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Ed Balls: I hesitate to ask, but does the hon. Gentleman recall whether he voted for or against the 1996 Act? Will he take this opportunity to withdraw the charge that the current provision was driven by a human rights agenda-or does he believe that that agenda had already gripped the Conservative Government back in 1996?
Mr. Cash: The fact that the Human Rights Act was not passed until 1998 would not have prevented somebody from making a judgment based on the European convention on human rights in a case of the sort that I shall describe, because such a case could have gone to the Strasbourg Court. The fact that the Education Act was passed in 1996 not in 1998 does not matter that much, as the ECHR is the essence of the 1998 Act and the rule of incompatibility means that our legislation can be overridden.
This debate goes back to a very important case in the Isle of Man that involved the use of the birch. I am not in favour of that by any means, as I regard the birch as completely unacceptable. What I seek is to determine is whether there is any kind of reasonable physical punishment that falls short of what we would all regard as unacceptable, or whether there is an absolute and total bar on any form of punishment that is physical, as opposed to one that revolves around the writing of lines, exclusion and so on.
I am asking these questions more to invite discussion than to seek a decision. The Singleton review has been referred to, and I hope that it will throw more light on the matter. However, we are in Committee and we have a responsibility to consider-
Madam Deputy Speaker (Sylvia Heal): Order. May I remind the hon. Gentleman that we are not in Committee but on Report?
Mr. Cash: I understand that entirely, Madam Deputy Speaker. However, the right hon. Gentleman is the Secretary of State with responsibility for education, and it is essential that we have proper discipline in schools. From the remarks that he has made from the Front Bench, and from the vicarious comments, it is clear that he would rule out any kind of physical punishment, under any circumstances whatsoever.
My own Front-Bench spokesmen might disagree with me on this matter-if so, it would not be for the first time-but I am inviting the Secretary of State to consider, in his reply, whether there is an absolute ban on physical punishment in schools. For example, if a school was under siege by very violent pupils, is there absolutely no question about the fact that no form of physical punishment could be used by teachers? My question has to do not with the ECHR, but with what is needed in the interests of school discipline.
It has become extremely unfashionable to suggest that there should be some form of physical retribution, and no one discusses whether that might be necessary. By the sound of it, the matter is an absolute for the Secretary of State, as it is for those who subscribe to the ECHR. In my view, however, it is important to have a proper and rational discussion of the question.
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The legal analysis to which I referred earlier also says that
"any injury sustained by a child which is serious enough to warrant a charge of assault occasioning actual bodily harm cannot be considered to be as the result of reasonable punishment.
Section 58 and the amended Charging Standard mean that for any injury to a child caused by a parent or person acting in loco parentis which amounts to more than a temporary reddening of the skin, and where the injury is more that transient and trifling, the defence of reasonable punishment is not available."
In other words, reasonable punishment is permitted under the law and the prohibition against it is not absolute. That is strange, as I had rather gathered from the Secretary of State's remarks that there was an absolute prohibition, yet the analysis that I have just referred to makes it clear that there are circumstances in which the law allows those in loco parentis to use reasonable punishment.
The question then arises: should that legal principle be applied in schools? That is the issue. I should be very interested to know whether the Secretary of State is prepared to go down that route, and whether he has any idea of what the Singleton report will propose.
Angela Watkinson (Upminster) (Con): Does my hon. Friend acknowledge that school teachers are sometimes in loco parentis? For example, when a pupil is violent towards a teacher, that teacher must defend himself or herself, and restrain the pupil, without using any physical admonishment at all. That is a very difficult line to tread.
Mr. Cash: That is exactly my point. I entirely agree that teachers are in a difficult position, and that it is easy to have a knee-jerk reaction either way. On the one hand, we can say that there must be absolutely no physical punishment of any description; on the other, however, we have to accept that there can be circumstances when it is impossible for a specific child in a specific classroom to be treated in that way.
Mrs. Cryer: The hon. Gentleman is clearly very knowledgeable on this subject. Has he done a great deal of research? Is so, will he tell the House how often the defence of reasonable punishment has been used in court?
Mr. Cash: It has been used in a great number of cases. As I said earlier, many of them turned on the application of the European convention on human rights through the European Court of Human Rights. One interesting case involved a person accused of engaging in unreasonable behaviour vis-à-vis a child. The jury acquitted the person in question, but the case was then overridden by the European Court on the grounds of human rights.
I find this a very difficult issue. A jury in a criminal case might conclude, on the basis of the evidence given, that the accused should be acquitted. However, when the case is referred to the European Court, that Court can say that it does not care about a decision made under English or UK law. The European Court can say, "We have our principles and we're going to apply them, irrespective of other law." In effect, it can override our criminal law, and I find that very difficult to accept.
What has happened since-this is obviously part and parcel of the proposed amendments to the Children Act 2004 as well-is that the Government have made an assessment of the extent to which, as an absolute rule, there must be no infliction of any physical punishment at all, whether reasonable or not. It appears that that prohibition applies even when the punishment causes a mere reddening of the skin and is permissible according to the legal analysis to which I referred earlier.
