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Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006

Volume 684: debated on Tuesday 4 July 2006

rose to move, That the Grand Committee do report to the House that it has considered the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006.

The noble Lord said: The purpose of the draft order is to take account of two decisions of the European Court of Human Rights and therefore bring Northern Ireland law back into line with the European Convention on Human Rights. It will be helpful if I comment briefly on the background to the order and say a few words about its substantive provisions.

In the case of A v the United Kingdom in 1998, the European Court of Human Rights held that the United Kingdom had breached Article 3 of the convention by failing to provide a young boy with adequate protection against inhuman and degrading treatment in the form of beatings from his stepfather. When the matter was before the domestic courts, the stepfather had relied on the defence of reasonable chastisement. Following the judgment, the United Kingdom undertook to review the operation of the defence and to introduce measures that would prevent a repeat of the violation found by the Court. Article 2 of the order effects the required amendments.

In the case of B and L v the United Kingdom, the European Court ruled that the United Kingdom law breached Article 12, which refers to the right to marry, by placing limitations on the right of parents-in-law to marry their former children-in-law. Article 3 of the order remedies this breach.

Article 1 sets out the title and interpretation provisions of the order, and provides that the order will come into effect two months after it has been made. Article 2, which relates to children, largely follows Section 58 of the Children Act 2004. It restricts the defence of reasonable chastisement to a charge of common assault and precludes its use for more serious charges, such as wounding, causing grievous bodily harm, assault occasioning actual bodily harm, or cruelty to persons under 16. It also precludes the use of the defence in a claim for civil damages where the harm caused amounted to actual bodily harm.

Article 3 repeals the offending provisions of Article 18 of the Family Law (Miscellaneous Provisions) (Northern Ireland) Order 1984, which prohibits a man from marrying his former daughter-in-law unless both his son and the mother of his son are dead. The article removes any restriction on the marriage of in-laws.

Article 4 repeals corresponding provisions preventing a man or woman from forming a civil partnership with the former spouse or civil partner of his or her child. These civil partnership provisions were not commenced on 5 December 2005, and the order provides an opportunity to remove these redundant provisions from the statute book.

Article 5 also tidies up the statute book by removing legislative provisions relating to prohibited degrees that have been superseded by subsequent amendments. Article 6 makes a minor technical correction to Schedule 16 to the Civil PartnershipAct 2004, which applies only in Northern Ireland, to ensure that courts of summary jurisdiction have the full range of powers to vary orders for financial relief on relationship breakdown.

The order provides necessary law reform in these two areas, both of which result from European Court judgments, to ensure the law in Northern Ireland is compliant with the convention. Article 2 in particular is a vital step towards offering added protection to children. It has been a long time coming, and there has been a good deal of debate about it, but I hope that, with the passing of the order, we will comply with the European Court of Human Rights and offer children in the United Kingdom approximately the same protection wherever they live. I beg to move.

Moved, That the Grand Committee do reportto the House that it has considered the Law Reform (Miscellaneous Provisions) (Northern Ireland)Order 2006.—(Lord Rooker.)

As the Minister said, Article 2 largely replicates Section 58 of the Children Act 2004 by restricting the defence of reasonable chastisement, but it does not remove it altogether. Children in Northern Ireland need protection equal to that enjoyed by adults under the laws on assault, but in fact Section 58 does not give it to them. Although we welcome the fact that the Government are now turning their attention to protecting children in Northern Ireland, why has it taken since 2004 to address the matter? The Government have claimed that Section 58 makes them compliant with their obligation under the convention, but it is not for the Government to rule on this; it is for the Council of Europe, which has not done so.

I have received a copy of a formal letter of complaint that was sent to the Office of Law Reform in Belfast, from a group of children’s organisations with the support of the Children’s Commissioner for Northern Ireland. The group points out in a letter that:

“The Office of Law Reform is bound under section 75 of the Northern Ireland Act 1998 to comply with the Department of Finance and Personnel’s approved Equality Scheme. Paragraph 3.5 of the Department of Finance and Personnel’s approved Equality Scheme states that,

‘Consultation with groups and individuals will begin as early as possible and the Department is committed to carrying out consultations in accordance with the Equality Commission Guiding Principles. The Department will consult with the bodies listed in Annex C in relation to Section 75 duties, screening and the Scheme itself …’.

