Official Report: Minutes of Evidence

The Chairperson (Mr Gildernew): I welcome the following officials to the meeting. From the sign language policy and legislation branch, we are joined by Iain Greenway, Tommy McAuley and Gerard Flynn. Iain, we will come to you for initial comments and then come to queries from members. Thank you.

Mr Iain Greenway (Department for Communities): Thank you very much, Chair, and thank you, Committee, for the opportunity to support your deliberations on the Sign Language Bill. I will keep these opening remarks short to provide as much opportunity as possible for discussion of any issues that the Committee wishes to raise. I can, however, provide a brief update on other work streams that the Department is taking forward in parallel with its work on the Bill.

We continue to work on a first draft of a DFC sign language action plan (SLAP), which the Bill requires prescribed organisations to draft. The Department intends to share this with the sign language partnership group for assessment. The SLAPs will be informed by the best practice guidance that we are also developing, but the Department is having a go first in order to provide templates and so on. The guidance will, of course, reflect the final Act; however, we are working off an initial draft template for the guidance, which will be subject to change as provisions may change. We are in the process of finalising a first draft of the best practice with a form of words for inclusion in the guidance to guide prescribed organisations in their considerations of duties under clause 3, which is on providing access to information and services. A draft will be forwarded to the Committee next week along with information on costs, a draft list of prescribed organisations and information on regulations around interpreters.

We continue to work on a refresh of the sign language framework/strategy and await the appointment of a new signing member of staff to expedite that work through a series of engagements with the deaf community, in parallel with the work that we are progressing with deaf organisations and colleagues across other Departments. That will ensure a co-design approach, not only identifying key outcomes and actions but further developing the infrastructure of support to deliver on the statutory duty of prescribed organisations and to outline action to promote BSL and ISL. As part of that work, we are also engaging with the deafblind community to ensure that the infrastructure of support that that community requires is included in the framework. This includes discussions on the defining of responsibility between mobility and communication access. In addition, we are looking at training standards and co-production to develop structured qualification routes and continuing professional development in deafblind communication and tactile interpreting. As you will see, we are engaged in an ambitious body of work to further develop the infrastructure of support necessary to deliver on the intent of the Bill.

We are, of course, happy to take any and all questions from members.

The Chairperson (Mr Gildernew): Thanks, Iain. You have indicated that you are looking at amending some clauses, including clause 2(3) on the age of children and clause 4(5) on the resolution of regulations for adding or removing organisations from the list, where you stated that the Department is content in principle. When will we see the proposed text of those amendments? We cannot really consider them fully until we have seen how you are phrasing them. We will need to see the text for our informal clause-by-clause consideration after the Christmas recess. We cannot take a position until we see it. When will we see those amendments?

Mr Greenway: As you will appreciate, we need to work with legislative drafters and with the Minister. Indeed, any amendments will formally be Executive amendments, not our Minister's amendments. We are playing in a little bit of drafting and giving you indicative material; we will not be in a position to give you final material, because everything has to take its place. I think that we are due to come before you again on 11 December. We intend to come forward at that stage with clarity on our position and intent on the areas of the Bill that you have reached. I recognise that we are all working in parallel on this.

The Chairperson (Mr Gildernew): That is very late in the day. I am really concerned about that, I have to say. You flagged, quite a time ago, that you were content to look at this, so it is really disappointing that we do not have the text in front of us so that we can give the amendments full consideration.

Mr Greenway: As you will appreciate, that is not in my gift and, to an extent, it is not in the gift of my Minister either. They would be Executive amendments, not my Minister's amendments. This is well-trodden ground from the Committee Stage of other Bills, I am sure.

The Chairperson (Mr Gildernew): Why would the Executive be amending it?

Mr Greenway: It is an Executive Bill. Any material going to the Chamber is an Executive Bill, not a departmental Bill — anything that washes through the Executive.

The Chairperson (Mr Gildernew): All Bills are Executive Bills?

Mr Greenway: Unless they are Members' Bills, of course.

The Chairperson (Mr Gildernew): I engaged with a number of Bills during my time as Chair of the Health Committee, and I have never heard that used as a reason not to produce the text of amendments.

Mr Greenway: I am not giving that as an impediment. I am just saying that that is my understanding of the position: all Bills are Executive Bills.

Mr Gerard Flynn (Department for Communities): In respect of this issue. The issue with age in particular has some pertinence for the Executive. In the first instance, we went to the Executive with a lower age. There are cost-setting implications if you are looking to put the age up to 25, which is what we are discussing. There are cost implications to that. We will need to go to the Executive. We went to them originally with a cost for 18. Extending the age to 25 will extend the cost on this, and we will need Executive approval because of that cost element. We would not need to run to the Executive on every element of the Bill, but we will on that element because we originally told the Executive that the age would be 18.

Mr Tommy McAuley (Department for Communities): It was 19.

