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Tuesday, January 22, 2008

Smacking ban

In many ways the UK government's decision that new law-making powers for the assembly government to protect vulnerable children should not extend to a complete smacking ban was predictable. They have long made it clear that they consider this matter to be a criminal justice matter and that they believe there is no support for it amongst voters in England and Wales.

Although UK Labour Ministers cannot do much about Scotland, whose Parliament has responsibility for criminal justice anyway, and which has a well-established separate legal system, I suspect that they believe that any weakening on their part with regards to Wales will lead to more devolution than they are prepared to countenance, whilst at the same time undermining their position in England.

That this has become a sticking point was made abundantly clear by the First Minister who said on Sunday that if we want to have the ability to have a measure in the future which will enable us to remove the so-called reasonable chastisement defence against common assault charges - parent to child or parental guardian to child, then the UK Government will not let us have the LCO at all. He has therefore accepted that we need to re-write the legislative order.

Betsan Powys reports on her blog that the responsible Deputy Minister takes a different view. Gwenda Thomas has written to the Chair of the Vulnerable Children and Child Poverty Legislative Competence Order Committee in support of WAG's right to ban slapping:

"You will be aware of recent press reports about the UK government's view that the law regarding physical punishment of children could not be within the Assembly's legislative competence because it relates to criminal law, which is not devolved, and therefore would not primarily relate to any of the fields currently in Schedule 5 of the Government of Wales Act 2006.

The Welsh Assembly Government does not accept this argument. In our view, a power for the Assembly to legislate so as to protect children from harm caused by parents or people with parental responsibilty physically punishing them could relate to an appropriately worded matter in the social welfare field - a field which is in Schedule 5. There is an important distinction between criminal justice in general - which is not devolved - and criminal sanctions, which may or may not be devolved. It is not necessary that the Assembly should have legislative competence in respect of the criminal law generally in order to make provision changing an aspect of the criminal law."

This is of course far more complicated than a straight forward power struggle between two governments. Some may argue that the Assembly should be given the latitude to legislate on all matters within its competence no matter how inconvenient that is for UK Government Ministers. I support that view but in this case, and not withstanding Gwenda's arguments, it seems clear that this does involve a criminal justice matter and that any attempt by us to legislate on it would be pre-empting a discussion we still need to have.

I would like to see the devolution of policing and some related criminal justice matters to Wales but there is no agreement on that issue at any level, least of all in the Government of Wales Act, which was supposed to be Labour's last word on the matter. Perhaps this is one way that the constitutional convention can make itself useful. We have been wondering what it was for. If it can broker deals on grey areas such as this then we might all be spared these arguments in the future.
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