Children (Equal Protection from Assault) (Scotland) Bill

The Convener (Ruth Maguire)

Good morning and welcome to the fifth meeting in 2019 of the Equalities and Human Rights Committee. I ask everyone to ensure that their mobile devices are switched to silent, and I welcome to the meeting John Finnie MSP and Gordon Lindhurst MSP.

Agenda item 1 is a report back on engagement undertaken on the Children (Equal Protection from Assault) (Scotland) Bill. The committee has had a number of engagement visits on the bill, and I ask members to feed back briefly on their visits.

Fulton MacGregor and Gail Ross visited Dads Rock in January. Do you want to tell us about that, Fulton?

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Thanks, convener. We had a really worthwhile and interesting visit to Dads Rock a month or so ago, but perhaps I can start by giving everyone a bit of background. The purpose of our visit to the Dads Rock academy, which provides weekly music tuition to children aged seven to 16 and their parents and carers, was to speak to a group of parents, carers and grandparents about the bill. We had a very good and open discussion; with such a diverse group, there was, as you might imagine, a mix of views, but my general feeling was that, although there was general support for the bill’s principles, there was also a bit of concern about the bill’s impact on family life. The people who spoke to us were looking for a bit of reassurance that folk would not find themselves falling foul of the law unnecessarily, but when we talked them through the bill’s principles, they seemed quite reassured. As I have said, there was general support for the principle of not using physical chastisement, and it was a good visit.

The Convener

Thank you very much.

The deputy convener and I had a very nice morning with the grandparents and their children at Midlothian Sure Start grandparents group. Alex, do you want to feed back on that?

Alex Cole-Hamilton (Edinburgh Western) (LD)

Yes, convener. I thoroughly enjoyed our morning with the grandparents in Dalkeith, and it was particularly enhanced by the birthday cake that we were served.

We had a really interesting discussion. All the grandparents understood and were well sighted on what was being proposed in the bill, and despite any misapprehensions that I might have had before I went on, I found them largely supportive of its aims. We were interested to hear about the journey that some of the grandparents had been on, and there was a view that, although they had resisted change initially, the more that they had seen of children’s rights and the international perspective, the more they had been persuaded. Of course, that view was not universally held, and there were a couple of voices of opposition to the suggestion that we change the law in this way. However, I want to put on record my thanks to the Sure Start staff and, indeed, the grandparents who entertained us and made us feel so very welcome.

The Convener

Absolutely. We now move to Mary Fee and Annie Wells, who visited the messy church in Pollokshields.

Annie Wells (Glasgow) (Con)

Mary Fee and I visited the messy church in Mosspark on Monday night, and we joined the group for their evening meal. We, too, had birthday cake; it was my birthday the day before, and everyone sang “Happy Birthday”. I thank them very much for that.

We had a really interesting discussion with parents, grandparents and carers. They had mixed views on the bill, with people perhaps leaning towards not supporting it, because they felt that such assault was already dealt with under common law. They felt that the term “assault” should be explained more, and that the bill’s long title did not reflect what it was trying to achieve.

The group also wondered how the bill would deal with, say, someone restraining a child or grabbing them before they ran into the road, and they felt that the bill would put more pressure on people not to physically touch children. Again, the group was very open, and the discussion flowed, but people were not that supportive of the bill.

The Convener

The committee is committed to hearing children’s views. On consideration, we did not feel that formal evidence-taking sessions in the Parliament were the best way of doing that, and instead we worked with a local YMCA group to hear the views of children and young people in a more child-friendly setting; Oliver Mundell and I made that visit, which took place on 26 February. We will also be meeting children and young people on Skye, and the findings from all these visits will be reflected in our stage 1 report.

Oliver, do you want to talk about our visit to the YMCA?

Oliver Mundell (Dumfriesshire) (Con)

We had an excellent visit to the YMCA youth group in Kirkcaldy. Views on the bill were mixed, and we heard some very sophisticated arguments, with passionate advocates on both sides. The young people acted out a drama scenario that they had designed themselves about a young child trying to cross the road—an example that I believe was highlighted on one of the committee’s other visits—and they worked through what could be done to prevent that sort of thing from happening. Certainly, some of the group thought that, in such a scenario, it was appropriate to use physical force, but I thought that the visit showed the importance of hearing from young people and I am interested in looking more at that side of things in our consideration of the bill.

The Convener

Thank you very much.

Agenda item 2 is two oral evidence-taking sessions on the bill, and I welcome to the meeting our first panel: Professor Jane Callaghan, director, child wellbeing and protection, University of Stirling; Dr Anja Heilmann, lead author of the report “Equally protected? A review of the evidence on the physical punishment of children”; and Diego Quiroz, policy officer, Scottish Human Rights Commission. Perhaps I can kick things off by asking each of you whether you support the bill’s aim of helping to bring to an end the physical punishment of children.

Professor Jane Callaghan (University of Stirling)

Yes, I support it. The ending of the reasonable chastisement justification is long overdue, and the balance of evidence in both psychological research and research on domestic abuse and other forms of family violence suggests that this is the right choice.

Dr Anja Heilmann (University College London)

My co-authors and I very much support the proposed legislation. 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; and that it carries the risk of injurious abuse. As I have said, my co-authors and I very much welcome what we think is an important bill—indeed, the number 1 recommendation in our report was that the physical punishment of children be ended.

Diego Quiroz (Scottish Human Rights Commission)

Good morning and thank you for the invitation to give evidence. Given our view that the defence of justifiable assault should be removed from Scots law, the Scottish Human Rights Commission supports the bill. National and international human rights bodies have called repeatedly for an end to corporal punishment. When I was in Geneva two days ago, talking to the United Nations Committee on the Elimination of all Forms of Discrimination Against Women, it repeated that call to the United Kingdom and Scotland. As a result, the bill is very important.

The committee will be familiar with the call being made by all the treaty bodies for the ending of corporal punishment of children at home, so I will not expand on that point now. However, there is consensus internationally and certainly in Europe that the corporal punishment of children is unacceptable, and that view is supported by broad scientific and medical evidence. However, the rest of the panellists are perhaps more suited to responding to questions on that, and I will come back to the human rights issues when you feel that I should do so.

The Convener

We move to questions from members of the committee.

Alex Cole-Hamilton

Good morning. Thank you very much for coming to see us.

We have received a great deal of evidence in advance of our stage 1 consideration of the bill. That evidence has been mixed, with those who have offered evidence against the bill often citing a perceived tension between the rights of children and the rights of parents, or the right to family life, if you prefer. The committee is well versed in the international community’s interventions in this country in relation to things such as the concluding observations of the United Nations Committee on the Rights of the Child, which have consistently suggested that we need to end the physical punishment of children. That is well documented in international treaties.

Is there a commensurate clause in international law on the rights of parents to parent their children, or the right to family life, that you consider to clash with the right of children not to be physically punished? To put it simply, is there a right in any international convention that gives parents the right to physically punish their children?

Diego Quiroz

For us, it is quite clear that the measure in the bill is not aimed at criminalising parents or interfering with family life. Rather, it sets a clear standard of care giving and redefines what is acceptable in terms of how we treat our children in Scotland.

There should be no concerns about safeguarding children’s dignity and physical integrity by encouraging positive discipline and education of children through non-violent means. It is the duty of Governments and public bodies to take all appropriate legislative, administrative, social and educational measures to protect children from all forms of physical and mental violence. That has been reinforced by the European Court of Human Rights and several UN bodies, as you mentioned. In a Swedish case, a German case and a Dutch case, the European Court of Human Rights has said that the right to family life is not interfered with by protecting the child from corporal punishment, which would clearly interfere with the child’s right to dignity. There are several cases that support the prohibition of physical punishment of children and rebut the idea that that measure would interfere with family life and the right of parents to discipline their children.

Alex Cole-Hamilton

So that tension is based on a false prospectus, because there is no clause in international treaties that says that parents should have the right to physically punish their children.

Diego Quiroz

Absolutely.

The Convener

I welcome Dr Stuart Waiton, who has just arrived. By way of an opening question, we asked the other members of the panel whether they supported the bill’s aim of bringing an end to the physical punishment of children. Do you wish to respond to that?

Dr Stuart Waiton (Abertay University)

Yes. I think that it is a tragic, depressing bill and yet another one that appears to represent the aloof, elitist nature of politics and professional life that treats parents in a very patronising and degrading way. It uses all sorts of weird legalistic talk about violence that makes no sense at all to ordinary people, it equates children with adults and it criminalises parents, despite people claiming that it does not. The claim that all the evidence proves that any level of smacking of children damages them is absolutely untrue and the opposite of the truth, but I presume that I am just wasting my time, because the bill has already been passed.

The Convener

Thank you for that.

Alex Cole-Hamilton

For the benefit of Dr Waiton, I should say that before he came in, I mentioned the fact that we received a great deal of evidence in advance of stage 1 of the bill. There were two sides to that evidence, but those who offered evidence against the bill suggested that there was a tension between children’s rights and parents’ rights. I wanted to unpack that with the panel.

We are very well versed in where the right of children not to be physically punished is enshrined in international treaties and conventions. However, I want to know whether that tension is real and whether, within international treaties, there is a conflicting right of parents to physically punish their children. Would Dr Heilmann like to respond to that?

Dr Heilmann

My area is not international law, but I am not aware of any such treaty. Obviously, the United Kingdom has ratified the United Nations Convention on the Rights of the Child, which is very clear about the issue—there is no ambiguity. It has therefore been stated repeatedly that physical punishment of children in all its forms should be prohibited by law.

Alex Cole-Hamilton

Dr Waiton, would you like to respond?

Dr Waiton

I do not accept the concepts and I do not accept the people who are defining the concepts. The idea of children’s rights is a bit of a nonsense concept. Children do not have rights. They do not have the same framework of rights as adults; they have protections. In essence, when we talk about children’s rights, we are really talking about the right of professionals to make decisions on their behalf. It is a confused concept that goes against the framework of how we have thought historically about rights in terms of freedoms. It is a problem.

The problem that we have with the bill is, in essence, about a question of autonomy. You are undermining the autonomy of loving parents to decide how to raise their children with a sense of privacy and a sense of support from society. In that process, you are degrading something that is done as a form of discipline that should not be understood as a form of violence. Parents should be supported rather than undermined. For me, this is a question of autonomy and I think that you have to question the whole framework of how you think about children’s rights.

Alex Cole-Hamilton

Before I bring in Professor Callaghan, I have a question for Dr Waiton. That defence of autonomy used to apply to the physical punishment of women by their husbands. Would you suggest that that should be brought back?

Dr Waiton

No, because I do not look at adults and children as the same, unlike the people who are supporting the bill, who seem to look at adults and children as the same and therefore degrade or confuse actions. If there are people here who defend the idea that adults and children should be treated the same in terms of violence, I assume that they see smacking a child and smacking a woman as the same thing, which I think is degrading to women because they are not the same thing. Adults and children are very different and we would not expect, for example, to ground our partners and refuse to let them leave the house. That would be seen as a criminal offence, whereas we ground our children—or perhaps in a few years’ time you will be making that criminal as well.

Alex Cole-Hamilton

Professor Callaghan?

Professor Callaghan

Having done hundreds of interviews with children who have experienced domestic abuse, I would have to say that I cannot agree that children are a different order of human being from adults and I cannot agree that they do not have personhood, that they do not have a capacity to reflect on their experiences and that they are not harmed by those experiences.

On the loving parent defence, unfortunately there is reasonable international evidence—for instance, a study by Xing and Wang—that suggests that that defence does not function particularly well and that children experience the same level of harm as a consequence of smacking by parents regardless of whether it is loving or motivated positively or not.

Unfortunately, I also cannot agree that the balance of evidence does anything other than indicate that capital punishment—sorry, but I keep using the wrong words—corporal punishment has no positive consequences and has plenty of negative consequences in terms of mental health outcomes, exposure to risk of future physical harm and difficulties around issues like attainment. There is evidence, for instance, that children who have experienced corporal punishment at home are more likely to be disengaged from school and to experience educational difficulties.

Alex Cole-Hamilton

You mentioned the impact of violence on children. We have heard a lot of evidence on both sides of the argument and we recognise that there is a spectrum of physical punishment. Professor Larzelere from America is an outspoken critic of changes to the law such as the one that we are discussing and talks about back-up smacking—as he calls it—as a parenting tool that can be effective when other parenting techniques fall down. Are all parents capable of deploying physical punishment in that way, or is there a point at which some parents lose control and that is no longer a reasonable sanction or a useful and effective tool?

Professor Callaghan

The balance of evidence suggests that there is a strong correlation between parents who are willing to use smacking and who use smacking and parents who are likely to lose control in their disciplinary practices. I cannot agree with Professor Larzelere’s premise, and it is not borne out particularly well by the international evidence base.

Alex Cole-Hamilton

I see you shaking your head, Dr Waiton.

Dr Waiton

It seems fairly clear to me that there is what we call advocacy research, which is where people have already made their minds up, and there is research where people are actually trying to look at the issue. As far as I can tell, Robert Larzelere actually tries to look at it. He says that there have been nine studies that take an overview of all the research and that seven of them do not come to the conclusion that smacking—particularly back-up smacking—is harmful to children. He concludes that back-up smacking, which is something that is not used as a first or only resort—it involves parents generally not smacking, but occasionally doing so—ends up being the best form of discipline. The idea that there is proof or evidence that a light form of smacking damages children is not borne out.

I make a plea to your common sense. If you think that smacking a small child on the wrist is a form of violence that harms them, you are living on another planet.

Alex Cole-Hamilton

I attended a conference in 2007 on the physical punishment of children. It was addressed by John Carnochan, who was at that time a senior police officer and head of the Strathclyde violence reduction unit. He was there because he saw an empirical correlation between the use of physical punishment at home and violence on the streets. He said that any form of violence in the home that is used as a tool of sanction or in anger legitimises violence as a tool of sanction or anger between children and their peers as they grow up. Do you recognise that violence begets violence in that way?

Dr Waiton

I do not even accept that slapping a three, four or five-year-old child on the wrist should be understood as violence. That is completely confused. Why not ask my daughter, who is sitting over there? I smacked her occasionally when she was a child. I will ask her. Have you been violent recently? Are you going to beget violence?

The Convener

Dr Waiton, that is anecdotal—

Dr Waiton

Yeah, and John Carnochan is really scientific.

Professor Callaghan

I am.

Dr Waiton

Yeah, that’s right.

You just have to be honest with yourself. Do you think that smacking a three, four or five-year-old child on the wrist begets violence? If you think that it does, you really are on another planet.

If you are politicians, why do you not try to persuade the public? Some 75 per cent of people do not think that physical punishment of a child should be made criminal. Why not try to persuade them instead of beating them? You are doing the equivalent of what you are trying to ban. Stop beating parents by criminalising them. Go out there, have public meetings, bring your professors who can say to them, “Oh, if you smack a child on the wrist, that is a form of violence that begets violence,” and see what the public think of you. You are meant to be their representatives, after all, are you not?

The Convener

Dr Waiton, I know that you arrived at the meeting a little late, but we spent some time at the beginning talking about how we had gone out to speak to parents and grandparents groups. The committee is very well aware of our responsibilities to the public and our constituents.

Dr Waiton

Well, it is a shame that you are not listening to them.

Alex Cole-Hamilton

I do not think that that is entirely fair.

Dr Waiton

Do you accept that the majority of parents would not support the criminalisation of parenting?

The Convener

I am going to pause the discussion for a second. I know that everyone cares deeply about this issue, but we are going to run this committee in the normal manner, which means speaking through the chair and letting folk answer.

Alex Cole-Hamilton

Dr Waiton described physical chastisement such as a slap on the wrist. In 2003, when Parliament previously legislated in this area, we introduced restrictions on physical punishment. They were that there must be no shaking, no head shots and no use of implements. That is it—that is the extent of the limits on physical punishment in this country. Anything below the neck and even anything to the point of pain and harm is legitimate. Where do you get the idea that a slap on the wrist is the sum total of the physical punishment that goes on in homes in Scotland?

Dr Waiton

It is not necessarily the sum total, but the bill would criminalise what is done. As far as I understand it, the concept “reasonable chastisement” still exists, so if you are unreasonable, you can be taken to court and challenged on that ground. There are lots of people who would think, if they saw a child being strongly beaten by their parent, that that was unreasonable and would challenge it.

The committee could go back and think about whether you want to use different words in the bill: as it stands, you will be criminalising somebody who smacks a child on the bottom or smacks the child’s hand.

Alex Cole-Hamilton

There are many parents in this room, all of whom could attest to the feeling of losing control when disciplining their children, whether it involves time out, shouting or even, perhaps, smacking. Do you think that every member of every family in this country who uses physical punishment always retains control when they are deploying physical punishment?

Dr Waiton

No, but nor do I think that you would be helping that family by arresting the person.

Dr Heilmann

I would very much like to respond to that. I reject the notion that what we have done in our review, for example, is “advocacy research”. We did a systematic search of the literature that fit our inclusion criteria and we have included only studies that looked at the impact on children prospectively—that is, the ones that followed the same children over time and had measures at at least two time points. That is important, because that enables us to be sure that the physical punishment has occurred before we measure the outcome.

Furthermore, most of the studies have adjusted for the initial level of problem behaviour in order to minimise or rule out the risk of reverse causation. The overwhelming majority of the studies on problem behaviour and aggression have found that children who had been subjected to physical punishment had an increased risk of problem behaviour down the line. That means that physical punishment does not work; it makes the problem behaviour worse.

We also found studies that followed children over several time points and considered how physical punishment and difficult behaviour reinforce each other. It seems to be the case that physical punishment makes the behaviour worse, and that worse behaviour elicits harsher punishment, so they end up in a vicious circle.

We also considered the relationship between physical punishment and abuse. Over the timeframe that we examined, we did six individual studies on that relationship and one review: all of them found consistently that there was a link between physical punishment and abuse. It also makes intuitive sense that people do not start out abusing their child but instead start by trying to punish their child, which escalates to abuse.

I would like to ask Dr Waiton whether he accepts that there is any—

The Convener

Committee members will ask the questions, Dr Heilmann.

Dr Heilmann

Of course.

Diego Quiroz

The arguments that have been made about children not having inherent rights and being treated as property, as wives were treated a century ago, or as slaves even, are shocking. That is quite appalling.

Dr Waiton

But who—

The Convener

Dr Waiton, please. If I can pause the discussion for a minute, I would like to say that this is an important topic, and we cannot let the session degenerate into conversations across the table.

Dr Waiton

Well, it should not degenerate into people putting words in my mouth and saying that I am treating children like slaves, either. I am sorry, but that was quite despicable. Carry on.

Diego Quiroz

Because children are vulnerable as a result of their mental and physical immaturity, they should be afforded not less protection but more protection. The state has a duty to afford them at least equal protection; otherwise, the principle of equality before the law is being violated.

Smacking is not just ill treatment. It has an impact on other rights. It has a long-term impact on health and it has an impact on the child’s development, the child’s understanding of the world and the message that we as a society in Scotland want to send.

Another member of the panel gave an example in relation to his child. Last night, I asked my six-year-old child, “Why should the Parliament prohibit hitting or smacking you?” She talked about herself and said, “Because it’s bad.” I said, “What do you mean by that?” She said, “If you hit me, I can go and hit other people.” Her point was that it sends the wrong message. I am amazed by the simplicity and accuracy of children’s thinking, which is sometimes lost when we grow up into adults.

The European Court of Human Rights revisited and discussed the approach in the recent case of Wetjen v Germany. It found that the German Government had not violated the applicants’ right to respect for their private and family life under article 8 of the European convention on human rights. The case involved children who had been removed from parental authority and care in a Christian community because caning children was common practice there. The court said that the German Government had struck a fair balance between the parents’ interests and the children’s best interests, which should be primary. It said that the parents’

“right to communicate and promote their religious convictions in bringing up their children”

should

“not expose children to dangerous practices or to physical or psychological harm”.

The court also declared that it is

“commendable”

for states to

“prohibit in law all forms of corporal punishment of children”,

in order to avoid any risk of ill treatment.

Oliver Mundell

Does anyone on the panel think that it is ever acceptable to use physical force to regulate or manage behaviour?

Dr Heilmann

Physical force is not acceptable as a way of managing behaviour. I do not know whether you are talking about restraint that is needed to ensure that a child does not come to harm. Inflicting pain to manage behaviour is unacceptable.

Diego Quiroz

I agree.

Professor Callaghan

I agree.

Oliver Mundell

Excellent. To follow on from that, is it ever acceptable to restrict a child’s rights in order to regulate or manage their behaviour?

Dr Heilmann

What do you mean? Will you give an example?

Oliver Mundell

I do not know. As an adult, I enjoy freedoms to choose what I want to do. Is it acceptable for a parent to interfere in a child’s right to choose what they want to do?

Dr Heilmann

Yes, but it depends on the circumstances.

Oliver Mundell

You recognise that a child does not always have the same rights as an adult.

Dr Heilmann

Yes.

Oliver Mundell

Do all the panel members take that view?

Professor Callaghan

Yes, but I also substantially distinguish the two conditions from each other. There is no evidence that restraint causes negative health or other developmental outcomes, whereas there is evidence that hitting a child has such effects. The two situations are substantially different. The question of rights is separate from the question of consequences.

Dr Waiton

I dispute that. If you look at Mr Larzelere’s work reviewing all of that, you will see that that does not bear out. How can you differentiate between the upset that a child feels from being grounded for a week, for example, and their having their bottom or hand smacked? If you are going to be logically consistent, I cannot see how, in the future, you will not eventually say that grounding should be banned, as well. The level of vulnerability that you understand children to have is so high and the lack of resilience that you understand them to have is so profound that I cannot see how eventually—in five or 10 years’ time—the approach cannot end up problematising almost any form of discipline whatsoever.

I would like to raise a question about children’s rights.

The Convener

No, Dr Waiton. You are not here to ask questions. I am sorry to be direct with you.

Dr Waiton

They are not really questions, obviously; they are rhetorical.

The Convener

Okay—they are speeches. Does Oliver Mundell wish to pursue the issue?

Oliver Mundell

Do you see any circumstance in which it might be in a child’s best interests to be physically punished?

Dr Heilmann

No.

Diego Quiroz

No. To go back to the previous question, of course discipline is important, but a non-violent form of discipline should be applied. There is no distinction between adults and children in respect of the punishment or discipline that has been spoken about, because adults are constantly restricted and are disciplined, as well. Therefore, I do not accept the principle of the question. That is why we have a criminal justice system, prisons and punishment. Rehabilitation is a very important part of that.

Oliver Mundell

In that case, do you think that parents are responsible for the safety and wellbeing of their children?

Diego Quiroz

Yes.

Oliver Mundell

So who is responsible for my safety and wellbeing?

Dr Waiton

You are.

Oliver Mundell

I am over the age of 18. Who is responsible for my safety and wellbeing?

Professor Callaghan

I am sorry, but you appear to be blurring the boundaries around protection from harm and other kinds of children’s rights. I am not sure that that is defensible logically.

Oliver Mundell

I am trying to draw out a nuanced point about where the legislation could go wrong—for example, when parents have to physically restrain their children for their own safety. We saw an example of that being worked through by children in a YMCA group in Kirkcaldy this week. The situation was a young child repeatedly running across the road to try to get to a Mr Whippy ice cream van. Children thought that, in that circumstance, hitting the child was maybe not the best thing to do, but they could see how, in order to prevent that from happening and the child being hit by a car, it would be better for the child to be smacked.

I am thinking about parents who have to manage very difficult behaviour by their children. Rather than letting that behaviour escalate, it might be better to smack them. I have heard that from at least some children and from some families that I have to deal with in my constituency work.

I am trying to draw out whether there is a distinction between certain uses of physical force and the use of physical punishment. I did not come in with a preconceived view.

Professor Callaghan

I am not sure why it would be necessary to hit a child in that circumstance.

Oliver Mundell

Can you understand how that might come about?

Professor Callaghan

I can understand how it can come about, but I do not see how that is a defence for hitting a child. The child could certainly be held back, but how would hitting them prevent them from running in front of a car? That is not a logical consequence of the child running in front of the car. The two things are not connected. There is an argument around the use of physical restraint, if necessary, but I do not see how that equates to being smacked.

Oliver Mundell

Can you understand why people might see a smack as a response in a situation where they perceive a child’s safety to be at risk or they feel under pressure?

Professor Callaghan

I can understand why they might feel that way, but I do not feel that their view is justified.

Oliver Mundell

Do you think that they deserve to be criminalised for that decision?

Professor Callaghan

There is a degree of artificiality in the way that the notion of criminalisation is playing out.

Oliver Mundell

It is not artificial if someone is in court facing those difficult questions.

Professor Callaghan

Realistically, how likely is that? There are all sorts of things around child abuse that does not result in people being in court.

Oliver Mundell

People go to court—

Professor Callaghan

There are nuanced levels of response.

The Convener

Professor Callaghan, it is good for the discussion to be free-flowing, but could we—

Professor Callaghan

Of course.

Oliver Mundell

I have a final question on this issue. Do you think that it is positive for families to interact with the criminal justice system when those difficulties arise? You spoke about the damage that physical punishment does to children. Do you recognise that there is also a damage in being involved in the criminal justice system?

Professor Callaghan

That depends on how we see the role of the criminal justice system and what the consequences of that involvement might be. For instance, it has been evidenced that supporting parents who are struggling through access to positive parenting and particularly empowerment-oriented interventions can be a useful way of helping them to find other ways of managing their children. If interaction with the criminal justice system produces that, I see that as positive.

If the interaction results in the person going to prison or being fined, I do not think that that is positive. It is not necessarily about the act of criminalising child abuse, but about the realities of the way that we manage that. We do that in a nuanced way across the child protection system. It is not simply the case that smacking a child will necessarily produce the outcome of a police officer coming and taking the person to court. It is much more subtle than that.

Oliver Mundell

In the context of our criminal justice system as it exists, where families do end up having to use the current defence in court, do you think that going through the process is a positive experience for those families?

Professor Callaghan

I do not think that it is a positive experience for anybody to have to go to court to defend their behaviours. There can, however, be positive consequences.

Oliver Mundell

Thank you.

Dr Waiton

People who are against smacking think that they are progressive and do not like the idea that they are criminalising people. To clarify the issue of criminalisation, when a law is passed, we make something criminal. Therefore, smacking a child will be a criminal offence. Not every parent may end up being locked up for five years, but Professor Callaghan is supporting the criminalisation of smacking and supporting the idea that a child being smacked on the bottom by a parent because they are going to run across the road should become a crime.

The Convener

Thank you. We are all clear on what we are doing here.

Dr Heilmann

Physical punishment is now banned in 54 countries around the world. Within the European Union, the UK is an outlier. The UK is one of only three countries where it has not been banned and no legislation has yet been brought forward. The argument of criminalisation holds less strongly the more countries legislate and we see no evidence that such legislation leads to an increase in prosecutions. The police will use discretion. I am aware that the results have been looked at in New Zealand. In Ireland, there is at least anecdotal evidence that the legislation has not led to an increase in prosecutions of parents.

The Convener

Thank you.

Mary Fee (West Scotland) (Lab)

A number of the areas that I wanted to ask questions about have already been covered. I will pick up on the point that Dr Heilmann has just made about the UK being an outlier in introducing legislation. What are the panel’s views on why that is?

Dr Heilmann

I do not have an answer to that and do not want to speculate.

Diego Quiroz

It is about entrenched ideas. However, the majority of individuals are not pro-smacking—to the contrary. Apart from Scotland—leaving aside the different jurisdictions of England and Northern Ireland—only three other countries in Europe still have the defence of justifiable assault: Belgium, France and the Czech Republic. The German family and religious community that I talked about moved to the Czech Republic because they were allowed to hit their children there. It is good that we are not so close to Germany.

Mary Fee

I have a question for the panel about the issue of restraint, which was touched on in Oliver Mundell’s questions. However, I am specifically interested in restraint in a residential care setting. To give a bit of helpful background, before I became a member of the Scottish Parliament I was a local authority councillor and was on an adoption and fostering panel. I visited all the residential care homes in my council area and saw restraint being used on more than one occasion. Frankly, the first time I saw restraint being used on a young person, I found it shocking and horrifying, specifically the level of restraint that was used. I understand that restraint, particularly in residential care settings, is used as a last resort. However, I am interested in the panel’s views on whether the bill would be an appropriate place to deal with the issue of restraint in care settings, because there is a very fine line between restraint and restraint that causes harm. A number of young people who are in residential care have come from very traumatic, damaged backgrounds and have perhaps been subjected to violence before they were moved into care. I wonder what message restraining them gives young people. I am interested in the panel’s views on restraint.

Professor Callaghan

To clarify, do you mean bodily restraint or someone being closed in a room, for example?

Mary Fee

I mean someone being physically touched. The first time I saw it, I witnessed a child of 13 or 14 being physically held on the ground by three adults.

The Convener

Does anyone have a view on that that they wish to share?

Dr Heilmann

I would find it difficult to answer that because I am speaking about my review and that aspect was not part of the evidence that we looked at, as we looked at physical punishment. I therefore do not feel qualified to answer that.

Mary Fee

I suppose that I could expand the reference by saying that it is not solely about restraint in residential care settings, because there are young people who have quite significant behavioural problems who are cared for and looked after by their parents at home. There might be occasions when those young people are out with their parents and the question of restraining them could come into play.

The Convener

I wonder whether the second panel might be better placed to comment on that question.

Mary Fee

I am happy to ask it later.

Fulton MacGregor

Good morning, panel. I agree with the bill’s principles but, obviously, we take evidence to hear the different views. The bill deals with a point that is important for the Scottish Parliament and the country as a whole. If we go back a couple of generations, people in Scotland were quite familiar with the expression, “Kids should be seen and not heard”—I certainly was, when I was growing up. Thankfully, we have moved on from that now. I wonder whether the current debate touches on that. There were strong advocates at the time for that approach. I will not speak disrespectfully of those people, as they were of their own generation and they are no longer here. My grandparents, for example, would have been strong advocates of that line, and I loved them dearly.

Dr Waiton made a good point about taking the public with us and, from my experience of outreach work at Dads Rock and from discussions with parents and other people, I feel that there is a mood to move. Nobody who I have spoken to wants to be seen as somebody who smacks their children, but there is an issue with criminalisation. For example, would a parent be criminalised if they were to give their child a slight smack?

I have a question, although I understand that this panel might not be the best one to answer it and it might be a question for a panel of representatives from the criminal justice agencies. I worked in child protection for eight years as a social worker. How would things differ under the bill from how they are now if—to give a concrete, everyday example—a child went to school and said that their dad smacked them, the school reported that to social work and social work investigated it?

Dr Waiton

That is one of my concerns. I assume that the police would not run around arresting everyone for smacking their children, although that is a possibility and the police have asked what they would be meant to do if that were brought to their attention. What would social workers or teachers be meant to do if it were brought to their attention? If smacking were made criminal, they would have to do something. They would not be able to use their judgment, come to understand the circumstances or recognise the reason for the smacking, as there would have to be a level of intervention.

More to the point, parents would know that they had to be frightened about their children talking to teachers. That is developing, anyway—ordinary people are becoming even more separate from professionals. They would become nervous or frightened about things that happened in the house being reported and possibly ending up in some form of investigation.

Fulton MacGregor

I will interject because, under the current guidelines and procedures, if an allegation is made or, as you described it, brought to someone’s attention, action already has to be taken.

As I said at the outset, I know that criminal justice agencies will be better placed to answer my question, but I am interested to hear the panellists’ responses.

It is already the case that a process would kick in. Would the police or other criminal justice agencies make different decisions if the defence of reasonable chastisement, which parents now have, went away? In the eight years that I worked in social work, I never came across a joint procedure with the police in which they took that into account. They took into account the circumstances, as they would in any case, and if a case had to be prosecuted, it would be. That would be based on the severity of the case, a commonsense approach and so on.

Dr Heilmann

The important issue is that the bill will bring clarity about what is and is not okay. The social worker or police officer could therefore start the conversation at a different point and say that physical punishment is not acceptable. They could then find different ways. I do not think that that would mean that trivial physical punishment would be prosecuted, but there would be a different conversation.

We also looked at the introduction of bans on physical punishment in different countries and how they affected the prevalence of physical punishment and attitudes in those countries. There was a systematic review of legislation in 24 countries, which found that there was a decline in the prevalence of physical punishment in most countries anyway, but where there was relevant legislation, it declined faster. Public attitudes will be influenced by the legislation. In most of those countries, the legislation was introduced while the majority of parents were still against the ban, but you bring the public with you with a ban. Another good explanation of how that can work is smoking legislation. Attitudes shift because we have changed what is acceptable and should be the norm. This kind of ban and this kind of legislation have a symbolic value.

Diego Quiroz

There is an important distinction. We are not criminalising any conduct; what we are doing is removing a defence for not treating children equally to other groups. That is quite an important and significant difference.

There is a difference between restraint for medical reasons or physical punishment, and deliberately causing suffering to a person either physically or by humiliating that person. There are differences in conduct.

The point that you raise is very important. That is why guidance and advice should be paramount. I am a parent, as are many of you, and it is one of the most beautiful and challenging things that you can do in life. I would welcome any guidance to improve my parenting and for the benefit of the child in society. One is provided with a scientific evidence base and I would not find any guidance patronising in that respect.

Mary Fee

One of the questions that we were asked when we did our outreach engagement this week was whether the bill will criminalise parents who love their children, while parents who abuse and assault their children will continue to do that behind closed doors. Do you agree with that?

Dr Waiton

One of my concerns is the confusion that we seem to have. We seem to accept that we are criminalising behaviour, and then we say that we will be sensible if there is trivial physical punishment. I do not think that we would talk about trivial physical punishment if we were talking about domestic violence against a woman, but when we talk about children, we say that, if it is trivial, it is different. We appear to be treating children and adults differently. Can we at least accept that, because one of the arguments is that we treat the two things differently?

I come back to the point about whether it is legitimate to use the law to change attitudes. I am a criminologist, and I am trying to write a book about this type of issue. Increasingly in the past 20 years, there have been more and more laws on more and more things where we have talked about trying to change people’s behaviour. As far as I understand, parliamentarians are meant to be representatives of people to some extent, not their teachers—

The Convener

Dr Waiton, Mary Fee is looking puzzled.

Dr Waiton

I was trying to answer questions in the previous discussion.

Mary Fee

I am not sure whether I have misunderstood you or you have misunderstood me, but the point that was made at the event that I attended was that there are loving parents who will give their children a quick smack on the hand who feel that they will be criminalised. The point that was made to me was that parents who regularly assault and abuse their children behind closed doors will continue to do that. The bill will have no impact on that.

Dr Waiton

That is borne out by evidence on smacking, apparently. The parents who did light smacking no longer do that, while the law has very little impact on the parents who use much heavier smacking, so I suspect that you are right. I also suspect that children who are being seriously abused and battered might get lost in a sea of complaints by caring professionals who are now reporting every smacking incident.

Professor Callaghan

I will make a couple of points. The first is that the notion that we do not have a nuanced response to women who experience domestic abuse or to other experiences of child abuse is fallacious; we have a very textured response. It is very unlikely that a police response to a woman being smacked would be the same as the response to someone being severely beaten, so that view is erroneous.

In relation to the query on degrees of abuse within families, one of the advantages of the legislation is that it gives a clear message to children about the status of physical violence. In families in which violence is used routinely, the issue is that it becomes normalised. It can very difficult for children to make sense of the violence that they are experiencing, and what is and is not acceptable. Giving a clear message that it is never acceptable is more helpful to such children. I am not sure what evidence Dr Waiton is referring to, but I am not aware of any that suggests that abuse that takes place behind closed doors either intensifies or does not come to the attention of the authorities as regularly in the manner that he has just suggested. Making a clear message that abuse is never acceptable can only be positive for children who experience it.

The Convener

Dr Heilmann, do you want to come back in on that?

Dr Heilmann

I very much second what Professor Callaghan has said. The review that I have just mentioned, which looked at the impact of the legislation, also found that instances of severe abuse reduced in countries that had implemented a ban on physical punishment.

The Convener

Gail Ross would like to come in.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

Thank you, convener, and I apologise for being late. I am very disappointed to have missed the first part of the session.

I am not sure whether it is correct, but one concern that we heard was about the increased burden that there might be on public services if more cases were to emerge and more prosecutions brought. If the bill is passed and the law is changed in this way, there will have to be an awareness-raising campaign. How should we go about that? Indeed, will there be additional burdens on public services?

Dr Heilmann

According to studies that compared countries that simply changed the law and others that did so while running an awareness-raising campaign, it is much more effective if both happen at the same time. It is important that people are told about any such legislation that is being introduced, so resources will have to be spent on such a campaign.

Another of our recommendations in “Equally Protected?” is that parents should be supported in the use of positive parenting strategies. Resources will probably be needed for that, too, but as we did not carry out an economic evaluation, I cannot say how much might be needed.

Diego Quiroz

Yes, there will be an impact. If the bill goes ahead, there will have to be a public discussion. The removal of the defence will have to go hand in hand not only with awareness of the change in the law, which is very important, but with promotion of positive, non-violent and respectful approaches to child discipline, which is equally important. Children should participate in the design of such approaches, and there must be greater dissemination of them in all of those places—from libraries to schools—where families and children go. Training and guidance will be crucial.

Gail Ross

Parents who gave feedback at an external meeting that we held felt that physical forms of punishment such as smacking were a last resort or happened because they felt frustrated. Sometimes it had nothing to do with the child’s behaviour—it just reflected their frustration—and their desire for more positive parenting courses and support to enable them to talk to their children without having to hit them came across very strongly.

The Convener

Fulton MacGregor has a supplementary question.

Fulton MacGregor

Does any of your research or experience indicate how often the defence of justifiable assault has been used? I know that we are in the early stages of our consideration of the bill, but I am finding it quite difficult to establish a figure for that.

Dr Heilmann

We have not looked at that. We looked at the impact of physical punishment on children.

Dr Waiton

As far as I am aware, it has hardly ever been used, which suggests that that is not why the bill has been introduced.

There is a point that I would like to make about resources, which is that they should not matter. If we take seriously the argument that smacking a child is an act of violence that we should treat in the same way as an act of violence against another adult, such as an act of violence against a woman—or an act that should be equated with the treatment of slaves, as some have done—we should use all the resources that there are to stop it. However, the reason that we are asking this question and scratching our heads a bit is because we do not think that that is what people—most people—smacking their children is. It is just not a form of violence in the way that we think of violence against adults. That is why we are thinking about the issue a little bit differently and why, again, I suggest that you think again before making smacking a child a criminal offence.

The Convener

Annie Wells has not had a chance to come in yet.

Annie Wells

Good morning, panel. I visited a church in Glasgow to talk about the bill. It appears from public opinion as expressed in various polls—there were YouGov, Panelbase and ComRes polls on the issue in 2017 and 2018—that we do not have public support for the bill. As parliamentarians, we try to represent the people who elected us to be here, and we do that by representing public opinion. How do you suggest that we bring the public with us on this journey? I see us doing that through educating parents on how to discipline their children. I do not believe that we should make parents, grandparents and carers feel that they are criminals. That is my opinion—and I would point out that opinion polls say that 74 per cent of the public believe that smacking should not be a criminal offence and that 54 per cent believe that it should not be banned. How do we bring the public with us on this journey?

Professor Callaghan

As I have said, one of the key issues for me is the prevention of child abuse, and I think that most reasonable people—

Annie Wells

Sorry, can I just—

The Convener

I would like you to let the panel answer.

Professor Callaghan

Most reasonable people would agree that the prevention of child abuse is incredibly important.

Annie Wells

I am sorry, convener, but I am not talking about child abuse—I am talking about smacking.

Professor Callaghan

I know that. If you will allow me to finish my thought, it will become clear how I am answering your question.

The question of child abuse is extremely serious in our culture, and the confusion about what is and what is not justified in parenting practice feeds into it. If we make it clear to members of the public that we are attempting to protect children, I cannot see how there will be any reasonable opposition to that.

There was also significant resistance to the introduction of legislation on coercive control, but we went with the evidence base on that, which suggests that coercive control sustains family violence. The evidence suggests that smacking sustains family violence, so it does not have a place in a civilised culture.

Dr Heilmann

I think that I answered Ms Wells’s question earlier when I said that the evidence shows that attitudes change more quickly in those countries where legislation has been introduced. By legislating, the Parliament will influence social norms on what is and what is not acceptable. The introduction of legislation will influence attitudes. In most countries in which such legislation has been introduced, that has happened without a majority of the public supporting it at the time when it was introduced. It is the right thing to do.

Diego Quiroz

Ms Wells, you are right to say that you represent people but, as Dr Heilmann has just said, this is the right thing to do. Moreover, under articles 2 and 3 of the United Nations Convention on the Rights of the Child, you also have the obligation to take measures to protect the child’s best interests and dignity. You do not have only one task as legislators. Sometimes it is difficult, but you have to do the right thing—and, in a legal context, you have that obligation.

Dr Waiton

You have asked a very good question, and the answer can be found, in part, in the response that you have received. If you, in essence, tell parents, “When you smack your child, you are on the trail to child abuse,” they will look at you with horror and disgust; they will think that you are living on another planet and that you are being contemptuous of them. Many will have smacked their children, will love their children and would never abuse their children, and they live among people who will have done likewise. They will know that what is being said is not the reality for the vast majority of people, who do not abuse their children.

Unfortunately, that degraded view of people seems to underpin what appears on the surface to be a progressive approach but which is actually a very anti-human, negative, patronising and elitist outlook with regard to ordinary parents who smack their children, love their children and would never abuse their children.

The Convener

I invite Gordon Lindhurst MSP, who is visiting the committee, to ask a question.

Gordon Lindhurst (Lothian) (Con)

Thank you, convener. I do not entirely agree or disagree with what has been said by anyone, but as we have limited time, I will address my questions, which are on aspects of law, to Diego Quiroz.

In my previous job as an advocate, I prosecuted parents in court for smacking their children. That is what happens at present. The police look at all the issues—including social work, as Fulton MacGregor has correctly pointed out—but a decision whether prosecution happens is taken not by the police but by the procurator fiscal.

I disagree with Diego Quiroz that the bill does not change the criminal law that parents would face, because the bill as currently drafted—there is, of course, the possibility of amendments at stage 2—removes the defence that is open to parents who are charged with assault of their child and makes this the common-law offence of assault. The reasons for people’s concerns about that are valid in law.

I am interested in finding out whether you agree with this, but I note that other countries have not made this a common-law offence. In Germany, for example, it is set in the criminal code, and it is defined in Sweden and New Zealand. Dr Heilmann talked about the police deciding whether a prosecution should proceed. In New Zealand, section 59(4) of the Crimes Act 1961 provides that the police “have the discretion” not to take matters further. However, the difficulty with taking that approach in Scotland is that it is not the police but the prosecution service that decides whether to prosecute the matter.

Looking beyond that, the approach to crimes—

The Convener

It would be helpful if you could come to a question.

Gordon Lindhurst

I am sorry, convener—I will try to summarise. If we move on from disagreeing over whether the law should be changed, I think that the question is whether, if the law is changed, other matters might need to be looked at. I think that other things would need to be addressed in the law as it stands, because, unlike in Germany, Sweden and New Zealand, this would be just a common-law offence with no statute of limitations.

Diego Quiroz

I have not looked into the matter to that extent—I will take some time to do so and will get back to you with an answer. Given the time that we have, I will just be brief and say that I will have to think about that.

Gordon Lindhurst

Do you accept that it should be looked into?

Diego Quiroz

I agree that the situation is different, because there is no codified civil law in Scotland, but I do not know whether the consequences will be different. I will have to look into that.

The Convener

I thank the members of the panel for sharing their opinions with us this morning, and I suspend the meeting to let the panels change over.

The Convener

Welcome back, everybody. I welcome our second panel to give evidence this morning on the Children (Equal Protection from Assault) (Scotland) Bill. We are joined by Clare Simpson, who is the manager of Parenting Across Scotland; Dr Louise Hill, who is the policy implementation lead at the centre for excellence for looked after children in Scotland; Amy-Beth Miah, who is a member of the Who Cares? Scotland collective; and Cheryl-Ann Cruickshank, who is the director of operations at Who Cares? Scotland.

I put the same opening question to you that I put to the first panel: do you support the bill’s aim of helping to bring an end to the physical punishment of children?