The Children’s Law Centre, Children in Northern Ireland (formerly Childcare NI), Parents Advice Centre and Save the Children are specifically listed in Annex C of the Department of Finance and Personnel’s approved Equality Scheme as organisations which should be consulted with at policy screening stage. There has been no consultation on the screening of the proposals to introduce article 2 of the Draft Law Reform (Miscellaneous Provisions)(Northern Ireland) Order 2006. This is in breach of the Department of Finance and Personnel’s approved Equality Scheme and the failure to consult as part of screening decisions is stated as one of the list of matters that could potentially amount to a breach of an approved scheme at paragraph 5.12 of the Equality Commission’s Guide to the Statutory Duties Revised February 2005 … Having screened in the proposal to replicate Section 58 of the Children Act 2004, the Office of Law Reform is bound to give consideration to carrying out an Equality Impact Assessment … The Office of Law Reform did not make a recommendation to proceed with the carrying out a full Equality Impact Assessment”.

If it had done so, it would have found that,

“there is a clear adverse differential impact on children by the replication of section 58 of the Children Act 2004 in that the defence of reasonable chastisement is not removed from common assault but only from the offences set out in Article 2(2) of the Draft Law Reform (Miscellaneous Provisions)(Northern Ireland) Order 2006”.

This group of organisations,

“request the Office of Law Reform to halt the progress of the introduction of article 2 of [this order] pending the outcome of this formal complaint under Schedule 9 paragraph 10 of the Northern Ireland Act 1998”.

Noble Lords may wonder why these organisations representing children are opposed to a measure that purports to protect them. It is because they and hundreds of other organisations across Northern Ireland and the rest of the UK believe that it represents a step backwards in the campaign to satisfy our human rights obligations by affording children equal protection under the law on assault in all parts of the UK. They believe, as I do, that Section 58 is unjust and unsafe and is bad law. If they had been properly consulted, they would have had the appropriate opportunity to express those feelings. They have six brief reasons and I shall not detain noble Lords long in detailing them.

First, they believe that if this order goes through it would recycle England’s unjust compromise. The four UK Children’s Commissioners made it clear in their 22 January joint statement that there is “no room for compromise”. They said:

“We urge the Government and the Scottish Executive to promote consistent legislation throughout the UK to give children full protection under the law on assault”.

Secondly, both they and I believe that it does,

“not satisfy our human rights obligations … when we need full compliance with important UN and Council of Europe human rights treaties to which the UK is a party. The UN Committee on the Rights of the Child recently reminded all signatories to the Convention on the Rights of the Child, including the UK, that … equal protection for children is an ‘immediate and unqualified obligation’”.

Thirdly, it will,

“promote inequality … when what we need is consistency with Northern Ireland’s equality standards, which means affording children the same protection under the law on assault that adults take for granted”.

Fourthly, in some circumstances it would,

“condone hitting children … when we need the law to say that hitting children is as unacceptable as hitting anyone else”.

Fifthly, it causes parental confusion when what we really need is clarity to help parents move on to using positive non-violent discipline.

Finally, Section 58 creates legal ambiguity when what we need is an unambiguous message that all violence against children, however much we dress it up with cosy euphemisms such as “smacking”, is unlawful and unsafe. Will the Minister say whether there will be an opportunity to address these matters fully on the Floor of the House? What response will be sent to the organisations that have complained about a lack of proper consultation under the Act that I mentioned? Will the Minister also say whether the Government will consider moving further in the light of the change of opinion that has occurred in the House of Commons since the Act was passed in 2004—a very long time ago?

A recent Early-Day Motion on the matter has obtained more than twice the number of signatures obtained by a similar Early-Day Motion before we discussed this matter in 2004, so it is quite clear that the matter is very contentious and deserves airing on the Floor of the House. However, we very much welcome Articles 3 to 5 of the order.

