Plenary, 13 Sep 2001

Meeting date: Thursday, September 13, 2001

Official Report 625KB pdf

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Children (Physical Chastisement)

The next item of business is a debate on motion S1M-2206, in the name of Iain Gray, on the physical chastisement of children, and an amendment to that motion.

We have lost a lot of time today, so I will be grateful if members who are not staying to take part in the debate leave quietly.

Last week, we announced the results of our consultation on the physical punishment of children. That announcement generated a good deal of comment, reinforcing the importance of the subject and justifying the devotion of parliamentary time to it today.

On the basis of the incorporation of the European convention on human rights into our domestic law, any punishment that constitutes "inhuman or degrading treatment" can never now be acceptable under Scots law. Our proposals seek to clarify what that means in practice.

Let me begin with a crucial piece of clarification that has, I fear, been missed by some commentators. We are not proposing to ban smacking. Our consultation paper did not propose a ban, the responses did not show a majority opinion in favour of a ban and our announcement confirmed that position. Our intention is to clarify the law and to set clearer guidelines for the courts and parents. In particular, we do not think that parents should have a right to hit very young children, to hit children with implements, to shake them or to strike them on the head.

The right to administer reasonable physical punishment to children who are old enough to understand what is happening will remain. Parents who use physical punishment as part of a principled and caring system of family discipline have nothing to fear from our proposals. That right will extend to anybody who has control of a child in the child's own home. Parents will be free to set the ground rules for discipline in the home, just as they are at present.

Most of us face difficult, daunting and even scary times in our lives. For those of us who have children, parenting often seems to be the single most scary and difficult role that we undertake. The decisions that we have to take from day to day, particularly in respect of very young children, can have far-reaching effects.

We are often told that children need role models. They need to learn from their role models that violence is not the right way to get other people to do what they want. A balance must be struck between acceptable intervention by the state for the welfare of children, and the freedom of parents to use their own good judgement. That balance is not new in this country. It was established in the Children and Young Persons (Scotland) Act 1937. That act has stood the test of time and it makes it quite clear that cruelty towards or neglect of a child is an offence, but it does not interfere with a parent's right to administer reasonable chastisement. We are not proposing to change that. The only area in which we propose a complete ban is in respect of children up to and including the age of two. The reaction to that in some quarters has been extraordinary.

I ask members to reflect for a moment on what is meant by punishment. Punishment is designed to signal disapproval of wrong actions by inflicting retribution on the person who has done wrong. It might, incidentally, also be designed to rehabilitate and deter, but its primary purpose is retribution. It is quite wrong to punish someone who can understand neither that they have done wrong, nor the relationship between the punishment and the wrongdoing.

Will the minister give way?

Will the minister give way?

I will give way.

Margo MacDonald.

I was actually giving way to—

Can the minister clarify whether physical chastisement would only be about punishment for something that a child might have done wrong? In the case of a young child, that might be the physical encouragement not to do that thing again. Such chastisement would not be to punish, but to warn.

I call on the minister to respond, but I believe that the minister was in fact giving way to Mike Rumbles.

Yes, I was giving way to Mr Rumbles.

I was going to make the same point.

I acknowledge that chastisement might be about rehabilitation or deterrence, and I will say more about chastisement in relation to danger in a moment.

We are dealing with chastisement, the primary purpose of which is punishment. We do not punish adults who are incapable of understanding the connection between punishment and their wrongdoing. The courts are able instead to make orders to ensure that the offender and society can be protected.

There has been much talk of danger in relation to our proposals. However, if a two-year-old runs on to the road, or picks up a hot drink or opens a bottle of chemicals, their parent may take physical action to protect the child from the immediate danger—that is not punishment. The law is perfectly capable of making that distinction in exactly the same way as it makes that distinction with regard to a person of any age who needs to be saved from immediate danger. There is no question of our proposals endangering the safety of any child.

It is suggested that the right to shake a child would be removed. We would all join the Executive and others in ensuring that children are protected and we know that shaking can damage a child. However, one of the examples that the minister mentioned was that of a child crossing the road. I have seen children attempting to run out into the road—it has happened in my family—and instead of smacking, the parent shakes the child gently. Will the minister ensure that the regulations are framed sensitively so that those who wish to avoid physical chastisement are not punished for actions such as gentle shaking?

The primary reassurance that can be given is that any legislation following our proposals would require evil intent to be demonstrated. In the circumstances that Mr Henry describes that would clearly not be the case.

Will the minister give way?

I must move on.

The reason for banning the physical punishment of children under three is to signal that a line must be drawn somewhere. No one would want to hit a small baby. Everybody knows that babies can sometimes be incredibly difficult, but smacking them achieves nothing. Children reach an age at which they understand that some behaviour is acceptable to their parents, while other behaviour is not. Smacking as a last resort might be an effective sanction. We must accept that that age will vary, but the law must draw a line somewhere. We have opted for the age of three, but that could be debated further.

Our remaining proposals will provide guidance to the courts as to how to decide whether punishment was reasonable, and clarity for parents and others who will administer punishment.

Does the minister accept that the Executive's proposals constitute a major change in social policy, that they have not been put to the people of Scotland in any manifesto—Labour, Liberal or any other—and that such a policy should not be pursued in the absence of a mandate that was sought and obtained at a general election?

No. I do not accept the premise of Mr Ewing's question. The consultation on the proposals goes back to 1998 and was drawn very broadly. If the proposals are to become law, they will be subject to the full scrutiny of the legislative process.

As proposed in that consultation paper, the courts would be required to take the following factors into account: the nature and context of the treatment; its duration and frequency; its physical and mental effects; and the sex, age and state of health of the child. Legislation would contain a list of punishments that would never be permitted. It would prohibit absolutely blows to the head, shaking and the use of implements.

The response to our consultation paper showed majority support for banning the use of implements. The use of implements carries the clear risk of injury to a child—indeed that was the occasion of the case of A v the United Kingdom. Banning the use of all implements will create a clear guideline for parents and is in line with the recommendations of the Scottish Law Commission and the public opinion surveys that were quoted in our consultation paper.

