Official Report: Minutes of Evidence

The Chairperson (Mr Weir): I welcome, from left to right, Fiona O'Connell, researcher at the Northern Ireland Human Rights Commission, David Russell, deputy director of the Northern Ireland Human Rights Commission, Dr Michael Wardlow, chief commissioner of the Equality Commission, and Deborah Howe, policy manager with the Equality Commission. I will hand over to you if you want to make a short presentation.

Dr Michael Wardlow (Equality Commission for Northern Ireland): Chair, thanks again for allowing us both to present on this. I am going to do 10 minutes, maybe not even that, and my colleague David will then say a few words. Obviously, we will then be happy to deal with any questions. I will preface this by saying that we did our response in February last year. Some of the things we put forward have been included and some have not, so I will take the opportunity to simply give a few reasons why this is of interest to us. Secondly, I will say a couple of things around what we think the issues are, and, thirdly and very briefly, I will talk about three of the key areas to highlight some of the stuff that we said in our submission.

This is important for us because prejudice-based actions are found not just in schools but everywhere. For example, 40% of the cases that come to us every year are disability-related. It is interesting when you look at schools and see that bullying related to disability is actually quite high. Therefore, what happens in schools often follows through into working life, and so on. It is very important, because there are high levels of bullying in some of the areas that are of interest to us — the special interest groups like the transgendered, the minority ethnic, those with special educational needs, those with disabilities and the LGB group. That is one of the reasons. Also, obviously, some are what we call protected but also at risk.

In our recent key inequalities statement, which is still at draft stage and will come out in its full form very soon, we point to some of the extensive research around bullying in schools. We know that it has remained constant. About 30% to 40% of year 6s and year 9s reported that they had been bullied in the last couple of months. We know that one child in five actually admitted to having been a bully. Quite how that question was asked is another thing, but the very fact that some fessed up to that is important.

Probably the most important thing is the fact that young people spend 12 or 14 years of their life at school and seven or eight hours a day there. That is hugely formational in their life experience. Therefore, it is important that schools are at the core of developing a diverse society. That is why we believe that a very strong anti-bullying discipline policy should be at the core. It is not simply for the policy's sake. This should be part of the DNA of a school. If you break a school open, you should see respect, tolerance and diversity at the core.

Of course, there are specific issues for us that I will come to. There are issues that, I guess, you have looked at as well as to why it happens. It is one thing to say that it happens, but there is an issue not just of motivational factors — in other words, why somebody did what they did on the day. For example, it could be that they had a couple of Mars bars on their way in on the bus and had a sugar rush and did not have good nutrition. As you know, schools are finding that, more and more, breakfast clubs and good food are actually cutting down on some of the motivational incidents. It is also about family background. There is a male/female differentiation. There is the fact that many young people self-exclude because they fear bullying. We know that motivation can be different. Sometimes people will not come in because of something that happened the night before but was a one-off incident. We will refer to that later on.

The good thing is that good practice exists, and, if there is a problem, there is probably an answer out there. This should not be about looking for new solutions alone but looking for things that happen in other jurisdictions. In Germany, they have very good ways in which they timetable classes so that, for example, 5F might not get outside at the same time as 1F. They have one-directional routes around schools. If they know that a particular class has a number of bullies, that class may be kept five minutes later than others. In other words, there are ways to mitigate the potential for bullying. It does not mean that you are ignoring the bullying; it is simply looking at how you do not create the potential for it to take place. For us, the focus should not be on the bully; it should be on how you create resilience in the class and among those who may be the focus of the bully and how you help them deal with it.

It is important that there is a whole-school policy. This should not simply exist in a room somewhere where people tick boxes. If that is what it is, it is next to worthless. This has to really make a difference, and, therefore, if it is not committed to at the top and if it is not passed through the organisation, it is next to worthless. The young people are clear in what their expectations are: when they report an incident, they should not be told to man up or get over it or all the other things that we hear anecdotally.

Research seems to suggest that schools are not very open to reporting incidents of homophobic bullying. I am sure that that equates to others, because no school wants to be known as having, for example, more racist bullying than another. It is important to look at the fact that young people from minority ethnic communities or with special educational needs are more likely to be found in certain schools and certain communities. Therefore this aggregate — to say that school X has a high bullying rate — needs to take into consideration what lies behind it; for example, the school intake, the community and maybe recent incidents in the area.

I turn quickly to the three areas. We absolutely agree on the need for a common definition, and we welcome what you are doing here. Secondly, we have raised the issue of bullying as a repeated phenomenon and accept that bullying on an ongoing, repeated basis is the most pressing problem that we need to address. We are concerned that one-offs are not just treated as such and written off. We understand they are not part of what you, in this sense, call bullying, but they need to be addressed under the discipline policy and therefore should be treated in the same way as zero tolerance. That does not meant that they are necessarily going to present themselves, but somebody could have had a bad day, something could have happened the night before or somebody could have been pushed. It may or may not be bullying, but the fact that it is a one-off does not mean that it should be left aside. It should be treated in the same way.

