeed violent and abusive to children. The parents or carers of the children who are really abused physically and mentally and whom I saw in juvenile courts and elsewhere came mainly, though not exclusively, from backgrounds where this kind of behaviour, which often included domestic violence, had been practised over a number of generations. Sir Keith Joseph's cycle of deprivation—once derided but now fully accepted as social theory—is particularly relevant here.
I remain convinced that the only effective way to tackle this persistent problem—it is almost a gene—is at its roots. As others have said this should be done by education and positive help—working closely with such families right from day one. That is why, for example, I particularly applaud the Government's 539 Sure Start initiative. Considerable public resources have recently been devoted to this and similar projects. It is a brave move politically, as positive measurable outcomes reflected at the ballot box are unlikely to emerge within the lifetime of several Parliaments.
Of course we need effective laws to ensure conviction and punishment for violent offences against children and laws that are at least as effective as those dealing with violence against adults. However, there are relatively few cases where a conviction should have been but was not achieved because of a judge's interpretation of reasonable chastisement, and my preference would be for tightening the judges' guidelines for dealing with such cases. The more specific definition of offences given in the amendment of the noble Lord, Lord Lester, which was so clearly and admirably explained by someone who has spent most of his life working for human rights, is the way to achieve that aim and I shall support it.
§ Lord Phillips of Sudbury
My Lords, after much careful thought I cannot support Amendment No. 106, despite the forceful and eloquent speeches that we have heard from those supporting it and the fact that I have complete respect for their motives and share their passionate concern.
To create a serious criminal offence, as this measure is intended to do, which makes citizens guilty without any proof of malign intent or of unreasonableness, or harm, is entirely contrary to our cherished traditions.
The proponents of the amendment reassure us that the offence will only be prosecuted with discretion. There should be, they say, wise government guidance on when to prosecute. Even if there is, that can never take away the right of an individual prosecutor or a member of the public to bring proceedings where reasonable people might not. Opinions in this area are notoriously diverse, as this debate shows. Given the seriousness of the offence, which will bar those convicted of it from any job having anything to do with children for example, and carry an imprisonment term of up to 10 years, that seems to me to be seriously inadequate protection.
The offence is absolute and denies magistrates the opportunity to form their own view on whether the seriousness of the offence warrants prosecution. They will be bound to convict unless there has been no physical discipline of any kind of the child concerned.
The effect of the offence being absolute is that the crucial and difficult judgment as to whether the particular facts warrant a conviction under the new law will effectively be decided not in open court before impartial judges, who have to hear both sides, but by the Crown Prosecution Service behind closed doors acting solely on information from the police. That seems to me to be so far removed from equal and proper justice that I cannot support it.
The new law will also bear down particularly hard on single mothers, particularly from parts of our society and indeed from minority communities with a more physical tradition than in some parts of the middle classes. 540 To the extent that the law is observed, it will often be at the expense of children being more abused psychologically, as others have said, by being shouted at, sworn at, frightened. demeaned and rejected. Where is the human dignity in that?
I consulted the 40 or so decent, experienced secretaries in my office on the matter. At first, they thought that I was joking. They were unanimously opposed to a blanket prohibition. My eldest daughter, who is an experienced clinical psychologist, wrote to me saying: Physical expression of all emotions, and dealing with the aftermath, is part and parcel of the human repertoire and you just can't wish it away. Parents actually need to be able to be imperfect and to model remorse to their children. On the odd occasions that I smack Marco I always wish I hadn't, but then it gives an occasion to talk to him about why I did it and to say sorry to him. That may not be ideal but I think that he learns something about me and we both learn something about the relationship".
She seems to me to speak for a whole swathe of wonderful parents, whereas the movers of the amendment have spoken only of abusers and a swathe of parents who would not feel that they had acted wrongly in giving the occasional physical correction. As long as it is well signalled, reasonable and loving, a quick, even a hard smack is usually emotionally understood, effective and often brings closure to seriously wilful misbehaviour by a child in at least as good a way as any psychological correction, which does not always work soon enough.
I believe that before we abandon reasonable chastisement, we need to make a concerted attempt to enforce the existing law effectively because it has been notoriously grossly underused and under-resourced. It will need far more resources, as indeed will the new law, if it is to be effective. It may need guidance, and it will certainly need an energetic education campaign by all those marvellous charities and individuals rightly passionate about the levels of real child abuse.
I listened with rapt attention to the exceptional speech of my noble friend Lord Lester. He gave us much food for thought. However, at this juncture, all I can say is that for the reasons given, I believe that Amendment No. 106 should not pass.
My Lords, I support Amendment No. 106 not because I want to see more parents prosecuted: this new clause does not criminalise assaults on children any more or less than the law on assault criminalises assault between adults. I support it because in the end it asserts the principle of giving children equal protection with adults against assault. That seems to me to be a principle of cardinal importance, and one which merits a free vote. I can do no better than to quote the Joint Committee on Human Rights, which states that, in the context of the law on assault, … children should have the same right as adults to respect for their human dignity and physical integrity and to equal protection under the law".
I think it should have a free vote because, while I feel committed to the principle, I recognise that others have strong personal feelings against it. My commitment 541 stems from the question: whose responsibility is it when children are bruised by the strap, or when babies under one year are regularly hit to encourage them to stop crying? I do not think that it is the parents' responsibility alone. I think it is ours, as legislators, to set a framework of what is acceptable, within which parents exercise discipline over their children, including physical force to restrain, but not to punish.
That is why, with the greatest respect, I do not find that Amendment No. 106B, tabled by the noble Lord, Lord Lester, works at all. Indeed, his own noble friend Lord Thomas of Gresford has felt it necessary to propose and eloquently to advocate amendments to it. It certainly would contravene the recommendation of the United Nations Committee on the Rights of the Child to the UK as well as last week's recommendation from the Council of Europe's Parliamentary Assembly that member states which legalise assault on children are in breach of the Convention on Human Rights.
This amendment seems to mean, as I think the noble Lord, Lord Thomas, said, that if a parent commits on their child an assault which causes actual bodily harm or grievous bodily harm or is guilty of cruelty towards their child, then he or she will not be allowed to claim any more that it was reasonable punishment. But what jury or magistrate would ever think, under the law as it stands now, that cruelty or this kind of serious injury could ever be reasonable punishment? Is this amendment really a compromise at all? Only, I suggest, if the amendments of the noble Lord, Lord Thomas, are accepted.
Actually, the amendment of the noble Lord, Lord Lester, is strangely familiar. It is very close to a Department of Health proposal in a consultative document in 2000. But in that same document, the Government published the results of a poll in which over 95 per cent of the public rejected punishment of children which resulted in bruising. People do not actually want parents to be more free to assault their own children.
What we are after, in Amendment No. 106, is moving a norm on: affirming publicly the value that violence is not an acceptable way to punish children. Not that punishment is wrong; not that discipline is wrong—far from it. It is the violence that needs to be demoted out of the concept of punishment or discipline. Take the light tap in the supermarket beloved of Ministers. Never mind that I have seen slaps which have knocked a child over in the supermarket. No matter how light, that tap is the pale end of a spectrum whose intense end is brutality—brutality which results in regular, condoned punishment beatings.
Let us consider for a moment stealing. All of us who are capable of distinguishing right from wrong become aware that stealing is considered wrong. Theft is a crime. But plenty of stealing goes on that is not serious enough to end up in court. People borrow books from me seemingly with no intention of giving them back. I have the impression that people have sometimes borrowed money in the same way. But we know stealing is wrong and that constrains behaviour. That is what would happen if the defence of reasonable chastisement, which condones assault, is dropped. Cumulatively, accelerated by support 542 for parents by the Government, and assisted by the obvious and explicit willingness on the part of the police and the social services to interpret the change constructively, our ideas of what is right and wrong would adapt and children would have equality of protection because of it.
It is our choice whether or not to follow those countries, increasing in number all the time, which have reduced brutality to children, and, it so happens, I think consequently, by children, and to consolidate this Government's achievements in dealing with domestic violence—no problem about intruding into the family there. If we fail to grant power to the individual conscience in this matter, we shall have held back a force for positive change.
There is much good sense in this Bill and sensible adaptations have been made by my noble friend. But in this issue, clarity has not been welcomed by the Government; human rights have not been heard; compliance with the Committee on the Rights of the Child has been breached; and a common sense view of the way the law works has been abandoned. I regret very much the Government's timidity in not standing up for the right of children to equal protection, to have lost their nerve over a change which will not result in a wave of prosecutions, any more than the Human Rights Act or any other rights measure has, but which will put a decent norm on the statute book, that our children, no less than adults, can no longer be beaten by their parents with impunity. I urge your Lordships to vote according to your consciences.
§ Baroness Kennedy of The Shaws
My Lords, —
§ Lord Stoddart of Swindon
My Lords,—
A noble Lord
Lady Kenned!
My Lords, I hope it is not going to break into violence behind me.
This debate is about trying to shift a culture. That is why it is so important. Of course, all of us in this House share the same concerns about child abuse, but we also hear some polarisation in this debate. If you say to the 20 secretaries in your office, "Do you think smacking children should be criminalised, with you taken to court and it carrying a sentence of 10 years?" of course they are going to be appalled and horrified. Each and every one of them will have been a child and will remember a smack that did not have long-term effects on them. The idea of criminalising that would horrify them. Some of them will be parents who know that they, too, have fallen from grace, as many of us have.
The point of these charities coming together under this campaign is to say to us parents—imperfect as we may be, trying to be decent parents, probably pretty good at it—"You need to come in behind us in creating a message to those who feel beating their children is quite legitimate". They feel they can do that with impunity because there is a cultural sense that smacking is OK. It is read as a licence to those who take it to extremes. What we in this debate are saying 543 to the wider community is that of course there are times when one is pushed as a parent to do something that one regrets afterwards. But we must come together to create values and standards that send out messages to those who visit terrible abuse on children.
We have heard from many lawyers, and I am one of those who deal with court cases involving abuse of children. I promise you that, when you see them, you have absolutely no doubt as to how it starts and how people feel that hitting young children is a quite acceptable aspect of rearing. That is the message which is received by parents, because of the culture we currently live in. This amendment seeks to shift the culture. That is why we should come in behind it, knowing that it may be imperfect; knowing that occasionally the police may make a wrong judgement and, hopefully, good sense will prevail at the CPS. But the reason for doing it is to create a cultural shift which will stop the level of abuse that currently takes place. I urge you to support this amendment because we need that message. Law is about transmitting messages about the values we believe in to the community at large, even if. on occasions, we fall from grace. I urge your Lordships to accept this amendment for those reasons.
My Lords, I thank the noble Baroness, Lady Kennedy of The Shaws, for giving way. Would she not agree with me that, first, we should not pass laws we think are imperfect? Secondly, should we not criminalise conduct unless we think it is sufficiently serious to be made criminal?
My Lords, the answer to that is that we should all recognise that hitting children is unacceptable. The examples that the noble Lord, Lord Lester, gave in this House—I am sure that each and every one of us brings our own baggage, and the noble Lord probably does, too—are never good enough.
There are always other ways of dealing with children who make you cross, who do unkind things to another child, or even those who seek to run into the road. We are the imperfect ones who fail to live up to the standards we would like to see set. We have to recognise that our imperfections are not good enough. When we ask for constraints in law, we are coming together to do this in the interests of children because we know that much worse is done in the name of the licence given for chastisement or lawful punishment. That is why we have to come together and why we must not make concessions, even in the instances we understand. We know we have to work for a better rule in order to prevent serious abuse.
My Lords, before the noble Baroness sits down, could she explain what other option for the child running into the road there is, if it does it too often, without giving it a smack?
My Lords, you grab the child. You pull the child back. You say to the child, "You don't do that". There are many ways, I can 544 assure you. It is nonsense to put it up as an example, because if you did smack your child in those circumstances, do you seriously think a police officer is going to take you to court?
Noble Lords
My Lords, no. To use that as an example, to put fear into parents, is really, I regret to say, failing to deal with the much greater abuse that this amendment is seeking to deal with. I do not accept that police officers are going to be running around arresting parents who grab a child and smack its bottom because it was running into the road for the sixth time. Good sense does prevail in policing.
§ Lord Hooson
§ Baroness Andrews
My Lords, I believe the noble Lord, Lord Hooson, was raising a point before the noble Baroness sat down. Is that not right?
My Lords, I have been listening to this debate, and I find it of great concern that suddenly, on Report of a Children Bill, we have an amendment with enormous implications for millions of people. Yet there has been no public consultation of the people who count—the parents. We suddenly find Amendment No. 106, and the amendments to it, on the Marshalled List on Report of a government Bill in which the Government themselves have not included anything of the sort.
My Lords, will the noble Lord accept that Amendment No. 106 is laid in exactly the same wording as it was in Committee? The House debated it, but it was not moved at that stage. The new element on Report is the amendment of the noble Lord, Lord Lester, which is why my noble friend Lady Finlay, in moving Amendment No. 106, was obliged to give a slightly longer speech than might normally be required.
§ 5 p.m.
My Lords, I am well aware of all that. But for legislation of this importance there should have been—and still should be—wide public consultation because of its implications.
Of course, one has to be careful when speaking on amendments of this sort, otherwise one will be accused of being brutal to children. Let me say that, as a child, I was certainly slapped and caned by the teachers at my school. From some of the arguments that have been put, I should now be a brutal person myself, believing that the only way to settle disputes is by physical force. As a matter of fact, I have not engaged in physical 545 force in my life at all, and that goes for most other people as well. So that argument does not hold water at all.
Secondly, I have brought up three children and I have not smacked them. I have not felt it necessary to do so. But because I do not think that it is necessary to do so, it does not mean that other parents are able to control their children in that same way without smacking them. That is an imposition upon other people that ought not to happen.
Like many other noble Lords I read Dr Spock and applied his recommendations. But I found that I had been wasting my time—because at the end of his life Dr Spock recanted. All that we heard from Dr Spock was a load of nonsense according to him. We therefore have to be very careful of the experts. We have heard a lot about the experts today, but that is one expert who, after he had done all the damage in the world, recanted and said, "I was wrong all the way along".
My Lords, wrong on what?
My Lords, on his recommendations for bringing up children, which included not smacking them.
My Lords—
My Lords, the implications are very wide indeed.
Let us consider the position of a child who has been smacked in the garden and a neighbour next door reports it to the police. The police come along and ask little Johnny whether he has been smacked. He says that he has, so the police go away and prepare a case for the Director of Public Prosecutions and he decides to bring an action. What happens then? That child will be taken into court and he will have to give evidence against his father or mother.
Is that really what we want? Is that going to help families? Is that going to help to unify families? Is that going to help discipline in families? And suppose the punishment for that smack is for the child to be taken away. Social services do take children away from their parents and are very often wrong in doing so, as we have seen from some very famous cases.
What then happens to the child? Is he put into care? Does he go to foster parents who may be worse than his own parents? Or will he be put into a local authority home where children may be abused by their carers, sometimes in very nasty ways? These are some of the matters that need to be considered before we pass amendments of this sort.
I fear that we are in the grip of a group of people who see things only from their own point of view and do not understand the enormous pressures that parents, particularly those from working-class homes, are under for all sorts of reasons: the break-up of the family; shortage of money; living in poor circumstances; and, 546 indeed, not having the educational background to deal with children in a manner with which that group happens to agree.
These are dangerous amendments. Before we embark upon them we need a lot more research, a lot more consultation and also a lot more toleration.
My Lords, I did not want to follow immediately upon the previous speaker, but I was interested in his autobiographical note, which explains a good deal about him.
My Lords, perhaps the noble Lord can explain that?
My Lords, I wish to support the amendment in the name of the noble Baroness, Lady Finlay, for this reason: with this Children Bill we need to send a clear and unambiguous message to everybody in our country, particularly parents. I wish to make it clear that most of the people in the country do not need the message at all but some of them certainly do.
These days one of the main environmental influences on children is the television set. They are very often fed from it a diet of unacceptable social behaviour, with violence and angry reactions being normal and acceptable.
Years ago, when I was a young barrister, I remember a great argument between a very distinguished Oxford don—a professor of jurisprudence—and one of the Law Lords. The don argued that the laws of a country are a reflection of its morality. The Law Lord did not agree and said that the morality of a country is created by its laws. I came to the conclusion that they were both right—it depended on the circumstances.
All the organisations concerned with the welfare of children support the amendment. What does that tell us about their understanding of the problems of children? In whatever form this Bill goes through, it will be interpreted by judges and magistrates. Those who are prosecuting will have to bear it in mind before they decide whether or not to prosecute. The police will have to interpret it. In my experience of the Bar—which goes back over many years—all these procedures led in the end to a very civilised approach in our country.
Let us look at one sentence in the amendment: Battery of a child cannot be justified in any proceedings on the grounds that it constituted lawful punishment".
We can argue in an interpretation clause exactly what "battery" means in this context, so that it can be spelt out clearly. It has been interpreted by a judge or magistrate and has been considered by other people beforehand.
It is important that a message goes out from Parliament as it has already gone out in Germany and Sweden, which have adopted the whole thing with no problems arising from parents being prosecuted or anything like that. These are bogey ideas raised by people who look for minutiae to undermine the Bill. There should be an unambiguous message that we 547 need civilised behaviour from this country and particularly from those parents who do not indulge in it.
§ Lord Ackner
My Lords, some of your Lordships may remember Sir Milner Holland, a well-known QC and one-time chairman of the Bar. I remember him addressing an audience on this subject many years ago. He said that he had never raised his hands against his children except in self-defence.
I cannot claim to be as perfect as that, but on the rare occasions when I did, I certainly do not concede that I had lost control of my children, as the noble Baroness suggested was the case.
