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Lord Macaulay of Bragar: My Lords, before the noble Baroness sits down, I am not sure that I heard her correctly—I apologise if I did not. I believe she suggested that there is more violence inflicted towards children in Scotland than there is in England and Wales. On what basis does she make that assertion?

Baroness Carnegy of Lour: My Lords, I do not know whether any research has been done. I thought it was generally understood that that was so and that we were extremely worried about it. I may be wrong and the noble Lord doubtless knows much more about it than I do.

Lady Saltoun of Abernethy: My Lords, this amendment is a sort of little sister to the one moved at Report stage in another place and then again at Committee stage in the Moses Room when Divisions were not possible.

As the Ministers, Lord James Douglas-Hamilton and the noble and learned Lord, Lord Fraser of Carmyllie, explained, the remedies already available in Scotland through the law on assault make the amendment

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unnecessary. I do not believe it will take us any further. People who know already what is and what is not permissible, and who obey the law as it stands, will hear the message of the amendment. It may confuse them and raise difficulties. Those who really need to hear the message of the amendment will not hear it now any more than they are already aware of what the existing law requires.

Something else worries me. The Bill is not a bad Bill as it stands. It is likely to receive its Third Reading next week and will thereafter return to another place for our amendments to be agreed or disagreed—only eight days before we rise for the Summer Recess. If any amendments are made in this House with which the other place is unable to agree, we shall start a "ping-pong" for which there is no time before we rise for the Recess. If the Bill does not receive Royal Assent before we rise and if anything were to befall the Government before we return in October, we should lose the Bill. We have all worked hard for it and Scotland needs it urgently—indeed, it has needed it for the past five years or longer. I hope therefore that noble Lords who tabled the amendment will not press it. However, if it is pressed I shall vote against it.

4.45 p.m.

Lord Hope of Craighead: My Lords, I wish to add a brief word to what my noble friend Lady Saltoun said. In this difficult matter I urge your Lordships not to underestimate the width and flexibility of the common law in Scotland on assault. The court over which I preside hears cases which involve violence to children. We describe them as cases of assault because that is the way in which our law is defined. However, we do not find it difficult to detect cases where—to use the words of the noble Lord, Lord Henderson of Brompton—abusive forms of severe punishment have been used. Where something of that kind has taken place, then to the mind of the Scottish criminal lawyer, in my experience, it suggests that an assault has been committed.

The difficulty we all share is, in the end, one of evidence; bringing cases before the court and making use of the common law which already exists to protect children against violence. For those reasons, I support the view expressed by my noble friend.

Lord Annan: My Lords, no one doubts that children often deserve to be punished; but there are different ways of doing it apart from physically assaulting them. That is the main argument behind the amendment. Again, when it is said that parents will not get the message from the amendment, I do not imagine that many Scottish parents who at the moment hit their children with various weapons actually read the legislation. However, if the amendment is passed, they will find the police at their door and they will then get the message—and it is an important message.

My noble and learned friend said that the common law of Scotland on assault is adequate. If that is so, why has the research and all the evidence raised by the noble Lord, Lord Henderson of Brompton, been accumulated?

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It suggests either that the common law on assault is not adequate or, if it is adequate, it is being ignored by the authorities. That is another reason why I hope the amendment will be accepted.

I hope your Lordships do not accept the argument that this amendment is so serious that it would be a menace to the Bill if it were accepted because it would put it back to another place. If the government timetable is such that that occurs, then that is the fault of the Government or of the "usual channels". That is not a substantive argument and can be used in almost every case when amendments which are in the faintest degree controversial are tabled and moved.

On several occasions in recent years the European Court of Justice has notably disagreed with the British common law on matters of this kind. If the amendment is not accepted, I suspect that once again we shall be hauled in front of the European Court and once again humiliated over our attitude on matters of common humanity.

Perhaps I can conclude by saying that the land of my forebears does not put itself on a par with that diehard citadel of corporal punishment, the Isle of Man. The message from the amendment is, "Throw out the tawse".

The Earl of Lindsay: My Lords, we have had a long and important debate on this matter, but as has already been made clear in Committee, the Government are of the view that the law as it stands already offers sufficient protection to children from assault by parents, teachers or others who have charge of them. That view was echoed by the noble Lord, Lord Macaulay of Bragar, in Committee, though I realise that he has shifted his opinions today.

