Examination of Witness (Questions 138
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 agendaand there
is nothing that excites a local authority to take action more
decisively than legislationso 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.
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
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 authoritiesCambridge, 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
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
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
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
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 vulnerablechildren in public
care, refugee children, children with special needsand
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.
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
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
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
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
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.
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
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
(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 roleto
take Lord Campbell's pointthat 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
(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.