I shall keep your Lordships very few minutes. My first point is that there is a heavy onus on those who wish to change the law to establish that the law does not provide adequate protection. There is no proper submission before your Lordships that the defence that, "I only use moderate and reasonable force in the correction of my child" does not provide an adequate protection for the child. It is hoped that by altering the law, in a manner which has been strongly criticised, you may achieve your desire to stop abuse—that you stop abuse by invoking the law that deals with abuse.
Secondly, a law against smacking would lead to an unprecedented level of intrusion into family life in England and Wales. It would probably result in disputes between neighbour against neighbour, with parent and child disputes being referred. A disharmony would grow up which we would all very much regret.
I submit to your Lordships that one has only to consider the scene in a supermarket: an overburdened wife, trying to cope with three children at a very busy period in the day, smacks her child for having disobeyed her for the fifth time in seizing material from the supermarket. She will be turned upon by people in the supermarket, who accuse her of ill treating her children. There will be complaints to the supervisor; the police will be brought in and charges may well have to be levelled, which are really quite unsustainable.
My next point, which is the same as that made by my noble friend Lord Laming, is that a law against smacking would divert already overstretched child protection resources away from the children who most need them. There is a limited amount of available police time and even social welfare time to cope with children's problems. To add this one to those that need intervention will be the straw that breaks the camel's back.
Finally, I think that some of us are overlooking the fact that parents have a unique relationship with their children. In order to fulfil their parental responsibilities, they have powers which they do not possess in relation to anyone else. To say that the child should have the same rights in this respect as if he were an adult and that parents should have the same obligations as if they were dealing with adults is to overlook the nature of the parent-child relationship, its responsibilities and its sensitivities.
§ Lord Grocott
My Lords, we are now nearly two hours into this debate and, as your Lordships will 548 know from the Order Paper, there is quite a bit of business to come afterwards. May I suggest, with the usual diffidence, and to test the mood of the House, that we have another two or three contributions before we begin the winding-up speeches? The Divisions afterwards will take some time, of course. I hope that that meets with the general agreement of the House.
§ Baroness Uddin
§ Lord Peston
My Lords, I want to ask a point of order and not make a speech yet. Two or three contributions might not include at least one of us who wants to speak, and who has been sitting here patiently. Since a great many people who spoke earlier spoke at great length, I take very strong exception to the notion that there should be only two or three more speakers, especially if one of the three is not me. Therefore, I hope that my noble friend the Chief Whip does not push this point too strongly. I can see at least six people ready to speak, all of whom I am waiting to give way to in order that, one day, I might speak. I agree that it will take time. I really would like to get home to see my dear wife—part of our loving family—one day. But I really do not think that this is the kind of debate that should be curtailed in any way whatever. I also ask my noble friend not to count my point of order as my speech.
My Lords, I am not equipped to deal with points of order, I am afraid. Let us aim at a rough time of around half past five, shall we? It is amazing what contributions can be made in three or four minutes.
My Lords, I support Amendment No. 106. I do so with great respect for the noble Lord, Lord Lester, for whom I have great admiration. I think that an outright ban is what we must look for in 2004.
As a mother of five children, I accept the ambivalence that we have all faced from time to time. But I also speak as one who has worked as a professional social worker and a child protection officer for many years. We are talking about 3 million children, although I am not quite sure of the numbers—I hesitate to say anything about the numbers. Anyone who has witnessed the pain of children would not argue for anything less than the fact that violence is totally unacceptable.
A number of points have been made very eloquently, and while I do not wish to go into them all now, I should like to pick up a couple. Reference was made to resources. I understand from speaking to people who operated a similar system in Sweden and Germany that there were issues of resources but it was a question of redirection, not additional resources. In any case, if resources are required to ensure that children do not suffer violence, we must be committed to that. It is their right.
Taking attention away from valuable resources and talking about the children, if we had not sanctioned the kind of behaviour that we are talking about, 549 Victoria Climbiée would not be dead today. It is not acceptable for us to argue that it is a matter of resources.
I was not in the House when the Children Act 1989 was debated. I ask noble Lords on all sides of the House to look at the debates that must have taken place during the passage of that Act. I can quote so many things that have been said, and I will bet my bottom dollar that they are exactly the kinds of things that were said then. How could we possibly have imagined, 10 or 20 years ago, when we were talking about domestic violence, that we would be talking about the chastisement of children in exactly the same way today? There are many similarities.
I accept that the problem is one of attitude change, but it is also about condoning violence. What the noble Lord, Lord Hooson, said is very important. We must send a totally clear and unambiguous message that any form of violence is unacceptable. Unless we do that, we will fail the most vulnerable in our society, by which we will be judged for years to come.
§ Lord Condon
My Lords, I suspect that, like me, many noble Lords are torn between supporting Amendment No. 106 or Amendment No. 106B. Both approaches have enormous merit and have been argued for so eloquently and convincingly. However, I am absolutely certain that the status quo should not prevail and that your Lordships have an historic opportunity to establish a pragmatic, symbolic and new legal approach to protecting children.
Those noble Lords who are moving towards supporting Amendment No. 106 should not be deterred by a fear of unleashing hundreds of thousands of police inquiries into trivial allegations and pitting child against parent in frivolous circumstances. The Association of Chief Police Officers and the Association of Directors of Social Services have acknowledged that they can envisage a sensible and pragmatic regime with clear guidelines being established. Noble Lords will clearly respond to their own consciences on this issue, but they should not be deterred from supporting Amendment No. 106 for fear of hundreds of thousands of unnecessary, frivolous investigations.
My Lords, I address your Lordships as an ordinary person with no expertise, but I must reveal a strong bias in that I was never smacked as child—it was impossible for my mother or father even to have thought that that was a proper way to bring up children—nor were my sister or my brother. It was inconceivable that my wife and I would have smacked or hit our own children. It was simply not regarded as proper behaviour. That does not mean that there are not any problems. Ten days ago, I was looking after my seven year-old grandson and trying to watch what I thought was a very important football match. He talked incessantly through it and I wanted to strangle him, but it would never have occurred to me to do anything like that at all. What I had to do was to listen to a football match while he talked non stop. 550 That is riot an impossible state of affairs. To noble Lords who have asked what one does when one has a problem with children, my answer is that sometimes one just has a problem with children. That is the way the world is. However, hitting them and using violence is morally wrong. It is all very well for noble Lords, including one or two of my noble friends, to say that they are not in favour of violence when they are supporting amendments that legitimise violence. There is no other interpretation. I sit here and listen to very clever lawyers, but what they end up saying is that, in these cases, hitting children is acceptable. I find that impossible to believe. I would not behave in that way and I think that a large number of noble Lords would not behave in that way, including some who have not spoken.
We have heard the supermarket example. The noble and learned Lord, Lord Ackner, mentioned it last, but he was not the originator of it. One of the puzzles about the example of the supermarket—where my wife first of all has to restrain me—is that if I see a mother hitting a child and tell her to stop, I receive a stream of abuse. However, if, after the stream of abuse, she hits me, I can call the police, sue her and so on. That takes me to a point where I disagree fundamentally with the noble and learned Lord, Lord Ackner. He said that a child should not have the same rights as the adult; my view is that the child should have more rights than the adult, because the child is the defenceless person. That lies at the heart of our debate.
We have heard some odd cases being invented. I turn again to the supermarket example. When my little hand leans towards the double cream, my wife grabs me and says, "No! It's not good for you". However, the notion that the law should then be invoked for that violent attack on me to prevent me having the cream that is not good for me is ridiculous. But that is of the level of the cases that have been cited by noble Lords who support either the status quo or the other amendments, particularly that of the noble Lord, Lord Lester.
We have even heard some new concepts. The noble Lord, Lord Phillips, has invented the concept of the "loving smack". That is another definition of sadism. That is exactly what a "loving smack" is. It is all very well—
My Lords, is the noble Lord watching the clock? We are trying to fit as many noble Lords in as possible before the curtain comes down.
My Lords, as I pointed out to my noble friend the Chief Whip, those who have behaved in the proper way in your Lordships' House, giving way to speech after speech, should, especially if they are supporting the main amendment, at least be allowed to make the points that they are trying to make. I regarded what my noble friend the Chief Whip said not as being mandatory, but as "guidance", which is a term that the Government often use. I am influenced by the guidance, but I still intend to make the points that I want to make. 551 My main point, on which noble Lords should reflect, is that this is not a utilitarian case. It is not a matter of balancing rights and wrongs or of saying, "These are the plus consequences; these are the minuses. Let's now evaluate them and find out what the net position is". This is a matter on which one should take a moral or an ethical stand. That is the main reason why I am dismayed by the position of the Government and my noble friends on the From Bench. On a matter of this kind, where a moral principle is involved—a principle in which many of us have believed for pretty well all of our adult lives and in which quite a number of members of the Government must believe—not to allow a free vote to encourage Members to vote for what they truly believe is shameful. I have been a member of this party for probably longer than any member of the Front Bench. I did not think that we would reach this position on a matter of this kind. Even if I am expelled from the group, I intend to vote for Amendment No. 106 if it is moved. I say to the noble Lord, Lord Denham, that my main reason for having gone on a bit is that I would like to encourage as many of my noble friends as have the relevant ethical beliefs to vote for Amendment No. 106.
§ Baroness Howarth of Breckland
My Lords, I speak with some diffidence this afternoon, mainly because I spent the weekend in extreme discomfort. It would be my natural inclination to stand with the alliance. I believe fervently that hitting children is wrong. If we had thought through the issue in more detail, we might well have come up with something that met our requirements in a better way. Neither Amendment No. 106 nor Amendment No. 106B will meet them in total. Therefore, I hope that a better answer will be found in the Commons.
I need to explain why I cannot stand with my colleagues and why I am so discomfited in spite of a whole weekend of deep thought about this issue. I am a social worker. I have many years of child protection experience. One matter that we need quickly to clarify is the difference between child abuse at its worst and families who inappropriately hit their children. Hitting children is wrong, but it happens in families.
The case of Victoria Climbiée is not a valid example. Her case was in a different league from that of the mum who slaps her child in the supermarket. We have to keep our minds absolutely clear about those issues.
I also fear that we are confusing the real issues about how children perceive life. I spent 15 years in Childline, listening to children's voices on the telephone. Children talk with huge distress about being hit. They talk about being knocked down, hit with sticks and thrown downstairs. Some of those cases should certainly be coming to court. I respect the alliance hugely for bringing this debate forward. With due respect to the noble Lord who said that there has not been a debate in this country, I have seen attitudes change as a result of the work of the alliance and I respect it for it. 552 However, a law that makes families uneasy about their parenting is a difficult one. I would do most things to change the law on reasonable chastisement, which I see as being as ancient and removed from reality as many other noble Lords, but Amendment No. 106 will not do that. Therefore, I shall be supporting the amendment of the noble Lord, Lord Lester, although it does not answer the whole issue. What children also pointed out to me on the telephone was that however much they hated being hit, what they worried about most was getting their families into trouble. They did not want their families brought before the court, even for the most horrific abuse, and certainly not for cases of the kind we have been debating.
Therefore, we should not make families feel that they are going to get themselves into such difficulty, but I would not like to lose the opportunity that the noble Lord, Lord Lester, is giving us. I hope that the majority of the House will carry through to remove that appalling piece of legislation from the statute book and that the Government will continue to find an even better way to prevent anything that is not common assault, which we should not allow for children. I hope that the majority of your Lordships will support the amendment of the noble Lord, Lord Lester, but in the fervent hope that even that can be bettered.
§ The Earl of Erroll
My Lords, I had a gang of 16year-old schoolgirls staying at the weekend for a party. I happened to ask, without any canvassing, what they thought about banning smacking. They universally thought that it was crazy to ban it and that Parliament should get real, in their words. The problem is that we punish a child for disobedience, not for behaviour: it is not the running across the road but the repeated disobedience in doing it. The only time that I have chastised my children above once each was for disobeying their mother. They then knew who ruled the roost in their house: their mother—very simple.
I think that is how many reasonable families work. The problem is that we need to make the punishment fit the child. The notion that we should remove smacking from the options will not suit some children. Some children do not respond to reason, long arguments or some form of humiliation; in fact, it may be more damaging and the short, sharp shock should be left there for some parents in reasonable cases.
Another thing that worries me about Amendment No. 106 is the meaning of the word "battery". I understood—and I have just checked with a noble and learned Lord—that battery includes the threat; assault is the actual physical action. So the threat that one is going to carry out the action is battery—I am not sure that that is what is meant in the amendment. If that point can be clarified I stand to be corrected. 553 Guidelines can unfortunately be rewritten ad hoc, so I do not see them as the solution. If we want to rewrite some guidelines there is a perfectly good rule about reasonable chastisement: rewrite the guidelines on "reasonable" to fit the cases in a more human way.
My Lords, will it assist the noble Earl to realise that assault is a threat; it does not have to involve touching, but battery involves contact?
My Lords, I thought that it was the other way round.
§ Earl Howe
My Lords, this has been a high quality debate. Perhaps I may begin by thanking all noble Lords who have spoken in a principled way to the amendments and by making it clear that the Conservative Party believes that it is appropriate to allow a free vote on the issue. What follows therefore represents my personal views.
The amendment tabled by the noble Baroness, Lady Finlay, and others was debated in Committee. I made it clear at that time that I could not accept it. Listening today to the speeches of the noble Lord, Lord Laming, and the noble Lord, Lord Phillips, has completely confirmed my stance. If we put the law of assault between parent and child on the same footing as the law of assault between adult and adult, which is what the noble Baroness, Lady Finlay, seeks to do, there will be only one result: we will render any parent who administers a smack to their child liable to criminal proceedings. That is not something for which I am prepared to vote under any circumstances.
The noble Baroness argued that cases of minor assault would never in practice be prosecuted. If that is so, the law should not be changed so as to enable that to happen. If we change the law but in the same breath say that we do not want some elements of it to be implemented, that only brings the law into disrepute.
The Minister emphasised in Committee—and I agreed with her—that if there is a lack of clarity over what the will of Parliament amounts to, it is not fair on the public authorities to be expected to implement it. From a practical point of view, even if there is no prosecution in cases of trivial assault, one can envisage a huge and wasteful diversion of resources in investigating such cases, leaving fewer police and social workers to investigate and pursue perpetrators of real and serious abuse. That worries me.
With great respect, I disagreed with the remarks of the noble Lord, Lord Condon. We should not underestimate the extent to which the amendment would encourage malicious complaints against parents by individuals with a particular agenda. Perhaps worse, it would run counter to the tenor of the Bill to create a climate in which loving parents felt intimidated in the way that they set about the responsibility of bringing up their children.
I turn to the amendment in the name of the noble Lord, Lord Lester. I was grateful for his helpful introduction and found myself in agreement with a great deal of what he said. My position is simple and I 554 hope and believe that it accords with his position and that of the Government. I want to make sure that children who suffer physical damage as a result of a beating by a parent are protected under the law, but I also want to make sure that a loving mother who wallops her child in the supermarket—to use the oft-quoted example—for repeatedly doing what he is told not to do, is not committing an arrestable offence. The state should not interfere in the way in which parents bring up their children unless real abuse or violence has occurred. Loving parents should be entitled to use moderate physical punishment if they deem it to be justified in their children's best interests.
The stated aim—which I applaud—of the noble Lord, Lord Lester, is to bring clarity to the law while at the same time achieving the broad objectives of which he spoke. Although it is reassuring to hear that, in his opinion, his amendment passes the test of legal clarity, we can reach a final judgment on that score only in the light of the remarks of the Attorney-General, which we are about to hear. I have no difficulty with the proposal of the noble Lord, Lord Lester, that cruelty, wounding and grievous bodily harm should be proscribed. No one disagrees with that. Where I have some uncertainty is over the meaning of "actual bodily harm" as defined by case law. It has been put to me that the term is open to a range of interpretations and could include, for example, minor bruising or even a red mark on the skin. It would be helpful to hear from the noble and learned Lord whether that is so. Can he say whether there have been cases—as I am told there have been—of incidents resulting in very minor injury or even no injury being charged as actual bodily harm? If the answer is "yes", we need to be very wary indeed of jettisoning the defence of reasonable chastisement in such cases.
But there could also be perverse consequences from the amendment if the term "actual bodily harm" is open to interpretation. If, let us say, a child is seen to be smacked by a parent and to suffer slight and temporary pain in consequence, a charge of common assault might be seen as likely to fail in court because of the defence of reasonable chastisement.
The alternative for the police in order to get a result would be to bring a charge of actual bodily harm. By doing so, they would be able to guarantee that the defence of reasonable chastisement would not be available to the parent. That is a worrying possibility. Currently the way in which the charging standards are implemented varies widely across the country. We cannot rely on them to reassure ourselves that such minor assaults would not reach the court under the banner of actual bodily harm.
The question for the House is that posed by the noble and learned Lord, Lord Ackner: whether the existing law is sufficiently defective to warrant a complete change. It has been argued that the current law falls foul of the UN convention. However, I note that the Government oppose the amendment in the name of the noble Baroness, Lady Finlay, and are 555 allowing a free vote on that in the name of the noble Lord, Lord Lester. That hardly indicates that they believe a change in the law to be necessary.
If there have been cases of real abuse that have not been prosecuted, that does not necessarily argue for a change in the law; only an improvement in the way that it is administered and enforced. The defence of reasonable chastisement is well understood by the courts, especially in the light of the ECHR decision in the case of A v the UK. The noble Lord, Lord Thomas, appeared to acknowledge that point.
I shall listen very carefully to the noble and learned Lord the Attorney-General, but my belief is that the risks of changing the law considerably outweigh the risks of keeping the law as it is. Unless my mind is changed in the next few minutes, I shall vote accordingly.
My Lords, as one of the movers of Amendment No. 106, I sometimes feel like Alice in Wonderland in a looking-glass world. First, I find myself, on behalf of my party, having to oppose a Back-Bench amendment tabled by my noble friend Lord Lester, whom I admire very much. I regret the need to do that, but I do so firmly.
