The
Committee consisted of the following
Members:†
Betts,
Mr. Clive (Sheffield, Attercliffe)
(Lab) †
Cooper,
Rosie (West Lancashire)
(Lab) †
Dodds,
Mr. Nigel (Belfast, North)
(DUP) †
Fisher,
Mark (Stoke-on-Trent, Central)
(Lab) †
Flello,
Mr. Robert (Stoke-on-Trent, South)
(Lab) †
Foster,
Mr. Michael (Worcester)
(Lab) †
Hanson,
Mr. David (Minister of State, Northern Ireland
Office)†
Hillier,
Meg (Hackney, South and Shoreditch)
(Lab/Co-op) †
McKechin,
Ann (Glasgow, North)
(Lab) †
Pritchard,
Mark (The Wrekin)
(Con) †
Reid,
Mr. Alan (Argyll and Bute)
(LD) †
Robertson,
Mr. Laurence (Tewkesbury)
(Con) †
Rosindell,
Andrew (Romford)
(Con) †
Scott,
Mr. Lee (Ilford, North)
(Con) †
Stuart,
Mr. Graham (Beverley and Holderness)
(Con) †
Waltho,
Lynda (Stourbridge)
(Lab) Wills,
Mr. Michael (North Swindon)
(Lab) Glenn McKee, Committee
Clerk † attended the
Committee The following also
attended, pursuant to Standing Order No.
118(2): Durkan,
Mark (Foyle) (SDLP) Third
Standing Committee on Delegated
LegislationWednesday 5
July
2006[Hywel
Williams in the
Chair]Draft Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 20062.30
pm Mr.
Laurence Robertson (Tewkesbury) (Con): On a point of
order, Mr. Williams. I have two points to make. First, article 2(e)
refers to “an offence
under section (20)(1) of the Children and Young Persons Act (Northern
Ireland) 1968”. I looked
for the 1968 Act, but was unable to obtain it from the Vote Office in
spite of having been told that it would be available. That is
inconvenient, because the order refers to it. The Vote Office was able
to dig out the Offences against the Person Act 1861, but not a piece of
legislation from
1968. Secondly, we
have often complained about legislating on Northern Ireland by
statutory instrument. The order is particularly objectionable because
it is for miscellaneous provisions and covers two very different
things—the physical punishment of children, and marriage and
civil partnerships. On the Floor of the House, where we can debate and
amend each item, that might be acceptable, but it is not acceptable in
an order. Would it not have been better to present those issues in
separate orders, if they had to be in orders at
all?
The
Chairman: I thank the hon. Gentleman for those points of
order. It is a serious matter. Papers should be available to hon.
Members so as to inform the debates. His first point will be noted and
acted on. On the second point of order, it is a matter for the
Government to decide how orders are put together.I am sure
that those who have ears will have
heard. 2.32
pm
The
Minister of State, Northern Ireland Office(Mr. David
Hanson): I beg to
move, That the
Committee has considered the draft Law Reform (Miscellaneous
Provisions) (Northern Ireland) Order
2006. As a fellow
north Wales Member of Parliament,Mr. Williams, I am sure that
you will, as far as possible, look favourably on the Minister as the
Opposition throw slings and arrows at
me. If an apology is
due to the hon. Gentleman regarding the availability of papers in the
Vote Office, I offer one. My understanding was that those papers were
to be provided by the Vote Office, and I shall recheck the matter when
the opportunity
arises. A draft of the
order was laid before the House on 12 June 2006. I understand
the frustrations of all hon. Members in having to deal with such
matters as Orders in Council, and that is continually referred to in
these Committees. I take full responsibility for determining the form
of the provisions in the order. It is an Order in
Council procedure and I understand the frustrations with that. However,
the hon. Gentleman has two and half hours in which to debate matters,
should he so wish. I hope that we can complete our proceedings sooner
than that, but that time is available should we need it. I am sure that
had the matter been taken on the Floor of the House, in the form that
it is, it would have taken a maximum of two and half
hours. Mr.
Robertson: My point of order was a complaint about putting
two completely separate issues in one order so that we have to vote
either against both or for both. It might be that we object to one, but
not the other. We could deal with that on the Floor of the House, but
not in
Committee.
