Smack addicts

Philip Hodson Last November, a young English boy protested to the highest court in the land that his stepfather had no right to cane him. During his trial, it was noted that the beatings had been frequent and “hurt a lot, particularly when he was beaten on the legs”. He was severely bruised and had several linear scars. He was repeatedly beaten between the ages of five and eight. As expected, this week the European Court of Human Rights in Strasbourg found in his favour.

The problem for British parents is: what happens next? One of the most perplexed appears to be Paul Boateng, father-of-five and Parliamentary Under-Secretary to the Ministry of Health. He gave an undertaking last March that the Government would adopt the European Court ruling as final. He promised that our domestic law would be brought in to line with the general trend where at least eight other European countries, including Austria and most of Scandinavia, have already outlawed the corporal punishment of children. Since July, such punishment has also been banned in British schools by the School Standards and Framework Act.

You might think that today, Mr Boateng would proudly be announcing the death by law of ALL violent parental chastisement in Britain. A recent pamphlet from Boateng’s own department had said: “It’s never OK to shake or smack a baby.” Of course, you’d be wrong. With William Hague and the Tories screaming about Euro interference, what you actually find is Mr Boateng’s department defending a parent’s right to smack to their heart’s content, just so long as they don’t use an “implement”. We are told that “smacking has a place within parental discipline and our law will not be changed to outlaw smacking”.

This is totally confusing for the rest of us, both parents and children alike. It was hoped that the ruling would mark a change in the culture of British childcare which, at present, by the Government’s own research, results in a fifth of children under 16 being hit with implements and three quarters of babies being smacked in the first year of life. What Mr Boateng has now done is the equivalent of introducing a drink-drive law which says it’s all right to drive a car so long as you’re only two- thirds tipsy. On the one hand, Mr Boateng is telling parents that you may smack as hard as you want. On the other, he’s saying that, if like the father of Dennis the Menace, you take a slipper to your son’s backside, you may be prosecuted for assault.

I understand that frustrated parents sometimes lose their rag. I’ve done it. My teachers did the same. But we know that hitting children only causes resentment and inculcates a philosophy that “might is right”. Hitting your child is only justifiable on the basis that it was a mistake in the first place and that you make amends afterwards. You try to learn from your mistakes. Yet here’s the Government giving the oxygen of approval to our worst instincts.

This is all the more serious because a concerted family values campaign already exists to promote parental violence which may become abusive. Perhaps you’re prepared to overlook the odd smacking of a 10-year-old by frustrated parents. It gets more difficult when you see the colour photographs of the bruises and broken skin. But what should the Government do about those who advocate the beating of babies?

Earlier this month, self-styled parenting gurus, Gary and Anne- Marie Ezzo, flew into Britain from California to preach their gospel of childcare. Since the mid-1990s, they claim to have “educated” more than 1.5 million parents worldwide. In America, they run a profitable business called “Growing Families International”. They present a radio show and peddle a 17-cassette audio-pack. But their special message for parents boils down to: they want you to beat your kids, even babies as young as 14 months and children up to 40 months, with a ritual rod or “implement”.

Like Jesuits, the Ezzos favour early propaganda. They believe that “hitting ‘em while still young” is the only way to instill “lifetime obedience”. Parents are even told they can expect “first-time compliance” to their orders. This means that if you command your two-year-old to stop playing in the cupboard and he says “I haven’t finished yet”, you march him upstairs for a beating.

Gary and Anne-Marie explain that smacking by hand is unsuccessful because it lacks sufficient “sting”. You have to use an “instrument”. “Don’t use a wooden spoon,” they say. “It doesn’t have enough `flex’. You need an instrument that has `flex’. The goal is to produce a high sting. The tissue must absorb the impact. Only this produces the type of pain that re-directs the child’s attention.” Then the loving personal touch: “In our household, we use a piece of vinyl leather 10-12 inches long, an inch- and-a-half wide and a quarter-inch thick. This produces a sting but doesn’t cause damage.”

