IT’S not every day a National columnist finds themselves cited with approval by a Scottish Tory MSP. But in his rear-guard action against the smacking ban yesterday, Oliver Mundell took the Tickell name in vain. The Dumfriesshire MSP has been leading the Scottish Parliament’s disunited opposition to John Finnie’s Children (Equal Protection from Assault) Bill. He failed.

The Bill passed with support from an overwhelming majority of MSPs, winning 84 votes to 29. Hoping to broaden his coalition, Oliver Mundell held me up in the Holyrood chamber as an opponent of this legislation. At best, that’s quarter-right. I’m ambivalent. The MSP prayed in aid a column from this paper, published last spring. The piece expressed disquiet about how the debate on banning smacking was being transacted in Scotland. As the Bill passes, this disquiet remains.

READ MORE: Scotland is first country in UK to ban smacking in landmark bill

Let me try to explain why. I don’t have kids, but I do not believe in the physical chastisement of children. I wasn’t smacked. My siblings weren’t smacked. If I had kids, I wouldn’t smack them. I find parents hitting their children in public uniformly ugly and upsetting. I find the arguments justifying “physical discipline” to be generally unpersuasive. A significant part of me wants to embrace this legislation. But when I think about the criminal law, what its for, and the reckless way our politicians treat framing it – I lose my confidence.

There are many good arguments to back this reform, and many bad ones to resist it. Some of the objections Oliver Mundell has cooked up belong in cloud-cuckoo land. During scrutiny of the Bill, he suggested that banning smacking may prohibit parents from shoving their weans out of the path of an oncoming train, or criminalise loving mothers who pry their firstborn from the shark’s mouth in Seaworld. This is fanciful. Tackling someone to the floor to save their life or plucking them from the mouth of Jaws is no crime, whether or not the parental defences remain on the statute book.

But on the other hand, I’ve been perplexed to watch so many supporters of the smacking ban relying on terrible arguments to get this legislation over the line. And when you’re confronted with transparently bad arguments for an entirely defensible bit of law reform, it makes me wonder why the people who seem keenest on these proposals seem so reluctant to make the case for this new legislation frankly. The Scottish Parliament often has strange and inconsistent conversations about criminal law, but the conversation around this Bill has been queer even by Holyrood’s standards.

It’s worth reminding yourself about what the Bill will and won’t do. Assault is a common law crime in Scotland. You won’t find it defined in any Act of Parliament. But over the years, the courts have come to define assault as an “attack on the person of another with evil intent”.

What does this mean? If I’m a surgeon and I open your sternum with a scalpel to perform an essential operation, there’s no evil intent and no assault. But if I slash a granny in an effort to deprive her of her handbag – well then I’m guilty of assault, and perhaps more besides. A slap, a shove, a pinch – all these behaviours can be classified as an assault. The law has long recognised parents have the right to impose “reasonable chastisement” on their children without facing prosecution. In 2003, this defence was cast in a statutory form. An assault by a parent on a child in Scotland could be “justifiable”, the law said, in limited circumstances. Sheriffs were directed to consider the nature, effect, duration, frequency of the physical contact between parent and child, as well as the particular characteristics and potential vulnerabilities of the youngster. The Act made clear assaults could never be justifiable if they involved implements, or shaking, or a blow to the head. The Bill passed yesterday by Holyrood simply strips out these defences.

The two stupidest of the stupid arguments in favour of banning smacking are as follows. Stupid Argument 1 says “Assault is already illegal. We’re not making any new criminal offences here. We’re just removing a defence.” The stupid thinking behind this stupid argument is, presumably, that removing a defence is modest, almost technical matter. This stupid argument is stupid in two ways.

First, it misrepresents the effect of legal defences. Take an example from another context. In Scotland, self-defence is a complete defence to a homicide charge. If I use force to defend myself from you, and find myself indicted for your murder, I will be acquitted. Justified as self-defence, I have committed no crime. If the Scottish Government proposed abolishing the defence of self-deference, I reckon folk would react strangely to the argument that “murder is already a crime, so we’re just removing a defence here.”

Defences aren’t technical details. Defences articulate basic values. They say – socially – that we don’t regard people who behave in this way as meriting criminal punishment. The law has recognised plenty of rotten defences in its day. It still recognises some. In Scotland today, if a man kills his wife for infidelity, the law reckons he is guilty only of culpable homicide rather than murder. On the physical punishment of children, Holyrood yesterday articulated a new set of values. It has judged that parents who hit their kids can and should be prosecuted. It’s no good pretending they haven’t done so.

And what’s wrong with creating new crimes anyway? On the evidence of the last two decades, there’s nothing MSPs enjoy more than creating new offences. Why come over so bashful now? No law code is perfect. The law lags social and technological developments. If smacking children is an infringement of children’s rights which you believe merits the full sanction of the criminal law – why be embarrassed of arguing for that proposition, loud and proud?

That is, after all, the inevitable effect of this legislation. Why pretend the change is merely cosmetic? The advocate Jonathan Brown captured my own view succinctly last night. “There are lots of good arguments for this legislation,” he said, “but pretending it doesn’t have the legal effect that it really does isn’t one of them.”

Which brings us onto the second Stupid Argument which percolated through Holyrood yesterday. Apparently, we shouldn’t worry about the effects of this new legislation, because it won’t be enforced. “Loving parents,” we’re told, will not face criminal sanctions, as if the Lord Advocate and Chief Constable have divining rods for who is and is not a tender mother and father.

Look at New Zealand, MSPs cried. After they ditched their old-fashioned defences for smacking parents, only a few more people ended up in the courts. This argument is meant, I suppose, to reassure. But it strikes me as basically perverse. If you believe – as many MSPs say they believe – this behaviour is serious enough to merit criminalisation, what is the rationale for hoping nobody who actually engages in this behaviour to face any criminal sanctions?

My modest proposition for MSPs is this: if you think behaviour merits criminal prosecution, then by all means, criminalise it. But if you don’t, then don’t make it illegal. You can’t walk a twilight way between these two alternatives, where we criminalise only on the books but not in practice. Criminal law is not PR.

I earnestly hope the Bill is a good thing. I hope it serves the social function of discouraging more and more parents from resorting to physical punishment in their relations with their kids. But if last night’s debate is anything to go by, Holyrood still seems seriously confused about what criminal law is for.