Official Report: Minutes of Evidence

The Chairperson (Mr Gildernew): I welcome to the meeting Geraldine McGahey, who is chief commissioner. Geraldine, you are welcome back to the Committee. I also welcome Paul Noonan, who is senior policy officer. Likewise, welcome, Paul. Geraldine, I think that you will make some opening remarks before we move to members' questions. Chief commissioner, please go ahead.

Ms Geraldine McGahey (Equality Commission for Northern Ireland): Thank you for the invitation to be here this morning. As the Chair said, I am joined by Paul Noonan, who is one of our senior policy officers with a specific remit in the area, including the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and other issues related to disability. I want to say a few opening words, and we will then be happy to take your questions.

I will give some background and context. You will be aware that the Equality Commission, together with the Northern Ireland Human Rights Commission, is part of the independent mechanism for Northern Ireland that is designated under article 33(2) of the UN Convention on the Rights of Persons with Disabilities. Our role is to "promote, protect and monitor implementation" of the convention in Northern Ireland. It is in that context that we have established a disability stakeholder forum on which the British Deaf Association is represented.

You will be well aware that accessible communication has continued to be a barrier to deaf, hard-of-hearing and disabled people in Northern Ireland, not just in accessing services but in their right to freedom of expression and opinion. The UN Committee on the Rights of Persons with Disabilities, the British Deaf Association, the Department for Communities and its disability strategy expert advisory panel and, indeed, independent research commissioned by us have all highlighted concerns regarding the limited provision of accessible information and services by public authorities in Northern Ireland.

Now, some 21 years after the formal recognition of British Sign Language (BSL) and Irish Sign Language (ISL) as languages in their own right, as announced by the then Secretary of State, Paul Murphy, we very much welcome the Sign Language Bill. It is an important step towards meeting the Northern Ireland Executive's obligations under article 21 of the UNCRPD. Provision for the official and equal recognition of BSL and ISL as languages in Northern Ireland is, indeed, a landmark achievement. It affirms the cultural and linguistic identity of the deaf community and aligns with their view of themselves as a linguistic minority rather than a group of disabled people. It sets a foundation for greater inclusion.

We note that the Bill provides for a statutory duty on prescribed public organisations to take reasonable steps to make their services and the information that they provide as accessible to individuals in the deaf community as they are to individuals who are not in the deaf community. We also note the commitment to promote the use and understanding of sign languages; the provision of and access to sign language education for deaf children and their families; and, importantly, the framework for accrediting sign language interpreters and teachers.

While we welcome the proposed legislation and are mindful that we should do nothing to undermine it, it is essential that the legislation is robust and enforceable. Otherwise, it will remain a laudable publication that fails to live up to its full potential and, indeed, society's expectations. In our written submission, the commission highlighted areas in which the legislation could and should be strengthened, including monitoring and compliance, adequate and dedicated funding, early education support, the scope of existing accessibility duties, digital accessibility, support for wider cultural promotion and ongoing engagement with stakeholders. The details of those are provided in our briefing. Arguably, many of those points can be addressed in subsequent regulations. However, some areas cause the commission ongoing concern.

The language used in the Bill appears to give the Department a high degree of latitude in many areas. It will be at the discretion of the Department as to the extent and the manner in which it promotes the use of sign language and how it will work to develop the culture of the sign language community. The Department will have significant freedom as to when regulations will be prepared and given effect, as well as over the content of such regulations. The Department will have the power to disapply or limit the application of the regulations on prescribed organisations where it considers that to be appropriate, taking account of issues such as the scale of their resources or the type of their operations etc.

Similarly, the issuing of the guidance referred to in the Bill is without a dedicated framework and provides significant latitude to the Department regarding that guidance. The use of the word "may" has legal implications. It is not as strong or compelling as "must" or "shall". It would be much preferable to have those words throughout the Bill. They are used occasionally but sporadically in the Bill, and they would ensure that actions were implemented. The word "may" provides flexibility and can provide space for creativity — that is without question — but, at the same time, it can create uncertainty and the potential for inertia or no progress. Indeed, in this case, there can be no progress or improvements for our sign language community unless the necessary regulations are brought forward. Until the regulations are in force, there are no prescribed organisations with the exception of the Northern Ireland Civil Service Departments. The Bill is silent on when that might be, and there are examples from our past of progress not being achieved because regulations simply were not brought forward: the case of gender pay reporting in the Employment Act (Northern Ireland) 2016 is a case in point.

