Children’s Wellbeing and Schools Bill

Debate between Lord Carlile of Berriew and Baroness Bennett of Manor Castle

Monday 9th June 2025 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I support the amendments ably introduced by my noble friend Lady Finlay.

They make laws slightly differently in Germany. When a law is made relating to something that affects children, for example, they sometimes insert something in their constitution. I note that in 2000, when the parental right to spank was rescinded in Germany, a new phrase was introduced into the German constitution:

“Children have a right to an upbringing free of violence. Corporal punishment, emotional harm and other humiliating measures are not permissible”.


That has happened, and similar steps have been taken in 75 countries to date where smacking is not permitted. Many of those countries are in Europe. Almost the whole of Europe forbids smacking. We stand out as an exception in the map of Europe where it is illustrated. Just as Germany, Spain, Norway, Sweden, Finland and Denmark are not worse places as a result of the banning of smacking, the same will be the situation in the whole of the United Kingdom when England follows Wales, Scotland and, hopefully, Northern Ireland.

Section 58 of the Children Act 2004 is predicated by opposition to smacking, not by encouragement of smacking. As has already been said, it was banned in schools but has been allowed to continue in certain very restricted circumstances in homes. As early as 2007, the Crown Prosecution Service issued a report in which it was opposed to banning smacking altogether but observed that the defence was being used in inappropriate situations and in the wrong kinds of cases. There is absolutely no evidence that the banning of smacking would have any dramatic effect on parents who, like the parents in the countries that I have named, have simply been told, “You can’t smack your children anymore”. I believe that people are ready for that in this country.

The noble Baroness, Lady Walmsley, in an extremely powerful speech, gave several examples of cases in which the terrible violence that eventually was used against children probably started with the first smack. It is quite wrong that we should allow that sort of situation to develop.

I listened with great care—my synapses were operating in overdrive—while the noble Lord, Lord Jackson, was speaking. However, he is now a bit historical in this argument. I treat his points with respect, of course, but I prefer those that have been made by other noble Lords in this House. Between the noble Lord and the Royal College of Paediatrics, I prefer the royal college.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the case for Amendment 67 and the associated Amendment 505 has very powerfully been made. I add a couple of additional points that might perhaps inform the House and be useful. I note that more than 30 MPs in the other place supported a similar amendment and that there it was driven by the honourable Labour Member for Lowestoft and my honourable friend the Member for North Herefordshire. It is not that we are suddenly bringing this up in your Lordships’ House—there is strong support in the other place as well for government action here.

I moved an amendment along similar lines to end the defence of reasonable chastisement during the Domestic Abuse Bill. I was quite new to your Lordships’ House and learned along the way that many people had been working on this for decades longer than I had been. I heard from the then Conservative Government, “Oh, it’s not the time now; we’ve got to see what happens in Scotland and Wales”. I would very much like to think that we are not going to hear the same thing this evening, although I am not terribly optimistic.

Like others, I listened very closely to the noble Lord, Lord Jackson. I say a couple of things in direct response to the noble Lord. He cited Professor Larzelere, who would best be described as a “controversial” academic. I point noble Lords to an article responding to some of the work of Professor Larzelere in the journal Marriage & Family Review in 2017, “Researchers Deserve a Better Critique” by George W. Holden et al. The authors say that Professor Larzelere had profoundly misunderstood the description of positive parenting and was very misinformed about the whole academic field.

You could feel a visible sense of shock around the House when the noble Lord, Lord Jackson, suggested that smacking was harmless. That is a disturbing label to put when we know from the Royal College of Paediatrics that children who have experienced physical punishment are 2.6 times more likely to experience mental health issues. We know what a mental health crisis we have in our society. They are up to twice as likely to experience further forms of abuse, sometimes leading to the cases that the noble Baroness, Lady Walmsley, presented to us so powerfully. The college makes a really important point that children who have experienced physical assault are more likely to believe that violence is accepted and encouraged in society. We want to protect the vulnerable children, but we are also addressing the question of what sort of society we are.

We have had a number of international comparisons, but I believe that Thailand is the most recent state to have banned physical abuse of children. I happen to know quite a bit about Thailand. I was technically a Thai civil servant in the 1990s when I was there as an Australian volunteer abroad. I follow Thai politics quite closely and know quite a lot about Thai society. This is a big step for Thailand to take. Thailand has had a great deal of political difficulties in recent years but has regarded protecting its children as so important that it has ensured that there is legal protection. It is interesting when you look at the government announcements around this that this is a need to support parents as well as to ensure the protection of children.

