Official Report: Minutes of Evidence

The Chairperson (Mr Gildernew): I welcome the following officials from the sign language policy and legislation branch to our meeting this morning: Tommy McAuley, acting head; Gerard Flynn, deputy principal; and Patricia Leeper, deputy principal. Tommy will make a brief opening statement, and then we will go to members' questions.

Mr Tommy McAuley (Department for Communities): Thank you, Chair. Good morning, everyone. As the Chair said, I am acting head of sign language policy and legislation branch, and I am accompanied by Patricia Leeper and Gerard Flynn, who are also from the branch.

I thank the Committee for the invitation to attend today to answer any queries that you may have and to provide the clarifications that you may seek to assist you with your scrutiny of the Sign Language Bill. The Bill is enabling legislation that will place statutory duties on prescribed organisations to provide access to their information and services through British Sign Language (BSL) and Irish Sign Language (ISL). We are aware that the Committee has concerns that the Bill as introduced contains "extensive Henry VIII powers". Therefore, the Department has provided the Committee with the delegated powers memorandum, and I trust that you have had the opportunity to consider its contents.

The memorandum explains the purpose of the delegated powers chosen in the Bill, the reason for the delegation and the rationale for the chosen control. The Bill does not intend to make regulations with respect to the functions under the policy remits of other Departments. The demarcation of departmental functions and the need for Executive approval on cross-cutting matters prohibit such a course of action. Delegated power is the standard safeguard used to prevent the need for minor changes to primary legislation. Its use gives the Department more flexibility to decide when or how to implement the facilitation of the use of BSL and ISL through consultation with the prescribed organisations and members of the deaf community, and it is limited to the cultural and linguistic needs of the deaf community.

It seeks to future-proof the Bill by providing the Department with the ability and agility to make regulations quickly in order to tackle unforeseen circumstances, which is important in the modern world where change is rapid and often unforeseen. That is a key lesson learnt from the onset of the COVID-19 pandemic in March 2020. The deaf community felt, with good reason, forgotten about, isolated and extremely vulnerable. The community has sought assurances that that cannot happen again. The Bill seeks to provide such assurances. Thank you for your time. We are happy to take your questions.

The Chairperson (Mr Gildernew): Thank you. I will start with a couple of questions, and then I will go to members. You set out an explanation of the need for those Henry VIII powers. However, do you have concerns about the potential ability to keep the Bill on track with what the Department is trying to achieve? Will you outline exactly what the Bill intends to achieve? Following the Bill's enactment, how will the landscape differ from how it looks currently?

Mr McAuley: The Bill seeks to officially recognise and promote the interests of British Sign Language and Irish Sign Language. I will compare and contrast that with the legislation in Scotland and the UK British Sign Language Act 2022. The Scottish legislation seeks to promote BSL, and the UK BSL Act seeks to promote BSL through the establishment of an advisory group. We have gone beyond that. In addition to official recognition of both languages and the statutory duty on the Department to promote them, the Bill places statutory duties on prescribed organisations to provide reasonable access to their services and information. In that regard, we have gone further than the other jurisdictions.

The question is this: how do we do that? Had the Bill been introduced back in 2016, when it was first consulted on as part of the sign language framework, the chances are that, with the infrastructure that was in place then, it would look different from how it is now. While the Assembly was not sitting, we embarked on investment in the infrastructure that will support the Bill through accredited qualifications. That will provide the cohort of students and give them the pathway to qualify as professionals in interpreting and translation or as teachers.

What came out of the COVID emergency was the total lack of access to information. As we all know, the first tool that we had in the toolbox against COVID was public health information. At our previous appearance in front of the Committee, I mentioned that, in early March 2020, I received an email from a member of the deaf community who was in a panic saying that the deaf community was isolated and that some interpreters were seeking to translate information on a voluntary basis, and they asked whether I could help. At that point, we went to the Health and Social Care Board (HSCB) and established a hub. That led to the Health and Social Care (HSC) interpreting contract, which is now established. You then had the roll-out of interpreters at ministerial briefings. We also funded a community initiative to translate COVID information from mainstream media. Those things were unforeseen in November 2019, let alone before then. All of a sudden, in March 2020, we went into lockdown. Many of the things that may impact on the Bill going forward will be unforeseen. We just have to look at the global situation now to see that.

The Chairperson (Mr Gildernew): I get that. I know that we will deal with that. I probably should have said at the outset that we really welcome the Bill. I want to frame it like that. I should have done so at the outset. Some things will be unforeseen. We will come to those in the Committee. I do not want to dwell too much on those today, except to say that we will seek to satisfy ourselves that it will be possible to use the powers that are transferred positively.