Mr Flynn: It was 19, sorry. We are now looking at going up to 25. We will have to inform the Executive that we want to move to 25.

The Chairperson (Mr Gildernew): Given that it has been quite a period of time since you agreed that, can you tell me whether that has been drafted and whether the draft is with the Executive for consideration?

Mr Flynn: No, we have not approached the drafter yet. There are a number of issues that we will approach the draftsman on. The Committee has raised a number of issues. We will go to the draftsman with a bundle, and then we will go with a bundle of proposed amendments to the Minister. Those may be amendments that the Committee put forward or even something that we have identified that will improve the Bill. We will bring those to the Committee as soon as we have them.

The Chairperson (Mr Gildernew): You will draft that, bring it to the Executive and bring it back here by 11 December?

Mr Flynn: No, we will not bring that to the Executive by 11 December. The principle of moving to 25 has been agreed, but we will not be able to turn that around by 11 December with the Executive. If we are looking at the specific question of going to 25, we will have to inform the Executive and get their approval.

The Chairperson (Mr Gildernew): I am using that as an example, but you are right that there are a number of them. We have a number of concerns with the number of amendments as well, to be honest. They are all the same concern.

Ms K Armstrong: You have lost me completely as to what the difficulty is on this. Clause 2(3) states:

which we hope will go up to 25. Just above that, clause 2(2) states, "Without prejudice ... the Department" for Communities:

so putting it up to 25 would make no difference.

Mr Flynn: It means that —

Ms K Armstrong: There is no difference.

Mr Flynn: — if someone is 19, they could continue up to the age of 25.

Ms K Armstrong: It can be "close families, guardians and carers". They could be any age.

Mr Greenway: I will come back to that specific example in a minute, Kellie, if I may. To take the Chair's point on the drafting, if there were agreement to change that to 25 or, indeed, any other number, there would not be a drafting challenge with that particular point. It would not affect the drafting in the same way as cross references between clauses in the Bill would. That one is pretty clear. Our estimate is that to increase that from 19 to 25 will add £250,000 a year to the cost of sign language classes.

Ms K Armstrong: To whom?

Mr Greenway: To the Exchequer, if the classes are free.

Ms K Armstrong: No, to whom? Is it the Department for Communities or other Departments?

Mr Greenway: The:

will be for all children under 25 years old, so another six years of people, so to speak, will fall into that category for the definition of that element of the Bill.

Ms K Armstrong: I am sorry, I do not understand where this nonsense is coming from. In clause 2(2)(b), it says very clearly that classes will be provided:

Mr Flynn: And then it defines deaf children —.

Ms K Armstrong: Are you now saying that that is only for under-25-year-olds?

Mr Greenway: No. With respect, I do not think that we are trying to give you nonsense; I am certainly not trying to give you nonsense. That particular paragraph specifies who can access the classes. It states that the classes are for the person themselves and for people connected to that person, and then it defines the person — the key individual who is the key to access for all those supporting people — to be under 19 years of age in the current draft. If I am 23 and I am deaf, my parents, close family, guardians and carers cannot access the classes, but if we increase that to 25, and I am still 23, my close family, guardians and carers can, so additional people can access the classes. If the presumption is that they are to be free at the point of use, that is an additional cost to the public purse. Gerard is right that, because it has a financial implication, it will then have to be washed through various parts of government.

Mr McAuley: It is a change to the original policy intent, which was cleared by the Executive.

Ms K Armstrong: It only says "the Department".

Mr McAuley: Yes, the Department is leading on the legislation, but it is, in essence, cross-cutting, because it affects all Departments. You will also find that within Departments such as Health and Education, with, for example, Sure Start, which is an early years intervention, there may be ramifications there around costs. So it is prudent for us to bring it back to the Minister to seek Executive approval for the change in policy intent.

The Chairperson (Mr Gildernew): If you are aware that all those stages have to be added in — I have not heard tell of this before — why have you not got that completed and in front of us? The Committee can only consider what it has in front of it, not general discussions in principle. Bearing in mind that you have also said that you are minded to look at clause 4(5) regarding resolution for adding and removing organisations from the list. Can you clarify whether that one is going to the Department, or has it been drafted as a potential amendment?

Mr Greenway: As Tommy said, we have not gone to the draftsman. We intend to go to the draftsman with a bundle of material, and we are, to an extent, working in parallel here. The Committee is working its way through, and it has not yet got to its formal clause-by-clause. We have not yet formally had the Committee's position on various matters. We are engaged in a dialogue where we are exploring a whole series of issues. We do not want to go backwards and forwards all the time with a draft to change this and that or where it changes a cross reference etc. We need to keep coherence with the overall Bill as well as the specific provisions.

Mr McAuley: We have been in touch periodically with the Office of the Legislative Counsel (OLC) with regard to the issues that the Committee has raised. Our view was that, close to the end of the deliberations, there would be a list of potential amendments that could be dealt with in one go, rather than piecemeal, where, every time that we attend a Committee meeting, we take away a potential amendment and have it drafted.

