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Lord Skidelsky: If the noble Baroness believes that corporal punishment, however humanely administered or however loving the environment, harms the child, how can she say that such punishment can be justified at home but not at school--especially at private school?

Baroness Warnock: I do not believe that corporal punishment is justified in the home. I was merely saying that it would be extremely contrary to the general public good to have a law against it, because that would be too intrusive. Respect for privacy would tell against such a law. I would not say that corporal punishment is justified in the home. On the contrary. We are in a

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position to prevent corporal punishment in schools. We are probably not in a position to prevent corporal punishment in the home. It is not that corporal punishment is good in one case and bad in the other. It is bad in all cases. In my view, modern morality must be taught largely by example. The exercise of violence is no way to encourage inner discipline and goodness. I certainly do not think that by law there should be the freedom to commit that kind of harm on a child.

Lord Gisborough: I apologise to the Committee for rising to speak, having just come in. I had a public duty in the North and I have just arrived.

Noble Lords: No!

Lord Meston: I want the noble Baroness, Lady Blatch, to amplify her remark that many schools want the exemption that she advocates in her amendment. Just how many private independent schools want exemption? What proportion of the private independent educational sector supports the noble Baroness? I understood my noble friend, Lord Tope, to say that level of support has not been reflected in the representative body of private independent schools.

I spend much of my professional life involved in cases concerning the physical abuse of children. That abuse is often inflicted in the home, by a parent or step-parent. They are people who, with the best will in the world, do not know where to draw the line, then seek to justify their actions after the event by saying that they were exercising reasonable chastisement--sometimes, with quite dreadful results.

Of course there is a distinction to be drawn between what happens and can be regulated in the home and what can happen in a school. The common theme is that violence begets violence and does so from one generation to another. Quite the wrong message will go out from this Committee if we support the amendment.

6.30 p.m.

Baroness Blackstone: Debates on corporal punishment always demonstrate a very wide range of personal views, most of them irreconcilable. This debate is no exception. It would be quite wrong for me to try to respond to the debate or indeed in any way to sum it up. As I said earlier, this is a matter for a free vote. All I want to do is make a few brief points where I understand that the factual position may not be entirely clear.

It is perhaps worth noting that very few independent schools still use corporal punishment and that there was broad support from the independent schools associations for the intent of Clause 121. Moreover, I should also like to mention that there is continuing international criticism of the UK's seemingly inconsistent position: both the UN Human Rights Committee and the Committee on the Rights of the Child recommended in 1995 that corporal punishment in independent schools should be outlawed completely.

The noble Baroness, Lady Blatch, has called for the restoration of corporal punishment following its abolition in another place on a free vote. As Her

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Majesty's Chief Inspector has reported, we should remember that most schools are orderly communities, although there were one or two purple passages in this debate which suggested otherwise. Where there are serious problems of indiscipline, Section 4 of the Education Act 1997, which comes into force on 1st September of this year, will allow teachers to use "reasonable force" to restrain a pupil from doing certain things; for example, committing an offence, causing personal injury to himself and others, or causing serious disruption. It is also the case that there are powers for schools to exclude extremely difficult and disruptive pupils. In the independent sector, which we are discussing today, there are powers, as has already been mentioned, to expel pupils.

Most teachers do not believe that corporal punishment is the answer or that it would have any practical impact on enforcing discipline or maintaining high standards of behaviour. There have been no demands from school governors or the teacher associations to restore corporal punishment in maintained schools since the amendment was passed in another place. Noble Lords will also recall that attempts during the last Parliament to do so were also soundly defeated on a free vote.

Under this clause a member of staff at a school or a nursery education institution would no longer be able to rely in any type of criminal proceedings--for example, a prosecution for assault--on the common law defence of "reasonable chastisement" to justify the use of corporal punishment. This would affect maintained as well as independent schools.

The provision as it affects nursery education is very tightly drawn: it would not extend to institutions, groups or premises (such as private homes) where only childcare services are provided, or to parents who teach their children at home. I am advised that these are outside the scope of the Bill.

I should like to reiterate what my honourable friend Estelle Morris said in another place. The Government have no intention of using the new clause or any other provision to extend the ban on corporal punishment into the family setting. If I understood the noble Baroness, Lady Blatch, correctly, she seemed to imply that the Government would seek such a ban at some point. It is the personal responsibility of parents to decide for themselves what disciplinary arrangements are appropriate for their child at home. As the noble Baroness, Lady Warnock, said, it would be extremely intrusive to try to impose a ban on corporal punishment in the home.

