Examination of Witness (Questions 320
MONDAY 17 JUNE 2002
320. Do you think there is anything that could
be suggested to encourage more effective participation by children
in schools? You gave a lot of examples, but because there is not
a rights framework, it will probably depend on the culture of
the teachers and the views of the head. Is there anything more
general which you think might be adopted?
A. I would like to take you back to my earlier
proposition that if the framework for inspection of schools included
examples of participation in activity of the sort you are rehearsing,
and if the inspection looked at that, schools would more generally
comply with doing that.
321. You earlier said how important a figure
a Children's Rights Commissioner is, perhaps even more important
in some cases than the Human Rights Commission. In order to do
what you want to do, what kinds of powers would a Children's Rights
Commissioner need, and how would it fit in with existing structures?
A. I have partly touched on that in answer to
a previous question. I certainly want to give them powers of hearing
and commenting in general about the issues; but if they only ever
commented on, without reporting to institutionsparticularly
institutionswho appeared inadvertently to be in breach
of children's rightsunless they had the powers of talking
to them and perhaps combining the carrots and the sticksbecause
I was getting to the sticks and saying I would give them the power
if some of their practices were systemically infringing children's
rights, then I would want them to have the right to alter those
practices or direct the alteration of those practices that were
there. I would want to give them fairly extensive powers over
general systemic infringements, rather than particular cases.
322. Can you give me an example?
A. You might find practices, for example, in
respect of exclusions that were at variance with human rights.
You might find that there were infringements of human rights in
respect of admissions. It is arguable that some practices of admissions
do infringe children's rights. If they came across that and reported
on it, then I would suggest they had the power to alter it. Since
there is already a schools adjudicator, you could ask that the
Children's Rights Commissioner asks the adjudicator, using their
powers, to alter the practices of a local education authority,
or any other admission authoritybecause it is not always
the local education authority that is the admission authority.
323. Do you see him in some way supervising
the existing power structures or having additional powers that
might by-pass existing structures?
A. Wherever you could, I would try to use the
existing structures rather than create other ones, yes.
324. Are you suggesting the Children's Rights
Commissioner would take over rather than require compliance?
A. That is very sad, because for anybody to
take over from an existing set of people who are doing their best
within the powers they have gotassuming they are doing
their bestit is a terrible pity to take over powers because
that might infringe other people's rights as well.
325. We have established a Children's Rights
Commissioner in Wales in order to see how the experiment goes.
From your experience, are we right to wait and see how the experiment
goes, or are we wasting our time, and should we just be getting
on with the business of having one here too?
A. I think we should have one now because for
every child that loses their rights, we are wasting the future.
We should get on with it.
Lord Lester of Herne Hill
326. I am puzzled because it has been unlawful
since 1968 for schools and local education authorities to practise
racial discrimination. It has been unlawful to do it indirectly
since 1976. Throughout that time we have seen this pattern of
racial exclusions which impact much more severely on black children
than others, and yet, to the best of my knowledge, the Commission
for Racial Equality has not exercised its formidable powers. When
we discuss in this Committee what kind of powers to give a Children's
Rights Commissioner, I ask myself why the existing agencies have
not used their powers. Does that not tell us something about the
problem about these Commissions, that they are fallible and depend
upon the will and commitment of human beings that run them, just
as much as the structures and powers that they are given? Do you
think that my concern about this is well-founded, that we might
come up with some splendid recommendations for an agency with
powers, and then find that it is no more effective than the rather
lamentable record of the last quarter century in not using powers
that should have been used?
A. If you look at the state of racial discrimination,
prejudice and straightforward racism, either institutional or
otherwise, in the 1960s, and you look at it now, you would regret
the speed of progress but you would be able to detect some progress.
I think that there is institutional inertia as well as institutional
prejudices. I am perfectly aware of that. I have lived and worked
in institutions for quite a long time, and that would not stop
me trying to say that we have a bit of institutional inertia;
if we introduce somebody whose absolute straightforward concern
was children and children's rights, then I think they would make
some progress. I do not believe for a moment that they would get
rid of it all overnight. Part of my performance contract, which
is published and known to everybody, is to reduce the number of
permanently excluded children of African-Caribbean background.