The Chairperson (Mr Gildernew): We were seeking to facilitate an early response by yourselves by feeding them through as quickly as they were available, and I am sure that you were watching our Committee sessions live and picking up on them as well. Are you now seriously telling us that you have done nothing, because you were not expecting them to come in this way? You were not expecting to get them early, so you decided to wait until later?

Mr Greenway: No, we have not said that we are doing nothing, Chair. We are —.

The Chairperson (Mr Gildernew): Well, there is no draft in front of us.

Mr Greenway: We are engaged and keeping in touch. Tommy and Gerard are in regular contact with OLC, for instance. We are keeping the Minister advised of the deliberations. We are preparing the ground, but we have not gone to the draftsman and asked him to start his tracked changes to the Bill.

The Chairperson (Mr Gildernew): How are we to consider a draft that we cannot see? How can we make a judgement on that?

Mr Greenway: We are gaining sight of where your deliberations are coming from, and many of those things, as with any Bill, interact with each other. So, until you finish at least your first run through of provisions — I think at the moment that you are at clause 4 — it is hard to see, because it is a Bill in its entirety; it is not a series of clauses that are separate from each other.

Mr Flynn: An amendment to one area in the Bill could have an effect on other areas, and it could have an effect on the delivery of the Bill. It is important to say to the Committee that we have structured the Bill to deal with mistakes that have been made in other jurisdictions. For example, other jurisdictions — England, Wales and the Republic of Ireland — have recognised the language, but they have done basically little else after that. They have not put in proper duties on public bodies, or public bodies are not aware of their duties. There is also a major capacity issue in Northern Ireland in relation to interpreters. The Bill is structured in such a way as to deal with those factors. First, we recognise the language. Secondly, we put the duties on public bodies. And, thirdly, we put the guidance in with regard to delivery and to deal with capacity. It is a work in progress.

The Chairperson (Mr Gildernew): Gerard, it goes without saying that amendments will change the Bill. That is what amendments do. The Committee has a responsibility to scrutinise the Bill and suggest amendments, which, given our scrutiny and consultation, we feel need to be made. You have indicated that there are areas in which you agree amendments should be made. In order for us to consider whether your amendment meets the Committee's objectives, we need to see it.

Mr Flynn: The amendment that relates to changing "19" to "25" is not a major amendment.

Mr Greenway: Sorry, it is not a major amendment in drafting terms; the cost is not minuscule.

Mr Flynn: The drafting of it is changing the age from 19 to 25.

The Chairperson (Mr Gildernew): Months ago, you acknowledged that that was a potentially useful amendment and something that you were considering. What have you done since?

Mr Flynn: Putting an amendment forward to the Committee, it will be the same provision, with a number change.

Mr Greenway: We have models for what we think the cost of that increase might be, for instance.

The Chairperson (Mr Gildernew): Then why not give us the draft?

Mr Greenway: With respect, Chair, the draft will be tracked changes to delete Arabic numerals "1" and "9" and insert Arabic numerals "2" and "5". The draft is, perhaps, the least of any of our concerns on that particular example.

The Chairperson (Mr Gildernew): I disagree. What is on the paper matters with legislation. I do not think that we can take it for granted that it will be OK on the night.

Mr Greenway: I accept your comment. At the minute, we have been clear in saying that we are sympathetic to certain changes, that we understand the logic and rationale and that we are minded to support certain changes. The whole thing stands as an entirety, so we have never been in the position to say, "Absolutely, we agree, and this will happen", "That will happen" or, indeed, "This will not happen".

The Chairperson (Mr Gildernew): OK, the Committee will come back to that.

We wrote to you following last week's meeting about some papers, including the draft guidance, being submitted, alongside your briefing, before your appearance today. I appreciate that you indicated at your previous appearance that we would get those papers in four to six weeks. Next week will be week six. Can you confirm that those will be submitted to us by next week, which will be week six?

Mr Greenway: Yes. We are finding the whole process slightly challenging, I must admit. I accept that some of this is due to our departmental process, but we are finding two, three or four letters before any letter comes out, so we are getting repeat requests for things that are within the process in the Department. I know that there have been discussions between the Clerk and the departmental Assembly liaison officer (DALO) about how to streamline the process to make it as effective as possible.

The Chairperson (Mr Gildernew): Will we have the guidance by next week?

Mr Greenway: We will be providing the guidance. I cannot speak entirely for the clearance process that it will need to go through in the Department, but that is our firm intention.

Mr McAuley: The best practice is the priority: the first start in the phase of developing the guidance. The Committee will be aware that the final guidance will be upon enactment, when we can guide on what is actually in the Act. We are, and have been, in the process of commissioning the first draft from the British Deaf Association (BDA). We have received that and circulated it around the other deaf organisations on the sign language partnership group. We are in the process of collating and embedding their responses. We can, and will, send to the Committee the BDA's first draft on best practice and some text on our thoughts on what will be in the guidance, particularly around accessibility, information and services. The guidance itself is a master copy template, which, as you will appreciate, will evolve and be added to as time progresses.