Finally, in accordance with an overwhelming response by people who are involved in child care, we will extend the ban on corporal punishment to all regulated child care. However, the ban will not cover baby-sitters or nannies who work in the family home, where parents will be able to agree with the carer what forms of discipline can be used.

In the debate on the subject last year, members asked that special efforts be made to obtain the views of children. I am glad to reassure the Parliament that we have asked bodies such as local authorities to seek the views of children. We are especially grateful to bodies such as Clackmannanshire Council, which made great efforts to obtain the views of many hundreds of children and parents. We also commissioned research by Children In Scotland on the views of children. Overall, the weight of children's views was against smacking. That research has been placed in the Scottish Parliament information centre and on the Scottish Executive's internet site.

We will seek to legislate at an early opportunity. Most of our proposals would be suitable for inclusion in the criminal justice bill that was announced by the First Minister on 5 September. The Children (Scotland) Act 1995 makes it clear that the primary consideration in decisions about children is the welfare of the child. Our legislation will tighten the definition of reasonable chastisement and it will prohibit specific actions. The proposed changes should discourage casual or excessive use of physical punishment, or its use for inappropriate purposes.

The proposed changes reflect the view of the great majority in Scotland, that parents should retain the right to smack their children in certain circumstances.

Will the minister give way?

I am winding up.

The proposals will also provide greater clarity for courts and parents as to the intention of the law but—most important—the proposals will send out a signal to Scotland's children that they are valued.

I move,

That the Parliament welcomes the Scottish Executive's proposals, following on from an extensive consultation process, to clarify the law on physical punishment of children.

The amendment in my name is designed to assist the debate. Having heard Mr Gray's speech, I am more concerned than I was at the outset, because the major problem that we face this afternoon is the lack of information and precision. The more questions that were asked of Mr Gray, the fewer answers we received. That is entirely the wrong context in which to have the debate. I will develop that point.

We start with the premise that no one—that is no one—is in favour of abuse of or cruelty to children. Indeed, the use of implements to punish children is something that we would all agree has no place in a modern society.

However, there are legitimate concerns from a variety of stances about the motion that is before us today. Those concerns can be defined in two ways. There are those who are worried that there is a proposal to interfere unduly with the rights of parents. As a parent I understand that concern. There are also those who are in favour of abolishing any physical punishment—a legitimate position—and who are worried that the proposals do not help, but hinder, the process.

Everybody is in favour of a less violent society and no one needs to make that point in this week of all weeks, but how do we achieve that in terms of parents setting an example to children? Do the proposals that are being made, as we understand them, achieve that aim? We could start by asking what others have done in similar circumstances. If this is a problem that needs to be addressed, what legislation exists in other places? The examples that exist in other places appear to encourage educating, rather than punishing, parents.

One of the worries about the proposed legislation is that it seems—the Deputy Minister for Justice used this term—that it is designed to draw lines. We should be seeking legislation that changes behaviour. The lines that we heard the minister trying to draw some moments ago will cause enormous difficulties when we come to the details. However, an attempt to change behaviour in Scotland is something that we all might be able to coalesce around.

We also must address why this is being done at this time. Many of us know that there are obligations under the European convention on human rights and the United Nations Convention on the Rights of the Child that Scots law may not—although this is open to question—fulfil. In such circumstances, it would be helpful to know what the obligations are and what cases and judgements we are responding to, so that we can measure for ourselves—in so far as we know what the proposals are, and I stress that point—how far the proposals measure up to that difficulty.

We should ask what type of debate we can have without knowing what the proposals are, what others have done and what obligations remain unfulfilled. I say with great regret that I do not regard it as helpful that we debate the subject on the basis of a consultation report on the Executive intranet and a three-line motion. We are not debating the nature of the legislative proposals. I would have thought that, after two years and many rough rides in the Parliament, one of the lessons that might have been learned is that it is best to debate specific proposals rather than general statements.

Will the member give way?

I will give way in a moment. Those of us who would be and are sympathetic to change feel that debating general statements causes difficulty. It opens up the possibility of the misinterpretation to which the minister referred at the start of his speech.

My point is simple. All the proposals will require legislation. An indication of the legislative vehicle that we intend to use has been given. We will debate the full legislative proposals when they are introduced. Is Mr Russell saying that he would have preferred not to have any opportunity to discuss the proposals today, and that he would prefer to have waited for the legislative vehicle? That seems quite contradictory to the argument that he is making.

It is not contradictory in the slightest. We would all have preferred to have seen the specific proposals that will be made and to have had the time to debate them, rather than to debate the generalities, which are even open to misinterpretation by those who are sympathetic, because they do not understand the detail. The more the questions come, the less the answers come.

We should also ask ourselves—this is a central point—in what context we can achieve change in Scotland. Is the context education of parents, who need help? We do little to help parents to face the challenges of parenthood. As a parent, I know how difficult being one is. Lyndsay McIntosh is agreeing with me and I think that every parent in the chamber will agree with me. Parenting is difficult and we do not do much to help people with it.

We should ask ourselves a genuine question. Is legislation of this nature going to help to educate parents? It could; there are examples—to which my friend Irene McGugan will refer—from Sweden and elsewhere. The legislation could help to educate parents, but there seems to be no indication that it will do so. We will have legislation that simply sets penalties, and that might be unhelpful.

I will address my final question differently from my friend Mr Ewing. In having the debate and trying to achieve the results that many of us want, do we say enough to satisfy public expectation of Government? Do people believe that this is what we should be doing? If we are going to make these changes, are we persuading people that we must make them and that that is the right thing to do? I am uncertain, from what the minister has said today about the measures, whether we are moving in the right direction.

The evidence that we gave as a party to the minister's consultation process was broadly supportive, but it raised questions. I am being genuine in raising more questions with the minister and the Executive. We could move forward better on the matter if we had firm proposals, if we understood the international obligations and how we fall short of them, and if we also understood that there was a desire to help and assist parents. That is what I am asking for today and that is what my amendment asks for. If we could have that information, many of us would feel much happier about the situation in which we find ourselves. Three-line general statements, no matter how worthy they are, do not assist parliamentary debate and scrutiny. Parliamentary scrutiny is about firm proposals that can be changed through the Parliament's committee system to provide the best possible legislation. So far, the jury is out on whether that will happen.

