Meeting of the Parliament

Meeting date: Thursday, October 3, 2019

Official Report 1140KB pdf

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Children (Equal Protection from Assault) (Scotland) Bill

As members will be aware, at this point in proceedings, under standing orders I am required to decide whether, in my view, any provision of the bill relates to a protected subject matter: that is, whether it modifies the electoral system or franchise for Scottish parliamentary elections. In my view, no provision of the Children (Equal Protection from Assault) (Scotland) Bill relates to such matters and therefore, the bill does not require a supermajority at stage 3.

We move to a debate on motion S5M-18623, in the name of John Finnie, on the Children (Equal Protection from Assault) (Scotland) Bill.

16:16  

I am delighted to open the debate on whether the Parliament should pass my bill: the Children (Equal Protection from Assault) (Scotland) Bill. It has been a privilege to lead the work of many dedicated organisations and individuals—both within and outwith Parliament—without whom the bill would not have been possible.

I have a lengthy list of thanks. I thank the convener and members of the Equalities and Human Rights Committee for the diligent and measured consideration of my bill that was displayed throughout the evidence sessions and at stage 2. Special thanks are due to the committee’s clerking team. I thank the many colleagues, from all parties in the Parliament, who have offered their support and advice as my bill has progressed. I offer thanks for the tremendous assistance from those outside Parliament: Barnardo’s Scotland, the National Society for the Prevention of Cruelty to Children, Children 1st and the Children and Young People’s Commissioner’s office.

I am also grateful to the Scottish Government and its officials for their support of my bill, and to the Minister for Children and Young People, Maree Todd, for her active and informed support. I also thank Nick Hawthorne of the Parliament’s non-Government bills unit and Catriona McCallum from the office of the solicitor to the Scottish Parliament for their tireless work. Finally, huge thanks also go to Steven Dehn, my tireless and long-suffering office manager, for leading the work in my office on the bill.

Last week, the leaders, and interim leaders, of all the Parliament’s parties received a letter from the President of the Faculty of Public Health, Professor Maggie Rae. The letter was co-signed by, among others, representatives of the British Medical Association public health medicine committee, the Royal College of General Practitioners Scotland, the Royal College of Physicians and Surgeons of Glasgow, the Royal College of Physicians of Edinburgh, the Royal College of Psychiatrists in Scotland and the Royal College of Paediatrics and Child Health. The letter urged the party leaders to show their commitment to supporting the health and wellbeing of Scotland’s children, specifically stating:

“We want a Scotland where all children can thrive. We want to support and empower families to give their children the best start in life. We want to deliver this bill to stop the long-lasting consequences of violence against children in Scotland.”

That is exactly why the bill was proposed to Parliament. For decades now, we have become increasingly aware of the long-term effects of physical punishment on children. The research is irrefutable. Professor Sir Michael Marmot of University College London, in the foreword to the report “Equally Protected”, which was published in 2015, stated:

“The international evidence could not be any clearer - physical punishment has the potential to damage children and carries the risk of escalation into physical abuse. It is now time for action.”

He went on to say:

“On the issue of physical punishment, Scotland is out of step with Europe and increasingly, the world. There is an urgent need for Scotland and the rest of the UK to comply with international human rights law and to prohibit all forms of physical punishment.”

During stage 1 evidence, Dr Anja Heilmann, one of the lead authors of the “Equally Protected” report, told the committee:

“Our report on the evidence on physical punishment shows very clearly that such punishment has the potential to harm children; that it is not effective as a parenting strategy, because it tends to increase problem behaviour and children’s socioemotional difficulties”.—[Official Report, Equalities and Human Rights Committee, 28 February 2019; c 7.]

The committee heard plenty of evidence on the physical and emotional effects of the current permissive law on Scotland’s children, as they experience it.

I will take some time to discuss the wider effects of the current law in Scotland. What does the law teach the youngest members of our society? Surely, the answer is that might is right. Imposing one’s will on a child through the use of force teaches that that is a legitimate means of mandating a desired behaviour. When rational argument will not do, physical imposition of power legitimately prevails.

It is difficult to see how the aims of equally safe—the strategy to prevent violence against women and girls—which I am sure that every member supports, can be achieved while there is a contradictory legal approach that says, on one hand, that there is a zero-tolerance approach to violence in the home, but that an assault on a child may be subject to a legal defence of justifiable assault.

Critics of the simple reform have often accused the bill of criminalising parents. There is no evidence that a change to the law has resulted in an increased number of prosecutions in any of the more than 50 countries where similar reforms have taken place. In fact, the change in the law in Ireland prompted more parents to contact services to ask for help and support with alternative disciplining techniques. Surely that should be welcomed as an encouraging consequence of a positive legal change.

In Scotland, we have many support services that are provided by both the Government and the third sector. Anticipating a reaction in Scotland, if the bill is passed, similar to that in Ireland, those services—including “Ready Steady Baby!”, “Ready Steady Toddler!”, our health visitors, parent clubs, parentline, Childline and the One Parent Families Scotland helpline—are ready to help parents. I am grateful to all those who are involved in those on-going preparations, the fruits of which will be harvested should members pass the bill this evening.

It is very nearly 30 years—20 November is the 30th anniversary—since the United Nations Convention on the Rights of the Child was signed. Since then, states across the world have been required to protect children from all forms of violence. The United Kingdom has been criticised repeatedly for failing to take sufficient steps to comply with the requirements of the UNCRC.