Avoiding damage is a high priority for Gary and Anne-Marie. “If the instrument is too heavy, it will leave marks; if it’s too light, it will be meaningless.” In case of doubt, they say, “anything that cuts the skin is too heavy”. They make a light-hearted reference to nobody wanting the social services getting involved.

In classic cases of abuse, the violator always seeks to isolate the victim. The idea is to rule out witnesses. By an insidious parallel, this is exactly what the Ezzos do. While claiming to be protectors, they advise: “Don’t beat in front of other adults. Don’t beat in front of other children. If Gran and Grandma come over, don’t do it in front of them. Rarely do it in front of other siblings. And don’t do it on bare skin.” But what if it’s a baby? “With a toddler in a diaper you may have to pull off the diaper and hit just below the diaper line.” Or if it’s a well-covered girl? “Suppose there’s a corduroy skirt that you can’t get through, then you may have to drop that down a little bit too.”

Anne-Marie even describes her favourite method of pinning down a child (a difficult phrase in Britain after the Beck scandal) while delivering chastisement. “To keep your kids still, cross your ankles then put their little legs between your legs and that way you won’t miss. Then take their little hands and hold them out here – I’m talking one, two- and three- year-olds – then their little bottoms are right there and you won’t miss”.

You don’t have to be Freud to see that these people are seriously deluded. When they claim that beating a child for them is an “act of love”, you wonder what they mean. Self-righteous relish drips fro their spanking descriptions. In classic abuse, the truth does a headstand. Confront a paedophile and he’ll say “kids like being touched up”. How bizarre to find the Ezzo’s using a similar construction.

The dangers are clear-cut. We do not live in a society where parents are always right. We live in a society where children need to think for themselves. We need to live in a society where children are free to grow without emotional and physical abuse – not to mention the risk of being turned into adults who will probably take sexual pleasure from pain. There is research showing that spanking by parents causes anti-social behaviour in children. It’s not enough that Mr Boateng sits on the fence to defend the old brutal culture. He has an opportunity to think again and improve the culture. With the new ruling from Strasbourg, the Home Office should not only prosecute abusive parents but also deport their vile mentors.

Top judges support rights Bill in Lords

Stephen Ward The Government was put under renewed pressure last night to incorporate the European Convention on Human Rights into British law. Senior judges, including the Lord Chief Justice, Lord Taylor of Gosforth, backed a private member’s Bill in the Lords .

Britain ratified the convention, which guarantees basic rights such as free speech, access to courts and protection against any discrimination, 44 years ago, but it has only been enforced by international judges in the European Court in Strasbourg.

Although their rulings are binding on the British Government, citizens can only appeal there after all British courts have been exhausted.

If it was incorporated into domestic law, judges at lower courts could give immediate rulings on alleged breaches. If the bill passes all its hurdles in the Lords, it is likely to reach the Commons later this year.

Lord Lester QC, of Herne Hill, a Liberal Democrat, introduced the bill for a Second Reading last night. He said: “Successive governments have refused to incorporate the conventions’ rights into domestic law . . . British judges are unable to help at home because they have no parliamentary mandate to do so.”

For the Government, Baroness Blatch, Home Office Minister of State, said the Bill would strike at the heart of the principle of Parliamentary sovereignty. She said it was not for unelected judges to decide when laws should be changed.

European law to reform UK business rules

Britain’s new Human Rights Act will change centuries of British legal theory by gradually incorporating into British law the 1949 European Convention on Human Rights (ECHR).

The likely effects on British commercial and corporate law are not yet clear.

The Convention is applied in the European Court of Human Rights, and is resorted to by British or other European applicants when fundamental rights are allegedly infringed and appeals in domestic law have been exhausted.

In 1996 the Court ruled that the British trial of Ernest Saunders, chief executive of Guinness, on financial charges was unfair. The Court’s reason was the use of pre-trial evidence given by Saunders in 1990 to British Board of Trade inspectors without the right of silence.

The Court has no power to impose decisions and can embarrass governments and defendants but not coerce them.

