Today’s Senedd Roundup: Law tabled to outlaw smacking

Owen Donovan, Senedd Home

Children (Abolition of Defence of Reasonable Punishment) Bill

Introduced by Deputy Minister for Health & Social Services, Julie Morgan (Lab, Cardiff North)
Bill (pdf)

Explanatory Memorandum (pdf)

Why introduce a smacking ban?

This has a long history in the Senedd. An attempt was made to introduce a ban during the Fourth Assembly – which you can read up on the old Oggy Bloggy Ogwr – but it failed to pass despite a rebellion by backbench Labour AMs (including Julie Morgan).

Plans to introduce a smacking ban during the Fifth Assembly go back to May 2016, but it’s only now that a Bill has actually been put forward. Apparently it was a 2016 manifesto commitment by Labour, but it’s long been said they intended to bring it forward “with cross-party consensus”.

The overarching aim of the Bill is to enhance children’s rights by protecting them from physical harm.

Surveys carried out by Beaufort Research in July 2018 concluded that 81% of parents disagreed that it was “sometimes necessary to smack your children”, while 48% agreed with an outright smacking ban compared to 39% who disagreed. The public consultation prior to the Bill’s introduction produced a closer result with 50.1% agreeing that a new law would protect children’s rights compared to 48.1% who disagreed.

Additional research from the Public Policy Institute produced inconclusive results on the question of whether “smacking” caused long-lasting harm to children, but it also concluded that smacking made little difference to short-term and long-term behaviour and was no more effective than non-physical punishments.

The four Welsh police forces gathered data on the number of investigations where an adult (old enough to be a parent of the victim) has used reasonable punishment as a defence in common assault or cruelty against under-18s; the total across Wales was 274 cases a year.

A similar Bill has been introduced by a Green MSP in Scotland as is currently progressing through the Scottish Parliament.

The Lowdown: What does the Smacking Ban Bill propose?

The Bill is one of the shortest ever introduced at the Senedd, standing at a single page of A4 – though it’s equally likely to be one of the most controversial laws.

There’s only one proposal. Corporal punishment can no longer be used as a defence in any civil or criminal proceedings in Wales where a person is accused of assaulting a child.

“Corporal punishment” has been legally defined as “battery carried out as a punishment” – battery itself broadly meaning “an unlawful and harmful application of force without consent”. So it presumably won’t cover examples such as forcibly dragging a child out of danger or pulling apart two fighting children.

Any person falling foul of the Bill, should it become law, could potentially get a criminal record, which would show up in DBS checks and affect their current or future employment prospects – particularly if they want to work with children.

Does the Senedd have the power to make this law?

This was one of the arguments used against previous proposals – that it crosses into criminal justice which is beyond the scope of the Senedd’s powers.

However, “parental discipline” hasn’t been reserved to Westminster in the Wales Act 2017 (Schedule 1, Section L12), meaning the Senedd has the (unquestioned) power to introduce a smacking ban.

How much will the Smacking Ban Bill cost?

The total cost of the Bill over the next five years is expected to be between £2.3-3.7million.

The bulk of this (£1.3-2.7million) will fall on the Welsh Government; the difference in the figure depends on the intensity and duration of any public information campaign they introduce should the Bill be passed by AMs.

The cost to the four Welsh police forces is expected to be £890,000 over five years as a result of a medium-term increase in criminal investigations. The Crown Prosecution Service and courts are expected to see an increase in combined costs of £90,000 over five years.

Social service referrals are estimated to cost £535 a piece, but it’s unclear how many would arise as a result of the ban.

Bill first step towards making Welsh law easier to understand

Constitutional & Legislative Affairs Committee
Stage 1 Report: Legislation Bill (pdf)
Published: 26th March 2019

The Legislation Bill is one of the more technical laws introduced this term. The core aim is to start a codification process of Welsh law in order to make it easier to understand and more accessible – there’s a full summary here.

1. The Senedd should agree to the general principles of the Bill

The way the UK Constitution works means laws pile up on one another making the whole thing “vast and unmanageable”. The Bill aims to avoid a similar situation developing with Welsh law by, effectively, consolidating all existing laws and regulations into a single “code” via a series of future Consolidation Bills (so, for example, there could be one big consolidated Bill covering Welsh environmental law which can be chopped and changed as necessary).