Secondly, I find myself living in a country in which there is a bizarre situation worthy of the White Rabbit, the Queen of Hearts et al. The common law of this country decriminalises an act which, if committed against an adult, would be a criminal assault, simply on the basis that the victim is a child—and on no other basis. In other words, the person who deserves more protection actually gets less. There is no other situation in law in which a victim of a violent crime or his representative has to prove that he did not deserve to be assaulted.
I also find a fellow NSPCC ambassador, the noble Baroness, Lady Massey of Darwen, opposing the long-standing campaign of that organisation and all the other reputable children's charities representing the interests of children. It is a looking-glass world indeed, and I regret it.
I am proud to be British and I am patriotic, but I am not blind to my country's faults, and today I am trying to do something to redress one of those problems. This country has a culture of violence, and I want to redress the roots of that culture, which I believe lie in the hitting of children.
I agree with those who have said that children are different from adults, but that does not mean that they deserve any less protection under the law of assault. They are different for three reasons—and each reason supports the call for equality, rather than the other way about. First, children are smaller and more vulnerable and need more protection from anyone who seeks to use violence against them, not less. Secondly, they do not know how to behave and need to be taught. Their parents have the right and duty to teach them; they have a duty to teach them in the most effective possible way, but no right to do it in a way that infringes the child's basic human rights. 556 I am a liberal, like my noble friend, and I believe that we should not interfere in people's private behaviour unless it infringes the basic human rights of someone else. I believe that this is just such a situation, and I am supported in that belief by the United Nations and the European Council, whose assembly called only last week for a ban on all physical punishment in the family and said that it would not interfere with the right to family life.
The third way in which children are different is that they take life very much as they find it. Lacking other experience, they assume that what happens to them is normal and right. If their parents hit them, that is what happens in the world, and they accept it. That is why children who are beaten severely and frequently are usually ominously silent. They no longer cry—they just whimper.
Children know that hitting them does not work. Last week, we saw a presentation in the House from some children, and they made it clear that hitting them teaches them only one thing—that if you want your own way and you are bigger and stronger than someone else, violence can get it for you. We hit our children and they learn that; then they go out and hit their playmates, and we smack them for hitting little Johnny. How illogical is that? Then they grow up and have fights in the pub, or hit their own wives and children. We condemn the one but condone the other. How logical is that?
Violence hurts the child and damages his perception of what is right. It also damages the parent and the relationship between the two, and it damages society. Here in Britain we have a society in which the level of crimes of violence is very high, especially among young people. The whole country seems to think that violence solves things—and it does not. The terrible situation in Iraq should tell us that. We live in a country in which one to two children die from violence or neglect every week. That is the tip of a terrible iceberg. Below the waterline is an enormous amount of violence against children. As the noble Baroness, Lady Finlay, said, 75 per cent of babies are hit even before they have learned to talk. How can it be reasonable to punish a little baby that does not even know what is right and cannot in any way be expected to? Hitting a child is not the only way in which to teach him how to behave and certainly not the only way in which to teach him about danger—but it does teach him that violence works.
This whole debate has become very legalistic. It has been said that there must be certainty under the law, and there has been a lot of scaremongering about the possibility of prosecuting caring parents, but I hope that your Lordships will listen to the wise words of the noble Lord, Lord Condon, who should know if anyone does. But I believe that this debate should be about principle, and it saddens me that the Government will not accept the principle of equality.
The fact is that the law of any country should say something about the morals and standards of that country, and what its people believe to be right. The 557 laws of this country say that hitting children can be justified. I believe that that is wrong, and I want the law to be clear in saying that hitting children is just as wrong as hitting adults—no more, no less—and that it should then be as understanding and sensible as it is about trivial assaults on adult victims when parents do not quite live up to that standard. I did not live up to that standard myself, as I have admitted many times in your Lordships' House. However, as with de minimis assaults on adults, the same charging standards should apply before any action is taken.
Every weekend we see assaults on sports fields when tempers rise; they even appear on national television, yet no action is taken. Every Saturday night, fists fly in pubs, yet action is very rarely taken. The Director of Public Prosecutions has made it clear that the interests of the child will be taken into account when establishing the public interest, and there is no public interest in prosecuting caring parents for trivial smacks, however undesirable they are. There, at least, my noble friend Lord Lester quoted me correctly. But the DPP did not endorse my noble friend's amendment. He simply said that taking away the defence of reasonable chastisement for all assaults except common assault was a possibility. He did not suggest that equal protection was unworkable.
My colleagues and I have never claimed that action should be taken every time a frustrated parent who cannot think of anything better to do hits the child he or she loves. We know from the polling on this issue that parents do not want to hit their children and usually regret it when they have done so. I know that I did. But it is not hypocritical to put past mistakes behind one and to move forward and change things, in the light of what we have learned from the experiences of other countries. None of us wants to feel like criminals, but we must realise that when we reach—
My Lords, to get the matter absolutely clear, is it not the case that what the Director of Public Prosecutions in fact said about the proposal in my amendment was: That is a possibility and that would have the merit, it seems to us, of the legislation being more certain. I do not want to repeat myself but I think that we are a little uneasy at the idea that Parliament can fudge this issue and expect us to sort it out".
My Lords, I thank my noble friend for that. I want Parliament not to fudge the issue today, and I believe that his amendment will provide the same level of uncertainty for children that we have at the moment. The prosecution would have to prove that harm had been done to the child—or the various levels of assault or injury to the child. That is not going to move us forward as regards child protection.
I believe that the law should educate people about the standards that we expect in a civilised society, and deter them from harming the most vulnerable. I would hope that when we reform the law completely to remove the defence of reasonable chastisement and 558 give children equal protection, it will send out a very clear message that will make parents stop and think before hitting their children. If it stays the hand in the air, it will have achieved something, although none of us are deceived into believing that it will solve everything. It will not.
Let me tell noble Lords a little anecdote, which will answer the question posed by the noble Earl, Lord Onslow. I met a young man recently who told me that he and his four siblings had been regularly beaten as children—which, he said, had "really screwed them up". However, he accepted that his father loved them and was a very law-abiding man. He said that he was convinced that, had hitting children been as unlawful as hitting adults, his father would never have done it, and the psychological harm done to him and his siblings would never have happened.
If we put a clear law alongside a lot of publicity about all the better ways of teaching a child how to behave well, and a lot more resources into helping parents, we may in the fullness of time reach the situation of Sweden, which made this change 25 years ago. In that country child mortality from violence is almost nil, and children do not run wild. In fact, youth crime has not risen at all there in the past 20 years.
All this concentration on the courts misses the point. This is not about criminalising or prosecuting parents; it is about helping, supporting and understanding them. That is how it operates in all the 12 European countries where hitting a child is unlawful. There are no malicious private prosecutions for trivial acts, and the authorities channel parents who regularly hit in a way that harms the child into help, not prison. Please note that there are no sanctions in our amendment. It simply completely removes a legal excuse for hitting a child, except in situations of danger where physical restraint is acceptable.
So why are the Government, my noble friend Lord Lester and the noble Earl, Lord Howe, resisting that reform? They say it is because they do not want to see caring parents land up in court and that would be the inevitable consequence of our amendment. That is a classic and common tactic of those who oppose any change. They take a possible consequence of the change and stretch it to unreasonable extremes. They claim that that is what would always happen if the change took place. That is an unreasonable extreme which of course nobody wants. Your Lordships are not stupid and will see through that tactic immediately.
We know that in all the other countries where hitting children has become as unlawful as hitting adults, the number of obligatory interventions into family life has actually fallen. Is that not what we all want to see? That is because help is given earlier, before there is a need for formal intervention. There has been earlier intervention and a reduction in serious physical abuse of children. The noble Lord, Lord Laming, quoted an early draft of the Association of Chief Police Officers. Its final statement supports our amendment, but asks for clear guidelines. 559 I will finish on this point. In Sweden—
My Lords, I think that is unworthy of your Lordships. Noble Lords probably are aware that this campaign has been going on for many years. It is the first opportunity in 15 years for the issue to be attached to an appropriate Bill. It could be another 15 years before we get another opportunity. It is therefore absolutely vital that all the issues are properly aired and that a summary is made at the end of the debate. It would be inappropriate for my noble friend Lady Finlay—who will, as the mover of the amendment, make very brief comments—to answer all the points. So I think that I am behaving perfectly appropriately in giving a correct answer to the issues raised.
In Sweden, children know about the protection that they have a right to. They know that they and their parents have a right to help. They know that if they report that their parents are hitting them and need help to find different ways of doing their duty to discipline, they will receive that help. They are not in danger of having their family split up, as the noble Lord, Lord Stoddart, suggested might take place. That was one of the dire warnings given by the noble Earl, Lord Howe, in his speech in Committee. That has not happened in Sweden, nor in any of the other countries. There is not a big raft of malicious complaints and prosecutions anywhere else. Are we a malicious nation? Or do we really want to do something to move the protection of children forward? Amendment No. 106 will do that. I therefore beg your Lordships to vote for it. I cannot vote for the amendment of my noble friend Lord Lester unless it is amended by the amendments of my noble friend Lord Thomas of Gresford, because I believe that it does not move child protection forward. It gives us the same level of uncertainty as we have now. Indeed, it could be even worse.
The trouble is that the Government will say that they have done something, because—make no mistake—that is a government amendment manquée. They cannot be allowed to say that they have done something if Amendment No. 106B is carried, and it could be another 15 years before we have the chance to put that right. I beg your Lordships to vote for legislation to protect children and give them the equal protection that you and I enjoy against assaults upon us.
§ Baroness Ashton of Upholland
My Lords, I begin my paying tribute to all noble Lords who spoke in this debate. I believe that what unites every speaker in your Lordships' House is a desire to protect and support children. To that extent we share a common goal. I trust that no one watching, participating in or reading our deliberations will fail to recognise that. I pay tribute to all.
In the passion and emotion that underlay much of this debate—and indeed of the tabled amendments—there are two separate but interrelated questions—what is the legal effect of each amendment, and what are the policy and practical implications of each? I am 560 pleased that my noble friend the Attorney-General is here today. I am very grateful to him. I felt this to be such an important debate that the House should receive his view on the legal issue. I invite him to do so before I continue.
§ The Attorney-General (Lord Goldsmith)
My Lords, with the leave of the House I rise simply in the hope that I can be of assistance in my capacity as Attorney-General. It is not my intention to deal at all with the important policy issues raised today. That is an issue which the House—ultimately Parliament—will have to decide. My noble friend Lady Ashton will deal with the policy considerations.
My purpose in rising is threefold. First, I rise to assist the House by setting out the legal context in which these amendments fall to be considered; secondly, to advise the House of my view of the legal effect of each of the amendments if passed; and thirdly, in my capacity as superintending Minister for the Crown Prosecution Service, to deal simply with the suggestion made that it would be appropriate for Parliament to leave it to the discretion of the Crown Prosecution Service to decide when to prosecute in the case of minor smacking of children.
I deal first with the legal context. In law, any unwanted application of force to the body of another which is committed intentionally or recklessly will—unless there is a defence to it—be an offence. Technically this is known in law as a "battery", although often called an "assault". Assault without battery is where, as the noble Lord, Lord Thomas, said, the defendant intentionally or recklessly causes another to apprehend immediate and/ or unlawful violence. For convenience I will use the more common expression "assault", but noble Lords will understand that I mean by that an occasion where there is actual application of force.
To constitute an unlawful battery there need not be any kind of injury, so even a touching which leaves no visible mark at all can be an assault which is punishable by the criminal law. Some assaults will leave injuries, sometimes serious injuries—the law treats those cases more severely, of course, and there are as a result specific offences which apply where such injury occurs. I will return to that issue.
What then are the defences? There are several which the common law recognises, such as those which arise from the exigencies of everyday life—such as a slap on the back at a party, or jostling on the Underground. But the defence which is particularly pertinent here is the defence of reasonable chastisement. It has long been recognised by the law that a parent may inflict moderate and reasonable punishment as a correction to the child. That is the defence of reasonable chastisement. Without that defence, such punishment—including a single smack to a child—would be an unlawful assault and punishable by the criminal law.
I should underline, however, that the fact that the defence is available does not necessarily mean that a defendant will be able to avail himself of it. It is necessary that the force used is reasonable and moderate in all the circumstances. So the defence may be available but a jury 561 or magistrates may be satisfied that the force used was more than moderate and reasonable in all the circumstances and so convict of the offence.
In considering whether the force used is reasonable the Court of Appeal has laid down that "reasonable" must be considered against a number of factors, including the nature and extent of the defendant's behaviour, its duration, its physical and mental consequences in relation to the child, the age and personal characteristics of the child and the reasons given by the defendant for administering the punishment.
That takes me to my first point on the effect of Amendment No. 106 moved by the noble Baroness, Lady Finlay of Llandaff. The effect of that amendment in my view would be to criminalise smacking except in the limited and narrowly confined circumstances set out in subsection (2) of the amendment. The defence of reasonable chastisement would not be available therefore to a parent who smacks a naughty child out of frustration at being unable otherwise to correct the behaviour of the child. Unless the purpose was to avert an immediate danger to the child—I note the word "immediate" in subsection (2) of Amendment No. 106, which would appear therefore to exclude cases where the intent is to avert danger to the child which is more remote—to avert danger to property or to prevent the commission of a crime, this smack would be a crime. It would not matter that there was no lasting injury or even a reddening of the skin—this would be an offence.
I therefore say to my noble friend Lady Whitaker that the amendment criminalises smacking. I say to the noble Baroness, Lady Walmsley, when she says the amendment contains no sanction, that its effect is to bring in the existing sanction, at least for common assault, which is six months' imprisonment maximum. That would also be one of the effects of Amendments Nos. 106C, 106D and 106E in the name of the noble Lord, Lord Thomas of Gresford. Later I shall explain why that is the case and deal with their other effects.
I am well aware that there are those who take the view that all smacking should be illegal. For them this amendment would achieve their ends. However, for those who wish to outlaw some degrees of physical contact or corporal punishment but do not wish to criminalise or ban smacking, the amendment would not have the effect they desire. It is, in short, an amendment whose effect would be to ban smacking save, as I have said, in all but some narrowly confined circumstances. That was also the view given by the Director of Public Prosecutions when he gave evidence to the Joint Committee on Human Rights. He said that, quite clearly this outlaws batteries and assaults in all but very exceptional circumstances".
It is appropriate to deal with the other issue raised by some noble Lords that it would be acceptable to ban smacking in this way but to leave it to the discretion of 562 the prosecutor to decide not to prosecute. The noble Baronesses, Lady Finlay and Lady Sharp, referred to the evidence of the Director of Public Prosecutions. He said that he suspected—with respect, he did not say that he was sure—that most minor assaults against children would not be prosecuted. However, as he said, this was based on the fact that most minor assaults against adults are not prosecuted. He went on to say that the comparison with adult victims was not an accurate one because of the vulnerability of children. He went on to make two further points clear. First, he said that it would not be possible to frame guidance to prosecutors which would absolve all minor acts of battery against children. Secondly, he made the point that it is for Parliament to frame its legislation to achieve the result that it wants to achieve. I agree. It is for Parliament to decide if smacking is to be banned. It is not right to leave that important public policy decision to others.
I, too, am concerned about leaving what is in effect a fundamental public policy choice to the prosecutor. If Parliament removes the reasonable chastisement defence, as Amendments Nos. 106, 106C, 106D, and 106E would do, it is therefore criminalising smacking, and it is not fair on the prosecutor to leave the decision whether to enforce that law to the discretion of the prosecutor. Noble Lords might also think that it would be unfair on parents because, as the noble Lord, Lord Lester, has said, they are entitled to certainty in the law so that they know what acts or omissions will make them liable to prosecution. This is a fundamental part of the common law and of our obligations under the European Convention on Human Rights.
Therefore, I respectfully advise noble Lords not to assume that they can safely vote for Amendment No. 106 or those standing in the name of the noble Lord, Lord Thomas of Gresford, in the belief that they need not be concerned that thereby the law would criminalise acts which they do not mean to criminalise because it can be left to the prosecutor. It is for Parliament to decide what it wants to achieve and for the prosecutor to give effect to the law as passed by Parliament, not to legislate himself.
I turn next to the effect of Amendment No. 106B in the name of the noble Lord, Lord Lester of Herne Hill. Essentially I agree with what he said about the effect of his amendment, but it is right that I should explain why in my own words. The effect of this amendment would be to remove the defence of reasonable chastisement in relation to offences of causing actual bodily harm and the more serious charges of unlawfully inflicting grievous bodily harm, causing grievous bodily harm with intent and cruelty to a child. Nor could the defence be relied upon in any civil proceedings where actual bodily harm is caused. The defence would remain available to parents or those in loco parentis to a charge of common assault.
Noble Lords will therefore wish to know—the noble Earl, Lord Howe, asked about this—when an assault leads only to a charge of common assault and when one of the higher offences, particularly assault occasioning actual bodily harm, comes into play. The standard legal definition of "actual bodily harm" is, 563 any hurt or injury calculated to interfere with the health or comfort of the [victim]. Such hurt or injury need not be permanent, but must … be more than merely transient and trifling". So the offence does not require that there be a serious injury but that there be an injury which is more than transitory. Actual bodily harm is, moreover, not confined to physical harm but can and does include psychological harm. It would not include mere emotions such as fear, distress or panic, but where there is evidence of psychiatric injury, that can amount to actual bodily harm.
Reference has been made to the CPS charging standards. These are not in any sense legally binding on the courts but they guide police and prosecutors and represent the interpretation of the ingredients appropriate to an offence. In relation to an offence of common assault, the standards indicate that a charge of common assault will normally be appropriate where injuries amount to no more than grazes, minor bruising, reddening of the skin, scratches, superficial cuts or a black eye. At the moment the standards give guidance to prosecutors to focus on the nature of the injury caused and not on the circumstances of the victim when deciding which offence to charge. However—
My Lords, before the noble and learned Lord sits down, the point I was making is that reddening of the skin cannot possibly apply in the case of black children.
