Children (Equal Protection from Assault) (Scotland) Bill: Stage 3

– in the Scottish Parliament on 3rd October 2019.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is stage 3 of the Children (Equal Protection from Assault) (Scotland) Bill.

Photo of Adam Tomkins Adam Tomkins Conservative

On a point of order, Presiding Officer.

I sought to lodge two amendments to the bill, but both were ruled to be inadmissible. The bill is about the criminal law of assault, and my amendments would have clarified the meaning and scope of the law of assault for the purposes of the bill. Moreover, they would have done so in a manner that was designed to give effect to, and not to frustrate, the stated policy objectives of those who have promoted and supported the bill. Those objectives are, of course, to bring to an end the physical punishment of children.

The problem is that the badly drafted bill does not stop there; it goes much further. Under Scots law, an assault can be committed even if no physical force is used. Given that my amendments were in line with the bill’s stated policy objectives, and given that they were avowedly concerned with the scope of the law of assault, which is the subject matter of the bill, why were they ruled to be inadmissible?

The Presiding Officer:

I thank Mr Tomkins for giving advance notice that he intended to make a point of order. As the member might be aware, the criteria for admissibility are laid out in standing orders. At stage 2, such decisions are a matter for the committee convener; at stage 3, they are matters for me, as Presiding Officer.

The key aspect of admissibility is that an amendment must be consistent with the general principles of the bill and must be relevant to it. The selection of amendments is a matter for me at stage 3, and I take a number of factors into consideration when reaching my decisions.

Photo of Adam Tomkins Adam Tomkins Conservative

On a point of order, Presiding Officer.

I cast absolutely no aspersions on the motives or purposes of those who advised you on the matter: I have no doubt that they acted in good faith throughout. However, I have concerns about the effect of their advice and your ruling.

As I understand it, Presiding Officer—please correct me if I am wrong—members of the Scottish Parliament have no means of challenging the advice of officials when, as in this case, we perceive that the advice is so narrow as to rule out amendments to legislation that are honestly believed to be directly and rationally connected to it. Are you content that our rules are appropriate in that regard? Do they need to be reviewed?

The Presiding Officer:

I thank Mr Tomkins for his point of order.

I am content. The rules are there to ensure that matters for policy discussion, which he has now raised and put on the record, are for policy makers—MSPs—and are not matters for debate between the chair and members. The chair must treat everybody in a fair manner, and apply the rules fairly across the board.

I also point out that, in this case, the legislation team worked with Adam Tomkins as much as possible on trying find a way to try to express the matters as amendments. He has, at least, had the opportunity to make his point on the record.

On that note, we move to stage 3. I ask that members have with them the bill—SP bill 38—the marshalled list and the grouping of amendments. I remind members that the division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon, for which there will be a 30-second vote. Thereafter, there will be a one-minute voting period for the first division after a debate. Members who wish to speak on any group of amendments should press their request-to-speak buttons as soon as possible after I call the group.

Group 1 is on the effect of section 1 on parental responsibilities. Amendment 2, in the name of Oliver Mundell, is grouped with amendment 3.

Photo of Oliver Mundell Oliver Mundell Conservative

Amendments 2 and 3 are designed to be simple. For the avoidance of doubt, that means that they would not add anything new to the bill, but instead seek to clarify what is already in it. They were intended, in the narrow scope of the bill, to provide some reassurance to parents and address some of the concerns that the committee heard during its deliberations.

I have lodged the amendments in good faith, because I wish to allow the courts, when they consider cases that might come forward under the legislation, to look at the best interests of the child. I am confident that, if my amendments were to be agreed to, they would remove some doubt for the courts—in particular, about restraint and similar circumstances that are complicated to deliberate on, in practice. There is often a fine line: what could appear to some people to be physical punishment might well be appropriate in very limited circumstances when exercised properly by caring parents who are acting within the law.

I also draw out the distinction of restraint. Paragraph (c) of amendment 2 makes specific reference to the exercise of a parent’s

“lawful parental rights and responsibilities”,

which is designed to capture the duties and responsibilities that are already placed on parents by legislation—namely, the Children (Scotland) Act 1995.

I do not intend to say a great deal more, given that the issues that are raised in the amendments have been debated at stage 2.

I move amendment 2.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

I rise in opposition to the amendments in the group. I cannot support them for a number of reasons.

Amendment 2 suggests, in part, through interpretation, that there might be times when assault is justified if it is in a child’s “best interests”. We are not creating a new offence through the bill, but amending—

Photo of Oliver Mundell Oliver Mundell Conservative

I want to clarify for Alex Cole-Hamilton that the amendments refer to circumstances that currently exist in Scots law, whereby “assault” could mean a person raising their voice or putting someone in a state of fear or alarm. I think that both those things can be acceptable for parents to do rightfully under the law, and I want to make it clear that that is not what we will get under the bill.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

Again, we will cover that when we talk about judgment and application of policy by the judiciary. As I have said, we are not creating a new offence; we are repealing an ancient defence. It is a legal defence that we have repealed before. Nowhere in statute or in common law have we felt the need to clarify that physical intervention or restraint of a hysterical and drowning man is not assault. That is just common sense. Application of the new legislation will be met by the same test.

Every day, our police make educated judgments about child protection and criminal assault. We should not presume to tell them how to do that or where the thresholds for that lie. We oppose amendment 2.