You talked about health. To give me further insight, will you tell me which bodies, at this stage, you envisage being prescribed organisations?

Mr McAuley: We have embarked on an exercise to contact our counterparts in other Departments and ask for lists of their public bodies for consideration in the Bill. There is a Construction and Procurement Delivery (CPD) framework for interpreting. It lists public bodies. When we receive those lists, we will compare and contrast them to see whether there are gaps. What we cannot do — this feeds into the narrative of the Henry VIII powers — is dictate to other Departments which public bodies should be on their list, but we can have a conversation with them. We will have to consult the listed organisations in any case.

The Chairperson (Mr Gildernew): The Bill is designed to ensure that people who have additional communication needs, including the need to communicate through sign language, can access public services, including health. How does that square with saying that we cannot dictate to the Department of Health, for example, what our expectations are —

Mr McAuley: The legislation —.

The Chairperson (Mr Gildernew): — particularly in light of the fact — sorry for interrupting, Tommy — that, peppered throughout the Bill, are words such as "practicable" and "reasonable"? Do you not seek to hold public bodies to account for what they must do?

Mr McAuley: Yes. What the Bill will do, as I mentioned in my opening remarks, is recognise both languages and place a statutory duty on us to promote both languages, which we will do vigorously. Clause 3 also places a duty on prescribed organisations to ensure that there is reasonable access to their services and information. Bear in mind that the mechanism that we will have for that is the sign language partnership group (SLPG). That is chaired by us, and we provide the secretariat. It includes members and representatives of the deaf community and officials from other Departments. The Bill, once enacted, will place statutory duties on those Departments to ensure that there is reasonable access to information and services, so, in that regard, those prescribed organisations are tied in.

You mentioned issues of practicality and affordability.

The Chairperson (Mr Gildernew): What I am really asking is this: could the use of the words "practicability" and "affordability" hollow out the Bill's intent rather than

issues with it?

Mr McAuley: Prima facie, you would think that those two words were get-out-of-jail cards for prescribed organisations: they can say that they cannot afford it or that it is impracticable. However, if you look at that in detail, you see that there are additional hurdles and hoops for them to jump through. They will be asked, "How can you not afford it? What is your budget? How is it impracticable?". The impracticable side will probably be when an organisation says that it has asked for an interpreter and cannot get one. That is why we have begun investing in two interpreter training programmes: one through a deaf training centre and one through an MA at Queen's University. There are statutory duties that will be imposed on all prescribed organisations and permanently on Departments.

The Chairperson (Mr Gildernew): Thank you. I will go to members, and some of them may pick up on some of those issues.

Mr Kingston: Thank you for your attendance today. I have a question by way of a preamble. ISL and BSL will be recognised as languages of Northern Ireland. What other languages are classified as languages of Northern Ireland? You may not know the answer to that.

Ms K Armstrong: British and Irish.

Mr Kingston: English and Irish. Is that in legislation?

Ms K Armstrong: Yes.

Mr Kingston: I can follow up on that. I would just like to know

Mr McAuley: The Identity and Language Act deals with the Irish language. English is accepted as an official language. There is no UK constitution.

Mr Kingston: It is an unwritten constitution. OK. That was a side question.

You describe the Bill as enabling legislation. When the Bill passes, will what is provided on the whole issue still be a work in progress? Given that legislation was introduced in England and Wales in 2022 and that there is also legislation in Scotland, I am trying to understand, as are many public-sector and private-sector groups, where this will end up. That includes private-sector groups that get public funding for, for example, health services. How do we end up with what are considered "reasonable steps" to make information and services "as accessible" to people in the deaf community as to those not in the deaf community? There is also a clause about affordability. How is this likely to look? You cannot expect all public services to have people on standby to provide a service in two sign languages, but they need to have access to sign language services, perhaps online or by arrangement and so on. How will that be fleshed out?

Mr McAuley: I will deal with it in the context of the other jurisdictions that you raised. The British Sign Language (Scotland) Act was enacted in 2015. It promoted BSL and committed public bodies to developing plans to contribute to a national plan. I think that the first national plan was three years after the enactment, with additional plans every five years, if I am correct. The UK British Sign Language Act 2022 established a non-statutory advisory body to the Minister for Work and Pensions, and the aim of that is to produce a report for consideration by that Minister. The first one may well have been a year or two after enactment in 2022. The Irish Sign Language Act was enacted in December 2017 but commenced in December 2020. The rationale for that was to give space and time to develop the infrastructure to support the aims and provisions of the legislation. That included ensuring that there were enough interpreters. We have been trying to get ahead of the curve on that by investing in our interpreter, translation and teaching capacity through the funding of various courses. We are working with the British Deaf Association (BDA) to co-design best practice. That will then inform the statutory guidance that will fill in the missing pieces, which is what you are getting at, of the primary legislation. Bear in mind that the primary legislation is there to set out the infrastructure required and to set the tone and the direction. Our aim then will be to include that statutory guidance in the sign language framework, which is being refreshed at the same time as this work is progressing.