Then, there is the issue of intent, and that is very hard to know. There is a definition that might be helpful in the Sex Discrimination (Northern Ireland) Order 1976. It does not talk so much about intent but about the consequence of what happens: in other words, that which has the effect of causing someone to feel bullied. That might be a way round it. For example, somebody may use homophobic language not actually realising that saying, "You are so gay" is a homophobic statement. I am not excusing ignorance; I am simply saying that there is not malicious intent every time something is stated. It can simply come from a lack of understanding or a lack of education and training. That is why we say that the curriculum needs to carry information on how to actually live in a diverse society and on what it looks like to be generous, gracious and tolerant. That is as important, if not more important, than having an anti-bullying policy.

We agree that the duty needs to lie with the board of governors, but the danger is risk transfer, and, to be quite frank, the Department needs to be very clear that it is saying that the duty lies with the board of governors and is not simply passing risk across. The board of governors needs to have strong guidance, templates and ways of recording. For example, we are not sure, when looking at the legislation, how incidents will be recorded and monitored and in what way the Department will look at them and assimilate them, as well as what it will do about them. Indeed, we are not sure what schools will do when, under C2k or whatever way they are going to do it, they have the figures.

We have raised the issue of bullying "amongst" pupils because we think that the reference should be to bullying "involving" pupils. All post-primary schools are in learning partnerships, and people with uniforms travel to other schools. If bullying takes place on another site, is that bullying "amongst my pupils" or "involving my pupils"? This is not simply a matter of semantics; it is saying that bullying should travel with the school as long as it occurs during the school day. That can relate to school visits or learning partnerships.

There needs to be a timed review written in. If it is left indeterminate, that is where it is likely to go. We would like to see something like five years in there. We need to have a clear view that this is not simply something to be added on as an extra workload for teachers. There needs to be a reason for it; it should be valued for the work that it is. Therefore, there should be curriculum support for how pupils work through the idea of how to become a good citizen and how they do not have to necessarily show their power through bullying. As an aside, we noticed that only 20% of schools had a relationships and sexuality education (RSE) policy, which surprised us a little when you think of the homophobic bullying that happens. There is something connected.

Finally — we would say this, wouldn't we, going back to the 1970s and fair employment and equal opportunities legislation? — if this becomes a tick-box exercise, it is worthless. It needs to be an exercise in which we really interrogate the motives. There is a list of motives at clause 3(3), but it is not exhaustive. It might be exhausting, but it should not be exhaustive. The danger is that, when you print any list, it becomes the list to go to. We would like to see more than one item being able to be ticked. Let us say that someone is called "fat", "skinny", "black" or "female". What is the motivating factor? You might have to make a call on that. We would prefer it if you could tick more than one box. However, the danger is that they then fall into the hybrid or "other" category, in which case the prime motivating factor would be lost. The most important thing is to track whether something is emerging in the school or year group around a particular child or particular type of bullying. Therefore, we argue that the list needs to be looked at.

We made a submission for the Shared Education Bill. We recognise the Committee's recommendation around "community background" as opposed to religious and political opinion. Religious and political opinion for three- and four-year-olds? Community background would be a better one to put in. We also think that "gender identity" is better than gender modification. To be frank, few young people under the age of 14 could fit in that continuum; so, we would prefer "gender identity". We would also like Travellers and Roma to be specially mentioned. However you deal with the socio-economic issue, it needs to be in there. There is a class element as well sometimes. It happens in learning partnerships when grammars and non-grammars come together. We also need to be aware of refugees; it could be an issue increasingly as refugees come into our school system.

Finally, there need to be safeguards for the young people who report. They need to know that the process protects them and will deliver what it says it will deliver. Teachers also need to realise what that process is. Implementation and monitoring have to be key to this. If we are not tracking it, we cannot say, "There's an incidence of x". We are not saying, "Oh, we need to just specifically focus on that". We need to say to teachers, "Pick this up. Recognise it. Make sure that it's not simply about zero tolerance" — in other words, burying the bullying. It is actually about addressing this and the importance of sharing good practice. It needs to be at the centre and core of that.

Dr David Russell (Northern Ireland Human Rights Commission): I will keep this brief. I have five points to make, and I will be as quick as possible.

The Human Rights Commission welcomes the Bill generally. It is in line with a number of human rights standards and treaties that we have laid out in our submission for members. The first point is that we have noted that there could be an overlap in the Bill with existing criminal law as well as other policies and procedures under the remit of some of the other Departments such as the safeguarding and child protection policies. The Committee, during its scrutiny of the Bill, may wish to ask what engagement the Department has had with other Departments and agencies, such as Justice, the Public Prosecution Service (PPS), the PSNI, Health and the Education and Training Inspectorate. We have drawn attention to that in paragraph 18 of our submission.

Our second point is in regard to clause 1, which sets out the definition of bullying. The commission noted that human rights standards are not prescriptive on a definition of bullying. However, we suggest an amendment to the clause in line with general comment 13 of the Convention on the Rights of the Child. We would like to see these words inserted:

That would keep it consistent with the treaty obligation.

Our third point is on clauses 2 and 3, which provide for the duty of the board of governors of grant-aided schools to secure measures for preventing bullying and keeping records of such incidents. The commission has advised that the provision on the right to education in the European Convention does not distinguish between public and private settings and that bullying should be dealt with regardless of where it takes place. The Committee may, therefore, wish to ask the Department how bullying will be addressed, for example, in independent schools. We are aware that there are 14 such schools in existence in Northern Ireland at the moment. Clauses 2(1)(b) and 3(1) require boards of governors to review measures and record incidents of bullying involving registered pupils while they are on school premises during the school day, travelling to or from school during the school term or whilst in the lawful control of a member of school staff.