I move amendment S1M-2206.1, to insert at end:

"but calls upon the Scottish Executive to publish full details of its proposed legislation without delay and to explain in detail to the people of Scotland why such legislation is necessary in terms of the European Convention on Human Rights and the UN Convention on the Rights of the Child and to ensure that the emphasis in any such legislation is on helping parents by means of educative change rather than applying punitive sanctions.

I preface my remarks by making it clear that I had the honour and privilege to pilot through the House of Commons the Children (Scotland) Act 1995, which brought in protection for children and improved procedures. I am proud that that opportunity came my way and that the 1995 act went through with all-party support.

Sadly, the Deputy First Minister's proposals will not command all-party support, as we believe them to be wholly unnecessary and, indeed, an affront to Scotland's parents. The key point is that there is no single case of unreasonable treatment meted out by a parent to a child that cannot be dealt with by the courts. Already, as it is, the courts are in a position to determine what is reasonable and what is unreasonable when it comes to disciplining children. The proposed legislation will introduce no protections that do not already exist.

Will the member give way?

I will continue.

The proposals reek of the nanny state, by notifying all Scotland's parents that they are potential criminals.

Let us suppose that some young Hercules aged two years and 11 months dislikes his mother's best efforts to give him a tasty supper, which he hurls in her face. If she dares to remonstrate with her young hero, her actions could be criminalised. Similarly, if a very young child assaulted another very young child, would it be unreasonable for an adult to restore some discipline? If the new policy is set out in statute, it will be an example of the Deputy First Minister's seeking to control every aspect of our lives.

Will the member give way?

I will give way to the minister in a moment.

Surely it is significant that the Prime Minister is not rushing to give the Liberal Democrats undying support on the issue. He appears to support the Liberal Democrats with about as much enthusiasm as a rope supports a hanging man. The Prime Minister is not willing to support the Executive on the matter either. In an interview with Parents magazine in 1996, the Prime Minister said that there was a

"clear dividing line between administering discipline on the one hand and violence on the other which most parents understand perfectly well."

Furthermore, on 18 January 2000, the Government said on BBC News Online that it

"should not, and does not want to interfere in the private relationship between parents and their children, and that most people know the difference between a ‘mild rebuke' and assault."

It seems that the Prime Minister, Mr Tony Blair, is far more concerned with retaining the good will of parents than with political correctness on this occasion. I agree with him.

If I understand Lord James's point, I think that he feels that the matter should be left alone. That puzzles me, because when the Parliament debated the matter previously, the Tories moved an amendment that called

"upon the Scottish Executive to clarify the definition of reasonable chastisement so that both parents and children are sure of their rights within the law."

What has happened in the meantime to ensure that parents and children are sure of their rights within the law?

The courts are well able to interpret reasonableness. I quote to the minister the statement of Judith Gillespie from the Scottish Parent Teacher Council. In a recent letter she said:

"There is no consensus … people fall into two distinct camps over smacking - the ‘never ever smack' and the ‘it's a legitimate part of parenting' … This matters because, ultimately, laws depend either on general acceptance or effective penalties."

Will the member give way?

I want to continue. I have one or two points to make. If I have time, I will give way to Mr Russell.

Norman Wells from Families First said that the proposed legislation would

"criminalise loving parents … this will cause no end of trouble for parents in a normal, happy, family environment."

Colin Hart of the Christian Institute think-tank said that

"instead of chasing abusers police will waste their time looking into allegations against perfectly respectable and decent parents."

Enforcement is a further problem. Without closed-circuit television as a spy within the hearth and home, it is highly unlikely that the proposed legislation will make any difference.

I do not think that evidence of bogeys lurking in the background, of which Lord James is afraid, exists, but I have a specific point for Lord James. If the ECHR and the UN Convention on the Rights of the Child require legislative change, will he accept that that is legitimate? I accept that the minister has not said whether that is the case, but if it was, would he accept that that was an international obligation?

If any such obligation existed, I have no doubt that the Prime Minister would deal with it in the House of Commons.

The member was right to say that definition is a major problem. The Administration has not even produced a draft bill, so we cannot argue over the detail. We are dealing with generalised concepts and that is wrong.

Family rights campaigner Victoria Gillick has been reported as saying that the Scottish Executive is

"confusing hitting and abusing a child with disciplining. This is a question of intention and there should be nothing wrong with a father or mother disciplining a child as he or she sees fit."

A powerful comment is to be found in the Daily Mail of 7 September.

"the most notoriously difficult developmental year in a child's life has been targeted by politically correct fanatics … This proposal literally creates a nanny state."

The comment writer went on to say that

"the State is interposing itself between parents and children, a sure sign of an incipiently totalitarian society."

I have no idea whether the—

Lord James should begin to close his speech.

I will sum up, as many other members wish to speak.

I have no idea whether the Deputy First Minister will be remembered for that role, but it is only fair to give him a cautionary warning of that possibility when he has time to read the report of the debate, as he does not have time to attend it. If he proceeds with the legislative proposals, he will be remembered as the nation's nanny. Even at this late stage, I ask him to reconsider. Can he not see that the issue distracts from far more important matters such as child abuse, perversion, serious assault and drug pushing? We will oppose the measure, as it is unnecessary, unworkable, unenforceable and misconceived. It is a somewhat tiresome and pernickety interference with Scotland's parents. Frankly, I have to say that Scotland deserves better.

The Liberal Democrats are happy to support the proposals. In many ways, we would have been happy also to support Mike Russell's amendment. However, Mike Russell calls for the publication without delay of the full details of the proposed legislation. That is not practical to deliver because of pressure on parliamentary draftsmen. The tenor and content of Mike Russell's amendment are a valuable addition to the debate. If he had added "without undue delay" or "as soon as possible" to the amendment, it would have been easier for the Liberal Democrats to support it.

On a point of order. Would the Deputy Presiding Officer accept a manuscript amendment to add the word "undue" between the words "without" and "delay"?

No provision exists for that.

We are, in any case, all heading in the same direction.

