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Lord Wilberforce: Not "perfectly".
Lord Lester of Herne Hill: Certainly in the case of Karen it was far from perfect. The story of Karen could apply equally to any independent private school. She had been smoking outside the school premises. I think that she was 15. She was caned by a male deputy headmaster in the presence of another master. We took the case to Strasbourg and had no difficulty in showing that le vice anglais, as it is called by the rest of Europe--the vice that the English and Irish, unlike the rest of Europe, have enthusiastically and less enthusiastically indulged in for a long time--had led to her degrading punishment. As a result the government of the day had to settle the case. As we know, corporal punishment in state schools had eventually to be
abolished by Parliament in order to comply with Article 3 of the human rights convention which forbids inhuman or degrading treatment or punishment.Meanwhile the steady evolution of the European court's case law--the court of which the noble Lord, Lord Beloff, so disapproved but which has been so careful in gradually moving in this area--has made it clear that states have a positive obligation to protect children against inhuman or degrading treatment or punishment, whether in state or private schools.
In the early cases there was concern about freedom of choice. In cases where parents did not want their children to be subjected to corporal punishment, the court said that it was an interference with their freedom of choice not to be able to protect their children. But then the court became stronger and said in some of its cases that there would be breach of the guarantee against ill treatment in Article 3 of the convention. I have little doubt that quite soon the court will hold that corporal punishment in any circumstances except those provided for in Clause 121 of the Bill, where one is dealing with imminent threats to the person or property, is inherently degrading and in breach of Article 3.
My difficulty about the amendment tabled by the noble Baroness is this. Although I know that it is not the noble Baroness's intention, I believe that the amendment would authorise breaches of Article 3 of the convention; or at best be so confusing as to make it difficult to know what the law was. The noble and learned Lord, Lord Wilberforce, said that the amendment was agnostic. With respect, I do not think that that is right. It is not an agnostic amendment. It authorises corporal punishment in the circumstances set out in the amendment.
What is wrong with the provision in a nutshell is that it does not embody the criteria needed to guarantee against inhuman or degrading treatment or punishment. Perhaps I may explain. First, it does not refer to the nature and gravity of the pupil's misconduct. It does not refer to the proportionality of the punishment to the nature and gravity of the pupil's misconduct--a crucial principle being that the punishment must fit the crime. As the noble Lord, Lord Annan, pointed out, it does not refer to the gender or age of the pupil, and of the teacher inflicting the punishment. Under the amendment, it is perfectly possible to authorise Karen's example: a male teacher, perhaps in the presence of another male teacher, inflicting corporal punishment on a 15 year-old girl. And it assumes that corporal punishment is not inherently degrading. As I explained, I believe that it is; and I believe that the European Court will say so.
The noble Lord, Lord Skidelsky, asked how it is our business to give effect to international human rights guarantees to which we must give effect under international human rights law. What is the business of the state or the legislature in giving effect to those safeguards? The answer is, first, that there are universal human rights to which all civilised countries adhere and recognise, of which the prohibition on inhuman and degrading treatment or punishment is one of the most fundamental.
Secondly, the state has a positive obligation to protect its citizens, especially its children, against ill treatment. That is not paternalism, it is not a breach of the John Stuart Mill principles, it is simply a recognition that the state has a responsibility to protect against the ill treatment of children.
Thirdly, it does not matter whether 66 per cent. of the British people are or are not in favour of corporal punishment in schools. It does not matter because, I suggest, basic human rights and their protection do not depend on the outcome of elections or the determination of majoritarian beliefs. Furthermore, if the democratic branch of the legislature by an overwhelming vote--that is, the elected representatives of the people--find it possible on a free vote in accordance with their consciences to disregard the beliefs of the majority, it does not behove us, the unelected part of the legislature, to disregard that massive vote in another place and make ourselves look somewhat older than we are and somewhat more outmoded and ridiculous than we would like to be.
I do not criticise the noble Baroness for tabling the amendment. To that extent, I respectfully disagree with my noble friend Lord Tope. The noble Baroness is perfectly entitled to table the amendment and we have had a healthy debate. However, I very much hope that she will not press it to a vote, but that if she does the answer will be the same as in another place.
6 p.m.
Lord Monson: I am glad to support my noble and learned friend Lord Wilberforce and the noble Baroness, Lady Blatch. Clause 121, which was not in the Labour Party manifesto--and rightly so because it would have done it no good--is wholly illiberal in that it seeks to force progressive prejudices--or "trendy Leftist prejudices", to use a populist description--on those who in all sincerity and honesty take a different view. I am sure that the noble Lord, Lord Lester, will agree that we are not talking about inhuman treatment. No one advocates that. Nor are we talking about boys beating other boys, a practice which rightly disappeared a long time ago.