The Chairperson (Mr Gildernew): I will have a final check with members in a minute, but another one that I want to clarify is in relation to clause 8 and regulations under clause 7. Will they be made under the draft affirmative procedure? I know that "affirmative" and "draft affirmative" have been used interchangeably in correspondence in relation to this, so can you give absolute confirmation that they will be by draft affirmative procedure, as the Committee has expressed?

Mr Flynn: Is this the regulations made under clause 7?

The Chairperson (Mr Gildernew): Yes.

Mr Flynn: Yes. Clause 8 sets out the procedure for making those regulations. If the Committee is not happy with that procedure, let us know, but it is affirmative procedure.

The Chairperson (Mr Gildernew): Draft affirmative?

Mr Flynn: It is procedure for making regulations — for laying draft regulations. Clause 8 states:

The Committee Clerk: Clause 8(3) does not cite the procedure. The Committee is asking for clarification that it would be —.

Mr Flynn: I will take that back to the OLC, and we will look at the way in which it is drafted. The intention is that that will be done through the affirmative procedure. If that does not sufficiently cover that, we will look at it.

Mrs Mason: When will we see the draft guidelines?

Mr McAuley: You will see the best practice, with some text around clause 3, by next week. You see there that best practice must be in guidance. We have circulated an initial cut of best practice around deaf organisations. That will evolve as we add comments and amendments from other deaf organisations. We will then share it with Departments. The final version will be embedded in the final version of the guidance at enactment.

Mr Flynn: The best practice guidance in clause 6 is basically what has to go into the guidance. Clause 6 stipulates what has to go into the guidance. We cannot complete the guidance until the Bill receives Royal Assent and those conditions are agreed as to what actually has to be in the guidance.

Mrs Mason: You can still have a draft of it, in order to see what it looks like.

Mr Flynn: We can work on a draft, but it will be a draft based on circumstances that have not been finalised. Until we have the finalised agreement on what has to go into best practice, we cannot finalise the best practice. It will always be a draft until that stage. Also, it is co-designed with the deaf community, so it will be a work in progress right up until that stage. We will not be able to stipulate that anything has to be in the guidance until we know what we definitely have to put in it, which will be when the Bill receives Royal Assent.

Mrs Mason: I understand that, but it would be useful if we could see at least a draft of it. Excuse my ignorance, but I have been burnt before when it comes to draft guidelines for other legislation. I do not want that to happen again.

Is it normal procedure for you to bundle these amendments, rather than take them one by one to drafters? It seems a wee bit strange to me that you will not have a back-and-forth with drafters.

Mr Flynn: It depends on the nature of the amendments. Amending a number from "19" to "25" is not a major issue, but if it were amending a provision in such a way as to take away the whole policy intent of a Bill, you would need to go straight back to the OLC, your policymakers and Ministers. From what we have heard in the Committee, the amendments that we may be considering are not substantial. We are —.

Mrs Mason: You will understand, then, why we are confused as to why there cannot be that back and forth with drafters so that we can see it, if they are not substantial.

Mr Greenway: I think that, at the moment, you have got to clause 4. You have had another run up to clause 4 than you have had on clauses 5 to 14. We recognise the issues that are coming forward. We have talked about some of them this morning. We are in engagement with OLC, so, it is aware, but it is saying that we need to see the full set of what might change here. You have already suggested something when you looked at clause 2 that references clause 11, for instance. The same could apply in reverse: something in clause 11 could take you back to something in clause 2. That would be entirely understandable. We do not want a draftsman to do a set of fine amendments to clause 2, only to then find that something else comes up. You will appreciate that there is a issue of efficacy as well.

The Chairperson (Mr Gildernew): That would just be a redraft.

Mrs Mason: Does the word "draft" not explain that it is a draft and can be changed?

Mr Greenway: There is time, effort and thought involved in each of those. There is also the potential for inadvertent material to be included that does not work within the whole. We have all been involved in Bills that have ended up in a state that nobody liked, for instance. I do not want that to occur with this Bill.

The Chairperson (Mr Gildernew): When you indicated to us that you were also minded to look at such an amendment, had you not considered the complications that you are now telling us that you have encountered?

Mr Greenway: On the age?

The Chairperson (Mr Gildernew): Yes.

Mr Greenway: That amendment is a trivial amendment. It is an important amendment, but, in the text, it is deleting two Roman numerals and inserting two others. That does not concern me. The cost, the policy implications, and how we get approval for those have concerned me. The Clerk talked about changing the wording in clause 8 to copper-fasten a particular procedure. That does not concern me, because a draftsman will do that in his or her sleep to get an Assembly procedure right and properly reflected in the text of a Bill.

Some other things that may intervene across different clauses are giving me more pause for thought.

