At Accessibility Scotland 2018, Heather Burns @webDevLaw talks about next year when the UK leaves the European Union (EU). What will this mean for the EU accessibility regulations which currently guide our work, the new accessibility legislation in the pipeline, and disability rights in general?
Download Heathers slides in Microsoft Powerpoint format.
So today we’re gonna talk about what Brexit is going to mean for accessibility and this is really … it’s almost a form of personal therapy because I know that Brexit is this big, huge, monolithic thing that’s coming at us really fast and it’s hard to get a grip on it. So what I’m going to do is break it down into small chunks that we can all easily understand about what it’s going to mean for accessibility.
So we’re going to discuss roughly what is gonna happen on the 29th of March next year.
We’re gonna go through an overview of the accessibility laws and policies which come to us in the UK from Europe and we’re gonna talk about what you need to be aware of after Brexit.
And it’s worth saying that this whole talk is speculation. It’s not fact. It’s not a prediction of what’s gonna happen and it’s not even legal advice. It’s basically a really long pub talk.
We’re going to learn about what we’re facing in terms of what pieces of the puzzle we’re dealing with and that at least empowers us to move on from that.
So who am I?
As the lovely introduction said, I’m a tech policy and regulation specialist. I’m not a lawyer, but I work on any number of issues ranging from privacy to accessibility, to eCommerce which impact digital professionals and their businesses.
Past two years for me were really about GDPR, as you can imagine. And the next year, in my view, is definitely going to be about Brexit.
So that’s what I do. I support people and projects, where code meets law and policy.
In terms of accessibility, I’m very happy to work with the All-Party Parliamentary Group for assistive technology down in Westminster and also a core component maintainer of WordPress.orgs core privacy team pushing privacy fixes to 32% of the sites on the open web.
No pressure there.
If you work with WordPress, I’m also a co-organizer of next week’s WordCamp Edinburgh, which is gonna be code base Friday … no Saturday and Sunday. And Claire’s even doing a talk on Gutenberg in accessibility, which is ever so slightly controversial, so you might want to come along.
So how did we get here? How did we get to the point where we’re talking about Brexit and what it’s gonna mean for us?
Well it’s very simple.
On the 10th of January, 2016, David Bowie died and this caused a colossal tear to rip open the fabric which holds the universe together. And this subsequently resulted in the UK voting to leave the European on the 24th of June.
If you’ve got a better explanation than that, that’s about as best as I will come up with. So we know how we got here. So what is gonna happen on March 29th? Sort of, because that’s the day we’re officially getting divorced.
There’s no talk of a transition period, which may be two years-ish. It may be two years plus. I don’t know. I don’t have a clue. Nobody has a clue. But March 29th is the date we’re working towards.
On March 29th, we’re getting something called the Great Repeal Bill. And this will repeal the 1972 European Communities Act, which put us into the European Union.
It ends the jurisdiction of the European Court of Justice over UK fairs, but it also copies all current existing European derived legislation into domestic law, at least the ones that aren’t there already.
So that’s the first thing you need to know. We’re not falling or being pushed off the cliff on the 29th of March. Everything we have now in terms of legislation stays exactly where it is. That’s the starting point we work from.
A little bit of a history lesson. We need to know about something called Henry VIII Powers. This is something that’s going to impact us, believe it or not, 500 years later. Because if you’re gonna have an ugly divorce, you might as well go all out. (Heather shows a slide of an actor dressed as Henry the eighth).
So you know why I put that there.
So basically, Henry VIII Powers allow the government to change or repeal an act of parliament without going through everything line by line.
And there are situations where that would actually be really quite useful. It’s been used in things like war time, and it’s now talking about being used, in geek terms, as a bulk edit for convenience sake.
There are thousands and thousands, and thousands of pieces of legislation on everything from fisheries to agriculture, to building standards, to you name it.
There’s no way that we have the human resources and manpower to go through thousands of pages of legislation line by line.
So, Henry VIII Powers may be quite useful in terms of bulk editing European legislation, but there’s also a very obvious inherent danger in that, that they’re just used willy-nilly to override proper oversight and parliamentary authority.
So, when you hear Henry VIII Power is being talked about. You’re going to have to evaluate it on a situation by situation basis. Yes, it could be useful, but it could be a gateway to abuse.