The amendment calls for detailed explanation of how the proposals relate to the UN Convention on the Rights of the Child or to the ECHR. The consultation document explained fully those proposals. It is right that people should be aware of the distinctions and how those impact on legislation in Scotland. The proposals have been introduced not because of the UN Convention on the Rights of the Child or of the ECHR but because we want to introduce them. They are, however, underpinned by those conventions.

There is wide agreement that it is time to update and clarify the way that the law deals with the physical punishment of children. Strong arguments have been advanced that corporal punishment of children is absolutely wrong and that it should be prohibited completely. As a parent, the force of those arguments can be reinforced by the absurdity of the things that parents find themselves saying, such as " Don't hit your little brother or I will smack you."

In some ways I find it difficult to refute the logic of the argument for a total ban on corporal punishment. On the other hand, my own experience of the difficult role of bringing up children is that, in some circumstances—it is a rare experience—a smack can be a swift and effective way of getting a child's attention and emphasising that something serious is involved.

It is entirely reasonable, however, to ban physical punishment of a child who is too young to understand why it is being punished. A two-year-old is small enough to be picked up and removed from danger. At that age, a child should be supervised closely enough for that to happen. In the child's mind a smack is not associated with danger. The smack therefore does nothing apart from relieving parental stress. That is not a good enough reason to administer a smack.

When laying down the law, consideration must be given to whether the law will be endorsed by those to whom it applies and also to whether it is enforceable. I believe that there is a responsibility on us to lead, but we can do so from only so far in front. The current set of proposals is pitched at about the appropriate level for where we are at the moment. Public opinion is changing about what is or is not acceptable; looking back even a few years demonstrates how far it has moved. However, I feel that a total ban is still too far for where we are at the moment.

There is pressure for more clarity about what society is prepared to accept as reasonable. Most parents will welcome a set of parameters that are clear, while not being totally prescriptive about how they discharge their parental responsibilities. The limitations that are being set can be justified, for example, in terms of increased understanding of the dangers inherent in hitting anyone—particularly a child on the head—or in shaking them.

The guidance on what it is appropriate for courts to take into account in assessing reasonableness is to be welcomed. The proposals will mean consistency between publicly and privately funded pre-school child care—that is good, because the law applies differently at the moment in different situations.

I totally agree with Mike Russell that much more needs to be done to give parenting the status it merits and to give parents the support that will help them with the most important job in society.

Members will recall that we lost debate time earlier. We have to be out by 4.38, so I ask that speeches be no longer than four minutes.

I acknowledge that many of those who oppose the measures do so with good intentions. They firmly believe that smacking children is a good method of imposing discipline, that no child has ever been harmed by smacking and that smacking a child is altogether different from hitting a child.

However, let us be clear about the language we are using. The word smack seems to be a softer word than hit, but the intention is the same for both: to cause pain, whether physical, psychological or both. If an adult smacks another adult, we call it an assault. If an adult—for example, a teacher or a foster parent—smacks someone else's child, we call it an assault. However, the critics of the measures claim that it is all right for people to smack their own children. That suggests that the issue at stake here is one of ownership—that is, that a child is in fact a possession and the parent has the right to treat the child as he or she sees fit. That is according to Lord James Douglas-Hamilton. No one, least of all the state, should have the right to interfere.

That belief in the right of ownership of one person by another also underlies the abhorrent practice of domestic abuse, which the Parliament has debated at length and is trying to eradicate from Scottish society.

The courts have the right to interfere in any case of unreasonable conduct or chastisement.

The thing about domestic abuse that interests me is the Zero Tolerance Trust survey that showed that 20 per cent of young men believe that violence against women is appropriate in certain circumstances. I wonder where they get the idea that violence is appropriate as a means of developing a relationship. Could it be that it is because we allow corporal punishment of our children?

Our most recent children's legislation in Scotland—the Children (Scotland) Act 1995—is underpinned by the principle derived from the UN convention that a child has rights. One of those rights is the right to protection. I see the proposals as a modest but logical extension of those rights.

The legislation will ban the use of implements. Apparently, Lord James is not in favour of that either.

Will the member give way?

Not at the moment.

Childline has provided us with some distressing insights into the types of implements used by adults to "discipline" their children. Children who have used the helpline have talked about being smacked—although they call it hit—by adults, no doubt, in many instances, in the belief that it was for the child's own good, with sticks, slippers, bats, pool cues, belts, straps, electric cables, spades and tools. People talk about the use of implements—let us just call them weapons. Why do we use these euphemisms? They are weapons. They risk serious injury to the child. It is a blessing that there are not more serious injuries as a result.

The consultation proposes to ban the shaking of small children and blows to the head. The first experience that I had in Perth royal infirmary was of someone who had shaken a small child. They stated clearly to me, and I remember it to this day, that they had no intention of damaging that child, but only of controlling it. We must ban the shaking of small children. That is absolutely imperative. There are sound medical reasons for banning the shaking of children. Shaking a child can cause internal haemorrhaging in the head, leading to brain damage.

The intention of the proposals is not to lead to increased interference in family life, to increased prosecution of parents or to the bogeys that Lord James Douglas-Hamilton referred to. Experience in Sweden, where all smacking of children is outlawed, has shown that no increase in prosecution of parents has occurred since the ban came into force. Mike Russell referred to attitudes in Sweden, where only 6 per cent of people now believe that corporal punishment is appropriate. We need a change of opinion, and this Parliament must lead with its legislation. This is a modest proposal to improve things. I would prefer a total ban, but at least all children under three in Scotland will in future be definitively protected by law, which is important.

I am probably one of the few people in this chamber who have formally administered physical chastisement in schools. I resorted to it very infrequently, and I was happy to see it go.

I was in charge of a secondary school when it was made clear that corporal punishment had to go. We had pre-empted the start date by a complete term, had set up a system of reporting and alternative punishments, and lived in a fool's paradise for a term. After the holidays, the new intake took full advantage of the disappearance of the tawse, and the rest of the school wakened up to the possibilities. My staff and I spent hours every week interviewing pupils and parents. Strathclyde region was so ill-prepared for the subsequent disorder that, after a few months, head teachers protested in the press. The system sat up and took notice, and attempts were then made to find workable alternatives.