The Chairperson (Mr Gildernew): Finally, can you clarify the difference between guidance and best practice? I am still not clear about the interplay or the difference between them.

Mr Flynn: This is statutory guidance. There are other areas for which guidance is set out, legislation is made and guidance follows, but those are not set in statute. This is statutory guidance, so it has more effect than other guidance that you may see running about.

The Chairperson (Mr Gildernew): Is that because it is an enabling Bill, Gerard? Is that why it is different?

Mr Flynn: The Bill is much more than an enabling Bill — much more. It recognises the language, places a statutory duty on all public bodies and sets out how that should be implemented and delivered through the guidance. It puts duties on public bodies, and it sets out how those should be delivered through guidance and what those public bodies' responsibilities are, so it is much more than an enabling Bill in that respect.

The Chairperson (Mr Gildernew): What does the best practice bit do that the guidance does not?

Mr Flynn: When we look at guidance, the first thing that we do is go to the deaf community and say, "What is your best practice in dealing with the deaf community?". We need to hear from the deaf community about how it wants to interact and what it feels is the best way to interact with public services. The best practice comes from the BDA on how to interact and communicate with deaf people. That is then embedded as the backbone of our guidance.

Our statutory responsibilities come in above that, but, throughout that guidance, it is the best practice in how to deal with the deaf community that will lead to improvements. We have a capacity issue here. We have only a limited number of interpreters, so when the Bill comes in, it will not change the world overnight. We will have to build capacity in the numbers of interpreters that we have. The best way to do that is to have more interpreters trained and in the system and best practice through guidance so that we are using our resources properly, we are delivering messages to the deaf community on the best way forward —.

The Chairperson (Mr Gildernew): OK. I have got that, Gerard. I have to move on.

Mr Greenway: I just want to clarify that clause 5 requires statutory guidance. Clause 6 says that that guidance is to be best practice guidance, so, actually, we are talking about the same thing. We may have slipped into shorthand when talking about best practice and guidance. It is statutory guidance on best practice.

Mr Allen: Kellie can keep me right on this, because we were Committee colleagues when the gambling Bill was being scrutinised. When we were running through that Bill, the Committee fed back our considerations and deliberations, and then officials came back and clearly said to us, "Yes, the Minister has agreed that we will take forward this amendment". At that point, we may not always have seen the draft amendment. We accept that there is a difference of opinion there, but has the Minister agreed to take forward all the amendments that the Committee is requesting so far?

Mr Greenway: There has been a lot of engagement and discussion, but I cannot say, hand on heart, that I have seen a definitive list of the precise amendments that the Committee is thinking of. Some of them you may have shared in the evidence sessions, and some of them you may still be thinking of. If the Committee felt able to share, for the avoidance of doubt, a definitive list, Andy, we can make sure to advise you fully the amendments with which the Minister has been fully engaged, those that we have mentioned to Minister and those that we have not yet taken to Minister —.

The Chairperson (Mr Gildernew): Iain, we have supplied you with a definitive list for clauses 1 to 4, and you have come back today to say that you have no definitive response.

Mr Greenway: We have given you —.

The Chairperson (Mr Gildernew): That is what we have given you on clauses 1 to 4. The extent of the Bill and the time pressures mean that we have been providing them at the earliest possible stage —.

Mr Greenway: We have come back with a 10-page letter that issued to the Committee yesterday.

The Chairperson (Mr Gildernew): There is no draft amendment.

Mr Greenway: It came to the Committee from the DALO yesterday.

The Committee Clerk: Members have that in their packs.

Mr Greenway: That is our point-by-point response to everything that you raised in that piece of correspondence.

The Chairperson (Mr Gildernew): But there is still no draft amendment.

Mr McAuley: I will just add to that. That correspondence was asking for the Department's thinking on those points. It was not formally commissioning a consideration of amendments. Perhaps we could do that, and, at that point, we could address them formally with the OLC, Minister and the Executive.

To go back to the point —.

Mr Greenway: Sorry, Tommy. For some of them, the Department's view is that we would not support an amendment in certain areas, so I assume that we are not being sought to say what the text of an amendment may look like because we are providing rationale for why we do not think that that amendment would achieve what the Committee is seeking to achieve.

Ms K Armstrong: We have not discussed that yet.

Mr Greenway: I recognise that the material came only yesterday, Kellie.

Ms K Armstrong: No, I know.

Mr McAuley: We know the Committee's thinking, but we have not yet been formally commissioned with the list of amendments that it would like to see added or at least considered by Minister, the Executive and the OLC.

The Chairperson (Mr Gildernew): Where age is concerned, we have indicated clearly the issue about the groups being added on.

Anyway, I want to move on to Kellie.