The commission has noted that there may be incidents that fall outside the scope of those clauses, for example, when schools have been made aware of incidents involving registered pupils in the evenings. There is case law that illustrates the point, which we can examine in a wee bit more detail during questions. The case is that of Dordevic v Croatia, which involved the harassment of a vulnerable person with disabilities by children from a nearby school. The European Court in Strasbourg held that states were required to take all steps to comply with article 3 of the convention. In this situation, the court, in finding a violation, found that no serious attempt was made to address the true nature of the situation and the lack of a systemic approach. The commission has recognised that this is complex but advises that further consideration should be given to whether there is an obligation on schools to report human rights abuses that fall outside the scope of clauses 2(1)(b) and 3(1) to ensure that the Department adopts a systemic approach.

Clause 3(3) provides that motivation for bullying may include a number of grounds. The commission notes that the clause makes no reference to language, which is important in Northern Ireland for children who attend Irish-medium schools and for those for whom English is an additional language. The commission has noted that clause 3(3) makes no reference to socio-economic deprivation. In the same way as Michael has highlighted, we have noted that this was an important focus in the Shared Education Bill, and we would like to see it included. We have also noted that there is no reference to pregnancy, nor any reference particularly to school-age mothers, fathers or those with caring responsibilities. There are specific human rights requirements around addressing those matters.

The commission is of the view that clause 3(3) should be amended to include language, persons with or without dependents and other status, which would reflect article 14 of the convention and would encapsulate many of the categories that Michael laid out in the Equality Commission's presentation. It would also reflect the other relevant binding standards, including the Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Beijing Platform for Action.

The Chairperson (Mr Weir): That was very useful; there is a lot of meat in that and it was quite focused and succinct. I want to pick up on a few points. There are issues for both of you and I will take them in reverse order.

You made a few interesting points about motivation. It comes down to a couple of issues. Clause 3(2) includes the phrase "appears to be the motivation". In one sense, there is a slight complication in that that could be interpreted differently. By talking about the motivation, you may actually list things and prioritise them, or it could be interpreted as somebody asking what the principal motivation was; was it principally a racial incident or something else? It may be that certain things get ignored. There is an issue about whether the wording needs to be amended where it talks about motivation or motivations to, at least, make it clear that more than one could be registered, or whether a clear level of guidance for schools is required about the way that an incident is recorded.

I will just ask you to comment on one other issue. You have both mentioned a range of other possible additions to the list in clause 3(3). Whatever definitive list is produced, whether it is short or long, we need an additional catch-all point. There will be things that will fall outside the list. I want to pick your brains on this issue. Am I right to assume that the items in the list are all variants on the potential areas covered under section 75, or do they go wider than that? Would reference to section 75 in the clause be pertinent in that regard? I am not saying that this is the wrong way to do it. There are ten specific grounds named at the moment. There could be arguments about whether, as indicated, they are the right terminology or the right way of doing it. Taking on board what both of you have said, that would mean, automatically, renaming some of them and probably extending the list to 15 or 16 grounds. I am just wondering whether you get to a point where the list becomes so long that it is almost meaningless and whether there is a different way of expressing grounds, maybe by tying them in with section 75. I would like your reaction to that.

Dr Wardlow: They are not coterminous with section 75, and we raised that. They partly mirror it, but not quite. I am not sure about putting section 75 in, because that limits the definition by a 1998 Act, which may change. There is a bit of, "Oh, that is a section 75 duty", when schools, as you know, are not designated under section 75. The issue for us is that, if you have a list, people will tend to go to that list, and if something is not in the list, it will be treated as miscellaneous or other. The problem, as you have highlighted, Chair, is disaggregating the hybrid. How do you know that a particular school has a high incidence of a particular type of bullying? The purpose of this is to help a teacher understand the motivation, the intent, and what lies behind it. That could take a period of time, because the pupil may have pushed somebody and it was nothing other than, "I did not like him" or "He was in the way" and not because he was from any of the other groups, for example. It is therefore not exhaustive.

What we are saying, for example, is that Travellers and Roma are specific groups that all the research seems to say do not have a good experience of schools here and in other places. They are protected in lots of ways. There was therefore a reason for us drawing attention to them. People with and without dependents, as David said, should also be protected and, increasingly, schools have 14-, 15-, and 16-year-old mothers and fathers.

The Chairperson (Mr Weir): I will just interrupt you, Michael. I am conscious that when you look at particular communities, you run into the difficulty of who to include and who not to include. I think it was David, correct me if I am wrong, who made reference to political opinion —

Dr Wardlow: No, I was saying community background rather than political or religious opinion.

The Chairperson (Mr Weir): If you included community background instead of political opinion, would that not cover the range of —

Dr Wardlow: Our suggestion was that it is very difficult to determine the political opinions of 4-, 5- and 6- year-olds.

The Chairperson (Mr Weir): I entirely understand that. It is a very valid point. I am maybe playing devil's advocate. If you had a specific reference to community background, rather than political opinion, would that cover the different range of communities without having to name them?

Dr Wardlow: No.

