BREAKING: UK Government broke Equality Act by failing to provide a BSL interpreter for COVID data briefings, judge rules

The UK Government breached the Equality Act 2010 when it failed to provide a British Sign Language (BSL) interpreter for its scientific briefings on the coronavirus, a judge has ruled today.

The judgment, made by Mr Justice Fordham, is  a victory for Deaf campaigners, who have called on the Government to provide an in-person interpreter for its press conferences since March last year through the #WhereIsTheInterpreter campaign.

In the ruling, Justice Fordham writes: “It is hereby declared that: The Defendant discriminated against the Claimant, within the meaning of s.21(2) of the Equality Act 2010 and contrary to s.29(2), by reason of a failure to make reasonable adjustments (in breach of s.20(5)) in respect of the absence of British sign language interpretation for the broadcast of two data briefings which took place on 21 September 2020 and 12 October 2020.”

This is a breaking news story. Stay tuned for further updates.

Photo: 10 Downing Street/Flickr.

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

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Update – 28.07.21 – 14:00: In his judgment, Mr Justice Fordham said the case brought forward by Katie Rowley, the claimant, concerned two questions – “was the absence of any BSL interpretation for the Data Briefings on 21 September and/or 12 October 2020 discrimination”, and “is there any present or continuing breach of the [Public Sector Equality Duty] and/or the reasonable adjustments duty”.

Both the PSED and reasonable adjustments duty are covered in the Equality Act, and Mr Justice Fordham’s questions also included what the court should do regarding remedies if it was found that such breaches had occurred.

The Government had previously contested the judicial review by claiming that the case was “academic”. However, Justice Fordham said that although the matter is “historic”, it is not “academic between the parties”, adding that the second question (mentioned above) “raises present, live issues of controversy”.

He also agreed that the briefings from the Government are a “distinctive ‘service'” in relation to the Equality Act.

Justice Fordham then moved on to pose the question, “unless there is provision for BSL interpreters, would Deaf people who use BSL be put at a more than minor or trivial disadvantage in comparison with persons who are not disabled, regarding the provision of information in an accessible format in relation to the Briefings, if delivered with no aid or service providing extra support or assistance to people with disabilities”, to which his answer was “yes”.

“They would be put at such a disadvantage, whose nature and extent are serious.

“The very nature of the Briefings was to provide information to the public. That information related to a subject matter of the greatest public interest and a vital concern: the pandemic.

“That was true of each of the two Data Briefings (21.9.20 and 12.10.20). They were important. They were focused on objective data.

“They were led by Government scientists. In the context of the pandemic, the circumstances were unprecedented and challenging for Government; but they were also unprecedented and challenging for the public, who needed access to information, to help them to understand and to adhere and to manage their conduct and expectations for the future.

“Messages or alarm or reassurance, about being ‘in this together’ and acting responsibly, about ‘following the science’, required inclusion and accessibility. This was information being supplied to the public by Government,” he wrote.

The judge went on to add that there was a “clear barrier” without BSL interpretation, causing the message to be “blocked, or scrambled, or delayed”.

“The barrier to information in an accessible format arose by reason of disability. The lack of provision – the provision of subtitles only – was a failure of inclusion, suggestive of not being thought about, which served to disempower, to frustrate and to marginalise,” he said.

The Government’s barrister, Zoë Levanthal, previously invited the court to reject that the data briefings put Ms Rowley at a “substantial disadvantage”, because there was no substantial evidence that she could not access the subtitles available.

Yet Mr Justice Fordham writes in his judgment: “The idea that ‘subtitles are an answer’ amounts to ‘a stereotypical opinion or feeling about individuals who share a protected characteristic … formed without proper knowledge of people with that protected characteristic’ and thus constitutes ‘prejudice’.”

He continued to note that a “serious underlying problem” was that the agreement between the BBC and the Government from 16 March was part of an “undocumented informal arrangement”. 

“In the context of the Briefings Government did not have – and could not have – visibility and clarity, as to what the BBC BSL interpretation would cover, nor as to any ‘warning’ if a gap arose.

“Government did not and could not know whether the BBC’s BSL interpretation arrangement would or would not continue, or keep step with the evolving nature and pattern of Briefings. As Ms Leventhal accepts, Government and Mr Heneghan did not know whether or not there would be BSL interpretation for the two Data Briefings,” Justice Fordham said.

Another aspect of the Government’s argument concerned Ms Rowley’s position as an author, and that her evidence in relation to her ability to understand written English was “incomplete” and “exaggerated”.

The judge, meanwhile, accepted Ms Rowley’s evidence that she could not access the subtitles for the data briefing.

“The Claimant’s undisputed ability to upload written English for a book cover […] or in tweets, and however laboriously, does not begin to sustain a conclusion that the Claimant could understand subtitles appearing at speed on a screen to describe technical matters in a Data Briefing.

“On that basis, in my judgment, she has discharged the burden of demonstrating detriment,” he said.

He went on to add that Ms Rowley is, “in principle”, entitled to a “declaration that the Defendant discriminated against her, by not complying with the reasonable adjustments duty, through the failure to secure the provision of any BSL interpretation for the Data Briefings”.

The issue of monetary damages, Justice Fordham said, would be directed to the county court for judgment.

While the judge accepted that the failure to provide an interpreter for the two data briefings amounted to discrimination, he concluded that the Government is “not in current breach” of the PSED with briefings since, and there is “present compliance” with the duty to make reasonable adjustments.

