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Brexit looks set to impact almost every sector of the UK economy and civil society – assistive technology is no exception. Indeed, the UK’s move to leave the union comes just as the EU has stepped up its efforts on digital accessibility. A new EU Directive on public sector websites and apps will be written into UK law this year, and the EU is moving into the final stages of work on an even more comprehensive digital accessibility law: EU Accessibility Act. What will be the UK’s relationship with EU accessibility regulations? This question is set to become more and more pressing for the assistive technology sector, and for disabled people in the UK. To get a picture of the issues and what’s at stake, we interviewed digital law specialist Heather Burns. 

The EU Accessibility Act (EAA) is not yet EU law, but the Council of the European Union has approved its position after several years of negotiations. What does the Act do? (in its current form)

The European Accessibility Act aims to introduce market-wide accessibility standards across products such as laptops, smartphones, tablets, ATMs, banking services, e-book readers, and public transport ticketing machines. It also aims to encourage the provision of accessibility into e-commerce services. The aspiration is that any person in the European Union, regardless of their ability, will be able to purchase or use the products and services they need knowing that they can be used essentially "out of the box", with the modifications and accessibility options they need built in as standard.

The Act is a reflection of the leaps in innovation which have made it possible for everyday laptops, smartphones, and tablets to be used as assistive technology. Alternative and augmentive communication tools which would have cost five figures twenty years ago are now contained in affordable apps which can be up and running in seconds. That is a wonderful thing. But those leaps have only been possible because of voluntary innovations in digital accessibility standards for hardware and software. The Act puts those best practice lessons into law for everyone's benefit.

The Act puts ... best practice lessons into law

The Act adopts principles which are familiar to those who work in web accessibility: perceivability, operability, understandability, and robustness. Likewise, its provisions for product design include things you might expect such as making communication possible by more than one sensory channel and providing clear information on product packaging.

But - and here is where the Act really shines - this legislation views accessibility as a means to ensure fundamental rights, and not just a means of product access. So it requires thoughtful inclusions like optimal privacy for people with visual impairments who rely on voice activation and recognition; likewise, it also requires alternatives to biometric information and control.

It has been a long haul - the Act was first proposed in 2015 - and it has not been without controversy as it has evolved through the legislative process. Some disability groups, including the European Disability Forum, feel that the Act still needs quite a bit of work. However, it is finally at a point where those critical negotiations can really begin.

Digital accessibility is about making the technology we all use work for all of us. How does current EU law deal with the accessibility of websites, software and apps? 

Many European countries already have domestic legislation in place pertaining to on-page web accessibility, while others have superb projects such as the UK's Government Digital Service which place accessibility as the highest priority. However, what was missing across the  European single market was a unified approach to how people with disabilities are able to access information in the first place. For that reason, the European Accessibility Act focuses on standards for hardware - phones, tablets, laptops, ATMs, ticket machines, and so forth.

more public services ... are being moved to "online only"

There is, believe it or not, just one EU law pertaining to web accessibility. Because more public services - from taxation to job searches to benefit applications - are being moved to "online only", the EU recently passed the Web and Mobile Accessibility Directive, which requires the accessibility of public sector web sites and apps across Europe. This Directive benefited from thoughtful constructive input from the UK throughout the scrutiny process.

Outside legislation, the UK has also participated in the European standard on accessibility requirements for public procurement of ICT products and services.

The UK is involved in negotiations over the EAA: what has been the UK position on the Act?

The UK's involvement in the negotiations over the EAA has been exemplary and thorough despite carrying over through three different governments, and stands as a testament to the health of the European scrutiny process. The proceedings of the November 2017 meeting of the European Scrutiny Committee are a good and timely chronicle of that involvement.

As the Act moves towards completion, the UK continues to be involved in the negotiations, although some the changes it has proposed have been opposed by disability rights groups and advocates. The UK's specific concerns have included:

  • Achieving the right balance between prescribing the right standards and requirements and not being too technology- or product-specific in a way which could render the law outdated very quickly, which could prevent innovation in services;
  • The risk of disproportionate compliance burdens on small and microbusinesses;
  • Overlap with existing and pending legislation on public transport, electronic communications, and audiovisual media services such as live television broadcasts;
  • The costs of replacing the equipment used by emergency services to ensure compliance.     

As a result of these concerns, microenterprises have been completely excluded from the provisions of the Act, as have audiovisual media services. The possibility of requiring specific technical standards has also been replaced with a move towards general best practice standardisation.

Did somebody say the UK doesn't have influence over European law?

If Parliament doesn’t replicate all the EU digital accessibility law into UK law, what difference will it make?