My bill aims to bring Scotland into line with what appears to be becoming the international standard in 57 countries—Sweden was the first country to introduce such reforms in 1979, Ireland did so in 2015 and Nepal did so in 2018. The UK is now one of only a few European countries with no such protections, so I am delighted that, following a long campaign in Wales, Julie Morgan AM, the Deputy Minister for Health and Social Services—whom I had the great pleasure of meeting recently—is introducing a bill to give children equal protection. The bill was supported at stage 1 by Welsh Labour, Liberal Democrat, Conservative and Plaid Cymru AMs. Since stage 1 of my bill, more countries have given legal effect to measures that will protect children from all forms of violence. This evening, I hope that Scotland will join South Africa, France and the Republic of Kosovo in doing so.

I move,

That the Parliament agrees that the Children (Equal Protection from Assault) (Scotland) Bill be passed.

16:24  

I am delighted to speak today for the Scottish Government. I thank John Finnie and his team for all their efforts in progressing the bill. I say to Mr Finnie, who is planning to retire at the end of the parliamentary session, that the Scottish Government is absolutely committed to upholding and promoting the legacy that he leaves in the Scottish legislative landscape in the form of the Children (Equal Protection from Assault) (Scotland) Bill.

I thank children’s charities for their support of the bill and for the valuable insights that they have provided during the parliamentary process, and I pay tribute to Jillian van Turnhout, who I know is here today. Ireland led the way in these islands in removing the reasonable chastisement defence, showing how simple it could be to protect children equally.

The bill is supported by a wide range of bodies and individuals. The Faculty of Public Health, other health bodies and bodies that work for children jointly signed a letter on 23 September urging the Scottish Parliament to support the bill today. There is support from many other bodies as well, including women’s organisations and family law academics. The breadth of support for the bill clearly shows its importance.

As the Minister for Children and Young People, I am committed to making Scotland the best place in the world for children to grow up. That means placing children’s rights at the heart of what we do, so that we create a Scotland where children feel loved, safe and respected. The removal of the defence of reasonable chastisement will help to ensure that that goal can be achieved. The bill places Scotland in the vanguard in the UK in providing children with the same legal protection from assault as adults. That is the kind of country that I want my children to grow up in.

The Scottish Government supports the removal of the defence. Its very name—reasonable chastisement—is outdated and unconscionable. It suggests that it is sometimes acceptable to hit a child, which is at odds with the Scottish Government’s aim of helping children to grow up feeling safe. It is also at odds with the international evidence that shows that the physical punishment of children is harmful and ineffective. In line with that international evidence, many countries have already changed their laws in that area, in ways that are appropriate to their legal systems.

By removing the reasonable chastisement defence, we will provide children with the same legal protection from assault as adults. Why would we not want that for our children? By doing so, we will also ensure that Scotland’s approach is consistent with international treaties, best practice in human rights and the United Nations Convention on the Rights of the Child.

Section 2 of the bill provides that

“The Scottish Ministers must take such steps as they consider appropriate to promote public awareness and understanding about the effect of section 1.”

Should the bill be enacted, we will take forward that obligation, as well as considering what else might be needed for implementation.

We acknowledge the importance of raising public awareness of the effect of the removal of the defence. That is why we have formed an implementation group, which has already begun to consider what might be required to implement the bill, should it be enacted, including awareness raising among parents, children and organisations, and the provision of resources. In line with the lead committee’s comments at stage 1, we will also consider how we can effectively raise awareness in hard-to-reach communities and minority groups.

We promote positive parenting in our work with the third sector and through the universal and targeted support that we provide to families and the resources that we make available. We already have trusted channels of communication, such as the Parent Club website, through which we can raise awareness about the bill, as well as continue to promote positive parenting and provide practical tips and support for parents.

As a parent, I understand only too well the unique challenges of parenting and I understand the value of having access to practical support in high-stress moments. When we fulfil our obligation to raise awareness about the effect of the bill, we will not scold or cajole. As Liam Kerr said during stage 2,

“Our goal should be to help parents to provide the best environment for their children”.—[Official Report, Equalities and Human Rights Committee, 20 June 2019; c 15.]

The Scottish Government whole-heartedly endorses that goal.

Finally, I want to talk about clarity. As the bill has progressed through Parliament, we have heard many times that it will bring much-needed clarity to the law. The bill will make it absolutely clear that the physical punishment of children is not acceptable, and that clarity will help parents, carers and others. There will be certainty about what the law is—

Will the minister take an intervention?

The minister is just closing.

Parents will know what the position is, and front-line workers who support parents will finally be able to provide clear, unqualified advice in this area.

In conclusion, I hope that we will vote today to remove the antiquated defence of reasonable chastisement from the law of Scotland. I commend the bill to Parliament.

16:30  

As I stated during the stage 1 debate and the stage 2 consideration of the bill, I believe that violence against children is wrong. However, that is not the issue that is before us today. We are being asked to pass into law primary legislation that is imprecise and suboptimal. Those who support the bill have stated that it is the only option. In fact, we could have passed primary legislation that said up front—at the start—that the physical punishment of children is wrong. That is what some of the other countries that members have mentioned have done. We could have made a clear statement on that, if the Parliament had wanted to do so. Instead, we have decided to do half a job. In doing so, we are misdirecting our focus and passing legislation that could unnecessarily criminalise good parents and draw others needlessly into the criminal justice system.

If we had brought to Parliament a bill that said up front that we would end the physical punishment of children, would the member have supported it?

Yes, I personally would have supported it.

As I said today in an interview, the physical punishment of children, with the right thresholds and safeguards, should be considered, but I respect the right of parents to make some of those choices for themselves. That is why the threshold for state intervention is very important. It should be set high for criminal intervention—it should not be the case that any physical punishment is instantly prosecuted. That approach is what members on the Conservative side of the chamber are asking for.

