Joint Committee On Human Rights Minutes of Evidence

Examination of Witness (Questions 138 - 159)

MONDAY 13 MAY 2002



  138. Mr Waterman, thank you very much for coming today. We know you were going to be accompanied by Brian Edwards, the Senior Vice Chair of the Association of Chief Education Officers, but we understand he is detained in the north of England, primarily because of the rail incident at Potters Bar, but we are very pleased to see you here this afternoon. First, can I ask you to what degree you feel the Human Rights Act has had any impact on, first, local education authorities and, secondly, on schools?
  (Mr Waterman) Thank you. I am sorry that I am a late arrival at the Human Rights Committee but I did have a lengthy discussion with Brian last evening and I have been in touch with his office today, so this is partly from my more general experience but I will be talking specifically, although vicariously, about Gateshead, to introduce some examples. Initially, and you used the word yourself earlier on, there was compliance, and every local authority faced with the potential of wretched lawyers will make sure it complies with the law, and initially I think that was what local authorities were doing. However, having made sure that they were safe from prosecution in terms of not breaking the law, I think there has been a cultural shift. To use one example, having ensured that they were complying with the law, that their lead officers had been trained, in Gateshead for example every committee report has a human rights implications section in it. Certainly when I was writing committee papers you always had to put the financial implications, as indeed legislation has to have, but there is now a human rights element, so it is kept at the forefront of local authority minds; it is another perspective that is borne in mind. I think there are also new initiatives and projects which are coming in, partly as a result of the citizenship curriculum, which has given human rights another turn of the screw in terms of individual schools. So I think the Human Rights Act was very good in terms of putting it on the agenda—and there is nothing that excites a local authority to take action more decisively than legislation—so having set that in the law of the land, that has given us a lever to move on. I think we could be more proactive but I think it is important and is developing all the time.

  139. My sense of what you are saying is that initially, like lots of other public servants, the reaction to the Human Rights Act was what could perhaps be kindly called "defensive", in that people wanted to make sure they were complying with the law and they were safe from challenge.

  A. Yes.

  140. Now there is the opportunity to move on to the more positive agenda of human rights within schools, not just in terms of the syllabus but in the way the children themselves are treated. Have you any evidence of that happening, and could you tell us whether the procedure you have described in Gateshead is common with chief education officers, and have you found out whether it is common for there to be a human rights impact in council papers?

  A. I have not. This is a snapshot, to some extent, of what I think to be a not untypical local education authority. It would not be difficult to sample 25 per cent of local authorities. I do not think Gateshead is extraordinary in any way, and certainly Brian Edwards was picked to some extent at random; he is a representative chief education officer who happens to be vice president. I think we are moving away from the defensive, but if I can quote the DfES website which said early on, "A well-run school which follows the DfEE . . ." as it then was ". . . guidance on admissions, exclusions and special education needs will have nothing to fear come October." So that was one bit of Government saying, "You have nothing to fear", essentially defensive, but I think things have moved on significantly. There is a project which the LGA and the National Youth Agencies are involved in called Hear by Right, which are the standards for the active involvement of young people in local democracy, and there are pilots in half a dozen local authorities—Cambridge, Cheshire, Durham, Gloucester, Islington and Swansea. That is one example of a fairly detailed project about listening to children. Anecdotally, I am involved in advising a school governing body on appointing a head teacher. What one chief education officer said to me was, "Get the candidates shown round the school by children and get the children's views." I am not suggesting you should get the children choosing their head, although they might be quite good at it, but it is another way of building into the culture that children do have something to say about everything to do with the world they live in.

Lord Lester of Herne Hill

  141. Before Mr Waterman goes on, can I just ask a question. Can you give us two or three practical examples of what issues would go into the human rights perspective analysis in Gateshead because, speaking for myself, I am a bit surprised to hear that is done. Presumably it is done from the Race Relations Act perspective and the Sex Discrimination Act perspective as well, but what would be the kind of issues that Gateshead would flag up in that envelope?

  A. I can certainly come back to you in writing because I have only been in Gateshead once and—

  142. Can you think of any example in any local authority where there would be a human rights issue that would arise for a chief education officer in that kind of context, because I am interested to know the sort of thing you have in mind.

