Smack My Senedd Up

AMs have tried for the second time in a year to introduce an amendment to a Bill
that outlaws "smacking" in Wales. This is how the debate panned out.
(Pic : The Sunday Times)

On Tuesday, the (re-titled) Violence Against Women, Domestic Abuse and Sexual Violence Bill (more here) was debated at Stage 3 in the National Assembly.

After a debate that lasted the best part of four hours, an amended version of the Bill was passed and awaits Stage 4 (final approval), which is scheduled for next week; although opposition parties are pressing for the Bill to move to a Report Stage where extra amendments can be added. Therefore the Bill is still in some trouble - more from Peter Black AM (Lib Dem, South Wales West) on that.

There were 72 amendments debated on Tuesday, but the one amendment of greater public interest was Amendment 66, jointly tabled by :

• Julie Morgan AM (Lab, Cardiff North)
• Jocelyn Davies AM & Lindsay Whittle AM (both Plaid, South Wales East)
• Aled Roberts AM (Lib Dem, North Wales)
• Christine Chapman AM (Lab, Cynon Valley).

Amendment 66 proposed to remove the "defence of reasonable chastisement" from Section 58 the Children's Act 2004, meaning it would no longer be a legal defence to "smack" a child if a case is serious enough to go to court.

The Amendment 66 Debate

The debate was, at times, heated and emotional by Assembly standards.

Julie Morgan AM moved the amendment, saying the issue "transcends party politics" and was about "doing right by the children of Wales" (clip). She said this particular Bill was the perfect place to address the issue as it was about family violence, with violent punishment being the only legal violence allowed in the family. It was therefore an "absolute obligation" to protect the rights of children – which are enshrined in Welsh law. Julie alsos cited evidence which suggests people who were physically punished as children are more likely to become perpetrators or victims of domestic abuse.

Darren Millar AM (Con, Clwyd West), said he respected supporters of the amendment and their sincerity, in particular Labour AMs who were going to break a whip (clip). He couldn't support the amendment as it's a "method of discipline used by a majority of parents". He cited a YouGov poll which said 68% of parents had smacked their children and 72% oppose a smacking ban, asking whether the Assembly wanted to stigmatise and criminalise "tens of thousands of decent, loving parents" who already know where to draw the line? He believes it would be better to promote alternatives to smacking, saying no party has a mandate to outlaw smacking as it wasn't in their 2007 manifestos.

Linsday Whittle AM gave a particularly impassioned speech (clip), describing it as one in a number of "landmark decisions" debated in the Assembly down the years. He said the amendment would not threaten the passing of the Bill (which is the Welsh Government's line). He also reminded AMs of the "promise" from the Welsh Government that there would be another opportunity to introduce a smacking amendment. This Bill is perfect as it's about domestic abuse and smacking is "another form of domestic abuse". Despite the opposition to a ban, elected representatives had a duty to vote for things that are "morally right, and not just do what they are told to do".

Lynne Neagle AM (Lab, Torfaen) said an issue "of this enormity" shouldn't be tagged on to another piece of legislation in the absence of full public consultation. She therefore would vote against, but would support a free-standing smacking law.

Aled Roberts AM said the Bill is the right vehicle to introduce the amendment (clip). He would have more sympathy for Lynne Neagle's view had the Welsh Government brought a free-standing law forward, but they've so far resisted doing so. He said the "measure of a good government is doing something when you've actually got the power to do it". Aled rejected Darren Millar's assertion that government should stay out of family life, citing examples where emotional abuse is now illegal because of statutes.

Antoinette Sandbach (Con, North Wales) opposed the amendment (clip). She said more could be achieved through education powers which aren't currently being used, adding that violence that leaves a serious mark on children, or bodily harm, is already illegal. Removing the "light tap" of a smack would create an offence where parents are automatically criminalised. As a parent who's seen her child put themselves in danger, she said a "short, sharp slap" reinforces a message - "don't do it again" - and she believes it works.

One of the faces of the smacking ban, Christine Chapman AM, admitted she smacked her child believing it was the right thing to do at the time but no longer does so (clip). She believes it's more than a conscience vote and is about rational thinking, and none of the reasons given by opponents stand up. Also, this is "absolutely the right Bill" to introduce an amendment. Christine said Wales "has just talked about a ban" while around 40 other countries have enacted one, and if the evidence is there they should act sooner rather than later.

Mark Isherwood AM (Con, North Wales) repeated that existing laws already criminalised physical punishment of children that does actual bodily harm (like cuts, bruises, swellings and black eyes), so Welsh children are "already unbeatable".