“If I were to posit the formulation least favourable to the Claimant, it would be this: ‘Unless there were provision for on-platform BSL interpreters, but bearing in mind the provision of in-screen BSL interpreters and subtitles, would people with a hearing impairment be put at a more than trivial disadvantage in comparison with people not having a hearing impairment, in relation to the Government provision of information about the pandemic.’

“My answer to that question would still be ‘yes’ […] but I would no longer use the word ‘serious’ to describe the nature and extent,” he wrote.

He continued to say that the “substantial disadvantage” of being unable to access BSL interpretation for the briefings, is “effectively overcome by the in-vision provision”.

Mr Justice Fordham also said that an on-platform interpreter “approximates” accessibility for BSL users “more closely” to the access enjoyed “by the rest of the public”.

“Subject to questions of reasonable practicability, and questions of what is reasonably possible, on-platform provision better promotes the legislative policy and in-screen provision is a ‘lesser’ step,” he said.

Despite this, Mr Justice Fordham said that the choice between in-vision and on-platform interpretation is “a choice between ‘reasonable alternatives'”, and the decision to have an on-platform interpreter is a policy choice for the Government to make.

A BSL version of a briefing note from Fry Law about today’s judgment can be found on the Royal Association for Deaf people’s  (RAD) YouTube channel.

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Update – 28.07.21 – 14:57: Deaf charities, politicians and campaigners have since responded to today’s victory in court, with Lynn Stewart-Taylor, founder of the #WhereIsTheInterpreter campaign, saying in a Facebook video that she is “delighted”.

“I want to thank Fry Law […] for working with us to see what’s happening in our community through discrimination and inequality over many years.

“I want to thank you all for your amazing support. Without you, this wouldn’t have happened.

“The judge agreed we need change. It means the Government, in the future, first need to think about, ‘where’s the interpreter’?

“I hope this day [shows] us: we can do this. We can challenge. The support is there,” she said.

Ms Stewart-Taylor mentioned that she will also be interviewed by DeafCOG (Deaf Cultural Outreach Group), alongside Ms Rowley, in a Facebook livestream at 7:30pm.

Meanwhile, James Watson-O’Neill, CEO of the Deaf health charity SignHeath, said in a statement: “SignHealth would like to say a huge congratulations and thank you to Katie Rowley and Lynn Stewart-Taylor for the #WhereIsTheInterpreter campaign and for their dedication and persistence. We are stronger together!  

“Thanks too to Fry Law and RAD for all the hard work they have done to support the campaign. It is important that Deaf people have equal access to public health announcements and briefings. This verdict requires positive action going forwards. 

“All of us at SignHealth are delighted with this result and hope that the case raises awareness and removes other barriers to health for Deaf people.”

Richard Kramer, Sense’s Chief Executive, said today’s verdict is a “vital step forward” in making sure “information is accessible for everyone”.

“The government briefings were essential to know what was going on and how to keep safe, but were not accessible to thousands of people who use British Sign language as their first language. 

“Katie, and everyone behind this campaign, have done an incredible job, not just at securing this result, but raising awareness of the need for accessible information, which can rarely be as important as during a global pandemic.”

“We hope that this will now lead to the government reviewing its provisions for disabled people to ensure that they have the same access to information as everyone else.”

Craig Crowley, CEO of Action Deafness, tweeted: “Wonderful news! Certainly this is a step in the right direction […] Campaigners and supporters are to be warmly congratulated for their gallant and persistent efforts to get there!”Elsewhere, Labour’s Shadow Minister for Disabled People, Vicky Foxcroft MP, wrote: “This is a brilliant win for disabled people. Sadly yet another example of this government just getting it wrong and not listening to disabled people.

“This should never have gone as far as the courts, shame on the government for not acting sooner.”

Marsha de Cordova MP, the Shadow Minister for Women and Equalities, added: “Glad that disability campaigners see a glimmer of justice today, this is just the tip of the iceberg of the discrimination faced during the pandemic.”

Fry Law, RAD, Katie Rowley and Number 10 have all been approached by The Limping Chicken for comment.

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Update – 28.07.21 – 15:16: The Cabinet Office has issued its response to the ruling, with a spokesperson telling The Limping Chicken: “We are pleased that the court ruled our policy of using on-screen British Sign Language interpreters was lawful during the pandemic.

“Our priority has always been to reach the largest possible audience with important public information and we will continue to ensure that British Sign Language interpretation is made available during COVID 19 briefings.”

They did not comment on whether they would appeal the judgment.

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Update – 28.07.21 – 16:05: The Royal Association for Deaf people has described the court’s decision today as a “landmark moment in deaf history”.

“The Court has indicated that an on-platform Interpreter is the best and most inclusive solution for almost all circumstances moving forward and we hope that the Government adopts that logic, bringing it into line with Scotland, Wales and Northern Ireland.”

Mr Fry concluded by paying tribute to Ms Rowley, who “had to handle the pressure of being claimant in this case whilst pregnant”, Ms Stewart-Taylor and RAD, who “worked through weekends and late into the evening to provide us with important evidence”.

“I would also like to thank Cathy Casserley for her expert work and Financial & Legal Insurance for supporting Katie’s claim,” he added.

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Update – 29.07.21 – 09:30: Commenting on the case, claimant Katie Rowley said: “I’m pleased with the outcome of the case, sad we’ve had to fight for it instead of being listened to. I’m in awe of the legal team and would like to thank Chris and Cathy.