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Lord James Douglas-Hamilton: Let me develop the argument and then hon. Members may intervene if they wish. Courts would have some difficulties interpreting subsection (1)(iii) of the new clause. Under it, a parent would have no defence if the child were struck "in such a way as to cause, or to risk causing, pain or discomfort lasting more than a very short time."

My hon. Friend the Member for Ayr asked what was a very short period of time. It would be very hard to judge that other than by subjective standards. For example, would the length depend on the seriousness of the

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misdemeanour? More importantly, since the test would arise where there is no injury, it is extremely hard to see how anyone could ever tell whether the pain lasted more than a very short time or, indeed, risked doing so.

Other important points concern me. What is meant by "other object"? Indeed, my hon. Friend the Member for Ayr considered whether it would be legitimate to hit a child with an Order Paper. Would it be legitimate to hit a child in the eye or to use a heavy magazine? Whenever excessive force is used, it should be prohibited and the necessary action taken.

The effect of paragraph (ii) of the new clause is not clear and I fear would do nothing to clarify the law. There are a number of deficiencies in the new clause.

Mr. Wallace: The Minister's response so far has been somewhat unconvincing. He seems to be saying that the new clause does not provide what he would consider to be a satisfactory solution to the problem. Given that a United Nations committee chastised the British Government earlier in the year specifically on the ground that there was no legislation in force to avoid physical punishment to children, what proposals would he see as being appropriate to deal with this area, which would meet and honour our obligations under the UN convention on the rights of the child?

Lord James Douglas-Hamilton: Appropriate proposals would create a situation in which the courts may consider any and every case in which excessive force against a child is used. I do not believe that the new clause helps the creation of that situation for the following reasons. It is impossible to enforce. It misses the legal point and therefore would not be effective, which I mentioned earlier. It limits the court's power to take all the facts of the case into account. It lacks objectivity as to what is a very short period of time and it categorises a gentle blow with a soft object as worse than a hard blow with a hand. For all those reasons, the new clause in its present form is defective and I recommend that the House rejects it.

Mr. George Robertson: This has been a considered debate in which hon. Members on both sides of the House made serious points on one of the most serious issues that the House could possibly consider, but the Minister's reply did not live up to the debate.

6.30 pm

We are talking about violence against small children. That is what we are trying to prevent. We are trying to clarify the law so that no body, and no parent, can hide behind the vagueness of the present law in order to inflict pain and injury on small children. That seems to be one of the most important issues that we could address our minds to. Quite frankly, the complacency and unconvincing nature of the Government's case would lead anyone with any objectivity outside this place to believe that they had made up their minds in advance and were simply repeating their points.

Mr. Devlin: Does not the hon. Gentleman agree that, while we are all seeking to protect small children from violence, the new clause will also prevent reasonable chastisement of young hooligans who are considerably older than very small children?

Mr. Robertson: Of course we are trying to implement the same principles. However, when hon. Members go

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through the Lobby tonight, they should consider the fact that we are about to make a judgment based on a recommendation of the Scottish Law Commission on how we can prevent physical violence against even the smallest children. That should be weighed in the balance and should persuade hon. Members on both sides of the House to support the recommendation.

I return to what I said at the beginning of my comments and make a simple elementary point. This new clause did not come from the Labour party. It has not been tabled in a partisan context. Word for word, it is the recommendation of the Scottish Law Commission. If the hon. Member for Ayr (Mr. Gallie) wants to make a few cheap political points about political correctness, perhaps he should consider that the accusation of political correctness--

Mr. Gallie: Will the hon. Gentleman give way?

Mr. Robertson: The hon. Gentleman should listen to the charge before he pleads guilty to it. To make an allegation of political correctness against Lord Davidson, Dr. Clive, Professor Love, Sheriff Macphail and Mr. W. A. Nimmo Smith QC is perverse in the extreme. However, it is an indication of the weakness of the case of the hon. Member for Ayr. At least the hon. Member for Ayr has the honesty to say that he has not even read the Scottish Law Commission report before he makes a decision here tonight which might save some small children from violence and which might change a law behind which negligent and evil parents might hide when it comes to a court of law.

Mr. Gallie: My objection to the new clause is that it does nothing for young children. The present law covers the situation, as has been acknowledged in the debate. That is the point. The new clause would simply confuse the issue.