Clare Simpson (Parenting Across Scotland)

Yes. We are a partnership of different children’s and family organisations. PAS’s eight members are in complete agreement: it is unfathomable that, in the 21st century, it is defensible to hit a child. If I was to hit one of you today, I would have no defence; if I was to hit my child—he is beyond that age now—there would be a defence for that. That does not seem right to us.

Dr Louise Hill (Centre for Excellence for Looked After Children in Scotland)

Thank you for the invitation to come this morning—I am delighted to be here. Yes, we welcome the bill. It is overdue, but we are delighted to support it in any way that we can. It would modernise the law to reflect the strong value base that we have towards children’s rights. Over the past decade or so, the progression that we have made in the political landscape for children has been significant. The bill is a natural next step for us.

Amy-Beth Miah (Who Cares? Scotland)

Thank you for allowing me to be in this space today. I will give you a bit of background about myself. I have had social work involvement for as long as I can remember. I have had a lot of different placements throughout my life. I cannot give you a number—there have been so many that I do not remember how many I have had. The longest placement that I have had was for four and a half years, and the shortest was for about four hours, as I was placed in the wrong local authority area.

I am a big supporter of the bill, but it raises a grey area. When a child is removed from their family home to be placed in care, the state becomes the child’s corporate parent, and it is suddenly okay for the state to restrain the child and to act in an almost assault-like manner that breaches human rights. However, the bill wants to take away parents’ ability to smack children. We should encourage such an approach and pass the bill, but we have left out a grey area.

The Convener

Committee members will ask about that later.

Cheryl-Ann Cruickshank (Who Cares? Scotland)

Who Cares? Scotland welcomes the bill’s intent and fully supports its aim of ending the physical punishment of children by parents and carers through abolishing the defence of reasonable chastisement. Diego Quiroz talked helpfully about the bill redefining what is acceptable in order to protect a child’s right to dignity. We would like the redefinition to be extended to protect the dignity of all children, including those who are looked after, by protecting them from all physical punishment and assault. We heard earlier that no international treaty supports a parent’s right to punish their child physically.

In the interests of full disclosure, I say that, before joining Who Cares? Scotland, I worked as an independent advocate in residential childcare in 2001 and I was trained in restraint. Like Mary Fee, I have witnessed restraint—as a residential childcare worker and as an advocate. I hear regularly from our advocacy practitioners about their experience of witnessing restraint. We want to discuss that with the committee today.

Alex Cole-Hamilton

I thank the witnesses for coming and for their written evidence. A number of you heard the evidence from the previous panel, which Annie Wells asked about the controversy over the bill. At present, public opinion is not in favour of the change that we seek to implement. Should we as politicians always follow public opinion? I am reminded that the abolition of the death penalty did not command public support at the time, but public opinion has since changed. Should we always follow public opinion as described in opinion polls?

Clare Simpson

Legislation should be evidence informed. My understanding of a representative democracy is that you represent the people in your constituencies and you represent their best interests. Given what we know and given the compelling evidence that we heard from Dr Heilmann about the harm that physical punishment causes, it is entirely fitting and appropriate to legislate to prevent harm and send a clear message to parents.

The vast majority of parents want to do the best for their child. Quite a lot of parents do not know the evidence that Dr Heilmann came up with—I do not think that many of them will sit and read a long evidence review. However, in the information that we provide for parents through our website, the Scottish Government’s parent club and health visiting, for example, it is our duty to educate parents about the best methods and about what causes harm.

If the bill is passed, we need to implement it with a good public education and information campaign and we must ensure that there is family support. Professionals in Sweden told me that the clarity in the law there meant that parents said, “I know this is against the law, but I’ve been driven to the end of my tether and I don’t know what to do.” That offered opportunities for dialogue and support, which we will need to create.

We also need to ensure that we put proper resources into a public information campaign. When the smoking ban was introduced, we allocated £3 million for publicity for the first year and £1 million for each of the subsequent years. I am not advocating something on that scale, but we have to adequately assess what we need. As a country, we were able to divert people from the harmful behaviour of smoking. We need to do the same thing with this bill and offer proper support to parents.

Amy-Beth Miah

We also need to highlight that children do not know about their rights. For example, I realised yesterday that a lot of the restraint that I went through was actually an invasion of my human rights. I did not know that until I sat down and prepared my notes for today. The woman who sat earlier where I am sitting said that the bill is important because we need to send out a clear message to children that such behaviour is not okay. Going back to what was just said about publicity, the public probably do not have enough knowledge about the issue and children are not aware either of it either. If we are polling children about the issue but they do not have the knowledge and education to back up their view, how can they make an informed decision about it and say whether it is not okay? It is about informing them.

Cheryl-Ann Cruickshank

Professor Callaghan talked earlier about the normalisation of violence. The bill sends to children a clear message, which we fully support, that physical abuse of them is never acceptable. Our members talk similarly about physical restraint and how it quickly became an accepted part of their experience of care, despite the law being quite clear that it should be used only in exceptional circumstances and if it is the only practical means of securing the child’s or another person’s welfare. However, we hear regularly from young people that restraint is used for behavioural management and to compel a child to comply. We support having a universal public education campaign around how we care for our children, and it should include how we care for children who are looked after by the state.

Dr Hill

One of the important and symbolic things about legislation like this is around how we value and respect children and young people in our society. Politicians can listen to their constituents’ and the public’s opinions on the legislation, but for some parents and carers it is about knowledge about what to do. They will say “What else do I do? This is the last resort.” The state, elected members and local authorities should support them to understand what a different parenting strategy is, because they do not know that and perhaps do not have the access to knowledge that some of us have. The good work that was done in the national parenting strategy was underpinned by a great ethos and great values. There should be a campaign to raise awareness of the different approaches that families can take to engage with children and to parent in different ways.

I will pick up on some comments that were made earlier about carers. It is important to know that physical punishment of children who are cared for in foster care and kinship care has not been allowed for a long time. The Looked After Children (Scotland) Regulations 2009 state that children growing up in foster care and formal kinship care should not have any form of corporal punishment used against them. In addition, where there is any engagement from social work, no level of physical punishment of children is allowed.

Amy-Beth Miah

You mentioned kinship care and foster care. I was confused about where the line was for using restraint, which is one reason why I think that we should abolish restraint altogether. I was in foster care and was then moved into residential care, where suddenly it became okay to restrain me. It was never explained to me why it was okay to use that restraint. I had never witnessed restraint, but suddenly I had four people sat on top of me: one was a sergeant in the army, one was a bouncer in a nightclub and one was a female over 6ft tall. Those people were suddenly sat on top of me, but I had no idea what restraint was. Where is the line that allows children who are no longer in foster care to be restrained? Why are we allowing that to happen?

Alex Cole-Hamilton

I would like to unpack some of your answer, Dr Hill. We discussed the issue of “best interests” with the previous panel, and you talked about a discussion between a constituent and an MSP, with the constituent asking how they should parent in the best interests of their child when they are at the end of their tether. That also speaks to the perceived tension that I referred to between children’s rights and parents’ rights.

It is advantageous that 54 countries have been down this road before us. In those circumstances, what has the state done to provide alternatives for parents?

Dr Hill

What is critically important is that the legislation can only ever be seen as one small part of the culture change that is required—I note that it does not feel like a small part at this stage of the debate, obviously.

Aside from the public awareness campaigns at the time of legislation, there must also be a recognition that, because people are becoming parents all the time, there must be an on-going commitment to campaigning around awareness.

Also important is a requirement to invest in the family support programmes that are required. There is a lot of evidence about different kinds of family support and particular parenting programmes, but what is more important is the ability to share all the different kinds of support that there can be for families. Some great information is provided in the “Ready, Steady, Baby!” materials, and more clarity could be provided in that way. I am fresh to these issues, because I have a two-year-old and a four-year-old. There needs to be some thinking around all the ways in which people access those materials and what becomes normalised through the baby box and so on. It is strange that, given all of those great endeavours, we still have this anomaly in our legislation that means that we are accepting the justifiable assault of children.

Some great work is being done and it is about how we build on all of that in some gentle ways, and build up some more parenting programmes. [Interruption.]

Alex Cole-Hamilton

How timely.

Dr Hill

That is my youngest.

Alex Cole-Hamilton

Hello.

With regard to the efficacy of the approaches, if we take the example that Oliver Mundell gave of the child running into traffic, has there been a dramatic upsurge in children running into traffic in the 54 countries that have already adopted the change that is being proposed?

Dr Hill

I do not have any evidence of that, but I do not think so. I would say that, as a parent of young children, if they run into traffic, my immediate response is to hold them. I get hold of my children and I keep them safe. A lot of the really good guidance and policy around children recognises the fact that we want to hold them, care for them and look after them. My immediate response to a child running across the road to an ice cream van would not be to hit them; it would be to hold them and then talk to them. I would get down alongside my child and point out to them why what they had done was dangerous.

Clare Simpson

There has been quite a bit of discussion about the UNCRC. Obviously, this issue is about the rights of the child, but, often, people see the issue in an oppositional way, with the rights of the child being pitched against the rights of families. In fact, the UNCRC places the child very firmly in the context of the family and says that family is the best place for the child. It goes on to say that the state has a responsibility to provide help and support to parents in that role. The Scottish Government has talked about putting the principles of the UNCRC into law, and I think that the legislation that we are discussing is the first step on the way to that.

Earlier, I surprised myself by agreeing with one of the things that Dr Waiton said. The point that I agreed with was his view that parents should be supported and not undermined. I see this bill as an opportunity to do that. It will send a clear message to parents about what is harmful. Once we have done that, as Louise Hill said, we need to offer them support to enable them not to do the things that are harmful.

Mary Fee

I will follow up the points about restraint. As I said to the first panel, the first time that I saw restraint being used I found it quite shocking. It is used in both residential and secure care settings, and I am aware that, on occasion, it is also used in specialised schools that support young people with severe behavioural problems. The explanation that I was given was that restraint was used not to discipline people but to protect them. I am interested to hear the views of panel members on that, especially those of the representatives of Who Cares? Scotland. Does it actually protect people?

There is a very fine line between restraint and assault. If provisions on restraint were to be included in the bill, would we then need to look at the issue of parents who care for children with significant behaviour problems? In a public setting, they might need to use restraint on their children in order to protect them.

Amy-Beth Miah

I will make two points, convener. I do a lot of work with Who Cares? Scotland and I am on the collective. I did research in which I asked 40 care-experienced people for their views on the use of restraint and whether they had found it to be safe. While the things that I have to say might be important, it is important to know that there is plenty of other evidence out there. I have here a quote from my research that might be helpful. One person said:

“Four guys lying on top of you ... if it’s not done right it doesn’t help you—it only makes matters worse. You’re in your room after, raging to get back out there and start all over again. Sometimes they take you down wrongly and it hurts you. It also means that you can have carpet burns on your face and the staff can then use that as an excuse to say that you are self-harming, but you are not.”

It is important to put out there the fact that restraint can cause injury.

You mentioned restraint being used in public. I used to go to child and adolescent mental health services, where I was told that if there were times when I felt myself getting to the point where I might end up being restrained, I should remove myself from the situation, take myself away from it and recognise that I was in control of my behaviour. I tried to do that but, on one occasion, I left the children’s unit only to be followed out of the door by three members of staff who chased me down the street and pinned me to the ground while people were passing by, going about their daily business. For me, that was dehumanising. People who were walking by witnessed me going through that. Some people actually picked up the phone to call the very people who were looking after me—social services—to report that a girl was being pinned down by three people. The very people who are supposed to be providing care are the ones who are doing this. We need to keep that in our minds when we consider restraint.

Cheryl-Ann Cruickshank

Amy-Beth Miah has made a very powerful point. It is important to recognise—as I am sure that committee members are aware—that the vast majority of children enter the care and protection system because they have experienced abuse or neglect, the impact of which can be lifelong. Our members have told us that, in order to recover, they need to feel safe, respected and loved. We know that both feeling safe and having at least one loving, stable relationship are crucial to enable children to heal from past trauma and build trusting, safe and caring relationships.

Restraining children is legally permitted in residential childcare settings, under the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002. However, it should not be used unless it is

“the only practicable means of securing the welfare”

of a child or another person. The “Holding Safely” guidance document, which was commissioned by the Scottish Government, produced in 2005 and updated in 2013, states that restraint should be used “as a last resort”. A number of reports and inquiries that pre-date the 2002 regulations have highlighted concerns about the use of restraint, including “The Pindown Experience and the Protection of Children: The Report of the Staffordshire Child Care Inquiry 1990”, which was published in 1991; the Kent report of 1997; the Edinburgh inquiry of 1999; and the Fife Council independent inquiry of 2002.

Post the introduction of the regulations, there was the Kerelaw inquiry in 2009, which identified inappropriate and excessive use of restraint as contributing factors in an abusive care environment that not only failed to protect the children and young people in their care but further exacerbated their trauma and exclusion. The allegations constituted a substantial list, and included physical assault, some of it arising from the inappropriate use of restraint, including making children compliant through causing pain. There is a very fine line between restraint and physical assault.

Mary Fee

Do you have any evidence that, when restraint is used, it is used as a last resort? In your experience, is there an escalation until a situation gets to the point where restraint is used? Certainly, when I saw restraint being used, there appeared to be no escalation.

Amy-Beth Miah

For me, that is what we are missing out of the picture. People do not just go from zero to 100 in no time—a process normally happens. When professionals go on courses to learn about restraint, they are supposed to be taught that it is a last resort, but the evidence that we have shows that it is not being used in that way. Young people do not know, first, why they are being restrained and, secondly, who makes that call and where the line is. A young person of 14 said that she was restrained for simply throwing a feather pillow. What damage was she going to do with a feather pillow? She was not putting anyone in any sort of immediate danger. We find that there is a very fine line, and there is an issue about who is dictating the use of restraint.

It is important to mention the threat. For a lot of young people, the issue is not just the restraint itself; there is that looming threat all the time, which in my opinion is emotional abuse. It is a way to regulate and control behaviour. In my experience, and that of many others who we hear from, restraint is not being used as a last resort.

Cheryl-Ann Cruickshank

We provide advocacy services in 30 of the 32 local authorities in Scotland. Some of those services have agreements whereby we are notified when a child has been injured in a restraint situation and we then have an opportunity to go and talk to the child. Practice in the area varies widely. Evidence from research that we have conducted as far back as 1997 shows that physical restraint can sometimes be the first resort—it is not always used as a last resort and is sometimes used for behaviour management. For us, that is hugely concerning. In a number of reports that we have produced over the years, we have highlighted the impact of restraint on children and young people’s emotional wellbeing.

One of the challenges is that there is no nationally collected data on restraint in residential care settings. There is no authorised methodology of restraint. Local authorities are required to define for themselves the appropriate training for their staff and to record incidents of restraint and have them independently reviewed. However, we have not seen any recent evidence or research into that or the efficacy of restraint in the care setting.

The Convener

I will move us on, although we can come back to that if there is time.

Fulton MacGregor

I will ask the same question that I asked the previous panel. This is definitely not a trick question, by any means. Is any of the panellists aware, through their research or work in the area, how often the defence of justifiable assault has been used?

Clare Simpson

To be completely honest, I am not aware of that. The defence is there to be used, but I believe that it is not often used. When we have looked at criminalisation in other countries such as Éire, we have found that the removal of such a defence has not increased the criminalisation of parents. In New Zealand, in a report to the Minister for Social Development and Employment on the effects of legislative reform in 2007, the author said:

“In summary, I have not been able to find evidence to show that parents are being subject to unnecessary state intervention for occasionally lightly smacking their children or of any other unintended consequences”.

There were eight extra prosecutions in New Zealand over the period, rather than the hundreds of thousands that we have been led to believe might occur.

I am sorry, that does not totally answer your question and slightly goes off in another direction.

Fulton MacGregor

You have answered my question, because I am looking at the aspect to do with criminalising parents. You have summarised the position really well.

I appreciate what Gordon Lindhurst said to the previous panel at the end of that evidence session. I think that there is a technical issue for the bill in that regard. However—to get to what I think is the nub of the bill, although John Finnie can correct me on that—the bill is not about criminalising parents; it is about sending a strong message and making the law clearer to everyone.

Clare Simpson

I sit on an implementation group that the Scottish Government has set up to look at issues that might arise if the bill is passed. The police and the Crown Office and Procurator Fiscal Service are represented on the group—there have been only two meetings, and unfortunately I have not yet been in the room with those people at the same time. However, I understand that the police say that there would still be a screening mechanism and an assessment, as happens in any case. They say that sometimes a case would be referred to the fiscal’s office and sometimes it would not be.

The scenario of a child running into the road always seems to be cited. As Louise Hill said, most of us would pull someone back from the road, whether they were a child or an adult. The police said that a light smack in the heat of the moment would not generally be considered to be an assault, whereas the parent saying, “Right, you”, and really assaulting their child after the event would be regarded as assault. There is a clear distinction between that and the kind of heat-of-the-moment action that would not be assessed as a method of physical punishment and assault.

Dr Hill

I support what Clare Simpson said. The international research indicates that there is no increase in prosecutions as a result of a change in legislation. There is, however—and we think that this is a huge positive—a decrease in the use of physical punishment for children and a decrease in physical abuse.

It is all about a culture change happening as part of the process. I understand people’s concerns about rising prosecution rates, but those concerns are certainly not founded in any international evidence so far.

It might be useful to talk about resources at this point, or I can come on to that later.

Fulton MacGregor

May I clarify your point? Are you saying that if the bill is passed, it will not have the effect of there being more prosecutions of parents and that it might act as a huge influencer? In effect, it will take Scotland out of the Victorian era.

Dr Hill

I think so. If we think about a bell-curve approach and a public health model in relation to how we respect our children and young people, we think that there could be a reduction in prosecutions as a result of the bill, because of the culture change that will happen.

We talked about the continuum of child abuse and neglect. If we start to shift attitudes to children and young people in the direction of respect, prosecutions for abuse and neglect could reduce, because parenting, and the support that comes with it, will have evolved and changed.

Clare Simpson

Fulton MacGregor’s question is linked to the issue to do with public opinion. Opinion polls are quite a blunt tool, and quite often when we see them we start asking other questions. Some of the public concern is about fear of criminalisation. We have to get the message over that that is not the intent; the bill is about support, not criminalisation.

On parents’ attitudes to smacking, we find that quite a number of the parents who call parentline do so because they have smacked their child and they are concerned about it. They regret doing so and recognise that it is not a useful method of behaviour management.

When we consider the data from, for example, the growing up in Scotland study, Ipsos MORI polls that we have done and the millennium cohort study, we find that a declining number of parents say that they have smacked their child, with the younger population group more in favour of abandoning smacking than the older cohort; the current cohort of parents are less likely to smack.

Another disparity is that people who have smacked say that it is not an effective method of parenting—it is not used to achieve behaviour change, but because people have lost control. I am not sure what that teaches a child. Smacking is used predominantly on children of three to five years old, and surprisingly—and it always surprises me—on disabled children.

Those groups make up the majority of the children who are smacked. That is about communication; it involves the frustration of young children who cannot communicate, and so may lash out, perhaps causing frustration in their parents who lash out in turn. We have to get over that and find ways to inform parents on how to communicate with their children at that stage and how to employ positive parenting strategies.

Gail Ross

You will be glad to hear that we have come to the resources question. It was interesting to hear that there has been no increase in prosecutions in other countries. If, as Dr Hill has suggested, a good awareness campaign might decrease smacking rates, what level of resources should we put into that?

Dr Hill

We were reflecting on the resources invested around the smoking ban and the changes that were needed in public opinion for its implementation: Clare Simpson cited the £3 million investment in public awareness-raising and public health messaging. I think that there is £20,000 for the public awareness element associated with the bill. If you are looking to achieve culture change, that is a very small sum. I worry that the bill’s aim and aspiration, which are in its policy memorandum, will not have the success that we would all hope for, because it cannot lead to that level of culture change without all the other necessary parts. Legislation is only one part of achieving that big picture. That is one of my concerns.

Gail Ross

I have one more question before I move on to the public awareness campaign and how that might look. Would you see the money that is proposed for the campaign as preventative spend? If, by introducing this measure, we stop future adults from having chaotic lifestyles, it is almost preventative spend.

Dr Hill

I am absolutely of that opinion. Professor Callaghan’s evidence shows the impact that smacking has on children and young people into their futures—including on their mental health. If the spending is framed in the way that you describe, it is an excellent example of preventative spend.

Clare Simpson

Gail Ross said that it was “almost” preventative spend. It absolutely is preventative spend. It is about public awareness and public information, but it also has to be about family support services. Parenting Across Scotland is a coalition and a partnership of charities. At the moment, we see budget cuts in family support services all over Scotland. At a time of austerity and poverty, when the services are needed more than ever, there are fewer resources. We have to guard against that now and in the future, because it is those support services, working with families, that achieve the good results that we need for children and for whole families. There have to be public information resources for the bill, and it has to be accompanied by family support.

Gail Ross

Written evidence that we have received from the Evangelical Alliance says that investment in education would be a more proportionate way to tackle the issue than legislation. What is your opinion on that?

Dr Hill

We need to use lots of pieces of the jigsaw to tackle the issue. We know that legislation is critical for clarity, particularly regarding social work engagement and service provision, which I will speak about later. Having legislation, which enables parliamentarians to have a debate about the issues, allows us to have a necessary national conversation, too. It is great that you are doing what you are doing, because the issue has been around for a long time and has been ducked. We have not been bold enough to have the necessary conversation. We have found that people have personal opinions on the issue that they hold strongly, and they want to fight for them. That is fine—we live in a democracy and we must have that debate.

Legislation is one of the things that enables culture change to happen. However, it can achieve relatively little in itself. I am sorry to have said that in Parliament, but legislation needs all the other factors around it, such as policy guidance, coaching, support services and so on. It can achieve some things in itself, but it is also important that it allows us to have this national conversation, which is a great thing. That will allow us to make progress.

Alex Cole-Hamilton

I have a supplementary question for Dr Hill. Clare Simpson can answer both questions when Dr Hill has finished.

Clare Simpson

I am not sure that I will remember them.

Alex Cole-Hamilton

Dr Hill, you are right to say that this Parliament has ducked the issue several times. As I mentioned when I was speaking to the earlier panel, the last time that any legislation was passed on the issue was in 2003. That legislation outlawed the use of head shots, implements and shaking, but that was all. Do you think that that was enough? Did it make any difference?

Dr Hill

I do not think that it was enough, but I think that that was a reflection of the political climate at the time. That is the context in which change happens—we sometimes need to take smaller steps. Today, your committee has spoken to people who represent a continuum of beliefs and values.

We take small steps and we make progress. The bill is an important opportunity to turn some of the policy rhetoric that we hear around children’s rights into reality. That is a tangible way in which the Scottish Parliament can show that we value our children and young people. It is a powerful message to send.

Clare Simpson

To answer Gail Ross’s question, of course we must have education, but we must have legislation, too. I do not see that the two things are mutually exclusive. Earlier, Professor Heilmann spoke about how, in various countries, legislation has led the way and has made education and change possible.

To answer Alex Cole-Hamilton’s question, I do not think that the previous legislation was enough. Further, I think that it created confusion for families.

We conducted a poll—I can send you the data table. It is a little bit old now, but, given that nobody else has conducted such research, it is the most recent evidence that is available. We asked parents what they thought the law said and whether they thought that the behaviour that we are discussing was illegal. We asked them whether it was illegal to hit a child around the head, whether it was illegal to use an implement and so on, and there was a hugely confused response. I do not think that that is helpful with regard to how we live our lives and how parents negotiate the law. We need clarity.

Annie Wells

It is not just through opinion polls that the public is communicating with us about the issue. The committee received more than 400 written submissions, and the majority of the individual responses that we received did not support the bill.

I listened to Clare Simpson talk about the implementation group, and I know that the police will continue to use the idea of reasonable chastisement as a reason not to progress issues around smacking in circumstances in which something is done in the heat of the moment. I wonder whether, if we take away the bit about reasonable chastisement, the police will not be able to do that and will need to progress the complaint. If we were to put more resource into the information and education around parenting, might that be a better way of changing the culture as well as public opinion and people’s perceptions?

Clare Simpson

The issue of organisational responses versus individual responses is quite difficult, because you do not know where the individuals are coming from. Going back to what I said about the fact that there is quite a lot of misunderstanding about the law as it stands and the law that is proposed, I think that there is a great fear of criminalisation. I have not read all the individual responses, but I had a look through them and saw that a lot of them refer to the criminalisation of parents. As I said before, that has not gone up in other countries—they have not been awash with prosecutions of parents. Given the fact that that has not happened, we should reassure parents that it is not going to happen. That will address some of the concerns that exist.

Dr Hill

It is a feature of a democracy that people have lots of different views and take the opportunity to share them. We should listen to the range of views that exist and try to understand what people are really saying—what their anxieties are and where they are coming from. Some parents say, “If I can’t smack, I just don’t know what to do.” There is another issue around supporting parents with learning disabilities at all stages so that they know what different strategies they can use, and that involves the family support side. We need to ensure that all parents feel that they are in a place where smacking is not the only option that they have. We need to go deeper into those issues and understand what they are about.

For other people, the issue will come down to political opinion. For example, they will feel that the legislation represents the state interfering in private family life. There is always a huge tension in the world of child welfare around the role of the state, the issue of private family life and how those things rub together. Particularly with regard to our work in protecting children, there is always decision making involved, and, in the small number of cases involving children who have experienced abuse and neglect, there is not only one person involved in decisions about whether to pursue a criminal case or whether to opt for other measures. Those are multiagency decisions, and police will be involved in those conversations.

The issue is presented a little more starkly than it really is. Within that world, there is the issue of collaborative decision making. However, the issue is principally about looking at the strengths of families and working with them in a way that enables us to understand what pressure the families are under and what else is going on in the families. We try to understand the issues that mean that somebody’s parenting is not as good as it could be, and we ask how we can help them to be a better parent.

Amy-Beth Miah

I would like to add to that, because this is a real-life issue for me just now. I am 23, and I have just had my first baby—you probably heard him screaming just then. He will be 23 weeks old on Monday. One of my big fears is based on the fact that the state intervened in my life. The state deemed that my mum was not fit to parent me, due to the abuse that I was suffering in my private family life. I did not want that to be an issue, and I am determined not to allow that to be an issue for my son in our life. Because of that, there is not a parenting book out there that I have not read.

At the end of the day, we are talking about learned behaviour. We learn from, and are conditioned by, the repeated behaviour that we are subjected to. When we restrain, hit and assault children, we are not allowing children and young people to self-regulate and develop into people who will be good members of society; we are pinning them down, sitting on top of them and not allowing them to make sense of their feelings and emotions. That is why we must make it clear that it is not okay to do those things. We should not have a grey area about what is okay and what is not okay; we should abolish that behaviour. There is no place in a modern Scotland for smacking kids or for restraint at all. We need to make that clear—it is fundamentally important that we do.

Annie Wells

I have another quick question. On Monday, Mary Fee and I visited a church in Glasgow and spoke to people who were concerned about the name of the bill. Under common law, an attack on one person by another is an assault, whether that person happens to an adult or a child, which means that there is already a provision in law for assault on children. Calling it the Children (Equal Protection from Assault) (Scotland) Bill might make it sound as though there is no protection for children from assault at the moment. What are your thoughts on the name of the bill?

You look concerned, convener. Can I ask that question?

The Convener

The bill is removing a defence rather than anything else. However, people can answer the question.

Annie Wells

I am just interested in hearing the thoughts of the panel on the issue, because it was raised with me.

Clare Simpson

It is tricky, is it not? Quite often, laws are incomprehensible to the public, which I am not sure is necessarily a good thing. I suppose that a bill’s title conveys its intent, and the intent of this bill is to provide equal protection for children and adults. As you say, there is currently a ground of assault, whether the offence concerns adults or children. I suppose that the difference is that, if I were to assault my child, there would be a defence—even though, to me, such action would be indefensible—whereas there would be no defence if I assaulted an adult.

The Convener

We are drawing to the end of our meeting, and Mr Lindhurst—I was about to call you a visiting MSP, Gordon—would like to ask a quick question.

Gordon Lindhurst

Professor Jane Callaghan said that, if the bill resulted in more parents being fined or going to prison, that would not be a positive outcome. Do you agree with that?

Clare Simpson

Yes, I suppose I do, although, obviously, when there is severe assault of a child or an adult, there is a case for going to court. I note that there has not been an increase in the number of parents going to court in other countries. What there has been an increase in is the diversionary work and the support that is offered to families around alternative parenting strategies. I would not see it as beneficial if the bill resulted in parents going to prison, but neither do I anticipate that happening as a consequence of the bill.

Gordon Lindhurst

I want to come on to that point on the back of the evidence that you and Dr Hill have given us.

I take on board what Fulton MacGregor said, but the issue that I want to raise is not a technicality. The way in which the bill is framed is a serious matter for people who might go to court or parents who might find the police knocking at their door. I would not say that the current situation could be described as Victorian, but the bill will take us even further backwards—it is medieval in that it falls back on the common law. New Zealand, Sweden and Germany did not deal with the issue via the common law. We do not have time to look at the detail of the New Zealand act, but New Zealand brought in clearly defined legislation—I note that you have talked about the need for the law to be clear.

Do you agree with the view that the committee has heard today, that the issue of what the bill actually says needs to be considered further, putting aside for one moment the issue of whether the state should decide whether parents should smack children?

Clare Simpson

Are you asking whether I agree that there should be clarity? I think that I have missed your point.

Gordon Lindhurst

Sorry. Perhaps I have made it confusing in my attempt to shorten the question.

Putting to one side the arguments about the rights and wrongs of smacking and looking only at the intentions of the bill, do you agree that we need to look carefully at what the bill provides in law, particularly given that it does not relate in any way to what has been done in other countries?

Clare Simpson

I am not entirely clear on the legal processes—I want to make that absolutely clear. I am here to talk about parenting interests.

Annie Wells talked about responsibility in a parliamentary democracy and what MSPs are elected to do. I would hand the question back to you and say that that is the responsibility of this committee. I do not have the expertise to answer the question, but I am sure that you will be calling other witnesses who will consider that issue.

Dr Hill

That would be my opinion, too. I think that you should ask such questions of legal experts during the process of parliamentary scrutiny. I am not sure that we are the right panel for that question.

The Convener

As the convener, I can say that that is exactly what the committee will do.

John Finnie MSP is with us. Do you wish to ask any questions?

John Finnie (Highlands and Islands) (Green)

I have no questions.

The Convener

In that case, I thank everyone for coming this morning and for sharing their experience and evidence with us.

The Convener (Ruth Maguire)

Good morning and welcome to the sixth meeting in 2019 of the Equalities and Human Rights Committee. Please ensure that mobile devices are switched to silent.

I welcome Gordon Lindhurst MSP and John Finnie MSP to the meeting.

Agenda item 1 is our second oral evidence session on the Children (Equal Protection from Assault) (Scotland) Bill. I welcome our first panel: Bruce Adamson, Children and Young People’s Commissioner for Scotland; Joanna Barrett, policy and public affairs manager, Barnardo’s Scotland, representing Barnardo’s, Children 1st and NSPCC Scotland; Tríona Lenihan, advocacy and communications manager, Global Initiative to End All Corporal Punishment of Children; and Martin Canavan, policy and participation officer at Aberlour Child Care Trust.

I will start things off. Do you support the bill’s aim of preventing the physical punishment of children in Scotland?

Bruce Adamson (Children and Young People’s Commissioner Scotland)

Yes. As Children and Young People’s Commissioner for Scotland, my role is to promote and safeguard the rights of children and young people, and the bill’s aim is one of the most important legislative things that we can do right now to secure children’s rights.

Assaulting a child for the purpose of punishment should never be legal. It is at odds with the values that we hold in Scotland. The United Nations Convention on the Rights of the Child is clear that children should grow up in a family environment of happiness, love and understanding, and that, although parents have the responsibility to ensure that children grow up in that environment, the state has an obligation to put in place clear protections. Article 19 of the convention says clearly that the state must put in place legislative protections to ensure that children are protected from all forms of violence and, alongside that, all the guidance, support and education to allow parents to fulfil that role. The bill meets both those aims. It ensures that the state puts in place that guidance, support and education, and it corrects the issue that we have at present where the assault of children is allowable for the purpose of physical punishment.

As the committee is aware, the issue has been a regular feature of concern about Scotland from the international community—the United Nations, the Council of Europe and the European Union. I welcome John Finnie’s human rights leadership on the matter and the committee’s role as a human rights guarantor to ensure that children in Scotland have their rights respected in relation to their physical integrity.

Joanna Barrett (Barnardo’s Scotland, Children 1st and NSPCC Scotland)

As you said, convener, I am here to represent three organisations—NSPCC Scotland, Barnardo’s Scotland and Children 1st. We have been working together for a long time to advocate the change and we, too, commend John Finnie’s leadership in bringing the bill before Parliament. It is our strong opinion that the law as it stands has no place in a society that claims to be progressive and wants to do the best for its children, so we strongly advocate the bill.

Tríona Lenihan (Global Initiative to End All Corporal Punishment of Children)

As our name probably suggests, we strongly support the aims of the bill as a means of realising children’s rights to dignity and bodily integrity and to health, development and education, and as a means of reducing violence in families and society.

Martin Canavan (Aberlour Child Care Trust)

Thank you for inviting us along to give evidence this morning. My answer is yes, Aberlour fully supports the bill and the aim of ensuring that children have the same protection from assault as adults through the prohibition of physical punishment. We believe that all physical punishment of children should be prohibited by law and that children require more, not less, protection from violence than adults do. There naturally exists an imbalance of power in adult/child relationships, and as a result it is critical that children are provided with as much protection in law as possible.

Aberlour has a proud history of advocating against the physical punishment of children while promoting positive alternatives to physical punishment. Parenting support is a key focus of the work that we do with families every day, helping parents to become confident and secure in their parenting. We believe that the focus of a prohibition on physical punishment should be on not the criminalisation of parents, but the protection of children, not only by legislating but by promoting positive alternatives to physical punishment. We need to support parents who struggle to feel that they can deliver positive parenting and help them to become confident in their parenting.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Good morning. Thank you very much for coming to see us.

Given that Aberlour Child Care Trust is represented, I say for the record that I worked with the trust as head of policy for eight years before I was elected to the Parliament.

I want to address the perceived tension between adults’ rights and children’s rights. Dr Waiton, who gave evidence to the committee last week, suggested that there is no such thing as children’s rights. There are protections, but children are in the care of their parents. Submissions against the bill have cited a tension between the right to family life and article 19 of the convention. Do the panellists agree with Dr Waiton’s assertion that there is no such thing as children’s rights? Bruce Adamson has said that article 19 states the clear international expectation that children have the right to be free from violence. Is there a conflicting right in any treaty in international law that could be interpreted as giving parents the right to physically punish their children?

Bruce Adamson

The position that children do not have rights is completely untenable. We recently celebrated the 70th anniversary of the United Nations Universal Declaration of Human Rights, and the committee had a human rights takeover day on 10 December. Article 1 of the declaration states:

“All human beings are born free and equal in dignity and rights.”

The international community has been very clear that children have not only rights, but additional rights. Those have been set out in the preamble to the declaration, which identifies childhood as a time of special care and protection, and in successive international treaties at the UN, Council of Europe and EU levels—most notably in the United Nations Convention on the Rights of the Child, which is 30 years old this year and which I have cited. The convention recognises that, because of the particular vulnerability related to children’s physical immaturity, additional rights and protections are necessary. The idea that children do not have rights is therefore simply untenable in any country in the world. Every UN member state signed up to that at the beginning of the basics of our human rights framework, so I cannot understand that argument.

You mentioned the perception of a difficulty in balancing the human rights of parents and the human rights of children. The United Nations Convention on the Rights of the Child, which every UN member state bar one, along with a number of non-UN member states, has signed up to, was drafted very clearly. The family environment and the role of parents are absolutely essential. I am talking about how the state can support parents and families to ensure that children can access all their rights in relation to health, education and thriving. Article 5 of the convention sets out very clearly that the state shall respect the rights and duties of parents; it also sets out a number of ways in which that should be done. Article 18 recognises the “primary responsibility” that parents have and says that the state has to provide additional support to parents. The state needs to support families in order to deliver the rights of children and young people. There is absolutely no right to use physical violence as part of respect for private and family life.

Article 8 of the European convention on human rights, which is a Council of Europe convention, talks about

“respect for private and family life”.

The state can interfere with that only in certain circumstances. The European Court of Human Rights and all the UN committees have been very clear that there is no right to use violence in relation to respect for family life.

Joanna Barrett

We totally agree with the commissioner that it is pretty ludicrous to argue that children do not have rights, especially in front of the Equalities and Human Rights Committee. Children’s rights are realised through their adults. It is we who are the guardians, almost, of children’s human rights. Rather than children’s and parents’ rights being in conflict, they are actually totally complementary. I see my role as a parent as ensuring that I do my best to realise my children’s rights. The job of adults, Parliament and society is to realise children’s rights.

Alex Cole-Hamilton

Dr Waiton, who gave evidence against the bill last week, suggested that the right to family life is about autonomy and that parents should have autonomy to parent their children as they see fit. Where are the restrictions around that autonomy defined? Are they simply interpreted from the notional right to family life?

Bruce Adamson

They are defined and interpreted through a number of sources. There are the core conventions. Article 19 of the Convention on the Rights of the Child, which is 30 years old, makes it clear that parents’ role is to protect children from

“all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse”.

The Committee on the Rights of the Child issues general comments, which are an authoritative interpretation of the convention, and it has expanded on the convention significantly, making it clear and unequivocal—there is no ambiguity—that children’s right to be protected from violence means that all forms of corporal punishment in all settings must be abolished by law, and that campaigns to support that must also be in place. The UN committee has been clear about that through the text of the convention and in its general comments relating to the convention.

The Parliamentary Assembly of the Council of Europe has said very much the same thing. In 2008, it said that the right to respect for private and family life needs to be interpreted within the context of protecting children from all forms of violence. In fact, almost all countries in Europe, as well as a significant number—more than 50—across the world, interpret the right in that way. The idea is that there must be a comprehensive legal framework to protect children from all forms of violence in all settings and that the right to respect for family life needs to be interpreted within that.

The European Court of Human Rights has been very good at dealing with the issue, and our domestic courts can address it as well. It is interesting that all the leading cases in relation to physical punishment of children have been against the United Kingdom, on issues ranging from corporal punishment in the criminal setting to abolishing corporal punishment in schools, focusing on independent schools, and to restricting the use of implements and other things in the home, which led to the most recent change in Scotland.

In my view, the current position in Scotland is in breach of the European standard and there is a real risk that, if the bill is not passed urgently, we could end up with a child again having to go through the courts to seek redress. The current position is not compliant with the European convention on human rights or the broader framework. The courts are very good at interpreting the issue, and the limits on respect for private and family life are set within the clear guidance on protecting children from violence.

Alex Cole-Hamilton

Before I move on to my next question, perhaps Tríona Lenihan or Martin Canavan wants to come in.

Martin Canavan

We are an organisation that has children’s rights at the heart of the work that we do every day with children and young people and families, and we are committed to supporting, promoting and protecting children’s rights. Therefore, to us, the notion that children do not have rights is a nonsense—it is ludicrous—and we reject any evidence that the committee has heard thus far that makes such a suggestion.

Tríona Lenihan

I strongly agree with everything that has been said. We have talked a lot about promoting children’s rights and protecting children, but the change would have a positive impact on families as a whole. The positive changes in behaviour and social norms that could come about would benefit parents and children in families. The feedback and anecdotal evidence from parents who have participated in positive parenting courses and similar things is that the knock-on effect on the whole family is of great benefit.

Alex Cole-Hamilton

I will move on to the arguments that are deployed by those who oppose the bill. They say that there is empirical evidence to show that things such as back-up smacking can be an effective parental control and discipline tool. My anxiety about that is that it presupposes that everybody who uses smacking does so in a proportionate and controlled manner. When the Parliament legislated on the issue in 2003, the restrictions that it put on smacking were that there should be no head shots, no shaking and no use of implements—that was it. Have those parameters created a landscape in which parents understand that they have to retain control when using smacking, or has that legislation led to more confusion?

Joanna Barrett

It has led to a lot of confusion. If you ask a parent on the street whether smacking is banned, they will probably say that it already is. There is not a lot of clarity, and legal change would bring absolute clarity for parents, professionals seeking to support parents and, ultimately, children, on how they can expect to be treated.

I am uncomfortable talking about back-up smacking. I am not an expert on the empirical evidence, but, in the report that we—Children 1st, NSPCC Scotland and Barnardo’s Scotland—commissioned, Dr Heilmann was really clear that there is no evidence that physical punishment is a useful discipline tool or that it does children any good. What is the impact on the child of back-up smacking? Do they think that it is okay, because they know that it is a back-up smack that is used as a last resort? That is not how a child receives a form of physical punishment. They know that they have been hit—they do not give it an academic label.

With back-up smacking and the threat of smacking, we draw an invisible line in our mind about what is and is not acceptable, and the law allows us to draw that line. The problem is that everybody around this table would have a different invisible line for the punishment that would or would not be okay for a child to receive. For each person, the line would change as circumstances change, and it would sometimes be completely blurred. It is totally unjustifiable that our law allows that. It should be absolutely clear to parents, professionals and children how children should be treated with regard to children’s physical dignity.

That opens up a different conversation about how we manage children’s behaviour. All the evidence from the growing up in Scotland study shows that there is a peak between the ages of three and five in the amount of smacking used, so we are not talking about children with whom we can rationalise or who have an understanding of how to regulate their emotions. They are very young children who do not have the cerebral capacity for that. As parents, we need to teach them how to emotionally regulate, given that—ostensibly—we have the capacity to regulate our own emotions. We will not model that behaviour for our children if our response to frustration is to lash out.

Alex Cole-Hamilton

In this debate, some reasonable people are suggesting that physical punishment is sometimes in the best interests of the child—for example, if they are about to put their hand in a fire or run out into traffic. In the 54 countries where physical punishment has already been abolished, has there been a decline in children’s welfare due to people not being able to restrain their children in that way?

Joanna Barrett

There is absolutely no evidence of increased prosecutions. I cannot attest to there being increased incidence of children being knocked down, electrocuted or anything like that.

The idea that the bill would not let parents stop children running in front of a car, touching a hot iron or touching a plug is often used, so it is incumbent on us to be absolutely clear about what the bill seeks to do. It is my understanding that such action is not assault and we are here to talk about removing a defence for assault. The purpose of such action is to stop a child coming to immediate harm.

If we did not mess with the current law, the existing defence would not even come into play, because it talks specifically about physical punishment. Me pulling my child out of the way of a car is not an act of physical punishment; it is an act of protection. It is a red herring to focus on such things as examples of what the bill seeks to do.

We have a responsibility. We talk about public opinion perhaps not being with the bill, so, in order to garner good public opinion, we need to be really clear about what the bill will and will not do.

Martin Canavan

I return to Joanna Barrett’s original point about clarity. For the parents we work with every day—and for parents in the general public, out in the street—what the law currently does and does not allow with regard to physical punishment is not clear. A consequence of passing the bill would be that absolute clarity could be ensured, because all physical punishment, of any description, would be prohibited by law. That clarity would be important in ensuring that parents who required support were provided with it. It would also ensure that parents who otherwise might not seek out advice about or assistance with parenting issues or concerns would be encouraged to seek out such support.

Like Joanna, I have often heard cited the examples of a child running out into traffic or otherwise putting themselves in harm’s way, and I echo what she said about stopping a child doing that not being the same as physically punishing them.

It is also important to recognise that we might have to do the same thing to stop an adult with an impairment—dementia, for example—walking out into traffic. However, we would not then physically punish them afterwards to reprimand them or show them that they had done something that they should not have done. The same consideration applies to children as applies to adults.

Children learn from the example that we set and from the behaviours that we model—that is how they learn as they grow up. I think that even the slightest smack shows a child that hitting people is okay. By prohibiting physical punishment, we will prevent that and ensure that children grow up learning that hitting others is simply not acceptable.

Annie Wells (Glasgow) (Con)

We know from opinion polls and the individual submissions that we have received that public opinion is not with the bill. How can we bring the public along with us on this journey? Is it a question of information and education rather than legislation?

Bruce Adamson

That is an important point. We must make clear the point that we were just making. What we are talking about is assault: a deliberate attack on another person with an evil intent, which is to cause physical injury or fear of personal injury. That is something that is proscribed by law, unless you are the parent or carer of a child and you are doing it for the purpose of punishment. That is all that we are talking about. We are not talking about using physical contact to keep a child safe. That is not an assault, and it would not meet the test of it being for the purpose of punishment.