You may recall that the consultation was in 2016, and, in recognition of the passage of time, we are refreshing it. It will carry the statutory guidance, because, to all intents and purposes, it will be the strategy with recommended actions for public bodies to take forward. Once the refreshed framework is finalised, we intend to bring it to the sign language partnership group for sign-off and then to the Executive. The first time around, the commitment was that, after the consultation, the framework would be brought to the Executive for consideration. The Executive can now consider it, and then we will go out to public consultation on the agreed document. As we have been holding our roadshows for and giving presentations to the deaf community, we have been managing its expectations: the day after enactment, the lights will not suddenly flick on; there will be a period in which public bodies get used to the idea.

We must consider whether there are enough interpreters. We are considering the Health and Social Care model — the regional communication support service — which provides free interpretation, lip-reading and note taking for deaf BSL and ISL users and other deaf people who use Health and Social Care services. On enactment, some things will start straight away, and others, subject to the statutory guidance and the infrastructure being in place, might take a little longer.

Mr Kingston: I have two other supplementary questions, Chair, if I may. In Scotland, the 2015 Act recognises different forms of BSL. Are we assuming that there is one standardised form of BSL, or is there a Scottish variant?

Mr McAuley: I guess that you are referring to tactile, hands-on haptic signing, which members of the deafblind community use. Our legislation for BSL and ISL reflects that in clause 12, which states:

That is similar to the legislation in Scotland.

Mr Kingston: Will that be the case here?

Mr McAuley: Yes.

Mr Kingston: Will the prescribed list be in place and complete when the Bill is passed, or will it follow? Is it correct that any amendments to the prescribed list will have to go through the Assembly by way of a statutory rule? Is it the Minister or officials who will update the prescribed list? Will legislation be required to amend the prescribed list?

Mr Gerard Flynn (Department for Communities): The prescribed list will be through negative resolution. The legislation will be made through an SL1, and it can be amended through negative resolution to remove or add a prescribed organisation. Amendments to the prescribed list will be approached through that mechanism.

Mr Kingston: OK. Thanks. My last question is on the prescribed list. I do not know whether the list will be in place and complete at the time of the Bill's passing or whether it will follow. Is it correct that any amendments to the prescribed list will have to go through the Assembly via a statutory rule (SR), or will it be up to the Minister or officials? Will legislation be required to amend it?

Mr Flynn: The prescribed list will be done through negative resolution: an SL1. It can be amended through negative resolution to remove or add a prescribed organisation.

Mr Kingston: It cannot be changed without our being aware, can it?

Mr Flynn: No. An SL1 will have to come to the Committee.

On another point, we cannot make those regulations until we have the powers, which will be on Royal Assent. We expect that those regulations will be, more or less, ready to go when we get Royal Assent. A list of public bodies on an SL1 will be put before the Committee.

Mr Kingston: The list might be ready?

Mr Flynn: Yes. We expect to have the list of public bodies ready for as soon as the Bill gets Royal Assent. We can list the public bodies. The only clause that will not commence is clause 3, "Duty of prescribed organisations". Clause 3 will commence when the proper structures and statutory guidance are in place. Once all of that is in place, clause 3 will commence, which will place statutory duties on all the prescribed organisations.

Mr Kingston: OK. Thank you.

The Chairperson (Mr Gildernew): The Deputy Chair wants to come in briefly on that point. I will then go to Kellie, Maurice, back to Nicola and Maolíosa.

Miss Brogan: I want to go back to the point about the removal of a prescribed body. Has the Department given any thought to making that subject to affirmative resolution and letting it go through the Assembly properly? Removing a public body as a provider of a service is a major thing.

Mr Flynn: We consider the list to be simply that: a technical list of established public bodies, all of which would be subject to clause 3. Our decision is that, if you are a public body, you will be listed. The only argument against being on the list would be to say, "We are not a public body and therefore should not be on this list".

Mr McAuley: In order for the public bodies to be prescribed organisations, we have to consult them. At that point, they can make their case as to whether they should be on the list.

Miss Brogan: Is it before the fact that you consult them?

Mr McAuley: Yes. We have to consult them in advance of making the final list.