  A. Unfortunately not today, but by the end of the week I could furnish you with verbatim examples of that.

  Chairman: As I said earlier to Mr Leadbetter, and I am happy to reiterate to you, Mr Waterman, anything which strikes you after the session is over which you think would be useful to us in terms of written evidence, we would be very pleased to receive.

Baroness Whitaker

  143. You mentioned citizenship education going into the curriculum which I think arises this September. I recall two ways of human rights being taught. One was foreign human rights in countries where awful things went on, and the other was what rights children had in their own country. I would like to ask you what you think teachers' awareness is of the relevance of human rights to their own everyday domestic lives and not just something which is viewed from far away?

  A. If I could split the question into two, there is the curriculum subject, and certainly if you are teaching RE, English, history or geography, then some of the content of human rights will figure, and certainly in citizenship it will figure particularly highly. What is probably more important, however, is the impact of human rights on the ethos of the school, how children are treated within the school, how their rights are respected, and that is very important. You do not increase democracy by telling people about it, you increase it by involving them in it. So in terms of schools councils, in terms of youth forums for local authorities, it is getting individuals involved. Certainly in my wife's primary school, they are looking at a school council which is giving the children limited rights to make comments about how their school is run. So there is a range of very good examples moving from the school to the area to the local authority in terms of involving children in suggesting changes they wish to see made.

  144. That is very interesting. It is, of course, at one remove from the actual rights which we have enshrined in law. I was wondering if the teachers had any guidance on, for instance, the United Nations Convention on the Rights of the Child, or on what are the elements in our own Human Rights Act, and what are the rights which we place such value on.

  A. I would have to say that is probably patchy. It has not been teased out and articulated and set down in a precise way.

  145. Where do teachers find out about what human rights are? Is it in the new QCA guidelines? Then a slightly different question, do you think this area is something which a Human Rights Commission could particularly engage in, ie promoting what human rights actually consists of?

  A. There is obviously guidance on citizenship which would come from the QCA. Schools will now have policies for personal health and social education, and so as part of that, which is a school-by-school document, then children's rights would be considered in that context. So that would be discussed at whole school staff meetings and it would also be dealt with at in-service training for those teachers with responsibility for that subject area.

  146. And the role of the Human Rights Commission in this process?

  A. I think the Human Rights Commissioner or a Children's Rights Commissioner would be another source, and an objective and independent source, of advice and another resource for schools to use.

Lord Campbell of Alloway

  147. Mr Waterman, this follows on again from the two previous questions. I find myself totally foxed in trying to identify an issue where human rights would arise, apart from the teaching of human rights, in the classroom, which in any event could be ordained by Parliament. Would it be any better if the Commission were empowered to so ordain it? I cannot see any advantage. It is a matter for Parliament. Then may I, on special education needs, go to page 10. You are concerned with the local education officers, and of course you are the secretary, who work for the LEAs and you are only concerned with the aspect of education. You say that a commission could support or operate a mediation or conciliation scheme to help resolve some of the conflicts between parents, children and schools over such issues as admissions, exclusions and special education needs. Take the last one. Is not the problem that we have a vast shortage of specialist teachers? That lies at the root of the special education needs problem today, according to my information. So how could the setting-up of a commission improve that? It is not, is it, within the remit of the commission to set up a sort of mediation or conciliation scheme to deal with conflicts between parents and children? You cannot suggest that you are making that proposal on behalf of local education officers, can you?