Like earlier amendments which were considered here and in another place, there are dangers in seeking to amend the existing law in the way proposed by the new clause. Like earlier versions, the new clause would place unnecessary constraints on the power and the flexibility of the courts to take all the circumstances of each case into consideration. This has proved to be a key factor in recent case history. I emphasise that point. Cases cited by the Crown Office show that the courts take all the circumstances of the case into account. It is the reasonableness of the punishment rather than whether an implement has been used which is the key factor in their determination.

Another principal concern with the new clause is that, because of the wording in subsection (1), it appears to go much further than what was recommended by the Scottish Law Commission. It appears to make it unlawful for a parent to punish a child reasonably. My other concern with subsection (1) is that it is defective. It does not say whether to submit a child to violence constitutes a criminal offence. Moreover, as the noble Lord, Lord Macaulay, pointed out, it leaves an important area of uncertainty with regard to the relationship between this provision and the general law of assault. On this point I am very grateful for the contribution of the noble and learned Lord, Lord Hope, who, as noble Lords will know, is the Lord Justice-General. Noble Lords should bear in mind his knowledge, experience and wisdom in this matter in assessing their reaction to

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the amendment. The noble Lord, Lord Annan, suggested that Scottish common law is deficient if, as the noble Lord, Lord Henderson, pointed out, there is evidence to justify such an amendment. I would point out that the problem is not the difficulty of defining the punishment. The problem is the difficulty of obtaining the evidence and corroborating that evidence.

There are other deficiencies about the wording in subsection (2) which were pointed out by my noble and learned friend in Committee. The courts would have some difficulties in interpreting subsection (2) (b) (ii). What is meant by,

    "more than momentary pain or discomfort"?

That seems hard to tease out and would give rise to uncertainty. More importantly, since the test would arise where there was no injury, it is extremely hard to see how anyone could ever tell whether the pain or discomfort lasted more than a moment or indeed risked doing so. Again, what is meant by "injury" in subsection (2) (b) (i)? Does it mean only physical injury? If so, would it include a bruise?

A number of very important observations have been made against the amendment. In that regard I am grateful to my noble friends Lord Balfour and Lady Carnegy, the noble Lady, Lady Saltoun, and the noble and learned Lord, Lord Hope, with his knowledge on these matters. As with earlier versions, the new clause contains a number of deficiencies which mean that the Government could not possibly accept it.

I end where I began. The law as it stands, both statutory law and common law, is sufficient to protect children from assault by parents, teachers or others in charge of children. There are offence provisions in the Children and Young Persons (Scotland) Act 1937 as well as common assault. The common law offers a certain flexibility which might be lost by incorporating this new clause into law. On that basis, I ask the noble Lord and his supporters to withdraw the amendment.

Lord Macaulay of Bragar: My Lords, before the noble Earl sits down, perhaps I may ask whether this amended clause has the support of the Scottish Law Commission.

The Earl of Lindsay: My Lords, I am not able to answer that question. I do not know.

Lord Henderson of Brompton: My Lords, I thank all noble Lords who have spoken in this debate. It certainly exposed any difference between the two sides, which I should like to encapsulate by saying that there are some noble Lords, including the Lord Justice-General, who seem to presume that the existing law, whether common law or statute law, is sufficient to curb violence in the home while the other party, if I may describe a number of noble Lords as a party, are of the opinion that the evidence which I adduced for the United Kingdom surely shows that the existing law is not sufficient to protect children from violence in the home. I could say to the House, like the noble Lord, Lord Annan, said, that I am proud to have Scottish forebears. In fact, all my four grandparents were Scottish. That is about as good a ticket as I can give to the House as a recommendation for my speaking on a Scottish Bill.

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I find the view that the existing law is not sufficient to protect children in the home from violence prevails against those who think that the law is sufficient already. I remind your Lordships that this House gave a lead to the House of Commons by inserting into the criminal law of the country a provision that corporal punishment in schools should not be allowed. The House of Commons agreed to the Lords amendment and that is now the law of the land. If it is the law of the land that corporal punishment is not allowed in schools, surely it cannot be difficult—I say this to the noble Baroness, Lady Carnegy of Lour—to explain to parents that if it is not allowed in schools, a fortiori, it should not be allowed in the home. We want to improve the culture on the subject of violence which was changed in the schools and to make the same change in the home.

I very much hope that the change in the culture of violence which we initiated in this House with regard to schools will be followed by this amendment which will change, I hope, the violent culture in the homes of the country. I commend the amendment to the House.

4.57 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 87; Not-Contents, 128.

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