Miss Brogan: That is fair enough, but have you thought about letting the decision to remove a public body go through the Assembly with the proper scrutiny instead of the Department, albeit it will bring that to Committee, making that decision itself?

Mr Flynn: The Department does not think that the affirmative procedure is necessary, but it is an option, if the Committee's opinion is that that is of interest. The benefit of negative procedure is that the SL1 that lists the public bodies will come to the Committee. Under that procedure, changes can be made relatively quickly. If, for example, a body other than a public body, such as a charity, took responsibility for a function in an area in certain circumstances, it could quickly be added to the list of public bodies; under the affirmative procedure, it would take a bit longer to add the body to the list.

Mr McAuley: More so, probably, when it comes to removing a public body that no longer exists, for example. Going through the affirmative procedure places an administrative burden on the Assembly, the Department and the Committee.

The Chairperson (Mr Gildernew): We will keep an eye on that.

Ms K Armstrong: I will stick with the public bodies issue. I am a bit confused. It is too vague. To be honest, I am not a huge fan of negative resolution. I want to check this: clause 4(4) refers to "public character", but that is a different thing from a public body. How does that line up? Earlier today, I gave the example of a dentist who is a private contractor. They might say, "I do not have the money" or, "An interpreter is not available" as a reason for their not being able to provide the service for a deaf person. The dentist exercises functions of a public character but is not a public body, or does that clause mean that the dentist will be a public body? It is vague.

Mr McAuley: Dentists can avail themselves of the regional communication support service that Health and Social Care provides, which is free.

Ms K Armstrong: They may avail themselves of it.

Mr McAuley: Yes, they can.

Ms K Armstrong: They "may" — that is the thing — but they could decide that it is —.

Mr McAuley: The regional communication support service is overseen and funded by the Department of Health, but its contract is carried out by Sign Language Interactions, which is a private company. It carries out a function of a public nature, and, under the terms of the contract, would be expected to comply. Given that that organisation provides interpreters, that should not be a major issue, but the terms of the contract of any private enterprise that carries out a function for a public body would be expected to reflect that, if that function is, on scrutiny, deemed to fall within the ambit of cultural and linguistic accessibility for a deaf person.

Ms K Armstrong: OK. I just think that the "public character" element in that clause opens up its applicability to, say, a supermarket. It depends on what you consider "public character" and public service to be.

Mr McAuley: Clause 3 comes in there. It requires reasonable access to "information and services". That means public information and services, so, if a private organisation is carrying out a function on behalf of a public body, including on behalf of a Department —.

Ms K Armstrong: Why are we concentrating so much on "public"? This is the Sign Language Bill. It is to help people who require sign language. The legislation should be far-reaching — we have waited for it for a long time — whether in the public or private sphere.

Clause 3 refers to affordability and reasonableness. Why was a reference to the Disability Discrimination Act (DDA) 1995 and its requirements not included in that?

Mr McAuley: If you read the legislation, you see that clause 1(2) states:

The DDA and section 75 remain in place. They are there as avenues of challenge for deaf people, should they choose to go down that route. The Bill brings in cultural and linguistic access and rights. It does not take away from, for example, the DDA. In a paper, the deaf Flemish academic Maartje De Meulder makes the point that sign language legislation makes explicit the implicit nature of adjustment for the disability. The benefits of the legislation should inform and enhance the DDA, should a deaf person seek to make a challenge under that. It is not to replace it. If we were start to list every other piece of legislation that this may come into contact with, we would have quite a blip.

Ms K Armstrong: Having been through the process before, I am a little concerned about consequential amendments that will impact on other Departments. Although clause 7 states that you cannot confer specific functions on other Departments, there may be a requirement under consequential amendments for other Departments to update their legislation. Have you guys started any work with the other Departments on that to see how far-reaching it will be? To be honest, the powers in the Bill are quite strong, and we want to make sure that everybody complies with it and that other legislation is updated.

Mr Flynn: We have not identified any consequential amendments to any other legislation that need to be made because of this Bill. Clause 3 puts the duty on the prescribed organisations. In the future, we may need consequential amendments. We are looking at considerations such as written applications or written requests that may be in statue. It may be the case that we put an exception in those pieces of legislation to say that someone can make an application in sign language. That may require us to consequentially amend other legislation that demands, for example, written applications. Those are the sorts of things that, as technology and access improve, we may have to amend. We may put in consequential amendments on issues that directly affect the deaf community, such as written applications or interviews.

Ms K Armstrong: My final question is more of a request for information. Is there a report on or summary of the findings of the work on the sign language framework in 2016 that can be shared with the Committee, even if it is given to us in confidence, because I know that it was not published? Is there an opportunity to see the terms of reference for the SLPG?