§ Lord Goldsmith
My Lords, I hear what my noble friend says. I should like to tell noble Lords about the proposed changes to the charging standard which the Director of Public Prosecutions has advised me he intends to make because those are very pertinent to your Lordships' consideration.
The revised charging standard will include guidance that where serious aggravating features exist, cases in which the level of injuries would usually lead to a charge of common assault, could more appropriately be charged as actual bodily harm. Such serious aggravating features would include the vulnerability of the victim, such as when they are a child assaulted by an adult. The effect of that pending change is that even minor assaults by a parent on a child, where grazes, scratches, abrasions, minor bruising, swelling, superficial cuts or a black eye are caused, will normally be charged as assault occasioning actual bodily harm.
However, given the publicity over the weekend and this morning, I should make it clear that reddening of the skin where it is merely transitory will usually still be charged as common assault. That is because the definition of "actual bodily harm" requires the injury to be more than transient. Where the reddening subsists for hours or days, that may suggest a charge of actual bodily harm.
That change, in combination with the amendment in the name of the noble Lord, Lord Lester, would have the effect that the defence of "reasonable chastisement" could not normally be relied upon where any injury that 564 was more than transitory was caused. In my view, legally, the Lester amendment would have the effect of preventing harm to children without criminalising parents for minor disciplinary steps.
Finally, I need to deal with the amendment of the noble Lord, Lord Thomas, which I can do shortly. There are three points to make. First, the amendment, like that of the noble Baroness, Lady Finlay, abolishes the defence of reasonable chastisement in proceedings for all offences of assault and in civil proceedings, save for some narrowly defined exceptions, and has the effect of criminalising parents who administer minor disciplinary smacks.
Secondly, the amendment appears to be even narrower than that of the noble Baroness, because the only exception it permits is where the act was for the purpose of restraining the child from immediate or future harm to itself or another. It does not include, as Amendment No. 106 does, averting danger to property, or preventing the commission of a crime. I do not know whether or not the noble Lord, Lord Thomas, intends the latter to be the case. There is a defence of preventing the commission of a crime in Section 3 of the Criminal Law Act 1967. The noble Lord has not proposed the disapplication in terms of that defence, but the position is not clear.
Further—this is the third point—the noble Lord proposes that there should be placed on the defendant the legal burden of proving, on the balance of probabilities, that the act was reasonable for that purpose. That proposal creates a legal difficulty that I do not welcome. As noble Lords will know, it is rare for the law to place on a defendant the burden of proving a defence. Normally it is the prosecution who has to prove beyond reasonable doubt each of the elements that make up the offence. Of course there are exceptions, but the courts have been much exercised by the question of whether such "reverse burdens", as they are known, are a breach of the right to a fair trial, and in some cases they have read those clauses down because of European Convention on Human Rights implications. Whilst the case law suggests that exceptions of this kind may be permissible, the difficulty they have caused in the past is such that we should not rush to create new examples of the reverse legal burden.
It is not clear that the burden intended by the noble Lord, Lord Thomas, relates to proving that the battery was for the purpose permitted, or to proving that it was reasonable for that purpose, but without having to prove that was the purpose, or whether it is both. Noble Lords should bear in mind the fact that the consequence of putting the burden on the defendant on a particular fact is that if the magistrates or jury are in doubt on the matter, and cannot say that it is more likely than not that the defendant is right, they will have to convict, whereas normally, of course, the defendant gets the benefit of reasonable doubt.
My Lords, I shall be brief. This debate is about the most sensitive and intimate relationship of all, between parents and their children, and about the parameters of the involvement 565 of the state in that relationship in order to protect those children. On Second Reading I indicated that, were an amendment to come forward that sought to give greater protection to children but did not criminalise parents, the Government would be willing to offer a free vote. The history of that position is as follows. Organisations and individuals have come to us and said they believe there are circumstances where children are subject to great stress and suffering, and where parents should be prosecuted but are not, either because of a mistaken belief about the way the law works, or because the law was too vague or too wide. We listened with great care to those organisations and individuals, some of whom are in your Lordships' House, and to all of whom I pay tribute.
Amendment No. 106 was tabled at Committee, and I indicated the reasons why the Government felt they could not offer a free vote. I indicated the two views that came together around the amendment: those who believed, as a matter of principle, that in all circumstances it is wrong for parents to use any form of smacking or slapping against their children; and others who believed that while a loving parent might do that in certain circumstances, it would never be prosecuted because the prosecutors would not pursue. My noble friends have given the answer to why we feel it is important that we cannot give a free vote on that issue. The amendment creates uncertainty at best, and makes it absolutely clear that parents would be criminalised.
The noble Baronesses, Lady Finlay and Lady Walmsley, have been extremely generous in giving me their time to discuss this issue. We have had many open and frank discussions, and we have not always agreed, but I recognise and pay tribute to their work. I have said to them, and I say again, that, whatever the outcome of today's debate, I look forward to working closely with them, to see what more we can do to support children, in the work that they do as ambassadors for the NSPCC and in other capacities. I genuinely look forward to that.
My noble friend indicated that the amendment of the noble Lord, Lord Lester, provides greater protection for children without resorting to criminalisation of parents, which is why we are able to offer a free vote on that amendment.
I want to end with a couple of comments. I believe wholeheartedly that we need to do more to support parents. I believe in the Sure Start programme, for which I was responsible, and in education and support for parents. I also believe that the way to do this is to support and encourage parents, which is something the Government are committed to and, in a sense, is at the heart of this Bill. I also believe that it is very important that we do not leave it to those who would have to interpret the law to determine what our actions were meant to be. We are lawmakers. We should tread lightly in making the law in this way.
It is important that each of us recognises our individual role in this matter. I, as a Minister and as a person, have not spent more time on any other subject in the three years of my ministerial career than I have on this issue. I pay tribute to everybody who has come 566 to talk to me in many different meetings, not least in the All-Party Parliamentary Group for Children, to give me their views. I know how important this issue is in your Lordships' House, and I agree it is important to ensure that the law is in the right place. I am not ashamed of where I stand. It is important that we make sure we protect children appropriately.
It has been an important debate. We should take care of our children, and in our role as lawmakers, it is important that we take care. I hope noble Lords will reject Amendment No. 106, and Amendments Nos. 106C, 106D and 106E in the name of the noble Lord, Lord Thomas of Gresford, because of the effect they would have. The Government believe that Amendment No. 106B in the name of the noble Lord, Lord Lester, affords the House an opportunity to search its own conscience, and to take a view on whether that amendment offers greater protection for children in the right balance of involvement in family life.
My Lords, I am grateful to all those who have taken part, particularly the Minister, who has spent a great amount of time with myself and others discussing this issue. I am grateful to the Attorney-General for coming to the House today. As we have said, it is indeed for Parliament to decide. An important principle is involved: is battery of a child justified, or does it infringe the child's human rights? The police have said that this is a change whose time has come. We all support Sure Start, and all the other programmes that have been undertaken. No one condemns any of those.
The law must be clear and give a lead, as was clearly expounded by the noble Baroness, Lady Kennedy. The current law is confusing. I am concerned that Amendment No. 106B maintains that confusion, because of the difficulty of proving that there has been actual bodily harm, for the reasons so clearly outlined, depending on the physiology of the child, their race, where the blow was inflicted and so on. Therefore, in my belief that Amendment No. 106 is absolutely clear and sends a message to society that hitting children is wrong, I feel that I must test the opinion of this House.
On Question, Whether the said amendment (No. 106) shall be agreed to?
§ Their Lordships divided: Contents, 74; Not-Contents, 249.
Division No. 1
Addington, L. Dholakia, L.
Ampthill, L. Ells-Thomas, L.
Barker, B. Falkland, V.
Berkeley, L. Falkner of Margravine, B.
Bernstein of Craigweil, L. Faulkner of Worcester, L.
Billingham, B. Finlay of Llandaff, B.[Teller]
Bragg, L. Gale, B.
Condon, L. Garden, L.
Coventry, Bp. Goodhart, L.
Darcy de Knayth, B. Hamwee, B.
David, B. Harris of Richmond, B.
Harrison, L. Redesdale, L.
Hattersley, L. Rendell of Babergh, B.
Hollick, L. Renton, L.
Hooson, L. Richardson of Calow, B.
Howells of St. Davids, B. Rix, L.
Judd, L. Roberts of Llandudno, L.
Kennedy of The Shaws, B. Rodgers of Quarry Bank, L.
Laird, L. St John of Fawsley, L.
Ludford, B. Scott of Needham Market, B.
Maclennan of Rogart, L. Sharp of Guildford. B.
McNally, L. Sheldon, L.
Maddock, B. Shutt of Greetland, L.
Manchester, Bp. Smith of Clifton, L.
Michie of Gallanach, B. Stern, B.
Miller of Chilthorne Domer, B. Taverne, L.
Morgan, L. Thomas of Gresford, L.
Murphy, B. Thomas of Walliswood, B.
Nicholson of Winterbourne, B. Tordoff, L.
Northover, B. Turner of Camden, B.
Oakeshott of Seagrove Bay, L. Uddin, B.
Ouseley, L. Wamsley, B. [Teller]
Oxford, Bp. Warnock, B.
Patel, L. Whitaker, B.
Pendry, L. Wilkins, B.
Peston, L. Williams of Crosby, B.
Prys-Davies, L. Williamson of Horton, L.
Ackner, L. Colwyn, L.
Acton, L. Cope of Berkeley, L.
Ahmed, L. Craig of Radley, L.
Alli, L. Craigavon, V.
Alton of Liverpool, L. Crathorne, L.
Amos, B. (Lord President of the) Crawley, B.
Council) Crickhowell, L.
Andrews, B. Cumberlege, B.
Archer of Sandwell, L. Dahrendorf, L.
Ashton of Upholland, B. Davies of Coity, L.
Astor, V. Davies of Oldham, L. [Teller]
Attlee, E. Dearing, L.
Bach, L. Deedes, L.
Bassam of Brighton, L. Denham, L.
Beaumont of Whitley, L. Desai, L.
Bell, L. Dixon, L.
Bhattacharyya, L. Dixon-Smith, L.
Birt, L. Donaldson of Lymington, L.
Blackstone, B. Donoughue, L.
Blackwell, L. Drayson, L.
Blaker, L. Dubs, L.
Blatch, B. Eccles of Moulton. B.
Bledisloe, V. Eden of Winton, L.
Boothroyd, B. Elder, L.
Borrie, L. Elles, B.
Bowness, L. Elliott of Morpeth, L.
Brennan, L. Elton, L.
Bridgeman, V. Emerton, B.
Brooke of Sutton Mandeville, L. Erroll, E.
Brookeborough, V. Evans of Parkside, L.
Brookman, L. Evans of Temple Guiting, L.
Brooks of Tremorfa, L. Falconer of Thoroton, L. (Lord Chancellor)
Brougham and Vaux, L.
Burnham, L. Farrington of Ribbleton, B.
Buscombe, B. Fearn, L.
Campbell of Alloway, L. Feldman, L.
Campbell-Savours, L. Filkin, L.
Carlisle of Bucklow, L. Fitt, L.
Carnegy of Lour, B. Fookes, B.
Carter of Coles, L. Fraser of Carmyllie, L.
Chadlington, L. Freyberg, L.
Chandos, V. Fyfe of Fairfield, L.
Chorley, L. Gavron, L.
Christopher, L. Gibson of Market Rasen, B.
Clark of Windermere, L. Giddens, L.
Clinton-Davis, L. Glentoran, L.
Golding, B. Montagu of Beaulieu, L.
Goldsmith, L. Montrose, D.
Goschen, V. Moore of Wolvercote, L.
Goudie, B. Morgan of Huyton, B.
Graham of Edmonton, L. Morris of Aberavon, L.
Gray of Contin, L. Morris of Bolton, B.
Greengross, B. Morris of Manchester, L.
Greenway, L. Moser, L.
Grenfell, L. Moynihan, L.
Grocott, L. [Teller] Murton of Lindisfarne, L.
Hanham, B. Naseby, L.
Hannay of Chiswick, L. Newton of Braintree, L.
Harris of Haringey, L. Nicol, B.
Hart of Chilton, L. O'Cathain, B.
Haskel, L. Onslow, E.
Hayhoe, L. Oppenheim-Barnes, B.
Henig, B. Parekh, L.
Henley, L. Park of Monmouth, B.
Hodgson of Astley Abbotts, L. Parkinson, L.
Hogg of Cumbernauld, L. Patel of Blackburn, L.
Hollis of Heigham, B. Patten, L.
Hooper, B. Pearson of Rannoch, L.
Howard of Rising, L. Peel, E.
Howe, E. Perry of Southwark, B.
Howe of Aberavon, L. Plant of Highfield, L.
Howe of Idlicote, B. Quirk, L.
Howell of Guildford, L. Randall of St. Budeaux, L.
Howie of Troon, L. Rawlings, B.
Hoyle, L. Reay, L.
Hughes of Woodside, L. Rees, L.
Hunt of Chesterton, L. Richard, L.
Hunt of Kings Heath, L. Roberts of Conwy, L.
Hunt of Wirral, L. Roll of Ipsden, L.
Hurd of Westwell, L. Rooker, L.
Irvine of Lairg, L. Rosser, L.
Jay of Paddington, B. Sainsbury of Turville, L.
Jenkin of Roding, L. St. John of Bletso, L.
Jones, L. Saltoun of Abernethy, Ly.
Jopling, L. Sandwich, E.
Jordan, L. Sawyer, L.
Kalms, L. Scotland of Asthal, B.
Kilclooney, L. Seccombe, B.
Kimball, L. Selborne, E.
King of West Bromwich, L. Sharpies, B.
Kingsland, L. Shaw of Northstead, L.
Kirkhill, L. Simon, V.
Laidlaw, L. Skelmersdale, L.
Laming, L. Slim, V.
Lamont of Lerwick, L. Snape, L.
Lawson of Blaby, L. Soulsby of Swaffham Prior, L.
Layard, L. Stewartby, L.
Lea of Crondall, L. Stoddart of Swindon, L.
Lipsey, L. Stone of Blackheath, L.
Listowel, E. Strabolgi, L.
Lloyd of Berwick, L. Strathclyde, L.
Lofthouse of Pontefract, L. Swinfen, L.
Lucas, L. Symons of Vernham Dean, B.
Luke, L. Tanlaw, L.
Lyell, L. Taylor of Blackburn, L.
Macdonald of Tradeston, L. Tebbit, L.
McIntosh of Haringey, L. Temple-Morris, L.
MacKenzie of Culkein, L. Thatcher, B.
Mackenzie of Framwellgate, L. Thomas of Swynnerton, L.
Mackie of Benshie, L. Thomson of Monifieth, L.
Mallalieu, B. Tomlinson, L.
Mar, C. Trenchard, V.
Marlesford, L. Triesman, L.
Marsh, L. Truscott, L.
Masham of Ilton, B. Tunnicliffe, L.
Mason of Barnsley, L. Ullswater, V.
Massey of Darwen, B. Vinson, L.
Mayhew of Twysden, L. Waddington, L.
Merlyn-Rees, L. Wade of Chorlton, L.
Miller of Hendon, B. Wakeham, L.
Monro of Langholm, L. Wall of New Barnet, B.
Monson, L. Walpole, L.
Walton of Detchant, L. Wilcox, B.
Warner, L. Williams of Elvel, L.
Warwick of Undercliffe, B. Woolmer of Leeds, L.
Weatherill, L.
§ Resolved in the negative and amendment disagreed to accordingly.
§ [Amendment No. 106A had been withdrawn from the Marshalled List.]
moved Amendment No. 106B: After Clause 48, insert the following new clause— REASONABLE PUNISHMENT
In relation to any offence specified in subsection (2), battery of a child cannot be justified on the ground that it constituted reasonable punishment.
(2) The offences referred to in subsection (1) are—
an offence under section 18 or 20 of the Offences against the Person Act [861 (c. 100) (wounding and causing grievous bodily harm);
(b) an offence under section 47 of that Act (assault occasioning actual bodily harm);
(c) an offence under section 1 of the Children and Young Persons Act 1933 (c. 12) (cruelty to persons under 16).
(3) Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the ground that it constituted reasonable punishment.
(4) For the purposes of subsection (3) "actual bodily harm" has the same meaning as it has for the purposes of section 47 of the Offences against the Person Act 1861 (c. 100).
(5) In section I of the Children and Young Persons Act 1933 (c. 12), omit subsection (7)."
The noble Lord said: My Lords, I beg to move Amendment No. 106B, to which I have already spoken.
[Amendments Nos. 106C to 106E not moved.]
On Question, Whether the said amendment (No. 106B) shall be agreed to?
§ Their Lordships divided: Contents, 226; Not-Contents, 91.
Acton, L. Ashton of Upholland, B.
Addington, L. Bach. L.
Ahmed, L. Barker, B.
Alli, L. Bassam of Brighton, L.
Alton of Liverpool, L. Beaumont of Whitley, L.
Amos, B. (Lord President of the Bernstein of Craigweil, L.
Council) Bhattacharyya, L.
Andrews, B. Billingham, B.
Archer of Sandwell, L. Birt, L.
Blackstone, B. Hollis of Heigham, B.
Boothroyd, B. Howarth of Breckland, B.
Borrie, L. Howe of Aberavon, L.
Bowness, L. Howe of Idlicote, B.
Bragg, L. Howie of Troon, L.
Brennan, L. Hoyle, L.
Brooke of Alverthorpe, L. Hunt of Kings Heath, L.
