Monday, 24 June 2013

Giving devolution a smack

A ban on "smacking" in Wales has reared its head once
more, but is there any chance of movement?
(Pic :
BBC Wales reported last week on another (long-standing) row bubbling over the Assembly's powers, this time in relation to a ban on "smacking".

Lindsay Whittle AM (Plaid, South Wales East) described the Social Services and Well Being Bill – due to return from committee later this year – as a "golden opportunity" to enact a ban, saying he would table an amendment to that effect. However, once again the question of whether the Assembly would be able to do so has been raised.

This issue was first raised in 2011. The Assembly approved a cross-party motion calling on Deputy Minister for Social Services & Children, Gwenda Thomas (Lab, Neath), to enact legislation banning smacking, which she rejected.

I don't like repeating myself, but with the Silk Commission, reserved powers being openly discussed and the fact we all like a constitutional fudge (because it seems to be the only way to get Welsh politics into the headlines), I've decided to come back to it.

The background to the ban proposal

As for my own beliefs, I think parents alone should decide how to discipline their children, and there might be scenarios where physical restraint is appropriate (i.e. a younger child running out into a road, breaking up playground fights). There's a difference between "physical restraint" and striking a child though.

I loath dragging out
clichés, but I was smacked and it didn't do me any harm.

However, that sort of anecdotal evidence doesn't mean it'll be the same in all cases.
Using violence to routinely punish children is perhaps a sign the parent has "lost it", not the child, and it provides cover for abuse. A smacking ban has the support of various bodies, including the Royal Colleges of Paediatrics (pdf) and Psychiatrists (pdf).

I'm not opposed to a smacking ban in principle, I just think it would be difficult to enforce. It could lead to confusion as to what constitutes smacking, discourage "physical restraint" of any sort - even if it's needed - or end up bogged down in guidelines that nobody will pay any attention to.

Welsh Labour, based on their track record of wanting to uphold children's rights, probably would ban smacking if they had the opportunity.

I think this time they'd rather avoid a confrontation with Westminster on the constitution so one of their flagship Bills can pass. This particular Bill has taken its time to get this far and has been seriously troubled at several points.

Betsan Powys noted back in April that Labour's Chief Whip, Janice Gregory (Lab, Ogmore), changed the party's membership on the Children & Young People Committee, replacing vocally pro-smacking ban AMs like Christine Chapman (Lab, Cynon Valley) and Julie Morgan (Lab, Cardiff North). With amendments to legislation needing cross-party support in committee, it would've preventing that from happening.

The Bill will return to plenary with Lindsay Whittle keen to put an amendment in. That's unlikely to have much Conservative support, so any amendment would need significant Labour support, as well as Plaid and the Lib Dems on board.

So, in my opinion, the "golden opportunity" was lost in committee thanks to the musical chairs.

The power to ban smacking

Schedule 7 of the Government of Wales Act 2006 – which outlines what powers are devolved to Wales since the 2011 referendum - says that:
(Part 1, section 15)

Social welfare including social services. Protection and well-being of children (including adoption and fostering) and of young adults. Care of children,young adults, vulnerable persons and older persons, including care standards. Badges for display on motor vehicles used by disabled persons.

....are devolved. There are no exceptions relating to "corporal punishment" or "legal physical chastisement of children".

If smacking is counted as an assault, then that falls under the banner of "criminal justice".
The Assembly, however, does have the power to change criminal laws for matters within its remit, even if the criminal justice system as a whole isn't devolved.

If smacking falls under the banner of "protection and well-being of children" or even domestic violence – which you could interpret it as - then it probably is devolved.

Last time it was David Davies MP (Con, Monmouth) who raised the issue of this being non-devolved –  partly because he opposes a smacking ban anyway. This time it's Glyn Davies MP (Con, Montgomery), though Glyn is perhaps more correct to describe it as a "borderline issue" rather than black or white.

The question then, is whether smacking is an assault or a punishment relating to childcare? The latter probably means it falls under the Assembly's remit.

But that would also mean that David Davies - and others who oppose a smacking ban in Wales on constitutional grounds - would consider smacking a form of "assault" and a criminal offence, which....contradicts their position.

If Lindsay – or other AMs who support a ban - fail to get their amendment in this time around, I think they should concentrate on the proposed domestic violence law. That'll get the Welsh Government shifting uncomfortably in their seats. They couldn't work to end a form of violence against adults whilst neglecting children, could they?


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