Examination of Witness (Questions 301
MONDAY 17 JUNE 2002
301. Welcome, Professor Brighouse. We are very
pleased that you have found the time to come and give evidence
before the Joint Committee on Human Rights. You will understand
that as part of our inquiry we are looking at what has been happening
in education since the implementation of the Human Rights Act,
the human rights problems that children continue to face in schools,
and the effect on education generally. It is right, is it not,
that you are presently Chief Education Officer of Birmingham City
Council, and have been since September 1993; and that you will
be retiring from that post in the autumn?
(Professor Brighouse) Yes.
302. You were co-vice-chairman of the Government's
Standards Task Force from June 1997 to March 1999, and you are
Professor of Education at Keele.
303. We have had a lot of information now about
the way in which the Human Rights Act has been received at official
level, and it has tended to veer between defensive, which could
probably be put under the heading, "what have we got to do
not to fall foul of this Act?" ranging to, "what we
have to do to create a human rights culture in this organisation",
depending, obviously on which public authority you are talking
about. Can you tell us where you think local education authorities
and schools are on that continuum between the defensive side and
the positive side?
A. I would say all points. There are 23,000
schools and 150 authorities, and they will be at very different
points on that spectrum. I would have guessed that in the climate
in which most people perceive external change, of which there
is much, and new legislation, most people in most circumstances
will be slightly defensive and worried about whether they are
going to comply. This particular bit of legislation, happening
when it did, was probably one where most people in education thought
it would be interesting to see how it would translate itself into
practice, policies, systems, et cetera because it was felt
to be a very important Act. The closer you get to the classroom,
the more likely it is that you will find people with a sense that
they are shaping the future, that they really see human rights
as important. They are particularly important for children, in
304. Last week we had before us the President
of the Royal College of Paediatrics and Child Health, who said
he did not see much evidence of the impact of the Human Rights
Act, or a positive impact at trust/board level, but he did increasingly
see an impact for practitioners. Is that what you are saying is
happening in education?
A. Yes, I think I would be saying that. People
who have a sense of idealism and purpose about their task, who
in a true sense have a vocation to become teachers and become
part of the system, will probably burn about the issues that are
in the Declaration of Human Rights Convention; and, therefore,
the Human Rights Act, and the Disability Discrimination Act as
it applies to education and S.E.N, for examplethose sorts
of things come through. There is also the Race Relations (Amendment)
Act. There will be lots of people thinking that these are good
things and that we are moving in the right direction. I do not
think that that necessarily means that they are totally aware
of systemic practices within their schools or within their local
education authority, or within the nation indeed, which appear
to militate against human rights, particularly children's rights.
305. Does Birmingham Local Education Authority
at any stage have a human rights impact
assessment in proposed policies or in reports
to other committees?
A. We used to have Equal Opportunities rights,
and that got extended, and there is one about social inclusion.
It is not actually labelled "human rights", but there
will be a very strong sense of"is this fair?"
and "we are looking after individual rights"; and there
will be an expectation that you would comment on that. It is not
labelled "human rights".
306. But you think it is part of the focus.
A. I think it is part of the focus, yes. It
does not mean necessarily that attention is drawn to issues in
the way that it might be. To give an example, one of the declarations
of the Government's policies is "success for the many".
That is an interesting proposition. In Birmingham we have tried
to brand the proposition of "success for everyone" because
that is what we think we should set out to do. I am drawing a
distinction, which I think is important. There are lots and lots
of things we do in terms of admissions criteria, the process for
exclusionslooking at how well we collect data on racial
incidents, how we encourage schools to combat bullying and all
those sorts of things that touch on human rights for children.
307. Have you taken any specific steps in Birmingham
to make teachers there think a bit harder about the culture of
A. I think our "success for everyone"
series tries to make people think of a few broad principles in
the provision of education, which have polarised over the last
decade into things like trying to get success for everyone rather
than depending on failure of the many. But we believe in intelligence
being multi-faceted rather than generally inherited and fixed.