Similarly, the Bill states that prescribed organisations "must have regard" to guidance issued by the Department. It would be much preferable for it to state that organisations "must have due regard" to such guidance.

Another point of concern is in relation to article 4(3) of the UNCRPD, which requires that:

The Bill's proposal that the Department consult at least one person or group acting on behalf of the deaf community sets a minimum standard, but it is not the only standard. It runs the risk of being contrary to article 4(3).

The Bill proposes that prescribed organisations must take "all reasonable steps" to ensure accessibility of information and services etc and to "offer or facilitate" the use of sign language. "Reasonable steps" are undefined at this stage and may be more clearly identified in future guidance. However, prescribed organisations are enabled to retain the right to take account of issues such as affordability and practicality as a justifiable defence or reason for not complying with the proposed legislation. It is not dissimilar to the Disability Discrimination Act 1995 (DDA) as it stands.

The commission acknowledges that, while the disability discrimination legislation is not and cannot be an appropriate vehicle for cultural and linguistic recognition, it nonetheless provides for legal redress where discrimination has occurred against deaf and hard-of-hearing people. We have supported a number of such cases in recent years and have on many occasions, including before the Committee, called for the reform of the current disability discrimination legislation in Northern Ireland, which provides much less protection for people here than for people in Great Britain.

The commission considers that the Sign Language Bill will complement the disability discrimination legislation in setting forth and underpinning the rights of deaf and hard-of-hearing people in Northern Ireland. We should not underestimate the power that the Bill could have, but that will be subject to the depth and expanse of the regulations and guidance that come with it. Without that time frame and clear direction on when the Department will move forward, it can and will remain a piece of paper sitting on a shelf. That is our view.

I will stop there. It is more important that we have dialogue with you and answer as many questions as we can. We will endeavour to do that, and, if we cannot answer a question, we will, of course, come back to you in writing.

The Chairperson (Mr Gildernew): Thank you, chief commissioner. That was a really useful and focused view of the Bill that speaks to an emerging consensus on a number of issues that are coming up time and time again.

You highlighted concerns about clause 5, which requires the Department to consult one person. You mentioned that towards the end of your remarks. That has been raised previously. The fact that there are two languages is probably a suboptimal situation. If that clause should be strengthened, how should it be amended to ensure that it is compliant?

Ms McGahey: It should be amended so that it complies with article 4(3) of the UNCRPD and the body or partnership that is consulted is representative of the deaf community and the deaf community itself agrees that it is. It should be noted that the Department has worked closely with the deaf community to get to this point. There has been good, strong collaboration. We would nearly go as far as to cite it as best practice. It would be such a shame if that was to be minimised now by the reference to a minimum communication with one organisation. It is a minimum standard, but there is no aspiration to keep that as wide and as open and inclusive as possible.

Mr Paul Noonan (Equality Commission for Northern Ireland): I did some research ahead of today's meeting and noted that the news section of nideaf.com lists seven deaf organisations for Northern Ireland and 10 clubs. I am not saying that that is a comprehensive list, but it is clear that more than one organisation provides services to the deaf community.

The Chairperson (Mr Gildernew): Thank you. I have one last question for now, and then I will go to Members to give everyone a fair chance. The paper makes significant points — it is useful even outside of this discussion, and we will come back to that — about the UNCRPD's recommendations on these matters. What is your assessment of how far the Bill goes towards implementing the UNCRPD's recommendations?

On the ownership and management of digital resources, do you have any thoughts on how community representation might be achieved or promoted?

Ms McGahey: It goes without saying that the Bill provides an essential foundation on which everything else can be built. As I said, the regulations and the guidance will give life to it. The Bill is only the starting point and should never be seen as anything other than that.

The other part of your question was on —.

The Chairperson (Mr Gildernew): The UNCRPD. We have had discussions on digital resources and how we can be sure that the community has ownership of them. How can representation be promoted?

