Question 2
Do you believe legislation is required? If not, what other non-legislative means can be followed?
One hundred and fifty respondents provided a direct response to this question, including 42 organisations and 108 individuals. Of those, 133 (89%) expressed the view that legislation was required, and 17 (11%) were either opposed to some degree, or had mixed or other views (such as being supportive of the aims of the proposal but not the need for legislation, or preferring the option of making use of existing legislation).
Those supporting the need for new legislation were generally of the view that BSL users should be classed as a linguistic minority, with BSL being treated as “a language and not an additional communication support need and requires clear and distinct legislative powers for its preservation and promotion to ensure the equality of Deaf people in Scotland” (British Deaf Association). This view was held by the majority of individuals who responded to this question and a number of organisations, illustrated by the following—
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The Scottish Council on Deafness (SCoD) felt that there was no legislation supporting BSL as a language in its own right and BSL users as members of a linguistic minority and that: “… Since other people whose first language is a spoken language other than English do not have to declare themselves “disabled” in order to access services and information in their language, why should Deaf BSL users? For as long as this is the case, there is no equality for Deaf BSL users, only discrimination”.
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The British Deaf Association believed that non-legislative means had not worked and that “the Equality Act only covers Deaf people if they declare themselves to be disabled. To access services and information in one’s own language should not be covered by “protected characteristic” of disability … this is an anomaly that requires legislation to clarify”.
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The STUC stated that: “Not all deaf people identify themselves as being disabled and therefore lose the protection afforded under the [2010] Act”.
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One individual respondent felt that it was “highly questionable” to consider a deaf BSL user to be covered by the Equality Act 2010, noting that this meant that an individual who uses BSL as their first language was to be considered “disabled” and did not reflect an “equal standing”, as speakers of, for example, Polish, Urdu, Chinese or Gaelic would not be considered disabled. (Individual response no.16)
The National Deaf Children’s Society (NDCS) believed that, in the case of BSL, promotion of a language and promoting equal access are inextricably linked and that, to remove potential barriers to its passage through the Scottish Parliament, “any explicit reference to improving access which strays into the realm of reserved Equality Act duties ought to be removed. This will be a secondary impact of the intended legislation”.
Benefits of legislation
The advantages of legislation identified, amongst other things, were that it could provide an additional imperative for actions and good intentions which might be of lower priority within a framework of “voluntary” objectives. In addition, legislation could provide “the catalyst for action which transcends current and future Government priorities and a clear framework for public bodies to justify continued efforts to promote the use of BSL as a modern language of Scotland”. (NDCS)
Opposition
Arguments opposing legislation or expressing concerns included—
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NHS Education for Scotland (NES) did “not agree that the proposed legislation would be the most appropriate way to address the issues” and felt that since deafness was considered to be a protected characteristic in terms of the Equality Act, “There is already a strong legislative drive for the production of information in BSL and for enhancing access to services for users of BSL in the disability provisions of the Equality Act 2010… Furthermore, the public sector equality duties (both general and specific) already require public bodies to have due regard to the need to eliminate discrimination”.
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Orkney Equality Forum and Capability Scotland felt that by legislating for needs of one specific group, attention and resources would be directed away from other disabled people and those with other protected characteristics.
Alternative measures
Some respondents suggested possible alternatives to new legislation, including—
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A voluntary code of conduct/guidance.
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Re-interpreting or adding to existing legislation.
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A nationwide pilot of web based interpreters, which could be useful in GP practices.
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A national strategy to include—
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training in relevant means of communication, particularly funding for training of BSL interpreters and enabling a range of means of communication eg BSL DVDs;
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best practice guidelines;
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recommendations that would enable public bodies to act based on the need in their area.
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Strengthening of current arrangements – for example, more public campaigns, schools incorporating deaf awareness into health and wellbeing programmes, councils producing annual performance reports that include disabilities.
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NES reported that the Scottish Government would shortly launch the consultation on its sensory impairment strategy, and recommended that BSL provision could be considered within the context of that strategy rather than additional legislation, which would, it was argued, allow the Scottish Government to take a more targeted approach, aligning investment to address the specific priority issues in a coordinated way across the public sector.
Education services
In addition to responding to the issues raised by the question, a number of respondents provided additional comments in relation to education services—
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The SCCYP felt that the provisions of the proposed Bill should extend to developing awareness of teacher education and the Commissioner would be keen to see improved guidance to complement the legislation: “For those children who want and need to use BSL as their means of communication, the absolute minimum should be BSL level 3 [NVQ certificate], with a commitment to continued CPD”.
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The NDCS also felt that there should be guidance or a new duty for increased level of the BSL skill set for specialist teachers of deaf children and echoed the view that the BSL qualification standard should be minimum BSL level 3 not level 1 (foundation). In addition, it would like to see BSL being offered as a modern language option. This would not require legislation but public authorities “could certainly be supported to justify spending decisions around investment in BSL provision by having reference to the requirements of primary legislation to promote BSL”.
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