I start by declaring an interest in that I am the chairman of Barnardo’s in Northern Ireland and a trustee in Great Britain.

Before I speak to Article 2 of the order on the physical punishment of children, I must say that I welcome the attention that the Government have recently given to children’s issues in Northern Ireland and the fact that they have made policy and legislative development a priority. The current executive team at the NIO has taken steps to ensure that children in Northern Ireland should be afforded the same protections in the law as those in this jurisdiction, both in this order and in sexual offences legislation and child protection structures. Any additional protections against assault for children must be welcomed. However, I am disappointed that the Government have not yet gone beyond the limited provision in Section 58 of the Children Act, which is replicated in the order, to give children equal protection against assault under the law. It would have been an opportunity to send out a powerful message in a part of the United Kingdom where violence has been institutionalised in both family and community life.

The provisions fall short of what I believe is required under the United Nations Convention on the Rights of the Child. I hope, and firmly believe, that the Government will move to a position of complete legal reform—a move already made by many European countries. What is most important is changing public attitudes to the use of physical punishment, and this legislation provides us with the opportunity to do this. The defence of reasonable chastisement has probably not been used much in Northern Ireland cases, but its availability has acted as a drag on policy making. If we are to make progress on moving away from the use of physical punishment, it is essential that the Government provide a lead and take a strategic approach to the order’s implementation. I therefore seek a number of very specific assurances from the Minister, and I hope, as I have provided advance warning of these, that he will be able to do so for the Hansard record.

First, the implementation of the order needs to have a strategic approach and clear vision. Will the Minister say what this will be and outline timetables? Can he assure me that a component of the strategy will be a regional campaign to raise public awareness for professionals, parents and carers, and will he outline what this will look like? Will he also give an assurance that the legislation will not result in unmerited prosecutions of parents, and that it is ultimately designed to support parents to find positive methods of disciplining children? Does he agree that health visitors and midwives play an important role in primary prevention, and that all should routinely provide advice on positive parenting? I would welcome an assurance that the HPSS will issue a circular alerting both medical and social care staff to this legislative change, and that it will in time issue guidance for staff on this issue.

The Department of Education has an important role in developing a positive parenting strategy. Can the Minister give an assurance that the department will be fully involved in doing this? I would also like some assurance that the development of a strategy will involve all relevant government departments, and that the strategy will be taken forward by a cross-departmental implementation group with appropriate links to the children’s voluntary sector. Will he ensure that both the PSNI and the PPS keep statistical information relating to physical punishment cases that will allow benchmarking and comparisons to be made following implementation of the order? Finally, the United Kingdom Government have indicated that they will review the operation of Section 58 in England and Wales. Can I ask that this corresponding provision in Northern Ireland is also reviewed?

I conclude by saying that I recognise the good intent behind the legislation irrespective of whether it goes far enough. The above actions could make it much more of a success for parents, carers and children by bringing about a change of attitude to the disciplining of children.

I apologise for missing some of the Minister’s remarks, but I want to address the same subject as the last two speakers. My views on this issue are very well known in the House. For more than a decade the UK has been roundly criticised by United Nations and European human rights bodies for having legislation which allows parents and some others to justify assaults on children as reasonable punishment. The legislation which the Government now propose to impose on Northern Ireland through this order allows common assault to be justified as reasonable punishment. As the independent expert leading the current UN Secretary-General’s study on violence against children said at a meeting in Parliament last December:

“There is nothing reasonable about hitting children”.

Our children deserve nothing less than equal protection under the law.

The UK expects other states to take their human rights obligations seriously and to respect the recommendations of human rights monitoring bodies. The four children’s commissioners, including Northern Ireland’s, have strongly criticised this legislation. The Council of Europe’s Human Rights Commissioner, Thomas Hammarberg, recently issued a paper calling for the prohibition of all corporal punishment across Europe. In it he states:

“Children have had to wait until last to be given equal legal protection from deliberate assaults—a protection the rest of us take for granted. It is extraordinary that children, whose developmental state and small size is acknowledged to make them particularly vulnerable to physical and psychological injury, should be singled out for less protection from assaults on their fragile bodies, minds and dignity”.

