Ban smacking!

Photo by Kat J on Unsplash

John Finnie, a Green Party member of the Scottish Parliament introduced a Bill (Children (Equal Protection from Assault) (Scotland) Bill) on 6 September 2018.

This Bill would remove the common law defence of reasonable chastisement in Scotland which permits parents and guardians (primarily) to use smacking as a punishment in relation to children in their care.

The main objective of the Bill is expressed in its accompanying Explanatory Notes:

A person charged with assault of a child will no longer be entitled to claim that a use of physical force was justifiable on the basis that it was physical punishment administered in exercise of a parental right (or a right derived from having care or charge of a child). This will give children the same protection from assault as adults.

The Bill is quite a short one – a mere 5 sections – but if passed into law it is sure to have a very significant effect.

Section 1 contains the actual provision which would abolish the defence of reasonable chastisement

Section 2 places a duty on the Scottish Ministers to raise awareness and understanding of the proposed legislation

Section 3 contains the transitional and saving provision which is essentially interim arrangements for repealing the previous legislation  and gives the Scottish Ministers the power to do anything which would bring the provisions of the new law into force

Section 4 deals with the commencement of the proposed law i.e. the day after it receives Royal Assent

Section 5 contains the short title of the Bill.

The Bill will be debated and scrutinised by other MSPs in the Chamber and in Committee and it is quite possible that amendments or changes will follow. With every Bill, there is also the possibility that it might fall at a particular stage of parliamentary proceedings or, even if passed, could be subject to legal challenge e.g. the Scottish Government’s Children and Young Person’s (Scotland) Act 2014 which the UK Supreme Court found fault with on human rights grounds in 2016 (see The Christian Institute and Others v The Lord Advocate [2016] UKSC 51).

A link to the Scottish Parliament’s website where the Bill (as introduced) and its accompanying or supporting documents (which must be submitted) can be found below:

The Bill must, of course, comply with Scotland’s international human rights obligations as contained in the Scotland and Human Rights Acts (of 1998); and it must be within the “legislative competence” of the Scottish Parliament as per the Scotland Acts of 1998 (which the Presiding Officer, Ken McIntosh MSP has indeed confirmed).

The Bill is also subject to a Financial Memorandum. This can be summed up as a cost analysis to the Scottish Administration:

The Bill does not create a new offence; rather, it removes the defence of reasonable chastisement for the assault of a child. Thus, once the Bill is in force, some prosecutions may proceed as a result of the Bill which may not have proceeded when the defence was available. The Bill may also lead to additional cases of lower level physical punishment being reported, and prosecuted, which are currently not reported due to the defence being available.

Accordingly, the Bill can be expected to have some impact and costs on the criminal justice system.” [author’s emphasis]

Progress so far

The Equalities and Human Rights Committee of the Scottish Parliament gave its unanimous backing to the Bill (as as has the Scottish Government).

In support of his Bill, Mr Finnie has emphasised that 54 countries around the world have removed the right from parents and guardians to use physical chastisement as a method of disciplining children. His contention is that, if the Bill is adopted, it would bring Scotland into line with other developed countries.

In order to become a new Scottish law, the Bill, of course, must pass through all (3) legislative stages of Scottish parliamentary procedure.

The Bill is currently at Stage 1 of proceedings. Please see the diagram below taken from the Scottish Parliament’s website which tracks the current progress of the Bill (as of today – Tuesday 28 May 2019):

In a previous Blog (Private Members’ Bills published on 29 April 2019), I drew attention to the fact that backbench members of the Scottish Parliament have a much greater ability to introduce Bills (and ultimately get them onto the Statute Book) when compared to their counterparts sitting in the House of Commons at Westminster. The term backbench or private member is a description which covers any MP or MSP who is piloting a Bill through Parliament which is not a Government Bill.

A link to an article on Mr Finnie’s Bill can be found below:

MSPs to discuss smacking ban bill in parliament debate


The Bill has now proceeded to Stage 2 of the legislative process in the Scottish Parliament as the infographic displayed below demonstrates:

Copyright Seán J Crossan, 28 May and 13 June 2019

Private Member’s Bills

Photo by Chris Flexen on Unsplash

One of the key advantages that individual Members of the Scottish Parliament have over their counterparts at Westminster is the ability to introduce and pass legislation. True, individual Westminster MPs can sponsor a Private Member’s Bill in the hope that it might became an Act of Parliament, but the vast majority of these types of Bills run out of parliamentary time or some other procedural hurdle. I shall return to the problems facing Private Member’s Bills at Westminster later in this blog.

An interesting example of a Member’s Bill being introduced to the Scottish Parliament was reported last week. Monica Lennon, a Labour MSP, introduced the Period Products (Free Provision) (Scotland) Bill on 23 April 2019.

A link to how BBC Scotland covered the story can be found below:

Scotland’s ‘period poverty’ bill officially lodged at Holyrood

The aims and objectives of this Bill are set out in its accompanying Explanatory Notes:

“The aim of the Bill is to ensure that all who menstruate can have reasonably convenient
access to period products, free of charge, as and when they are required.”; and

“The Bill will:

• place a duty on Scottish Ministers to ensure that period products are made available
free of charge on a universal basis;
• require education providers to make period products available free of charge in on-site
toilets; and
• enable Scottish Ministers to place a duty on other specified public service bodies to provide free period products.”

