Liam O’Dell: #WhereIsTheInterpreter – what happens next?

16 months later, the UK Government’s failure to provide an in-person British Sign Language (BSL) interpreter for its coronavirus data briefings has been ruled illegal by the High Court, who said it amounted to “discrimination” under the Equality Act 2010.

So, once we’ve finished drinking our celebratory beverage of choice and our wrists have stopped aching from all the Deaf applause, many may be wondering: now what? What’s changed?

I’ve explained this to a few folks on Twitter already, and will repeat it here now (except this time with a stronger disclaimer that I’m not a lawyer) but it’s important to view today’s case in two parts: the ‘then’, concerning the two scientific data briefings held in September and October last year; and the ‘now’, regarding the UK Government’s provision of an in-vision interpreter on the BBC News Channel.

It’s the ‘then’ which has been found to be illegal under equality law. The ‘now’, meanwhile, is a little more complicated.

Firstly, Mr Justice Fordham said that the present arrangement is not in breach of the Equality Act. This because a Government equality impact assessment, provided one working day before the deadline for their skeleton argument to be submitted, “is a rigorous evaluation which recognises the features of the statutory duty and which cannot, in any material respect, be said to be a failure of ‘due regard'”.

In other words, the assessment acknowledged the Government’s legal duties and didn’t demonstrate a lack of “due regard”, a term mentioned in the Equality Act around the Public Sector Equality Duty.

That ‘due regard’, as defined by the Equality and Human Rights Commission, means that “in carrying out all of its functions and day to day activities, a public authority subject to the duty must consciously consider the needs of the general equality duty: eliminate discrimination; advance equality of opportunity and foster good relations.”

The next point is that while the judgment essentially means that the current provision of an in-vision interpreter is sufficient, as a choice between two “reasonable alternatives” (meaning that both in-vision and on-platform are two suitable options), the judge did express a preference for on-platform interpretation.

“In principle, on-platform provision of an BSL interpreter ‘approximates’ the accessibility of Deaf BSL users to the provision of information in the Briefings ‘more closely’ to the accessibility enjoyed ‘by the rest of the public’, being closer to the standard of access normally offered to the public at large. 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,” Justice Fordham writes.

So, as a handful of people have asked me already today: does this mean that the UK Government has to provide an on-platform interpreter for all press conferences going forward?

Short answer: no. As the above comments from Mr Justice Fordham suggest, both in-vision and on-platform are, in some respects, ‘equal’ in that they’re both “reasonable alternatives”. The judge just believes that an on-platform interpreter provides a level of access similar to that enjoyed by the rest of the public, in contrast to the current approach of having the BBC display an in-vision interpreter.

As such, the Government can very much continue with their current approach of an in-vision interpreter, but that doesn’t mean they can’t be challenged on it going forward.

After all, read the above paragraph from Mr Justice Fordham again. He basically says that on-platform provision is better, “subject to questions of reasonable practicability, and questions of what is reasonably possible”. There’s no denying that these questions may arise again in the future, and such is the joy of the courts, legal experts will be debating over the appropriate answer.

In his judgment, Mr Justice Fordham appears to be swayed by a “substantial problem” in relation to “general accessibility and data slides” during the briefings.

“The evidence shows how those slides look in-screen: occupying the full screen, with the speaker and platform no longer in picture. The evidence also establishes a clear pattern of the high prevalence of the use of data slides in the Briefings.

“As I have explained, data slides were used in Briefings from 30 March 2020; and by 5 June 2020 slides and datasets had been used and published in conjunction with some 67 of the 79 Briefings which had taken place. The pattern continued.

“Data slides were used at the two Data Briefings which are the focus of the ‘then’ part of this claim. The PSED Assessment explains that data slides are “presented ‘in screen’”, which is a step taken “for clarity”. The point is, powerfully, made that ‘filming the slides on a screen with an interpreter stood next to them’ would involve ‘making the slides less clear’,” it reads.

So what this leaves me with is this: data-heavy press conferences won’t last forever. Hopefully, at some point, we’ll be past this pandemic and, some might say unfortunately, we’ll have the standard briefing with Boris Johnson behind a lectern. The Government’s reliance on the data slides will no longer carry as much weight.

As Chris Fry, the solicitor representing Katie Rowley in this case, says: “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.”

Therefore, if it continues to rely on in-vision interpreters, especially in a world without social distancing, then it could set itself up for another legal challenge.

Last week, Lynn said that it’s important that all Deaf people “get involved” in BSL Act Now, a campaign run by the British Deaf Association which calls for BSL to be granted legal status. After today’s victory, the case for more Deaf rights has gotten that bit stronger.

It was revealed in June that Labour’s Rosie Cooper had presented a BSL Bill to Parliament following her success in the Private Members’ Bill ballot, with a second reading due to take place in January.

Photo: Ollie Cole.

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.