Ms McGahey: It goes back to who represents the deaf community and all the parties that are involved in that. Each will have its own needs. The foundation is there in how the Department has previously worked with the deaf community to bring it along in a collaborative approach. That is really important, because it will be part of how the definition is arrived at and how the regulations and guidance are set out. It is essential that the people involved in that process are representative of all the needs of those who are affected, whether they use ISL or BSL or are hard of hearing. They all need to agree that what is produced meets their needs; otherwise, you fall short. This is an opportunity to get it right that is too valuable to waste.

The Chairperson (Mr Gildernew): Thank you.

Ms K Armstrong: I have a few specific questions, so bear with me. The first one is about reasonableness. Assuming that the Bill passes and outlines the intentions, will it be reasonable for any public body or Department to use affordability as a reason for not complying completely with need, given that the regulations will make it clear that there are certain standards to be met?

In your paper, at paragraph 3.28, you mention "essential services". Essential services are not clarified in the legislation. Do you have a definition for that term?

Finally, on equality, there is a lot of mention of children, which is fabulous, but there is no mention of older people who are deaf or people who lose their hearing as they go through life. Should something be included to ensure that all sections of society are covered?

Ms McGahey: I will take the last part first. The Bill should apply to all sections of society. All people who are hard of hearing and deaf should be included, regardless of their age. That goes without saying.

The Bill sets out affordability as a reasonable excuse or explanation for not doing something. That will be one of the grounds on which an organisation, whether it be prescribed or whatever, can explain or try to justify its failure to make reasonable adjustments. It is the same in the DDA. We have taken many service providers through the courts to address those issues, and they have been found wanting. That process will remain. Seeking legal redress under the DDA can be time-consuming and resource-intensive, and it is difficult for people with disabilities to pursue that course of action without the assistance of organisations such as ours. How long we can continue doing that remains to be seen. Our budgets are continually pressurised and cut, and we are finding that we cannot help as many people as we might have done in the past and that we can deal only with the big strategic issues. That leaves a large cohort of our society that has the right to seek legal redress, and we cannot help those people.

I would really like to see something incorporated in the regulations that defines more clearly what "reasonable" adjustment is or what a justifiable excuse — "explanation" may be a better word than "excuse" — is for a failure to make reasonable adjustments. Under the Bill, if you cannot afford to do something or it is not practical to do it, you do not have to do it. If "regard to guidance" were strengthened to "due regard to guidance", it would make it more important for an organisation to clearly set out how it has considered the issues in detail that can be challenged.

Ms K Armstrong: You talk in the paper about there not being a clear complaints process and about the measurement of compliance. Who should hold that responsibility?

Ms McGahey: It will be for the Department and Members to ensure that the holder of that responsibility is clearly identified. The commission does that kind of work and gives advice to organisations on how they can comply with their duties under the DDA. Disability Action also participates in that process. A number of organisations and bodies could be identified. Indeed, if the Department were willing and had the skill base, it could do that itself. It is for the regulations to identify who that will be.

Ms K Armstrong: What do you mean by "essential services"?

Ms McGahey: That term includes anyone who provides an essential service to a member of the community at large. If that service is essential to that person's day-to-day living and their ability to participate in normal society and be included in society, it should be considered an essential service. We are not just talking about the emergency services; we are talking about anything that is essential to your day-to-day living and ability to be part of society.

Ms K Armstrong: We have received correspondence that talks about employment, justice and health. We are will meet someone shortly who regards those as essential services.

Ms McGahey: Without question, they are, but they are covered by the Departments that are identified in the Bill as automatically being prescribed organisations. They will not be consulted about the regulations or the guidance. There are other service providers that provide an essential element to people's lives but are not necessarily public-sector organisations. There are other organisations that deliver services on behalf of a public body. We would like to see those included in the provisions as well.

Mr Noonan: We note that the Scottish Government have a BSL action plan 2023-29. That specifies key areas, including employment, health, data, transport, access to justice, participation in public life and so on. Those are the kinds of things that could be included in an action plan that the Department might draw up further down the line.

Ms McGahey: Imagine that there is a social policy to increase the participation of older people or disabled people in society. There is an argument that whatever services are needed to help the delivery and achievement of that social policy are essential. That might be one way of helping to understand where we are coming from.

Mr Kingston: Thank you for your attendance and your paper. You said that you would like "have regard" in clause 5(4) to be changed to "have due regard". Will you will explain the difference that having the word "due" makes?