The international evidence is interesting. It shows that, in most countries that have taken this step through law—indeed, in all of them, I think—public opinion was not with the legislation. That is because, generally, even though this is not the test that we are seeking to bring in, the opinion polls asked, “Should we criminalise parents who smack children?”

There is great evidence internationally, in particular from New Zealand, that, over time, people’s opinions change, once they see that the approach works. Generally, what is required is human rights leadership, which uses the legislation to deliver the culture change. That culture change takes quite a long time. In New Zealand, for example, there was a citizens-initiated referendum to try to reverse the change. Again, the majority of the people who took part in that referendum said that they thought that the law should be repealed. The Government said no, because a human rights principle was involved. That position has proved to be right, because public opinion has changed. It took quite a long time and happened fairly slowly but, without that legislation, there would not have been that culture change.

You need the legislation to deliver the culture change—we know that to be true. In that regard, this issue could be seen in the same way as seat belts in cars, drink driving and smoking in pubs. On such issues, you need to lead with the legislation in order to deliver the culture change. It is not the prosecutions that change the culture; it is the clear indication in the law about what is expected. What we have seen internationally is that there is not a massive increase in the number of prosecutions—the associated prosecutions are extremely rare. Also, you do not see an instant change public opinion; what you see is a gradual change in public opinion and a culture change in relation to violence.

Oliver Mundell (Dumfriesshire) (Con)

I have a supplementary question, specifically for Bruce Adamson. You set out the tests for the common-law offence of assault. Do you think that parents who smack their children show “an evil intent”?

Bruce Adamson

“Evil intent” has been interpreted by the courts as involving an intention to cause physical injury and fear of injury.

Oliver Mundell

Do you think that that is the intention of parents when they smack their children?

Bruce Adamson

That is the way in which the criminal law would approach it. If that is not the intention, the issue would not be a matter for criminal law. Criminal law is concerned only with—

Oliver Mundell

They have to want to injure their child, or cause them an injury.

Bruce Adamson

That must be their intention. That needs to be set in the context of physical punishment. Something that is not for the purpose of punishment—grabbing or restraining—would not be a criminal law concern.

There is an obligation to provide education and guidance, and all the evidence shows that positive parenting is much more effective.

Tríona Lenihan

This comes down to definitions. We use definitions, as Bruce Adamson said, to differentiate between a punitive action—an assault or a physical punishment—and a protective action. The United Nations Committee on the Rights of the Child uses the same approach. It defines physical or corporal punishment as a physical action that has the intent

“to cause some degree of pain or discomfort, however light.”

Therefore, it is not that the parent is being malicious and has a negative motivation but that their action has that intent.

Oliver Mundell

I fully accept that definitions are very important, but we have to recognise that assault is a common-law offence in Scotland, so the issue is how the courts interpret an action and its intention. I just wonder whether the ordinary or reasonable person would think that parents set out with an intention to cause injury to their child. It is a question of interpretation. Would you be confident that the court would see such an action as intending to cause injury?

Bruce Adamson

I think that the courts are very good at interpreting such matters. The common-law offence of assault applies to adults, and cases do not generally get to court. I cannot really foresee that the small, physical interventions that you are talking about would end up in court.

The bill is about setting very clear standards that any form of physical violence for the purpose of punishment—using pain as a tool of punishment—is wrong. In order for criminal law to be engaged, the standard would be in relation to assault, which would require the intention that I described.

Oliver Mundell

Do you recognise the vagaries of the law and the fact that, if there is not a more carefully defined definition, a grey area could be created?

Bruce Adamson

That is certainly not the experience anywhere else; neither is it the experience in Scotland—we have a long history of the police, the procurators fiscal and the courts being able to interpret our laws. This is not a new offence; the courts are already very aware of it.

The Convener

I am conscious that that was a supplementary, Oliver, and that we cut across Annie Wells. Apologies for that, Annie.

Annie Wells

Does anyone else have anything to add in response to my question about how we bring the public on this journey?

Joanna Barrett

We need to accept that this is an emotive issue—it speaks to how we were parented and how we parent. I think that it is fair to say that there is no universal consensus on the issue. As the commissioner said, although most of the places around the world that have introduced similar legislation faced public opposition, they did so because it was the right thing to do.

A ComRes poll, in which more than 1,000 people were surveyed about smacking, is often cited. If the results are disaggregated by age, there is a huge disparity between older people, who are more likely not to support the bill, and younger people, who overwhelmingly support it.

We need to look at the views of children and young people. The Scottish Youth Parliament has carried out work—it has provided it to us—that shows overwhelming statements from tens of thousands of young people who agree that we need to introduce these measures. We are seeing a decline in the use of physical punishment anyway, so younger people are more likely to support legislation. They are the parents of the present and the future. Although we know that the proposal does not have universal support, it is important to acknowledge that there is increasing support from younger generations.

On your question about whether this issue should be dealt with through public education or legislation, it has to be both—all the evidence says that a change in the law alone will not achieve the behavioural and cultural change that we want. We cannot change the law without telling people about the issue. There need to be sustained public information and awareness campaigns, not just a one-off campaign. Equally, those public education campaigns alone will not achieve the change that we want.

Martin Canavan

I agree with everything that Bruce Adamson and Joanna Barrett have said. The legislation is just one part of a much wider approach, which should include a public information campaign and awareness raising, so that information is available to parents, families, children and young people through multiple channels and formats.

A third element is to ensure the provision of accessible support, information and advice for all parents who require it. That would ensure that parents who feel that they need help or support with their parenting, particularly in the light of the bill, can be confident in finding the help, support and advice that they need. There are three elements to the approach, but legislating is key.

The role that you, committee members, and your colleagues in Parliament have as legislators and policy makers is to legislate in the best interests of your constituents and wider society. That work should be done from an informed, evidence-based point of view. Although it is important to be aware of and to take note of public opinion, consideration of public opinion should not outweigh a strong and robust evidence base. In relation to the bill, there is a strong and robust evidence base in favour of prohibiting the physical punishment of children.

Tríona Lenihan

The Government and the Parliament are responsible for protecting the human rights of all their citizens, including children. Protecting the rights of a minority sometimes requires a top-down approach, particularly when the policy is evidence based and supported by guidance from international rights bodies and international health and medical bodies, including the World Health Organization.

It is worth noting that most parents do not want to use physical punishment. They do not like doing it and they do not feel good after having done it. The UNICEF multiple indicator cluster surveys programme covers a range of issues, including violent discipline. The surveys that it has conducted in countries all over the world have consistently found that the use of corporal punishment is far higher than the number of parents and carers who believe that such punishment is necessary to raise a child properly. That finding is encouraging, because it implies that parents would use alternative methods if they were more aware of them and were more comfortable and confident in using them. Therefore, there is a responsibility to meet those needs and to fill that gap in the law, and the bill would go a long way towards doing that, particularly through providing clarity.

Clarity in law is essential in providing the foundation for all the work on education and parent support. Without clarity, there will be ambiguity and confusion, because often people assume that if the law allows something, it must be okay. Following a similar change in law in Ireland, one of the greatest benefits has been the clarity that has been provided to the police, social services and everyone who works with and for families. If it is clear that physical punishment is never acceptable, people can then talk about the positive things that they can do.

Mary Fee (West Scotland) (Lab)

I want to ask about the published evidence that the physical punishment of children can cause long-term harm. Such punishment has been linked to further childhood aggression, adult aggression and antisocial behaviour. Do you agree with that? If so, why do you have that view?

Tríona Lenihan

I agree. A huge body of evidence supports that view. The global initiative prepared a summary of the research in 2016. At that point, more than 250 studies showed associations between experience of corporal punishment as a child and the wide range of negative health and behavioural outcomes that you mentioned. More research has been published since then, so an enormous body of evidence supports that view, and there is no comparable body of evidence against it.

Bruce Adamson

Last week, the committee received strong evidence from academics who are authors of some of the papers and reviews in this area. The evidence base on the negative impacts of the early experience of violence and physical punishment is growing and is very consistent.

On Tuesday, the special representative to the secretary general on violence against children, Marta Santos Pais, gave her report to the UN Human Rights Council and highlighted a number of other reports. Therefore, the issue was discussed earlier this week at the Human Rights Council. Marta Santos Pais was clear about the fact that she welcomed the Scottish bill, and she said that she thought that the evidence was now so strong that all countries needed to introduce such legislation as a matter of urgency. She also linked the issue to the sustainable development goals—goal 16, in particular—and to health and development. She said that such legislation would play a strong role in the lifelong development of children and young people and that experiencing violence clearly affected their ability to access rights across the board.

Mary Fee

Do any of the other panel members want to comment?

Joanna Barrett

I will speak for the panel—I am willing to be corrected if I am wrong. Nobody is suggesting that the link in question is causal—that because someone has been physically punished, they will experience X, Y or Z. Among all the nuances, that can be lost. We are not suggesting for a minute that, because someone has experienced physical punishment, they will go on to do X, Y or Z. However, so strong and consistent is the link that the evidence shows that it undermines what we have on the statute book and makes the proposed change really urgent.

Martin Canavan

I agree with what others have said. There is a significant and robust evidence base. As Bruce Adamson mentioned, last week the committee heard from some academics who have published papers and conducted studies in this area. They are far more qualified to comment on what the long-term outcomes are than I am.

In the work that we do on a daily basis in providing family and parenting support, we see the direct impact of that work and what can be achieved as a consequence of it. All the work that we have done with families over the years has shown that, by addressing at as early a stage as possible underlying issues for parents, such as mental health and other factors that might affect their parenting capacity, we can improve not only their capacity but their relationships with their children. We do that by role modelling, demonstrating good behaviours, providing opportunities for stay and play, and building routines such as sleep routines in an effective way. All those things contribute to the ability of parents to build and develop positive relationships with their children. We know what the outcomes are—we have heard a great deal of evidence on the impact of such work in building positive relationships and improving children’s wellbeing in the long term. We can say with some confidence that we see the impact of the work that we do from day to day on the families we work with.

Mary Fee

Are you aware of any specific equality groups that are more likely to be subjected to physical punishment? I am thinking of groups such as children with additional support needs or physical disabilities.

Tríona Lenihan

There is research that shows that children with disabilities can be more vulnerable to violence generally, including physical punishment. Beyond that, there are differences in how physical punishment can be applied. It can sometimes be used for different reasons or in a different way for boys and girls.

Bruce Adamson

There are studies that look at areas such as gender and disability, which I am not an expert on, but what we are looking for and what is required is a universal protection, whereby no child should be subjected to physical violence. Some children, especially those who have additional communication needs, are at a heightened risk of assault. I am not an expert on the studies that suggest that they are more likely to be assaulted, but they are at heightened risk and have less ability to express themselves or to seek justice if they are subjected to physical violence.

That links strongly to the work that my office has done on restraint and seclusion in educational settings, which shows that it is much more likely to happen to children with communication additional support needs. However, that is not what we are discussing in the context of this bill. It is a universal principle, so the key thing is that no child should be subject to physical violence. The protections that should be put in place for particular children also need to be looked at, but I am not an expert on the evidence around equalities issues.

Mary Fee

Does the panel think that restraint should be covered by the bill? As I said when I raised the issue last week, I have seen restraint being used and it can be shocking and alarming to see it used on a young person. There is a fine line between using restraint to prevent someone from causing further harm to themselves or others and using it to punish or harm them. It is more commonly used in residential care settings, but it could be used by carers of a young person with complex behavioural needs. I am interested in the panel’s views on whether the bill could be used to protect young people from the use of restraint.

Bruce Adamson

I am particularly concerned about that broader issue. I recently conducted an investigation into the use of restraint and seclusion in educational settings. The report was laid before Parliament last year, and I would welcome the opportunity to come and speak to the committee about that and its recommendations. The evidence from Who Cares? Scotland and the conversations that we had with care-experienced young people raised restraint as a significant concern that needs to be addressed but, in my view, the bill is not the place for that. That is partly because someone within a residential or educational setting would not be able to rely on the defence at the moment, even if they were exercising parental responsibilities. They would be excluded because the bill is not about that.

It would be better to look at restraint and seclusion separately, and at what changes to legislation, policy and practice are needed. A number of those are in my report and the work from Who Cares? Scotland. It is an issue that urgently needs to be addressed, but it does not sit within the context of this bill. That specifically looks at whether the use of assault for the purpose of physical punishment can be justified when exercised by parents or carers on children. I strongly agree that we need to take action on restraint and seclusion, but this bill is not the place to do that.

Mary Fee

Do any other panel members want to comment?

The Convener

I am conscious that time is marching on. It would be good to hear any different opinions, but if you want to agree we will move on to the next question.

Martin Canavan

I absolutely agree, but I also want to say that, as providers of residential childcare where restraint is significant in the work that we do with looked-after children, we would also welcome the opportunity to come and speak to the committee about it at some future point. It is an important issue, but I do not think that this bill is the right place to address it.

Oliver Mundell

In last week’s evidence, it was suggested that the bill will not lead to an increase in the number of prosecutions or fines. Is that correct?

Bruce Adamson

The experience in other countries has been that such increases have been nominal. In New Zealand, for example, there were, I think, eight cases over the 10-year period, and some of those would have fallen foul of the law in Scotland anyway. A very small number of cases needed intervention through prosecution in the courts. Intervention that fell short of prosecution tended to involve not fines or criminal diversion but additional support being put in place.

I foresee a need for increased resource to be put into support services for families, and that is set out in the financial memorandum. The bill will allow us to put more support in place, but I do not foresee a significant increase in prosecution or in other criminal responses to behaviour that is not covered by the current legislation.

Oliver Mundell

Are the rest of the panel of the same view? You do not need to give a long answer if that is the case.

Tríona Lenihan

I will give a specific example from Sweden. A study was done in 2000 that examined the impact of the ban there. It found that the ban had been effective in providing opportunities for increased early intervention and early identification of children and families who were at risk of violence, as well as providing increased support to families. The number of interventions that required out-of-home care declined by a third and there were a range of other positive benefits.

Oliver Mundell

Is the bill drafted in the correct way to legislate in this area, or is there an opportunity to do something more comprehensive that sets out our aspirations with more detail and clarity?

Joanna Barrett

We totally support how the bill is drafted. Correct me if I am wrong, commissioner, but, under our international human rights obligations, we have to remove any permission for violence against children from our legislation. We therefore need to remove a defence for assault from the common law.

We are not alone in relying on the common law. Ireland made the same change in 2014 or 2015, and the Welsh Government is seeking to make the same change—its legislation very much mirrors ours. Culture change takes a while, so, if we pass the bill, we might revisit the issue at a different point and decide that more needs to be done. However, given where we are right now, this is absolutely the repeal that we need to make.

Oliver Mundell

Do you think that the bill amounts to a ban on smacking?

Joanna Barrett

We need to be absolutely clear that no offence is being created in the bill; it is removing the defence for assault. If a parent is charged with assault and the Crown Office has deemed that there is sufficient evidence and that it is in the public interest to prosecute that parent, there should be no relying on a defence that the young person they ostensibly assaulted is a child. No offence is being created in the bill—we need to be absolutely clear about that.

Oliver Mundell

So, this is not a ban on smacking—is that correct?

Joanna Barrett

It is hoped that the impact of the bill will be a decline in the use of physical punishment as a result of behaviour change. In black-and-white terms, though, that is not what the bill is doing; it is repealing a defence for assault.

Oliver Mundell

Is the bill ambitious enough, Mr Adamson, or should we be setting out in law our intention to make violence against children an offence?

Bruce Adamson

I agree with everything that Joanna Barrett has just said. That was a very good explanation of the position.

It is clear that the bill is drafted—very simply and correctly—to address the failure in our law to protect children’s rights in relation to the current defence. There are lots of other things that we need to do to make sure that children live free from violence, a lot of which are to do with education. However, removing that defence to make sure that there is a comprehensive protection is the correct approach and it is generally the approach that is being taken. We know what assault means under the law as it stands, and that is what we need to address. We could overcomplicate matters if we took a different approach.

Oliver Mundell

Thank you.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

The concerns that have been expressed by my colleagues to my right—both at today’s evidence session and at last week’s meeting—are about the possible criminalisation of parents for what they would currently deem to be good parenting. I do not share that concern, as it happens, and I think that some of the evidence that we have heard today has been quite powerful.

As a former social worker—the panel members will all have experience in that field—I know that it is quite difficult to secure prosecutions for quite serious and heinous crimes against children. I therefore do not think that that is the purpose of the bill or that it will lead to some sort of criminalisation of parents for what would be seen as a lesser offence than what I have alluded to. Do you think that the bill will help not only to clarify the existing law, as you have said, but to protect children from a whole range of things that could happen to them?

Tríona Lenihan

This speaks to the status of the child and how they are viewed by society. I think that the bill could mark a turning point and a significant step away from the dominant view of children as possessions and the property of parents towards the more progressive view of children as being entitled to a full range of rights. In countries that have implemented similar legislation, we have seen a positive knock-on effect of children’s rights in general being advanced. For example, in Austria, where a ban was introduced in 1989, a survey that was conducted 25 years later, in 2014, put statements that had been put to people in 1977 to people over 15 years old. Besides showing a significant decrease in support for physical punishment, the survey showed a significant decrease in support—from 64 per cent in 1977, I think, to about 16 per cent in 2014—for the view that children should remain silent when an adult is speaking. That illustrates how this kind of approach can lead to a shift in attitudes towards, and views on, children and their rights to participate, to be heard and so on.

Joanna Barrett

We agree that the bill will lead to better protection of children. Because of the invisible line that, as I said earlier, we have drawn in our legislation, children are at increased risk of harm. The bill would provide absolute clarity for professionals who are seeking to help families. After all, this is tricky territory. If a health visitor goes into a home and the parent asks, “Is this okay?”, they cannot really answer that question unequivocally; at the moment, it is a value judgment, and the response is usually, “Well, not really, but ...”. The bill would provide absolute clarity and would, I suppose, draw a solid line between what is and is not acceptable.

I would also point to the overwhelming evidence from other countries that have changed their legislation in this way of a significant decrease in injurious and severe child maltreatment. I know that that is not the bill’s principal purpose, but it shows that there is a correlation between creating absolute clarity and reducing the incidence of more serious abuse.

Fulton MacGregor

My questions have been answered very well, convener. In the interests of time, I am happy to leave things there.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

Thank you for your evidence so far. It has been mentioned a few times that in the countries that have introduced such legislation, there has been no increase in the number of prosecutions. However, concern has been expressed that there might be an increased financial burden on public services. Is such a concern well founded, or is it unreasonable?

Bruce Adamson

The evidence from other countries is that, although the legislation might lead to additional costs, it is actually a very good economic decision. Early intervention works, and, although we might expect an increase in the number of early interventions with families, we know that the economic benefit of such an approach is exponentially greater than the amount of money that is spent on it.

We know that early intervention services work, and we know that there is a need to put more money into them. If the bill helps in that respect, it will be a useful additional element. The international evidence shows that those kinds of early interventions work very well and make good economic sense, as well as respecting the rights of children and young people. Ensuring, through early intervention, that families and parents get the positive parenting support that they need delivers much better results, which can be seen in the health and education systems. It is important, therefore, to point out that any additional cost would be money well spent.

Gail Ross

You would class any money that had to be spent as a result of the bill as preventative spend.

Bruce Adamson

Yes.

Gail Ross

Does anyone else wish to comment?

Martin Canavan

I agree with everything that Bruce Adamson has said about what we know about early support. Any resource that, as a result of the bill, goes into providing additional support could be clearly demonstrated to be preventative spend. We know that early support works and that working with families who need additional help, support, advice and information as early as possible has positive outcomes and prevents far worse consequences for families and children. Working with families as early as possible is part of the early intervention agenda and fits firmly into our current childcare policy framework, getting it right for every child. Any additional support that is required as a result of the bill could be seen in that context.

Gail Ross

I want to have a wee look at the financial memorandum. We have heard that the Scottish Government’s estimate of £20,000 for marketing might not be sufficient. I know that you have provided written evidence on that aspect. We are talking about preventative spend, awareness raising, positive parenting courses and everything else that goes along with the bill. In one of my other committees, I heard this week that a six-week campaign for awareness raising on a change in the law could cost up to £500,000. Do you think that the financial memorandum is accurate? If not, what needs to be added to it, and where should that money come from? Bruce Adamson said that the bill crosses a lot more portfolios than the one that we are looking at here.

Bruce Adamson

The key issue for me is that the educative work should be done anyway, regardless of the bill. Article 19.2 of the United Nations Convention on the Rights of the Child says that the state has an obligation to do all of that promotion and support anyway. Even if the bill was not progressing, that work should be done—it should be provided for in the budget. Linking that work to the financial memorandum is perhaps not the right way of looking at it. The work is an obligation on the Government anyway, so we should be seeing that spend allocated.

A rights-based approach to budgeting would have highlighted very clearly that more work needs to be done. We need to put more money into this issue, although that is not necessarily a direct criticism of the financial memorandum, because what we are talking about is not a consequential change—it is something that we should have been doing anyway, because we know that it works and because it is a requirement.

Joanna Barrett

I am not a marketeer, so I have no idea how much such things cost. I would say only that, if the law changes, that work must happen and should be sustained. As I said earlier, messages about positive parenting should be consistent and not a one-off resulting from a change in the law.

We have a range of resources already. Every parent receives “Ready Steady Baby!”, and there is a toddler edition. Health visitors visit families a minimum of eight times, I think. These messages should be communicated through our existing resources as much as through any additional resources.

Martin Canavan

I agree. I am not an expert on marketing or the costs of marketing, but I think that the evidence you heard last week compared how much was spent on previous public information campaigns—for example, on the smoking ban—with what is outlined in the financial memorandum. As Joanna Barrett said, it is sensible to utilise existing resources, with help to achieve public information and public messaging.

We should not decide not to implement everything that needs to be implemented to achieve what the bill hopes to achieve simply because it is seen as being unaffordable or costing too much. As far as I am concerned, protecting children should never be unaffordable, and I do not see that as an argument for not passing the bill.

The Convener

We have a couple of minutes left for this panel. Gordon, do you have a question?

Gordon Lindhurst (Lothian) (Con)

I have a quick question for Bruce Adamson. Are you familiar with the Non-Fatal Offences Against the Person Act 1997, from Ireland?

Bruce Adamson

No.

Gordon Lindhurst

You suggested that what we are doing is the same as what they did in Ireland, but assault is defined in that act, so they did not fall back on the common law there. Are you saying that you have not looked at the law in Ireland?

Bruce Adamson

That was not my suggestion—it was not me who said that.

Gordon Lindhurst

Everyone seems to agree that the law should be clear.

Bruce Adamson

Yes. The law should certainly be clear. Is there a suggestion that the current law of assault in Scotland is not clear? This seems to be an argument about—

Gordon Lindhurst

The common law is unclear. Can you name one country where the issue has been dealt with without an act of Parliament defining the circumstances? New Zealand dealt with the issue in section 59 of the Crimes Act 1961, where the matter is set out in detail.

Bruce Adamson

In New Zealand, we codified the criminal law. If Mr Lindhurst is making an argument about codifying the criminal law generally, we could look at that and consider how to make the common law clearer. However, I am confused about the suggestion that the current criminal system and the common law are not clear. The point does not seem to be about the specific offence that we are considering; it seems to be an argument that we should codify all common law in relation to criminal matters. This matter is no different from any other element of the common law, and in Scotland we are used to dealing with that.

Gordon Lindhurst

But the common law provides defences, such as that of self-defence for an adult who assaults another adult. Therefore, if we are changing the defence, we are changing the common law. Other countries, including common law jurisdictions such as New Zealand and Ireland, did it by setting the matter out clearly in statute.

Bruce Adamson

But they did that when they codified the common law. As you say, in New Zealand, that happened in 1961; indeed, it also happened previously to that, as New Zealand has always had that tradition. The change that was made through the Crimes (Substituted Section 59) Amendment Act 2007 did not codify the law in relation to assault, as that had already been done.

Gordon Lindhurst

Would the bill be a good place to start to make the law clear in that way, as it is in other jurisdictions?

Bruce Adamson

If we are going to look at codifying the whole criminal law, that would be a matter for the Scottish Law Commission and others—

Gordon Lindhurst

No—I mean just with regard to this offence.

The Convener

Mr Lindhurst, as a courtesy, visiting members get to question the panel, but you need to do it in the same manner as everyone else, so ask your questions through the chair, please.

Gordon Lindhurst

Thank you, convener.

Bruce Adamson

If this discussion is about providing additional clarity to the common law by codifying it more generally, that would be a massive piece of work. I do not think that there is an issue with a lack of clarity in the common law—we are used to understanding it. Choosing one specific change and opening that up into codifying the criminal law is not the right approach.

Some of the things in section 59 of the New Zealand act that Mr Lindhurst mentioned have questionable legal effect. For example, on discretion in relation to prosecution, which was considered, the first three words in section 59(4) are “To avoid doubt”. That phrase was put in as a political compromise just to reaffirm existing practice. Generally, in New Zealand, although we have the codification of some criminal law, that is only to the same extent as we already understand the common law in Scotland—it sets out exactly the same tests that we already know and understand, which are applied every day by courts in Scotland.

The Convener

Mr Finnie, do you wish to ask any questions?

John Finnie (Highlands and Islands) (Green)

I have no questions, convener.

The Convener

I thank the panel members for their evidence and suspend the meeting briefly to allow the panel to change.

The Convener

Our second panel is here. You are all very welcome. Amy Johnson is policy officer at Zero Tolerance, Alison Davis is chief executive officer at Saheliya, Maureen Phillip is senior family support director at PAMIS, Nora Uhrig is senior associate at the Equality and Human Rights Commission, and Lucy Chetty, who is headteacher at New Struan school, is here on behalf of Scottish Autism.

I will ask you the same question that I asked the first panel. Do you support the bill’s aim to stop physical punishment of children in Scotland?

Lucy Chetty (Scottish Autism)

Yes—we support the bill’s aim. Bruce Adamson talked about the awareness that it will bring of support for families. The bill represents a proactive approach to enabling that. Anything that raises awareness of that agenda is positive.

Alison Davis (Saheliya)

We agree with and fully support the spirit of the proposed legislation, but we are concerned about the possible impacts of implementation.

Maureen Phillip (PAMIS)

PAMIS very much supports the bill. Quite frankly, for our families, it will be a lifeline.

Nora Uhrig (Equality and Human Rights Commission)

The Equality and Human Rights Commission supports the bill. We are of the opinion that children deserve more protection than adults, not just equal protection, from assault.

Amy Johnson (Zero Tolerance)

Good morning and thank you for the opportunity to give evidence today. We warmly welcome the bill—especially its aim to end physical punishment of children. We believe that it will send out positive messages on respect, responsible use of authority, healthy relationships and the tackling of violence within the family and society as a whole.

Zero Tolerance works to prevent violence against women and girls, and our core position is that everybody has the right to live without fear of violence. Physical punishment of children is part of a wider continuum of violence within our society, so ending justification for and normalisation of physical punishment will help to reinforce the attitude that violence is never okay in Scotland.

The Convener

Thank you.

Alex Cole-Hamilton

Good morning. I will try to be brief in order to let others in. I will ask the same question that I asked the previous panel. We have heard conflicting views on whether there exists in the international law, treaties and conventions to which this state is signatory a tension between children’s rights and family rights, or the right to family life. Do you recognise that tension? Do children have rights? If there is a conflicting right that allows parents to physically punish their children, are you aware of where that exists in international law?

Nora Uhrig

I would just repeat everything that Bruce Adamson said about that. It is very clear that children have rights, not just at an international level in the UN conventions—particularly the Convention on the Rights of the Child—but at European level. We recognise those rights in Scotland, as well.

On a tension with other rights, particularly the right to family life, international human rights law is clear about the best interests of the child. People have the right to family life, but that right does not include a right to use physical punishment.

Alison Davis

Saheliya works with women who have no points of contact with the mainstream community. They have very different views on parenting and very different cultural contexts for family life. There is very rarely understanding that children have any human rights.

We have worked with 1,180 women in the past year, in 14 different languages, and 763 of those women were from communities in which female genital mutilation takes place and are survivors themselves. We are talking about there being no understanding that a thing that is as severe as FGM—never mind smacking a child—is illegal.

We deal with people with severe multiple trauma who are not being supported or looked after. We see quite a punitive approach being taken by social work, and health visitors frequently do not know what to do. Saheliya works with women who are unable to access mainstream services due to having a lack of language skills, limited confidence and mental health problems, and who have experienced very severe trauma. I believe that, if we support them and get the approach right for the most vulnerable people, we will be getting it right for everybody.

Saheliya fully endorses the spirit of the bill, but we are concerned about the implementation without some kind of support for parenting, especially in relation to young women who are left alone with children. A lot of the children with whom Saheliya Glasgow is involved are the result of rape. Trauma creates barriers to positive parenting, and the mix is dangerous for children. To take a punitive approach to such families—specifically to the mothers—does not work. It criminalises women and puts pressure on women who are already suffering and have already survived violence.

We need to provide a lot more support. A figure of £20,000 was mentioned earlier. We would need that to provide one month of language support to reach only the women with whom we work and provide wraparound parenting support. When resources allow it, we provide parenting support, and we do so in six languages. We provide other support in 14 languages. However, support has to be provided in a concerted way. The Home Office could perhaps be persuaded to hand over some of the increasing fees that it is gathering from asylum-seeking and migrant communities to provide that learning and support in a culturally aware and trauma-informed way.

Lucy Chetty

Scottish Autism would always advocate the rights of the child, but wraparound support for families is vital. Often, families with whom we work are at the point of crisis, and the level of stress that the parents are feeling contributes to how well they are able to cope and to manage, and to how resilient they are.

Alex Cole-Hamilton

We have also had a discussion of whether the current laws around smacking or physical punishment of any kind are clear. The last time we legislated on the issue was in 2003, which is when the limitations that I described to the previous panel—no head shots, shaking or use of implements—were brought in.

From the experience of your organisations, are families and parents aware of where the lines are drawn? Are those lines sufficient? Do they lend themselves to deployment of physical punishment, with control, in every case?

Alison Davis

No, people are not aware, because there are no points of integration with the families with whom we work. They do not know what to do. They are told that smacking is wrong and that they cannot smack children here, but they do not know what else to do. That means that children end up not being parented. Parents are frightened about what will happen. Children are hit—very hard—and then told not to tell anybody, which is a double abuse.

Amy Johnson

Our position is that the combination of the 2003 restrictions and the grey areas about what is justifiable mean that there are two points of ambiguity. That means that the situation is difficult for parents and families to navigate, and it makes it difficult for children to understand what is okay.

We would expand the idea to society as a whole. The idea that some forms of assault, especially of the most vulnerable people, are justifiable, and that pain can be inflicted as a form of behaviour management, sends a confusing message and sits in opposition to a lot of other messages about combating violence against women in society through the equally safe approach, for example. There is a lack of clarity for families and children, and for society, more generally.

Maureen Phillip

I would like to backtrack a little bit and answer the question about the right to family life, because it is relevant. The people whom I support look after children who have profound and multiple learning disabilities—they are non-verbal and often have significant healthcare needs. Their families use the word “fight” a lot: they have a right to family life without having to fight every day. I spend my life supporting families whose children have been subjected to horrific assaults, physical and sexual.

We have fantastic polices in child protection and we have the getting it right for every child approach in schools, but abuse is still happening. Therefore, the bill is a lifeline, because what the children in those families are subjected to is assault. They regularly say to me that the current legislation is not working in practice, because—I will be very honest—they say that they need a sign above the door saying, “Just help yourself”. That is quite profound.

The bill is a lifeline, because it will mean that those families will have the right to family life. If someone says that a child has been assaulted, somebody will now need to listen, because of the bill.

Annie Wells

I will ask the same question that I asked the previous panel. From opinion polls and written submissions to the committee, we know that the general public are not for the bill. How do we bring the general public with us on this journey? Assault—if that is what it is—of any child is wrong, but parents increasingly see the bill as banning smacking. How do we show parents that that is not what the bill is about?

Amy Johnson

Fundamentally, most parents want to do what is best for their child and for their family, but they do not have the time to read up on equal protection or Dr Heilmann’s work. We need to make that information accessible for parents and we need to share what we have learned about the harm that corporal punishment causes. We know that the balance of evidence is hugely towards the view that such punishment is not effective and is very harmful. A lot of work needs to be done through public campaigns and other work involving conversations and engaging with the public.

We know that children’s opinions on the issue are very different from the opinions of others. Joanna Barrett touched on that during the previous session. Of the young people who responded to the 2016 Scottish Youth Parliament consultation, 82 per cent agreed that all physical assault against children should be illegal. There is a big role for children to play, and their voices must be heard.

Changes in opinion are already happening. Over time, we are slowly changing our position on the issue. The growing up in Scotland study and an Ipsos MORI poll found that a declining number of parents say that they have smacked their child, and that the younger population group is more in favour of abandoning smacking altogether.

Our position is that opinions are changing: there is a great opportunity in Scotland for legislation to reflect that. We know that smacking does not work, just as we now know that smoking is harmful. More public awareness of the issue is needed, and children’s voices should be at the centre of that.

Lucy Chetty

Annie Wells asked a very good question. A lot of change has been achieved through trust and relationship building with families. The focus needs to be on the work that people are doing with individual families to help parents to understand better ways of managing and coping.

Annie Wells

The financial memorandum says that £20,000 will be required to be spent for the bill to succeed—

The Convener

You are going down Gail Ross’s line of questioning.

Annie Wells

I am sorry.

Mary Fee

I want to ask about specific equalities groups that might be more at risk. Are the witnesses aware of specific groups of children who are more likely to be subjected to physical punishment? I would be interested to hear more about the people whom Lucy Chetty and Maureen Phillip work with. Do other panel members have evidence that they can give us?

Lucy Chetty

Autistic young people are more emotionally vulnerable. They are also more fragile. In that sense, they are more susceptible to physical punishment. I will qualify that by saying that my experience of working with families of young people who experience high levels of distress is that the parents’ response is mostly about trying to keep everybody safe in that situation.

The language on punishment really does not feature so frequently in the families whom we work with and support. Our work is about coping—it is about putting in place the support to help families to cope better. On how autistic young people perceive punishment and their ability to join cause and effect, because they see the world in a different way, they do not necessarily understand why something happens in a certain way. That is important when considering autistic people.

Maureen Phillip

I echo that. I slightly disagree with the Children and Young People’s Commissioner Scotland about the bill and its relationship to restraint and seclusion. I have witnessed a child being dragged along beside a swimming pool under the umbrella term “restraint”. To me that is assault, not restraint.

If seclusion and restraint stand alone, maybe things will not change, although perhaps policy work could be carried out. I do not see it as a separate issue. If we are to have inclusion, why would we exclude children with profound and multiple learning disabilities and autism from the bill? If we want inclusion across society, surely that group should not be considered separately. The bill should work with other policies. As I said, we have great child protection policies in place, but restraint and seclusion still happen. I would like to see partnership with other policies, not separation from it.

Nora Uhrig

International studies show that disabled children are more likely to be punished physically, but we do not have clear evidence to show that that is a trend in Scotland. There is a similar presumption about certain ethnic minorities, with US studies in particular showing that ethnic minorities are more likely to use physical punishment on their children. However, a Joseph Rowntree Foundation study in 2006 found that that was not the case in the United Kingdom.

It is important to note—as Alison Davis, Maureen Phillip and Lucy Chetty have mentioned—that change needs support and an awareness campaign. You have to include everybody—in particular, vulnerable children and parents. It is about creating societal change. The bill and the awareness campaign that accompanies it will be key to changing societal perceptions and making the position on punishment very clear. That will help with the issue that Maureen Phillip has just mentioned, because people will have a better idea of what is and is not acceptable.

Maureen Phillip

A little bit more research could be carried out on the evidence base and the figures. Families who have reported through the child protection route often feel that they are just going through a process with no outcome, which is not recorded. There is underrecording—more cases are happening than is recorded.

Nora Uhrig

In our submission to the committee, we call for more research and monitoring. Again, an awareness-raising campaign would help. With that information, we could see where support services are needed more, or what a campaign needs to focus on. As Joanna Barrett from the previous panel said, the campaign must be sustained.

The Convener

Fulton MacGregor wants to ask a brief supplementary.

Fulton MacGregor

Good morning. You have mentioned child protection. Currently, when a child goes to school and says that he or she has been hit by a parent, a process is initiated. How will the bill, if passed, and the removal of the defence of justifiable assault, impact on that process?

Maureen Phillip

That is a big question.

Fulton MacGregor

I am sorry; it was not meant to be.

Maureen Phillip

I am not sure that I can answer that. I hope that if the outcome of a child protection process was not favourable, and the family still felt that an assault had taken place, the provisions in the bill could come into play. My honest answer is that I do not really know what the impact would be.

Mary Fee

When you talk about “the family” feeling

“that an assault had taken place”,

are you talking about a young person in a care or school setting?

Maureen Phillip

Yes.

Mary Fee

I just wanted clarification of that. Are you so concerned about restraint because it is used in school settings?

Maureen Phillip

Yes.

Mary Fee

Does Alison Davies have anything to add about the groups of families that Saheliya works with? I know that, culturally, they are quite different from the families whom others on the panel represent.

Alison Davis

Yes—there are very different cultural approaches to parenting, and there are no routes through which to learn about other approaches. A lot of people say that that is a racist approach. I could say that I was hit a lot, but that does not make my father a monster; it just means that he comes from a different time. In the same way, we see people who are newly arrived from different geographical places. Attitudes have changed.

We spend a lot of time supporting women to learn about human rights and responsibilities and about child protection, but that is also for their own safety and to ensure that they understand that their experience of domestic abuse is against the law. As Amy Johnson has said, that is really important. If we are saying that women should be free from violence in the home—I am old enough to remember men being supported for saying, “It’s none of your business if I beat my wife”—and that they should be supported to learn about their right to safety, it is not a huge leap to say that their children also have the right to physical and emotional wellbeing. A lot more work has to be done on that.

Mary Fee

Does the panel agree that the support services that will be put in place or enhanced, if the bill is passed, will be crucial? We cannot have just a standard support or education service for families. The support must vary according to the type of family and their circumstances.

Alison Davis

Absolutely—and health visitors are struggling with that at the moment. They see very good and committed parents who have experienced severe trauma trying to do their best in extremely difficult circumstances, but they are still using the kind of parenting that they—and I—were brought up with. The only way the health visitors can help mothers to learn—which is what we do—is through an interpreter, who might be sitting there, saying, “This is racist. Why are you talking to a white person about this? Don’t tell them anything.” We have great concerns about the role of interpreting, the lack of support for first languages and the lack of trauma-informed support. Health visitors are therefore in a quandary.

Social workers, too, are frequently a bit perplexed about what to do: we see very varied responses from them. Many of them are fantastic, but many are not and take a very punitive approach that could, in some cases, be called institutional racism.

Mary Fee

Thank you.

Oliver Mundell

I was very interested by Maureen Phillip’s evidence. Are you concerned by comments that were made last week and today that changing the legislation will not lead to a significant increase in prosecutions?

Maureen Phillip

I imagine that the change will bring about an increase in prosecutions within the group that I work with. I say that because, already, I have supported a group of families whose cases have gone to court and who do not know how long those cases will sit at court before they are heard. It could be several years. Had the law that we are discussing been in place, I think that the process would have been far quicker and less stressful for them. Their children have been subjected to assault and, in my opinion, have suffered trauma since the day it happened. That trauma is with them while their cases sit waiting to be heard.

The Convener

Can you just clarify whether the families you are talking about are taking someone else to court or are being prosecuted for assault?

Maureen Phillip

The families are not being prosecuted. I am sorry. The children have all been subjected to abuse in care or education settings, not in the family.

Oliver Mundell

Do the families with whom you work trust the Government and the state when it comes to parenting and their family life? Do you think that they find that the law is helpful? Is there sometimes a breakdown in trust between them and health workers and social workers?

Lucy Chetty

The families with whom we work have often had to fight hard to get the support that they have. They feel that they have to be a very loud voice in a large system that can be difficult to navigate. That perhaps has an impact on whether they view agencies as supportive or obstructive. There is multi-agency support for all the families with whom we work. Sometimes it works very well and they feel that the support is helpful and useful. However, sometimes families feel that they are fighting for things that they need.

Oliver Mundell

Do you think that, when parents use physical punishment, they always have an evil intent or an intention to cause injury, or is the situation more complicated than that?

Alison Davis

With regard to your previous question, I would say that, especially when the women whom we support begin their journey with us, they have huge fear about social work, the police and the state. Refugees have to prove a well-founded fear of persecution in order to get their asylum application recognised. They have come from environments in which they should not trust anybody—certainly not the state or anyone who is seen as representing an arm of the state. There are degrees of terror about social worker and police intervention. We work very hard on that, but it becomes more difficult if ineffective interpreters are used or if social workers—I am talking about a minority of them—take a punitive approach or a colour-blind approach that means that they do not see those people’s journeys in context.

Oliver Mundell

Thank you for that. To go back to my other question, do you think that, when physical punishment is used by parents, there is always an evil intent or an intention to cause injury?

Nora Uhrig

As Amy Johnson said, most parents want the best for their children. A lot of what goes on in a family is a result of how the parents were brought up. That is why the awareness campaign is key and why we need to see this as a long-term change in society and in our perceptions. Just as happened with smoking in pubs, we now have a lot of studies. The studies show that smacking and using physical punishment on children lead to many problems. As you heard from the previous panel, a person’s having experienced physical punishment does not necessarily mean that they will end up doing, X, Y or Z. However, from all the studies, we know that among children who have received physical punishment there are higher incidences of antisocial behaviour, violent behaviour and aggression than exist among those who did not.

Oliver Mundell

I say with due respect that that is not what I am asking about. I am asking whether parents who use physical punishment always have an evil intent or intend to cause injury.

Amy Johnson

I do not think that that is the case. Smacking children comes from a long history of what has been considered to be normal. For a long time, we thought that it was harmless, but we know now that it is not. It is sometimes assumed—as a parent, I have experienced this—that in order to be a good parent it is necessary to smack your child. That view still permeates throughout society.

At the core of the issue is the idea that the parent is inflicting pain in an attempt to manage behaviour. The fact that we do not do that to adults in Scotland raises the question why we still think that it is okay to do it to children and—if we are doing that—how we place children in society.

Oliver Mundell

Why, therefore, do we not ban physical punishment of children? Why are we picking off the defence of “justifiable assault”? As we heard from the children’s commissioner, that will not increase prosecutions or have a revolutionary impact, in and of itself. Why not make the clear statement in legislation that physical punishment of children is wrong?

Amy Johnson

As we have discussed, there is the issue of popular opinion and how we work with the public. The evidence from New Zealand and Ireland suggests that when such steps are taken, smacking stops or decreases quite significantly.

I am not an expert on legislation. However, I argue that we must make sure that we work with the public and bring society with us in the conversation about how we parent and about the need for positive parenting. As the rest of the panel has said, we also need to make sure that there is wraparound support to help parents.

Nora Uhrig

As the previous panel mentioned, the bill will not prevent us from coming back to the issue in the future and saying that more is needed; it simply recognises where we are in Scotland at the moment.

Alex Cole-Hamilton

I have a brief supplementary to Oliver Mundell’s question. Do the members of the panel agree that, if we brought in a new offence to ban physical punishment, we might end up doing what all opponents of the bill fear, which is that we might criminalise all parents? If we were to create such an offence, we would remove the element of judgment that the attending police officer or social worker would apply. We know that, by removing the legal defence, we will send a clear message to parents that they will still have the autonomy to parent their children, but that they will no longer have a legal defence to rely on if they use physical punishment. The creation of a new offence, on the other hand, would immediately criminalise every parent who ever raised a hand to their child.

The Convener

There was a question in there somewhere.

Alex Cole-Hamilton

My question is this: do you agree that creation of a new offence might make criminalisation of parents more likely?

Alison Davis

I think that it would. A staged approach would probably work better. Once parenting skills are taught in every school curriculum at all ages—maybe in 20 years’ time—we could bring in the complete law but, as Nora Uhrig said, the bill is an acknowledgement of where Scotland is at this moment in time.

Fulton MacGregor

I apologise to Maureen Phillip for my earlier supplementary question. It was not intended to be a trick question, and I did not mean to put her on the spot; her evidence has been very good. I was trying to explore the idea that, as far as I can see, not a lot would change, because social work and the police would still be called out if an allegation was made. As part of the child protection process, which is extremely thorough, judgments would be made as to whether significant harm had been caused.