Photo of Oliver Mundell Oliver Mundell Conservative

Does Alex Cole-Hamilton accept that, in relation to common law, there is already significant case law on assault, which often informs how the police judge things.

Under the bill, however, there will not be such case law.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

I am quite certain that the judiciary will draw on that case law, to that end.

Amendment 3 would muddy the water more. There is no lawful right to physically chastise; there is only a defence for it. The amendment also suggests that there might be other kinds of justifiable assault, beyond physical punishment. I am not entirely sure what they might be, but the amendment would leave the eventual act open to interpretation when we should, once and for all, be repealing an arcane and antiquated legal defence. We will not support amendments 2 and 3.

Photo of Gail Ross Gail Ross Scottish National Party

I thank everyone who has been involved in the campaign—which has lasted a number of years—and especially John Finnie and his team for steering the bill through.

From day 1 of taking evidence on the bill, the Equalities and Human Rights Committee was told time and again by organisations and individuals, including the Law Society of Scotland and the Lord Advocate, that removing the defence of justifiable assault would improve clarity in the legal process. An equivalent of amendment 2 was lodged at stage 2 and, after lengthy discussion, Oliver Mundell told the committee that he would consider the wording of the amendment. He has done so, by removing the lines

“to ... maintain the child’s safety and wellbeing” and

“to ... prevent the child from committing a criminal offence.”

I acknowledge that a change has been made, but it does little to change the intention of the amendment.

Children’s charities—organisations including Barnardo’s, Children 1st and the National Society for the Prevention of Cruelty to Children—many of which are represented in the public gallery today, have urged members not to back amendments 2 and 3, and have stated that they would make the law relating to assault of children unclear, and would do the complete opposite of what the bill intends to do. Amendment 2 being passed would, essentially, take away the central intention of the bill. It would retain a right for parents to use what has been described as “reasonable chastisement” or “a loving smack”.

We talk about clarity, so let me be clear: it is never in the best interests of a child to hit him or her—whether it is a light tap, a smack or anything else. We have heard examples—a child might be about to run on to a road, pull down a pan of boiling water or touch a fire or an open socket—but the method of teaching children through fear belongs in the dustbin of history, and comes from a time when we did not fully understand the consequences for the child.

The other issue with amendment 2 is that, when we begin anything with the phase,

“For the avoidance of doubt”,

that creates, as the Children and Young People’s Commissioner Scotland has stated, the impression that doubt exists. It does not—or, at least, should not.

The United Nations Committee on the Rights of the Child has stated that Scotland should

“prohibit as a matter of priority all corporal punishment in the family, including through the repeal of all legal defences”.

I will not be supporting amendments 2 or 3.

Photo of Oliver Mundell Oliver Mundell Conservative

I understand the line of argument that Gail Ross is progressing, but does she not recognise that the bill will not do all those things?

Photo of Gail Ross Gail Ross Scottish National Party

I listened to all the evidence in the committee and I read everything that was submitted to us by organisations. I am sorry, but I have to disagree with Oliver Mundell.

The provision that is proposed in his amendment 2 would remove the clarity that is sought and would not result in the societal shift that we are aiming for under the bill.

I told my nine-year-old son this morning over Skype that we would be considering the bill today, and his response was, “I’m proud of you, mum, but I thought it was already against the law to hit people.”

The young people of Scotland are watching us here today, and I will be immensely proud to vote to align children’s rights with those of adults at decision time, by voting for this welcome and much-needed bill.

Photo of Maree Todd Maree Todd Scottish National Party

I am grateful to the committee for its careful scrutiny of the bill and for taking evidence from a wide range of stakeholders, both those for and those against the removal of the defence.

I will discuss amendments 2 and 3 separately, as they raise different issues. The Scottish Government cannot support amendment 2. First, it purports to establish that the removal of the defence will not affect the ability of a parent or carer to

“act in the best interests of the child”.

Who is to decide whether the actions of a parent or carer are in the child’s “best interests”?

Photo of Oliver Mundell Oliver Mundell Conservative

It would be for the courts, the police or prosecutors to decide what is in the best interests of the child, given the purpose of the offence. That is how the whole bill is drafted.

Photo of Maree Todd Maree Todd Scottish National Party

The amendment is not clear whether the parents or the courts will decide. What if a parent or carer were to decide that physically punishing the child was in the child’s best interests?

Photo of Maree Todd Maree Todd Scottish National Party

One moment.

That is fundamentally at odds with the purpose of the bill, as agreed by the Parliament at stage 1, which is to give children equal protection from assault—with zero qualifications.

Photo of Oliver Mundell Oliver Mundell Conservative

The bill fails to recognise the distinctions that already exist, in many aspects of the law, between children and adults. It is appropriate for parents to make a judgment on what is in the best interests of their child. That should be the first thing that happens. When they take that decision and it is incorrect, police and prosecutors should step in. Amendment 2 makes that principle clear.

Photo of Maree Todd Maree Todd Scottish National Party

The Scottish Government believes that parents should not be allowed to assault their children. Oliver Mundell is of a different view.

Amendment 2 also purports to establish that the removal of the defence will not affect the ability of a parent or carer to restrain a child, either to keep them safe or to prevent them from coming to harm.

Photo of Elizabeth Smith Elizabeth Smith Conservative

Under current law, in what circumstances is a parent allowed to assault their child?