  A. I think there are three questions there, Chairman. In terms of whether a Children's Rights Commission would be better than Parliament at delivering what I think children's rights should be about, I can express a fairly robust but personal view. I would have to say that I would come down in favour of a Children's Rights Commission or a Human Rights Commission, but I think that debate would take quite a long time to develop. Certainly I think such a commissioner would have an independence and would be able to have a view about Government which a member of that Government, were it to be a Children's Minister, would find more difficult to have, but that is a far wider philosophical discussion and I am obviously not here to discuss politics. In terms of special education needs, and I imagine your reference to page 10—


  148. It is a different brief.

  A. Yes, but I recognise a bit of it. I am not sure that children with special needs is relevant, in the sense that if we are talking about children then you react to them and their rights whether or not they have special needs. So I think special needs is a slight diversion although there are specific groups of children who are more vulnerable—children in public care, refugee children, children with special needs—and therefore have special needs; I think they have the same rights but they may demand more attention. But in terms of the mediation and conciliation scheme, we would not want the Children's Rights Commissioner to become involved in the conciliation that is offered on a wide basis already. There is something called the London Disagreement Resolution Service which operates before children with special needs and parents go to a Special Needs Tribunal. There are all sorts of informed mediation. What the Children's Rights Commissioner would be able to do would be to pull together the various initiatives and to identify good practice and by virtue of identifying it seek to disseminate it, rather than get involved in a wide range of individual cases. I think one of the advantages of a Human Rights Commissioner rather than a Children's Minister in my experience of cross-government initiatives thus far, has been that it might be better coming from an external, impartial, dedicated individual or commission.

Lord Parekh

  149. I wonder if we could talk about the question of exclusions of pupils from schools. I see from the research available that the number of exclusions from primary and secondary schools seems to be declining over the years, from 12,000 three or four years ago to about 6,500 now. The whole question of exclusion seems to me to impinge upon the question of human rights at two levels. One is the right to education and the other is the right not to be discriminated against. How do schools deal with those questions?

  A. I think that central government policy is expecting schools to do two things, which are probably at 180º one from the other. On the one hand, schools are expected to achieve very high positions in league tables and they are encouraged to do that, with the expectation, which I think is mathematically impossible, that every school should be above average. There is a huge impetus for that to happen. By the same token, schools are meant to be inclusive societies and to meet the needs of all children. Unfortunately this is a very difficult balancing act for schools to achieve because they know, and for those of you who saw the news last night will have seen one penalty in injury time meant a £20 million difference to Birmingham City Football Club's income. If you extrapolate that to children who are not going to achieve in their school and if you talk about a primary school, one child who does not reach level four in a one form entry school is 3 per cent in the league table position and that is dramatic. If you have two or three of those children you are looking at being in the second division next year. I think it is important to balance the bit of Government policy that says "published raw data is vital" and the other bit of Government policy that says "but you must be inclusive". Certainly when I was running the schools in the London Borough of Hillingdon I rang a head because I had a particular child who I wanted this head teacher to take and she said "why?" and I said "because you have a particular facility, an ability, for dealing with this sort of child" and she said "don't you ever say that in public because I cannot afford to have the reputation of being good with difficult kids" because already she was torn between meeting individual children's needs and establishing a reputation for academic standards. This was some years ago. It is a real issue and schools are being pulled in two ways by that.

  150. When we talk about exclusion, it could mean either not taking all kinds of students but only taking them selectively or excluding those who are already in on the grounds of bad behaviour or whatever.
  (Mr Waterman) Yes.

  151. I thought that you were responding to exclusion in the first sense rather than the second.
  (Mr Waterman) I was to some extent. Again, very briefly, the present Government has facilitated the greater selection of children in a number of schools. To reply to the second point, in terms of excluding pupils, again permanently excluded children are removed from your roll and therefore do not reflect in your figures and it is the resources, and certainly by September of this year every local authority will be obliged to provide full-time education for every excluded pupil. That again is a double-edged sword in the sense that pupils are better in school rather than being catered for full-time outside a school. That is another significant dilemma for the school.

Lord Lester of Herne Hill

  152. I wonder if I could ask you a very specific thing. As you know, there is evidence suggesting that racial exclusions are taking place disproportionately and for 34 years, since the Race Relations Act 1968, it has been unlawful for schools to discriminate in excluding children on a racial basis.
  (Mr Waterman) Yes.