I was interested in what Amy Johnson said about where the bill sits in the continuum of offences against children. How can passing the bill help with that?

One of the frustrations that I have had as an MSP and in my previous work—I am sure that all the witnesses have had this frustration, too—is that it is extremely difficult to bring people to justice for really harmful acts against children. That is why I do not buy into the argument that there will be a whole bunch more prosecutions as a result of passing the bill. What are your thoughts on that?

Amy Johnson

I agree. There is continuing violence within families, as well. In New Zealand, the it’s not OK campaign, which was associated with the legislation there, was about violence, including domestic violence—domestic abuse, as we call it in Scotland—being unacceptable.

It is important to look at how the bill is supported by other strategies and policies in Scotland that relate to violence against women and girls—specifically “Equally Safe: Scotland’s strategy for preventing and eradicating violence against women and girls”. It states:

“Violence against women and girls, in any form, has no place in our vision for a safe, strong, successful Scotland. It damages health and wellbeing, limits freedom and potential, and is a violation of the most fundamental human rights.”

It is very hard for me to work out how we can continue with justification of assault of children in any form, in that continuum, and still move ahead with the strategy on violence in Scotland.

Fulton MacGregor

I will stick to what I said originally: even if the bill is passed, people will make judgments and some things will not be prosecuted. Do you think that passing the bill will help practitioners to identify patterns emerging and that things that are maybe seen as okay now will be looked at?

Amy Johnson

I hope so. I also hope that the bill is supported by the Domestic Abuse (Scotland) Act 2018, in which the existence of patterns of behaviour are acknowledged—such that there is a step away from an incident-based approach towards acknowledging patterns of behaviour that cause harm and humiliation to children and young people.

Nora Uhrig

I think that Bruce Adamson, who was on the previous panel, mentioned that. It is hoped that the approach will increase early intervention and the support that families, parents and children receive.

Alison Davis

The Scottish Government’s new initiative to increase trauma awareness among all front-line staff in all agencies should have an impact on that. Increased awareness of trauma will have an impact on people’s behaviour—how we negotiate and communicate better with people who are severely traumatised. Generally, the children with whom we work score very highly on the adverse childhood experiences scale. That is a building brick that will help the process of making Scotland violence free.

Gail Ross

Good morning, panel, and thank you for your evidence so far.

Should money that is spent on implementation of the bill be classed as preventative spend?

Witnesses indicated agreement.

Gail Ross

I see nods from everybody. That is pretty straightforward.

In response to a question from Alex Cole-Hamilton about the current law and the changes that were made a few years ago in relation to punishment of children, Amy Johnson said that there is a lack of clarity in society about what is not acceptable in the eyes of the law, and about using implements to smack a child. We talked about having an awareness-raising campaign, should the bill be implemented. Should an awareness-raising campaign be happening now?

Amy Johnson

Yes—absolutely. The primary focus should be on violence against children and young people, but it should cover what is normalised, what is justified and what is acceptable in Scotland, and should relate that to violence as a whole.

Gail Ross

Annie Wells asked about taking the public along with us. There seems to be a misunderstanding of what the bill seeks to achieve. Should we have a campaign now, as part of the effort to take the public along with us?

Amy Johnson

Absolutely.

Gail Ross

You will have seen that, in the previous panel, the children’s commissioner said that, as it stands, the financial memorandum should be looked at separately from what is happening. The wider discussion has opened up a conversation about the support that is currently available, which you have all mentioned.

There is work that we should already be doing on trauma awareness with not just front-line staff but communities as a whole. What gaps could be looked at once we start an awareness-raising campaign on the whole issue?

Alison Davis

Awareness raising is done in one language—two in Scotland—based on the assumption that everybody understands and buys into equality, social justice and human rights issues. Awareness raising does not reach the people who are already vulnerable and being approached in a punitive way, so there would be a disproportionate impact on marginalised, new, ethnic minority communities—asylum-seeking and refugee communities—which would be a dangerous position to be in. We are already in a difficult position on that, but we would be in a more difficult position if we did not take the preventative measures seriously. That means costing them properly, ensuring that first languages are used and ensuring that there is a culturally aware and trauma-informed approach.

Nora Uhrig

As we are talking about costing and the financial aspect, I note that it is vital to realise that, because the measures are preventative, costs will be saved in the long term. The work might require more than £20,000, but to reach the communities that Alison Davis talked about, that work should be done anyway and should be linked to wider issues about violence in society and in the home. It is important that we increase our capacity and the resources that are directed towards that work.

Gail Ross

We keep hearing in evidence the words “assault” and “violence”. There are laws in place that should prevent violence against anyone, whether children, women or other family members. Awareness raising about that is vital.

We have had representations from members of the public who say, “I should be able to—”. There is a gap in our understanding about the difference between an assault on a child or violence against anybody in the home and the slight tap on the back of the hand or thighs that parents have talked to us about. Is there a difference, or should we not lift our hand to children in any circumstances?

Alison Davis

We should not lift our hand to children. If someone has been tortured or raped in parts of Africa or the Mediterranean, for example, or simply had no sleep or had a bad day, what is meant to be a slight tap on the back of the hand could be a very heavy slap—they might not be in a state to be able to measure that. An absolute ban makes far more sense and is a lot easier to follow.

Nora Uhrig

People interpret “a slight tap” in very different ways. How can you measure that? Also, what message does that send to children?

Maureen Phillip

The slight tap on the hand for somebody with a complex sensory disorder could escalate to a full-blown incident, which would lead to restraint. In many ways, the ban would prevent a lot of problems.

Lucy Chetty

On that point, when a young person is in a high level of distress and showing some form of what could be deemed violent behaviour, physically intervening could cause the stress transaction to multiply and make the situation a lot worse.

Amy Johnson

The “Equally Protected? A review of the evidence on the physical punishment of children” research was mentioned in the evidence and, I think, discussed by the previous panel. It found that parents do not often start off abusing or seriously assaulting their children, but start with lighter or milder physical punishment. That is not to say that abuse will necessarily happen if someone smacks a child, but if we are trying to minimise the risk of that, it is necessary to say that we should not raise our hands to children at all.

Alex Cole-Hamilton

I have a supplementary to Gail Ross’s question, although this has probably been answered. We have heard about empirical research from academics who oppose a change in the law and who say that so-called back-up smacking is a more effective tool of parenting than other sanctions. Do you agree that, by removing the option to back-up smack, we are impeding the normal parenting behaviour of reasonable parents who can always retain control?

Alison Davis

No, but we need to give much clearer messages on what positive parenting is. I know people who do not smack their children but whose children probably wish that they would, because there are huge levels of emotional abuse and coercive control, which are the same thing. We need to send out messages about positive parenting. Rather than say, “Don’t smack,” we need to say, “Support in a positive way.” We need positive parenting and positive messages.

The Convener

If committee members have no more questions, Gordon Lindhurst can ask any questions that he wishes to put to the panel, through me.

Gordon Lindhurst

Thank you, convener. I have two questions for Nora Uhrig from the Equality and Human Rights Commission. In your submission, you state that case law

“demonstrates a general trajectory towards prioritising child welfare and children’s rights over parental rights.”

That was covered a bit by the first panel. With parents’ rights and children’s rights, do you see one as being more important than the other?

Nora Uhrig

I think that we talked about that earlier. Under international human rights law, it is clear that the best interests of the child need to be a priority. However, I do not see the bill as being about the rights of the parents versus the rights of the child. It is about a change in society and creating a more non-violent society as a whole, and linking that to violence in the home, which Amy Johnson has talked about, and to wider issues. For example, we know that there is a connection between physical punishment and domestic abuse.

The Convener

Do you wish to add to that, Ms Johnson?

Amy Johnson

No—I agree.

Gordon Lindhurst

I have one further question. Who should decide for the parents and the children? Are we not just saying that it is people outwith the family who will decide instead of the parents and children?

Nora Uhrig

No. In many ways, you are actually giving more of a voice to children and creating more of a platform for communication. You are recognising that both parents and children have rights, and that it is about the family unit and how parents and children interact with each other. If someone is using physical punishment, what sort of message does that send to the child? We know from long-term studies that children who receive physical punishment are more likely to display antisocial behaviour. Also, in terms of communication, it is much more useful to send more positive parenting messages.

The Convener

Mr Finnie, do you wish to add anything?

John Finnie

I have no questions for the witnesses, but will you indulge me by allowing me to make a point of information?

The Convener

Absolutely.

John Finnie

It is about the figure of £20,000 that has been mentioned a number of times. The issue of promoting awareness and understanding of the bill is covered in paragraphs 27 to 31 of the financial memorandum. The figure of £20,000 is actually the Scottish Government’s figure. In fairness, as paragraph 30 points out, the Government has said that

“a full marketing campaign would ... cost between £200,000 and £475,000.”

To give some balance, the Government went on to say that, by using existing resources such as websites and by sending information to key stakeholders, a full campaign would not be needed.

That is not my view. The figure that I arrived at is £300,000. Paragraph 29 outlines the background to how it was arrived at, which relates to similar campaigns that the Scottish Government has run and for which it has published figures. For example, the figure for the campaign that we took as a comparator was £303,000, which we rounded down to £300,000. That would cover a period of approximately six months before and six months after the law comes into force, were the bill to be passed. That was just a clarification.

The Convener

Thank you for that.

I thank the panel for their evidence, which has been helpful. Our next meeting will be on 15 March in the Fingal centre in Portree, on the island of Skye. Our meeting begins at 4 o’clock. Members of the committee will hold a public question and answer session immediately before that, starting at 3.15.

The committee has previously agreed to hold discussions of evidence in private, so we will now move into private session.

The Deputy Presiding Officer (Linda Fabiani)

The next item of business is a debate on motion S5M-17342, in the name of John Finnie, on stage 1 of the Children (Equal Protection from Assault) (Scotland) Bill.

John Finnie (Highlands and Islands) (Green)

I am delighted to be opening the debate on the general principles of the Children (Equal Protection from Assault) (Scotland) Bill. I give thanks to the convener and members of the Equalities and Human Rights Committee for their diligent and measured consideration of the bill, which was evident throughout all the evidence sessions, which I had the pleasure of attending.

I give special thanks to the committee’s clerking team for its work and to parliamentary staff and those outwith the Parliament who facilitated the committee’s many external evidence-taking visits. My thanks go also to the witnesses who gave evidence and everyone who contributed comments from the outset of the process. I welcome the 75 per cent support that my consultation drew and the backing of members from all parties in the Parliament.

I thank the many colleagues from all parties for their support and advice as my bill progressed from the start of the member’s bill process. I am grateful to the Scottish Government for its support of my bill, and to the Minister for Children and Young People, Maree Todd, for her support—I look forward to her contribution to the debate.

I extend big thanks to 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 work, and to my office manager, Steven Dehn, who has tirelessly led work on the bill in my office.

In June 2016, shortly after the Scottish Parliament election, I was approached by a coalition of children’s charities—Barnardo’s Scotland, NSPCC Scotland and Children 1st—and the Children and Young People’s Commissioner Scotland’s office to consider taking forward a member’s bill on the simple proposal that children should have the same legal protection from assault as adults do. I am immensely grateful for their on-going support and encouragement since then.

That was not my first foray into the topic. Towards the end of the previous parliamentary session, working with Barnardo’s, I had tried to squeeze an amendment on the issue into the Criminal Justice (Scotland) Act 2015, but the then convener of the Justice Committee ruled it outwith the scope of the bill. In hindsight, I am grateful for that decision, because it has allowed our Parliament and wider civic society an opportunity over the past few years to broaden discussions about the rights of our children and young people in Scotland. I know that many members from across the chamber are looking forward to supporting the Scottish Government in incorporating the United Nations Convention on the Rights of the Child into Scots law. That was recommendation 16 of the Equalities and Human Rights Committee’s report “Getting Rights Right: Human rights and the Scottish Parliament” in November 2018. I warmly welcome the committee’s decision.

The period of debate and reflection has strengthened my proposals and has highlighted a lack of awareness around the issue. On many occasions, I have been contacted by or have even encountered people who are surprised at the need for the bill, many believing that physical punishment of children had been prohibited a long time ago. Of course, it was not, and this important issue has not been looked at for almost 16 years, since the last weeks of the first parliamentary session in 2003. I hope that the few members who were there for that debate will perhaps agree that now is the time.

My intention in bringing forward the bill is to bring clarity to the law by removing the defence of reasonable chastisement, sometimes referred to as justifiable assault, and to send a clear message that the physical punishment of children is not acceptable. The growing body of international evidence shows that the physical punishment of children is harmful to their development and is not an effective means of discipline. Professor Sir Michael Marmot of University College London, in the foreword to the report “Equally Protected?”, published in 2015 by the charities I mentioned, stated unequivocally:

“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. 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.”

Dr Anja Heilmann, also of University College London, a compelling witness to the Equalities and Human Rights Committee, told the committee that the evidence from the research

“shows very clearly that such punishment has the potential to harm children;”

and importantly

“that it is not effective as a parenting strategy, because it tends to increase problem behaviour and children’s socioemotional difficulties”.

That is important, as those problem behaviours in children do not disappear at the age of 16; they are stored up and damage our future society.

I want to quote from the briefing that members have received—I am grateful to all the organisations that have provided briefings for our debate, which, as ever, are extremely helpful. If only I could find the one that I am looking for now, that would be even more helpful. Dr Tamasin Knight of the Faculty of Public Health in Scotland said:

“Childhood physical punishment is linked to adult aggression and anti-social behaviour, including aggression and sexual violence within intimate partner relationships.”

Often in Scotland, we talk about zero tolerance of domestic abuse and violence, yet we allow the use of physical punishment for children. That sends a message to our children that hitting someone is a way of resolving a dispute or of showing that they do not like someone else’s behaviour. The bill is a vital step in ensuring that we see the necessary change in our culture, much as the smoking ban was a necessary legislative step in making Scotland a healthier place to live.

Opinion polls asked different questions and showed a mix of views, with some against the bill. However, the consultation on the specific proposal saw 75 per cent in favour.

The Equalities and Human Rights Committee also heard that, in none of the countries that now prohibit the physical punishment of children was public opinion with the legislative change at the time of the change. I firmly believe that, as with the smoking ban, we will see public opinion change over time. As Bruce Adamson, the Children and Young People’s Commissioner Scotland, told the committee:

“You need the legislation to deliver the culture change—we know that to be true. In that regard, this issue could be seen in the same way as seat belts in cars, drink driving and smoking in pubs. On such issues, you need to lead with the legislation in order to deliver the culture change.”—[Official Report, Equalities and Human Rights Committee, 7 March 2019; c 9.]

It is worth noting the opinions of young people in Scotland, which are perhaps more aligned with the aims of the bill. We often refer to the Scottish Youth Parliament in this Parliament because of the good work that it does. In its manifesto, “Lead the Way”, the SYP said that it consulted its members and received 72,744 responses from 12 to 25 year olds—an astonishing figure—of which 82 per cent agreed that all physical assault against children should be illegal.

Feedback from the 260 pupils who participated in the Equalities and Human Rights Committee meeting in a box, to gather evidence from children and young people, showed that 66 per cent of them supported the bill.

My bill aims to bring Scotland into line with what appears to be becoming the international standard in 54 countries. Sweden was the very first country in the world to adopt it in 1979, and Ireland adopted it in 2015. I thank Jillian van Turnhout, the former Irish senator, who secured equal protection for the children of the Irish republic, for her knowledge and support throughout this process. Nepal adopted the standard in 2018 and this year, the States of Jersey will also do so. That is the direction of travel.

I am sure that all parties will agree that we should work together to ensure that Scotland becomes the best country in the world for children to grow up in. I strongly believe that, if passed, my bill will play a vital part in making that aim come to pass. I am pleased to note the minister’s comments that the Scottish Government is working closely with relevant organisations on the next steps to ensure that, should it be passed, the bill is implemented satisfactorily.

I take this final opportunity to repeat my thanks to the committee for its support for the principles of the bill.

I move,

That the Parliament agrees to the general principles of the Children (Equal Protection from Assault) (Scotland) Bill.

Ruth Maguire (Cunninghame South) (SNP)

I am proud to speak in this debate on behalf of the Equalities and Human Rights Committee. I give my heartfelt thanks to our diligent and professional clerking team, who are an example to us all.

The bill has dominated our work programme for the past few months. It is an important bill for children and families and could affect a huge number of people in Scotland. We knew that, as a committee, we needed to hear directly from those affected, so we set out an ambitious programme of engagement. We went to meet parents and grandparents in Pollokshields, Sighthill and Midlothian. We visited young people in Kirkcaldy at the YMCA juniors club. To reach the parents and children we could not get to, we developed a meeting in a box, so that community groups could send us their views. We received responses covering more than 300 individuals. Finally, we held an external meeting and a fact-finding day in Portree on Skye.

We could not have heard from all those people without the help of a number of teams from around the Parliament. On behalf of the committee, I thank our outreach team and the engagement unit for helping us to hear from so many voices. Our thanks also go to the members of staff—official report, media, web and social media—who travelled to Portree with us, particularly our security staff, who travelled through a snowstorm to support our meeting. We appreciated having them there.

Of course, our biggest thanks go to those who informed our scrutiny. More than 450 people, many of them individuals, took the time to write to us with their views. I know that many of them have concerns about the bill and its possible effect on family life. I say to them that the committee has heard their concerns. We met people who shared with us their fears about the bill, and we listened to their views. However, we also heard that many parents today do not smack their children and that Scottish society is moving that way in any event, but that we need legislation and support to help parents to find alternative approaches to discipline.

We also heard from children and young people, who told us their thoughts. Our particular thanks go to the children of Portree high school and bun-sgoil Ghàidhlig Phort Rìgh, who shared their opinions intelligently and freely. The preparation that they put in ahead of our visit was most impressive. Tapadh leibh airson fàilte cho cridheil a chur oirnn ann am Port Rìgh.

Since the extension of its remit in 2016, the committee has, wherever possible, taken a human rights-based approach to its work. That approach informs our work with children and young people. A human rights approach recognises that children have the right to participate, to be listened to and to have their views recognised and respected. That has been central to our work on the bill, which, after all, has children at its core.

The bill is about rights; it is about the right that children have to be free from violence in every setting, including the home. Home should be a place of safety and comfort where a child is nurtured. Therefore, it is extraordinary that the home is the one place where children are allowed to be hit—and it is only children who are allowed to be hit, not partners or pets.

All of us have the right to have our private and family life respected. Much of the evidence that we heard questioned whether there was a conflict between the right of a child to be free from violence and the right of parents to raise children as they believe best. We were reassured by the many witnesses who told us that the right to family life does not include a right to use physical punishment. The Scottish Human Rights Commission said that the European Court of Human Rights has determined several times that the right to family life is not interfered with by prohibiting physical punishment of a child. It went on to say that physical punishment clearly interferes with a child’s right to dignity.

Because of their physical and mental immaturity, children are entitled to and require more, not less, protection from violence than adults do, and we, as adults and parliamentarians, have a duty to uphold the rights of all vulnerable people.

On our visits and as part of our engagement, we met parents who told us that they had been smacked and were fine, or that they smacked their children with no ill effect. We heard that there is a marked difference between violence against children and a “loving smack”. Nevertheless, the evidence that we heard from experts and academics is that physical punishment has negative effects, which range from depression and mental health issues to an increased tendency on the part of those who are punished in that way to use violence themselves. As Jane Callaghan, professor of child wellbeing and protection at the University of Stirling, told us, it makes no difference whether those smacks were administered in love or in anger: the effect is the same.

In the course of our evidence taking, we heard many times that parents need to smack children in certain situations—the child might be reaching for something hot, or they might be about to run into the road—but Dr Louise Hill from the centre for excellence for looked-after children in Scotland put it best when she told us:

“as a parent of young children, if they run into traffic, my immediate response is to hold them. I get hold of my children and I keep them safe.”—[Official Report, Equalities and Human Rights Committee, 28 February 2019; c 34.]

That is what the bill attempts to do—it shows children and young people that, as a society and as a Parliament, we want to keep them safe. It puts their rights at the centre of our policy making, and it aims to support families in doing so.

The majority of the Equalities and Human Rights Committee supports the general principles of the Children (Equal Protection from Assault) (Scotland) Bill.

The Minister for Children and Young People (Maree Todd)

I am pleased to speak for the Scottish Government on the Children (Equal Protection from Assault) (Scotland) Bill. As the Minister for Children and Young People, I see the bill as forming a key part of our work to ensure that Scotland is the best place in the world in which to grow up.

I thank John Finnie and his team for their hard work and dedication in progressing the bill. I also thank Ruth Maguire and the Equalities and Human Rights Committee for their careful consideration and their reasoned and balanced report.

The Scottish Government supports removal of the reasonable chastisement defence, and I welcome the committee’s support for the general principles of the bill, as set out in its report. There is a strong rationale for our shared position. The name of the defence—reasonable chastisement—is antiquated. At the heart of the defence is the concept that it can sometimes be reasonable to strike a child. That is completely at odds with our aim of Scotland being the best place in the world for children to grow up. We can contribute to that aim by providing children with the same legal protection from assault as adults have. That principle is at the heart of the bill.

Scotland can be at the forefront in the United Kingdom of providing such protection for children. Removal of the defence will help to deliver the best possible outcomes for children. It will assist them in growing up feeling loved, safe and respected so that they can realise their full potential. Removal of the defence is consistent with international treaties, with best practice in human rights and with the United Nations Convention on the Rights of the Child.

In addition, removal of the defence reflects the growing body of international evidence that shows that physical punishment of children is harmful and ineffective.

Liz Smith (Mid Scotland and Fife) (Con)

I am listening carefully to what the minister is saying. If we are listening, has the minister given any consideration to the strong views of the majority of parents in Scotland, who find that the bill will be unworkable and, probably, unenforceable?

Maree Todd

When parents were asked, more than 90 per cent of respondents said that they believe that children should have the same protection against assault as adults have.

Oliver Mundell (Dumfriesshire) (Con)

Can the minister set out how many people in Scotland thought it is appropriate to criminalise parents for such activities? Once the defence is removed, under what circumstances will parents be prosecuted?

Maree Todd

I will happily tackle that point in my summing up. We have been over that at committee: Oliver Mundell is regurgitating the same arguments.

By removing the current defence, the bill will provide helpful clarity to parents and carers about the law. The committee comments on that in paragraphs 121 to—

Oliver Mundell

If the minister wants to talk about clarity, is she able to give just one example in which a person would be criminalised for an action that would currently not be considered to be criminal because the defence exists?

Maree Todd

Let me be clear. The change in legislation does not create a new offence. The offence already exists: the offence is assault and there is currently a defence in law for it. The bill will remove the possibility of using that defence. When considering a particular case, the prosecutors will take into account all the things that they currently take into account. There might be an alternative defence—for example, self-defence. Prosecutors will take into account criminal intent and the age of the child: a number of things will be considered.

I cannot pre-empt particular situations and decide now who will be criminalised. I assure members that our intention is not to criminalise parents; our intention is to provide early support, using the GIRFEC—getting it right for every child—approach that we have been using for many years. We will continue to use it by recognising situations in which parents need support and by putting in that support—not by criminalising them.

Liz Smith

Will the minister give way?

Maree Todd

This is the last intervention that I will take.

The Deputy Presiding Officer

I can allow you a little extra time, minister.

Liz Smith

Can the minister explain with clarity, as I think is her role, why she believes that the current law is bad law?

Maree Todd

I make it absolutely clear that the Scottish Government thinks that it is not acceptable to use physical punishment on children. We believe that children should have the same protection in law as adults have.

By removing the current defence, the bill will provide helpful clarity to parents and carers about the law. The committee comments on that in paragraphs 121 to 128 of its report.

The minority statement in the report says at paragraph 281 that the committee has spent

“too little time listening to legal experts”,

but there is significant evidence from legal bodies. For example, the Law Society of Scotland’s supplementary written submission to the committee says:

“The Bill, as proposed, would introduce clarity of the law on what amounts to assault on children as far as children and adults are concerned. Assaults on children would not be justified. Children would therefore be afforded the same protection as currently available to adults. Whether prosecution for an assault on a child results would follow a decision by the Crown Office and Procurator Fiscal Service as to prosecution being appropriate in the public interest.”

The Law Society goes on to say that

“If the Bill is passed, there is a need to ensure that there is effective communication of the change to all involved. That has to seek effective ways to ensure that those groups representing ‘protected characteristics’ are fully considered.”

The committee also makes that point in its report. As drafted, 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.”

If the bill is enacted with section 2 forming part of it, we will of course comply with that section. The Scottish Government has formed an implementation group that is considering what will be required if the bill is enacted by Parliament. The group’s work includes what will need to be done on public awareness.

The Scottish Government will continue to provide support for parents and organisations. We are not telling parents how to parent: we will continue to provide support for them so that they can decide for themselves the best way to take care of their children. I am a mum of three teenagers: we all know that parenting is a tough job. We know that children can be challenging and wonderful—sometimes at exactly the same time. Our approach to parenting support will continue to reflect the day-to-day challenges that parents face. We will continue to provide practical and realistic advice that parents can turn to for help with those challenges.

Awareness raising has cost implications: the stage 1 report asks about the cost implications of the bill generally. The Scottish Government will consult members of our implementation group, following which we will write to the committee before stage 2. In paragraph 241 of the report, the committee noted

“the divergence on costs for public awareness raising.”

There are a variety of views on exactly what should be done on awareness raising. It would be possible to raise awareness by taking steps that have low cost implications, such as putting material on websites. I note the oral evidence to the committee on 21 March from Jillian van Turnhout that, in Ireland, the “allocated budget was zero”, so there was no awareness raising or campaigning in relation to the change in the law there. We have discussed awareness raising and campaign work with our partners on the implementation group and we will take account of the points that the committee made in its report.

The committee also made points on restraint. The Scottish Government agrees with the committee’s conclusion in paragraph 62 of the report, which states:

“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.”

We note the comment in paragraph 68, which states that

“Restraint in care settings is an area we believe requires much wider scrutiny, although we do not think that this Bill is the vehicle for that scrutiny.”

We agree that the bill is not the right vehicle for that, but we recognise the importance of the issue of restraint in care settings. Mary Fee raised the issue in committee, and I will be happy to meet her any time to discuss the matter further.

The Scottish Government supports removal of the defence of reasonable chastisement. We welcome the committee’s report. I believe that the bill is the right thing, as well as being a rights thing.

I ask members to support the general principles of the bill at stage 1 at decision time later today.

Oliver Mundell (Dumfriesshire) (Con)

When I was elected in 2016, I did not imagine that I would be standing up in the chamber to oppose a bill that calls for equal protection of children from assault. The fundamental problem is that the bill will do more harm than good, and does not live up to its name. It is below the quality of legislation that the people of Scotland rightly expect from their Parliament. However well meaning it is, it represents an assault on family life.

Let me be clear: violence against children is wrong. On that point, I hope that we all agree. However, that is where I part company with members who speak enthusiastically in support of the proposal, because when it comes to the proportionality of subjecting good parents to criminalisation, and the suggestion that it is justified and reasonable for the state to intervene in family life when child welfare is not at risk, I cannot agree. To pass legislation to restrict parental rights and discretion would be bad enough, but to pass this particular bill, which lacks any threshold for involvement by the police or, indeed, for prosecution, is sheer madness.

John Finnie

Has Oliver Mundell read what the explanatory notes say about the public interest test? Does he understand that that is not changing? He was present when police and social work representatives joined together to say that, given their knowledge of their work, their view is that the bill will bring welcome clarity.

Oliver Mundell

I look forward to the Lord Advocate coming to the committee on 6 June to explain why, in its supplementary written evidence, the Crown Office and Procurator Fiscal Service recognised that there is a question involving situations in which mild force has been used by parents. I want to understand who will be responsible for taking the decision to prosecute patents, and under what circumstances that will happen.

I also wonder whether it will fall to individual police officers to decide whether to investigate families, and on what basis and when they will do so. I have not heard answers to any of those questions so far. That is why the bill represents bad law.

The bill will lead to more confusion, as was pointed out by Gary McAteer, who is a leading criminal lawyer from whom the committee did not have time to hear. The bill leaves us open to potential legal challenge. Other witnesses who spoke to the committee recognised that the proposal will create grey areas and problems, because the law of assault is quite wide.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Will the member take an intervention?

Oliver Mundell

I will not.

As legislators, our first duty must be to ensure that legislation is workable. My concern is this. I asked the Scottish Government’s legal team whether it thought that it would be helpful to provide clarity for parents—as we do in relation to affected parties when we choose to legislate to modernise and fundamentally alter other common-law provisions—by setting out in statute in black and white, for all to see, the tests that one would expect to be met if use of force by parents were to constitute an assault. The team responded by saying that if we did that, we would end up with something that is close to what we already have. Therefore, the question is this: what is the point of the bill, and why has the Government not, in more than a decade in power, sought to do anything to address this seemingly burning issue?

I have already asked the question, but I would be particularly grateful if the minister or the member in charge of the bill could set out the circumstances in which parents who currently rely on the existing defence would be prosecuted if the bill passes unamended.

John Finnie

I say again that Oliver Mundell is implying that there will be some new change of regime regarding investigation and prosecution. Absolutely nothing is changing in that regard, as he would know if he had troubled himself to read the explanatory notes that accompany the bill, and to listen to the evidence that was presented.

Oliver Mundell

That comment is, quite frankly, insulting. It makes a fundamental error on a point of law, which is that, in this country, where a defence exists, it is considered by the procurator fiscal in deciding whether to prosecute, so the likelihood of that defence succeeding makes a difference with regard to whether prosecutors decide to prosecute.

We have heard from legal experts, including Pamela Ferguson at the University of Dundee, and Michael Sheridan, who is one of the leading criminal law agents in Scotland, that the change, although it will not create a new criminal offence, will criminalise behaviour that is currently lawful. That means that parents—perhaps not great droves of them—will be prosecuted and subjected to police investigation in circumstances in which they currently would not be.

As I have already said, even the Crown Office and Procurator Fiscal Service which, it can charitably be said, has been reluctant to engage with the bill to date, recognises that challenges will arise when the physical contact is of an extremely minor or trivial nature. Indeed, it is almost impossible to know when the Crown Office or Lord Advocate would consider that the public interest test was met. It will be even more difficult to establish when matters are considered to be sufficiently serious for the police to investigate, and it is not at all clear who will make that decision.

As a parliamentarian, I have deep misgivings about passing legislation in an area as sensitive and controversial as this, and which will give such wide discretion to individual police officers and prosecutors.

When it comes to legislating in statute to remove centuries-old common-law provisions, there is a duty on Parliament to provide absolute clarity and to set out our intentions, and not simply to make big, bold claims and pass on to others the responsibility for taking difficult and legally complex decisions. The failure, in the bill, to set out that clarity is an abdication of responsibility. The bill as drafted is so imprecise that it will fail to improve on the current state of affairs.

What is more, there was confusion among witnesses who appeared before the committee. For clarity, the law of assault does not require a forceful act and there need not be substantial violence or injury; indeed, it can include a slap, tapping someone on the back—

Gail Ross (Caithness, Sutherland and Ross) (SNP)

Will the member take an intervention?

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Will the member take an intervention?

The Deputy Presiding Officer

The member is in his final minute.

Oliver Mundell

Assault can include a gesture that places a person in a state of fear, even if there is no physical contact. That seems to be a very broad category of behaviour on which to focus with regard to parents. It seems to me to be odd that witnesses such as the Children and Young People’s Commissioner Scotland said that they could not foresee situations in which small physical interventions would end up in court, when the law of assault seems to suggest something different.

The problem with the whole bill is that we have not got into the legal detail. We spent far longer having an ideological debate about whether it is right or wrong to hit people and about whether it says in the Bible that people can hit their children. Those are not the right questions to ask. We have not investigated the bill properly.

It seems to be extremely odd to legislate to criminalise people for an action but then to hope that it does not happen.

Mary Fee (West Scotland) (Lab)

I welcome the opportunity to participate in the stage 1 debate on the Children (Equal Protection from Assault) (Scotland) Bill. Let me say at the outset that just because legislation is centuries old, that does not mean that it is right. Parliamentarians and politicians have a duty and an obligation to be progressive and to lead change, and that is what the bill will do.

I am a member of the Equalities and Human Rights Committee, and I thank the individuals and organisations who submitted evidence on the bill. During our evidence sessions, including a meeting in Skye, the committee heard robust contributions from a range of experts. I will focus on our evidence sessions and what is in the report.

The bill seeks to give equal protection from assault by prohibiting the physical punishment of children by parents and caregivers. As we heard, the purpose of the bill is to abolish the defence of reasonable chastisement. Parents and others who care for children may currently use that defence if they are facing prosecution for assaulting a child.

Let me be clear. The bill is not about criminalising parents and carers. It is about giving children the same protection in the law that adults currently have.

Oliver Mundell

Can the member give a guarantee, then, that no parents will be prosecuted after the law changes?

Mary Fee

I think that the minister more than adequately covered that point when Oliver Mundell intervened during her speech.

I say to Oliver Mundell that I have struggled with people saying that we should not remove the defence of reasonable chastisement, when, if any one of us were walking down the road and saw a carer who was out with an adult who had a learning disability hit that person, I would hope that we would all be absolutely horrified. That adult has protection, and our children should have the same protection.

Liz Smith

I could not agree more with Mary Fee’s point, but does she recognise that there is a fundamental difference in law between the terms “assault” and “reasonable chastisement”?

Mary Fee

Any kind of assault is an assault. It cannot be justified by saying, “It was reasonable to hit.” If a person strikes another person, they are assaulting them.

The bill seeks to drive cultural change in Scotland to discourage the use of physical punishment. Evidence that we heard in committee demonstrated that physical punishment is harmful to children. We consistently heard that it is detrimental to the wellbeing of a child and is likely to lead to an increase in negative outcomes.

The evidence that we heard strongly showed that parents, children and family support services are best served by adopting methods that do not involve physical punishment. By removing that defence, we are protecting children from harm while also committing firmly to safeguarding children’s human rights. Let us be clear: this Parliament is a guarantor of human rights and, once again, we have an obligation to protect the human rights of children. Martin Canavan from Aberlour Child Care Trust argued:

“There naturally exists an imbalance of power in adult/child relationships, and as a result it is critical that children are provided with as much protection in law as possible.”—[Official Report, Equalities and Human Rights Committee, 7 March 2019; c 2]

The bill will help Scotland to meet part of its international human rights obligations under the UNCRC. Article 19 of the convention states that countries must take

“all appropriate legislative, administrative, social and educational measures to protect children from all forms of ... violence”

from any person who is caring for them. Scottish Labour is fully committed to the incorporation of the UNCRC into Scots law, and the bill is a step towards progressing that commitment.

Committee members heard a range of views both for and against the principles of the bill. Submissions from organisations that work with and support children fully support the aims of the bill. I understand the concerns that many parents will have regarding the bill; indeed, the majority of individuals who made submissions did not support the bill’s principles. Concerns included the suggestions that

“Banning smacking could overwhelm police and social workers”,

“Loving parents should not be criminalised”

and that the ban would

“turn thousands of parents into potential criminals overnight”.

Individuals stated that

“smacking is not child abuse”

and that

“There is a clear difference between child abuse and loving parental discipline”.

I understand also the concerns that were raised by parents who argued that the bill could lead to an increase in criminalisation for parents who smack their children. The bill does not make changes to policing or prosecution procedures or practices. The committee has been assured by Police Scotland that it would continue to take a view as to whether there was enough evidence to charge a person and the prosecution authorities would decide whether there was sufficient evidence to support a case.

International experience from countries that have already addressed the use of physical punishment suggests that prosecutions would not notably increase following implementation. Ireland unanimously repealed its common-law defence of “reasonable chastisement” in 2015. The committee took evidence from Jillian van Turnhout, the former Irish senator who introduced the amendment that led to the prohibition of corporal punishment in Ireland. She said that, since the implementation of the law, Ireland had

“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 its 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 that for the ban on smoking in public places and legislation requiring the use of seat belts—not to criminalise but to encourage positive change.

I will touch on restraint in care settings. I have seen first hand the use of restraint and the distressing impact that it can have on children and young people. We heard moving evidence from Amy-Beth Miah, a care-experienced young person who saw physical restraint as a violent and degrading experience. She said that the bill

“raises a grey area. When a child is removed from their family home to be placed in care, the state becomes the child’s corporate parent, and it is suddenly okay for the state to restrain the child and to act in an almost assault-like manner that breaches human rights.”—[Official Report, Equalities and Human Rights Committee, 28 February 2019; c 30.]

I welcome the Government’s commitment to look further at restraint in care and education settings. I welcome, too, the minister’s comments today, and I am happy to meet her to discuss restraint further.

By giving children equal protection from assault, we are protecting children and safeguarding their human rights. Through an effective public education strategy, the bill will aim not to criminalise but to create a positive culture change. Today is the first step in that journey. Scotland is not the only country that is on that journey. John Finnie spoke of other countries that have either introduced or are consulting on the introduction of similar legislation. I am sure that a number of amendments will be lodged at stage 2 not only to provide the clarity that many desire but to strengthen the bill. For those reasons, I urge all members to support John Finnie’s member’s bill.

Ross Greer (West Scotland) (Green)

I am delighted to speak on behalf of the Scottish Greens in support of our colleague John Finnie’s bill to give children equal protection from assault. I know how hard John, his team and the wider equal protection campaign have worked and I am delighted to see the bill’s progress towards the stage 1 vote.

We widely recognise that children and young people in Scotland have rights, but as the evidence gathered during stage 1 has shown, our laws are not yet in a position adequately to protect those rights. In 1989, the United Nations proposed a treaty that would lay out the rights of children, which were acknowledged in the original Universal Declaration of Human Rights decades earlier. The United Nations Convention on the Rights of the Child was signed by the Government of the United Kingdom on 19 April 1990 and ratified by the UK Parliament in December the following year. The preamble to the convention affirms that, precisely because of their physical and mental immaturity, children need special safeguards, including appropriate legal protections. Children are afforded human rights just as any adult is, and we recognise that they require bespoke rights, just as other vulnerable groups do.

Article 19 of the UNCRC is unequivocal:

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

Article 37 requires protection for children from torture or other cruel, inhuman or degrading treatment or punishment, which reflects the European convention on human rights and other international treaties. Other articles reinforce a child’s right to physical integrity and protection of their human dignity.

Repeatedly, the UN’s Committee on the Rights of the Child has highlighted the continued failings of the UK in this respect. It has reiterated that the law as it stands in the constituent parts of the UK is in breach of that international treaty. The age of criminal responsibility, which is currently under consideration by this Parliament, is another example of that. It is all well and good for those rights to be enshrined at the international level, but the UK, as a dualist system when it comes to international law, has to give domestic effect to those rights. For a long time, the UK has treated international human rights law as an afterthought—as something not really applicable to us—and presumed that we were in compliance anyway.

Over the past several years, things have become far worse. In many cases, the UK’s approach to human rights has turned from an afterthought to one of outright attack and hostility. Just last week, the UK Secretary of State for Work and Pensions launched a blistering and utterly unfounded attack on the UN special rapporteur on extreme poverty, Philip Alston, for his report on the UK. That comes after similar responses by the UK Government to reports by the UN Committee on the Rights of Persons with Disabilities, which found grave and systematic violations of disabled people’s rights going on right now in the UK.

Here in Scotland, we must—and can—be better. We must take seriously our international commitment to human rights. Today, we have an opportunity to press forward with that commitment. Since we signed the UN Convention on the Rights of the Child, we have failed to uphold our obligations. The last time that this Parliament considered the matter, it tinkered around the edges, hoping, I think, that that would satisfy the UN committee. Of course, it did not, because the UK, including Scotland, was not willing to take the necessary steps—steps that I firmly believe we are ready to take now.

Although the bill is a clear step towards recognising the rights of young people in Scotland, there is the broader issue of whether we are living up to our human rights obligations. Like other members, I was delighted when the Scottish Government announced that it would support and lead on incorporating the UNCRC fully into Scots law, and I welcome the consultation that the Government has published in the past week to do just that. The credit for that really needs to go to the Scottish Youth Parliament, whose campaigning for children’s and young people’s rights is an example for others across these islands and globally.

I hope that all parties can agree on the step, which will allow us to fulfil our ambition to make Scotland a human rights leader and the best country in the world for children to grow up in. The work that is being undertaken by the new human rights task force will be a vital part of that. I sincerely hope that the Government will seek to move forward without undue delay with the recommendations of the advisory group on human rights, which issued a report in December.

Human rights must have a strong domestic basis in Scotland so that we do not leave ourselves vulnerable to the disgraceful attacks on basic rights that have characterised the current Westminster Government. To do that, we must legislate on specific rights issues, as the Children (Equal Protection from Assault) (Scotland) Bill does, and seek to better incorporate international human rights law into Scots law.

I conclude by quoting Ian Campbell, who was the husband of Grace Campbell. As some members may be aware, Mrs Campbell led the court case more than a decade before I was born that led to the end of physical punishment in our schools. Explaining Grace’s philosophy, Mr Campbell said:

“You just don’t hit children. It’s that simple.”

It really is that simple. That is why, on a personal level, I have been deeply frustrated by some—a minority—who have used the faith that I share with them as an excuse to oppose the bill, and that is why I am very proud of the churches and other faith groups that have strongly supported the bill. I believe not just as a matter of political conviction but as a matter of deeply held personal faith that children have the same inalienable human rights that we all have.

Children and young people are rights holders in and of themselves. They have the right to be protected from assault. I urge all members to support the bill and tell the children of Scotland that they are unbeatable.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I offer my sincere thanks to John Finnie, and the full-throated support of Liberal Democrat members for his bill.

I am actually quite emotional. Members will know that, prior to being elected to the Parliament, I spent my entire career in children’s rights. Over two decades, I have fought alongside colleagues in Children 1st, Aberlour Child Care Trust, Barnardo’s and other organisations to end the physical punishment of children in this country. We have had setbacks and failures but, were it not for their grit and persistence, we would not be here today. It was my great privilege to address them at a rally outside the Parliament this morning.

During the campaign 10 years ago, I appeared on Radio Scotland to debate physical punishment with an organisation that was opposed to change. Immediately after the programme finished, I got a call from my dad, who said, “You know, I’m really proud of you for helping to lead this campaign. I only ever hit you once. You were two years old and your mum was in hospital having your sister. You wouldn’t eat your dinner and had a proper meltdown, so I slapped your legs. You turned around and you bit me in the face.” He never hit me or my siblings again.

I cannot remember a more deliberative process in the stage 1 proceedings of any bill that I have helped to scrutinise. We heard evidence from academics, parenting experts, religious groups and criminal justice stakeholders. I thank each of them and our committee’s parliamentary staff for the conduct of the process.

The overwhelming conclusion that the Parliament should arrive at from the evidence that we received at stage 1 is that we should join the ranks of the 54 countries that have extended to children in their societies the same protections that are enjoyed by adults. It is wholly wrong that children should be the only people in our society who are subject to assault without legal impediment.

There is an international imperative for us to pass the bill. The United Nations persistently points out that we are not meeting our commitments under either the United Nations Convention on the Rights of the Child or the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. We are among the last remaining countries in the Council of Europe not to have brought about the change.

To put it simply, if we are truly to become the best country in the world for children to grow up in, we will forever fail in reaching that aim for as long as we allow the physical punishment of our children. We will forever fail in our aim to eradicate domestic violence in the home while we legally or culturally sanction any kind of violence in our society, and we will fail in efforts to reduce violence in our streets as long as we allow parents to teach children that violence is an acceptable tool of sanction or anger. That is because, as we all know, children learn by watching adults.

Dr Lucy Reynolds from the Royal College of Paediatrics and Child Health offered our committee empirical evidence of that reality from Bandura’s Bobo doll experiment, which demonstrated that children who were shown a film of an adult picking up a toy mallet and whacking a clown doll in a room full of toys did likewise when they entered the room, whereas children who had not been shown the film did not do that. Her conclusion was:

“Children learn by mimicry, and if you hit children you are teaching them to expect either to dominate or to be dominated through physical violence.”

My father realised that the second that I bit him.

Crucially, John McKenzie from Police Scotland backed up that view when he told the committee that

“there appears to be a link between violence in the home and violence in wider society.”—[Official Report, Equalities and Human Rights Committee, 21 March 2019; c 9, 28.]

I am not blind to the controversy that the policy shift represents, but I have satisfied myself that none of the arguments that have been deployed against it holds water.