We are relying entirely on prosecutorial guidance to save parents from an intervention by the state. Parents are not able to foresee the circumstances in which they could find themselves entangled with the criminal justice system. One person’s idea of what constitutes a mild tap on the hand or a tap on the backside may be quite different from someone else’s, but we will have that discussion only at the end of the process. When we have previously passed legislation to change the common law and introduce new offences, we have set out in detail where we think that the law should start and end. In this case, we are leaving things wide open.

What weight does the member place on the evidence that we heard in committee? As other members have said, we heard loads of evidence from a lot of different organisations saying that the concerns that he outlines will not come to fruition. What weight do you place on the evidence from the countless number of agencies that came and spoke to the committee?

I thank Fulton MacGregor for that intervention, and I say this as gently as I can. Very recently, I sat through the consideration of the named person legislation in the Parliament. The Deputy First Minister said to me that he was confident that we could come up with a draft legal code, but we then found out down the line that that was not possible.

I respect the views of those organisations and the principle that they are fighting for, but we could have had a much more robust piece of legislation before us that was far less narrow in its intent. The member who introduced the bill was not able to give me a clear answer earlier on whether the rules that the bill seeks to change in law would apply only to physical punishment or whether their scope is potentially broader. In response to my point and the point that Daniel Johnson made, the minister has not been able to say for certain where the intention with regard to what kind of behaviour should be seen as criminal starts and ends. We are asking the Lord Advocate to decide whether individual cases should be prosecuted. As parliamentarians, we should take responsibility for setting out clearly, in primary legislation, when we think people should be caught within the ambit of the criminal law.

The bill is not acceptable. I refer members to the article from Dr Andrew Tickell. which captures the point. Too often in this Parliament, we like to make grand statements about our views. In this case, we want to pass moral judgment on the behaviour of others and place that behaviour within the criminal law. We can say that we do not want to criminalise parents, but, as the Lord Advocate and multiple legal figures have said, the bill puts behaviour that is currently not criminal into a category of behaviour that is criminal. Therefore, it opens up the possibility of prosecutions.

Will the member take an intervention?

Certainly.

I am afraid that you have come to an end, Mr Mundell.

Before we move on, I remind members that they should speak through the chair, even when it comes to interventions. Please do not have conversations with each other. I am still here. I have toothache and I am in a bad mood.

I can help you with that. [Laughter.]

16:36  

Presiding Officer, given what you have just said about being in a bad mood and having toothache, I do not know whether I want to speak now. [Laughter.]

I thank John Finnie for introducing this member’s bill and for all the work that he has done on the issue. I and my party have supported the bill since he introduced it to Parliament. By passing the bill today, Scotland will commit to protecting children from physical punishment. That is an important step forward for children’s rights.

As I said in the stage 1 debate,

“this Parliament is a guarantor of human rights and ... we have an obligation to protect the human rights of children ... The bill will help Scotland to meet part of its international human rights obligations under the UNCRC ... Scottish Labour is fully committed to the incorporation of the UNCRC into Scots law, and the bill is a step towards progressing that commitment.”—[Official Report, 28 May 2019; c 21.]

By prohibiting the physical punishment of children by parents or care givers, the bill seeks to give children equal protection from assault. The bill is not about criminalising parents and carers; it is about giving children the same protection in the law that adults currently have. Any kind of assault is assault. It cannot be justified by saying, “It was reasonable to hit that person.” If a person strikes another person, they are assaulting them.

In the committee, we heard evidence that demonstrated that physical punishment is harmful to children and is likely to lead to an increase in negative outcomes. Parents, children and family support services are best served if methods that do not involve physical punishment are adopted.

How does the member respond to Adam Tomkins’s earlier point that the category of “assault” is not necessarily limited simply to physical assault?

Assault is assault. If we assault someone, we are committing a crime. There are ranges of assault. We should not use force to control another individual. That force could take many forms.

The bill is often incorrectly described as introducing a smacking ban, but it is important to remember that it does not create a new criminal offence. Rather, it seeks to remove a legal defence, in order to give children and adults the same legal protection from assault. It is a bill about equality and respect for children’s rights. It gives children the same rights and protections that adults enjoy.

I understand the concerns that were raised by parents who argued that the bill could lead to an increase in the criminalisation of parents. However, the bill does not make changes to policing or to prosecution procedures and practices. Police Scotland says that it will continue to take a view as to whether there is enough evidence to charge a person, and the prosecution authorities will decide whether there is sufficient evidence to support the prosecution of a case.

International experience from countries that have addressed the use of physical punishment suggests that prosecutions will not notably increase following the passing of the bill. Ireland unanimously repealed its common-law defence of reasonable chastisement in 2015. Jillian van Turnhout, the former Irish Senator who introduced the amendment that led to the prohibition of corporal punishment in Ireland, said that since the implementation of the law, Ireland has

“not seen a dramatic increase in prosecution of parents.”—[Official Report, Equalities and Human Rights Committee, 21 March 2019; c 6.]

A key factor in the bill is the aim to facilitate a cultural change that will protect children from violence. The public education strategy will seek to work in the same way as the ban on smoking in public places and legislation requiring the use of seat belts worked—that is, not by criminalising people but by encouraging positive change.

Will the member take an intervention?

I am sorry; I have almost finished.

The importance of the campaign cannot be overemphasised. There needs to be a co-ordinated campaign message, so that parents, care givers, teachers and social workers are aware of the implications of the changes that are being made.

I hope that the bill will be backed with sufficient funds to raise public awareness of the change. Indeed, I hope that, having given equal protection from assault to children, we can focus on properly resourcing and supporting children who have experienced abuse. The bill does not provide for additional funding to help abused children and families in which abuse occurs. I sincerely hope that that can now be our focus, so that every child can grow up in a safe and loving environment.

I urge all members of the Parliament to vote in favour of the bill at decision time tonight.