Ms K Armstrong: I want to go back to the response that you guys provided. At clause 2(1), we suggested removing after "promote" the words:

To be honest, I am behind the removal of that, because I do not think that it is appropriate for the Department to make decisions on what "promote" should mean without deaf people. You said that you are not going to do the amendment to remove that, but if you were to update that to say, "the Department must, along with the deaf community" or with "advice from the deaf community promote", that might be different. I am sorry, guys, but I do not think that those in the Civil Service who are in a Department should be making that decision.

When I have asked people from the deaf community what "promote" means, they say that it involves TV, things in cinemas and billboards — it is how you promote it. What your thinking is and what their thinking is are two completely different things. That is why I thought that that wording:

was not appropriate for the Bill. Is there any way that you might consider that?

The other thing that I want to ask you about is the term "promote". Like the Deputy Chair, I have been burned by Departments using the word "promote" but not defining what it means. That leaves people feeling very disappointed, because, as the Chair said, unless it is spelled out in writing in a Bill, you may as well not have it. Promotion "ensuring the availability of classes" is not promoting deaf culture —

Mr Flynn: It is an element.

Ms K Armstrong: — because the classes are going to teach sign language, not culture. Do you know anything about music and deaf people?

Mr Greenway: This is a sign language Bill; it is not a deaf community Bill. The vires and scope of the Bill are about sign language. The Bill is not about all aspects of deaf culture.

Ms K Armstrong: OK, so —.

Mr McAuley: Clause 2 does not state that the definition of "promote" is to merely make classes available. There are other elements to that.

Ms K Armstrong: I am saying that it does, because I do not see [Inaudible.]

Mr McAuley: If you look at the back catalogue, you see that we are continually told by deaf organisations, including the BDA, that they are encouraged to look at what happens in Northern Ireland. We had an email from the Cabinet Office stating that, at the BDA conference in Birmingham in the summer, it was encouraged to look at what is happening in Northern Ireland because we do things totally differently and better. A lot of that has been driven by the Department, including getting us to this stage and even working with the Committee team to set up 'Bridging the Gap'.

You asked about promotion, so, if I may, I will address out-of-the box promotion. The C21 theatre company is developing a play about Francis Maginn.

Ms K Armstrong: I am sorry, could you say that again? I did not pick it up.

Mr McAuley: Yes. A play about Francis Maginn, the founder of the BDA, is being drafted, developed and put on by the C21 theatre company. Paula Clarke, who is a very well-known local deaf actress, is part of that. We are supporting funding for it. As part of that, we have agreed that we will film a video introduction for audiences highlighting what —.

The Chairperson (Mr Gildernew): Tommy, sorry, I am going to cut in again. I appreciate that. We have acknowledged the work that you have done on the Bill to bring it to this stage and that it is seen as an exemplar. We are dealing with the detail of the Bill now as a Committee, and that is the detail that we are trying to drill into.

Mr McAuley: The Bill does not stipulate that promotion is just about classes, and we are aware of that. Again, as we referenced, perhaps if you are seeking to add that amendment to the list and formally commission —.

Ms K Armstrong: It is about that definition of the word "promotion". As you can appreciate, the deaf community says time and time again that written English is not their first language, so unless the definition of "promotion" is clearly spelled out in the explanatory and financial memorandum (EFM) or in the Bill — I would prefer it to be in the Bill — we will be leading people up a garden path with an expectation that will not be delivered.

Mr Greenway: We have not heard that as directly in our multitudinous engagements with the deaf community, but I absolutely accept that you are hearing it.

Ms K Armstrong: I have. I am part of the deaf community.

Mr Greenway: I absolutely accept that you are hearing that.

Ms K Armstrong: You responded to where the term "the deaf community" is used, and it reads across to clause 11. I do not agree with your response to that, because the Sign Language Bill provides an opportunity to decrease the social isolation of older people living in nursing homes or who are alone at home and have lost their hearing through age or illness, or whatever it might be. However, if we do not include those people in the deaf community, we will not do anything about a problem that has started to become massive for Northern Ireland. While a lot of work is being done for children, I am concerned that clause 11 is not wide enough. Is there any way of extending that so that, for the purposes of the Sign Language Bill, "the deaf community" will include people who need to learn sign language — they do not already use it — in order to play an inclusive and effective part in life here after losing their hearing?

Mr Greenway: I will go back to your previous point, if I may, Chair. We in the Department have debated that, but we have not said yes or no to any proposed amendment; we have given a view. I will not reopen the point, but any amendment is ultimately not in the gift of the Department but of Members voting in the Chamber.

When it comes to the definition of "the deaf community", I stress again that the Bill is a sign language Bill. It is not about deaf culture more generally, although there is a Venn diagram in which those things overlap. Extension of the definition of "the deaf community" in clause 11 is a fundamental policy matter and would certainly need to wash through the Executive. I could not make that decision; I do not think that my Minister could make that decision. It would have profound impacts on the scale of supply infrastructure that is required and on costs etc. It might look like a case of a small number of words adding a sub-subclause to a Bill, but it would have a profound impact.

