Official Report: Minutes of Evidence

The Chairperson (Mr Gildernew): I welcome officials from the Department for Communities to the meeting. We are joined by Iain Greenway, who is from the sign language policy and legislation branch in the Department; Tommy McAuley, who is also in the sign language policy and legislation branch; and Gerard Flynn, who is in the same branch.

Iain, thank you for expediting the response to the Committee's specific requests. We acknowledge that the requests were sent last week and that the responses were received for discussion at today's meeting, which is useful. Do you and your colleagues want to brief the Committee further on ongoing work and on our queries on the Bill before we move to members' questions?

Mr Iain Greenway (Department for Communities): Yes, I will make a few opening remarks, if I may, Chair, and thank you very much.

I want to provide a few updates. The Committee wrote to the Department on 24 November requesting confirmation about a range of documents that it had asked for and when they would be received. We indicated that they would be received by 4 December. My apologies: they arrived only this week due to a range of things in the Department, and, as you would expect, they are all still work in progress, because they will both emanate and work on from the Bill.

I also want to pick up something that I said the last time that I was here. I commented that any amendments to the Bill would require Executive approval, which created some debate and the use of different words. I should have made a distinction between amendments that are technical and/or presentational, which do not, in fact, require Executive approval, and those that seek a change in policy content, for which the Department must seek Executive approval. Therefore, I wish to clarify that point, which is also covered in one of our recent letters that refers to the guidance on legislation. I wish to set the record straight on that matter.

I also want to rehearse that the scope of the Sign Language Bill is for the recognition and promotion of British Sign Language (BSL) and Irish Sign Language (ISL) as languages of Northern Ireland with equal status and for the further development of deaf culture and accessibility of public information services for the deaf community as defined for the purposes of the Bill. It is not the intent of the Bill to improve or replace existing disability legislation.

The Committee wrote to the Department on 2 December to set out its request for amendments and further explanation following Committee deliberations on that date. The Committee requested that the Department's response should indicate that the Department will "accept", "not accept" or "partially accept" the amendments sought by the Committee. The Department has responded to the letter, and I trust that you have had an opportunity to consider that response. Subject to the Committee's confirmation that it is content for the Department to take forward agreed amendments, the Department will instruct the Office of the Legislative Counsel (OLC) accordingly, and the Minister will notify other Ministers in line with the procedures in the legislative guide.

On 3 December, you wrote to us to advise that, in addition to your deliberations on particular clauses, you had considered other issues received in the evidence that, whilst not fitting in certain clauses, are relevant to your consideration of the Bill. You requested an update on those. I advise the Committee that the Department has prioritised responding to the Committee's request for amendments and further information on the Bill's clauses, given the staff resources available in the Bill team. The Department will collate information on the other issues and will aim to get back to the Committee with a formal response before the end of the Christmas recess.

We are, therefore, happy to work through the amendment list, which is the next stage in the legislative process. That will then enable us to update the Minister and to instruct OLC to begin the drafting process so that we can bring things back before your report is drafted.

The Chairperson (Mr Gildernew): Thank you, Iain.

The Committee's potential amendment to clause 7 sought to change the word "may" to the word "must". Will you expand on the reason why you did not feel that you were prepared to look at that amendment?

Mr Greenway: Gerard will speak to that.

Mr Gerard Flynn (Department for Communities): The word "may" gives you options, and "must" means that we must make regulations for those matters. Clause 7 is there to future-proof the Bill more than anything else. We have other provisions where we say that we "must" make regulations for interpretation and training and that we "must" make regulations on the prescribed organisations. It is a normal concept in legislation that you give the option of making other regulations, but you are not statutorily obliged to make them. The word "must" means that you are statutorily obliged to make some regulations for those, and "may" gives you the choice.

The Chairperson (Mr Gildernew): I get that up to that point, but can you give us some examples of regulations that, you feel, may be required under clause 7?

Mr Flynn: We have nothing definitive at the moment, but we are looking at things such as instances in legislation where you have to make a written application, so you may, in future, make regulations in some cases where you can make a sign language application.

We also have the advent of AI and avatars, and it is more than likely that we will have to make regulations about the introduction of AI. There will be positives in that, but there will also be negatives. The Department and the deaf community will look at that, because, although AI can be positive, it is impersonal, and the deaf community has some concerns about that. If movement were to come with technology and stuff like that in particular, we would make regulations so that the positive elements of that technology could be put through and the negative elements would not be throughout it.