16:41  

The law as it stands affords children less protection from physical assault than we adults benefit from. That is quite simply wrong. My colleague John Finnie seeks Parliament’s support to change that today, and to give equal protection to our youngest citizens. I am particularly proud to speak in support of my Green MSP colleague. I feel so strongly about the importance of legislating on the issue that if Mr Finnie had not taken the matter up, I would have sought to do so.

Barnardo’s Scotland says that

“we want to see a society and a culture where no violence against children is acceptable.”

Who could possibly disagree with that? The bill is part of an important change in our culture—a change to one in which non-violent ways of encouraging learning and behaviour change are championed.

The change that the bill will bring is long overdue. Article 19 of the United Nations Convention on the Rights of the Child gives children

“the right to be protected from being hurt”

or badly treated. Our current “justifiable assault” defence contravenes children’s rights. Today, we can change that.

I want to live in a country in which all children and young people know and understand their rights. I want our young people to know that rights are not just words, and that rights matter and can be realised. Human rights are not matters of opinion.

As Mary Fee said, Parliament prides itself on Scotland’s respect for human rights, but in every one of the 20 years of this Parliament’s existence, Scotland has been in breach of the UNCRC. Article 19 is absolutely clear. It says:

“States Parties shall take all appropriate legislative ... measures to protect the child from all forms of physical or mental violence”.

However, the existing loophole in our law says that it is sometimes okay to use violence when disciplining our children. It is not okay, as we have been repeatedly told. In 2002, the UN Committee on the Rights of the Child said that continuing to allow physical punishment is

“a serious violation of the dignity of the child”,

and

“undermines educational measures to promote positive and non-violent discipline.”

It is therefore no wonder that the bill is supported by Police Scotland, Social Work Scotland, Children 1st, the Royal College of Paediatrics and Child Health, the NSPCC, Barnardo’s and the Children and Young People’s Commissioner Scotland, to name just a few.

The bill is also strongly supported by young people themselves. A school pupil in my region wrote to me in support of the bill, as did many people. The pupil said of physical punishment, “it hurts” and

“could leave a mark or physically damage the child. Also ... it is very sore.”

They went on to say that

“people who are hit themselves think it is ok to hit each other and no person would like that, would they?”

Before I close, I pay tribute to John Finnie and his team. I know from experience that promoting a member’s bill, particularly on a topic that attracts such public and media attention, is a significant piece of work for the MSP and their staff. John and his tireless office manager, Stephen Dehn, have worked very hard to get the bill to this stage. I also thank everyone who has worked with them.

John Finnie will, as we have heard, step down from Parliament at the end of this session of Parliament after a decade as a member. He also had many more years as a police officer, and he has been a councillor, too. If the bill is passed this evening, it will stand as testament to someone who has spent their career serving others and seeking to improve lives.

We cannot allow the defence of justifiable assault to remain in our laws. If we are to create a Scotland that is truly the best place in the world not only to grow up in but to flourish in, we cannot implicitly endorse use of violence against children. Colleagues—we can change that today, by voting for equal protection from assault for children.

16:46  

I welcome to the public gallery Jillian van Turnhout and many dear friends and colleagues from the children’s sector with whom I used to work. Most important, I welcome the many children who are in the public gallery today. The bill is for them and the children who will follow them.

This is a proud and emotional day for me. Today, a road that I have walked for 20 years finally comes to an end. On that journey, I have stood shoulder to shoulder with some of the finest people I know. I thank them for their efforts—efforts that have spanned nearly a quarter of a century—to bring about the act that we shall pass this evening.

Three children’s commissioners, a former Irish senator and many advocates within the children’s sector have all played their parts, and together they represent the vanguard on children’s rights in our society. They will all be remembered for the change that they achieve today.

Together, we have worked to support the architect of the bill. As a former police officer and repentant parent who used to smack his children, John Finnie has lent wisdom, experience and understanding of the journey that so many Scottish parents have been on in recognising the harm that is caused by physical punishment. Thank you, John.

It is not a big law; it is not even a big change. The bill will simply remove the antiquated legal defence of justifiable assault on the ground of reasonable punishment. That legal defence used to allow men to hit their wives and servants and was removed long ago. We would not dream of allowing it to be reinstated. As such, the case for its repeal in relation to children is unanswerable.

People who have to deal with assault and abuse in our streets and homes made powerful representations to the committee. They told us that we shall forever fail in our efforts to end such brutality as long as the state sanctions any kind of violence in the home.

We have heard many arguments for retention of physical punishment and of the defence, but none has withstood the test of the committee’s scrutiny or the evidence that was offered by the bill’s supporters.

Smacking is not an article of faith; it is not demanded by scripture. It does nothing to prevent children from scalding themselves or running into traffic. Parents do not use its application consistently: they do not always retain control when they do, and a light tap on the wrist or the bottom is not the full extent of every parent’s intervention. That last point matters, because the only clarity that is offered in Scots law around physical punishment came by amendment in 2003. The sum total of statutory direction on the matter is that there should be no head shots, no use of implements and no shaking. That is it: on everything else, our law is silent.

Above all that lies the fundamental disparity between treatment of adults and treatment of children that the arcane defence creates. We would not for a minute consider relaxing the law on assault to allow physical punishment of an adult with the mental age of three as a tool of correction or protection, so why do we permit it for actual three-year-olds?

Will the member give way?

I do not have time.

To maintain the defence is to argue that in our society it is only okay to assault someone if they are smaller than you, if they have not yet reached adulthood and if they cannot hit you back. That is not compatible with our aim to be thought of as a human rights leader; it is not even compatible with our aim to be thought of as a civilised society.