It was felt that the transition from the formal availability of corporal punishment, or the status quo, in schools at that time to the ban was arbitrary, too rapid and not accompanied by anything other than publication of a change to the law. Thereafter, people were left to their own devices. Teachers were resentful and unconvinced. The alternatives did not have the deterrent effect of corporal punishment, and the parents, staff and pupils were not prepared for the change.

I therefore support Mike Russell's amendment to publish full details of the planned legislation without delay. In particular, I support his proposal to emphasise that there must be great stress on education to teach potential parents and existing parents how to control situations that could start the kind of parent-child confrontation that might lead to the parent feeling that physical punishment was the only option. I think that most of us who are parents have been there.

That will involve a change in the it-didn't-do-me-any-harm point of view, which, in the hands of an individual whose own childhood was blighted by severe physical chastisement or corporal punishment, can mean that his or her child is severely chastised by what we might all agree are normal standards. I recall a parent to whom I suggested that grounding his child all weekend was inappropriate for the offence committed. His response was that he used to be tied naked to a chair in his bedroom when he misbehaved at home, so his treatment of his child was reasonable by comparison. Another parent once told me, "Just take him in your cupboard, Mr Campbell, and give him a doing." I demurred, naturally. That parent also said that his older son was cured of thieving by the parent spreading his hand on the table, taking a hammer and threatening to break his fingers one by one if he ever thieved again. Those men's children are in all probability parents themselves now. I wonder how reasonable they are when they chastise their children. That is why we need the legislation.

Along with a more detailed definition of how much physical chastisement is enough, or the situations in which it can be legitimately applied, we also need an accompanying plan to educate parents in family crisis avoidance, family crisis management and family conflict resolution.

It is interesting that Lord James Douglas-Hamilton has chosen to take the Tories back to the old certainties. I do not know whether that is in anticipation of the announcement at 5 o'clock. The tone of his speech was discouraging and dispiriting. I might not agree with what Mike Russell said, but at least he made a genuine attempt to take the debate forward in a constructive manner and recognised that there is a problem. Unfortunately, the Tories rest on prejudice and bigotry in the widest sense of those words.

Over the years, there have been too many horror stories of physical, psychological and emotional damage inflicted on children. We need a system that protects them. Lord James Douglas-Hamilton said that it is easy to highlight the most obvious criminal cases that are clearly beyond the law. However, there are many recorded instances of people doing things that are not outwith the law but that left a terrible mark on individuals.

Famous Scots stars have talked about their upbringing after the break-up of their parents' marriage when they were put out to live with other members of the family. They have spoken movingly about the problems that they faced as children and the mark that was left on them throughout their lives by what relatives did to them—possibly with the best of reasons and intentions. Unfortunately, in many instances society is predicated on and accepts violence. We must introduce a system that starts to move us away from the use of violence and from talk that violence is acceptable.

Unlike Mike Russell, I welcome the Executive's motion. It is an opportunity for people to express concerns, doubts and worries. We need to ensure that we get things right. We need a system that supports and protects children, but that also supports parents. As Iain Gray said, we recognise the difficulties that parents face in bringing up their children and we do not want to do anything that would undermine or weaken them. Definitions must be precise. If we are to change the law, we cannot afford to introduce more confusion and dubiety. We need not only to ca' canny, but to ensure that we get things right. A credible system is needed. If we introduce legislation that clearly does not have parents' support, makes the law difficult to enforce and leads to nothing but legal wrangles and squabbles, we will have failed children and parents.

However, it is right to try to take the debate forward. Dubiety must be removed and definitions clarified. Anything that can be done must be welcome. For too long, too many children have suffered, not at the extremes, but near the margins. That has left a terrible mark on those children.

I have listened to the minister. It could be said that the path to hell is paved with good intentions. I do not doubt his sincerity, but I believe that he is making a grave mistake in supporting the Deputy First Minister's proposals. I welcome the fact that he has not listened to the call from many of his back benchers to go for an all-out ban on smacking—that would have been a grave mistake—but I regret that he has pandered to them by proposing the ban that he intends to impose. There is no need to clutter up our legislation in such a way.

The proposal is an insult to the great majority of loving and caring parents, who are responsible and whose disciplined approach of choice is much needed in our society. Those parents ensure that their offspring attend school, keep reasonable hours, behave well in public and respect other people's property. That majority is best placed to judge how they will discipline their children—in a reasonable manner—and how to draw their child's attention to a misdemeanour or to a hidden danger on the spur of the moment. They are in a position of trust and they should not be turned into criminals for carrying out an action that they consider to be in the best interests of their child.

Will the member give way?

I do not have time.

On another aspect, perhaps the minister will reflect on problems in the Crown Prosecution and Procurator Fiscal Service. The system is under pressure and, just a few weeks ago, had to abandon the case of a 14-year-old rape victim because it could not proceed with the case. The service is experiencing resources difficulties and a lack of experience because of failures in recruitment and retention. If we proceed with the proposal, we will overwhelm the service and lose out on more important issues.

I acknowledge that, unfortunately, there will be the few who abuse their children in an unreasonable manner. However, I point out to the minister that that physical abuse is catered for under the 1937 and 1995 acts. The minister should reflect on that once again.

I also ask the minister to reflect again on other pressures that are put on children—for example, mental pressures from someone who might not smack their child. It could be said that restrictions of movement, suppression of friendship and undermining a child's confidence all end up damaging a child immeasurably. We must put our trust in parents on such issues. The same is true for the physical dimension.

I know that compliance with the European convention on human rights is an issue that will come into the debate. On this occasion, I choose to answer such arguments not in my words, but in those of a mother and grandmother—Mrs Allen of Peebles. Many members might have received the letter from her, in which she says:

"They talk of human rights of the child, but by taking away the rights of parents to discipline on an individual basis they cause harm to the child's future."

I believe that Mrs Allen's view is that of the silent majority. She has never heard of the consultation paper, but she has firm views. I believe that she understands, knows and loves the children who have been under her care for many years.

I am sure that members agree that good parenting is about using common sense. Therefore, I intend to put the proposals to the test of common sense. Let us see how they stand up.