So, regardless of whether those powers are used or not, we know that we’re going to have what we have for a little while longer. What we need to think of his long-term down the road, what’s going to happen, all the European derived laws, including those that impact accessibility, they can be left as they are. They could be replaced or amended in purely domestic versions or there’s a very small chance that they could be thrown out with the bathwater.
It doesn’t make sense for that to happen. Maybe it does on a tiny handful of things, but you have to be more worried about the attitudes that we’re seeing from some of the more hard Brexiteers who just really do want to throw out anything that has EU on it, regardless of how useful or practical, it’s going to be. And I’m actually going to talk about an example of that that’s starting to impact accessibility law shortly. So, as I said at the beginning, when we talk about what Brexit is going to mean for accessibility, we need to understand what UK accessibility laws come to us from Europe?
We’re just talking about Europe here. I’ve left out of things that are not Europeans, such as the UK being a signatory to the UN (United Nations) convention on the rights of persons with disabilities because that doesn’t change, but for sanity sake, we’re just going to keep this.
Within Europe, we have two kinds of accessibility regulations, European or not, we have a disability and human rights laws. These are things like EU charter, fundamental rights, Equality Act, the human rights act. These are things that deal with rights and dignity.
We also have what I call practical access laws. Things like web accessibility, public transport services and manufactured goods, public procurement, the things that impact what we do every day, living under the rights we have from disability, and human rights laws.
And it’s worth noting that those practical access laws also include things like freedom of movement for carers, which is going to be a huge thing. Little things you wouldn’t even think of. Like there’s a European law requiring all bus drivers to have mandatory awareness trading of people with disabilities.
The more you look, the more you find, and I could probably stay here for a week and bore you all to tears, but we’re just going to focus on digital and web accessibility focus laws today.
So, let’s run through the disability and human rights laws which come from Europe, the most well-known one is the EU Charter of fundamental rights. And this sets out the fundamental civil, political, economic and social rights of everyone living in the European Union.
For us, it bans discrimination against the disabled and it requires them to be fully integrated into society and where there is a dispute or an uncertainty, it has been interpreted by the court of Justice of the European Union. One thing you become aware of when you’re doing this for a living is that there’s a lot of abbreviations and a lot of them are similar. So, the Court of Justice is a CGI U. So, what is happening to the Charter of fundamental rights? Oh, sorry, I should have mentioned. It’s often confused with the European Convention on Human Rights. That’s something different, as I said.
So, what is happening to the EU charter? It is not being retained after Brexit and this is because of the CGI U, which is seen by leaf supporters as a form of EU interference in domestic matters. This is the kind of thing you would see whipped up by the red tops that a prisoner maybe claimed their human rights or something, and this is where you start to see them wanting to throw out the good stuff with the bathwater. They only see how the charter of fundamental rights has maybe been stretched, interactions, it wasn’t intended to cover, and so it goes disability rights.
So, this will leave the UK with less power to protect rights, less flexibility crew to create new rights gaps in human rights provision and certain fleet certainty, a lot of legal uncertainty and confusion. Legal certainty is a term that when there’s a question or a dispute, you have a law, you have a foundation and that’s what you can go to. We’re losing that foundation, so where issues have been happened in the UK, derived from the EU charter fundamental rights that floor is being pulled out. But that’s not the only human rights legislation we have from Europe.
We also have the Equality Act 2010. This is one of those unique hybrid laws. It’s partially European and partially domestic. It actually consolidated 116 pieces of existing disability legislation into one, most of which was actually UK, nothing to do with Europe.
The Equality Act, which I’m sure you all know about, is a human rights law which defines protected characteristics, including disabilities. It implements the for EU equal treatment directives which bans discrimination on various grounds including disability, and it’s a very practical act of law, and it has a, I don’t wanna call it enforcement bodies, but it has a backbone behind it.
That’s the Equality and Human Rights Commission in England and Wales. It’s the ECA treat Scotland for us, and in Northern Ireland, it’s split between the Human Rights Commission on the Equality Commission for Northern Ireland. Now, after Brexit, we are keeping the Equality Act. Again, it is a holy piece of domestic legislation, it just happens to include some EU elements within it. But as I said at the beginning, this is a law which is particularly vulnerable to Henry VIII Powers.