Today, Scotland joins a family of more enlightened nations—countries that have recognised that the measure of a modern and progressive nation is in the rights that it extends to its most vulnerable citizens and in the protections that it offers its children.

I will take great pride in voting for the bill tonight.

We move to the open debate. We are really pushed for time, so speeches should be strictly up to four minutes.

16:50  

The bill is about rights. Children have the right to protection from all forms of harm and physical violence and they have the right to grow up in safe and nurturing environments that are free from violence.

When anyone’s human rights are denied, everyone’s rights are undermined and—as things stand—without equal protection from assault, children’s rights are not being realised. Their physical and mental immaturity means that children are entitled to and require more protection, not less. The current legal position in Scotland must change.

The bill, which I will be very proud to vote for this evening, is a simple one. By removing the defence of justifiable assault on the ground of reasonable chastisement, it will give our children in Scotland the same protection from assault as adults have. I take very seriously my party’s aim to make Scotland the best place in which to grow up and our commitment to incorporating into Scots law the UN Convention on the Rights of the Child. Removing that defence is consistent with that aim and with the commitment to human rights and international treaties.

Most witnesses at the Equalities and Human Rights Committee supported the idea that realising children’s rights could not be fully achieved without legislative steps to remove the defence of justifiable assault on the ground of reasonable chastisement. The Scottish Child Law Centre stated that

“If Scotland is to meet international standards of human rights and children’s rights outlined both in the European Convention on Human Rights and United Nations Convention on the Rights of the Child and to achieve its aim to be a nation which promotes the best possible start for children in life, then it is of crucial importance that any legal defence or justification for acts of violence against children are removed.”

Will the member take an intervention?

I have done a lot of listening during the passage of the bill, so I am going to share my thoughts for three minutes.

Internationally, use of physical punishment is, increasingly, regarded as unacceptable.

I acknowledge the difficulty and discomfort that the debate and the proposition cause some people. Many of us here grew up in very different times. Some of us might well have been skelped or smacked as we grew up and, yes, some of us might even have turned out all right. Taking action to improve things for children, now and in the future, is not, however, a judgment on our parents, their parents or parents now who are doing their very best, but the inescapable fact is that we know better now.

Evidence shows that physical punishment can cause long-term harm to children. It is associated with increased childhood aggression and antisocial behaviour, can be related to depression symptoms and anxiety among children, and carries a serious risk of escalation into abuse—all factors that not only impact on the child at the time, but can cause problems in later life. Even if it does not always do so, if physical punishment can cause harm, why on earth would we take the risk?

In closing, I wish to thank personally all the members—those who agree with me and those who do not—of the Equalities and Human Rights Committee, the Parliament staff who so ably and diligently supported us, and all the many folk who shared their views, opinions, worries and aspirations.

I give a special mention to the children and young people in Portree high school and Bun-Sgoil Ghaidhlig Phort Righ. Mòran taing. Bha sibh dìreach sgoinneil.

I aspire to a Scotland that is the best place in the world in which to grow up, and to a Scotland that protects and promotes human rights. I thank John Finnie for introducing the bill and for taking us a step closer to that place.

16:54  

In “Memory Hold-the-Door”, John Buchan, the Scottish politician, lawyer and novelist, recorded some of his personal recollections of people whom he had known, such as Lord Milner, whom he described as being the last man suitable for a particular task. I quote Buchan:

“He detested lies, and diplomacy demands something less than the plain truth.”

One wonders what Lord Milner would have thought of current British politics. Buchan continues:

“How often he would study a scheme of mine with knitted brows, and lay it down with a smile. ‘Very pretty; but it won’t work!’”

Those are apt words, perhaps, for the bill that is before us today. It has the word “equal” in its title, as if that made anything right, but the bill does no such thing. Rather, its effect is to enable increased state interference in, and destabilisation of, family life to the detriment of children and the criminalisation of ordinary parents. There are good intentions here or there, but the effect is to open the road to prison for unsuspecting parents.

Will the member take an intervention?

Like others, I have very little time to speak, so I cannot take an intervention. I do not wish to aggravate the Presiding Officer’s toothache further.

Supporters of the bill have always said that its purpose was not to criminalise parents or to increase prosecutions but to bring us into line with other countries. However, the bill does none of those things. That is why I presented amendments at stage 2, all of which were deemed by the drafting clerks, in private, to be inadmissible—even an amendment that ensured the non-criminalisation intention and an alternative that required prosecutions to take place within two years of any alleged offence, which are types of protection that are guaranteed in almost all the countries that supporters of the bill rely on. However, the amendments were prevented from being lodged by the committee convener, Ruth Maguire, at stage 2 and the Presiding Officer at stage 3. Apparently, MSPs do not even deserve to be told the reasons for those decisions.

If there had been proper scrutiny of the bill and proper consultation, by which I mean the voices of ordinary people who contributed and experts who disagreed with the bill being listened to, and if MSPs had been allowed to lodge appropriate amendments, we might have been looking at a different bill today and one that had wider and greater support. However, we are not. It is as if none of the intermediate stages since the bill proposal had ever happened. What we have seen in this bill procedure is a serious failing by the Parliament. It has been undemocratic, it has not been transparent and it is, frankly, a disgrace. It is that sort of conduct by current politicians that destroys public confidence.

It is not pretty at all, and it will not work.

16:58  

I, too, thank John Finnie for his tireless work in bringing the bill to Parliament. It is important that the bill is passed this evening, because the law as it stands neither makes sense nor, most importantly, reflects the realities of parenting and bringing up children in 2019.