The Chairperson (Mr Gildernew): Before I come to members, I want to ask about your rejection of the Committee's suggested amendment to start the five-year period after Royal Assent, instead of after commencement. You have said that you believe that it is better for that to happen on commencement.

The key part is that you have said that commencement will happen very shortly after Royal Assent anyway, so, if that is the case, why not just make that amendment? Is that an indication that you are concerned that there could be a long delay in the commencement period?

Mr Flynn: The intention is that it will be commenced. All clauses of the Bill will be commenced except clause 3, because that places duties on organisations. That cannot be commenced until we have guidance published. Every other clause will be commenced. In effect, you are talking about a day or two, because we will have a commencement order straight after Royal Assent. It is not reasonable to change the Bill for the sake of a couple of days. You are talking about a five-year report being made, so it will make no substantive difference whether it is made in five years and three days or five years and a week.

The Chairperson (Mr Gildernew): You could argue that the other way: if it is not making a big difference, what is the harm? Anyway, I take that as you say for now.

Ms K Armstrong: Thank you very much for coming back to us quite quickly. I know that we were frustrated with you before, but you have returned the requests quite quickly, so the apology earlier, Iain, was not needed.

Mr Greenway: I will take it back, shall I?

Ms K Armstrong: Take that as a win.

Mr Greenway: That is for Hansard.

Ms K Armstrong: I just want to check with you. Clause 2 concerns the Department. We suggested removing the words:

My concern in that was that the Department, while certainly holding the lead, is not the deaf community. Therefore, the "Promotion of interests" needs to be a bit clearer. You have to come back to us on what we have suggested, which was to remove those words and to say that promotion should be done in collaboration with the deaf community.

Mr Greenway: I will let Tommy speak to that. I will just say, as an intro, that the Department absolutely recognises that it is not the deaf community. There are many stakeholders, including the public sector, the deaf community and others etc. The lead Department must not be a cipher that is simply an inbox that sends something automatically to an outbox; there is a set of duties and responsibilities. In that context, I shall let Tommy pick up those points.

Mr Tommy McAuley (Department for Communities): I referred previously to the body of work that the Department has progressed in the absence of a lead deaf organisation or body. Each of the deaf organisations has its own constitution, mission statement and functions. We have stepped into that through our chairing and secretariat of the sign language partnership group, which encompasses deaf organisations and is the vehicle that the Department usually goes through to consult on everything that it does in this area.

We believe that there will be no negative impact from the wording as it is. We have brought in initiatives that in no way, shape or form have not involved consulting the deaf community; in fact, most of what we do realises the concepts that come from the deaf community. That is a positive thing.

Ms K Armstrong: Clause 2(2) concerns the definition of the support. You have rejected our considerations on that. I just —.

Mr Greenway: Sorry, we are just trying to find the right place in our text.

Mr McAuley: Is that on the classes?

Ms K Armstrong: Clause 2(2) is the definition of promotion. You do not believe that that definition is necessary. Has that been discussed with the deaf community? Its idea of promotion and how the term is used generally are different.

Mr McAuley: You are right, but there is not one homogeneous group. You have a multitude of opinions, and, if there were a show of hands, it would reveal different ideas and concepts of promotion. The point that we make, through our chair and the secretariat for that partnership group, is that we have to arrive at an informed corporate decision that is based on all the available views.

With regard to the drafting of the word "promote", it is an accepted premise that the dictionary definition suffices. We are concerned that, if you give a definition of promotion, you might narrow what can be achieved through primary legislation. Our view, the whole time, has been to make it as wide as possible.

Ms K Armstrong: OK. Sorry, I am just going through the list of things that you have given us.

I want to move to clause 3. This is a big one for me. Clause 3(2) mentions "avoidance of doubt". Things have moved on slightly, folks. I am going back to what the Minister said in the House this week on the launch of the disability strategy. He talked about people taking forward the outcomes of the strategy. He basically said that he would look for prescribed organisations not to see this as something for which they should take affordability into account, because they have been aiming to achieve that. Have the Minister's comments in the House changed your opinion on the removal of clause 3(2)(b)?