Why should not thoughtful and caring parents who want their children to receive fair but firm discipline--firmer than they would receive at a state school and which may involve in extremis corporal punishment administered by those in loco parentis (a point that has been forgotten all too often in the debate)--be allowed to continue to make that choice? We are not talking only about conventional public and prep schools, many of which have already abolished corporal punishment; we are talking also, for example, about private day schools with a strong religious influence catering largely for children of West Indian descent. As anyone with any knowledge of the Caribbean will confirm, discipline in schools in the English-speaking West Indies is as strict as it used to be in this country prior to the 1960s. Many West Indian parents know that their children thrive on such firm discipline and are prepared to make
considerable financial sacrifices to ensure that their children benefit from it. Once again, in a free country the choice should be theirs.
Lord Walton of Detchant: In many respects, I find the debate extremely distressing. It is extraordinary that one should hear arguments supporting the retention of a degrading and demeaning form of punishment if only because it is thought by some that the application of corporal punishment has a deterrent effect. Surely, that can be the only justification for proposing that it be retained in any sector of our educational establishment. Over the years, a great deal of evidence has accumulated to the effect that, for instance, capital punishment has no deterrent effect in relation to violent crime. The same arguments have been adduced in relation to the deterrent effect of corporal punishment in schools.
Discipline can be introduced and maintained in schools without any suggestion of applying some demeaning treatment. It is a mechanism which breeds hostility and resentment. I recall my early school days in an elementary council school in Durham County of which my father was the head teacher. His senior assistant master caned every child in the class for failure to complete a mathematical programme. I confess that I deeply resented that and even now recall it with a sense of resentment.
It seems to me that we are looking at an anachronistic clause in a Bill which, if added to by the amendment proposed by the noble Baroness, Lady Blatch, will allow the retention in our society of a punishment which is no deterrent and which I believe was properly removed from the maintained school sector a considerable number of years ago.
I found it astonishing that the noble Lord, Lord Beloff, in talking about the desperately offensive and degrading behaviour of English fans in Marseilles, should suggest that corporal punishment would have prevented that. Surely, there is a great deal of evidence to suggest that punishment such as the restriction of liberty, the removal of passports and even a life long ban on attending football matches would be a much more effective deterrent than corporal punishment. I cannot believe that to treat those individuals with the birch, to which reference has already been made, would have had any effect other than to increase violence on their part and to breed increasing hostility. The delivery of a violent form of punishment will in my view breed violence in return. For that reason, I trust that the Committee will reject the amendment.
Lord Skidelsky: I support the amendment moved by my noble friend and so cogently and eloquently supported by the noble and learned Lord, Lord Wilberforce. I found the arguments in support of the amendment much more convincing than the list of hypothetical cases put forward by the noble Lord, Lord Annan. It seems to have fewer reference to contemporary circumstances than to those of his own childhood. Neither did I find convincing the list of the noble Lord, Lord Tope, of organisations which supported his view. I was not brought up to believe that trotting out a list of people who agree with one is an argument.
Furthermore, the noble Lord, Lord Walton of Detchant, appears to be unable to distinguish between his right to hold his opinions and his right to enforce them on everyone else. That is the nub of our disagreement. We all repudiate the right of people to inflict barbarous and inhuman punishment on their own children. However, our opinions differ as to what constitutes barbarous and degrading punishment. We are arguing for the right of parents to inflict lawful punishment.
My argument is based passionately on my belief in liberty, on the absolute lexicographical priority of liberty; that is to say, that we do not trade-off liberty against certain other goods; that liberty is prior and must be upheld at all costs unless a clear harm is being done to others. That is John Stuart Mill's argument.
The question I wish to ask is: what is the difference in law between allowing parents to administer certain punishments in their own homes and delegating that right to others to administer them? What is the relevant difference? It seems to me that the logical consequence of the argument put forward by the noble Lord, Lord Lester--and he admitted it--is that because there is no logical difference the law will be driven by steps to control the right of parents to administer punishments which they deem right in their own homes. In other words, the parental slap will sooner or later become a battery as far as the law is concerned.
What is the consequence of that? Children will be encouraged to report on their parents. Neighbours will be encouraged to report on what is going on next door, possibly by a special line to Esther Rantzen. We shall gradually creep into a position which we so deplored when it happened in the Soviet Union. It will be said that that is impossible; that it cannot happen in England. But it can happen because things which seem reasonable in themselves, if continued by small steps, can lead to a situation which no one would wish. That is why I emphasise the priority of liberty. Of course the Minister understands that argument. But does she believe in it?
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