Currently, assault is illegal unless one is “reasonably chastising” a child. That is flawed, if not absurd. How can it be right to allow a defence for assault to be based on the category of person who is being assaulted, let alone when that category is those people whom we should be seeking to protect and nurture—namely, our children? Of course there is a reasonable need to discipline a child—any responsible parent knows that—but how can discipline that causes pain to a child and would be considered to be assault if it was inflicted on an adult ever be considered reasonable? I do not think that it can and, therefore, we need to remove that legal defence and provide children with protection from assault that is equal to the protection that we provide for all other people in society. That is why I believe that we should pass the bill at decision time.

Daniel Johnson knows my view on the premise that he has just outlined. However, does he not accept that the bill should be absolutely unambiguous and clear in its scope?

In broad terms, it is. However, I share some mild concerns, which I was going to come to later in my speech. I do not think that we necessarily covered ourselves in glory as we debated the amendments this afternoon. There was a need for clarification on the use of restraint. In broad terms, I accept the points around intent and unreasonableness. I also accept that the courts and prosecutors apply those sorts of tests day in, day out.

However, I am not sure that I precisely understand the difference between some circumstances and examples, such as lifting a child out of a room, and the exact same actions if they occurred with an adult. I appreciate John Finnie’s clarification around criminal intent. However, simply lifting an adult out of the room in order to calm them down could, at the very least, perhaps be considered criminal intent, because you would be frustrating the intentions of that individual. I believe that there could have been clarification there. More importantly, it is for Parliament to test the law that we are seeking to pass. I say with respect to the minister that I noted with concern that she met some of those calls for clarification with a scoff and did not answer them at all. Ultimately, it is our duty to test the law and to ask for distinctions and clarifications. It is, therefore, right that we ask for those, and it is with regret that those requests were not met.

However, ultimately, I think that it is important that we pass the bill this evening. In part, that is because it is a fundamental belief on my part, as a parent, that you reap what you sow with parenting, and that, in many ways, your behaviour is reflected by your children. You do not calm a child down by shouting at them, you do not resolve bad behaviour by being unreasonable yourself, and you certainly do not teach a child that aggression is wrong by striking them. For those simple reasons, we need to change the law, and we should pass the bill. Fundamentally, physical discipline is counterproductive. Moreover, society has changed, and so must our law.

17:02  

When I spoke in the stage 1 debate in the chamber a couple of months back, I said that it was a really simple bill for me to support—a no-brainer—and nothing has changed.

Like others, I thank John Finnie for his tireless work on the bill. I am very happy for him. As Alison Johnstone mentioned—and which I saw through his announcement on social media over the summer recess—he intends to stand down. What an achievement it would be if we passed the bill, with credit to him, tonight. I am very happy for him in anticipation of us doing that.

I also thank all the organisations that have worked over many years to make it happen: Barnardo’s, Children 1st, NSPCC, the children’s commissioner and Amnesty International. I am sorry if I missed any others that are in the public gallery—I thank the many organisations that have fought for the bill and got it to this stage. For them, I hope that every member votes to pass the bill tonight.

As Gail Ross said during the discussion of amendments, almost all stakeholders told us the same thing during the committee stage. We as MSPs have a responsibility in relation to how we respond to our constituents and the wider public when they raise concerns. I cannot overemphasise that the evidence continually told us that the bill will protect children’s rights and bring equality, and that it will not lead to the criminalisation of parents, as it does not change the current child protection processes that are in place. It removes an outdated offence. It is our duty to allay fears and concerns. We—particularly those of us who were members of the committee—are in the privileged position of having heard the evidence, and of taking that forward.

I will give an example of that and pay due credit to my friend and colleague, Richard Lyle. We saw democracy today. He brought forward an amendment, he got a response from the minister and the member in charge, and he changed his mind. That is what we should be doing with ministers. [Interruption.] I hear somebody laughing. However, that is what happened—we saw democracy in action.

As we have said before, some of the fears that have been expressed are not justified. Indeed, I would go as far as to say that they were expressed only to scaremonger.

In the stage 1 debate, I mentioned my social work experience, and I will mention it in today’s debate, too. When I worked in social work, the response from agencies—whether criminal justice or care agencies—was always measured, and we heard from social work and procurator fiscal representatives that that will not change. I repeat that the bill will not create new law; it will remove an outdated defence. I cannot believe that anybody would think that we should not do that. During the committee’s consideration of the bill, we could not even get figures on how often the reasonable chastisement defence has been used. Folk just did not know.

The bill will make the law and the relevant processes clearer. We heard that that will be one of the main benefits of the bill, which is why the stage 3 Tory amendments could not be supported. One of the most important issues is that practitioners and parents have clarity on the law because, as others have said, there are many people who think that the physical punishment of children is already illegal. Oliver Mundell gave the examples of lifting up a child and confiscating a mobile phone; Daniel Johnson put it another, better way. The clue is in the name of the bill: quite simply, it is about equal protection from assault for children. I ask Tory members to join us in voting for it.

We move to the closing speeches.

17:06  

As we come to the culmination of a great effort by John Finnie in getting the bill to this final stage, I would like to add my congratulations to him on having done so. It must have seemed like a long road for him but, for some of us, it stretches all the way back to the earliest years of this Parliament, when we considered similar legislation. On that occasion, we fell short of fully protecting our children by keeping the compromise of reasonable chastisement, which I fully expect us to do away with in a few minutes.

We can believe that Parliament and society have moved on since those days, because those of us who were around then will remember what an angry, bitter and difficult debate that was, in the Parliament and in the country. We spent time debating why it might be okay to hit a child with a slipper but not a coat hanger, although, thankfully, even then we concluded that neither was “reasonable”. If that seems barbarous, we should remember that that was only a few years on from a time when teachers routinely hit five-year-olds with a thick leather belt.

