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Lord Lester of Herne Hill: My Lords, I am glad to speak in support of the amendment, which also stands in my name on the Marshalled List. I am delighted to support the noble Baroness, Lady David, who has returned to a theme for which she has campaigned for some 15 years, to stamp out what is described on the Continent as le vice anglais--the English vice of institutional corporal punishment--to ensure that children in institutions providing early years care education are protected like everybody else.

I have a particular professional interest in that some years ago I represented Karen Warwick in her case against the United Kingdom before the European Commission of Human Rights, which ultimately led to a finding of a breach of Article 3 of the convention: the infliction of degrading corporal punishment on her, on that occasion in a state school.

The Minister has made it clear that it is the policy of the Government, as I am sure that he will make clear yet again in a few minutes, to prohibit corporal punishment in all state-funded education, including education provided in exchange for nursery education vouchers.

As the noble Baroness, Lady David, made clear in Committee and as the Minister confirmed on Report, day nurseries are fully publicly-funded. Playgroups also receive public funds. Yet, as I understand the position, under the Government's proposals, non-voucher-bearing children in those institutions will not be protected from corporal punishment.

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On Report at col. 245 my noble friend Lady Thomas of Walliswood asked the Minister whether he considered that there was a risk of the Government being in breach of the European Convention on Human Rights. His reply then was that he did not believe that the Government would be at risk in that respect. The Minister said:

    "We have always maintained that we will not have corporal punishment within publicly-funded education. It is still open and a number of schools may make use of corporal punishment in the non-maintained sector. That is a matter for them".
The Minister pointed out also that there is guidance in the Children Act 1989,

    "which does not support the use of corporal punishment but leaves the decision to individual institutions".--[Official Report, 9/7/96; col. 245.]

In my considered view, there is a real risk that the Government will eventually be held to be in breach of the European Convention on Human Rights unless this amendment is accepted as it stands or unless, at the very least, effective guidance is issued of the kind sought by the noble Baroness, Lady David, when the regulations are made, that corporal punishment should not be used in nursery education provided by a day nursery or by a playgroup receiving public funds.

In its judgment in the case brought by Mrs. Costello-Roberts against the United Kingdom in March 1993, a case concerning school discipline, a narrowly divided European Court of Human Rights decided by five votes to four that there had been no violation of Article 3 of the convention, the article forbidding inhuman or degrading treatment or punishment. The majority of the Court held, as I say by a wafer-thin majority, on the particular facts of the case, that the punishment had not reached the minimum threshold of severity required for a breach of that provision of the convention.

However, the Court pointed out that it had misgivings and said that it was not:

    "to be taken to approve in any way of the retention of corporal punishment as part of the disciplinary regime of a school".
In his concurring opinion, Judge Sir John Freeland, the British member of the Court, very significantly--and he had been the agent of the United Kingdom Government in many of the cases brought against them in Strasbourg--said,

    "it must be evident, if only from the divisions of opinion in the Court, that the case is at or near the borderline".
The Court agreed with Mrs. Costello-Roberts that the state cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals. It was observed that, although the treatment complained of was the act of a headmaster of an independent school, nevertheless, it was such as might engage the responsibilities of the United Kingdom under the convention if it proved to be incompatible with Article 3 or Article 8, dealing with lack of respect for private life, including a child's physical and moral integrity. For good measure, that view was supported by the dissenting minority led by the very distinguished president of the Court, Judge Rolv Ryssdal.

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In the wake of that judgment in the Costello-Roberts case, Parliament amended the Education (No. 2) Act 1986 to ensure that any remaining school using corporal punishment was not engaging in inhumane or degrading treatment. According to the department, as we have heard, it is the Government's policy to prohibit corporal punishment for all state-funded education. But unfortunately, the Government decided on grounds of parental choice that corporal punishment shall remain available for privately-funded pupils in independent schools.

The matter goes further than that. Not only do we have the benefit of the judgment of the European Court of Human Rights in Costello-Roberts, but the United Nations Committee on the Rights of the Child, in its concluding observations on the UK's initial report about measures taken to comply with the 1989 Convention on the Rights of the Child, had expressed concern at the continued legality of corporal punishment in the private sector.

Nor is that all because the very experienced and extremely authoritative Human Rights Committee which oversees the International Covenant on Civil and Political Rights, in its comments on the UK's fourth periodic report, recommended that:

    "corporal punishment administered to privately funded pupils in independent schools be abolished".

Therefore, it is clear that there is a gap in the current legal regime which gives the appearance that the Government really do, in the words of the noble Baroness, Lady David, condone the use of institutional corporal punishment for three and four year-old children if they are not voucher-supported children and if they are in the private sector.

If that is the position, I can only say that in my view, it is likely to lead to further breaches of the European convention and condemnation by the European Court, the UN Human Rights Committee and the UN Committee on the Rights of the Child, putting the UK in quite unnecessary and serious breach of its international obligations.

I should be most grateful if the Minister would make quite clear in his reply how exactly the Government consider that they are complying with their international legal obligations in each of those respects. It is not enough simply to say that the Government are satisfied that they are complying. Parliament needs to be told in exactly which respects and how they consider that there is compliance. How can it be compatible with the spirit and the letter of the judgment in Costello-Roberts that non-voucher-bearing children will remain unprotected against corporal punishment?

Will the Government also agree to give at the very least guidance which makes it quite clear that they disapprove of the infliction of corporal punishment on non-voucher-supported children in the private sector of nursery education? As the European Court has made perfectly plain, the Government cannot simply pass the buck to private educational bodies. The Court has made it quite clear that the Government have positive obligations to protect pupils against corporal punishment in those circumstances.

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6.30 p.m.

Lord Henley: My Lords, on the Third Reading of a Bill relating to the funding of nursery education and the borrowing powers of grant-maintained schools, I do not think that it would be appropriate to launch into a long explanation as to why we believe that we are right in terms of our policies and why we feel that we are satisfying the requirements of the European convention.

As I said, the Bill relates to nursery education. As the noble Baroness, Lady David, expressed the matter, the intention behind her amendment is to ban corporal punishment for all children in voucher-redeeming institutions. I believe that I noted her words correctly.

As the noble Baroness will probably be aware, the amendment does not have that effect. Its effect, which is confined to nursery education, as defined by the Bill, can only cover those who would be receiving their funding under the Bill; that is, through vouchers. We cannot take the Bill further to cover the sort of settings which the noble Baroness would like to cover.

I know that the noble Baroness would like to see corporal punishment banned in all daycare and educational settings irrespective of whether state funding is involved. But, equally, she will know, as I made quite clear, that today's debate on corporal punishment must be limited to the scope of the Bill; that is, the prohibition of corporal punishment only in so far as it relates to children funded by nursery education vouchers. The Bill cannot go beyond that. Therefore, it would not be right for me at this stage--dare I say it--on a Third Reading debate to try to answer all the points made by a very distinguished lawyer. I respect the noble Lord's views, but I must tell him that the advice I receive from those who advise the Government is contrary to his. The advice is that we are satisfying the requirements of the European convention.

There is just one small point that I should like to raise with the noble Lord. It relates to the question of non-voucher paying children attending Children Act registered institutions, some of which are subsidised by local authorities. Is that not publicly funded provision? Some playgroups and day nurseries are subsidised by local authorities--usually by the local social services department. As such, the emphasis is very often on daycare provision rather than education. But, as I said before, the Children Act guidance does not support the use of corporal punishment; it leaves decisions about the use of corporal punishment where the child is not in receipt of state-funded education with the parent and the provider. I can go no further. I see that the noble Lord wishes to respond. I give way.

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