Brooke of Sutton Mandeville, L. Hunt of Wirral, L.
Brookeborough, V. Irvine of Lairg, L.
Brookman, L. Jay of Paddington, B.
Buscombe, B. Joffe, L.
Campbell-Savours, L. Jones, L.
Carnegy of Lour, B. Judd, L.
Carter, L. Kennedy of The Shaws, B.
Carter of Coles, L. King of West Bromwich, L.
Chandos, V. Kingsland, L.
Chorley, L. Kirkhill, L.
Christopher, L. Laidlaw, L.
Clark of Windermere, L. Laird, L.
Clarke of Hampstead, L. Laming, L.
Clement-Jones, L. Layard, L.
Clinton-Davis, L. Lea of Crondall. L.
Condon, L. Lester of Herne Hill, L. [Teller]
Corbett of Castle Vale, L. Linklater of Butterstone, B.
Craigavon, V. Lipsey, L.
Crathome, L. Listowel, E.
Crawley, B. Liverpool, E.
Cumberlege, B. Lloyd of Berwick, L.
Dahrendorf, L. Lockwood, B.
Davies of Coity, L. Lofthouse of Pontefract, L.
Davies of Oldham, L. Lyell, L.
Dean of Thornton-le-Fylde, B. Macdonald of Tradeston, L.
Dearing, L. McIntosh of Haringey, L.
Desai, L. McIntosh of Hudnall, B.
Donaldson of Lymington, L. MacKenzie of Culkein, L.
Donoughue, L. Mackie of Benshie, L.
Drayson, L. Maclennan of Rogart, L.
Dubs, L. McNally, L.
Elder, L. Maddock, B.
Emerton, B. Mallalieu, B.
Evans of Temple Guiting, L. Mar, C.
Falconer of Thoroton, L. (Lord Chancellor Mar and Kellie, E.
Marlesford, L.
Falkner of Margravine, B. Marsh, L.
Farrington of Ribbleton, B. Masham of Ilton, B.
Faulkner of Worcester, L. Massey of Darwen, B. [Teller]
Fearn, L. Mayhew of Twysden, L.
Filkin, L. Merlyn-Rees, L.
Fitt, L. Michie of Gallanach, B.
Freyberg, L. Montagu of Beaulieu, L.
Fyfe of Fairfield, L. Montrose, D.
Gale, B. Moore of Wolvercote, L.
Garden. L. Morgan of Drefelin, B.
Gavron, L. Morgan of Huyton, B.
Gibson of Market Rasen, B. Morris of Aberavon, L.
Giddens, L. Morris of Manchester, L.
Golding, B. Moser, L.
Goldsmith, L. Murphy, B.
Goodhart, L. Murton of Lindisfarne, L.
Goudie, B. Newton of Braintree, L.
Gould of Potternewton, B. Nicol, B.
Graham of Edmonton, L. Northbrook, L.
Greengross, B. Northover, B.
Grenfell, L. Oakeshott of Seagrove Bay, L.
Grocott, L. Onslow, E.
Hamwee, B. Orme, L.
Harris of Haringey, L. Oxford, Bp.
Harris of Richmond, B. Parekh, L.
Harrison, L. Patel of Blackburn, L.
Hart of Chilton, L. Peel, E.
Haskel, L. Pendry, L.
Hayhoe, L. Plant of Highfield, L.
Henig, B. Prashar, B.
Henley, L. Prys-Davies, L.
Hogg of Cumbernauld, L. Quirk, L.
Hollick, L. Radice, L.
Ramsay of Cartvale, B. Stone of Blackheath, L.
Randall of St. Budeaux, L. Strabolgi, L.
Rea, L. Symons of Vernham Dean, B.
Redesdale, L. Tanlaw, L.
Richard, L. Taverne, L.
Rix, L. Taylor of Blackburn, L.
Roberts of Conwy, L. Temple-Morris, L.
Roberts of Llandudno, L. Thomas of Swynnerton, L.
Rodgers of Quarry Bank, L. Thomson of Monifieth, L.
Rooker, L. Thornton, B.
Rosser, L. Tomlinson, L.
Sainsbury of Turville, L. Tordoff, L.
St. John of Bletso, L. Triesman, L.
St John of Fawsley, L. Truscott, L.
Sandberg, L. Tunnicliffe, L.
Sandwich, E. Turnberg, L.
Sawyer, L. Wall of New Barnet, B.
Scotland of Asthal, B. Walpole, L.
Scott of Needham Market, B. Walton of Detchant, L.
Selborne, E. Warner, L.
Sheldon, L. Warnock, B.
Shutt of Greetland, L. Warwick of Undercliffe, B.
Simon, V. Watson of Richmond, L.
Simon of Glaisdale, L. Weatherill, L.
Slim, V. Whitty, L.
Smith of Clifton, L. Wilkins, B.
Snape, L. Williams of Crosby, B.
Soulsby of Swaffham Prior, L. Williams of Elvel, L.
Steel of Aikwood, L. Woolmer of Leeds, L.
Ackner, L. Kalms, L.
Astor, V. Kilclooney, L.
Attlee, E. Kimball, L.
Bell, L. Lamont of Lerwick, L.
Blackwell, L. Lawson of Blaby, L.
Blaker, L. Luke, L.
Blatch, B. Mason of Barnsley, L.
Bledisloe, V. Miller of Chilthorne Domer, B.
Bridgeman, V. Miller of Hendon, B.
Brougham and Vaux, L. Monro of Langholm, L.
Burnham, L. Monson, L.
Campbell of Alloway, L. Morgan, L.
Carlisle of Bucklow, L. Morris of Bolton, B.
Chadlington, L. Moynihan, L.
Chan, L. Naseby, L.
Colwyn, L. O'Cathain, B.
Cope of Berkeley, L. Oppenheim-Barnes, B.
Deedes, L. Park of Monmouth, B.
Denham, L. Parkinson, L.
Dixon, L. Patten, L.
Dixon-Smith, L. Pearson of Rannoch, L.
Eccles of Moulton, B. Rawlings, B.
Eden of Winton, L. Reay, L.
Elis-Thomas, L. Rees, L.
Elles, B. Rendell of Babergh, B.
Elton, L. Renton, L.
Erroll, E. Saltoun of Abernethy, Ly.
Evans of Parkside, L. Seccombe, B.
Falkland, V. Sharp of Guildford, B.
Feldman, L. Sharples, B.
Fookes, B. Shaw of Northstead, L.
Glentoran, L. Skelmersdale, L.
Goschen, V. [Teller] Stewartby, L.
Gray of Contin, L. Stoddart of Swindon, L.
Greenway, L. Strathclyde, L.
Hodgson of Astley Abbotts, L. Swinfen, L.
Hooson, L. Tebbit, L.
Howard of Rising, L. Thatcher, B.
Howell of Guildford, L. Thomas of Gresford, L.
Hughes of Woodside, L. Thomas of Walliswood, B.
Jenkin of Roding, L. Trenchard, V.
Jopling, L. Ullswater, V.
Jordan, L. Vinson, L. [Teller]
Waddington, L. Walmsley, B.
Wade of Chorlton, L. Wilcox, B.
Wakeham, L.
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ Clause 8 [Information databases]:
Page 6, line 15, after second "the" insert "sole"
My Lords, I thank the noble Baroness, Lady Barker, for raising this issue. I will be as brief as possible. I hope that the Government have reassured noble Lords about the purposes for which we are proposing the establishment of information-sharing databases. We have no intention of using the Clause 8 powers for purposes other than co-operation to improve the well-being of children and arrangements to safeguard and protect their welfare. That is why we have drafted the clause as we have.
Amendment No. 106F would have no effect—if I can say that without in any way demeaning its purpose, because I understand it. It would have no effect because I am able to give the reassurance that the noble Baroness, Lady Barker, is looking for. The clause as it stands gives the Secretary of State the power regarding the establishment of databases for the purposes of arrangements under Clauses 6 and 7 and under Section 175 of the Education Act 2002. There is no flexibility for the Secretary of State to exercise that power for any other purpose, and I hope that on that basis the noble Baroness, Lady Barker, feels able to withdraw her amendment.
§ Baroness Barker
My Lords, I welcome that clear statement by the Minister—it was exactly the sort of assurance for which I was looking and her words are now on the record for those who will spend a considerable amount of time following the implementation of Clause 8. The statement is very important and on the basis of it I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 107: Page 6, line 25, at end insert— (2A) A database under this section may only include information falling within subsection (2B) in relation to a person to whom arrangements specified in subsection (1) relate. (2B) The information referred to in subsection (2A) is information of the following descriptions in relation to a person—
his name, address and date of birth;
(b) a number identifying him;
(c) the name and contact details of any person with parental responsibility for him (within the meaning of section 3 of the Children Act 1989 (c. 41)) or who has care of him at any time;
(d) details of any education being received by him (including the name and contact details of any educational institution attended by him);
(e) the name and contact details of any person providing primary medical services in relation to him under Part 1 of the National Health Service Act 1977 (c. 49);
(f) the name and contact details of any person providing to him services of such description as the Secretary of State may by regulations specify;
(g) information as to the existence of any cause for concern in relation to him;
(h) information of such other description as the Secretary of State may by regulations specify."
The noble Baroness said: My Lords, in moving Amendment No. 107, I shall also speak to Amendments Nos. 109 to 112, 118 to 123, 126, 128 to 130, 134 and 137 to 142. I shall do so as briefly as I can.
The amendments relate to the information databases and fulfil commitments that I have given in your Lordships' House to put more information on the face of the Bill. Noble Lords will know of the concerns expressed by the Delegated Powers and Regulatory Reform Committee and by noble Lords at Committee stage. There was concern that the powers were broadly drawn and that important issues are to be the subject of regulations. The Committee invited the Government to consider putting more detail on the face of the Bill. I offered a commitment that I would bring forward amendments on Report to address those concerns. During the Committee stage, I said that I was prepared to consider other changes.
I said in Committee that we would consider how best to place arrangements for practitioners to be able to signal to each other the existence of a concern. Noble Lords will know that there is a basic principle that we wish to achieve by this provision. We want practitioners to take appropriate action when they believe that a child is not thriving as he should be and then indicate on the database that they have done so and wish to be contacted by other practitioners who may become involved with the child because they have something to discuss. Of course, actions may vary, but any action would normally involve discussing the issues with the family and child and might well involve discussions with other practitioners, making a referral or simply a decision to monitor the situation.
What is certain is that signalling the existence of a concern must not be a substitute for doing something. We have debated that at some length and I recognise that the term "concern" has implications of child protection for some issues. Indeed, noble Lords who listened to the trailblazers will know that they raised issues about needing to look carefully at this area. We are talking primarily about picking up issues relating to the well-being and development of a child as part of our preventive agenda.
For these reasons we are not proposing any amendment to the Bill, but we are committed to consult publicly this autumn on how this aspect of the database should operate to inform our regulations and guidance. That will be a formal consultation under Cabinet Office rules. It will provide us with an opportunity to gain reactions from practitioners, children and young people, families and other interested parties on specific propositions on how practitioners should indicate the existence of a concern on their part. It will be a public consultation and 575 among the issues to be addressed we shall examine the language and the phraseology to be used to describe what is to be done— indeed, the terminology and the flags of concern.
I shall endeavour to ensure that noble Lords who participate in this debate receive copies of that consultation when it is published and that a copy is placed in the Library of the House. It is important that before any regulations are laid or debated noble Lords have the benefit of knowing what the consultation has said.
Another issue that has been raised in your Lordships' House is sensitive services. We want to ensure that these issues are dealt with properly. So we propose also to include in the public consultation how best to deal with recording practitioner details in relation to sensitive services. Key issues that we shall need to explore are which practitioners would be able to see the involvement of those providing sensitive services and to what extent the inclusion of such information and the determination of who might see it should be subject to the consent of the child, the young person or the parents.
I wanted to say that at the beginning because I know that those issues have been raised and I wanted to lay out where the Government plan to take the consultation. I shall now briefly talk to the detail of the amendments that stand in my name. As I have said, they are in response to the report of the Delegated Powers and Regulatory Reform Committee.
I turn to Amendments Nos. 107 and 126 and minor consequential Amendments Nos. 109, 118, 128 and 137. New subsections (2A) and (2B) replace current subsection (5) and amplify subsection (4) of Clauses 8 and 23. They provide for the inclusion in the Bill of specified basic information to be held on all children in the database, for the name and contact details of practitioners who are providing specialised services to a child to be entered on the database and for practitioners to be able to indicate the fact that they have a concern about a child.
I want to reassure noble Lords on the particular point about case information. If the drafting of this amendment does not do so, I undertake to take the issue away and consider it further to see if there is a further amendment that I can table at Third Reading. I know from discussions outside your Lordships' House that there is a concern that we should be very clear that the databases may not include information such as case data. I am very happy to consider that again. I do not want to pre-empt the debate, but it is important to say that.
The effect of the subsection is reinforced by Amendments Nos. 109 and 128. The information to be held is name, address, date of birth, person with parental responsibility, unique identifying number, educational setting and GP practice details.
Paragraph (c) is drawn more widely than those with parental responsibility so that the name of the person who has day-to-day care, for instance a foster carer, can be included. But we do not want to include nannies or 576 childminders who look after a child for only a number of hours a week. We shall specify in regulations who the people in paragraph (c) might be.
Paragraph (d) is intended to cover those educated at home, in pupil referral units, in prison or secure units or in hospital as well as in schools and colleges. Paragraph (e) provides for the inclusion of GP practice details. It remains our intention for health visitor details to be a part of the basic data that the databases collect. We have not been able to draft an amendment to make this clear at this stage; the legislative arrangements that cover health visiting are about to be changed through new nursing and midwifery orders. We propose to use regulations to make clear how contact details of those carrying out these functions should be included.
Paragraph (f) of the new subsection (2B) supersedes the original subsection (5)(a), which is removed by the minor consequential Amendments Nos. 118 and 137. I hope that noble Lords will be reassured that the wording here is more tightly drawn.
Paragraph (g) replicates the original subsection (5)(b) on the existence of a cause for concern. Subsection (5)(b) is removed by minor consequential drafting amendments.
We have framed Amendment No. 107 in such a way as to define what is to be included in the databases more tightly but we want to retain the power in regulation to add information that may be required in the future. Paragraph (h) of subsection (2B) provides for regulation to specify that other information. This is not about creating the ability to change the purpose and nature of the databases. The purpose of this package of amendments is to make clear on the face of the Bill the key characteristics but to retain flexibility for any future organisational change, or for a new identified data requirement.
The approval of Parliament through the affirmative resolution procedure will be necessary. I stress that there is no intention to provide under this power for the inclusion of case information.
Amendments Nos. 110 and 129 carry out my commitment to bring forward an amendment that those agencies or bodies that will be required or permitted to disclose information to the databases will be specified on the face of the Bill. Amendments Nos. 112 and 134 list them.
New subsections (4A) and (4B) list the two groups of persons and bodies who are respectively required or permitted to disclose information for inclusion in the database. Paragraph (a) of (4A) refers back to the persons and bodies covered by Clauses 7 and 22. Paragraphs (c) and (d) refer to governing bodies of maintained schools and further education colleges, which are included in this clause by virtue of the link to Section 175 of the Education Act 2002, which came into force on 1 June. Paragraph (e) includes registered independent schools in the data.
New subsection (4B) lists the persons and bodies who will be permitted to disclose information to the database. This amendment will also allow social 577 landlords, for example, to be able to reply to requests from those managing the database. They may well have valuable up-to-date information to fill the gap on the basic data on a child. However, we are not talking about these people having access to the database as practitioners. Their role here is as a secondary source of some of the basic identifying data.
Similarly, paragraph (c) permits the Commissioners of the Inland Revenue to disclose information to the databases. We expect that in practice the use of that provision will be limited to a supply of names and addresses and information from a child's benefit database to meet that type of request. Without that provision the Inland Revenue would not be able to meet those requests, but I can reassure noble Lords that this provision would not allow for information from databases to be disclosed to the Inland Revenue. We are not talking about Inland Revenue staff having access to the databases of practitioners or being able to comment on the existence of any cause for concern in relation to a child.
Both subsections (4A) and (4B) also provide flexibility, in paragraphs (f) and (e) respectively, for the Secretary of State and the Assembly to specify other people or bodies. As I have already said that this package of amendments is designed to capture new bodies; for example, there was a time when youth offending teams did not exist and quite rightly noble Lords have wanted to have them, in the best sense of the word, captured in the Bill, or the tendency of some public bodies—perhaps the health service is a good example—to change names or to change the way in which they are structured. Again, these provisions can be changed only through the affirmative resolution procedure or in the case of the Assembly, through its own legislative procedures.
New subsection (4C) would give the Secretary of State and the Assembly power to disclose information to the database. If we need to, we shall be able to make use of existing records held by government in ensuring that we have complete and correct information on the child's records.
I turn to Amendments Nos. 111 and 130, 121 and 140 and 122 and 141 which relate to conditions of access. Amendments Nos. 111 and 130 address a specific point made by the Delegated Powers and Regulatory Reform Committee that conditions of access should be contained in regulations, not directions. They insert the reference to conditions of access in subsection (4) which covers regulations. Amendments Nos. 121, 122, 140 and 141 make the consequential changes in subsection (9) which covers guidance and directions.
Amendments Nos. 119 and 138 address concerns raised by the Delegated Powers and Regulatory Reform Committee that the current sub-delegation provision at subsection (6) is too widely drawn. These amendments provide that decisions about permitting or requiring disclosure of information cannot be sub-delegated as the current drafting permits, but that only decisions about granting access to individuals may be sub-delegated. These amendments, therefore, restrict 578 the provision in subsection (6) to subsection (4)(d) only. As I said in Committee, we need to retain the power to sub-delegate decisions about individual access to databases because regulations cannot specify each individual practitioner or agency that can have access to the database.