This is a measure which commands popular support across the Chamber at Holyrood and amongst the wider Scottish public, so there is every chance that Ms Lennon’s Bill will eventually become an Act of the Scottish Parliament.

In common with Westminster, a draft law or Bill introduced in the Scottish Parliament must complete various procedures in order to become part of Scots law. It is likely that Ms Lennon’s Bill will undergo some amendments – this is typical for most draft legislation.

All Scottish Parliament Bills – no matter their origin – must be accompanied by Explanatory Notes and a Policy Memorandum detailing the rationale behind the draft legislative proposals and what impact these will have on a range of issues such as human rights and equal opportunities.

The Explanatory Notes will also contain a Financial Memorandum detailing the likely costs of the draft law on the Scottish Government and local authorities. Finally, there must be a statement from the Presiding Officer that the Bill is within the legislative competence of Parliament.

A statement of legislative competence is extremely important because Scottish legislation can be subject to challenge before national courts and European courts. An example of a successful legal challenge to the powers of the Scottish Parliament occurred as a result of the Scotch Whisky Association’s request for a judicial review (preliminary ruling) before the Court of Justice of the European Union in relation to the Alcohol (Minimum Unit Pricing) (Scotland) Act 2012.

A link to Ms Lennon’s Bill and its accompanying documents can be found by clicking on the link below:

An infographic can be seen below which shows the current progress of the Bill:

The above infographic shows that the Bill is still at the first of the three legislative stages in the Scottish Parliament. Unless and until it successfully completes the other stages, it cannot become an Act of the Scottish Parliament.

Private Member’s Bills at Westminster

Although individual MPs can sponsor Bills in the House of Commons, this method of law making is fraught with difficulties – even if the proposed measure enjoys considerable support.

A recent example of a Private Member’s Bill falling foul of procedural technicalities in the House of Commons was the Voyeurism (Sexual Offences) Bill (introduced on 6 March 2018 by Wera Hobhouse, a Liberal Democrat MP). The text of the Bill can be read by accessing the link below:

Click to access 18174.pdf

This Bill aimed to make ‘upskirting’ a specific criminal offence in England and Wales (it was already a criminal offence in Scotland). This issue had received a lot of public support due to the efforts of Gina Martin, who had been the victim of ‘upskirting’ when attending a music festival in August 2017. When Ms Martin reported the matter to the Police, she was astonished to learn that there was no specific offence covering such behaviour under the criminal law of England and Wales.

A video covering Gina Martin’s campaign can be found below:

Unfortunately, the Bill was derailed by the efforts of Sir Christopher Chope (a Conservative MP sitting for the Christchurch constituency) who used a procedural mechanism to object to the Bill thus ensuring that it could not make any further progress in the House of Commons.

Following a public uproar, Sir Christopher later attempted to justify his intervention in an exclusive interview with the Bournemouth Echo newspaper:

The UK Government recognising that such a Bill commanded considerable support both publicly and in Parliament, reintroduced the Bill as an Executive Bill and the measure was finally passed as the Voyeurism (Sexual Offences) Act 2019.

Despite formidable parliamentary obstacles at Westminster, Private Member’s Bills do become law occasionally – the Abortion Act 1967 and the Sexual Offences Act 1967 are often cited as the two most high profile examples of such Bills becoming Acts of the Westminster Parliament. That said, these measures received support from the UK (Labour led) Government of the day, otherwise there would have been little chance of legislative success.

At Westminster, the Executive (the UK Government) historically controls the parliamentary timetable in the House of Commons and the Prime Minister and other ministerial colleagues will prioritise the Bills which they wish to see passed into law. This can mean that there is very little time left over in the parliamentary business timetable for Private Member’s Bills – no matter how worthy they may be.

Since the General Election of May 2017, of course, the UK Conservative led Government has not enjoyed a majority in the House of Commons and has struggled accordingly to pass contentious legislation (Brexit Alert! anyone?).


I remember attending an event at the University of Strathclyde in 2014 when the Right Honourable John Bercow MP, the Speaker of the House of Commons addressed staff, students and invited guests. The audience was given the opportunity to put questions to Mr Bercow. One of the questions which I posed was that, given his reputation as a reforming Speaker of the Commons, could he learn anything from the practices of the Scottish Parliament? In particular, I wanted to know if he favoured greater involvement of individual MPs and parliamentary Committees in the legislative process at Westminster? He was clearly interested in looking at these matters and admitted that Westminster could learn from the practices of the devolved parliaments and assemblies in Northern Ireland, Scotland and Wales.

It remains the case, however, that it is much more likely that an individual MSP at Holyrood – such as Monica Lennon – has a far greater chance of sponsoring a Bill and seeing it to completion, thus, ensuring meaningful, legislative change. This is something that many of her counterparts at Westminster will simply not be able to achieve.


The Independent reports that, as of 26 September 2019, 4 men have been convicted of ‘upskirting’ in England and Wales under the Voyeurism ((Sexual Offences) Act 2019.

A link to the story can be found below:

The BBC News website also carries a story about the fourth man to be convicted of this offence – a lawyer no less:
Copyright Seán J Crossan, 29 April & 26 September 2019