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Lord Tope: It is a privilege for me to be able follow the noble Baroness, Lady David, on this subject. In my comparatively short time in your Lordships' House I have seen how she has campaigned tirelessly on this issue. I know that she has been campaigning for many years before I came here. In that sense I am very pleased and very proud to be able to follow her in this debate. I am sure that she will understand that it is a privilege that I hoped very much I would not have. During the Second Reading debate on the Bill I commented that I hoped that we had heard the end of the issue of corporal punishment when it had been determined in the other place. When I said that there were murmurs of agreement around your Lordships' House. If I remember rightly, in her reply the Minister echoed my sentiments although I am sure that she was speaking solely in a personal capacity.
So I was surprised and very disappointed to find at the last possible moment in the Committee stage of this Bill that the noble Baroness, Lady Blatch, the Opposition education spokesperson, had tabled this amendment. I do not know why she waited until the last possible moment and I do not propose to speculate on that today. She mentioned that it was the second largest issue in her postbag. That must say something for the noble Baroness, Lady Blatch, and for the image that her party still has because I have not had a single letter on this subject until today. The letters I have received expressed the horror and alarm that I feel that we are again debating this issue.
I am astonished that the Conservative Party education spokesperson in this House should table this amendment. I do not understand how that fits into the image of the modern Conservative Party which her leader is apparently so keen to promote. Much has been said about public opinion outside this House. I believe when it is heard that the Conservative Party has chosen at the last minute to reintroduce this issue determined overwhelmingly in another place, it will agree that is different from taking a view when the issue was first introduced in the other place.
Lord Tope: I believe I referred specifically to last Friday and not to yesterday. Nevertheless, it is at the last minute. I am not going to enter into an argument with the noble Baroness as to why and when she did what she did. Of course it is a free vote. I should say--although I thought it was unnecessary--that it is a free vote for my party as it always is on an issue of this kind and that is as it should be.
I still express astonishment that the Conservative Party should wish to project this image. That is a matter for that party and I care very little about it, but I care quite a lot about the reputation of your Lordships' House. Were this amendment to be accepted today, I cannot believe that we would be doing anything to enhance the reputation of this House or to suggest that we were ready to face the 21st century and not to be still steeped in the 19th century as some people mistakenly believe.
The noble Baroness, Lady David, made all the right points in opposition to the amendment. I agree with her that the Independent Schools Joint Council, which represents 80 per cent. of the independent schools, was very clear and unequivocal in its support of the successful amendment in the other place. It is a point of interest to me that Ian Beer, the chairman of that organisation, whom the noble Baroness, Lady David, mentioned, and I went to the same school and, I imagine, a few years before me. He suffered--if that is the right word--the same regime as I did. I am interested that he now takes the same view.
The noble Baroness, Lady Blatch, made reference to the issue of human rights and the legal position. It seems to me that that was something of a perversion of a view of human rights. I am enormously encouraged that I have sitting behind me my noble friend Lord Lester of Herne Hill who is an acknowledged expert and authority on such matters. I know that he intends to speak shortly. I am sure that he will have something very important and wise to say on the issue. I would not presume to dwell further on it in his presence.
Not surprisingly, all the child care organisations oppose corporal punishment. The noble Baroness, Lady David, has referred to various commissions including the one chaired by the noble Lord, Lord Williams of Mostyn. They have all come out against corporal punishment. We are the only country in Europe which still condones corporal punishment. There are many things about the uniqueness of Britain which should make us very proud, but corporal punishment is not one of them.
The noble Baroness spoke about the need for fair and firm discipline. I do not believe that any of us would argue with that as a statement. But to suggest that firm discipline means hitting small children--or even large ones for that matter--with a cane (that is corporal punishment) is a view that is rejected overwhelmingly by teachers, child care professionals and by most other informed opinion on the subject.
Discipline in the home was mentioned. I hope that we shall not be distracted by that debate. It is entirely outside the scope of this Bill. I have a view on it, as I am sure all Members of the Committee have. It is not the issue that we are talking about here. Needless to say, I shall oppose this amendment most strongly. I deeply regret that it has been introduced into your Lordships' House. On a free vote the other place determined the issue and, I hoped, once and for all. There was an overwhelming vote of 211 to only 15. I had hoped that that was the last word, but clearly it was not. I hope that this afternoon this House will show that we are ready to move into the 21st century and that we will have the last word on this issue by rejecting this amendment at least as overwhelmingly as in the other place.
Lord Wilberforce: I rise as calmly and dispassionately as one can to support the amendment proposed by the noble Baroness, Lady Blatch. As the Committee will have seen from the Marshalled List, I put my name to oppose the Question that this clause stand part of the Bill. I was motivated to do that by a sense of considerable disquiet as to the legislative process which has taken place on this matter. I need not go into it at length because Members of the Committee know quite well what happened. We have a very elaborate and important Bill which we are now considering. It was put forward by the Government without any mention whatever of corporal punishment. At a very late stage; namely, five o'clock in the morning, at the instance of a Member, two clauses were put in, of which this is one, dealing with this matter. It was voted on in a free vote.
I felt that such a process in relation to a matter of civil liberties, importantly affecting the rights of parents and schools, should receive further consideration, at any rate in this House. I was very much disturbed that until last Thursday, I believe it was, although we had had six days in Committee and about 300 amendments, no mention appeared to have been made of this important subject. Therefore I was very much relieved when the noble Lady, Baroness Blatch, tabled this amendment enabling us to discuss this problem calmly and dispassionately as we ought.
