Joint Committee On Human Rights Minutes of Evidence

Examination of Witness (Questions 301 - 319)





  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.

  A. Yes.

  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 my view.

  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 example—those 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 exclusions—looking 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 human rights?

  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.

Norman Baker

  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 curriculum?

  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 fair—drifting 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 examples—and there are others—what 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 background—sticks 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 commissioner—and 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 to—since most Acts of Parliament are implemented by other agencies at a local level—and 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 power.

  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.

Mr Woodward

  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 officer—including in Oxfordshire—for 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 could—in the same way as with the National Curriculum—have not only a bullying policy in place, but an effective bullying policy in place, could we not?

  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 with.

  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 and exclusion.

  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 figure—and 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.

Baroness Whitaker

  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".

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