Against that background, therefore, I am interested in whether there is an absolute prohibition simply because it is prescribed under the arrangements for the European convention on human rights, which has effectively created a complete prohibition, overriding jury decisions in criminal trials, for example; whether it is-to use an expression that comes up in this context-a matter of philosophical attitude, which is another thing and is discussed at some length in the research materials that have been provided; or whether it is just a knee-jerk reaction, without reference to the impact on the class, the other pupils in the school or the teachers, and without reference to whether there is violence against the teacher or against other children in the class.
In other words, what is the principle that determines whether a perfectly reasonable form of punishment, which is allowed in loco parentis, should be denied in the classroom? That is the question that needs to be properly discussed. I have a feeling, although I might be wrong, that the Secretary of State has taken an absolutist position based on the research materials, which refer to philosophical attitudes and so on. That may be unrealistic.
So we-I and those who think along similar lines-are not anxious to permit any unreasonable punishment, but where it is a legitimate course of action in loco parentis, I am searching for an answer to the question why it is allowed in those circumstances, but not allowed in circumstances where there is violence in the classroom, even against the teacher himself or herself. Why should teachers be denied the opportunity to carry out reasonable punishment of the same kind as a person in loco parentis? That is what I think is important.
New clause 10 proposes as a criterion:
"Only a person with parental responsibility for a child within the meaning of section 3 of the Children Act 1989 can justify battery of the child on the ground that it constituted reasonable punishment."
Ironically, although the hon. Member for Mid-Dorset and North Poole seemed to be arguing the contrary, the fact is that her own new clause, within the framework of section 58 of the Children Act 2004, admits that a person with parental responsibility for a child can justify battery on the ground that it constituted reasonable punishment. I invite the Secretary of State to respond. He has his own version of events, but the Singleton review will be definitive.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): I refer to the exchange between my hon. Friend and the Secretary of State on the 1996 Act. That was predated by the United Nations convention on the rights of the child, which was signed, I believe, by Lynda Chalker on behalf of a Conservative Government. The convention imposes severe constraints on the punishment of children, and from that flowed the consequences that the Secretary of State mentioned in the Act that followed. The concept of reasonable chastisement has been in our common law and understood in our legislation for a long time, and the European Court of Human Rights can and does apply United Nations treaties on these matters when developing its own case law. That is where the confusion, if there were any confusion between the Secretary of State and my hon. Friend, might have arisen.
Mr. Cash: That was a very helpful intervention.
Ed Balls: I hope there is no confusion. If the hon. Gentleman could clarify that there is no confusion, we would not be confused.
Mr. Cash: The Secretary of State is adopting the role of Confused.com and trying to arbitrate in the matter. The question boils down to this: the European convention on human rights and the United Nations convention on the rights of the child both contain, in effect, an evolving prohibition on any kind of physical punishment at all. That is the bottom line. I think I am right in saying that the hon. Member for Keighley (Mrs. Cryer) would agree with that. That is what she would want.
There are those who believe that in a school it is necessary sometimes, in certain circumstances, for some degree of physical punishment to be available but not necessarily used, and perhaps then only as a last resort-I would say definitely as a last resort-to enable the balance of discipline within that school to be maintained. Certain children are so unruly and so violent in their behaviour towards the teachers and others in the classroom that some form of physical punishment may be necessary.
I appreciate that this is a very difficult subject. It will be carefully observed that I am not making a categorical statement, because I have great sympathy with those who would want to keep punishment under severe control, but I pose the question. I hope that when the Bill gets to the House of Lords, if it ever does, it will be considered against the background of the Singleton letter plus the review, and in the light of the sort of considerations that I have raised.
The situation is nothing like as black and white as the Secretary of State or, if I may say so, the hon. Members for Keighley and for Mid-Dorset and North Poole may have thought. There are important questions of balance to be resolved in the interests of the child. Some children need boundaries. That is part of the problem. If they have boundaries, they know where they are.
It is interesting to note that one of the most distinguished judges who has adjudicated on these questions-I think it was Sir Gerald Fitzmaurice-explained with great candour, from his own experience in a court case, why he believed that it was important to strike the balance properly: that there is not an absolute, that children are different, and that some children need different boundaries. Those of us who abhor the idea of inhumane or degrading treatment in the common-sense understanding of that expression might also take the view that there is a balance to be struck.
Mrs. Cryer: Yes, boundaries have to be established with children, but does not the hon. Gentleman understand that those boundaries must be established by parents, not teachers?
Mr. Cash:
The problem that the hon. Lady poses is that there are circumstances in the real world where there is a difference in the meaning of the words "in loco parentis" in the home environment or in an environment outside school. For the purposes of society in general, and also for the conduct of the school and the discipline within it, it is not a distinction that can easily be made. If the object of the exercise is to ensure that there is a proper balance of behaviour in the interests of society as a whole, including in schools, one cannot simply say that because it is a school, there can be no reasonable physical punishment whatever, but
there can be in loco parentis. I could spend some time, although I shall not, on the very wide definition of "in loco parentis". There are many people who would fall into categories not very different from schools. That may be the loophole to which the hon. Member for Mid-Dorset and North Poole was referring.