After Brexit, any trade from the UK to EU member states within the single market, in the goods and services covered by the Act, would still need to be in compliance with the EAA's requirements. Just like any other manufacturing or e-commerce sector, UK businesses exporting to the European market would need to sell products meeting European standards.

UK businesses exporting to the European market would need to sell products meeting European standards.

That means, as with all European legislation, that the UK needs to carefully consider what it will do if it does not replicate the European Accessibility Act. No one wants to create a system where the products and services being designed for export have better standards for accessibility than those made for domestic use.

Do you think it’s likely that the EAA will pass before the UK leaves the EU? And what difference would that make (compared to the EAA passing after withdrawal)?

It is all a matter of timing, or rather the delicate dance between the Act passing, the UK formally exiting the European Union, and the end of any transition period of continued market access. The Act is now moving into its final draft phase, which could take…well, the Act has been moving through the legislative process since 2015. They are not going to rush on our account.

After withdrawal, the UK has said it remains fiercely committed to its obligations under the UN Convention on the Rights of People with Disabilities and to provide "world-leading" accessibility provision, whether this takes the form of hard law or soft standards. Outside the Westminster bubble, however, many people with disabilities would beg to differ that their rights are being respected as is, much less harmonised with future legislation in Europe.

UK businesses lose nearly £2 billion a month in custom from people with disabilities who simply cannot use their products or services 

We already know that UK businesses lose nearly £2 billion a month in custom from people with disabilities who simply cannot use their products or services. A lack of harmonisation in future product and services would heap insult on injury. We do not want to create a situation where the continent is a place where a person with a disability can count on a basic provision of service wherever they go, while the UK becomes a place where a person with a disability has to take their chances.

Even after Brexit, the UK could adopt a version of the EAA. What would be the advantages of doing this? Or does the Act just cover the same ground as the UK Equality Act?

Web accessibility is not discussed specifically in the Equality Act 2010; rather, it is implied within discussions of nondiscrimination in "the provision of a service. The guidance provided by the Equality and Human Rights Commission states that websites and online services must make "reasonable adjustments" for people with disabilities. Most web professionals will facilitate this as much as possible by developing to WCAG 2.0 standards.

That being said, developers can make all the reasonable adjustments they like under the WCAG standards and the requirements of the Equality Act; they will not mean much if the user cannot access the information due to unadaptable hardware, an inaccessible ATM, or a ticket machine too high for a wheelchair.

The Equality Act, remember, has tended to focus on things like access to premises and opportunities. The EEA is about making the things in those premises accessible. The question then becomes whether we continue to shoehorn those hardware needs into those other provisions of the Equalities Act - and we all know what happens when new technology is governed by ageing legislation which never imagined it - or whether we create dedicated legislation to ensure digital rights in a digital economy.

we all know what happens when new technology is governed by ageing legislation 

Finally, does the government's position give us any clues about whether it plans to create a UK equivalent?

If you are looking for clues about a post-Brexit UK equivalent, they are hard to find. The European Scrutiny Committee has been told that "the UK will continue to meet its obligations under the UNCRPD and will continue to draw inspiration from across the globe, including the EU, in order to maintain high standards in this area." To quote a late Parliamentary aide, well they would say that, wouldn't they.

We should not take an absence of active plans to create a UK equivalent to be an absence of intent. Nor should we assume that disability rights cannot be guaranteed in domestic law. But the fact remains that something will need to be done, either domestically or through European law, and it is right that we continue to participate in that process.

The problem is, will we be welcome? No one could blame the EAA's lawmakers if they choose to tune out the critical voices of a delegation which wants to have a say at a table it is leaving. In fact, the Guardian has specifically cited the EAA as an example of "a policy area where Westminster once led the way, but now is at risk of slipping back."

What I would say is that any discomfort our legislators and negotiators might feel participating in the process pales in comparison to the discomfort faced every day by people whose lives are diminshed by a lack of accessible products and services. We need to do right by people with disabilities in whatever form it takes. If this Act is to be our last involvement in the European lawmaking process, let's go out on a high.

 

Thank you very much.

Heather Burns is a digital law specialist in Glasgow, Scotland. She researches, writes, publishes, consults, and speaks extensively on internet laws and policies which affect the crafts of web design and development. She has been designing and developing web sites since 1997 and was a professional web site designer since from 2007-2015. She holds a postgraduate certification in internet law and policy from the University of Strathclyde. Learn about hiring Heather to writespeak, or consult.

Links and resources:

European Memoranda on the European Accessibility Act (DExEU)

Commons European Scrutiny Committee discussion of the EAA, 22 November 2017

Commons European Scrutiny Committee discussion of the EAA, 25 April 2017

Commons European Scrutiny Committee discussion of the EAA, 25 May 2016

Commons European Scrutiny Committee discussion of the EAA, 13 January 2016