One of the proposals is a ban on shaking. As Dr Richard Simpson put it, anyone who has seen the damage that is done to a child who has been violently shaken knows that the ban is common sense. Even my old grandmother knew that. Granny used to say, "Never shake a wean—their wee brains will rattle about." Dr Simpson will agree that those are not exactly medical terms, but Granny was spot-on for common sense.

Another proposal is a ban on blows to the head. Again, Granny had words for that, but she used the words of her time. She would say, "Never hit a wean on the head—you'll knock it daft." Those were not medical terms and they were not politically correct, but they were common sense.

A ban on the use of implements to hit children is also proposed. Members will be glad to hear that I cannot remember Granny's words on that subject. However, I know that she never used a weapon on a child. I think that Granny would have found strange the idea that someone could not smack a little hand that was reaching for the bar of an electric fire or about to take a drink from a bottle of bleach.

Think about this. I could at any time charge over to Labour benches and start skelping one of their number—and heaven knows I have been tempted—but if I did I would get lifted and charged with assault. If I did it to my child, however, I could claim that I was exercising reasonable chastisement. Legal clarification of what constitutes reasonable chastisement is urgently required. I cannot hit my husband as that would be domestic violence and I cannot take a stick to a dog as that would be animal cruelty but, as matters stand, children are fair game.

As members will have gathered, there is much in the Executive's proposals with which I agree. The problem is that, although they are well intentioned, they are confusing—in their present form, they appear to be unworkable. We need detail. The SNP amendment calls for detailed proposals to be produced at the earliest opportunity, so that we can have an instructive and informed debate on the subject. Legislation must be effective but, more important, it must be capable of effect—it is essential that any change should not simply be a matter of introducing legislation.

We should consider what has been achieved on the issue of domestic violence. Our laws rightly demand zero tolerance but, alongside that, we have continued to educate men and women in order to effect a change in attitude towards violence in the home. If the law is our defence, education is our protection. That is how it should be with violence towards children. The law is the defence for those who cannot protect themselves. Education for parents is the means by which we will make life better for all Scotland's children.

We must now move to closing speeches. I apologise to the two members whom it has not been possible to call.

The Scottish Executive announced its consultation on the physical punishment of children in February 2000. Parliament debated the subject on 24 February 2000. In that debate, Nicola Sturgeon, then the nationalist education spokesperson, stated that it was important that the Executive did not prejudge the outcome of the consultation. She went on:

"We must be clear about the principles that inform the debate … Children's interests are paramount. They have a right to be protected from physical assault in the same way as any other member of society."—[Official Report, 24 February 2000; Vol 5, c 115.]

As the Deputy Minister for Justice stated, the importance of consulting children and seeking ways of ascertaining their views was also stressed. We have had the consultation and the Minister for Justice has announced his intention to legislate in certain areas. I whole-heartedly support last week's announcement and look forward to the introduction of the proposals in a forthcoming criminal justice bill.

We have heard that the main legislation governing the protection of children still lies in the Children and Young Persons (Scotland) Act 1937. As I stated in the debate 18 months ago—in total contrast with what we have heard from Tory members today—I feel that the use of the phrase "beyond reasonable chastisement" in that act has not served to provide good case law. It is too vague and can be interpreted widely and differently by parents, by the police and especially by the courts. Maria Fyfe, the former MP for Glasgow Maryhill, proposed a sensible amendment during the passage of the Children (Scotland) Act 1995. Unfortunately the then Tory Government would not accept it. The amendment would have outlawed the use of implements on a child. The fact that that is to be outlawed in forthcoming legislation is to be welcomed, as is the proposal to outlaw the shaking of a child, which, as we heard, can have devastating consequences.

Most members will be well aware of my personal view on physical chastisement—we should be considering the introduction of a ban. In summing up last year's debate, the then Deputy Minister for Children and Education, Peter Peacock, said that he had no difficulty in accepting my view as a matter of principle. However, he acknowledged—and I agree with him—that that view does not seem to be shared by the majority of parents in Scotland.

Today, we have heard that 10 European states—led by Sweden in 1979—have totally outlawed the physical chastisement of children. I accept that that occurred against a backdrop of a fair degree of public consensus. When those countries—particularly the Scandinavian ones—moved to that position, the public were significantly behind it. The change came with relative ease instead of great controversy and parents did not feel that big government was intruding unnecessarily into their daily lives.

However, I fully accept that any initiative, including those proposed by the Executive, cannot happen in a vacuum. There must be an on-going educative process for parents, young people and others in society on why the current proposals are right and on why far more effective means of discipline than physical punishment are available.

Will Scott Barrie admit that some of the measures that the minister announced will make things more complex instead of simpler and more effective? We heard the example of childminders, who would be committing an offence if they slapped a child at the childminder's home but not if they slapped the same child at the parents' home. Do we really need such complexity?

As the minister indicated in his responses to interventions, we have not seen the actual proposals. Such issues should be debated at committee stage when the bill is introduced.

We have read and heard in some quarters of the media—indeed, we have heard it in the chamber today—that the Executive's proposals smack of the nanny state or are simply a politically correct response. I am a bit sick of people who, when they have a weak argument or none at all, resort to the statement, "It's only PC." The proposals are not just politically correct, but morally right. They do not seek to criminalise a whole section of caring parents; instead, they will afford children the same protection that is enjoyed by every member of the Parliament. It seems that the Tories do not wish to confer that protection on our children. The proposals will not result in the prosecution of trivial offences, just as trivial assaults between adults are not the subject of prosecution. That has been the experience in Sweden, where the number of child abuse cases has fallen in the past 20 years. Sadly, during the same period, the number of cases of child neglect and physical and sexual abuse in Scotland has risen dramatically.

I find myself in something of a rush now that the debate has been curtailed.

I will reply very briefly to some of the issues that have been raised today. In particular, I agree with Hugh Henry's comments on the difficulty that he foresees with, for example, shaking a little child when they are about to run out on to the road. That said, I understand Dr Simpson's concerns about shaking a child unreasonably; indeed, a case in America that has come to light only today concerns a nanny who shook a child until it was deaf. There is a distinct difference between that and the example that Hugh Henry highlighted. It is easy to take a wee child by the arm and tell them, "You're not supposed to run into the road."