Mr Greenway: Gerard will speak to that. However, I will say that the Minister cleared this information on Tuesday, which was the day that he spoke in the House. We have no reason to believe that there has been a change of view in the intervening period. Gerard will speak about why we believe that clause needs to remain. If it is specifically about whether the Minister has had a change of heart, we are not aware of any such change of heart.

Ms K Armstrong: It is not so much about a change of heart as about why the Bill specifically highlights affordability.

Mr Flynn: We could have left it as "reasonable", as other legislation, such as the Disability Discrimination Act 1995 — the DDA — has done. "Reasonable" takes account of affordability, as has been said. We have put in other steps. If you look at the DDA, you will see that it states that you have only to make a "reasonable assessment". If you look at what we have put in this Bill, you have to consider whether the request is reasonable, practical and affordable, so the public body will look at three steps in doing this. Under DDA, a public body can establish what it considers to be unreasonable and unaffordable. If we are going to make a decision on this, we are going to say, "We've done everything we can, and the only reason we can't implement it is affordability". It comes down to money. That is not the same approach as is taken under DDA.

In effect, we are putting in additional jumps for the prescribed public organisations to consider. We are looking at the reasonable steps and at whether the request is reasonable, practical and affordable. It extends what is in the "reasonable" case law. If we get a decision that a body cannot provide the service, that will be made on the basis of its being impractical or unaffordable, eventually, or for some other reason. In a DDA-type situation, with "unreasonable", you are just saying that it is unreasonable.

Ms K Armstrong: Yes, but I do not know why, of all the considerations of unreasonableness, affordability is spelled out in that way.

Mr Flynn: At the minute, affordability is probably the least of the barriers. Practical ability is the biggest barrier for us, because we have a limited number of interpreters. We have to take it on that. We want to progress this, so we want to find out the number of times that we were not able to issue a service because it was impractical or the number of times that it was because it was unaffordable. As we move forward in the five-year review, we can look at where the barriers come up.

Ms K Armstrong: That is not what is in the Bill. The Bill states:

It does not say that they have to provide a report when affordability was an issue.

Mr Flynn: No, but the five-year report, which is built into the legislation, will look back over the past five years and see where things have worked and have not worked.

Ms K Armstrong: I just think that clause 3(2)(b) is not required, because it is already covered under clause 3(1) and "reasonable steps".

Mr Flynn: You would then revert to the reasonableness as it sits in DDA. It has been expressed that that is not the best approach to take. We are trying to improve the approach.
about

Ms K Armstrong: It is the only approach that people will have to challenge.

Mr Flynn: There is a challenge under any of these.

Ms K Armstrong: Have any consequential considerations been made of clause 3(2)(b) and its explicitness about affordability and of the impact on anybody who is taking a case through DDA?

Mr Flynn: No. The DDA and affordability -—.

Ms K Armstrong: Reasonableness is in the DDA, so it covers affordability.

Mr Flynn: They are not connected. The DDA is about disability, and this Bill has nothing to do with disability. There is no linkage with disability.

Ms K Armstrong: Hold on. I am a person from the deaf community. I am disabled by the fact that I do not have full hearing. For example, if I go to a benefits office and cannot see the person's face clearly in order to be able to lip-read, maybe meaning that I have to revert to sign language, and I am told that they cannot afford to provide that facility for me, I will go after them under the DDA. You have said that the Bill has nothing to do with the DDA, but, as a deaf person, my only recourse to challenge that decision is to use the DDA.

Mr Flynn: The Bill sets out clearly that it does not interfere with DDA. It mentions all the other rights, so, in the situation that you have described, you could progress a case under DDA, but you could also progress it under this Bill.

Ms K Armstrong: The Bill has nowhere for me to progress it to. Where is there anything about the monitoring and handling of complaints for a prescribed organisation's failures?

Mr McAuley: Each prescribed organisation in the sign language action plan will have to refer to its monitoring and complaints mechanisms.

Ms K Armstrong: OK.

Mr McAuley: On affordability, as we stated in the draft form of words that we intend to include in the guidance, there is an additional duty imposed on prescribed organisations, the intent of which is that they must keep documentation if they have refused to provide an interpreter. In 2025, there should be no need for that. That is the starting point.