It has also been argued that Clause 121 would contravene the European Convention on Human Rights. I understand that similar arguments were used in a case brought against Sweden in 1982, which prohibited corporal punishment in all its schools. The case failed. The European Court of Human Rights has on several occasions made it absolutely clear that it is against corporal punishment in schools. I have received legal advice to the effect that the European Court would therefore be most unlikely to uphold any argument that

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the new clause would violate the rights of parents, under Article 2 of Protocol 1, who wanted to send their child to a school where corporal punishment was used.

I shall simply end by saying that I personally support this clause and oppose the amendment moved by the noble Baroness, Lady Blatch.

Baroness Blatch: I should like to pick up one of the points made by the Minister about the department's view on punishment. There is much concern among teachers about unruly behaviour in schools and actual damage done to teaching staff. Indeed, one only has to remember the awful death of Mr. Lawrence, because we understand that the young people involved were of school age. In only February of this year the Department for Education and Employment felt compelled to issue draft guidance permitting schools,

    "in the most exceptional circumstances"--

and we are talking about in extremis--

    "to use force in a way that might reasonably be expected to cause injury".

Examples were given in that respect, such as: holding a pupil around the neck by the collar or in any other way that might restrict the pupil's ability to breathe; slapping, punching or kicking a pupil; twisting or forcing limbs against a joint; tripping up a pupil and holding or pulling a pupil by the hair. I understand those are very exceptional circumstances. They are situations where teachers have to intervene in what might be an extreme fight and where someone is in danger of being seriously hurt. I understand the context in which those examples were outlined; nevertheless, they do constitute a form of corporal punishment.

In answer to many points that have been made by Members of the Committee during the course of the debate, I should point out that the Department of Health issued guidance to independent schools following the abolition of corporal punishment in state schools. I shall read from the document because it is important and will answer a number of points that have been raised. I shall quote from paragraphs 391 to 395 of the Children Act Guidance, Volume 5, for independent schools:

    "In normal circumstances children should be encouraged to behave well by the frequent expression of approval by staff and by the generous use of awards rather than by the extensive imposition of sanctions. The latter might reasonably include: temporary removal of privileges, mild or moderate verbal reprimand, additional household chores and restriction of leisure activities. Sanctions which are unproductive, eg writing out of lines, or which involve the use of educational activities, such as essay-writing, should be avoided as a means of punishment. If in exceptional circumstances it is decided to use corporal punishment, it should not be unreasonable (for trivial offences or applied indiscriminately to whole classes) or excessive. In all circumstances punishments and sanctions need to be applied fairly and consistently, making the distinction between minor and serious offences clear, yet at the same time allowing a degree of flexibility for individual circumstances.

    "In deciding how these criteria are to be applied some allowance needs to be made for the cultural ethos and declared policy of the school. Corporal punishment is widely regarded as particularly inappropriate for children with sensory, physical and intellectual impairment and those with emotional and behavioural difficulties. Details of corporal punishment--date, nature of offence, nature of punishment--should be recorded in the punishment book and the record witnessed by another adult. In normal circumstances corporal

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    punishment should only be administered by the head teacher. The imposition of sanctions (but not corporal punishment) by prefects or teachers is permissible".

In other words, to answer the point made by the noble Lord, Lord Annan, no one other than the head teacher can administer corporal punishment but other sanctions can be administered by teachers or prefects, including the minor sanctions to which I have already referred. The document goes on to say:

    "Sanctions administered or imposed should be recorded stating clearly the nature of the transgression and the nature of the sanction, and be subject to monitoring by a senior member of staff who is concerned with care of children within the school. The record should be available to parents".

That is the end of the quotation from the guidance document. Independent schools are bound by that. That is the guidance to independent schools. All those who have written to me have argued strongly that they are entirely happy to live within the guidance of our health department.

The schools are also subject to external inspection. The records and the regime of the school are made available for inspectors to make a judgment on that. I say to the noble Lord, Lord Meston, that I am not in any way supporting something comparable to the abuse of children in the home. Many of the letters I have received state movingly that abolishing corporal punishment in schools will not lessen the incidence of abuse in the home, which we all certainly abhor.