That is important. We want to have assessment that improves on
previous best. Normative and comparative assessments are fine
for institutions and adults, but for children the important thing
is to get their speed of progress against their own previous best.
There are a series of other ones, with lifelong learning and things
like that. Against those criteria, which we have gone on and on
and on about, we try to judge the practices that we introduce,
that would or would not satisfy those principles, which we try
to live up to and which I think are at the heart of human rights.
308. Professor Brighouse, I am interested in
your answers and want to follow through on them, but I want to
take you to the national picture as opposed to the Birmingham
picture. When last week we had young people giving us some evidence,
one young lad from Dorset said he had been in school for a decade
and had only had one lesson on human rights, in which he learnt
that some countries break them, but not that he necessarily had
any human rights. I thought that that was a very succinct way
of putting it. Are you confident that nationally, from the DfES
or from LEAs in general, or indeed from teachers' unions, teachers
have sufficient guidance on teaching human rights in the new citizenship
A. They are getting lots of guidance at the
moment because there has been a big push about citizenship, where
they are teaching people about human rights as opposed to living
human rights, and the practices and processes of our schools and
LEAs in our country. Teaching them about it is an important thing,
but making sure that your institutional practices are not at variance
with the very human rights that you are proposing seems to me
to be a very important factor too. In that respect, you could
argue that it would be good to look at the framework of Ofsted,
which inspects both schools and LEAs, and ask yourself how well
would they be checking up on practices and processes and outcomes
that are connected with human rights. In the case of schools,
they have got a lot better, and in the case of LEAs also. For
instance, we have just been through them, and one of them is combatting
racism, for which there are very tight criteria. There is a set
of other criteria under a general heading of "social inclusion",
which would run through what we are doing for groups that you
might think would be at risk. There are groups of children at
risk, and they are focusing, in a way they did not five years
ago, on children who are looked after or in public care, and children
with special educational needs, to make sure that those who are
most at risk of not having their rights safeguarded are looked
at. Frankly, if you tried to run through the whole set of human
rights, there has been a beginning there but I do not think it
is as penetrating as it might be in terms of the practices of
the schools and LEAs.
309. Would it be fair to say that the situation
is improving but that some of it is abstract and does not necessarily
relate to the everyday lives of children, or indeed increases
respect for their rights within the schools?
A. I think it would be getting towards being
fairdrifting in that direction, yes.
Lord Lester of Herne Hill
310. Professor Brighouse, I am going to ask
you a "sticks and carrots" kind of question. If one
imagined that we had a human rights commission, and that it had
powers similar to the Commission for Racial Equality and the Equal
Opportunities Commission, and it was grappling with admission
criteria or exclusions, which are the two topics you mentioned,
do you think it is more effective for a commission to use the
stick or the carrot? Before you answer, can I remind you that
before your time in Birmingham, the EOC had to go twice to the
Law Lords to deal with the problem of sex discrimination in selective
secondary schools, and that was solved by the heavy hand of the
law, whereas in the race field the problems of the disproportionate
exclusion of African-Caribbean pupils, especially boys, has not
been grappled with by the CRE, as I understand it, except in an
ancient litigation which preceded your time. Given these examplesand
there are otherswhat do you think about the effective role
of the Human Rights Commission in tackling what you call systemic
practices? Is it better to focus upon conciliation, friendly settlement,
friendly persuasion, or do you think one needs also to have effective
sanctions in the backgroundsticks versus carrots?
A. In the end, I suppose, the law is a stick,
is it not? You pass the law in order to get people to comply with
what society as a whole has decided is the right thing to do.
If there were to be a children's commissionerand I would
definitely go for a children's commissioner ahead of one for adults,
because I think there is a difference, and there is an issue of
treating children as they might become, as opposed to as they
are. I have thought about it a little bit and I wonder if there
is a possibility of giving a children's commissioner the power
so that she or he would be able tosince most Acts of Parliament
are implemented by other agencies at a local leveland whether
there is a power to vary local regulation or practice by simply
insisting that it happen, which is a stick rather than a carrot
but is short of stumbling through legal processes and getting
to an amendment in the legislation. In other words, you could,
as a nation, decide that human rights is so important and systemic
violations of that are inevitable from time to time, that you
gave the commissioner the right, where he or she stumbled across
that, to alter it at the local level, drawing down through law
in order to enable that person to do that. The history of the
others is a cumbersome way of proceeding and ending up taking
people to court before you get much done, whereas I would have
preferred something that was more rapid than that.