Photo of Maree Todd Maree Todd Scottish National Party

The defence of reasonable chastisement can currently be used on occasions when a parent assaults their child. Today, we intend to remove that defence.

The removal of the defence does not impact the ability of a parent to use restraint to prevent their child from coming to harm. At its heart, restraint is an act of protection. Physical punishment is an act of discipline. They are fundamentally different.

Photo of Oliver Mundell Oliver Mundell Conservative

Under the legislation as it is drafted, who will decide on the difference between restraint and physical punishment?

Photo of Maree Todd Maree Todd Scottish National Party

As is the case for any report of assault, the police will investigate it, and the Crown Office and Procurator Fiscal Service will make a decision. In its written evidence on the bill, it noted that

“the use of physical force to remove a child from danger, such as pushing the child out of the way of an oncoming car, would lack criminal intent and would not, for that reason, constitute an assault.”

Photo of Maree Todd Maree Todd Scottish National Party

I would like to make some progress.

“We do not agree physical punishment is required to protect children from harm. We conclude that the bill as drafted will not change a parent’s or carer’s ability to restrain a child to keep him or her from harm.”

In line with the committee’s stage 1 report, we consider that element of the amendment to be unnecessary.

Photo of Johann Lamont Johann Lamont Labour

My sense is that, across the chamber, people are committed to children being equally safe. However, under the current law, our children are not equally safe. Therefore, I was astonished that the financial memorandum says that

“it is not anticipated the Bill would incur significant costs to implement.”

Will the minister give a commitment to achieving a proper understanding of how vulnerable some of our children are? Despite their parents breaking the law as it stands, they are left in homes where they are neglected and are not nurtured. Those children cannot be supported without adequate resource. Regardless of what this bit of legislation says, if the intention behind the bill is to keep our children safe, will the minister say what resources will go into our communities to ensure that that happens, for all children?

The Presiding Officer:

That is an important point, although you were not speaking specifically to the amendments. I will allow the minister to respond.

Photo of Maree Todd Maree Todd Scottish National Party

I assure everyone in the Parliament and all the people in Scotland that the safety, security and wellbeing of the children of Scotland are paramount for this Government.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

Does the minister recognise, as I do, that in Ireland, Jillian van Turnhout, the former Irish senator, who is in the public gallery, brought similar legislation through the Dáil Éireann, for which there was no financial memorandum because the provisions were contained in an amendment to another bill, and that the legislation was agreed to unanimously in the Dáil and has protected children? Does she agree that such legislation and a Government initiative to drive up positive parenting in our country are not mutually exclusive?

Photo of Maree Todd Maree Todd Scottish National Party

For once, I agree with Mr Cole-Hamilton. [

Laughter

.]

Finally, amendment 2 purports to provide that the removal of the defence will not stop a parent exercising their parental responsibilities and rights. Sections 1 and 2 of the Children (Scotland) Act 1995 clearly set out those responsibilities and rights, which include

“the responsibility to safeguard and promote the child’s health, development and welfare”,

and

“the right ... to control, direct or guide” appropriately

“the child’s upbringing”.

The strand of amendment 2 that we are considering seems to be an attempt to create an exception to the removal of the defence, so that a parent could say that they physically punished their child in exercise of their right to control the child’s upbringing.

Fundamentally—again—that is at odds with what the Parliament has agreed, which is to provide children with equal protection from assault. The proposed approach would muddy the waters. We have frequently heard, throughout the bill’s progress through Parliament, that the bill will bring clarity to the law. Amendment 1 would take away that welcome clarity, again leaving parents unclear about the law.

Parental responsibilities relate to a child’s health and wellbeing, and the evidence is clear that physical punishment can have long-term negative outcomes for a child. Retaining the ability to physically punish children—or even just creating doubt about whether that is permissible—would be at odds with the evidence.

The Scottish Government does not support amendment 3. Section 1(1) of the bill is clear: it abolishes the rule of law whereby the physical punishment of a child in the exercise of a parental right or right derived from having charge or care of a child is justifiable and is therefore not an assault. That does not affect other parental responsibilities and rights as set out in the 1995 act.

Oliver Mundell said that the offence of assault is wide. We agree. We are also mindful that, as the Lord Advocate said, when he gave oral evidence:

“the law of assault ... is applied day and daily by police officers and prosecutors.”—[

Official Report

,

Equalities and Human Rights Committee

, 6 June 2019; c 7.]

The law on assault is clear and is regularly used. There is no need for an amendment that seeks to avoid doubt where there is none to begin with. Section 1(1) is clear: it is about physical punishment, because that is what the defence of reasonable chastisement is about. Therefore, amendment 3 would clarify nothing. The parental responsibilities and rights in the 1995 act are not otherwise affected by the bill. Amendment 3 would add doubt, not clarity.

Photo of Adam Tomkins Adam Tomkins Conservative

I am grateful to the minister for her patience, given the number of interventions that she has taken.

I agree with what the minister said about clarity in the criminal law, and I agree with what Gail Ross said about the fundamental importance of clarity in the criminal law.

The policy objectives of the bill are stated in the policy memorandum that is attached to it. In paragraph 4, it says:

“The aim of the Children (Equal Protection from Assault) (Scotland) Bill is to help bring to an end the physical punishment of children”.

