Failure to provide BSL Interpreters for Data Briefings was Unlawful Discrimination

Briefing Note on the Judgment in the Judicial Review

Rowley v The Cabinet Office

 

The Cabinet Office discriminated against Katie Rowley by failing to make reasonable adjustments (in breach of s.20(5)) in respect of the absence of British sign language interpreters for the Briefings held on 21 September 2020 and 12 October 2020.

Ms Rowley was represented by Chris Fry of Fry Law, and Catherine Casserley of Cloisters Chambers.

  1. This is a note of the judgment which was given by the Court on 28 July 2020. The Judgment can be found here: Rowley CO 4740 2021 Fordham J approved judgment for 28.7.21
  2. Katie Rowley claimed that she had been subjected to discrimination when there were two data broadcasts on 21 September and 12 October 2020 without BSL interpretation. She claimed that there should have been on platform BSL interpreters as that was the only inclusive way of providing the service. She also claimed that the government had breached its public sector equality duty.
  3. The Court had considered the case in two different phases (see paragraph 10) – phrased as “then” and “now” issues:
  4. First (‘then’): the position as at 21 September 2020 and 12 October 2020 when no BSL interpretation was provided at all for the two Data Briefings.
  5. Secondly (‘now’): the current position as to the non-provision of on-platform BSL interpreters for Briefings.

 

Headlines

 

  1. At paragraph 59 of his Judgment, Mr Justice Fordham confirms that Ms Rowley has succeeded in establishing that the Cabinet Office discriminated against her as follows:

 

“(Q1) The absence of any BSL interpretation for the Data Briefings on 21.9.20 and 12.10.20 constitutes discrimination against the Claimant by reason of breach by the Defendant of the reasonable adjustments duty. (Q1A) The Court should make a declaration to that effect and transfer assessment of the quantum of damages to the county court.”

  1. In relation to the second issue , (Q2) Court found that, although the provision of an on platform interpreter was the more inclusive solution, the Defendant did not have to provide one in these circumstances because it had shown, given the frequent use of Data slides that it had taken reasonable steps by providing in vision interpreters.

 

Key matters

 

  1. The Judgment contains various points of relevance to Deaf and disabled people, reasonable adjustment claims and the law in this field, as set out below:

 

Summary of the BSL language and the difficulties that Deaf people face

 

  1. Paragraph 15 of the judgment sets out the evidence as to BSL being a separate language; the difficulties in English literacy that Deaf people experience; their poorer outcomes, in health for example, and the contribution to this of poor Deaf awareness

 

The legislative policy of the Equality Act 2020 Reasonable Adjustments Duty

 

  1. The judgment sets out the legislative provision as submitted by the legal teams and in particular at paragraph 20 sets out the legislative policy of the reasonable adjustments duty – The laws regulating disability discrimination are designed to enable the disabled to enter as fully as possible into everyday life”. EqA2010 “does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people [which] necessarily entails an element of more favourable treatment”

 

Substantial Disadvantage

  1. The Government had argued that Deaf people were not at a substantial disadvantage in not having an interpreter because, amongst other things, they had subtitles and there was other information available in the form of ministerial briefings. The court rejected this (paragraph 28). It said that “messages of alarm or reassurance bout being in this together” and acting responsibly “required inclusion and accessibility. “There was a clear barrier for a vulnerable and marginalised group, undermining accessibility of information. The message was blocked or scrambled or delayed. The barrier to information in an accessible format arose by reason or disability. The lack of provision – the provision of subtitles only – was a failure of inclusion, suggestive of not being thought about, which serve to disempower, to frustrate and to marginalize. The immediate experience was of important urgent messaging being delivered to the public, know to be being provided, but with an inability to access or understand it. The substantial foreseeable and palpable effect would be an exclusion, and a justified sense of grievance…..”

 

 

Subtitles are not a solution for Deaf BSL Users

 

  1. Paragraph 35, page 27 –

 

  1. “Subtitles” – fast-moving text in relation to technical information in a language which is not the first language of BSL users and assumes a level of literacy in that further language which very many of them simply will not have – are not an answer for Deaf BSL users. I would go further. 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” (EHRC, Technical Guidance on the PSED §3.38).”

 

 

The failure to provide BSL Interpreters for the Data Briefings was a Breach of the Cabinet Office’s duty to make Reasonable Adjustments. – Paragraph 35:

Key points:

 

  1. The duty is not delegable. The Defendant had relied upon an arrangement with the BBC, and it was said by the court that “secure and clear arrangements had not been made. There was also no “clarity or visibility”
  2. The problem was not anticipated. The duty to make adjustments is proactive, anticipatory as the caselaw and code of practice make clear
  3. The Government was guilty in relation to its reliance upon the provision of subtitles of prejudice – the judgment states that “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” (EHRC, Technical Guidance on the PSED §3.38).
  4. The judgment confirms and re-iterates the importance of accessible information during a time of emergency and the importance of the WHO guidance on this
  5. There was no reason why BSL could not have been provided

 

 

Nature of detriment

 

  1. Ms Rowley had to show as a result of the breach of the duty to make adjustments that she had experienced a detriment. The government contested this and impugned her credibility. The court accepted at paragraph 36 that by being excluded from the information provided she had a justified sense of grievance

 

  1. Importance of damages in Judicial Review discrimination claims

 

  1. “Challenging, burdensome and multi-faceted though the circumstances were for the Defendant, this is
  2. Not one of those cases where there was a conflict between considerations pulling in different directions, needing to be reconciled. No conflict has been identified. There is for example no choice, no trade-off, between subtitles and BSL interpretation.