311. I should have said that I was in the EOC
sex discrimination case, so I have a professional interest. My
impression in that case was that nothing short of the Law Lords
would induce Birmingham to change its practice and build a new
school for girls, whereas if you are dealing with racial exclusions
where, inadvertently or otherwise, black kids are being disproportionately
excluded from schools, that is a different kind of problem. What
I am trying to get from you is whether you think one needs to
be light-touched, carrot-minded or have the sanctions of the law
in the background and be prepared to use them in grappling with
these kinds of problems. Your suggestion seems to me to be rather
heavy-handed. You are suggesting that the commissioner should
take over the local education authority function in some way.
I am not going as far as that, but I am simply asking you about
sticks and carrots with a human rights commissioner without that
A. Then I suppose I do not want to pitch on
either of them because in my experience carrots are invariably
more successful in persuading people to change their minds than
sticks. I quite acknowledge that there will be occasions on which
people dig in and will not do things, so I think you have to have
a bit of both; but it would be a terrible pity to have only sticks
and no carrots. On the point on which you were reflecting, my
great problem at the moment is that everybody wants more single-sex
schools for girls but not for boys, and the outcome is a really
interesting point about human rights for children who want co-education.
Whether it is the parents' rights or the children's rights is
another worthwhile debate to have. Indeed, selection is an interesting
one for you to take seriously, because I know that the Burns Committee
in Northern Ireland, reporting on post-primary education, were
advised that selection is in breach of the human rights declaration.
312. I would like to touch on a specific area
in relation to children in schools, and draw on your experience
as Chief Education Officer in Birmingham since 1993 in relation
to this. It is around the area of bullying of children in schools.
To what extent do you think, from your experience in Birmingham
and perhaps what you have seen elsewhere, that bullying in schools
remains a problem?
A. The answer to that is that it does remain
a problem. It always has been a problem and it is a problem that
I suspect will never go away, and one that you need to be perpetually
addressing. Any school that suggests that it is not a problem
is poised to start having problems. It is a problem, and most
children will unfortunately say that they have been bullied, either
in school, or on the way to and from school. A high proportion
of children will say that.
313. It is clearly not a new problem. I suspect
most of us in his room can remember the rather unpleasant experience
of being bullied at school. Having said that, how is it that it
has taken our education system so long to wake up to recognising
the voices of children on this issue and actually wanting to do
something about it, like, for example, requiring head teachers
legally to have a bullying policy? Even now we are not particularly
good at getting round to making sure that schools have an effective
bullying policy. What is it that is so wrong in our system that
we have failed to listen to children for so long?
A. It depends what you call "long".
I have only been in education and working either as a teacher
or a chief education officerincluding in Oxfordshirefor
39 years. It preoccupied me when I started teaching, and it did
the school I was in; it has every school I have ever been in;
and it is an issue that I have returned to constantly as an education
officer in Oxfordshire and then Birmingham. During my time in
Keele for four years we instituted a survey, which still goes
on. Students are encouraged to declare whether they are being
bullied and how they are being bullied. We encourage schools to
take part in that. In Birmingham we have done that on an annual
basis. We cannot force schools to run things like a bullying survey,
for example. They have a considerable amount of autonomy.
314. We couldin the same way as with
the National Curriculumhave not only a bullying policy
in place, but an effective bullying policy in place, could we
A. I think already there is huge prescription
and requirements on schools. I tell you what: I will trade a bullying
policy of the sort you describe for the National Curriculum.