This Government have done much good for children, but they really should grasp the nettle and stop pursuing unsatisfactory and dangerous compromises like that expressed in this order and in Section 58 of the Children Act 2004. I hope that the Minister can give us an assurance that he will try to do something to ensure that this is not put into law in Northern Ireland.

The noble Baronesses who have just spoken have criticised the substance of these provisions by asking whether they reflect their views of the European Convention and other matters. They point out that this has stemmed from a compromise reached in this House in 2004. The point I want to make, however, is somewhat different. This is an area where the law for Northern Ireland is the same as that for England and Wales, and in a large number of areas the law is the same. It is enormously to be desired that in these areas where for largely historical reasons there is a notional devolution of legislative authority to a body that currently does not exist, the law of Northern Ireland should be kept in step with the law in England and Wales, where these matters are similar. Indeed, it is probably desirable that, so far as possible, any differences between the law in England and Wales and that in Northern Ireland should be removed as rapidly as possible, but that is a wider issue than the one I want to address here.

The law in England was changed in 2004. Now, two years later, the measure is being introduced in Northern Ireland by Order in Council, which means using the very abbreviated parliamentary process that we are currently engaged in compared with normal legislation by passing a Bill. What really should have happened was for the 2004 Act to be extended to Northern Ireland; then we would not have been in a situation where a two-year interval has arisen. If the noble Baronesses are not satisfied with the provision here, they must be even more dissatisfied with the fact that for two years the law has remained unchanged and not brought into line. That is my basic point. We are dealing with a form of legislation that is bad in so many ways, but particularly because it is so slow and inefficient. I have made this point many times over the years, but I just wanted to underline again to the Minister and to those who are listening and taking notes that there is no need for this delay. It should not have arisen. The law in Northern Ireland should have been changed in 2004, not in 2006.

Before the Minister responds, I should like to take up the point made by the noble Lord, Lord Trimble. When the legislation for England and Wales came on to the Floor of the House, I wanted to see if we could get Northern Ireland included in the Bill but was told that that was not possible. I have pursued every avenue in the two years since then. This does not go far enough, which we all know. My point was that I wanted parity for the children in Northern Ireland. That was the sole reason for making that point. I have had conversations about this with a number of organisations in Northern Ireland. As I said to the noble Baroness, Lady Walmsley, I raised the issue with a number of people who are now complaining. I understand that they were not formally approached, and I feared physical punishment getting out of the meeting.

I appreciate the points that have been made. I think I can answer most of them, but I shall certainly not be able to answer some of them satisfactorily. It is distressing that, by and large, in the current circumstances—direct rule with an Assembly that is suspended and that may not exist—Northern Ireland will always be behind the legislative progress and reform in the rest of the UK unless we actually start to legislate for Northern Ireland when we legislate for England and Wales—in the main, we do not do Scottish legislation any more. There is an incredible reluctance to do that for Northern Ireland, simply because of its history, but Northern Ireland should have its own devolved Administration.

By the way—and I do not say this to excuse the delay—the two Section 58s are not word perfect because criminal law in Northern Ireland is slightly different from that in England and Wales. I may be wrong, but I think Section 58 was imported on a free vote in the House. I do not blame the noble Baroness. Indeed, I would do the same myself; I would use every possible parliamentary avenue to fight the other battles that I had lost and to try to undermine those to come back. She is quite right to do that. However, Parliament decided the substance of Section 58 on a free vote, and it was not a complete ban. Whatever our individual views, Parliament took that decision, and we have tried to implement it. The delay is a difficulty.

I accept that Parliament voted for this compromise—the Minister accepts that it is a compromise—but will the Government stop claiming that it now makes us compliant with the European Convention on the Rights of the Child? It is for the Council of Europe and the committee that polices the convention, not for the Government, to decide whether the Government comply. The Government may think that they comply, but they cannot really claim that they do until that claim is endorsed by those organisations.

We shall make the claim until someone disclaims it. That is our view.

