The UK Government has recently published its response to a consultation process on its plans to implement European accessibility legislation for public sector websites. In it, the Government clearly states who will be monitoring and reporting on websites and apps and who will be enforcing the law - but will proactive enforcement finally become a reality?
Which websites and apps are affected?
An EU Directive on the accessibility of public sector websites and mobile applications will be implemented in the UK on 23 September and concerns all public sector bodies. There are, however, several notable exemptions including schools and nurseries, public sector broadcasters such as the BBC, some NGOs and some third-party content that appears on public sector websites.
Nearly two-thirds of respondents to the consultation were critical of these proposed exemptions - organisations including AbilityNet, the British Computer Society, Scope and the RNIB. However, the Government has chosen to stand by their original proposal; “Government policy is not to go beyond the minimum requirements of European Directives unless there are exceptional circumstances. In accordance with this policy, we will make use of all exemptions available in the Directive.”
This is, of course, disappointing and not a little concerning. It is also seemingly in contradiction with existing legislation such as the Equality Act 2010 which most definitely requires organisations across all sectors not to discriminate against people who need website and app accessibility to participate in today's digital world.
The Government response does state that a review of the regulations will take place two years after they come into force, which will include examining how exemptions are working and “if these need to be changed.” Let's hope this includes asking those affected about how the inaccessible websites are impacting their lives.
Moreover, deadlines for public sector organisations to comply with the regulations do not come into effect until 2019-2021 (depending on when content was created). This proposed delay also drew criticism in the consultation process and yet has remained unchanged. It has been a legal requirement for websites to be accessible since 2003 so this further 'grace' period seems a little unnecessary…
Enforcement of the law - is now finally the time?
OK - enough of focusing on the negative aspects of the outcomes of the consultation process. One aspect that may mean future movement in the long-standing glacial progress of accessibility advancement in the UK - advancement that has seen less than 10% of websites meet the very minimum level of compliance in a decade and a half of legal requirement - is the Government's identification of a body to monitor accessibility and another to enforce it. Will this combination be akin to an accessibility dynamic-duo - fighting crimes against inaccessibility wherever it rears its ugly head - or will things remain all but unchanged in the months and years to come?
The response outlines how the Government Digital Service (GDS) will monitor and record public sector bodies’ compliance with the Directive. This is good news. Up until now I wasn't aware that any government body was actively doing this and, being a public body activity, will be subject to an FOI (freedom of information) request. This means that, even if the reporting they mention remains largely internal, an FOI request will easily enable it to get a much wider press. Oh, that they would extend this activity to report on websites and apps across all sectors - and maybe they will. Fingers crossed.
So, what about enforcement? We've been calling for enforcement of the law in this area for years and now, finally, the Government have specifically named a department who will be responsible for enforcing the EU directive; the Equalities and Human Rights Commission (EHRC). Additionally, the Minister for the Cabinet Office will be given some enforcement powers. The government claims that this approach “makes sure the process for resolving accessibility concerns is robust.” Let's hope it is and that, again, they take it upon themselves to broaden enforcement to all sectors and in a crime-busting, proactive manner. More fingers crossed!
It's not fine to fine, apparently - so what will the sanctions be?
One area of concern across many of the organisations that responded to the consultation was the lack of detail on a proposed enforcement mechanism. Many suggested, as above, that a published list of non-complying organisations should be used as penalties, but most were in agreement that fining non-compliant organisations is the best way to go. Money is a great motivator and yet, in the Government's final response, they state that there are no plans to introduce ‘new fines’ for organisations failing to comply with the Directive. Hmmm.
This lack of firm financial sanctions is labelled as “disappointing” in the consultation response of Policy Connect – a cross-party think-tank providing support to the All-Party Parliamentary Group for Assistive Technology (APPGAT). Policy Connect correctly claims that “Sanctions are a well-established part of effective enforcement mechanisms and should be a part of enforcement of the present regulations.”
We would want to restate our concerns to those of both Policy Connect and the majority of organisations who contributed to the consultation process. What exactly do the EHRC plan to use to force organisations to make their websites and apps accessible? If it's the threat of brand-damage alone then don't forget that 90% of organisations will be along-side them in the firing line and, to that extent, the sting-factor will fade and some feeling of safety in numbers may soften the blow.
Fines for speeding, illegal parking and non-payment of taxes (to mention a very few examples) are common-place and almost inevitable - and yet crucial digital services that impact many millions of users (did you know that there are 12m people with a disability in the UK today?) aren't worth fining because… er… I can't think of a good reason. Let's hope that the EHRC can't either, collectively put on their superhero cape, and leap into action.
Find out more
Read the UK Government's response in full
Read the response from Policy Connect
Here's how Government can help disabled people in a digital world
Open letter to Government: Please ensure websites and apps comply with legal accessibility requirements