The committee said, in its stage 1 report:

“The Bill’s purpose is to ... discourage the use of physical punishment.”

Those are not my words. They are the words of the committee and the policy memorandum.

Amendment 3, in the name of Oliver Mundell, says:

“For the avoidance of doubt, this section applies only with regard to physical punishment”.

How is that muddying the waters? How is that doing anything other than bringing welcome clarity to an element of the bill that is currently anything but clear?

Photo of Maree Todd Maree Todd Scottish National Party

W e want equal protection for children and adults; the bill achieves that by removing the reasonable chastisement defence. We think that that is the right outcome. Is the member suggesting that parents should have the right to raise a hand to their child so that the child thinks that there is physical injury imminent? An adult doing that to a member of the public could—depending on the exact facts and circumstances—be committing assault. I can see no good reason why it would be acceptable for a parent to do that to their child. No child should fear physical injury at the hands of a parent.

Photo of Oliver Mundell Oliver Mundell Conservative

That is exactly what my amendment seeks to do because it is about physical punishment. A parent could take a number of actions that would not be appropriate to do to another adult—confiscating a mobile phone, restricting their access to finance, refusing to let them out of the house and, in some cases, lifting a person up and physically moving them from one setting to another. All those things could be considered to be a form of assault or abuse when conducted between one adult and another but would not be inappropriate actions for a parent in relation to their child.

Photo of Maree Todd Maree Todd Scottish National Party

I disagree profoundly. I think that the bill brings simplicity and clarity to a currently confused situation and it appears that the Law Society of Scotland agrees with that view.

Photo of Daniel Johnson Daniel Johnson Labour

In the interests of clarity, can the minister tell us whether she thinks that it is acceptable to lift an adult and place them in another room and whether she thinks that it is unacceptable to do that to a child? That is the important clarification that Oliver Mundell requested.

Photo of Maree Todd Maree Todd Scottish National Party

I think that I am going to just ignore that point and move on. I think that the law—[

Interruption

.]

Photo of Maree Todd Maree Todd Scottish National Party

I think that the law of assault is crystal clear. The law of assault is prosecuted in Scotland day in, day out, perfectly clearly. I have no concerns about the current law of assault. The Law Society of Scotland says that as the law stands, there is a lack of clarity for the public about what parents and others can and cannot do by way of physical punishment of children. That has led to confusion among parents and carers. The Law Society supports the bill because it thinks that it will provide much-needed clarity.

We have heard repeatedly throughout the progress of the bill that it will bring clarity to the law. I cannot welcome an amendment that would lead to confusion. We do not want the effect of the bill to be that parents continue to have doubt about what is and is not acceptable. I urge members to reject amendments 2 and 3.

Photo of John Finnie John Finnie Green

I do not accept that there is any doubt to address, just as I did not accept that when we discussed the amendments at stage 2. The provisions in amendment 2 are liable to do more harm than good. Adding additional material could cause difficulties in interpretation and hamper the ability of the relevant authorities to exercise appropriate judgment—judgment that, as others say, is applied daily.

We clearly heard—as did Mr Mundell, who was present at the committee—the Lord Advocate, the police and social work all say that the simple proposal in the bill brings much-needed clarity. It is hard to see how we could apply the additional tests set out in amendment 2 consistently, given how vague and subjective they are.

It was a deliberate policy choice not to include a specific statutory provision on circumstances in which force—rather than physical punishment—against a child would be permissible. Although consideration was given to the inclusion of such a provision, the view was taken that the better approach would be for the common law of assault to apply, as it does in relation to adults.

Photo of Oliver Mundell Oliver Mundell Conservative

I understand the point that the member is making, and that it was a deliberate decision, but does he accept that other people take a different view, and not just those who, like me, oppose the bill? For example, Professor Andrew Tickell detailed in a column in

The National why he felt that it would have been better to create a specific offence with clearly set out thresholds, so that parents would know when the law would apply.

Photo of John Finnie John Finnie Green

He is an interesting choice. I have to say that, in general, I would defer matters of law to the Lord Advocate.

Risk is inherent in the clarificatory approach that the member seems to be attempting in amendment 2. Setting out such matters in statute risks creating loopholes of dubiety as to the reach of those matters. The most important point, which was raised by a number of members, including my colleague Daniel Johnston, is that under the common law of assault, criminal intent is an essential element of the offence. Lifting a child from one room to another certainly would not fall into that category. As others have said, the use of force—even with an adult—to avoid accident or injury would not ordinarily amount to assault, provided that excessive force was not used.

The key point is that none of those actions would constitute punishment and only the law relating to physical punishment of a child is being changed by the bill.

Evidence at stages 1 and 2 from the Lord Advocate, the Crown Office and Procurator Fiscal Service, the Law Society of Scotland, police and social work stated that the bill would simplify the legal position. Amendment 2 would likely have the reverse effect of that intended; that is, it would introduce doubt rather than dispel it.

Paragraph (a) of amendment 2 would change the purpose of the bill, because a parent could consider physical punishment to be in the child’s best interests. It would also introduce confusion and subjectivity, as there is no objective test of what is in a child’s best interests. The committee heard that prosecutors will continue to consider the best interests of a child as part of the public interest test, and that the relevant matters are already included in the prosecution code, which is taken into account when investigating and prosecuting any case of assault.