Mr.
Hanson: I accept the hon. Gentleman’s point. If
that is a difficulty for him, I extend my apologies. I hope that he
will find that he is able to support both provisions. He will be aware
that on a number of occasions, Orders in Council have covered a range
of things. The criminal justice order will shortly come to Committee,
as it did last July, and it will cover a myriad of points.
Unfortunately, at the moment, that is the nature of Northern Ireland
business. The short
order does three things. First, it restricts the use of a defence of
reasonable chastisement in relation to the physical punishment of
children in the home. Secondly, it removes the prohibition on parents
marrying their former children-in-law. Thirdly, it makes a minor
technical correction to the Civil Partnership Act 2004.
The order contains only six
articles. Article 1 is simply the title and interpretation provisions,
and provides that if the order is passed today, as it was yesterday in
another place, it will take effect within two months of being made.
That will mean that it comes into force by early September.
Article 2 is the nub of one of
the big issues that the Committee must consider: the implications of
the decision of the European Court of Human Rights in the case of A
v. United Kingdom in 1998. Having debated in the House the
matter as it affects England and Wales, hon. Members will know that the
court held that the UK had breached article 3 of the European
convention on human rights by failing to provide a young boy with
adequate protection from inhuman and degrading treatment in the form of
beatings from his stepfather. When that matter came the UK domestic
courts, the stepfather had relied on the defence, which will be known
to hon. Members, of reasonable chastisement and was acquitted of the
charges against him. Following the judgment, the UK undertook a review
of the operation of the defence of reasonable chastisement and
introduced measures to prevent a repeat of the violation. Article 2
covers the implications of the case for Northern Ireland.
Section 58 of the Children Act
2004 restricts the defence of reasonable chastisement to charges of
common assault and precludes its use against more serious charges such
as wounding, causing grievous bodily harm, assault, occasional actual
bodily harm and cruelty to persons under 16. It also precludes the use
of such a defence in a claim for civil damages when the harm caused
amounts to actual bodily harm.
I know that the matter is of great interest to hon. Members, and when we
discussed it in relation to England and Wales it caused some debate on
the Floor of the House. As a Government, we are conscious that in
putting in place the same provisions in Northern Ireland to comply with
the convention, we must examine not just chastisement but positive
parenting, and take measures on it. In another place yesterday,
Baroness Blood raised the subject with my right hon. Friend Lord
Rooker, who is in charge of the order in the Lords. We have
acknowledged that legal reform is just one side of the coin and that we
need to make real, practical differences to the lives of parents and
children by encouraging positive parenting. I am happy to say that a
lot of good work is going on, and we have the support of a number of
charities in helping with it. Following representations and discussion,
both in another place and with charities in Northern Ireland, we
decided to establish an implementation group comprising senior
officials from Northern Ireland Assembly Departments and the Northern
Ireland Office, who will have the task of examining how we can improve
positive parenting and send its message for the future. I formally
established that group yesterday at a meeting of the children and young
persons ministerial group in Belfast. It will ensure that we examine
and maximise sources of assistance and, perhaps most importantly, give
accessible and well signposted information to parents to help them
provide positive parenting for their
children. Article 3
deals with the implications of the decision of the European Court of
Human Rights in the case of B and L v. United Kingdom 2005. In
that case, of which hon. Members may or may not be aware, the court
ruled that the provisions of the Marriage Act 1949 applying to England
and Wales, which prevented parents from marrying their former
children-in-law unless certain conditions were satisfied, was in breach
of their right to marry under article 12 of the European convention.
Article 3 of the order therefore repeals the relevant provision in
Northern Ireland, namely article 18 of the Family Law (Miscellaneous
Provisions) (Northern Ireland) Order 1984, which prohibits persons of
either sex from marrying their former children-in-law unless both their
child and the other parent of that child are dead. The effect of
article 3 is to remove any restriction on the marriage of
in-laws. Article 4
repeals corresponding but uncommenced provisions preventing a man or
woman from forming a civil partnership with a former spouse or civil
partner of his or her child. Essentially, the corresponding regulations
for civil partnerships are made in article 4, again to comply with the
European Court of Human Rights.