On why it is unaffordable, is it due to the size of the organisation? Is there scope or a central contract in place that will remove that as an issue entirely? The Bill will make it clear that the organisation should keep all the documentation connected to the refusal in case there is a challenge. In a sense, the Bill presents an additional duty. Last time, I gave the example of a request for a full website to be translated, citing the Assembly's website. That would be big money, so that is probably unaffordable even for the bigger organisations. That puts it into context. For example, if the Assembly Commission were to say no, because it was unaffordable, its reasons would need to be well documented in case of a challenge. That will be in the guidance.

Ms K Armstrong: They will have that through the "reasonable steps" provision, so why have it in the guidance? The clause reiterates something that is already there.

Mr Greenway: You are right, Kellie. Clause 3(2) states, ""For the avoidance of doubt". It mentions "no extra cost", and it is important to set out that theme in the Bill, as well as convenience. Clause 3(2)(b) expressly mentions "affordability", but it also mentions "practicability". Both elements are enshrined in clause 3(2)(b).

I absolutely take the point that we could rely on case law from the DDA and other legislation on the meaning of "reasonable" in clause 3(1). We have taken the approach of setting it out somewhat further in clause 3(2), and we evolved that approach in combination with the draftsman.

Ms K Armstrong: I am still not convinced, but thank you very much for that.

The Chairperson (Mr Gildernew): I have a couple of points to check with you. Can you confirm whether the three pages of annex A, with the heading "Draft Guidance", is the guidance on which, you advised us, the British Deaf Association (BDA) is working?

Mr Greenway: It has caused some confusion backwards and forwards. We have talked about the clause headings and whether the titles could be made a bit more self-explanatory. Under clause 6, there is what I would portray as more statutory guidance about how a sign language action plan must be created and about what "reasonableness" means, and that goes back to the conversation with Kellie. Best practice is covered under clause 6(1)(b). In the outline document, we have listed the sorts of things that we will see in the guidance under clause 6(1)(a), which are the meaning of "reasonable steps", the development of sign language action plans (SLAPs) etc, and we have given an example of the text. On Kellie's point, there is also a reference to explain how or not it fits with the DDA. The DDA definitions will sit comfortably in there, and the best practice guidance is at the bottom of page 2 of annex A with the sorts of things that we may put in it.

To be honest, the challenge that we have is that the drafts that we saw, which were lengthy — even people in the deaf community said, "This is too long" — stated things such as, "This is how you contact the sign language team in DFC, and this is the phone number". We really do not want that in regulations that have to come to the Assembly; it would make no sense. We are still debating not all the material that the BDA has been developing but how much material will sit on a website that will be promoted, to go back to that term, and how much will be in regulations that need to come through the Assembly. That is the debate that we are having, now that we have seen the full extent of the guidance, which is why we did not want to share the full extent with you, because we think that a lot of it will become public domain best practice. For instance, will the sign language partnership group have its own website on which the guidance would have a neutral home, if you want to call it that, as opposed to having it with all the different groups? Those types of things are at the bottom of page 2 and the top of page 3.

The Chairperson (Mr Gildernew): That is welcome information. The more information we have, the more potential it will have to reassure the Committee and head off amendments. Will we see an updated version of the guidance in the next month, given that we will complete the Bill's Committee Stage in the early weeks of 2026?

Mr Greenway: I recognise that there is a challenge with timing.

Mr McAuley: We have a new member of staff.

Mr Greenway: I doubt that it will be before your report, because of the processes involved. We need to make sure that the guidance is inclusive and that we have not rushed it through with one or two deaf groups in a corner, as others might see it. We have given you what we have in order to give you a flavour.

The Chairperson (Mr Gildernew): OK. Do you have a timeline from OLC for the text of the amendments that the Department agreed to take forward? We would like to have that before our informal clause-by-clause consideration, which will be early after recess.

Mr Greenway: It is a slightly chicken-and-egg situation, if I may say so, Chair. It would be helpful for us to leave here today knowing precisely which amendments we will advise the Minister to instruct the draftsman on and inform other Ministers of. That is why I say that it is a slightly chicken-and-egg situation, given the nature and extent of the amendments in drafting terms. Our intention is to put a submission to the Minister this afternoon or tomorrow containing the agreed list of amendments seeking his approval to instruct the draftsman to draft the amendments and for him to send a letter to Executive colleagues. If it is the list that we think it is, that is a small matter, although I am in no way belittling the focus that the draftsman must put on that. The list may be different from what we came in here with, however, so it would be helpful to leave here understanding the list as it stands.