Neither is this system part of the EU. The ECHR and the Court are separate from the EU, and the only connection is an EU agreement which states that the ECHR will be “respected”. This is unenforceable and thus virtually meaningless.

The UN has a similar document to the ECHR called the International Covenant on Civil and Political Rights (ICCPR). This is part of public international law and all nations which have signed it are supposed to abide by it.

In reality, it is unenforceable and only resorted to for political reasons such as the present war crimes tribunals in the former Yugoslavia. It has no place in British law.

The Human Rights Act recently passed by Blair’s government takes the important step of gradually incorporating ECHR into English law.

This means that instead of going to a powerless court staffed by foreign judges in a process that can take up to ten years, UK citizens will be able to ask their own High Court judges to decide if the Convention has been breached.

Although judges will lack the power to contradict parliament’s wishes, they have the power to interpret all laws in line with the ECHR and indicate those Acts of parliament that conflict with it.

The judicial tradition in England suggests that judges will not hesitate to criticise government if they have the authority to do so.

The new Human Rights Act turns centuries of legal theory on its head. Britain has always adhered to “residual rights theory” which essentially means that whatever is not outlawed is acceptable.

Now the idea of a “right” is placed first, and all other legal consequences flow from it, as in most European civil law traditions.

This is quite alien to English legal thinkers who assert that one needs laws before rights in order to know what the rights can be.

Secondly,it will change the structure and content of all UK laws. Existing laws now must be interpreted consistently with the ECHR.

Judges were previously restricted in how they could read legislation, but now they have more scope to challenge Parliament.

New rights will also be introduced. For example, the ECHR includes a right to freedom from religious discrimination, but there was no such right in English law previously.

There is no doubt that the new Act will have important repercussions for business in the UK. Individuals or organisations will not only be able to sue central and local government, but all public bodies will be susceptible to challenge. The interface between business and government or regulation will be a potential arena of conflict.

Various business bodies must abide by the new legislation. These include tribunals and disciplinary panels of various organisations such as the Advertising Standards Authority, the Take-Over Panel, the Department of Trade and Industry (DTI), and privatised utility companies such as British Gas.

It will also affect “mixed enterprises”, the public enterprises in the form of limited companies in which the government owns shares.

One significant impact of the legislation will be on commercial crime investigations.

Presently, executives are obliged to answer questions from the DTI or other investigative bodies during large-scale fraud investigations.

In the past such answers were used in trials. This happened at the trial of Ernest Saunders during the Guinness scandal. The European Court later condemned this practice as an infringement of the right to a fair trial. It is likely that under the new law people will not be obliged to answer questions during such investigations.

Disciplinary proceedings will also be significantly affected. Tribunals regulating the legal profession and other self-regulating organisations in the City will feel the new pressure.

The ECHR guarantees a fair trial and a public hearing by an impartial tribunal. In tribunals there is presently no right to silence, and the burden of proof is often placed on the defendant.

Military Courts Martial have already been declared unfair by the European Court and there is little doubt that other tribunals will follow.

Major city business institutions whose disciplinary proceedings are almost always held in private will probably have to change.

As many individuals may not wish to broadcast their problems, it seems likely that individuals will be given a choice between a private and a public hearing. This will change the way disciplinary proceedings are conducted.

British business will also be affected by several new rights enshrined in the Act. For example, there will be a right to freedom from religious discrimination which might affect employment practices in relation to holy days and religious holidays. More importantly, for the first time in Britain there will be right to privacy, which will be crucial to the media. The main press may be exempt, but the Act would have to be observed by the BBC and other public organisations.

The new right to privacy is long overdue. It may be interpreted to cover non-public media organisations. The press may be brought within the reach of the new law. An individual may invoke a right to privacy. Another possibility is that the courts will be bound to interpret the common law to include a right to privacy.

Thus the new Human Rights Act may not bring a “quiet revolution” in English law, but a noisy one.

Large businesses and public organisations will have to closely watch future developments, because it is by no means clear exactly what the implications of the new Human Rights Act will be for commerce in the UK.