Gordon Lindhurst

Mr Lindhurst has himself prosecuted cases under the current law.

Evidence before the committee dealing with the proposed legislation to remove the defence of ‘reasonable chastisement’ has begun in the Scottish Parliament. The bill was lodged by Green MSP John Finnie but has since received support from the Scottish government.

Proponents of the bill claim that Scotland and the UK are behind other parts of Europe and the rest of the world when it comes to banning smacking.

But unlike other countries, such as New Zealand, the bill proposes to do so under the common law. And other countries have not approached the issue on one single basis, but rather done so in a variety of different ways.

Mr Lindhurst said that, as drafted, the bill in Scotland would remove the defence of ‘reasonable chastisement’ but fail to provide the protections taken for granted in other European countries, leaving the door open to unlimited penalties and convictions.

An example would be the lack of any time limit on prosecution in Scotland, meaning that allegations could be brought many years after a child has been smacked. In other countries, a time limit on prosecution, such as three years, is considered essential.

Mr Lindhurst raised questions about the legal issues surrounding the bill in an evidence session of the Equalities and Human Rights Committee at Holyrood with the Scottish Human Rights Commission.

It was acknowledged that a simplistic comparison with other countries was not appropriate and the issues raised should be reconsidered.

The Conservative MSP also raised other differences, including the New Zealand act expressly providing the police with discretion not to proceed on complaints against a parent. In Scotland, decisions on prosecution are determined by the procurator fiscal.

Speaking after the committee meeting, Mr Lindhurst said: “The approach to this bill so far has been to simply compare Scotland to other countries on the basis that a smacking bill has been implemented there.

“That is not even like comparing apples with oranges.

“Witnesses during the evidence session this morning agreed that the purpose of the bill should not be to criminalise parents and that parents being subject to fines and prison would not be a positive outcome. They also said they don’t foresee rises in the numbers of parents being prosecuted for smacking their children, simply because they say it hasn’t happened in other countries.

“But that assumes that those countries have the same legal systems, laws and attitudes to prosecutions as we do in Scotland. This is simply not the case and the conclusion does not follow. People’s concerns about the bill as introduced are well founded and entirely valid.

“The bill is a backwards step with a medieval solution based on the common law rather than a clearly defined offence as seen in other jurisdictions. This bill as currently drafted is completely at odds with international best practice.”