I have one final point to make and a question for the Minister. The NGO Article 39 sets out the historic background for the reasonable chastisement offence, which arises from a criminal case in 1860, R v Hopley, about a head teacher found guilty of the manslaughter of a 13 year-old child with learning difficulties. The head teacher had beaten the child with a stick for more than two hours. Looking at the judge’s words on which this whole “reasonable chastisement” is based, the judge said that a parent or schoolmaster

“may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment”.

That is the origin of what has got us to where we are today and what we are trying to change with this amendment. It is a reflection of how out of date the current legal situation is.

Finally, my question to the Minister arises from the Article 39 briefing. We have all focused on parents, but the briefing says that the defence

“has also not been removed from part-time educational settings (including those operated by religious organisations), children’s health settings or supported accommodation for looked after children aged 16 and 17”.

Can the Minister—either now or I will understand if she wishes to write to me—set out whether that briefing is indeed correct and there is still that allowance of violence against children in other settings as well?

Litigation Funding Agreements (Enforceability) Bill [HL]

Debate between Lord Carlile of Berriew and Baroness Bennett of Manor Castle

Committee stage
Monday 29th April 2024 Grand Committee

[Lord Carlile of Berriew (CB)]

My Lords, I will say a very few words that may help the debate. I wholly support the government amendments spoken to by the noble and learned Lord; they clarify the Bill in a way that was required.

I will just go back to something the noble and learned Lord said about what I had said at Second Reading about the Human Rights Act consequences. I referred to the opinion that had been given to us—again, very late in the day, like most representations in this matter—written by my noble friend Lord Macdonald of River Glaven. I am sure we all understand why he is not taking part in these debates; he feels that professionally he cannot because he gave an opinion, a view that I think all practitioners here would support. He said in that opinion that the convention rights arguments with which he was presented in his instructions were “arguable”—that was his word. That is not the highest level of certainty that those of us who have written a lot of opinions would ever put at the end of an opinion if we felt sure. They may be arguable, but they are not strong, and the Government are perfectly entitled to act as they are in that regard.

Then there is the question of retrospectivity. The answer to that is very simple. The Bill would be absolutely pointless if it were not retrospective, because it was created to right a wrong that nobody expected, and it is simply restoring to people the legal rights which they already had. I hope that we will not spend an awful lot of time in other stages of the Bill talking about retrospectivity.

I note that the Civil Justice Council’s new review—I agree with what the noble Lord, Lord Marks, said about its terms of reference—has had support from the Bar Council and the Bingham Centre, in a very well-argued piece that I think was circulated to most Members of the Committee. It was also supported by what we might call the interest groups: the Association of Litigation Funders and the International Legal Finance Association, which have taken a pretty objective view of the proposals in this Bill. All are of the view that the Civil Justice Council, as it is set up by the terms of reference, is the appropriate place for the review to take place. Of course, it leaves some flexibility and some obligation, because a rule-making body such as the Civil Justice Council can change the law in small ways to ensure that appropriate procedures are followed.

For reasons which some noble Lords will recognise, I am an enthusiast of independent reviewers—because I have been one—but I am not an enthusiast for an independent reviewer in this situation. Although an independent review would undoubtedly be fascinating, it would have no power whatever. We need to get nearer to the rule-making powers to ensure that the law in this area is clear, followed, applied by the judges and, above all, understood clearly by the courts.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly, acutely aware of the legal weight in the Room, to which I add not a gram—although I cannot help noticing the gender balance. I apologise for not speaking at Second Reading. My noble friend Lady Jones of Moulsecoomb spoke in the Second Reading debate but she is currently taking part on the Leasehold and Freehold Reform Bill in the Chamber. I listened very carefully to the words of the noble Lord, Lord Marks of Henley-on-Thames, who is satisfied with the review process that we have going forward, and I will be guided by that.

I want to stress that where we are going now is still not an adequate solution to the problems at hand. At Second Reading, my noble friend said that we need to put

“energy into thinking about a better solution”.—[Official Report, 15/4/24; col. 810.]

We have to do that in the context where we have a crucial, huge inequality of arms—Horizon is the obvious example—in an economy dominated by an increasingly small number of oligarchic, giant, often multinational companies that are deciding how things work in our economy and society, of which people are very often the victims. We have a structural problem: the law now is not equipped to deal with the structure of our economy and society. I conclude only by noting that justice unfunded is justice denied, and there is far too much justice denied to individuals in our society when they are crushed by the weight of corporations or the state.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Carlile of Berriew and Baroness Bennett of Manor Castle

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I took it that the noble Baroness was asking me a question from the way she started—no, do not ask again. First, I absolutely yield pre-eminence to her in anything related to war stories. On her substantive point, she is right. I was the Independent Reviewer of Terrorism Legislation at the time when holding people without charge in prisons on suspicion of terrorism was declared unlawful. In 2005, the law was changed. It was changed only because of the intervention of the courts following rational and detailed argument. The country did not become a more dangerous place. It became a more lawful place, with better argument about the results. There were huge benefits from that change, but it was made only because there was a fairly complex but easily dealt with legal process.