Photo of Oliver Mundell Oliver Mundell Conservative

If the member accepts that the best interests of a child are already considered as part of public interest test, why does he have such a strong objection to having that test in the bill?

Photo of John Finnie John Finnie Green

I have already explained to the member that the Lord Advocate said that it is the simplicity of this bill—

Photo of Oliver Mundell Oliver Mundell Conservative

The member is not answering the question.

Photo of John Finnie John Finnie Green

It is the answer. Mr Mundell might not like it, but it is indeed the answer. It is the simplicity that is the attraction. In any case, the reference to the child’s best interests that he is seeking is an intrinsic part of Scots law, and indeed, of the way that all our public bodies discharge their obligations.

Paragraph (b) of amendment 2 is unnecessary. Restraining a child to protect it from harm is quite distinct from physical punishment. There is no overlap, so there should be no doubt about the implications for restraint. Permitting the physical restraint of children, apparently in connection with their safety and preventing harm, is not the focus of the bill, which deals with the use of force in punishment of a child. The bill legislates only in relation to physical punishment. It has no implications for situations that do not involve that, such as when physical hurt is caused to a child in order to protect them from greater immediate harm.

Paragraph (c) of amendment 2 seeks to protect the exercising of

“lawful parental rights and responsibilities”.

Under the current law, smacking a child can count as such a lawful exercise. The point of the bill is to change that, so that smacking a child as punishment can never be lawful. Therefore, as soon as the bill becomes law—as I hope that it will—paragraph (c) would no longer have any application, and so it would become unnecessary, by virtue of its own wording.

On amendment 3, as with amendment 2, I do not accept that there is any doubt. It is clear that the bill will change the law only in relation to physical punishment, and not more generally, so there is no need for amendment 3. It would create uncertainty, doubt and confusion, rather than remove—

Photo of Oliver Mundell Oliver Mundell Conservative

I thank the member, who is being very generous and patient. Does “the rule of law” that is referred to in section 1 apply only to physical punishment?

Photo of John Finnie John Finnie Green

Can the member repeat the question?

Photo of Oliver Mundell Oliver Mundell Conservative

Can the member clarify whether “the rule of law” that is mentioned in section 1 applies only to physical punishment?

Photo of John Finnie John Finnie Green

The rule of law applies all the time. The member has heard from the Lord Advocate.

Photo of Oliver Mundell Oliver Mundell Conservative

I meant the specific rule of law around reasonable chastisement and justifiable assault. Does it apply only to physical actions at present in Scots law?

Photo of John Finnie John Finnie Green

Mr Mundell knows what the definition of assault is. He knows—[

Interruption.

] Mr Mundell may not like it, but that is the answer that he is getting.

The practitioners have all said that the bill brings welcome clarity. I ask members not to support amendments 2 and 3 and to have in their minds at all times the word “clarity”, which is what the practitioners in the legal profession believe that the bill delivers.

Photo of Oliver Mundell Oliver Mundell Conservative

We have had a robust debate on section 1, so I will not take up too much time. I have a few quick points to make. If we are going to focus on things being decided on the basis of intent, after investigation, that sadly means that families will already have been taken to court and been in contact with our criminal justice system before they get a definitive decision.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

The member said rather categorically that families will be subjected to the full force of the law before a judge determines whether they acted with criminal intent. Those decisions are taken daily by attending police officers. It is a fallacy to suggest that legions of parents will be marched through the courts to test the legislation.

Photo of Oliver Mundell Oliver Mundell Conservative

I understand the point that Alex Cole-Hamilton is trying to make but I am afraid that because of the way that the legislation is drafted, he cannot make that statement with any certainty. I, like most members, would expect that legislation passed by this Parliament will be enacted by—

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I did not intend to intervene, but from listening to the debate on his amendments, I am clear that Oliver Mundell objects to the bill—the amendments are simply muddying the waters. Would it not be more honourable for him to withdraw the amendments before we get to a vote and make his objections to the bill?

Photo of Oliver Mundell Oliver Mundell Conservative

I do not accept that. I speak on behalf of others on the Conservative benches as well as myself. There are members of my party—not all of us, but some—who would have liked to vote for the bill this evening. As an Opposition member of this Parliament I regularly vote against legislation at stage 3, but I lodge and vote for amendments to try to improve legislation. I want the legislation to be as good as possible, because it embarrasses the whole Parliament when sub-standard legislation is passed and we later see challenges to it in court.

As I will cover in my stage 3 speech, I am concerned that this legislation will be the subject of questions in the future because of the lack of adequate thresholds. We should make it clear that restraint is, in our view, different from physical punishment. Often, when looking at assault, things that look one way to a bystander can seem rather different if we know the circumstances. It is not proportionate or appropriate to wait until further down the line, once cases are already going through the criminal justice system, to decide whether there was criminal intent. It is better to make those considerations up front, and that is what amendment 2 is about.

The Presiding Officer:

The question is, that amendment 2 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division. I suspend Parliament for five minutes to summon members to the chamber for the vote.

15:43 Meeting suspended.

15:49 On resuming—

We move to the division on amendment 2

Division number 2 Children (Equal Protection from Assault) (Scotland) Bill: Stage 3

Aye: 47 MSPs

No: 64 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 47, Against 64, Abstentions 0.

Amendment 2 disagreed to.

Amendment 3 moved—[Oliver Mundell].

