Deaf News: Deaf campaigners take Government to court over BSL access to Covid briefings

The UK Government was taken to court today, after Deaf campaigners challenged its refusal to provide a British Sign Language (BSL) interpreter for its briefings on the coronavirus pandemic.

The judicial review, held on Wednesday, concerns two scientific briefings held in Downing Street towards the end of last year, which came without BSL interpretation.

The current arrangement – while not evidenced in writing or a contract – sees the BBC offer sign language on the BBC News Channel and iPlayer via an in-vision interpreter, but only for ministerial meetings chaired by members of the Government.

In a statement to The Limping Chicken in September, a BBC News spokesperson said: “We do not provide BSL for parliamentary events or other news conferences but all our live TV news output is subtitled.”

This meant that the two data briefings in question, held on 21 September and 12 October, were not BSL interpreted – with Deaf campaigners alleging that the Government broke the Equality Act as a result.

In her opening arguments in the hearing, Catherine Casserley – who represents claimant Katie Rowley in the case – told Mr Justice Fordham that an on-platform interpreter is about “inclusivity”, with it being the “closest you can get” to the standard offered by the Government to the public at large.

“Someone took a decision to hold those data briefings [which are] not covered by the arrangement with interpreting company RedBee. There were not specific enquiries made in relation to the specific limbs of the [Public Sector Equality] Duty,” she went on to add, before describing the issue of a lack of a sign language interpreter as an “ongoing issue”.

• Read more: #WhereIsTheInterpreter – the story so far

Court documents released to this website revealed that the Government conducted an equality impact assessment (EQIA) on 28 May 2021 – the same day that the Cabinet Office responded to a request from The Limping Chicken to say they had not carried out such an assessment for the No 9 briefings.

It follows news published by The Limping Chicken in August, which found that the Government failed to conduct an EQIA for its press conferences in No 10.

While not mandatory under the Equality Act, the assessment can help a public authority to prove that they have met their obligations under the Public Sector Equality Duty mentioned in the legislation.

However, the Government’s EQIA from last month was criticised by Casserley, who referenced a comment from Ofcom that “for native BSL users subtitling is not a direct substitute for BSL interpretation”.

She continued: “The information is already there – and the author of the EQIA does not appear to have even attempted to find it, let alone consider that further information as to the extent to which BSL was required be obtained.”

Lawyers representing the UK Government have contested the judicial review, previously claiming that the legal challenge is “academic” and “serves no practical purpose”.

Beginning her response to the case, Zoë Leventhal said: “The Government is fully committed to ensuring the accessibility of its communications [during the pandemic] and it has taken a range of steps to do so.

“British Sign Language has been an important part of that.”

As part of her argument, Ms Leventhal claimed that the data briefings were announced and organised at “short notice”, but that they “did not include essential information”.

This was challenged by Mr Justice Fordham, who asked why they were conducted at short notice if they weren’t important, to which Ms Leventhal couldn’t provide an answer.

Referring to the terms ‘substantial disadvantage’ and ‘reasonable adjustments’ listed under the Act, the Government lawyer said that the “correct group” to discuss in relation to this area is “the hearing impaired as a whole”.

Ms Leventhal also argued that there was not substantial evidence that Katie could not access the subtitles provided for the briefings, and invited the judge to reject that the data briefings put Katie at a ‘significant disadvantage’.

She described Katie’s evidence in relation to her ability to understand written English as “incomplete” and “exaggerated” – concerns which Ms Casserley writes came with “no basis” and are “merely suppositions based upon its ignorance of BSL and the means by which Deaf individuals have to operate in a hearing world.”

They also take issue with the claim that Katie can’t understand subtitles as a Deaf BSL user.

“The Claimant has described her occupation as including that of a writer […] This evidence is […] inconsistent with the Claimant’s evidence that she cannot understand subtitles.” pic.twitter.com/Wl4BMMtqZc

— Liam O'Dell (@LiamODellUK) June 16, 2021

The Government lawyer’s comments about Katie’s ability to understand subtitles is also referenced in her skeleton argument, with the document reading: “The claimant has described her occupation as including that of an author; she engages in written exchanges online and refers to writing screenplays during the pandemic.

“This evidence is, on the face of it, inconsistent with the Claimant’s evidence that she cannot understand subtitles.”

In addition to being Deaf, Katie is also dyslexic and has a visual impairment.

Ms Leventhal also writes that the Government’s reliance on the BBC to provide BSL interpretation is “plainly reasonable and proportionate”, adding that the national broadcaster has “significantly more experience than the Government in broadcasting and providing BSL”.

The full hearing took almost seven hours, with the session taking place over Microsoft Teams due to the current coronavirus pandemic.

Commenting on the day’s events, Chris Fry – the solicitor representing Katie in the case – said the hearing went “as well as it possibly could do” and he’s “optimistic”.

“All of the evidence that we used was properly understood by the judge [and] he seemed to engage with the key points. There were some important concessions made by the Government […] including that there is nothing that they could show in terms of the in-vision interpreter being better than the on-platform interpreter that we’ve been advocating.

“The Deaf community – apart from being remarkable to the extent the way they’ve pulled together to help provide evidence […] and crowdfund for the case – have also been part of a fairly unusual pilot of open justice.

“It’s been an important day,” he said.

Asked what Deaf people can take away from today’s proceedings, Mr Fry went on to add that campaigners have now “guaranteed that the Government is not going to take provision of BSL interpreting lightly again”, and that it has made the language “more visible” at a government level.

Mr Justice Fordham reserved judgment on the case, instead giving both parties until the close of play on Friday to provide any further evidence on points made.

Judgment will then be made confidentially for counsel to comment and discuss any potential order, before a formal judgment is released into the public domain.

Live coverage from The Limping Chicken‘s Liam O’Dell can be found on his Twitter account.

Photo: Chris Fry.

By Liam O’Dell. Liam is a mildly deaf freelance journalist and campaigner from Bedfordshire. He wears bilateral hearing aids and can be found talking about disability, theatre, politics and more on Twitter and on his website.

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Update – 17.06.21: In an interview with the Royal Association for Deaf people, Lynn Stewart-Taylor, founder of the #WhereIsTheInterpreter campaign, said the judicial review hearing was “really, really challenging”.

“Our barrister gave cracking evidence [and] Chris spent ages providing a huge bundle of evidence.

After yesterday's Judicial Review, we held an exclusive interview with Lynn, founder of the #WhereIsTheInterpreter Campaign and Chris, who has led this legal challenge, who gave us their reaction.

Full video: https://t.co/pD4ZckTXFO#WhereIsTheInterpreter #WITIJudicialReview pic.twitter.com/CymLXWT1hg

— Royal Association for Deaf people (@royaldeaf) June 17, 2021

“It’s been a very emotional day. Sometimes I was really elated and other times I felt quite disappointed and despondent.

“Obviously we had to hear evidence from both sides, so that proved to be a bit of a challenge. However, we still don’t have a decision,” she said.