Legal experts who gave evidence to the Committee agree that the aims of the Bill were laudable. The Law Commission even described the Bill as “very clever” and “an exercise in best practice” believing it was better to introduce it now while Welsh laws were relatively small in number and to take the legislative impact of Brexit into account.

2. More clarity was needed on the non-legislative measures the Welsh Government intends to use to maximise the effectiveness of the Bill

The Bill comes with a long list of regulation-making powers for the Welsh Ministers, but for the Bill to properly work it’ll require a number of measures not related to legislation at all.

Some suggested measures include the digitisation of Welsh legislation, providing “easy read” explanatory memorandums alongside Bills (which the Welsh Government have done in the past), improved legal education and addressing a lack of academic and legal practice commentary on Welsh law (such as textbooks and legal glossaries).

The Counsel General, Jeremy Miles (Lab, Neath), told the Committee he was aware of the issues, but citing textbooks as an example he said the market for such material was likely to be very small. He believes the Law Wales website was likely to be the best way forward.

Nonetheless, the Committee demanded further detail from the Counsel General on non-legislative measures – including discussions with legal commentators, the development of Welsh language legal drafting expertise and how to educate the public on their rights and obligations under Welsh law.

3. “Accessibility to Welsh law” needs to be properly explained

There were differing views on what “accessible law” actually means. The Bill’s explanatory memorandum mentions “clear and certain in its effect….easily available and navigable”.

While a number of witnesses believed leaving a definition of “accessible law” off the face of the Bill was a strength – because it wouldn’t result in a narrow definition – Aberystwyth University’s Dr Catrin Fflûr Huws supported a definition of “accessibility” and whether that referred to the clarity of language in legislation or physical access to legislation (i.e. freely available on a website).

The Committee recommended the Counsel General provide a clear statement on what’s meant by “accessibility” in the Stage 1 debate – due to take place next week. They also recommended placing a clear duty on the Welsh Government to prepare a formal programme for accessibility and on the Counsel General to report annually on progress – as opposed to once every five-year term as stipulated in the Bill.

Water pollution regulations “threaten businesses”

Environment questions.

Shadow Environment & Rural Affairs Minister, Andrew RT Davies AM (Con, South Wales Central), mentioned proposed regulations to deal with water pollution from farming. While he wasn’t opposed in principle, he suggested the regulations were a “cut and paste” of nitrate regulations which are supposed to apply in specific zones, not the whole country. What assessment had been done on the potential impact of these regulations?

The Minister rejected the idea they were a “cut and paste” job. She preferred a voluntary control on agricultural pollution, but incidents increased 200% in a year which meant regulations were necessary.

As the Minister made no mention of impact assessments, Andrew RT Davies claimed none had been done:

“….that’s deeply alarming that no impact assessment was undertaken because this potentially could shut down many currently viable rural businesses that create employment opportunities and produce high-quality food….How can you defend that position, Minister – that the regulatory impact assessment was not done before you made the announcement?”
– Shadow Environment & Rural Affairs Minister, Andrew RT Davies

The Minister said plenty of impact assessments had been done alongside a full consultation, but she couldn’t “just sit back and see an increase in major pollution incidents”.

Community energy plans “need to be more ambitious and radical”

Llyr Gruffydd AM’s (Plaid, North Wales) first question related to previous comments on creating a separate Welsh planning inspectorate – though the Minister said planning was no longer her responsibility.

His second question referred to a recent Institute of Welsh Affairs energy report. Llyr welcomed the report’s emphasis on community ownership, which he believed should form part of a broader cross-party collaboration on energy.

“I would be eager to see this forming the foundation for an energy policy that is far more ambitious and radical than we’ve had from the Welsh Government to date. And, in that spirit, I would be eager for you as Minister to be leading from the front in trying to deliver much of what’s contained here. Because I am convinced there is a consensus, across parties, for us to go further than the Government has stated it’s willing to go at present.”
– Llyr Gruffydd AM

Environment, Energy & Rural Affairs Minister, Lesley Griffiths (Lab, Wrexham), said community ownership plays a big part in the government’s energy vision and she was also happy to collaborate with other parties. However, when government targets have been mentioned in the past, experts “raised their eyebrows” believing they were too ambitious; there was no point setting unachievable targets.