Murdo Fraser (Mid Scotland and Fife) (Con)

I am listening with great interest to Mr Cole-Hamilton. Does he accept that parents discipline their children in a number of ways? They might put very young children on a naughty step, exclude children from watching television or playing games or ground children. None of those things would be acceptable if done to an adult—in fact, they would amount to domestic abuse—so why do children differ from adults in that respect?

Alex Cole-Hamilton

Murdo Fraser trivialises the question if he equates something such as a YouTube ban to the physical assault of another human being. I do not accept that in any way.

We have heard from the Conservatives that the bill amounts to an assault on parents’ rights, but nowhere in international or domestic treaties is there a right for parents to hit their children. We heard the concerns of many who talked about legions of parents being marched through the courts for what they described as normal parenting behaviour, but they had no answer to the reality that countries such as New Zealand and Ireland, which are culturally comparable to us, have had virtually no additional prosecutions.

Oliver Mundell

Will the member take an intervention?

Alex Cole-Hamilton

I need to make progress.

Oliver Mundell

Will the member take an intervention on that point?

Alex Cole-Hamilton

Oliver Mundell did not take an intervention from me.

As with the smoking ban, such a change is designed not to criminalise but to effect a cultural change. I was gratified that Police Scotland confirmed that it would bring charges only if it were in the public interest to do so.

The most persistent argument against a change in the law that we came up against can be described as the idea of protective punishment. The argument, which was used on Radio Scotland this morning, is that, if a child runs out into traffic or moves to put their hand in a fire, a parent needs to retain the right to smack them so that they can learn not to do that again. I reassure people who make that argument that none of the 54 countries that have ended physical punishment of children has experienced an uptick in child deaths on the road or seen a spike in admissions to paediatric burns units.

That aside, the most compelling answer to that argument lies in the consideration of mental capacity. My friend the former Irish senator Jillian van Turnhout, who delivered similar legislation in Ireland, told our committee:

“The running-out-into-traffic argument was used in Ireland. Someone on the radio helpfully gave the example of her grandmother, who has Alzheimer’s. She said that she would not think to hit her grandmother if she ran out into traffic, so why would we choose to hit someone of similar cognitive ability but who was smaller? ... Our law was saying, basically, ‘You can hit someone as long as they are smaller than you”.—[Official Report, Equalities and Human Rights Committee, 21 March 2019; c 6.]

I agree with Jillian van Turnhout and every proponent of John Finnie’s bill, and I repeat, that it is wholly wrong that the smallest people in our society should be the only ones people can raise a lawful hand to. I support John Finnie’s bill.

Angela Constance (Almond Valley) (SNP)

I confess that I find it pleasing that an ex-police officer has introduced the bill, because it tackles head on many of the lazy stereotypes about those who serve or have served in our justice system. Mr Finnie is to be commended because, although I support his bill unreservedly, it nonetheless raises an emotive subject that is difficult to discuss, because it taps right away into at least one of three things.

First, as has been mentioned, there are those who were smacked, skelped, hammered or leathered—members should insert whatever language they choose to use—and who say that that never harmed them. It is not my place to tell someone that their personal testimony is wrong, and we know that some folk are undoubtedly more resilient than others, but it is fair and accurate to point to a body of evidence that says that, overall, physical punishment is more harmful than helpful and that, at the end of the day, it does not work.

Secondly, we also encounter adults who will recount their childhood experience with pain. Although their experiences may well have been in keeping with the times in which they grew up, that pain is not always associated with the severity of the physical punishment, but how the punishment made them feel. Not that long ago, I visited a day centre for older people. One lady was giving forthright opinions, as is her right, about how some young folk need to be brought into line. That resulted in one of the gentlemen present making one of the most emotional pleas that I have ever heard in my life about why no child should ever be hit.

Thirdly, another area that we bump up against makes this issue difficult to discuss: parents. Parents of today, with all our worries, are anxious about doing the right thing and whether we will be judged by those who are meant to be supporting us in doing what, at the end of the day, is the most important job that we will ever have.

Liz Smith

Will the member take an intervention?

Angela Constance

No, I will decline. I will not take any interventions today because, as is the case with good parenting, it is important to remain calm.

I point to the fact that today’s parents are those least likely to smack or even to find doing so useful. In my experience, most parents do not want to smack their children. If they smack them, they do so because they are at the end of their rope and then instantly regret it. Yet, as citizens and as a society, we still find it hard to find the best and the simplest ways to support parents.

A number of years ago, I was at the shops. The scene that I am about to describe will be familiar to many members. A young woman was shouting at her wee one and yanking him up by his arm. It was really difficult to watch, because I thought that his arm might come out its socket. I had real anxiety about what I—the local MSP, a former social worker and, to boot, an education minister at the time—should do, if anything.

I did not want to ignore the distress of that mum or her wee one, but nor did I want to be intrusive or heavy handed. I started rummaging about my handbag, found a sweetie, sidled up to the mum and asked her if it would help if I gave the wee one that sweetie. That was just enough to interrupt the flow—the wee one glowered at me and then gobbled up the sweetie. All that I said to the mum was, “It’s no easy, is it?”

The young woman had not only a toddler but a newborn. She was absolutely knackered. I would not support the bill if I thought for one minute that it would increase the prospects of mums like that young woman being criminalised.

I accept that all countries and jurisdictions are different, but there is considerable comfort to be taken from the fact that 54 countries have travelled this road before us.

Oliver Mundell

Will the member take an intervention on that point?

Angela Constance

No, thank you.

The UK is one of only four European countries that has yet to travel this terrain, so we are not exactly blazing a trail. Although the bill is not a silver bullet, it will help us have a better discussion about parents hitting their kids and therefore a better response to supporting parents.

Let us remind ourselves about the detail of the need to be compliant with the UNCRC and the wholesale approach of article 19(1), which calls on Governments to

“take all appropriate legislative, administrative, social and educational measures to protect the child”.

Surely, the bill is an incremental extension of GIRFEC.

We should be helping to support the behaviour change that is already happening, and the law needs to be clearer, with children having the same protection under the law as adults. By removing the defence of justifiable assault or reasonable chastisement, we would not be changing prosecution or child protection practice—the committee heard oodles of evidence that demonstrated that. In my view, Mr Finnie’s bill does not just seek to do the right thing; he has also found the right way to do it.

Annie Wells (Glasgow) (Con)

Throughout stage 1, I have been clear about my concerns about the Children (Equal Protection from Assault) (Scotland) Bill. None of us in the chamber would ever condone violence against a child, nor would the public. Yet we are debating a bill that, if passed, would see many loving parents criminalised. It is absolutely key to the debate that we make the distinction, which is recognised by the current law, between reasonable chastisement by parents and disproportionate punishment or assault.

Members may disagree with me on that point, but there is no way of escaping the fact that the bill would be practically unworkable. In 2002, the Justice Committee dismissed a similar proposal on the grounds that it would be unworkable and unenforceable and that there was no evidence to suggest that it would reduce harm to children.

This time round, the bill has been under the watch of the Equalities and Human Rights Committee, of which I am a member. As Oliver Mundell and I said in our minority statement, we are not convinced of parents’ support for the bill. We also believe that it would not provide legal clarity and that, as currently drafted, it might be open to future legal challenge. In our view, the bill would create a small, but not insignificant, grey area in which the use or perceived use of physical force to protect a child’s safety or for the purposes of restraint by parents might be misconstrued or reported to the police as assault. In practice, the police would, at the very least, have to instigate some form of investigation into the circumstances around extremely minor cases. Such situations would no doubt bring stress and angst to many loving and caring parents.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Will the member take an intervention?

Annie Wells

No. Like Angela Constance, I would prefer to keep the debate calm.

How frequently such referrals would be made to the procurator fiscal and whether they would lead to full-blown criminal trials is still unknown. The Crown Office and Procurator Fiscal Service stated to the committee that it is “quite possible” that reports to the police would rise. Police Scotland stated that the bill would increase reporting of crimes, with the potential cost and resource implications that that would bring. Many of the written submissions to the committee raised concerns that the bill would increase pressures on services such as the police, courts and social work.

Significantly, the Lord Advocate has not yet provided oral evidence to the committee. Given that, if the bill were to be passed, the Crown Office and Procurator Fiscal Service would have to make determinations on whether to criminalise parents, I believe that hearing such evidence is vital, and I am pleased that that will take place next week.

As we mark 20 years of devolution through the reinstatement of the Scottish Parliament, we should be thinking about how we can pass good, clear, uncomplicated legislation that must be workable—not legislation that, if it were to be passed, would potentially come under scrutiny for years to come.

I would like to raise a final point in relation to the Government’s right to interfere with family life. Polling has shown that parents in Scotland do not support the bill. In 2017, a YouGov survey found that 54 per cent of Scots said that smacking should not be banned, and that only 25 per cent of people supported a ban. A month after the bill was introduced, a Panelbase survey found that only 30 per cent of people supported a prohibition on smacking, and that more than half—53 per cent—believed that it should be allowed.

Alex Cole-Hamilton

Does the member recognise that other surveys have shown that parents support giving children equal protection from assault? Does she feel that the Parliament should always follow public opinion, whatever it says? Should we not sometimes try to lead it?

Annie Wells

What I am trying to say is that we need to pass good legislation that is workable and enforceable.

Over the past few months, many constituents have come to me with concerns about the risks that the bill would pose to loving and caring parents. They feel that, despite its best intentions, the bill would represent an intrusion into family life. One individual stated that it suggests that the Government is above parents and will—if the bill is passed—have decision-making power in the home. Another stated that parents know their child best, and only they know how best to approach the sometimes very difficult task of parenting. As with the named person legislation, the bill implies that parents do not know what is best for their children, and that they cannot be trusted to make the distinction between reasonable chastisement and assault. The reality is that legislation already—rightly—makes that distinction.

If meaningful work is to be done on eradicating violence against children, we should not divert the focus of police and prosecutors on to good and loving parents who choose—often only very occasionally—to use mild physical intervention to discipline their own children.

Maree Todd

Will the member take an intervention?

The Deputy Presiding Officer

The member is in her last minute.

Annie Wells

The bill represents a heavy-handed approach that—despite its best intentions—may in fact distract from our responsibility to protect children. The current law already protects children from violence, and it works well. The reality is that a majority of Scottish people are against the bill, as it would criminalise loving parents. We should listen to those concerns, avoid the temptation to virtue signal and focus on passing good legislation. That is why I will not support the bill at stage 1.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I am very happy to speak in the debate and state at the outset that I am fully supportive of the bill. I thank John Finnie for introducing it.

The Scottish Government has always strived to promote and protect children’s rights, and the bill is an integral part of that. It would bring Scots law into line with the UN Convention on the Rights of the Child, which makes it clear that there should be an end to corporal punishment in all settings, including the home.

Presently, the United Kingdom is one of only four countries in the EU that have not legislated against the physical punishment of children in all settings. Scotland must lead the way here. Children do not have the same protection against assault that adults do, and that is simply shocking. Hitting children can never be justified. There is no such thing as justifiable assault—if the defence is not there for adults, why should it be there for children?

Alex Cole-Hamilton

The Conservatives have said several times during the debate that this law is unworkable. Does Rona Mackay agree that the defence of reasonable punishment or chastisement used to apply to men’s assault of their wives and servants, but that—happily—that defence was repealed some time ago?

Rona Mackay

I absolutely agree that the defence of reasonable punishment is totally archaic and should be removed entirely.

If someone hits their child, it is an admission that they—as an adult—have lost control. In addition, lashing out can only send a message to the child that hitting will bring the desired result. We know that children are affected by learned behaviour, and that hitting them will result in problems for them at the start of their lives. For example, they will lash out at nursery or school to get the result that they want, and such behaviour can carry on throughout their life.

The bill is not just about changing the law. As the committee’s stage 1 report stated, alongside a legislative solution, there needs to be

“a comprehensive public education and awareness campaign”.

Many years ago, I witnessed a distressing scene outside my local supermarket. A mother and her young son—who was probably aged about 12—were physically fighting with each other, kicking and slapping in equal measure. Shoppers looked down, embarrassed, and nobody intervened, including—I am ashamed to say—me. That incident has stayed in my mind for years after I witnessed it. If the correct legislation had been in place, I am certain that people would have stepped in to say that that behaviour was unacceptable and illegal. However, nobody wanted to intervene, believing that it was a private matter. I never want to see anything like that scene again, and that is just one example of why I am entirely supportive of the bill.

In my view, there is no reasonable argument against equal protection for children. As we have heard, an excellent briefing from Children 1st, Barnardo’s and NSPCC Scotland points out that former Irish senator Jillian van Turnhout—who was instrumental in legislation change in the Republic of Ireland—states that social workers say that they now have the ability to send a clear message to parents. They can say to them: “You’re not allowed to hit your children, so let’s talk about what you can do. Let’s talk about positive parenting”.

In Ireland, there is an overwhelmingly positive message from civil society organisations and state agencies regarding the clarity that the change in law has brought. I believe that civil society in Scotland will experience that, too. The bill, and raising public awareness of it, will help to create the culture change that has been seen in other countries, and which has been seen in Scotland around public health issues such as smoking and seat belts. It will clearly show that Scotland does not tolerate violence against anybody, particularly the smallest, most vulnerable people in our society: children.

I believe that legislators have a duty to act when it becomes clear that the law is out of step and out of date with what the evidence shows. The evidence shows that physical punishment does not work and can be harmful, and children and their families deserve a law that reflects that. The bill is about changing attitudes to the physical punishment of children in Scotland. It is not about making prosecutions easier or criminalising people, but about preventing others from carrying out such actions in the first place, because we know that they are harmful.

My grandchildren cannot believe that when I was at school, children were assaulted by the belt as a punishment. As they grow up, I want them to know that it was this Government in Scotland that gave them equal protection against all forms of violence. It is our duty to do so for future generations.

I am delighted to support the general principles of the Children (Equal Protection from Assault) (Scotland) Bill.

Rhoda Grant (Highlands and Islands) (Lab)

I am sure that there are few parents who could put their hands on their hearts and say that they have never smacked a child. Not only were people of my generation used to being smacked as children; at school, we ran the gauntlet of the belt, which—I am pleased to say—is long gone.

It is clear that using different forms of non-physical chastisement works better and takes the tension out of a situation. For example, a time out removes the emotion, but lets the child know that they have done wrong and have forfeited their freedom as a result.

As I said, in my youth, physical punishment was widespread at school and at home. Most of it was carried out proportionately, but some was not, and it was difficult to see where the line was drawn. When physical punishment was banned in schools, we heard the same arguments that we are hearing today. Children went home with bruised and bloodied wrists—how on earth was that right? I do not think that anybody would go back to those days.

I remember walking down the street ahead of some adults and children a number of years ago. One little boy was whingeing away—yes, he was annoying, but he was hardly bad. He was warned to “shut up” a couple of times, then I heard him being physically punished. I was ahead and could only hear it. I could hear the smacks raining down on him and I could hear his screams of pain—the more he cried, the more he was smacked. Alongside that came the verbal assault about how terrible a child he was. There was no love whatsoever in that punishment and the horror of it remains with me to this day. I am clear that it was not reasonable chastisement, but how could I prove that? Should I have intervened? To my shame, I did not. I went home, feeling sick to my stomach. I did not see it; I heard it. I wonder what became of that child. He will be an adult now, but his start in life left me with little hope for his future.

We have all witnessed a child doing something naughty, such as running into the road without looking. We have seen the parent grab an arm and pull the child back and heard the parent shout at them, telling them how dangerous it is. No one questions the reaction to a fright—frankly, we would do the same if an adult ran into the road, and no one would consider it assault.

Prosecutions need to be in the public interest and there has to be intent. We hear from other countries that removing the protection of reasonable chastisement has not led to an increase in prosecution, but it does remove a defence against abuse.

We all know the difference between assault and intervention to promote safety. To say that parents will be criminalised is, I believe, nonsense. That said, I am sure that there will be a few spurious reports, especially from parents who are at war. However, we have checks and balances in our justice system. There is a process to go through, including a police investigation, corroboration and the oversight of prosecutors, which provides safeguards against spurious prosecutions.

Liam Kerr (North East Scotland) (Con)

Rhoda Grant talks about people making spurious reports. Presumably, on her analysis, perfectly good parents who could be subjected to the criminal justice system would be seen as collateral damage. What is her view on that?

Rhoda Grant

That is not a reason to continue to allow the assault of a child. There will always be spurious allegations, but we need to deal with them and make sure that anyone who makes them is charged with wasting police time, apart from anything else. That does not mean that we should not legislate to protect children.

There are some who say that the change would interfere with family life. However, the law as it stands currently interferes in family life by allowing a different bar with regard to chastisement by a parent compared with any other adult. To follow that argument through to its conclusion, it could be argued that taking action against domestic abuse is also interfering in family life. For most of us, the family is the safest place to be: surrounded by loved ones who have our best interests at heart. That is not the case for all. We know child abuse happens. How many others like me did not interfere because the law allows reasonable chastisement? How does my reasonableness compare with someone else’s? The law needs to protect young and old alike.

Oliver Mundell

The member raises an important point because people have different ideas about what is reasonable and what is severe enough to merit intervention from the police. Does the member agree that it would be better if the bill set out in detail tests that make it clear and obvious what is right and what is wrong?

Rhoda Grant

We all know the difference between assault and pulling somebody back from the road. We do not walk down the street wondering whether someone is being assaulted. If we see someone being assaulted, we know it, and it is the same with children.

Oliver Mundell

Will the member give way on that point?

Rhoda Grant

I want to make some progress. I answered the member’s earlier intervention.

It is clear that we should not have a different bar for children from that which we have for adults, because we recognise what assault is. If we start trying to categorise that in the law, we will create loopholes, which would be unhelpful.

I understand that there are differing views about the issue. Who has not had a moment of fright with a child and grabbed them and smacked them? That does not mean that it is right. It takes time and consistency to make time out and other alternatives work, and we all know that parents face competing demands. However, we are the adults. The parents are the adults, and we need to educate society on good parenting skills.

We need to learn patience with children. I will finish with this small point. How many of us have seen a child having a meltdown or a baby crying and seen people tutting at the parent for not controlling that child? On such occasions, I have also watched as other adults stepped in and helped out. We all need to be more tolerant and learn to step in and help rather than criticise.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

I agree with what Rhoda Grant said in the last paragraph of her speech.

I thank the member in charge of the bill, John Finnie, for bringing it forward, and his staff for all their hard work.

It is worth restating that article 19 of the UN Convention on the Rights of the Child says:

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

from any person who has care of the child. We are incorporating the UNCRC into Scots law in the current parliamentary session. We introduced getting it right for every child; we have one of the most sophisticated, welfare-based systems of dealing with children who offend; we have a baby box; and we are becoming trauma informed. However, if a parent or a carer is charged with hitting a child, they can still fall back on a legal defence of “reasonable chastisement”.

As we have heard, the bill does not create a new offence; it removes a defence. It also aims to foster a change in societal attitudes with alternative methods of positive parenting that do not include punishing children physically. As John Finnie and Rona Mackay said, parallels have been drawn with other culture changes that began with legislation that might not have been popular at the start, such as the wearing of seat belts and the ban on smoking indoors in public places.

In evidence sessions at the Equalities and Human Rights Committee, the majority of witnesses agreed that the evidence in favour of removing the defence is overwhelming and the bill must become law if we are to see a change. I thank all the witnesses who gave evidence. I thank especially the clerks, who did a fantastic job in sometimes extremely challenging circumstances.

Despite what has been written in the minority statement, the convener and the clerks made every effort to get different views on whether the principles of the bill could be supported. We heard from some witnesses that smacking, used in the context of a loving family setting and administered only in extreme circumstances, perhaps to communicate a message of safety, could and should still be used. However, the overwhelming volume of evidence explained why even what might constitute mild or reasonable smacking should not be used. NHS Tayside told the committee that physical punishment of children is associated with

“a range of adverse outcomes including emotional and behavioural problems, anxiety and depression, physical abuse and anti-social behaviour and violence in childhood and adulthood. Additionally, the evidence is that physical punishment doesn’t work—it is ineffective in achieving moral internalisation of the values and behaviours the discipline is trying to encourage.”

Why do parents smack? Is it just a momentary lapse of control, or is it used systematically by parents to communicate? Well, it can be both. I pressed the point in two of our evidence sessions, in order to understand better why smacking is used. I was told by one witness that

“smacking is communicating with a child through ‘light pain’”

and by another that it was, indeed, a “slightly painful thing”.

Should children learn through fear of pain? No, I do not think that they should. Children should learn through love and understanding.

Liam Kerr

The member knows that I have a lot of sympathy for what she says, but is the logical extension of that not that it is better to educate parents not to go down that route than to risk criminalising them?

Gail Ross

I am happy that Liam Kerr has raised that point, because I will address it later in my speech.

There were a number of concerns about criminalising parents and additional burdens being placed on resources and existing staff. We heard evidence that other countries, such as Ireland, that have introduced similar legislation have seen little or no increase in the prosecution of parents. Nevertheless, we envisage that there may be an increase in reporting and that resources will have to be put in place to deal with that. That will include more positive parenting advice and help for families for whom English is not a first language and who may come from countries where corporal punishment is used more widely. As has been mentioned, should the bill become law, there will also have to be an awareness-raising campaign and guidance for professionals and organisations.

Angela Constance, in her brilliant speech, talked about parenting not being easy. All the parents in the chamber will agree with that, but a person does not need to be a parent to know that this is the right thing to do. We need to be very careful that the message does not make children who have been smacked think that they have been damaged in any way. We must also ensure that parents who currently use or have used smacking in the past are not made to feel guilty or that they have done something wrong. This is not an exercise in guilt; it is about education and understanding.

The bill sees the rights of children put on a par with those of adults. It encourages a culture change. It has been argued that, in this case, a change in culture cannot happen without legislation—that deals with Liam Kerr’s point. If we were to undertake a public awareness-raising campaign that said there is no justification for hitting a child but there was still a justification for it in our legal system, that would send out completely the wrong message to parents.

I leave members with the words of Jillian Van Turnhout, a former Irish senator and a committee witness:

“We know that when a child is hit, they immediately forget everything that happened beforehand, because the person whom they love and cherish has hit them. There is no connection to what the child did.”—[Official Report, Equalities and Human Rights Committee, 21 March 2019; c 7.]

The law is clear that a person should not raise their hand to another adult; it needs to be clear that they should not raise their hand to a child either. The bill brings that clarity.

Gordon Lindhurst (Lothian) (Con)

It gives me no pleasure to speak in today’s debate, but someone needs to speak up for Scotland’s children, parents and families. Our current criminal law rightly prohibits parents from assaulting their children, and that is the way it should be. I think that that is a unanimously agreed proposition—at least, I would hope that it is. We already have the right laws and procedures in place to guarantee that. The misleadingly named Children (Equal Protection from Assault) (Scotland) Bill is not about protecting, supporting and nurturing our children and families; it is a misguided attempt to tell parents how to raise their own children under threat of being treated as criminals and facing the full force of the state if they do not.

John Finnie

Will the member take an intervention?

Gordon Lindhurst

I will not take one at this stage, as I want to address the imbalance that has existed in the debate before this place.

However well meaning some supporters of the bill may be, they overlook that crucial point.

Families are the bedrock of any stable and civilised society in which the best interests of children can be protected. The state cannot pretend to replace the family, and one that does so will fail.

Alex Cole-Hamilton

Will the member take an intervention?

Gordon Lindhurst

Not at this moment.

That point was clearly made by the UK Supreme Court in the named persons case.

In his recent Reith lectures, on BBC Radio 4, the recently retired justice of the UK Supreme Court Jonathan Sumption QC made a key point about the problem with a lot of current law making. He said:

“We are afraid to let people be guided by their own moral judgements in case they arrive at judgements which we do not agree with.”

That is what we are dealing with here, and such bad law upsets good families.

Consideration of the bill before us has been a far cry from the informed, careful and considered approach that was taken with the current law, which was clarified in 2003. Supporters of the bill have had the free run of proceedings before the Parliament and in committee. In spite of an overwhelming response to the committee from members of the public who were against the bill, it chose instead to hear overwhelmingly in its public proceedings from supporters of the bill. Nor did it hear in those public sessions from many who made submissions against the bill, including, crucially, individuals in the front line who deal with the courts and child protection.

John Finnie

Will the member take an intervention specifically on that point?

Gordon Lindhurst

Not at this stage.

Those from whom the committee did not hear included experts in the practice in their field and in the workings of our current law. Surely the Lord Advocate, as the head of Scotland’s prosecution service, should have appeared before the committee to answer questions on the bill, but he did not. We are told that he has been invited to give evidence later. In those circumstances, it is entirely unsatisfactory for Parliament to be asked to approve the bill.

What of the unsatisfactorily unresolved issue of the alteration of the committee minutes, which was rightly raised by my colleague Oliver Mundell in his point of order on 15 May, and the provision of parliamentary and other publicly funded resources to support and promote the bill on all sides, of which there was a lack of availability to those who wished to scrutinise the bill? Lack of openness and transparency, an unwillingness to listen and a failure to respond to concerns that have been raised are issues that simply will not go away.

My fear is that the committee and the Parliament will receive a simple fail from the public on this one if the situation is not addressed now, because the message that is being sent out 20 years after the Parliament began is that it is neither the people’s Parliament nor a listening Parliament.

We are being asked to approve a bill and a proposition that has not changed one iota since conception to coming to this point in spite of the information that the Scottish Parliament information centre has provided that points to crucial differences in other legal systems. The bill does not propose what is law in New Zealand or in other countries that are relied on. Those differences should have been the subject of full consideration and research. Such research has not been carried out, in spite of my request for it, and the unanimous public evidence from supporters of the bill to the committee that parents should not be criminalised by fining them or imprisoning them—which is what the bill provides for—has, equally, been ignored. If the bill needed amendment at the outset, it obviously does now.

Elected politicians should not assume that they have some sort of divine right to tell others what to do, so I will conclude by quoting the words of a mother and a constituent of mine who wrote to me last week:

“The State has ever made an awful parent. I am tired, of special interest groups, selective consultations, liberal virtue-signalling and media bias trumping plain decency and common sense. I confess, my faith in politicians to act in line with democracy is at an all-time low. Could you restore it, please—speak, act and vote against John Finnie’s Children (Equal Protection from Assault) (Scotland) Bill?”

That is what I shall do.

Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)

I congratulate John Finnie on his commitment to his member’s bill. As someone who has had a few member’s bills in this Parliament, I am all too aware of the time and effort that goes into the process.

Like everyone here, I understand but do not support someone smacking his or her children for wrongdoing. I also find it patronising to be told or for it to be alluded to—not by anyone in here—that people of a certain vintage do not want to ban smacking because they hold the view that “I was smacked and it did me no harm.” I am not in that category. Times change—and rightly so. Ross Greer reminded us that the tawse was quite rightly banned decades ago. My sons have never smacked or used physical punishment on their children, and neither do I on my grandchildren—what granny does?

I would be hard pressed to recall any time in recent years when I have seen a parent physically punishing a child in public. I have seen parents shouting and even screaming at their children in the supermarket, and, as a parent, I understand why that can happen, although that can be just as harmful. However, I have not seen parents hitting their children. Therefore, the first question is: do we need this legislation? Policies that have changed our views on disciplining and parenting, the provision of free nursery places and education and social mores have meant that, in public places, smacking is, to all intents and purposes, gone for good—or, at worst, takes place out of sight. Indeed, rights can be enshrined in common law and in case law, not only in statute.

The second question is: if this bill proceeds as it stands, what will the impact be in private places such as the family home? Will the parent who relied on so-called justifiable assault—a most unfortunate term—think twice? Will parents postpone punishment with the words, “Wait till I get you home”? If the bill is breached, who will report it? What will the evidence be? Will every instance require a police visit and a report? Corroboration would be required for any proposed prosecution.

Neil Hunter of the Scottish Children’s Reporter Administration stated that

“the existence of a spectrum of violence in children’s lives—particularly in the household—has a very adverse impact on their wellbeing and outcomes.”—[Official Report, Equalities and Human Rights Committee, 21 March 2019; c 29.]

I could not agree more.

John Finnie

I note that the SCRA supports the bill.

Does the member acknowledge that much of what she has said in relation to assault on children in the house could apply to domestic violence, which is now rightly addressed through a different approach by not only the public but the statutory agencies?

Christine Grahame

I will address the point made by the children’s reporter. Neil Hunter said that it is “particularly in the household” that violence has an adverse impact, and my concern is that, although the proposed legislation may do something in the context of public places, I cannot see how it could successfully operate in the home, where it would be difficult to police and difficult to prosecute.

The stage 1 report remarks on the small number of prosecutions that followed the introduction of the Criminal Justice (Scotland) Act 2003, which prohibited shaking and the use of an implement. However, the small number of prosecutions, which is referred to in the report, does not necessarily establish that the 2003 act changed behaviour—it may have, but we do not know. We are not told in the report how many police investigations there were, how many reports there were, how many of those cases went to the Crown and how many cases the Crown did not proceed with through lack of evidence or because it was not in the public interest to do so.

We need detailed evidence. Did parents stop shaking or hitting children—in public, at least—because of public pressure or because of the 2003 act? How many members of the public even know of the 2003 act and what it does? We know that children are still hit, shaken, beaten and smacked in private. We find out about that when cases end up with social work or when tragedies make front-page headlines. Will the bill change that? I do not know, but it seems from the social work evidence—at least as I read it—that the bill will not impact on the social work case load.

Then there is the necessity for clarity in the law. The bill states that the rule that

“the physical punishment of a child in the exercise of a parental right or a right derived from having charge or care of the child is justifiable and is therefore not an assault, ceases to have effect.”

According to that definition, such physical punishment would therefore be an assault. Whether the person would be prosecuted is another matter, but it would still be an assault. As I understand it, the definition of assault in Scots law is that it is a physical attack on another, or the threat of such, that is intended to cause bodily injury or that puts the victim in a state of fear that he or she may be about to suffer bodily injury. To me, those two definitions do not sit side by side.

Let us unpick this. If a child was slapped across the arm for some wrongdoing, that would fit with the member’s definition of an assault, but would we call it an attack? By definition, it would be an assault, so some inquiry would be required, although, at the end of the day, the Crown might decide that it was not in the public interest to prosecute. I agree with other members that it is a shame that evidence was not heard from the Lord Advocate before the stage 1 report was produced. That evidence is crucial, as the Lord Advocate is the head of prosecutions and considers what is in the public interest in Scotland.

Sticking to public places, what is a parent to believe it is appropriate to do? A slap on the hand for reaching for the forbidden sweets at the check-out would certainly be an assault as defined by the bill. Although I understand the member’s entirely worthy motives, there are too many unanswered questions for me to support the bill as it stands. An assault, like an elephant, is better defined visually. We know an elephant when we see one, and we should certainly know an assault when we see one.

Statute or legislation can be a heavy-handed—forgive the metaphor—way of delivering social change. As the bill stands, it is not fit for purpose and has a whole host of possible unintended consequences. As Angela Constance rightly said, it will be good if the bill leads to a better discussion on parenting, but bills need to be robust and tested before they are enacted and become statute. We need more evidence—at least, I need it before I will support the bill. Accordingly, I intend to abstain at decision time. Good intentions must be matched with good legislation.

Claire Baker (Mid Scotland and Fife) (Lab)

I thank the committee for the work that it has done in recent months to produce the stage 1 report. The committee has attempted to be thorough and to engage in the debate that surrounds John Finnie’s member’s bill. I also thank the member and his team for their work.

I recognise that the Conservative members of the committee have taken a minority position on the bill—one that questions some of the committee’s work. However, as all of us who are on committees will recognise, it can be challenging to satisfy all views on what are sometimes contentious issues. As an MSP who has scrutinised the Census (Amendment) (Scotland) Bill, I have recent experience of that.

Some members will put the case that has been articulated during the stage 1 evidence: that the bill will negate the rights of parents and the right to family life, that it demonstrates the interference of the state, and that it will deny the right to religious freedoms. However, I do not find those arguments to be convincing reasons for stopping the bill’s progress. I am convinced by the argument that children should receive, under the law, the same protection as adults. I agree with that general principle and support the bill’s proceeding on that basis.

Although John Finnie introduced the bill in 2018, this is not the first time that the issue has been discussed in Parliament. My former colleague Scott Barrie, who was the first MSP for Dunfermline, argued the case in the early days of the Parliament and received quite a challenging time from the media. The then Scottish Executive introduced a consultation on the issue before going on to introduce legislative changes.

We can look back on that previous debate and reflect on why support was not broad enough at that time. The law was changed to give parents a justification of reasonable chastisement in certain circumstances. We did not then have a commitment to introducing the United Nations Convention on the Rights of the Child. The voices of children and young people were not heard or listened to as they are now, and Parliament in its early days was not free of controversy and questions about its relevance. All those factors contributed to the limited nature of the changes that were made.

The bill represents unfinished business for the Scottish Parliament. As a serious modern legislature that is committed to meeting its international human rights obligations and to not being in breach of the UNCRC, we need to remove the defence of reasonable chastisement.

We have been on a path that has dramatically changed our society’s attitude to children and young people. We no longer have corporal punishment in schools, and we recognise children’s right to protection. Furthermore, physical assault as a means of teaching or controlling children is increasingly unacceptable, and it is now recognised as being counterproductive.

As a society, we still have issues with violence, and although we can point to factors such as alcohol as aggravators in that regard, we should recognise that a society that views physical chastisement of children as acceptable needs to reflect on what terms that sets for adult and future parental relationships. Research into the effectiveness of physical punishment as a parenting tool finds that it is not effective in achieving parental goals. There is little evidence to suggest that it improves children’s behaviour in the long term, and it can exacerbate problem behaviour.

Although the committee heard evidence from groups representing adults, it also took considerable evidence from children and young people, including Kirkcaldy YMCA Junior Football Club.

A few years ago, I watched an episode of “Supernanny” that featured a family with loving parents who used smacking as a means of exerting parental authority. The dad, who did the smacking, was not in a rage when he did it—it was a controlled reaction to bad behaviour—and the parents did not think that it caused any harm. However, the programme makers conducted a secret interview with the children in which the children expressed their love for their parents and said how happy they were, but also said that it upset them when they were smacked, and that it spoiled their relationship with their father. I remember that, when the parents saw the interview, they were absolutely horrified that their behaviour was having that impact on their children. They could not conceive that what they thought was light parental control through smacking was causing their children that level of concern. It changed the behaviour of those parents.

Being a parent can, at times, be difficult. Children of all ages can be frustrating and parents wish to protect them from harm. However, I feel that the suggested examples of prosecutions arising from children getting a tap on the wrist after running into roads or reaching out to fires are trivial. There is no evidence to support the idea that that is what is happening in countries that have enacted similar legislation.

When Dr Louise Hill spoke to the committee, she said:

“The international research indicates that there is no increase in prosecutions as a result of a change in legislation. There is, however ... a decrease in the use of physical punishment and a decrease in physical abuse.”

She also said:

“we think that there could be a reduction in prosecutions as a result of the bill, because of the culture change that will happen.”—[Official Report, Equalities and Human Rights Committee, 28 February 2019; c 38-9.]

At present, the UK is one of only four countries in the European Union that has not legislated against physical punishment of children in all settings. There is no evidence to support concerns that loving parents will be criminalised, or that protection services will be overwhelmed. I respect those who have raised concerns about those issues, and they must be addressed in future stages of the bill or in accompanying guidance, but I believe that the bill is workable and can be implemented in a way that is understood by parents, the police and courts, and that it can be enforced in a way that is sensible and proportionate.

During stage 1, no one argued in favour of hurting children and no one supported violence against children. However, views differed on whether smacking is a violent act. Although the bill received significant support during consultation, there is still a challenge to address in public polling. There is support for smacking, but there is also strong support for protecting children, and some of us see that as a contradiction.

Smacking is not just about the degree of violence; it is about preferring a physical reaction over communication, and exerting power in a way that can be humiliating and hurtful. Adults who defend smacking because it did them no harm still remember that they were smacked, but they rarely talk about the good that it did them. The bill will extend to children the same legal protection as exists for adults. I am pleased to support its general principles.

James Dornan (Glasgow Cathcart) (SNP)

As others have done, I pay tribute to John Finnie for his tireless work and for his commitment to bringing the bill into being. His bill might not have unanimous backing among members of the Scottish Parliament or the public, but it is a vital step towards creating a fairer and more equal society for everyone in Scotland, at the very heart of which should be children and young people.

A few constituents on both sides of the debate have visited my surgeries to discuss the issue. Although I do not sit on the Equalities and Human Rights Committee, I have, as a father and grandfather, been very interested in the formation and progress of the bill over the past months. It has been worth it, for my part, to try to understand what young people think about being smacked, whether as a form of discipline or—as some parents suggest—as a form of guidance.

The Scottish Youth Parliament is an institution of which we should be immensely proud. Before I make my point, I want to thank publicly the two MSYPs in my constituency, Ellie Craig and Zanib Ahmad, for their hard work and commitment to our community. Of course, I also thank all the other MSYPs whose contributions often help to mould legislation and debates such as today’s.

As John Finnie said, the Scottish Youth Parliament asked about physical punishment in a consultation in 2016, to which it received more than 72,000 responses from young people, 82 per cent of whom agreed that physical assault on children should be illegal.

It is pretty clear from research and anecdotal evidence that children find smacking hurtful and upsetting. An adult lifting his or her hand to a young child is a terribly traumatic experience that has no long-term positive effect.

I grew up in a home in which both parents were pretty strict and I was always well aware of where the line was. My father was able to command my respect and lifted his hand to me only twice. I can assure members that I completely understand why he felt the need to do that at the time.

The only time when I physically punished one of my kids was when we were crossing the road. He slipped out of my hand and stepped back into the road. I managed to grab him and pull him back to me. I then skelped his bahookie while hugging him at the same time. Talk about mixed messages.

The reality of course is that I did not skelp my son to teach him a lesson but out of instinct, based on my fear of what could have happened. He would have got much more from my show of affection and concern than he ever got from the skelp. That was the case on the millions of occasions when my dad explained something to me or comforted and cared for me, as opposed to the two occasions that I mentioned, which did absolutely nothing for or to me. All that they did was embarrass my dad, just as I was embarrassed and ashamed by my behaviour after the wee yin had run into the road.

A few people have protested about the bill by saying things like, “My parents hit me when I was younger and it never caused me any harm.” However, my generation can say that about many things in our youth. I rode my bike without a helmet: it was just luck that I never had an accident. We sat in cars with our children on our knees and prayed that there would not be an accident. I could keep on listing from my youth safety issues that never harmed me. The fact is that the behaviour could have harmed me—as, sadly, it harmed many people.

Legislation such as the bill is an important step in trying to alter our behaviour. That is why the Government and Parliament must take progressive steps to protect our children and encourage parents.

As I said, some constituents have come to my surgeries to express concern that their rights as parents and grandparents are being removed. I have no doubt that those constituents have at heart the best interests of the children in their families, but sometimes we have to acknowledge that our current ways are just not working.

If a member was standing next to an adult who had his headphones on, and lack of concentration led the adult to step in front of moving traffic, the member would pull him back, but definitely would not hit him. Why? It is because we know that that would be assault. What is the difference between that and me hitting my son?

As the law stands, whenever we choose to discipline children by corporal methods we can do so only if we have absolute certainty that in that moment we are feeling no malice, no anger, no rage, no frustration and no resentment towards the child. Who among us could be sure of that? I know that when I hit my son, I did so out of anger and frustration that I had not protected him and prevented him from doing what he did.

Corporal punishment is the most widespread form of violence against children. If the child is old enough to be smacked, they should be old enough for alternative consequences. Surely for the youngest people in our society, discipline should always be about educating them through better methods than that.

When we raise a hand or an object to a child, whatever their age, we signal to them nothing other than intent to cause pain and suffering. No adult will ever look back on their childhood with fond memories of their physical punishments, nor will anyone recall a stark change in their motivation to alter their behaviour. The overriding memory will be fear, pain and upset, all of which are catastrophic for a child’s healthy emotional development.

Children are charged to us to care for, in the same way as we should care for all vulnerable people in our society. We must take care with the fragility of those who are in our care, and we must understand that each and every action that we take will impact on their life—not just in that moment, but for the entirety of their time on this earth.

Instead of more discipline, we need more tolerance, patience and love. Countries all over the world are taking steps to protect the rights of children by affording them equal protection. Some 54 countries have prohibited physical punishment of children, and a further 56 have committed to reforming their laws to ban physical punishment in all settings.

The United Kingdom is one of only four EU states not to have legislated to prevent physical punishment of children. I am therefore proud that this Parliament is taking the first steps towards a brighter future for all our children. I fully support the principles of John Finnie’s bill.

Margaret Mitchell (Central Scotland) (Con)

I welcome the opportunity to speak in this debate on the Children (Equal Protection from Assault) (Scotland) Bill. The stage 1 report states that the purpose of the bill is

“to abolish the defence of reasonable chastisement, and drive a cultural change to discourage the use of physical punishment. The defence of reasonable chastisement can currently be used by parents and others caring for or in charge of children if they are prosecuted for assaulting a child. The defence allows for physical force to be used to discipline a child, with some restrictions set out in the Criminal Justice (Scotland) Act 2003, s.51.”

Although I do not for a second doubt the well-intentioned motivation of John Finnie in introducing the bill, or that of those who support it, the fact is that rather than driving cultural change and discouraging physical punishment, the bill will criminalise reasonable chastisement and the parents who do not rule it out as a measured and proportionate tool in the box, to use in certain circumstances, should they consider it to be appropriate, effective and necessary.

Alex Cole-Hamilton

Will the member give way?

Margaret Mitchell

I will give way for this intervention, but I want to develop the argument.

Alex Cole-Hamilton

Margaret Mitchell referenced use of a “proportionate tool” and the Criminal Justice (Scotland) Act 2003, which sets the limits of physical punishment to banning head shots, use of implements and shaking. That is it. Does she not recognise that that creates confusion and a grey area that will lead to parents harming their children quite significantly in deploying that resource?

Margaret Mitchell

The confusion in the debate—for which Alex Cole-Hamilton, too, is guilty—is to talk repeatedly about assault and assault of children without taking any cognisance of what determines assault in law. Christine Grahame made the point very effectively that it is about context, the circumstances and the relationship. By abolishing the defence of reasonable chastisement, that whole law of evidence is being turned on its head.

Supporters of the bill insist that criminalisation is not what the bill aims to achieve. Nonetheless, that will, without doubt, be a consequence of abolishing the defence. That cannot be dismissed or glossed over. Put simply, it is not satisfactory or acceptable to legislate for one outcome and to hope for another. Above all, the law must provide clarity.

John Finnie

Will the member take an intervention?

Margaret Mitchell

If John Finnie does not mind, I realise that I am speaking in the minority, so I want to develop this argument, which I think is worth listening to.

The Crown Office and Procurator Fiscal stated in a written response to the Equalities and Human Rights Committee that it is quite possible that the reporting of the assault that is described by the bill will increase through removal of the defence of reasonable chastisement, and through the increase in reporting that will result from the publicity and awareness raising that usually accompanies legislation.

The Crown Office has acknowledged that there is a lack of case law to determine when physical contact that is of an extremely minor physical nature could be considered to meet the public interest test on prosecution. However, we know that, under the bill’s provisions, cases are to be assessed individually, and that in order to establish whether there was criminal intent there will, at the very least, be a police investigation and a referral to the procurator fiscal, or even a criminal trial. A valid question to be posed is what will happen to the children when those investigations are in progress. Will they remain with their parents or be taken into care?

John Finnie rose—

Margaret Mitchell

If the latter is to be the case, that could, given the delays in the court process, result not just in a lengthy separation but in all the other well documented trauma-related adverse consequences that are suffered by children in care. However, if, as John Finnie has said,

“The bill’s intention is not to criminalise parents, but to set out a direction of travel about child welfare and child upbringing”—[Official Report, Equalities and Human Rights Committee, 28 March 2019; c 21.]

and to support children, it seems to me that there is a better way to move forward.

Language is important. In the bill, light and rare physical chastisement is equated to child abuse and is described as assault. That is emotive language that polarises opinion and stifles informed debate about how to achieve the best child welfare policies.

More generally, further work requires to be done regarding, on one hand, use of restraint and physical intervention by a parent to keep a child safe, and on the other, restraint in education and care settings, where the behaviour of certain groups of children can be challenging, and in which restraint is used in order to contain them, not to punish them.