The Chairperson (Mr Weir): I am conscious that if you single out one community or a couple of communities it might create a level of hierarchy —

Dr Wardlow: This is about two things, Chair. It is about trying to identify things that are happening in the school and how you can address them. Secondly, on a Province-wide basis, it is about asking whether there is an issue for Roma or Travellers. We are mentioning them because they are specifically protected — David will probably want to come in on the human rights side. For me, the guidance could be clear and the template could lay down a range of motivating factors, and there could be 15, 16 or 17 of them. There is an argument about whether they should be on the face of the Bill. We have raised that before. The danger is that if there are six, seven or eight items, people will only look at them. What we have done is easier: we raised with you the high-risk groups that we believe have experienced bullying. That is why we feel that they should be specially mentioned.

The Chairperson (Mr Weir): I appreciate that. I suppose I am thinking out loud. Is there an argument that one alternative to clause 3(3) might be to require the Department to issue guidance or regulations listing the groups that would be affected by motivation. I am conscious of the fact that to get a definitive list in the legislation would be difficult. Even some of the things that we have mentioned may not have occurred to people five or 10 years ago. I want to have something that covers all the situations and is adaptable to cover what may happen five or 10 years from now.

Dr Russell: I will say something briefly, and then Fiona may want to come in. One of the issues of concern going forward is the reporting requirements under treaties, which this will eventually form part of when we have the law. They are keen on disaggregated data. If the data capture system that deals with community background encapsulates a lot of different communities, the difficulty will be disaggregating the data. The real question, whatever the list is, is whether the Department will be able to disaggregate the data sufficiently.

The Chairperson (Mr Weir): Presumably, that could also happen with some of the other grounds.

Dr Russell: It could.

The Chairperson (Mr Weir): For example, race is in there, perfectly validly. It may be useful to disaggregate migrant communities to identify a particular problem. You mentioned the refugees. Say there was bullying of children from — I appreciate that it also happens on religious grounds — an Asian background, it may be useful to disaggregate that. To what extent, therefore, do you disaggregate within the list?

Dr Russell: The curse of disaggregation is infinite regression.

Dr Wardlow: I know.

Dr Russell: I appreciate that that is a problem. There are definitely four categories that are not there at the minute and need to be addressed. Michael might want to add something on the addressing of language needs. Socio-economic deprivation should be addressed because it was recognised as an issue by the Department itself in the Shared Education Bill, and rightly so. Persons with dependants should absolutely be covered, particularly focusing on mothers and children with caring responsibilities. Then, back to the issue of disaggregation, the article 14 obligation has this catch-all of "other status" for types of bullying that we may not be able to foresee but should be captured, nonetheless.

Ms Fiona O'Connell (Northern Ireland Human Rights Commission): I will come in on "other status" as well. The European Court of Human Rights has ruled that it can have a wide meaning. For example, article 14 of the European Convention refers to property but not to socio-economic deprivation.

As an example of including "other status" in addition to other protected grounds, in the case law of Carson and others v UK, article 14, particularly "other status", was interpreted to include residency. Article 2 of the international covenant on economic, social and cultural rights (ICESCR) is a non-discrimination principle. It also includes "other status" at the end, and the Committee on Economic, Social and Cultural Rights has interpreted "other status" to include socio-economic deprivation. Perhaps where you cannot have an exhaustive list of grounds, you could have something like "other status" in there.

The Chairperson (Mr Weir): You need to have something. In practical terms, a lot of the time, school bullying — there is a range of grounds that are named — happens on the basis of things that do not fit into a particular category. Quite often, it might be around physical appearance. A child might be bullied because of the colour of their hair, size of their nose or whatever. A lot of those things do not fit into boxes.

Dr Wardlow: For us, it is a secondary point, and it is about form and function. The purpose of the anti-bullying legislation is to protect individuals and schools, but it is also about learning from it. The reason for disaggregation is partly to respond to outside bodies, but it is mostly about learning. If it is in the guidance and the template, as long as those categories are captured —

The Chairperson (Mr Weir): I would not be doctrinaire; I am trying to find the best way of dealing with it practically. I want to touch on two other issues on that side of things, and I appreciate that a number of members want in as well. One very quick point on the definition is that the issue has been raised with us that one of the things that is missing from the definition is the imbalance of power. That was identified by the Anti-Bullying Forum, for instance, which seeks to apply the most common international definitions. Do you have a particular view on that?

Dr Wardlow: No. From our side, although that is probably a motivating factor in a lot of the anti-discrimination stuff that we deal with — male/female is the most classic, from the 1970s — but it is never mentioned in the anti-discrimination legislation. It is a given that a lot of what happens with prejudice is about power, interpretation, views and formations. We certainly would not have anything to say one way or the other on that. We did not notice —

The Chairperson (Mr Weir): It is on the definitional side of things. I know that we are throwing things at you, a little bit. Just on the definitional side of things, just to pick up on two other bits: David, in particular, mentioned the tweaking or alteration of the wording on intention to harm, whether it is intentional or unintentional; and there is the issue of to what extent there is repetition. You mentioned that, Michael. Neither of those is an absolutely clear-cut issue. In clarifying those issues, are you seeking changes to the wording of the legislation or do you think that they are best covered by the guidance?