Has the Equality Commission for Northern Ireland provided any comment to you on the reasonable adjustments? I ask that because "affordability" really grinds my gears, to be honest. If someone is in a wheelchair and an organisation is not fit to put in a ramp, it can be taken to the cleaners, but a deaf person, because of affordability and access to interpreters, could be excluded. Has the Equality Commission said anything to you guys?

Mr McAuley: We have had nothing back from the Equality Commission as yet. We will seek permission to provide the consultation findings on the original framework. We are happy to appear in closed session, if that helps.

We began a refresh during COVID because, again, a body of time had elapsed, and what we learned from COVID changed things drastically. I go back to the fact that the draft Bill in 2016 was different from this one. As Gerard said, in five or 10 years' time, it might be totally different. That is why we said that we need the agility and ability to react so that we do not isolate the deaf community.

Yes, we can supply the terms of reference for the sign language partnership group. In parallel with the work on the Bill, we are reconstituting that group.

We want to reframe the narrative of what consultation is. There is a perception that this consultation can be only be either a formal public consultation or a consultation of deaf organisations. A lot of our stakeholder engagement and consultation is with individual deaf sign language service users. For example, our historic environment colleagues were looking at making Carrickfergus Castle more accessible for deaf people. A deaf service user advised them: that is consultation. We want to reflect in our sign language partnership group that consultation is not just with organisations. One organisation made the point to me that, while co-design and co-production are great, as has been accepted, organisations are being overwhelmed and there is consultation fatigue. We want to broaden the model for consultation and reflect that in the sign language partnership group.

We will look into providing the consultation summary. We will have no problem in supplying the terms of reference of the sign language partnership group. Throughout the process, we will keep you updated on its new constitution.

Ms K Armstrong: Brilliant. Thank you.

Mr Bradley: Thanks for your presentation. We had a comprehensive briefing on the clauses before you came in. As the Chair said, we want to get this legislation over the line but in a form that means that we do not have to revisit it again and again because we made a mistake.

I am pleased that you said that you intend to hit the ground running once the Bill is enacted. In preparation for that, you have significantly increased the number of registered interpreters. Four are being trained by the Foyle Deaf Association, and there are 20 BSL and ISL MA students at Queen's. How many of those students are studying BSL and how many are studying ISL? This might be a silly question, but I will ask it anyway: are any students studying both?

Mr McAuley: With regard to the Foyle Deaf Association, of the six studying each language, four are approaching their final assessment and waiting on their results. The Queen's University MA now has 19 students. I can provide the breakdown at a later date. I will get those details; I do not want to misinform you. If it helps, I can get you a breakdown on BSL and ISL deaf and hearing. No students are studying both.

Mr Bradley: I did not think so.

Mr McAuley: We have, I think, one bilingual interpreter who went through one of our previous funded training programmes, but, no, it is BSL or ISL.

The Association of Sign Language Interpreters (ASLI) has a diagram that shows the length of time that it takes to qualify as an interpreter. I hope that it is being tongue in cheek when it makes the point that it takes longer to qualify as an interpreter than as a doctor. You have to go through qualifications from beginner level, all the stuff that we did at school, and then your professional qualifications and assessment for the interpreter training. It is a lengthy process, so it would be cumbersome for students to do both at the same time.

Mr Bradley: I am impressed by the numbers that you have training already, and I hope that that cohort increases as the years go on. It is nice having a Sign Language Bill, but, if we do not have enough interpreters to enact it, we will be in trouble. I am pleased that you are concentrating on that.

Miss Brogan: I want to touch again on the consultation. Clause 5(3)(b) and clause 8(1)(b) state that the Department will consult with:

It is a bit weak, to be honest, that you could get away with consulting with just one person or group, whether it be about issuing guidance or procedures for making new regulations. Would you be willing to rejig it so that a consultation would have to be with more people or groups?

Mr McAuley: Going back to my previous answer about the sign language partnership group and that very issue of it perhaps being one person, we want to reframe the narrative. Consultation has many gears. In the Carrickfergus Castle example, they consulted with a deaf BSL person, who happened to be a bilingual BSL and ISL user, to advise them on the right model for making it more accessible to the deaf community. We thought that that was reasonable, and the deaf signer thought that that was reasonable. They sought the input of a service user. The regional communication support service, which is provided by the Department of Health, has an advisory board that we sit on. A deaf service user also sits on it.