No more than the noble Baroness am I arguing in favour of corporal punishment or against it. I am completely agnostic on the subject and so I should be. Between the age of six and 17 I attended no fewer than six independent schools and at five of those there was some degree of corporal punishment, ranging right down the scale from a slap on the wrist from a woman teacher to what I may call the "full Monty" meaning thereby one administered by Monty Rendall, our headmaster.
Those experiences led me to realise that what matters in schools is the disciplinary ethos--some call it the disciplinary code--which exists and which is built up by agreement between the headmaster or headteacher, the board of governors and above all, the parents. It may or may not contain an element of corporal punishment. My position--I believe that I am in agreement with the noble Baroness on this--is that, as a matter of freedom, we ought not interfere with that sort of bargain of choice, freely made, unless there is some manifest public interest which requires to be safeguarded.
We all agree that children have to be protected from abuse. That is an overriding consideration. However, let us consider the position. We are not arguing here about ritualistic flogging. I know that that phrase creeps in from time to time; it did in the other place. We are not arguing about that; we are arguing about reasonable measures of correction or, as they are called in Australia, reasonable measures of chastisement.
The child is well protected by the common law under the law of battery. As your Lordships know, "battery" is widely interpreted even to go beyond physical contact. The child will now also protected by the Human Rights Bill 1998, which makes the European Convention on Human Rights part of our law. Article 3 of that convention prohibits inhuman and degrading punishment. Your Lordships have already been told by the noble Baroness--I believe this to be correct--that the European Court of Human Rights in Strasbourg has so far been cautious about what it says in relation to corporal punishment in schools. The noble Lord, Lord Lester of Herne Hill, will correct any imbalance in that statement. I believe it to be correct that the court has left open the question of whether corporal punishment in schools should be prohibited. It depends on the circumstances. Those considerations are reflected in the amendment of the noble Baroness. I refer to the case of Costello-Roberts in 1993.
What is the scale of the problem with which we are dealing? It is a very small-scale problem. Many of the larger schools--I mention in correct order, Winchester, Eton and Harrow--have already disposed of it, as have others. We were told by speakers in the other place that fewer than 200 private schools have some measure of corporal punishment. There is no evidence of any scandal or excess. No research has been carried out into what is done in those schools and what effect it has. There is no perceived demand for the abolition of corporal punishment in those schools.
One other consideration has already been mentioned. I refer to the relationship between corporal punishment in schools and in the home. I know that the noble Lord, Lord Tope, says that that has nothing to do with this case, but the two situations are closely related. Once one begins to attempt to legislate about punishment in schools, one runs up against the question of what is going to happen in the home. If, in the home, it is legitimate to give reasonable and moderate
That point was perfectly well perceived in the discussions in the other place where opinions were expressed, which I think have been quoted, that the original clause--it was then Clause 21--would create difficulties and a dangerous thin end of the wedge in relation to the situation in the home. Therefore, at the very last moment, at about 6 a.m., Clause 23--it is now Clause 121--was substituted for the original clause; namely, Clause 21.
However, the matter does not stop there. We are again running into difficulties with the European Court of Human Rights. I understand that a case is before it at the moment of corporal punishment in the home involving a step-father who caned his boy on the legs with a cane. I understand that judgment may be given in the course of next week. If that were to be so, the Government would have at least to consider adjusting the law in this country. I respectfully ask whether it would not be wiser to leave the matter for consideration until we know what the European Court has to say, when we can then consider with greater calm and detachment and away from the difficulties of this Bill the whole question of control and discipline in the home and its relation to a small number of independent schools. I support the attempt of the noble Baroness to regulate the situation in a calm and moderate way and in accordance with the European convention. I hope that her amendment will be carried.
Perhaps I may draw attention finally to two good points about the amendment. First, it contains definitions of both "corporal punishment" and of "lawful corporal punishment". Those are helpful. Secondly, the amendment refers to the reasons why corporal punishment may be administered in certain circumstances, taken pretty well directly from the judgment of the court in the case of Costello-Roberts. I support the amendment.
Lord Annan: I am extremely sorry to be in disagreement with the noble and learned Lord, Lord Wilberforce, whose words of wisdom I have always admired enormously. The noble and learned Lord said that we are not talking about ritual punishment. All corporal punishment in a school inevitably becomes ritualised. Curious tremors go through a school when corporal punishment is to be administered.
I must ask the noble Baroness what she means by "lawful corporal punishment". Does the noble Baroness favour the tawse, the riding crop, the cane or perhaps the birch, which used to be a great cry from the women at Conservative Party conferences long ago? Does the noble Baroness favour the mode of punishment that I remember from my own prep school, which was administered by what was called "Punishment Bat No. 1" on sale at Harrods? We must have some response on this matter. The noble and learned Lord, Lord Wilberforce, said that "corporal punishment" is defined in the amendment, but it does not seem to me to be defined at all. I should like an answer to that question.
I turn now to subsection (2)(b) and to the position of two pupils committing an offence. Of course, we have had this discussion before in the debate on, I believe, the 1996 Bill. What happens if two pupils commit an offence and one, by his parents' permission, is soundly caned while the other who is "an assisted pupil" is therefore not allowed to submit to corporal punishment? Is that a fair way of dealing with the two children? The second child will no doubt be punished by many hours of physical drill or detention, but is that really fair? What if the assisted pupil is so disgusted by the unfair differentiation that he or she insists that he or she suffers the fate of the fellow delinquent? Note that I say "he or she". Nothing in this amendment differentiates between boys and girls. Will girls be subjected to corporal punishment? Under many recent Acts that have been passed to outlaw discrimination of any kind, that will happen. Who is to administer the punishment to the girls? Will it be administered by a male member of staff? That is perfectly possible within the terms of this amendment. The sexual implications of that have not been made clear, and I hope that they will not escape the attention of the Committee.
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