Dr Wardlow: This one is very simple. We accept the fact that bullying is the repeated nature of something. We are simply saying this: do not miss the one-offs, because they could become repeated. Yes, they should be dealt with them under the discipline policy and as rigorously, but they are not, in that sense, bullying. As to the question of intent, as we said, as in sex discrimination legislation, it really does not matter whether mischievous intent was meant; it is what has happened as a consequence, and the learning could then be for both. With "You are so gay" or whatever it happens to be, there could be a genuine misunderstanding: "I did not realise that that was wrong; I did not realise that I should not have said that". Nonetheless, the person felt bullied and was bullied. So, for us, that is the issue. Of course, the question of intent is valuable and we need to look at it but, on those occasions, maybe it is better to say that it has "the consequence of".

Dr Russell: Briefly, on the issue of intent in particular, the reason that we are so keen on the UNCRC definition being included in an amendment on intent — this is one that we do not have the answer to, but we think that the Committee should explore it — is the potential of having a situation where there is a repeated action of engaging pieces of criminal law, like harassment legislation. We have some concerns about that. We do not have the answer to it but we think that the criminal justice agencies should have a view on it.

The Chairperson (Mr Weir): The very final point that I want to make is on a separate topic. This is again something that we are struggling to get the right balance on. The other issue, which you have touched on, Michael, is the issue of scope. We mentioned the issue of what is covered by the school day and that type of thing; but the other related topic is, on the one hand, the desire to cover all aspects of bullying across the board so that you are not being seen either to ignore or turn a blind eye to any particular bit, while keeping something manageable. One of the areas that particularly exercise us is cyberbullying and where it takes place outside school premises and school time but may well then have a very detrimental impact on school life for pupils. Where does the balance lie between trying to cover everything, which may create difficulties in terms of manageability, and, on the flip side of the coin, if you are not covering things, you are not necessarily creating a loophole but you are not properly covering things?

Dr Wardlow: From our perspective, this is not about risk transfer. It is not about a school saying, "At 4.00 pm, once you are off the bus and at home, we have no control over you." Practically speaking, travelling to and from school and school activities — we know all that stuff. In that sense, cyberbullying can be 24/7. On one hand, there is a danger of overemphasising cyberbullying because it is the trendy thing at the minute, and probably 16% of research seems to say: "We are not quite sure what that means." It is still very big but the other, normal, physical bullying still goes on. So the danger is the precedence given.

The second thing, though, is the involvement of parents and the Youth Service. For 35 years, I have been trying to say that this should be much more joined up. Young people have multiple memberships, so they go from school into after-school clubs and into youth and community activities. They are the same young people, meeting the same young people. The question is how we involve those other youth agencies and parents. If a child is bullied at a youth club, and it is by the same kids that they are at school with, it is unreasonable to expect those young people to go into the school, having been bullied by the same young people.

It is not about whose responsibility it is; it is about how we protect those young people. Therefore, I think that there is good practice in other jurisdictions and here, where schools are very much connected with the home, and parents are involved in helping to set these parameters. It is not about schools asking "Where does my responsibility stop?" I do not know any school that actually asks that question. Schools are genuinely concerned for the young people, in and out of uniform. I think that is where you should be looking to good practice. It does exist. I do not think that you should be writing into the Bill "At 4.00 pm" or whatever it is. Bullying is a 24/7 issue and, with cyberbullying, much more so. A child may send a text at a certain time, but timed not to go until 6.00 pm, just to escape the fact that it is under school time. These things are very easy to do. It is much more about addressing, within the school, what you can address in the school.

The Chairperson (Mr Weir): Or, to take the other example, as we were talking about the school uniform, we do not want to take the ludicrous excuse of "Well, to be fair, on the way home the bully took off his school tie before he beat up the other pupil",

Dr Wardlow: Absolutely. David has also mentioned the human rights issue, which is a bit grey for me. I am never sure about the reach of findings on a particular case where something happened outwith the school and school was somehow held to be accountable.

Dr Russell: I will ask Fiona to speak about this. We have a case which, we think, is right on point on this issue, and we think that the Committee should take a look at it.

Ms O'Connell: There is a case called Dordevic v Croatia, and David highlighted it in the submission. It did not involve cyberbullying, but it was an incident that happened outside school. The applicant was not a pupil registered at the same school, but a person with disabilities who lived nearby. The children were involved in harassing behaviour. It happened in the evening, so it was not actually something that happened on the way home from school, and so that behaviour would not have fallen within the scope of the clauses of this Bill. What happened was that the court found a violation. Repeated incidents had been reported to the school, the ombudsman and the police. Even though there was some action taken — for example, the school contacted parents and police interviewed the children — there was that lack of a systematic approach that Michael was talking about. The court found that there had been a violation because it was not followed up with any further concrete action. No policy decisions were in place to recognise and prevent any other harassment. Our concern is that a school may be made aware, but what is its responsibility to engage with other agencies and public authorities? That is something that is not clear to us in that clause.

Mr Hazzard: Some of the stuff has been touched on. We have discussed the recording of the information and for how long theses record should be kept etc. Do you think that there is any issue that we may start to encroach on the rights of the child that we are recording information about? The perceived bully, for example? Is there anything that we need to be aware of? We could be keeping records for a certain amount of time that suggest bullying. A child may be involved in bullying with regard to race, for example. In a number of years, an accusation might be made, "You are racist and there is proof of that." Do we need to be wary of that?