Time moves on, thank goodness, and so, too, does this Parliament. The process that we have gone through on the Children (Equal Protection from Assault) (Scotland) Bill has involved much more mature consideration of a basic principle—that children should have the same protection from assault as adults have. There have still been concerns, of course—perhaps that is why the bill is a member’s bill rather than a Government one—but they have been reasonably and fairly explored. I disagree with Mr Lindhurst’s take on that.

One part of the Parliament’s maturity is our greater understanding of rights and our desire to see our nation ever more shaped by those rights and respect for them. A key aspect of that is the commitment that has been mentioned by many speakers, which is shared by Labour members, that we want the UN Convention on the Rights of the Child to be incorporated in our legislation. The UNCRC says:

“States shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence.”

There is no ambiguity. Physical punishment breaches the convention, so if we wish to claim to be a rights-respecting Parliament, we must pass this law this evening, and I think that we will.

However, if we wish to claim that we truly respect the rights of children, the bill is a necessary but not a sufficient condition. Mr Mundell warned us against a liking for bold and grand statements, and I think that he is right, because as long as one in four children in our country lives in poverty, as long as a child born to a poor family is three times more likely to die young, and as long as 70,000 children need emergency food parcels and 36,000 children are referred to mental health services in a single year, a claim to be the best country in the world to grow up in is a rather vainglorious boast.

I am sure that we will end reasonable chastisement tonight, as we should have done 20 years ago. We should celebrate that and congratulate Mr Finnie. However, while so many children still suffer unreasonable punishment just for the sin of being poor, vulnerable, sick or disabled, we should not pat ourselves on the back too hard.

17:10  

It should go without saying that when this Parliament seeks to pass legislation, it should adhere to some key principles. The legislation should be clear and uncomplicated; it should be based on fairness and maximising the common good; it should be acceptable to the public, who must see it as both useful and beneficial; and, as far as possible, it should be easily enforceable and not be open to constant debates about repeal. The Scottish Conservatives have never taken issue with the good intentions of those promoting the bill; indeed, there are some in my party who would have chosen to support the bill. However, there are many in the chamber, not just on the Conservative benches and including some members who are absent today, who have grave reservations about the bill before us because it does not meet the good legislation tests.

As my colleague Adam Tomkins clearly set out during stage 2, the bill’s fundamental failing is the wrongful classification of “reasonable chastisement” as “assault”. Throughout stage 2 and again today at stage 3, the bill’s proponents have not been able to address that fundamental failing. In fact, I find rather disturbing the number of occasions that there have been throughout the bill’s proceedings when the distinct definitions in law have not been wholly recognised.

Daniel Johnson and I will probably vote differently on the bill this evening, but he made an important point about the need for clarity, and that clarity has not been forthcoming. Indeed, the bill has serious problems because it is weak and has so many grey areas. There is still no conclusive evidence to prove that the bill will make children safer and the evidence is severely weak in key areas about why the current law is not acceptable.

Mr Gray mentioned that we have debated the issues around the bill several times in the past. I remember the debates when David McLetchie and most of the party leaders, including Jim Wallace, made very plain the difficulties that the Parliament faced with legislation to abolish the defence of reasonable chastisement. Those difficulties were the same as those regarding the current bill. The issue is what makes for good legislation.

One of the reasons why we did not decide previously to abolish the reasonable chastisement defence was that we found that it would create so many difficulties in law. It is clear from what happened at stage 2 that we still have that problem. My colleague Oliver Mundell made it clear that there are issues for the Lord Advocate, as he will have to produce the necessary guidance to accompany the legislation. That issue has not gone away.

My colleague Gordon Lindhurst mentioned that there is a movement away from the responsibilities of parents to what the state feels is better for families. That aspect is a fundamental problem with the bill and it is something that has been rejected time and again by parents. We have seen that again in recent instances.

Will the member take an intervention on that point?

I will not, if Mr Cole-Hamilton does not mind.

On the advice that we have been given by Police Scotland, the Law Society of Scotland and the Scottish Children’s Reporter Administration, I fully acknowledge that they state that there is no intention to criminalise parents—I understand that—but what we have in the bill will do exactly that, because of the way that it has been drafted. There is an increased likelihood that parents will be criminalised; it might not be many, but there is that risk and that is why the bill has so many faults. Police Scotland and social workers have referred to the confusion that could be caused for parents, because they could be unsure about exactly where they stand.

The Parliament should always be judged on the legislation that we introduce. The bill before us has so many faults that it is not acceptable and therefore the Conservatives will not support it.

17:15  

I am grateful to members who have contributed to the debate. I will comment on some of the points that have been made. Daniel Johnson raised the issue of restraint. That was wholly considered by the committee. The stage 1 report was clear that restraint to safeguard a child is not affected by the bill. Daniel Johnson asked specifically whether lifting an adult from one setting and moving them to another is assault. The reality is that it would depend on the facts and the circumstances. That could be justified and thus not criminal if, for example, it was self-defence. That defence will continue to be available in relation to adults and children once the bill is passed, as it is now, but it will depend on the facts of the case.

As I said in my opening speech, the Scottish Government supports the removal of the reasonable chastisement defence, because doing so is in the best interests of children. Conservative members have raised concerns that removing the defence will criminalise loving parents, but the evidence from other countries that have made similar changes suggests that that simply will not be the case. Neither Ireland nor New Zealand, where changes in the law were handled in a similar way to that in the bill, has reported a significant number of convictions following those changes.

The lead committee heard from the Lord Advocate that he intends

“to issue Lord Advocate’s guidelines to the chief constable of Police Scotland on the investigation and reporting of allegations of assaults by parents on children.”

He went on:

“Those guidelines and prosecutorial policy will support a proportionate and appropriate response to the individual circumstances of particular cases.”—[Official Report, Equalities and Human Rights Committee, 6 June 2019; c 3.]