On Sunday, I saw a three-year-old toddler about to run into the road on one of those estates where you go and buy things. I wanted to shake the parent for not taking a child of such tender years by the hand. More often than not, the problem is poor parenting.

Will the member clarify the Conservative position? I have to say that it was not clear from Lord James Douglas-Hamilton's speech. Are Conservatives against all the proposals in the Executive's press release, such as the total ban on blows to the head and the use of implements, or are they against some of the inconsistencies?

We do not yet have the full detail of the proposals; what we want—and what we should be considering—is a bill. I welcome the moves that the Executive has made. The previous time we debated this issue, I lodged an amendment that asked for further clarification of the Executive's proposals. This is a welcome step towards that aim, but we do not want a rush to legislate.

I am interested in pursuing the Swedish example that Scott Barrie mentioned. I do not doubt that, in the Swedes' view, their experiment was successful; however, we must remember that it had a long lead-in time. Most of the public supported the idea before the legislation programme was even started. The minister is nodding, but we seem to be trying to put the cart before the horse.

Lyndsay McIntosh makes a fair point. In Sweden, public opinion was with the Government when it moved towards a complete ban on smacking. The consultation that we have undertaken shows that 77 per cent of those who responded are completely behind us in moving towards the partial ban that we have outlined in the proposals. I would therefore expect Lyndsay McIntosh to welcome them.

We are not comparing eggs and eggs; we are comparing apples and oranges. We are talking about a complete ban and moves towards it. We are not comparing like with like. However, I appreciate the point that the minister makes.

The point at issue is whether we should legislate. There is a case for clarification in the law and I am glad that the Executive has responded to it. We are getting ourselves tied up in the notion that the only thing that we should be talking about is smacking or skelping, when we should be examining parenting skills and changing the way in which we view them.

There are much better ways of disciplining children than physical punishment. The choice should be left to parents, but there are much more subtle—and better—forms of child chastisement and disciplining. The last time we debated this issue, I gave examples of such methods from my experience of child rearing—in which, as Mike Russell has suggested, I have considerable experience. Even as they grow older, children need to be encouraged to behave in one way rather than another—and I speak as the mother of someone who is almost 17. For a parent, the most potent weapon, one might say—although I prefer to call it a tool for persuasion—is access to the family car when a child wants to have driving lessons. The suggestion that the parent might not allow their child to have driving lessons or give them access to the car is far more powerful as a bargaining tool than the threat of a smack.

In summary, we are glad to have received the clarifications that the Executive has proposed, but we doubt whether now is the time to impose regulation. We needed the long lead-in time. The courts are already in existence. We are concerned that the Executive has chosen to consider an ill-conceived and unnecessary piece of legislation now. Nevertheless, we look forward to seeing the detail in the bill when it is introduced.

This has been a good debate which has made it clear that all members are genuinely concerned about the welfare of children. There are differences of opinion, of course, but they are not necessarily of a party-political nature. It is no secret that my views are similar to those of members of other parties, as I reflect the views of children's organisations on the issue.

I firmly and sincerely believe that it is wrong to hit children, just as it is wrong to hit adults, and I would like to see a fundamental change in our society that would protect children from harm and provide absolute clarity to parents on forms of punishment that are permitted by law. Only a complete ban on all forms of physical punishment would meet both those aims.

As Dr Simpson said, in Scotland the law on assault protects everybody except children. There is no problem with public confidence in a law that already prohibits all assaults on adults, including those that take place in the home. Similarly, there is no problem in implementing a law that prohibits all assaults on children in the care of teachers, foster carers, residential carers and others. So why stop there?

Parents are permitted to chastise their children reasonably, but the imprecise nature of that permission has given rise to subjective and variable interpretations. I would prefer that concept to be abandoned; the Executive prefers it to be clarified and restricted. Perhaps it is right to ask whether the solutions that have been outlined in the Executive's proposals are either enforceable or effective. They try to suggest where a child can or cannot be hit; with what a child can or cannot be hit; and in what circumstances a child can or cannot be hit. No other European country has ever sought to establish those kinds of definitions, and nor should we.

Far from sharpening the focus of the law to protect our youngest children, the new precision merely introduces uncertainty for all. The proposed solution is confusing and could be ambiguous for children and adults alike. Ideally, we should be aiming to alter public attitudes towards corporal punishment and establish a clear framework for parent education and support, which several members have mentioned today. The Executive proposals lack a planned public education programme that would provide support for parents in moving away from smacking to positive discipline. Most parents would welcome such advice and guidance. That is an essential component because legislation is not the only way—nor is it the best way—to achieve an ideological shift in society's values.

The Children are Unbeatable! alliance has closely examined developments in many other European countries—there are now nine in which smacking is illegal—and knows that such reforms, which were invariably implemented ahead of public opinion, quickly come to command public confidence and support. That is because, coupled with public education campaigns, they are effective in changing attitudes and practice. In those nine countries, parents do not get prosecuted for trivial assaults on children and state intervention in families does not increase. The reforms are about education, not punishment. They are about changing attitudes and moving society towards positive discipline. The intention is not to criminalise parents but to protect children.

The views of children have not been sufficiently heard yet on this issue but I suggest that their opinions should be what influences our policy decision most. The research that was carried out by Save the Children, and which was referred to by the minister, was informative. Some 93 per cent of the 400 children across Scotland aged between eight and 16 who were asked said that they would prefer adults to use alternatives to smacking. Indeed, the children who were aged between five and seven did not use the word "smacking" but "hitting".

Children need to be protected from violence in all its forms and they should have the opportunity to learn right from wrong through positive and non-violent forms of discipline. In the meantime, if the measures before us are to be successfully implemented, the Executive must provide extensive information on the new law, the reasons behind it and, crucially, alternative methods of disciplining children. Children deserve no less from this Parliament.

I have some sympathy with the spirit behind the amendment in the name of Michael Russell and, as Nora Radcliffe said, we could perhaps have accepted it, with a few relatively minor changes.