We want you have the text, and the legislative guide states that we need to get you that. There is nothing in here that needs to engage the Executive, except for information purposes and not for approval purposes. We want to get it back to you. We know that you have a deadline of the middle of February by which to finish your report, and it needs to be fully informed by a tracked-changes version or however one might describe it.

The Chairperson (Mr Gildernew): OK. I will touch on annex B, which contains the list of prescribed organisations. We appreciate having sight of the initial list. We have some concerns about the organisations performing public character roles. Care homes have been raised as an example, as were other organisations when you were before the Committee previously. Does the Department have an update on where it is with that part of the list?

Mr Greenway: That part of the list is, in a way, reasonably straightforward. Due diligence absolutely needs to be done on it. As the note states, we are looking at how to future-proof it a bit by, for example, referring to "all Northern Ireland Departments" rather than listing them, given that they adjust over time. That is reasonably straightforward, and we need to do that quickly. As Gerard said, as soon as the Bill is enacted, we want to make the regulations so that we can engage with those bodies in order to get the guidance done. The processes roll on from each other.

We are aware of the public character issue. We have a potential question about some parts of the education sector, if I can put it that way, and care homes. We have not yet had definitive engagement with the Department of Education on the first element, and we recognise that the Committee has been asking about it for some time. We have not yet had definitive engagement with the Department of Health on the specific matter of care homes. I am looking at Tommy.

Mr McAuley: Initial feedback from the Department of Health was that the Regulation and Quality Improvement Authority (RQIA) and health and social care trusts will provide governance management for care homes. It is content with that at the moment, but I can put your concerns to it. The initial thoughts of colleagues in the Department of Health were that that would be done by the RQIA and Health and Social Care (HSC), particularly for homes that are publicly funded, of which, of course, the RQIA has oversight.

Mr Greenway: I am conscious of that — it may be the point that Kellie is looking at — because I have been looking at care homes with my wife and my mother-in-law. Some are run by the trust, which would fall under the legislation, and there is one around the corner that is privately run but many of its residents are funded by the trust. I absolutely get that point. The RQIA is making sure that care homes carry out health and related matters to standard; I will use that language. Sign language provision may or may not be embedded in that. For me, that is an area that still has some wrinkles that need to be ironed out.

We are at the stage at which regulations will need to be brought forward. In the proposals, there will need to be regulations that are subject to the draft affirmative procedure, which would allow debate in Committee as well as in the Chamber on things that are not in there, just as much as on things that are in there.

That, Chair, is a long-winded way of saying that we are still engaging with the relevant Departments, which appear to be the Department of Education and the Department of Health. At this stage, we are not aware of any other Departments being in play.

The Chairperson (Mr Gildernew): The RQIA is on the list, but the Northern Ireland Social Care Council (NISCC) may not be, and it may be fairly relevant.

Mr Greenway: My eye has just alighted on the Northern Ireland Social Care Council in the middle of the list.

The Chairperson (Mr Gildernew): OK.

Mr Greenway: The Regulation and Quality Improvement Authority is in there. We need to check the legal names of all the organisations. For instance, I know that "National Museums NI" is "Museums and Galleries Northern Ireland" in law, hence the need for us to do that piece.

Mr Flynn: If any public bodies are left out, we can add them quickly by way of the negative resolution procedure. We need to dot the i's and cross the t's before we make regulations concerning public functions.

The Chairperson (Mr Gildernew): For information, I have been advised that there is a typo where the NI Assembly Commission is listed.

The Committee Clerk: Yes. The word "Northern" is missing an "e". Just after the Ambulance Service Trust.

Mr Greenway: I would like to say that we put in something to make you check the list, but I cannot get away with that. Yes, you are right.

The Chairperson (Mr Gildernew): There is one for you for free.

Mr Flynn: I make the point that the documents are just drafts.

The Chairperson (Mr Gildernew): Absolutely. We point it out to be helpful, not to be critical.

Ms K Armstrong: Very quickly, given that we have mentioned the RQIA. I appreciate that you will bottom out some of this stuff. I am thinking of the RQIA's role: what will it be? Is it just to ensure that, say, a care home complies with the Bill, or will it provide training?