[Baroness Bennett of Manor Castle (GP)]

I rise with great humbleness to intervene at this point. I was planning to refer to the noble Baroness, Lady Chakrabarti. I know that she has a book coming out shortly, Human Rights: The Case for the Defence. After listening to the noble Baroness, Lady Kennedy, I feel that possibly one of the two noble Baronesses should write a book “Courts and the Law: The Case for the Defence” because it seems to have been clearly identified that that is something we need. The point I want to make about the title of the noble Baroness’s book—she has kindly given me a copy, and I have not had time to read it yet, but I will —is how tragic it is that we feel as if we have to make a case for the defence of human rights. That is the place we are in now. That explains why I chose to attach my name to the notice of our intention to oppose the Clause 3 standing part of the Bill, as did the noble Lord, Lord German, the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Lister.

I think it is worth going back to the title of this clause:

“Disapplication of the Human Rights Act 1998”.


I fully understand that other amendments in this group are trying to make this less bad, but, following what the noble Viscount, Lord Hailsham, said, I feel that crying out in opposition to any disapplication of human rights is where I have to be. It is the only place that I feel that I can be. This picks up points made by the right reverend Prelate the Bishop of Chelmsford that human rights have to be universal. I was looking at one of the main United Nations websites, which defines human rights as

“rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status”.

If we take human rights away from some people, it does not affect just those people; it makes all of us far poorer and far more vulnerable.

Nationality and Borders Bill

Debate between Lord Carlile of Berriew and Baroness Bennett of Manor Castle

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady D’Souza, and I agree with what she said and that, although the amendments moved by the noble Lord, Lord Anderson, have made Clause 9 less bad, it is still a bad clause that should disappear from the Bill. When introducing this group, the noble Lord, Lord Anderson, said that these amendments were all about Clause 9. I would rather say that my Amendment 22, to which I will speak, was provoked by Clause 9. One thing revealed in public debate—and there has been an enormous amount of public debate around Clause 9—is the fact that so many people had not realised that what the Minister described earlier as the “warm embrace of citizenship” can be taken away, and that there is profound discrimination in the way that this can happen.

The noble Baroness, Lady Chakrabarti, talked in Committee talked about two-tier citizenship; I talk about it as two classes of citizenship. I regret that I was not able to take part in Committee; I thank my noble friend Lady Jones of Moulsecoomb for very ably speaking for me. However, there are about 6 million Britons—I declare an interest as I am among them—who, because of another citizenship or their descent from people who came to Britain and chose to be Britons, have second-class citizenship. It can be taken away by the Government and, as the noble Lord, Lord Macdonald of River Glaven, just outlined very clearly, we have seen a very rapid and considerable escalation of the ways in which that power can be, and has been, applied.

My Amendment 22 makes one exception. If someone attains citizenship by means of fraud or misrepresentation, obviously, the power should remain for that citizenship to be taken away, but if that citizenship has been acquired honestly, my amendment says that it cannot be taken away. I suggest to your Lordships’ House that this is the only way that we can ensure that every British citizen is the same class of citizen and treated in the same way. Given that people who have, or have access to, alternative citizenships come from migrant backgrounds, the discrimination in how this is applied is very obvious. I note from having read the Hansard report of Committee very carefully that the noble Baroness, Lady Mobarik, expressed support for this. I thank the noble Lord, Lord Paddick, for also expressing support in principle for the idea that there should be only one class of citizenship and the Government should not be able to take it away.

I can imagine the response I might hear from the Minister: what about someone who is a security threat? If we have given millions of people British citizenship, we have benefited from the contributions, of all kinds, that they have made to the UK. Should we be able to say, “This person’s a problem so we’re going to get rid of them”, and make them someone else’s problem? If a person is a security threat to the UK, they might well be a security threat to the country that they hold citizenship for and that we send them to. Why should we be able to dump our problems on someone else?

I find myself torn. I aware of the desire in your Lordships’ House to take away some of the worst elements of the Bill, but I also find myself supported by many people in civil society who say that they want to ensure that there is one class of citizenship. I have said to all the relevant authorities that I will reserve the right to call a vote on this, because I find it a matter of principle on which it is very difficult simply to withdraw the amendment. I would really like to hear everyone’s position on this, particularly the Front-Bench speakers—I hope one of the Lords spiritual might contribute—and everyone’s explanation of whether they believe there should be two classes of British citizenship. Having heard that debate, I will make a decision about whether to push Amendment 22 to a vote.