Ms K Armstrong: I will make you aware that there could also be a judicial review on age discrimination grounds, so let us keep that in mind. If you discriminate against a 60-year-old who does not have a child by not allowing them to go to the classes because they do not have the connection with children, as mentioned in clause 2, people will say, "Hold on a minute, guys. You have written a Bill that is only for families who have a child who is deaf. What about somebody who becomes deaf?".

Mr Flynn: Are you suggesting that there is a discriminatory element and that that is on the basis of age?

Ms K Armstrong: It is based on the fact that the definition of the deaf community includes only people who already use sign language.

Mr Flynn: The definition is the people who use sign language as their first language.

Ms K Armstrong: Sign language can be used by someone who has lost their hearing. They may not have been born deaf, but, later, they no longer have hearing.

Mr Flynn: Sign language would not be their first language in those circumstances.

Ms K Armstrong: I am in the deaf community. When I take out my hearing aids, although I can talk to you, I cannot hear a word that you say, so I need you to speak to me in sign language, but I will not be able to go to the classes.

Mr Flynn: Do you not understand sign language?

Ms K Armstrong: I understand some. I have gone out of my way to learn it, because I know that my hearing will go completely. I have grown up with speech, but the point is this: in not understanding who we are, you are leaving part of the deaf community out of the definition. You are assuming that someone is deaf only if they speak sign.

Mr McAuley: We are not. The Bill was co-designed. We previously explained that the prioritisation of families with deaf children is to tackle language deprivation in the family home and to safeguard the future of those in the deaf community who use sign.

Ms K Armstrong: I am saying to you that there is a whole group of older people out there who have lost their hearing through age, illness or disability. That group is being completely isolated by not being offered access to the classes.

Mr McAuley: Our view is that that does not necessarily have to be dealt with through primary legislation.

Ms K Armstrong: Why put the children into it?

Mr McAuley: For example, sensory deprivation services in the Department of Health deal with people who become deafened. That would be an issue for them to consider. If you become deafened —

Ms K Armstrong: This is the Sign Language Bill. Your response to my previous point was that the words:

stay in the Bill. That is the problem that I have, because the Department of Health does not have to do anything that comes from the Bill: you are only giving it guidance.

I will go back to the guidance. Clause 6 is titled "Best practice to be in guidance" and begins:

It would surely be better to say that public organisations "must consider" best practice.

If that is in statutory guidance, because of what is in clause 3, they can all say that they cannot afford it.

Mr Flynn: I will bring it back to due regard. The words are "have regard", and we are looking at "due regard". All public bodies must have "due regard" to the guidance. If they ignore the guidance, they will have broken their statutory responsibilities.

Ms K Armstrong: They have a get-out-of-jail-free card in clause 3(2)(b), however, which states:

Mr Flynn: No, that is not a get-out-of-jail-free card. They have to follow the guidance. If they have not done a SLAP and looked at practicability, reasonableness and affordability, they have not followed their statutory obligations.

Ms K Armstrong: At the end of it, however, they can say, "That's all well and good, but we can't afford it".

Mr Flynn: If they can justify that decision, having gone through the tests of reasonableness, practicability and affordability, yes, of course that is the case. There will be instances of requests that are simply unaffordable. We have to be pragmatic. We cannot leave affordability out of legislation.

Ms K Armstrong: If anybody else comes to this Building but cannot get in because they are a wheelchair user, a ramp is put in, so not providing translation or sign language —.

Mr Flynn: If I gave you disability legislation —.

Ms K Armstrong: That is what I was going to say: no consequential amendments at all have been mentioned.

Mr Flynn: No, because the Bill has nothing to do with disability. There is no mention of disability or impairment in the Bill. You have to remember that this is a culture and language Bill, and to bring elements of disability into it would actually undermine it. We are talking about a deaf community that uses sign language —.

Mr McAuley: Clause 1 refers to it.

Mr Flynn: Disability and impairment have —.

Ms K Armstrong: When you talk about affordability, are you saying that, if somebody who is deaf wants to have a baby in a hospital, the trust could say, "We have done our SLAP — we have all that — but we can't afford it"?

Mr Flynn: No, it is —.

Mr McAuley: May I come in? At that point, there would already be a contract in place for the health and social care trust. The regional communications support service provides for that.

I can give a practical example of affordability. The Assembly Commission will be listed as a prescribed organisation, so if a deaf signer of BSL or ISL were to say, "I want the Assembly's website translated into BSL and ISL within three months", you would have to consider whether that request was reasonable and practicable. Are there enough interpreters? There are not enough deaf translators, so it would probably fall to interpreters, of which there are not enough. That would cost tens of thousands of pounds. How many pages are on the website? That is —.

Ms K Armstrong: Are you saying that a deaf person is not entitled to know the workings of their government?

Mr McAuley: That is not what we are saying at all

Mr Greenway: No. The Bill says that all those factors have to be taken into account —

Mr McAuley: It is about balance.

Mr Greenway: — and that the balance —.