In the consultation paper on the physical punishment of children that the Executive published, we made clear the position under the European convention on human rights and the UN convention on the rights of the child. Neither expressly prohibits the physical punishment of children. What is all important to the interpretation of the conventions is the intention, the nature and the scale of the punishment.

The ECHR judgment of A v the UK concerns a case in England and Wales. In that case, a child was caned by the future stepfather. The ECHR found that to be inhuman and degrading treatment. There has been no Scottish ECHR case concerning parental chastisement, although it was an ECHR case that resulted in corporal punishment being abolished in schools. However, in a recent Scottish case, our courts found that it was unreasonable for a father to smack his eight-year-old daughter on her bare bottom to punish her for refusing to submit to dental treatment. Our legislation will deal with the issue of caning. On the issue of smacking an eight-year-old, the courts will continue to decide, taking into account the statutory factors that we are proposing.

I was reasonably relaxed about the Executive's proposals until I heard the Deputy Minister for Justice's opening speech today. I do not understand how he is certain that retribution is the primary purpose of physical chastisement. Will the minister please clarify that that is not the Executive's view and that it is not the raison d'être of the motion?

I clarify that the proposals are about what is reasonable, not about retribution. Our proposals are designed to set out statutory factors for the guidance of the courts and to clarify the boundaries for the parents.

Jim Wallace's answer to a parliamentary question from Duncan McNeil on 6 September made it clear in considerable detail what we propose to put in legislation. We will include in statute guidance to the courts as to what factors they should take into account in determining whether punishment was reasonable. As proposed in the consultation paper, the courts would be required to take the following factors into account: the nature and context of the treatment; its duration and frequency; its physical and mental effects; and the sex, age and state of health of the child. The list not will be exhaustive, so that other factors can be taken into account depending on the circumstances of the case.

In addition, we propose that legislation should contain a list of types of punishment that would never be permitted. Those have been covered already. They are blows to the head, shaking and the use of implements.

I was slightly hopeful when the minister rose to speak because I thought that he was going to discuss the matter in terms of the education, rather than the punishment, of parents, but we have just heard that there will be a list to which courts can refer.

We have already heard, in the Deputy Minister for Justice's opening speech, of the difficulties of interpretation on matters that came from sympathetic back benchers. He talked about drawing lines rather than changing behaviour. Is the minister telling us that we will have a table of acceptable behaviour? It strikes me that the confusion that that will cause will be almost impossible to deal with. It will not clarify matters; it will make them more difficult.

I am not saying that. I have made that clear. The legislation will contain factors that should be taken into account—exactly the factors that I have just described.

Will the minister give way?

I am sorry; I must make some progress because of time.

Will the minister give way?

I will give way briefly.

The minister referred to the individual who smacked his eight-year-old daughter. Is he aware that the court admonished that individual and that as a consequence he lost his job? The effects on the child must have been horrendous. Is that not a warning on the danger of criminalisation?

We must make up time, minister.

I am sorry.

I am fully aware of what Phil Gallie says. My point was that, under the present law, the individual was found guilty and the behaviour was found to be unreasonable. Phil Gallie correctly described the consequences that followed.

We propose to ban physical punishment of children under a certain age. Our current intention is that the cut-off point should be two years old or under. I have no doubt that there will be further debate on that. We will extend the ban on corporal punishment to all regulated child care.

It would be hard to publish fuller details of the proposed legislation without publishing the legislation itself. Most of the proposals would be suitable for introduction in the criminal justice bill that the First Minister announced in the legislative programme, but those that concern regulated child care will be covered in regulations that are provided for in the Regulation of Care (Scotland) Act 2001. We will, of course, consult on the detail of those regulations.

Further details will be published as we proceed with the preparation of the necessary legislation. We intend that any change in the law will receive widespread publicity. The first stage in that process has already begun. The media coverage already indicates a high degree of public awareness, although some of the press coverage has unfortunately been misleading.

A key element—I refer to Mike Russell's intervention—is to help parents through education. Advice on different methods of discipline is already widely available from a number of children's charities, including Barnardos. I believe that more needs to be done to help parents and to help improve parenting skills. We want to help children and parents by clarifying the law and letting everyone know where the line is being drawn, but we must go further than that. The Executive has been giving careful consideration to the development of parenting support in Scotland.

We recognise that being a parent is often the most challenging and rewarding task that anyone will ever undertake. Children do not come with instruction manuals. Many parents—in my view, all parents—experience difficulties in parenting. It is important to recognise that parents sometimes need advice or support. Too often in Scotland, parents are asked whether they wish to go to antenatal classes but, after that, support stops altogether.

We do not want the legislation to be prescriptive or compulsory, as some have suggested. Nor do we want to interfere in family life or parents' religious beliefs. We simply want to ensure that there is a correct framework, that children in Scotland are safe and secure and that support is available if it is requested.

By stopping blows to the head, shaking and the use of implements, we will help to protect children. Our approach will provide the balance sought by most parents in Scotland. They will have the freedom to decide for themselves how to bring up their children, including whether their children should, in due course, be subjected to physical punishment. Parents will have clear limits on what is and is not permitted in the way of reasonable chastisement. Their children will be protected from the kind of punishment that creates the greatest risk of injury.

We are responding to the attitude of parents in Scottish society today. A society's attitude changes and I am sure that Parliament will want to return to the issue in future. Our proposals are measured and reasonable. We will seek to include our measures in the forthcoming criminal justice bill. We shall also bear in mind the many valuable points made in today's debate.

The Conservatives—and particularly Lord James Douglas-Hamilton—have used strong words today. I will use their own words from last February's debate on the physical punishment of children. They called on the Scottish Executive

"to clarify the definition of reasonable chastisement so that both parents and children are sure of their rights within the law."—[Official Report, 24 February 2000; Vol 5, c 120.]

Lyndsay McIntosh made that proposal and it was supported by all the Conservatives, including Lord James Douglas-Hamilton. We are doing precisely what they suggested.

The judgment of what is reasonable punishment is not, and never should be, left to the individual parent. Clearly there are strong views on the issue. We simply seek balance and clarity in terms of what is reasonable. That is why we intend to introduce legislation in the first part of 2002.