You can easily imagine a scenario where they just decide to pick it apart just to get the European bits out without thinking about, “Well, what are we gonna do to replace it?” The Equality Act, as you know, and we’ll talk about this, has always carried a lot of weight on its back. It does a lot. And after Brexit, it’s only going to carry more. So it remains to be seen how strong it is taking on the weight being vacated by our withdrawal from the charter of fundamental rights.
The third and final human rights legislation from Europe you need to be aware of is the Human Rights Act in 1998. And this incorporates the European Convention on Human Rights into UK law. It didn’t come from the EU, it came from the Council of Europe, which is a totally different body, sorry, nodule, but it is.
It guarantees fundamental rights and freedoms for all, including disability rights and it requires the UK to take into account, that means take into account but not necessarily follow the judgements of the European court on human rights.
And that again is what tends to anger a lot of leave voters, the idea that the UK and domestic judgments might be subject to what they perceive as foreign interference.
The good news is this is being retained in the UK after Brexit and it’s not going anywhere, but it is vulnerable. It is what’s called protected legislation, which means, again, this is a constitutional legal discussion that would take a half hour on its own, but basically the Great Repeal Bill cannot touch it.
However, government, and by that I mean conservative governments have been itching to repeal it for years. This was even before Brexit. They were wanting to replace it with a British Bill of Rights.
Now, the fact that it did nothing when it had a chance before Brexit bodes well for that, but that’s why I feel that this is particularly vulnerable to changes after Brexit. Now, the government has said it has no intention to withdraw from the European Convention on human rights because how do you withdraw from a rights framework unless you’re Donald Trump? Scratch that.
But the bottom line about the human rights legislation that comes from Europe is that it’s vulnerable but it is still in place. We’re losing one of the foundation supports but there’s two very strong statutes in place. They might be changed, they might be modified, but it’s gonna be a hell of a fight to decimate it or decimate them, or get rid of them.
So I think you can feel confident about that. So now that we’ve reviewed the disability and human rights legislation that comes from Europe, we’re going to talk about practical access and accessibility laws that come from Europe.
And as I said, there’s access laws dealing with everything, but we’re just really gonna focus on digital and web accessibility. You might be curious about where web accessibility lives in UK law, anyway. There isn’t a specific web accessibility law per se. Web accessibility has always been held to be part of the Equality Act 2010. It’s not specifically discussed, but it’s considered to live in there, specifically in the portions of the act, which imply web accessibility is a form of non-discrimination in the provision of a service. So a failure to make a website accessible is basically discriminating.
Now, the guidance provided by the equality and human rights commission who enforced the Human Rights Act and the Equality Act, state that websites and online services must make reasonable adjustments for people with disabilities settled. Even if it doesn’t say in the law, if there was a dispute, it would be the EHRC, who oversaw it and they would be the first to say to you, “Yes, your websites and online services need to be accessible.”
Now, just because there’s no law saying you must, doesn’t mean you can’t. So, most web professionals have always worked to the WCAG (Web Content Accessibility Guidelines) 2.0 standards, to keep their websites and applications accessible as much as humanly possible. And it’s also worth noting that we do not have a litigious culture like they have in the United States in terms of enforcing web accessibility.
I was running this presentation by a colleague in the United States and their question was, “What I wanna know is, who’s gonna sue me after Brexit?” And I said, “You’re so American,” because that’s not how it works. It’s not that you’re going to get sued if you don’t make your website accessible, but that doesn’t mean you should not make it accessible.
As someone said this morning, it shouldn’t be about. It was Curt Holst who said, “We shouldn’t run away from the law, just because it is.”
We do have European derived laws on accessibility on web accessibility. The first one is very recent.
Very, very, very recent, I think it was early September. It went on the books and this was the public sector accessibility directive of 2018. Did any of you work on this in your workplaces, in your projects? Yay.
So, what this does is it implements EU directive 2016 when he went on to and it pertains to public sector website and apps.
So basically, public sector websites and apps in Europe, whether that’s national government, local government, your public library, state funded universities. Anything has to be accessible. It also requires them to carry an accountable accessibility statement, discussing what steps the website administrator has taken to make the website accessible. More important than that, it should include a designated contact, our dress over who you would get in touch with if you had a concern about the inaccessibility of a site or service.