I shall also address the substance of the point made by the noble Baroness. I am not knocking the other points, but she made a point about the Northern Ireland commissioner and a number of voluntary organisations that have complained about the handling of the matter under Section 75. Section 75 is incredibly important for Northern Ireland. Great Britain has nothing like it. In some ways, that is to Great Britain’s disadvantage, although I do not want to spark another debate about Section 75. I am informed that it would not be appropriate for me to comment on this issue because of its nature and because the two letters of complaint were submitted only late yesterday afternoon and must be dealt with in due course.

Section 75 of the Northern Ireland Act 1998 imposes a duty to promote equality of opportunity rather than a direction for equal treatment. In our view, the Section 75 duty was appropriately discharged during the policy process, and it was concluded that a provision corresponding to Section 58 was compliant with Section 75. As I say, there is a time lag here, and that is to be regretted. Decisions on this issue were tossed around in the past 12 months that I have been in Northern Ireland. The idea was to try to prepare a policy that was fit for purpose in Northern Ireland. The departments in Northern Ireland are watching what is happening in GB. Section 58 was not in the Bill when it was originally put before Parliament; it was introduced as it made its way through Parliament. The departments in Northern Ireland were aware of the amendment but they wanted to take time to assess the situation and to get it right for Northern Ireland to the best of their ability. It has taken time, and it will take more time unless there is a devolved government. There will be a real dilemma if we do not have any prospect of a devolved government that Northern Ireland will always be behind. I fully accept that the level of scrutiny is totally inadequate. It is not fully democratic. Nevertheless, no one in Northern Ireland is prepared to do it at the moment: it is left to Westminster to do it.

Section 58 of the Children Act 2004, which is what we are talking about in the main, was considered by the Joint Committee on Human Rights and was judged to be compliant with the European Convention on Human Rights. The shift in the law has been generally welcomed at the European Parliament level, although progress on positive parenting will be monitored. We do not want parents smacking kids. Children should be entitled not to grow up under a threat of physical violence; I fully accept that. We are satisfied that at present this is sufficient to bring us into line with the European Convention on Human Rights.

I will try to address the questions asked by my noble friend Lady Blood, who was kind enough to give my office some warning of them, and we have prepared a response which, as she asked, will be placed in Hansard. First, she asked about the implementation of the order leading to a strategic approach and a clear vision, and she asked me to outline timetables. I recognise that Article 2 of the order effects an important amendment to the law in Northern Ireland and that the amendment will be of direct relevance to people in their private, and possibly professional, capacity. I agree that the implementation of that article requires careful thought and a systematic approach.

With that in mind, we have sought approval for the establishment of an implementation group, which will be tasked with managing the roll-out of the new arrangements and securing the links across government departments, the voluntary and community sector and the statutory sector. If approved, that group will comprise high-ranking officials from the Northern Ireland Office, the Department of Health, the Department of Education, the Office of Law Reform and representatives from key children and parents groups such as Barnardo’s, the NSPCC and the Parents’ Advice Centre. We would wish the group to commence its work as soon as possible so we are well placed with the new arrangements coming into effect. We would also wish the group to provide regular progress updates to the ministerial committee on children and young people, which I had the privilege to chair for the year I was there.

The noble Baroness asked me whether a component of the strategy would be a regional public awareness-raising campaign for professionals, parents and carers. She asked me what that might look like. The finer details of the required awareness campaign will be a matter for the implementation group if it so approves them. However, we expect that it would want to use a variety of communication channels to highlight the new law, if we make it, to get the positive parenting message across. We are considering a relaunch of the Safe Parenting Handbook, which would be one way of reaching parents. In the past, circulars have been an effective way of highlighting legislative change for professionals and decision-makers, and we envisage that they would be used again in this instance.

Another way of reaching professionals is to place an article in a professional magazine. For example, on previous occasions the Law Society of Northern Ireland has kindly accepted articles on particular legislation for its magazine The Writ. Ultimately, what is needed is a creative and innovative approach to a public awareness campaign, which must be well targeted. We must use our brains to communicate this change in the law to people in Northern Ireland by using the innovations that have been used for road safety campaigns and drink-drive campaigns. We should use those kinds of messages rather than public notice-type messages in newspapers, which no one reads.