It is a drafting mechanism to make the point that consultation is much more than just going out to deaf organisations. It also provides us with the agility to consult on lower-level issues with one person or more people, if we need to. We have the sign language partnership group. In reality, anything that our Department has oversight of will go through that group, which has representation from multiple organisations and deaf individuals. We will expect other Departments to do likewise.

Miss Brogan: Thank you for that. We are short on time, so I want to move on to clause 9, which places a duty on the Department to publish a report every five years to monitor the impact of the Act. Why was five years chosen? Kellie has touched on this. Five years can seem like a long time. Has any consideration been given to reducing that period?

Mr McAuley: The rationale for having a report every five years — this refers back to an earlier question from a member — is to do with whether the benefits of the legislation will be realisable straight away. The answer is that they will not be — that has not happened on these islands nor anywhere in the world.

As regards the Irish Sign Language Act 2017, I spoke with our counterpart colleagues down South and the authors of the National Disability Authority (NDA) review after three years. What came out of that review was that, even though the Irish Sign Language Act was enacted in 2017 and commenced in 2020, 40% of public bodies were unaware of the legislation's existence and 30% of requests for an interpreter had not been met. That hit home the fact that you need time to build up the infrastructure. The NDA report was not overly positive about the achievements to date.

We want to give the legislation time to bed in and give us time to have the infrastructure in place. We want to give the prescribed organisations and Departments time to develop their action plans, which will tell the deaf community, in consultation with them, how those bodies will deliver on the legislation. You could shorten the time frame, but you would almost certainly have a skewed, negative viewpoint. On the day, however, I believe that the Minister said that he is open to other considerations.

Ms K Armstrong: It could be five years first and three years thereafter.

Miss Brogan: Yes.

Ms K Armstrong: If you go for five years, you could effectively wipe out a full mandate without a report having been delivered. I know that a lot of other Bills come through with —. You are absolutely right to allow for a longer period at the start, but, after that, it could be three years.

Mr Flynn: We will evaluate it yearly anyway. It is the statutory report that will be required after five years. Information will be available in the interim, up to that point.

Mr McAuley: The wording in the Bill is:

That is the limit of, not the target for, the extension. If we think that things are going really well, you can be assured that we will look to sing our own praises, and we will be there as quickly as possible. It is an open issue. The rationale is that we want to give ourselves and the prescribed organisations time to make effective change.

The Chairperson (Mr Gildernew): I want to follow up on the consultation. I get what you are saying, Tommy, about it being flexible enough so that consultation on something of a less important nature can be done quickly. Surely, however, in general terms, for more critical things, you should consult with more people. The Committee's concern is that, while that clause would allow flexibility, it would also allow a minimisation of consultation. Surely it should prescribe at least two or more organisations. Should those organisations not be included in the Bill rather than being chosen ad hoc as things go on? Could you not strengthen that provision by increasing the need for consultation and naming the organisations?

Mr McAuley: We see organisations come and go. The voluntary and community sector is stressed financially. The Foyle Sign Language Centre was a founding member of the sign language partnership group, but it is no more. We brought in the Foyle Deaf Association — the teaching centre. In reconstituting the sign language partnership group, we are looking to have the right organisations to represent the deaf community in Northern Ireland and the right service users and non-affiliated deaf individuals.

I will bring you back to best practice and statutory guidance. Our guidance will be that you must consult through the sign language partnership group, in which you will have the British Deaf Association, the Royal National Institute for Deaf People (RNID), the National Deaf Children's Society (NDCS), the Association of Sign Language Interpreters, visual language professionals, Action Deaf Youth, Foyle Deaf Association and multiple individual deaf professionals and service users.

Miss Brogan: Thank you.

Mr McHugh: Fáilte romhat. You are all very welcome. You referred a number of times to the Irish Sign Language Act 2017, which created enforceable rights for sign-language users to access services. Why has the Department not created enforceable rights, as the Irish Sign Language Act does? People often comment that the Bill, as it is currently, is much weaker than the Irish Sign Language Act 2017.

Mr Flynn: The Irish Act has enforceable rights, but it has a reasonableness test. We have put enforceable rights in clause 3. We are putting a duty on prescribed organisations to have interpretation and services, which is similar to the South's legislation.

Mr McAuley: The statutory guidance that will inform that access will be developed in consultation with the deaf community. As I have referenced, the best practice that will feed into that is being drafted by the British Deaf Association and will be brought to the full sign language partnership group. That will be the basis for the drafting of the statutory guidance. In that sense, we go back to the consultation. We are employing many gears of consultation. Co-design and sign-off of the actual design document will feed into the statutory guidance and inform reasonableness in access to services, as laid out in clause 3. That will place permanent, statutory duties on prescribed organisations and Departments.