[Lord Carlile of Berriew (CB)]

My Lords—oh, sorry.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

The noble Lord has displayed a very touching faith in the Home Office, which I do not think reflected the view of your Lordships’ House in an earlier debate in terms of how we are approaching Ukrainian refugees. Is he aware of the case of the gentleman known as E3, who was deprived of his British citizenship for many years, was eventually able to appeal that, has never been arrested or charged, and has finally—on 11 February—returned to the UK and is now back with his family after many years of separation.

[Lord Carlile of Berriew (CB)]

I am not aware of the details of that case, but I would say to the noble Baroness that the architecture that the amendments of the noble Lord, Lord Anderson, set out would protect such a person in a much better way than was the case before.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Carlile of Berriew and Baroness Bennett of Manor Castle

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I strongly support the submissions made by the noble Lord, Lord Ponsonby, in relation to Amendment 97C. In doing so, perhaps I can give a small insight as someone who has conducted hundreds of jury trials, some of them involving young people—often very naive young people who are in an enormous amount of trouble.

I feel it necessary to say something to the House about the interaction between counsel and the young client. Typically during the course of such a trial, and in my experience this happens more with children on trial than with adults on trial, either, if one is lucky enough to have one there, one asks one’s instructing solicitor to have a word with the client in the dock on some evidence that has just been given, or—if, as is common now, there is no instructing solicitor there—counsel just walks a couple of rows behind to the front of the dock, takes instructions from his or her client about a factual proposition that has just been made and then continues or commences a cross-examination based on the instructions that have just been taken. In other words, there is a dynamic, living, ongoing 24/7 interaction between the advocate and the advocate’s client.

In the last nearly two years we have all been through the process of conducting virtual meetings. In most respects that has worked very well, but, since we have had the experience of going back into real meetings—on and off, admittedly—we have rediscovered the importance of interaction on the details that occur during a discourse. In my view, it could prove very damaging and delaying in trials to have to have that sort of discourse with a client by asking the judge to turn off the devices so that a private consultation can take place. That could look very odd to a jury, as compared to a quick word two rows behind. I therefore ask the Minister to reflect upon the dynamics of a real trial. I should add that not only have I conducted a lot of trials but for 28 years I was a part-time judge. As a judge I have conducted a lot of jury trials, and the same points arise from the judge’s position.

So far as the amendment from the noble Lord, Lord Pannick, is concerned, I agree with him for a similar but different reason. It is based on a relationship, the relationship between the judge and the jury. It is absolutely commonplace—it happens every hour of every day—for the judge to make some kind of contact with the jury. It may be eye contact; it may be an aside; it may be a little joke. You would not believe how much juries laugh at judges’ jokes; judges make jokes and get far greater laughs than any comedian I have ever seen. All this is part of the process of creating a living instrument through a trial that really works on a human basis. If there are to be any jury trials conducted with the jury in a different place from the judge, that must be most exceptional. If the judge and jury were in the same place, it may be that—and this would still have to be exceptional—the judge might come to a factual decision that a fair trial could be held, but it would be a very rare instance where that would work.

If I may put it as high as this, I advise the Government not to go down this road. In my view, it has the danger of disruption, increasing appeals and actually destroying the very essence of the holy grail, as it were, that is part of our criminal justice system: the jury trial. Part of that essence is the relationship between the judge and the jury, and that really cannot be conducted remotely.

[Baroness Bennett of Manor Castle (GP)]

My Lords, this group, particularly Amendment 97A, has become pertinent in light of the apparent situation whereby the Attorney-General has displayed something less than a full commitment to the principle of the right to a jury trial. Many commentators are sadly leaping on the Colston four verdict to question the jury system and apparently seek to undermine public confidence in the principle that every person has the right to be tried by their peers. This would be an ideal opportunity for the Minister to reassure your Lordships’ House—I hope he will—that, no matter how politically inconvenient it might be for the Government, trial by jury is fundamental to our justice system and the Government remain committed to it. As the noble Lord, Lord Pannick, said, Amendment 97CA is an important practical step to ensure that that remains a proper, full jury trial, with the kind of interactions that we have heard about.

Briefly, the other amendments in this group are important to protect children and other vulnerable court users. It seems like a basic issue of justice and common sense that the court should ensure that the people who appear by video link are still able to participate fully in the proceedings. I hope that the judiciary would never allow anything contrary to this, although I take the point from the noble Lord, Lord Ponsonby, that the practical sometimes has to override the ideal. None the less, it seems right that the legislation should offer these protections.