Dr Wardlow: There is a concern about so-called soft intelligence. How far can you go back and dig? When Noel was here, he raised the danger of a league table approach and so on. The bottom line on this is that, for a long time in workplaces, people's discipline records have been kept. The question is raised about whether this has data protection issues. Of course it has, but does it somehow infringe their rights? No, because these are forensically looked at. They have all the process of the discipline policy, procedures and grievances in the school. As long as the parameters are clear, the data protection provisions are met and the legal advice adhered to, it is acceptable. There must be a limit to how long you can keep these things and how you record them. That is when it comes into motivating; if a teacher is writing "He did this because he said X" and if you are recording the fact, there are tried and tested ways in which you can do this. There must be precedence on this, David, from human rights, I guess.

Dr Russell: The individual case ideally ought to be for the school to address in the there and then. What we are talking about here, as far as we understand the Bill, is a systemic approach to addressing bullying, to show that schools are addressing a systemic issue, rather than individual cases or individual victims per se. In terms of children who are bullies or are involved in that side of it, their article 8 rights are engaged in terms of privacy. The best interests of the child should be the paramount consideration, and that goes for the children on both sides of the debate. Absolutely, the data should not be retained, if it is being retained at all, we would say, in a way that identifies individuals.

Mr Hazzard: Absolutely. Just finally, then, you mentioned some instances of good practice in Germany on mitigating effects and how we involve wider communities: is there anywhere in particular to which we should look for good examples, do you think?

Dr Wardlow: Noel Purdy at Stran and others who are involved in the anti-bullying stuff have much more reach in this. The principals of schools have fora that exist for this.

We are dealing with research and secondary research. We are not the experts on where good practice exists. When you engage with teachers, they will tell you things like nutrition, how you let people out, how you identify things, how you mitigate against these preventative measures are very classical things. However, there is already a huge amount of good practice in Northern Ireland. Germany and the Nordic countries keep being mentioned to me as good examples of children's rights against how teachers work with that. However, you have the evidence from Noel Purdy and others.

The Chairperson (Mr Weir): Getting everybody in Northern Ireland to go in the same direction might be a little difficult at times.

Dr Wardlow: Seriously? [Laughter.]

The Chairperson (Mr Weir): You are right in that there are smart things that can get done.

Dr Wardlow: They are simple, low-cost measures. For example, C2k is already there — £40,000, I heard. In another life, during my 15 years in the integrated sector, there were six schools set up as independents. In order to be teaching and recognised as schools, they had to have school numbers and, therefore, were inspected. Even though they did not have money coming from the public purse, they were independent schools.

We have a concern that just because a child goes to, say, Rudolf Steiner or one of the Christian independent schools, they should not be outwith the reach of this legislation. This should not be about public money being the only determinant on whether a child is protected. We do not know the answer but we ask you to ensure that no child falls outwith this legislation, even if they are in a school not paid for from the public purse.

Mr Lunn: Thanks Michael, David, Fiona, and Deborah for your presentation. I want to go back to the question of what happens outside school hours, David, and cyberbullying. We seem to be getting into considerable discussion about this. Michael, you said that it was only 16%, but that is a lot.

Dr Wardlow: Absolutely.

Mr Lunn: The feedback from the focus groups and pupil surveys perhaps indicates that it is a bit more serious than that. The Bill states that it would be an act of bullying if you repeatedly used electronic communication with the intention of causing emotional harm to a pupil while:

To put it another way, if somebody repeatedly sent emails of an abusive nature to another pupil during the school day, they would be guilty of that, and, if they sent them at 4.30 pm, they would not. To protect the rights of children fully, if the interaction that causes the emotional distress is between two pupils from the same school, the Bill should be capable of dealing with that. As everybody says, this is a 24/7 thing, but, if it is interaction between two pupils, what do you think? Put another way, is there other legislation that could deal with it?

Ms Deborah Howe (Equality Commission for Northern Ireland): There is a potential on the interpretation of that. Cyberbullying can be so damaging because it is not a one-off like someone punching you or saying something to your face. If it is an email or something on Facebook, it is permanent. What makes cyberbullying potentially damaging is that is it forwarded around the likes of Snapchat or Instagram where things are forwarded to a group, so it is not something that happens at 4.30 pm and is over and done with. The damaging element is that it goes on for so long, so it fits within the definition because it is 24/7. It is going on while someone is at school because is it on their account and the interaction continues throughout the day.

Dr Wardlow: Perhaps I was misunderstood earlier. It is not that I was feeling that 16% was small; I am simply saying that the danger in focusing so heavily on cyberbullying is what else we miss. I went to an all-boys school, and I remember so many times people saying, "I'll see you at the youth club tonight". The threat of the bullying was made at school, but it continued at whatever it was after school. That happens because young people almost feel that they are free once they are outside school.

On one hand, it is unnecessary and unhelpful to say to a school, "Wherever they bully someone, it is your responsibility because they are your pupil". How would you make sure that worked? On the other hand, just because you take your school uniform off before you bully someone you are at school with, how does that not apply? It is a conundrum. There has to be a joined-up approach to how we look at it. I agree with Deborah: if someone is sent a text at 10.00 pm that stays on a phone or goes around Snapchat, Instagram or whatever, it is difficult to argue that that is not also bullying during the school day. It exists; it is there in the ether and in black and white. I think that falls within the scope.

