Bring back the Ducking Stool

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It was, as my children would say, well good this morning to hear John Humphreys on the BBC's Today programme quizzing a government minister about the new Safeguarding law which will in due course come into effect. And to hear her squirming, as politicians do, to avoid giving a straight answer to a simple question.

She nearly managed it, in the end. Almost acknowledged what he was trying to establish, that this new law is based on an alien principle. It used to be the case in English law that a person was presumed innocent until they were proved guilty. But now a new and dread idea is silently being promoted and becoming acceptable. The notion that we are all guilty unless and until we can prove ourselves innocent.

Squirm as she might, the minister cannot in the end deny this. Nor should she be allowed to get away with squirming, giving the impression that it is no big deal really. For it is a big deal. A huge change in the principles which underlie our legal system.

One of the worst things about it, is that the proponents of this alien principle employ a species of argument more often found in use by those practising religious persecution. It was a good thing, was it not, to believe in the good of the state? Why therefore would you not burn incense before the Emperor's statue? If you wouldn't, you must perforce have been an enemy of the state..... It is the argument of the Witch-Hunt. Water is Good, therefore if we dump you in it on the ducking stool, and you die by drowning in it, then it must be that the good water has cleansed the world of your Evil; conversely if it rejects you, and you splutter to the surface alive, you must be Bad and guilty, so we will burn you as a witch anyway. If you don't like the new safeguarding law, then (hint, hint) you must have something to hide... so why don't you just accept it? (and run along, there's a dear...)

It is Nanny State at her worst. This new principle has been creeping into public life for some time. For this is not its first appearance. We have for some years allowed with regard to child support, that a person is guilty of paternity unless he can prove he is not. Or more precisely, unless he can afford to prove he is not. Of course, we will all agree that it is right for a father to be required to provide for his children. But doing it this way was the consequence of political over-reaction; poor judgement on the part of the government. A little more careful thought would have made it clear that a simple change of procedure, would not do violence to the principles of our law, but would have been altogether more equitable, while still achieving the desired end. If a person was named as the father of a child, the agency which muddles along, still I fear wrecking people's lives, should be required to conduct a DNA test. And only if that test proved paternity should they be allowed to proceed against the person. But that would be expensive, so we have the cheap alternative, and apparently unawares throw away an ancient principle of law. Putative fathers are presumed guilty, on the unsubstantiated word of the mother (who, of course, must be assumed to be absolutely honest): unless they can afford to prove otherwise. It is an argument which our courts would never have tolerated before.

Most worrying, the acute problem with this new safeguarding law is that intrinsically it will not protect children or vulnerable people. Of course, we are all urged to use it as a way of creating a culture of awareness, in which children and vulnerable people will be better cared for. But law is a bad way to do such things. The Law by itself will not actually protect anyone except me. It will not stop any of the folk who are going to be paedophiles or abusers, but haven't started yet. All it will do, if something does goes wrong, is allow me to say, you can't blame me; I did the checks.

Changing the circumstances which create abuse, requires something much more than mere Law.