I refer to the point on the European Convention on Human Rights mentioned by the noble Lord, Lord Lester of Herne Hill. I defer to his expertise in these matters. In the Costello-Roberts v. United Kingdom case the court stressed that,

    "in order for punishment to be 'degrading' and in breach of Article 3, the humiliation and debasement involved must attain a particular level of severity and must in any event be other than that usual element of humiliation inherent in any punishment. Indeed, Article 3, by expressly prohibiting 'inhuman' and 'degrading' punishment, implies that there is a distinction between such punishment and punishment more generally".

In the case of Costello-Roberts, the court expressed,

    "'certain misgivings about the automatic nature of the punishment and the three-day wait before its imposition', but still considered that the minimum level of severity had not been reached".

We are not talking about excessive severity. We are talking about legal punishment. I wish to quote extracts from letters I have received,

    "I write as a former parent of a Christian Independent School where I now teach. Never have I taught in a school where there was more loving concern for the whole child.

    When our child was admitted to the school we gave our written consent, giving the school the authority to exercise corporal discipline if it should be deemed necessary. We love our daughter dearly and we felt confident in the staff being just, loving and merciful, and knew that this type of discipline was only used in cases of persistent disobedience or the breaking of the moral code.

    I am glad to say that this type of discipline was never necessary, but I have seen the positive effects of corporal discipline being used. When children choose to cross boundaries set they, like all of us, need to know there is a cost. In our school (very much as it is at home) when the punishment is over the slate is wiped clean and the children have a fresh start. They know they are loved and their value as human beings is undiminished. We trust that they have learned from the episode".

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Another letter states,

    "Having taught in state schools I was (and am) concerned over the unruly behaviour of some pupils and the erosion of options open to a teacher for disciplining such unacceptable behaviour".

Another letter states,

    "While not wishing to denigrate the importance of ensuring that children are not subject to abuse or put at risk we believe it is important to respect the religious convictions of parents who consider that under certain circumstances and after careful consideration, it may be necessary for a school to apply corporal discipline ... The ethos of a school should be an extension of the discipline used in the home where corporal discipline is based on the guiding principles of love and correction. If the amendment is carried, it opens the way for further legislation against any parent using corporal discipline in the home".

Yet another letter states,

    "As a parent I feel this is an infringement on my belief and rights as a parent on how I feel my child should be brought up. The lack of discipline in schools in general is alarming and it is evident for all to see the decline of behaviour since 1986, when corporal punishment was outlawed in maintained schools.

    My son is now 16 years and has benefited greatly from standards and boundaries being set which then had a punishment appropriate that was carried out if he did not stay within the limits set. This was always done in a loving environment not when a teacher was enraged and lashed out, always with the parents' support.

    I feel this is the thin end of the wedge. Next ... the home. All of these rules will make no difference to the child battering parents--"

I refer to the point made by the noble Lord, Lord Meston--

    "I feel these are two completely different issues.

    I feel as a parent my need for 'respect of my rights to ensure education and teaching in conformity with my own religious and philosophical convictions' as the European Convention on Human Rights allows".

We are not talking here about inhuman and degrading treatment; that is ruled out by the European Convention on Human Rights.

The noble Lord, Lord Tope, criticised me for tabling this amendment at the last minute. However, it was tabled on Thursday. If one compares that with the tail end stages of the Bill in another place discussed at 5 o'clock in the morning, I think I probably win as regards having a fuller Chamber to debate this issue. The noble Lord, Lord Annan, asked me about my preference in terms of punishment. Even if I were against corporal punishment, I would support this amendment. I have no preference. I do not wish to choose between a tawse and something else. In fact I think a tawse would be totally outlawed under the present law. I support the right of parents to choose independent education and to choose within the law a punishment regime that they believe is right for their child.

As the noble and learned Lord, Lord Wilberforce, made clear, this amendment is not about the merits or demerits of corporal punishment. It is about defending the right of parents to send their children to a school that in extremis applies corporal punishment fairly and within the limits of the European Convention on Human Rights, if that is what they choose.

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6.46 p.m.

On Question, Whether the said amendment (No. 246FA) shall be agreed to?

Their Lordships divided: Contents, 64; Not-Contents, 150.

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