I accept that in order to drive the cultural change to discourage use of physical intervention there needs to be more awareness and clarification of the existing law, of what constitutes “reasonable chastisement” and, crucially, of the parenting support that is available to families. As was mentioned by Angela Constance and James Dornan, if a parent has smacked a child due to loss of control or stress, surely the focus should be on ensuring that the necessary support is available to help them to cope, and not on issuing a police warning or prosecuting.

At present, the routes that the Scottish Government will utilise to communicate with parents are not clear. The best and most effective way forward is not to rush to legislate to ban the defence of reasonable chastisement, but to support the Equalities and Human Rights Committee’s request for an outline of how the Scottish Government intends to reach families who are not currently engaged with relevant services, and details of the support that will then be made available to them.

Richard Lyle (Uddingston and Bellshill) (SNP)

I remind the chamber that this is a member’s bill from the Scottish Green Party. Today, I will be out of step with the majority. So be it. The bill raises the spectre of good parents being criminalised for using mild chastisement, and police and social workers having to waste time investigating decent families when they should be focusing all their attention on identifying child abuse.

I am very much against parents hitting, slapping or abusing their kids. It is wrong. Rightly, we are all committed to protecting children from any violence. The law is very clear on the matter—it prohibits all violence against children. Section 51 of the Criminal Justice (Scotland) Act 2003 specifically outlaws shaking and the use of an implement.

Supporters of the bill claim that the UN Convention on the Rights of the Child compels us to ban smacking, but I do not see that in the text of the convention. Article 19 of the UNCRC states that children should be protected from violence, abuse and neglect. It seems to me that Scotland already fulfils its obligations under the convention and that our law is clear and progressive. I remind members that the law in this area was updated as recently as 2004. Back then, another proposal to criminalise smacking was abandoned in what the then cabinet secretary described as a victory for common sense. We are a very long way from days of yore, when parents could belt a child or use the underside of a slipper. Any adult who does that in Scotland today can expect to be punished severely by the courts, and rightly so.

The member’s bill concerns the defence of justifiable assault or reasonable chastisement. That defence allows parents to use a tap on the hand or a smack on the behind without being prosecuted. That is all it does. I am not aware of any evidence from the courts or the police that the law is ineffective or allows parents to use unreasonable force on their children. It will make a tap on the hand or the bottom a criminal offence, which is why the newspapers call it a smacking ban.

My children grew up in a loving environment. I am a grandfather of three beautiful grandchildren, whom I have the privilege of spending time with regularly. They are my life and my wife’s life. My time with them has made me realise that the bill could or would hurt families. It is not uncommon to see a parent or a grandparent giving a child a wee tap on the backside in public, even in a playful way.

I saw that happening as I waited to collect my grandson from primary school one day. A grandfather had his granddaughter in his arms, and he gave her a playful tap. The little girl was laughing but, from a distance, that could have looked like a smack, and it could have been reported to the police. What then? Someone could have reported that grandfather for what they mistakenly saw.

Supporters of the bill claim that the police will never prosecute those actions, but how can they be so sure? Under the legislation, smacking will be reported to the police, and the police will have to record that as a crime and investigate it. They might arrest a mum or a dad and question them, and that might mean getting a child in a room on their own and trying to get a statement from them against the mum or the dad. Under the legislation, the police and social services will be inundated with trivial reports, which they will have to treat as seriously as they currently consider abuse. I am sure that front-line professionals, who are already under great pressure, will not appreciate the additional workload, especially when resources are so stretched already.

Alison Johnstone (Lothian) (Green)

Will the member take an intervention?

Richard Lyle

No.

I wonder how the legislation will be misused in domestic circumstances when relationships between parents have broken down. Dishonest parents might accuse their spouse of smacking in order to prevent access to children. [Interruption.] That happens. Do not think that it will not happen, because it will.

It is clear to me and the majority of people whom I represent in the Uddingston and Bellshill constituency that the law in question is unnecessary. The polls that I have seen confirm that 74 per cent of people do not want a smacking ban, and I have received numerous emails from concerned constituents that confirm that.

With the greatest regret, in my 43 years in politics, I have sometimes had to stick up and stick to my guns, even against the tide. Even against the majority, I cannot lend my name to the bill and, in all conscience, I have to abstain. I hope that my reasons for doing so are not misunderstood or misinterpreted by anyone.

The Presiding Officer (Ken Macintosh)

Mike Rumbles will make a brief speech.

Mike Rumbles (North East Scotland) (LD)

I was not down to speak in this debate, but I want to respond to Annie Wells, Gordon Lindhurst and Margaret Mitchell in particular.

The issue was raised 16 years ago, when I was an MSP in the first session of Parliament. Like the members whom I mentioned, I was worried about criminalising good parents and—to my shame—I did not support the measure. I am now a convert to the cause, and I hope that my comments will reassure members such as Annie Wells, Gordon Lindhurst and Margaret Mitchell that their fears about criminalising parents are misplaced.

I changed my mind because of my experiences on the Health Committee in the second session of Parliament, in which we passed the ban on smoking in enclosed public places. We heard the same argument—that we would see a huge rise in prosecutions of previously law-abiding people.

Oliver Mundell

Will the member take an intervention?

Mike Rumbles

I have only one more minute.

That simply did not happen. Because of that, I do not believe for one moment that we will see previously law-abiding and loving parents being dragged into our courts. That will not happen.

Oliver Mundell

Will the member take an intervention?

Mike Rumbles

I have only one minute.

This is not about attacking the rights of good and loving parents or about the state telling parents how to bring up their children; it is about removing the defence in law of reasonable chastisement from people who are already likely to be in front of our courts. I say to members such as Annie Wells, Gordon Lindhurst and Richard Lyle that their worries are unfounded.

This member’s bill is about our Parliament doing its job. I gently remind Gordon Lindhurst that this is only the stage 1 debate and that the bill could not be amended before stages 2 and 3. I am therefore somewhat puzzled by his earlier comments.

Gordon Lindhurst

Will the member give way?

Mike Rumbles

Unfortunately, I cannot, as I have only 10 seconds left.

I speak as a convert on the issue. I urge those who are worried about the bill to engage with it at stages 2 and 3. I hope that, after our further scrutiny of it, they will see the sense of the measure, as I have done. I only wish that I had done so 16 years ago.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

It is a great pleasure to speak in the debate as a member of the committee that scrutinised the bill at stage 1 and as a former social worker. I, too, thank John Finnie for introducing the bill.

The bill is really simple for me to support. Its simple premise is to give children equal protection to that for adults. As we have heard from other members, it will remove an outdated defence that belongs firmly in history.

The Parliament has a strong track record of progressive legislation on, among other things, domestic abuse and children’s rights. It is about time that we joined the 54 countries that have been mentioned and removed the defence of reasonable chastisement.

As other members have said and as the committee heard, the vast majority of the agencies that spoke to the committee and contacted us are for the bill, which has strong support from Barnardo’s, Children 1st, Amnesty International and many other organisations. That in itself should tell us something. Those organisations support the bill because—to disagree with Tory members and some folk in my party—it is a no-brainer. If we were 20 years down the line, the proposal would be in secondary legislation, although I do not say that to diminish what Mr Finnie has introduced.

We know that physical punishment is harmful and can lead to aggressive behaviour; those points have been made well by others. The Tories have tried to make politics out of the situation—we heard that from Oliver Mundell and Annie Wells, who I mention because they are members of the committee but did not fully engage in the process. [Interruption.] They did not.

Annie Wells

Will the member take an intervention?

Liz Smith

Will the member take an intervention?

Fulton MacGregor

No.

Those members say that they are against violence against children, but they are not. They want to keep us in the deep past and they do not have the dignity even to alleviate the public’s genuine concerns.

Liz Smith

Will the member take an intervention?

Fulton MacGregor

I will not, because I have not been able to make one intervention today.

Some members, including Tory members, and some in the public have not heard all the evidence, so I will try to alleviate the fears that have been expressed, which Christine Grahame, Richard Lyle and others raised. The bill is not about the criminalisation of individuals. I was a children and families social worker for about 12 years from 2004. In considering the bill and my experience, I thought about what would happen now if a referral was made because of an allegation of an assault or smacking. Social work services and other agencies would investigate and take a measured welfare and support-based approach. If there was criminality to be considered, that would be dealt with through a joint investigative interview with the police, and a decision would then be made on whether to refer the case to the procurator fiscal, who decides on the public interest test.

The hypothetical situations in which parents would be criminalised for stopping their child running on the road are absolutely ridiculous. That would not happen now and will not happen if the bill is passed. Members should think of the process and the journey that would be required for that to happen. A child would need to say in school or in a health facility that their parent stopped them running on a road; the situation would then be investigated at that point of contact. [Interruption.] I see that Mr Mundell is laughing because he knows that that is true, because he is a member of the committee.

Oliver Mundell

Will the member take an intervention?

Fulton MacGregor

I apologise, but I will not.

Margaret Mitchell’s example of parents being suddenly criminalised was scaremongering.

Oliver Mundell

Will the member take an intervention?

Fulton MacGregor

No.

Social Work Scotland and Police Scotland told the committee that nothing would change—not a thing—and that referrals would be dealt with in exactly the same way as now. From my experience, I cannot mind once thinking about the defence being used. When I went out to family situations with colleagues, I thought about the support that was around and how to safeguard a family, but I never thought once about a family using the defence.

Any occasions when criminal proceedings were pursued were clear. I started in social work not long after the 2003 act was passed and I probably was not exactly clear about the legislation, which I think is the case for many practitioners. A main principle of John Finnie’s bill is to provide clarity for practitioners and parents. Most important, it will send a message about the country that we want to be.

The bill will make the law and processes clearer. Anyone who knows John Finnie and the committee members who are in favour of the bill will know that they can trust us. We have been through the committee process and we would never be in favour of the unnecessary criminalisation of parents, which is the last thing that is on our minds. The evidence from other countries is very clear that that would not be the case—in fact, far from it.

Make no doubt about it, the Tory policy is to degrade the rights of our children. Some people think that the bill is about state intervention. I say to those Tory colleagues of a more liberal standing and to my fellow SNP members who are thinking about voting against the bill to please not leave children with fewer rights in their own home than any adult or animal. Be assured that child support and protection processes in our country are robust and will not allow the fears that the right-wing fundamentalists on the Tory benches want us to believe. They say that people should not vote for the bill because they say that it is an assault on family life and child’s rights. That is not on. Please vote in favour of the bill’s principles at stage 1.

Iain Gray (East Lothian) (Lab)

We sometimes have debates in which there is a great amount of consensus, but that has not happened today. Interesting points have been made, and I will try to address some of them.

It is worth going back to the basics of why we are pursuing the legislation. There are two significant reasons of principle. The first is equal protection—indeed, “Equal Protection” is part of the bill’s title. As many colleagues have pointed out, the bill is not designed to create a new crime; rather, it would remove a defence that is available only when it comes to the chastisement of children. I think that it is difficult to get past the very simple statement that, if it is wrong to hit an adult, it must be wrong to hit a child. Mary Fee gave an example of a carer assaulting a vulnerable adult under their care. It seems clear that that is wrong; it is also very difficult to see why that would be right if that was a vulnerable child rather than a vulnerable adult.

Secondly, there is the principle of rights. A number of members have spoken about the rights basis for the legislation. Indeed, we know that the Government has committed to the incorporation of the UNCRC into our legislation. In 2016, Scottish Labour also promised in its manifesto to do that, so we support that measure.

Ross Greer and Gail Ross have clearly articulated that our current legislation breaches article 19 of the UNCRC. I know that Richard Lyle took issue with that, but I think that the expert opinion that the committee heard is that article 19 has been breached.

Those are two very strong reasons why we need the legislation.

Oliver Mundell

I hear what the member is saying about article 19, but does he not recognise that it is important to put that question to the Lord Advocate before we can say that definitively?

Iain Gray

I am absolutely sure that that opportunity will be taken during this legislative process, and that the point that I have just made and Richard Lyle’s earlier point will be fully considered.

It is fair to say that a number of significant concerns have been expressed across the chamber. One concern is that parents would be criminalised, and we have heard about a number of hypothetical injustices relating to situations in which that would happen, but surely the strongest evidence is what has happened in countries that have introduced legislation similar to John Finnie’s bill, notably Ireland and New Zealand. In those countries, there has been no sudden criminalisation of thousands of parents.

We have also heard the concern that the police will be inundated with cases. Again, in those two countries, that has not happened. In addition, we see in the committee report that, in their evidence to the committee, the police and the Crown Office and Procurator Fiscal Service did not consider that they would be inundated by reports arising from such a change in the legislation.

Oliver Mundell talked about the restriction of parental rights and discretion; some of his colleagues raised similar issues, including to do with the right to family life. The fact of the matter is that we already restrict parental rights and discretion—of course we do.

Oliver Mundell

Will the member take an intervention?

Iain Gray

No—I am short of time.

The right to family life is not an absolute right but a qualified one. As a number of members have pointed out, it is not protected to the extent that domestic violence within a family is allowed; it is not, because we consider such violence to be unacceptable.

The minister made the point that she supports the legislation, and the Government supports the bill because of its desire to make Scotland the best country in which to be a child. While that is a laudable objective, I have to say that if we want it to be true, we should not fool ourselves into thinking that passing the bill will achieve it. Only last week, we heard that 240,000 children in our country live in poverty. The Poverty and Inequality Commission has spoken of the failure of Government spending to address that. In a similar report, the Institute for Public Policy Research has spoken of the importance of fast-tracking the income supplement, on which the Government is dragging its feet. We should not kid ourselves that by passing this legislation, we will resolve all the difficulties and challenges that children in our country face today.

Some members have spoken about the last attempt to make a similar change, which was back in 2002. I was here at that time, and I believe that attitudes have changed significantly since then—Mike Rumbles’s attitude has changed, for one, and those of the public and civic Scotland have changed very much. Others have talked about the banning of the belt. When I look at a belt now, I cannot believe that, when I was a teacher, children as young as my own grandchildren were being hit by a Lochgelly tawse, which is a pretty big instrument made of leather. When that ban came in, people thought that it was going to cause all sorts of difficulties, yet it did not. Attitudes change over time. However, Ross Greer reminded us that that ban happened only because Grace Campbell went to court. We should change this law before we are forced to do so by a court.

Liz Smith (Mid Scotland and Fife) (Con)

In recent weeks, political commentators have, quite rightly, observed that the 20th anniversary of this place affords us the opportunity to examine how well we do things, and whether we are delivering effective legislation to improve the lives of those whom it is designed to assist. They reflect that such an anniversary is a time to consider what we have got right or wrong, examine our parliamentary procedures and assess whether our political system is sufficiently robust as far as passing good legislation is concerned. I am grateful to Christine Grahame for her very interesting remarks about her earlier time in the Parliament, particularly in flagging up what has to be done in order to make good legislation. She spoke about the Domestic Abuse (Scotland) Bill and the facts that had to be put before the Parliament before we could agree to take action on that issue.

Good legislation must be clear and uncomplicated; based on fairness and maximising the common good; acceptable to the public, who must see it as both useful and beneficial; and, as far as possible, easily enforceable and not open to constant debates about its repeal. Like Margaret Mitchell, I do not doubt for a minute the good intentions of this bill’s promoter, but many of us in the chamber—and not just on the Conservative benches—have grave reservations about what we have before us. That is not just because it does not meet the tests for good legislation, but because it has exposed—

Alex Cole-Hamilton

Will the member take an intervention?

Liz Smith

I will not just now, if the member does not mind.

It is also because the bill has exposed failings in some aspects of parliamentary procedure, especially when it comes to laying the necessary evidence before Parliament, about which I will say more later.

Fulton MacGregor might wish to revise his earlier remarks. To criticise members of the Parliament because he believes that they have not taken due process into consideration is, quite frankly, a disgrace and undermines the respect that each member must show to others here.

As my Conservative colleagues have argued, the fundamental failing of the bill is its single proposal to classify reasonable chastisement as assault. Various members have tried to argue that the two can be classified in the same way. I simply do not accept that—and neither does the law. The bill also represents the unnecessary and unwanted transfer of power away from parents and the family to the state—and we know what the reaction of the vast majority of parents has been to that.

Whatever the bill’s proponents might like to argue, it will remove parental discretion and create the scope to criminalise parents’ actions if they administer a mild smack. That cannot be right, and it no doubt explains why so many parents oppose the bill. Nor is there any necessary clarity in the bill, because it is not supported by any evidence—including any conclusive evidence from other countries—that proves that it will make children safer. Indeed, the bill is so weak because of the grey areas that it contains, most of them resulting from the completely mistaken view that reasonable chastisement equals assault.

For example, are we really saying that when a parent administers a mild smack to a small child for safety reasons, to ensure that he or she does not touch an electric plug, they will be reported as having committed an assault? That is an open-ended question.

John Finnie

Will the member give way?

Fulton MacGregor

Will the member give way?

Liz Smith

I am interested in Mr Finnie’s view about that open-ended question, which—as the Crown Office acknowledges—creates confusion, misunderstanding and unnecessary additional anxiety for the parent.

John Finnie

Liz Smith assumes that the individuals who make decisions about children every day will suddenly suspend all the knowledge that they have applied thus far in relation to this issue—that is not the case.

Is Liz Smith in a position to tell the chamber when she thinks it is appropriate to commence chastising children? At what age is it reasonable to start hitting a child?

Liz Smith

I am perfectly happy with the current law, because I do not believe that anybody has provided the evidence to explain the bad aspect of the current law.

I refer to what Christine Grahame and Mike Rumbles said about the original legislation that we considered in 2002 and 2003, when we debated the issue for a long time. I will come on to what Jim Wallace said during that debate. First, however, my good friend, the late David McLetchie, made the point that

“The Scottish Parliament should learn to leave well alone and resist the temptation to interfere and legislate at every turn when it is unnecessary to do so”.—[Official Report, 18 September 2002; c 10822.]

Jim Wallace, who proposed the bill, accepted that it would not introduce any protections against actions that could not reasonably be dealt with by the courts—and the same remains true today. That is the fundamental problem with Mr Finnie’s bill. It is not supported by evidence that additional protections are required. There is no evidence.

Patrick Harvie (Glasgow) (Green)

I am grateful to Liz Smith for giving way. I have tried to listen as closely as I can to those who do not support the bill. However, they all seem to have avoided one question: if they are right, why are the voices of children’s rights organisations so clearly behind the bill? Why, if so many people whose professional expertise is in children’s rights and wellbeing support the bill, do only the Conservatives have it right?

Liz Smith

Has Patrick Harvie listened to the opinion polls among parents? Those are the very people who, through their actions, would potentially be made into criminals by the scope of the bill. That is the problem.

I understand that many charities have spoken in favour of the bill. However, many parents across Scotland have taken the complete opposite view, which tells as much of a story as those who support it.

The remarks at the beginning of my speech were about the legacy of this Parliament after 20 years, and the question whether we can take pride in passing good legislation. As things stand, this bill—just as was the case with the deeply troubled named person legislation—is very wide of the mark on meeting the key tests that underpin good legislation. Just like the named person legislation, it does not have the support of the public.

Alex Cole-Hamilton

It is incomparable with the named person legislation.

Liz Smith

It is not incomparable. That is because it is unnecessary interference, and because it is unworkable.

I am also deeply troubled about the bill because of the manner in which it has so far been scrutinised, which has exposed fundamental weaknesses. I hope that you will agree, Presiding Officer, that it is entirely wrong that the stage 1 debate on the bill is happening prior to crucial legal opinion having been placed before the Parliament.

As a longer-serving member of this Parliament, I am frankly astonished that it has been seen as acceptable to proceed to stage 1 without the Lord Advocate having appeared before the committee to answer questions on the bill, and without the point of order that was raised by my colleague Oliver Mundell on 15 May having been properly addressed. Together with the fundamental failings of the bill, that is why I will certainly not support it at the end of today.

Maree Todd

I am grateful to those members who have contributed to the debate, and I will address some of the specific points that have been raised.

On the issue of criminalisation of parents, in other jurisdictions that have implemented similar legislation, there has not been a significant increase in prosecutions. We expect that to be repeated in Scotland. In Ireland and New Zealand, the change in law was similar to that proposed in Mr Finnie’s bill—

Oliver Mundell

Will the minister take an intervention?

Maree Todd

No, I will not take an intervention. I am sorry, but I wish to respond to a number of issues that have been raised during the debate, so there will be limited time for me to take interventions. Mr Mundell had multiple opportunities to intervene during my opening speech, and I hope to answer all the issues that have been raised during the debate in my closing speech.

In Ireland and New Zealand, the change in law was similar to that proposed in Mr Finnie’s bill—the removal of a defence—and neither country has seen a significant increase in prosecutions. In New Zealand, there were just eight prosecutions in the five-year period after the law came into force, and the committee heard that, in Ireland, the Office of the Director of Public Prosecutions

“has found no evidence of any increase in the number of prosecutions.”—[Official Report, Equalities and Human Rights Committee, 21 March 2019; c 12.]

Of course, the approach in other countries varies, as legal systems and approaches vary. Nevertheless, the point is that physical punishment is wrong. The bill fits the legal system in Scotland.

Members have asked whether the bill criminalises smacking. As the Crown Office and Procurator Fiscal Service said to the committee in its supplementary submission:

“The Bill, as currently drafted, removes a defence to behaviour which otherwise falls within the scope of the common law crime of assault, rather than creating a new crime. The practical effect of that would be that some acts carried out as physical punishment, which may be commonly referred to as ‘smacking’, would no longer benefit from the defence of reasonable chastisement and would fall to be considered in terms of the law of assault as it applies generally.”

What is the approach to prosecutions? Decisions on prosecutions in individual cases are entirely a matter for the Crown Office, acting under the direction of the Lord Advocate. Similarly, it is for the Lord Advocate alone to consider whether guidelines in relation to prosecution will be drafted and published. The Crown Office prosecution code sets out the test that prosecutors apply when deciding whether to take prosecutorial action.

Richard Lyle raised the issue of unnecessary action being taken by the police and the Crown Office and Procurator Fiscal Service in trivial cases. The written evidence makes it absolutely clear that professional prosecution will follow the Scottish prosecution code, as it does now.

Oliver Mundell

Will the minister take an intervention?

Maree Todd

Can I please address the issues that were raised during the debate?

Oliver Mundell

The minister is making new points.

The Presiding Officer

Please continue, minister.

Maree Todd

First, prosecutors must establish whether any report that is received discloses a crime that is

“known to the law of Scotland”.

Secondly, prosecutors assess whether there is

“sufficient admissible, reliable and credible evidence”

that the offence was committed and that it was the accused person who committed it. Finally, prosecutors consider what action, if any, best serves “the public interest”. In doing so, the Crown Office takes into account a range of applicable criteria, such as:

“The nature and gravity of the offence ... The impact of the offence on the victim ... The ... personal circumstances of the accused ... The attitude of the victim ... The age of the offence ... Mitigating circumstances ... The effect of prosecution on the accused ... The risk of further offending”

and considerations relating to “public concern”. The Scottish Government considers that the main aim of the bill is to make it clear that the physical punishment of children is wrong, rather than to criminalise parents.

With regard to clarity in the law, as Rona Mackay said, the committee heard that, in Ireland, different civil society organisations and state agencies are positive about the clarity that was brought by the change in the law, and social workers have better relationships with parents because they can provide clear advice. That does not fit with the spectre that is being raised of a huge number of increased concerns and overburdened people having to respond to minor issues. It echoes the evidence that the committee received from Social Work Scotland, Barnardo’s Scotland, the NSPCC in Scotland, Children 1st, the Royal College of Paediatrics and Child Health, Parenting Across Scotland and the Law Society of Scotland. There is broad civic support for this change in legislation. All of those organisations agree that the bill will bring clarity to the law.

As a number of contributors, including Rhoda Grant, said, the bill will remove the judgment around how my reasonableness compares with that of others. It will send a clear message that the physical punishment of children is unacceptable. It is a clear message to society that clarifies the law. As the Crown Office put it, the common-law crime of assault is well understood and widely used to prosecute offending in courts across Scotland, resulting in a large number of convictions each year. The Crown Office added:

“The Bill proposes to remove this defence which means that the legal situation would be simplified and children would receive the same protection from assault as adults.”

Gordon Lindhurst said that the Lord Advocate had not given evidence, but I have to correct that. The Crown Office and Procurator Fiscal Service gave detailed written evidence to the committee. Gordon Lindhurst also said that the bill tells parents how to parent. It does not. It makes it absolutely clear that parents will still have a range of positive techniques at their disposal when disciplining their children.

On the issue of interference with family life, we are not aware of any international treaty provision that gives parents the right to physically punish their children. We note that the committee came to the same conclusion in paragraph 95 of its stage 1 report.

Murdo Fraser—I think—asked why the physical punishment of children is different from all the other forms of discipline that might be used, such as the removal of privileges and the naughty step. Let me be clear: the difference is that there is a solid body of evidence that physical punishment is harmful. I remind members that the bill is supported by the Faculty of Public Health and the Royal College of Paediatrics and Child Health. There is even a statement opposing physical punishment from the American Academy of Pediatrics.

I will read the evidence that the Royal College of General Practitioners gave during the passage of the Welsh bill:

“The balance of evidence seems sufficiently clear and compelling to inform us that parental use of physical punishment of children plays no useful role in their upbringing and poses only risks to their development.”

That is from the Royal College of General Practitioners—scientists who are used to assessing the quality of the evidence that is available to them and coming up with advice to the people whom they serve.

Liz Smith

Will the minister give way?

The Presiding Officer

The minister needs to conclude, please.

Maree Todd

I again thank the committee for its consideration of the bill, and I thank Mr Finnie for taking it forward. I urge members to support the general principles of the bill.

John Finnie

I thank all those members who have participated in what has been an interesting debate. It started with the committee convener talking about the committee’s ambitious programme of engagement. I had forgotten about the snowstorm; it is commendable that people went to share their views with us. Mòran taing to all the kids at bun-sgoil Ghàidhlig Phort Righ.

The convener talked about a rights-based approach and said that the deliberations were about children being at the core. We forget at our peril that that is what the bill is about.

There was also early mention by the convener of a conflict of rights. We have made a clear statement that stopping the physical punishment of children does not interfere with the right to family life. The point about holding our children and keeping them safe was a good phrase in that speech.

The minister followed that speech by citing the evidence and talking about the work that the Scottish Government is doing to make Scotland the best place for children to grow up in. The concept of reasonable chastisement is antiquated and at odds with that aim, and I certainly share that view. I also share the minister’s view that there should be the same legal protection for all individuals, regardless of their size.

There was much speculation about the public interest test, and I tried to intervene. There is little mystery about it. Indeed, it is covered in the explanatory notes, as are a lot of the points that were raised. In paragraph 13, on page 3, footnote 6 provides a link to the web page that explains all the factors that are taken into account. Nothing will change in relation to the public interest test.

The next contribution came from my good friend and colleague Mary Fee, who gave—as ever—an excellent speech. She cited the example of adults with a learning disability and what the public reaction would be if they were subjected to assault, giving the clear statement that assault is assault. That is unequivocal. Another important point that Mary Fee made was that the Parliament is a guarantor of human rights. That is absolutely clear. There is an imbalance at the moment, as Mary Fee rightly identified, and the bill will be part of a culture change.

My colleague Ross Greer gave a comprehensive résumé of the rights and shortcomings that exist. Those are acknowledged by the Scottish Government. Indeed, they were acknowledged by the Equalities and Human Rights Committee, which commended the approach for the incorporation of the UNCRC. I share Ross Greer’s view that the human rights task group’s findings must be acted on. “You just do not hit children” is a good statement. Ross Greer was brave to talk about personal faith, and I appreciate the faith groups’ contribution to the debate. I am particularly grateful to those that lend their support to the bill, not least the Quakers and the Church of Scotland. We are rights holders in the Parliament and we need to do that.

The next speaker was Mr Cole-Hamilton. I acknowledge his support throughout, the advice that he has generously shared with me and his long-standing commitment to the cause, which predates many of ours. His father’s face is in my thoughts at the moment, given the retribution that he took on his father. He is right to say that there is an international imperative.

Mr Cole-Hamilton also made the first substantive mention of the police. Chief Superintendent McKenzie gave compelling evidence to the committee, explaining—along with his colleagues from social work who were sitting by his side—what happens at the moment: the shared work that takes place, the interest of the child being at the forefront of deliberations and the public interest being a factor. He explained that nothing would change—that, if anything, greater clarity would be provided. “No right to hit” was a phrase that Mr Cole-Hamilton used.

I will not have time to cover everyone’s contribution, but Angela Constance made another excellent speech. Yes, I was a police officer, which might surprise some people. I was struck as a child and I struck my children, but we are all the richer if we learn from our experience, and that is what it is. The unfolding evidence of the damage is irrefutable. The phrase “It never harmed me”—

Liam Kerr

Will the member take an intervention?

John Finnie

Yes, I will.

Liam Kerr

My colleague Liz Smith raised some important procedural points. Will the member come back on the points that Liz Smith raised?

John Finnie

If this is about accusations and what would happen, I can say that nothing would happen differently.

Liam Kerr

It is about the evidence.

John Finnie

I do not feel that it is for me to comment on that. Members’ views have been shared with the Presiding Officer. Unlike some committee members, I attended every evidence session, and we heard compelling and comprehensive evidence. I did not hear any attempt to stop our hearing evidence. There were also a significant number of written submissions.

Alex Cole-Hamilton

I can clarify that the committee went to great lengths to encourage representations from groups that are opposed to the bill and from the Crown Office and the Lord Advocate, with both submitting written evidence. I agree with the member that the evidence that the committee received was as comprehensive as it could be.

John Finnie

Annie Wells talked about legal clarity. It was not apparent to me that she had taken on board all the information that was available—she was certainly not at all the evidence sessions that I was at.

Rona Mackay was the next speaker, and she talked about learned behaviour, which is a significant factor.

How long do I have left, Presiding Officer?

The Presiding Officer

You can have two minutes, Mr Finnie, if you want.

John Finnie

Thank you.

Likewise, Rhoda Grant made a powerful speech in which she talked about verbal assault. We know that there are checks and balances in the system, which gives reassurance.

Gail Ross spoke about the incorporation of rights, the baby box and the general direction of travel.

I have to say that Mr Lindhurst, who would not take an intervention and who is clearly the Tories’ aspirant legal shock jock, was way off the mark.

Claire Baker said that she was convinced that children need equal protection and mentioned the work of Scott Barrie in a previous session, which is to be commended. She was right to say that this is “unfinished business”.

James Dornan gave an excellent speech, and I am grateful to my colleague Mike Rumbles. It was courageous of him to say that he has changed his mind on the basis of the evidence that has been received.

That evidence has been overwhelming. It suggests that the physical punishment of children is ineffective and potentially has long-term effects. We know that young people support the proposed change, as do practitioners: the police, social work, health professionals and legal professionals. The children’s charities support it, along with members of all five parties in the chamber. It is time to give children equal protection.

The Presiding Officer (Ken Macintosh)

There is one question to be put. The question is, that motion S5M-17342, in the name of John Finnie, on the Children (Equal Protection from Assault) (Scotland) Bill, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

Abstentions

Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)

The Presiding Officer

The result of the division is: For 80, Against 29, Abstentions 2.

Motion agreed to,

That the Parliament agrees to the general principles of the Children (Equal Protection from Assault) (Scotland) Bill.

The Convener

Agenda item 2 is the Children (Equal Protection from Assault) (Scotland) Bill. I welcome the Lord Advocate, James Wolffe QC, and Anne Marie Hicks, the national procurator fiscal for domestic abuse at the Crown Office and Procurator Fiscal Service. Good morning—you are both very welcome. I invite the Lord Advocate to make an opening statement of up to five minutes, please.

The Lord Advocate (Rt Hon James Wolffe)

Thank you, convener. I am grateful for the invitation to give evidence again to the committee, as head of the system for the investigation and prosecution of crime in Scotland, and to supplement the written evidence that you have already received from the Crown Office and Procurator Fiscal Service.

The bill that you have under consideration will simplify the law by removing from the law of assault the defence of reasonable chastisement and by repealing section 51 of the Criminal Justice (Scotland) Act 2003, which restricts the scope of that defence. It is worth being clear at the outset that, as the law stands, parents do not have an unqualified right to smack or chastise a child. Subject to the defence of reasonable chastisement, an assault by a parent on a child is a criminal offence. Allegations that a parent has assaulted their child are investigated by the police and reported to the Crown and may be, and are, prosecuted.

When considering any report of an alleged crime, the prosecutor must address two things: first, whether there is sufficient admissible, credible and reliable evidence that the accused has committed a crime known to the law of Scotland; and, secondly, if there is sufficient evidence, what action if any would be in the public interest. Those considerations apply to an allegation that a parent has assaulted their child, just as they apply in any other case.

The Scottish prosecution code sets out the factors that may, depending on the circumstances, be relevant in assessing the public interest. Those include the nature and gravity of the offence; the impact of the offence on the victim and other witnesses; the age, background and personal circumstances of the accused; the age and personal circumstances of the victim and other witnesses; the attitude of the victim; the motive for the crime; the age of the offence; mitigating circumstances; the effect of the prosecution on the accused; and the risk of further offending.

The code points out that the actions that are available to prosecutors are not limited to prosecution. They include diversion, a formal warning and various direct measures that a prosecutor may offer as an alternative to prosecution. In appropriate circumstances, it may be in the public interest to take no action. Making decisions within the framework of the Scottish prosecution code is part of the daily work of professional prosecutors. If the bill is passed, cases that are reported to the procurator fiscal will continue to be assessed by reference to the two tests that I have mentioned: whether there is sufficient evidence in law that the accused has committed a crime and, if so, what action would be in the public interest.

Repeal of the defence of reasonable chastisement would not mean that the prosecutor would ignore the special features of the relationship between parent and child. Those features will be present in any consideration of the public interest. For example, they will be present in consideration of the context and circumstances of the alleged offence, the impact on the victim, the circumstances of the accused and the effect of a prosecution on the accused and the victim. Paragraph 40 of the United Nations Convention on the Rights of the Child general comment 8, of 2006, reminds us that,

“While all reports of violence against children should be appropriately investigated”,

it does not follow that all cases that come to light should be prosecuted.

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. When appropriate, that response may include the use of informal response by the police, recorded police warnings, diversion and other alternatives to prosecution. At the same time, prosecution will be enabled when that is properly justified by reference to the circumstances of the individual case. The approach will be informed by our responsibility to protect children from harm and by a consideration of the best interests of the child.

I am confident that if the bill is enacted, Scotland’s prosecutors will continue—as they do today—to apply sound and responsible judgment to the cases that are reported to them in a way that is consistent with the values that underpin all prosecutorial decision making: impartiality, thoroughness, integrity, sensitivity and professionalism.

The Convener

Thank you. That was very helpful. We will move to questions.

Oliver Mundell (Dumfriesshire) (Con)

I put on record my thanks to the Lord Advocate for attending the meeting. I am pleased to hear that Lord Advocate’s guidance will be issued in the event that the bill is passed.

You mentioned the legal relationship between parents and children. Would you go as far as to recognise that that relationship is different and distinct from that between two adults, even when those two adults are connected?

The Lord Advocate

One of the things that one learns as a prosecutor is that every case must be considered on its individual facts and circumstances. In all the decision making that prosecutors undertake, they must look carefully at the specifics of particular facts and circumstances. When one is dealing with a case involving an alleged assault by a parent on a child, the fact that one is dealing with a parent and a child is one of the circumstances that must be considered.

As the statistics show, we see assaults by parents on children. When a parent assaults a child and the public interest justifies it, that case will be prosecuted.

Oliver Mundell

I am asking whether it is recognised in law that the relationship between parents and children is different from the relationship between two adults. Is it correct to say that that difference is recognised?

The Lord Advocate

There are legal aspects of the relationship that are particular to that relationship, and the factual context is different from that in other relationships.

Oliver Mundell

I am interested in what responsibilities the law places on parents and what rights they can exercise in relation to their children.

The Lord Advocate

I do not think that it would be right for me to give you a general exegesis on the law of parent and child. We are in a context in which parents have responsibilities in relation to their children; they also have certain rights, with a view to promoting those responsibilities.

Prosecutors will look at what the evidence is in any given case and whether it supports the conclusion that a crime has been committed. If a crime has been committed, they will look at the particular circumstances of the case in determining what action it is appropriate to take in response.

The Convener

A couple of colleagues would like to follow up on that specific point.

Oliver Mundell

I have one more question on the same point.

Do prosecutors take parents’ statutory rights and responsibilities into consideration—which involves looking across different pieces of legislation—when they decide whether it is in the public interest to prosecute?

The Lord Advocate

The responsibilities of parents for the upbringing of their children do not justify parents committing crimes against their children.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Good morning. I want to follow up on Oliver Mundell’s line of questioning. I think that he was trying to bottom out where in statute the relationship between parent and child is defined. During my speech in the stage 1 debate on the bill, Murdo Fraser intervened to make the point that, if parenting techniques were to be applied to another adult—for example, if an adult was grounded or had something that they valued removed as a sanction—that would be seen as abusive or inappropriate.

If a person has a duty of care for someone who is in their charge, such as that which a parent has to their child, the same could be said for the duty to an elder relative with Alzheimer’s who has a mental capacity of a three-year-old and who is looked after. Is there a legal framework for the rights and responsibilities of people who have a duty of care? If so, is it different for people who care for their children and people who care for adults who have incapacity?

The Lord Advocate

As a generality, the legal framework differs. As a prosecutor, one is looking at whether the evidence discloses a crime that is known to the law of Scotland. In this context, that crime would be an assault: an attack on the person of another with deliberate intent. If that is what the evidence discloses, what does the public interest demand by way of response? Into that latter public interest question, all the relevant facts and circumstances of any case, whether it involves a parent and child or a vulnerable older person, would be taken into consideration.

Alex Cole-Hamilton

Something that has come up time and again in our consideration of the bill at stage 1 is the slight incongruity that an adult who is responsible for a child and an adult who is responsible for an adult who has a mental age of a child work within different parameters. We would not believe for a minute that an adult could exercise the defence of reasonable chastisement if they sanctioned an adult with the mental age of three. Is that incongruous?

The Lord Advocate

It is the current state of the law. The committee is considering whether the law should be changed. Prosecutors work within the law as Parliament lays it down from time to time.

Rhoda Grant (Highlands and Islands) (Lab)

You have mentioned that parents are currently charged with assault and prosecuted for it. Is the defence of reasonable chastisement used or are those offences so severe that nobody could use the defence?

The Lord Advocate

Prosecutors already see a wide range of offences. I asked for some illustrations and have been given examples that range from cases that were ultimately dealt with by a decision to take no further action, although prosecutors were satisfied that there was an assault in law, and cases in which options other than prosecution were taken, all the way up to some of the most serious cases that we see.

It may be important to separate out the stages of investigation and prosecution. Under the current law, of course, a case of an assault on a child would require to be investigated in order to assess whether, in all the facts and circumstances, that defence could properly be made out. I do not have any statistical information on the incidence of reliance on the defence by accused persons in those cases or, indeed, in the context of prosecutorial decision making. Anne Marie Hicks may like to add something from her experience.

Anne Marie Hicks (Crown Office and Procurator Fiscal Service)

Although it is easier for us to find the cases that involve an assault on a child by a parent or someone with carer charge of a child, it is not necessarily easy from that to see the cases in which someone may have tried to assert that defence. Certainly, in quite a number of the cases that we have had, the incident occurred in the context of an assault by way of punishment for something that they perceived that the child had done wrong. In one case, someone thought the child had been lying or had come home late; in another, they thought that the child had stolen money from a purse.

Clearly, a range of cases is reported to us; some involve direct violence without a punishment element, but there are definitely others in which the account given indicates that what happened was punishment for something that it had been deemed the child had done wrong.

Oliver Mundell

Is there any public interest in prosecuting a parent for smacking or physically punishing their child where there are no child welfare concerns and where the action clearly did not result in any lasting pain? Could tests be put into the bill or set out in guidance to make it absolutely clear to parents what you feel amounts to criminal intent?

The Lord Advocate

As I said a few moments ago, in this and in many contexts, there is no substitute for paying very close attention to the facts of particular cases. Conduct that in one context might look relatively trivial or minor might, in another, carry much more serious significance. I am not trying to be unhelpful in not being drawn on responding to particular scenarios, but what I can say is that the kinds of considerations that you have mentioned will be taken into account by prosecutors when they look at a particular case.

Going back to my opening remarks, I would point out that among the considerations and factors that prosecutors will need to consider will be the question of our responsibility to protect children from harm and a recognition of the need to take the child’s best interests into account in the round. As for the Lord Advocate’s guidelines that I am minded to issue to the chief constable and which we are currently discussing with the police, I anticipate that they will seek to articulate the considerations that the police may have regard to in deciding whether it would be necessary to report a particular case to the fiscal instead of taking other action.

Oliver Mundell

I ask this with all due respect, but when Parliament chooses to legislate for things and put them in statute, is it not normal to at least put some parameters or tests into that legislation, as we saw with the domestic abuse legislation? If you feel that there is a need for guidance or to set out some of these tests for the police, is it not better to have in the bill a broad provision relating to the best interests of the child? Would that not make more legislative sense, make things clearer for parents and the police and make the legislation easier for you to operate?

The Lord Advocate

The premise of your question is that the law of assault is unclear, but I would point out that it is applied day and daily by police officers and prosecutors. There is not a problem with the clarity of the law. At the same time, though, a case could be made that removing the defence with the qualification that currently applies would increase that clarity.

As for the framing of guidelines, I issue Lord Advocate’s guidelines to the police on a number of matters. For example, I have defined the framework within which the police may issue recorded police warnings by giving instructions as to when cases must be reported. There is therefore nothing particularly novel or unusual in giving a framework within which the police may act.

I should say that it is a feature of our law that the police are not obliged to report every crime—they report within parameters that I lay down—and prosecutors are not obliged to prosecute every crime. The responsibility of the prosecutors is to take the action that is appropriate in the public interest in any given case.

The Convener

I see that you would like to ask a further question, Mr Mundell, but a couple of people would like to ask supplementary questions. I will let you back in after that.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I welcome the report that you have provided to the committee. It will be helpful to our stage 1 deliberations.

I would like to tease something out, based on what you have said in your opening statements and some of your answers to Oliver Mundell. With regard to an allegation that a child has been smacked or has had physical force used on them, what would be the difference for your team the day after the legislation came into effect compared with the day before?

The Lord Advocate

Let us start with the question of investigation. For something to happen, the matter must be brought to the attention of the police and the authorities. If an allegation is made today that a parent has assaulted a child, the police will require to investigate that. They will do that within the framework of the current legal regime. They will, in appropriate circumstances, report that to the procurator fiscal, who will assess the evidence that is available and determine whether there is evidence in law that a crime has been committed. If the procurator fiscal finds that there is, they will then ask what is in the public interest.

After the bill is passed, those processes will be the same. The one thing that will be different is that the qualified defence that is currently available to the allegation of assault will not be part of the law and, therefore, would not form part of the analysis of the legal question that police officers and, ultimately, prosecutors would have to ask themselves.

Anne Marie Hicks might have something to say, based on her experience.

Anne Marie Hicks

Obviously, as the Lord Advocate said, cases that are reported today would still be reported. The key difference is that, at the moment, that defence is available. It is only an available defence; it is not a barrier to cases being prosecuted. Section 51 of the 2003 act sets out factors for the court to consider. The court considers all of those factors and people are convicted in cases in which the circumstances merit it and the defence is not made out. In a sense, the bill simply provides clarity that that defence no longer applies in relation to the use of physical violence as a form of punishment on children. At the moment, that defence might apply or might not, depending on whether the test of the defence is made out.

Fulton MacGregor

I do not know whether you have seen the stage 1 evidence that we have received from Social Work Scotland and Police Scotland, but both those organisations said that they did not think that there would be any change to the way in which they dealt with the process after the law was passed. Do you recognise the view of the police in that regard?

Anne Marie Hicks

In relation to the child protection work that they do, the police have an obligation to investigate any concerns that are brought to their attention about a child. That happens today, it will happen tomorrow and if the bill is passed, it will happen then. If there is evidence of a crime, they will report it.

Obviously, as prosecutors, if there were an available defence of reasonable chastisement or justifiable assault, we would have to consider that as part of our considerations. If that is no longer a defence, that will not be a factor. However, the same public interest considerations would still apply, and we will continue to take account of a lot of the considerations in terms of the defence that exist at the moment, which concern the nature and the gravity of the offence and all the surrounding contexts and circumstances.