Mr McHugh: There was an expectation that there would be enforceable rights from the outset rather than just in the future.

Mr McAuley: As soon as the statutory guidance has been consulted on through the framework, it will be commenced. I draw the parallel with the ISL Act. It was enacted in 2017, and its first review — six years later — raised issues, as I mentioned: 40% of bodies did not know of its existence, and 30% of requests for interpretation were not being met. We do not want to go down the same avenue of legislating for failure. That is why we are investing in the infrastructure now. Hopefully, other Departments will come on board with that now — as work on the Bill progresses — and not just post-enactment. We are already in discussions. We made it clear in our most recent sign language partnership group meeting, last week, that we expect Departments to bring their expertise, knowledge and resources to the issue.

Mr McHugh: I totally appreciate what you say about having the infrastructure to cope with it. Go raibh míle maith agat. Thank you.

The Chairperson (Mr Gildernew): Clause 7(3) delegates powers to the Department to assign statutory functions to a range of bodies. What is the nature of the functions that you anticipate being conferred under those powers?

Mr McAuley: That will be in the exercise of clause 3. There will be a statutory duty to take reasonable steps to provide access to services and information, amongst other things.

Mr Flynn: Clause 7(3) enables us to put guidance on reasonableness and affordability into regulations, but that is not the approach that we are taking. We are looking at co-designing statutory guidance. Reasonableness and affordability will be defined in guidance that is co-designed by the deaf community. Rather than leave the definition up to individual Departments and prescribed organisations, we will provide consistency by having statutory guidance that says, "Here is your sign language plan. If you get a request, follow these procedures and give this reply". If, for example, an area is not working or there is a dispute about it, clause 7(3) enables us to come in and create functions through regulations that organisations and Departments will be required to act on. Rather than follow the guidance, they will have to follow the regulations.

The regulations in clause 7(3) are something of a safety net to enable us to address issues that may not be working through the guidance, or to address issues that may be disputed in a court and need to be rectified through regulations. We have no intention to create the duties in clause 7(3) in regulations at this point. We expect that the statutory guidance and the sign language plans developed by Departments and prescribed organisations will address all the issues around accessibility, affordability and reasonableness. That is the approach, but we need the power in clause 7(3) in case there is some dispute — a particular issue may be around affordability — and we have to come in to regulate and define what affordability is under law. If, for example, a court takes a different approach, we can correct that in regulations.

Mr McAuley: The original communication support service model provides for a video-relay service, video remote interpreting and other technological services that may not have been available in 2015, at the outset of this journey. Things evolve, and the advent of AI may bring more opportunities with technology. The clause refers to groups being required to be:

Things may appear that do not exist now. We keep going back to the fact that we will need the ability and agility to move with the times. The main functions now consist of providing access to your information and your services through BSL and ISL and hands-on, tactile BSL and ISL.

Ms K Armstrong: An important part of what the Committee needs to think about and would like to see is what the regulations that you intend to bring forward might look like. The clause says that the Department "may" — not "must" — make regulations. There is no timetable for that. We have had experience with the Department, such as on the gambling regulations, in which we still do not have guidance a few years later. I have concerns that we do not have enough information about the regulations at this stage. The law that is being written will confer responsibilities on the other Departments. I am a bit worried that we are talking about affordability instead of about how the Bill will improve the lives of people who use sign language. Why is the wording "may make regulations" rather than "must make regulations"?

Mr McAuley: I will come in on affordability; the use of "may" rather than "must" in relation to making regulations; and the Department's ability and agility. The health and social care model is —

Ms K Armstrong: It is not the be-all and end-all. We had the case of a lady who went into labour: she and her husband are deaf, and they had no help.

Mr McAuley: Yes, that is true. I have had emails to that effect. You will have problems with any service, but it is a big sea change from what was there before.

For access to information and services, the big-ticket items will be interpreting or translating. How will we do that? That is what we are looking at. We are collating data from the CPD framework, through which public bodies can draw down interpreters. They pay for that service. We are looking not only at how many requests there have been and what the cost is but at why other public bodies have not used interpreters. Is it because they did not receive a request or because they have not had the budget? That has informed a binary consideration for access to information through interpreters. Do you go with the status quo, which is the CPD framework and people drawing down and paying for interpreters, or is there a case to be made for having a centrally funded regional service that is similar to the health and social care model and reflects the fact that the Department for Communities is the coordinating Department. The legislation will make the Department for Communities the lead Department, and other organisations will have their responsibilities. In essence, it is an Executive Bill because it is cross-cutting and needs Executive approval. Therefore, the consideration is whether individual public bodies and Departments pay their way — "As you were" — or there is a case to be made for a central service that is free at contact, at which point the affordability consideration becomes null and void. That is another body of work.