Mr. Robertson: In all fairness, if I thought that that was the case, I would not support the new clause tonight. I do not believe that if the hon. Gentleman had read the Scottish Law Commission report, he would have reached that conclusion. The commission considered the issue in enormous depth and it consulted widely, here and abroad, and reached its conclusion. It stated that its proposal, which is the proposition before the House tonight, would

"draw the line at a point which could be easily explained and understood. No implement. No injury or risk of injury. No lasting pain or discomfort or risk of lasting pain or discomfort." That is the line which those eminent lawyers and people looking at the issue arrived at. However, they have met a wall of trivia from the Government.

We are told that if someone is hit by an Order Paper or receives a light tap from an implement, there might be a risk of prosecution--as if there was no procurator fiscal service in Scotland and no public prosecutor could decide between the trivial and the real. In the past, the procurator fiscal service has had to make the judgment about what was real and proper. All that is swept aside in order to make debating points.

The Scottish Law Commission report considered the point that was made in the debate. It stated that

"A safe disciplinary smack, involving no risk of injury and no more than transient pain would be no more unlawful than it is under existing law."

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The commission addressed itself to the excess referred to by the Minister. It considered the excess of some parents against small children. We have a heavy responsibility on us today as to whether we believe that the Scottish Law Commission was wrong and irrelevant and that we will simply rely on the present vagueness of the law, which has unfortunately led to some parents receiving precisely the wrong signal, or whether we accept our responsibilities, consider the commission's advice and accept that new clause 1, which enshrines the commission's wording, is something that would give the additional protection to small children.

In the face of the Government's hostility, I hope that hon. Members will decide that we should be on the side of the children and that they will vote in favour of new clause 1.

Question put , That the clause be read a Second time:--

The House divided : Ayes 193, Noes 260.

Division No. 138] [6.39 pm

AYES

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Adams, Mrs Irene

Ainsworth, Robert (Cov'try NE)

Allen, Graham

Alton, David

Anderson, Donald (Swansea E)

Anderson, Ms Janet (Ros'dale)

Armstrong, Hilary

Ashton, Joe

Austin-Walker, John

Banks, Tony (Newham NW)

Barnes, Harry

Barron, Kevin

Battle, John

Bayley, Hugh

Beckett, Rt Hon Margaret

Bell, Stuart

Bennett, Andrew F

Bermingham, Gerald

Berry, Roger

Betts, Clive

Boateng, Paul

Bray, Dr Jeremy

Brown, N (N'c'tle upon Tyne E)

Burden, Richard

Byers, Stephen

Callaghan, Jim

Campbell, Mrs Anne (C'bridge)

Campbell, Menzies (Fife NE)

Campbell, Ronnie (Blyth V)

Campbell-Savours, D N

Canavan, Dennis

Chisholm, Malcolm

Church, Judith

Clapham, Michael

Clark, Dr David (South Shields)

Clarke, Eric (Midlothian)

Clelland, David

Clwyd, Mrs Ann

Coffey, Ann

Cohen, Harry

Connarty, Michael

Cook, Robin (Livingston)

Corbett, Robin

Corbyn, Jeremy

Cox, Tom

Cunningham, Jim (Covy SE)

Dalyell, Tam

Darling, Alistair

Davidson, Ian

Davies, Bryan (Oldham C'tral)

Davies, Rt Hon Denzil (Llanelli)

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Denham, John

Dewar, Donald

Dixon, Don

Donohoe, Brian H

Dowd, Jim

Dunnachie, Jimmy

Dunwoody, Mrs Gwyneth

Eagle, Ms Angela

Eastham, Ken

Enright, Derek

Evans, John (St Helens N)

Ewing, Mrs Margaret

Fatchett, Derek

Field, Frank (Birkenhead)

Fisher, Mark

Flynn, Paul

Foulkes, George

Fraser, John

Fyfe, Maria

Galbraith, Sam

Galloway, George

Gapes, Mike

Garrett, John

Gerrard, Neil

Gilbert, Rt Hon Dr John

Godman, Dr Norman A

Godsiff, Roger

Golding, Mrs Llin

Gordon, Mildred

Graham, Thomas

Grant, Bernie (Tottenham)

Griffiths, Nigel (Edinburgh S)

Grocott, Bruce

Gunnell, John

Hall, Mike

Hardy, Peter

Henderson, Doug

Heppell, John

Hill, Keith (Streatham)

Hogg, Norman (Cumbernauld)

Hoon, Geoffrey

Howarth, George (Knowsley North)

Howells, Dr. Kim (Pontypridd)

Hoyle, Doug

Hughes, Kevin (Doncaster N)

Hughes, Robert (Aberdeen N)

Hughes, Roy (Newport E)

Illsley, Eric

Ingram, Adam

Jackson, Glenda (H'stead)

Jamieson, David

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