Amendments Nos. 120 and 139 cover the common law duty of confidentiality. These amendments fulfil the last of the commitments made in Committee to introduce amendments on Report. They delete the two references to "must" in subsection (7) so that the regulations made under this subsection will not be able to require practitioners to do anything. If a practitioner has a statutory duty to disclose information this would constitute a defence to breach of confidentiality. The "musts" are therefore unnecessary.
This amendment also restricts the matters to which exemption from confidentiality applies. It may apply only to decisions by those bodies which are permitted to disclose information on to the database. It may apply only to specifically relevant aspects of regulation under this clause, whereas the previous wording encompassed all regulations under this clause. Amendments Nos. 123 and 142 concern crosschecking information between databases. These amendments, under subsection (9), respond to an amendment raised in Committee by the noble Earl, Lord Howe, about the importance of cross-checking data between databases. I said that I was prepared to consider including in the Bill guidance and direction that may relate to this point in particular. We regard the links between databases as crucial, as noble Lords will know. But I hope this amendment will satisfy noble Lords on our commitment to accuracy, on which we will probably hear more in connection with Amendments Nos. 115 and 132.
With apologies for galloping through this, I hope that I have covered the commitments made either to the Delegatory Regulatory Powers Committee or to the House about putting things very clearly to your Lordships, and I commend this package of amendments. I beg to move.
moved, as an amendment to Amendment No. 107, Amendment No. 107A: Line 9, after "or" insert "any parent or
The noble Baroness said: My Lords, I speak to Amendments Nos. 107A, 108A, 110A, 110B, 111ZA, 113A, 118A and those other amendments in this group to which my name is attached but will stand in the name of the noble Earl, Lord Howe.
I thank the Minister for that full and speedy introduction to the Government's amendments, many of which are welcome. But just as she prefaced her remarks with an opening statement, so too must I. It is important for me to say that the Government have it fundamentally the wrong way around. It is for Parliament to determine what the scope of a measure should be and then for there to be consultation, not the reverse. Therefore, it is only fair to the Minister to say now that, while I understand and appreciate the 579 constructive way in which she has dealt with many of the concerns we have raised from these Benches, as well as the noble Earl, Lord Howe, there is a fundamental difference here which her speech did not sufficiently allay for me.
Simply put, it has been extremely helpful to establish in some detail those matters of fact which will be held upon a database. I do not think there is any noble Lord in the House who would have any problem at all with matters of fact being more easily and electronically accessible to colleagues working in the area of looking after children. However, once a database goes beyond the point of registration of objective fact—for we on these Benches that means flags of concern, because those are immediately subjective matters—then the nature of the regulation and operation of the database has to change and has to become altogether far more detailed. Speaking for myself and my colleagues on these Benches, I have to say that flags of concern—the transmission of subjective data by this means—are unacceptable. While I therefore welcome some of the elucidations she has given about points of fact, that remains a concern. The promise of consultation on that matter is insufficient for me. Therefore, many of the amendments which stand in my name—although I can happily tell noble Lords who wish to be elsewhere that they will not be voted on tonight—remain, and I will retain the right to return to them at a future stage.
Having said that we are opposed to flags of concern, it will not have escaped the Minister's notice that many of the amendments that stand in our names are designed to deal with the operation of them. I suppose it is not inconsistent to object to something while at the same time trying to limit its effect.
The purposes of our amendments are as follows. Amendment No. 107A is to insert "parents". It stays consistent with the Children Act 1989, which requires local authorities to inform and consult with parents, not just parents with parental responsibility, when making decisions about a child. That is consistent with the Government's view, which has been put forward on may occasions, that parents, not just parents with parental responsibility, should be involved and take responsibility for their children. In addition, many children spend a lot of time with a parent who is not the parent who has parental responsibility. In regulations, this duty could be dealt with by a wording such as "as far as is reasonably practical".
Amendment No. 108A leads us to a very important point. The noble Baroness, Lady Ashton, has consistently talked about "cause for concern" throughout discussion of this Bill. The term "cause for concern" is not recognised in current social care work with children, or in any existing childcare legislation. Nor is it defined in the Bill. It will not address a key problem, that of different professionals having different views and different thresholds of understanding of the term, and the action that they are then supposed to take.
Therefore, we have sought to insert two recognisable, existing phrases from childcare legislation into the Bill: children who are "in need", and children who are "at risk of harm". Those are both linked to concepts widely 580 understood within the field of childcare. They exist in Section 17 and Section 47 of the Children Act. They also form a basis upon which childcare professionals know the threshold of activities that they are then supposed to follow. We have said throughout this Bill that registering a "cause for concern" on a database will not necessarily help any child, because it does not link to any action. Equally, we see that it could very easily be the case that a professional who becomes known for consistently flagging up every single little matter will eventually have his concerns ignored. That is why it is important to be consistent and to work with existing, understood terminology.
Amendment No. 110A recognises that in the modern world of social services, lots of services are contracted out to agency staff. It is important that it should be clear that agency staff are under the same duties as those employed directly by any of the bodies listed in the amendments.
Amendment No. 111ZA talks about denying access to the database. It is entirely reasonable that, should these databases go ahead and contain not just sensitive or subjective data, but factual data which is very powerful in the hands of certain people, there should be limitations to them. Take, for example, a simple matter of somebody's address. The address of a child can be a very important piece of information, particularly to those who may wish to do that child harm, or harm his family. Therefore, we believe there should be a power in the Bill to have set out in regulations either categories of people who should not be allowed access to databases or circumstances in which people should not be allowed access to databases.
I noted what the noble Baroness, Lady Ashton, said about the inclusion of the Commissioner of the Inland Revenue in her amendment and I understand exactly what she said about disclosure of information. I have to say that childcare professionals who looked at this had an instant reaction, which was "Is this the Proceeds of Crime Act?", a piece of legislation which I understand from those working in the field, was meant to catch rather big, gangster criminals, but was so badly worded that it is reaching out across many areas of life and netting people who are perhaps guilty of minor benefit fraud. Therefore, there was concern about whether the provision was intended to do that. If it is, perhaps the noble Baroness will say so; if not, perhaps she will make that clear.
I recognise the concessions that the noble Baroness has set out. I agree wholeheartedly with the purport of the amendments that stand in the name of the noble Earl, Lord Howe, concerning paragraphs (f) (g) and (h) being so widely drawn—notwithstanding the explanations of the noble Baroness. As drafted, they are unacceptably wide. I understand that the noble Baroness has come some way to meet some of our concerns. I must say that she has not come far enough. I beg to move.
My Lords, let me begin by acknowledging straightaway that the amendments take us forward quite considerably. I am grateful to the 581 Minister for following up some of the suggestions that I and others advanced in Committee and including a great deal more detail in the Bill. I shall now speak to the amendments in the group to which my name is attached. However, despite the government amendment, I am not sure that we are quite there yet.
The intention of Amendment No. 107 is clearly to narrow the information that will be permitted on a database, so that we get much closer to what the Minister has helpfully described as an address book, pure and simple. However, the main trouble is situated in paragraph (h), which states: information of such other description as the Secretary of State may by regulations specify". That takes us right back to the concerns that many of us had about Clause 8(5)(a). The wording is so general that it could be used to allow all kinds of case-specific information to appear on databases, which is of course the very opposite of what most of us, including the Minister, believe to be acceptable and appropriate. If what is meant here by "information" is the name and contact details of some other organisation with which a child is in some way associated, I would have less trouble with it, but, as it stands, the wording will not do. I am glad that the Minister recognised that concern.
Working backwards through the government amendment, I am also not at all happy about paragraph (g). When a number of us attended the useful presentation given by the trailblazers a couple of weeks ago, one of the local authorities that came told us that it was using a system of flags, but that those flags were not, strictly speaking, flags of concern. They were flags denoting services being delivered to meet an assessed need. That was very interesting, because it gets us away from thinking about those flags as devices solely connected with child protection. I have a problem with the expression "flags of concern" for exactly that reason. If the Minister can come up with an alternative term at Third Reading, that might well be an improvement.
That leads me to wonder whether we need paragraph (g) at all. Several trailblazers have decided not to include flags of any description on their databases. Yet they appear to be perfectly satisfied with the results so far. One must ask what added value those flags really have. The point at which a database ceases to be an address book—this is exactly the point made by the noble Baroness, Lady Barker—is when we start introducing flags of concern.
One of the trailblazers said that it feared that the ability to register a concern on a database, far from enhancing a child's wellbeing, might actually be counter-productive, if it were to lead to professionals thinking that they had done their duty by a child simply by creating a flag on a database and doing nothing else. Of course, many of us made that point in Committee. We must avoid flags being seen as a substitute for action. I know that the Minister is conscious of that concern. However, it is difficult to know how we will avoid that. Flags denoting serious 582 concerns may well be crowded out by flags denoting trivial matters—again, potentially making matters worse rather than better for very vulnerable children.
I very much welcome the Government's intention to conduct formal consultation on that, but there is a simple choice before us: either we have no flags of concern at all or, if we do, we need to define a threshold that makes it clear to professionals what circumstances demand one. We read in the amendment the words, any cause for concern". Left unqualified, that phrase could justify exactly the sort of undesirable profusion of flags that I described. So we must hear from the Minister exactly why she believes that that we need paragraph (g) at all and, if we do, whether the phrase, any cause for concern", could be altered to something better.
I move back a step to paragraph (f). My concern here is that even the name and contact details of a person providing services to a child can be sufficient to tell a story. The most extreme examples are of course the name of a sexually transmitted infection specialist or a specialist at a mental health clinic. I appreciate why the Government want to include that paragraph, but if we were to ask a young teenaged girl whether she minded the police knowing that she had visited a family planning clinic, I think that in many cases the answer would be that that was none of their business. Even something less emotive, such as treatment at an obesity clinic, could be a matter that a child would want to keep confidential to his or her GP.
I suggest that a way might be found to make the inclusion of second-tier professionals on a database dependent on consent. In the trailblazers presentation, we heard one authority talk about above and below the line information. I do not see why we should not envisage paragraphs (a) to (e) as constituting first-tier information— above the line and not dependent on consent—and paragraph (f) as information for which consent needs to be sought.
The Minister can tell me if I am wrong, but my impression is that in most circumstances, second-tier information is unlikely to be of critical importance where children are thought to be at risk. It is usually information that it is merely desirable for professionals to have to gain a full picture of a child's situation. Many children, or their parents, will have no problem at all about the name and contact details of a professional person associated with them appearing on the database, but there could be circumstances in which they had deep reservations about that. We need to address that issue.
Turning briefly to Amendment No. 112, I am concerned about the inclusion of proposed new subsections (4A)(f) and (4B)(e). It is positive that the clause will now specify who must and who may disclose information to a database, but then to include a provision potentially opening up the obligation or power to all and sundry tends to negate the previous tightening up of the wording. I noted what the Minister had to say about the Inland Revenue provision in the amendment. I should have tabled an 583 amendment myself to draw attention to that. It raises all kinds of issues about what information the Inland Revenue is empowered to reveal to third parties. When would it be permissible for the Revenue to raise a flag of concern? I understood the Minister to say that that was not the intention, but can she reassure me that the amendment would prohibit that? If someone from a child's school or social services were to ring up the Inland Revenue, what do the current rules allow it to disclose? That question is unrelated to the databases, but it is germane. Perhaps the Minister could comment on this.
I have said rather a lot but I have tried to cover the ground as concisely and briefly as I can. I look forward to the Minister's response.
My Lords, perhaps I may briefly add one or two points. The noble Earl, Lord Howe, has made a number of points that I would have made otherwise. I will reinforce them and ask one or two questions for the record.
First, I will deal with flags of concern and the consultation. Like the noble Earl, I have real concerns that this might confuse child protection registers with those registers that look at service delivery. I hope that those two things are kept well and truly separated in any consultation and that we continue to ensure that when there is a real concern that a child may be in danger of harm the proper child protection procedures move into place.
I have a similar anxiety that if people think this has been put on some other sort of register they may absolve themselves of the duty. Having been a practising social worker for a long time, I know how easy it is do that when people are under huge pressure. I hope that any consultation has that absolutely clear and that we continue with it.
I asked the Minister about my second point privately. There has been criticism in the past which I have heard on the Floor of this House that a Bill has many amendments because the Government did not get it right at the beginning. I take a different view. It is a reflection of people listening and coming back with amendments and the Minister has listened particularly hard. I that hope she will continue to listen to some of these matters this afternoon.
I ask that in the long term we do not end up with mandatory reporting. This is a similar point to the one made by the noble Earl, Lord Howe: people can add or subtract to the list. For years Childline has talked to children and has been able to give information which has led to them coming forward with serious problems because there is no mandatory reporting. Should there be, I am sure that Childline would lose that capacity. The Minister has reassured me about that privately, but I would like to make the point on the Floor of the House.
I am very sympathetic to Amendment No. 107A and the inclusion of parents generally and I support the noble Baroness, Lady Barker, in that. It could be difficult if we found ourselves with just one parent. 584 Having dealt with very complicated divorces in civil proceedings, I hope that we can ensure that that matter is properly covered.
I do not understand the point about the Inland Revenue so further elucidation would be welcome. This may be due to my limitations. I would be grateful if the Minister could explain how and why they are going to have access.
I am also extraordinarily concerned about confidentially. As an adult, I do not want all and sundry to be able to see my medical records, even though there is not a lot in them. I feel that my life in my own and the information about myself is mine to be contained. I have talked to many children and they have the same view. We need to take extreme care that if some lass has been to the Brook Street clinic and does not want it on her database, it should not get onto it. I look for reassurance on that matter.
Those are all the points that I wished to make. I am extraordinarily grateful that we are going to have a consultation on "flags of concern". It is a difficult phrase and I hope we find another one to describe it before we go out to consultation.
§ The Countess of Mar
My Lords, I rise to support all the amendments in the names of the noble Earl, Lord Howe, and the noble Baronesses, Lady Byford and Lady Barker. The Minister knows of my concerns on databases.
I have refrained from taking part in the proceedings since Second Reading because my main concerns have been about Clause 8 and I know that there is nobody more able to deal with these matters than the noble Earl, Lord Northesk. His expertise is of a very special nature. Unfortunately he is unable to be here today, but he has left me well briefed. I hope I can do him justice.
I am aware that the Minister has listened to the concerns and proposals of noble Lords in a constructive way, and I thank her. Some concerns still remain in respect of this clause, not least the issues raised by these amendments.
The Minister has gone to considerable lengths in her defence of the Government's proposition in Clause 8 to persuade us that the data to be captured within the proposed database is minimalist. In various ways and at various times, she has insisted that it is categorically not the Government's intention that case data should be in any way involved. In Committee she stated: This database contains nothing that would constitute opinion about any child; it is purely detail about the matters I have already indicated: name, address, date of birth, educational setting, name of person with daily responsibility for the child and GP services. All the other information would concern which practitioners are involved with the child. Think of it as the yellow pages of the telephone directory. There will be no consequential access into another database".—[Official Report, 24/5/04; col. 1097.]
Moreover, in her letter in response to concerns raised by the Delegated Powers Committee, she states: The intention is to make it clear that no case information will be recorded on the databases, only the contact details of practitioners providing specialist services, as defined in regulations, to children will be recorded". 585 The point of the issue here is why are the Government seeking the reserve powers embodied in paragraphs (f) to (h) which could have the effect of guaranteeing that case data would be implicit in the record entry?
The Minister has stated her and the Government's intention plainly and unequivocally: no case data of any kind. I am therefore baffled by paragraph (g). It is difficult to understand the Government's logic in seeking this particular provision. As other noble Lords have said, presumably it is to permit databases to fly flags of concern. But as is evident from the debates on this matter in Committee, of themselves such flags constitute case data. To that extent, paragraph (g) is antipathetic to their stated aim.
As to paragraphs (f) and (h), noble Lords will recall that reference was made to "function creep". During the passage of the Bill, it has been slightly amusing to observe the way in which the noble Baroness has sought to distance Clause 8 from RYOGENS. In all sorts of ways, in so far as this is an accurate representation of her view, I am not surprised.
Be that as it may, this particular wheeze of the Deputy Prime Minister will sit on the margins of any of the databases emanating from Clause 8 if only because, as I understand it, it is intended that the youth justice system should form part of the "telephone directory". Over time, paragraphs (f) and (h) would permit Clause 8 databases to metamorphose into RYOGENS-type models—perhaps something even more insidious—with relatively little opportunity for proper parliamentary scrutiny. To my mind, this is wholly unacceptable.
I do not say that this is the intention of either the noble Baroness or the Department for Education and Skills. I take at face value the stated desire for flexibility but I do not believe that we should take undue risks in such a sensitive area as this. To grant to the Secretary of State powers of such "broad delegation" —to use the noble Baroness's own words—is, I believe inappropriate.
My Lords, I am grateful for the welcome that noble Lords have given to the package of government amendments. I hope that in the course of my remarks I can deal with a number of the reassurances for which noble Lords have looked.
I would like to reiterate a little of what I was saying earlier about the consultation as that may assist your Lordships in looking at these amendments. I have indicated that we want to look not only at how flags of concern might work, but also the phraseology and terminology around them. As noble Lords have indicated, the very nature of those words makes some noble Lords and other colleagues unsure and uncertain.
It is important to think of the role of the database. It is a telephone directory as I described, and some of the trailblazers have treated it precisely as that. As the noble Earl indicated, some of them have an above-the-line and below-the-line approach to sensitive issues. 586 That is important, too. We want to explore that more fully because of the issues that have been raised around sensitive people by the noble Baronesses, Lady Howarth and Lady Barker.