Dr Russell: We agree. We read "electronic communication" as quite broadly drafted. It is sending, receiving, reading or passing on messages during the school day. We think that what happens during the school day when children are the ward of the school is covered and properly drafted. However, the issue that you raise about what happens outside school is right. We have concerns, including the case law that Fiona has laid out. As we said at the beginning of the presentation, we are not sure that that falls within the remit of the Department of Education or the schools because it potentially engages criminal law. There are areas that we think need to be explored in both the Department of Justice and the Department of Health and their arm's-length bodies, including the child safeguarding procedures and policies. Some of these activities will fall within that. There is the potential for some of these things to fall within the remit of criminal justice in the Communications Act. The commission's one word of warning or plea is around the criminalisation of children. If there is a way of having a Bill that brings everything into its scope but prevents the criminalisation of children, that can only be welcomed. In the commission's view, nothing in the Bill should further criminalise children below the age of 12 and, ideally, below the age of 14.

Mr Lunn: Yes, I was going to comment that there must be an age at which the criminal law would not or should not kick in. We had a brief discussion earlier around evidence of bullying. I appreciate that, at times, it may be difficult to provide evidence if an accusation is made. However, one thing about cyberbullying — if you have ever tried to take down a post, you will know what I mean — is that it is there. If somebody copies it, it is out there and the evidence is absolutely clear. We really should focus on that, and I am glad to hear your views on it.

Mr Rogers: David, I will just take you back to the mention of carers. Do you believe that there should be a statutory duty on the Department to support young carers in wider pastoral care, although they are sort of covered by section 75?

Dr Russell: Young carers are a particularly vulnerable group. I cannot speak for the Department; I do not know what provision it has in place at the minute. However, before we came here, we looked at school-age mothers. We know that an audit of inequalities faced by school-age mothers was published by the education and library boards. A departmental programme was, at the end of last year, supporting 295 girls whose schooling might have been discontinued otherwise. Young carers are an equally vulnerable group in terms of their access to education and their capacity to concentrate during the school day. If you are talking about focusing on and protecting vulnerable children, there should be enhanced pastoral support for that specific group in education.

Mr Rogers: Thanks for clarifying that. Going back to clause 1, will you clarify what you said about the intention to cause physical harm and so on? Could you repeat what you said about that?

Ms O'Connell: That was reflecting the language of the UNCRC general comment. We would like to see that language used and embedded in the legislation, because it makes it clear that human rights standards are being applied. That is why we suggested that language.

Dr Wardlow: One thing on the dependants issue is hidden dependants. There are huge numbers of young people with caring responsibilities who do not disclose them, for all sorts of reasons. Again, it is about how you get that. It is one thing to say that the protections are there, but it is another to identify them. I can think of one young girl whom I know who has a young brother with a disability. She helps to get him up and so on in the morning. Basically, she is the prime carer, along with the mum. Would she be covered? There is a need for us to look at that hidden dimension. Lots of young people have those responsibilities and are increasingly taking them on.

Mr Rogers: Moving on, Chris mentioned a child being labelled a racist after a number of incidents. Schools would also be concerned about that data and maybe being labelled as a racist school. How do we deal with that? There will surely be freedom of information (FOI) requests shortly after the Bill becomes law, and we will have league tables of bullying.

Dr Wardlow: I heard Noel's evidence, and I understand the point exactly. We had the same thing with GCSEs and A levels, and we know that, even though the tables are not produced, the media have ways of finding out what schools do, even with primary schools and transfer test results. There is a paranoia out there about getting the figures.

The danger with FOI requests is that, whatever it is that is discoverable that goes out, you can easily see how that would happen. That does not mean that we should not be doing it. We need to look at how we involve the media. School X, which may have, let us say, a 30% BME community, because it is, let us say, around Portadown, and it probably stands to reason that it is likely to have more racial incidents, purely because of the proportion of students of a different ethnic background. Would it be labelled racist because of that? It is about proportionality and how we address it.

The Chairperson (Mr Weir): The concern is about the league tables that might be compiled, and you mentioned the exam results. There may some manipulation, but one thing that provides some protection is that, whatever the results are, those are the results. The concern would be that, if you have things that are entirely discoverable, there may be an attitude in schools of not recording it. Some schools will be very open and honest and will want to record everything. Others may take a view, coming down to some individuals in the schools, of wanting to protect the reputation of the school, and they would be loath to record it. I suppose that it is probably more open to manipulation than school exam results. I agree with you, but there is that caveat.

Dr Wardlow: I have a few very quick points. First, is the about the purpose, and once schools get their head around its purpose and the intent — Secondly, the media have been talked to about suicides in schools, and those are not reported in the press in the way that they were 15 or 20 years ago. There is a very strong sense and understanding within the press that reporting some things is not in anybody's best interests. Finally, I know very few parents who live within the limits of a school who do not already know what the school's reputation is. Parents find those sorts of things out.

I do not think that we should be afraid of the Bill and, therefore, restrict it. We know, for example, that schools are less likely to record homophobic bullying and, therefore, it goes on undetected. It is about how we get that balance. There is absolutely no simple answer.