Indeed, the CRE commended that kind of public commitment. I talk
about it; I ask our schools to talk about it; I am trying to raise
the issues. The fact is that the number has dropped, but the number
of exclusions has dropped too. It is still, sadly, the case that
there is an over representation of African-Caribbean youngsters.
As a result of that, we have tried to intervene with an action
research of a group of teachers looking at the experiences of
children in the last four years in primary and first three years
of secondary school. We have had a group of people looking at
all the possible interventions that would reduce that unacceptably
high level. Hope springs eternal, as it were. I think it is a
very, very difficult issue.
327. We are obviously very concerned about the
exclusion of children from schools and their human rights, but
I am also concerned to know how you measure that up against two
other groups of people: the human rights of the other children
who are entitled to a good education, an undisturbed education,
and the human rights of teachers who are teaching in difficult
circumstances and perhaps being bullied by children? These are
clashes of different sorts of human rights. They are the same
human rights, but different sorts of problems.
A. They are, and they are all important, and
you juggle with those all the time. I suppose really we would
have to get into a very long discussion about lots of issues.
One would be the rewards and sanctions policies within schools;
in other words, what lies between the verbal reprimand and the
temporary or fixed-term exclusion? What is the advantage, for
example, in a fixed-term exclusion that leaves a child outside
a school; whereas I could show you a federal school on a split
site where their view is that the fixed-term exclusion can be
dealt with very easily, by moving the child out from one of the
halls into another hall where they are completely unknown. There,
they are not in front of the kids that they have been showing
off in front of. Usually, fixed-term exclusions are lower level
exclusions in terms of not abiding by the rules of the institution
than the permanent exclusion, which is much more likely to be
a more intractable problem. That school has diminished the number
of fixed-term exclusions by making accommodation within another
part of the community for that child. I personally think that
that is a preferable way of doing it. I absolutely acknowledge
the right of the other children and the teachers to get on with
what they are doing. That does not mean that I think that the
child needs to be excluded from all its education by simply being
sent away. It can be put into another part of the same institution,
or you can think of other devices around restorative or reparative
work that will have an impact. I think it is an area we should
look at a lot more because I am really alarmed by the figures,
which are growing and growing and growing. The moment that child
is off the roll or out of the responsibility of the school, I
have less and less confidence in that child getting what it needs.
If I could extend the powers of the school to make provision for
the individual, even if that individual were not within that school
but the duty of care was still there, I would be more confident
that I would be moving towards somebody like myself within the
local education authority.
328. There has been a switch in Government policy.
At one time it was all-inclusive; now the Government is saying
to heads that they can exclude. That seems to be an educational
A. Yes. I should like the record to be clear.
There are two distinct issues here: the fixed-term exclusions,
which are growing and growing; and the permanent exclusions which,
on the whole, have come down, though they are just going up again
now. When you get to fixed-term exclusions, you have to think
of alternative education. I wish those people could retain some
sort of link with the community that is no longer able to accept
them as a full member of their community, because they are a huge
risk. However, it may well be that you cannot do that. The fixed-term
exclusion is resorted to, it seems to me, a bit too often. We
are not as inventive about the other things we might do, short
of a fixed-term exclusion. I am trying to encourage a debate about
that amongst all our heads. As we always do in Birmingham, we
have good, fierce debates about it. People take different positions
and will thrash it out. That is all because we think we have to
improve on what we are doing at the moment, as in everything that
329. It would probably be right to say that
you are in charge of one of the largest public authorities in
this country in delivering services to citizens, even though they
are citizens who generally do not have votes. Would you say that
the Human Rights Act has made any difference to the way you go
about your job?
A. It has, yes. It has made a difference because
it has legitimised a set of values that might have been seen as
idiosyncratic. This is what I now feel: if we have the Human Rights
Act and all this other legislation people can't say, "wait
a minute, this is not an idiosyncratic, eccentric romantic old
fool", it is what everybody is saying they want for all the
330. Thank you for appearing before us today.
A. Thank you for listening.