Marie Parker-Jenkins says the call for a return to corporal punishment in schools is a non-starter. Gillian Shephard's recent call for the return of the cane - presently enjoying favour with the "flog'em" lobby - is unlikely to be achieved for such a suggestion is ill-conceived, legally problematic and socially retrogressive.
Traditionally, corporal punishment was an intrinsic feature of our schools, supported with biblical and literary entreaties not to "spare the rod and spoil the child". Indeed, such was the widespread application of physical chastisement in our public schools in the last century, that it earned for the country the ignominious reputation of "the English vice". Not until this century was a serious challenge to the practice mounted and then through a European forum.
Parents of children who received or were threatened with corporal punishment in British schools lodged complaints at the European Court of Human Rights, after having failed to gain satisfaction through our domestic courts. They invariably relied on two specific articles within the Convention. Article 3 provides "no one shall be subjected to torture or to inhuman or degrading treatment of punishment". Article 1 of the first protocol to the treaty deals more pointedly with education prescribing that "no person shall be denied the right to education", and in any function which the state assumes in relation to education and teaching, it shall respect the religious and philosophical convictions of parents.
It is unlikely that the framers of the Convention in the 1940s conceived of these two provisions as having application to the issue of corporal punishment in schools, but the treaty has a dynamic character which permits it to be tailored to contemporary norms and values. As such, in the 1980s the European Court was prepared to consider instances of physical chastisement in British schools as akin to "degrading treatment", and that in certain circumstances the sanction could amount to a violation of human rights. Furthermore, even the threat of corporal punishment could be tantamount to violating the philosophical convictions of parents opposed to its use. More than 30 cases were lodged at Strasbourg during the last decade, and the Government suffered a humiliating loss in trying to defend physical chastisement as a disciplinary sanction in schools.
Realistically, a return to corporal punishment in schools would be highly problematic. The Government has entered into a treaty and is bound by the decision of the European Court which has made it clear that unless we respect parents' philosophical convictions on physical chastisement, we are in breach of their human rights. In effect, that means that no domestic law can be in conflict with principles contained in the European Convention.
How then, can we avoid alienating Strasbourg? The Government could attempt to introduce a Bill whereby parents could opt in or out of corporal punishment: in other words, sign your child up to be whacked.
This might appeal to those who believe "it never did me any harm". But how could schools implement such a system? Children in classrooms could wear different colour badges to assist teachers in deciding to cane or not to cane? Or you could have schools divided into cane and cane-free zones.
When this two-tier scheme was mooted in 1985, it was noteworthy for the fact that it united previously opposing factions on the issue of corporal punishment to declare it as ludicrous, unworkable and educationally indefensible. Common sense prevailed and only complete abolition of the practice was found to be acceptable.
The same would be true today. Even if parents were inclined to sign up their children for caning, teachers would be left in the absurd position of having to arbitrate different punishments for the same misdemeanour. Moreover, corporal punishment was traditionally used more frequently for boys than for girls. If that pattern recurred, schools could fall foul of the Sex Discrimination Act which quite rightly conceives of gender as a two-way street, and is unlikely to countenance treating boys and girls differently in this matter.
Legally it is a non-starter and socially there are also difficulties. Abolition of corporal punishment has caused us to reconsider how we perceive children not only in schools, but in society in general, and the concerns surrounding children's rights. In a violent society, is a return to corporal punishment the only way in which discipline and respect for others can be enforced? Unruly and disruptive behaviour in the young, so clearly evidenced in recent cases at Manton and the Ridings schools, has been attributed to a number of factors including: inadequate parenting and a general absence of deference to authority. In these circumstances, some may be persuaded that a move towards legitimising force is the only viable option left to teachers who have to instil discipline in the classroom. Corporal punishment as retribution could be seen as a deterrent to others, a clear signal that the school has no longer "gone soft" on pupil disobedience.
Yet, analysis of school punishment books prior to abolition, reveals that the same pupils' names appeared repeatedly suggesting that the sanction was not working. Also, the research of the Society of Teachers Opposed to Physical Punishment in the 1980s provides evidence that in some schools the cane was not used as a last resort but administered regularly and abusively.
Controversy lies today in children's rights to physical integrity, so clearly echoed in the European Court judgements, and the perceived need for greater control of pupils at a time of public concern over juvenile crime. Typically, the school is expected to respond to the needs of society as an enforcer of discipline, yet it cannot perform what the law does not allow. The teacher is left to function within these two philosophically opposing views of increased protection in schools for children and increased protection in society from children.
Contradictory and confusing ideas are also expressed in educational policy of the past decade. The Government has espoused the notion of parents' and children's rights but has said very little of their responsibilities. Conversely, teachers have been barraged with demands increasing their responsibilities but there has been mostly silence as to their rights. With regard to disciplinary matters specifically, teachers have a right to a safe working environment, as do pupils, and this cannot be compromised.
So what is to be done? The knee-jerk reaction to reach for the cane is unlikely to be possible. The Government will have to face the fact that the cane was cheap, but its replacement is not. The legislation which removed corporal punishment said nothing about what should replace it. Schools have thus spent the past 10 years developing alternative models of discipline which are costly in terms of resources and time.
To rectify continuing concerns over discipline, a broader view needs to be taken of what is going on in schools. This begins with loosening up further the national curriculum straitjacket and supporting curriculum offerings which engage with pupils' interests and strengths.
In the present climate of uniformity, the less academic and special needs child struggles to keep pace in a system characterised by assessment, budgetary restraints and league tables. The current Education Bill aimed at increasing selection will undoubtedly exacerbate the situation for who will choose the child unable to contribute to a school's academic performance?
Finally, with the greater valuing of children must come the valuing of teachers who also have rights in the educational process, and should be supported by an effective school governance system. There are no quick-fix solutions to our present predicament of alienated and unruly pupils: to call for the return of the cane is merely to underestimate the problem and over-simplify the answer.
Dr Marie Parker-Jenkins teaches in the School of Education at the University of Nottingham.