The Government are committed to saying that the database needs to be of use to practitioners in ways above and beyond the specific details that I have indicated. We have called that "flags of concern". Let me unpack that more for noble Lords. This is about ways in which practitioners will be able to do two things. The first applies where a number of different agencies involved with a child; for example, a child who has multiple disabilities and is in receipt of different services. If a particular practitioner is working with a child, he needs to be able to have that information available quickly from looking at the list. In other words, the practitioner can say, "Please ring me, because I am dealing with this child".
The other issue causes greater concern, hence our desire to consult on it more fully with practitioners. It would happen when a practitioner says, "I am concerned about this child and we need to think more fully about the situation". The noble Earl gave the example of a child attending an obesity clinic. It may well be that three things are happening in the child's life. The child is obese; there are some issues about the child being bullied at school as a consequence, which is not unknown; and the child is depressed. What we are looking for—and I hope that the consultation will enlighten us—is how to piece that information together in a way that means the GP or the school can support the child more effectively. It is not about pillorying children, it is about supporting them.
I recognise the difficulty that noble Lords have with this, and I hope that they will welcome the consultation. I hope that they will also welcome what I have said about the results of the consultation and the fact that nothing further can be done without affirmative regulations. That is an important point.
Let me say to the noble Baroness, Lady Howarth, that voluntary sectors are permitted, not required, in this context. We will be consulting on the sensitive services, as the noble Baroness would expect. There is no mandatory reporting, which I think was her specific concern.
Let me deal very briefly with the amendments. I see what noble Lords are seeking to do in Amendment No. 107A, but I believe that the wording in Amendment No. 107 encompasses all those who need to be covered to make sure that there are comprehensive contact details. I am advised that the only additional scope that the noble Baroness's amendment would afford would be to enable the inclusion of contact details for the natural father who is not on the child's birth certificate, not married to the mother at the time of the birth, has not subsequently acquired any parental responsibility, and does not have care of the child from time to time or at any time. Such details could be included only if his paternity were proven. Everybody else is included in the way in which we have defined this, because it comes under the provisions of the Children Act and parental 587 responsibility. I hope that that explanation clarifies the matter. It is, in a sense, why I believe that the amendment is unnecessary.
Amendment No. 108 would delete practitioner involvement and the flexibility to add to the list. One effect would be that databases would not be able to hold practitioner details. I hope that noble Lords recognise that that is an important part of what we are trying to do. As I have already said, I recognise the concerns about sensitive services, hence the consultation.
Amendments Nos. 108 and 108A would record the information that a child is at risk of serious harm. Amendment No. 118A would delete the provision to record concerns. This would mean that practitioners could record details that they were concerned about only when the concern had reached the point of a risk of harm, or actual serious harm being done to the child. We do not want to constrain in this way because this is a preventive measure. As I have already indicated, we want to address the detail of this through the consultation. But we want practitioners to communicate long before a crisis point is reached. We will look to consult formally on this, and we hope that that will enable noble Lords to feel easier about it. But we believe that relying on what is in Sections 17 and 47 puts the barrier too high. It does not enable people to say, "I am providing a lot of physiotherapy to this child at the moment. You might want to talk to me", or "I am involved with this child in other ways". It is very important that as we consult and look at what we call this, we ensure that we make a provision of a preventative nature by enabling practitioners to talk to each other. To turn it the other way round, if we had no details or information, what would we do if a child did not receive that bringing together of different services that I just described with regard to the noble Earl's example of a child attending a clinic for obesity?
Finally, on Amendment No. 108, 1 hope that the noble Countess, Lady Mar, is reassured at my undertaking that we will be looking to introduce an amendment at Third Reading. Noble Lords have indicated a specific point about case data, and it might be better made in that way.
There is nothing about gender in the list, and it might be appropriate to include it at some point. This is about information which might be of relevance but which is not already included.
Amendments Nos. 110A and 110B would widen the list of persons or bodies required or permitted to disclose information to the database. Amendment No. 112 clearly sets out on the face of the Bill the statutory and other bodies and persons required or permitted to disclose information. I hope that noble Lords feel that we have covered the list of those who should be involved appropriately by reference back, in the way that I have indicated. I take the point about sensitive services and about being above or below the line information. 588 7.45 p.m.
Amendments Nos. 130, 135, 140 and 136 would remove the flexibility to add to the list of agencies or bodies providing information. Any change to the list would have to be made with the approval of both Houses of Parliament through the affirmative resolution procedure and through the Assembly's legislative procedures. I have already said that youth offending teams did not exist some while ago, and neither did primary care trusts. We are looking to capture new ways of organisations working, or those bodies which might appropriately contribute positively.
Amendment No. 113A concerns the Inland Revenue. Under proposed new subsection (4B) (c) it is a one way-communication. It has nothing whatever to do with the Proceeds of Crime Act 2002. I did not even have any knowledge of that until the noble Baroness, Lady Barker, raised it. It is only to allow the Inland Revenue to provide information of what is already prescribed on the database, and nothing else. There is no two-way street on that.
Amendment No. 111ZA deals with the very important aspect of those who would be denied access to the database. Obviously, appropriate practitioners must have access. Obviously, there must be stringent minimum requirements, Criminal Records Bureau clearance and relevant practitioner level protocol. They must have undertaken training on the safe and secure use of the system, including compliance with the Data Protection Act, the Human Rights Act and, where relevant, the Caldecott principles. When we consider the formulation of these regulations, we will take into account the points that noble Lords have raised today in considering where access may and may not be given. I hope that that will provide some reassurance to the noble Baroness, Lady Barker. I am happy to discuss with her what that means in practice.
I hope that on that basis, the noble Baroness will feel able to withdraw the amendment.
My Lords, I realise that we are on Third Reading and are under immense pressure, but there are a very few points I want to make. First, the noble Baroness talked about us welcoming the Government's package of proposals. No, we do not believe it is a package—we welcome certain aspects of the proposals and not others.
Many of the proposals that we put forward came from the meeting with the trailblazers. Two of them said that they do not want flags of concern on their systems. The Government, who have, throughout our discussions, exhorted us to listen to what these practitioners have said, should do the same.
Once the phrase "cause for concern" is on the face of the Bill, the Government can consult all they like—the phrase will be in the Bill. I do not think that the noble Baroness has yet made a strong enough case for moving away from existing recognised childcare terminology. I also do not accept her argument that by using that terminology, we leave matters until it is too late. From talking to trailblazers, it was clear that the 589 very existence of a database which included the names of other practitioners was a basis upon which much preventive work could begin much more speedily. I urge the noble Baroness to think about that in light of what the noble Earl said about being above or below the line information.
The noble Baroness also talked about the affirmative resolution procedure. I should like to know where that is—I do not see an amendment to Clause 8. Is it elsewhere in the Bill? I know that she has conceded the point, but this is not the Bill.
I remain of the view that while I accept some of the arguments and reject some of the details, we return to the fundamental principles. The minute the database moves away from anything factual, the restrictions under which it has to operate have to be a great deal tougher than those for a telephone book. I do not believe that the noble Baroness has mentioned all that we want, and I do not believe that consultation on that basis will be adequate. We will return to these matters, but for the moment, I beg leave to withdraw the amendment.
Amendment No. 107A, as an amendment to Amendment No. 107, by leave, withdrawn.
[Amendments Nos. 108 and 108A, as amendments to Amendment No. 107, not moved.]
moved, as an amendment to Amendment No. 107, Amendment No. 108B: Line 23, at end insert— (2C) The manner in which consent to inclusion of information (as defined in subsections (2A) and (2B) of a child, a parent or other person with parental responsibility, may be over-ridden.
The noble Baroness said: My Lords, I am glad to have the opportunity to move an amendment to government Amendment No. 107, but one which is of a different nature from those in the previous grouping. In moving the amendment, I shall speak also to Amendments Nos. 110C, 118B, 119A and 120A. They deal with different aspects of the operation of the information database which need briefly to be raised.
Amendment No. 108B would establish the circumstances or the manner in which consent to inclusion of information, as defined in subsections (2A) and (2B), can be overridden. One factor which clearly emerged from the trailblazers meeting was that all of those trailblazers had gone down the route of obtaining a priori consent from children and families. They viewed that as being a key part of the success of what they were doing.
I understand that it will be highly unusual for a database of limited factual information to be overridden. However, there are some circumstances in which it would not be unreasonable for a parent to object; for example, a mother who has been at risk of domestic violence may not wish basic details such as school and place of residence to be released. Equally, to a childcare professional, the refusal to give consent to basic information being put forward may also be a 590 signal that there are problems to be looked at. However, if the Government are going to override parental consent, they should say so.
Similarly, Amendment No. 110C would allow families to have an appeal mechanism against disclosure. That appeal mechanism would operate after disclosure has been made. It is rare—and trailblazers confirmed it—for people to use such a mechanism, but they should have the power to do so. As long as we are stuck with the reality of flags of concern, matters such as this become of much greater importance.
Amendment No. 118B is consistent with the principles of working in partnership. Co-operation and parental consent make for more effective plans for children's well-being and put the Bill in the right place in relation to Articles 6 and 8 of the European Convention on Human Rights. The amendment would require professionals to be accountable for decisions that they make to register concerns on the database.
Amendment No. 119A is required to avoid any doubt that the establishment and operation of databases should be in conformity with the Data Protection Act 1998. That is a matter which has been of consistent concern to us. So far, the Government have failed to convince us why these matters should circumvent that Act.
Finally, Amendment No. 120A underlines that information databases are a very serious business with serious consequences for the lives of children. It would create an offence of knowingly supplying information which is wrong. That is important. Childcare professionals who enter information in good faith should not be subject to prosecution, but those who supply false information with malicious intent, leading to serious consequences, should be subject to prosecution. I beg to move.
My Lords, I shall speak briefly to my own Amendments Nos. 111A, 111B, 111C and the Welsh equivalents. It is important for there to be a set of clear ground rules, applicable everywhere, to govern the length of time that a child's records should legally be retained on a database. When someone ceases to fall within the ambit of Clauses 6 and 7, their record should be deleted. If we do not make a rule of that kind, we potentially have a system that will usher in compulsory identity cards by the back door. We are not legislating for that. At the same time, we need to ensure that records are not deleted prematurely; for example, when it is thought that a child has moved out of an area. There needs to be a process which ensures that if a child moves from Hull to Brighton, the school in Brighton can, if necessary, find out which social worker in Hull was assigned to the child and speak to that person. The same point could obviously apply across the board. Historic information can be as important as current information, but when I look at government Amendment No. 107, it rather seems as if only current information is to be allowed for. On the other hand, again, some historic information should 591 be deleted when it is of no relevance, especially flags of concern. I should be glad if the Minister could comment on those points.
That brings me on to Amendments Nos. 111 B and 111C. If someone becomes aware that information about him has been included on a database—I am talking partly about "below the line" information, perhaps of a sensitive nature—he should have the right to appeal formally against that. Obviously, if second-tier information is dependent on consent, that problem is less likely to arise, but it could arise in relation to a flag of concern. An out-of-date flag of concern should be removed. If there is a disagreement about what should be classified as "out of date" and therefore, in terms of someone's current situation, inaccurate, there should be a formal process by which the matter could be determined. The Data Protection Act 1998 allows only very limited rights to comment on something that is not accurate. We need to look further than just a right to comment. There needs to be clear process under which the issue is considered in a formal way.
Amendments Nos. 111 B and 111C go together, because there should be clear rules about the legal obligations of professionals and the obligations of those operating the databases to make sure that inaccurate or out-of-date information is corrected. The Minister has spoken to a very helpful amendment, Amendment No. 123, which is about cross-checking, but it does not cover procedures that are designed to ensure that what goes on to the database in the first instance is accurate and who carries the can if it is not. Nor does it cover the need to ensure that information about a child is kept up to date, particularly as regards the people listed in subsection (4B) of Amendment No. 112. Those are the bodies or individuals who have only a power to disclose information rather than a duty to do so and who may not view the removal of out of date or inaccurate information as a priority when in reality it is an important obligation.
Nor does the Bill or the government amendment cover the rules that should determine when a flag of concern ceases to be an accurate indicator of a child's situation. People need to know that they have an obligation to remove a flag of concern when it is no longer applicable. I hope that those were comprehensible comments and I look forward to the Minister's response.
My Lords, the noble Earl is always comprehensible. The group of amendments rightly seeks that the database operates fairly in the way that information is handled. We are determined that that should be the case and I am grateful for the comments raised. I shall seek to address each of the amendments as best as I can.
Amendment No. 108A sets out that the regulations may set out the situations and conditions for which the lack of consent from children, parents and others may be overridden and the information included on the database in the absence of consent. We have been clear 592 that we believe that the value of the database is that it covers all children. There is a risk that some children who might particularly benefit from early concerted intervention to address problems might be among those whose parents might elect not to participate in an optional database.
The Data Protection Act 1998 regulates the situation in which data can be processed lawfully. That would include data on databases established under Clause 8. It provides the conditions for the processing of data where there has been no consent. We do not want to replicate the Data Protection Act or to cut across it in any way.
However, we intend to issue guidance on the circumstances in which information can and should be shared. I agree with the noble Baroness, Lady Barker, that that is important but this is a matter for statutory guidance rather than regulation. It is a matter where good practice relies heavily on professional judgment and interpretation, which cannot be properly covered in regulations.
We will also be issuing guidance on good practice in informing people about the purpose and operation of databases in any wider role out of databases provided under this clause. We intend that parents and young people should be informed that databases are being set up, how they will work and in broad terms what information will be included and which types of professionals will have access to them.
Good practice for practitioners will include telling children and parents that practitioners may use the database to record details of involvement or concern and for making contact with other practitioners. As I made clear in Committee, the database will operate under the subject access provisions of the Data Protection Act and parents and children will enjoy existing rights to see what information is held.
In many of the local authority areas that are piloting information sharing databases, the trailblazers, processing notices have been issued to local households explaining the new arrangements. As noble Lords have indicated, those who attended the meeting will probably recall that few parents have even questioned their child being included; and after further information most of them consented.
The trailblazers were clear that a national system should not have opt-outs for fears that some of those who would not then have records would be among the most vulnerable.
My Lords, will the noble Baroness acknowledge that at least two of those trailblazers were not using flags of concern?
My Lords, when I brought the trailblazers to meet noble Lords I took a representative sample. They said what they wished. Other trailblazers are going forward. Hence what I said: this is a sensitive and difficult area, but the consultation, which I shall ensure that noble Lords see, will be about how we make sure that the Government's 593 intention to use the database to enable practitioners both to talk to each other and to alert each other when they have a concern is carried out properly.
I know that the noble Baroness takes a different view, but if she looks at it from my perspective she will see that what is important is that the trailblazers take differing views. They are looking for different ways of approaching the matter. I was clear with the noble Baroness and other noble Lords that we wanted differing views to be put forward in the meeting and I am glad that they were.
Amendments Nos. 111A and 132 would provide for regulations about the length of time that information might be retained, as the noble Earl said. That is an important and difficult issue. We want information to be retained for as long as it makes sense in that context. I am happy to say that I understand what the noble Earl is seeking to do and undertake to table a government amendment at Third Reading to enable national standards to be set down in regulations, which will address his concern at least in part.
Amendments Nos. 111C and 133 concern the accuracy of the databases. The noble Earl will know that it was thanks to his prompting that Amendments Nos. 123 and 142 were tabled. I hoped that we had done it, but clearly we have not from his point of view. I recognise the important issue about misplaced concerns that he raised. We are looking through the consultation and the trailblazers' experience to see whether a record of the fact of the concern should be retained on the system until the whole record is deleted, or whether it should be removed after a defined period of time.
Because it is more multi-agency focused, our ambition is that the chances of such misplaced concern diminishes and we are clear that we want to issue the right guidance. I am comfortable to take the matter away in the light of what I have heard this evening and consider whether we can do a little more to satisfy the noble Earl and the noble Baroness on those points, because they are important.
Amendment No. 110C provides regulations prescribing procedures of appeal. Amendments Nos. 111B and 131 provide regulations to prescribe procedures of appeal against inclusion. I understand the issues raised. The Data Protection Act sets out the rights of individuals to object to the disclosure of data. I am sure that the noble Baroness, Lady Barker, in particular, will know that we do not want to establish new provisions of appeal in relation to information on the databases. I hope that noble Lords will be reassured to some extent—although probably not as much as I would like—about our proposals on consultation.
We have the same point of view as regards inclusion of information; that the databases will operate under the subject access provisions for the Data Protection Act, and parents and children will enjoy existing rights to see what information is held and to ask for inaccuracies to be remedied. 594 The particular point that the noble Baroness raised, about the addresses of children when there has been domestic violence, is an important one. Indeed, some of the trailblazers are doing some work on precisely that issue to ensure that either it is above or below the line in terms of who might look at it. We are interested to ensure that the provisions work in that regard, and we are waiting for further information on the most effective way in which to address a very important concern.
As I have said, we do not want to make an optional database. We want to ensure that all children are covered and that we intervene as appropriate when children's needs need to be met. One issue that has emerged from discussion is ensuring that people understand their rights for information under the Data Protection Act, and how they can exercise them. I shall consider that issue again to see whether there is anything more that we can do, because, although we might understand how to gather information—although I am not entirely sure that I do—there may be more that I can do that will at least go some way to allaying noble Lords' fears.
Amendment No. 118B would provide notification to parents and children whenever information relating to subsection (5) is recorded. I want to make it clear that we are not seeking to change data protection law in respect of automatic notification; nor is it our intention to regulate under the clause to create such an entitlement in relation to information sharing. If we were to put in place a requirement that a written notification had to be sent whenever a practitioner discussed with another that they had seen that the practitioner was involved with or concerned about a child, we would have a level of bureaucracy that would inhibit information sharing. We shall underline in guidance that it is good practice to seek the consent of children and parents about information sharing, but I do not want to create unnecessary burdens that would not support what we are trying to achieve.