Ms McGahey: The word "due" makes it more of a statutory obligation and sets out the specifics of what must be done. It is easier to say that you have had regard to something. I would not go as far as saying it is like paying lip service, but it is a less rigorous approach to the consideration of the issues than having "due regard".

Mr Kingston: That leads to my second question, which is about the issue that we have discussed on clause 3: the meaning of "reasonable steps". We are told in the Bill that it is to:

We are also told that it should be "at no extra cost" to the individual and that affordability could be taken into account as a factor. Many organisations, including the prescribed organisations, wider groups and businesses, will look at what the consequences will be for them in practical terms. You have said that that provides a foundation that can be built on. I think that we will end up with a range of provision.

At one end of the scale you could have interpreters physically present at all times, waiting in case somebody comes in requiring their services. A lot of other organisations will have some sort of facility that can be provided by arrangement, with notice, and possibly something that can be accessed online. The fundamental step here is that organisations, particularly prescribed organisations, will not be able to say, "Sorry, we do not do sign language". They will have to do it. You said that you were concerned that they will not have to do it: I do not think that any organisation will be permitted to say that it does not do sign language.

Ms McGahey: They will be able to demonstrate, by looking at the resources that they have available, that it is too expensive for them to provide the service or that there is not a big enough demand for it. That ability to opt out on a reasonable, justifiable basis needs to be clearly defined in the guidance. The guidance needs to contain the definition of what "reasonable steps" should be and set out the parameters within which a justifiable defence can be put forward.

The same process applies with the DDA and the inability of some providers to make reasonable adjustments for people with disabilities. When you take it through the court, it can be an onerous bar to overcome and we have been successful in a lot of cases against our Departments, where they have failed to make reasonable adjustments for someone with a hearing problem. Therefore, the guidance is essential in identifying those thresholds. At the minute, there is no guidance. That will come at a later date. That is why I say that the Bill is the foundation on which the regulations need to be defined. The Committee and other MLAs will play a critical role in helping to develop those regulations and the guidance.

It has to be about helping and assisting people who have a hearing problem and deaf people. It is about developing the culture of that community, because they do not see themselves as disabled people. If you do not see yourself as a disabled person, why should you have to rely on disability discrimination legislation to assert your rights? Having strong and robust legislation on which strong regulations and guidance are developed helps the identity of those people. It helps their well-being and their feeling of being an included member of society.

Mr Kingston: I do not doubt that there will end up being challenges to what is reasonable and what the level of provision should be. However, I expect that we will end up with a range of provision —

Ms McGahey: Absolutely, it will be —.

Mr Kingston: — according to the size of the institution or of a building.

Ms McGahey: It will be context-based, without question.

Mr Kingston: The Bill at least establishes the foundation that means that organisations cannot say, "No, we do not provide sign language".

Ms McGahey: They cannot do that. They would have to justify it.

Mr Kingston: It is not just a preference; it is a practicality. It is people's primary language.

Ms McGahey: I stress that, without proper regulations, the Bill will be meaningless. It will not be enacted. It will have no substantive benefit to anyone without strong regulations.

Mr Kingston: Thank you.

Mr McHugh: Fáilte romhaibh uilig.

I always find it ironic that, when we discuss sign language and its importance, we talk about not just how it facilitates communication but how the culture should be that the service and support services will be provided for every person who requires them. I say "ironic" because language is often divisive for us in the Chamber. However, in your presentation you really highlight the importance of language. It is no threat to anyone, and providing language rights for one group in no way diminishes the rights of any other person.

Paul, I would like a wee bit of clarity on a point that you made. At 3.8 of your paper, you state:

You then go on to describe what is happening in Scotland. Are you suggesting that the Scottish model is the preferred model and the model that should be adopted in the North of Ireland? If so, what is needed to ensure that it embraces all the positive elements of the Scottish model?

Mr Noonan: I do not think that we are being prescriptive on the Scottish model. We simply point out that there is a deficit in the legislation with regard to ensuring a joined-up approach and implementation. The Scottish model is one option. We are aware that the Civil Service has a standing group of equality officers who meet to share experiences and their approaches to section 75 matters to encourage a more joined-up approach. There are different ways of coming at this, but, on fulfilling section 75 duties, there are some proactive public authorities that are good at looking to do so and are creative in their approach. At the other end, you have a smaller number of public authorities that pay lip service to the duties. In between, you probably have the majority of public authorities. Trying to ensure a good standard of compliance is an issue that could benefit from further attention in the development of the Bill.