Alex Cole-Hamilton

I would like to explore the issue of Lord Advocate’s guidelines. I have come across them once before—it was in my previous professional capacity, when your predecessor issued guidelines on the criminalisation of victims of human trafficking who were coerced into committing criminal acts. On that occasion, we came up against the guidelines because they had not been adhered to by the police, and young people who were victims of trafficking had ended up in Polmont despite the guidelines from your predecessor.

With regard to the bill, when do you anticipate that you will issue guidelines? How will they be disseminated to your coppers on the ground, as it were?

The Lord Advocate

As I said, 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. I do not know whether Anne Marie Hicks wants to add anything.

Anne Marie Hicks

We will now have to work with the police on agreeing the content of any guidelines, and then it will be a matter for the police to incorporate them.

Alex Cole-Hamilton

Do you adapt guidelines over time if you ascertain that they are not working properly, or there have been too many prosecutions, or too few? In such cases, do you move guidelines or change them in any way?

The Lord Advocate

I have the power under statute to issue instructions to the chief constable in relation to the reporting of crime, and these matters are kept under review. I do not recognise the idea of there being too many or too few prosecutions. That is not the way that we think about the job that we require to do.

Anne Marie Hicks

A good example is the Lord Advocate’s issued guidelines on liberation. They were amended in the light of the Criminal Justice (Scotland) Act 2016, which introduced new provisions on liberation on undertaking and investigative liberation. The guidelines were updated to take account of that. That is the normal practice that we would adopt.

Alison Harris (Central Scotland) (Con)

I have been listening with interest this morning, and I would like to ask you a couple of questions. During the stage 1 debate, Maree Todd said:

“I assure members that our intention is not to criminalise parents”.—[Official Report, 28 May 2019; c 15.]

Does that intention have any legal force? Would it be, in your view, fair to say that that is a foreseeable outcome and consequence of the bill?

The Lord Advocate

From a prosecutorial point of view, the law is whatever Parliament enacts. We look to the law as it is in common law and in statute.

It is perhaps important to keep in mind that, at present, it is a crime for a parent to assault a child. As I said in my introduction, the law currently treats as criminal parents who assault their children. A qualified defence of reasonable chastisement is currently available, which will no longer be available to parents who assault their children if the bill is passed.

Alison Harris

Can I try to drill down into that? I appreciate that there is the reasonable chastisement element. Does the bill not have potential to criminalise loving and caring parents who use a smack on the back of the hand or the bottom, or a light tap? Does the bill not have potential, ultimately, to criminalise them, because that is going to be deemed to be assault? You are removing the reasonable chastisement clause.

The Lord Advocate

It is not a defence to an allegation of assault that it was motivated by love. The whole facts and circumstances would be taken into account in the context of considering what action was appropriate in the public interest if there was sufficient evidence that a crime had been committed. There is a range of circumstances in which crimes are committed and people offer benign motives. The motivation is not, of itself, a defence, although it might be highly relevant to the decision and how the law responds.

The Convener

You are down to ask questions about guidelines and guidance.

Alison Harris

That was part of it. I appreciate that the Lord Advocate mentioned that guidelines would be brought in.

Anne Marie Hicks

I understand that the bill’s intention is to remove the defence so that parents can no longer claim that it is acceptable to use physical violence as a form of corporal punishment of children. The policy driver of the bill is to say that that is no longer acceptable and to change attitudes.

I have read the policy memorandum and my team has been involved in the on-going discussions. We have watched the development of the policy with interest, so I understand that it is not being introduced with a view to increasing the number of people in court; it is about saying that physical violence should not be used as a form of punishment of children.

At its simplest, the policy is about removing the defence, but the Lord Advocate is saying that the use of physical violence as a form of punishment can already be a form of assault. It is today and it would be if the bill is passed; it is just that there would no longer be any statutory defence that could be claimed. The law is being simplified, but we are not setting up a whole new framework. At the moment, people can smack their children and say that that is absolutely fine in every circumstance, but that is not the case under the current law.

Oliver Mundell

You danced around the issue a little bit there. Is it not correct that, when a defence is successfully established, that is, in effect, saying that a crime has not been committed?

The Lord Advocate

Yes.

Oliver Mundell

So, by removing the defence, we are creating a new area of behaviour that is criminal. We heard from the Law Society of Scotland, from a professor of law at the University of Dundee and from several law agents that the bill will create a new category of behaviour that is criminal.

The Lord Advocate

Yes. One has to be clear about that. If a defence in law is removed, by definition, there will be conduct for which the defence can currently be successfully invoked for which it could no longer be successfully invoked.

Oliver Mundell

Do you think that, as a matter of policy, it is a good idea to have legislation on the statute books that we do not intend to enforce in all circumstances, most circumstances or some circumstances?

The Lord Advocate

It is a feature of our legal system across the board that, when there is sufficient evidence that a crime has been committed, prosecutors assess what is the appropriate response in the public interest. We see that in all areas of criminality.

In our system, we do not prosecute every case that is reported to us, and we are not obliged to do so. There is a range of possible responses, which include diversion from prosecution, a range of direct measures and, ultimately, the option of taking no action. The same principles are applied by prosecutors every day across the wide spectrum of cases that are reported to them.

Alex Cole-Hamilton

One of the concerns that critics of the bill voice is that it will result in the criminalisation of hundreds of parents for normal parenting behaviour. That presupposes that the legal defence is being used hundreds of times. Is that accurate?

The Lord Advocate

I have no statistical way of answering that question. I do not have any data that would allow me to give a figure. It is unknown, in the true sense, whether the bill would result in an increase in cases being reported. New legislation, with the attendant publicity around it, might result in an increase in reporting, partly because attitudes change and people are sensitised to behaviour that they might not otherwise have reported. At the same time, it might have an impact in changing behaviours in another direction. The question of whether more cases would be reported remains to be seen.

Anne Marie Hicks

The international experience of where legislation to ban the physical punishment of children has been introduced elsewhere suggests that we would not see significant increases in prosecution, but it remains to be seen what the effect would be on the number of cases that are reported.

If I can give a parallel example from my experience of dealing with domestic abuse, when the law changes and there is greater public awareness of behaviours that are not acceptable, members of the public might involve the authorities more. We have certainly seen that in the context of domestic abuse—neighbours and other people have picked up the phone to the police to report things that, 20 or 30 years ago, might have been overlooked as just domestic matters and were maybe not reported.

We have seen that happen in some of our cases, when members of the public have intervened and called the police when something has happened in public. There might be an increase in reporting if there is greater public awareness of the issue. However, it has been made really clear that the policy intent of the bill is not all about prosecution or the criminal law; it is about saying, “This is not an acceptable way to chastise your children.”

The Convener

A couple of members are signalling that they have brief supplementaries.

Oliver Mundell

Mine is not a supplementary.

Fulton MacGregor

There has been a lot of talk during our consideration of the bill about a possible increase in the criminalisation of parents. The evidence does not point to that, although I know that it is difficult for you to give a view on that. Do you agree that our biggest challenge from a prosecution point of view is prosecuting really terrible offences against children rather than worrying about whether the bill would lead to an increase in prosecutions of parents?

The Lord Advocate

Prosecutors deal with a wide range of offending, from the most serious to the other end of the scale. That is why, as I indicated in my opening statement, we are focused on taking action that is appropriate and proportionate to the particular circumstances of the case that comes before the prosecutor. We can all assess the relative gravity and seriousness of the different types of criminality that we have to deal with, and prosecutors respond in a way that reflects that.

Rhoda Grant

You have mentioned a number of times that, when decisions are taken about whether to prosecute, you look at what would be in the public interest. I want to push you a wee bit on where that falls. What would you consider to be in the public interest and what would you consider not to be in the public interest? Can you give us examples to illustrate that?

The Lord Advocate

The Scottish prosecution code, which is a publicly available document, sets out factors that, depending on the circumstances, will inform the consideration of the public interest. Unsurprisingly, it includes

“The nature and gravity of the offence”

and

“The impact of the offence on the victim”.

Harm, which Mr Mundell asked about, is a consideration that would come into play in that regard.

Other factors that are considered are

“The age, background and personal circumstances of the accused”

and of the victim, and

“The motive for the crime”,

which relates to the issue that Ms Harris raised.

The code sets out more detail under each of the public interest factors that are identified. Those factors will apply in relation to any report of any crime. Prosecutors are well used to applying them, and they do so currently when cases involving alleged assaults by parents on children are brought to their attention.

Anne Marie Hicks

In preparation for today’s meeting, we looked at a few of the cases from last year in which we took no action or took action other than prosecution. One case involved an assault by a mother on her 10-year-old daughter who came home late and had not answered her calls. The assault was a punishment for what was deemed to be bad behaviour. The accused had no previous convictions and there were mental health issues. We had information about social work involvement with the family. Once we had full information on the background, we decided that social work diversion was appropriate, as it would enable social work to work with the family on some of the issues.

We had other cases with similar reported behaviour towards children, in which it was felt that diversion was not necessary, because a framework of support was already in place. We were satisfied that the police were working with social work and that there would be no public interest in prosecuting.

Another case involved an assault on a nine-year-old that arose after a family argument one morning, at a time of great pressure and stress. The parent was working and there was a lot of pressure on the family at the time. Again, we received further information about other assistance that the family were getting through social work and other family members, and we were satisfied that no action needed to be taken.

That is the kind of information that we would look to the police to give us. As well as getting information about the incident, we would want to find out about the background and would want to know whether the parent had ever behaved in that way before or whether the incident took place in the context of domestic abuse. Sadly—this is not surprising—quite a number of such cases take place in that environment. As with other crimes, we would want to look at all the circumstances, including any pressures that the parent was under and any factors that were relevant to them. In determining what is in the public interest, we do not look through the narrow lens of the individual act; we take account of the full context and circumstances of the behaviour.

The Lord Advocate

Particularly at that end of the spectrum, when one is considering whether the public interest is best served by some form of diversion or support rather than a prosecutorial option, as Anne Marie Hicks has said, that is one of the considerations.

At the same time, we have a string of examples of cases in which the balance went the other way: when the circumstances and the particular nature of the case were looked at, as well as the full background and context of the act, a decision was made to prosecute the case. We have a number of examples of those cases, too, but, as Anne Marie Hicks has said, the important point is that, as part of their professional practice, prosecutors routinely consider the appropriate course to take to respond to a particular report of an alleged crime, assuming that there is sufficient evidence to justify action. In this context—as in others—we will look at all the relevant factors.

Rhoda Grant

Given child protection guidance and regulation, I assume that, if a case came to be prosecuted, social work would already be involved. Is your decision influenced by whether or not social workers have taken action? For example, if they thought that the child was in danger, they might have taken them into care and removed them from the family home, or they might be working with the family. Do you look closely at such things before you decide how to act?

Anne Marie Hicks

We would want to know what involvement social work might have had, if any, and whether any on-going concerns or previous behaviour had been reported. Those are relevant to the context. One of the factors that we consider is the risk of reoffending, which is a clear public interest consideration. We would know about the involvement of social work, but we would not think, “Social work has done this, so we will do that.” We would look at the full circumstances of the incident.

There are cases in which the police properly involve social work, because they are required to do so, and social work will take a view and say, for example, “We are content as far as the incident is concerned, and we see no need for on-going work with the family.” We have seen that in a number of cases. We just want a full picture, so that we understand the situation.

Oliver Mundell

Going back to earlier comments, I note that, in our system, the parameters of the common-law crime of assault are in effect set by case law. Is there any issue with the fact that, because of this particular defence, there is perhaps a sparsity of case law on cases involving minor or mild physical force, as such cases have probably not been tested or fully explored? Should we consider that issue?

The Lord Advocate

I am not aware of any particular practical difficulties in the application of the law.

Anne Marie Hicks

You are right in the sense that the case law on reasonable chastisement tends to predate the 2003 act, but even if the purpose of the bill is to say that that is no longer a defence and to remove it, the case law on assault will still apply. A sheriff will have to consider the evidence and decide whether what happened constitutes a crime and whether that has been proved beyond reasonable doubt. Those considerations will still apply. If a sheriff listens to what has happened and says that it does not constitute an assault in law, there will not be a conviction.

Oliver Mundell

Do you recognise the possibility that, in the absence of any thresholds in the bill, the courts might come up with their own new tests? In effect, they could say that your decision to prosecute was not, in their view, in the public interest.

Anne Marie Hicks

I do not think that they could come up with a new test in law. As we have occasionally seen, it is always open to the courts to criticise a decision to prosecute. It is obviously for them to determine on the basis of the evidence whether a crime has been committed, and if they believe that it has, whether that has been proved beyond reasonable doubt. As the decision maker in a summary case, they would have to make that decision.

Moreover, if the courts did not think that it had been appropriate to prosecute the case, they could reflect that in sentencing, which is also a matter for them. I do not think that there will be an array of new tests around the law of assault. We already prosecute cases of parental chastisement, which amounts to assault in the courts, so they are used to dealing with that.

Oliver Mundell

The common law continues to evolve and develop, and a number of things that this Parliament now takes pride in, such as law regarding relations between married people, have developed through case law; they were not developed through statute. Surely it is possible that common law will continue to develop in this area, and that the courts might refine what they consider to be parental assault of a child in the context of the parental rights and responsibilities in other statutes.

The Lord Advocate

It would be wrong for me to pre-empt the natural development of the law, but the legal test for an assault is straightforward. It is an attack on the person of another with the relevant mens rea, or mental state for committing a crime, and courts are used to applying those tests in a range of circumstances.

As Anne Marie Hicks has said, there will be cases where a court concludes that, on the basis of the evidence that it has heard, there was no crime. That happens across the board. Prosecutors assess cases and take them to court, and on occasion the evidence does not support the charge. Indeed, as Anne Marie has said, there are sometimes cases where, even though a crime has been committed, the court is critical of the case having been brought by the prosecutor.

It is our responsibility to take the cases that we consider it right to take in the public interest, but sheriffs are entitled to comment. At the end of the day, a sheriff will reflect their assessment of the case in any sentence that is imposed.

Alex Cole-Hamilton

I wonder whether Oliver Mundell’s concerns about the lack of case law and thresholds on this issue go some way towards answering my earlier question about scale. There is not, as he has suggested, a great deal to go on; the legal defence is not regularly exercised, and courts are not often asked to sit in judgment of loving physical chastisement, which critics of the bill would describe as being reasonable. It is not something that comes up in court very often. Oliver Mundell might be worried about the absence of case law, but it strikes me that the matter just does not come up very much.

Anne Marie Hicks

In our written evidence, we provide some data on the number of cases that we have had. We looked at a three-month period from three years ago and increased that to create an estimate for a 12-month period, and we estimated that the number of cases prosecuted was fewer than 500 for the whole year, including assaults on children to injury, no injury and severe injury. On any reading, the numbers are small. That is within a framework where we have the statutory defence, but even when we take that into account, the numbers are small. We will have to wait and see whether there is any increase.

Alex Cole-Hamilton

Do you have data on how many of those people were acquitted on the basis of the defence of reasonable punishment?

Anne Marie Hicks

No. To get that, we would have to go through every individual case. We can pull cases based on the charge and see that they involved a parent and that the victim was a child, but we could not go into that sort of detail without a thorough manual research exercise.

Alex Cole-Hamilton

I understand.

The Convener

Okay. Everyone looks content. I thank the witnesses very much for their evidence this morning.

The committee’s next meeting will be on Thursday 13 June, when we will take evidence from Engender on its shadow report on the United Nations Convention on the Elimination of all Forms of Discrimination Against Women.

The Convener

Item 2 is stage 2 consideration of the Children (Equal Protection from Assault) (Scotland) Bill. I welcome John Finnie, the member in charge of the bill, and Maree Todd, the Minister for Children and Young People. We are also joined by Adam Tomkins MSP and Liam Kerr MSP. You are all very welcome.

Everyone should have a copy of the bill as introduced, the marshalled list of amendments, which was published on Monday, and the groupings of amendments, which sets out the amendments in the order in which they will be debated.

Adam Tomkins (Glasgow) (Con)

On a point of clarification, convener, I lodged two amendments to the bill, which I understand that you decided not to select for debate. The only reason that I have been given for that is that you took the decision that the amendments were inadmissible. However, you did not give reasons why you thought that. Will you explain why my amendments were ruled inadmissible?

The Convener

I thank the member. Standing orders rule 9.10.4 states that it is for the convener of a committee to

“determine any dispute as to whether an amendment of which the Clerk has been given notice is admissible.”

Rule 9.10.5 and part 4 of “Guidance on Public Bills” relate to the criteria for admissibility. One criterion is that the amendment must be consistent with

“the general principles of the Bill”.

Another is that it must be “relevant to the Bill”. Having looked carefully at the amendments that you lodged, I did not consider that they met those criteria. I therefore considered them to be inadmissible.

It is for the Presiding Officer to rule on admissibility at stage 3.

Adam Tomkins

I am grateful for that explanation, which I understand. However, I do not understand why my amendments were deemed to be contrary to the general principles of the bill. The general principles of the bill are set out in the policy memorandum that was published when the bill was published, which says that the purpose of the bill is

“to help bring to an end the physical punishment of children”.

That view was endorsed and agreed with by the committee in its stage 1 report. In paragraph 4, the committee said:

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

The phrase “physical punishment”, therefore, appears in paragraph 4 of the stage 1 report and in paragraph 4 of the policy memorandum.

My amendments were designed to ensure that “assault”, for the purposes of section 1 of the bill, means only physical attack. Currently, in Scots law, someone does not have to physically attack a person in order to assault them. The bill will therefore criminalise behaviour of parents, carers and guardians of children that the proponents of the bill and this committee say is not intended to be criminalised.

My amendments sought to give clarity to the meaning of “assault”, for the purposes of the bill, to achieve precisely the policy objective that is set out in paragraph 4 of the policy memorandum. That is why, with respect, I do not understand how the amendments could be ruled to be contrary to the general principles of the bill.

The Convener

It is a long-standing convention that the Presiding Officer and conveners do not explain their decisions on admissibility. However, to be helpful, I note that we will consider a number of amendments today that will give members the opportunity to debate, in full, the issues that the bill raises.

Of course, amendments that were ruled inadmissible at stage 2 can be lodged again at stage 3, when it will be for the Presiding Officer to determine admissibility.

I consider the matter closed. Let us move on.

There will be one debate on each group of amendments. I will call the member who lodged the first amendment in the group to speak to and move that amendment and to speak to all other amendments in the group. Members who have not lodged amendments in the group but wish to speak should indicate that by catching my attention in the usual way. I ask that anyone who does that be succinct and ensure that their contribution is relevant to the amendment or amendments being debated.

I remind members that stage 2 is not a rehearsal of arguments on the general principles of the bill. Members will be able to comment again on the merits or otherwise of the bill in the stage 3 debate, in the chamber.

The standing orders give the member in charge of a bill and any Scottish minister the right to speak on any amendment. Therefore, I will invite the minister and John Finnie to contribute to each debate before I move to the winding-up speech.

The debate on each group will be concluded by my inviting the member who moved the first amendment in the group to wind up. Following the debate on each group, I will check whether the member who moved the first amendment in the group wishes to press it to a vote or withdraw it. If they wish to press it, I will put the question on that amendment.

If a member wishes to withdraw their amendment after it has been moved, they must seek the committee’s agreement to do so. If any committee member objects, the committee will immediately move to vote on the amendment. If any member does not want to move their amendment when called, they should say, “Not moved.” Please note that any other MSP may move the amendment. If no one moves it, I will immediately call the next amendment on the marshalled list.

Only committee members are allowed to vote, and voting in a division will be by a show of hands. It is important that members keep their hands clearly raised until the clerk has recorded the vote.

The committee is required to indicate formally that it has considered and agreed each section of and schedule to the bill, so I will put the question on each section at the appropriate point.

Section 1—Abolition of defence of reasonable chastisement

The Convener

Amendment 1, in the name of Oliver Mundell, is in a group on its own.

Oliver Mundell (Dumfriesshire) (Con)

Amendment 1 is designed to be a simple amendment that seeks to draw together some points of consensus that emerged during the stage 1 evidence and to give reassurance to those in the Parliament and the public who continue to have concerns about the bill. I am particularly grateful to Mary Fee and Christine Grahame for their support for the amendment.

When putting the amendment together, I spent a considerable amount of time speaking to other members and interested stakeholders in order to capture some of the practice in Ireland and New Zealand, which were examples that came up frequently during stage 1 evidence.

When lodging the amendment, I became aware that there was considerable difficulty in finding a form of words that fitted the clerks’ view of the scope of the bill. I am now concerned about paragraph (c)(ii) in the proposed new subsection, as there is a legitimate point about whether there is an existing explicit parental responsibility to prevent a

“child from committing a criminal offence.”

That point has come to light since I lodged amendment 1, so I certainly want to revisit the amendment’s drafting. There are also other areas where the language could be tightened up.

I am interested in hearing other members’ thoughts on the amendment. I am not necessarily minded to press it myself, but I am interested in hearing views and building consensus around the principles that the best interests of the child should be taken into account, that there are on-going issues regarding restraint and that there are recognised parental responsibilities for maintaining a child’s safety and wellbeing.

I move amendment 1.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

I have a couple of questions about amendment 1. One is about the line that says

“prevent the child from committing a criminal offence.”

I am looking for clarity about what that means. Most of the evidence that we took said that the removal of the defence of reasonable chastisement would provide clarity in the law. I am uncertain about amendment 1 because I think that it would take that clarity away again.

I also want to ask about the restraint element in paragraph (b). Do the words

“make physical contact with the child”

include forms of physical punishment, or are they purely about restraint? We took a lot of evidence that said that the bill would not affect the ability of parents to protect their children.

Oliver Mundell

The amendment seeks to introduce “for the avoidance of doubt” wording. It would not change the law or what is already in the bill; it would just provide some reassurance. It is not designed to supersede what sits above it. However, I am willing to look at the wording and, potentially, to lodge an amendment at stage 3 to make the intention clearer.

Gail Ross

I thank Oliver Mundell for that. I am pleased to hear him say that he might look again at the wording. I would be happy with that.

Mary Fee (West Scotland) (Lab)

Good morning, everyone. I will say a few brief words in support of Oliver Mundell’s amendment 1. It reflects the concerns that we heard from a number of witnesses, throughout the evidence sessions, about the removal of a person’s ability to use parental responsibility to protect their child. It would go a long way towards allaying some of the concerns that were raised throughout the evidence sessions, and for that reason I am happy to support it.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I thank Oliver Mundell for reaching out to Opposition members in discussions about potential amendments for stage 2. I am sorry to say that I cannot support amendment 1, and I will unpack my reasons for that.

A word that we heard consistently throughout stage 1 was “clarity”. We heard about the need for clarity and the fact that the landscape around physical punishment in Scotland is not clear. A large number of members of the public believe that it is already illegal to physically punish their children and are surprised when we tell them that it is not. The Scottish Parliament previously legislated on the matter in 2003, and the architecture around that involved only the prohibition of head shocks, shaking and the use of implements.

The bill is elegant because it draws a line under the equation, but amendment 1 would reverse the clarity that the bill affords.

Adam Tomkins

The member says that the bill brings clarity because it draws a line under the physical punishment of children—I think that that is what he just said. Does he not accept that “assault”, which is the word that is used in section 1, is not restricted to the physical punishment of children and that the bill criminalises actions with regard to children that go well beyond physical punishment? I am sure that that is inadvertent, although it would be interesting to know whether it is deliberate. It is not what the policy memorandum says, but it is what the bill does.

The member says that he is seeking clarity, and I believe that he is. Let us all agree that clarity in the law—particularly in the criminal law—is a good thing. We need to clarify exactly what the bill seeks to criminalise. If it seeks to criminalise physical punishment, it needs to be amended to reflect that. As it stands, it is not clear.

Alex Cole-Hamilton

I am grateful to the member for his intervention, but I do not accept that premise at all. We are talking about the removal of a legal defence that used also to apply to the right of a husband to physically punish his wife or his servants. This is about a cultural shift in Scotland. We are not talking about the criminalisation of parents. We heard international examples from a range of witnesses, and the 54 countries that have already taken the step have not seen the mass criminalisation of parents, so I fundamentally do not accept that premise.

Oliver Mundell said that his amendment parallels the legislation on the subject in New Zealand, but his amendment and the New Zealand legislation diverge in that the law in New Zealand makes it explicit that physical punishment is not in the child’s best interests.

Oliver Mundell

The member might be interested to know that I tried to lodge a version of my amendment with wording that was similar to that, but I was told by the legislation team that they feel that the bill already rules out the possibility of physical punishment, so there is no need for it to be restated. I do not know what more I could do to satisfy his concerns, certainly at this stage.

Alex Cole-Hamilton

I am grateful for the member’s clarification on that point. It is very helpful.

When the member and I discussed potential stage 2 amendments—I am keen to foster consensus around the bill, so I welcomed his approach to that—we talked about the best interests principle, which is something that we should all agree on. It is a creature of Scots law and of international treaties, and it states that, in everything that we do, be it in public policy development or in legal judgments, we should always act with the best interests of children at heart.

To that end, I expected an amendment to be forthcoming that was more along the lines that, at the point of referral by a social worker or police officer—

Oliver Mundell

Will the member take an intervention on that point?

Alex Cole-Hamilton

I will do so in a minute. First, let me finish my point.

The amendment might have said that, at the point of referral by police or social work, the Crown Office might offer a judgment as to whether it is in the child’s best interests to launch formal criminal proceedings against the parents. Perhaps a constituency or cross-stakeholder consensus could be built around that, if such clarity is needed in the bill. However, the amendment as it is worded diminishes that clarity. It almost suggests that, if a parent were to argue that the physical punishment of their child was done in the best interests of the child, it might represent a new quasi-legal defence.

I have another anxiety to discuss, but I will let in Oliver Mundell first.

Oliver Mundell

Again, I point out to the member that I tried that approach. I included a best interests test, which was my preferred approach. However, I was told that the bill is too narrow in scope and cannot give directions to courts or prosecutors. Given the member’s support for and interest in the matter, perhaps the Presiding Officer will look at the issue at a later stage.

Alex Cole-Hamilton

I am grateful for that clarification.

I have another anxiety, in addition to the fact that the amendment undermines the clarity that the bill affords by arguably reinstating a nuanced route whereby a parent might justify the physical punishment of their child by reference to best interests. Perhaps the member can offer some clarity here. I was slightly alarmed to see that paragraph (c) of the proposed new subsection links the ability to

“fulfil the person’s responsibilities (whether parental responsibilities or otherwise)”

to the wording in sub-paragraph (ii), which refers to the responsibility to

“prevent the child from committing a criminal offence.”

From my reading of that wording, I take it that a law enforcement officer might be swept up in that. Arguably, we might accidentally create a situation in which it suddenly became okay for police officers to physically punish children in the street. Has the member considered that as an unintended consequence of his amendment?

The Convener

Before Oliver Mundell replies, I note that he will have the opportunity to wind up, so we should maybe keep moving.

Oliver Mundell

I will pick up those points in my winding-up speech, convener.

Alex Cole-Hamilton

For all the reasons that I have set out, I am afraid that I cannot support amendment 1.

The Convener

Does Fulton MacGregor still want to come in?

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Gail Ross and Alex Cole-Hamilton have covered the main points that I was going to make. I think that the intention behind the amendment is correct, and, following quite a heated stage 1 debate, I commend Oliver Mundell for lodging it. The fact that the amendment has the backing of Mary Fee speaks to its good intentions. However, the briefing from Barnardo’s Scotland, Children 1st and NSPCC Scotland—those organisations are all experts in this field and have given evidence throughout the stage 1 process—shows that they, like me, have grave concerns about amendment 1.

I will not go over the points that were made by Gail Ross and Alex Cole-Hamilton. I simply say that the amendment would not bring clarity to the bill. It is also really concerning that we could find ourselves in a situation in which, legally, parents could argue that physical punishment is in their child’s best interests.

For those reasons, I am not able to support amendment 1.

The Minister for Children and Young People (Maree Todd)

I welcome the opportunity to speak for the Scottish Government in a very important debate for all children in Scotland.

We cannot support amendment 1 for several reasons. First, it purports to provide that

“nothing in this section affects the ability of a person having charge or care of a child to ... act in the best interests of the child”.

It is not clear from that exactly who would decide whether or not the actions of a parent or carer were in the best interests of the child.

Oliver Mundell

I understand the point that the minister is trying to make, but given that the bill refers to the removal of a defence, it is pretty clear that those would be considerations for the court—which they would be anyway, as is clear from the evidence that we received from the Lord Advocate. Amendment 1 simply seeks to put

“the best interests of the child”

in the text of the bill.

Maree Todd

If amendment 1 is designed to provide that, in certain unspecified circumstances, a parent or carer could say that they used physical punishment because it was in the child’s best interests, that goes against the bill’s fundamental purpose—which was agreed to at stage 1 by the whole Parliament—which is to give children equal protection from assault.

In addition, section 1 of the Children (Scotland) Act 1995, which constitutes the central provision on parental responsibilities in Scots law, provides that parents have such responsibilities

“only in so far as compliance with this section is practicable and in the interests of the child.”

Oliver Mundell

I thank the minister for giving way again. As I said to Alex Cole-Hamilton, I sought to make reference to the 1995 act in a previous draft of my amendment, but the scope of the bill is such that it was difficult to do so. The matter is worth considering, because section 1 of the 1995 act is Scots law that is well understood by practitioners, lawyers and other people, and a reference to it in the bill might offer a way of satisfying the best interests test in relation to parental responsibilities.

Maree Todd

There is already general provision on parents exercising their responsibilities in the interests of the child. The bill will not, in its impact on existing law, create any uncertainty or doubt that needs to be remedied. Indeed, the bill will not impact on existing law beyond making it clear that physical punishment can never be in a child’s best interests, which is important.

Paragraph (b) of the proposed new subsection that amendment 1 would insert relates to restraint. I appreciate that Mary Fee has taken a strong interest in restraint throughout the passage of the bill. The Scottish Government acknowledges the points that were made in evidence about use of restraint in residential care and education settings. However, in its stage 1 report, the committee carefully considered the issues, under the heading, “Restraint in the home”. The committee concluded, in paragraph 62:

“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.”

The Scottish Government agrees with that comment, which is in line with the evidence that the committee received. We do not consider that the bill will stop parents using restraint to protect children from harm. As the Crown Office made clear, such restraint would lack the criminal intent that is needed in order for a person to commit the crime of assault in Scots law. As a result, we consider that limb of the amendment to be unnecessary.

Paragraph (b) would also create uncertainty. It refers to the ability of the parent or carer to

“make physical contact with the child”.

It is not clear whether that could include forms of physical punishment. If it could, the approach—again—goes completely against what the bill is doing and what the Parliament has agreed.

Paragraph (c) refers to the ability to

“fulfil the person’s responsibilities ... to ... maintain the child’s safety and wellbeing or ... prevent the child from committing a criminal offence.”

A fundamental argument for the bill is that physical punishment has a negative impact on children’s welfare. The amendment could be read as meaning that physical punishment could be used to maintain a child’s wellbeing. We reject that approach.

With regard to the responsibility to prevent a child from committing a criminal offence, we reject the idea that physical punishment is the way to prevent a child from stealing, for example. A better approach would be to separate the child from the property and tell the child that stealing is wrong. The evidence shows that physical punishment is not just harmful but ineffective.

All in all, far from removing doubt, amendment 1 would introduce ambiguity, create doubt and reduce the clarity of the law. For all those reasons, I invite Oliver Mundell not to press amendment 1. If the amendment is pressed, I urge the committee to reject it.

John Finnie (Highlands and Islands) (Green)

Oliver Mundell’s amendment 1 begins with the words,

“For the avoidance of doubt”.

I seriously question, and ask committee members to reflect on, whether there is any doubt. I am not convinced that the evidence that the committee has heard can be taken to mean that the bill leaves any doubt, in which case Mr Mundell’s provision is liable to do more harm than good, by adding material that could cause difficulties in interpretation.

Oliver Mundell

Does John Finnie accept that the fact that the Lord Advocate is going to address a number of points in guidance suggests that there is at least some doubt about how the public interest test would work? Does he also accept that, far from creating new provisions, the proposals in the amendment—with which, I accept, there are some problems—would take the considerations of prosecutors in court and move them forward in the process by putting them in the bill?

John Finnie

No, I do not accept that. I will talk about the Lord Advocate in a moment, but I will say that it is standard practice for the Lord Advocate to give the police guidance on a number of issues. We know that from what has happened with regard to legislation that we have had in recent times.

It is hard to see how anyone could apply the additional tests that are set out in the amendment in a consistent manner, given how vague and subjective they are. Evidence that the committee heard from the Lord Advocate, the Crown Office and Procurator Fiscal Service, the Law Society of Scotland and police and social work representatives all stated that the bill will simplify the legal position. Amendment 1 is likely, therefore, to have the reverse effect to what is intended: it will introduce doubt, rather than dispel it. For example, what would constitute

“the best interests of the child”?

How would physical restraint be judged and assessed? How broad would the idea of preventing a child from committing a criminal offence be?

The committee heard plenty of evidence that did not support the inclusion of such things in the bill. The committee heard that prosecutors will continue to consider the best interests of the child as part of the public interest test, and that relevant matters are already included in the prosecution code as things to be taken into account when investigating and prosecuting cases of assault on a child.

In terms of the proposed new subsections (b) and (c), which attempt to clarify examples of physical contact and responsibilities, I do not consider it to be necessary to set out such matters in the bill, because the established common-law offence of assault would apply, which brings with it consideration of the requisite criminal intent, along with consideration of the facts and circumstances of the individual case.

Those suggested provisions also raise issues that are relevant to the prosecutorial code, guidelines and so on, therefore the defence that is being abolished would not come into play. Again, that could confuse matters rather than clarifying them. The Lord Advocate talked to the committee about the prosecution code, which is a public document. He said that it includes factors that may inform the consideration of the public interest, including

“The nature and gravity of the offence ... The impact of the offence on the victim ... The age, background and personal circumstances of the accused”

and of the victim, and

“The motive for the crime”.

He also said:

“The code sets out more detail under each of the public interest factors that are identified. Those factors will apply in relation to any report of any crime. Prosecutors are well used to applying them, and they do so currently when cases involving alleged assaults by parents on children are brought to their attention.”

In response to a question from Oliver Mundell, the Lord Advocate said:

“The premise of your question is that the law of assault is unclear, but I would point out that it is applied daily by police officers and prosecutors. There is not a problem with the clarity of the law. At the same time, though, a case could be made that removing the defence with the qualification that currently applies would increase that clarity.”—[Official Report, Equalities and Human Rights Committee, 6 June 2019; c 13-14, 7.]

I conclude by reiterating that amendment 1 addresses permissible physical restraint of children, apparently in connection with their safety and prevention of self-harm. That is not the focus of the bill, which deals with the use of force against a child in punishment. There is no policy intention to legislate on the circumstances around permissible physical restraint of children, or adults.

I ask the committee to reject amendment 1, which is in the name of Oliver Mundell.

Oliver Mundell

This has been a helpful discussion, in part. I do not accept that the bill, as drafted, is free from doubt. I think that there are legitimate and on-going concerns. I am concerned about the suggestion that it is the prosecution code that sets the law of the land. It is not; the law of the land is what is in statute, and how that is interpreted by the courts.

Notwithstanding issues around the wording of amendment 1, it is difficult to see how anyone could object to the best interests of the child being taken into consideration. I do not think that anyone is objecting to that, so I do not see what possible objection there can be to including those words in the bill.

Alex Cole-Hamilton

Nobody would disagree with statement that the best interests of the child are paramount and that we should take them into account. However, in a way, amendment 1 twists that slightly to suggest that

“nothing in this section affects the ability of a person having charge or care of a child to—

(a) act in the best interests of the child”.

It almost implies that, occasionally, a level of physical intervention with a child might be in the child’s best interests, which flies in the face of any legal definition of “best interests of the child”.

Oliver Mundell

With or without being offensive, I note that the clumsy wording that Alex Cole-Hamilton just used sums up my point. There are occasions when physical intervention can be in the best interests of the child. Having accepted the decision of Parliament at stage 1, I do not seek to say that physical punishment is in the best interests of the child, but there are situations in which physical intervention is in their best interests, and it is trying to—

Gail Ross

I am getting a bit confused. Will you explain the difference between physical intervention and physical punishment?

Oliver Mundell

Physical intervention might be forceful restraint—for example, holding a child’s arm back, which happens regularly. What is difficult in the case of the bill—a point that I have been trying to make right from the start—is that the law of assault is a broad offence, as the COPFS confirmed in its written evidence. It is something that Pamela Ferguson, who is the chair in Scots law at the University of Dundee, has worked for the Scottish Law Commission and has drafted—

Maree Todd

We do not consider that the bill would stop parents using restraint to protect children from harm. As I have said, and as the Crown Office has made clear, such restraint lacks criminal intent, which is needed in Scots law for the crime of assault.

Oliver Mundell

Will the minister clarify when criminal intent is considered in our legal process? At what point in the process does that question arise?

Maree Todd

The law around assault is absolutely—

Oliver Mundell

That is not the question that I asked.

The Convener

Mr Mundell, I remind you that you are winding up now. The minister is not giving a speech.

Oliver Mundell

I apologise. Minister, I will let you intervene again to clarify when the issue of criminal intent comes up in the Scottish legal process.

Maree Todd

The prosecution code, which is a publicly available document, as John Finnie said, takes a number of things into account, including

“The nature and gravity of the offence ... The impact of the offence on the victim ... The age, background and personal circumstances of the accused”

and

“The motive for the crime”.

Oliver Mundell

So, by the time a case gets to prosecutors for them to decide whether to prosecute, people have already been the subject of criminal investigation and could be the subject of criminal allegations. I want to be clear—for the avoidance of doubt; this is where amendment 1 comes from—that exercise of parental rights, which exist in common law and statute, will not be confused with assault. Assault can mean shouting aggressively at someone or acting in a threatening manner, which are subjective things. I do not deny that there is clarity around the law of assault, but I believe that it is a wide category of behaviour to be mixed with the concept of physical punishment.

The issue for me here is about trying to draw the distinctions up front, so that what is and is not considered to be relevant behaviour for the purposes of the bill is clear to members of the public, police officers, social workers and people who—with respect—do not look at the prosecution code.

The Convener

We want to have a full debate on everything. We are now 35 minutes into the meeting, so we have given amendment 1 a good airing. Will you draw your remarks to a close?

Oliver Mundell

I will draw my remarks to a close, because there is not a lot to say in addition to that point. I do not intend to press amendment 1, because I recognise that there are issues with its wording. I hope that other members of the committee will afford me the opportunity to explore that further and to lodge a new version of the amendment at stage 3.

Amendment 1, by agreement, withdrawn.

The Convener

The question is, that section 1 be agreed to.

Oliver Mundell

For clarification, convener, is it possible to say no? I still have fundamental problems with section 1, which I want to register.

Annie Wells (Glasgow) (Con)

I do, too.

The Convener

Yes, you absolutely can.

Section 1 agreed to.

Section 2—Duty of Scottish Ministers to raise awareness

The Convener

Amendment 9, in the name of Liam Kerr, is in a group on its own.

Liam Kerr (North East Scotland) (Con)

I am grateful to the committee for giving me the opportunity to speak to amendment 9.

Members of the committee will be well aware of my views on smacking: I do not believe that it is in the interests of the child. I do not resile from that position at all. However, I have serious concerns about the bill’s implications and possible unintended consequences, particularly having listened to Mr Mundell’s well-made comments about amendment 1. I—and, I suspect, members of the committee—do not want to see good parents criminalised and subject to the might of the state for inadvertent transgressions, which is a particular risk where there is ignorance of the law.

I acknowledge that section 2 makes provision for raising awareness of the change in the law. My view is that section 2 is not strong enough and would represent a missed opportunity if it were to be left as it is. We should take this opportunity to raise awareness of the parenting practices and alternatives to smacking that I have no doubt that all committee members wish to see.

Amendment 9 reflects the view that it is imperative that people know and understand the limitations that are placed on their behaviour, not only to promote the culture change that was referred to earlier but so that people are not inadvertently criminalised.

To that end, amendment 9 would mandate the Government to promote awareness of, inter alia, the existing protections from assault that children have, the rights and responsibilities of a parent, and good parenting practices, including alternatives to any form of violence or smacking.

Our goal should be to help parents to provide the best environment for their children, by furnishing parents with the knowledge and understanding that they need if they are to do so. That is what amendment 9 seeks to deliver, and I hope that the committee will support it.

I move amendment 9.

Alex Cole-Hamilton

I have some sympathy with what the member is trying to do with amendment 9, but I do not think that the matter that he raises is for primary legislation. It would be better addressed in the guidance around implementation.

We have learned a lot from international examples, given that 54 countries have gone before us in this regard. I remind members of the powerful testimony of former Irish senator Jillian van Turnhout. She told us that the amendment that she got through the Dáil, which ended physical punishment in Ireland, was just an amendment to a bill, with no budget attached to it. However, it worked. Parents changed. They understood that the legal position had been made clear and that they had to adopt different strategies for parenting.

Therefore, I do not think that we need to legislate in the bill for the matters that Liam Kerr talked about, not least because—and I am sure that this is not his intention—amendment 9 lacks definition. For example, it refers to “good parenting practices”; a phrase such as that in a bill demands clarification of what it means, which runs the risk of our having to attach to primary legislation pages and pages of academic text on what is meant by “good parenting practices”.

Although I understand Liam Kerr’s good intentions, I will not support amendment 9, because I do not think that the bill itself is the place for such provisions.

Fulton MacGregor

I, too, think that Liam Kerr has the right intentions. He is probably trying to allay fears, and the biggest fear that folk out there have—and that people have raised with us—is that there will be unnecessary criminalisation. However, I say to Liam Kerr, as he is not on the committee, that we heard a lot of evidence on the subject and received a lot of reassurance that, given the child protection processes that are already in place, the risk of unnecessary criminalisation is extremely low. I therefore think that the amendment is unnecessary.

The amendment does not have the scope that Alex Cole-Hamilton talked about, and I note that in the Irish model, not much publication of information was needed.

Liam Kerr

The question that I throw back to Mr MacGregor is: what if you are wrong and the risk of criminalisation is not, in fact, low? Surely we must take this opportunity to ensure that we reduce the risk as far as possible and do not leave it to chance.

Fulton MacGregor

I thank the member for his intervention. I do not think that the amendment would have that effect, and—

Alex Cole-Hamilton

Will Fulton MacGregor take an intervention?

Fulton MacGregor

Can I finish my answer to Liam Kerr first? [Laughter.] I will take the intervention in a moment.

I do not think that the amendment would have that effect. We have to base legislation on what we hear, and the evidence that we have heard in this regard was overwhelming. As a committee member, I am satisfied that the risk of unnecessary criminalisation is very low.

I will take Alex Cole-Hamilton’s intervention now.

Alex Cole-Hamilton

Sorry—that was rather impetuous of me. I am grateful to the member for taking the intervention. Does he agree that there is no risk that people will not understand that physically punishing their child will now be an offence, because that is written in 80ft letters on Technicolor neon signs by every group that opposes the bill every time it is brought up in the public domain?

Fulton MacGregor

Yes. I also return to the point, which we have talked about a lot in the committee, that it is already an offence. The bill removes a—

Oliver Mundell

Will Mr MacGregor take an intervention?

Fulton MacGregor

Okay.

Oliver Mundell

It is a relatively friendly one. Given the member’s experience before he came into this place, does he recognise the challenges that many parents face and agree that the sharing of best practice and advice may be helpful for some people? Very few people set out to deliberately harm their children, but we heard in evidence—and I have heard in the interactions that I have had around the bill—that there are people who have, for want of a better word, resorted to smacking because they have struggled to cope. Does he recognise that there might be a role for further guidance on good parenting practices?

Fulton MacGregor

I recognise that but, as I have consistently said during stage 1 and as we have heard from many other members and agencies, the bill does not change that. I have great faith in the agencies and the child protection processes that we have in place. The bill has allowed a conversation on how we support families who are struggling, and I do not think that anything in the amendment changes that. I take Oliver Mundell’s point, but I cannot support amendment 9.

Maree Todd

Amendment 9 relates to the duty on the Scottish ministers in section 2 to raise awareness, and it would lay down a list of areas to be covered by that duty.