The noble Baroness has asked me to give an assurance that the legislation will not result in unmerited prosecutions of parents, and that it is designed to support parents in finding positive methods for disciplining children. Concerns about unmerited prosecutions emerged in England and Wales during the debates on Section 58. However, the provision was commenced in January 2005, some 18 months ago now, and there is no suggestion that parents in England and Wales have been unfairly penalised. Ultimately the decision to prosecute is a balanced process that takes account of the relevant factors, including the public interest and the circumstances of the alleged offence. We have no reason to believe that the experience in Northern Ireland will be any different.

On the issue of positive parenting, we acknowledge that legal reform is just one side of the coin and that if we are to make real and practical differences to the lives of parents and children, we have to offer sources of support and guidance. I am happy to say that a lot of good work has already been done on the ground through projects such as Sure Start. However, it is important to ensure that sources of help and assistance are appropriately signposted, which is another point that the implementation group wants to consider. The noble Baroness also pointed out that health visitors and midwives play an important role in primary prevention and that they should be provided with advice on positive parenting. She sought further assurances on that point. Without doubt, health and social care professionals have a pivotal role to play in this. We recognise that if they are to discharge their functions efficiently and effectively, they must have clear guidance and sufficient information on important issues such as positive parenting. As I have already mentioned, in the past circulars have been used and we envisage that they will be used again to put these points across to professionals.

The Department of Education has an important role to play in taking the matter forward, and the noble Baroness has asked for assurances on that point. It would be a critical mistake to assume that the positive parenting message should be targeted only at parents and fail to engage with children and young people. Quite apart from their own direct interest in the issue, we must recognise that many have caring responsibilities for younger siblings and may be babysitting for friends and relatives to raise extra cash, or simply doing it as a favour. That being so, they need to be made aware of the positive parenting message, and one way of putting it across is through their local schools. We accept, therefore, that the Department of Education must be fully involved in taking these initiatives forward and, as I mentioned earlier, the department will be represented on the implementation groups.

I turn to the final three questions put to me by the noble Baroness. She asked for an assurance about the development of a strategy that will involve all relevant government departments to be taken forward. I hope it is apparent from my previous answers that we want to do that. Northern Ireland now has an inter-ministerial group with a minister for children; there is a willingness to have our doors banged on. The experience and expertise of the children’s voluntary sector has long been recognised and we hope that we can harness that expertise and work in partnership with organisations such as Barnardo’s and the NSPCC.

As an aside, during my year in Northern Ireland, on only two occasions could I have discussions with representatives of all the parties—in some cases five different parties—around the table where they talked not only to me but to each other. The first occasion was on councillors’ allowances and the other was on children. That was the measure of the issue. Indeed, I should say to the noble Lord, Lord Trimble, that the representatives of six different political parties regularly came together to discuss children’s issues because they were sincerely united in that area. In my opinion, that was a fairly unusual event that demonstrated the importance placed by the political parties on this issue.

Finally, the noble Baroness asked me whether I could ensure that the police service keep statistical information relating to physical punishment cases to allow benchmarking and comparisons to be made. We will be working closely with agencies in the criminal justice system with a view to devising appropriate data retrieval methods. Obviously the methods adopted will depend on the systems in operation, but we are aware that we need to be able to track the operation of this legislation. Let me make it absolutely clear that whatever the arguments, professional or otherwise, saying that it cannot or should not be done is not on and is quite unacceptable. We have to be able to track the operation of this legislation.

It is customary for new legislative provisions to be monitored with a view to identifying and rectifying any operational difficulties. Schedule 2 to this order will be subject to the monitoring process that covers normal legislation. Section 58 will operate in England. It has an 18-month head start. Therefore, it will probably not be productive to say that we join in. Northern Ireland will be watching the monitoring of Section 58 in England. In due course, Schedule 2 will be monitored and reviewed to see whether it is operating as Parliament intended it to.

We will go back and check the points that were raised to see whether I have missed anything. If so, naturally I will write to noble Lords.

On Question, Motion agreed to.