The question is, that amendment 3 be agreed to. Are we agreed?

Members:

No.

Division number 3 Children (Equal Protection from Assault) (Scotland) Bill: Stage 3

Aye: 47 MSPs

No: 63 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 47, Against 63, Abstentions 0.

Amendment 3 disagreed to.

Group 2 is on prosecutorial guidance on the act. Amendment 1, in the name of Richard Lyle, is the only amendment in the group.

Photo of Richard Lyle Richard Lyle Scottish National Party

Amendment 1, in my name, has attracted the support of colleagues across the chamber. I think that that cross-party support is a reflection of the fact that legitimate concerns are shared by colleagues on all sides. I share those concerns.

Members will recall the rather forthright comments that I made the last time the bill was discussed. I must admit that I am concerned. I am the father of two and the grandfather of three, soon to be four, and I love them all to bits. However, I am aware that the bill has the backing of many colleagues, and I accept that the law is going to be changed in this regard at decision time.

In lodging amendment 1, I simply wanted to ensure that the operation of the law will continue to be proportionate in terms of its impact on families and children. Amendment 1 is very simple indeed. It establishes that, before the bill comes into effect, the Lord Advocate must publish clear guidance for the courts and the police to help them to navigate the new legal landscape and to continue to deal with parents sensibly.

I think that the guidance should do three things. First, it should set out very clearly

“what is a proportionate and appropriate response to the individual circumstances of a particular case”.

Secondly, it should outline

“the circumstances in which alternatives to prosecution should be considered”.

Thirdly, it should outline

“appropriate pathways that should be considered as an alternative to prosecution.”

I do not think that it is in anyone’s interests for people to be treated harshly under the law. I think that in many, if not most, cases criminalisation would be a step too far. The effects of a police investigation, court appearances and prosecutions on families in such scenarios would be hugely disproportionate, especially for the children involved. Criminalisation should be reserved for adults who have acted to harm a child; it should not be for parents who are simply ill informed

Good guidance by the Lord Advocate will avoid the scenario that has often been talked about in which a parent who taps their child on the hand or on the backside ends up with a criminal record. A tap on the hand would not be prosecuted under the current law on reasonable chastisement under section 51 of the Criminal Justice (Scotland) Act 2016. However, removing that defence will create ambiguity in the law that could lead to a disparity in enforcement.

In his submission to the Equalities and Human Rights Committee, Michael Sheridan of the Scottish Law Agents Society said that, under the bill, a parent could

“be guilty of assault, even if acting reasonably.”

The Lord Advocate himself has said that the impact of the proposed legislation on prosecutions is still “unknown”. The guidance that amendment 1 provides for would clear up any uncertainty and allay the public’s fears.

Amendment 1 reflects the approach that is being taken by the Welsh Government, which wants to remove reasonable chastisement from the law in Wales. Julie Morgan, the Deputy Minister for Health and Social Services, has said that the Welsh Government favours out-of-court disposals for parents who use mild physical discipline following a change in the law in Wales. The Welsh Government aims to establish a bespoke diversion scheme that prevents parents from being landed with a criminal record. The National Assembly for Wales’s Children, Young People and Education Committee has called for

“a clear pathway to divert cases that would currently be captured under the defence of reasonable punishment away from the criminal justice system, where appropriate and proportionate to do so.”

The committee states that such a scheme

“should focus on encouraging and supporting parents rather than penalising them”.

I quite agree. It seems to me that the Welsh Government’s approach is sensible and one that we should mirror here in Scotland, in the interests of parents.

There are strong feelings on both sides of this debate and I have witnessed that in the past 20 or 30 minutes. However, despite that, I think that there is common ground between MSPs today, regardless of our individual views or party affiliation. I do not believe that any of us wants ordinary, loving mums and dads criminalised—I do not want that. By supporting amendment 1, members will be putting a guarantee in the bill that sensible and proportionate guidance will be produced ahead of a change in the law. We should reassure parents that they will not face draconian punishments under a so-called smacking ban and show them that we politicians want to support them in bringing up their children.

I move amendment 1.

The Presiding Officer:

We are at the agreed time limit, so I am exercising my power under rule 9.8.48 of standing orders to allow the debate to continue beyond the time limit to avoid discussion being unreasonably curtailed.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

The Liberal Democrats do not support amendment 1, because it is simply unnecessary. The 54 countries globally that have gone before us in embracing equal protection for their children have not seen legions of parents criminalised or marched through the courts. In fact, we heard of only eight prosecutions in New Zealand, four of which would have been prosecuted anyway without the change in law.

The Lord Advocate’s guidance is usually sought only in special and untested circumstances. A good example of that would be the Lord Advocate’s guidance not to prosecute victims of human trafficking who had been coerced into committing a criminal act by virtue of their having been trafficked. However, amendment 1 would ask the Lord Advocate to guide judges on a range of measures and tests that they already apply every day.

Photo of Oliver Mundell Oliver Mundell Conservative

Given the point that Alex Cole-Hamilton is making, does he recognise that the Lord Advocate has already said that he will produce guidance in relation to the bill and that he recognises some of the concerns that exist?

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

Absolutely, and the Lord Advocate has every right to do that operationally. However, we do not therefore require it to be included in the bill, as amendment 1 proposes. We have had recent cause to trust the judgment of our Scottish judiciary. Judgment is exercised by the police first and then the judiciary in a very human way every day, ascertaining intent from the point that an incident is indexed. That often leads to an understanding of the circumstances around an alleged offence and a decision not to prosecute.

