The Scotsman

Smacking ban bill is deeply troubling

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Fifteen years ago, the Scottish Parliament gave detailed considerat­ion to a law banning the smacking of children in Scotland. Recently released documents from that time have shown how ministers sought to wrestle with the issue. In a memo to Cabinet colleagues, the then justice secretary Jim (now Lord) Wallace set out his belief that a ban would help rid Scotland of its violent reputation. But he added: “There is no point passing a bill that will be disobeyed or ridiculed.” He also cited the risk that good parents would be at risk from prosecutio­n. A year later, with scant political support, the then Scottish Executive’s proposals were dropped.

Surprising­ly, last week, the question of a smacking ban re-emerged. Green MSP John Finnie has proposed a backbench private members bill introducin­g a ban on smacking. The SNP government has now given the bill its initial support. A ban could be in place as early as next year.

And far from having solved some of the issues that tied up Mr Wallace, the fresh legislatio­n being proposed fails entirely to answer any of the questions from 15 years ago. It is as if history is being repeated.

First, there is the question of why we need a new law in the first place. While the motives of those who support a smacking ban now should not be criticised, it’s not clear what problem they have with the law as it stands.

Because it appears to have worked well. It allows “reasonable chastiseme­nt” from parents as a means of instructio­n, correction and discipline. But it prevents disproport­ionate physical punishment of children. The law also means the persons most closely connected with a child (usually the parents) are empowered to make decisions on what is in the best interests of the child. This chimes with the longstandi­ng principle that parents, rather than the state, should have primary responsibi­lity for their children and that interventi­on by the courts in family matters should be a last resort.

The UK Supreme Court has recently affirmed that approach as a fundamenta­l aspect of human rights law. The court added: “There is an inextricab­le link between the protection of the family and the protection of fundamenta­l freedoms in liberal democracie­s.”

This is a balanced position, which takes on whether or not to involve the state in their affairs, having both capacity and understand­ing of the potential consequenc­es of doing so. These consequenc­es can have a lifelong detrimenta­l effect on a child and other family members.

The flaws in the current consultati­on paper go on. In a section headlined “Equalities”, it suggests that criminalis­ing modes of physical interventi­on would “provide clarity and ensure consistenc­y in the law for children belonging to all cultural and religious groups”. It fails to discuss the protection of children and families or beliefs and values against state interferen­ce. Bizarrely, it identifies current discrimina­tory inequality in the treatment of children on the grounds of age. This is on the basis that physical “chastiseme­nt” diminishes as children grow up. Is it not true that physical interventi­ons decrease simply because children learn as they grow up the difference­s between right and wrong and become progressiv­ely more amenable to rational persuasion? The consultati­on paper thus fails to reflect the nuances of modern equality law which comprehend­s that equal treatment does not equate to precisely the same treatment of individual­s with different characteri­stics.

Another concern is that the bill would “provide clarity to members of the public” meaning, apparently, to bystanders who may know nothing about the parent, the child or even the circumstan­ces unfolding. According to the consultati­on: “Currently, they can find it difficult to know whether to intervene if they see a child being physically punished in public. Should legislatio­n be passed, then they will be in no doubt that such behaviour towards a child is unacceptab­le.” Well-meaning as this may sound, criminal lawyers will immediatel­y grasp the significan­ce and consequenc­es of such an attitude applied in a public place. What may appear to be a “punishment” or “assault” to one person is not to another.

The draft bill is now out. It fails to address any of these concerns. I believe many parents and families will feel deeply troubled by the implicatio­ns of what we are seeing.

The purpose of the law should not be to provide supposed clarity to strangers as a basis to interfere in other people’s family relationsh­ips. As Jim Wallace found out back in the early 2000s, doing so only opens up a can of worms.

 ??  ?? 0 Would you do nothing about this ‘reasonable chastiseme­nt’ or intervene to prevent ‘criminal assault’?
0 Would you do nothing about this ‘reasonable chastiseme­nt’ or intervene to prevent ‘criminal assault’?

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