These slides are online and I’ve written a very long, very, very long compliance guide to the directive, which you’re welcome to read on a rainy autumn night.
So what is happening to the public sector accessibility directive? It’s going to be retained in the UK. It is so new and I’m about to show you how new it is. They’re not going to put in a law for barely a year and then rip it off like a plaster. Implementation expertise to help you comply is coming from the Government Digital Service. You all know GDS?
So they have provided some fantastic resources and assistance to help public sector bodies in the UK come into healthy compliance. Now, what’s really interesting about this directive from certainly from a low geek perspective, is that it straddles the divorce.
In the European legislation, a government may report back to the European Commission, European Union, every couple of years to say, “How we’re progressing on this law, what are we learning, what best practices can we share?” We’re not going to be doing that.
So, enforcement again, is going to fall to the equality and human rights commission. It’s then the question of what greater lessons do we take from this? Part of the purpose of the directive was to share best practice and now we’re just going to be sharing with ourselves, which is a little bit curious. And it certainly removes the stick of having the European Commission come after you. It just moves the stake to the equality and human rights commission.
I really don’t fear for the accessibility directive in the future after Brexit. It’s common sense. It’s much needed and it’s being very warmly adopted. My worry is that how strictly enforcement is carried out, and whether it grows to be seen as something which is in users benefit or something which came from Europe.
So, this is just a picture I took in parliament in June at a meeting of the All-Party Parliamentary Group on assistive technology.
This is how laws and sausages are made. They’re made around a table. They’re made in slightly boring discussions, but it’s where the fascinating stuff happens. The lady in red at the head of the table is Seema Malhotra, who is a Labor MP from Birmingham, I think, who does a really good job of facilitating the group.
And this particular meeting was … it sounds very nice, but it was about applying the directive to universities and online learning environments. VLE’s (Virtual Learning Environments). And we were talking about how we take this European directive and put it into these very unique environments.
We spent a lot of time talking about the accessibility statements, because at the time … the day, the day before we had this meeting, the European Commission released its template for accessibility statements and it’s horrible. It’s absolutely horrible. Its euro gibberish, it’s legalese.
And I made the point of saying, “You need to be really, really careful because we’re going out of Europe now. And if you put on all of your university websites, a legal gibberish thing saying, “The EU told us to put us there.” That’s how you’re going to lose the directive and you’re going to have bigger problems. So, one idea we came up with was leveraging Brexit to create a much more user friendly, non-legalese, non-threatening user centered template for accessibility statements. That’s fun. It looks boring, but it’s, it’s where amazing things happen.
Other interesting thing I noticed in that meeting was all the representatives came from universities and higher education institutions. And the entire point of the discussion was assuming that students learning on VLE’s and online learning modules where we’re on a on campus environment, where the hardware was defined and controlled.
And I said, “Okay. What about the people studying from home or on a public library? Still using windows 7?” And the room fell silent because they hadn’t thought of that. So that’s was worth the trip I think.
So, that is your public sector accessibility directive. The other piece of accessibility law, is the European Accessibility Act. I have a reputation amongst my friends for doing my slides at the last possible minute and the final draft with this came out last night and I was reading it on the train this morning and I thought, no, I’m not adjusting my slides six hours before I go on. So, this slide literally changed overnight.
The European Accessibility Act is a draft regulation. It’s not passed, but the final text was agreed last night on the accessibility standards of products and services. It will apply to TVs, ATMs, ticket machines, gadgets, eCommerce, anything like that, as well as the built environment around them.
You heard Paul (Bepey) this morning talk about how important it is for his equipment to just work out of the box. That is what the European Accessibility Act will do. It’s going to define common accessibility standards for products and services, so that people with disabilities can either use them or adapt them as quickly and as easily as is possible.
It’s worth noting that the accessibility act was designed to serve the estimated 80 million people in Europe with disabilities, but it’s also looking ahead to the fact that Europe is about to have $200 million older people. It’s really important for us to think of accessibility in terms of not just active disability but natural aging. So, what is happening to the European Accessibility Act, and this is where the drama starts with Brexit.
It’s taken four years. You know that European Law is slow. It is taken four years to get to last night where the final draft was approved. If you’ve ever tried to read draft European legislation, don’t. They’re really fond of PDF with strike through and that’s how you compare. They don’t, they don’t do compare changes in GitHub, GitLab, they do PDF’s with strike through and it basically turns you into an alcoholic trying to read them.