Amendment No. 119A would remove subsection (7), which allows practitioners working in those bodies to disclose information to a database without being constrained by the common law duty of confidentiality. In debating Amendment No. 120, I outlined why the provision on common law duty of confidentiality is valuable. For example, it would make it clear to those practitioners working in voluntary organisations that they do not need to face personal liability or risks relating to their common law duty of confidentiality when deciding whether they should provide details of a child's name or address for the database or signal their involvement with the child. The amendment would delete a valuable provision; any person processing information must conform with the Data Protection Act. That does not need to be put in the Bill.
Finally, with regard to Amendment No. 120A, I stated in Committee that we share the concern about penalties for misusing the database. However, as we have also said, we do not believe that the introduction of a new criminal offence, which is what Amendment No. 120A would do, is necessary. There are already 595 measures in criminal law which impose penalties for misuse of data in computer records. The Data Protection Act provides for a serious offence with a penalty of up to a maximum fine, which will be committed when personal data is unlawfully obtained or disclosed without the consent of a data controller. That is covered by existing legislation, so I hope that the noble Baroness will feel able to withdraw her amendment.
My Lords, I thank the Minister for her detailed and swift reply. As she would expect, she stands on one side of the line and I stand on the other. I take some comfort from some of what she has said. I am by no means satisfied by all of it, but at this stage I beg leave to withdraw the amendment.
Amendment No. 108B, as an amendment to Amendment No. 107, by leave, withdrawn.
On Question, Amendment No. 107 agreed to.
moved Amendment No. 109: Page 6, line 30, at end insert "(subject to subsection (2A))
On Question, amendment agreed to.
moved Amendment No. 110: Page 6, line 31, leave out paragraph (b) and insert—
(aa) requiring a person or body specified in subsection (4A) to disclose information for inclusion in the database;
(ab) permitting a person or body specified in subsection (4B) to disclose information for inclusion in the database;"
Amendments No. 110A and 110B, as amendments to Amendment No. 110, not moved.
On Question, Amendment No. 110 agreed to. [Amendment No. 110C not moved.]
moved Amendment No. 111: Page 6, line 36, at end insert— ( ) as to the conditions on which such access must or may be given;
[Amendments Nos. 111ZA to 111C not moved.]
moved Amendment No. 112: Page 6, line 39, at end insert— (4A) The persons and bodies referred to in subsection (4)(aa) are—
the persons and bodies specified in section 7(1);
(b) the Learning and Skills Council for England;
(c) the governing body of a maintained school in England (within the meaning of section 175 of the Education Act 2002 (c. 32));
(d) the governing body of an institution in England within the further education sector (within the meaning of that section);
(e) the proprietor of an independent school in England (within the meaning of the Education Act 1996 (c. 56));
(f) a person or body of such other description as the Secretary of State may by regulations specify.
(4B) The persons and bodies referred to in subsection (4)(ab) are—
(a) a person registered in England for child minding or the provision of day care under Part 10A of the Children Act 1989 (c. 41);
(b) a voluntary organisation exercising functions or engaged in activities in relation to persons to whom arrangements specified in subsection (1) relate;
(c) the Commissioners of Inland Revenue;
(d) a registered social landlord;
(e) a person or body of such other description as the Secretary of State may by regulations specify.
(4C ) The Secretary of State may provide information for inclusion in a database under this section.
[Amendments Nos. 113 to 114, as amendments to Amendment No. 112, not moved.]
[Amendments Nos. 115 to 117 had been re-tabled as Amendments Nos. 111A to 111C.]
The Deputy Speaker (Lord Carter)
My Lords, I remind the House that if Amendment No. 118 is agreed to, I cannot call Amendments Nos. 118A and 118B on the grounds of pre-emption.
moved Amendment No. 118: Page 6, line 40, leave out subsection (5).
[Amendments Nos. 118A and 118B not moved.]
moved Amendment No. 119: Page 7, line 1, leave out "(4)(b) to (d)" and insert "(4)(d)".
The Deputy Speaker
My Lords, I remind the House that if Amendment No. 119A is agreed to, I cannot call Amendment No. 120 on the grounds of pre-emption.
[Amendment No. 119A not moved.]
Baroness Ashton of Upholland moved Amendment No. 120: Page 7, line 4, leave out from "which" to second "may" in line 5 and insert "may be done under regulations under subsection (4)(ab), (c) or (d) or (4C)".
moved Amendments Nos. 121 to 123: Page 7, line 13, leave out paragraph (a). Page 7, line 15, leave out "any such database" and insert "a database under this section". Page 7, line 18, leave out from "transfer" to end of line 19 and insert "and comparison of information between databases under this section
On Question, amendments agreed to.
moved Amendment No. 123ZA: Page 7, line 19, at end insert— ( ) For the first seven years following implementation of this Act, the Secretary of State shall lay before both Houses of Parliament an annual report concerning the operation of all databases under this section.
The noble Baroness said: My Lords, I hope that the noble Baroness when she replies will appreciate the novel twist within Amendments Nos. 123ZA and 142A. It is common practice when asking for a parliamentary report to be produced to this House that noble Lords on this side ask to have them in perpetuity. On this occasion we have set a very definite and tight timeline of seven years. That is for two reasons. We think that that is a sufficient length of time to make qualitative judgments about the efficacy of the scheme, which is going to cost a fair amount. That is a matter about which we have not spoken at all this evening. The matter was raised in Committee, but has never been fully addressed. None the less, in principle, one should not set up legislation that continues in perpetuity.
The other reason for seven years is that it allows the scheme to continue for at least the length of a Parliament and a bit of extra time. That is a sufficient time for a change of policy to take place. That is the reason for those two amendments.
I wish to speak very briefly to Amendment No. 125A, which I think is the nuclear option on Clause 8. We discussed many of its elements in relation to Amendment No. 107 and the amendments to that put forward by these Benches. But there is one point that remains. There has been a fair amount of discussion about the content of the database in what the noble Baroness put on the face of the Bill this evening. However, there has been far less about the operation of the database. I return to the point of principle, that the moment that this database moves away from matters of fact and into matters of opinion and subjective and false data, its operation and the need to be clear in law about its operation increase dramatically. Therefore noble Lords will see in this amendment a very detailed—I accept far too detailed—set of recommendations about the operation of any databases.
I believe that the minute we move away from the factual database and into matters of a sensitive nature, leaving wide powers in the hands of a Secretary of State—as the noble Baroness has in her revised Clause 8—is unacceptable. I give notice that if there are no more concessions from the Government between now and Third Reading about that, and particularly about the matters we talked about this evening when we outlined our concerns, then we will return to discuss the operation of these systems. I beg to move.
My Lords, I should like to speak briefly to Amendments Nos. 123A and 143 standing in my name. I hope that the Minister will understand why some of us feel the need to maintain a sceptical stance on this clause, and the need for it. 598 We are in a rather extraordinary situation, where the Government are enthusiastically trumpeting the virtues of databases, when the trailblazer pilots have only just got going and are certainly in no position to reach considered conclusions about the effectiveness of the systems or their cost-effectiveness. We are being asked to approve a policy without the evidence base to back it up.
The Government want the databases to contain the names of all 11 million children in the country. The vast majority of these children will not be at risk. Yet apparently we need a mammoth system like that in order to pick up those children who may be at risk and to promote the wellbeing of the rest. I need to be convinced about that. In particular I need to be convinced that an all-encompassing set of databases, with access granted to a whole host of individuals, is a concept that is human rights-compliant in the fullest sense. In other words, can the databases be justified in ECHR terms purely by reference to the improvement of well-being and the promotion of welfare, as distinct from child protection? I need the Minister's explicit assurance on that point.
If, as the Government say, the justification for an all-encompassing database is that it will facilitate early identification of problems, I think we need some real evidence that this is likely to happen. Common sense would tend to say that predicting what may happen to a child depends on the knowledge and skill of frontline workers. It does not depend on databases. If databases are seen as the conduit for better communication between frontline workers, we need to remind ourselves that in the case of Victoria Climbié there were no barriers whatever to communication, either legal or procedural. Many would say, and have said to me, that the deficit here lies not in IT systems but in the numbers of people on the ground, and the skills that they have. Something in me still says that databases are the Government's solution to the Victoria Climbié problem; in other words, they are a top-down solution. If front line workers had been asked what would most help them in doing their jobs better, I wonder whether they would have put databases at the top of their shopping list. I suspect that many would prefer to be given more people, more training and less paperwork.
It would be very helpful if the Minister could assure me that these provisions are not connected to any plans for a pan-European arrangement of linked databases. I have heard a suggestion that this might be so. The problems associated with this do not really need stating but the most obvious relate to who in the various countries would be given the right of access and how one would overcome legal disparities between member states.
Databases present us automatically with a paradox. If too many people are allowed access to a database, security of the data flies out of the window. Leaks will be unavoidable and confidentiality will be little more than a fiction. On the other hand, if too few people have access, it is useless as a tool for information sharing. We come back to the question of how much added value the databases would actually give us. Those who need to exchange information about a child 599 can already do so, perfectly legally. A local authority that needs to know who a child's GP is has an easy way of finding out—it can ask the parents. The key point here is whether databases will bring with them added value of such a degree as to overcome the drawbacks that I and many others believe are inherent in them: the human rights considerations; the scope for serious concerns to be buried amidst a welter of minor ones; unauthorised leakage of information and the opportunity costs. I do not think that we can ignore these concerns and I hope that the Minister will be able to provide answers to them.
My Lords, I was slightly surprised that of all the things we have tried to do in the Bill the noble Earl should think that the database was the Government's solution to the Victoria Climbié case.
I agree completely with the noble Earl that there is no substitute for professional judgment and behaviour. The noble Earl might reflect on the experience of the trailblazers; namely, that in some cases it took, I believe, three days to contact the appropriate professional. We have consulted professionals and have considered all kinds of different ways of supporting front line staff. I agree with the noble Earl that it is a matter of people, training and other resources. This measure is not a substitute—it is not an "either/or" but a "both/and". It is very important to see it in that context. We believe that a universal database is justified under human rights. It enables a particular child to be correctly identified and for practitioners to have access to other practitioners' contact details.
However, we also agree that the entry of case details on such a universal basis would not be a proportionate response in the pursuit of a legitimate aim. I can state categorically that there are absolutely no plans for a pan-European database of any kind.
I turn to Amendments Nos. 123ZA and 142A which concern reporting annually to Parliament. I am not immediately attracted to the proposal although I was interested in the seven-year timescale. However, I am sympathetic to the concerns that the noble Baroness raised. I wish to reflect further on whether a statutory duty to report might be a sensible way forward. As noble Lords are aware, we are keeping open the possibility of local, national or regional level databases so we need to think about that in the context of whether a duty to report might be framed in advance of decisions on the geographical and organisational basis for the establishment and operation of databases. I hope that goes some way to meet the noble Baroness's concerns.
We were asked why we were bringing forward this measure now. I was mindful of what the noble Baroness, Lady Walmsley, said in a previous debate. We felt that this was an appropriate Bill and an appropriate moment to bring this forward. As noble Lords will know, often legislation is not the response that we put forward. Often there are other ways of supporting our practitioners and our children. This was an opportunity we did not wish to miss, and 600 therefore I hope noble Lords will see the amendments I have put forward as a response to concerns that have been raised, in exactly the kind of development of government strategy that noble Lords seek.
Amendments Nos. 123A and 143, 124 and 125A put in place a general information-sharing duty on those responsible for safeguarding and promoting the welfare of children and indicate that the Children's Commissioner will provide guidance to support that duty. Amendment No. 125A removes Clause 8 and puts in place a power to share information. We have deliberately not sought to create in the Bill a general new duty to share information. There are difficulties in being too explicit about what information should be shared, as that could risk people labouring under the misapprehension that they can share that information only in the circumstances specified by legislation. We do not wish to do that.
Amendment No. 124 proposes that the information provision should apply to persons and bodies identified in Clause 7. It could therefore say to practitioners that information sharing should relate only to arrangements to safeguard and promote welfare, and not to co-operation to improve well-being as covered in Clause 6 and, of course, described in Every Child Matters. Amendment No. 124 also suggests that information sharing would relate in particular to cases where there is reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm. Again, there are difficulties of practitioners feeling they were only bound by the duty to share information in such circumstances, or worse, that they could not share information in other circumstances. Again, that illustrates why we have not gone for a general duty.
We are clear that comprehensive guidance to practitioners under Clauses 6 and 7 needs to bring clarity about the circumstances under which information may be shared to promote the welfare, safety and well-being of children under current law. Amendment No. 124 implies that the Children's Commissioner would hold responsibility for issues of guidance. I have already explained in debating earlier amendments why we believe absolutely that the responsibility for guidance on information sharing lies properly with the Government.
I turn briefly to the suggestion that guidance would be sufficient to achieve our aims and that we do not need to legislate as we are doing for the establishment and operation of databases. We need to do both. The clear message from the trailblazers is that legislation is needed to ensure that all bodies and practitioners know they can and should contribute. We could not have a position where, at every turn, those establishing databases might have to struggle to persuade key bodies that it was legal to contribute and that they should do so. We must put in place a system that covers all geographical areas with a common approach. Legislation enables us to do that. Information can cross borders and follow children, stopping them falling through the gaps. 601 I have already said that I firmly believe that noble Lords are in agreement on the need for effective information sharing to improve outcomes for children, but Amendment No. 125A illustrates the pitfalls that we have been at pains to avoid. I have suggested in response to the noble Baroness, Lady Barker, that there is a serious danger of constraining the circumstances in which practitioners feel they could, may or should share information, and we must avoid doing this by design or unintentionally. The effect of the amendment would be to establish an explicit power, not a duty, for people and bodies in Clause 7 to share information, but only in circumstances where there is reasonable cause to suspect that significant harm is likely. The noble Baroness may not intend it, but it would impose a grave limitation on the sharing of information, preventing practitioners from discussing a child until they were confident that significant harm was at issue, and not just around the databases.
I have emphasised in Committee that best practice includes seeking the consent of children and families to share information, but I cannot agree that it makes sense for practitioners to have a legal obligation to send a notification whenever they discuss a child, sending copies of what has been said. We believe this would be a bureaucratic burden that would inhibit information sharing. As the noble Baroness has said, Amendment No. 125A is mainly concerned with the operation of computer systems. During the course of our debate, I asserted that the database represents a valuable tool for practitioners. Those in the amendment are limited in terms of who they cover and what data they contain. They do not bring any real advantage in improving the sharing of information to help improve outcomes for children. I believe the proposed arrangements for licensing and monitoring computer systems would be disproportionate and bureaucratic to govern systems that already exist, and to which existing legal safeguards apply. I also say that policing the operation of computer systems is not an appropriate function for the Children's Commissioner.
Our proposal set out in some detail how a database will operate. That detail will come before Parliament for decision. The system will be transparent. Public accountability is set up around how the databases are operated. The amendment appears to suggest private arrangements between the Secretary of State and the various bodies which would leave Parliament out of the process. We could not agree to that. It would impose an information regime that would be restrictive and bureaucratic rather than facilitate the sharing of information. I hope that on that basis that the noble Baroness will withdraw her amendment.
My Lords, at this time of night I have no intention of doing anything other than withdrawing the amendment. I beg leave to withdraw the amendment.
[Amendments Nos. 123A to 125A not moved.] 602 Clause 23 [Information databases: Wales]:
moved Amendment No. 126: Page 16, line 22, at end insert— (2A) A database under this section may only include information falling within subsection (2B) in relation to a person to whom arrangements specified in subsection (1) relate. (2B) The information referred to in subsection (2A) is information of the following descriptions in relation to a person—
(f) the name and contact details of any person providing to him services of such description as the Assembly may by regulations specify;
(h) information of such other description as the Assembly may by regulations specify."
[Amendment No. 127, as an amendment to Amendment No. 126, not moved.]
moved Amendments Nos. 128 to 130: Page 16, line 27, at end insert "(subject to subsection (2A))". Page 16 , line 28, leave out paragraph (b) and insert—
"(aa) requiring a person or body specified in subsection (4A) to disclose information for inclusion in the database;
Page 16, line 33, at end insert— ( ) as to the conditions on which such access must or may be given;".
[Amendments Nos. 131 to 133 not moved.]
moved Amendment No. 134: Page 16, line 36, at end insert— (4A) The persons and bodies referred to in subsection (4)(aa) are—
(a) the persons and bodies specified in section 22(1);
(b) the National Council for Education and Training for Wales;
(c) the governing body of a maintained school in Wales (within the meaning of section 175 of the Education Act 2002 (c. 32));
(d) the governing body of an institution in Wales within the further education sector (within the meaning of that section);
(e) the proprietor of an independent school in Wales (within the meaning of the Education Act 1996 (c. 56));
(f) a person or body of such other description as the Assembly may by regulations specify.
603 (4B) The persons and bodies referred to in subsection (4)(ab) are—
a person registered in Wales for child minding or the provision of day care under Part 10A of the Children Act 1989 (c. 41);
(e) a person or body of such other description as the Assembly may by regulations specify.
(4C ) The Assembly and the Secretary of State may provide information for inclusion in a database under this section.
[Amendments Nos. 135 and 136, as amendments to Amendment No. 134, not moved.]
moved Amendments Nos. 137 to 142: Page 16, line 37, leave out subsection (5). Page 16, line 44, leave out "(4)(b) to (d)" and insert "(4)(d) " Page 17, line 1, leave out from "which" to second "may" in line 2 and insert "may be done under regulations under subsection (4)(ab), (c) or (d) or (4C)". Page 17, line 10, leave out paragraph (a). Page 17, line 12, leave out "any such database" and insert "a database under this section". Page 17, line 15, leave out from "transfer" to end of line 16 and insert "and comparison of information between databases under this section
[Amendments Nos. 142A and 143 not moved.]
In the Title:
[Amendment No. 144 not moved.]
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