The Scottish Government recognises the key role of parents and carers in our society and aims to provide them with support in the challenging yet vital job that they do. As part of that, in line with section 2, we will promote awareness and understanding of the removal of the defence. We will also continue to promote positive parenting and provide support for families who need it.

Will the minister take an intervention?

I think that we have had enough interventions today, so I will just make—

It is on that point.

Certainly.

Section 30 of the financial memorandum that accompanies the bill refers to the fact that you wrote to John Finnie to say that, for the purposes of marketing and making parents aware of the bill, you were seeking to use only £20,000 and would do it through a website. However, in previous campaigns, you have considered it necessary to spend a lot more. Is that amount really adequate for a bill such as this?

Remember always to speak through the chair, please.

Absolutely. We will provide people with practical advice and information using existing channels such as the Parent Club website, which people already trust and rely on.

Awareness raising is not just about families. We know that public bodies such as Social Work Scotland need to be involved along with third sector organisations. Our approach to awareness raising will involve consideration of the needs of professionals who provide support for families, such as social workers, and we will work in partnership with the voluntary sector, children’s organisations and others to raise awareness.

There will be resource implications of raising awareness, but those will of course be driven by the form that the awareness raising takes. We want the awareness raising to be in the most effective form possible. That is just one reason why we have set up an implementation group to consider what needs to be done should the bill be enacted. The group met very recently, on 23 September, and at that meeting group members discussed awareness raising and monitoring the bill’s impact. The group will hold further meetings over the next year and will listen to the points that are raised about resources. The implementation group includes bodies that deal with the implementation of criminal law, such as Police Scotland and the Crown Office and Procurator Fiscal Service.

It has been suggested today that the law of assault is not clear and that the bill will create confusion rather than add clarity. I have to say bluntly that I do not agree with that. I reiterate what the Lord Advocate said:

“the law of assault ... is applied day and daily by police officers and prosecutors. There is not a problem with the clarity of the law.”—[Official Report, Equalities and Human Rights Committee, 6 June 2019; c 7.]

What the removal of the defence means is clear: parents and carers will no longer be able to use the reasonable chastisement defence.

In conclusion, the Government supports removing the defence. I look forward to voting for the bill and providing children with equal protection from assault.

17:20  

I thank members who participated in the debate. I will reflect on some of their speeches, and I am sure that members will understand that I wish to remain positive and that I will not mention all the speeches.

I thank the minister and all members for their kind personal remarks, and I thank the minister in particular for her supportive comments and for talking about the Government’s long-term goals. I am aware of the implementation group and the work that is going on there, and her comments about universal provision and targeted support were important.

My colleague Mary Fee said that the legislation represents an important step forward for children’s rights, and highlighted the obligations on us all with regard to the Scottish Parliament’s role as a guarantor of children’s rights.

My dear friend and colleague Alison Johnstone—for whose support on this issue and many others I am grateful—also laid out some interesting information, not least regarding the contact that she had with a young person who expressed concerns that, I hope, we will address at decision time.

Alex Cole-Hamilton is one of the individuals whom I want to refer to, among many others. His long-standing commitment to this cause is to be recognised and applauded and I am grateful for the support that he has often provided me with during this process. His comments about wives and servants put the issue very much in context and showed the anachronistic nature of the situation that we find ourselves in.

Ruth Maguire said that children’s rights are not being recognised. The bill gives us the chance to address that, and I thank her and her committee for all their hard work.

Daniel Johnson used the term “flawed and absurd”, and I think that that is absolutely correct. He also spoke about protecting and nurturing children, which should be key to our deliberations.

We are always grateful for the insight that Fulton MacGregor has as a result of his background in social work. He spoke about the measured response on the part of agencies and, of course, that will not change. We heard from the police and social workers during stage 2, and we know that nothing in that process will change. The morning meeting that considers the accusations that have been made and the joint response that will take place will occur exactly as it did previously.

Iain Gray shared some longer-term reflections. It was interesting that he said that the previous deliberations had fallen short in their outcome, and I think that that is true. Time moves on. It is true to record that there will be no rejoicing that the job is done today. Much of what he said about poverty and the problems that our children face is true. Those issues are not addressed by the bill, but there are other opportunities to do so.

I would always call on the advice of the Commissioner for Children and Young People, and he has laid out a range of reasons why support should be given to the bill. He said that the bill plays an important role in ensuring

“comprehensive legal protection from violence for all children in Scotland. All children have an equal human right to respect for their dignity and physical integrity. Assaulting a child for the purpose of punishment should never be lawful. Legalised violence against children in one context risks a tolerance of violence against children generally.”

As many members have done, the commissioner also said that there is no such thing as a reasonable level of violence. Those standards have been set by the United Nations and the Council of Europe and we should all aspire to meet them. The commissioner also talked about the overwhelming expert evidence, and we heard from many people during the debate about our obligations to protect children and to recognise their particular vulnerabilities. Children are rights holders. Something that I find quite unpleasant in some of the discussion is the idea that children do not have rights. It is absolutely the case that they have rights, and this is the place where those rights should be realised and guaranteed.

This is a law-making building. I was reflecting on what we are here for. We are here to make things better for our nation. The legislation is not a critique on how our parents brought us up, or how we brought up our children. It is not a challenge to people’s right to hold differing views. We are here to make laws and to scrutinise, which includes the scrutiny of our international obligations. We are here to make good laws that reflect other aspirations regarding the lives that children lead in Scotland, and that are based on sound evidence. The overwhelming evidence supports the bill. We are here to make things better. The bill meets all those criteria—it protects and nurtures—and I hope, for Scotland’s children’s sake, that members will support it.