Article 5 simply tidies up the
statute book by removing legislative provisions relating to prohibited
degrees which have been superseded by subsequent amendments. Finally,
article 6 makes a minor technical correction to schedule 16 of the
Civil Partnership Act 2004, which applies only to Northern Ireland, to
ensure that the courts of summary jurisdiction have the full range of
powers to vary orders for financial relief when relationships break
down.
Hon. Members should know that
these compliance matters are not unique to Northern Ireland. We are
taking forward measures relating to Northern Ireland in the Committee
today, but the Scottish Executive—this will be of interest to my
hon. Friend the Member for Glasgow, North (Ann McKechin)—has
already addressed the issue of physical punishment of children and
relaxed restrictions on in-laws marrying. In England and Wales, the
decision on A v. UK was addressed in section 58 of the Children
Act 2004 and the provisions relating to prohibitive degrees of marriage
identified in the B and L v. UK case are being repealed by way
of a remedial order under the Human Rights Act
1998. There are two
really big issues in the order—that of the defence of reasonable
chastisement and its applicability to Northern Ireland, and that of
marriage between individuals and their former children-in-law. Both
articles are a vital step forward for us to keep similar arrangements
to those in England and Wales and also to ensure that we are as
responsive to our human rights obligations as I am sure the Committee
would wish us to be. Accordingly, I commend the order to the Committee
and I will be happy to respond to
questions. 2.42
pm
Mr.
Robertson: The order reaches into the past almost entirely
with regard to amending other Acts. The main one is the Offences
against the Person Act 1861. I know that legislation in England and
Wales amended that Act, too. It uses old-fashioned language and I am
not entirely sure that it makes for good legislation to amend it in
this way. Section 43, the section relating to battery of a child,
states: “When
any Person shall be charged before Two Justices of the Peace with an
Assault or Battery upon any Male Child whose Age shall not in the
Opinion of such Justices exceed Fourteen Years, or upon any
Female”. There seems to
be a difference between the treatment of males and females. Section 47
states that a person convicted of
an “Assault
occasioning actual bodily Harm shall be liable, at the Discretion of
the Court, to be kept in Penal Servitude for the Term of Three Years or
to be imprisoned for any Term not exceeding Two Years, with or without
Hard Labour”. The words
are old fashioned and it is not helpful to have an order that refers
back to such
legislation. On the
issues themselves, I start with the easier of the two. I have no
problem with the provision on marriage between certain persons related
by affinity, nor with the corresponding provision for civil
partnerships. Even though I voted against the concept of civil
partnerships in the House, I can see the need to have consistency. The
difficult provision is the one that deals with the physical punishment
of children. The Minister accepted that there was perhaps some
difficulty with that, although his main point was about consistency.
However, he accepted that it was controversial.
No one in the House wants
grievous bodily harm inflicted on children. However, when I voted on
the issue for England and Wales, my difficulty was that we also need to
avoid the position whereby parents cannot do their job effectively.