So we know what the final is gonna look like, what we don’t know is when it’s gonna be passed, because remember we’re leaving the European Union on the 29th of March. So, if the European Accessibility Act isn’t passed and finalised by the European Union by the 29th of March, it’s place in our domestic legislation becomes optional. I have to tell you that in the four years of discussions and negotiations, the UK has very much been the bad guy.
The UK has been the one that has been pushing to water it down, make it the weakest possible version possible and if you look at the notes, negotiation notes, all of which are publicly available on the European memoranda site. It’s basically been pushed, put in the hands of Brexiteers who’s only thought is how much is this going to cost British businesses.
So, I wasn’t going to make a judgment on the final draft based on not having read it. But there’s certainly concerns that what they’ve gone for is the British version, which is weak and watered down.
But why does that matter?
Well, perfect case study of how Brexit becomes a problem for accessibility law. After Brexit, all of us continuing to do business goods or services within Europe have to continue following all European laws for those European users as if we were still there.
So, if we are still manufacturing goods and services to sell to Europe after Brexit, we’ve got to follow that act and if it’s not in our domestic legislation, that means that we’re building goods for export that have higher product standards than the ones domestic users get here.
Do we really want the UK to have a reputation as the place where the disabled people get inferior products that they have to chance their luck and whether they work or not?
Well, the ones being made for export, have the good stuff. Likewise, do we want the UK to get a reputation where if someone with a wheelchair or a visual impairment needs to, you use an ATM, they take their chances. Whereas in Europe they know for a fact that they can roll their wheelchair up to the ATM, use it, and also have the ATM talk to them.
So, it’s a perfect example of how a hard Brexit would be cutting off our nose to spite our face for people with disabilities and for manufacturers of goods and services.
So, keep an eye on the, the act. I will continue to write and blog about it and certainly read the final draft, God help me. But remember that after Brexit, as long as you continue to do business in Europe, you’re gonna have to follow it anyway.
So, that has been our whistle stop tour of the European derived accessibility framework, which before Brexit comprised the charter of Fundamental Rights Equality Act, the Human Rights Act, public sector accessibility to directive and the brand new European accessibility act.
Worst case scenario is that after March 29th, those five become three. We lose the charter of fundamental rights and we might not have the accessibility act.
We might and we might be able to duplicate the best of what we got in the charter of fundamental rights and domestic legislation. But don’t count on it.
So, as you lead your teams and your products and your projects through the Brexit process in terms of keeping abreast of European Accessibility Law and Disability Law, what do you need to look out for?
A lot of disability advocacy groups have put a lot of time and speaking with service users and members about this, one document I really quite liked with the disability rights UK manifesto for what they want for people with disabilities.
They want all existing EU derived rights to be maintained. They want all existing domestic law rights to be maintained, as in not using Henry IIIV clauses to pick apart the domestic law, much less of European law. They want the UK government to put its money where its mouth is and continue to commit, to supporting people with disabilities. They talk the talk, but it remains to be seen whether they walked the walk. They want matching existing EU funding for disability issues.
There’s always been a lot of EU funding on everything from travel to study abroad, to things like the blue badge scheme. So they want the UK to make up for the funding we’re all about to lose. They would like a full equality impact assessment for freedom of movement, not just for people with disabilities who may find it harder to travel into and outside of Europe, but also in your carers.
A lot of people employ carers from Europe. What happens when they can’t just get on a plane and work for you anymore when you have to sponsor their visa? They want continued mutual recognition initiatives. You can use your blue badge anywhere in Europe. Why should that stop after the 29th of March?
So, to sum up that three, oh, and yes, continued commitment to the European Convention on Human Rights.
They wanna make sure that they don’t just throw anything that’s got the word Europe in it, regardless if it has nothing to do with European Union.
So to sum up, again, preserve what we have, don’t regress what we do have and progress to something better. Preserve, don’t regress and progress.
So in any advocacy work you’re going to be doing in the next couple of years for people with disabilities for the accessibility work you do, prepare to make sure that you preserve the rights and freedoms we have already, that they are not chipped away or stripped back in the name of taking back control, and make sure the UK government puts its money where its mouth is and progresses disability and human rights.