I sense the Committee's frustration about a lot of powers being taken to make the regulations. We do not currently know all the answers. We hope to know soon. We hope to, soon, develop the framework, reconstitute the sign language partnership group and get clarity on how it will be funded: either as it is or as a Northern Ireland-wide model. At that point, those structures can be embedded in the legislation. If we do it now and it cannot be done, primary legislation will need to be changed.

Mr Flynn: Our approach to the statutory guidance and the co-design element has been to ask the deaf community what is accessible and reasonable for them, rather than use a statutory definition of reasonableness. By working with the deaf community, we hope that we do not have to make regulations on reasonableness or effectiveness, because the statutory guidance in the sign language plans, which we developed with the prescribed organisations, should be able to handle that. It will also enable us to adapt quicker. If we see bad practice, we can make changes. If we put it down in statutory legislation and we have to adapt the accessibility or reasonableness, there will be a long process to make the changes. By using the co-design element and working with the deaf community, we can quickly change the guidance and put out the message on best practice.

Mr McAuley: It is about taking advice before the issue arises rather than afterwards. Our modus operandi has been to work in partnership with the deaf community throughout the process.

Mr Bradley: When you bring back the information on BSL and ISL for me, can you also tell me how many members of the deaf community need BSL and how many need ISL? How many people are trained to interpret each language to make sure that we have an adequate supply of interpreters for the majority as well as the minority?

Mr McAuley: The previous written briefing that we supplied to the Committee deals with that, as does the explanatory and financial memorandum. It highlights the difficulty of gathering data, which realistically, makes the case for the legislation. As public service providers, across three benefits, we sought the numbers of BSL and ISL users, but that is not collated. They were able to tell us that there are 16 types of deafness. It makes the case that the deaf community has been misrepresented. Research by Park and Parks, which was part of the work in 2012, highlighted the difficulties in collating the numbers of sign language users. That is a problem not just in Northern Ireland but in jurisdictions across the world. The information has not been collated.

One of the benefits of the legislation is that we could compel prescribed organisations to collate such information. We looked at the health and social care contract, but the data on the volume of calls or requests for interpreters is multiple for each person, because people go to their doctor or dentist multiple times. We can give you the number of students in interpreter training programmes. We have committed to providing that, alongside the terms of reference of the sign language partnership group and the consultation report summary from 2016.

Ms K Armstrong: I am sure that it makes it difficult for you that sign language users who are a bit older had to go to school down South and are, therefore, ISL users, whereas the younger generation of sign language users will have gone across to Liverpool or to Jordanstown. We have that age breakdown of the users of different languages as well. John Carberry is brilliant on the history of sign language.

Mr McAuley: It is interesting that you say that. I had a meeting last week with two deaf service users. We funded a BSL heritage project and an ISL heritage project for the deaf community to collect the stories of their lives. We were talking about ways of translating the signed video footage into BSL and ISL and whether we could use the Queen's students. They made a valid point — I knew it before I even said it — that older generation BSL and ISL users use a different form of signing, which is heavily influenced by fingerspelling. The younger generation of signers will have, as we do, a more expansive lexicon of signs. It is almost like a matryoshka doll: you have BSL, ISL, older generation sign language and younger generation language.

The Chairperson (Mr Gildernew): OK. Thank you. I have a quick question about the criteria for the prescribed organisations. We have said that, essentially, the criterion is that they are a public body. Are other criteria available? Have you drafted criteria, and are those available for the Committee?

Mr Flynn: The other criterion is that the organisation carries out the functions of a public body. You could have a charity or something that carries out the functions of a public body. We have not identified, at this time, any organisations that carry out the functions of a public body. The list that we have is basically just of Departments and their arm's-length bodies (ALBs).

The Chairperson (Mr Gildernew): OK. Thank you. I know that this is the first engagement on this. I welcome the detail and the interaction with the Committee. I also welcome the repeated indications around co-design. However, there is a wee concern that we are operating in a climate in which the Minister has indicated a changing approach to co-design. The Committee will want to ensure that a strong co-design element is retained in this important area. You have demonstrated that until now, and I would like to see it continuing.

We will have a number of questions following our earlier session with the Examiner of Statutory Rules on legal issues, which we might want to compile and forward to you for a written response. I will ask the Committee staff to look at that. For today, thank you. We look forward to working with you on what, I have a very strong sense, is all of our desire: to create strong legislation that will bring real and continuing benefit.