Lagoon resurfaces

Dai Lloyd AM (Plaid, South Wales West) said the company behind the Swansea Tidal Lagoon were looking at different delivery models – including adding solar panels to boost energy generation from 572 GWh to 770 GWh. What work has the Welsh Government been doing on this recently?

Suzy Davies AM (Con, South Wales West) added that energy production costs (in relation to the lagoon and generally) were still paramount as nearby Tata Steel tries to remain competitive, while David Rees AM (Lab, Aberavon) asked if anything new had been learned regarding the lagoon’s potential impact on fish?

The Minister couldn’t comment on any live marine licensing issues, but said the Welsh Government continue to press the lagoon’s case to London:

“….the First Minister has written twice to the UK Government….highlighting the importance of the marine energy sector to the UK, and particularly to Wales, asking the UK to provide a very clear path to market for marine energy. I think the lack of a strategy in relation to tidal energy in the UK Government is an obstacle. There will be a report for the Welsh Government….by the end of April….and I think it’s really important that we do look at these emerging technologies, particularly around marine energy in Wales.”
– Environment, Energy & Rural Affairs Minister, Lesley Griffiths

Developers to blame for lack of affordable homes

Leanne Wood AM (Plaid, Rhondda) cited statistics from StatsWales suggesting a complete failure to hit affordable housing quotas:

“….local authorities have granted planning permission for housing developments that should have resulted in the provision of 13,355 affordable houses, but only 6,746 have actually been built, which is just over 50% of what we should have had. In some local authorities, the figure is even worse: in Wrexham, for example, just 16% of the affordable homes promised within developments have been delivered.”
– Leanne Wood AM

Leanne accused developers of negotiating down affordable housing requirements and threatening local authorities with the (English-based) Planning Inspectorate if they don’t get their own way. What was being done to stop this?

The Minister broadly agreed there was a problem; councils have lost skilled planners due to austerity and they struggle to negotiate the appropriate level of affordable housing provision as part of Section 106 and similar agreements. The Welsh Government were doing a number of things including encouraging councils to build houses themselves through enhanced borrowing powers and also encouraging skill-sharing.

Government “will consider” measures to make private tenancies more secure

Jenny Rathbone AM (Lab, Cardiff Central) asked whether the Welsh Government will consider changing the law to give private renters more secure tenancies. It was a particular problem for young people with children who could be evicted for no reason and be forced to move at short notice. David Melding AM (Con, South Wales Central) mentioned plans in England to increase the minimum tenancy period from 6 months to 3 years – though he accepted any changes required full consultation with the sector.

“We’re very much in favour of looking to see whether we can make security of tenure a much more of a reality here in Wales, and we will be working hard with the sector to see whether we can repeal or modify (the relevant laws) in order to give people better security of tenure.”
– Local Government & Housing Minister, Julie James

The Minister said the Renting Homes Act 2016 isn’t yet in force as one more set of regulations requires consultation. She added that “no-fault” evictions were a real scourge and the children of parents who live in insecure rental accommodation were twice as likely to suffer mental health problems.

Proposed fire authority reforms hard to justify

Last November, the Welsh Government published a white paper on reforms to fire authorities – more details here.

Shadow Communities Minister, Mark Isherwood AM (Con, North Wales) flagged up growing opposition from fire authorities themselves. He said the fire authorities were arguing that standards hadn’t slipped and there was little in the white paper which justified changing how they worked.

Local Government & Housing Minister, Julie James (Lab, Swansea West), assured fire authorities it was a “genuine consultation” and their views will be properly taken into account – though she defended attempts to reform the service:

“….it’s not a problem to want to review a service that’s been in existence for a very long time and see whether there are things that can be improved. There are things that we’re discussing with firefighters….around widening their roles since they have been very successful in lowering the number of fires across Wales….But it’s a timely look at how they’re organised and whether that’s optimal.”
– Local Government & Housing Minister, Julie James