Like Darren Millar, former Deputy Minister for Children & Social Services, Gwenda Thomas AM (Lab, Neath) respected the sincerity of supporters (clip). However, she had to defend her own law - the Social Services & Wellbeing Act 2014 - from a smacking amendment, on grounds that a smacking ban may not be within the competence of the Assembly (prompting a Supreme Court challenge). She believes a smacking ban will need stand-alone legislation, repeating what Lynne Neagle said about a full public consultation.

Jocelyn Davies AM also admitted she smacked her son, but wouldn't do it if starting over again (clip). She described the amendment as "closing a loophole in the law". It wouldn't criminalise parents, but instead gives children equal protection from violence as adults under the law. The "reasonable chastisement defence" has only been used in a very small number of cases - none of which involved "smacking" but assaults and general child abuse. There's therefore no danger parents would be criminalised, but it would send a "strong, clear message" about the use of corporal punishment.

Jeff Cuthbert AM (Lab, Caerphilly) said he supported the principle of the amendment, but the Bill is not the right place to do it. It was important that the people understand what AMs are doing, meaning it needs a full public consultation – citing his experiences of the public smoking ban.

Mohammad Ashgar AM (Con, South Wales East) rambled, at points incoherently, that it was important for mothers in particular, who have a "divine right" no less, to do what they have to to discipline children. He said a lack of childhood discipline is a major problem in the UK, saying a local shopkeeper had been terrorised by youths who subsequently said they were untouchable. This is in contrast to the "good old days" when children were disciplined by mothers and teachers.

Joyce Watson AM (Lab, Mid & West Wales) repeated the Labour line about the amendment affecting a "landmark" Bill that addresses domestic violence, going further and describing it as a "wrecking motion". She was disappointed about the lack of public/media focus on domestic violence as opposed to this "smacking ban".

In response, Public Services Minister, Leighton Andrews (Lab, Rhondda), said there are many good arguments for the amendment, but repeated that the Bill isn't the right place for it as it doesn't seek to address criminal justice matters (clip). As the public consultation on the Bill didn't address smacking, there's been no consultation full stop. He said the 2011 manifesto said Labour would not remove the reasonable punishment defence (the word-for-word bit is "making physical punishment of children unacceptable by promoting alternatives" p59), while a smacking ban would need to properly engage police and public prosecutors. This justifies a stand-alone Bill.

In the end the amendment was rejected by 36 votes to 16.

Unsurprisingly, Julie Morgan AM and Christine Chapman AM broke party lines and voted in favour of the amendment, along with the Lib Dems and Plaid Cymru. Recriminations against the Labour "rebels" are unlikely.

All of the Tories in attendance and the rest of Labour voted against.

Where next?

It's worth repeating that despite what the media - and even myself - have said, what was proposed in the amendment was not a "smacking ban".

What it would've done is remove a legal defence, in court, where a parent is able hit their child as a form of punishment. It's likely that a case going to court would've resulted in injuries more serious than a "smack" anyway. It's not as if the police and CPS will spend much time on every case of a parent smacking their children.

The rights and wrongs of outlawing smacking aside (Giving devolution a smack - I'm on the fence, but the amendment is reasonable enough), this is – without a doubt – the perfect place to address the issue. As many AMs said, it's a Bill dealing with violence within the family. I don't buy that it needs to be a stand-alone law or that it would've derailed the Bill. The most important consideration is whether this would be within the powers of the Assembly.

The Assembly agreed in November 2014 to establish a special committee to look at the issue in detail. Opposition parties have, so far, refused to appoint members to that committee. The Welsh Government have now asked the Children & Young People's Committee to look at the issue instead.

Any report the committee produces will inform future legislative proposals but, for the rest of this Assembly term, outlawing smacking is dead. There's not enough time to introduce stand-alone legislation - in what's likely to be a very crowded last 12 months of the Fourth Assembly - and the Welsh Government would block it anyway. So expect it to become an issue at the 2016 election.

As for the future Act, it's a significantly watered-down version of the proposals outlined in the original white paper. There'll be no compulsory relationship education in schools for a start.

The Bill is no longer completely gender-neutral either. The Welsh Government caved to pressure from the Third Sector to shift the focus back towards women and girls. Although that's been included for the sake of having "Violence Against Women" on the face of the Bill and to acknowledge female victims specifically - meaning it doesn't really affect the body of the Bill itself - I believe they're leaving themselves open to a legal challenge if male and same-sex relationship victims of domestic violence feel they're somehow not getting equal support or consideration.

All in all, if passed, it's unlikely to seriously address the issues it sets out to address (due to a lack of criminal justice powers than anything else), resulting in more hot air, strategies and reports, as well as a cushy public sector role for an "adviser".