The debate on amendment 1 comes down to the nexus of the bill. The hyperbole that surrounds the arguments against abolishing the defence of reasonable chastisement stems from the fact that people believe that we will have thousands upon thousands of normal, loving parents marched through the courts. That argument simply does not stand up, given the international evidence. For that reason, the Liberal Democrats cannot support amendment 1.

Photo of Oliver Mundell Oliver Mundell Conservative

I am always concerned when people refer to laws in other countries without recognising that those countries often have substantially different legal systems with different prosecution policies. Given that the Lord Advocate came to Parliament and said that he will set out guidance on the bill, it is perfectly appropriate for MSPs to set out what we feel that guidance ought to cover in order to make the eventual law reasonably foreseeable for parents and allow them the opportunity to understand properly the types of behaviour that we seek to criminalise, rather than leaving that to be interpreted, particularly where no case law currently exists.

Much of what Richard Lyle said was sensible. I do not always agree with him on everything, but in this case he gave a measured explanation of the thinking behind amendment 1. Agreeing to the amendment would go a long way to addressing parents’ doubts. It is all very well to say that we have confidence in the prosecutorial procedures in this country, but the amendment will help parents to have confidence in the legislation that we are passing. It is our responsibility to ensure that people in this country understand what the law of the land is and what our intentions are.

Photo of Gail Ross Gail Ross Scottish National Party

We have already discussed the issue at length in the committee. We need to be careful with the language that we use—the bill does not introduce a smacking ban; it removes a defence, and we need to be careful that we say that time and again. The Law Society of Scotland has been mentioned. In its briefing for today’s debate, it states:

“As the current law stands, there is a lack of clarity for the public about what parents and others can and cannot do by way of physical punishment of children. That has ‘led to confusion amongst parents and carers.’”

The Law Society goes on to say:

“We support the aim of this Bill to provide that much needed clarity.”

That could not be any clearer.

Photo of Gail Ross Gail Ross Scottish National Party

I am sorry, but I think that Oliver Mundell has had enough interventions today.

We discussed the issue at length in the committee. Amendment 1 would infringe on the Lord Advocate’s constitutional independence, and he is committed to producing guidance. The amendment is unnecessary, so I will not support it.

Photo of Pauline McNeill Pauline McNeill Labour

I want to make a short contribution in favour of amendment 1. Richard Lyle gave a carefully considered speech. I will vote for the bill at decision time, but I have always had reservations about the message that we give to parents who, as Dick Lyle said, are doing what they think is best for their children. We will remove the defence in law, but we should not criminalise those parents unnecessarily.

We should be clear that the amendment relates to the Lord Advocate’s guidance for prosecution. I say to Alex Cole-Hamilton that it has nothing to do with judges; it is guidance for the prosecution. It is important to make that distinction. Once a case comes before a judge, they will make a determination on what they think the law is.

I accept Alex Cole-Hamilton’s point that there are few occasions on which we would want a prosecution. In the bill, the Parliament wants to send a clear message to parents that we want to be a progressive country. However, in the process, we do not want parents who are actually doing a good job of looking after their children to be unnecessarily criminalised. What harm would it do to put amendment 1 into the bill? At the end of the day, it could mean that we pass the bill with greater consensus.

Photo of Maree Todd Maree Todd Scottish National Party

I am concerned about the implications of amendment 1 for the Lord Advocate’s independence. It is for the Lord Advocate to determine prosecutorial policy, to decide what guidance and guidelines he should issue to the police and to determine what should be published. Amendment 1 would require the Lord Advocate to produce and publish guidance. When the Lord Advocate gave oral evidence to the committee, he said that, if the bill is passed, 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 added:

“Those guidelines and prosecutorial policy will support a proportionate and appropriate response to the individual circumstances of particular cases. When appropriate, that response may include the use of informal response by the police, recorded police warnings, diversion and other alternatives to prosecution.”—[

Official Report, Equalities and Human Rights Committee,

6 June 2019; c 3.]

The Lord Advocate also said that the approach to prosecutions will be informed by the state’s responsibility to protect children from harm and by a consideration of the best interests of the child. The member can therefore be reassured that work is already in hand on guidelines to the police and on prosecutorial policy. It would not, though, be appropriate to place statutory obligations on the Lord Advocate—who acts entirely independently of Government in these areas—in relation to the production of prosecutorial guidance and guidelines.

Photo of Oliver Mundell Oliver Mundell Conservative

I am interested in getting further clarity on why the minister thinks that that presents a problem and how the proposal would interfere with the independence of the application of that prosecutorial policy.

Photo of Maree Todd Maree Todd Scottish National Party

It is for the Lord Advocate to decide whether guidance and guidelines should or should not be published; that is part of his independence. In making that decision, I understand that he considers whether the publication of such guidance would be liable to prejudice the prevention or detection of crime.

Photo of Oliver Mundell Oliver Mundell Conservative

I am specifically interested in where the minister feels that the Lord Advocate would not be able to do that, and in why she feels that he would not be able to draft guidance that would meet that test.