Mr Greenway: The RQIA is listed as a prescribed body, which will mean that, in its offices or its engagements, it needs to comply with its sign language action plan and the regulations that we make. That is subtly different from its role of oversight of a mixed bag of institutions of public character in the public sector etc. It is about its work. Gerard talked about the Period Products (Free Provision) Act 2022. Were the RQIA on the list for that legislation, it would be about whether it had free period products available in its offices; it is nothing to do with the areas that it regulates.

Ms K Armstrong: Under the Bill, the RQIA will have no activities to promote sign language to service users?

Mr Greenway: No.

Mr Flynn: Any prescribed organisation that creates a SLAP will be more than welcome to include a line about promotion. We are not saying that it has to. One of the things that we want to do is to improve access. It is not always a yes or no answer; it is about how we can do this better. That has to come across in the guidance as well. We have the practical ability to improve interpretation, but we want to change how we approach that. That may involve communicating to deaf people at an earlier stage so that we can get in interpreters when they are needed. Those are the little nuances that we can add to our delivery throughout the public service. It is about changing how we approach everything for sign language users.

Ms K Armstrong: May I double-check that, rather than having it in the Bill, the delegated powers memo will make it clear that those organisations can include ways in which to promote sign language in their SLAP? When it comes to care homes, the RQIA can comment on isolation and on things that can happen to people. If the RQIA wanted to promote sign language for the customers of care homes, that would fit well. Will that be built into the guidance?

Mr Flynn: That is at the core of the guidance. You can look at it as having a yes or no answer: with social security, the approach is that you are entitled to it or you are not entitled to it. We are looking at how we change the dynamics, change how we approach things and change how we communicate with deaf people. The good thing about the guidance is that, where we identify improvements, we can roll them out through guidance to everywhere. It is about building relationships with the deaf community, and that is as important as affordability, practicability and reasonableness. We need to change the landscape.

Mr McAuley: It is also one of the drivers for best practice in guidance, which will be embedded in each SLAP. If the RQIA develops one, it will include best practice for promoting how to deal with deaf signing residents, which is not in there at the moment.

Ms K Armstrong: And those who need to sign. I am just thinking about future planning. It is about the promotion of the use of —.

Mr McAuley: Just as COVID hit, we had partnered with the Royal National Institute for Deaf People and other voluntary organisations to fund a scheme in nursing homes to promote deaf awareness and basic signing and how to interact with isolated residents. That was moved online as a result of COVID. There are ways and means of doing that. That was a pilot exercise. That is the sort of thing on which best practice can build. Each of the prescribed organisations can embed that in its SLAP. It also removes the administrative burden of listing 450 nursing homes, which may or may not have deaf residents. It is a practical solution to a difficult problem.

Ms K Armstrong: Are we being open enough? Will the Bill deal with people who do not yet use sign language but may need to rely on it?

Mr McAuley: A big part of what we have done and what we have funded down the years has been deaf awareness and sign language awareness. The two go hand in glove.

The Chairperson (Mr Gildernew): OK. No other member has a question, so thank you for attending today.

Mr Greenway: Chair, is it possible that we can leave the meeting understanding what we are commissioning OLC to do?

The Chairperson (Mr Gildernew): We will discuss that after you leave. We will clarify that and send it to you.

Mr Greenway: The sooner, the better. The Minister's box closes next Tuesday until after recess, so we have —.

The Chairperson (Mr Gildernew): Let us not open up old wounds, Iain. We will get it to you —

Mr Greenway: We moved quickly. You kicked, and we moved.

The Chairperson (Mr Gildernew): — in a swift fashion. You are even welcome to watch the meeting on television.

Mr Greenway: My colleagues are doing so. Do not worry. [Laughter.]

The Chairperson (Mr Gildernew): We will see whether we can get you a TV out in the corridor.

Thank you for that, and thank you for your work on the Bill. I wish you and your families a very happy Christmas.

Mr Greenway: And to you and yours.

The Chairperson (Mr Gildernew): We look forward to seeing you again after Christmas. Thank you.

Mr Greenway: I dropped my pen lid. My apologies. It is somewhere down here. There it is.

The Chairperson (Mr Gildernew): Do not be hiding, Iain. We know that you are still there. [Laughter.]

Slán go fóill.