Angela Watkinson: Further to the comments of the hon. Member for Keighley (Mrs. Cryer), is it not a sad fact that the children who are most likely to exhibit extreme antisocial and unco-operative behaviour in school are those who have not had the benefit of good parenting at home and not been set good examples or taught how to behave in a socially acceptable way? It is extremely challenging for teachers to contain such children so that they do not interrupt the education of others.
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Mr. Cash: I agree. I concede that this is a difficult area, but it is important that we do not lock ourselves into a situation whereby we apply an absolute principle based on the so-called philosophical attitude. There are moral questions that depend on the manner in which, for example, a school can and should be run in the interests of all the people in that school, including all the children in a class and the teachers themselves. There is a balance to be struck. That is what I am arguing for, and part of the purpose of our debates in the House is to try to draw attention to the fact that balances need to be struck.
I have sympathy with and great respect for the hon. Member for Keighley, but I rather get the impression that she takes an absolute position. I do not, and I am searching for, and believe that there should be, a reasonable parameter. We should bear in mind that from 1860 to 2004 the situation was, subject to evolving circumstances, much less difficult than it is now. New clause 10 would make the situation more confusing, and I hope that the Secretary of State's response will be a revelation. However, I do not think that it will avoid the existing problem with getting the balance right between violent children on the one hand and the need for discipline in schools on the other.
Violent children use very harsh physical punishment on teachers and on other children in school, and the question remains to be resolved of whether in the interests of discipline it is necessary to apply, in the last resort, a degree of physical punishment in certain circumstances to such violent children in school. In the interests of discipline in schools and good order in society, I am interested in, and shall listen carefully to, what the Secretary of State has to say. There is nothing absolute about our position; I wait to see whether there is anything absolute about his.
Joan Walley (Stoke-on-Trent, North) (Lab): You will be pleased to know, Madam Deputy Speaker, that I shall not detain the House for long with the few comments that I wish to make. This far-reaching debate has come a long way from its starting point, when the hon. Member for East Worthing and Shoreham (Tim Loughton) seemed to tell us that we should substitute our discussion about the functions of the local safeguarding children boards with the concern that they should concentrate only on serious case reviews.
I want to flag up to my right hon. Friend the Secretary of State the importance that I attach to the many functions of the local safeguarding children boards, to the need to have proper resources to train the people who are affected by those boards and, particularly, to the need to have resources in schools to ensure that all teaching staff are properly inducted. I include temporary agency staff in that, because there is a lot of reliance in schools on such teachers, and I urge my right hon. Friend to comment on the national talks that he is conducting with the NASUWT.
There are also employment and disclosure of information issues. The Independent Safeguarding Authority, with its new remit, must make its decisions in close consultation with the teaching unions, and we must ensure that temporary supply teachers are properly and thoroughly inducted into the way in which schools go about their responsibilities to implement the functions that we are discussing under this group of proposed changes.
Ed Balls: This has been a full and substantive debate, covering a wide range of issues. On the spirit of the debate, may I say that the contributions of all speakers have been thorough, measured and important? Over the past year there have been times when I have regretted the partisan and political tone that has crept into the issue of safeguarding, but it has not done so today, so I shall respond fully to all the points that have been made. If this is what the Public Bill Committee was like, it must have been most enjoyable to be a member. The Schools Minister has told me many times that he would have liked to have spent more days in Committee, but, sadly, that opportunity has passed him by.
I shall try to respond as quickly as I can, because we want to discuss family courts and transparency and, in the time that is available, we hope to address important issues, such as home education, too. With your permission, Madam Deputy Speaker, let me briefly address the issue of smacking and new clause 10 before moving on to the safeguarding issues that have been raised today.
The hon. Member for East Worthing and Shoreham (Tim Loughton) said that debates about a children's Bill are almost always hijacked. Until about 40 minutes ago, we thought that we had avoided that fate, but no: there has been a hijacking by the hon. Member for Stone (Mr. Cash), although it felt like he was hijacking his Front Benchers, rather than ours. I am happy to give the hon. Member for East Worthing and Shoreham the opportunity to clarify that Conservative Front Benchers do not propose to repeal the Education Act 1996 and re-introduce corporal punishment in schools. To be honest, I do not need to ask, because no one takes that position. However, in response to the hon. Member for Stone, I shall clarify the situation and then respond to the hon. Member for Mid-Dorset and North Poole (Annette Brooke) and my hon. Friend the Member for Keighley (Mrs. Cryer).
The position in law is that a teacher in a maintained school can use reasonable force to protect their own safety or that of a child or young person in order to separate a fight. There is no prohibition on the use of force in those particular and prescribed circumstances, but the 1996 Act is clear that the use of force for punishment in full-time maintained schools and full-time independent schools is prohibited in law. Soon, part-time independent schools will be covered, too. It is illegal to use force for punishment, as opposed to protection.
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