Photo of Maree Todd Maree Todd Scottish National Party

Let me be absolutely clear: it is up to the Lord Advocate to decide. However, there must be a risk that the publication of guidance that is intended to inform decision making by police and prosecutors could be used as a guide to how to avoid prosecution, or be understood in a way that would tend to undermine the clarity that the bill seeks to provide, and it is best to leave the judgment in that regard to the Lord Advocate.

Placing statutory obligations in the bill on the Lord Advocate in relation to the preparation and publication of guidance could set an unwelcome precedent for other areas. I would also be concerned about some of the consequences of the member’s amendment. Instead of the bill itself just stating the commencement date—one year after royal assent—the main provisions would come into force either one year after royal assent or when the Lord Advocate’s guidance is published, depending on which one of those was later. It would not be appropriate to have those provisions brought into force without a clear date being stated in the bill or in commencement regulations. That would create needless uncertainty and make it harder for the public to find out whether the law is actually in force. I am absolutely sure that that is not the member’s intention. Stage 3 should be about resolving any technical issues in bills, not creating new ones.

In conclusion, given the need to protect the independence of the Lord Advocate in this area, the undertakings that have already been provided by the Lord Advocate in relation to his intention to issue guidelines to the police and the uncertainties that the amendment might create, I ask Parliament to reject amendment 1.

Photo of John Finnie John Finnie Green

I thank my friend and colleague Richard Lyle for coming to discuss the amendment with me in advance. He and I had a lengthy discussion, and I understand what motivated him to lodge it. I share the concerns about the circumstances that he spoke about in relation to himself and his family.

As I said to him at the time, I do not think that his amendment is helpful. He spoke about common ground, and of course there is a lot of it. I want to talk about the areas of consensus because I hope to allay some of his concerns. There is some geeky technical stuff in my argument, so I will read from my notes, but I want to say first that I understand where Mr Lyle is coming from.

The amendment would make the commencement of section 1 conditional on the issuing of prosecutorial guidance. However, it could give rise to uncertainty about whether, on a particular date, section 1 was in force. For a person to determine whether section 1 was in force, they would need to ascertain not just whether guidance had been published by the Lord Advocate but whether the guidance had fulfilled the requirements of the amendment. That could well be disputed, and the amendment provides no means for that dispute to be resolved. So, there would be no objective means for anyone to know whether section 1 was in force.

The amendment also contains an inherent contradiction between issuing guidance on policy, which must be in general terms, and ensuring that it is appropriate to the

“individual circumstances of a particular case”.

The Lord Advocate cannot say what would be appropriate in every conceivable set of individual circumstances.

I hope that Richard Lyle will take reassurance from the fact that, at stage 2, the lead committee heard from the Lord Advocate that guidance will be prepared and issued to the chief constable. The Lord Advocate said:

“If the bill is passed, I intend 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. 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 phrase “proportionate and appropriate” is very important, as it is the phrase that Richard Lyle used.

The Lord Advocate went on to say:

“we are already in discussion with Police Scotland about the shape and parameters of guidelines. That is under active consideration. I certainly intend to issue guidelines as near as possible to the coming into force of the legislation. I issue guidelines to the chief constable, and it is then his responsibility to disseminate the instructions to his officers on the ground.”—[

Official Report, Equalities and Human Rights Committee,

6 June 2019; c 9.]

Importantly, the Lord Advocate also set out details of the current publicly available prosecution code, which contains comment on the public interest test and how the best interests of the child are central to decision making. We also heard about that from Police Scotland and social workers, who are at the front line of dealing with such issues. The amendment is therefore likely to cause confusion as to whether section 1 is in force and add no value to the work that the Lord Advocate has already confirmed is under way.

I hope that that provides some assurance to Richard Lyle. If he presses his amendment, I ask colleagues not to support it.

The Presiding Officer:

I call Richard Lyle to conclude, and to press or withdraw his amendment.

Photo of Richard Lyle Richard Lyle Scottish National Party

Today, during a school visit by Taylor high school, I was asked what I believe in. I believe in the rule of law and I believe that I should stand up and share my concerns at each and every opportunity, and that, most of the time, I should listen to my constituents who have emailed me, sharing their concerns regarding the bill.

I also believe that I should be allowed to share those concerns and I therefore thank every member in the chamber for listening to my concerns without a single interruption, for a change. I also thank John Finnie for the discussion that we had.

Members lodge amendments and sometimes we later think about them and have a change of mind. With regard to the minister’s comments, I believe that the Lord Advocate has now indicated that he will begin discussions with Police Scotland, with a view to producing procedural guidance. It is a feature of our law that the police are not obliged to report every crime: they report according to the parameters that the Lord Advocate lays down, and prosecutors are not obliged to prosecute every crime.

Due to those assurances, I will not press my amendment. However, I believe that I have made the point for safeguarding and I have made the point that, as far as I am concerned, assurances have been made. Therefore, I am not pressing my amendment 1.

The Presiding Officer:

Thank you, Mr Lyle. I am afraid that you will have to seek permission to withdraw the amendment. Does any member object to the amendment being withdrawn?

Members:

Yes.

The Presiding Officer:

The question is, that amendment 1 be agreed to. Are we agreed?

Members:

No.

Division number 4 Children (Equal Protection from Assault) (Scotland) Bill: Stage 3

Aye: 47 MSPs

No: 63 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 47, Against 63, Abstentions 0.

Amendment 1 disagreed to.