Sometimes—not always, of course—a child will get bruised,
perhaps on his arm or
chest, while being restrained. That might have happened at school,
although I believe that it cannot now. That is causing some
difficulty. The last
thing that I want is for children to be empowered to such a degree that
they know their “rights”, and that is placed over and
above their parents’ ability to control them and bring them up
in a reasonable way. As I said at the outset, I certainly do not
believe in “battering” children, to use one of the words
of the 1861 Act, but we live in a society in which there is breakdown
of law and order and of respect for authority, and that problem starts
in the home. I am caught between two emotions: I do not want to sound
like some Victorian bigot, but I am conscious of the way in which
society is going with regard to discipline, and I do not like
it. To be quite
honest, I come to this Committee having voted against the proposal on
the Floor of the House, but I am prepared to listen to what the
Minister and other hon. Members have to say. Reading through the old
Act, it is difficult to object to what the Government are proposing,
but what worries me is what is behind those proposals, and how they
will be interpreted in the courts and by social workers. I have been
the chairman of governors of a primary school, and I have seen children
taken away from their parents when the social worker had absolutely no
right to be involved. I have also been in classrooms where, if I had
taken any member of this Committee into one of them and said,
“Look at those 30 children and tell me which one is being
abused,” every single Member would have said,
“It’s that girl there.” It was so obvious, yet
nothing was done. I have a great concern about how laws relating to
children are
interpreted. I think
that I have made my point. I want to hear what other members of the
Committee have to say, and I look forward to hearing the
Minister’s
response. 2.48
pm Mark
Durkan (Foyle) (SDLP): I am not a member of the Committee,
but I was Minister with responsibility for law reform, which came under
the Department of Finance and Personnel, during devolution. When I was
Minister, the Executive had to engage in a public consultation on the
law on physical punishment of children arising from the very European
court case to which the Minister referred. As the Minister who launched
that consultation exercise, I can say that we deliberately designed the
consultation exercise to engage in a direct way with children,
including very young children. I am disappointed that the upshot of the
whole exercise is that the law in Northern Ireland will simply
replicate section 58 of the Children Act 2004, the law in England and
Wales. That is not to
say that the only outcome of the consultation should have been a
decision to go for an explicit and overt ban on any sort of physical
punishment, including smacking. However, it would have been better
simply to remove the defence of reasonable chastisement, instead of
allowing the more selective qualification of the defence of reasonable
chastisement, which is what is in the order. One could question whether
the law in England and Wales should
be as it is, but even if one accepts it, there are good reasons why it
should be different in Northern Ireland, not least because there are
different equality standards in Northern Ireland, going back to section
75 of the Northern Ireland Act 1998. As a result of the legal
provisions in the order, children in Northern Ireland will not have the
same protection against common assault as adults. We spoke to children during the
consultation exercise in 2001-02. To its credit, the Office of Law
Reform developed some highly innovative material for engaging with
children, including very young children. During debates in youth
parliaments and schools, the big issue that came forward, particularly
from teenagers, was the idea that they should have the same defence
against common assault as adults. If an adult suffers a common assault,
the perpetrator cannot use the defence of reasonable chastisement. A
child can suffer common assault. Under this legislation, however, a
child could suffer treatment and injuries amounting to common assault,
and the defence of reasonable chastisement could still be
used. The Good Friday
agreement and section 75 of the 1998 Act promised people proper
equality regardless of age. We are failing that promise. I think that
the proposal to transplant English and Welsh legislation to Northern
Ireland breaches the Department of Finance and Personnel’s
equality scheme, which was put in place at the time of devolution when
I was a Minister in that Department. That proposal should have been
consulted on because it amounts to differential treatment of people on
the grounds of age. There was no such consultation and, as a result,
the Office of the Northern Ireland Commissioner for Children and Young
People and a number of non-governmental organisations have submitted
challenges. I have much sympathy for those
challenges. When we
launched the consultation exercise, many people questioned why we were
consulting children, including very young children. People said,
“Well, you know what they will say”, but as any parent
will explain, no one actually does know. The significant thing that I
took from the consultation exercise was not only the degree to which
children were able to convey just how hurt and humiliated they would be
by physical punishment, but the fact that they understood that in
different circumstances, different treatment and actions by parents
were warranted and understandable.