315. Which would you put higher?
A. I would put higher what you are concerned
316. You would put bullying higher?
A. Yes, I would, rather than the presently very
detailed National Curriculum, which, thank heavens, is being freed
up in Key Stage 4 and, incidentally, is connected with bullying
317. Last week we had a number of members of
the press who are not here this week because they came to witness
a group of children that we had here. It was a historic moment
of having young people give evidence. The coverage that this Committee
gets is neither here nor there, but the coverage they get does
matter, and many of them were described as terrifying. They clearly
terrified the sketch writers because they had views. They were
expressing views that children have felt for a very long time.
One of them, for example, was a very able young girl, who talked
about the ineffectiveness of bullying policies. At the moment,
some kids actually like being excluded. Apart from the fact that
the sketch writers wrote it up in a rather patronising way, it
revealed the fact that society has a problem with taking children
seriously. Bullying has been around for a long time; kids have
been in pain for a long time; but we still do not take it seriously.
We are moving that way. With your experience as a chief education
officer, with everything you have said this afternoon, what impact
do you think an independent Children's Rights Commissioner, in
or outside of the Human Rights Commission, could have on getting
us to start listening to the things that kids have been telling
us for a very long time, for a whole range of reasons, that wilfully
or otherwise, we have not wanted to listen to?
A. There are all sorts of premises, and you
invite me to agree right at the end. I do agree with your proposition
that there should be a Children's Rights Commissioner for all
sorts of reasons, including the reasons that you have described.
That would be a good idea. If you do not mind me saying so, I
think you have slightly overstated the fact that this is a very
recent "taking seriously". I think there have been individual
schools and teachers and local education authorities that have
taken it seriously from time to time, and it is one of those issues
that you have always got to be going on about. If you do not go
on about it, it creeps back in. The issue that I am worried about
at the moment, which I would turn on you and say is an infringement
of children's rights that was not there twenty years ago but now
is there, is fixed-term exclusions. There is no national data,
but if you took the number of days lost in fixed-term exclusions
for the last academic year and secondary schools, and you said
that the Birmingham figureand I checked it with 12 other
authorities that did collect the figures (some do not)is
lower than that. If you extrapolate it and take just the Birmingham
figure, then the number of days lost to children, and their rights,
through exclusions, last year in secondary schools as a whole
was a million. That is a lot of days. It is a lot of school years.
Twenty years ago, the number of fixed-term exclusions in our secondary
schools in this country was less than a few handfuls. That is
a recent systemic phenomenon of our schooling system, and I am
just putting it to you that a children's rights officer would
look at those sorts of things.
318. You said that the Human Rights Act was
important for education. I would like to take you to children's
own participation in human rights. It is very nice to see some
young people here. To what extent do teachers recognise the human
rights implications of lack of participation by children in decisions
that affect them?
A. It is a generalisation, but I will simply
say it again, partly because Mr Woodward has made me worry that
you are thinking that this is a recent phenomenon; and therefore
I want to say that here is a fairly recent phenomenon in the right
direction. There are lots of schools that train children to be
mediators, to help solve disputes with children. There are lots
and lots of schools that practise circle time. There are lots
and lots of schools that produce class moots, and schools that
as a matter of course at the beginning of the school year ensure
that every class debates and discusses what the rules of the class
will be for everybody, including the adults in the class, and
they will take particular tasks and gain responsibility in the
school. There are lots of schools that have schools councils.
Birmingham is proud that in the last year it had a young people's
parliament. There are loads and loads of practices that have come
on-stream in the last few years, which were not there 15 or 20
years ago, all of which start to get children's voices heard.
319. My question is a little more pedantic:
do teachers call this human rights, that children ought to be
able to take part in the decisions? Are they, for instance, aware
that the UN Convention on the rights of the child states that
you must listen to children? Do they see children's participation
in that rights framework?
A. It is so difficult to answer a question like
that because some will and some will not. That is how it is. Very
many teachers who would subscribe to all the things that I have
suggested and that we are rehearsing between us, including listening
to children and making sure that their voice is heard, would not
say that is part of human rights; but if in discussion you suggested
it was, they would say "of course it is".