Ms K Armstrong: The fact that you are leaving deaf people out of the Disability Discrimination Act is staggering. It really is.

Mr McAuley: The deaf community is already included in a number of pieces of legislation on disability, as are people with all sorts of other disabilities.

Ms K Armstrong: How does clause 3(2)(b) tie in with a public body not providing whatever they are not providing because they cannot afford it?

Mr McAuley: Interpreters are one thing. The Bill refers to more than interpreters. As we have said, we are looking at models to deliver interpretation as a more centralised and easy-to-use function for deaf people. There will be other considerations in workforce planning, such as whether to train classroom assistants who are fluent in BSL and ISL. Is that practicable at the minute? No, it may take time. That is why, as you will see in the form of words that we gave, prescribed organisations must keep full documentation, if they refuse a reasonable request for access.

The example that I gave comes from conversations with the deaf organisations. I met representatives of the BDA on Monday, and they said, "We would like to see the evolution of access to websites over time. We appreciate that it is just not practicable to do that now, but maybe an organisation could, as we have, interrogate our top 10 requests for information and provide for that".

Ms K Armstrong: That is why —.

Mr McAuley: It is pragmatic to include that in the round and consider whether it is reasonable, practicable and affordable.

Ms K Armstrong: The Bill will not take immediate effect once it receives Royal Assent. Clause 9 talks about publishing five-yearly reports, but why does it not say about that that, "We expect all public bodies to take cognisance of the Act, and that, by the first five-yearly report, they will their have actions plans in place"? The deaf community and the other people I have spoken to a lot about it have said they do not expect it overnight. After five years, no Department, trust or public body that says that they cannot afford something while knowing that the Act came into force five years earlier would be given any credence in a court. We can take the affordability piece and say, "That is a load of bunkum", because the first part of clause 3 asks those bodies to take "all reasonable steps". I have difficulty with spelling out affordability in the Bill.

The Chairperson (Mr Gildernew): On that discussion, how can the Committee possibly understand the Bill in full without having the opportunity to review the best practice and guidance?

Mr Greenway: We have committed, subject to our approvals piece, to bringing you what we have. The Bill requires every prescribed to explore the guidance before it is finalised. We have not yet commenced the legislation to prescribe organisations to allow them to review the content. We are doing a lot informally in advance of the sign language partnership group, which is a vibrant group forum for Departments and the deaf community to explore and unpack the issues in parallel with the detailed scrutiny of the legislation. Removing the affordability clause is a profound policy matter that would need to go to the Executive, and the parties in the Executive would need to determine their positions.

Ms K Armstrong: To be clear, I am not asking that you remove affordability, but clause 3(1), which says:

already includes affordability. I do not understand why it has to be spelled out in clause 3(2)(b) in the way that it is, because that is flagging to somebody that they can use it as a get-out-of-jail-free card.

Mr Greenway: There are two elements in that, and it is explicitly referenced as:

One element copper-fastens the "no extra cost" to a member of the deaf community, and the second is the affordability question. They provide further details about the elements in clause 3(1):

Ms K Armstrong: I prefer clean legislation, and clause 3(1) could have subsections (a), (b) and (c), with clause 3(2)(a) in place to forget about 3(2)(b), because it is already covered under clause 3(1).

Mr Greenway: That would be a matter for the Executive to consider, and the parties here are represented on the Executive.

The Chairperson (Mr Gildernew): We have to move on, because there are further clauses to consider. I do not understand at this point whether it is the Communities Department or the Executive that is bringing forward the Bill, because that is not the way that it works. In my understanding, after the Committee considers the evidence, if the Department agrees, it needs to see any potential amendments that you will make. The Committee then decides whether it wishes to take forward further amendments, and they go to the Assembly. However, the Department can amend the Bill before it comes back to the Assembly, and we are trying to get to that process.

Mr Greenway: I will take that point away. The Bills that I have previously brought through the Committee have all required that, anything that is of substance, beyond the typographic, has to be an Executive amendment that is submitted to the Speaker or the House. It is not a departmental amendment.

The Chairperson (Mr Gildernew): We will have to explore that.

Mr Greenway: We will take that point away and copper-fasten it.

Mr Allen: The Minister will take the lead on the amendment, but it will have the Executive's approval.

Mr Greenway: Yes.

Mr Allen: It is not an Executive amendment. The Minister takes the lead, but it has Executive approval. It would not be an Executive amendment; it would be a ministerial amendment.

Mr Greenway: Sorry. You are right, Andy, but any Minister could not propose an official amendment, if we can call it that, to a Bill at any stage in the Chamber without Executive approval as appropriate.

Mr Allen: We are arguing about the semantics, but that is the window dressing that goes on regularly behind the scenes.

The Chairperson (Mr Gildernew): Thank you for your attendance today. We probably have more questions than answers now, to be quite honest, and we are conscious of time. Thank you for attending today, and we will come back to you in due course.