So not to be negative, but make sure that they don’t discard disability and human rights legislation, makes sure that they don’t strip back and regress things to the good old days when people with disabilities were seen and not heard, or not seen and not heard, and make sure they don’t fail to progress disability rights and freedoms.
So that’s what disability rights UK wants. But what do you want? It’s worth thinking as we turn over to questions now. We’re always told that Brexit is an opportunity. So what opportunities could we have for disability rights and accessibility in the UK after Brexit that we somehow couldn’t have under Europe?
I can’t think of any or that maybe we never thought to do before now. Any ideas?
Usually, this is the part where the code of conduct goes out the window when people start swearing. But yeah.
Possibly. Any questions?
Kevin: Thank you very, very much for that. Any questions? Just take a few. Any? Just there.
Audience member: Hi. I think you touched on it earlier, but it’s about … I actually was part of the discussions touching earlier. That many websites just aren’t accessible. So many of our actual services aren’t accessible outset, but the vast majority do have accessibility statements and do reference accessibility legislation. That’s kind of screwed up.
Heather: It is very screwed up. It’s what I call the template mentality, because from all the work with privacy I do. People want a template where they literally cut and paste. A story I often tell certainly for my privacy work is some colleagues of mine, on their privacy statement for their plugin, they deliberately put a spelling error in, in a few words so they could Google how many people had just copied and pasted the statement, and search and replace their name, and it was dozens.
So this is something that we talked about in the slide I showed you of the meeting in Westminster, the All-Party Parliamentary Group, the EU has put forward a suggested template for the accessibility statement on a public sector website and it’s horrendous. It’s like the bad stereotype. So that’s an opportunity for us to think about accessibility statements. What should they say? What shouldn’t they say? They should be user centered. They should be user friendly language. It shouldn’t be protectionist mumble jumbo.
So, there’s always opportunity there. I guess the question is why couldn’t we do that? Europe was never holding us back from that, but I think accessibility statements are a good place for us to get some experience under our belt, frankly, in doing this work after Brexit.
Kevin: Sorry, just – I think it’s worth noting – Sorry, that GDS are looking at the accessibility statement and doing work, working with users as to what makes a good accessibility statement, trying to keep it within the framework of the EU legislation. So there is work that’s going to be doing in that. I think Josh (O’Connor) mentioned yesterday when I was chatting with him, they’re looking at some time in the New Year coming out with some sort of guidance on that.
Heather: Excellent. What would we do without GDS?
Kevin: I don’t know.
Heather: Looks like … Did you have something else?
Audience member: Yeah. I don’t wanna take up the whole time.
Audience member: Yeah, no, it’s just I guess it’s one thing to have the statement, it’s the backing up of this. Because you talk about a litigious society in America. I don’t want to go to that, but how do you enforce it?
Heather: Oh, that’s a debate as old as accessibility itself.
Kevin: Yeah. I mean, my personal view is so anybody not heard of GDPR in here? Okay. You heard of it because it’s got an £18 million price tag associated with it. I’m gonna have a word with you for scaremongering. I don’t like it but that’s why we know about that. We know about it because it got a lot in use because of the price tag. Accessibility doesn’t have that. I don’t think it should have it. I don’t think GDPR should have it either, but that’s my personal view, but that’s why … and that’s where the enforcement comes from. It’s where people start getting scared and it’s not … that’s not the good way to do it, certainly not with something like accessibility. Yeah.
Heather: There was an interesting comment made about the European Accessibility Act and the UK government’s determination to water it down. And someone made the point that older folk voted for Brexit and demographically speaking, and what’s gonna happen when they realize that they can’t use all the goods and services they take for granted because we pulled out of the European Accessibility Act and watered it down.
Kevin: More from the [crosstalk 00:35:25] consequences.
Heather: I know. I know. So that’s almost a separate thing. Yeah.
Kevin: Okay. Thank you very much Heather, absolutely fantastic.
Heather: Thank you. Almost forgot my last slide. That’s all my contact details. So I’m on Twitter @WebDevLaw. You’re welcome to hire me at Webdevlaw.uk. I have a whole side blog on Brexit and tech policy because I had no life at afterbrexit.tech. Please join me next weekend at WordCamp Edinburgh and you can also find me at Starbucks.