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Standing Committee Debates

Draft Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006

The Committee consisted of the following Members:

Chairman: Hywel Williams
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 Legislation

Wednesday 5 July 2006

[Hywel Williams in the Chair]

Draft Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006

2.30 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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