 

2nd question – Now

 

  1. The case for on-platform BSL interpreter provision

 

  1. In considering the question now, and whether there should be on-platform Interpreters, the court considered the legislative policy, in accordance with Roads and the arguments put forward by the Claimant. It considered that an on platform interpreter would provide the inclusive option in accordance with the legislative policy i.e. with the inclusive nature of the Equality Act 2010

 

Paragraph 48

 

  1. “The case for on-platform BSL interpreter provision for the Briefings, put forward by the Claimant and by others who have throughout raised the issue (§47 above), is a powerful one. In this paragraph I will seek to encapsulate its essence. It has a principal comparison point: the fact that on-platform BSL interpreters have been used, throughout, in Wales and Scotland for coronavirus briefings. It also has a principal practicability point: the fact that an on-platform BSL interpreter could be readily and inexpensively arranged. It then has four distinct strands. These, importantly, are directly linked to the relevant legislative policy of closest reasonably approximated access (§20 above). (1) By having an on-platform interpreter, standing behind the speaker and in camera, it will necessarily follow that whenever and wherever any “clips” are subsequently shown, there is the BSL interpreter. In the PSED Assessment this advantage is described as follows: “the [BSL] interpretation is more likely to be carried on media outlets that do not provide BSL”. So: if there is a “clip” on the evening TV news, or in a post on social media, there is the BSL interpreter. Always. Every time. (2) Elimination. Having an on-platform interpreter, standing behind the speaker and in camera shot, guarantees that nothing can be missed through miscommunication or a technical issue or for any other cause or reason, in relying on an in-screen BSL interpretation feed for live event coverage. Problems do arise. When they arise, they present an immediate exclusionary barrier. The following are described in the evidence. On 26 January 2021 and 3 February 2021 the Briefings given by the Prime Minister involved a breakdown of the BSL feed for Government online coverage (though it continued for those watching the BBC News Channel). On 28 April 2021 (9 minutes) and 14 May 2021 (16 minutes) the in-screen BSL interpreter was lost on the Government social media channels. The first time (28.4.21) was because Red Bees’ digital feed hardware required a reboot. The second time (14.5.21) was because of a BBC re-routing issue in circumstances where the BBC was prioritising coverage of its 6 o’clock news. Mr Heneghan’s evidence is that such issues are addressed and resolved. But on-platform provision, in the context of an anticipatory duty, would eliminate them before they happen; rather than relying on resolving them promptly after they have happened. The PSED Assessment acknowledges that one of the “advantages for BSL users of providing on platform interpretation” is that “the risk of technical issues of the limited kind we have experienced to date is reduced”. (3) Inclusion. By having an on-platform interpreter, standing behind the speaker and in camera shot, the experience for Deaf BSL users is that they are being included, alongside everybody else, through the same primary routes and the same choice of routes as are available to the public generally. The provision is inclusive and immediate. Deaf BSL users are not required to ‘go elsewhere’. This, clearly, is the ‘closest approximation’ to the experience of the public generally. (4) Promotion. By having an on-platform interpreter, standing behind the speaker and in camera shot, the clear message and experience – for everybody – is that Deaf BSL users are being included. This constitutes clear action to promote understanding, including as to the importance of inclusion. As the EHRC – with its special role, insight and responsibility – compellingly put it (30.4.20) this constitutes a demonstration of the commitment to equality for all. As the PSED Assessment acknowledges, one of the “advantages for BSL users of providing on platform interpretation” is this “the BSL interpreter is visible automatically to all viewers which raises awareness of BSL views and needs’. As the PSED Assessment records, in relation to the PSED consideration “foster good relations between people who share a particular protected characteristic and people who do not share it”: “The presence of BSL interpretation in respect of the press briefings across the Government social media channels is likely to assist in fostering good relations between d/Deaf people and other people, as it raises awareness of the need for BSL interpretation, and its benefits for those who use it. This could have positive consequences of fostering the inclusion of d/Deaf people (and disabled people generally) in wider society, particularly during the Pandemic”. It continues: “having an on-platform interpreter could have a more significant positive contribution to fostering good relations… because all viewers would see them automatically”. These are things that matter.”

 

.. and…

 

  1. Paragraph 55 at page 44,

 

  1. “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 (§20 above) and in-screen provision is a ‘lesser’ step”

 

Continuing Breach

 

  1. However, it found that there was no breach of the reasonable adjustment duty because the government could point to a disadvantage which meant that it was not reasonable to provide on platform.

 

  1. In addition, (para 58) the Government was no longer in breach of its duty under the Public Sector Equality Duty under s149 of the Equality Act 2010 because the last working day before the date for filing arguments before the Hearing it produced an Equality Impact Assessment showing that it had an explanation at that point as to why an in-vision Interpreter might sometimes and in some circumstances be better. This discharged the procedural duty under s149 of the Equality Act. The Government therefore succeeded in defending this aspect of the case.

 

 

Prepared by:

 

Chris Fry, Fry Law

Catherine Casserley, Cloisters Chambers

28.07.21

About the Author

Chris Fry

Chris is the founder of Fry Law.