I say to Liam Kerr that the list of areas is slightly illogical. It includes the rule of law and the defence of reasonable chastisement, which would be repealed by the bill. It also refers to section 51 of the Criminal Justice (Scotland) Act 2003, on the physical punishment of children, which would also be repealed by the bill. Why would ministers promote the old law, which is being repealed?

I am also uncertain about why the amendment refers to

“parental responsibilities under the Children (Scotland) Act 1995”.

The 1995 act makes detailed provision on parental responsibilities but, as was mentioned in the debate on the previous group, they are not being changed by the bill.

I am also concerned about the proposal that the Scottish Government should be required to produce formal statutory guidance on “good parenting practices”. Our message has always been that we want to support mothers and fathers, not dictate to them how to be good parents. However, I agree that providing support for parents includes raising awareness of positive parenting practices, which do not include physical punishment. We already provide that kind of information through public resources and, as required by the bill, we will work with key partners and stakeholders to build on that. Part of the aim must be to support families to prevent or reduce flashpoints, so that interventions are not needed at all. That might not always be possible, but it is a reasonable objective.

The Scottish Government recognises the need for public awareness and will comply with section 2 of the bill. When doing that, we will consult our implementation group and take account of points that the committee made in the stage 1 report. However, amendment 9 seems to lay down requirements that, given the fundamental purpose of the bill, would hinder rather than help awareness raising. If Mr Kerr has concerns about what the public information in that area might focus on, I am happy to meet him. He is welcome to contact my office to make arrangements for that.

I invite Liam Kerr not to press amendment 9. If it is pressed, I urge the committee to reject it.

John Finnie

Although I appreciate Mr Kerr’s intention in moving amendment 9, it is not clear how exactly the amendment would affect section 2. As drafted, section 2 requires Scottish ministers to

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

That is drafted so as to allow the Government to determine what awareness-raising steps would be appropriate. If the amendment is agreed to, the same would apply to the list that it adds. Amendment 9 would require the Scottish Government only to promote “public awareness and understanding” of those things to the extent that it considers appropriate, which could be not at all.

The inclusion of two of the points is unnecessary. Since the rule of law that section 1 refers to is being abolished and the relevant provisions of the 2003 act are being repealed, what is the point in either promoting those things or in promoting public awareness or understanding of them? For the purpose of promoting what the bill does, the extent that those two points need to be explained is already covered by section 2. Section 1 of the bill abolishes the rule of law in common-law provisions and explains what the rule of law is.

Further explanation can be found in paragraph 6 of the explanatory notes and section 51 of the 2003 act. Therefore, I do not consider it necessary to require the Government to promote “awareness and understanding” of those things or to promote them in any other way. Ministers already have a requirement to explain section 1 of the bill, which abolishes and repeals those things.

The other areas that the amendment requires the Government to promote awareness and understanding of are areas that the Government already provides information to parents on, including the 1995 act, which informs Scottish Government policy on relevant matters and will alter to reflect the new legislation. Again, I do not consider it necessary to have those things in the bill.

Moreover, as has been said previously, concepts such as “good parenting practices”, “alternative parenting practices” and “disproportionate violence or assault” lack definition. Does the member have an example of proportionate assault?

I ask committee members to vote against amendment 9 in the name of Liam Kerr.

Liam Kerr

I am grateful to the members and the minister for their comments. Taking it from the top, I will respond to a few of them.

Alex Cole-Hamilton said that these provisions are not for primary legislation. It strikes me that, if we have a weak mandate at section 2, why would we not go further? John Finnie made the point that the Government’s decision could be “not at all”, which is exactly the problem: the Government could decide to do nothing. That concerns me, because, as we have seen, we would have a level of ignorance about what has changed, and people inadvertently being criminalised in the way that Oliver Mundell set out. It feeds into a wider concern that we leave too much to ambiguity.

If Alex Cole-Hamilton is right that the phrase “good parenting practice” is ambiguous, what are

“such steps as ... appropriate to promote ... awareness”?

That does not mean anything. If “good parenting practice” does not mean anything, neither does what is in the bill.

Alex Cole-Hamilton

The bill would allow ministers the flexibility to respond to and reflect the cutting edge of good parenting practice—it would not limit them in any way. I think that we should welcome that.

I would have had more sympathy with an amendment that placed on ministers a duty to report to Parliament what steps they had taken, so that the matter could not be left and we would revisit it. However, amendment 9 tries to write statutory guidance in primary legislation, which is never a good thing.

Liam Kerr

I thank the member for that clarification. I am wondering aloud—I will not seek a response on this—whether it suggests that he might vote for the amendment, with a view to further amending the provision at stage 3, which is an opportunity that would be open to him.

I turn to something that I heard Fulton MacGregor say, which I think is quite concerning on a wider level—not only in relation to amendment 9. He accepted that there might be some “risk of unnecessary criminalisation”. Surely the job of the Scottish Parliament is to reduce such a risk to zero and we, as MSPs, must take all the steps that we can to achieve that. Amendment 9 represents one part of that process. It seems to me that if Mr MacGregor accepts that it is our job to reduce the risk to zero, he must support it.

John Finnie

I know that Mr Kerr was not present at the committee’s evidence-taking session with Police Scotland and Social Work Scotland, but is he aware of their evidence on how the present arrangements work and their view that nothing substantial would change?

Liam Kerr

I am aware of the evidence, but it does not detract from my main point. I cannot accept that there might be some risk. People out there might be watching this right now and saying, “Hang on—these MSPs are about to pass a bill that leaves me with some risk of ‘unnecessary criminalisation’”. That is terrifying, Mr MacGregor.

Fulton MacGregor

I am intervening because Mr Kerr has misquoted me—or perhaps has not quoted my words in context. I have said that there is a perceived risk of unnecessary criminalisation, and I believe that that is why Mr Kerr has lodged amendment 9. The committee has heard overwhelming evidence that that is unlikely to be the case and that the procedures and systems that we have in place, especially on child protection, are robust and already deal with such situations every single day. Therefore I do not accept the premise of Mr Kerr’s remarks towards me. I do not think that the bill leads to a risk of unnecessary criminalisation; in fact, it strengthens the law on protection of children.

Liam Kerr

I think that the Official Report will be revealing in that regard. I understand that Mr MacGregor came back in on my point because I was quoting his words back to him, but—

Fulton MacGregor

You are quoting—

Liam Kerr

I will move on, convener—it is fine.

Failure to agree to amendment 9 will represent a massive missed opportunity to reduce risk and reassure parents—who I do not think will look at the explanatory notes, Mr Finnie—and the public, and it will make the bill better. I urge the committee to take that opportunity.

The Convener

The question is, that amendment 9 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 9 disagreed to.

Section 2 agreed to.

Section 3—Transitional and saving provision

The Convener

Amendment 2, in the name of Annie Wells, is grouped with amendment 3.

Annie Wells

My comments will be relatively short. Amendment 2 is a clarifying amendment that is intended to make clear the rights of parents. Section 3(2) states:

“The Scottish Ministers may by regulations make such further transitional, transitory or saving provision as they consider necessary ... in connection with ... section 1.”

Amendment 2 seeks to ensure that

“For the avoidance of doubt”,

it should be made clear that anything that is introduced above and beyond the bill will not inhibit parents’ existing rights in accordance with the Children (Scotland) Act 1995. That would include, for example, the rights of a parent to prevent harm to their child, whether that involves preventing a child from running across a road or the need to administer life-saving medicine to a distressed child. Amendment 3 is also straightforward; it seeks to ensure that any changes should be subject to proper parliamentary procedure.

I move amendment 2.

Gail Ross

I have a couple of questions on these amendments. I am sorry, but I was uncertain as to what amendment 2 seeks to do when I first read it; I am even more uncertain after hearing an explanation from Annie Wells about children running out into the road and the need to administer medicine. The amendment contains the phrase

“For the avoidance of doubt”,

but, from all the evidence—we have said this more than once—there is no doubt that the bill provides a clarification in law.

The amendment also says that the bill should

“not unduly limit the ability of parents to carry out their responsibilities to their children.”

Does that mean that parents could, if they so wished, bring forward a judicial review and argue that the bill is unlawful in some way? I need a lot more explanation of what amendment 2 is intended to do.

With regard to amendment 3, in the name of Annie Wells, it is usual for ancillary provision powers such as those in section 3(3) to be subject to the affirmative procedure when there is a power to amend primary legislation, but there is no such power here. Indeed, the powers are quite limited. I will therefore be rejecting the amendment. Although, at first glance, it seems to be quite straightforward, its intention does not apply to the bill.

Maree Todd

I am grateful for the opportunity to speak to amendments 2 and 3. The Scottish Government does not consider amendment 2 to be necessary. The powers that are contained in section 3(3) relate to making regulations on

“transitional, transitory or saving provision ... in connection with the coming into force of section 1.”

So far, we have not identified any need to use those powers.

More fundamentally, the powers in section 3(3) are quite limited and technical in nature. They relate only to the removal of the defence that is contained in section 1. In addition, they are not about substantive parental responsibilities and rights as contained in part 1 of the Children (Scotland) Act 1995. As a result, there is no doubt to be avoided here because the regulations could not make substantive provision on the rights and responsibilities of parents. Amendment 2 is therefore unnecessary and, on that basis, I urge the committee to reject it.

Amendment 3 relates to the parliamentary process that is to be followed when regulations are made under section 3(3). The regulation-making power under section 3(3) does not include the power to amend primary legislation, which is when the affirmative procedure is typically appropriate. I also note that the Delegated Powers and Law Reform Committee was content with the delegated powers provision in the bill. I therefore invite the committee to reject amendment 3.

John Finnie

My remarks contain a measure of duplication with what the minister said. The explanatory notes and the delegated powers memorandum both clarify that the regulation-making power in section 3(3) is technical and limited, and that the negative procedure is therefore considered to be the most appropriate. The Delegated Powers and Law Reform Committee considered the DPM and had no comments to make. The delegated power is limited to what is

“necessary or expedient in connection with the coming into force of section 1.”

It is included in the bill to give the Scottish ministers flexibility should they identify any

“further transitional, transitory or saving provision”

that could not have been anticipated when the bill was drafted. I therefore do not consider that there is any “doubt”—as is suggested in amendment 2—that the regulation-making power could in any way

“limit the ability of parents to carry out their responsibilities to their children”.

Perhaps the member could give an example when she sums up.

Furthermore, the new test that is set out is vague and subjective, particularly in relation to the inclusion of “unduly”, which we covered earlier and which implies that some limitation is legitimate, not least because one primary responsibility is to protect children from assault. In her evidence, the minister told the committee that she did not think that the power would be used.

On amendment 3, and as already stated, the negative procedure is considered appropriate for such a transitional, transitory and saving provision, which is largely technical in nature and which in any case is limited to what could be considered necessary or expedient in connection with the coming into force of section 1.

I ask members to reject amendments 2 and 3 in the name of Annie Wells.

Annie Wells

I thank members for their input. The point that I was trying to make with amendment 2 is that it is not yet clear what transitional regulations could be of concern. At the moment, there is not a lot of detail on the transitional regulations. That is why I lodged that amendment.

On amendment 3, it is not that the negative procedure is always to be used; things can be done in the normal way. I lodged amendment 3 given the sensitivity of the bill, so that Parliament could scrutinise further any future transitional regulations. On that basis, I wish to press amendment 2.

The Convener

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

Members: No.

The Convener

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 2 disagreed to.

Amendment 3 moved—[Annie Wells].

The Convener

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

Members: No.

The Convener

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 3 disagreed to.

Section 3 agreed to.

Section 4—Commencement

The Convener

Amendment 4, in the name of Oliver Mundell, is grouped with amendments 5 and 6.

Oliver Mundell

This is a set of simple, consensus-building amendments, which try to capture in guidance the points that came up in evidence at stage 1. It is important to capture not necessarily in the bill but in guidance some of the points that my colleague Liam Kerr raised in relation to amendment 9. It is important that we ask the Scottish Government to provide guidance and information that would be useful.

Adam Tomkins

If I were a member of the committee, I would support amendment 4. It is not merely necessary but essential to give clarity to the reasonable points of doubt that exist with regard to the bill, notwithstanding the protestations to the contrary from some quarters.

I note that proposed new section 4(1C)(b), which amendment 4 would introduce, mentions guidance having to include guidance on

“the limits of physical force”.

Does the member accept that the intention of the bill is not matched by the bill as introduced, in that its clear intention, as have heard repeatedly this morning and as we heard throughout the stage 1 debate a couple of weeks ago—and as Mr Finnie makes clear in his policy memorandum—is to outlaw the “physical punishment of children”? The phrase “physical punishment” comes up over and over again, and I think that both Mr Finnie and the minister have used it repeatedly this morning. That is not what the bill does, however.

The bill goes further—potentially much further—than that, to criminalise the actions of parents, carers and guardians of children that are not physical punishment but are other actions that, under the definition in Scots law at the moment, may constitute an assault. The fatal flaw in the bill is to assume—

The Convener

Mr Tomkins, I must remind you that we are not debating the bill in its entirety just now. In your intervention, you should speak to the amendments that are before us at the moment.

Adam Tomkins

Thank you, convener; I am happy to take that advice. For clarification, I am speaking directly to the words in Mr Mundell’s amendment that say that guidance must include guidance on the use of physical force. I am asking Mr Mundell to clarify what he understands by that in the context of the bill. I am speaking directly to those provisions.

The mistake is to assume that physical punishment and assault mean the same thing when they do not. For that reason, it is essential that guidance is provided in advance of the bill coming into force to clarify whether it is intended to criminalise assaults against children that do not constitute physical punishment.

Oliver Mundell

I thank Adam Tomkins for that intervention. I agree with him up to a point. I think that it would be better to make that clarification in the bill. Doing so in guidance is a second-best option.

Adam Tomkins

For the record, I sought to bring to the committee amendments that would have allowed a debate on that issue, so that those issues could have been clarified in the bill. However, those amendments were ruled inadmissible, and we heard the convener this morning explain that she was not able to give reasons as to why they were ruled inadmissible.

Oliver Mundell

I thank Adam Tomkins for that explanation.

There are other important points in the guidance. Throughout our scrutiny of the bill, we have heard from the minister, from the member in charge and, in fairness, from every member of the committee that the bill is not seeking to criminalise parents. Again, there is a duty to make clear to parents, social workers, charities, organisations that work with children and individuals who are involved in children’s day-to-day lives what the alternatives are to picking up the phone and contacting the police.

I am particularly exercised about the issue that is dealt with in proposed section 4(1C)(d) and in amendment 6, which involves the legal support and advice that is available to children. The Children (Scotland) Act 1995 places a responsibility on parents to act in a legal capacity in relation to their children. Where children are subject to an offence that involves them as a victim or a witness, the parents should be able to access legal advice and support—

Alex Cole-Hamilton

I understand the point that the member is making and I have some sympathy with the interests of children who have witnessed a crime. Why did he not raise this issue in an amendment to the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill?

Oliver Mundell

I have to say that that was an oversight on my part. I heard that argument earlier this week from children’s charities, but I do not think that the fact that something was not done in previous legislation is a good reason for not doing it now.

What has drawn the issue to my attention at this point is that there is something different in relation to this bill, which is the fact that removing the defence means that there is a category of behaviour that I do not think would meet the public interest test in every case. As the Crown Office itself says in its written submission, difficult questions arise in relation to an area of behaviour that involves very mild force. I think that, in those cases, it would be extra helpful to ensure that the child had access to legal advice that would enable them to understand what the likelihood of success of any action would be, and that there should be advice on what the impacts on the family would be of going through a legal process. I do not see what harm it could do.

The sort of legal advice is something that would be easily available to me, as an adult. Like most adults, I could pay to access legal advice, but children cannot always do that, and that can be particularly difficult for children who are not supported by their parents, or for the many children who have single parents. I do not see what possible harm it could do to make explicit in guidance the good advocacy services and legal support that are available, many of which we discussed when we considered the Age of Criminal Responsibility (Scotland) Bill. I struggle to see how people would disagree with that.

In amendment 5, I have tried to capture what I am looking for in the Lord Advocate’s guidance. I recognise that that might be more difficult and that it creates questions.

Gail Ross

Did you consult the Lord Advocate about putting measures on his guidance in the bill? Has he given an opinion on that?

Oliver Mundell

He has not given an opinion on it and I did not seek one, because that is not my role as a parliamentarian. He operates separately from Parliament, which is the point that I was coming on to. That creates challenges as to whether it is appropriate to direct him in this way. However, I lodged amendment 5 to emphasise the point and so that we could at least have a discussion on what I feel is an important issue.

Under proposed new section 4(1E)(a), the Lord Advocate’s guidance would have to cover a person’s responsibility to protect the child who they are in charge of and how that interacts with the removal of the defence, particularly in cases where physical force is used in a way that is not physical punishment—it can be different from physical punishment but to outside parties it might look the same. Under proposed new section 4(1C)(b), ministers would have to publish clear guidance on the use of force in “common situations”. A number of examples of that have come up, including from other countries, and we all accept that the bill is not designed to capture those things. Proposed new section 4(1E)(a) really makes the same point, but I accept that members will take individual judgments on whether it is appropriate to put that in the bill, given the commitments that we had from the Lord Advocate.

I move amendment 4.

Alex Cole-Hamilton

I will try to be brief. I will speak against all the amendments in the group, but particularly amendments 4 and 5. I strongly disagree with the premise of amendment 4, which suggests the existence of parental rights in relation to the use of physical force. In every evidence session at stage 1, we rehearsed the fact that there is no such right enshrined in international conventions or treaties.

Oliver Mundell

I accept the member’s point but, in Scots law, there are clear cases of that. The member has set out some of them himself, such as picking up a child, holding back a child and pulling a child’s hand away. Does the member accept that those are uses of physical force?

Alex Cole-Hamilton

I do not disagree that there is a right to restraint, but we are perhaps getting into a semantic argument that is better suited to the stage 3 debate in the chamber. To me, “physical force” suggests a punitive element, whereas “restraint” does not, and that is an important distinction. As such, amendment 4 would lend confusion to what is otherwise a clear bill.

Another aspect of amendment 4 is about children who are witnesses in criminal proceedings involving their parent or guardian. That strays beyond the scope of the bill. It would feel like an aberration if it was in the bill in isolation, with no reference to other legislation that deals specifically with that.

Oliver Mundell

The member might note that, under paragraph (1B) of amendment 4, any guidance would be only

“on the operation of this Act.”

That might clarify the point.

Alex Cole-Hamilton

I am grateful for that, but I still think that that goes beyond the scope of the bill.

On amendment 5, when the Lord Advocate gave helpful oral evidence to the committee a couple of weeks ago, he could not have been clearer that he intends to produce statutory guidance. Frankly, it is extraordinary that we as parliamentarians should seek to compel the Lord Advocate towards the production of prosecutorial guidance, when it is his job to do that and he has said that he is going to do it. He knows that this is one of the most sensitive bills that the Parliament will pass in this session. As such, I would expect the production of guidance on it to be at the top of his in-tray. It is wholly unnecessary for us to start directing his work through primary legislation. For that reason, I will not support any of the amendments in the group.

Mary Fee

I want to speak to amendment 6. On first reading, there is no reason why I would not have sympathy for it, given that it asks for support for children. I have a great deal of sympathy for the idea that support should be provided to children in instances of arrest or criminal proceedings or prosecution. I have done a considerable amount of work, with families who have been affected by imprisonment, on the impact of prosecution on a child and the long-term mental health impact that any interaction with a criminal prosecution can have on a child. I have often said in Parliament that children are the forgotten victims of crime. When an adult carer is arrested and removed from the home, the children are often forgotten.

I will explain what has pulled me back from supporting amendment 6. I have a deal of sympathy with Alex Cole-Hamilton’s comments. I think that what amendment 6 proposes goes beyond the scope of the bill. Support for children should be provided regardless of whether the circumstances relate to the bill; support should be provided in relation to any situation involving prosecution. Perhaps Oliver Mundell could provide some clarification when he winds up, because I was slightly confused when he mentioned independent legal advice. What I have in mind is more along the lines of emotional support on the way through prosecution. If we limit the support that can be provided to legal advice and restrict its provision to circumstances that relate to the bill, we will miss an opportunity. The issue of support goes way beyond the scope of this bill.

Maree Todd

The Government does not support amendments 4, 5 and 6.

First, it is proposed that the Scottish ministers should provide guidance on the rights of parents to use restraint. Physical punishment is not needed to keep children from harm. The bill will not affect the ability of parents or carers to use restraint to stop a child coming to harm. Information about limits on the use of physical force could undercut the key aim of the bill, which is to remove the reasonable chastisement defence. Any such information could simply be a guide to the use of force.

I would like to respond to the exchange between Oliver Mundell and Adam Tomkins. The bill is intended to give children equal protection from assault. The law on assault is clear. At stage 1, the committee heard evidence that police officers and prosecutors apply it on a daily basis; there is no problem with the clarity of the law. The bill will increase the clarity of the law.

Adam Tomkins

At stage 1, you said:

“At the heart of the defence is the concept that it can sometimes be reasonable to strike a child.”

You went on to say:

“removal of the defence reflects the growing body of international evidence that shows that physical punishment of children is harmful and ineffective.”—[Official Report, 28 May 2019; c 14.]

That is all fine, but do you accept that the bill goes further than that and that it will criminalise not merely striking or physically punishing a child, but all assaults against children, regardless of whether they involve a physical attack? Do you accept that the law of assault is broader than that and that, therefore, the bill will, by removing the defence of reasonable chastisement, bring into the ambit of the criminal law more than simply striking or physically punishing a child?

Maree Todd

I accept that the law of assault is broader and that it includes an attack that puts the victim into a state of fear of immediate physical injury. Is Mr Tomkins suggesting that it should be permissible for a parent to do that?

Adam Tomkins

What I am saying is that the bill should reflect its policy objective. The bill’s policy objective could not be clearer—it is to outlaw the physical punishment of children. Rightly or wrongly, inadvertently or deliberately, as drafted, the bill does that and then some. It does more than that. In the interests of clarity—which I think is a cardinal value in criminal law—I seek to amend the bill or to urge that the bill be amended so that it accurately reflects its stated ambition, as set out in the policy memorandum.

Maree Todd

As I have said already, the intention of the bill is to give children equal protection from assault. The law of assault is perfectly clear in Scotland; it is prosecuted day in, day out. I think that you are casting doubt where none exists.

Amendment 4 does not make clear what it means by the term “common situations”. For example, some children with autism can be oversensitive to touch and they experience pain differently. Rather than what is set out in amendment 4, our plan is to raise awareness in line with the duty set out in section 2, taking account of children with special needs and other vulnerable children. That is consistent with what the committee said at stage 1.

Amendment 4 also proposes that the Government issue guidance on

“best practice on alternatives to prosecution”.

This cuts across the constitutional independence of the Lord Advocate and the courts. It would not be appropriate for the Scottish Government to issue guidance that infringes on that independence. Nor would it be appropriate for the Scottish Government to issue guidance that, in establishing limits of force, restricts the courts’ ability to take into account the particular facts and circumstances of each case. Universal and targeted services and voluntary organisations already offer extensive support in relation to issuing guidance for families.

I am concerned about the implications of amendment 5 for the Lord Advocate’s independence. Generally speaking, it is for him to independently determine prosecution policy and any guidelines that he issues to Police Scotland. It is also generally a matter for the Lord Advocate to decide whether such guidance should be published.

I understand that, in making that decision, the Lord Advocate considers whether publication would be liable to prejudice the prevention or detection of crime. There is a clear risk that this guidance, if published, could be used as a guide to avoiding prosecution. It could also undermine the clarity that the bill seeks to provide.

Oliver Mundell

Why, then, did the Lord Advocate commit to issuing similar guidance when he appeared before the committee?

Maree Todd

I cannot speak for the Lord Advocate, but it is perfectly usual for the Lord Advocate to issue guidance. That is not an unusual thing for him to do. It does not need to go into statute on the face of a bill, though. That would be unusual. A statutory duty in those terms is simply not needed.

The committee has heard from the Lord Advocate that he intends to issue guidance and 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 committee also heard from the Lord Advocate about the two things that a prosecutor will consider when assessing a report of an alleged crime: first, whether there is credible evidence that a crime has been committed and,

“secondly, if there is sufficient evidence, what action ... would be in the public interest ... The Scottish prosecution code sets out the factors that may, depending on the circumstances, be relevant in assessing the public interest.”—[Official Report, Equalities and Human Rights Committee, 6 June 2019; c 3, 2.]

Police Scotland has confirmed its intention to issue national training on removal of the defence. Again, this clearly shows that amendment 5 is not needed.

On amendment 6, the Victims and Witnesses (Scotland) Act 2014 makes extensive provision for the rights of vulnerable witnesses, including children, and the support that they are entitled to access. Similarly, provisions within the recent Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 provide for reforms relating to special measures for vulnerable witnesses such as children in criminal cases, including the greater use of pre-recorded evidence at trial. There is therefore no need for amendment 6 and, in potentially delaying the abolition of the defence, it makes the picture for children’s rights worse, not better.

Finally, these amendments state that section 1 cannot come into force until the publication duties have been complied with. Who is to say when that has happened, so that section 1 can come into force? For all those reasons, I invite the committee to reject amendments 4, 5 and 6.

John Finnie

The amendments in this group seek to make the proposed legislation’s commencement conditional on the issuing of ministerial and prosecutorial guidance. The amendments are technically flawed and would not work as intended. The bill’s substantive provisions would automatically come into force 12 months after royal assent, and none of the amendments as drafted would prevent that from happening.

Preconditions on commencement can be meaningfully set only if there is some flexibility about timing in the first place, most obviously by having commencement by regulations and by saying that ministers may not bring the act into force until they have done X, Y and Z. If any of the amendments were agreed to and some of the additional things that are listed had not been done by the 12-month deadline, there would be genuine uncertainty as to whether section 1 was or was not in force, which would simply cause confusion in the law, to no one’s benefit. It would distract from the clarity that the bill aims to deliver.

It is not clear who the guidance that is referred to in amendment 4 is directed at, and what status it is expected to have. Is the guidance meant for parents, the police, social work services or prosecutors? The committee has been told that current guidance and/or information will be provided or updated for all those groups.

The Scottish Government provides guidance and support to parents via a number of agencies, including social work and health boards. Police and prosecutorial guidance is a matter for the police, the Lord Advocate and COPFS, and information is already publicly available in the prosecution code, including the public interest test. There has been lots of evidence to the committee on that.

Amendment 6 appears to be a stripped-down alternative to amendment 4, omitting paragraphs (1C)(a) to (c) of amendment 4. Therefore, the same questions as those that I asked about amendment 4 apply. Again, it is not clear who the guidance that is referred to is directed at and what status it is expected to have.

Amendment 5 contains an inherent contradiction between issuing guidance on policy, which must be in general terms, while at the same time ensuring that it is appropriate to the

“individual circumstances of particular cases”.

The Lord Advocate told the committee clearly that guidance will be prepared and issued to the chief constable. He 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.”

He went on to say:

“I issue guidelines to the chief constable, and it is then his responsibility to disseminate the instructions to his officers on the ground.”

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. He told the committee:

“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. At the same time, prosecution will be enabled when that is properly justified by reference to the circumstances of the individual case. The approach will be informed by our responsibility to protect children from harm and”—

importantly—

“by a consideration of the best interests of the child.”—[Official Report, Equalities and Human Rights Committee, 6 June 2019; c 3,9,3.]

Therefore, amendment 5 seems to add no value to the work that the Lord Advocate has already confirmed is under way.

I ask members to reject all the amendments in the group.

Oliver Mundell

It has been an interesting discussion. I am happy to clarify the status of and intended audience for guidance in revised amendments at stage 3 and to look at adding clarity to some of the terms used.

On the commencement issue, it was not actually a condition that I was looking for; rather, it was a matter of how to get guidance issues discussed. There was nowhere else for such provisions to fit easily into the bill and I was advised that that wording was the best way to do it. I will look at the possibility of removing the wording at a later stage.

On Mary Fee’s points, as I said to Alex Cole-Hamilton, the amendments only refer to guidance

“on the operation of this Act”.

Secondly, paragraph (1I) of amendment 6 says that the guidance would not be limited to

“independent legal advice and contact with a nearest relative or other trusted adult”.

It is just that those are two things that I feel strongly about. Independent legal advice is important because, in these marginal or difficult cases, children should be able to understand the probability of success of court action, how they wish to interact with that and what their rights are.

The nature of a relationship between a child and their parent is special and is recognised as being legally different from other relationships in law. Given the sensitivities around charges that are likely to be made as a result of the defence being abolished, it is really important, and I am sorry that I have not pursued this in relation to other offences. It is an important point.

I accept the consensus view on amendment 5 and I will not seek to push it. However, I will press amendment 4 and seek to move amendment 6 at this stage. They could be tidied up or perhaps moved to another section of the bill at stage 3.

The Convener

The question is, that amendment 4 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 4 disagreed to.

Amendment 5 not moved.

Amendment 6 moved—[Oliver Mundell].

The Convener

The question is, that amendment 6 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 6 disagreed to.

The Convener

Amendment 7, in the name of Oliver Mundell, is in a group on its own.

Oliver Mundell

I do not intend to speak to amendment 7 for long because, judging by the previous debates, I do not imagine that it is likely to get any support. The simple intention is to ensure that bodies are properly resourced. Despite the minister’s letter of 12 June, there is still some uncertainty around that point and it is important that Parliament at least gives thought to the issue. I also know that other members might take an interest in the issue at stage 3.

I move amendment 7.

Maree Todd

Amendment 7 seems to be an attempt to delay the bill. Outside the ordinary budget process, it would be unusual for the Scottish Government to provide a statement on the resources being provided to various bodies, and for the Parliament to specifically approve that.

In response to the committee’s stage 1 report, the Scottish Government wrote to members of the implementation group to seek information about costs. We have provided the committee with a letter outlining the results of our discussions with the implementation group, and we will have further discussions with members of the group.

Resources required in relation to the bill would be one-off implementation costs and on-going costs. It is not clear if the resources referred to in amendment 7 are intended to cover implementation costs or running costs, or both. It is also not clear for what time period resource implications should be reported to Parliament.

The various bodies that will be affected by the bill can be expected to seek additional funding as a result. That will be considered as part of the usual Government budget procedures, including the budget bill, which Parliament scrutinises each year.

The best approach is to rely on the usual budget bill process rather than to invent a new uncertain, bespoke procedure, which, frankly, just seems to be an attempt to delay the bill.

The same concerns that I raised on amendments 4, 5 and 6 also apply to amendment 7, because of the uncertainty that it would create over how we would know whether the bill was in force. For those reasons, I invite the committee to reject amendment 7.

John Finnie

The financial resolution procedure is designed to ensure Parliament’s approval of expenditure associated with a bill, should that amount be considered significant. In this case, no resolution was considered to be required. Of course, there is also the opportunity for the Parliament to scrutinise the Scottish Government’s budget.

No other example comes to mind of a bill being passed by Parliament but then being unable to be brought into force until a financial statement has been published and subject to Parliament’s approval. It would be interesting to know whether the member who lodged the amendment has any such examples. Does he believe that there should be a new stage 4 for all bills? Perhaps it would be just for those bills with which he does not agree.

The financial memorandum sets out the estimated costs of the bill, and the Scottish Government has commented on the work that it is undertaking to prepare for its implementation.

The committee heard from relevant agencies and the Government that the costs associated with the bill would not be prohibitive; they also said that they are difficult to estimate with any certainty at the moment.

The amendment seems to presuppose that additional resources would be required. If the ministers consult the specified people and they all say that the commencement of section 1 would not require any additional resources, ministers would publish a statement to that effect. If the Parliament then passed a resolution saying that it agreed with that view, would that count? That would appear not to meet subsection (1M) of amendment 7, as it would not be a resolution that

“the resources set out in the statement ... are sufficient”,

since the statement would not “set out” any additional resources.

I hope that members followed that—it was as straightforward as the proposal itself. I apologise.

Finally, during stage 1, there seemed to be no strong view that resource funding was a major issue with the bill. Indeed, the Parliament’s Finance and Constitution Committee received only one submission in response to its consultation on the financial memorandum to the bill.

I ask committee members to vote against Oliver Mundell’s amendment 7.

Oliver Mundell

I am not surprised that the member in charge of the bill did not pay much attention to the minority statement in the stage 1 report, in which Annie Wells and I drew attention to our concerns about drawing existing resources away from children who most need support most, and—

John Finnie

Will the member take an intervention?

Oliver Mundell

Certainly.

John Finnie

I am grateful to you. I did not comment on that—I was commenting on the response that the Parliament’s Finance and Constitution Committee received.

Oliver Mundell

With all due respect, I am not a member of that committee. I moved amendment 7 with a view to satisfying the concerns that I had in relation to stage 1. From my constituency work and my wider work in the Parliament on children and young people, I am aware of the big pressures on resources in many of the organisations that are listed. It is no secret that I do not support the general principles of the bill, because of its vagaries and the difficulties that it will pose. Given my view that the bill is unnecessary, we should be absolutely satisfied that those organisations have the resources to implement it and that it does not force them to change their practices. That is what amendment 7 is intended to do.

I press amendment 7.

The Convener

The question is, that amendment 7 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 7 disagreed to.

The Convener

Amendment 8, in the name of Annie Wells, is in a group on its own.

Annie Wells

During stage 1, we received evidence from the Crown Office and Procurator Fiscal Service that limited data were available. Amendment 8 would ensure that there would be better evidence before the bill comes into force.

It has been clear since stage 1, and as the bill has progressed, that we need more data about the number of cases in which the defence of reasonable chastisement has been considered and has been a relevant factor. We have been told that the available data are very limited. That proves my point that we need more data to understand the situation before section 1(1) comes into force and that my amendment is necessary.

I move amendment 8.

Alex Cole-Hamilton

I partly understand why Annie Wells has lodged amendment 8. However, to turn her own argument against her, data to do with the use of the legal defence of reasonable punishment are so scarce precisely because such a defence is barely ever used. That is because—this should give her confidence—the best interests principle and the public interest test are always applied effectively by the Crown Office and Procurator Fiscal Service in taking cases through the courts.

The Lord Advocate offered us comfort that, through his guidance, he will reassert that the best interests principle and the public interest test will be applied before any case is taken to court. As such, we will not see legions of parents marched through the courts as a result of the bill; it will simply lead to a cultural shift that I believe the bill’s supporters around the table would like to see.

Maree Todd

Amendment 8 seems fundamentally to be an attempt to delay the bill. We have already indicated that we do not have statistics on the use of the defence in court cases. The reason is that the Government’s criminal proceedings database does not hold information relating to defences that are lodged in criminal trials. Our statistics are derived from data that are held on the criminal history system—the CHS. That central hub is used for the electronic recording of information on people who are accused and/or convicted of perpetrating a criminal act. Information relating to defences that are lodged is not recorded in an electronically extractable format and is therefore not held on the CHS.

Gail Ross

Does the minister agree that, if the data are not available and are unable to be extracted, the amendment would—if it was agreed to—mean that the whole bill would be delayed forever and would never go ahead?

Maree Todd

Absolutely—amendment 8 is fundamentally an attempt to delay the bill.

People will make a plea of guilty or not guilty at the start of a criminal case. There is no plea of justifiable assault or reasonable chastisement. More generally, the amendment refers to

“data on the effect of”

the defence, and “analysis of that data.” Of course, that is not just about the number of times that the defence is used in court—it is also about the negative effect of the current defence of reasonable chastisement. As the committee heard, there is a wealth of evidence—

Fulton MacGregor

The minister says that the Government does not have the stats on how often the defence is used. Would she accept that, given some of the evidence that we have heard in committee and what Alex Cole-Hamilton said earlier, it is likely that it is used very little, and that practitioners such as social workers, teachers and police officers who deal with children day in, day out rarely think about the defence when they are assessing situations?

Maree Todd

It is clear that we cannot get that data without interrogating manually all the evidence to do with those cases and prosecutions. Amendment 8 is undoubtedly an attempt to delay the bill’s introduction.

I want to talk about the negative effect of the current defence of reasonable chastisement. We received, and the committee has heard, a wealth of evidence about the negative impact of physical punishment on children. There are many written reports on that—

The Convener

I am loth to cut you short, minister, but I am conscious that I asked members to focus on the amendments. We will all have an opportunity at stage 3 to make such points.

Maree Todd

I was focusing on the amendment. The amendment refers to

“data on the effect of”

the defence, and “analysis of that data.” That relates to the evidence on whether the defence has a negative impact on children.

I do not think that we need any more data on the effect of the defence. As we have well established, reasonable chastisement has a negative effect. Let us remove it, and let us not delay the bill. For those reasons, I urge Annie Wells not to press amendment 8 to a vote. If it is pressed, I invite the committee to reject it.

John Finnie

The committee has already heard from COPFS and the Lord Advocate that such data are not available. Therefore, it would not seem wise to legislate to require publication of data that the relevant bodies have already confirmed are not available.

The amendment is also vague in its reference to

“cases in which that rule is considered to have been a relevant factor”.

Considered by whom? What factors are relevant? Are cases to include incidents that were investigated, or only those that were prosecuted or heard in court? Over what timescales?

I will give an example. If the police did not record a smacking as a crime because the police constable who attended saw it as an exercise of reasonable chastisement, that might count as such a case, but there would not be any data on it precisely for that reason.

There is also the issue of what value data would add, if it were available in advance of section 1 coming into force. In what way would it be analysed? Surely more relevant is the number of cases of assault against children that have been brought, the nature of those cases and the outcomes. The Lord Advocate and Anne Marie Hicks, the national procurator fiscal for domestic abuse at COPFS, spoke to the committee about that. I ask committee members to vote against amendment 8 in the name of Annie Wells.

Annie Wells

I clarify that the amendment was never meant to be a delaying tactic. I thought that it was relevant, having heard the Lord Advocate himself say that there might be an increase in reporting. I thought that we should see some evidence of that. My amendment is about the practical effects on children. For that reason, I press it to a vote.

The Convener

The question is, that amendment 8 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mundell, Oliver (Dumfriesshire) (Con)
Wells, Annie (Glasgow) (Con)

Against

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 8 disagreed to.

Sections 4 and 5 agreed to.

The Convener

The question is, that the long title be agreed to. Are we agreed?

Members: No.

The Convener

Members should note that there will not be a division on this question, but the dissent of Annie Wells and Oliver Mundell is noted.

Long title agreed to.

The Convener

That concludes stage 2 consideration of the bill. It will now be reprinted as amended at stage 2.

The Parliament has not yet determined when stage 3 will be held; members will be informed of that in due course, along with the deadline for lodging stage 3 amendments. In the meantime, stage 3 amendments can be lodged with the clerks in the legislation team. I thank John Finnie and the minister, Maree Todd, along with her officials, for their attendance.

The committee’s next meeting will be on Thursday 27 June, when we will discuss our approach to the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill.

The Presiding Officer (Ken Macintosh)

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

Adam Tomkins (Glasgow) (Con)

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.

Adam Tomkins

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.

Section 1—Abolition of defence of reasonable chastisement

The Presiding Officer

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.

Oliver Mundell (Dumfriesshire) (Con)

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.

Alex Cole-Hamilton (Edinburgh Western) (LD)

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—

Oliver Mundell

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.

Alex Cole-Hamilton

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.

Oliver Mundell

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.

Alex Cole-Hamilton

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.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

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.

Oliver Mundell

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?

Gail Ross

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.

The Minister for Children and Young People (Maree Todd)

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”?

Oliver Mundell

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.

Maree Todd

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?

Oliver Mundell

Will the minister take an intervention?

Maree Todd

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.

Oliver Mundell

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.

Maree Todd

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.

Liz Smith (Mid Scotland and Fife) (Con)

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

Maree Todd

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.

Oliver Mundell

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

Maree Todd

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.”

Oliver Mundell

Will the minister take an intervention?

Maree Todd

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.

Johann Lamont (Glasgow) (Lab)

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.

Maree Todd

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.

Alex Cole-Hamilton

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?

Maree Todd

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.

Adam Tomkins

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?

Maree Todd

We 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.

Oliver Mundell

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.

Maree Todd

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.

Daniel Johnson (Edinburgh Southern) (Lab)

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.

Maree Todd

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

The Presiding Officer

Order.

Maree Todd

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.

John Finnie (Highlands and Islands) (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 Scotland 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.

Oliver Mundell

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.

John Finnie

He is an interesting choice. I have to say that, in general, I would defer on 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.

Oliver Mundell

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?

John Finnie

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

Oliver Mundell

The member is not answering the question.

John Finnie

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 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—

Oliver Mundell

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?

John Finnie

Can the member repeat the question?

Oliver Mundell

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

John Finnie

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

Oliver Mundell

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?

John Finnie

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.

Adam Tomkins

Will the member take one more intervention?

John Finnie

No.

Oliver Mundell

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.

Alex Cole-Hamilton

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.

Oliver Mundell

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—

Mike Rumbles (North East Scotland) (LD)

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?

Oliver Mundell

I do not accept that. I speak on behalf of other Conservative members 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 substandard 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.

The Presiding Officer

We move to the division on amendment 2

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

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 Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

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

Amendment 3 disagreed to.

Section 4—Commencement

The Presiding Officer

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

Richard Lyle (Uddingston and Bellshill) (SNP)

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.

Alex Cole-Hamilton

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.

Oliver Mundell

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?

Alex Cole-Hamilton

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.

Oliver Mundell

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 towards 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.

Gail Ross

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.

Oliver Mundell

Will the member take an intervention?

Gail Ross

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.

Pauline McNeill (Glasgow) (Lab)

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.

Maree Todd

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.

Oliver Mundell

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.

Maree Todd

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.

Oliver Mundell

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.

Maree Todd

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.

John Finnie

I thank my friend and colleague Richard Lyle for coming to discuss amendment 1 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 will 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.

Richard Lyle

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.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

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

Amendment 1 disagreed to.

The Presiding Officer (Ken Macintosh)

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.

John Finnie (Highlands and Islands) (Green)

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.

The Minister for Children and Young People (Maree Todd)

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—

Jamie Greene (West Scotland) (Con)

Will the minister take an intervention?

The Deputy Presiding Officer (Linda Fabiani)

The minister is just closing.

Maree Todd

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.

Oliver Mundell (Dumfriesshire) (Con)

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.

Alex Cole-Hamilton (Edinburgh Western) (LD)

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?

Oliver Mundell

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.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

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?

Oliver Mundell

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.

Andy Wightman (Lothian) (Green)

Will the member take an intervention?

Oliver Mundell

Certainly.

The Deputy Presiding Officer

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.

Anas Sarwar (Glasgow) (Lab)

I can help you with that. [Laughter.]

Mary Fee (West Scotland) (Lab)

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.

Liam Kerr (North East Scotland) (Con)

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

Mary Fee

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.

Michelle Ballantyne (South Scotland) (Con)

Will the member take an intervention?

Mary Fee

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.

Alison Johnstone (Lothian) (Green)

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.

Alex Cole-Hamilton (Edinburgh Western) (LD)

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?

Liam Kerr

Will the member give way?

Alex Cole-Hamilton

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.

The Deputy Presiding Officer

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

Ruth Maguire (Cunninghame South) (SNP)

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.”

Liam Kerr

Will the member take an intervention?

Ruth Maguire

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.

Gordon Lindhurst (Lothian) (Con)

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.

Daniel Johnson (Edinburgh Southern) (Lab)

Will the member take an intervention?

Gordon Lindhurst

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.

Daniel Johnson (Edinburgh Southern) (Lab)

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.

Liam Kerr

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?

Daniel Johnson

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.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

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.

The Deputy Presiding Officer

We move to the closing speeches.

Iain Gray (East Lothian) (Lab)

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.

Liz Smith (Mid Scotland and Fife) (Con)

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.

Alex Cole-Hamilton

Will the member take an intervention on that point?

Liz Smith

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.

Maree Todd

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.

Michelle Ballantyne

Will the minister take an intervention?

Maree Todd

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

Michelle Ballantyne

It is on that point.

Maree Todd

Certainly.

Michelle Ballantyne

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?

The Deputy Presiding Officer

Remember always to speak through the chair, please.

Maree Todd

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.

John Finnie

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.

The Presiding Officer (Ken Macintosh)

The question is, that motion S5M-18623, in the name of John Finnie, on the Children (Equal Protection from Assault) (Scotland) Bill at stage 3, be agreed to. As the motion is on passing a bill, there will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

The Presiding Officer

The result of the division is: For 84, Against 29, Abstentions 0.

The motion is agreed to and the Children (Equal Protection from Assault) (Scotland) Bill is passed. [Applause.]