The Chairperson (Mr Weir): You could get a situation in which a lot of the press is very responsible and sensible, but you could get the odd reporter —

Dr Wardlow: Absolutely. It is the maverick.

Mr Rogers: Finally, in your presentation you said that the focus should not be on the bully. Maybe it should not be on the bully initially, but it needs to be on the bully to get to what is behind that.

Dr Wardlow: Again, it is a both/and. There is a danger in having a zero-tolerance approach and closing down on bullies. However, building resilience in the school community, whereby people stand up for each other and know how to do it, is as important, if not more important, in the long term.

Mrs Overend: Thanks for coming today. It has been a very useful conversation. A lot of my points have been raised. You spoke earlier about reviewing what is happening and suggested doing so every five years. Do you not think that that is a bit long?

Dr Wardlow: No, sorry. That is the legislation. In our submission, we said that two things are absent. The first is that, when we will look at the effectiveness of the Bill, we think that there needs to be a time frame. The second thing is how monitoring happens. There is nothing in the Bill to say whether a school should monitor that annually and what DE will do when schools give their responses. We do not know. In that element, absolutely, we would like something to be done within a realistic time frame, which is certainly not five years. For the legislation itself, we are saying that it should not just be left indeterminate. I think we said three to five years for a review of the legislation itself.

Mrs Overend: I appreciate that. There is a duty on the board of governors, in clause 2, to review those measures "from time to time", which is too vague.

Dr Wardlow: That is what we were saying. It needs to be tied down, otherwise it is just left.

Mrs Overend: We talked all about joined-upness, whether that is between Departments — you talked about criminal justice and the Department of Health, and I agree with you that that is really important — or the joined-upness within the Department of Education as regards the discipline policy and pastoral care, for instance. I totally agree with that.

We have talked about cyberbullying. You gave the example of someone saying to you, "I'll see you tonight at the youth club". We do not need to be afraid, and schools etc should not be afraid, of having to deal with cyberbullying, because it is just an extension of bullying in other instances. You just brought that home to us. It is really just about clarifying where schools stand, as long as our schools are kept up to date with technology and the ability of teachers to be aware of what goes on and to deal with it. Do you think that should be drawn into anti-bullying legislation?

Dr Wardlow: We have very clearly said that there needs to be awareness-raising, there needs to be training and it needs to be part of continuous professional development (CPD). It should not just be left to the bullying teacher. So often, the fig leaf is given to somebody, and they are the responsible person. It is often somebody who has just come in to the school, because you get it handed to you. We are saying that it has to be the whole school. It has to be led from the top. The governors are the responsible people. Yes, of course, they delegate operationally, but they cannot absolve themselves, so there needs to be training for them as well. They need to have those reports coming back, because they are the people running the schools. The principals and head teachers need to lead from the top and say that it is not acceptable. Therefore, it is everyone's responsibility to monitor the bullying. There may be a responsible person, yes, but that does not mean that they are the only person. It is about the whole school and building up an ethos. To be fair, that is what most schools want. Most schools want to add value to young people; it is not just about exam results.

Mrs Overend: There needs to be a legal obligation for that.

Dr Wardlow: Absolutely. That is why we welcome the fact that it resides with the board of governors, but they cannot simply have the risk transfer. They need to be supported by the guidance.

Ms Howe: On the issue of cyberbullying, I had a look, and the Department for Education in GB has guidance on that. They actually have legislation — the Education Act 2011 — that gives powers to tackle cyberbullying, with a power to search and to actually go into a pupil's phone and delete images from it. There are other things going on, quite close to home, to tackle cyberbullying.

Dr Wardlow: We have seen it in the workplaces; private emails can now be read and so on. We have seen that. I do think there is an issue about how you balance the rights of the child and the data protection.

Dr Russell: There is case law, just this week, actually, from the Strasbourg court, with regard to personal emails and personal electronic communications. The court has actually found that it is not a violation for employers to access personal data devices. We are happy to follow that up if it is of any use to the Committee.

Mrs Overend: Yes, that would be good. Thank you.

Mr Lunn: Forgive me if I missed it, but — maybe this is for you, David — on the question of the inclusion of teacher-pupil bullying, have you any thoughts about that, about the rights of the teacher in those circumstances or about alternative remedies?

Dr Russell: Teacher to child?

Mr Lunn: Teacher to child bullying, yes.

Dr Russell: That is an abuse of power. It would come specifically under that. If it is teacher to child, you are dealing with an abuse of power situation, so it could quite quickly get a lot more serious. You could be talking about criminal activity.

Mr Lunn: I inferred from comments of the pupils' forum the suggestion that that should be included, but you are perhaps inclined to think that there is no need for it.

Dr Russell: I would have to think about it, but my gut reaction is to say that, no, that is a very specific issue with an adult who has responsibility for looking after minors. It is a completely different situation.

Dr Wardlow: For us, it would not be part of bullying. Bullying is about how young people relate together. This should be about the discipline policy and how you advance it. The issue of an abuse of power has always been there. Putting it under bullying would not be the right place for it, any more than a pupil bullying a teacher, which does happen, should be in a bullying policy.

The Chairperson (Mr Weir): I suspect that we may get slightly different evidence soon, judging from the reaction at the back. Thank you very much for your evidence. It has been very useful. Like you, we are trying to work our way through various conundrums to make sure that we get the balances right. That has been very useful.