Mr McHugh: Go raibh maith agat.

Mr McCrossan: Thank you, Geraldine and Paul, for all your work on this generally and for the work that you do daily in this important area.

I share your concerns about the legislation. First of all, I welcome the Bill; it is an important step forward. Most of the legislation that comes through the Assembly from Departments tends not to be as good as it should be when it comes to delivering for those who are directly affected. The Bill needs to be inclusive and contain clear demands to ensure that its provisions are delivered and it does not sit on a shelf. Unfortunately, for years, many strategies and Bills have just sat there. In fairness to Kellie, there was tough language in the Integrated Education Act 2022. The House added to that through various amendments to ensure that the Department would do what it was committing to do. I entirely agree with you: it cannot be just a box-ticking exercise. A lot of hopes have been raised by the Bill, and we need to ensure that we do not continue to let down the people who are affected or let down those who will be affected in the future.

I have nothing to add other than to thank you both for what you are doing. You have the support of the Committee. I understand entirely why the language and the wording in the legislation need to be strengthened. If we want to see action, the wording needs to be strengthened. Thank you both.

Ms Mulholland: Thank you so much. Your submission was really helpful and highlighted quite a few issues that we had discussed. The lack of a complaints process was brought up at one of the consultation events that I was at in Banbridge. That was a really serious issue of contention at the consultation event because of the lack of capacity to complain. As you said, for members of the disabled community, the capacity to go through that legal process can be out of reach. When it comes to enforcement, are there penalties or usual enforcement guidelines in other equality legislation that are best practice and could be brought into this Bill?

Ms McGahey: Under the Disability Discrimination Act, the commission will assist individuals to seek redress where, they believe, they have been discriminated against, but it is ultimately for the courts to determine whether they have been discriminated against, and they set the penalty. It depends on the situation and the circumstances. In relation to employment, for example, there may well be monetary compensation. The Bill is silent on any form of enforcement or redress, and, in that void, the only option that will be available to people to assert their rights and seek redress will be under the DDA.

We would like to see that, perhaps in the regulations.

We really do not want anything to jeopardise the passage of the Bill. It is too important for that to happen, but there needs to be a commitment. Certain words, such as changing from "may" to "must" or "shall", would make a massive difference, and, indeed, setting a time frame for the introduction of regulations. You are then into that development process again, where members will have a further opportunity to really participate in the development of the regulations. That is essential to making this really valuable legislation that is so desperately needed.

Someone made comments about the expectations of society. People's expectations have been built; without question, that is the case. It is a really laudable document, so we need to do all that we can to make sure that it is as robust as it can be when it eventually gets rolled out. Without those regulations, I reiterate that, unfortunately, it will sit on a shelf and serve no purpose.

Ms Mulholland: I really appreciate that and the strength of your words. That is really clear for us.

On enforcement, you mentioned the fact that you and Disability Action NI are engaged in something along those lines with the DDA. Can you tell us what that looks like or what it is in practice?

Ms McGahey: Organisations have disability action plans for how they deal with that. We provide advice and guidance to employers and service providers on meeting their obligations and on interpretation of the Disability Discrimination Act. That service is free of charge. Likewise, we provide legal assistance to those who believe that they have been discriminated against. We cannot support all of the cases that come before us; we support only the strategic ones that have the potential to get a message out across wider society. We would love to support more, but we cannot. We work closely with Disability Action and others to assist and interpret the legislation.

Ms Mulholland: If we were to look at the lack of a budget linked to this and if there were something to be built around the provision of that enforcement service or that support service, either to you or to community and voluntary sector organisations such as Disability Action, would that increase capacity?

Ms McGahey: It would be beneficial, and it would increase capacity in respect of the Bill. It will be for the Department to identify in the regulations whether there is an enforcement aspect or whether it is to rely solely on the DDA or whatever the case might be. The Bill is totally silent in that regard, so we will just wait and see.

Ms Mulholland: Thank you both so much. That was a really useful contribution.