The hon. Member for Tewkesbury
(Mr. Robertson) made the point about restraint as opposed to
punishment. The children understood fully the sorts of immediate and
preventive interventions necessary physically to restrain a child to
prevent them from doing harm to themselves or to somebody else. They
could see the difference. At times, politicians, and certainly many in
the media who debate such issues, do not show the same subtlety and
understanding as the young people with whom we exceptionally
consulted. We have
heard people argue that children’s rights have been put above
parental responsibility. The best approach is to view children’s
rights and parental responsibility as two sides of the same family
values’ coin. Obviously, children need effective discipline as
part of the caring and nurturing owed to them, if they are to enjoy a
safe and happy childhood, fulfil their potential and grow into well
adjusted, responsible
adults. Certainly, we do not want the law to persecute or prosecute
parents providing effective discipline. We would not want them to be
subject to prosecution for fairly trivial contact with their
children. The
Government are erring on the wrong side by removing the defence of
reasonable chastisement only in cases of grave and gross physical
impact. The defence should be more tightly circumscribed and could have
been removed altogether. The order fails the clear wishes shown by
young people in the consultation exercise and the promise that was made
in the 1998 Act. The Department of Finance and Personnel is in
breach of its own equality scheme, particularly its policy
screening standards. I therefore ask the Government to consider the
matter again. I have
no views on the order’s provisions on marriage. I am not sure
which soap opera would have a storyline on the type of instance that
the change will deal with, so I have no strong feelings one way or the
other. I know that
some people do have strong feelings and are disappointed that, after so
many years and an initial consultation that promised a thoughtful and
considered step, the Government have simply transplanted English and
Welsh legislation to Northern Ireland in circumstances in which it is
not wanted or
warranted. 2.56
pm Mr.
Nigel Dodds (Belfast, North) (DUP): I served as a Minister
at the same time as the hon. Gentleman and I remember well the launch
of the consultation document. While he rightly mentioned the response
of children and young people, my understanding is that across the
spectrum of the community in Northern Ireland there were similar
feelings to those expressed when the subject was debated in England and
Wales and came before the House.
There must be balance. There
will obviously be a view among many young people and children that
under no circumstances should there be a possibility of physical
chastisement. However, when parents and most sensible people are asked
to form a view, they say that while nobody condones physical abuse,
there must be some leeway in the law to allow the sensible application
of appropriate chastisement. That might sometimes mean physical
chastisement, but done in a common-sense way that is not intended to
inflict serious pain or damage on children. Most ordinary people, and
certainly most parents, understand the difference between the serious,
damaging type of assault that can be inflicted from time to time, which
must be condemned and on which action must be taken, and reasonable,
appropriate chastisement. In the community in Northern Ireland, there
is broad understanding that we need a balanced, sensible
approach. I shall make
a couple of basic points on process before returning to the detailed
issues. The short order highlights two important constitutional issues
relating to our democratic processes and how legislation is
implemented, not only in Northern Ireland but in the UK as a whole. The
first follows on from the point of order rightly raised by the hon.
Member for Tewkesbury about the Order in Council procedure.
There is no doubt that chastisement, and in
particular section 58, received detailed consideration when it was
debated in the House in relation to England and Wales. The issue is not
just the number of hours of debate available, to which the Minister
referred, but the ability to table amendments and to probe. Not all
amendments are pressed to a division, but they can be used to tease out
issues and explore them. That is something that we cannot do in an
Order-in-Council procedure, so we are left with a take-it-or-leave-it
piece of legislation, which is unfortunate and, in this case,
unnecessary. It
is a well-rehearsed argument to cite the Northern Ireland Assembly, and
I can almost envisage the Minister’s response, but I should like
to pre-empt him by saying that we naturally want to see devolution,
with the Assembly up and running. However, if the Minister really wants
to get local politicians into a local assembly would it not make far
more sense to encourage that by giving local politicians the
opportunity to legislate when we are in a position to do so? The
current law in these areas means that I do not think that the
Government have to legislate at present, and for them to continue doing
so is a disincentive. There is an increasing view, among colleagues and
others to whom I talk, that—particularly given the passing today
of the education order—most decisions will have been taken by
the time of devolution. On the one hand the Government tell us that 24
November is a deadline, that there is no excuse for delay, and that we
must get on with the job, and yet at the same time they seem to be
rushing ahead taking all sorts of decisions that they could well leave
for local
politicians. The Bill
dealing with children could have been left to the Assembly. Had it been
felt otherwise, then perhaps the Government should have considered
whether the provisions of the main Bill should have been made
applicable to Northern Ireland when it was going through the House.
Many of us who represent Northern Ireland constituencies fail to
understand why, sometimes, when there is a Bill that applies certain
provisions and that will clearly necessitate a Northern Ireland order
in due course for the purpose of replicating those provisions, there is
not a provision in the Bill which extends it to Northern Ireland, so
that a full debate could take place and so that amendments could be
tabled.
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