  153. I am not aware that there has ever been any case brought under the Race Relations Act but it is simply a specific example of what is in the Human Rights Act and the European Convention. I want to get away from generalities and concentrate on this specific topic, if I may. What troubles me about the general rhetoric about the subject is this. We have a Commission for Racial Equality that has been in existence for a long time, and with a statute and a legal obligation. How can one explain then that local education authorities and state maintained schools are apparently indulging in unlawful behaviour where there is an enforcement mechanism already and, as far as I am aware, no-one has ever brought a single case against a school or a local education authority under it? We already have all of these mechanisms, why is nothing happening from a legal point of view, do you think?
  (Mr Waterman) Some groups are over-represented in permanent exclusions.

  154. I mean Afro-Caribbean children.
  (Mr Waterman) Okay. Other groups are under-represented, other ethnic minority groups. I think that is partly to do with the educational system's ability to cope with the differences that some groups bring to the institution and I do not think it is a simple question of race. Certainly with Afro-Caribbean boys I think they need, and it is very hard to generalise but the figures make a degree of generalisation, teaching or provision that needs to be made that is perhaps more flexible than for other groups. Again, I am trying very hard to—

  Lord Lester of Herne Hill: Can I put my question again?

  Chairman: We have to move on.

  Lord Lester of Herne Hill: That is your answer, thank you very much.

  Lord Campbell of Alloway: The point is made.

Mr Woodward

  155. I would like to come to a very specific issue in the education system which is bullying. Most of us, of course, know that bullying has gone on for almost as long as there have been schools. It has only fortunately been rather recently that the problem of bullying has been taken seriously by education authorities and by schools in a way where we are no longer expecting children to put up with it because their parents put up with it. In order to have an effective bullying policy, and now schools are required to have an effective bullying policy, what makes it effective is how it is implemented and how it is monitored. My very simple question from your experience is do you believe that we would be more effective in dealing with bullying indeed having identified the scale of the problem which we are trying to deal with? Do you believe we would be better at it if we had a children's commissioner for England and, more specifically, if we had a human rights commission, or is this an example of a problem that frankly would not really change if we had a human rights commission or children's commissioner for England?
  (Mr Waterman) I think in that specific case it would not change. I notice that according to, I think it was, a MORI poll, one-third of children said that they were bullied. I think that it is very difficult to define. There are infinite gradations of bullying.

  156. Yes, but we could come up quite quickly with an example of what bullying can lead to and there are plenty of cases in our local papers which show that bullying goes wrong in school and a child's face is crushed by a group of kids who got carried away. That demonstrates bullying.
  (Mr Waterman) Absolutely.

  157. I am going to push you on this because I am slightly surprised by your answer and I am surprised because since bullying has gone on forever and since schools have seen it, since schools effectively have condoned it because they know it goes on but have done nothing about it until quite recently, and since there are many schools in our country where bullying still goes on but actually the schools arguably do not have a very good bullying policy because it continues to go on, one of the things, surely, that a children's commissioner, or crucially a human rights commission which incorporates a children's commissioner of some kind, would do is offer a place to go along to and say "my school does not do a damn thing about this problem" or the parents go along and say "we have complained to our local education authority and they do not take it seriously". Where at the moment does that child or that parent go with his problem?
  (Mr Waterman) They would have to go through the local authority complaints procedure.

  158. And, as we know, that can take months and months and months. Bullying, given the scale of the problem and how long it has been around, surely that illustrates a role—to take Lord Campbell's point—that may end up with some diminution of power elsewhere but would that not be quite a good diminution if you have ended up tackling bullying in a serious, coherent way?
  (Mr Waterman) If there was that focus on bullying, and obviously the human rights commissioner would see it as one of his or her priorities, then it could assist in drawing together the good practice and giving people a resource beyond the local authority. In terms of where young people can go, and we still have a way to go, there are the connections personal advisers, which are now in schools, there are child protection co-ordinators in schools, and there are mechanisms. In Gateshead there is a CD-Rom for teachers and children on anti-bullying which Rotary International have supported. There are initiatives. It is getting that into every school because obviously there are huge variations between schools. I think that could be a useful role for a human rights commissioner or a children's rights commissioner.


  159. Thank you very, very much, Mr Waterman. Thank you for coming here today. I would just reiterate that anything your organisation would like to submit further in written form we would be very pleased to receive from you.
  (Mr Waterman) Thank you very much for your time.

  Chairman: Thank you.

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