The Chairperson (Mr Gildernew): I will pick up, hopefully quickly, on a couple of issues that have not been touched on. You highlighted, commissioner, the absence of a complaints process for non-compliance: what benefit would a complaints process bring, and should the Bill be amended to include a complaints process?

Ms McGahey: I think that a complaints process can be put in regulations. There needs to be some form of redress. It needs to clarify where that redress would be when there is a failure. Even section 75 identifies a form of redress, weak as it might be. There is a process identified for the actions that will be taken where an organisation has failed to deliver on the aims of the legislation. That is an important point, and we really cannot move forward until that is done. A complaints process will not provide proper redress unless the regulations identify it as such. A legal process will provide that. A complaint can be of a minor nature, but, again, the regulations can clearly stipulate that.

Mr Noonan: Linked to that is a need to be proactive about including deaf people and their organisations in the implementation framework so that they can advise as the regulations and the legislation roll out, rather than waiting five years and conducting a review at that stage. A lot can happen in five years, and it is more likely to be positive if deaf people are involved from the outset. As the chief commissioner mentioned, article 4(3) of the UNCRPD requires that in the development and implementation, and what we are talking about here is implementation. Yes, deaf people were involved in the development of this, but it is about implementation and active involvement. Article 4(3) talks about "consultation with" and "actively involving", so it is not just a one-off consultation. "Actively involving" implies that it is an ongoing process.

Ms McGahey: To clarify, a complaints process can quickly and speedily resolve an issue, and that helps a person who feels they have not had a proper service. Normally, in the public sector, if someone has made a complaint and the complaints procedure has failed to deliver an outcome they are happy with, they have a course of redress to, for example, the Public Services Ombudsman. There is no reason why a similar process could not be incorporated into this to negate the need for legal action.

The Chairperson (Mr Gildernew): I want to clarify a couple of points. You have been strong on the regulations. Apologies if I missed this point, but did you say that the time frame for the regulations should be in the Bill?

Ms McGahey: It should. It would make sure and signal to all parties that the Bill will be real and impactful and will not sit on a shelf, that it has a definite journey to complete within a specific time frame. That would really strengthen it.

The Chairperson (Mr Gildernew): OK. Paul, you touched on the review: is five years too long for that process? Should we amend that to have a quicker review, particularly for the first review? Should the terms of reference for the review be included in the Bill?

Ms McGahey: Including the terms of reference would add to the Bill, but it is not essential. It could be incorporated at a later date in the regulations. My honest view is that five years is fairly appropriate, because you need to give this time to bed in, for problems to be identified and for an opportunity to put them right and see what works best. To gather the evidence and make it meaningful, there is no point in carrying out a review at the end of one year; it is too soon. Five years is fairly appropriate, and a review of that nature could be resource-intensive because of the amount of engagement and evidence-gathering that might be required. However, it would be in the gift of the Department to include the review in the regulations.

Mr Noonan: One of the Bill's provisions is that designated authorities develop action plans. However, the Bill is silent — perhaps the regulations will address it — on the due date for the development of those.

Ms McGahey: And how they would be approved.

Mr Noonan: Yes, for the period of the review.

The Chairperson (Mr Gildernew): OK. Thank you.

Ms K Armstrong: There is a lot of talk about regulations, but there are none listed in the Bill. Would it be beneficial or more appropriate for there to be at least a start list, with, at the review, any further regulations as needed? Should the regulations be listed in the Bill?

Ms McGahey: The Bill in its current form stipulates where regulations will be required. I would not be overly prescriptive about what should or should not be included in the regulations, because a bit of ambiguity can create a space.

Ms K Armstrong: Not the regulations, just a list of what they are.

Ms McGahey: Even in the Bill. If you feel strongly that there are other issues that you have heard in the evidence that you have received that it would be beneficial to have in the Bill — the regulations will cover this issue — add them in. However, I encourage you not to delay the incorporation of this but to make sure that you are confident that the regulations will cover it. I would look for a time frame for the introduction of the regulations.

The Chairperson (Mr Gildernew): Thank you. That is greatly appreciated. Thank you, members, for a thorough look at various aspects of the Bill. Commissioner, it has been very useful to have your paper on this as well. Thank you.

Ms McGahey: If you need anything further, let us know, and we will address it to the Committee Clerk.

The Chairperson (Mr Gildernew): Thank you.